A CHRISTMAS DRAFTING CHALLENGE

A common law message for Christmas

At this time of year we celebrate the birth of a man who enjoined poverty on his followers with the giving of often expensive presents – those who can afford it, anyway – to each other; so it seemed to me to be a good time to celebrate some of the conflicts inherent in our English legal system and to try a little amateur statutory drafting. But first some Christmas paradoxes.

The head of the English (‘Anglican’) church is one of the richest women in the world (though women could only become bishops in that church a few days ago). She is the English equivalent of the Pope. (The present Pope is a priest who is attracted by the ideal of poverty, and there the equivalence with Elizabeth II breaks down still further). The Queen is head of our judiciary (justice is done in her name) and legislature (legislation must assented to by her); and has power to dismiss the executive (the Government).

Her position in the church is a form of compromise which grew from the Reformation under Henry VIII and has been preserved, with substantial chips from the English/Welsh (and later Scottish) constitutional settlement ever since (including Coke’s use of judicial review against the king – James I – himself). And it leaves swathes of our law unwritten. It follows from that that – at least in theory – it is necessary to read everything first before you can say what the law is; for to define the law in many areas it is necessary to hear the silence, that is to say what the law isn’t before you can say with confidence what it is.

Ten Commandments as default law-giving

And so, with Christmas spirit about us, let us look at law in the Bible. I think first of the Ten Commandments as supplemented by the New Testament. (I put no religious spin on this: I regard ‘religion’ and Bible law-giving as simple contemporary politics.)

Parliamentary drafting is in very similar terms to the Ten Commandments. Eight commandments are written in negative terms like many English statutes. The first three negative ones are puffs for the Old Testament god: – have ‘no god, but me’, no graven images etc etc. Next are two positives: keeping the Sabbath and honouring ‘thy father and mother’. Finally Moses takes his readers back to classic negative (which by default become positive: ie you can do everything else) statutory drafting:

Thou shalt not kill
Thou shalt not commit adultery
Thou shalt not steal
Thou shalt not bear false witness against thy neighbour
Thou shalt not covet thy neighbour’s house, thou shalt not covet thy neighbour’s wife, nor his [servants], nor his ox, nor his ass, nor any thing that is thy neighbour’s.

In the English common law, murder is still common law (ie not on the statute book); and adultery is straight politics: how inconvenient it must be in a tight knit society if husbands and wives can sleep around.

English law-making is either common law (ie to be found in ‘the books’: judges’ rulings on what society expects); and or statute law (to be found in statutes and delegated legislation). For example, English common law guarantees a ‘fair trail’ in open court (and for good measure this is incorporated into European Convention 1950 Art 6(1)). And this is the critical point: if it is not in an Act of parliament or in the books, an English person can do it: anything goes if it is not forbidden. This is the English person’s freedom: with a written Constitution you have to look in the law to find out what you may do.

Love thy neighbour: the Christmas challenge

The New Testament added a third positive commandment: ‘Thou shalt love thy neighbour as thyself’, which some people (with much force, I believe) say is the basis of true non-state socialism. It is the end point for a true Beveridgeian model. (It was from Beveridge – through Rushcliffe spectacles – that legal aid started in 1949.)

The Christmas challenge for readers is to turn that further new commandment – ‘love they neighbour as thyself – into English parliamentary negative drafting. The first thing is to update the term ‘love’ in this context. ‘Respect’; ‘have consideration for’; ‘care for’ or ‘look out for’: any or all of these probably work. It connotes a sort of do-as-you-would-be-done-by attitude to other people.

A reader of the statutory provision can be taken to know that anything is permitted in the particular area of respecting, being considerate for, a person with whom you are or might be in contact, save where it is forbidden. How can this be expressed in negative statutory drafting terms?

A topical example of negative drafting is Administration of Justice Act 1960 s 12:

12 Publication of information relating to proceedings in private
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a)where the proceedings—
(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)are brought under the Children Act 1989; or
(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;]

Publication even private proceedings – ‘any court sitting in private’ – is not out of bounds (‘shall not of itself be a contempt of court’) except in three categories of children proceedings (ie most non-criminal forms of children proceedings). From those three negatives – private (no-one allowed into court), not children proceedings, not a contempt of court – the reader has to work out what he or she positively may do in relation to family proceedings (the list runs from (b) to (e); but none other than (a) obviously relates to family cases).

So ‘to love thy neighbour as thyself’ is to be expressed, please, in modern negative statutory language (more than one sentence is permitted), fit for a 21st century public?

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