The coalition’s quiet legal revolution?
16 February 2011
Law by crowd
The new Protection of Freedoms Bill has become the first proposed law to be opened to public comments via the internet. This seemingly small technological advance could have very exciting effects.
The comments system works just like a blog post. Any member of the public can leave comments on any particular provision of the draft law. The deadline for comments is 7th March.
The Prime Minister says that the Public Reading Stage, which is touchingly in “beta”, will “improve the level of debate and scrutiny of bills by giving everyone the opportunity to go online and offer their views” on new laws.” “That”, he suggests “means better laws – and more trust in our politics.”
He might just be right.
The website is simple, elegant and could – if paid attention to – mark a significant advance in the making of our laws.
To take an example, one of the proposed changes in the bill is to the system of criminal records checks to protect vulnerable people.
The “vetting and barring” scheme was to require all those working with vulnerable people – a very wide group – to register the police. This was to be supervised by the Independent Safeguarding Authority, set up following the findings of the 2004 Bichard Inquiry into the Soham Murders. Although the changes have been presented as “common sense”, part of the backstory is that in November the high court ruled that the current barring scheme was unlawful and contrary to human rights law (see my post).
Part 5 of the Protection of Freedoms bill makes wholesale changes to the vetting and baring scheme, apparently reducing by millions the number of people who will need to be checked. Under the proposed section 78, which sets the minimum age for certificates to be registered, a Dr Richard Fairburn has commented:
I run an umbrella service for CRB checks. I ran a nursing home for 17 years ad domiciliary care for 12 years. The peak age of offending is 15 in girls and 18 in males.
Exclusion of half of all offences from the checks made is a step too far. It will place vulnerable people at too high a risk and compromise the position of care providers. It should be reviewed back to a sensible level.
A useful comment from someone who will be directly effected by the changes who might not otherwise have put his view.
And the suggestions are not just about substance. They are also about the basic language, which, after all, is what lawyers tend to argue about for years following a poorly drafted bill. For example, under the proposed section 85, which relates to the disregarding of “convictions for buggery etc.”, Owen Dunn has commented:
This clause assumes there’s only one data controller, but there might be several. Replace “the relevant data controller” with “a relevant data controller” throughout.
This small point could be sensible (a commenter to this post has already pointed out why it may not be, which to an extent proves the point I am making). And a small change could save big money by preventing legal wrangling in the future.
Public consultations on government bills are nothing new. The public is usually given the chance to submit responses to bills within a limited time frame. For example, the consultation on the proposed changes to litigation funding and legal aid closed yesterday and many individuals and organisations have submitted impassioned responses. This can be done by email, and anyone can respond.
But whilst fully considered and expert responses to consultations must continue, the comments system for the new Protection of Freedoms bill serves a subtly different purpose. It deploys the familiar style of website comments to encourage quick and focussed responses to specific provisions. And these comments can quickly become a debate between commenters, providing an iterative response which, if constructive, can arrive at the best answer quickly.
Some will doubt the general public has the time, enthusiasm and pedantry to perfect dry legal language in its spare time. But anyone who reads legal blogs or a particularly vociferous comment stream on a Guardian.co.uk article will know that there is a virtual army of pedants and enthusiasts poised to point out errors or contradictions. New technology such as blogging and Twitter has already widened access to the law and the government is right to try to harness social media for the public good.
That being said, it is not enough just to set up a decent website. The public must be able to trust that they are being listened to. A “your freedom” website was set up to court public suggestions for the bill. It is not clear whether this resulted in changes. An interesting analysis on edemocracyblog.com concludes that this early experiment with “crowd-sourcing”, which attracted hundreds of thousands of responses, was a qualified success. And, although thousands of comments have since been published by the government, this information is fairly useless without knowing whether and to what extent comments were taken on board.
Ultimately, if a relationship of mutual trust can be forged between government and the public, this new arena for consultation could prove to be a quiet legal revolution, and even an example of the much-criticised Big Society in action. And if the government takes the time to listen to sensible suggestions, it could even make our laws better.
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I see this as a welcome innovation – well worth trying. It also addresses a need for people to have a little more say in some of the laws which will govern them. Some excellent points may emerge in relation to the draft bill which might not really have emerged in response to a consultation especially given that responses to consultations frequently take the form of people answering a list of questions sometimes with suggested answers!
Whether this process will be applied to every bill is a separate question. We shall have to wait and see.
Apologies if my first comment seemed overly harsh.
My primary question following on from your comment is “useful” to whom?
Policy Officials? Then shouldn’t these comments have been provided in response to a consultation paper as opposed to the draft bill.
Parliamentary Counsel? I’m sure they’re positively looking forward to being second guessed by lay citizens as to the proper construction of a piece of legislation that properly gives effect to the policy instructions that they received.
Parliament? How long will it be before these seemingly sensible suggestions filter into the house and take up even more time (in a jam packed schedule) to explain something that might be perfectly apparent to Parliamentary Counse or Policy Officials. Or more importantly, how soon before discussions about drafting become discussions about the policy itself.
I say all this while being a crowdsourcing enthusiast but who would have ‘the crowd’ draft the tax code or instructions on how to conduct brain surgery. It might be unfashionable to say this but experts continue to be of enormous importance.
Corrupted Mind – you may well be right. But doesn’t that actually prove the point? The consultation has only been open for a day, but already a potentially useful discussion of a minor point in the statutory language has taken place! See my edit above.
Of course, many of the comments will be amateurish and plain wrong. But I expect there are enough people out there – like you – who know what they are talking about to make the process worthwhile.
A public reading stage should not lead to unrealistic expectations that every suggestion, no matter how barmy, will be implemented. But I imagine that the more sensible public will appreciate this.
Adam, regrettably your excitement is very much as an outsider who doesn’t know or understand the process of drafting the text of a piece of legislation.
Your “data controller” example is a classic case. The term data controller appears in some 47 pieces of legislation ranging in date from 1998 to the present and has been in contention in litigation in over 200 reported cases.
I can guarantee you that Mr Dunn’s “helpful” suggestion was made only in the context of this single clause and not in respect of a term that has featured in numerous other pieces of legislation and litigation.
Looked at in that context, one could argue that “letting the people” loose with the drafting of legislation is a dangerous thing (unless of course the comments on a beta website are to become the trauvaux preparatoire of Acts in the future and our generic draftsman – the expert Mr dunn).
These comments ignore the fact that – if the draftsman ignores – what appears at first blush to be a sensible suggestion the public will feel ignored.