Legislative incompetence

There is a post over at the Magistrate's Blog where Bystander has highlighted a classic NuLab law. It creates a new offence of "causing a nuisance or disturbance to NHS staff on NHS premises". It reminded me of a critique of the current style of legislation that I once presented to a colleague, a fellow patent attorney. He was surprisingly impressed by it, so here it is for all of you.

As I have mentioned, I am a patent attorney. Our job is to prepare and file patent applications; these have to include a description of how the invention works, and (crucially) what the invention is. This latter bit is harder than it sounds. At any time during the 20 year potential life of a patent, the owner can drag any third party to Court so that the Court can decide whether the third party product uses the same invention as that set out in the patent. To decide this, the Court needs a definition of what the invention is. This is therefore set out in one or more "claims", which are in the form of noun clauses tacked on the end of the description and which define, in words, what are the essential elements of the invention.

In other words, we are writing what is in effect secondary legislation. Subject the to approval of the Patent Office (or the Intellectual Property Office as it has now been re-branded at great cost and to little effect), the claim that we patent attorneys write becomes a statement of what third parties can and cannot do.

There is a catch, however, in the form of that Patent Office scrutiny. If we draft a claim that includes within its definition something which was known before the application was filed, or which is an obvious development of anything that was known, it will be refused. We will then have to rewrite it until the Patent Office is happy. So there is an ever-present tension in the wording of the claim. Too narrow, and it covers too little. Too wide, and it will be refused. Too vague, and the Court arguments will become lengthy, uncertain, and expensive. To clear, and we are left with no wriggle room with which to cope with 20 years of technological advances.

There is an exam to test our competence at this job. I recall distinctly the advice of a senior examiner - that there are two ways to fail the drafting exam; either to write a claim that does not cover the client's invention, or to write one that covers a known arrangement.

Having explained all that (thank you for your patience!), it is quite straightforward to point out the gross defect at the heart of NuLab's laws. Having identified a behaviour that they wish to ban, they write a law containing a definition of an offence that covers that behaviour. This is, of course, akin to me writing a claim that covers the client's invention.

They fail, however, to think around the issue and consider what other behaviours might also fall within that definition - what other things might they be making illegal without intending to? In short, they would fail the patent drafting exam for the second of that examiner's reasons. They would also make incompetent patent attorneys, forever writing applications that were thrown out by the Patent Office.

Take the law which Bystander mentions, for example. This outlaws "causing a nuisance or disturbance to NHS staff on NHS premises". Now, this is evidently unnecessary as existing laws relating to assault, vandalism, tresspass and so on should be enough if enforced competently. Maybe they thought that the penalties being handed out were insufficient, in which case they should maybe reconsider the straightjacket in which magistrates are forced to operate.

But these are side issues. Let us look at what other activity is banned by this law. Two years ago, my grandfather-in-law slipped in the bath and broke his hip. He was taken straight to A&E, and for a good while I stayed with him to keep him company. During much of this time, he was ignored and left alone, evidently forgotten by the staff who were busy with other patients. Now, I was sympathetic to the staff who were clearly both dedicated and overburdened. However, I was more sympathetic to the Grandpa. In the decades since the day that I met his grand-daughter, he had been consistently kind, understanding, generous and witty. That night, he was upset and in great pain. I decided that I had to try to push him up the queue a little, to compensate for his natural shyness and reticence, and make the staff notice him more over the insistent cries of other patients.

The odd "hello" to staff as they passed had yielded no result. I decided that a little more was needed.

I decided, in short, to start making a nuisance of myself. To ask each and every medical person that I could find what was being done about Grandpa, who was dealing with it, where they were, how far they had got with it, when would they be talking to us, why hadn't they yet, what the delay was ... and so on.

It worked. He was made more comfortable - nurses put him in a position where there was less weight on his broken hip. Doctor tracked down his x-rays, and made some decisions. Within a short while, he was out of A&E and booked onto a quiet ward where he could get some rest.

In the literal sense of the word, I was making a nuisance of myself, to NHS staff, on NHS premises. Should that really be an offence? Should that really make me liable to a summons to appear before the Magistrates?

Now, as with so very many NuLab laws, I have no doubt that the Minister would assure us that it would never ever ever cross-his-heart-hope-to-die be used to prosecute someone in my position. But that is not the point. The Patent Office cut me no slack if I assure them that I'll only let my client sue really nasty infringers. Nor should Parliament. Something is either illlegal or not. If something is illegal, and I do it, I put myself at risk of prosecution. Blue Eyes commented in my previous post that "the government does seem to be putting in place the legal framework whereby a later, less "benign" authority could come in and run riot". I think he is absolutely right. Assurances about what a law won't be used for are worthless tripe, and are (also) clear evidence that it has been drafted incompetently.

If this were an isolated example, it would probably not matter much. But is it not; SOCPA outlaws a sole protester reading out the names of the Gulf War dead. RIPA makes all parents applying for a popular school a valid target for surveillance. I could go on. This is a point which is wider than mere objection to NuLab policies; even where I agree with what they want to do (such as protect NHS staff from abuse), it has to be done competently.

New Labour are simply not competent to govern.