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Weighing the evidence

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The state of the law

We all know that the legal profession is not responsible for the law, politicians are. Nonetheless lawyers are stuck with the consequences of the law in three ways. They have to interpret and apply it. They have to deal with the effect it has on people, namely their clients. Since in the public mind lawyers and the law are indistinguishable, in some ill-defined way lawyers tend to get blamed for the state of the law.

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Consultation

One buzzword for legal change nowadays involves "consultation". However the DCA, (Department for Constitutional Affairs), whilst being impressed by numbers, should not really use those without proper statistical analysis, sampling and a healthy application of a commonsense overview.

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Numbers

During the consultation exercise on the future of the Chancery Division (declaration of interest: I was part of the Chancery Bar Association response team) the importance of "numbers" taking a particular line became clear. The Association response was just one response. It was plain we would have been better off sending a response to all our members, (and all those businesses, clients or foreign lawyers who contacted us saying they were strongly in support of keeping the Chancery Division) asking them to customise it slightly and send it in individually. Then there would have been thousands of responses to take into account rather than one.

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Unrepresentative of public opinion

Consultation exercises inviting people to write in of necessity invites those with strong views. That is an important part of the process, but notoriously unrepresentative of the views of the public as a whole.

There is also concern about how infinitesimally small numbers of people or institutions end up being taken as representative of public opinion. (Even before one considers that quite apart from the numbers, the nature of the exercise means that they will not be representative of public views as a whole). One public issue at the moment is the creation of embryos that are part human and part animal with a view to medical research. I propose to address the ethics of this in a future article, but accept there are legitimate views to be held on both sides. However one argument used by the Health Minister as a reason to ban such embryos is on the basis that the outcome of consultation was overwhelmingly negative. That consultation apparently received a total of 535 responses.

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Statistically insignificant

I am not saying there is no case for banning such embryos. Merely that the use of the consultation exercise to justify it, based on such a small and statistically insignificant number of responses, which themselves are received in a procedure which means there is no basis for supposing them to be representative of public opinion as a whole, risks the legislative process being hijacked by minority opinions rather than genuinely taking account of public concerns.

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Weighing the evidence

Consultation is a proper and important part of the legislative process. It is not a numbers game. When a judge weighs evidence, he assesses quality as well as quantity. It is not the side with the most witnesses which always wins. If consultation is to work properly, there is an even greater onus on government and then the legislature to consider the true value of consultation, both as regards the arguments involved, and how representative it is of public opinion. Just counting the numbers is a recipe for disaster.

Michael J. Booth QC