Miscellaneous draft clauses

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This page is for draft clauses on any subject. (A clause is a subdivision of a Bill). Words in square brackets are not part of the clause to which they relate.

This page presently contains material relating to the municipal law of the UK, US and Ireland and to a multilateral treaty.

The draft clauses on this page are not necessarily recommendations.

This page does not include whole draft Bills.

This page presently contains material independently contributed by multiple editors. It may contain draft clauses that are not consistent with each other.

Copyright[edit]

Copyright in legislation[edit]

1.-(1) The Copyright, Designs and Patents Act 1988 is amended as follows.
(2) In section 12(9), for "to 166D" substitute "and 165".
(3) In section 153(2), for "to 166D" substitute "and 165".
(4) For section 164, sustitute:-
164. No copyright, or right in the nature of a copyright, subsists in an Act of Parliament, Act of the Scottish Parliament, Measure of the National Assembly for Wales, Act of the National Assembly for Wales, Act of the Northern Ireland Assembly, Measure of the General Synod of the Church of England, Bill introduced into Parliament, Bill introduced into the Scottish Parliament, Bill introduced into the Northern Ireland Assembly, proposed Assembly Measure introduced into the National Assembly for Wales, or Bill introduced into the National Assembly for Wales.

[Include the following entries in the Schedule of repeals to the Bill in which the above clause is included:]

Chapter Short title Extent of repeal
1988 c. 48 The Copyright, Designs and Patents Act 1988. In section 163(6), the words "to 166D".
Section 166 to 166D.
In section 179, in column 2 of the entry for "Crown copyright", the words "and 164(3)", and in column 2 of the entry for "Parliamentary copyright", the words from "166(6)" to "166D(3)".
1998 c. 46 The Scotland Act 1998. Section 92(3)(a).
In Schedule 8, paragraph 25(2) to (6) and (8).
1998 c. 47 The Northern Ireland Act 1998. In Schedule 13, paragraph 8(5), (6) and (8).
2006 c. 32 The Government of Wales Act 2006. In Schedule 10, paragraphs 27, 28 and 30.

[Notes

Extent: United Kingdom

This clause would abolish the copyright in the documents described.]

1. (1) In this section, "Act of 2000" means the Copyright and Related Rights Act 2000 (No. 28 of 2000).
(2) The Act of 2000 is amended by substituting for section 192 the following:
Acts, etc.
No copyright, or right in the nature of copyright, shall subsist in any Bill or enactment.
(3) In section 194 of the Act of 2000, the words ", Act of Oireachtas, Bill" are repealed in each place where they occur.

[Notes

Extent: Republic of Ireland

This clause would abolish the copyright in the documents described.]

[Cf this proposal for the United States.]

Term of protection[edit]

A scheme for amending the Berne Convention

For article 7(1) of the Berne Convention for the Protection of Literary and Artistic Works substitute:

(1) The term of protection granted by this treaty shall be fifty years after the work has been lawfully made available to the public, or, failing such an event within fifty years from the making of the work, fifty years after the making.

Omit articles 7(2) and (3) of the said Convention. For article 7(5) of the said Convention substitute:

(5) The terms of protection provided by paragraphs (1) and (4) shall run from the date of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the first of January of the year following such event.

For article 7(6) of the said Convention substitute:

(6) The countries of the Union may grant a term of protection in excess of those provided by the preceeding paragraphs, but may not grant a term of protection which exceeds one hundred years after the work has been lawfully made available to the public or one hundred and twenty years after the making of the work.

After article 7(6) of the said Convention insert:

(6bis) The term of protection authorised by paragraph (6) shall run from the date of the event referred to in that paragraph, but such term shall always be deemed to begin on the first of January of the year following such event.

In article 7bis of the said Convention, omit the words from "provided" to the end of the article.

[Notes

This scheme would remove reference to the duration of the author's life from the term of protection granted by the treaty and introduce a maximum term of protection. The terms specified are based on those in articles 7(2) and (3) and the situation prevailing in the United States. Technically this is not a draft clause.

If it was desired to make the term of protection uniform everywhere (except where countries have retained a shorter term that existed before they joined the Union), this could be achieved by replacing article 7(6) with "The countries of the Union may not grant a term of protection in excess of those provided by the preceeding paragraphs" and not inserting the proposed article 7(6bis).]

Criminal law[edit]

Arrest without warrant[edit]

1. The power of summary arrest conferred by section 24 of the Police and Criminal Evidence Act 1984 shall be exercisable by any person, whether that person is a constable or not; and in that section there shall accordingly be substituted-
(a) for the words "a constable", in every place where those words occur, the words "any person", and
(b) for the words "the constable", in every place where those words occur, the words "the person exercising the power of summary arrest";
and section 24A of that Act shall accordingly cease to have effect.

[Include the following entries in the Schedule of repeals to the Bill in which the above clause is included:]

Chapter Short title Extent of repeal
1984 c. 60 The Police and Criminal Evidence Act 1984. Section 24A.
2005 c. 15 The Serious Organised Crime and Police Act 2005. In section 110(4), the words "or 24A".
2006 c. 1 The Racial and Religious Hatred Act 2006. Section 2.

[Notes

This draft clause would assimilate, to the extent provided, the powers of civilians to those of police officers. It would mean, in particular, that constables who commit or are suspected of crime would not need to be arrested by other constables, as they presently are in some cases.]

Oppression[edit]

1.-(1) If a constable, with the object of coercing another person to do an act, represents that criminal proceedings lie for failure to do that act, not believing that representation to be true, he shall be guilty of an offence and shall be liable, on conviction on indictment, to imprisonment for life.
(2) If a constable, with the object of coercing another person to do an act, represents that failure to do that act is punishable, not believing that representation to be true, he shall be guilty of an offence and shall be liable, on conviction on indictment, to imprisonment for life.
(3) For the purposes of this section "act" includes omission.
(4) This section is in addition to, and not in derogation of, any offence subsisting at common law.

[Notes

Extent: United Kingdom

Subsection (1) of this draft clause is framed on section 40(1)(b) of the Administration of Justice Act 1970. Subsection (4) is framed on section 51(11) of the Criminal Justice and Public Order Act 1994. Cf. R v Llewellyn-Jones [1968] 1 QB 429, where is was said that the offence of misconduct in public office could be properly charged in respect of oppression, in the sense of using the powers of office to compel someone to act in a particular way.

The wording of subsection (2) would include a representation that an act is punishable in civil proceedings, such as a representation that it is punishable as civil contempt. It would also include a representation that does not specify the nature of the proceedings which will supposedly result in the alleged penalty, such as the words "you can be sent to prison for that".

Subsections (1) and (2) provide for a discretionary life sentence. This maximum penalty is the same as the existing maximum penalty for misconduct in public office. Cf the maximum penalty for blackmail, which is imprisonment for fourteen years.

This draft clause does not presently address the problem of police officers who threaten to procure the institution of proceedings they admit to be baseless or who give solicited or unsolicited legal advice they are simply not qualified or competent to give or who continuously fail to communicate a retraction of an unjustified threat[1] they have previously made.[2]]

Torture[edit]

1.-(1) The Criminal Justice Act 1988 is amended as follows.
(2) In section 134(1), after the word "intentionally", there is inserted the words "and without lawful authority, justification or excuse".
(3) In section 134(2), after the word "intentionally", there is inserted the words "and without lawful authority, justification or excuse".
(4) Section 134(4) and section 135 are repealed.
(5) In section 138(1), the words "and 135" are repealed.

[Notes

This clause would modify the burden of proof presently imposed by section 134(4) and allow prosecutions to be commenced without the consent of the Attorney General.]

Ostracism[edit]

1. If a person wilfully and without reasonable excuse causes harassment, alarm or distress to another person, by ostracising that other person, he shall be guilty of an offence and shall be liable, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.

[Notes

Extent: United Kingdom

This clause would criminalize ostracism in the cases described, if and so far as it is not already an offence.[3] Since this clause does not require "conduct on at least two occasions"[4] it would not be possible for the defendant to argue that he should be acquited on the (frankly preposterous) grounds that his conduct consisted of a single continuous omission (which might have continued for years).

This clause would serve as a counterweight to another provision that contains an exceptionally dangerous express reference to contacting another person. It would make it impossible for sociopaths to argue that they have an automatic right to ostracise anyone they don't like.

It is assumed that "wilfully" would be construed as extending to subjective recklessness, as it was in R v Shephard. A statutory definition could be added if necessary.]

Piracy[edit]

1.-(1) A person guilty of the crime of piracy shall be liable on conviction on indictment to imprisonment for life.
(2) The Piracy Act 1837 and section 36(5) of the Crime and Disorder Act 1998 shall cease to have effect.

[Notes

Extent: United Kingdom

This clause would abolish the offence of aggravated piracy created by the Act of 1837 and supersede the Offences at Sea Act 1799 in its apparent application to sentencing in other cases of piracy (as to which see Archbold Criminal Pleading, Evidence and Practice, 1999, para 25-46 at p 1979).]

Legislation[edit]

1. It is hereby declared that an Act of Parliament is not law so far as any provision of the Act is manifestly unreasonable.

[Notes

Extent: United Kingdom

This clause would approximately codify what was said in Dr. Bonham's Case. It is framed on s 29(1) of the Scotland Act 1998.

This clause does not make express provision for civil or criminal liability for public officials who make or enforce bad legislation. Cf. Form for a Bill of Pains and Penalties.]

Extending the Foreign Enlistments Act to terrorist groups,[edit]

Amendment of the Foreign Enlistments Act 1870[edit]

1. The Foreign Enlistments Act 1870 (herinafter the Act of 1870) is amended as follows:

2.-(1)In Sections 4,5 of the Act of 1870 after instances of British Subject insert: "(or persons to whom as determined by the relevant authority, would be subject to British Jurisdiction)"

(2). In Section 4,5,6 of the Act of 1870 after "..shall be punishable by.." delete "fine and"

(3) After Section 4 insert new section 4A

"4A. Enlistment in proscribed terrorist organisations.

If any person being a British Subject (or persons who as determined by the relevant authority, would be subject to British Jurisdiction) within or without the jurisdiction Her Majesty's dominions, shall take up service, engagement, appointment or commission, in any "proscribed terrorist organization" (as determined by the relevant authority or Secretary of State), or should any British subject(or persons to who as determined by the relevant authority would be subject to British Jurisdiction) or not within Her Majesty’s dominions, induces any other person to accept or agree to accept any commission or engagement in any such group as aforesaid,—

They shall be guilty of an Offence under Section 4 this Act (as amended) and shall be liable on conviction to the penalty therein indicated.

2. In section 30, of the Act of 1870 (Interpretation clause) add definitions:-

"proscribed terrorist organization" shall have the meaning ascribed to it by the Terrorism Act 2000,

"relevant authority" shall include any branch, authority, council or body of Her Majesty's Government appointed for the purpose noted, including any relevant Secretary of State or Minister.

[Notes:

Extent: United Kingdom

1 These clause amends the Foreign Enlistments Act 1870.

1-1. This clause amends the scope of the act, so that it includes persons that would be subject to British Jurisdiction under certain circumstances such as, being on board British Vessels at sea, or in British territorial waters for example.

1-2. This clause amends the penalties, removing the discretion to apply a fine. ( The intent here is to prevent well financed groups from effectively buying their way out of trouble.)

1-3. This clause extends the scope of the offence in section 4 to include non-state organizations involved in proscribed organisations.

2. This clauses provides additional definitions.


See also[edit]

Notes[edit]

  1. The kind of misrepresentation mentioned in the draft clause will sound like a threat coming from a police officer.
  2. Such failure may be equivalent to repeating the threat over and over.
  3. The infliction of a recognisable psychiatric disorder is capable of amounting to an offence under section 18 or section 20 of the Offences against the Person Act 1861: R v Burstow, R v Ireland.
  4. Cf. section 7(3)(a) of the Protection from Harassment Act 1997