Spring cleaning the statute book: it's not just old laws that should go

Easter Sunday, along with Christmas and birthdays, is the only day you are allowed to eat chocolate for breakfast. It’s not a very enforceable rule and not one, as far as I know, defined by statute, but it’s a rule nonetheless. Unlike the supposed law banning eating mince pies on Christmas day, which is, as with many of the most amusing examples of stupid laws, an urban myth. 

There are, however, plenty of redundant laws curiously still floating around the statute book and which the Law Commission announced last week should get the chop.  It’s probably fair to say that none of them is as amusing as other non-laws that don’t need to be repealed, such as not being allowed to die in Parliament or stick a stamp on a letter upside down, or the law allowing people in Chester to kill Welsh visitors at night.

The oldest to go, from around 1322, regulates how many animals should be taken to pay the king’s debts, including details on how they should be fed, cared for and sold, and which livestock should be exempt.  The most recent is a tax provision from 2010, which is, apparently, ineffective and no longer has any useful purpose after a tax law rewrite.

Also destined for the scrapheap is an 1800 Act to hold a lottery to win the £30,000 Pigot Diamond after its owners failed to sell it because its value, ‘the equal of any known diamond in Europe’ was too great.  I’m intrigued as to whether it ever happened and who won it, but I’ve never had the opportunity to make use of it myself, and sadly now I never will.

The Law Commission has the responsibility of this periodic cleanup of legal dead wood, which, according to its chairman, ‘helps to help simplify and modernise our law, making it more intelligible.  It saves time and costs for lawyers and others who need to know what the law actually is, and makes it easier for citizens to access justice’.

This, of course, must be true, although real simplification through codification of the law is unlikely ever to happen.  It’s one of those things politicians like to mull over when in opposition but the fact is, once they find themselves in government the disorder and incongruity of our statute book probably serves their purpose far better.

What serves their purpose even more so, no matter what colour of government they are, is finding nifty ways to get around having parliament, and therefore the electorate, scrutinise much of what they are up to.  And so we have seen the inexorable rise of government by regulation.

I have first hand experience of how this works in practice, having had a job in the Opposition Whips’ office in the House of Commons several years ago.  Every morning I would be greeted with a pile of Statutory Instruments (the official term for this secondary legislation). I had to sort through them and input them to a database. Sometimes this pile could be huge, either because of the number of them or the length of each one.

It was not the most exciting job I’ve ever had.  But the point was to ensure Labour MPs, if they ever bothered to look at the database, could see exactly what the government was up to and, if necessary, object to it.  This is because the clever part is that most of these regulations are made by a ‘negative resolution procedure’, meaning they are approved automatically after 40 days, unless an MP actively opposes it and manages to secure a debate.

This, of course, is unlikely and the last time MPs managed to annul a statutory instrument was in 1979.  As you can see, it’s an effective way for the government to do what it wants without having to the inconvenience of having to persuade parliament to approve it.

Which may all seem rather academic and dull, but what it means is there is no effective parliamentary scrutiny of the law.  Most Acts of Parliament, the bits of legislation that get us all hot under the collar and trigger campaigns like Sound off for Justice, are just skeletons which successive ministers can clothe in pretty much whatever they choose, whenever they choose and without any of us even noticing.

If you don’t believe me, take a look at the statistics.  In 1948, there were 44 statutory instruments.  In 2011, there were 3,133 of them.  The business of government is undoubtedly more complex now than it was 65 years ago, but not THAT much more, surely?  And the consequence of all this government by dictat?  A disenfranchised legislature and, quite probably, an awful lot of bad law.

In January 2010 a group of former Whitehall chiefs warned the way we are governed has gone badly wrong, resulting in ‘ill thought-out’ legislation to satisfy media demands for policy initiatives.  Their report cited examples of bad laws resulting from the way government now operates, including the poll tax of 1990, the Dangerous Dogs Act of 1991, the failure of the Child Support Agency, the Hunting Act 2004 and the story of the Millennium Dome.

These were quite clearly spectacular failures in a class of their own, but bad laws aren’t exactly rare.  I have been enjoying watching the various legal regulators tie themselves in knots over the role of the Legal Services Board and I can’t help thinking ‘I told you so’.  I hope I am not saying the same about The Legal Aid, Sentencing and Punishment of Offenders bill in a few years time, although I fear I may be given its potential to cost the exchequer, and society, far more than it saves.

Of course, you can always label something a ‘bad law’ just because you don’t agree with it.  But argue whatever the proposal, it’s bad law when ministers ride roughshod over objections from experts of all political hues, and refuse to be open about their own impact assessments.  It’s this concentration of power in the hands of the executive that means there are far more worrying laws on the statute books than a 1696 Turnpike Act.