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Thursday, 5 April 2012

Cutting out the deadwood

For Halsbury's Law Exchange

Pub quizzes often include a round or two on old laws supposedly still in force – the likes of being able to drive livestock over London Bridge, or to have cakes and ale during exams, or whether the death penalty is still in force for arson in the Royal Docks. A number of future answers are about to be altered at the behest of the Law Commission, which has compiled a long list of statutory deadwood to be felled this summer by an axe in the form of the Statute Law (Repeals) Bill.

According to the Law Commission’s press release, the Bill

“... will repeal 817 whole Acts and part repeal 50 other Acts. The Bill covers a diverse range of subjects, from poor relief and lotteries to turnpikes and Indian railways. The earliest repeal is from around 1322 (Statutes of the Exchequer) and the latest is part of the Taxation (International and Other Provisions) Act 2010.”

The press release goes on to list much interesting historical doggerel due to be culled, including:

• An Act of 1856 passed to help imprisoned debtors secure their early release from prison

• A 1710 Act to raise coal duty to pay for 50 new churches in London

• 38 obsolete Acts relating to the various railway companies operating in British India and the wider East Indies

• 40 Acts relating to the City of Dublin and passed by the UK Parliament before Ireland was partitioned in 1921

• A 1696 Act to fund the rebuilding of St Paul’s Cathedral after the Great Fire of 1666

• An 1800 Act to hold a lottery to win the £30,000 Pigot Diamond

• 57 obsolete Acts to raise money for the parish poor, including a 1697 Act to run a workhouse in Exeter

• 295 obsolete railway Acts.

• 16 Acts passed between 1798 and 1828 to impose duty on every pint of ale, beer or porter brewed or sold in parts of Scotland

• A 1696 Turnpike Act to repair the roads between Reigate (Surrey) and Crawley (West Sussex)

The dilatoriness which seems to have accompanied the funding of St Paul’s Cathedral would probably not have surprised Sir Christopher Wren, since Parliament withheld half his salary for the project for 14 years in the hope of spurring him on. Meanwhile internet researches suggest that the Pigot diamond, named after the former governor of Madras (now Chennai) Lord Pigot (1719 – 1777), was reduced to powder on the orders of its owner Ali Pasha, thus rendering the 1800 Act a legal fiction. Nowadays it is not debtors so much as undeserving creditors (in the form of disgraced former bankers) who receive public opprobrium ...

One could go on. But there are two serious points to be made about long forgotten but still surviving legislation. The first is that it cannot be assumed that an Act of Parliament or any other legal rule has disappeared just because it has not been used for many decades or longer. By the 1950s, for example, the Court of Chivalry had not sat for two centuries, and most assumed it had ceased to exist. Yet it was revived in the celebrated case of Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387: since no case or legislation could be found which had formally abolished the court, it had to be extant.

An earlier and more dramatic example might be Ashford v Thornton (1818) 106 ER 149, where the defendant in a murder case managed to escape liability by invoking the ancient right of trial by battle. As with the Manchester Palace case, the right (to the mode of trial) had not been explicitly abolished by Parliament, and the court accordingly had no option but to rule that it was still available. The plaintiff, a slight chap unwilling to try his luck, declined to join battle, and so the defendant effectively escaped a murder charge.

More recently the Guardian newspaper managed to generate a headline for itself by dredging up before the courts the Treason Felony Act 1848, a remnant from the days of European revolutions which must have alarmed those in Westminster at the time. On the literal reading of s 3 of the Act it appeared that even a publication which called for peaceful overthrow of the monarchy might constitute a criminal act. The Guardian sought, amongst other things, an assurance from the Attorney-General that no prosecution would ensue if it printed some articles advocating Britain becoming a republic. When that was not forthcoming it brought judicial review proceedings, which ultimately made it to the House of Lords (R (on the application of Rusbridger and another) v Attorney General [2003] 3 All ER 784).

The law lords made it clear that the litigation had been a waste of time since no prosecution would ever have been brought, but the Guardian was able to point to the fact that s 3 had never been repealed despite everyone agreeing that it should have been.

It is therefore worth spring cleaning the statute book lest anyone try something similar.

The second reason is that it is a step in a direction the law has always wanted to head, but rarely ever does – simplification. It is pie in the sky to assume that the law will ever be comprehensible to anyone other than experienced professionals, but even they have their work cut out with a statute book that is overlong and clogged up with ancient sections that no-one ever reads and would have no relevance even if they did.

Periodically there are calls for a particular area of law (or even all the laws) to be codified, or better consolidated. Ironically in the days of Empire this is something that Britain usually did for the colonies, who therefore ended up with a better structured statute book than Britain ever managed for itself. For many reasons it is probably unlikely we will ever end up with much codification, but that does not mean that small steps to improvement along the lines of the Statute Law (Repeals) Bill are not worthwhile.

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