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Tuesday, 28 May 2013

Over legislating, over regulating

The Liberal Democrat Peer Lord Phillips of Sudbury (not to be confused with the recently retired head of the Supreme Court, Phillips of Worth Matravers) wrote in Saturday's Telegraph:

Over-legislation and its attendant complexity are bedevilling our whole culture.

On top of the 2,247 pages of primary legislation in 2009, there were around 14,000 additional pages of secondary legislation. This is no less the law of the land, though it receives utterly ineffectual scrutiny by Parliament, because statutory instruments, as they are called, cannot be amended!

Another indication of the self-defeating maze we have fashioned for ourselves is that last year the mere index (the Consolidated Tables) for Halsbury’s Laws of England ran to 3,554 pages.

Other democracies legislate far less. The Coalition, via its Red Tape Challenge, has indicated that it is not mindless of all this, but Parliament has fallen into self-harming ways, which are monumentally difficult to escape.

These include the mandate theory of government, which “entitles” or “requires” the government of the day to pass into law its overflowing basket of election promises. Then the whipping system produces a legislative production-line (only six defeats in more than 3,000 votes between 2001 and 2012). There is also the guillotining of debates, which leaves major parts of most Bills unscrutinised by the Commons.

This is at the root of a dangerous and growing disaffection with democracy. If ever a Royal Commission was essential, one is needed to grapple with these problems.

I have written about this in my book.  Experience suggests that red tape has at least two unwanted effects. First, it makes life impossible for small businesses unable to afford regulatory advice (just as we have seen with taxpayers faced with impossibly complex criteria and prospective political parties unable to afford the compliance costs of broadcasting regulations. Secondly, large businesses who can afford the advice will find loopholes to avoid much of the intended outcomes. Not for the first time in human history the only beneficiaries will be the lawyers who make a living selling advice and litigating any resultant disputes, as another Lib Dem peer (also a practising QC) said a few years ago.

The elephant in the room which Lord Phillips ignores is that a substantial percentage of the new statutory instruments he decries are passed each year to implement European Directives. Hence Lord Phillips’ call for a Royal Commission rather misses the point: whilst the United Kingdom remains a member of the European Union there is little it can do about it.

Irrespective of what one thinks of European union as a concept (as distinct from the European Union as an institution), or the overall benefits from Britain’s membership of the EU, it seems to me that there is something of a legal culture clash involved. The clash has been described somewhat crudely in these terms: under English law, in principle everyone is free to do anything that has not been expressly forbidden; under European law systems no-one may do anything unless expressly permitted; and under despotic systems such as the Soviet Union anything citizens were not required to do was prohibited.

Needless to say that is something of a caricature, but it is true that the model of the civil law systems found in Continental Europe is fundamentally different from the common law. Under the former codification is the goal, with much more detailed laws laid down by central government, and no precedent system applied by the courts. Under the common law, the law is supposed to develop according to general principles, with Parliament supreme but much law being made by judges on a case by case basis.

Phillips was therefore right to raise the problem, but I fear that even his suggested Royal Commission might struggle with the solution.

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