Laws are infringements of an individual’s liberty. Where they exist, they must be justified (and plenty of laws are perfectly justifiable), but those that cannot be justified should be ditched.
We have seen some of this work being done by the Coalition – through the Protection of Freedoms Bill and Vince Cable’s Red Tape Challenge (which is set to repeal the wartime Trading with the Enemy Act) – but there is a hidden layer of rules and regulations, much of it petty, obsolete or needless: council bye-laws.
Let me justify each of those criticisms with examples from the bye-laws currently in force in my home city of Plymouth.
How can they be petty? Well, take this:
No person shall in any street or public place throw or leave any orange peel, banana skin, or other dangerous substance on any footway.
How are they obsolete? Well, what about the 19-page bye-law on lodgers, written in 1906 and still in force; it specifically only applies to lodgers paying rent of less than 30p per week. Or the 1920 bye-law on “luggage porters and light porters”, whom I have literally never seen anywhere in the city? Unconvinced? Well, try this:
No person shall on any land adjoining a street play tipcat or any offensive or dangerous game in such a manner as to cause obstruction to the traffic or danger to any person in such street.
If you’ve never heard of tipcat, the Encyclopedia Britannica can tell you all about it.
How can bye-laws be needless? Well, read this, from 1925, which is still in force:
On occasions when six or more persons being intending passengers are waiting at any stopping station or terminus upon the tramways to enter a carriage, they shall form in a line or queue and enter the carriage in the order in which they stand, and no person shall take or endeavour to enter a carriage out of the order in which he stood in such line or queue or before any person who stood in front of him in such line or queue.
Do we really need this? Cannot we be trusted to just queue up on our own initiative?
As well as being petty, obsolete and needless, there are also lots of anomalies. If, for example, you contravene the bye-law that “a person shall not, after a warning by a museum officer, persist in sleeping in the museum”, you face a fine of up to £20; if you do the same thing in the next-door library, you could be fined up to £500. So, if you are ever in Plymouth city centre and fancy a kip, head to the museum, not the library.
None of this is an argument for a minimalist night watchman state, merely that laws shouldn’t linger beyond their useful life. Now, if I was the Leader of the Council I wouldn’t be wasting precious time repealing silly rules about orange peel. I’d be busying myself trying to deliver more for less, but that’s because currently tweaking bye-laws is a long, drawn-out, bureaucratic procedure. Thankfully the Coalition is going to make it easter for councils to make, amend and repeal bye-laws. Good… then the children of Plymouth can be liberated to get out onto the streets and play as much tipcat as they want.
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18 Comments
But that bylaw doesn’t prohibit the playing of tipcat – just doing so in a way which obstructs traffic or causes danger to someone in the street.
It probably is anomalous – but it is also probably covered by other legislation.
Similarly the orange peel bylaw has been replaced by numerous bits of anti-littering legislation & bylaws as many councils operate a system of fixed penalties for littering.
Thanks Hywel. You are indeed right about the restrictions on tipcat being less than total… I guess I am just trying to highlight some silly rules that are hopelessly out-of-date and should be binned.
As with orange peel – I don’t want to see orange peel all over the street. It’s just that the thing is redundant, get rid of it. Flicking through just Plymouth’s bye-laws, not scooping up dog poo must have been banned about a dozen times… and there is also an obsession with spitting. Surely these things only need to be banned once?
I agree with the article but I do not agree that you can say as a general statement that laws impinge the liberty of the individual.
Laws can protect people’s freedoms as well. Without laws you risk getting mob rule, and that can take away your freedom as well, albeit not by the state. There are plenty of examples of that; Iraq, Afghanistan, Somalia, maybe also now in Libya.
However I know that the thrust of your article is more about repealing outdated by-laws. I would like to think it is not much of a problem these days because people would apply common sense and not enforce them. On the other hand there is no harm in getting rid of them either. I am not sure there is a big issue here to be honest.
Geoffrey – Indeed, it’s not a huge issue (I have no plans to submit anything about it to the federal conference committee), but there should be space on here to debate the small as well as the large, plus I have a geeky interest that LDV kindly indulged.
Of course passing a law impinges on freedom. That’s almost a non sequitur.
We start from a primordial situation where there is no state and no law. Everything is allowed. The first law passed by the state must by definition place a new obligation or restriction of freedom that did not exist before.
The net result might well be positive – e.g. You forbid murder, which restricts the freedom of people who want to kill other people, but greatly increasing the freedom of everyone else from being killed. Nevertheless, any new law removes some freedom which must be balanced in order for that new law to be justified.
This, surely, is the founding principle of Liberalism. Without it, we’re just floating about in the ideological ether vaguely trying to be “nice.”
Two things struck me about that Encyclopedia Britannica article: first the emphasis on it being introduced to North America by English colonists, presumably therefore it is deemed not to have existed in any meaningful sense until it was introduced to North America? Secondly it sounds bloody lethal! Imagine how many windows and by-standers bones would have been broken by it – I can see why they wanted it banned.
There is a serious point too: if these supposedly redundant laws are left lying around in the gutter they are inviting someone to pick them up and make use of them to restrict freedoms in the future. As benjamin suggests, vaguely trying to be nice and hoping that everyone else is too is not a smart way to do lawmaking.
@benjamin – I assume that’s a comment directed at Geoffrey Payne, as I agree with what you say.
@Ed Maxfield – LOL… I thought it sounded rather fun. Yes, I agree with you on old laws being dusted off and used for purposes for which they were not intended, which is a more serious reason why I think we should regularly engage in a little legal spring cleaning.
There is a danger with calling for scrapping of legislation if you don’t realise what your scrapping.
I remember one election when the BNP were calling for the scrapping of the Police and Criminal Evidence Act 1984 (PACE) because it “imposed politically correct restrictions on basic policing”.
It was rather amusing (well to us at least:-) when we pointed out that the BNP were therefore planning to scrap the powers of the police to arrest people as well 🙂
@ Benjamin and @Geoffrey
Surely a law can both impinge on freedom and enhance it. Sure a law against murder restricts my right to kill you – but surely your freedom is enhanced (to a greater degree!) by being protected from my killing you?
@Hywel you are absolutely right as far as I am concerned.
Benjamin is right that scrapping the law against murder takes away freedom from those who want to murder. But it also helps give more freedom to those of us who do not want to be murdered, which for most of the time is everyone.
It really all relates to JS Mills freedom/ harm principle.
“Laws are infringements of an individual’s liberty. Where they exist, they must be justified (and plenty of laws are perfectly justifiable), but those that cannot be justified should be ditched.”
Thank you Stuart, it may as stated above be a non-sequitur, but it often doesn’t feel that way to this lib-dem watcher, so it is refreshing to see it stated in bald terms by a high-profile lib-dem.
I live in hope that this guiding principle will be enshrined as such in lib-dem policy making.
@Hywel – That’s a very amusing example. Yes, absolutely agree… I don’t call for a wholesale slaughter of legislation, merely that in addition to spending time creating new laws we occasionally look back and clear some space amongst what’s already there.
@Geoffrey Payne – I think we all agree with each other, but have just expressed it in different ways.
Thanks to you both for taking the time to engage with the issue.
@ benjamin: your post reminds me of a couple of Thomas Paine quotes and of Libya presently:
‘The instant formal government is abolished, society begins to act. A general association takes place, and common interest produces common security. ‘
‘Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.’
http://www.brainyquote.com/quotes/authors/t/thomas_paine.html
I wonder if Stuart would agree that the law which has enabled English Heritage to list the white elephant 1960s building that is home to Plymouth Civic Centre should be repealed – thereby enabling the City Council to proceed with their original plan of demolition and avoid spending shed loads of money on shoring it up.
Benjamin and Jbt
Non Sequitur means something doesn’t follow logically from something else (normally in a situation where the speaker or writer has stated it as if it does). The way the phrase seems to be being used here is as “it almost goes without saying”, ie a truism – not the same at all.
On this debate, this is indeed some of the fundamental “stuff” of Liberalism. We must believe passionately in the “rule of law”, as without it the consequences John Roffey reminds us of (from Tom Paine, but used by many other writers and thinkers) follow, ie people implement their own versions of rules and “justice”, not a commonly held societal view, with any sort of consensus to back it. The Wild West comes to mind.
I think, Stuart, your article is a set of side issues which constitute “the exception that proves the rule”. Of course, as Liberals, we believe that there should not be a proliferation of unnecessary rules and laws. But as society, technology etc becomes more complex, we have needed more complex rules and laws to regulate behaviour. And, yes, there should be a regular clearout of geriatric, idiotic, overlapping and meaningless laws. Of course, if all our law were Statute law, we could do that without let or hindrance, but our English law rests also on Common Law relying on precedent – which gives our lawyers a good income, anyway!!
Jbt – we are not libertarians, and our promotion,use and protection of good laws is a key distinction between liberals and libertarians (or anarchists, for that matter). Even now, the Lib Dems count among our leading members many prominent lawyers, and that is largely because of the importance of the rule of good law as a key Lib Dem (and previously Liberal) value.
Tim13: I’m not anti-law. I don’t want to throw the Statute Book onto a bonfire. In my opening paragraph I deliberately stated that many laws are perfectly justifiable (the law that criminalises me punching someone in the face – curtailing my freedom – also criminalises other people punching me in the face, so I am pleased it’s there), and when I welcome not only the plan to make it easier for councils to repeal bye-laws, but also the ability to make new ones. I maintain hw that laws restrict liberty, but it doesn’t follow that I therefore don’t want any.
jedibeeftrix: Thank you, sir, for the flattery.
Old Codger Chris: No, I wouldn’t call for that law to be repealed as I think it’s important that a heritage body like that can step in and stop historically interesting buildings from being destroyed. Now, should the Civic Centre have been listed as one of those buildings… that’s a different question.
Stuart, I am not sure I accused you of being “anti-law”! And, even to the extent that I know you, I don’t think there’s any evidence of that! What I was saying, and probably didn’t say clearly enough, is that there seem to be some people who fly under the party’s banner who do wish for more abolition of law than you, and by using the “law is an ass” type arguments you are, and coupling it with your repeated statement “laws restrict liberty”, you are giving comfort (and cover) to those who would remove the social protections the law confers. This is particularly relevant at present, when the Government – I hesitate to call it “our government” – is withdrawing important social protections.
We need to recognise the important part good law plays in maintaining all of our liberty, not playing to the negatives. Our Coalition partners, for example, are sometimes fanatically against the Human Rights Act. This, broadly speaking, is a liberal piece of legislation which protects weaker members of society from stronger exploitative forces.
It was alluded to earlier in the discussion, but people are not all nice, generous and cooperative all the time. A society which will run smoothly, giving everyone proper chances, must have some rules to ensure sanctions are in place for those who seriously “step out of line”.
It may be that this argument is mainly semantic, and is mainly about what exactly constitutes “liberty” or “freedom” – some talk of “positive” and “negative” freedoms, so maybe in a good code of laws we need to aim at those laws which will benefit more people more than they restrict – a latter day Benthamism (Utilitarianism) perhaps. There must be those on here who know a lot more about jurisprudence and legal philosophy than I do, but I am sure JS Mill and many others have written on this topic!
@ Tim – “It may be that this argument is mainly semantic, and is mainly about what exactly constitutes “liberty” or “freedom” – some talk of “positive” and “negative” freedoms, so maybe in a good code of laws we need to aim at those laws which will benefit more people more than they restrict”
This is very much how i frame the argument, and it is in this light that i responded to Stuart; that too often Lib-Dem’s charge off in a single-minded pursuit of positive liberty regardless of the potential impact on negative liberty.
I appreciate that liberals are not libertarians, but it sometimes seems their is an unthinking support for ‘enabling’ legislation even when the result is precisely the authoritarian and paternalistic nonsense that new labour came to be synonymous with.
it is an argument that i have (imperfectly) expanded upon here:
http://jedibeeftrix.wordpress.com/2011/04/27/compassionate-liberalism-just-deserts-%e2%80%93-escaping-the-paradox-of-the-lefts-social-authoritarianism/