Repealing “daft” laws won’t be so easy

Labour created thousands of new criminal offences in its time in office.  The new laws added to the statute books in each of the parliaments since 1997 dwarf anything from any previous parliament.

Did those laws transform our country into a utopian land?  No.  But it would be foolish to think that repealing some of that weight of law will be a simple task.

We might disagree with many of the laws.  We might think they do more harm than good, or that they’re ineffective, or address a problem that doesn’t really exist, or are being applied in a way never envisaged.  Not everyone feels that way.

The laws didn’t come in for no reason.  They were introduced, in nearly every case, on a back of  interest groups lobbying for them and in many cases after significant campaigns in the media.

The idea that there’s a bunch of new laws lying on the statute books that no-one wants is false.  Someone wants every one.  Someone will campaign hard to keep them.  They may well be right.

Should we scrap Labour’s law that makes it illegal for two fifteen year olds to kiss? Perhaps – it’s a bit daft and Jack Straw’s insistence that it would never be enforced in that way only goes so far.  But that was a side-effect of efforts to protect young people from older sexual predators and people will rightly ask about the implications of losing that protection.

Should we scrap the laws banning “extreme” pornography and some cartoon pornography?  The case for introducing both was always weak, and the way they’ve been used in practice differs markedly from the intentions of the House in passing the legislation.  Surely the folks over at Backlash will be pressing for those laws to be repealed.

And yet it doesn’t take a genius to work out the reaction in some parts of the media, and some campaign groups, to such a move.  They would see it as giving a helping hand paedophiles and sex offenders, putting vulnerable people at even greater danger.

Then there are those laws which millions of people probably feel are not needed, but many Lib Dems will think should stay.  The ban on hunting with hounds.  Driving whilst using a mobile phone being illegal. A pile of legislation aimed at increasing consumer protection – and so red tape.

How about the smoking ban? That should be a fun one, not least because there are very strong views on both sides of the debate within the Lib Dems.

This sort of mass repeal will be hugely challenging and is likely to invoke vigorous debate and disagreement within and between all parties, the media and the public.  If it’s to be a worthwhile exercise, it’s going to be a very tough one and we underestimate that at our peril.

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23 Comments

  • David Allen 20th May '10 - 3:41pm

    Good article. If we get carried away with overblown rhetoric and play at slash-and-burn reform, we will come unstuck somewhere. Then we’ll get hit by the backlash, and we could end up losing credibility and impact.

  • I agree that there will inevitably be internal conflict on issues like the smoking ban and the hunting ban. But I disagree with the broader point that repealing a law is difficult if there is a media campaign and niche lobbying effort. The whole reason we are in this mess is because of Labour’s obsession with responding to such campaigns. As (dare I say it) David Cameron said, we need to get away from the 24hr media government.
    The key is that although these types of campaigns may seem big and may make ministers uncomfortable, seldom have broad public backing and they have even less impact on people’s voting intentions.

  • James Bartlett 20th May '10 - 4:18pm

    This is the problem with “repeal”. Those laws were all brought in for mostly valid reasons, they were just badly drafted and voted through by the Labour Sheep…sorry MPs. I suspect repealing is still easier than going through each and every one and amending them to work as they should have done in the first place. But it’s going to be tricky to do. I agree with millennium, all laws should have a sunset clause so that they are always re-examined after a length of time to ensure they’re still fit for purpose.

  • I was watching ‘The Scheme’ the other day and the thought occured; what about the racially aggravated offenses. A lot of people would presumably feel this to be something which acted as an injustice on occasion (the son of the folks featured in the show had a year added to his sentence for assault because of it, which they were unaware could happen so evidently they weren’t being deterred by it (that’s not to say others aren’t)) but presumably we wouldn’t want to be repealing laws designed to combat racism.

    What about hate speech? The liberal in me thinks there’s a free speech case against them. The anti-rascist would want them to stay.

  • What do we do about people sentenced under these laws when they are repealed? Presumably you could appeal such a sentence? Does anyone know what the legal status quo is?

  • Andrew Suffield 20th May '10 - 4:46pm

    Driving whilst using a mobile phone being illegal.

    Actually I don’t think we need that one. “Driving without due care and attention” is already a crime; surely that is sufficient. The problem with all these microlaws is that they attack “things similar to bad things” rather than actual bad things, and this is a good example: cellphones are not the real issue, it’s just about “not paying attention while driving”, which applies equally to using PDAs or laptops while driving.

    And it turns out that most of them are just things which were already illegal, and the extra legislation was just posturing. That’s why we can scrap them.

    Should we scrap Labour’s law that makes it illegal for two fifteen year olds to kiss? Perhaps – it’s a bit daft and Jack Straw’s insistence that it would never be enforced in that way only goes so far.

    This one is the other kind of problem: poorly drafted, overly broad laws that were whipped through in a hurry. Those need to be thrown out and, where appropriate, replaced with something more carefully thought out.

    They would see it as giving a helping hand paedophiles and sex offenders, putting vulnerable people at even greater danger.

    This kind of scaremongering is precisely the cause of the problem. No evidence that it would help them, no evidence that it would increase the danger, just pure speculation – and then legislation based on that speculation.

    I think we need a more substantial defence against this kind of law making. Perhaps this: a new fundamental principle that every newly created offence must specify what things it is trying to prevent, and that any court considering whether the offence has been committed must consider it in this context, and may also consider the question of evidence for the relevance of the offence to its claimed objectives. For example, a court considering whether a person has broken the law by using their phone would also consider whether that person’s actions led to driving without due attention, and could examine evidence on whether the use of cellphones increases the risk of accidents.

    Under this principle, irrational laws or laws not supported by evidence could never result in convictions. While it would to some extent permit Parliament to pass laws without properly considering evidence, it would also embarrass them if a court found that a law they passed was without basis, so there is still some motivation for them to examine these matters carefully.

    It also fixes the “we must pass this law quickly because people are getting away with it, so there is no time to examine the evidence” problem.

  • The conviction would stand. They still broke the law.

    In the same vein, people still have convictions on their records for Homosexual sex. Legal now, illegal when they did it. (thankfully to be rectified by this government)

  • David Laws isnt daft!

  • While I agree that once a law is passed it is generally more difficult to repeal, there are a great many laws that are not only unfair, but also useless.

    There are a number of laws which effectively ride on top of existing offences (mainly stemming from forms of assault) and do absolutely nothing but to make the case-based common law impossible to apply, slowing down the legal system. The majority of these laws can be vanished without any political fallout I would hope.

  • While cleaning up the legislation, why not consider also these strange laws for repealing:

    http://news.bbc.co.uk/2/hi/uk_news/7081038.stm

  • The laws that most call for repeal are those that infringe fundamental human rights and are part of the US-led control agenda. Obvious examples are the laws that give the Police the power to declare martial law for under-16s, stop people taking photographs, break up peaceful assemblies, etc, etc. Not only do ID cards need to be stopped in their tracks (as they have been, at least for now), but also plans to introduce satellite surveillance of motor vehicles under the guise of road-pricing, routine surveillance of emails, unjustified interference with elective home education, etc, etc.

  • Well if there are issues coming up over which Lib Dems do not agree, such as fox hunting, and the smoking ban, and assuming that it remains acceptable for Lib Dems to disagree about those issues, isn’t that a good opportunity to explain the democratic nature of the Lib Dem Party, and how it values tolerance and allows for freedom of conscience?

  • ‘Every newly created offence must specify what things it is trying to prevent’

    Surely it is impossible to pre-specify all the harmful consequences of an action, i.e. using a mobile phone while driving. That’s why specific actions (such as using a mobile phone while driving) have to be identified as criminal, because of their potential for causing both foreseen and unforseen harm. That’s why it is necessary to create overarching offences. I think that the principle suggested would create even more loopholes for the villains to drive a coach and horses through.

  • Peter Chegwyn 20th May '10 - 10:22pm

    Perhaps we should also be asked to comment on which laws need tightening-up and strengthening?

    For example, I suspect most Lib. Dems. would oppose the repeal of the hunting ban and would much prefer a weak law to be toughened-up to make it more easily enforceable.

  • Peter Chegwyn 20th May '10 - 10:24pm

    P.S. I’m delighted to see the Local Government Standards Board regime is set to be scrapped!

  • Andrew Suffield 21st May '10 - 12:16am

    Surely it is impossible to pre-specify all the harmful consequences of an action, i.e. using a mobile phone while driving

    It’s to prevent “driving without due care and attention”, what’s hard about that?

  • Driving without due care and attention is an overarching offence but it’s hard to prove unless it’s tied to a specific action. That’s why driving without due care and attention prosecutions have failed. Driving whilst using a mobile phone is easier to prove: ergo, driving without due care and attention.

  • Sal cinnamon 21st May '10 - 7:23pm

    It is no more difficult to repeal a law than it is to pass one. A key concept ensuring the supremacy of parliament is that no parliament may bind it’s successor – parliament may pass and repeal laws as it sees fit. This basic democratic concept seems to have been lost on Nick Clegg. I refer to his plans to introduce a law preventing the future proliferation of ‘unnecessary’ criminal offences. Perhaps, before tearing through the statute book, Clegg should better aquaint himself with the constitution.

  • I agree that repealing laws isn’t always easy, though:

    And yet it doesn’t take a genius to work out the reaction in some parts of the media, and some campaign groups, to such a move.

    I’m not convinced there would be much media outrage on these laws, based on there being little in the way of media support for either of these laws when they were proposed and passed (indeed there was plenty of criticism from columnists – including one from the Daily Mail of all places).

    The usual lobby groups will be annoyed, but it’s not clear to me that’s much of a problem. Ultimately these laws were passed because the Government wanted them passed, not because they had to cave in under media or lobby pressure – the Government announced plans to do something about “violent” porn in 2004, days after the Coutts trial, and before the “Jane Longhurst” campaign ( http://news.bbc.co.uk/1/hi/uk/3460855.stm , http://news.bbc.co.uk/1/hi/england/berkshire/3471441.stm , http://news.bbc.co.uk/1/hi/england/3515797.stm ). Even in cases where there is media outrage or lobby pressure, it’s not uncommon for the Government to ignore it (as indeed, they should be able to).

    There’s also the point that it’s a lot easy to repeal laws when it’s part of a bigger bill – the worry of media response would be more a problem if a Government was trying to repeal Section 63 or the cartoons law on its own. (Indeed, this was how the laws passed in the first place, as part of a much bigger bill.)

    The bigger issue is:

    Then there are those laws which millions of people probably feel are not needed, but many Lib Dems will think should stay.

    Indeed, it’s going to be difficult for some laws. But then it’s good that there should be debate – I would hate to see laws like the hunting ban being repealed in a mass repeal, without any thought as to what’s being repealed. (As an aside, this is why I preferred the Lib Dem’s notion of a “freedom” bill, rather than the Tory “repeal” bill – the latter could include good laws, but the former implies cases restricted to the notion of freedom.) The reason why many bad laws got passed in the first place was because there was little debate.

  • James: “Those laws were all brought in for mostly valid reasons”

    All of them? What were these mostly valid reasons, for either the laws listed in the Freedom bill, or those mentioned in this post?

    (Not that I disagree with the point of your comment; I just think we need not be so generous to Labour here;)

  • Surely we should be asking whether the laws achieve their objective and do we already have other legislation that does the job more effectively? Take the Housing Act 2004 which required some ordinary shared houses to register as Houses in Multiple Occupation. Most landlords just stopped letting to sharers- others converted houses to flats with the result that the price of room renting has soared in many parts of the couuntry. Moreover, there is a proliferation of bad – often overseas based landlords – which local authorities do not have the resources to prosecute. Resources would have been better spent enforcing existing environmental health legislation so that the BAD not the good landlords were hit.
    Another example was the Secretary of States requirement to require a certification scheme and massive paper chase for minor electrical work. An extra socket could result in a requirement to upgrade the whole electrical system at the costs of thousands. The result? People cannot afford the work and are massively overload sockets creating a HUGE fire risk – the exact opposite of the original intention.
    Less legislation – better thought through and better enforced is what is needed.

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