Richard North moves on to the second part of his posts on issues of direct democracy on the EU Referendum blog and examines mechanisms for getting redundant legislation off the statute books, and the status of secondary legislation. For the first, this shouldn't be a significant issue unless the police / CPS are misusing old powers made for different times to persecute folk. Poor old Johnny Gielgud felt shamed to the end of his life for his conviction for what's known as toilet-trading.
Secondary legislation is a different matter. Statutory Instruments, SIs, enable ministers to make regulations with minimal parliamentary scrutiny; for example, the Olympics Act 2006 contained a clause permitting ministers to make regulations about advertising, branding, protests and the like and ministers subsequently issued highly detailed Olympics Regulations specifying exactly the various offences. SIs are also frequently used to implement EU directives; whenever a new Directive emerges specifying the standard sizes of detergent boxes or whatever, going through the whole process of first, second, third readings, committee stage, Lords etc as for a normal Bill would simply bring parliament to a stop. So the Directives sneak through under the wire by SI.
Even more pernicious than the over-use of SIs - to which MPs at least have the nominal chance to object, even if they are not debated - is the use of something termed Statutory Guidance. This is detailed and prescriptive instruction penned by Whitehall mandarins and issued to other public bodies; the NHS, armed forces, Councils, Police etc. Typically enabled by a clause in a main Act such as '... and ministers may issue guidance to ensure compliance with this section', SG is subject to no parliamentary scrutiny whatsoever. It has become the mechanism by which Whitehall exerts central control over every other part of 'devolved' government and specifies everything from the number of pieces of litter that may accumulate in a class B residential street to whether the costs of looking after a school's pets in the holidays can be counted in outsourcing decisions.
In addition to issues around Public Acts, Richard alludes to other legislation, namely Private Acts and Bye Laws. A Private Act for example may enable a dock or harbour board to exercise authority over a stated areas of navigable water, or permit a Railway Company to acquire land by compulsory purchase. We need to be a little wary of Private Acts as these tend to create statutory powers for bodies lacking democratic accountability - imagine the democratic disaster if banks started to sponsor their own Private Acts - but they have a place in assisting the operation of a true free market economy.
The second are Bye Laws, and I'm all in favour of these, rather than Primary parliamentary legislation, governing the implementation and enforcement of local democratic decisions. All offences against Bye Laws are non-indictable, i.e. triable only in a local magistrates's court, with a fine rather than imprisonment as the penalty. Irritated beyond measure by teen kids running un-silenced mini-motos in the street at night? Give community wardens the right to confiscate and destroy them. However, to prevent sharp-elbowed killjoys introducing Bye Laws that impinge on personal liberty the bar to new legislation must be high and safeguards built in.