Tuesday, 31 July 2012

Harrogate Conference - Legislation

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. 


Nigel Sedgwick said...

Raedwald's post was all going quite well with me until I read this: "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."

There is already a problem with this sort of thing: police and customs action in applying a penalty that is totally disproportionate with respect to the actual crime. This includes confiscation of motor vehicles, kettling, and arrest and imprisonment overnight for the police just not liking the look of you (or possibly 'lack of respect' falling well short of a breach of the peace). Even batoning a mislocated drunk into his grave.

Guilt and punishment should remain firmly in the hand of the law courts.

[Aside: Only minor punishments for minor infringements (say illegal parking and speeding) should be handled by fixed penalties; these should always be arranged as avoidable, leading to a trip to court, so just being a very convenient and efficient way (for all concerned) to have a combined guilty plea and standardised plea bargain.]

Best regards

Anonymous said...

Agreed Nigel.

Raedwald: You need to check out Sec 59 of the Police Reform Act 2002. Introduced from 1-1-2003 ostensibly to deal with the very problem you identify in your last paragraph, this has been developed and misused by the police so it applies to a whole range of motoring offences. There is no right of appeal and no option of a court appearance to argue your case.
Penalties can be quite draconian. A repeat offence within 12 months can result in the confiscation and destruction of your vehicle.
I fell foul of this by failing to see a No Entry sign, the police were waiting up the road to catch the careless and unwary. Sec 59 notice issued.
No democracy now, just a police state.

Expat said...

@Anon. Millions of folk agree with you - and that is why we have voted with our feet (and taken all our cash, goods and chattels with us, never to return; there are MUCH nicer places to live than in what has become of a once great country). Do a bit of research and come and join us. You are unlikely to much if any change for the better in your lifetime and yu only live once.

Anonymous said...

Would a good way to limit and avoid excess legislation be to have all new legislation governed by sunset clauses?

If any new law has to be debated (there could be a minimum fixed length for debate) after say 1 year, 5 years, 10 years, 20 years, 50 years and 100 years knee jerk legislation might be limted, or at least become less entrenched as bad laws would automatically be put in a position to be repealed.

If for whatever reason a law was not debated it would be automatically repealed. The other advantage is that over time so much parliamentry time would be taken up with rehashing past legislation some compromise would have to be made to letting old laws die to allow new laws to pass.