By Foster, Charles
Contemporary Review , Vol. 289, No. 1686
MERE numbers sometimes tell a story eloquently. Most civilized nations make laws reluctantly, recognising that any law is a form of violence--a type of coercion by the state which should be avoided if at all possible. To make a lot of laws says a lot. It says that the legislature does not trust individuals or existing institutions. It says that the legislature thinks that it is the best arbiter of the public good. In a common law jurisdiction such as the UK used to be, it indicates that the legislature does not trust the judges to produce bespoke solutions to the new problems inevitably generated by society's growing complexity. All this should be profoundly worrying to anyone concerned about fundamental freedoms.
Tony Blair has been the most fecund spawner of new law ever. Over the decade of his increasingly presidential reign, an average of 2685 new laws were enacted each year. That is almost seven and a half laws each day, or one every three and a quarter hours. This represents a 22 per cent increase over the average for the preceding decade under Margaret Thatcher and John Major. These figures do not include the many thousands of new laws automatically grafted into the UK law by virtue of the UK's membership of the European Union. In 2006 alone there were over 2100 new European regulations affecting the UK. The total since 1997 is 4785--13 every day .
What are we to make of the change in the pace of legislation? The longer Blair stayed as Prime Minister, the faster new laws appeared. If what was done in the early years was any good, one would intuitively expect it to be the other way round. Surely such legislative hyper-activity denotes a Prime Minister in love with power; intoxicated with the ability to compel and control. The number of enactments alone does not tell the full story of this hysterical over-legislation. Statutes under Blair became far longer. In 2006 five Acts totalled more than 100 pages, three more than 200, one more than 300, one more than 500 and one more than 700.
As well as being an effective piece of political litmus, giving a result devastating to Blair's reputation, the volume of legislation created some massive practical problems. There are three important groups who need to know what the law says. First, there are the bureaucrats who have to generate systems for disseminating and implementing the law. They, together with the lawyers who feed parasitically on legal complexity, have been the principal beneficiaries of Blair's mania for law-making. They have become more numerous, although more confused and less effective. Second, there are the judges, who have the unenviable job of trying to make sense of the legislation. Their disgust with the trend towards more law oozes out of almost every Court of Appeal judgment dealing with the appalling Criminal Justice Act 2003. And then there is the public. It is rather important that everyone knows or can easily know the limitations placed by the State on his behaviour. When the judges say that the law is dangerously incoherent, there are constitutional worries going far beyond mere inconvenience.
The Significance of Method
It is tragically necessary to assert some trite things that appear in Chapter One of any school book on politics. They have been forgotten in the Blair years. Here is one. A decent, confident government, properly recognising its relationship (servant) to the legislature (master), legislates in major matters primarily through Acts of Parliament. Over many hundreds of years a simple and effective system for parliamentary scrutiny of legislation has evolved. The mechanics do not matter here. The point of this system is the point of Parliament itself: no legislation without representation. And one can't be properly represented unless the representative knows what legislation is being proposed.
Parliamentary time is tremendously valuable, and of course in most democracies it is recognised that for formal or minor legislation there needs to be an alternative system. …