Last week the Law Commission published new proposals for the repeal of a few hundred old laws, leading to a few hundred newspaper articles poking gentle fun at ancient road tolls and bizarre gemstone lotteries.
Some writers complained about the cull, arguing that to get rid of this legal archaeology makes life bland. Quirky old laws simply “decorate life and enliven pub quizzes”, a Times leader column said.
I have to say, I don’t agree.
The problem with old laws is that they have exactly the same force as new ones, and can end up being used in ways that their makers never imagined.
Let’s take the Public Order Act of 1936 as an example. It was an act brought in between the wars to counter the rise of the far right, and especially Oswald Moseley’s British Union of Fascists. Among other things, it criminalised
“… any person who in any public place or at any public meeting wears uniform signifying his association with any political organisation or with the promotion of any political object”.
It was an imaginative solution to the problem of how to target just one particular political group, and was only made possible by the fascists’ love of dressing up.
It was wheeled out as late as 1976, when a group of protesters decided to march from Hyde Park to Downing Street to protest against the partition of Ireland.
Some of the marchers put on black berets, and some unfurled Irish tricolour flags. The police responded by pulling out megaphones and truncheons and warned the protesters to go home. They refused, so the police waded in and arrested the hat-wearers, who were convicted of wearing political uniforms under the old law (which still remains on the statute books).
I am technically a criminal myself, because I often wear a Labour rosette, especially on polling day. Except there is no such thing as “technically” being a criminal. So I really am a criminal when I wear it, and could really be locked up.
And that is the real problem with old legislation. Most laws grant the state powers, which can be used long after the problem they were designed to solve has passed, and in ways the maker didn’t intend.
But whatever you think about old laws, keeping the statute book manageable is a task worthy of King Canute, because the rate at which old laws are being repealed is nothing compared with the rate at which new laws are being created.
When I was at law school, the staff loved to show new students around the libraries, because they had a trick up their sleeves to raise a delighted gasp from the new intake.
Much of a law library is made up of rows of identical-looking books containing cases and laws, organised year by year. The librarian would start by showing a book from a century ago. It would always be a slim volume, but still contain all the laws passed that year. Moving on down the shelves, the book got slightly thicker as the years went by..
By the mid 20th century, a statute book came in volumes, and by the end of the Blair years, it took up a whole shelf and it was the flourishing reveal of the bulk of recent laws that got the gasp.
You might think the real legal story is the astonishing rise in the volume of laws that are produced, and the wholesale shift in power from the population to the parliament that it represents.
But looking beneath the surface, the rate at which new statutes are being created is actually fairly constant. What has caused the explosion of paper is the incredible rise in the rate at which new regulations are being passed.
A modern statute often contains far less actual law than you might think. Where the law used to be, you will often now find a long list of topics about which the relevant secretary of state can make regulations.
In theory these regulations are passed by parliament, but are actually done so on the nod with no scrutiny, and no debate. They are real laws, enforced by the courts, but unlike statutes they can be changed on a whim by a minister, and usually at the suggestion of a civil servant.
The rise of the regulation has been meteoric. In 1948, the first year for which I can find statistics, parliament passed 24 statutes, while the government introduced 44 sets of regulations.
Last year, parliament passed 25 statutes, but the number of regulations had risen to 3,133, ranging from the sublime (the Wine Regulations 2011) to the ridiculous (the Health and Social Care Act 2008 (Primary Dental Services, Private Ambulance Services and Primary Medical Services) (Regulated Activities) (Transitory and Transitional Provisions) (Amendment) Order 2011.
The overwhelming majority of British law is now made by regulations, dreamed up by whoever happens to be sitting in the ministerial chair at the time, and then simply imposed on the nation with only the clump of a rubber stamp to mark the occasion.
I think that’s the really interesting legal story – a coup d’état by government, wrestling control of the country from parliament. But it’s a very British coup, and has taken centuries. In fact so slowly, you could kid yourself it hasn’t really happened at all.
Now there’s a reason for a demonstration. Just remember not to wear a hat.
This article first appeared in Comment is Free