Earlier today the Law Commission, an independent non-partisan body that reviews our laws to look for potential reforms, published a consultation paper called Criminal Liability in Regulatory Contexts. Although this is a relatively dry title dealing principally with over-regulation of business, it is of wider public interest. It deals, in the specific context of regulation, with the problem of governments’ tendencies to over-legislate. In particular, it addresses the problem of too many criminal offences being on the statute books.
By way of an example, the commission looks at Halsbury’s Laws of England and Wales, a generally comprehensive book of all current law. It notes that in the 637-year period between 1351 and 1988, our criminal law filled a single 1382-page volume. From 1988 to 2008, however, the criminal law exploded to fill a further three volumes totalling 3,746 pages. This does not even cover the true scale of the expansion, as it deals only with England and Wales, and may not even contain all the offences currently in force. Factor in Scotland and Northern Ireland, and the extent of our legislative hyperactivity becomes even greater.
One might argue that this is nothing more than the necessary growth of government to meet the demands of a changing and more complex world. The evidence does not bear this out. People haven’t suddenly become more criminal, nor have they devised so many novel ways of being underhand that existing legislative frameworks proved insufficient. Nor is it a matter of government tending to regulation that they had previously neglected: this trend started under the Thatcher government.
The Law Commission finds the cause elsewhere, looking at the vast amount of secondary legislation passed every year. Secondary legislation is, broadly speaking, law not passed as an Act of Parliament. It is generally drafted by a Minister’s office and placed before Parliament, passing automatically if no objection is raised within a specified period. Over 3,000 pieces of secondary legislation pass annually, with over 60 national regulatory bodies, as well as local and trading standards authorities, having the power to create criminal law this way.
With the sheer volume of such legislation passed and cacophony of sources demanding and introducing it, the potential for proper Parliamentary scrutiny is limited. Parliament’s constitutional role is usurped. The laws with the ability to change lives dramatically, that should be passed with the most careful of debate and examination, are in effect being rubber-stamped. This is not an abstract concern. The “legal high” mephedrone was banned in just such a fashion, despite a lack of proper consultation with the Advisory Council on the Misuse of Drugs, and in the face of significant concern by the scientific community. The government restricted the freedom of a citizen to engage in behaviour that affected nobody but himself, without the most basic of debates in Parliament, just to feed a frenzied media.
This is of concern. Government should not be able to in effect command legislation to sate a ravenous media. Particularly problematic was Blair and Brown’s wish to pass eye-catching legislation to be seen to be doing something. These laws quickly fell by the wayside after the media lost interest and simply caused too much complexity and opportunities for abuse. It is legislating in a knee-jerk fashion in place of actually tackling the problems people want addressed. This is noticeable in the Commission’s report, which points out how many of these laws fall into rapid disuse, observing that the time and effort put into their creation could be better spent on actual governing.
The Law Commission says that this trend is undesirable in the regulatory context. Many of the actions criminalised would be better addressed as civil matters or via other regulatory mechanisms. Doing so would ease the costs and strain on our criminal justice system. The same logic ought to apply, by extension, to the criminal law in general. Let’s hope that the current government, which has made something of a promising start, will take heed.