Although we've written about this before ourselves, we thought this article in the Sunday Times by Kevin Dowling was worth reproducing in full ...
4,300: How Labour has created a new crime every day since 1997
The slew of new offences produced by this government has its comic touches, but also wider implications for civil liberties
Imagine arriving home after a fortnight’s holiday in the sun to find a deluge of mail and your burglar alarm going off. There is no sign of a break-in but an offence has been committed — by you. Under laws introduced by Labour, if you have failed to nominate a keyholder who can switch off your alarm you are guilty of an offence. You could be liable for a fine of £1,000 and could have to appear in front of a magistrate if you fail to pay a fixed penalty on time.
This is just one of 4,300 offences created by the Labour government since 1997 — an avalanche of legislation. It equates to an average of 28 offences every month since Labour came to power and it is getting worse. Under Gordon Brown, the Liberal Democrats say, the creation of offences has risen to 33 a month.
By contrast, the Conservative governments between 1988 and 1996 produced 494 offences in total. Since 1997 Labour has introduced more than 50 criminal justice bills to parliament — to the dismay of many lawyers, who believe much of it is more for show than real effect.
Richard Garside, director of the centre for crime and justice studies at King’s College London, said: “For the period since the war to around the 1980s you saw one major criminal justice bill each decade, but since 1997 we’ve seen more than 50. There has been an enormous cranking-up of activity in this area.”
Archbold, the barristers’ handbook, describes the government’s approach as a “disgrace”. The book has condensed its typeface to cram in the laws, which its publisher describes as an “explosion of activity”. The preface to the latest edition complains that there is “far too much criminal legislation” and attacks the government’s habit of “legislating by trial and error”.
Such is the output that the government appears unable to keep track of its own measures. In response to parliamentary questions, various Whitehall departments have said that the cost of compiling a list of all the criminal offences they have created in the past two years would be “disproportionate”.
Chris Huhne, home affairs spokesman for the Lib Dems, who has mounted a campaign against the “legislative diarrhoea”, said: “Most crimes that people care about have been illegal for years. Cutting crime should be about catching and reforming criminals, not creating law.”
As examples of unnecessary micromanaging laws, Huhne points out that Labour has made it illegal to “disturb a pack of eggs when instructed not to do so by an officer”; and under a law updated in 2007 it is now illegal to “sell or offer for sale a bird of game killed on a Sunday or Christmas Day”.
Petty though many of these offences seem, they contribute to a growing sense of government restriction creeping into private life. In some cases they also involve a serious erosion of civil liberties.
How did this happen — and what do opponents suggest?
The Nuclear Explosions (Prohibition and Inspections) Act of 1998 illustrates Labour’s approach. Even before MPs and civil servants spent hundreds of hours drafting and passing the law, common sense would have told most people that it was not a good idea to set off a nuclear bomb.
Under the Explosive Substances Act of 1883 you already faced life imprisonment for causing an explosion with intent to endanger life, attempting to cause an explosion with intent or possessing an explosive substance with intent, or conspiracy to cause an explosion with intent. Under other laws you could be prosecuted for possessing an explosive substance and face 14 years in prison. Failing that, there are laws on murder and genocide.
Yet the government decided it had to create a law that states in its first section: “Any person who knowingly causes a nuclear weapon test explosion or any other nuclear explosion is guilty of an offence and liable on conviction on indictment to imprisonment for life” (at the same time, incidentally, section two of the act decrees that it is perfectly legal to set off a nuclear bomb “in the course of an armed conflict”.) The government argues that it brought in the law to comply with an international treaty. The Lib Dems, whose justice spokesman David Howarth is an academic expert on law, says the treaty did not require the government to pass a law to meet its obligations.
More reasonably, the government argues that changes in technology, business practices and lifestyles have had to be addressed by laws. It cites offences that were introduced as a result of the outbreak of “mad cow” disease and the foot and mouth crises. Others have followed advances in computing and telecommunications.
This may be reflected in the fact that the greatest number of offences — 960 — have been created by the Department for Environment, Food and Rural Affairs, while the Department for Business, Innovation and Skills has clocked up 647. No wonder businesses complain of red tape.
The Home Office and the Ministry of Justice between them account for 583 offences. “The government is not in the business of making new laws except when it is in the public interest,” the Ministry of Justice said. “Trivialising these laws ignores their significant benefits to the public. There is a range of reasons why such new laws are made; for example, technological advancement has created the need to protect the public through data protection legislation and by giving the police new powers.”
However, it is hard to discern such imperatives in some of the laws Labour has introduced. Specific measures have, for example, been taken to outlaw swimming in the wreck of the Titanic, obstructing work on the Docklands Light Railway in London and impersonating a barrister.
And remember, if you happen to come across an automatic rail weighbridge to which there is affixed a disqualification sticker — don’t use it. That might seem obvious but, just to make sure, Labour made it an offence under the Measuring Instruments Regulations of 2006.
Many of the laws come with serious penalties, including imprisonment. You can potentially be jailed for not having a licence for a church concert, smoking in a public place, selling a grey squirrel or shipping unlicensed fish. In all, more than 1,400 offences can result in prison sentences.
Some laws can have drastic side-effects as in the recent case of Philip Bowles, a 60-year-old businessman with no previous convictions who was charged with Vat offences. Bowles protested that he was unable to mount a proper defence because his money had been seized under the Proceeds of Crime Act 2002 and his tax records had been taken by administrators. He was refused legal aid to hire a forensic accountant to examine his confiscated records. He was found guilty of switching a Vat liability between two companies and jailed for 3½ years.
Just before his sentencing a firm of accountants, acting pro bono, produced a financial report that his lawyers say proves his innocence. He is awaiting an appeal hearing at which it can be submitted.
Lawyers, burdened with keeping pace with the flood of offences, complain of failings on the government’s part. Kirsty Brimelow, a criminal law barrister, said: “Some sections are never brought in and others have been introduced at one point only to be taken out again later.”
Civil rights groups worry that many of the laws represent an unhealthy extension of the state into our private lives. “There has been too much acting in haste and repenting at leisure,” said Isabella Sankey, director of policy for Liberty. “Some of these laws are laughable, whereas others have seriously eroded our rights and freedoms. But among the many new offences that have flown onto the statute book in recent years, precious few have made us any safer.”
Section 44 of the Terrorism Act 2000 gave police powers to stop and search anyone inside designated areas without any suspicion of wrongdoing. Yet recently there have been complaints that the law has been used not to catch terrorists but to stop people who have been taking innocent pictures of tourist sites and other buildings, particularly in London.
Huhne blames much of the deluge on ministers wanting to “mark their footprint in the legislative sand” and manipulate public opinion. Paul Mendelle QC, chairman of the Criminal Bar Association, seems to agree. He has labelled superfluous laws as “glory legislation” and cites as an example the law of selfdefence. “They have simply put in statutory form what was already in the common law,” he said. “It’s purely window dressing.”
Chris Grayling, the Tory spokesman on home affairs, said: “What Labour has been doing is using legislation as a public relations exercise. As a result we have ended up with far too many laws and far too much complexity. What you’ve got to remember is that your new bobby on the beat has to know a lot of these things in order to be able to arrest people appropriately. So what we are expecting our new young police officers to do is to absorb a huge amount of extra information that has little operational merit. All it does is give the government a few good headlines.”
What can be done? Grayling says that, if elected, he and Dominic Grieve, the Tory shadow justice secretary, will look to simplify the system, where possible repealing unnecessary or duplicated laws. “I think we need to go back and look and say: what’s being used and what’s not being used? What is duplicating and what’s not duplicating? For example, there is a very strong argument for simplifying the licensing laws,” Grayling said.
The Lib Dems have a more radical idea: they want to see a “stop unit” manned by a small number of legal experts in the Cabinet Office who would have the right to veto any fresh legislation. “This legislative diarrhoea is not about making us safer; it is merely ministers posturing on penalties,” said Huhne. “Many of these offences are worthless, as they duplicate offences that could perfectly well have been used instead. Whitehall urgently needs a stop mechanism that ensures that departments must check first whether the behaviour they dislike can be prosecuted already.”
If the morass of laws is enough to make you want to escape for a long contemplative walk with the dog, just pause and check the length of your dog lead before you go. There is a law for that as well. It states: “It is an offence when in charge of a dog on land to which a dog control order applies, not to keep the dog on a lead or on a lead of a maximum length prescribed in the order.”
A selection of comical and duplicated offences created by Labour since 1997 ...
• Carrying grain on a ship without a copy of the International Grain Code on board
• Shining a light at an aircraft to dazzle or distract the pilot
• Unauthorised fishing in the Lower Esk River
• Obstructing an authorised person from inspecting apple, pear, peach or nectarine orchards for the purposes of ascertaining whether grubbing up has been carried out
• Failure to attend a hearing by a bus lane contravention adjudicator
• As a merchant shipping officer, falsely claiming a door is closed and locked
• Selling non-native species such as a grey squirrel, ruddy duck or Japanese knotweed
• Obstructing workers carrying out repairs to the Docklands light railway
• Keeping a dog on a lead longer than a maximum length in a designated area nUsing an automatic rail-weighbridge which has a disqualification sticker on it
• Not having a licence for a church concert
The GOS says: While you can see the purpose of most of these laws, the important message in this article is that they are quite unnecessary because existing laws could be used instead. For instance, the law making it an offence for a merchant seaman to falsely claim that a door is closed and locked is obviously intended to prevent any repetition of the ferry disaster caused by a bow door being left open. Fair enough. But would not existing laws of manslaughter and criminal negligence have done just as well?
The fact is that this plethora of gratuitous law-making is a symptom of deep stupidity, naïveté and inexperience in the Labour Party. They really think that for a problem or an abuse to go away, all you have to do is make a law banning it. You want people to stop dropping chewing-gum on the pavement? Simple: just pass the Chewing Gum Disposal Act 2010 and they'll all stop, just like magic.
Never a thought for the subtle realities of life: do people want to stop doing it? - apparently not. Can they easily be apprehended? - definitely not. Do we have the manpower to enforce it? - probably not, but hey, we always need more and more low-grade public servants, don't we? Will it have the desired effect? - absolutely not; one or two pensioners will be imprisoned or executed for dropping their wine-gums, but young chewing-gum criminals will simply run away giggling. And they will always be able to move quicker than the middle-aged dole-queue refugees the council will employ to catch them. Q.E.D.
By the way, there is one major error in this article, and it's repeated elsewhere in this edition (Sunday 14th March 2010) of the Sunday Times - sloppy reporting, Mr.Witherow!
Although the 2003 Licensing Act did threaten to introduce licences for performances in churches, such was the outcry against this silly and unnecessary piece of legislation that the government conceded, and there is still no need to have a licence when holding a concert in a church, whether it's religious or secular. I know this because as a grumpy musician I was part of the campaign against the new law, and instrumental in recruiting the support of at least one very influential MP.
(There CAN occasionally be a need to get a licence from the Performing Rights Society, but that is a different matter from the local authority entertainment licence. A PRS licence concerns the collection of royalties, does not apply in most cases so long as the PRS is informed about the content of the concert, does not in any case apply if the music being performed is more than 90 years old, and is a civil matter, not criminal. Trust me, I'm a musician. And a bit of a barrack-room lawyer)
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