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The Sins of Legislation

    In the lead up to the new year, six authors connected with the CPS will outline a policy resolution they would like to see adopted by the government in 2013. Today, Professor Jeremy Jennings proposes reducing our level of legislative activity. Yesterday, Ryan Bourne wrote about renewing calls for deregulation.

    Towards the end of the nineteenth century the great defender of limited government Herbert Spencer penned a chapter entitled “The Sins of Legislators”.  “Uninstructed legislators”, Spencer wrote, “have in times past continually increased human suffering in their endeavours to mitigate it”. Not only had this lesson not been learnt, Spencer continued, but Parliament was daily making incursions into new fields of human activity thereby “increasing the evils to be cured and producing fresh ones”. Nowadays, he concluded, anyone who challenged the utility of much of this legislation “will be reviled as a reactionary who talks laissez-faire”.

    At the risk of being so reviled, I’d like to suggest that we have too much legislation and that in 2013 we should endeavour to reduce our level of legislative activity.

    Let us first accept that over the last 20 years or more the number of Acts that have made their way through parliament has actually decreased. However, the volume of delegated legislation in the form of statutory instruments has risen sharply. In addition recent constitutional reform has produced three new devolved legislatures with differing degrees of legislative power.

    But the number of Acts appearing on the statute book does not accurately convey the reality of the situation. This only becomes evident when we consider the numbers of pages of legislation.

    In 1911, not long after Spencer made his complaint, the combined pages of Acts and Statutory Instruments approved by Parliament that year came to 760. As late as the mid-1950s it still stood at around 3000 pages. By the mid 1990s it had climbed to over 10,000 pages per annum. Today it stands at around 16,000 pages.

    As if this was not bad enough, the amount of time spent by the House of Commons in debating legislation has declined considerably. For the sessions of 1997-8 the lower Chamber devoted just over 42% of its time to legislative debate. Over the last three years it has averaged 33%.

    Of course, it is easy to understand why governments are so eager to place legislation before Parliament. For a government, a reforming legislation is a sign of action and dynamism, a way of convincing the electorate that things are being done. For Ministers, it is a demonstration of authority and competence, a means of climbing up the greasy pole. For Civil Servants, it is a route to promotion.

    For the rest of us, the benefits are less evident: we are subjected to umbrella legislation that is often poorly framed and inadequately scrutinised, and that frequently duplicates existing legislation. Worse still, and as Herbert Spencer saw all too clearly, most, if not all, legislation does not attain its purported aims and has unintended and unforeseeable consequences. Just think about the dangers inherent in today’s proposed press legislation and where a law on gay marriage might conceivably lead.

    So, let us have done with what Spencer called “the great political superstition of the present” and let us have less legislation! And if we do, we will also have less government!


    In the first of tomorrow's final two pieces, Tom Burkard talks about the Special Education Needs system. 

    Professor Jeremy Jennings is Director of the Centre for the Study of Political Thought at Queen Mary, University of London. His latest work, Revolution and the Republic: A History of Political Thought in France, was recently published by Oxford University Press.

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