When governments introduce legislation in response to change, to be seen to be solving a problem, they can unduly restrict freedom.
Legislation is a powerful way of coercively enforcing behavioural requirements (5.1.4). In one sense of the word, a law is ‘fair’ if it applies equally to everybody: everybody surrenders some individual freedom in exchange for some form of protection. Legislation can be seen as ‘unfair’, though, if it is an unnecessary restriction on people's lives.
There are several risks in an over-reliance on legislation as a political tool:
· Hastily drafted legislation can introduce errors, ambiguities and inconsistencies. Laws which have stood the test of time, and whose interpretation has evolved, are more robust.
· Additional new legislation introduces complication, which makes the law less easy to understand (and therefore harder to comply with).
The British government’s Public Order Act 2023 aptly illustrates the problem. Its purpose was described as “relating to protest-related activities ..to make provision about serious disruption prevention orders”. It was introduced as a hasty political response to public indignation about climate-change protestors blocking busy roads.
The UN High Commissioner for Human Rights raised serious concerns about this legislation, stating that it was “incompatible with the UK’s international human rights obligations regarding people’s rights to freedom of expression, peaceful assembly and association”. He also questioned the need for the new law:
“This new law imposes serious and undue restrictions on these rights that are neither necessary nor proportionate to achieve a legitimate purpose as defined under international law. This law is wholly unnecessary as UK police already have the powers to act against violent and disruptive demonstrations”.
This example illustrates that legislation in response to change might not be the best way of solving problems. This point is explored further in the following sub-sections:
· It is desirable to keep a practical balance between restriction and protection under the law (5.4.1.1). Laws are costly to enforce, and people resent curtailment of their liberty by a ‘nanny state’.
· To avoid oppression, and to retain the acceptability of the legal system, the public should have an influence on legislators (5.4.1.2). Consultation is necessary.
· It may be better to amend existing legislation (5.4.1.3), rather than introduce a new law. Gradual refinement of laws introduces fewer errors and is less likely to overcomplicate the legal framework.
Another approach, described in the next section (5.4.2), is to allow judges to interpret the law if it is not too prescriptive.
(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books. The latest versions are at book contents).