Clean up your Acts
Obsolete laws often seem quaint and redundant but, if left untouched in the statute book, can still prove dangerous
Running the statute law repeals team at the Law Commission doesn’t sound like a lot of fun. All your colleagues spend their time thinking up new laws. Your job is to get rid of the old ones.
Every four years, you produce a list of the laws that you want Parliament to abolish. The latest of these, published last week, includes legislation that supported parish workhouses, including the one at Wapping mentioned by Charles Dickens in The Uncommercial Traveller.
The list also takes in around 50 obsolete laws relating to 18th-century turnpikes —toll-gates, we would call them now — as well as public-order legislation passed after the Peterloo Massacre of 1819, when 11 people were killed in Manchester in an incident that bears comparison with the events of Bloody Sunday in 1972.
This is the 18th such list published since the commission was set up some 40 years ago. Each of them has resulted in an Act of Parliament, passed under a unique streamlined procedure: lawyers from the Law Commission must attend a joint committee of both Houses of Parliament to be grilled on their proposed repeals.
Looking further back, the Statute Law (Repeals) Act 2004 contains several examples of legislation that had been overtaken by social and economic changes. A scheme to provide farming work for ex-servicemen after the First World War had long fallen into disuse. Victorian powers for the Metropolitan Police to license shoeblacks and commissionaires had become as irrelevant as the offence of fraudulently impersonating a shoeblack or commissionaire. And an Act allowing struggling artists in the 1840s to sell their work through lotteries had become overtaken by the modern lottery law.
Some 2,000 unwanted Acts have been abolished since the commission started work — which sounds pretty good until you realise there are still 8,000 public general Acts left as well as 11,000 personal Acts and 25,000 local Acts of Parliament.
But why bother? What harm are these old laws doing? One answer comes from Sir Terence Etherton, the High Court judge who currently chairs the Law Commission. ‘Dead law can lead to false expectations and consequent costs,’ he says. ‘People need to be clear about what is in force and what is not. An oversized statute book filled with out-of-date information wastes everybody’s time.’
That is certainly true, although we are still a long way from having an online statute book that will tell us not only which statutes are in force today but also which ones have been amended by subsequent legislation or given effect by statutory instruments.
More to the point, though, obsolete laws are positively dangerous. Take the Forcible Entry Acts of 1381 to 1623. ‘They were designed to protect tenants from forcible entry by powerful landowners,’ says John Saunders, head of the Law Commission’s statute law repeals team. ‘But they were not repealed and were used in the 1970s by squatters to keep out the rightful owners of their homes.’ As he explains, ‘the squatters would unlawfully occupy premises that were temporarily unoccupied and use the Acts as a weapon to prevent the rightful owners from using even the smallest amount of force to get back into the property.’ It was not until 1977 that these laws were repealed.
The squatters were, of course, acting within the law. ‘But it is possible to abuse the legal process,’ Mr Saunders says. He comes up with another example, even more obscure.
The Town Police Clauses Act 1889 was passed to allow towns to regulate horse-drawn omnibuses. But councils are now using these powers to license the pedal-rickshaws that take tourists for a ride. Mr Saunders admits he would have recommended the repeal of the 1889 Act if he had looked at it a few years ago.
Good job he didn’t, I suggest, given how useful it has been in controlling the modern menace of flimsy three-wheelers.
‘But then councils would have had to have thought about what they were doing,’ he says — instead of using powers that were designed to cater for horse-troughs. Councils could, for example, have ensured that the rickshaws had proper safety features to protect passengers.
Mr Saunders stresses that he consults widely before recommending the removal of any law. ‘One cannot simply repeal half the London, Chatham and Dover Railway legislation on the basis that it was drafted in 1830 and must be obsolete by now,’ Mrs Saunders says. ‘There are probably easements and rights concerning level crossings and fields and fencing which are absolutely essential. You do have to read each clause and learn when to walk away from a project when it gets just too difficult.’
So does the commission ever mistakenly abort viable laws? Mr Saunders admits there was one such error about 15 years ago, before he joined the team. ‘We over-repealed a provision enabling a local authority to charge a fee for the use of common land in North London,’ he admits. ‘The matter was rectified in our next Bill.’
And sure enough, if you look at the Statute Law (Repeals) Act 1993 you will find a section saying ‘The Act of the 17th year of King George the third entitled ‘An Act for dividing the Chase of Enfield in the County of Middlesex; and for other Purposes therein mentioned’ shall be deemed not to have been repealed by Part XIV of Schedule 1 to the Statute Law (Repeals) Act 1978.’
That’s the wonderful thing about Parliament: it really can do anything.