‘Symbolic legislation’ should appal every solicitor worth their salt.
The diatribe – or rant – is a tricky literary form. The expression of righteous anger can all too easily be conceived as ridiculous bombast.
John Knox’s magnificently bilious The First Blast of the Trumpet against the Monstrous Regiment of Women left history to call him a bigot and, more seriously for him, Queen Elizabeth to withdraw her patronage. Yet, there is a subject that surely will garner the outrage of every solicitor worth their salt: the abomination of ‘symbolic legislation’. Alas, the recent election threw up a truly awful example.
And what is symbolic legislation? In the words of a thinktank researcher writing in Prospect magazine in 2006, ‘the primary aim of such legislation appears to be reassurance rather than redress, prevention or punishment’. As a phenomenon, it is sufficiently widespread, particularly in the US, to have attracted a small flood of academic articles from various social scientists and political analysts.
But let us be precise about legislation that truly offends. The primary aim is not the point. Many laws are intended to send messages just as much as actually to be enforced. No doubt Lord Palmerston wanted to demonstrate the Liberal Party as tough on crime and the causes of crime when he saw through the Offences against the Person Act 1861.
However, this is the paradigm of a statute: its offences so precisely worded that every duty solicitor in the land will be familiar with law that is over 150 years old. Judges have added a shimmering veneer of case law but, in essence, original provisions shine pretty much in their pristine, golden glory through the smog of more than a century.
Truly offensive symbolic legislation is legislation whose entire aim is about reassurance. As trust in politicians falls around the world, so they grow more desperate to impress their electorate with their seriousness. Ontario is contemplating laws that dock the pay of cabinet ministers if they fail to balance the province’s books. It appears that no fewer than 22 American states have laws banning the use of sharia law – though none have provisions allowing it.
In Miami, proposed legislation expresses ‘profound disagreement’ with president Obama’s foreign policy on Cuba and seeks to limit the establishment of Cuban consulates even though foreign policy is not a state responsibility. A measure before the Iowa senate would imprison any judge on a class 4 felony for employing international law.
This drift to symbolic legislation is multi-party. The Ontario government is Liberal. The Tea Party is much attracted to this sort of thing in the US. And, back home, Tony Blair was an active proponent – particularly in relation to terrorism. Remember the parliamentary months spent on the putative offence of ‘glorifying terrorism’ – which was watered down to part of section 1 of the Terrorism Act 2006 – ‘encouraging terrorism’? As predicted, it hasn’t actually proved as useful as the good old section 4 of the Offences against the Person Act 1861: solicitation to murder.
The French equivalent, apologie du terrorisme, rushed through after the Charlie Hebdo killings, has certainly had more use – but not happily. An eight-year-old boy was questioned by the police for saying he was ‘with the terrorists’; though it emerged he had no idea what he meant. Amnesty International is active on various cases involving mouthy arrested drunks.
All these difficulties pale against an announcement made in the election – though, wisely, not in the Conservative Party manifesto. In the words of the Daily Express, this pledged: ‘NO TAX RISES UNDER THE TORIES: DAVID CAMERON PROMISES NEW LAW TO PROTECT VOTERS’ INCOME’. The Express explained that the Conservatives proposed ‘radical legislation outlawing any increases in income tax, national insurance or VAT rates for the next five years’.
Let me be absolutely clear. I say nothing against a five-year freeze of these taxes. Indeed, I assume I would be a beneficiary from the fiscal constraint implied. My problem is with the nature of the promise.
Let us summon at this point the great ghost of the doctrine of parliamentary sovereignty. Professor Dicey defines what he calls ‘the dominant characteristic of our political institutions’ as ‘neither more nor less than this, namely that parliament has the right to make or unmake any law whatever’. And the practical consequence? No parliament can bind its successor.
If David Cameron can get a majority to pass legislation in this form, then nothing would stop him or anyone else using a majority to reverse it the next week. Would a judge stop parliament complying with long established constitutional rights? No. So, the value of this proposal is? Zilch. Worse than that: it is negative – it reduces legislation to unenforceable pronouncement.
Knox spent a couple of years as a galley slave: fair punishment perhaps for such a constitutional solecism. Let us hope that parliament, as an institution, stands on its dignity once the dust of the election settles.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice