22 April 2021

Endless rules are suffocating our country – and holding back our economy

By Robin Ellison

What are the Covid rules at the moment? If you are confused, it’s understandable. There have been over 600 sets of Covid rules in the last 12 months. Trying to find out what they are, especially if you are about to be fined for breaking one of them, is not easy.

And of course there are thousands of other rules we all need to comply with – and nowadays if an Englishman crosses into Northern Ireland, Scotland and Wales, or vice versa, there are additional rules.

Yet ignorance of the law is not an excuse, as we are all taught at school. The UK is cursed by a superfluity of rules in all areas, not only passed by Parliament in acts and statutory instruments, but by over 70 regulators.

The pensions regulator has just been granted the right to prosecute for breaches of its rules, with the possibility of fines up to £1 million and prison sentences of up to seven years not only on people who mismanage pension schemes, but anyone who advises on them. Similarly, HMRC publishes tens of thousands of pages of ‘guidance’, breaches of which also involve heavy penalties.

Most of us, even if through gritted teeth at times, wish to be law-abiding. This is despite hundreds of new laws, and thousands of new statutory instruments, and untold pages of quasi-laws issued by government departments every single year. The problem is that it has become near impossible to identify the rules, let alone understand all their complexities.

The lack of codification of all laws we must follow is also creating serious red tape burdens on businesses and undermining the rule of law.

Now, there have been attempts to make life easier. There is a Government website legislation.gov.uk where the parliamentary laws are published. And there are attempts by the Law Commission and others to consolidate laws and repeal out-of-date legislation. The Sentencing Act 2020, for example, consolidated about 50 pieces of legislation into a single statute, albeit with 420 sections and 29 schedules. It reduced the sentencing law from 1,300 pages to 600 pages, although the law itself still remains horribly complex, with one judge complaining it took five hours to work out the correct sentence for a particular crime.

It’s telling that not knowing the law is a problem not only for us civilians, but for judges themseves. There are often unlawful convictions and unlawful penalties imposed because of the difficulty identifying the current state of the law. Small and large businesses, and their lawyers, spend expensive hours checking not only what the law is, but whether it has been amended and when. Government agencies change their rules, and publish them only on their website, often with no indication of when they were published and how they have been amended.

There is no single solution to this expense and unfairness, but taking a salami slicer to the problem might help.

First we need fewer rules – and better enforcement of the ones we have. Changing the mindset of rule-makers, and training them in principles of rule-making, would help immeasurably. It is odd that one area of human activity which can cause such pain and expense requires no training or qualification before being allowed to practice.

Second, it would help if there were standards of legal publication so that changes to existing rules could not be made without being properly published in archival form, rather than in impermanent and unstandardised website text.

Third, there should be a central database, as in the United States and other countries, where all rules are published, together with explanatory memoranda if any, so that both citizen and practitioner could use a decent search engine to find out the law and whether there have been changes.

The costs would be modest, the savings in legal expenses across businesses would be considerable. It would also avoid the miscarriage of justice. It would calm down the orgy of law-making, improve the standards of rule-writing and make life easier for all of us.

It is a perfect post-Brexit opportunity to  use intelligent and proportional regulation, to truly ‘take back control,’ by reducing burdens on citizens and businesses. We could start by introducing one new rule, a simple one of course. It would be to enforce the current government policy of one-in, three-out, (i.e. that regulators must remove three rules for every new one that is introduced). We might still struggle to know and understand the new rules, but at least there would be fewer of them.

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Robin Ellison is a Visiting Professor in Pensions Law and Economics at The Business School, City, University of London. He is the author of the Adam Smith Instiute’s paper: ‘Ignorantia legis: How the growing red tape burden undermines the rule of law and economic prosperity’.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.