Bruce Anderson

Laws, laws everywhere and not a drop of common sense

The controversy in Kent shows what’s wrong with our legal system

Laws, laws everywhere and not a drop of common sense
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It might sound like an Ealing comedy. But it is not funny. It illustrates the fact that law-making in Britain has lost all contact with common sense. The town of Deal in Kent has a heraldic crest. Some local vigilante has pointed out that since the grant of arms was made, the local government boundaries have altered, so it is no longer technically legal for the town to use its current arms. But a replacement would cost the ratepayers tens of thousands of pounds. Deal football club would also be stuck with a five-figure bill.

From the outset, this government has preached two sermons. First, that as the country is broke, it is intolerable that agencies of government should waste money. Second, that many social improvements are best achieved through the little platoons of the Big Society, rather than by the clumsy exertions of Big Government. So what is happening in Deal?

It is not the fault of the College of Heralds. Although that august body defends the integrity of heraldry, it would not dream of persecuting harmless misuse, committed in good faith. This problem arises because Deal is in England, not in the Mezzogiorno. When its councillors discovered that they had been breaking the law, they were unhappy. They do not like breaking the law.

From comedy to philosophy: what is law? Law is the intellectual framework for the maintenance of order. Any well-run society must depend on rough Hobbesian foundations, even if they are concealed beneath more elegant architecture. Men renounce freedoms and obey laws in order to protect themselves and their property. It therefore follows that if law is social cement, it can only work effectively if it rests on a broad basis of consent. Though not synonymous with morality or ethics, law must draw on both, and on the decencies of the law-abiding majority. It also follows that law-makers should exercise restraint. Those who draft the laws which affect the average citizen should strive for clarity and brevity. They should always be asking themselves whether this new law is really necessary. Over the past generation, all those restraints have been forgotten. All governments have legislated to excess; Blair/Brown was the worst, creating over 2,000 new criminal offences. Few, if any, ministers stopped to consider whether we really needed more laws (there are lots of them already) as opposed to more order.

Apropos Deal, Derry Irvine must take a small share of the blame. While Lord Chancellor, though far from an incorrigible leftie, he banished Latin from the courts. He should have considered the possibility that ancient phrases might contain ancestral wisdom. De minimis non curat lex is an obvious example. We need a statute of De Minimis to ensure that the burghers of Deal could seek a quick and cheap ruling deeming that the matter in dispute fell beneath the scope of the law.

Deal has a further relevance to our present discontents. A subordinate member of the Cinque Ports, it is one of the fortresses which used to protect the Kent coast against the French, with the vital assistance of the greatest of all moats, the English Channel. For centuries that worked: not anymore. This country can no longer control its own borders or its immigration policy. Earlier in the week, Theresa May got into a row with the judges over deportation. The Home Secretary and the judiciary ought to be twin lions guarding the throne. It is unaesthetic when they start snarling at one another. Mrs May should, perhaps, have moderated her language, but one can understand her frustration. The separation of powers is breaking down, leading inevitably to conflict between the lions. While both should be upholding the rule of law and the liberty of the subject, there used to be a clear division of roles. Judges dealt with the law; home secretaries with the mechanics of law enforcement.

Because of the European Court of Human Rights, that has all crumbled. Mrs May cannot automatically deport or incarcerate a foreigner whose presence she deems a threat to Her Majesty’s lieges. In the high middle ages, when the bastion of Deal helped to front down French malevolence, there was a useful law: the Statute of Praemunire. Buttressed by terrible penalties, it forbade any Englishmen from appealing to a foreign court. It was not repealed until the 1960s, when it was deemed no longer necessary: a misjudgment. With or without praemunire, the ECHR has got to go, in order to restore the primacy of the English Common Law while reasserting that vital Latin principle, Salus populi suprema lex.