THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain
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A clean slate

I was driving down to Cannes last Monday with a client and friend. He's a qualified lawyer but is no longer practising. En route, we played an interesting mind game. We asked ourselves, if every English statute were repealed, how many (or rather how few) Acts of Parliament we would need to make a functioning civilised society. We started by trying to limit ourselves to 10 statutes, but could not actually come up with more than 6!

England & Wales is an unusual jurisdiction. If you abolished all the statutes you would still, thanks to the English Common Law, have a functioning system. There is even an argument to say that - given time - the judges would close the gaps our statutes would fill. But the "game" required that everything worked on day 1 of the new regime. So here is our list. I am interested to know what you think about it and - in particular - how your list would differ:-

  1. The Limitation of the State Act (LSA)
  2. The Artificial Legal Personalities Act (ALP)
  3. The Representation of the People Act (RPA)
  4. The Armed Forces Act (AFA)
  5. The Taxation Act (TA)
  6. The Citizenship Act (CA)

Let me begin with the LSA. This would set the boundaries of state power and would amount to the "Constitution" of our new state.

The UK currently has a constitution, but it is neither unified nor entrenched. It is scattered across various documents, and can be changed at any time by a simple majority in Parliament. For most of our history, that didn't seem to matter. The struggle to establish Parliamentary sovereignty was the key story and much of our constitution (beginning with Magna Carta) was about limiting the power of the King. Having achieved that, we seem to have settled into a sort of smug constitutional complacency, relying on Parliament always to act as the protector of the peoples' rights. That seems to have gone awry of late, mainly (in my view) because political parties have subverted the constitution by selecting parliamentary candidates for their willingness to submit to discipline and then controlling them ruthlessly via the Whips. This means that the executive controls the legislature and can dictate its behaviour.

The LSA would mandate (for the first time in the UK) the separation of powers between the Legislature, Executive and Judiciary. Rather than drawing the executive from Parliament, any MP appointed as a Minister would have to resign and be replaced. Likewise, no judge could be a member of the Executive or the Legislature.

The LSA would also prevent the State from playing any direct role in health care or education. Neither of us favoured it being involved even in compulsory systems of health insurance, for example, but we had to accept that we are far more radical than most of our fellow citizens. Therefore we limited ourselves to prohibiting the state from employing anyone other than civil servants engaged directly in administration of the government and its agencies, plus the military and police forces. We toyed with the idea of excluding all government employees from voting (on the basis that they have a clear conflict of interest with taxpayers) but there are so many of them that the chance of ever enacting such a restriction is low.

The LSA would clearly demarcate the roles of the central and local governments. It would limit the number of layers of the state. There would be Assemblies for England, Wales, Scotland and Northern Ireland which would sit separately to legislate on devolved matters and together as the Upper House (which is a nice economy measure). The LSA would be entrenched legislation, which could only be changed by a majority in the Lower House and in each of the four National Assemblies. It would also outlaw secondary or "enabling" legislation, whereby the legislature delegates the power to make law. It would have little if anything to say about local government, because we envisage a system where local authorities would compete with each other for residents, both on local taxation and the absence of restrictive local rules.

In subsequent posts, I will describe the other five statutes in our imaginary system.