Our Parliament is filled with new MPs with little or no experience of how to legislate. Or experience of the consequences of getting new laws wrong. There is, however, one law they need to understand above all….

It was LBJ who said: “You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.“

Wise advice. It should be heeded by those proposing new laws or policies and airily dismissing any concerns about the misuse of such laws, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended. 

Let’s take some recent examples and see why that might be so: 

– The Online Safety Act 2023: yet to be implemented and with much of the guidance and detail yet to be agreed.

– The Terminally Ill (End of Life) Bill – MPs wanted the Committee to take evidence but it is only now – well over a month after the First Reading – that a call for evidence has been made, barely two weeks before the Committee stage. Over a month of time for scrutiny has been lost.

Will such laws be abused or is this an unnecessary worry? What does experience teach us?

1. Extremists / activists / those with malign intent / those with the power to do so will always exploit the law, loopholes, well-meaning policies for their own ends, if given the opportunity to do so. The fact that those ends were not intended by those enacting the legislation or introducing a policy is irrelevant.

Those seeking to simplify the law on admissibility of computer evidence, for instance, never intended that this should be used to enable prosecutions on the basis of flawed computer evidence. Despite all the evidence of the harm caused, Parliament and governments have proved unwilling to address intelligently how such evidence should be used in criminal trials.

2. The worst case will happen at some point.

Any MP thinking otherwise is a naive fool.

3. The process of investigation is itself the punishment.

The process of investigation is the punishment, one that can often taken an inordinate length of time, be costly and upsetting for the person (or entity) under investigation and their family. This is so even if no prosecution or other action occurs. The “chilling” effect is real: this prevents people from exercising their lawful rights for fear of arbitrary and unknowable consequences. It allows abuses of power. No wonder those in power do not see the problem. But abuses of power can happen to any of us. Even the most superficial knowledge of recent British history shows that. Those in power now will one day be out of it. How easily they forget that.

4. Injustice takes a long time to be reversed.

Seema Misra, one of the subpostmasters prosecuted on Horizon evidence, was convicted in 2010 with her conviction only overturned in 2021. Others had to wait until 2024. It is not simply the delay which is the problem but the day-to-day consequences of an injustice for the person involved and their family. In some cases, of course, injustice cannot be reversed: you can do nothing about a person hanged for a crime they did not commit (one reason capital punishment was abolished). But what remedy will there be for someone coerced into a premature death or their family, not told about it (as there is no requirement to do so) until after it happens?

5. Even when a court rules, those disliking it will deny what it says and others will seek to ignore or misrepresent the judgment.

See, for example, the reaction by some to the Forstater judgment: it was grudgingly accepted that she could have the views she did but she – or anyone else sharing the same views – was not allowed to express them. This was contrary to what the judgment said but this misunderstanding has informed commentary about the case and actions taken by others based on that misunderstanding. This was one of the reasons social worker, Rachel Meade, suspended in 2020 by her employers, Westminster City Council and professional regulator, Social Work England, eventually won her case in 2024. Or see the Home Secretary ignoring the 2021 Court of Appeal Miller judgment on the recording of Non-Crime Hate Incidents.

6. Complex laws requiring lengthy complicated guidance and codes make compliance difficult, enforcement complicated and loopholes likely.

Creating work for lawyers is not a good thing. See the confusion between law and guidance in the Covid regulations or in the fire safety building regulations which were a factor in the Grenfell Tower fire.

Before passing new laws or introducing policies, before assuming that the worst cannot happen, legislators should ask themselves two questions above all: “What are the unintended consequences of this proposal?” “What is the worst that could happen?” 

To those who say no-one would do awful things with these laws, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

Naivety is unpardonable in legislators and policy-makers.

Cyclefree