January 2012 articles archive:

Is there a place for 'laissez-faire'?

Is there a need for laws to be passed to stop our society falling apart due to a lack of new laws to put things right.

Some of you, who may be law students, could be excused for thinking that laws need to be passed otherwise our society will fall apart due to a lack of new laws to put things right.  Is that really the case? 

These thoughts may have originated, in part at least, from our understanding that, when it comes to law making, there are limitations to law creation by the judiciary and that law making is one of the key functions of Parliament.  We are told as law students that there are good reasons why Parliament is tasked with law making, this includes the fact that members of Parliament are elected, meaning that parliamentary law-making is a democratic procedure.  In the same vein we are told that judges may be well qualified and experienced about the law but they are not elected meaning that judicial law-making would not be seen as democratic.

An increasing amount of new law derives from the EU in the form of directives which must be implemented in member states through the introduction of laws through domestic Parliaments. This is often seen as one reason why we may be experiencing an increase in legislation.  Some would argue that the EU is responsible for numerous rules and regulations and new laws which impede upon our daily lives and weigh us down with its bureaucracy and ‘red tape’.  To be fair it is difficult to see our judiciary being able to bring such legislation into effect as they are primarily arbiters of the law and preside over disputes. 

We have become accustomed to parliamentary sessions lasting a year and this is justified on the basis that Parliamentary time is extremely limited and a reasonable period is required to allow for the progress and completion of a reasonable legislative programme of reform.  In fact the lack of parliamentary time is one of the reasons why Parliament delegates some of its powers to legislate on its behalf i.e. delegated legislation.

This is an over simplification of course, but are we simply playing into the hands of political egos by passing new laws only to find that there is a strong case for repeal and reform of some laws? Many of these laws, if examined, came about as a result of some political ‘fancy’ or ‘fashion’ which seemed to make perfect sense at the time.

Prior to the nineteenth century we are reminded that we had a ‘laissez-faire’ approach to government and to state intervention.  Laissez-faire, a French term, means 'leave to do' or 'leave alone'.  In other words there was minimum involvement from the government and markets were unregulated. As a result government policy was often based upon the principle that markets would operate and determine economic well-being and, if this meant that levels of unemployment and social inequality followed, this was to be expected  There are those that question whether this is an acceptable face of capitalism.

In modern times Margaret Thatcher, prime minister from 1979 to 1990, advocated a return to ‘Victorian values’ meaning that we turn back the tide so to speak – the tide being the powers of the state, with less state intervention and lower levels of taxation and greater independence as a result.

 We are now living in a time of austerity and are all being asked to contribute to our recovery in one way or another. Have we seen the end of legislative programmes shaped as one after another, each government department bids for a slice of the Queen’s speech, fearful that if they lose out on the bidding process they will suffer as a result? Will this have any effect upon judicial law as less legislative opportunities arise?     



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