Steven Barrett: How Blair Broke Britain’s Legal System

Liz Truss (0:02)

Today, I'm delighted to be joined by Steven Barrett, who is a barrister. Steven, what is wrong with the laws of Britain?

Steven Barrett (0:10)

There are too many of them, and they're also very badly written.

So acts of Parliament are far, far larger than they've ever been historically, and they are far, far larger than they need to be in a good and functioning country.

And then once you get from acts of Parliament, you get to statutory instruments. They're often not too long, they're just too obscurely written. They are often, people have started writing law in an aspirational way.

So instead of saying, these are the rules, follow them. They say things like, we will create positive outcomes. So there's a lot of the new, you'd love this. The new data protection rules basically are insane. They say that the minister will create a statutory instrument that causes fluffiness and goodness to cross the land. The minister will create a statutory instruments that makes kittens happy.

This sort of aspirational law is just toffee. And it's written throughout all of our sets of laws. So statutes are all wrong, fat, flabby, badly written, confusing. SIs are aspirational. Judgments, of course, are now too long. And we used to have a really, really effective constitutional mechanism on stopping judges waffling, which was one, they would quite often, because they're, judges are human like everybody else, they quite often wanted their case to go in the Times because the Times used to publish case law. And so if you're going to get it in the Times, it's going to be short enough for the editor to get it passed. It's going to be at least clipable in the old sense of actually cutting and basting to get it into the edition. The other is that they were very broadly old men.

I've got no problem with them being old women either. And they had to hand write their judgments. So that is very draining. I mean, I'm not sure I could write hand write 400 pages. It's quite easy to type 400 pages. And the rise of the 400 page case has gone hand in hand with the rise of word processing. And I think getting judges who do their own typing has very largely been a mistake. The old law lords, I'm not sure if people know this, but they used the committee rooms of the House of Lords for the very grand for their hearings. But their offices were at the absolute top of the House of Lords. They didn't get the glamorous offices in the House of Lords. They got the sort of, you're up in the attic guys. And they would share one secretary, I think between three. And so they had to hand write their judgment. And then she's got to type it up in order for publication day. And so just thinking about the practicality of that, she would sit there and say, love, you can't, you can't, you've written me a book. I can't do a book. I haven't got time. And I've got to do his and I've got to do his. So can you shorten this? Now that's a sort of behind the scenes constitutional check on verbiage that we've just lost. It's like all the old fences. This is GK Chesterton's idea about, don't remove a fence if you don't know what it does. And instead, we've accidentally removed all these fences that used to keep law tight. And we've made law flabby. It's worth flagging two other things. One is the rise of regulators and the other is the role of the EU.

Both regulators and the EU have a vested interest in law being incredibly long, badly written, turgid and confusing because both of them want to wield power. Ofcom wants to be able to wield power against broadcasters who it dislikes and who it thinks are stepping out of line. It doesn't want to wield power against broadcasters it quite likes, even if they're doing the same thing. So Ofcom actually has no interest in consistency in law and the consistent application of law, which is the rule of law. And very lucky for Ofcom, the Communications Act upon which it's all based is one of the most flabby and fat statutes you've ever seen. Absolutely everything that comes out of that, all the SI's are fat and incredibly flabby and the worst you've ever seen. And then Ofcom's own rules are fat and incredibly flabby. And when I say words like fat and flabby to describe law, it's because it's inherently contradictory. It doesn't tell you what the rule is.

The easiest one, and I bang on about this one a lot, is that Ofcom doesn't have a rule requiring broadcasters to have impartiality.