Seven years after a statutory instrument updating nature regulations glided virtually unobserved through Westminster, the Department for Environment, Food and Rural Affairs (Defra) has this week admitted it \”unlawfully\” put a new crime on the statute books.
The unintended outcome of the rarely deployed Wildlife & Countryside Act 1981 Amendment Regulations, Statutory Instrument (SI) 1487/2004, has been shot down by lawyers\’ persistent questioning.
Quincy Whitaker, a barrister at Doughty Street chambers, London, and Nigel Barnes, a solicitor at the Sunderland and Newcastle firm Ben Hoare Bell, realised that a parliamentary drafting error had accidentally removed a previous defence and laid in its place, cuckoo-like, a constitutionally impossible crime.
The regulations, meant to harmonise UK bird protection rules with EU laws, made illegal the possession of wild eggs collected from 1954-1981. Police and wildlife agencies used the new regulations to prosecute a number of people.
The change in the law was never the subject of public consultation, neither was it debated in parliament. The retrospective criminalisation of historic collections has caused museums, scientific research organisations and private collectors to the risk of prosecution.
Yup, through a statutory instrument they introduced a retrospective crime.
\”The House of Lords had specifically rejected the creation of the offence which the amendment regulations in fact created when the original act (the Wildlife & Countryside Act 1981) was debated in parliament.
\”To create an offence that was contrary to the express will of parliament by delegated legislation without informing anyone that it has that effect is highly unconstitutional to say the least.\”
One that had previously been considered by Parliament and rejected.
And yes, this is how we are ruled now. By ignorant, vile, stupid and just plain incompetent clipboard wielders.
Hang them all I say, hang them all.
It’s wrong to say that an action is “unconstitutional”. Contrary to what some may think, we *do* actually have a written constitution – it consists of all laws and statutes currently in effect – but unlike the US constitution, it doesn’t specify what Government may do, only what the rest of us may do; consequently, Government can do pretty much anything.
Nope – what it tells us is that setting laws in a mature democracy is fiddly and complicated. So fiddly and complicated in fact that it can even be difficult to be clear about what was written down, and the interaction between the things written down.
And if is is difficult to devine the meaning of what was written down, only a moron could believe it is possible & realistic to divine with certainty what was *not* written down, but was part of ‘the spirits’.
edit – not a moron, but rather someone of unending hubris.
It suggests that all laws should actually be debated, which would mean less laws. In turn this would make passing EU legislation next to impossible, there is just too much.
So once again we see that the EU is designed to make democratic accountability impossible in ever way.
These things happen from time to time to everyone, no fuckwits required (unless we’re all fuckwits, a hypothesis that has some plausibility). Consider the Mars mission that went astray because of different units.
I don’t think this happened by dint of fuckwittery at all. I think there is the whiff of Common Purpose at work here, and all other SIs should be investigated, because this one is probably the tip of an iceberg.
I would suggest that all legislation should have an expiry date, unless Parliament votes to extend the legislation by another fixed period. And since Brussels does all the grown up governing these days, the MPs can occupy themselves with renewing or rejecting such legislation. Then perhaps they’ll have less time to fiddle their expenses.
consideringm the way that legislation grows incrementally – via SIs and other measures – it is really difficult to keep track of what the law is. Either abolish SIs and other administrative fudges or have a termination date on ALL legislation. The yellow tax handbooks consolidate all sorts of stuff that was never debated in Parliament, for example. And they set out a law thaqt does not exist unless it is meta-constructed. Our legal system is a shambles, not a glory.
Point of order: this isn’t a retrospective crime, any more than the bans today on the possession of opium grown before 1982 or of child pornography photographed before 1982 are a retrospective crime.
(still bloody stupid though. The worrying bit isn’t so much the failed draughting, as the fact that the CPS prosecuted people on the basis of laws that everyone – including the CPS itself – accepted were never meant to create the offence…)