The Last Ditch by Tom Paine

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asked ourselves, if every English statute were repealed, how many (or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.