Try using the law before changing it

I have a letter in the Irish Times today which is superficially about food labelling but is really about our approach to legislation in Ireland.

Before changing the law, one should check to see what the law already is. [Existing consumer law contains] wide-ranging provisions which should be more than adequate to combat improper use of food labelling terms, without having to wait for a departmental report to be commissioned, translated into a Bill, debated, passed, signed and enforced.

Professor Dermot Walsh has an article in the same newspaper about criminal investigations and Garda powers of detention. The issue has far more serious implications for society and individuals, but is connected.

IT WAS ONLY a matter of time before the inordinate delay in bringing criminal charges in respect of the financial mismanagement in this country would spawn calls for expanded Garda powers of detention.

It is a familiar refrain in which the political and law-enforcement authorities seek cover under what can appear a superficially attractive option. The reality is that it represents at best a lazy, outdated and blunt approach to criminal investigation, and at worst an oppressive device that sacrifices fundamental values of personal liberty and due process to the voracious appetite of an autocratic State.

Before the last general election there was much discussion of what was wrong with our system of politics in Ireland. The idea of a Constitutional Convention was floated as a forum in which these problems could be discussed and solutions proposed, although it is highly unlikely that the Convention being established by the current Government will have any significant effect.

I would submit that one of the problems with our system of politics is the rush to change the law whenever an issue arises. This is perpetuated through lobbying, with organisations developing policy issues into campaigns for legislative change which, if achieved, are seen as a win. Hot topics lead to calls for someone to do something and a politician steps forward with a new law: someone has done something.

Recent Ministers for Justice went through a phase in the mid to latter part of the last decade of introducing significant criminal laws on an almost annual basis. These were announced as harsh measures to tackle gangland crime and any practical or civil liberties concerns were dismissed. The latest problem in Limerick city would fall from the national media headlines once each law was passed. Someone has done something. But did these laws have a significant effect or did they just enable the political class to surmount the latest PR hurdle? The remarkable passage of the Criminal Justice (Amendment) Act 2009 is a case in point and has all the hallmarks of a pig in a poke.

Professor Walsh concludes that  something more than just amending the law is required:

Instead of proceeding blindly down the familiar road of expanding police powers of detention, the Government might be better advised to step back and consider just how effective or ineffective these measures have been over the past 40 years.

Of course, that requires more work. Work that is usually labour-intensive and expensive. Work that does not necessarily culminate in launches and press conferences. Work that involves actually using and enforcing laws before adding to them. Work that might involve lengthy study, such as that carried out by the Criminal Law Codification Advisory Committee, which is now to be abolished by Minister Shatter.

A new law is a sticking plaster, but a cheap and quick one that gets positive coverage. Someone has done something. Until we require more of our legislators, this might be the best we will get.

One thought on “Try using the law before changing it

  1. Here in the UK, we have had more new laws in the last 10 years than probably in the 30 years before that, especially in employment law and health and safety. Compliance with the law and enforcement is however probably at it’s lowest ebb for a century. Go figure.

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