The law is an even bigger ass than most of us suspected. Last week, the Law Reform Commission (LRC) published a disconcerting report highlighting the widespread confusion caused by inadequate legislation relating to sex crimes and road traffic offences. The statute book is frequently presented as the “code of justice” but, in some cases, it can also be a catalogue of errors.
Many of our laws are outdated. Many of the newer ones are overcomplicated. Some legislative acts have been amended and extended far too often, occasionally to the point of incoherence or self-contradiction. The commission, an independent statutory body made up of legal experts, argues that it has become extremely difficult to determine what the law actually says.
Gardai, lawyers and even prosecutors are routinely required to devote significant resources to research before they can establish up-to-date legal clarity. The financial costs, for solicitors’ clients and the taxpayer, are considerable.
Traffic law is a classic example of legislative overload. There are 16 road traffic acts and more than 900 related statutory instruments. The laws on drink-driving are notoriously complex, and have consequently become the legal statutes most subject to appeal and challenge. Ray Byrne, the LRC’s commissioner, says that the only people who truly understand traffic legislation are those who have studied it for a “long, long time”.
The laws surrounding sexual offences are almost equally byzantine. Here, the grey areas arise from social change as much as bureaucratic disarray. Many of the laws governing rape and sexual assault date from the 1880s. They were expanded in the 1930s and, again, in the 1990s. Each successive layer of legislation is suffused with the mores of the era in which it was framed. A rationalised overhaul of sex crime law is long overdue but there has been no political will to conduct such an undertaking. The forthcoming Sexual Offences Bill will simply add another tier to an unsteady framework.
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According to the commission, legislation should be comprehensive, accessible, up-to-date and freely available. The discussion paper criticised the legislature for its failure to ensure adherence to these basic requirements. All citizens should have access to the law and any reasonably intelligent person should be able to understand what the law means.
A functioning parliament would view the chronic disrepair of the legal code as a big problem. The 32nd Dail, however, is deeply dysfunctional: overpopulated with deputies whose interest in the statute book stretches no further than its effect on the court of populist opinion.
Far from addressing the muddle within existing laws, both government and opposition compound the confusion by engaging in legislative grandstanding — talking up and throwing around overzealous proposals for new laws with reckless abandon. The latest manifestation of this misuse of the Dail’s law-making function for political gain was the debacle over the introduction of rent controls.
Under the guise of establishing “rent certainty��, Fine Gael and Fianna Fail indulged in a sham fight that created enormous uncertainty. That this fevered rush to make an eye-catching intervention came during the final week of Dail sittings before Christmas is more evidence of the lack of strategic thinking .
Simon Coveney, the housing minister, proposed a cap of 4 per cent on rent increases inside the so-called rent pressure zones of Dublin and Cork city. Mr Coveney insisted that the rationale for his plan was “evidence-based”, but seemed oddly reluctant to detail the source of that evidence.
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Fianna Fail, which is providing provisional support for the minority government, spotted an opportunity to wrong-foot and outplay Fine Gael. Barry Cowen, Fianna Fail’s housing spokesman, countered Mr Coveney’s plan with the proposal of a 2 per cent cap and an extension of the districts where it would apply.
For more than 48 hours, we were subjected to a desperately unconvincing display of am-dram histrionics as both sides affected to be making a principled stand. Nobody believed either party was prepared to trigger an election on this issue at this time so the huffing, puffing and late-night meetings amounted to little more than an early panto production.
Eventually, and to nobody’s surprise, the parties cobbled together a serviceable compromise — politically serviceable, that is. The 4 per cent cap would go ahead but the government would accelerate its review of what constitutes a rent pressure zone. Mr Coveney and Mr Cowen donned their concerned faces and solemnly informed interviewers that party advantage couldn’t have been further from their minds throughout the negotiations. The only winners here, they assured us, were hard-pressed tenants.
In truth, however, rent controls are never a good idea. The overwhelming evidence, from every territory where they’ve been tried, is that they don’t work. Their introduction distorts the market and often leads to a reduction in the supply of rental stock, thereby exacerbating the very pressures they were intended to alleviate. But the most undesirable of all possible outcomes is a situation where there is uncertainty about what the government intends to do.
Threshold, the housing charity, reported that its office had received dozens of calls from tenants who had been hit with rent hikes in recent days as a direct result of the political hype about rent caps. Anecdotal evidence from all over the country suggests that some landlords used the controversy as an excuse for increases. Even landlords who had shown no previous inclination towards profiteering were spurred to raise their rents because of fears about the imposition of government restrictions.
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Lawmaking is a serious business that is not well-served by hotheads or bleeding hearts. It’s as much about grounds-keeping as it is about the planting of fresh timber. Statute books require regular pruning, the clearing away of deadwood and tangled undergrowth.
Before any new law is passed, great care should be taken to ensure that it doesn’t do something it wasn’t intended to do. The medic’s injunction to do no harm would also make a pretty good motto for our would-be political healers.
Unfortunately Irish lawmakers have an uncanny knack for making a bad situation worse. Easily spooked by cries that “something must be done”, they are forever blundering in with ill-considered plans for quick-fix solutions in the form of new laws. Too many politicians seem blissfully oblivious of the real-world consequences of their actions, and proposed acts.
Until they awake to the dangers of flawed legislation and law-based kite-flying, the most helpful intervention they can make is no intervention at all.