Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information RED TAPE Red Tape tells the sometimes astonishing story of the making of laws, both good and bad, the recent explosion in rule making and the failure of repeated attempts to rationalise the statute books – even governments themselves are concerned about the increasing number and complexity of our laws. Society requires the rule of law, but the rule of too much law means that the general public faces frustrating excesses created by overzeal- ous regulators and lawmakers. Robin Ellison reveals the failure of repeated attempts to limit the number and complexity of new laws, and the expan- sion of regulators. He challenges the legislature to introduce fewer yet bet- ter laws and regulators by encouraging lawmakers to adopt practices that improve the eiciency of the law and the lives of everyone. Too much law leads to frustration for all – Red Tape is a long overdue exposé of our legal system for practitioners and consumers alike. robin ellison is a solicitor, a consultant with an international law irm, Pinsent Masons, where he specialises in the development of pensions and related inancial services products for insurers and other providers, and is the Cass Business School Professor of Pensions Law and Economics, City, University of London. He acts for a number of governments and govern- ment agencies and has been an adviser to the House of Commons Select Committee on Work and Pensions. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information RED TAPE Managing Excess in Law, Regulation and the Courts ROBIN ELLISON Cass Business School, City, University of London Pinsent Masons, London © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi - 110025, India 79 Anson Road, #06-04/06, Singapore 079906 CambridgeUniversityPressispartoftheUniversityofCambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108426954 DOI: 10.1017/9781108618748 C Robin Ellison 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library ISBN 978-1-108-42695-4 Hardback ISBN 978-1-108-44692-1 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information CONTENTS List of Figures page viii List of Tables ix Preface x Acknowledgements xiii Table of Cases xiv Table of Legislation xviii Table of Statutory Instruments xxvi List of Abbreviations xxviii 1Introduction 1 1.1 The Challenge of Balance 1 1.2 Why Is There So Much Law? 15 1.3 Is There Too Much Law? 28 1.4 The Consequences and Unintended Consequences of Hyper-Legislation and Regulation 37 1.5 Solutions 52 1.6 Conclusions 55 2 The Law Will Fix It 56 2.1 Introduction 56 2.2 Belief in Law as an Instrument of Public Policy 65 2.3 Implementing Policy through Law and Regulation 70 2.4 Negligence, the Blame Culture and Compensation 78 2.5 Legal Design: When Law Does Not Work 95 2.6 Thinking That the Law Is the Answer 113 2.7 Conclusions 115 3 Legislation and Legislators 117 3.1 Introduction 117 3.2 Why Law Is Made 122 3.3 Who Makes Law 137 v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information vi contents 3.4 How Law Is Made 141 3.5 Attempts to Improve the Process 158 3.6 Conclusions 170 4 Regulation and Regulators 172 4.1 Introduction 173 4.2 Regulatory Creep 203 4.3 The Costs of Regulation 211 4.4 Conclusions 216 5 Courts and Judges 218 5.1 Background 218 5.2 Litigation Policy Issues 225 5.3 Litigation Practice Issues 240 5.4 The Litigation Industry 256 5.5 Conclusions 273 6Unregulation 280 6.1 Introduction 281 6.2 Eforts at Unregulation (Central Government) 284 6.3 Bodies Dedicated to Unregulation 298 6.4 Unregulation Legislation 311 6.5 Eforts at Deregulation (Public Bodies) 321 6.6 Eforts at Deregulation (Private Bodies) 338 6.7 Principles of Unregulation 338 6.8 Successful Attempts at Unregulation 343 6.9 Unregulatory Outcomes 348 7WhereNext? 350 7.1 Introduction 350 7.2 Building on Unregulation 354 7.3 Attitudes and Understanding 385 7.4 Conclusion: Professionalisation and Mindsets 405 7.5 The End 433 Appendix I Diploma in Lawmaking and Regulation 434 Appendix II Executive Order 13563 (US) (2011), Improving Regulation and Regulatory Review, Executive Order 13771 (US) (2017), Reducing Regulation and Controlling Regulatory Costs, Executive Order 13777 (US) (2017) Enforcing the Regulatory Reform Agenda 448 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information contents vii Glossary 457 Bibliography 463 Index 506 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information FIGURES 2.1 Merton Council, in south-west London, said, ‘The sign was put up to remind motorists that it is illegal to park on the footway’ page 95 3.1 Legislation, 1951–2015 124 3.2 Pages of legislation between 1950 and 2015 125 viii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information TABLES 1.1 Am I a secret nanny? page 17 1.2 The Freedom Index 2016 19 1.3 Pages of UK legislation between 1965 and 2003 31 1.4 EU legislation produced annually from 1958 to 2003 32 1.5 The cabbage story 33 2.1 Risk of dying in a transportation accident on a population basis 62 2.2 Relative annual and lifetime transport risk in UK, based on relative traic and kilometres travelled 63 3.1 Complexity of legislation, 1901–1991 126 4.1 The growth of UK inancial regulators 215 6.1 How the Regulatory Policy Committee will operate 312 7.1 Overview of diferent meanings of ‘better regulation’ 364 7.2 What are the odds of dying from . ? 404 7.3 Oaths 421 ix © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information PREFACE Between 1989 and 2009, parliament approved over 100 Criminal Justice Bills and more than 4,000 criminal ofences were added to the statute book . From an historical context, the igure is more startling: Halsbury’s Statutes of England and Wales has ive volumes devoted to criminal laws that (however oldtheymaybe)arestillcurrentlyinforce. Volume One covers the law created in the 637 years between 1351 and 1988, and is 1,249 pages long. Volumes Two to Five cover the laws created in the 24 years between 1989 and 2013 and are no less than 4,921 pages long. The 2013 Supplement adds a further 200 pages. So more than four times as many pages were needed in Halsbury’s Statutes to cover laws created in the 24 years between 1989 and 2013 than were needed to cover the laws created in the 637 years prior to that.1 This book has been written because, over the years I spent in practice and in academic life as a lawyer working in the UK in the ield of company pen- sion plans, my colleagues and I watched in amazement and despair as what was once the most successful system in the world for workplace provision for retirement in sickness and old age was inexorably destroyed mostly (though not solely) through the explosion of well-meaning but counter- productive law and regulation and over-zealous regulators. When I started as a lawyer in the ield in the early 1970s, there were about(dependingonhowyoucounted)100pagesofUKpensionslegis- lation; today, there are close on 160,000 pages, many of which are virtu- ally incomprehensible.2 One of the regulators’ budgets rose eight-fold in 12 years. Legal practitioners in other areas of legal activity – health and 1 The Rt Hon Sir Brian Leveson, Review of eiciency in criminal proceedings,Judiciaryof England and Wales, January 2015, para. 13. 2 Pensions and chocolate: the state of pensions regulation 2017, Perspective, Pinsent Masons and the Pensions Institute, London, 2017. x © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-42695-4 — Red Tape Robin Ellison Frontmatter More Information preface xi safety,employment,crime,tax–andinotherjurisdictionsmakesimilar observations: all complain about the growth in legislation and the cost and diiculty of complying with it, and its unintended and frequently harmful consequences.