Sunday, 6 April 2008

Blunt Instruments

The investigation I undertook on Wednesday to find out the truth behind tabloid articles shouting about an EU conspiracy to ban flirtatious banter in our pubs and bars found that the reality isn't quite like that...but is actually just as worrying if not more so.

The reality centred on a 'Statutory Instrument', number 656 in 2008, that was laid before Parliament by the Government Equalities Office on March 14th. Statutory Instruments allow legislation to be amended (as long as it is "within the scope" of the Act being amended) without division of Parliament or even Parliamentary debate.

Perhaps this doesn't seem that unreasonable at first glance - Minor adjustments need to be made to some Acts all the time just to keep them compatible with current practice. However, the 'case of the banned pub banter' has raised real objections about the possibility for abuse that is inherent within the 'statutory instruments' system.

By the Government's own figures, contained within an 'impact assessment' of the amended legislation (SI-2008/656 Explanatory Memorandum, PDF), the costs of the new legislation in increased sex discrimination tribunals are estimated at £156.81 million (pg14)! Yet, despite this - despite the fact that it actually introduces a whole new law, that of employer responsibility for third party harassment, this amendment was evidently not seen to be sufficiently outside the scope of the Law laid down following Parliamentary debate in the original Act to justify Parliamentary debate. Wrong. Wrong. Wrong.

The tabloids who covered this move on March 31st and April 1st were more than justified in pointing out what has happened. Unfortunately they distorted the truth in two critical ways. First, as I discussed in Wednesday's post, by taking an extreme and unlikely interpretation of the new legislation (the only way what is described by those articles is would plausibly happen is if a clued-up member of staff deliberately uses it against her managers). Second, by painting it as being the fault of the EU.

The Government's own documentation (PDF, as previous) confirms my findings of Wednesday that the new amendment goes beyond minimum EU requirements (pg13). There's nothing wrong with this in principle. What is surely wrong is the use of a Statutory Instrument to institute such legislation. It cannot be justified on grounds of being trivial (£156.81 million a year, remember), and it cannot be justified on the grounds of being required by an EU directive, because it bloody well isn't required by said directive (the Equal Treatment Directive 2006/54/EC).

The numbering isn't entirely helpful (for some reason there are big gaps), but it is clear that hundreds of Statutory Instruments have been 'laid before parliament' since January 1 2008. In 2007 the numbering reached 3662.

It is time the spotlight was shone on this law-making by decree. They're hardly perfect, but in this case I am grateful that the Mail, the Sun, and in their unique way the Daily Sport have, in this unusual case, done so.

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