Vagueness, Overbreadth and Unbridled Discretion in Law-making

This crazy story about a university claiming that posters in a window “break the law” is a good example of how chaotic and inconsistent law-making can lead to a denial of liberty. Quick thread. #

I’ve been doing some reading on the ‘chilling effect’ recently. It’s usually used with regards to freedom of expression, but it’s a term imported from US legal thought, and can be applied to any kind of liberty or lawful activity. #

Supreme Court Justice William Brennan warned of how a ‘chill’ can be “generated by vagueness, overbreadth and unbridled discretion” of laws/state powers used to curb speech. (Dissent in Walker v City of Birmingham, 388 US 307 in 1967) #

Imprecision in the law can lead to a loss of rights in two ways. The first is that in many countries, the vagueness can be used to directly suppress freedoms. Look how the nebulous ‘insulting Turkishness’ restrictions are deployed to prosecute people in Turkey, for e.g. #

Or (same country) “propagandising for the enemy” defined so broadly as to include an oil painting critical of the army. #

The other way in which vagueness can curb freedom is that people become uncertain about what is legal. So they err on the side of caution and self-censor or otherwise self-regulate their behaviour more than they should. #

In anti-democratic regimes, those in power *deliberately* keep laws vague in order to a) reserve the possibility of trumping up prosecutions for someone who challenges them; and b) as a way of keeping the rest of the population in check. #

One hallmark of an open, democratic society where the rule of law is respected is that laws are precise. A citizen knows where the legal line is in advance and can regulate their behaviour if they need to. #

Now, despite Boris Johnson’s obvious duplicity and bullying tactics on many issues, I don’t think he’s being deliberately authoritarian with regards to coronavirus regulations… #

I’m happy for people to argue with me on that point, but I think Occam’s Razor says that the Conservative Party’s chaotic legislation is simply because Boris and his ministers are just not very good. #

Regardless, the outcomes are similar to authoritarian regimes. The U.K. government’s frantic, unscrutinised, seat-of-the-pants law-making via statutory instrument has created a patchwork of overlapping, sometimes contradictory and sometimes absurd rules. #

Top-Of-Their-Game lawyers like @AdamWagner1 and @davidallengreen are doing sterling work trying to make sense of it all. But even they admit to being baffled. #

And when the law is obscure, that’s when people who aren’t necessarily lawyers, like the Student Services Team at a Manchester university, step in to interpret the law: Badly, and illiberally. And yet, just… JUST, plausibly enough. #

So when those of a libertarian tendency moan about this slapstick lawmaking-at-pace, it’s not because they’re being contrarian or want to slow down the COVID response. It’s that these kind of laws are making things worse. #

I was glad to hear on the news that some Tory MPs are complaining about this and want to restore proper parliamentary scrutiny to law-making. The rules that are issued might not come at the same *pace* as Matt Hancock’s fag packet Statutory Instruments… #

But the laws that do come via a full debate will likely be more precise, easier to follow and easier not to break. In the long term, that’s what will make them more effective. . #

One Reply to “Vagueness, Overbreadth and Unbridled Discretion in Law-making”

  1. You are right to bring this issue to our attention Rob , its a bit frightening,but I do agree with you and favour the cock up rather than conspiracy theory regarding Boris and his motley crew!

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