The virtues of representative democracy

I frequently get into debates about democracy with people. In essence, I don't believe in government at all, so I wouldn't believe in democracy anyway.

If you have direct democracy with minimum levels of voting mandated for everything, you still wind up with a potentially significant section of the population having to live by rules by which they don't want to. There is nothing inherently more noble in 50.1% of the population beliefs over the beliefs of the remaining 49.9%. Yet no-one who argues in favour of democracy would disagree that the 50.1% have "won".

But the truth of the matter is that direct democracy is hard work. There are so many bits of law being created, we would never do anything else.

So in order to free us up to get on with our lives, we have "representative democracy", where we appoint people for five years to vote on everything for us. The problem with this is the inevitable issue that our representatives will represent us on some issues but not represent us on others. In addition, the people who voted for other parties are not, in general, being represented at all.

But in the delightful world of modern British politics, it's not even that good. The days of MP's taking their constituency's pulse on keys issues are long gone, if they ever existed.

Nowadays, MP's are referred to as "lobby fodder". By and large, policies that are deemed important by the party leadership are "whipped" and the opinion of the constituency are roundly ignored. The party leadership has decided what will happen, which means that as far as many core, central issues are concerned, the people who live in an affluent area in Oxfordshire have the most incredible levels of influence in the country.

But even that isn't true, because the cachet of having the Prime Minister as your MP means that even if you prove to be a complete fucking mentalist, mong, loser and profligate maniac, you will never get thrown out by the "democratic" process. Look at Gordon Brown.

So the Prime Minister is largely untouchable. And he drives vast swathes of policy that everyone has to live by.

But wait! It gets even better. Because MP's are lazy cunts and because there are so many new laws and regulations being introduced, not every bit of law that we are governed by is actually even debated in Parliament. They have introduced something called Statutory Instruments that aren't even submitted to the trivial scrutiny that our laws are.

Here is an example of just how fucking stupid these can be:

Weaknesses in parliament's law-making procedures have been exposed by a curious case encompassing a Tyneside egg-collector, the hatching of a non-existent offence, and the criminalisation of Britain's museums.

Museums. Made into criminals. At the stroke of an entirely unelected and unaccountable bureaucrat's pen.

Seven years after a statutory instrument updating nature regulations glided virtually unobserved through Westminster, the Department for Environment, Food and Rural Affairs (Defra) has this week admitted it "unlawfully" put a new crime on the statute books.

The unintended outcome of the rarely deployed Wildlife & Countryside Act 1981 Amendment Regulations, Statutory Instrument (SI) 1487/2004, has been shot down by lawyers' persistent questioning.

Quincy Whitaker, a barrister at Doughty Street chambers, London, and Nigel Barnes, a solicitor at the Sunderland and Newcastle firm Ben Hoare Bell, realised that a parliamentary drafting error had accidentally removed a previous defence and laid in its place, cuckoo-like, a constitutionally impossible crime.

The regulations, meant to harmonise UK bird protection rules with EU laws, made illegal the possession of wild eggs collected from 1954-1981. Police and wildlife agencies used the new regulations to prosecute a number of people.

For seven fucking years, people have been prosecuted, fined, punished, chivvied, bothered by an unlawful law. Who has been punished for this? Who will ever be punished for this?

And the chances are that more than 50% of the people who read this blog would say "Fuck you" to EU law anyway.

The change in the law was never the subject of public consultation, neither was it debated in parliament. The retrospective criminalisation of historic collections has caused museums, scientific research organisations and private collectors to the risk of prosecution.

One of the first people to discover the law had changed was John Dodsworth, 52, who has past wildlife convictions. His home was raided by the police wearing riot gear in 2006 and about 1,000 eggs were seized from there. "Officers used a battering ram to force their way in. The children were very upset to see their parents manhandled by the police."

Riot gear? Battering ram? For EGGS?

At South Tyneside magistrates court three years later Dodsworth, an asbestos removal supervisor, pleaded guilty to one offence of possessing wild birds' eggs, but said: "I should never have been prosecuted. But when I was taken to court I was told it was a strict liability offence and I had to plead guilty. I was given a 100 hours community service order."

So not only do we have an unlawful law, but it's a law that you cannot argue with. You WILL be punished, you CANNOT be found innocent.

He later decided to appeal against both conviction and sentence. The sentence –was quashed in January 2010 and Dodsworth was granted an absolute discharge on the grounds that no one was aware such possession had been an offence at the time. "But they were still prosecuting people for this as recently as September," he said.

An overturn of the disputed section of SI 1487/2004 has proved more difficult.

Whitaker told the high court: "The retrospective criminalisation of possession of eggs that were lawfully held prior to the enactment of the regulations (those collected from 1954-1981) has widespread implications for museums and other public collections, natural history and scientific research collections and private egg collectors throughout Britain.

"[The creation of a new crime] would have been expected to have been widely announced and debated within the relevant communities if it was the intention that the regulations should have such an effect." Her judicial review case was also brought against the Crown Prosecution Service to prevent pursuit of fresh cases.

Evidence was given by Bob McGowan, senior curator of birds at the National Museum of Scotland, who said that the change in the law required him to assess 36,000 clutches of eggs in his collection. "It is difficult to imagine this particular outcome was an intention of the amendment," he said in a statement.

So, a demonstrably bad law was created, it was a strict liability offence, it was blindly and enthusiastically prosecuted right up to the last minute before being repealed. And this was all created in a democracy.

For several years after the law was changed the CPS website continued to advise that possessing historic eggs was legal, Whitaker added. The Royal Society for the Protection of Birds believes the change was a legislative error rather than intentional.

Nigel Barnes, who represented Dodsworth in his appeals against sentence and conviction, submitted a series of freedom of information requests. "I questioned whether the statutory instrument was lawful," he said. "What are the CPS going to do now about the people who have been convicted? It may be a handful, it may be more. There are many more who may have committed an offence without realising it."

Whitaker searched through the parliamentary papers and Defra files. "When I got the papers I realised it must have been a drafting error," Whitaker explained. "The department has now conceded it was wrong.

Whitaker said: "It's an example of how much modern-day legislation is passed by civil servants without anybody understanding it.

"Had anyone realised what had happened, it should have been referred to parliament because it creates a criminal offence. As it was, it was unconstitutional.

"The House of Lords had specifically rejected the creation of the offence which the amendment regulations in fact created when the original act (the Wildlife & Countryside Act 1981) was debated in parliament.

"To create an offence that was contrary to the express will of parliament by delegated legislation without informing anyone that it has that effect is highly unconstitutional to say the least."

A Defra spokesman confirmed that the department now accepted the change to the law was illegal.

A statement said: "The 2004 consultation documents on the draft statutory instrument did not outline an intention to remove the pre-1981 defence in relation to the possession of wild bird eggs. Defra has accepted that, as the consultation did not mention those particular changes, they were unlawfully made."

The Crown Prosecution Service's website said that something was legal while they were actively prosecuting people for that very act!

How many lives have been affected by this law, how many people needlessly criminalised, just because our duly elected representatives are too fucking lazy to actually debate and discuss every law that we are supposed to live by?

Still think democracy is such a good idea? Did you vote? Because if you did, this kind of shit is your fault.