Over-Regulation and Suing the State for Negligent Legislation

Abstract

It is becoming a common concern amongst the judiciary, practising lawyers, academics, and those who draft legislation, that an acceptable standard of drafting is not always being achieved in primary legislation and, still less so, in secondary legislation. This paper discusses whether legislative bodies are, or should become, legally responsible for substandard legislation, especially where this negligence affects individuals disproportionately. It also considers some of the legal and practical problems that may arise in the case of negligently-drafted primary legislation and contrasts this with the less defensible position of subordinate legislation. The problem of immunity from legal action in respect of negligent legislative acts is discussed and it is postulated that European Community law may provide a model for developing a new tort of legislative negligence. 1 This paper is based on an earlier version presented to the Commonwealth Legal Education Association conference, held in Greenwich, London, in September 2005. Thanks to participants at the conference and to colleagues in the Department of Law, University of Surrey, and especially to Amanda Cleary, for their helpful comments, criticisms and suggestions. Thanks also to the University of Surrey for funding Tim Sinnamon to enable him to participate in the research for and writing of this paper. All omissions, errors of fact and emphasis remain the responsibility of the authors of this paper. 2 Leslie Blake, Lecturer in Law, Department of Law, University of Surrey, Guildford, Surrey, GU2 7XH, l.w.blake@surrey.ac.uk 3 John Pointing, Barrister and Senior Lecturer in Law, School of Surveying, Kingston University, Kingston upon Thames, Surrey, KT1 2QJ, j.pointing@kingston.ac.uk 4 Tim Sinnamon, Associate Lecturer in Law, Department of Law, University of Surrey, Guildford, Surrey , GU2 7XH, t.sinnamon@surrey.ac.uk