661 new crimes - and counting

Nick Cohen tots up new Labour's most extraordinary record: the hundreds of fresh reasons it has foun

Historians may look back on the new Labour government of 1997-2009 (shall we say?) and wonder how it filled its days. When mass murderers weren't crashing planes into skyscrapers or tyrants weren't being overthrown, the Blair administration had little to do. Like other parties that are content with the status quo, it appeared to struggle to find reasons to get out of bed in the morning. After an early burst of reforming energy produced devolution and the Human Rights Act, it settled down to sleep through the great issues of the day, with the exception of one.

New Labour's search for new punishments is as frenetic now as when it came to power. Between the 1997 and 2001 general elections, Jack Straw's Home Office passed 31 law and order and immigration acts through parliament. The flow of tough stances and ferocious laws shows no sign of slackening as the government ages. The Tories worked out that, in the 18 months after June 2001, Downing Street and the Home Office launched 100 anti-crime initiatives. Between June 2001 and May 2003, David Blunkett's Home Office passed 14 law and order acts. Without the determination to show that they were hard men and women, MPs in the parliaments of the Blair years would have been on short time.

It's not only old-fashioned criminals who have been in the government's sights. People who weren't considered criminal until the turn of the century have found that their "inappropriate behaviours" have been outlawed. Simon Hughes, the Liberal Democrat home affairs spokesman, has asked each government department how many criminal offences it has created since May 1997. The Ministry of Defence hasn't replied yet (I suppose it's been busy), but the rest of Whitehall has admitted to inventing 661 crimes. As Hughes points out, Labour home secretaries of the past, such as Roy Jenkins, strove to reduce the number of criminal offences - by legalising abortion and homosexuality, for example. Not so Straw and Blunkett.

Many of their new laws conjure up an unnerving picture of a Britain on the edge of anarchy. What, for instance, explains schedule 26 paragraph 18 (4) of the School Standards Framework Act 1998, which made it a criminal offence "wilfully to obstruct an inspector conducting an inspection of a nursery"? Had kindergarten teachers locked their tots in the classroom and refused to open the door? Or armed themselves with Paddington Bears and beaten the inspectors senseless? Section 3 of the Transport Act 2000 criminalised "the provision of air traffic services without a licence". Until then, presumably, the clear and present danger of demented radio hams directing transatlantic flights into Gatwick hotels had flourished unchecked.

Other offences were the result of bureaucratic housekeeping - the Home Office created nine "racially aggravated" versions of existing offences so that the racial motive behind crimes could be recorded. But a substantial minority of the 661 reflected the government's paradoxical authoritarianism. It's a paradox because statutes that were pushed through parliament, with bellows that they were necessary to protect the public from pressing perils, have never been used. They are authoritarian on paper, but redundant in practice, and seem to justify H L Mencken's wisdom that "the whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary". In 1999, the hobgoblins were asylum-seekers. The offences to control them, created by the Immigration and Asylum Act of that year, implied that the government was legislating to protect the public from an invading army of scrounging crooks.

Hughes found that, by the end of 2001, the Home Office had bagged the following tallies of convictions for the following offences. For giving evidence "he [the asylum-seeker] knows to be false" for the purpose of obtaining benefits - none. For obtaining "benefits for himself or anyone else by making dishonest representations" - none again. For failing "to attend or give evidence or produce documents before an adjudicator or tribunal" - another zero. For "assaulting a detainee custody officer" and "wilfully obstructing a detainee custody officer" - zero and zero. For "assisting a detained [asylum-seeker to] escape" - zilch, once more. For "obtaining a certificate of authorisation by false pretences" - one. And for failing "without reasonable excuse to submit to a medical examination" - a towering 11.

The Terrorism Act 2000 was denounced by the New Statesman and other liberal journals for its sinister assault on basic freedoms. Under its terms, a hairy Greenpeace activist who tore up genetically modified crops - or simply plotted to tear up genetically modified crops - would be treated as a terrorist by the authorities and placed on the same legal footing as Osama Bin Laden.

Everything from wearing masks on demonstrations to sporting badges that proclaim support for banned groups became terrorism. Despite the atrocities of 11 September, nobody was convicted by the end of 2001 of being a member of a proscribed organisation, wearing any item of dress in support of a proscribed organisation, wearing, carrying or displaying any article in support of a proscribed organisation, providing weapons training for a proscribed organisation, and so on through a list of 25 offences created by the act.

Just before the 1997 election, new Labour announced that it wanted children under ten curfewed from 9pm to 6am. Not one child curfew was imposed when its wish became law. Local councillors reasoned that the police wouldn't be able to tell the difference between a nine-year-old and an 11-year-old, and that officers' time would be better spent chasing up criminals rather than children after bedtime. Rather than admit a mistake, Tony Blair declared that curfews had been a success. The government extended the upper age limit to 15. Not one local authority has asked for the under-15s to be curfewed, either. "Three strikes and you're out" for burglars sounded tough, but there was a catch in the small print. If magistrates or judges found there were "specific circumstances" in the defendant's favour, they could waive the mandatory three-year sentence and impose a sentence of their own. Magistrates and judges loathe mandatory sentences. They take all the fun out of judging. Not one was imposed.

Antisocial behaviour legislation currently going through parliament criminalises what would previously have been regarded as irritating conduct - teenagers hanging around on street corners who refuse to move on. To date, antisocial behaviour orders banning people from streets or estates have been an expensive flop. They have been issued in their hundreds, rather than the tens of thousands ministers predicted, at a cost of £5,000 per order.

Then there is my favourite, the new "drug abstinence" orders. New Labour has given the courts the power to order drug-taking criminals to stop taking drugs. Magistrates aren't meant to offer treatment or methadone or clean drugs on the NHS, just to tell addicts to stop it. The orders were piloted in Hackney and Nottingham. Seven drug-abstinence orders were issued in total. All the defendants said they would give up and then went back to drugs. The government's response to the resounding triumph has been to extend the pilot project.

Parenting orders to train the mothers and, occasionally, the fathers of disruptive children have been a greater success. But Harry Fletcher, spokesman for the National Association of Probation Officers, said his members had found that they worked only for parents who wanted to learn. When the courts tried to force recalcitrant mothers to go to classes, bad situations got worse.

Fletcher sees the stream of diktats as evidence that the government substitutes bullying and game-playing for real improvements in the lives of the poor, which it neither wants to deliver nor can deliver. Those of us who have kept an eye on law and order over the years can play the game in our sleep. Whenever the government is in trouble, or there's an election coming up, or the papers are throwing everything at a gruesome crime, the latest witless idea from the Home Office is rushed out in time for the first editions and early-evening news broadcasts.

There's much to be said for seeing the gigantic waste of parliamentary time as the new elite using populist gestures to maintain its power. But just because many of the laws are dead-letters from the moment they reach the statute book doesn't mean that they can be laughed off as black jokes. The ferocious range of offences that the government created for asylum-seekers might never have been used, but real suffering was imposed by the government's decision to force aliens to live way below the poverty line on a handful of vouchers. The Terrorism Act 2000 may be as nugatory in operational practice as it was outrageous in democratic theory, but it became an irrelevance only because the government chose to dispense with the rule of law after 11 September. Its sweeping terrorism legislation was deemed not sweeping enough, and the Home Office simply interned suspected Islamic fanatics without habeas corpus, the presumption of innocence and fair trial before judge and jury.

The judges may have laughed behind their hands at "three strikes and you're out" and the other crowd-pleasing gimmicks, but the overall effect of a political class that chucks around crime legislation like a furious child hurling food across a room has been impossible to ignore. The length of sentences and numbers in prison have shot up, even though crime rates are falling off a cliff, because judges and magistrates have followed the lead of politicians and the press and become more punitive.

The filling of parliamentary time with useless crime bills is a fitting epitaph for this government. With a huge majority, it chose to posture. It took power so it could enact legislation that either could never work or should never work, while ignoring what could and should have been done.

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