Turning Respectable People into Criminals

My Liverpudlian taxi-driver was in a mood of high dudgeon—not towards me since I shared his indignation, but towards his energy company which had appropriated a larger sum than he owed for his previous use of energy consumption. Why was his bill considerably larger than was justified by his modest use of the company’s energy?

A nice lady explained to him that the reason was the company was saving him money. Really? Oh, yes. The company had taken money from his bank account now to cover his future energy needs at a reduced price. He would get that energy at a lower cost in the long run. He would therefore be better off. Q.E.D.

My taxi-driving friend could see the lady’s economic logic, but he was not mollified. “That’s all very well,” he responded, “but it’s not a decision for the company to make. If the company wants me to enter into such a contract, I may or may not agree to it. But until I do, that money is mine and I want it returned to me.” He got the money back, but as he went on to explain, we’re moving into a world of direct debits and standing orders in which other people take more and more of our expenditure decisions usually—but not always—with our advance approval.

Actually, I'm saving you money in the long run.

I hope for the sake of the taxi-driver’s blood pressure that he hasn’t read the recent report in the Daily Telegraph which revealed that under the government’s proposed Energy Bill, Ministers and officials will enjoy broad umbrella powers to create new criminal offenses and impose severe penalties, including imprisonment, for various forms of non-compliance with new “energy performance regulations” such as obstructing an enforcement authority.

The first (and maybe the only) point to make about the bill is that it’s an expansion of delegated legislation: that is, Parliament or Congress passes a general bill aiming at all kinds of improvements in—on this occasion—energy regulation, but leaves officials in government agencies to fill in the details later about, for instance, how much energy should a home use, how great an excess constitutes a crime of non-compliance, how heavy should the punishment be, and so on.

For more than a century, legal experts have been uneasy about delegated legislation because agencies and bureaucrats decide these questions rather than elected representatives. Its democratic legitimacy is thus very weak. In Britain, they have added safeguards with an eye towards remedying this flaw, such as requiring MPs to pass a statutory instrument confirming any important new rules issued under its rubric. But these safeguards have themselves become weak over time. Most are subjected to only a very brief parliamentary debate, and they are almost always passed without amendment—even those involving major social and economic changes or criminal sentences.

Yet, despite the unease of strict constitutionalists, delegated legislation has spread inexorably across the democratic world because politicians love legislating—it pleases their supporters, voters, and pressure groups—and bureaucrats love regulating. Governments in particular like devices such as statutory Instruments because they help them to push through unpopular legislation without too much public controversy.

That’s all too clear from the most dramatic misuse of statutory instruments in recent years: namely, Theresa May’s decision to commit Britain to the irresponsible and unachievable target of net-zero carbon emissions by 2050 as a mere amendment to the Climate Change Act after ninety minutes of debate. Mrs. May legitimately owns that extraordinary act of financial and political folly now wreaking havoc on the U.K. economy. Not all the regulations that emerge from the bureaucrats’ offices, however, are a good reflection of the legislator’s intentions. Sometimes they are even the reverse of Congress or Parliament’s intentions.

But our intentions are good.

Last year in the U.S., for instance, the Federal Energy Regulatory Commission, an independent agency that regulates the interstate transmission of electricity, natural gas, and oil, issued two new regulations that had the effect not of regulating energy transmission but of reducing it by increasing the obstacles to building natural gas infrastructure. If these regulations didn’t implement the intentions of legislators, then, whose intentions did they implement? In the case of the progressive Biden administration, its intention was the Deep Green cause of blocking energy transmission. As I wrote in this space over a year ago:

All these devices are tactics in the political game of multiplying obstacles to the development of pipelines and other projects until potential investors and business in general depart in frustration and look for profit in a less hostile environment.

But the harm of this official abuse goes beyond its economic impact. For crimes against government regulation are treated and punished more seriously than other crimes. The average American has a lower risk of punishment for burglary than a farmer violating some water regulation by plowing the wrong field at the wrong time.

Will the British Energy Bill now before Parliament lead to this kind of absurdly misplaced set of legal priorities which, at its worst, is a kind of political warfare against the respectable majority of people? The bill’s official defenders claim, in effect, that any powers in the bill are for emergencies only. No one will go to prison for using too much electricity. But both rebellious Tory MPs and the public are nervous because of the political atmosphere in which this debate occurs. Net-Zero is certain to be draconian, expensive, and unpopular. Everyone admits that in a general way. So there are bound to be tough regulations to reduce energy use and curb lavish lifestyles, followed first by resistance to these measures, and then by fines levied on those who resist. And what then?

Already, angry London motorists are disabling the surveillance cameras designed to check on whether they have driven their cars out of the drive and beyond which many do every day to get to work. If they are caught driving, they are liable for a daily charge of about twelve dollars under the new rules of London’s Ultra-Low Emission Zones—a similar policy of highly dubious benefit imposed by London’s Labour Mayor, Sadiq Khan, with no evidence to support his claim that it will improve the quality of the city’s air. The police are currently looking for those motorists. Do they not risk punishment? Fines? Imprisonment?

Opposition to ULEZ — Boris Johnson's brainchild, let us recall — gave the Tories a rare fillip when they exploited the issue to win a special election in a London suburb. ULEZ is now a now a national political issue, and a kind of trailer for net-zero. And it has made people aware that ultimately regulation has teeth.

Might want to rethink that theater party, Madame.

It’s not difficult to imagine the resistance that might arise if the far harsher regulations needed to enforce net-zero were to be imposed across the nation, and not simply on motorists but also on householders, diners out, theatre audiences, and a hundred other groups. In the face of that resistance, might not governments be powerfully tempted to find reasons to invent new crimes, to attach enormous fines to them, and when the fines went unpaid, to impose prison sentences too. All with great reluctance, of course.

Tory MP Jacob Rees-Mogg, a former minister and energy secretary, warns against using delegated legislation to give ministers wide-ranging powers, saying “Criminal offences are an exceptional use of the state’s power and therefore require the fullest constitutional scrutiny.”

I think my philosophical taxi-driver would agree with him, adding that once a power exists, someone or other will eventually use it.