The Worst Can and Does Happen

A post by Cyclefree and Audrey Ludwig

It was LBJ who said: “You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.“

Wise advice. It should be heeded by those proposing new laws or policies and airily dismissing any concerns about the misuse of such laws, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended.

Let’s take some recent examples much in the news lately and see why that might be so:

– The removal of S.69 of the Police and Criminal Evidence Act 1984 which meant that such computer evidence was deemed admissible and true, unless the person challenging it could prove otherwise. This change enabled the prosecutions at the heart of the Post Office Horizon scandals.

– The proposed Scottish government ban on conversion therapy, currently out for consultation. This will create new criminal offences which could criminalise parents concerned about gender-questioning children and seeking the appropriate way to manage the situation.

Will such laws be abused or is this an unnecessary worry? What does experience teach us?

1. Extremists / activists / those with malign intent will always exploit the law, loopholes, well-meaning policies for their own ends, if given the opportunity to do so. The fact that those ends were not intended by those enacting the legislation or introducing a policy is irrelevant.

Those seeking to simplify the law on admissibility of computer evidence, for instance, never intended that this should be used to enable prosecutions on the basis of flawed computer evidence.

2. The worst case will happen at some point.

See the Horizon cases as an example. The Scottish conversion therapy ban proposal could enable, in certain circumstances, a parent to be prosecuted for wanting to stop their daughter wearing breast binders because of the harm caused and because they are worried that she has not been correctly diagnosed.

3. The process of investigation is itself a punishment.

The process of investigation is a punishment, one that can often taken an inordinate length of time, be costly and upsetting for the person under investigation and their family. This is so even if no prosecution or other action occurs. The same can occur in disciplinary proceedings: see the length of time between the events leading to Rachel Meade’s suspension by her employer and the judgment this month that her employer and professional regulator had behaved unlawfully in how it had treated her. (The judgment is here; @LegalFeminist’s Naomi Cunningham acted for Ms Meade.)

4. Injustice takes a long time to be reversed.

In the Rachel Meade case, the original complaint was made in 2020. Judgment was finally reached in 2024. In other cases, people can wait very much longer. Seema Misra, one of the subpostmasters prosecuted on Horizon evidence, was convicted in 2010 with her conviction only overturned in 2021.

5. Even when a court rules, those disliking it will deny what it says and others will seek to ignore or misrepresent the judgment.

See, for example, the reaction by some to the Forstater judgment: it was grudgingly accepted that she could have the views she did but she – or anyone else sharing the same views – was not allowed to express them. This was contrary to what the judgment said but this misunderstanding has informed commentary about the case and actions taken by others based on that misunderstanding. This was one of the reasons Rachel Meade’s employers, Westminster City Council and professional regulator, Social Work England, lost the case.

Before passing new laws or introducing policies, before assuming that the worst cannot happen, legislators should heed the advice we set out here last April and, in particular, this: “What are the consequences, especially the unintended ones?” “What is the worst that could happen?”

To those who say no-one would do awful things with these laws, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

Naivety is unpardonable in legislators and policy-makers.