The Dead Letter Act: A Computer Virus For Legislation

In 2019, a tax consultant named Maya Forstater lost her contract with a global development think tank after posting on Twitter the observation, then as now obvious to roughly half the population, that men cannot become women. She sued under the Equality Act 2010 for discrimination on grounds of philosophical belief. She lost at first instance. Judge Tayler held her views were "not worthy of respect in a democratic society" and therefore fell outside the Act's protection, a judgment received with considerable satisfaction in the usual quarters and briefly filed as another defeat for reactionary opinion.

Then she appealed.

The Employment Appeal Tribunal, in sixty pages of careful reasoning from Mr Justice Choudhury, overturned the decision entirely. Gender-critical beliefs met the established test for protected philosophical belief. They were genuinely held, concerned a weighty aspect of human life, possessed sufficient cogency and cohesion, and were not incompatible with the fundamental rights of others. The threshold for excluding a belief on dignitary grounds applied only to creeds akin to Nazism or the advocacy of terrorism, and gender-critical feminism was not such a creed. Forstater won, was reinstated, received compensation, and her victory established a precedent under which about half the adult population of Britain is now legally protected against workplace discrimination for holding views the other half considers objectionable.

The interesting feature of her victory is not the victory itself. It is the method. Forstater did not ask Parliament to amend the Equality Act. She did not lobby for a British Bill of Rights. She did not write opinion pieces demanding reform of tribunal procedure. She took the Act as Parliament had drafted it, enforced its protections at their full textual reach, and thereby extracted a substantive right its defenders had never meant it to grant. The law was already on her side. She required it to behave accordingly, and it did.

What we often forget is the people who draft our absurd laws, and their civil servant lackeys... are stupid. They miss things. They don't think it through; they don't have time to analysis all the variations, loopholes, hacks, and the mistakes their creation might be introducing.

This big, beautiful pie is ripe for exploitation. We don't often have to repeal laws. We simply need to make them entirely unworkable.

We give this technique a name. Gubernare ad absurdum.

Government reduced to its own absurdity through the consistent enforcement of its own rules. The Latin echoes the logical move it adapts, the reductio ad absurdum of the medieval schoolmen, but applies the operation to statecraft rather than syllogism.

1. Accept the premises of bad law.
2. Derive the consequences of consistent application.
3. Watch the defenders of the law recoil from their own creation.

What follows is a proposal to formalise the technique as a legislative instrument, which we shall call the Dead Letter Act, and a methodology for deploying it against the thirty-year accumulation of performative legislation disfiguring the British statute book.

The Disease Before The Cure

Modern British legislation is drafted in a characteristic style. It states a broad principle. It delegates the definition of key terms to ministers, regulators, or judicial interpretation. It imposes soft duties cast in the language of "have regard to" or "take such steps as appear appropriate". It empowers enforcement bodies whose composition and priorities are set by ministerial appointment. The resulting statute is a framework within which enormous latitude for variation is permitted, and within which the actual operating reality is produced by the exercise of discretion rather than by the words on the page.

Read one way, these statutes confer universal protections of astonishing generosity.

• The Equality Act 2010 (aka the Marxism Act) protects nine categories of person, five of which cover the entire population, one of which covers about a quarter, and one of which covers most adults over the course of a lifetime.
• The Human Rights Act 1998 binds every public authority to act compatibly with Convention rights in all its decisions.
• The Climate Change Act 2008 imposes on the Secretary of State a legal duty to reduce net greenhouse gas emissions to zero by 2050.
• The various "have regard to" duties, scattered across planning law, children's legislation, animal welfare, environmental assessment, and public sector equality, require every significant state decision to be documented against an expanding list of statutory considerations.

Read another way, these statutes are administered through a selective enforcement regime in which the discretionary gaps are filled according to the political preferences of the filling body.

• The Marxism Act's universal protections are given operational substance only for certain constituencies.
• The Human Rights Act's public authority duty is interpreted narrowly enough to exempt most of the contracted-out state.
• The Climate Change Act's emissions accounting methodology excludes imported embodied carbon, which permits Britain to hit its targets by offshoring emissions to China rather than reducing them.
• The "have regard to" duties are discharged through the ritual production of documents nobody reads, which satisfy the duty without constraining the decision.

Both readings are accurate. The statute says what the first reading says it says. The operating reality is what the second reading describes. The gap between the two is closed by the quiet political selection of which textual protections to actually operate and which to leave as ornamental.

A "dead letter" is:

[a letter] which the postal department has not been able to deliver to the persons for whom they were intended. They are sent to the “dead-letter office,” where they are opened, and returned to the writer if his address can be ascertained.

A "dead letter law" is:

...a law that becomes inoperative a while after its initiation. The law will be still in effect. However, it cannot be enforced because of change in circumstances.

A law on the statute book which is not enforced as written is a peculiar kind of object. It is not a dead letter, because it is partly enforced. It is not an operational instrument, because its operation is a fraction of its stated scope.

It is, more precisely, a stage prop. It performs the function of law without discharging it, and its continued existence depends on the willingness of everyone involved, including its nominal opponents, to treat it as something other than what it says. The state complies formally with its own statutes. The statutes produce almost none of the effects they promise. Everyone pretends the situation is normal because the alternative is to notice what is actually happening, which would require someone to act.

This is government by absurdity. Not the collapse of law into lawlessness, which would be visible and contestable, but the conversion of law into performance, which is neither.

Our intellectual question: how could a minister make our most hated laws so unworkable they are moot?

Why The Existing Safeguards Do Not Save Them

The Englishman may reasonably object at this point. Surely the British constitution contains defences against precisely this sort of rot? Parliament supervises secondary legislation. Courts police the boundaries of delegated power. Ministers operate under duties of rationality, proportionality, and good faith. The rule of law exists precisely to prevent the conversion of statute into performance. Where are all these safeguards, and why have they failed?

They are there, because the English mind is fundamentally sensible and understanding of people such as ourselves who find this type of malarkey amusing. Each of them is a real doctrine with a real history and real case law. Each of them has, on specific occasions, constrained specific ministers and struck down specific instruments.

None of them, individually or collectively, has prevented the general drift we describe here. Understanding why requires a brief tour of the defensive machinery, because the strategy which follows depends on knowing which defences are available and which have atrophied past usefulness.

One should remind oneself of the plot of The Merchant of Venice. The culmination of the drama is a cunning legal loophole beautiful Portia exploits: you contracted a pound of flesh, but not the blood. As such, this type of hacking is an ancient English intellectual bloodsport.

True to White Hat hacker doctrine, we need to understand the network obstacles we are stress-testing and ultimately need to circumvent.

Ultra Vires

A minister making secondary legislation must act within the scope of the power the parent Act confers. Regulations which exceed the enabling power are unlawful and will be struck down on judicial review. In principle this is a complete defence against the worst forms of regulatory drift.

In practice the enabling powers have been drafted with such breadth almost nothing exceeds them. When Parliament tells the Secretary of State to "make such regulations as appear to them appropriate for the purpose of...", the practical reach of ultra vires shrinks to the vanishing point. The doctrine bites only against ministers who have forgotten to read the parent Act. It does not bite against ministers who have read the parent Act and discovered its generous latitudes.

Padfield

After the 1968 House of Lords case in which Lord Reid held ministerial discretion must be exercised to promote the policy and objects of the parent Act, not to frustrate them. Padfield is genuinely powerful in theory. A minister who uses secondary regulations to defeat the purpose of the primary legislation acts unlawfully, regardless of whether the regulations fall within the literal scope of the enabling power.

In practice the doctrine requires a court to determine the policy and objects of the parent Act, which requires the court to interpret the legislation against its own stated purpose, which courts are constitutionally reluctant to do. Padfield remains available but is rarely deployed, and when deployed is deployed against the most egregious cases rather than against ordinary drift.

Wednesbury Unreasonableness

A minister may not exercise discretion so unreasonably no reasonable minister could have done so. The Wednesbury standard is deliberately high, because courts do not want to substitute their judgment for the minister's on matters of policy: could it have possibly been the intention of the Parliament that any body should behave unreasonably? A regulation which is merely bad policy, or selectively enforced, or productive of absurd outcomes in specific cases, is not Wednesbury unreasonable. The doctrine is reserved for decisions which shock the judicial conscience, and the judicial conscience has proved remarkably robust over the decades in which the drift has occurred.

Proportionality

Imported from European law and now embedded in domestic human rights jurisprudence. Proportionality requires restrictions on rights be no more intrusive than necessary to achieve a legitimate aim. In rights-adjacent contexts it is a sharper tool than Wednesbury. But proportionality applies only where a qualified right is engaged, and most regulatory drift does not engage qualified rights directly. The doctrine is a scalpel designed for particular operations, not a general defence against the condition.

Parliamentary Joint Committee on Statutory Instruments

This junta scrutinises secondary legislation for technical defects and reports adversely where it finds them. The Committee does excellent work within its remit. Its remit is narrow. It reviews instruments for drafting errors, inconsistency with the enabling power, and procedural irregularity. It does not review them for substantive policy merit, does not assess their practical effects, and does not examine their cumulative impact on the regime they operate under. The Committee's reports are authoritative on what they cover and silent on everything else, and everything else is where the drift lives.

This body is the enemy. A boring one, who are the detective unit responsible for sniffing out the whole plan.

Affirmative Resolution Procedure

Certain secondary legislation requires positive approval by both Houses. About ten percent of statutory instruments are subject to the procedure. The remainder proceed by negative resolution, which permits annulment by either House but does not require approval.

In practice the affirmative resolution procedure produces a formal debate of about ninety minutes in each House, usually on an evening when most members are elsewhere, at the end of which the instrument is approved on the government payroll vote. The procedure is a ritual, not a filter. The last occasion on which the House of Lords rejected a statutory instrument outright was 2015, over tax credits, and the constitutional crisis which followed produced the Strathclyde Review and a chilling effect on future rejections which has not yet dissipated.

Judicial Review

JR permits any person with sufficient standing to challenge an instrument on grounds of illegality, irrationality, or procedural impropriety. Judicial review is a real and functioning constitutional remedy. It is also slow, expensive, and reactive. It requires a claimant with standing, resources, and legal representation. It proceeds one instrument at a time. A claimant who successfully strikes down one regulation in 2024 may find the minister has replaced it with a near-identical regulation in 2025, which requires a fresh challenge, which proceeds at its own pace through a backlogged administrative court. The cost of sustained judicial review across a programme of regulatory drift exceeds the resources of any existing civil society body, and dramatically exceeds the resources of individual citizens.

Political Accountability

Ministers who overreach are disciplined by Parliament, the press, and ultimately the electorate. Political accountability functions reliably only against overreach which is politically salient. Regulatory drift, being technical, dispersed across thousands of instruments, and largely invisible to the non-specialist, rarely becomes politically salient. It is the perfect overreach from an accountability-evasion perspective, because its individual increments are too small to notice and its cumulative effect is too diffuse to attribute.

These are the defences we need get around. It can be done. What is made by man can be unmade by man.

The picture which emerges is not of a constitution without defences but one with defences which are inadequate to the pressure being applied. Each defence was designed for a specific kind of misbehaviour, and each is effective against the kind of misbehaviour for which it was designed.

The drift which has occurred over the last thirty years is a different kind of misbehaviour.

• It does not exceed enabling powers, because enabling powers are vast.
• It does not frustrate statutory purpose in the Padfield sense, because statutory purpose is ambiguous.
• It does not shock the conscience, because its increments are small.
• It does not engage qualified rights, because it operates below that threshold.
• It does not produce drafting errors, because the Parliamentary Counsel Office is (largely) competent.
• It does not trigger affirmative resolution rejection, because Parliament is reluctant.
• It attracts judicial review only sporadically, because judicial review is expensive.
• It evades political accountability, because political accountability requires salience.

The defences do not fail because they are weak, but because they were built for a different threat model than the one the statute book currently faces. They presuppose good faith in drafting and enforcement, and they presuppose the ordinary political process will catch sustained bad faith before it accumulates into systemic drift.

Both presuppositions have, over the last thirty years, been violated without visible consequence, because neither violation is the kind of event any single defence was designed to detect.

This is the fortunate position in which a restorationist movement finds itself.

The defensive machinery of the constitution is present but inadequate. Waiting for the machinery to catch up with the threat is not a strategy, because the machinery updates through case law and statute, and both update more slowly than the threat accumulates. The remedy must come from outside the existing machinery, or it must come through a reformulation of the existing machinery, or it must come through strategic deployment of the one defence which remains underused.

The Dead Letter Act is the reformulation.

Gubernare ad absurdum is the strategic deployment.

The Dead Letter Act

Any provision of primary legislation enacted since 1 January 1998 which has not been brought into force within fifteen years of enactment is automatically repealed, unless Parliament affirmatively re-enacts the provision by positive resolution of both Houses. The default inverts.

Currently an uncommenced provision sits on the statute book indefinitely, a promise made and quietly abandoned, requiring positive action to remove. Under the Dead Letter Act, it requires positive action to keep.

• Section 14 of the Equality Act 2010, enacted with fanfare and never commenced, falls.
• The uncommenced provisions of the Coroners and Justice Act 2009 fall.
• The Easter Act 1928, ninety-eight years on the statute book without ever being switched on, is formally buried.

Parliament is required either to mean what it enacted or to stop pretending it meant it.

The other part is the more important, and the more interesting. Every piece of secondary legislation made after 1 January 1998 (statutory instrument, regulation, order, code of practice, statutory guidance, direction) is subject to a ten-year sunset clause.

After ten years, the instrument lapses unless Parliament affirmatively re-adopts it. Either House may, by resolution, annul any such instrument without reference to the minister who made it. The enormous edifice of post-Blair regulatory drafting, through which the operating reality of British life has been quietly reconstructed without meaningful parliamentary scrutiny, is required to justify its existence to the body nominally responsible for having authorised it in the first place.

A draft of the core provisions runs to a single page, which is itself part of the argument. A Dead Letter Act of fifty clauses would be comic. The principle is simple, and the drafting should honour the principle.

A Bill to provide for the automatic repeal of uncommenced primary legislation, for the periodic lapse of secondary legislation, and for the annulment of instruments which have become unenforceable or inoperative; and for connected purposes.

Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows.

1 — Automatic repeal of uncommenced primary legislation

(1) A provision of primary legislation enacted after 1 January 1998 which has not been brought into force within fifteen years of the date of Royal Assent is repealed on the last day of that fifteen-year period.

(2) Subsection (1) does not apply to a provision which has been re-enacted, before the expiry of the fifteen-year period, by a resolution of both Houses of Parliament affirming the continued necessity of the provision.

(3) A provision repealed under this section may be re-enacted only by further primary legislation.

2 — Periodic lapse of secondary legislation

(1) A statutory instrument, regulation, order, code of practice, statutory guidance, or direction made under primary legislation after 1 January 1998 lapses on the tenth anniversary of the date on which it was made, unless re-adopted in accordance with subsection (2).

(2) An instrument is re-adopted if, before the tenth anniversary of its making, both Houses of Parliament resolve to re-adopt it.

(3) An instrument which has lapsed under subsection (1) may be remade only in accordance with the enabling power under which it was originally made, and the ten-year period in subsection (1) applies to the remade instrument.

3 — Annulment of unenforceable or inoperative instruments

(1) Either House of Parliament may, by resolution, annul any instrument of the kind described in section 2(1) on the grounds that the instrument —

(a) has ceased to be enforced in practice; (b) produces outcomes inconsistent with the purpose of the enabling legislation; (c) imposes obligations which are not, and cannot reasonably be, complied with; or (d) has been superseded in practice by guidance, policy, or administrative arrangement, such that its continued existence serves no operational purpose.

(2) A resolution under subsection (1) takes effect on the date specified in the resolution, or, if no date is specified, on the date the resolution is passed.

(3) The Speaker of the House of Commons and the Lord Speaker shall jointly maintain a public register of instruments annulled under this section.

4 — Saving for existing rights and proceedings

The repeal or lapse of a provision under section 1 or section 2, or the annulment of an instrument under section 3, does not affect —

(a) any right, privilege, obligation, or liability acquired, accrued, or incurred under the provision or instrument before the date of repeal, lapse, or annulment;

(b) any legal proceeding pending on that date; or

(c) the validity of any act done or decision taken under the provision or instrument before that date.

5 — Commencement, extent, and short title

(1) This Act comes into force on the day on which it is passed.

(2) This Act extends to England and Wales, Scotland, and Northern Ireland.

(3) This Act may be cited as the Dead Letter Act.

This is a very, very boring law. That's the whole point. It's simple to pass. Its effects are catastrophic. It is conceptually similar to a computer virus entered into the British legislative apparatus.

The bill as drafted would, if enacted, produce the most significant constitutional reform since the Parliament Acts.

• Section 1 would clear the uncommenced backlog in a single fifteen-year window.
• Section 2 would force the re-adoption of every piece of modern secondary legislation on a rolling ten-year cycle.
• Section 3 would give Parliament the power to annul instruments which have quietly ceased to function, without having to wait for judicial review.
• Section 4 would protect existing rights and proceedings from the retrospective chaos which a bare repeal mechanism would produce.

The architecture is conservative in the narrow drafting sense and radical in operational effect.

Those are the mechanical provisions. They would pass, given sufficient political will, through ordinary parliamentary process. They are achievable, which is to say they are less interesting than the bloodbath of what comes next.

Turning Bad Law Against Itself

Legislative reform is the slow route. The faster route, which the Dead Letter Act is intended to accelerate rather than replace, is gubernare ad absurdum itself. The technique, deployed by a determined minority of strategic litigants (aka constitutional trolls), can produce most of the reforming effect the Act would achieve, without requiring Parliament to pass anything at all. Forstater did not wait for the Equality Act to be improved; she enforced it as written, and improved it by her enforcement. The method scales.

The methodology has four stages.

Identify the overbroad provision

Look for statutory language which, taken at its full textual reach, would produce consequences the statute's defenders have never acknowledged. Loopholes, potholes, workarounds, and perverse incentives.

Some simple examples of over-broad almost subjective notions:

1. The Marxism Act's protection of philosophical belief, interpreted through the Grainger test established in 2009, is the paradigm case: the test's criteria define a category far larger than any operational programme has ever attempted to protect.
2. Similar language appears in the Human Rights Act's definition of "public authority",
3. the Climate Change Act's duty of emissions reduction
4. the Children Act's paramountcy of welfare, and
5. dozens of "have regard to" duties everywhere across modern legislation.

Overbroad drafting is not an occasional vice of the modern statute book but its structural default. It's a beautiful library of mistakes, errors, and ill-thought-out opportunities.

Select a plaintiff whose case is both textually strong and rhetorically useful

Textually strong, because the technique depends on winning; it fails entirely if the statute's defenders can rebut the claim on its own terms. Rhetorically useful, because the objective is reform through publicity as well as through precedent, and a plaintiff whose story illustrates the absurdity of selective enforcement accelerates the political process.

1. Forstater combined both.
2. So did Maya Higgs, the Christian school worker dismissed for re-posting Facebook content critical of LGBT education in primary schools, whose victory at the Court of Appeal in 2025 extended the Forstater protection into the religious-belief sphere.
3. Plaintiffs of this quality exist in every jurisdiction in which selective enforcement operates; the bottleneck is not suitable cases but the willingness of solicitors and funders to take them. Answer: let's get them some cash and find some bored legal beagles.

Litigate at the highest reasonable standard of consistency

The argument is not the statute should be amended, narrowed, or reformed. It is the statute, as written and as interpreted by the courts in previous cases, requires the outcome being sought.

1. The high ground is consistent enforcement of existing law.
2. The defender is forced into the position of arguing for selective application, which is constitutionally indefensible however factually convenient.

This is the rhetorical core of the technique, and losing sight of it is the commonest mistake made by litigants who attempt the method without understanding it.

One does not sue the Equality Act for being bad law. One sues for being denied the protection the Equality Act itself, in its own text and in its own case law, has already promised.

It is one's sincerely held philosophical belief cycling is not appropriate on roads as it is danger to children attending school and has its roots in white supremacy. As the driver of a car, the Equality Act has promised a remedy of this injustice.

Would that one succeed? Who cares, frankly, as long as it makes the law unworkable.

Force the machinery to honour its rules or visibly refuse to

1. Honouring produces absurdity, which produces pressure for reform.
2. Refusing produces hypocrisy, which produces pressure for reform.

Both outcomes advance the cause. The machinery has no third option compatible with the continued legitimacy of the regime it administers, and the absence of such a third option is what makes the technique reliable over sufficient volume of cases.

The Gap Between What the Statute Says and What You Thought It Said

Here is where the examples become interesting, because the examples are not hypothetical. What follows is a list of beliefs, circumstances, and conditions which, under the current state of British statutory and case law, are legally protected against discrimination or impose enforceable duties on public authorities.

Each item has been verified against either published case law or the statutory text. None of them has been extracted from a hostile reading of the law; each follows directly from the law's own established interpretation.

New protected philosophical beliefs under the Equality Act 2010, per Grainger and its progeny

• Ethical veganism (Casamitjana, 2020).
• Democratic socialism
• Belief in Scottish independence.
• Belief in the severity of climate change (Grainger itself, 2009).
• Gender-critical feminism (Forstater, 2021).
• Orthodox Christian belief in biological sex as a created reality (Mackereth, 2022, and Higgs, 2025).
• Anti-fox-hunting conviction
• Ethical non-violence
• Belief in the higher purpose of public service broadcasting, protected in a 2013 tribunal judgment (Maistry v BBC)

By extension from these cases, and applying the Grainger criteria without political filtering, the following are also protected philosophical beliefs:

• belief in the sanctity of marriage between one man and one woman;
• belief in the legitimate authority of the Crown;
• belief in the moral distinction between the deserving and the undeserving poor;
• belief that mass immigration has been socially harmful;
• belief in the death penalty;
• belief that the British Empire was, on balance, a civilising force; and,
• for those whose convictions extend that far, belief in the moral superiority of the cricket pavilion tea over the foreign equivalents.

Each of these beliefs meets the Grainger criteria as robustly as any of the beliefs currently given operational protection. The only thing standing between the believer and the protection is the absence of a case.

New protected racial and ethnic origins under the Act, per Mandla and subsequent case law

• Sikhs and Jews as ethnic groups as well as religious ones.
• Irish Travellers and Romani Gypsies.
• Cornish people, recognised as a national minority under the Framework Convention in 2014 with consequential effect on Equality Act interpretation.
• By direct analogy, Yorkshire identity held with sufficient cohesion, distinctness, and cultural tradition meets the Mandla test for ethnic origin.
• So does:
  • Welsh identity
  • Scottish identity, and
  • Geordie identity.

A London employer who declines to hire a Geordie applicant because the accent is "difficult to understand" is, on a fair reading of the existing case law, committing unlawful race discrimination within the meaning of section 9 of the Equality Act.

The tribunal claim has not been brought because the claimant has not been found, but the law protects the claimant regardless. It shouldn't be hard to find one.

New disability protection under sections 6 and Schedule 1

A physical or mental impairment which has a substantial, long-term adverse effect on the ability to carry out normal day-to-day activities. "Substantial" means more than minor or trivial. "Long-term" means has lasted or is likely to last at least twelve months. Under these criteria:

• Chronic mild depression lasting thirteen months is a disability.
• Chronic mild anxiety is a disability.
• Persistent post-viral fatigue is a disability.
• Menopausal symptoms severe enough to interfere with daily activities are a disability, as was confirmed in a series of 2022 employment cases. (Antonia Romeo is officially disabled).
• Hay fever severe enough to cause more-than-trivial impairment to concentration is, on a straightforward reading of the statute, a disability, provided it recurs across the statutory twelve-month window.

The Office for National Statistics reports about twenty-four percent of the adult population has a long-term health condition of the kind the Act contemplates. The operational reach of the disability provisions, enforced consistently, would require workplace adjustments for roughly a quarter of the working-age population.

New duties of public authorities under the Human Rights Act

Every person whose functions are of a public nature is bound by section 6 to act compatibly with Convention rights. The current interpretation exempts most contracted-out service providers on the grounds their relationship with the state is private. A consistent textual reading would bring within the duty:

• every private prison operator;
• every outsourced immigration detention provider;
• every academy trust;
• every care home accepting local authority placements;
• every contracted-out benefits assessment service;

The human rights compliance burden on these providers, properly enforced, would eliminate the cost savings of outsourcing and thereby reverse the architecture of thirty years of public service reform. The reading is available on the text. It awaits only the litigation.

New Duties of the Secretary of State under the Climate Change Act

The net UK carbon account for 2050 must be at least one hundred percent lower than the 1990 baseline. The accounting methodology, set by regulation, excludes imported embodied carbon. Or:

total greenhouse gas emissions generated by producing, transporting, constructing, maintaining, and disposing of building materials throughout their entire lifecycle.

A judicial review demanding inclusion of imported embodied carbon in the statutory accounting would force the government to choose between:

1. revising the methodology, which would render net zero mathematically impossible without the destruction of British consumption patterns nobody has voted for, or
2. defending in open court a methodology under which Britain meets its climate targets by exporting its emissions to Guangdong.

The first outcome forces honesty about the cost of the Act's stated goal. The second outcome forces honesty about the dishonesty of current compliance. The claimant need take no position on climate policy. They oppose only the pretence.

The "have regard to" duties at large

Bracking 2013 and its successors require "conscious consideration", "rigorous attention", and evidenced reasoning. Strategic judicial review at scale, applying these standards consistently across all "have regard to" duties, produces an administrative environment in which every significant public decision becomes a documented essay capable of being challenged on any of a dozen statutory axes.

• Decisions slow
• Costs rise
• Councils delay planning permissions by six months per application to allow for the rigorous weighing of:
  • heritage considerations
  • equality considerations
  • environmental considerations
  • children's welfare considerations, and
  • Welsh language considerations,
  • ... each with evidenced documentary support capable of withstanding judicial review.

The system reaches the point of administrative paralysis, at which juncture either the duties are repealed or the consideration ritual becomes a genuine constraint. Either is reform.

The pattern is uniform. In every case:

1. The law says what the enforcement machinery pretends it does not say.
2. The gap is closed by litigation.
3. The litigation is supported by the law itself.

The reforming effect is produced by the law's own defenders, who are given the choice of honouring their own rules consistently or refusing to, and neither choice leaves the regime they operate intact.

Why This Is Different From Clever Lawyering

The technique is not new. Jonathan Swift proposed the consumption of Irish children in 1729 as a reform of economic policy, and the satirical power of the proposal derived entirely from its deadpan application of the political economy of the day to its logical conclusion.

American civil rights lawyers in the 1950s and 1960s enforced the letter of Jim Crow statutes to demonstrate their absurdity in operation.

British tax protesters have been trying to make the tax code collapse under its own weight for about a century, with variable success. What is new is not the method but the conditions.

Three specific features of contemporary British governance make gubernare ad absurdum uniquely effective now.

1. The modern statute book is unprecedentedly dependent on overbroad and delegating drafting. The 2010 Marxism Act is not a peculiarity of its era; it is characteristic. Every major statute of the last thirty years operates through the same combination of universal-sounding principles, definitional delegation, and discretion-heavy enforcement. The overbreadth supplies the fuel the technique requires.
2. The enforcement machinery is unprecedentedly politicised. The Equality and Human Rights Commission, the Information Commissioner, the various arms-length bodies and regulators, operate under political direction in practice even where they are nominally independent. The selective enforcement which the technique attacks is not incidental; it is the machinery's operational norm, and its operational norm is attackable precisely because selective enforcement is constitutionally indefensible whenever the selectivity is pointed out.
3. Perhaps most importantly, strategic litigation is cheaper and more accessible than it has ever been. Crowdfunding platforms, legal NGOs operating with pro bono support, and the increasing willingness of commercial solicitors to take strategic cases on reduced fees have lowered the cost of bringing principled cases by an order of magnitude over the last decade. The economic conditions for the technique are in place for the first time in British history.

These three conditions will not persist indefinitely. The statute book may eventually be reformed to reduce overbreadth. The enforcement machinery may adapt to scrutiny. Litigation costs may rise again.

The window in which the technique operates at maximum effectiveness is open now and is open only for perhaps a decade. Within the window, the leverage available to a determined minority of strategic litigants exceeds anything a generation of conventional complaint has produced. Outside the window, the leverage returns to historical norms. The question for the restorationist is what is to be done in the window, and how fun it should be.

A Warning, Because the Technique is Not Free

Strategic litigation imposes real costs on real parties. Employers, regulators, and public bodies defending claims brought to make political points incur legal fees, divert management time, and operate under the shadow of reputational risk. The Employment Tribunal system is already severely backlogged. Judicial review pipelines are strained. Regulatory complaint machinery creaks under its existing load. A campaign of strategic enforcement adds to all of these burdens, and the marginal cases displaced by the strategic ones are cases brought by ordinary people with ordinary grievances who will wait longer for hearings as a result.

This is not a reason to abandon the technique, but it is a reason to name the cost openly. The alternative to strategic enforcement is the continuation of the current regime, whose costs fall invisibly on the entire population in the form of selective application, performative legislation, and the erosion of trust in the rule of law. These costs are diffuse and ongoing, which makes them easier to ignore, but they are larger in total than the costs of the reforming litigation. The transaction is defensible because the exchange rate is favourable, not because either side of the ledger is empty.

There is a consolation, which is the deeper reason the technique is worth deploying. The Forstater case, and the small handful of others like it, succeeded because the text of the Act supported them and the courts, once the argument was properly put, found they could not refuse.

The machinery of selective enforcement depends on its targets not knowing their rights, or not having the means to press them. Once the rights are pressed, the machinery has no mechanism of refusal compatible with the rule of law it formally upholds. The position is unstable under sustained pressure, and sustained pressure is what the technique provides.

If They Want A Paper War, We Can Provide It

The attentive classicist will have noticed that gubernare is not quite the right verb, and regere or administrare would have more precisely captured the ancient sense. The choice is deliberate. Gubernare is the verb from which the English "govern" descends, and carries the nautical root of steering, which is what the modern regulatory state pretends to do and largely fails at. A ship which holds its course through every heavy weather and arrives at every port the opposite of the one its charter named has been perfectly governed in the narrow sense and catastrophically misgoverned in the real one. The remedy is to hold the charter up against the ship's actual course, and to require the captain to explain himself.

The British constitution has been obeyed into irrelevance for long enough. It is time to obey it into relevance again, which will be an entertaining process for everyone except its administrators, and an instructive process for them also, though they may not appreciate the instruction at the time.

The Dead Letter Act, if enacted, would accelerate the process considerably. In its absence, the process proceeds by case law, as it did with Forstater, and Higgs, and Mackereth, and will do with whoever comes next. The gap between what the statute says and what the enforcement machinery has pretended it says is the terrain on which reform occurs. The terrain is open. The weapons are the statutes themselves. The defenders of the current regime are on the wrong side of their own law.

What remains is the litigation, and the litigation requires only that somebody be angry enough, patient enough, and legally competent enough to begin. The history of British constitutional reform suggests such a person usually turns up eventually. The history of British constitutional reform also suggests the present moment is an unusually productive one for their arrival.