You don't have to look hard for examples of laws that are so widely flouted that they have largely been forgotten.
On the flipside, there are a surprising number of actual laws you can break with impunity. Fancy a cigarette but you've got a kid in the car? Figures obtained by the Press Association show that only one person has ever been fined for smoking in a car next to a child, even though a ban on just that has been in place since October of last year.
When that law was first proposed, a number of politicians raised concerns about whether it could really be applied in practice. Among them was Anne Main, Tory MP for St Albans. Having now been proved correct, she says: "This is a truly unenforceable policy. There was always a lack of clarity on how it would be enforced, and what tangible effect it would have on parents who smoke in front of children."
This isn't the first time a law has proved difficult to enforce. In Northern Ireland, paying for sex was banned in June of 2015 but, one year on, not a single person had been charged. While the ban on fox hunting has yielded successful prosecutions, activists claim it is still routinely ignored. In March of last year it emerged there had been no successful prosecutions for performing female genital mutilation in the UK, despite a ban being in place for 30 years. There are many more laws like this, routinely broken but never policed. Some might say these lawbreakers are hard to monitor, but is any law truly unenforceable?
"No behaviour is entirely impossible to police," says Jenny Wiltshire, head of general crime at law firm Hickman & Rose. According to Wiltshire, problems arise when politicians introduce laws which don't match public opinion. When that happens, widespread breaches of the law – combined with difficulties enforcing the new rules – "can render the whole enterprise fruitless".
Often, the extent to which laws are actively enforced comes down to time and money. Ken Marsh, chairman at the Met Police Federation, says: "How does a police officer use their time correctly? They get hauled from pillar to post in terms of what they are asked to do. If they're driving along and see someone smoking or not wearing their seatbelt, to take the action required you're looking at an hour-plus. That's a huge drain on police resources."
Mike Schwarz, partner at law firm Bindmans, agrees: "The police have limited budgets and they have to prioritise which crimes they want to pursue. Police and police crime commissioners have a role in enforcing the law and monitoring its enforcement. The whole idea is they can react to local pressures and priorities. It might just be down to financial considerations, and that also ties into political judgments about what are serious crimes and what aren't."
While one might imagine all laws are created equal, in reality, Schwarz describes a range of factors that can come into play when decisions are being made about which of them should be enforced. "My impression is that it depends on a whole combination of things, like financial priorities, personal connections, political sympathies," he says.
Schwarz sees the fox hunting ban as an example of how some laws are enforced more rigorously than others. "Before that legislation came into effect, hunt sabs [groups that use direct action to disrupt fox hunts] felt they were being prosecuted overzealously by the police, perhaps because the police were sympathetic to the hunt," he says. "Then the legislation came into effect banning fox hunting. There have been criticisms of that legislation not being correctly formulated, and also criticisms that it was not enforced fully against hunters, while hunt sabs were still being prosecuted."
Regardless of whether they will be enforced or not, it's not hard to imagine that politicians might be tempted to pass laws which create a perception that they are working to stamp out problem behaviour. Nicholas Dent, associate at law firm Kingsley Napley, says: "I think there's an attraction to introducing criminal offences, because it offers a good political soundbite. It's an easy off-the-shelf response to a problem."
Dent points to recently introduced rules which were brought in as a response to the global financial crisis, and which make it an offence to take a decision which causes a financial institution to fail. "It's quite possible there will be no prosecutions under that legislation," he says. "But you can understand why the executive thought it would be a good idea to create this offence – because they thought it was what the public wanted."
You don't have to look hard for examples of laws that are so rarely enforced and widely flouted that they have largely been forgotten. Dent suggests legislation which forbids the sale of alcohol to a person who is already drunk – a law that, if properly enforced, would threaten to tear apart the fabric of British society and almost certainly trigger the collapse of the economy.
All this said, sometimes the mere existence of a law is enough to change behaviour. Jenny Wiltshire gives the smoking ban as an example of a law which was a low priority for the police and local authorities, but was successful because it was widely supported by the public. "If they are obeyed, laws which are not actually enforced are certainly a cost effective way of changing people's behaviour," she says.
The point is that even after a law goes through the scrutiny of parliament and the careful bureaucracy of the civil service, it still doesn't mean it's actually the law of the land. The law isn't abstract; it's human, and the laws that stick are ones that the public, and the police, actually care about.
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