One of the other meetings I attended this past week was a Hansard Society seminar. It was the first in a series on ‘Making Better Law’. I gave a paper that examined some of the problems at the heart of the current law-making process.
I identified various problems. One is the sheer volume of legislation. The problem is not only quantitative (longer bills) but also qualitative (more complex bills). Parliamentary resources have not kept pace with the increase. Another problem is not so much process as attitude. Getting a major bill enacted is a sign of political virility. New ministers come in and want to get ‘their’ measures on the statute book. Departments tend to be complicit in this. The turnover in ministers exacerbates the problem. Attachment to the sessional cut-off (bills falling if not passed by the end of the session) creates what Robin Cook called a ‘tidal wave’ effect, with bills being introduced at the beginning of a session and cascading down to committee at roughly the same time. Another major attitudinal problem is that ministers tend to measure political success in terms of the passage of legislation rather than the consequence of legislation. Ministers, and MPs generally, tend to see Royal Assent as the end of the process rather than as part of a continuing process.
Other problems include the pressure on parliamentary counsel in the preparation of legislation, exacerbated by the tendency of government to re-write legislation as it is going through Parliament, the failure to make pre-legislative scrutiny the norm and the limited time to take into account evidence presented under the new public bill procedure. Though post-legislative review is now being introduced (a very welcome development), the government did not accept the recommendation of the Law Commission that a joint committee on post-legislative scrutiny be created. Departments will review Acts but those reviews may not get the parliamentary attention they deserve.
Though there have been some notable improvements in recent years (some pre-legislative scrutiny, introduction of public bill committees, post-legislative review), Parliament is running in order to stand still. I argued that if deficient legislation is to be avoided, then there is a need to achieve greater constraint on the part of government, ensuring that legislation is necessary, well prepared and subject to pre-legislative scrutiny. The ideal situation is compliance with all three criteria but the ideal is rarely met. There is much more Parliament can do to subject legislation to more rigorous scrutiny (greater use of the carry-over of bills, fore example, among other things) but the ideal requires a culture shift within government departments. That is the biggest challenge and there is a long way to go.