Improving the law-making process

Lord Norton

44042One 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.

34 comments for “Improving the law-making process

  1. Troika21
    29/03/2009 at 4:59 pm

    Reading through your post, I wondered if something like a quota for legislation might be a method of dealing with the flood of bills (albeit a un-subtle one). Either for the number that can be brought forward during any given month, or that could be passed in a legislative session.

    Do we (or anyone else for that matter) do anything like this at the moment?

    Another idea might be to have an office to group bills together that deal with similar issues (not the bills, but the review sessions) that might ease exasperation.

    I agree with you that MPs seem to prefer “passage of legislation rather than the consequence of legislation”, I think its all the managerialism of New Labour, do you know if there was similar technical issuse under previous governments?

  2. howridiculous
    29/03/2009 at 10:28 pm

    Dear Lord Norton,

    An interesting post. I agree that we need to improve the law-making process.

    For me, there are too issues: the amount of legislation and the length of it.

    On the first point, I think there is far, far too much legislation. We really need to get to a situation where the introduction of legislation is the exception rather than the rule. As a country we need to ween ourselves off our instinct for introducing new laws and we need politicians with the courage to say that if legislation can achieve anything it can only achieve so much.

    On the second point, the length of some legislation, and the length of time it takes to get through Parliament, is incredible. For instance, the Marine and Coastal Access Bill with over 300 Clauses has been in your House since December and in Committee since January with further Committee Days stretching to almost the end of April! There will then be Report and Third Reading in the Lords before the Bill goes to the Commons. I don’t know if any research has been done on the longest time it has taken a Bill to pass through Parliament but the Marine and Coastal Access Bill must be approaching it.

    Perhaps Governments could discipline themselves to introducing Bills of no longer than X number of clauses – and parliamentarians, and particularly the ‘unguillotinable’ peers, could discipline themselves to make speeches of X length.


  3. adamsmith1922
    29/03/2009 at 10:50 pm

    Most interesting.

    At least in the UK you have the benefit of a bi-cameral legislature and a 5 year maximum electoral cycle.

    Here in NZ, where many of the issues you cite are all too recognisable we have only One House and a three year cycle.

    This position I think exacerbates the problem and too much ill considered law gets past with consequent negative effects.

  4. ladytizzy
    29/03/2009 at 11:15 pm

    Not that I am disagreeing with you but what evidence would you put forward to prove the ‘attitudinal’ problem of Ministers, and is this a recent phenomenon? I think this needs a fuller explanation.

    I’m afraid the distinction between “…post-legislative review is now being introduced… and that ” …the government did not accept the recommendation of the Law Commission that a joint committee on post-legislative scrutiny be created.” has been lost on me. Who trumps who, and what does this mean to such recommendations by the Gibbons Report, as accepted by this gvt?

    Pre-legislative scrutiny, to me, would mean some acceptance of what special expertise I have, by way of the consultation process, at least. This is a mess, and needs reforming. Three months+ and counting, from my first attempt, in getting an acknowledgement of my input. Would you recommend I make further attempts, as matters stand?

    Or should I be blaming the EU, as is the ‘in’ thing to do?

  5. 30/03/2009 at 12:17 am

    As Troika notes: “ministers tend to measure political success in terms of the passage of legislation rather than the consequence of legislation”

    Having watched the unintended consequences for some years now, I despair of government ministers understanding that their rushed legislation affects real people.

    On 12th march I witnessed Lord Justice Laws, in the High Court, struggle with the unexpected “consequences” as they affected two families. I look forward to his judgement as it was clear that he clearly understood the underlying problems brought about by a very foolish government (if its is still permissable for me to say that).

    Real People – real lives!!! Please, politicians, remember that.

  6. Croft
    30/03/2009 at 10:35 am

    Troika21: Your quota would no doubt be unworkable but I utterly sympathise. What have we have in the last 10 years, one Criminal Justice Bill every year? The farce of the following bill having to amend the mistakes of the preceding bill before it even comes into force beggars belief. No arm of the criminal justice system – or indeed any administrative process – can cope with and bed down changes on such a continuous basis. It’s an embarrassing shambles.

    Lord Norton’s view of ministers’ ‘political virility’ reminded me much of Lady Longford’s contrasting remarks in her biography of The Duke of Wellington: ‘he believed passionately in government and coolly in legislation’.

    I’d add to LN’s points one issue that most poisons the process, guilloting. The use of timetabling motions so that whole sections of bills added before third reading can’t even be discussed in the commons is an embarrassment to the democratic process. I accept government have a right to run business but perhaps any bill needs a mandatory amount of time for debate given to opposition time so they have the ability to select and discuss any amendments or changes that the government presently prevents any debate upon. The idea that the Lords can continue forever in trying to make sense of commons bills that are like an unmade million pieces jigsaw has surely got to end.

  7. Senex
    30/03/2009 at 2:59 pm

    With Lord Renton aspiring to be an inquisitor on why the public are disenchanted by Parliament and given the comments here it does make one think that the Commons is lacking. The House of Lords has better things to do than give scrutiny to badly drafted legislation that goes backwards and forwards like some reciprocating piston engine from one house to the other.

    One assumes the salaried back office-staff working for the house does most of the scrutiny, with peers approving the drafts? A comment on this would be helpful as these staff do an amazing job and go without recognition. Also it is not clear just how one goes about giving scrutiny to bills? There must be an established process and insights into this would be useful too.

    It seems that no one impresses the Commons more than the Commons itself. I subscribe to the view of our youngsters who can vote and do not, that politicians are all the same. Out to line their own pockets and what taxes they give back in one hand they take away in the other. These young people are our future they deserve better!

    I don’t think it is clear to the public why so many laws are passed by Parliament? It gives the impression that we are a society out of control, verging on lawlessness, with too many civil liberties that need reigning in. Are we?

    As the concept of service is well established within the Lords it would best serve us if once again it was established in the Commons. How can we have the people’s representatives earning more than the average UK salary? Lets see an immediate cut in their salaries to the median level; the shortfall formally recognised as the service, the sacrifice that they are willing to give to the people they represent.

    Every time a law is passed a civil liberty is lost. What is the financial cost of creating a new law to the nation taking a holistic approach? It seems the Commons just goes on creating laws as though they were a production line product. Laws must be both meaningful and enforceable not just the whims of a re-election prospectus or to placate an electorate frightened by its own shadow.

    The public are in the mood for real unfinanced tax cuts. Let our MPs lead the way. The mould needs to be broken that creates the mask for a set of Commons clones that cloud and befuddle voter perception.

    Having a bad day? You bet!

    Ref: 2008 Annual Survey of Hours and Earnings

  8. lordnorton
    30/03/2009 at 6:32 pm

    Thanks for some very interesting comments.

    Troika21: Your suggestion – a quota for legislation – is one that is variously made. As Croft mentions, utilising such a quota (though attractive) would create all sorts of practical problems. How would one accommodate emergency legislation for example? There is something of a limit already in that the number of Bills the Government can introduce in a session is far fewer than the number of bids made by Departments for legislative slots. Grouping review sessions is an interesting idea – not one I have heard before – but I am not clear as to how they may be organised. The tendency of ministers to focus on the passage rather than the consequence of legislation is not new, though there seems to be a greater tendency to introduce Bills, often rather rushed, in response to the feeling that ‘something must be done’.

    Howridiculous: I agree completely that we need to achieve a culture shift so that legislation is not seen as the answer to all the problems that we face. Legislation is too often seen as the answer to problems, even though they may be best addressed by other means; there is also a tendency to introduce legislation for symbolic purposes. We need to recognise the limitations of legislation. The focus on the passage of legislation, rather than its consequences, means that those limitations are not necessarily appreciated as fully as they could and should be. Your point about the length of Bills is well made. I am not sure how feasible it would be to limit Bills to a certain number of clauses: the danger is that we would then get very long clauses! In the Lords, the problem may not be the length of speeches, but their number.

    Adamsmith1992: I appreciate the points you make, not least since they draw attention to those aspects of our system that do have some benefits (not least two chambers). The New Zealand Parliament may also have generated difficulties through having a small membership.

    Ladytizzy: The attitude is not a recent phenomenon; rather, it is well entrenched but I would contend is becoming more rather than less marked. On post-legislative review, the Government has agreed to have Acts reviewed by Departments three to five years following enactment. The reviews are then to be published (as Command Papers) and sent to the relevant departmental select committees in the Commons. The committees will then decide whether to look further at the consequences of the Acts. The problem is that the departmental select committees are already heavily burdened and may not have time to address the reviews. One possibility would be to set up a joint committee (that is, of MPs and peers) to consider reviews not taken up by departmental select committees (as well as look as the whole nature of post-legislative review, identifying best practice in undertaking reviews and the like). The Law Commission, which can make recommendations to Government, recommended such a joint committee. However, the Government did not endorse the recommendation. Ultimately, setting up a joint committee is a matter for the two Houses but acceptance of the case for it by the Governnment would greatly smooth the path for its creation. On pre-legislative scrutiny, this is usually undertaken by a departmental select committee and occasionally by a joint committee. There is a difference between consultation and pre-legislative scrutiny. Bills are variously published in draft and put out for consultation. The consultation process is certainly in need of reform. This is something I am pursuing.

    Alfred: There have been various cases where judges have identified problems with legislation. The courts now have greater opportunity to consult the parliamentary record in the case of ambiguity. However, the ideal is to have legislation well drafted in the first place.

    Croft: You are quite right to identify Criminal Justice Bills (and Bills emanating from the Home Office) as being particularly prolific and problematic. According to a Hansard Society paper circulated for the seminar, the number of pieces of criminal justice legislation passed since 1997 range (depending on how you calculate the number) from 26 to 72. The number of pieces of legislation emanating from the Home Office in the same period was given as 44. It is, as you say, an embarrassing shambles. The more rushed the legislation, the more problems it generates and the more corrective legislation is required. I take your point about programme motions in the Commons. This is especially problematic in relation to big bills such as that mentioned by howridiculous. Note the amount of time required in the Lords to consider the Marine and Coastal Access Bill: how will the Government deal with it in the Commons? One answer would be to carry-over bills and have a longer cut-off period, thus freeing up more time for detailed scrutiny.

    Senex: There are few back-office staff providing scrutiny. In the Lords, back-benchers are left to their own devices. Opposition front-benchers rely on researchers, but they are extremely limited in number. There are some professional staff serving committees that examine Bills (Joint Committee on Human Rights, Constitution Committee, Delegated Powers and Regulatory Reform Committee, as well as the EU Committee) and these tend to be excellent; their work is invaluable. The numbers involved here are also small: we rely on quality rather than quantity. Front-benchers supported by researchers go through each Bill in detail. Likewise with the professional staff serving the committees. Front-benchers will follow-up with amendments; committees are more likely to correspond with ministers and, as appropriate, issue reports on Bills. Back-benchers decide for themselves what Bills to take an interest in and what action to take. As you say, the legislative process is seen as something of a production line. It is used to address problems, such as those you touch upon, even though they may not obviously be amenable to legislative solution. On the House of Commons, I have variously recommended a reduction in the number of Members. This will reduce some of the pressure on resources as well as be less expensive in terms of salaries and support costs.

  9. Troika21
    30/03/2009 at 6:37 pm

    “It seems that no one impresses the Commons more than the Commons itself.” I quite agree Senex, and I also agree with your comments on the Lords.

    I know this dosn’t discribe everyone in the Lords, but appointing parliamentarians who are at the end (or firmly established within) their careers seems to have had a positive effect on leglislation (sometimes), but within the Commons its become common to start your career there. I think that this could be a cause of all the new laws, cub-politicians proving themselves. And the pay increase.

    Politicians love to make it seem as though they are doing something without having to do anything, well they don’t have to, do they? Just pass some law to appease angry populists and leave it to the public sector workers to deal with it.

  10. Anon
    31/03/2009 at 3:03 am

    These issues have been regularly rehearsed within law faculties up and down the land for donkeys years.

    The best suggestion I have yet to hear to reduce the connsequences of duff legiislation is for there to be a covention that, in the event that legislation requires amendment within 5 years of its original enactment, the minister who sponsored the original bill should be removed from any government post they are then holding, and relegated to the back benches for a minimum of one year.

  11. Croft
    31/03/2009 at 11:03 am

    Lord Norton: I suppose if you went down the line of some limit the answer to your ‘How would one accommodate emergency legislation for example?’ might be to take a leaf from the decision to enforce Parliament Act. The Speaker decides whether to allow it.

    My concern with carry-over bills is that is takes away a weapon used against a government short of time. I’ve sometimes wondered if changing the parliament act to allow the Lords to insert a sunset clause that the commons couldn’t overturn might provide an effective threat/tool, short of either provoking the government to use the parliament act on a bill or ping pong between the houses, but enough to force the government to consider concessions again or at least guarantee parliament later revisit the matter.

  12. Senex
    31/03/2009 at 12:05 pm

    Its still not clear to me just how peers are able with a high degree of confidence to interrelate acts or bills, one to the other taking a holistic view? Is this the know-how that individuals keep to themselves, the x-factor that makes them special? If so then some team work is needed.

    In information science and at a very basic level one can represent an act/bill as an entity. You simply draw a box on a large sheet of paper with its name inside. The process continues until lots of boxes have been drawn. The clever bit comes when a single line is drawn from one box to another to establish a relationship without saying what it is. I’m sure you are familiar with the technique?

    Banks I believe do this when designing new products, as do other financial institutions. One of the problems is that the model as it is called is often so big it will not fit on a single sheet of paper. Law enforcement uses a not unrelated technique to track its suspects this time not with paper but using networked software. The complexity is often huge and needs many people to manage it concurrently.

    I have often thought that this type of software might be adapted to another sort of villain an errant act or bill. The technique could also be used with common law by the judiciary when researching precedent. In fact a master diagram giving interrelations to all Parliamentary legislation would be a very nice to have.

    Has the house thought about consulting information scientists about this, after all, you are all but in name, Parliamentary System Analysts?

    Ref: The International Association of Crime Analysts, Software
    Data Modeller, Overview
    Data Management for Government Agencies

  13. Francisco
    31/03/2009 at 8:17 pm

    One thing that I could think of to reduce the amount of legislation is to pass 1 law that stated that, unless each clause of a Bill was debated, the Bill would fall or the un-debated clauses must be excised from the Bill. This would have the effect of slowing things down and mean that all Laws were debated (I would like to say “properly” but that would be very hard to define).

  14. lordnorton
    31/03/2009 at 8:21 pm

    Troika21: I would not quibble with what you have written. I think it is a fair comparison.

    Anon: The issues have been recognised for perhaps even longer than you realise. In my paper, I quoted L. S. Amery’s comment in 1947 that Parliament ‘has become an overworked legislative factory’. The problems are not new, but rather have become more pronounced in recent years.

    Croft: The problem with leaving it to the Speaker is that it is difficult to define emergency legislation, whereas the definition of a money bill and the determination of when a Bill fulfils the provisions of the Parliament Act are fairly straightforward. The discipline provided by the sessional cut-off can be maintained by stipulating a set period within which a Bill must be passed: the 2004 report of the Constitution Committee recommended fourteen months. On some occasions (notably when there is a long session following a Spring general election) the discipline would be tighter than under the present arrangements.

    Senex: If a peer is an expert in a particular area covered by a Bill, it is relatively straightforward to look at a Bill holistically. If one is familiar with the subject, one will know what legislation has preceded it and the issues that are raised. Front-benchers are there to ensure that all parts of a Bill are considered, but back-benchers with expertise in the area are able to focus on those parts that require particular attention.

  15. lordnorton
    31/03/2009 at 8:26 pm

    Francisco: In the Lords, every clause formally is debated in that at Committee stage each clause has to be agreed on a ‘stand part’ motion. That is, the motion is put that the clause stand part of the Bill. The motion is debatable and one can signal in advance that you wish to discuss it by giving notice of your intention to oppose the motion: this intention is then printed on the marshalled list of amendments.

  16. Francisco
    31/03/2009 at 8:41 pm

    Thinking about it I am reminded of a podcast[1] I listened to recently (it was about bonuses so it may not seem an obvious choice here) but a psychologist performed an experiment[2] where volunteers were split into 3 groups and given a creative task to perform. The first group were given a bonus of approximately a day’s wages, the second group were given a bonus equating to 2 weeks wages and the third were given a bonus of approximately 6 month’s salary. From what I remember, the results were: first two groups: 40% completed the task successfully and, in the last group, 3% completed the tasks successfully. When they interviewed people to find out how they looked at the problem, the first two groups were motivated by the bonus but the last group were so scared of losing the bonus that they couldn’t think straight.

    How does this apply to ministers and legislation? The way I see it the press are constantly calling for something to be done, ministers to resign. The news, which is now 24 hours, is constantly bringing new problems to the feet of Government. I’m beginning to wonder whether, instead of ministers passing laws because they feel it’s right, they are so afraid of the consequences (especially as it could have major implications for they themselves or that of the next election) of not being seen to act that they legislate out of fear rather than conviction?

    Maybe there should be better training for ministers (e.g. make it compulsory for them to attend a courses, administered by outside bodies) that they have to pass in order to become a minister (hey, most jobs have induction training, why can’t it apply to ministers)? I envisage that part of those courses would be how to resist the constant media clamour for something to be done and things to consider when deciding whether a law was really necessary. Both opposition MPs and proposed members of the Government would be submitted to those courses.

    Of course, we would have to make sure that those courses include the duties of being democratically accountable otherwise we’d create a dictatorship that just ignored the press and the people. Those selecting ministers need to choose those who are good dealing with pressure.

    [1] CBC’s The Current (Podcast is listed as The Best of The Current), for 24th March 2009.
    [2] He did it in India as, otherwise, the University would not have been able to afford it.

  17. Francisco
    31/03/2009 at 8:42 pm

    Thank you for the quick reply.

  18. lordnorton
    01/04/2009 at 11:24 am

    Francisco: Thanks for a very interesting contribution. Ministers are now starting to receive some training, through the National School of Government, but the courses are more to do with process than with the dimension you raise. There may be much more than could be done, not least, as you say, from the perspective of coping with the pressure for more legislation. There may be a wider political problem in that the pressure falls on Government as a collective entity and ministers collectively may decide that ‘something must be done’. Very little work has been done in this country on the concept of groupthink, which may well bear further study. One needs to look at ministers collectively as well as individually; given the pressures at work, both politically and in terms of political ambition, it is difficult to move Government in the direction of less rather than more legislation. I take your point about ministers being the equivalent of those being offered six months’ salary (in effect, winning the next election)and therefore being afraid of losing that through not being seen to be taking action (legislating) to address problems.

  19. Croft
    01/04/2009 at 1:10 pm

    Francisco’s points were very interesting. Presumably we have not a single groupthink but circles of group think. With different, if sometimes overlapping, circles among MPs/Peers as a whole, by party, ministers, civil servants and so on.

  20. lordnorton
    01/04/2009 at 3:09 pm

    Croft: Groupthink is a concurrence-seeking tendency that occurs among like-minded people drawn together in a group. I was thinking of it primarily in a ministerial context (a small group of ministers, Cabinet sub-committee, ministerial team meeting and the like) but it could apply to groups of officials. I would think it less likely to apply in a parliamentary context where you have meetings that are large and in public. Given the fluidity as well, you are less likely to encounter the effect: it applies primarily to a closed group.

  21. Croft
    01/04/2009 at 3:54 pm

    I suppose I was thinking, in light of recent events, of the extent to which groupthink has helped to maintain unreformed parliamentary expenses in a way so clearly deemed unacceptable by the public. While there are no doubt some elements of venality the Westminster bubble must distort the collective sense of even the best intentioned over what can be justified.

  22. lordnorton
    01/04/2009 at 5:16 pm

    Croft: I think that is a very valid point. I don’t think it is a consequence of groupthink, as such, but there is certainly a ‘Westminster bubble’ effect which is quite remarkable.

  23. 02/04/2009 at 3:29 am

    Very nice conversations, with this I’ve learned.


  24. Paul
    02/04/2009 at 10:44 am

    I don’t know how parliamentarians actually manage to cope going through a bill. Why can’t a bill just read like a book? There’s subsections here and subsections there.

  25. lordnorton
    02/04/2009 at 10:53 am

    Paul: I agree. There is a problem especially where a Bill amends earlier legislation. It is something I touched upon in discussion on my paper. I have also mentioned it in debate on some bills. The Political Parties and Elections Bill, for example, is presently before the House. There are 24 substantive clauses (before the general clauses dealing with definitions etc). Of the 24, 21 amend earlier legislation: unless you know the provisions of the earlier legislation, you do not fully understand the extent of the changes being made. The use of Explanatory Notes to Bills is now very helpful – it is difficult to imagine what it was like before they were introduced – but even they are not always that informative. The Constitution Committee of the Lords, in its 2004 report on Parliament and the Legislative Process, recommended the greater use of Keeling-like schedules: what this means is reproducing the legislation that is being amended and showing the changes made by the new legislation. That would, at least, be a step forward.

  26. Bedd Gelert
    02/04/2009 at 11:21 am

    Talking of which…

    What is Dale going on about here ? Fixed Term Parliaments ? Lord Tyler ?

  27. Senex
    02/04/2009 at 11:47 am

    The training requirement of ministers is in a way to close the stable door once the horse has bolted. Ministers should be able to rely on a high quality independent civil service to equip them with what they need to know. What would happen if the minister flunked the test? The test would be rigged so that they could pass, making it redundant.

    A reduction of MPs salaries to the median level of ordinary people would have consequences for the Lords in terms of allowing pension self-sufficiency in those accepting promotion to the Lords. MPs would also counter by suggesting that the current salary attracts the right sort of people into the Commons. This attitude must have some correlation with the gold digger view of MPs in the public eye.

    One practical arrangement would be for MPs to adopt a salary sacrifice arrangement whereby the difference would be paid into their pension, which would not be a final salary scheme. Newly arrived MPs coming into the Commons would be perceived as arriving on the basis of service rather than reward.

    The civil service would raise an eye at this but whilst they give a service to the nation their reward is reflected in their immediate pay. At the end of a career they receive a good pension and if lucky they might get a carriage clock and an invitation to a royal tea party.

    Attracting the right sort of people into the Commons is important. The perception of performance is lack lustre but this is unfair to MPs. All backbenchers work hard to provide improvements to the way the Commons works. One such initiative is for the house to do certain work on certain days so that MPs can better plan their schedules and turn up for debates. This is common sense.

    Common sense ought to be part of the PPC process where a candidate cannot get through unless they have successfully past a number of tests on practical and physical problem solving. These are well established in the field of management. These skills at the very least are what ordinary people are naturally endowed with.

    It seems counter productive to fill the Commons with people who have superb academic qualifications but are gormless. Such people are best suited to research in an academic career where mistakes generally have no impact simply because they are academic. Good academics make good life peers.

  28. Croft
    02/04/2009 at 12:18 pm

    It’s not so far from I suspect everyone’s experience with their banks of recent. In anticipation of the rulings on penalties they all seem to be sending out new 20 page font size 6 terms and conditions leaving you to perform some psychic act to find the changes – as we all keep out old t&c!

    I suppose in part legislation has become ever more complex with average bill lengths growing astonishingly – I’m not entirely convinced always justifiably. There is something to be said for more regular consolidation bills which draw together, repeal and enact in a single document many disparate strands.

    Am I too cynical but I sometimes wonder if governments like completely unintelligible bills as they attract less scrutiny than clarity which allows people to see problems and object?

    P.S I watched some of Lord Renton’s Committee last night and one of the peers – I forget who – suggested that the Lord’s Hansard has more views than the Commons, this caused some surprise and then they carried on without further comment. I’ve just looked on the Hansard site but can’t find any figures given. Does anyone know if the statement is true?

  29. lordnorton
    02/04/2009 at 5:18 pm

    Senex: Thanks for an interesting contribution. I take your point about appying more stringent tests in terms of candidates, but I am not sure how you would enforce these. I was getting ready to diagree strongly with your final paragraph – at least until I read the final sentence!

    Croft: Thanks very much for that. I must confess I share some of your cynicism; I very much agree with your comment about consolidation bills. On your postscript, I have already started pursuing the point about the number of views of Lords’ Hansard; I plan to follow with a Question to get some data.

  30. Senex
    02/04/2009 at 7:50 pm

    Lord Norton: I was really talking about neophytes entering the Commons workplace.

    There is another problem of candidate selection that concerns legislation. We have a generation coming up that is increasingly risk-averse compared with earlier generations.

    As children they have not played outside because parents consider it too risky. When they do they are sheltered from ‘dangerous’ play because they might get hurt. In fact ‘dangerous’ play is where every child learns its common sense. This it seems is what society wants and politicians are encouraging it because they seek to manipulate the electorate by pandering to their irrational fears especially when it comes to election time.

    As adults these people are going to enter Parliament, indeed many may already be in place and it is going to make them amenable to increased legislation to remove these fears.

    How do we deal with it? Does the PPC process allow through candidates irrespective or do we seek out qualities that are resistant to it? Involvement with a team sport such as cricket would be a good indicator of somebody immune to such mind games.

  31. 05/04/2009 at 2:51 am

    This is an excellent post, excellent comments too. 🙂

    In my opinion the problem is tied into the current crisis of confidence in the press. One of the key reasons Labour one that landslide majority, back in ’97, was support of the tabloid newspapers, particularly Rupert Murdoch and The Sun.

    Watching the Labour government’s actions recently — on ‘knife-crime’, Sir Fred Goodwin and such — shows this has not changed. The government still believes tabloid newspapers are the way to the nation’s heart. As discussed in that previous post, times have changed.

    As the ‘papers get more desperate, and Labour’s approval rating sinks, Labour seem to cling to the notion of appeasing the tabloids ever more.

    This, in my opinion, is where the ‘something must be done’ attitude comes from.

    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.

    Sorry to bring this up again, but perhaps guidelines on good legislation would help. Could Parliament have, as part of the country’s constitution, a simple set of principles that all new laws have to measure-up to? For example:

    Rule 1. A bill must be well prepared. A test for this is to grab any random English person off the street, if they understand the bill within 30 minutes then it’s ready to rock-and-roll, otherwise start again or split the bill into smaller, easier-to-understand parts.

    Rule 2. A bill must include primary and secondary evidence, from credible sources, showing its effects outside the Westminster Village are expected, desirable and necessary. Failure to attend to this important detail automatically grants Lord Norton the right to give the bill’s sponsor a stern lecture, for at least 30 minutes but not longer than 4 hours.

    Rule 3. A bill must be subject to pre-legislative scrutiny, up to a maximum of X days before MPs may start to hassle parliamentary counsel.

    I am being a little silly with these principles, but hopefully it gets the point across.

    It may also be an idea to have MPs be ‘maintainers’ of the bills they sponsor. Responsibility could fall to them to check back on the performance of their own legislation. That idea falls down if they’re voted out of office, however!

    Anyway, ideas are cheap, both these thoughts require a change in attitude in the Commons that does not seem to be forthcoming!

    Am also double-chuffed that I made the same ‘something must be done’ argument as you Lord Norton, a short while ago. Great minds think alike! 🙂

  32. lordnorton
    05/04/2009 at 2:20 pm

    Senex: You raise an interesting point; the connection you hypothesise may lend itself to an interesting research project. I take your point about generating a risk-averse culture; it is a culture that is starting to permeate institutions.

    Liam: Thanks for your comments. I would agree that politicians are influenced unduly by the print media – unnecessarily so. The mass media do not have the impact on voters that politicians think they do, but because politicians believe that they do have an impact it influences their behaviour. On your suggestion regarding a checklist, this very much ties in with my thinking and that of others. Indeed, it came up in evidence to the Constitution Committee last week in its inquiry into emergency legislation. We had an excellent session with Professors David Miers and John McEldowney, and one of the points they made was that in dealing with emergency legislation there is a need for a template and a checklist. The need for a checklist in examining bills for their constitutional implications was something suggested a few years ago by Professor Dawn Oliver; she penned an article on the subject for ‘Public Law’. This is something that I think is well worth pursuing. If legislation is to be introduced, then I think it needs to meet certain criteria. Your first suggestion may create practical problems, but I think the basic point you make is a perfectly sound one. Your second criterion is also very pertinent; I am not sure about me giving sponsors a lecture (!) but the need to have examined the likely effects is important; it happens already to some extent with regulatory impact assessments and there are calls to extend the practice. Your third criterion is also relevant: if there is no pre-legislative scrutiny, there needs to be a sound case made; and if there is pre-legislative scrutiny there needs to be time for the relevant committee to do its job and time for the House to consider its recommendations.

  33. 05/04/2009 at 9:46 pm

    Thanks for the reply Lord Norton, it’s gratifying to hear greater minds than my own have already come up with these ideas.

    Frankly, the bits about you giving sponsors a lecture and such, was an attempt at humour. The basic points were serious, however. About the first criterion, I wouldn’t expect a bill’s sponsor to actually get someone from the street, it’s more something that the author(s) or sponsor of a bill should keep in mind. A bill being over-complicated should certainly be a reason for members of either house to reject it though.

  34. lordnorton
    06/04/2009 at 5:34 pm

    Liam: I rather guessed the suggestion of giving sponsors a lecture was not designed to be taken too seriously! Your point about rendering a Bill in terms that are easy to understand is very pertinent. Parliamentary counsel do now attempt to make legislation as intelligible as possible, consistent with the need to ensure legal certainty. Part of the problem is the form in which legislation is constructed. The language may be straightforward but if you do not know how the provision compares with earlier legislation that it replaces, then it is difficult to make much sense of it.

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