Legislating without effect

Lord Norton

44080After Parliament has passed a Bill, it receives Royal Assent and becomes an Act of Parliament.  Provisions of an Act take effect upon Royal Assent unless provided otherwise.  In practice, it is common to provide otherwise, with ministers being empowered by order to make commencement orders, stipulating the date on which the provisions, or particular provisions, shall come into force.  I have previously drawn attention to the nature of such orders.

I recently initiated a Question for Short Debate (QSD) to draw attention to the problem of such orders.  There are a plethora of legislative provisions that have never been brought into effect.  Of Acts passed since 1997, no fewer than 147 have provisions that have never been brought into effect.  There is one Act that is uncommenced in its entirety.  This represents not only a major waste of parliamentary time – both Houses passing provisions that never have effect – but is also confusing to the public.  If something is in an Act of Parliament, people quite naturally think it must therefore be the law.  In my view, if provisions of an Act are not commenced within five years of the Act being passed, the provisions should cease to have effect.  That would not only concentrate the minds of ministers, but also tidy up the statute book.

You can read the short debate, held in Grand Committee on 7 November, here.

13 comments for “Legislating without effect

  1. Gareth Howell
    17/11/2013 at 4:34 pm

    Could hardly be worse than bringing back in to effect Acts passed a hundred years ago and not used since, where the provisions were irrelevant!

  2. Honoris Causa
    18/11/2013 at 10:20 am

    if provisions of an Act are not commenced within five years of the Act being passed, the provisions should cease to have effect.

    So if somebody is particularly interested in one aspect of the law or the act,
    he may, while doing his research,find an “uncommenced provision” from 50 years ago, and commence it?

    Mathematicians, by way of example, often get no thanks until 100 or even 200 years later, and then….. they are attributed the praise for the depth of thought, and discovery of what they did, non-euclidean Elliptic geometry (n-dimensions)being a case in point.

    Merely because no chairman sits with a committee within five years to deliberate regularly upon the minutiae of the particular act. A provision is there merely to make it possible, but not necessary, for such a committee to have such powers. People do chatter.

    Law taxonomy may even have a special place for such unused provisions.
    In these days of digital files and folders, ‘forgetit’ might be one folder name or ‘binit’ another. Law is described as having a taxonomy, as per botany, zoology, and other biological sciences, because it is considered to be a “living” thing.

    Lord Norton is yet again trying to trim the toenails; they will grow again.

    Whether different category classes are available in other legal systems
    I would not know, or whether the English law term “taxonomy” prevails I shall have to check on. Dewey would have a numbering ‘system’. Library of Congress a different category ‘system’ again, probably the best one.

  3. 18/11/2013 at 10:27 am

    A wider backcloth is available there.

  4. LB
    18/11/2013 at 11:43 am

    Which toe nails is he trying to trim?

    he’s been promising a bill on getting rid of the corrupt peers. So far, not one law has passed. We’ve now got them back on the take at our expenses, to pay back the expenses tax free that were nicked.

    There’s no intention of doing anything about the corruption. Just as there is no intention of letting out how many days they attended so people can compare that against their claims.

    • maude elwes
      19/11/2013 at 10:49 am

      Well, LB, get ready for a paralytic spasm.

      This morning the news tells us, those in the Commons will have the extra ability to appoint a persons of their choosing to carry out detailed advice and administration of their work.

      I looked over the net this morning in the hope of finding out more about this and to get clarity on the roles and ‘power’ these ‘advisers’ will have. As well as what pay they are likely to receive. Unelected, of course, and not scrutinised by public, therefore no knowledge of what they will be pushing for us to collectively swallow.

      Where are these advisers to come from? Are they British, or, as so many advisers in our political sphere are, foreign? USA being a big contingent in advising our representatives on what we in the UK need to submit to.

      Here is what I found.

      http://www.publications.parliament.uk/pa/cm201314/cmselect/cmpubadm/515/515.pdf

      If those we elect are unable to advise themselves on what it is we are paying them to do, what is their purpose? Supposedly, in a ‘democracy,’ your representative or advocate is there to put what the electorate decides is acceptable for them to follow, not the other way around.

      Something untoward is going on here and it’s time to stop and take note. Who are we being led by? Anyone want to take a guess? There is more to this than meets the eye.

      Is this another form of corporate takeover or a coup?

  5. Rolo Tamasi
    18/11/2013 at 2:34 pm

    Keeping politicians busy but having no effect is in everyone’s interest.

  6. Peter Hargreaves
    18/11/2013 at 4:05 pm

    More attention could be paid to this as a Bill is passing its way through Parliament. Suppose that an Act states:

    1. The Secretary of State shall …..

    2. This Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

    If Parliament really requires the Sec of State to do what section 1 requires then it must be made clear that section 1 commences when the Act is passed. Otherwise, a Sec of State who does not wish to do what section 1 requires will be able to avoid it by not commencing the legislation.

    It certainly seems odd for Parliament to express its will via an Act and then leave it to Ministers to, in effect, override that will.

    Of course, it depends where one sees power as resting. is it with Parliament or with Ministers. Often – too often – the latter nowadays.

  7. tizres
    18/11/2013 at 5:07 pm

    Lord Norton: commencement orders are, to use the word du jour, nightmares for those of us not blessed with a law degree, nor the time to follow every SI (and I thought the last gvt was bad)* and where it may lead.

    The Law Commission with the Scottish Law Commission (by way of the Law Commissions Act 1965) have a remit to “modernise and simplify the statute book”, as set out in their Statute Law Repeals Reports**, most recently resulting in The Statute Law (Repeals) Act 2013 which repealed whole or parts of 867 Acts. Notable in their reports is the lawyerly commitment to research and consult, producing jolly good reads for lawyers and insomniacs. Check out the latest and peruse the Statutes of the Exchequer argument; Shakespeare shrewdly started with Henry IV.

    Are, then, the Law Commissions not up to the job or am I missing something? Is creating a new Act the only way to repeal parts or the whole of another Act, and if so, should another be sought? Can a commencement order be amended, and if so, how frequently does this happen?

    * http://www.legislation.gov.uk/uksi
    ** http://lawcommission.justice.gov.uk/publications/statute-law-repeals-reports.htm

  8. Gareth Howell
    19/11/2013 at 11:11 am

    I wonder how Blagger defines corrupt peers?
    The money turnstile is there for all to use.
    Isn’t it done with a smart card issued to everybody.

    The “provisions” are only dealt with if some clever clogs starts the necessary committee/organisation to deal with them. The minister would have to understate not overstate, tizres.
    Bit like an enquiry where an enthusiastic smartass starts to pontificate, and gather others around him, to discuss the importance of it all.

    Is Machiavelli in the audience?

  9. Will Macgregor
    22/11/2013 at 3:18 pm

    Commencement orders can be a nightmare for those of us blessed *with* a law degree. My view on this is that Parliament should insist on writing a date onto the face of the Act but give the Secretary of State power to delay commencement by affirmative order where necessary. At least then Ministers are forced to take a positive step in Parliament to prolong commencement rather than simply sitting on their hands.

    Alternatively pass an Act requiring Ministers to report annually on all uncommenced Acts.

  10. maude elwes
    26/11/2013 at 12:05 pm

    Uncommenced Acts should be discarded after 18 months. And each period of administration should be sure to rid the country of them by the time of an approaching next general election.

    Any that are felt worthwhile can then be reintroduced by the next administration. That way, the new government is not bogged down with old rubbish left by the previous crowd.

  11. Daedalus
    04/12/2013 at 11:52 am

    Sometime the navigation of a narrow channel is blocked by a shipwreck. Sometimes it’s a poorly designed ship that sinks in such an awkward place. Is the 1928 Easter Act such a ship wreck one that prevents another attempt at an Easter Act? If so it would be a tactical way of saving Parliamentary time?

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