Parliamentary Law Making (OCR A-Level Law): Revision Notes
Advantages and Disadvantages of the Legislative Process
The legislative process in the UK has been subject to significant criticism and debate. Sir Henry William Rawson Wade QC FBA notably described the parliamentary system as being in a state of acute malfunction, producing laws which are excessive in quantity and deficient in quality. This critical evaluation highlights the importance of examining both the strengths and weaknesses of how Parliament creates legislation.
Overview of the legislative process
The legislative process refers to the procedures and mechanisms through which Parliament creates statute law. While this process aims to produce well-considered, democratic legislation, it faces several practical challenges that affect both the quality and quantity of laws produced. Understanding these strengths and limitations is essential for evaluating the effectiveness of parliamentary law-making.
The legislative process is meant to balance two competing goals: producing democratic legislation that reflects the will of the people, and creating high-quality laws that are clear, effective, and well-considered. The tension between these goals underlies many of the challenges discussed in this document.
Democratic legitimacy and representation
The democratic advantage
Parliament creates law through a democratic process involving elected representatives. The House of Commons consists of Members of Parliament who are directly elected by constituents, giving them a mandate to legislate on behalf of the people. This democratic foundation provides legitimacy to the laws that Parliament passes, as they theoretically reflect the will of the electorate.
Limitations of representative democracy
However, the democratic nature of parliamentary law-making faces significant criticism. True direct democracy, where every citizen votes on every law, would be impractical in a modern state. Instead, the UK operates as a representative democracy, where elected officials make decisions on behalf of voters.
Even this representative model is only partially democratic due to the unelected nature of the House of Lords. Members of the Lords are appointed rather than elected, meaning they have no direct democratic mandate from the public. Despite this, they retain significant power to scrutinise, amend, and delay legislation, which raises fundamental questions about the fully democratic character of the law-making process.
Volume and accessibility of legislation
Excessive legislative output
One of the most significant criticisms of the modern legislative process is the sheer volume of legislation produced. Between 2007 and 2012, Parliament passed 215 Acts, creating approximately 20,000 pages of new laws. This excessive quantity raises serious concerns about whether sufficient time and attention can be devoted to each piece of legislation.
Problems with awareness and implementation
The volume of legislation creates practical problems for legal professionals and the public alike. These issues extend beyond mere quantity to affect the proper implementation and enforcement of the law.
Case Study: R v Chambers (2008)
This striking case demonstrates the real-world consequences of excessive legislative output:
The Problem: The law on tobacco smuggling had been changed seven years previously, yet there had been 1000 prosecutions in the meantime under the old law.
The Discovery: Legal professionals only discovered this error during the case proceedings, revealing that neither prosecutors nor courts were aware of the legislative change.
The Implication: Changes in the law are not well publicised or understood, even by those responsible for enforcing it. This raises serious concerns about the fairness of convictions and the effectiveness of the legislative communication system.
Expert input through delegation and the Law Commission
Advantages of expert involvement
Law-making powers can be delegated to other bodies, allowing complex legislation to be drafted by relevant experts in specific fields. This delegation ensures that technical or specialised areas of law benefit from appropriate expertise rather than relying solely on MPs who may lack specialist knowledge.
The Law Commission plays a crucial role in proposing new legislation. This body consists of highly specialised lawyers who conduct detailed consultations before making recommendations. The Commission's work aims to produce simpler, clearer legislation that addresses identified problems in the law.
The Law Commission's approach typically involves:
- Conducting thorough research into existing legal problems
- Consulting with stakeholders, academics, and practitioners
- Drafting proposed reforms with careful consideration
- Publishing detailed reports explaining the rationale for changes
This methodical process contrasts sharply with the rushed, politically-driven law-making that sometimes occurs in Parliament.
Limitations of expert advice
Despite the valuable input from the Law Commission, Parliament is not bound to follow its recommendations. This became evident in relation to the defence of loss of control in the Coroners and Justice Act 2009, where Parliament departed from the Commission's advice. This freedom to ignore expert recommendations can undermine the quality of legislation and waste the resources invested in Law Commission research.
Parliamentary scrutiny
Strengths of the scrutiny process
Bills undergo multiple stages of examination before becoming law, providing several layers of scrutiny that are designed to improve legislative quality.
Consultation papers allow all interested parties to become involved in the drafting process. This inclusive approach enables organisations, professionals, and members of the public to contribute their views and expertise.
Parliamentary stages involve detailed examination by MPs and Lords from different political parties. This multi-party scrutiny means that legislation faces challenges from opposing political persuasions, creating a more balanced and thorough examination process. The involvement of different perspectives helps identify problems and improve the quality of legislation.
Weaknesses in scrutiny
Despite these theoretical advantages, the scrutiny process faces several practical problems that significantly undermine its effectiveness:
Time constraints: The restrictive parliamentary timetable often forces governments to rush legislation through Parliament without adequate consideration. The Dangerous Dogs Act 1991 is a notable example of legislation that was hastily passed in response to public concern, resulting in poorly drafted and ineffective law. This demonstrates how political pressure and time limitations can override the need for careful scrutiny.
Portmanteau Bills: There is an increasing tendency to combine several distinct areas of law into one lengthy Bill. These Portmanteau Bills reduce the opportunity for detailed expert scrutiny of individual provisions.
Examples of Portmanteau Bills:
Justice and Immigration Act 2008
- Contains law relating to self-defence in section 76
- Combines immigration matters with criminal law provisions
- Makes focused expert scrutiny difficult
Coroners and Justice Act 2009
- Includes controversial laws relating to manslaughter in sections 52-6
- Bundles together coroners' procedures with major criminal law reforms
- Prevents detailed examination of each distinct area
The Problem: By bundling unrelated legal topics together, these Bills prevent committees from conducting focused, expert examination of each area. Specialists in criminal law may not be experts in immigration law, yet both are included in the same Bill.
Committee stage problems: The committee stage, designed to provide detailed line-by-line examination, suffers from several deficiencies:
- Committee membership is often not sufficiently specialised in the subject matter
- Committees tend to divide along party political lines rather than on the merits of the legislation
- Insufficient time is allocated to cover the entire Bill properly
These factors mean that even at the committee stage, scrutiny may be superficial and politically motivated rather than thorough and objective.
Accessibility and clarity of legislation
Improvements through explanatory notes
Since 1997, all Acts of Parliament are accompanied by explanatory notes. These documents provide helpful guidance for lawyers, judges, and the public trying to understand and apply new legislation. They explain the purpose of the Act, summarise key provisions, and provide context that aids interpretation.
Explanatory notes represent a significant improvement in legislative accessibility. They provide:
- Plain English summaries of complex provisions
- Background information about the Act's purpose
- Guidance on how provisions are intended to work in practice
- Cross-references to related legislation
However, these notes are not legally binding and cannot override the actual wording of the Act itself.
Persistent complexity problems
Despite explanatory notes, the language used in many Acts remains excessively complex. Parliamentary draftsmen attempt to provide for every possible eventuality, resulting in dense, technical language that is difficult for non-specialists to understand. This complexity undermines the accessibility of the law and creates barriers for those seeking to understand their legal rights and obligations.
Evaluation summary
The legislative process in England and Wales demonstrates both democratic principles and practical shortcomings. While Parliament's elected nature provides legitimacy and the multiple stages of scrutiny offer opportunities for improvement, the reality often falls short of the ideal. Excessive legislative volume, time pressures, political considerations, and complex drafting all contribute to Sir Henry Wade's assessment of a system producing too many laws of insufficient quality.
The challenge for Parliament is to balance the need for thorough, expert-led law-making with the practical demands of governing a modern state. Without addressing the fundamental problems of legislative volume, scrutiny quality, and accessibility, the concerns about the effectiveness of the parliamentary law-making process will persist.
Key Points to Remember:
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Democratic legitimacy is partial: While MPs are elected, the unelected House of Lords limits the fully democratic nature of the process.
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Legislative overload is a serious problem: 215 Acts creating 20,000 pages between 2007-2012 suggests quantity is prioritised over quality, as evidenced by cases like R v Chambers (2008).
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Expert input is valuable but not binding: The Law Commission provides specialist advice, but Parliament can ignore it, as seen with the Coroners and Justice Act 2009.
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Scrutiny is compromised by practical constraints: Time pressures, Portmanteau Bills (combining unrelated topics), and party political divisions reduce the effectiveness of parliamentary examination.
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Accessibility improvements remain insufficient: Explanatory notes help, but the complex language of legislation continues to create barriers to understanding the law.