Sunday, October 03, 2004

The legislative process as it is and as it should be #2

We have seen the theory, what is the practice?

Problems on the domestic front:

1. Over the years the House of Commons has lost its view of itself as legislator and, more importantly, as the legislative part of the constitutional structure, whose task it is to hold the executive to account and to restrain the executive’s pretensions to power. This process has been exacerbated by the unusually large majority the Labour Government has commanded since 1997, by its reluctance to deal through the House and by the obvious incompetence and political ignorance among most of that huge Labour intake.

2. The preponderance of Enabling Acts – a very large proportion of the legislation that now goes through Parliament is little more than primary legislation whose purpose it is to enable subsequent secondary legislation through Orders in Council a.k.a Statutory Instruments (see above). Examples of this are the contentious Civil Contingencies Bill, now at the Committee stage in the Lords and the Animal Welfare Bill, at present in draft form and promised to be in the Queen’s Speech on November 23.

3. An even greater preponderance of Statutory Instruments or Orders in Council. Intended to deal with reasonably straightforward administrative measures, these have become tools of complex legislation that, by being secondary, mostly go unexamined and undebated by either House. Each Enabling Act produces a raft of secondary legislation; many of the EU Directives come in as such. Around 4,000 SIs are put into place every year.

4. Poor drafting of Bills – either because of lack of attention in the relevant parts of the civil service or because of the pressure of the enormous legislative burden but Bills in the last few years have been very poorly drafted with many loopholes discovered only once they are debated. As, on top of that, the House of Commons does not exercise its necessary functions (see above), Government Bills go through to the House of Lords in a very unsatisfactory fashion. The unpaid and unelected House of Lords still considers its duty to go through a detailed analysis and discussion of each piece of legislation. The Government, too, finds at this stage that it needs to amend Bills.

There have been occasions in the last five years when over two hundred government amendments appeared at the Report stage in the Lords. During the first day of the Committee stage of the Civil Contingencies Bill, several amendments were withdrawn with a clear warning to the Government to deal with those particular issues or the amendments will be moved and the House will be divided with the amendment quite possibly passing. That would mean the usual kicking of the Bill back and forth between the two Houses in the last few hours of this Parliamentary session and the usual vociferous though ignorant cries of complaints about unelected peers, who are actually doing their job, preventing the elected House from exercising its (though, in reality, the Government’s) will.

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