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A matter of impossibility

Posted by Richard Monday, May 16, 2005

In today's Daily Telegraph, there is a perceptive piece by Philip Johnston in his "Home Front" column, making the case for "fewer better laws".

He records that tomorrow, the Queen will open the new session of Parliament and usher in "another 18 months of frenzied law-making" and, after cataloguing some of the more egregious failures of previous laws, refers us to a report published today by the Hansard Society which suggests that a review of legislation should be built into the system, with automatic scrutiny to see whether a particular Act has actually achieved what was envisaged.

It points out, says Johnston, that post-legislative scrutiny "is virtually non-existent… Parliament tends to regard its duty as completed once a Bill has gone for Royal Assent", with the Society concluding that:

There are strong grounds for believing that more regular and systematic post-legislative scrutiny would help to identify and rectify problems in flawed legislation. Furthermore, the knowledge that laws were to be subject to sustained monitoring may have a deterrent effect, making it less likely that laws unfit for their purpose would be passed… Rather than leaving such monitoring essentially to chance, it should become a core function of Parliament.
Concludes Johnston, Lord Woolf, the Lord Chief Justice, last week called for a "closed season" to be declared on sentencing legislation, because there was simply too much for the judiciary, the police and others to absorb. This is not to adopt an absurdist position that states that the Government must never legislate; it is to ask our law-makers to recognise that simply passing new regulations will not necessarily achieve what all previous legislation has failed to bring about.

Therein lies an eternal truth and, if it applies to the UK parliament, it applies in spades to the European Union. Much of the problem lies in the very perception of the function of a parliament and its members who are so often described – as in Reuters bulletins, to name but one source – as "lawmakers".

The essential function of a parliament is, in fact, to scrutinise the executive and it is that body which actually makes the laws. The parliament is supposed to approve them, but that should be a conditional approval and the review function should then be built in, as is suggested by the Hansard Society.

The trouble is that, on a national scale, this is difficult enough to do and it is not surprising therefore that our own institution is failing in that task. To ask for it to be done on a near-continental scale, with 25 countries involved, each with their own peculiarities, is nigh on impossible.

But, if review is an essential part of the legislative process and one concedes its impossibility on an EU-wide scale, one also has to concede that law-making on that scale is fundamentally flawed. Then, of course, that invites the obvious conclusion, that the supranational experiment is equally flawed. However, for the Euro-luvvies to admit that is, as we all know, also impossible.