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Monday, 27 September 2010

The Increasing Scourge of Nonsense Legislation

1. When I joined the Office of the Parliamentary Counsel about 20 years ago I was taught that legislation ought to achieve something.

2. Now, the battle against the use of legislation for mere advertising or government propoganda seems almost lost.

3. I wrote about this in the New Law Journal recently, and the text of my article is set out (with their kind permission) below.

4. What is the position in your jurisdiction? Have you lost the battle yet, or is it still in progress?

5. What can we as drafters do to help each other in the remaining battles to keep legislation "real"?

6. Do you agree with the views in my article below? Or do you think I am overstating the case - or simply wrong?

7. Do you have other examples of bogus legislation?

8. In other words, all thoughts welcome!

Daniel


It is a fundamental principle of legislative drafting that each legislative proposition must confer a right or impose a duty and be enforceable. The principle has been disregarded with increasing frequency, with Acts containing material that is at best merely administrative and at worst wholly nugatory. As a mark of how far the trend has gone, in 2010 Parliament has enacted two entire Acts without a single genuine legislative proposition.

The Anti-Slavery Day Act 2010 originated as a private Member’s Bill. It starts with a superficially plausible legislative proposition – “The Secretary of State shall by order made by statutory instrument specify a date which shall be observed each year as Anti-Slavery Day.” But how is the day to be observed, and by whom, and what will happen if they don’t? As an advertising campaign the Act may achieve something (although probably less than a well-targeted educational campaign); but as law it is a non-entity.

Of course, one cannot expect private Members to draft sound law: their job is to raise important issues, and to leave the Government to deal with them effectively. Being responsible for the rule of law and the shape of the statute book, the Government should have either blocked the Bill or turned it into real law.

The second piece of non-law on the 2010 statute book is entirely a Government production. Not only is the Fiscal Responsibility Act 2010 entirely devoid of any genuine legislative proposition, but half-way through it gets nervous that it may perhaps have created some real law by mistake, and quickly tells the courts that on no account are they to take it seriously: “… the fact that— (a) any duty in section 1, or (b) any duty imposed by an order under section 2, has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.” (s.4(3)). All of which makes the Act void for risibility.

If risibility were the only problem that would be fine: we can all do with a laugh or two nowadays, although it is rather sad if we have to resort to getting it from the statute book. But non-legislation of this kind seriously damages the rule of law, in two ways.

First, at a time when people’s respect for law-makers is wearing thinner with each passing scandal it is increasingly important that we should have respect for the law itself. But how can I respect a law that tells me to do something about slavery, but doesn’t tell me what? And how can I respect a law that requires the Treasury to comply with a vague duty about a fluid concept, and whose only descent into clarity is to say that it doesn’t matter if the duty is ignored?
If people know that legislation imposes real duties that will be enforced with real sanctions, there is a reasonable chance that they will respect it. If not, statutes become like the teacher in the playground who, having abandoned all hope of inspiring real discipline twenty years ago, continues to shout random orders about litter, bullying and other matters without expecting anyone to take any real notice.

The second damage that nonsense legislation does to the rule of law is the strain that it places on the judges. The Child Poverty Act 2010 requires the Secretary of State to set targets by reference to a series of figures that, if practically meaningless, are at least independently meaningless and therefore praiseworthy; having set the target, the Government have a duty to meet it and if they fail to do so then, wait for it, they “must explain why it has not been met”. Strong stuff! But what is a court to do? If a teachers’ union challenges a Government decision on the grounds that it will contribute to a projected failure to meet child poverty targets, are the courts to say “no case to answer, because Parliament never meant the targets to be taken seriously”? If they do, they contribute to the breakdown in respect for legislation. But since that is the reality, any legal effect that the courts assign will necessarily be not a discovery of the legislative intent but the kind of judicial law-making that our judges rightly and importantly aim to avoid.

There is also always the risk that nobody will spot until a late stage in the process that a piece of law was never intended to have any effect – see, as a cautionary tale, albeit one that is the fault of Parliamentary procedure rather than the Government, R. (Friends of the Earth) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin).

Slavery, fiscal responsibility and child poverty are too serious to be trivialised by the enactment of pointless law. Governments and Parliament have a range of options for action, with legislation being appropriate only when the problem can be solved by creating a right or duty with content and sanction. Now that back-benchers have increased their control of time spent on legislation in Parliament with the establishment of the new Backbench Business Committee, perhaps they should also determine not to allow laws to pass through the House unless their journey is really necessary.

Daniel Greenberg was Parliamentary Counsel (UK) from 1991 to 2010 and is now parliamentary counsel within Berwin Leighton Paisner’s Parliamentary team and the editor of Craies on Legislation.

7 comments:

  1. I will speak as a Greek and EU lawyer here. In my jurisdiction there is absolutely no appreciation that legislation is a tool for regulation. Basically, policy makers [usually a Minister] will simply ask for a law to respond to newspaper reports in order to either calm down the public or to show off some bright new idea. There seems to be no appreciation of the fact that legislation is a solution of last resort, or that legislation must have reasonable and achievable poicy objectives. There is no real set of objective criteria for measuring whether the law has achieved its objectives. And so there is no monitroing of effectiveness. As a result, legislation is ineffective. Classcal example: an 8 article long draft law on the amelioration of Greek legislation within which the drafter introduces 3 committees to supervise whom? and what? and how? and to what end????

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  2. Although I broadly agree with Daniel, let me take a contrary view for a moment.
    We need to recognise that legislation fulfils two functions. Its main function is to make law and as such it should only contain legal rights and duties etc, as set out above. However, in practice, it is made by politicians and must pass through a political process. As such, it must satisfy the political and presentational needs of that process. We all know that concessions sometimes have to be made here, that sometimes the optimum drafting solution may have to be dropped for a solution that is only satisfactory in drafting terms, but which is politically important.
    Two examples here are in the names of statutes. In Australia there is a Roads to Recovery Act 2000 - a piece of legislation dealing with funding for roads. The name is pure propaganda, it is the name of the political policy behind the Act. It really should be called the Roads (Funding) Act 2000. I think that is a battle that the drafter lost.
    If you think that this is bad, then you will surely retch when you learn of the origins of the USA PATRIOT ACT 2001. It is already purely a slogan and as such should not be the title of a piece of legislation. However, it gets worse, not only is it a slogan, it is also an acronym. It actually stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001. It isn't nonsense legislation, but it does have a nonsense title and it does detract from the gravity and neutrality of the law.

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  3. Ronnie MB, Falkland Islands AG's Chambers10 March 2011 at 20:00

    A more trivial example (which I e-mailed to Daniel a little while back) is the National Horse of Canada Act 2002. After a preamble reciting the history of the Canadian horse and a short title provision, the "substantive" provision of the Act reads as follows:

    "The horse known as the Canadian horse is hereby recognized and declared to be the national horse of Canada."

    Further comment on that seems superfluous!

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  4. Yes I agree - and oddly enough so do most politicians in theory. When I appeared last year before the National Assembly for Wales' Constitutional Affairs Committee we touched on nonsense legislation and they all agreed with me; and when their report came out last month I noticed that it picked up on the point and said that they all agreed with the need to keep legislation meaningful, but they slipped something in about "recognising the value of" legislation to promote awareness of things, or something along those lines. Which I think amounts to more or less "in theory we agree that legislation should do something, but we reserve the right to depart from that rule whenever we feel like it".

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  5. dear Daniel!
    I am Rashid from Pakistan, Azad Kashmir. i am law graduate and have practiced law for almost 3 years. I am working in law department of Azad Jammu and Kashmir as section officer legislation since august 2010 after passing public service commission examination. i desire my LLM in Advanced Legislative Studies from Institute of Advanced Legal Studies. How I can apply and what are requirements. Can I get fee details for the course. Please help me out.

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    Replies
    1. Dear Rashid - you will find all the details you need at http://ials.sas.ac.uk/postgrad/courses/cls_MA.htm.
      With good wishes,
      Daniel

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    2. dear Daniel
      thanks a lot.
      regards
      Rashid

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