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Sunday, 19 December 2010

Legislation by Threat

1. Two Bills in very different contexts in the UK Parliament have raised the same question in relation to the proper effect of proposed legislation.
2. The Superannuation Bill was introduced expressly not for the purposes of achieving a change in the law itself, but in order to compel the Civil Service Unions to negotiate changes to the Compensation Scheme under threat of the imposition of an "even worse" legislative solution.
3. The Cala Homes saga in the planning law context has seen the Government requiring local authorities to take account now of the Government's intention to abolish regional strategies through the Localism Bill.
4. The traditional UK view has been that until legislation is both introduced and passed by Parliament, neither the courts nor anyone else should have to give it any weight.
5. The obvious danger of requiring people to take account for legal purposes of the Government's intention to legislate is that it is a short path to legislation by Ministerial diktat - why not simply issue orders from Whitehall, and tell everybody to obey them, under the threat that retrospective sanctions will be imposed on people who do not "take account of the Government's intentions" to change the law. Parliament could be rendered almost unnecessary very quickly.
6. This is the kind of issue relating to the structure and use of legislation that legislative drafters are well-placed to consider.
7. Does anyone else agree with me that there is a thin-end-of-the-wedge issue here, and that in a Parliamentary democracy it is very dangerous to seek to give draft legislation any kind of legal or real-world effect?