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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?


  1. A related point here. Acting as a consultant drafter I was asked to sign a contract. The contract included a standard clause to adhere to all legislation in force, but then it went on to require adherence to all draft laws and regulations.
    It would be foolish to abide by laws which are in draft. Who knows what they may contain? They have not been subject to proper parliamentary scrutiny. My client was sensible enough to agree that that particular clause be struck out.
    You can't properly expect people to "take into account" something which is not law. It is a good idea to give advance warning (by consultation processes, or a long lead in before commencement) of a change in the law. But it would be wrong, in my opinion, to require compliance before a Bill is enacted. Only once it is enacted does the law become settled.

    Ronan Cormacain

  2. I agree with you both. Legal instruments not passed through PArliament [yet] lack democratic legitimacy, they are not binding on anyone, and they simply do not exist within the legal system. This is all the more important in the context of a parlimentary system like the UK [as opposed to a constitutional system]. What one would expect [demand really] is that government ensures that their draft laws are not in clash with other draft laws or with known planned drfat laws. But this is clearly an obligation imposed to government, and not the rest of us!

  3. Very interesting article and very interesting commentary. FAR cost accounting standards