The growth of legislation
222. We have already touched upon the incentive
for Ministers to get their "big bills" before Parliament.
There is also, as Mark Fisher observed, the "something must
be done"—and that the Government must be seen to have
done something—mentality which also generates legislation.[102]
He also argued that target setting by Government has a similar
effect; it passes legislation so that "it can demonstrate
that it has met its targets, that it has done things for all these
different areas, which is disastrous" (Q 299).
223. It is not just Ministers who wish to get
bills enacted. Departments are the biggest generators of bills,
with most bills essentially falling in the category of what Ivor
Burton and Gavin Drewry once described as "administration"
as distinct from "policy" bills.[103]
Departments have legislation lined up, often ready to go before
the Legislative Programme Committee; if unsuccessful, they may
join the list of hand-out bills ready for back-benchers successful
in the ballot for Private Members' Bills. The significant thing
about such bills is not their number—they have not become
more numerous over the years—but rather their volume. Bills,
in Robin Cook's words, are "getting much, much fatter"
(Q 135). It was quite common before the 1990s for less than 1,500
pages of law to be enacted in a parliamentary session; nowadays,
it is not unknown for the figure to be nearer 3,000.[104]
Departments appear to want to make use of their limited legislative
opportunities to cram in as much as possible. The move to greater
regulation also encourages greater detail, though much of this
is embodied in the growing volume of secondary legislation. This
also points to another feature of the nature of legislation: it
is not only getting much bigger, it is arguably becoming—as
Paul Tyler noted—more complex (Q 295).
224. We are concerned that this growth has taken
place without being matched adequately by Parliament's capacity
to scrutinise it effectively. There have been various changes,
which we have welcomed, but not enough has been done to enable
Parliament to cope with this burgeoning mass of law.
225. We are not concerned here to analyse and
comment on the content of all the legislation brought before Parliament—a
massive exercise in itself—but we do share the concerns
expressed by some witnesses as to the need for such a mass of
legislation. This concern was expressed in various ways, some
idealistic, some more practical. Mark Fisher told us: "A
Parliament of quiet would be, I think, for the public good but
I think it is wholly unrealistic to expect it to come about"
(Q 299).[105] Douglas
Hogg was keen to limit the size of bills and for them to focus
on particular problems rather than try to cover the subject in
its entirety (QQ 298, 303). Various witnesses, as we have already
mentioned, commended the use of "sunset" clauses to
limit the life of legislative provisions.
A "culture of justification"
226. We share with Mark Fisher the view that,
whatever the ideal, it is not likely to be achieved in practice.
However, we do believe that the recommendations we have advanced
will serve, if not to stem the flow of rushed and over-weight
legislation, at least to inject greater cause for reflection.
We hope that our proposals will help engender the culture shift
achieved by the Joint Committee on Human Rights. As Jean Corston
MP told us, "we have had some success in engendering a culture
of justification within Government, rather than a tradition
of assertion" (Vol. II, pp. 164-167 [emphasis in the original]).
We would like to see this become a feature of Government. The
discipline of thinking more rigorously about the purpose of legislation
and the criteria by which to assess its effectiveness, by subjecting
proposals to more rigorous pre-legislative, legislative and post-legislative
scrutiny will, we believe, help concentrate the minds of Ministers
and officials.
227. As we have suggested, Ministers may think
twice about introducing a bill if they are to be assessed not
on the basis of what they got on to the statute book but, instead,
its effectiveness. If, as a result of considered reflection, they
decide to proceed, then the measures themselves are likely to
benefit from the parliamentary scrutiny that we have recommended
and the input from citizens with an interest in the measure.
228. We would hope that our proposals will make
a modest contribution to limiting at least some measures from
being brought forward—especially those characterised by
Dr Moonie as the "act in haste, repent at leisure" bills
(Q 383)—and, more pervasively, ensure that those brought
forward are fit for purpose. Law, as we have stressed in opening,
affects everyone. It is vital that parliamentary scrutiny of legislation
is itself fit for purpose. None of our witnesses was convinced
that it is. We agree with them.
102 Q 299; see also Sir Geoffrey Bowman Q 324). Back
103
I.Burton and G. Drewry, Legislation and Public Policy, London:
Macmillan, 1981. Back
104
See also the quantum change identified in evidence by Paul Tyler
(Q 295). Back
105
See also Dr Lewis Moonie, Vol. II, pp.111-112. Back
