Critically Analyse the Legislative Process

Many criticisms can be made of the legislative process. The first main criticism is that the language of the Acts is very hard to understand. The Renton Committee pointed this out in 1975; it was one of four main categories of complaint. They commented that there had been criticism for centuries, quoting Edward VI as saying 'I would wish that… the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them.

' Apart from the obvious difficulties the language causes, it results in cases going to court on matter of interpretation. About 75% of all cases heard in the House of Lords involve disputes over the interpretation of Acts. Most of these cases come to court because there is no plain meaning to the words they use; there is a choice of meanings. It is a more difficult problem when the statute contains words, which appear to have a plain meaning, but one, which appears to produce an unreasonable result.

When this happens the court may be asked not so much to choose a meaning but to rewrite the words to produce a sensible result. This raises the question of whether and to what extent it is part of the proper function of a court to rewrite statutes passed by parliament. In 1994 the report of a Hansard Society Commission set out five principles for democratic law making. One of these was: 'Statute law should be as certain and intelligible as possible. ' Legislation definitely does not satisfy this criteria.

The problems of language are illustrated by the abortion case, Royal College of Nursing v Department of Health and Social Security (1981). The Abortion Act 1967 stated that an abortion was lawful if the pregnancy 'is terminated by a registered medical practitioner' i. e. a doctor. In 1967 the only method of an abortion was surgical therefore hospital abortions under the Act will have been performed by doctors. However, by the 1980s the standard method was medical induction i. e. drip-feeding a drug which induces discharge of the foetus.

The routine steps in the method are carried out by nurses acting on doctor's instructions. So were theses abortions lawful? The pregnancies were actually performed by nurses not by doctors. The case went to the House of Lords. The majority of the law lords were prepared to treat the words of the act as meaning 'is terminated by treatment of a doctor. ' They were influenced by what they considered to be the policy of the act namely, broadening the grounds of lawful abortion and ensuring that it was carried out with proper skill. The minority felt that the Act shouldn't be rewritten in this way.

Rather it should be 'construed with caution' because it dealt with 'a controversial subject involving moral or social judgements on which opinions strongly differ. ' Lord Denning has been quoted in saying: 'We do not sit here to pull the language of Parliament to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.

' This marked the beginning of an era in which Lord Denning battled for a more active judicial role in the interpretation of statutes, a battle which he was still fighting and losing 30 years later when in Davis v Johnson the House of Lords rejected his view that judges could consult parliamentary debates. Although Lord Denning failed to persuade the House of Lords to accept his views, his campaign undoubtedly contributed to the more liberal and open approach to interpretation that the House pursued from the early 1970s.

This concludes that too much time is wasted on interpreting the Acts because of obscure and complex language. The time spent in the House of Lords interpreting Acts could be used a lot better, like developing case law for example. Lord Denning's view that judges should be able to consult parliamentary debate is a valid point because this could cut the number of cases of interpretation. Although it brings up the problem that judges are not democratically elected so why should they be involved in legislation as well as making law through precedent.

The public are supposed to be able to read and understand the Acts in order to follow them. So how are people supposed to follow the law if they don't know what it is and can't understand it? It would be impossible to know what the law is from these Acts. The Acts are very detailed and complex making it harder to understand. Another complaint of the Renton Committee was that the Acts are over elaborate. Although they are over elaborate they are very thorough and concise. The Hansard Society Commission commented that getting the law right is as important as getting it passed quickly.

Another criticism made of the legislative process is that it is dominated by the Government. In theory this a good thing because it makes legislation democratic because the public voted for the Government to be in power, but the truth of it is there are more people who don't vote at general elections than people who do. So the majority of the public could in fact want a different party in Government. The report of a Hansard Society Commission in 1994 stated that, 'Laws are made for the benefit of the citizens and all citizens should therefore be involved as fully and openly as possible in the legislative process.

' Citizens don't have any involvement in the law making process at all; the citizens are represented by their local MP. The MPs are supposed to represent the opinions of his constituency, but more often than not MPs represent the views of his or her party. The Government has the majority of MPs in the House of Commons, so if there is a vote the Government will always win because the MPs of that Party will nearly always go along with their Party. This makes the legislative process not very democratic because the MPs that are supposed to represent the people's opinions only back up the opinions of their Government.

Private Member Bills have very little success due to Government domination. First of all the Government allocates the debate time to the Bills so they allocate the Private Member Bills very little time and the Government Bills get priority. If the Government decides it agrees with the Private Member Bill it will allow it to become an Act, if the Government intended to make a similar Act but never got round to it they will vote against the Private Member Bill and put in a Government Bill. So in affect they will choose which acts they will take responsibility for.

Examples of Private Members Bills becoming law are Murder (Abolition of the death penalty) Act 1965, Abortion Act 1967 and the Marriage Act 1994. These were all morally controversial Acts where opinions strongly differ so they did not want to take responsibility for them. Therefore the Government controls the legislative process. Although the Government can be strongly influenced by pressure groups and media attention. For example the Stephen Lawrence murder case generated a high level of public interest this led to a change in the law.

Following a public inquiry, the Race Relations (Amendment) Act 2000 was passed. So the Government do have to respond to public demand sometimes, they do this to secure votes in the next generations. So although the Government do dominate the legislative process the public can have an impact, and they did vote for that party to be in power so it is in theory democratic. A Bill has to go through the House of Lords as well as the House of Commons, even though the House of Lords don't have the power to stop a Bill becoming legislation.

The only power the House of Lords have is to delay the Bill for a year. In this year media attention builds up and it allows the Government to know how the public feel. So if the House of Lords have no real power over legislation because they are not democratically elected what good comes of them? The same could be said for Royal Assent, it is just a formality because it is not the Queens place to refuse a Bill and she never will. So surely it is a waste of time. In an ideal world the law would be easily understandable and accessible to all citizens.

This is very far from the truth as it is almost impossible to find out what the law is let alone what parts are already in force and what parts aren't. Even Lawyers and the Lord Chancellor can't say for sure what laws are in force. Acts generally have more than one commencement date, and these dates are well hidden in sections of the Acts and are very hard to understand. For example the Criminal Justice and Public Order Act 1994 was divided into 12 parts containing 172 sections, many of which had several subsections, and it also had 11 schedules.

The commencement dates were contained in section 172 and this is what it said about parts that come into force immediately: '172(4)"The following provisions and their related amendments repeals and revocations shall come into force on the passing of this Act, namely sections 5 to 15 (and Schedules 1 and 2), 60, 63 65, 68 to 71, 77 to 80, 83, 90, Chapters I and IV of part VIII, sections 142 to 148, 150, 188 (1), (3) and (4), 166, 167, 171, paragraph 46 of schedule 9 and this section.

"' No wonder it is impossible to find out which laws are in force. The Criminal Investigation and Procedure Act 1996 replaced one section of this Act without it even being brought into effect. So it is not surprising that when the Lord Chancellor was asked which acts passed between 1989 and 1992 were still to be brought into force he replied that it was not possible, 'other than at disproportionate cost', to identify those provisions but he believed the percentage was around 1%.