Revision:Influences on Legislation

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Although legislation is formally a matter for Parliament, it does not emerge fully-formed: many people and many organisations of different kinds have a hand in the process. This worksheet considers some of the influences on Parliament in its task of reforming the law.

Lord Chancellor's Department

The Lord Chancellor's main departmental role is to secure the efficient administration of justice in England and Wales, and his responsibilities include the oversight of a varied programme of Government civil legislation and reform in such fields as family law, property law, defamation and legal aid. He also answers to Parliament for the work of the Law Commission (see below), though criminal law reform and the criminal justice system are the responsibility of the Home Office.

Many government departments and agencies are actually involved in proposing law reform on a large or small scale. A sample of law review and reform projects in August 1999 showed that while the Lord Chancellor's Department were reviewing the role of magistrates, access to justice, paternity and parental responsibility, and mental incapacity, and the Home Office were looking at freedom of information, wheelclamping on private land, and reform of the Offences Against the Person Act 1861, so the Ministry of Agriculture were considering possible legislation on food labelling and quarantine regulations, the Department of Environment on access to open countryside, the Department of Health on cloning and gene therapy, the Equal Opportunities Commission on equal pay, and the Health and Safety Executive on accidents at work.

Law Commission

The Law Commission was set up in 1965 with the duty of keeping the law under review with a view to its systematic development and reform. It has five well-qualified and experienced lawyers, appointed by the Lord Chancellor, plus assistants; its current chairman is Carnwath J. It normally works by identifying an area of law where reform is needed, clarifying the existing state of the law, and producing a consultation paper for comment by anyone interested.

After carefully considering all such comments, and perhaps modifying its own original ideas in the light of the response, the Commission puts forward its final recommendations, often accompanied by a draft Bill. Recent legislation based on Law Commission proposals includes the Law Reform (Year and a Day Rule) Act 1996 and the Contracts (Rights of Third Parties) Bill.

The enactment of legislation depends on finding Parliamentary time, however, and this is not always forthcoming, particularly in criminal law where there may be political controversy. About 70% of the Commission's proposals find their way into law eventually, but delays can be considerable: in a newspaper article in June 1999, the Chairman drew attention to twenty completed reports still awaiting implementation and gathering dust because the government could not or would not find time to enact them. These include several draft bills to codify the criminal law, though the government is at last considering replacing the Offences Against the Person Act 1861 with something more appropriate to the 21st century.

The Law Commission also has the task of identifying obsolete legislation still on the statute books and proposing its repeal. These proposals are usually implemented quite quickly, because they are treated as Consolidation bills and so can be enacted without debate in either House. The Statute Law (Repeals) Act 1998 repealed over 150 complete Acts and parts of nearly 250 others, including the Slavery Abolition Act 1833, an Act of 1737 authorising the rebuilding of All Saints' church in Worcester, and an Act of Attainder against John Wolff and his family, passed under Henry VIII in 1533.

Other public bodies

There are several other public bodies charged with reviewing particular areas of law and proposing reforms. The permanent official groups include the LCD's Law Reform Committee (civil law) and the Home Office's Criminal Law Revision Committee (criminal law), but neither has been very active recently. Other bodies are set up on an ad hoc basis to look at particular issues, ceasing to exist once their task is completed and their report written. Governments are sometimes hesitant about setting up truly independent bodies in case their recommendations conflict with government policy, and try to ensure the "right" results by a careful selection of members. Some such bodies have asserted their independence of mind, however, and have produced valuable reports even if these have not always been fully implemented.

Many of the recommendations in the report by the Commission of Inquiry into Child Abuse in Cleveland (Butler-Sloss 1988) found their way into the Children Act 1989, for example, and the Human Fertilisation and Embryology Act 1990 was based firmly on the recommendations of a Committee of Inquiry under Baroness Warnock (1984). The Royal Commission on Criminal Justice (Runciman 1993) led to the Criminal Appeals Act 1995 and the establishment of the permanent Criminal Cases Review Commission.

On the other hand, the Report of the Royal Commission on Civil Liability (Pearson 1978) is still gathering dust in Whitehall, the main recommendations of the Committee on Obscenity (Williams 1979) have been ignored for years, and the Report of the Independent Commission on the Electoral System (Jenkins 1998) is unlikely to be implemented in the near future.

European and international pressures

Some legislation is enacted as a direct response to pressure from the European Union or the European Court of Human Rights.

When a EU Directive is issued, it does not have direct effect and it is the government's responsibility to ensure that it is implemented in English law. Sometimes English law is already sufficient and no change is needed; at other times the change can be made by Order in Council under s.2(3) of the European Communities Act 1972. But sometimes it is thought best to make the necessary changes through primary legislation, and a bill must then be introduced to give effect to the Directive in such manner as may seem appropriate.

For example, the Data Protection Act 1998 was enacted as a response to Council Directive 95/46, which required slightly greater controls over the storage and processing of personal data than were contained in the Data Protection Act 1984. And following the decision of the European Court of Justice in P v S (1996) that European law extended anti-discrimination protection to transsexuals, the government made the Sex Discrimination (Gender Reassignment) Regulations 1999 , amending the Sex Discrimination Act 1976 so as to bring English law into line with European requirements. [There are thought to be about 1500 male-to-female and about 300 female-to-male transsexuals in the United Kingdom.]

Similarly, when the European Court of Human Rights rules that English law violates individual rights guaranteed by the Convention, the government is under an international obligation to change the law to bring it into line with what the Convention requires.

Malone v UK (1984) 7 EHRR 14, ECHR

An antiques dealer P was convicted of handling stolen goods, and the prosecution at his trial admitted that his telephone had been tapped under the authority of a warrant from the Home Secretary. The European Court said UK law was in violation of Art.8 of the Convention; phone tapping itself may be justifiable in certain circumstances, but individuals had a right to privacy except where expressly authorised by law.

In response to this decision, the Interception of Communications Act 1985 was enacted to set out the conditions under which communications can lawfully be intercepted and to provide various safeguards for the individual.

Other international treaties may also create an obligation to legislate to give effect to the treaties in English law. The Landmines Act 1998, which prohibits the manufacture and use of anti-personnel mines, was enacted to give effect in English law to the Ottawa Convention signed the previous year.

Parties and manifestos

A surprisingly small proportion of bills reflect directly the contents of the governing party's manifesto at the previous election. In the first year of the present Labour government there were about a dozen such bills out of fewer than sixty that eventually reached the statute book, including the Human Rights Act 1998 and the Crime and Disorder Act 1998. These were untypical figures under the first Labour government for nearly twenty years, however: the usual proportion is closer to 10 per cent.

Many government bills simply reflect the everyday demands of running a country and emanate from the civil servants in the various government departments. They are formally proposed by the ministers in charge of the departments, but in reality many of them are politically uncontroversial and could equally well have been proposed whichever party was in government. Recent examples include the Judicial Pensions Act 1993 and the Road Traffic (New Drivers) Act 1995.

A third group of government bills represent reactions to events. New inventions, court judgements, social problems - all these may seem to call for some response. Some recent bills of this kind include the Football (Offences) Act 1991, the Firearms (Amendment) Act 1997, and the Northern Ireland (Elections) Act 1998 and other legislation implementing the Good Friday Agreement.

Private members' bills

In a typical year over a hundred bills are introduced by private members in the House of Commons, and rather fewer by individual Peers, though no more than ten or so are likely to complete the legislative process and pass into law. Some of these reflect the proposer's long-held personal views or response to recent events; others are suggested by the government.

Laurie Pavitt MP was (until his death in 1990) a campaigner on various health issues and a committed anti-smoking campaigner. When he secured a place in the private members' ballot in 1981 he took the opportunity of proposing a Tobacco Advertising Bill 1981 that would have abolished most cigarette advertising had it been passed. In contrast, Robert Adley MP had no particular cause in mind when he was successful in the 1986 ballot, and was happy to put forward a short bill suggested by the government to restrict noise emissions from motor-cycles. Lord Goff took the very unusual step (for a Law Lord) of proposing a Law Commission bill that subsequently became the Theft (Amendment) Act 1996 and filled a loophole identified by their Lordships in R v Preddy [1996] 3 All ER 481.

Judges

When judges make a formal declaration that a particular statute is incompatible with Convention Rights under the Human Rights Act 1998, such a declaration puts considerable pressure on Parliament. The Lord Chancellor said when the HRA was going through Parliament that a declaration would "almost certainly" cause Parliament to change the offending law or allow Ministers to do so by statutory instrument. At the time of writing there have been several declarations of incompatibility but the relevant laws have not yet been changed.

Even before the Human Rights Act, however, the judges were not afraid to draw Parliament's attention to outdated or unjust laws that could not properly be changed through the common law process.

C (a minor) v DPP [1995] 2 All ER 43, HL

Quashing the conviction of a 12-year-old for interfering with motor vehicles, four Law Lords called on Parliament to review the ancient and well-established rule that a child aged between 10 and 14 could not be convicted of a criminal offence unless the prosecution could prove a "mischievous discretion" going beyond the ordinary mens rea.

[Parliament followed this advice, and s.34 of the Crime and Disorder Act 1998 abolished the rule.]

Sanders v Chichester (1994) Times 2/12/94, Election Court

In the elections to the European Parliament, one independent candidate stood as a "Literal Democrat" and attracted a significant number of votes. The judges said this was not unlawful, but suggested that Parliament might consider whether there was a need for a formal register of political parties and a ban on potentially misleading descriptions.

[Schedule 2 to the Registration of Political Parties Act 1998 amended the election rules accordingly.]

At an inquest in July 1994 into the deaths of twelve children and a teacher from Hagley RC School in a road accident while on a school trip, the coroner recommended that seat belts be fitted to all minibuses used to carry parties of schoolchildren. The Road Vehicles (Construction and Use) (Amendment) (No.2) Regulations 1996 (SI 1996/163) made it compulsory for any minibus or coach used wholly or mainly for carrying groups of children to be fitted with sufficient seatbelts for the number of children carried.

News media

Although the primary role of the news media is to report events, they can exert considerable influence on legislation too. Television and radio stations are required by law to maintain a political balance in their broadcasting, but there is no such restriction on newspapers and the print media can and often do take strong positions on particular legislative proposals. Politicians of all parties depend on the media for their public image, and are understandably reluctant to act in ways that may set the media against them.

For example, strong pressure from the media persuaded the government to amend the Human Rights Bill to give special protection to the right of free expression even where this violated a citizen's right to privacy. Less obviously, it was a series of news reports and articles calling for action that led to the passing of the Dangerous Dogs Act 1991 and more recently the Sex Offenders Act 1997. In neither case was the risk to members of the public any greater than it had been for many years previously - and it was a very small risk in each case - but the government in each case could not afford to ignore an expression of public concern whipped up by the media and felt compelled to take action.

Pressure groups and lobbyists

At any given moment there are hundreds - perhaps thousands - of large and small groups seeking to influence the legislative process in a particular direction. These are not political parties in the usual sense: they have no desire to govern the country as a whole, and limit their pressure to particular aspects of policy.

Some of them are "interest groups" representing the interests of their members, such as the National Union of Teachers, the Soil Association, the Confederation of British Industry, the Scout Association and the RAC. They exist permanently (or at least long-term) and usually have other functions besides trying to influence legislation that may affect their members' lives.

Other groups are "cause groups" whose main function is to campaign for particular changes in society. Some are long-term, such as the Electoral Reform Society, the League Against Cruel Sports and Stonewall, but others like the Anti-Poll Tax Federation and Scrappit! exist only for a few years until they achieve ultimate success or obvious failure. And bridging the gap are organisations such as Amnesty International, the RSPCA and the churches, which have many functions apart from legislation but work for something other than their own members' interests.

Pressure groups operate in many different ways. They rarely put up their own candidates for election to Parliament, though in the 1997 General Election there were about fifty candidates from the Pro-Life Alliance, three from the Legalise Cannabis party and two standing on anti-bypass tickets. (Arguably, the Referendum Party should also be included as a single-issue pressure group.) More often, pressure groups seek to determine the mainstream candidates' views on the issue that most concerns them, and advise their members to vote accordingly: this is particularly common on issues such as abortion, where there are no clear party lines.

Some groups offer financial or other support to sympathetic MPs, often by appointing them as "Parliamentary advisers". MPs must declare any such links in the Register of Members' Interests, and their main role is still to represent the electors of their constituencies, but they can ensure that the groups' interests are heard in Parliament when relevant legislation is being considered. Nearly all MPs not in the government have connections (not necessarily paid) with some outside organisations whose interests they represent in Parliament.

If such an MP is fortunate enough to secure a high place in the ballot for private members' bills, she may decide to promote a bill advancing the aims of the group. In such a case, the group often provides technical help with drafting - they probably have a bill already prepared in hope of such an opportunity - and clerical support in dealing with the many questions that may arise (from the public or from other MPs) as the bill goes through Parliament. Thus John Corrie's unsuccessful Abortion (Amendment) Bill in 1979 was based on proposals from the Society for the Protection of the Unborn Child, while Graham Bright had more success with a bill suggested by the National Viewers' and Listeners' Association that became the Video Recordings Act 1983.

Individual contributions

Private individuals have limited opportunities to influence legislation directly, though many seek to do so indirectly by joining an appropriate political party or pressure group. (The combined membership of all parties and interest groups almost certainly exceeds the total population of the United Kingdom, though of course many people belong to more than one organisation.)

However, there are ways in which individuals acting alone can exercise some (limited) influence over the content of legislation. The Law Commission frequently issues a "Consultation Paper" before finalising a report, and within the past few years it has become increasingly common for government departments to do the same. In 1999-2000, for example, there were consultation papers on the physical punishment of children, on sex offences, and on penalties for road traffic offences among other subjects. Individuals as well as organisations can take this opportunity of putting forward their views - preferably backed by reasoned argument - to those who will be responsible for producing the final bill. A typical Law Commission paper produces responses from about a hundred individuals and fifty organisations: many are lawyers (practising or academic), but some are lay people with a particular interest in the subject matter.

Individuals can also write to their Members of Parliament, expressing their views on proposed or current legislation and suggesting a particular course of action. On government bills, of course, MPs nearly always vote their party line, but the occasional rebel may still be swayed one way or the other by the views of his constituents. On private members' bills MPs may be more easily persuaded, and a well-reasoned suggestion for improving the legislation may find its way into a formal amendment in either case.

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