Law-making and democratic values

Thomas Watkin

Shamima Begum - her rights as a British citizen were decided by ‘executive discretion’ rather than the ‘rule of law’.

Daniel Greenberg, in his book Laying Down the Law, reflecting on his experience as a legislative drafter in the Office of Parliamentary Counsel, considers that “well-intentioned legislation, properly thought through and competently executed, is a powerful force for good”. It is no small claim. On the other hand, he recognizes that “ill-intentioned legislation, poorly thought through or incompetently executed, can cause untold unfairness and misery”.

The latter words should haunt anyone who has a part to play in the making of rules which are to govern the lives of others. One would at least like to believe that those who make laws for us are never motivated by ill intentions – but the problem does not end there. Unfortunately, it is also true and considerably more relevant that well-intentioned legislation which is poorly thought through or incompetently executed can equally cause unfairness and misery.

Legislation that is poorly thought through is often the result of mistaking a good idea for a good policy. A policy is very much more than an idea. Whereas an idea can be written down on the back of an envelope, a policy can only result from careful thought and analysis of evidence. In the words of one English dictionary, a policy is “a plan of action adopted or pursued by an individual, government, party, business, etc.” The plan requires not only knowing what one wants to do, but knowing how one intends to do it. Moreover, its adoption requires knowing why one wants to do it and why one wants to do it in the way chosen and not in any other way.

One does not have to look far for illustrations of this difference. Brexit is a classic example. The June 2016 referendum result indicated what a majority wanted to do. Yet as to how it should be done there has been continuous confusion. Nor is there clarity as to why a majority wanted it done, nor as to why it should be done in a particular way as opposed to why it should not be done in other ways.

Ensuring that the policy underlying proposed legislation is sound in the sense of being properly thought through is the underlying purpose of the legislative processes. Simply proposing a change is not enough. A case needs to be made for making that change, and the preferred option for effecting it needs to be examined in detail. That is why legislative proposals in the form of bills are subjected to a series of scrutiny procedures prior to a decision finally being taken that the bill be passed and the laws which affect people’s lives be changed. At Westminster, the broad intentions of a bill are debated at second reading before its details are subjected to scrutiny with the possibility of amendment during the committee stages. Only when both the intent and the detail have been agreed does the question finally arise as to whether the bill should be enacted.

The legislative procedures of the National Assembly for Wales are required by the Government of Wales Acts to enshrine such opportunities for careful scrutiny. There must always be opportunity for members to debate a bill and vote on its general principles, to consider its details and vote on them with the opportunity to amend them, before finally considering whether the bill as amended by them should pass into law or not. The process is nothing less than the means by which those representing the people affected by the proposals consent to or reject the changes proposed in order to ensure that unfairness and misery is avoided and the chances of the changes being a force for good maximized.

In a lecture to the Statute Law Society in the 1990s, a recently retired Lord of Appeal, Lord Oliver of Aylmerton, encapsulated the importance of the legislative process with these words. “The citizen is entitled in a democratic society to have the rules by which his life is to be regulated properly debated and scrutinized by his elected representatives”.

That debate and scrutiny is intended to ensure that the rules are properly thought through and will be competently executed. If the rules which regulate the lives of citizens are imposed upon them without their representatives having properly debated and scrutinized them, the conclusion is unavoidable. One is no longer living in a democratic society. In truth, the question of how democratic a society may or may not be is not susceptible to an enduring answer. Like the weather, it can change, and the fluctuating levels of debate and scrutiny which laws receive is a barometer indicating how fair or foul is the condition of our democracy.

Only through scrutiny of legislative proposals can their strength or inadequacy be tested in advance. Merely agreeing an idea, and its broad policy objective, is not enough. Examples abound of agreed policy objectives which have not been thought through sufficiently or have not been competently executed with the result that unfairness and misery has been an unforeseen and undesired consequence for those affected.

Easy to decide that immigrants unlawfully within the UK should not be allowed to stay, but still be woefully incompetent to introduce an evidential mechanism for identifying who is lawfully here and who is not which fails to distinguish accurately one from the other.

Easy to propose that an array of social welfare benefits should be rationalized into one universal credit, but still be woefully incompetent to implement the new system in a manner which drives those in need of that support into reliance on the charity of food banks and the usury of loan sharks.

The unfairness caused to the Windrush generation witnesses to where poorly thought through legislation leads. Meanwhile, the misery following on the introduction of universal credit is testimony to the consequences of incompetent execution.

If legislatures such as the Westminster Parliament and the National Assembly are designed to ensure that legislative proposals are properly thought through and their method of implementation competent, legislating other than by those processes can only increase the risk of consequent unfairness and misery. The level of debate and scrutiny, Lord Oliver’s hallmarks of democratic law-making, is significantly reduced where the rules which govern people’s lives are made not by their representatives in the legislatures but by government ministers to whom the power to legislate has been delegated.

When a government minister makes laws by laying a statutory instrument before the legislature, opportunity for debate and scrutiny is diminished. Even if the approval of the legislature is required, there is no opportunity for amending the detail as there is when considering a bill. The legislature is reduced to saying simply ‘Yes’ or ‘No’. As is most often the case, if the opportunity is not to approve but merely to call for the annulment of the law if the legislature is unhappy with it, the participation of the citizens’ elected representatives is reduced even further. Where governments have comfortable, working majorities within the legislature, the procedures for the scrutiny of delegated law-making are often little more than a ritual, the result of which is completely predictable.

The former Lord Chief Justice of England and Wales, Lord Judge, recently drew attention to the fact that it is forty years since the House of Commons failed to approve a statutory instrument laid before it by ministers, asking sarcastically whether the government meant to mark the occasion with a commemorative stamp. His remarks were made in the House of Lords, where ironically the unelected members appear to take their duties of scrutiny more seriously than is often the case in the elected lower chamber. Inevitably, criticism in the Lords of failure by the Commons to respect the democratic values of proper debate and scrutiny leads to complaints that unelected peers are interfering in decisions of the elected chamber. However, true democracy requires more than democratic election. It requires respect for the processes of democratic law making.

It is all too easy for governments with working majorities both to succeed in acquiring broad law-making powers for themselves and then to have their exercise approved in the same way. Both merely require that the government party members troop through the appropriate lobby at the relevant time. The same is true of granting wide-ranging executive powers to ministers. In his award winning book, The Rule of Law, the late Lord Bingham of Cornhill considered what the rule of law meant today in Britain and other modern democracies, and why it was important. One of the principles he identified as being an ingredient of the rule of law in contemporary democracies was that “Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.

In February 2019, Home Secretary Sajid Javid exercised powers he claimed were at his disposal to deprive a young woman who had left the country to join the so-called Islamic State of her British citizenship. In short, her rights as a British citizen – indeed all of our rights as British citizens – are in certain circumstances at the mercy of executive discretion. Such a situation is not consonant with the rule of law. It can only be the case if Parliament has granted the government that power in statute. Doubtless, the Home Secretary’s exercise of that power will be challenged in the courts after the event by means of a judicial review. How much better would it be if Parliament had required the Home Secretary to obtain a court order allowing him to exercise the power in advance of doing so, with opportunity for the other side of the case to be heard. That way the law would be applied to determine whether the rights should be forfeit rather to determine whether their forfeiture through an exercise of discretion had been lawful.

If the citizens’ elected representatives are charged with ensuring that the rules which govern citizens’ lives are properly made, it is important that the citizens themselves are able to scrutinize the work of their representatives. To do so, it is necessary that they have a sound, critical awareness of what good law-making involves. Law-making by the Senedd and Welsh Ministers, when compared with law-making at Westminster, is still in its early days. Partly as a result of no single political party ever having yet achieved the sort of working majority which is the norm at Westminster, many of the bad habits and regrettable consequences rehearsed above do not scar law-making in Wales to anything like the same extent. A sound understanding among citizens of what good law-making involves can help keep it that way.

  • Professor Thomas Watkin’s Legislating for Wales, co-written with Daniel Greenberg, is published by the University of Wales Press (Paperback, £60).