October 22, 2013Posted by on
A lecture delivered by the President of the Supreme Court explained why judges sometimes feel called upon to be more pro-active, and occasionally enter the public-political debate about ‘Justice in an age of Austerity’ (pdf). Lord Neuberger chose a few issues to explore in a thoughtful, measured and accessible style, seasoned with a charming self-deprecation as he revisits his own judgements and observes: “Reading some judgements one rather loses the will to live, and that is particularly disconcerting when it is one’s own judgement one is reading.” The sheer volume of statute law and statutory instruments has tripled since 2005, and Lord Neuberger correctly describes it as:
“A welter of ill-considered legislation”.
He illustrates his point with reference to the appalling mess that was presented to the House of Lords in the Financial Services (Banking Reform ) Bill, about which Lord Turnbull said: “The goal of regulation is to secure the benefits while minimising the costs and to achieve that in a manner that passes the tests of accountability, clarity, efficiency and transparency. Regrettably, the Bill fails all those four tests. It certainly fails the test of clarity, being both complex and incomplete. The Bill is unnecessarily complicated because, instead of drafting a new template for the financial services industry, superseding all past relevant Acts and incorporating the new banking Bill that is yet to be published enacting the Vickers proposals, the Government have constructed a dog’s breakfast of amendments to earlier legislation.”
Ultimately nobody has a clear strategic picture of the law that is under consideration, still less the detail. If the problem remained within Parliament it would be bad enough, yet much uncertainty and sometimes even inconsistency is then passed on to individuals, public authorities and companies, who must understand, comply, and adjust to it. A whole raft of advisers, trainers, supervisors and monitors have to be engaged to work out what this might all mean and all of this must be paid for by the end-user.
When economies have to be made, our Parliamentarians surely owe a duty to be accurate, targeted and clear in the obligations and associated costs which they impose upon us. Our Lord Chief Justice plainly believes that this is not currently the case. A more immediately accessible example of legislative folly was that of restoring single-sex wards in hospitals. A popular reform but the absence of an age limit in the Act obliges nurses, under threat of fine, to rig up wholly unnecessary curtains in their neo-natal wards to separate infants in their incubators.
The committee stages of bills is where the Executive should be held to account by members of parliament scrutinising its plans to further interfere in our lives, yet the Legislative Chamber is frequently poorly attended. Perhaps if we required our legislators to do much less but do it much better, we might be better governed. We do not see the high proportion of lawyers in parliament translating into a keenness to read and critique the legislative output that continues to emerge with varying degrees of coherence. The tide of legislation rolls out relentlessly. If more parliamentarians spent more time in the Chamber studying the text, there might be more of them joining ordinary folk up and down the country contemplating their output, with their heads in their hands, muttering:
“Please make it stop”.