Acts of Parliament - evaluation and analysis

Advantages and disadvantages of legislative process

“Elective Dictatorship”
Lord Hailsham, in 1976, whilst his party was in opposition, claimed the dominance of the executive over Parliament frustrates effective scrutiny. He points to three developments.

1. The House of Commons is dominated by the government.

2. The complexity of the work of government means that only those who have access to the advice provided by, for example, the civil service are able understand much of the detailed policy.

3. MPs themselves have less time to devote to the process of scrutiny.

1. The power of organised party system. MPs are less likely to challenge the activities of their party, and so, the government is not called to account.

Government is elected on a popular mandate, and MPs are representatives not delegates. However, the government will call a referendum on matters of important constitutional importance, for example the EU Constitution.

The courts are a suitable forum to interpret concepts such as ‘dishonesty’.

The passing of legislation timed to give a party in power an electoral advantage, for example a tax reduction, is condemned.

Or not legislating on controversial issues at all, leaving it to Private members to introduce sensitive Bills.

Party Whip System: Organises MPs to vote according to government policy.

The Committee Stage often divides on party lines.

2. Complexity and scope of legislative function. It is difficult for MPs to reach a level of understanding sufficient to scrutinise legislation effectively. The result is the 'elective dictatorship'.

Futile Bills can be easily stopped, or the government can prevent excessive time being taken to debate much needed legislation.

A huge assortment of delaying tactics can be used to defeat Bills, they can for example be talked out leaving no time for other stages,

“Wrecking amendments” can be tabled, or the use by the government of a guillotine motion to limit the amount of time debating a Bill.

Many errors in drafting can be corrected by painstaking Committee Stage.

The line-by-line examination of Bill is unsatisfactory, because legislation is inevitably complicated. Committee members are not specialists.

Since 1997, all bills are accompanied by explanatory notes, which are a great help to lawyers and layman alike.

Theft Act 1968 uses a simple phrase “Making off without payment”, which is easily understood.

Words in statutes have to be interpreted by the courts and thus they must have a precise meaning in law.

The Hansard Society is an independent, non-partisan educational charity, which exists to promote effective parliamentary democracy. Since 1994, the Society has suggested that Acts of Parliament should be as intelligible and accessible as possible. The Society believes much can be improved by codification of the law

Many Acts are almost unreadable to the layman.

Furthermore, Acts are amended, sometimes frequently and even trained lawyers have difficulty in establishing exactly what the law is on some topics.

There is little progress made on codification and consolidation of law, which is one of the functions of the Law Commission.

3. The work of Parliament has increased so that scrutiny is given less time.

There are many techniques for amending legislation such as regulations made under a parent Act, or by Remedial Orders.

The sheer volume of legislation does not allow sufficient time for proper examination of what is often complex legislation.

The House of Commons sits for about the average for the last ten years is 163 days a year, it has been calculated that this means less than 10 hours are spent from start to finish on a Bill. There is bunching of legislation towards the end of a Parliament or a Parliamentary session.

Extra-territorial paedophile legislation in 1996 failed to result in a prison sentence for 8 years.

Desperately needed legislation can be brought in very quickly

George Brown needed 200 stitches after being bitten by a bull terrier

The Dangerous Dogs Act 1991 was hastily drawn-up after six-year-old Rukhsana Khan suffered dreadful injuries when she was savaged by a pit bull terrier. The attack occurred near her home in Bradford in May 1991.

There was public outrage when pictures of her in hospital were shown on television.

Acting in haste produces poor legislation The Dangerous Dogs Act 1991 made it illegal to have. The four banned breeds are the Pit Bull Terrier (unmuzzled in public), the Japanese Tosa (no one had ever seen one in the UK), the Dogo Argentino, and the Fila Brasileiro.

It also bans any other dog "appearing... to be bred for fighting or to have the characteristics of a type bred for that purpose". This particular wording has led to many complicated, and ridiculed, discussions in courts about what exact type a particular dog is.

The act does not include Rottweilers. In September 2006 a 5-month-old five-month-old Cadey-Lee Deacon was killed by two Rottweiler dogs.

The Act does not include the Presa Canario, a cross between a bulldog and a mastiff, weighs up to eight stone, currently favoured by criminals.

Such dogs could be destroyed on an order of a court. This produced endless arguments about what a dog of “the type” meant. Rougier J in R v The Ealing Magistrates' Court, ex parte Fanneran (1995) QBD said of the Act that it

“bears all the hallmarks of an ill-thought-out piece of legislation, no doubt in hasty response to yet another strident pressure group “

An an ageing innocent Pit Bull Terrier called 'Tyson' was destroyed because of the inflexibility in the Act. News report here.

Prosecution statistics:

From 1,222 prosecutions in 1992 prosecutions dropped to 449 in 1996, but since then the number has risen to 608 (in 2004). Which suggest that the Act has had only partial effect.

Ellie Lawrenson aged 5 was killed by a “pitbull terrier type” she was mauled by her uncle’s dog at her grandmother’s house early on New Year’s Day 2007. The grandmother was subsequently acquitted of manslaughter.

Lord Baker of Dorking, who as Home Secretary introduced the Bill commenting on the death of Ellie, said that American Pit Bulls should have been eradicated from Britain. He said that the bill had been watered down reducing its effectiveness.

He said:

“The whole purpose of the Act was to eliminate that particular breed from . . . our country. They are vicious dogs and bred for fighting”.

The Act makes it an offence to have a dog dangerously out of control only in a public place.

The Act does not apply to dogs on private premises so a householder escapes legal sanctions under the Act if his dog bites a neighbour's child.

There is no compulsory registration scheme, so it is sometimes impossible to link a dangerous dog to the owner.

There is no provision for micro-chipping dogs.

No strong sentencing provision such as mandatory life bans from dog ownership in serious cases.

There is no requirement for a record of control orders.

There is no specific offence of allowing a dog to stray.

The Act makes no provision for fixed penalty fines for owners.

Other issues:

Parliament Acts can be used to enforce the will of democratically elected House of Commons, against the blocking or wrecking procedures of the Lords.

The Acts are rarely used.

The Anti-Terrorism Crime and Security Bill, which allows indefinite detention without trial of suspected terrorists, was initially amended by the Lords, but they did not press their amendments.

The Lords cannot insist on amendments opposed by the government even where these are clearly just and/or popular.

The Lords on five occasions rejected the "party list" system, which became European Parliamentary Elections Act 1999.

Lords Hutton and Brooke, in B v DPP [2000] HL agreed that,

“Parliament does not take account of the expert advice which it has received over the years from the Criminal Law Revision Committee and the Law Commission”

June 2006:
Lord Ramsbotham a former chief inspector of prisons said that Tony Blair overloaded the penal system with a blizzard of "incoherent" legislation and that he should "shut up" for the sake of stability in the criminal system.

The Home Office introduced 60 pieces of legislation between 1997 (when Labour came to power) and 2006, the vast majority containing criminal justice elements, many given life by Blair's officials.

R v Bogdal [2008] CA
[Legislation - Danger Dogs Act ineffectual provisions]

D's dog bit three people, the second was a police officer investigating the first bite. D owned a property in which his mother lived, behind which was a private care home. A broad tarmac driveway could be used by any person visiting either building. It was not a public right of way.

Held: A place which was, of its nature, private, such as a front garden, would only be a public place if members of the public had access to it otherwise than at the express or implied invitation of the occupier. The Dangerous Dogs Act 1991 was a penal statute which had to be strictly construed.

Users of such common areas would not have the protection of the Act, Parliament had chosen to limit the effects of the Act to cases where dogs were let out of control in a public place, notwithstanding the fact that dangerous dogs might also be a menace in private places.

Not guilty