Our legislative process is archaic and is not being helped by a Government determined to limit public involvement. As a result, legislation is formulated by moral panic and discussed in tabloid media soundbites rather than through informed public debate.
For more than a decade there has been an assumption that people do not have the right to participate in the details of what new laws say. Ministers make announcements, often at political conferences or rallies outside Parliament itself, and if there is no immediate backlash they go ahead. This is a risky way to make laws, as the fiasco with the poll tax shows.
Earlier this year the report of the Hansard Society Commission on the Legislative Process was published. The commission was composed of 19 experts, including academics, politicians and lawyers. Our findings on consultation procedures were the most interesting. Hundreds of voluntary and statutory agencies made submissions, but the only groups who were satisfied with the consultations undertaken by the Government were the Bank of England, the Institute of Directors and the Association of Chief Police Officers.
The methods of consultation leave much to be desired. In 1988 the Government produced 288 consultative documents (these include Green and White Papers as well as more general policy papers); by 1991 this had reduced to 232. In the years up to 1988 there were between three and 15 Green Papers a year, which are the first stage in public consultation on policy by government departments. There have been none since 1988, until the last couple of months.
The Hansard Society Commission researched the Dangerous Dogs Act 1991 to illustrate the way poor consultation and a government in panic can result in a nonsense. The story starts in 1988 when dog licences were abolished. In June 1990 a consultation document on the future control of dogs was published and widely advertised. I remember seeing a newspaper advertisement and sending off for a copy, as an ordinary person concerned about dogs. I wrote and told them what I thought. I got no reply. There was no response by the Government to this consultation process, and no legislation was drafted.
In June 1991 there was a public outcry over children being attacked by dogs and the Government went into panic overdrive. All the consultation work was ditched. Legislation was pushed through the Commons in one day, with the collusion of an equally mesmerised Opposition. We are now lumbered with an unworkable law which has failed to control dogs in public areas, and failed to protect the seven-year-old who was killed by a dog a few weeks ago.
We can all be casualties of poor legislation. The inception and processes of the latest Criminal Justice Bill is a case study in how a democratic system of government can be subverted. The Home Secretary announced a package of reforms to the criminal justice system, many requiring legislation, to the Conservative Party conference. Children's charities and others involved in working with the system examined this and other political speeches, desperately trying to fathom what exactly will be included and what excluded from the Bill.
We knew there would be provisions for creating new prisons for 12- to 14- year-olds, restrictions on bail and the ending of the right to silence. But there had also been rumours of additional punishment for the parents of young people who commit offences, and possibly even the lowering of the age of criminal responsibility. Yet there has been no Green Paper, no White Paper and no formal consultative meetings. The only 'consultation' has been through the tabloids and the opinion polls. This is no way to introduce the most important piece of criminal justice and civil rights legislation of the decade.
Government needs to change its approach. Consultation should start at the early stages not just with powerful interested lobby groups but involving the public, too. A Freedom of Information Act would help in avoiding what amounts to paranoid secrecy, even if it did not cure the associated problem of overweening incompetence.
We should make more use of independent inquiries, such as Royal Commissions, which could involve the public through a variety of mechanisms, such as calling for written submissions, holding local meetings and inviting views from local groups.
The consultative process should continue right up to the consideration of draft texts of Bills and detailed clauses. Copies of documents must be distributed free of charge to groups and individuals who have an interest. Published timetables would allow time for organisations to consult their members.
If all government departments were to follow the same practice, we might avoid some of the muddle and folly we have seen recently. However, if citizens are to participate actively in our democracy we need to make still more profound changes to the legislative process.
Among the more radical proposals the Hansard Society Commission received was the American practice of adding referenda issues to general and local election ballot papers, once a given percentage of the population had signed petitions signalling a desire to see a particular question included.
There could be greater use of laws with a limited lifespan. The most high- profile example of this is the Prevention of Terrorism Act, but other legislation could be enacted for a limited period, after which it would expire unless it was again scrutinised and voted on.
The Commission was told of a profound and widespread lack of confidence in the way laws are made. Irritation and distrust results in poor legislation. But we are unlikely to see change, because this Government is not concerned with extending the frontiers of democracy in its own country. It is guarding the secretive and unaccountable legislative system fiercely, while playing charades with citizens' rights.
The writer is Director of the Howard League for Penal Reform and was a member of the Hansard Society Commission on the Legislative Process.
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