Legislative Productivity

The main political news at the moment is the Government’s attempt to pass a controversial Anti-Terrorism bill through both houses of Parliament. It’s in a bit of a hurry — Blair wants the new law in force by Monday.

I’ve already stated my position on the law itself, but the spectacle of legislative process at full throttle raises other issues.

Parliament has a certain amount of time available to debate laws. It uses all of it. Also, at the end of every legislative session, there are usually laws that haven’t been passed because there wasn’t time.

Now, how many laws should be passed? Given that we get as many laws as possible, to the very limit of the time available, there is no reason to believe that the level of legislative production is exactly the ideal level. The behaviour of Parliament suggests that they think we need many, many more laws, but there just isn’t time.

If this is what they think, and they are right, we should surely be looking at some constitutional reform to allow more laws to be passed than is possible currently. To some extent, the addition of extra layers of government — regional and European — provides this opportunity, but I’ve never heard them advocated in these terms.

I suspect this is because no-one really believes that what this country needs is higher legislative production. But that leads to the question: if we don’t need more laws than Parliament has time for, why does Parliament pack as many as possible into the time it has?

I believe that it does so because it is in the interest of politicians and bureaucrats to personally pass as much legislation as they can, independent of the interests of the public.

What are the effects of this conflict of interest?

First, obviously, that we get more laws than we really need. We could manage without a law to make it illegal to tidy up the countryside without a license.

Second, less obviously, there is less scrutiny than there should be of laws. This gives enormous power to the government and Civil Service, as they can “scale up” their resources without limit to the level of legislative production, and Parliament can not increase its “quality control” function to match.

What applies to Parliament, applies even more strongly to the public as a whole. If Parliament considered one bill per month, we could all hear about it and form an opinion. At the rate of legislation actually in force, only a specialist can even know what laws are being considered at a given time. If you are affected by a proposed bill, it takes time to gather a grass-roots campaign to influence it. At the present hectic rate of legislation, you do not have time to do this.

The legislative sprint is anti-democratic in another way. Because Parliament as a whole is trying to pass as many laws as it can, any attempt to modify a bill is resisted, not just by those who actively support the particular bill, but by the others who have no strong opinion, but do not want to “waste time” on your objections because of the knock-on effect on the schedules of other bills.

I think this is one of the problems we are seeing in the EU legislature with the software patent situation.

But this effect reaches a whole new level in the European Parliament, because of the rules governing it. Where, as in this case, the Council adopts a proposal different from that adopted by the Parliament on first reading, Parliament is assumed to approve the changes, unless it finds time within a three-month period to disagree! This truly is a revolution in legislative productivity. Imagine if, say, the US Senate worked under this rule. Rather than have to find time to pass the laws you want to pass, all laws will automatically pass except the ones you find time to oppose.

This obviously gives even more power to whoever arranges the Parliament’s business.

One other obsolete obstacle to legislative productivity is the “quorum”. In most debating chambers, a minimum number of members are needed to approve a measure. Once again, the EU throws off these shackles, with another innovative rule. In the EU Parliament, a minimum number of members are needed to stop a measure! If less than half the members oppose the bill, it passes, even if nobody supports it, and even if the Parliament has already rejected it once on first reading.

Oh, and all this will stay exactly the same if the proposed constitution is passed.

(p. 117 of this document)

Update: Matthew Yglesias makes a very similar point about the US legislative process.