A tweet, an upcoming essay, and the hunt for a reason to miss the rush hour tube home combined to lead me to the Statute Law Society’s lecture on legislation as aspiration on 16th March. From my background as a policy officer trying to influence legislation on its passage through Parliament the topic was appealing, and at a time of year where the number of cases for students to remember is rising by the day, a reminder of the power and purpose of statute seemed like a timely intervention.
What Prof. Feldman delivered was a cautionary tale to interpretive judges and descriptive drafters alike. With his experience as legal adviser to the Joint Committee on Human Rights in the Palace of Westminster, Feldman identified a problem for lawyers, not all legislation is really legislative. For a revising student trying to make sense of a miasma of legal principle this may seem like heresy. If Parliament can do anything, including making law that isn’t actually law, how do judges know which bits are law? Does this bolster Parliamentary sovereignty or overturn it? Or are the dark nightmares that someone is simply making it up as they go along really coming true?
In reality of course the theory makes sense. Parliament, especially one so closely tied to the executive power, has more audiences than simply the judiciary. As Feldman observed, there are administrators and accountants to instruct, an audit office to guide, ministers who need to know exactly what power is being delegated to them, as well as the press and the public. The lawyers are not the only people listening to Parliament.
Feldman identified four classes of legislation that are aimed at a different audience. He called these promissory (showing a political commitment), declaratory (stating what the law is), aspirational (a hope, not a real commitment), and statements of political support. He cited the Flags Act 1953, which describes the national flag. Is that a matter for the courts? He also cited unenforceable, rhetorical flourishes, such as the Northern Ireland Act 1998 which opens with a declaration that Northern Ireland is a part of the UK until a referendum of the residents decides otherwise. It’s good political rhetoric but in avoiding the need for a vote in the UK Parliament is legally unenforceable under the current UK constitution.
The danger of non-lawmaking legislation was shown through the case of Bromley LBC v Greater London Council . For Feldman it was a stretch to find that the aspirational words of the XXXX Transport (London) Act 1961 to promote an integrated transport system were justiciable. Yet in that case a court ruled that not budgetting to break even was uneconomical and therefore outside the law. This was a hostage to fortune. But this type of language, identified by Feldman as littering legislation, also risks debasing what legislation should do. If certain statutory text can be ignored who decides what to keep? Only the courts. So is it true that we can say that the Queen in Parliament makes laws by Act but not every Act is a law? There is the threat to sovereignty. But there again, for a scholar, there too is a problem that makes the British constitution so interesting.