Abstract
The analysis of law most often focuses on law as enacted: the way in which a law is experienced and the contribution that the law makes to the character of a nation's legal personality. The focus of this analytical tradition is well established. Theories and philosophies have long attempted to explain and understand societies through their laws and legal doctrine: ‘law’ – both as a wide concept and the individual laws of which that wide body comprises – becomes a reinforcing embodiment of a society’s social, cultural and moral foundations. Jurisprudential explorations look at what the law is and why it has developed in that way. What are the consequences of law on individuals and society? What values ought the law represent in considering what is fair and just? Principles that provide a framework of standards in this analysis have developed into a complex body of theoretical knowledge where law has been variously characterized since before Roman times, amongst other things, as: a set of universal moral principles in accordance with nature; a collection of rules or norms imposed by threat of sanction; a vehicle for the enforcement of individual rights and the attainment of equality.
Are our law makers, then, experts in the interpretation and application of these complex theoretical discussions? Are our citizens active contributors to the dialogue of theoretical development? The truth is, no. While the outcome of legislative process as enacted law may be subject to extensive scrutiny, the process of how that law was really made is little explored.
In ‘Making Family Law’, Maclean draws upon her experience as an academic adviser to the department responsible for family law-making in London which, over the time of her involvement, has been attached to the Lord Chancellor’s Department, the Department for Constitutional Affairs and today the Ministry of Justice. Her personal account provides a fascinating insight into the ‘little documented stages of the process that occurs in Whitehall’ (p. 1) by exploring particular pieces of legislation enacted between 1985 and 2012 in the context of her experiences and observations.
The progression of legislation through set political stages is clear and largely transparent in both Westminster and Scotland. The formal journey from introduction, through Committee consideration and reports, debates, amendments and finally assent has its process outlined in legislation and is accessible to all through the availability of transcripts and video documentation of events. However, Maclean outlines that this is far from the sum of the legislative process.
Those stages which are aired in the public forums of Parliamentary consideration represent the culmination of extensive ‘behind the scenes’ work, much of which is dependent on the actors involved in the initial development of policy to the fruition of a Bill. The relationships between civil servants within departments, between lobbying groups or experts and civil servants, and between civil servants and draftsmen involved in framing policy within a Bill, are but a few examples of the varying interactions, which will garner influence. The forums for these influences are also highly variable: from meetings, to emails, to conversations during coffee breaks.
In accounting for these publically invisible stages of the legislative process, Maclean suggests an analytical approach, which takes the perspective of the sociology of law: exploration of ‘the interpersonal network of roles and relationships that constitute the law making process as a complex social activity’ (p. 3). In Maclean’s experience, the law is subject to realities that create an unpredictable variety in legislative process that the idealism of theory does not recognize. She believes it is important to ‘be able to move on from the traditional rational theory of law making to offer a more empirically-based sociolegal account’ (p. 3).
Maclean calls upon her experience of four Acts to facilitate her exploration of family law-making in England and Wales – the Children Act 1989, the Child Support Act 1981, the Children and Adoption Act 2006 and the Children, Schools and Families Act 2010. The Acts chosen for exploration each offer a different set of circumstances, which underline Maclean’s call for analysis of the development of law on socio-legal terms. The particular points for consideration focus on three distinct areas: one, the preparation of the legislation including the stimulus for beginning the legislative process, the political and technical content and the progression of law making activity; two, the outcome of the legislation – its clarity and enforceability, its popularity, and whether it achieves its purpose or creates unintended consequences; and three, the success of the project.
Chapter 1 introduces the topic and undertakes an Anglo-Polish comparison based on comparative conversations between Maclean and co-author Kurczewski. As a relatively new democracy, the comparisons identify differences but also surprising elements of commonality to be found in the approaches to legislative process as experienced by the authors. Chapter 1 then goes on to introduce the Acts chosen as case studies of family law-making in England and Wales, which are explored in turn in the following chapters.
Chapter 2 focuses on the Children Act 1989 – an Act that was prepared with strong influence from experts and is generally heralded as an excellent example of successful legislation. Stemming from the research and initiative of experts, the Children Act focused on the welfare of children as its fundamental consideration and so was politically even-handed. It has been generally suggested that this neutrality and expert influence has been a key factor in the robust success of the legislation, which balanced the often contentious relationship between family privacy and state intervention.
Chapter 3 explores the far less popular Child Support Act 1981. The influences of the Act were very different than those that influenced the Children Act. Prepared quickly and against the advice of experts and officials but driven by a strong prime minister, the legislation experienced shortcomings in the procedures adopted and the manner in which it was implemented. Now repealed, this chapter explores where the legislative process relating to the Child Support Act failed.
In Chapter 4, the influences behind the Children and Adoption Act 2006 are again very different. Individuals and pressure groups (notably Fathers for Justice) backed by media interest raised the weight of the issue of joint parenting to a point where the government felt compelled to act. The needs of a small pocket of society raised in a very public way created a definite pressure, which was not necessarily mirrored in expert opinion or political urgency. The management of this situation through legislative process is praised as thoughtful and it is argued that the team of officials who sought the input of research and experts were key in containing the movement of extremist pressure. The full impact of this legislation and the ongoing success is yet to be fully realized as implementation has been slow.
The final case study, the Children, Schools and Families Act 2010, is explored in Chapter 5. This Act is the culmination of a legislative process where the media played an even more important role in asking the government to open family courts in the pursuit of ‘transparency’. The campaign was in the promotion of the media’s own bias interest to report high-profile family cases, but was validated by the backing of the Constitutional Affairs Select Committee. The book explores questions around the motivation for bowing to media pressure at a crucial time for an unpopular government facing a general election. Similarly to the Children and Adoption Act, the full extent of the implementation is not explored in the book as the book, was published too soon after assent.
Chapter 6, the final chapter, reflects on lessons of the case studies and goes on to explore barriers to achieving effective legislation. The chapter is generally comparative and suggests that success has different criteria depending on the person who seeks analysis. The case studies allude to a successful formula, which constitutes the involvement of experts and the commission of research in the pursuit of an informed debate. However, the creation of this informed debate and the variety of actors involved can present a barrier in itself to clear, open and predictable legislative process.
This short book is to be highly commended for its honest and realistic insight into the legislative process. The exploration of the process through statutes allows effective analysis of the variety of actors, influences and events, which contribute to the development and resulting success or failure of enacted legislation. Maclean successfully demonstrates the legislative process, which she experienced as one with strong roots in social activity. Far from the traditional rational theories of law, she shows the need to take account of the powerful influence of informal interaction (chance conversation in a lift or during a coffee break) – and the challenges in undertaking a straightforward analysis of law that this type of influence can bring.