Legislation and the Law: An Imperfect Relationship

Legislatures enact laws, but the relationship between what the legislature passes (legislation) and how it is applied (law) is imperfect in that the application of the law may differ from what the legislation is designed to achieve. Legislation enacted by Parliament may never be brought into effect or may be given effect in a manner that deviates from the purpose for which it was enacted. Uncommenced legislation is a significant, but much under-studied, dimension of law, styled as “law, but not law”. Law interpreted or applied at variance with the legislation fails to meet the criteria of good law, but the extent to which it falls short of what it is designed to achieve is largely unexamined on any systematic basis. Introducing provision for post-legislative scrutiny provides a means for determining whether legislation is fulfilling what it is intended to achieve and may identify the need for corrective action. The challenge to legislatures is in embedding the means for such scrutiny and in effect completing a legislative feedback loop.