More and more legislation is about sending signals. What's wrong with that?by Catherine Fieschi / February 26, 2006 / Leave a comment
Published in February 2006 issue of Prospect Magazine
The statute book is filling up with legislation that is increasingly symbolic in nature. The primary aim of such legislation appears to be reassurance rather than redress, prevention or punishment. Recent examples include the racial and religious hatred bill, soon to return to the Commons after revision in the Lords, and even some of the public service reform legislation, such as that introducing foundation hospitals or the current education bill reforming secondary schools.
In the case of the religious hatred bill, it seems to work like this: a signal is sent by the government to the Muslim minority—whose representatives have lobbied hard for the bill—that its concerns are taken seriously, and then the law is drafted and enforced on the assumption that it will only rarely, if ever, be used. The public service legislation is not, of course, only symbolic, but the changes it introduces to the way schools and hospitals are run are comparatively trivial compared with the political heat generated by the legislative process. This has the advantage from the current government’s point of view of signalling energeticlly to the taxpayers of middle Britain that their extra tax is being spent with care.
Many people feel uneasy about the idea of symbolic legislation—and clearly there are potential problems, especially if it leads to political interference into how zealously or otherwise laws are applied. But symbolism is an intrinsic part of the law and one could argue that all legislation is at least partly symbolic. Legislation that is mostly symbolic prompts us to re-examine the law as a trigger for, and shaper of, political debate and a creator of constituencies. Symbolic legislation, one could argue, contributes positively to the making of political society.
Some argue that symbolic legislation fails because in most cases it cannot achieve its own objectives—either because legislation is the wrong instrument for the j…