by Catherine Needham and Emily Burn

When is a law not a law? When it gets passed into statute but never enacted. Lord Norton (a Conservative peer and expert on UK parliament) calls these cases ‘law but not law’. Such cases have been missed in the policy literature to date. Existing literature looks at the difficult process of policy design and policy making, taking it to the moment of legislative approval. Other literature takes it from the point of enactment to see how well the implementation fares. But there has been a failure to acknowledge a slim but important set of cases in which policies which gain legislative endorsement but are never enacted. A review by the UK House of Lords library found 480 such examples in the UK parliament between 1960 and 2020. In a system where the executive usually controls the legislative agenda and is not required to implement legislative mandates that it did not instigate (eg. Westminster in the UK), non-enactment represents a particular puzzle.

In our recent article in Policy and Politics, we explore the phenomenon of non-enacted policy through the example of long-term care funding in England. Two legislative interventions to reform long-term care funding in England have been abandoned prior to enactment. A package of reforms – including a cap on private liability for care costs and an increase in the means-test threshold – was passed into law in the Care Act 2014, but enactment was first delayed and then abandoned. A very similar reform package was then passed into law again in the Health and Care Act 2022, with implementation scheduled for 2023. This too was delayed and then abandoned.