Chapter 7: Primary legislation

Question 1

What are the nature and characteristics of legislation?

Answer 1

• Legislation commonly enacted or authorised by Parliament. It takes precedence over conflicting rules or principles developed by courts
• Legislation is the highest form of law in the UK (due to lack of written constitution)

Question 2

What are the 3 types of legislation?

Answer 2

• Public legislation
• Private legislation
• Hybrid legislation

Question 3

What is public legislation?

Answer 3

• Must be of general character, can’t be specific to only an individual
• Parliament can’t enact law which imposes a punishment on a single individual

Question 4

What was an occurance where legislation was made on one specific individual?

What was the takeaway from this case?

Answer 4

In 1531 where Henry VIII declared the Bishop of Rocehstor’s cook guilty of treason by poisoning and ordering that he put to death by boiling alive

It is not lawful to pass such act.

Question 5

What is private legislation?

Answer 5

Where legislation is passed on a specific organisation (e.g. university, organisations)

Question 6

What is hybrid legislation?

Answer 6

Bill that contains both public and private provisions

Question 7

What is the importance of legislation?

Answer 7

Main importance is to formulate and implement policy

Question 8

What are the 5 ranges/scope of legislation?

Answer 8

1. To set out public law rights
2. To impose taxation
3. To create powers for public bodies to take action
4. The regulation of commercial activity
5. Social control

Question 9

What are the important issues/critics/concerns about legislation?

Answer 9

Public bodies, politicians, and pressure groups tend to influence how legislation is made

Issues

• Parliamentarians who form government have too much power compared to other parliamentarians (backbenchers, MPs, peers)
• Tension between HOC and HOL - It is accepted that HOC (as the elected Parliament) should have primacy
• But limited reforms (HOL Act 1999) that have taken place to the membership of the lords has seen the Lords growing in confidence and in its ability to scrutinise government Bills

Question 10

What is the relationship between parliament, devolved legislatures and the EU

Devolved legislature - Scottish Parliament, North Ireland Assembly, and National Assembly for Wales

Answer 10

• Since 1998, greater legislation powers for Wales - Part 4 of Government of Wales Act 2006
• Legislative powers extended for Scottish Parliament - Scotland Act 2012

However, note that Westminster Parliament is still the supreme legislative body. As Devolution Act states
“the grant of legislative powers does not affect the power of the Parliament of the United Kingdom to make laws for those parts of the United Kingdom.”

Question 11

What is the relationship between the Judiciary and Legislature?

Answer 11

Role of judges in legislation

• It involves interpreting legislation, and enforcing rights and duties contained in legislation

Background/traditionally

• Previously, the principle of parliamentary supremacy meant that judges can not test the validity of legislation (Pickin v British Railway Board)

Question 12

What are the 5 exceptions that judges can consider the validity of legislation today?

Answer 12

1. Any court has a legal duty where submissions of national law is inconsistent with EU law on same subject; if court agrees with the submission, it must ‘disapply’ the offending provision in national law, even if that is a section in statute
2. Senior courts have power to hear arguments that a section in an Act is incompatible with a Convention right under the Human Rights Act 1998; if the court agrees, it may make a DOI
3. Courts may be called on to consider if an Act received royal assent under the terms of the Parliament Acts if it is a valid statute (only if HOL did not consent to the Act )
4. The devolved powers can be quashed by senior courts if they are incompatible with Convention rights or EU law
5. The principle of parliamentary supremacy does not stop the courts from considering whether delegated legislation is lawful - The normal grounds of judicial review apply and the court may make a quashing order if it finds a legal flaw

Question 13

What is the concept of parliamentary sovereignty in primary legislation? Who considers whether an Act is valid or not, what are the justification?

Answer 13

The UK constitution allows politicians rather than the courts to have power to consider an Act as valid or recognised as binding law

It needs to be recognised that the government (HOC) has a dominant role in the legislative process

2 justifications

• Elections and the political process of making legislation are likely to lead to legislation that reflect what the public wants
• The legislative process is superior to the adjudicative processes of the courts for deliberating, on and determining questions of public interest

Question 14

What is the electoral system that the HOC uses? Explain.

Answer 14

‘first-past-the-post’

It results in the House having a composition unproportionate to the number of votes cast nationally for each political parties

Question 15

How does the Rule of Law coincide with Primary legislation?

Answer 15

Since enacting the Human Rights Act 1998

• Senior courts are now able to make a DOI, saying that the provisions are contrary to the Convention rights

ROL is able to hold the Executives to account when legislation confers powers to the government

• ouster clauses and judicial review

Question 16

How does Separation of Powers coincide with primary legislation

Answer 16

UK does not adhere to strictly to SOP, which does not clearly state the limits of each organ

• Thus, executives have a dominant influence in the legislative process
• Executives also have the power to make ‘delegated legislation’

Question 17

Who creates and what do they contribute to primary legislature?

Answer 17

Ministers & civil servants

• develop policy initiatives

Government lawyers

• drafts bills

Ministers

• introduce Bills to parliament and steer them in both Houses; also amending them along the way

Secretary of State

• decide when the Act comes into force

Crown

• 2 formal involvements (King’s consent & Royal assent)

Parliament

• scruitinising bills once introduced by ministers

MPs and peers

• initiate legislation in the form of private member’s bills

Question 18

What is the 7 processes of primary legislation?

Answer 18

1. Policy making
2. Drafting bills
3. The parliamentary year
4. Parliamentary stages of a bill
5. Bills of constitutional importance
6. Briging legislation into force
7. Post-legislative scrutiny

Question 19

What is policymaking?

Answer 19

• Policymaking is the main purpose of legislation is to give legal to government policies
• Authoritative determination done by ministers and civil servants of what will be done about something

Question 20

What are the 2 important aspects of policymaking? Explain.

Answer 20

Immediate policymaking

• Sometimes, government may find the need to formulate policy and implement it very quickly

Consultation (important to policymaking)

• Consulation practices
• 1) Green paper - outlines initial views
• 2) White paper - lays out more firmly its policy plans
• 3) Bill

Question 21

What is drafting bills?

Answer 21

In the UK consists a centralised system of drafting Bills.

Written by over sixty ‘parliamentary counsel’ (government lawyers) working from No. 36 Whitehall

1. They act on the basis of formal instruction sent by departments
2. After researching the relevant field of law and analysing what the department wants to achieve, drafting begins
3. Council will hold meetings with department lawyers when needed

Question 22

What is the critism for drafting bills? What are the 4 reasons for the critism?

Answer 22

Often said that the Acts are incomprehensible to non-lawyers (or even some lawyers) because of the complexity of their language grammar, and structure

4 reasons

1. Statute may seek to give legal effect to a policy that itself is inherently highly complex
2. May be important for people’s rights and obligations to be spelt out with great precision so that they may plan their affairs accordingly
3. Complexity is incremental change to policy, which is often given legal effect by several Acts amending earlier ones over a period and consolidating them
4. Complexity may arise from a desire to control and restrict discretion in the implementation of policy

Question 23

What has been done today to ‘combat’ the crtisms of understanding bills?

Answer 23

To help with criticisms, Since 1999, all governmental bills have been accompanied with ‘explanatory notes’

Question 24

What are framework bills?

Answer 24

Only set out the broad framework for the government’s policy

Leaving the detail to be filled by delegated legislation in government departments

Note

• However, these skeleton-style Bills confer too much unsupervised discretion on the government and may contravene the ROL

Question 25

What is the Parliamentary Year?

Answer 25

Where Parliament organises its workload into annual sessions

• Since the Fixed-term Parliaments Act 2011, it is expected that each five-year Parliament will have five 12-month sessions, beginning and ending in the spring

Procedure

• The annual session starts with the State Opening of Parliament
• The monarch attends the HOL, to which MPs are summoned
• From the throne, the monarch reads out a short speech (King’s Speech) drafted by the government, which sets out the government’s proposals for bills

Question 26

What are the 6 parliamentary stages of a Bill?

Answer 26

1. First reading
2. Second reading
3. Committee stage
4. Report & Third Reading
5. Ping-pong
6. Royal Assent

Question 27

First Reading

Answer 27

A formality to announce that the Bill will be published and start its passage through the Houses

Note

• Since 1999, Bills come with ‘explanatory notes’ drafted by lawyers to help with understanding

Question 28

Second Reading

Answer 28

• Takes palace 2 to 4 weeks after the First Reading
• Also an opportunity for MPs or peers to debate the general policy aims
• Debates are published in the Hansard (official records)

Question 29

Committee Stage

Answer 29

Takes place 2 weeks later. When detailed consideration of the policy and drafting of the Bill occurs

HOC (normally in a public Bill committee of between 15 to 20 MPs)

1. For most Bills, the committee’s work begins with oral evidence sessions - Where MPs hear from experts, campaign groups. And finally the minister in charge of the Bill
2. Then a clause-by-clause debate - With opposition MPs seeking to argue that amendments should be made; very few, if any of these amendments are agreed to by the public Bill committee

HOL (normally takes place on the floor of the chamber)

• Government may make amendments (often ‘technical’)
  1. Tidying up drafting points
  2. Sometimes, they will alter the policy of the Bill slightly if the government has been convinced that it could be improved

Question 30

Report & Third Reading

happens together

Answer 30

• Often take place the same day
• They are further opportunities for MPs and peers to press for acceptance of their amendments and for the government to make its own amendment

Question 31

Ping-Pong

What occurance was this used?

Answer 31

Where there is disagreement, a ‘ping-pong’ process will arise, with proposed amendments and counter-amendments shuttling back and forth, until both Houses are willing to consent/agree

Seen in

1. The Rwanda Bill which became law after its passage in the Lords (after some ping-pong)
2. Where The Safety of Rwanda (Asylum and Immigration) Act 2024 which received Royal Assent on 25 April 2024

Question 32

Royal Assent

Answer 32

• Final stage of the legislative process
• The grant of royal assent is a prerogative power of the Crown (although it is conventionally granted)
• After royal assent, the new Act of Parliament must be officially printed and published

Question 33

Do Bills of constitutional importance undergo the same legislative process as other Acts?

Who are the 2 academics, and what do they say?

Bills that later become constitutional statutes

Answer 33

Robert Hazell
D. Oliver

Question 34

What did Robert Hazel state about bills of constitutional importance?

Answer 34

Robert Hazell

• Since 1945, a constitutional convention that ‘first-class constitutional importance’ have their Second Reading stage in the HOC instead of the public Bill committee
• After 1997, convention was challenged by the new Labour Government attempting to split the committee stage
• This proved that it is hard to distinguish Bills of ‘first-class constitutional importance’

Question 35

What did D. Oliver state about bills of constitutional importance?

Answer 35

D. Oliver

• States there is a worrying lack of appreciation on the part of ministers and some parliamentarians
• The existence of importance of the legal & constitutional values with which independent scrutineers concern themselves. That these values include the respect for ROL, individual liberties and rights, rights of access to the courts; Matters such as, burden of proof in criminal proceedings, avoidance of certain retrospective legislation, certainty in relation to administrative powers, and non-delegation of legislative power unless justified
• According to him, scrutiny standards on these values or checklists could bring Parliament back into the constitutional arena

Question 36

What is bringing legislation into force?

Answer 36

Every Act contains a commencement provision towards its end

• Some are very straightforward - simply by saying ‘This Act comes into force on the day on which it is passed’ (royal assent) or may specify a date
• But most bills are more complex

Question 37

What are the problems with bringing legislation into force?

Answer 37

1) Not knowing when new legislation is to be brought into force can be a major problem for businesses and citizens

• Since 2008, a more coordinated approach has been taken, with the introduction of ‘common commencement dates’ twice a year

2) A problem may arise if the government decides not to bring legislation into force

Question 38

What was the case where the government decided not to bring legislation into force?

Answer 38

R v Secretary of State for the Home Department, Ex Parte Fire Brigades Union and Ors [1995] 2 AC 513

Held

• HOL held it was unlawful
• Although he was entitled to decide when to bring a section into force, he was** not able to declare he would never do this** and make rules contrary to the will of Parliament expressed in the Act

Question 39

What is post-legislative scruitiny?

Answer 39

• March 2008, the government introduced the final step in the process, which was recommended by Law Commission of England and Wales
• Which was called for a more systematic approach in 2006

Question 40

What is the legislative function of the devolved powers after the devolution Acts?

Answer 40

The devolved powers have the power to enact primary legislation within the terms of their respective Acts

• Scotland Act 1998
• Northern Ireland Act 1998
• Government of Wales Act 2006

Question 41

How has the Sewel Convention effected the devolved powers?

Answer 41

After passing the Scotland Act 1998.

It became clear that the Westminster Parliament has the ability to continue to pass legislation on policy areas that were not ‘reserved’ or areas that are not ‘devolved’ to UK Parliament