Chapter 7: Primary legislation Flashcards
What are the nature and characteristics of legislation?
- 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)
What are the 3 types of legislation?
- Public legislation
- Private legislation
- Hybrid legislation
What is public legislation?
- 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
What was an occurance where legislation was made on one specific individual?
What was the takeaway from this case?
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.
What is private legislation?
Where legislation is passed on a specific organisation (e.g. university, organisations)
What is hybrid legislation?
Bill that contains both public and private provisions
What is the importance of legislation?
Main importance is to formulate and implement policy
What are the 5 ranges/scope of legislation?
- To set out public law rights
- To impose taxation
- To create powers for public bodies to take action
- The regulation of commercial activity
- Social control
What are the important issues/critics/concerns about legislation?
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
What is the relationship between parliament, devolved legislatures and the EU
Devolved legislature - Scottish Parliament, North Ireland Assembly, and National Assembly for Wales
- 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.”
What is the relationship between the Judiciary and Legislature?
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)
What are the 5 exceptions that judges can consider the validity of legislation today?
- 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
- 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
- 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 )
- The devolved powers can be quashed by senior courts if they are incompatible with Convention rights or EU law
- 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
What is the concept of parliamentary sovereignty in primary legislation? Who considers whether an Act is valid or not, what are the justification?
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
What is the electoral system that the HOC uses? Explain.
‘first-past-the-post’
It results in the House having a composition unproportionate to the number of votes cast nationally for each political parties
How does the Rule of Law coincide with Primary legislation?
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
