ELS: Sources of Law (2) Flashcards
Two categories of legislation?
Primary and secondary.
Two types of Acts of Parliament? Difference?
Public and Private:
Public Acts - Acts which relate to matters of general public concern; debated in both Houses of Parliament - largest part of legislative output.
Private Act of Parliament - relates to particular places/people - usually stem from proposal by organisation etc. Promoter of private Act responsible for convincing Parliament of proposal.
What can Public Bills be divided into? (2)
Government Bills and Private Members’ Bills:
Government Bill represents Government policy: drafted by official parliamentary draftsman = what gov wants to bring into law - form of a Green Paper (for discussion) and White Paper (official Government policy).
Private Members’ Bill: promoted by a particular Member of Parliament, often after lobbying by members of the public.
What’s the primary legislative process in each House? (6)
- ‘First reading’
- > A formality; the Bill’s title is read out, and a date set for a second reading. - ‘Second reading’
- > The Bills is debated by MPs and may be amended. - Committee stage
- > detail of the Bill is scrutinised by a legislative committee. It may be amended. - ‘Report stage’
- > The House will debate proposed amendments, and vote on the committee’s report. - Third reading
- > Final debate and vote on the Bill. If passed, it goes on to the other House. - Royal Assent
Is there a legal rule requiring monarch to assent to any Act passed by Parliament?
No - no legal rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect.
In essence, the grant of Royal Assent is a formality, a fact which is highlighted by the Royal Assent Act 1967, which provides for how the assent can be signified.
When does an Act of Parliament take effect?
Day after it received Royal Assent - unless contrary provision in the statute.
Does not always come into force same day enacted - more usual for Act to have ‘commencement’ section dealing with this - typically power delegated to SoS with responsibility in the area.
Structure for Acts of Parliament?
Short title Long title Date enacted Parts (sections, sub-sections) Commencement date
What does the ‘extent’ of legislation mean?
Geographical area to which it applies.
Who makes secondary (delegated or subordinate) legislation?
Made by some person or body other than Parliament – usually a government department – but under powers granted to it by Parliament in primary legislation (known as the ‘parent act’).
A piece of delegated legislation made within with powers granted by the originating Parliament has equal statutory force to that of the primary legislation.
NOTE: while courts have no power to overrule an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the Act and ‘quash’ it if it is not.
Is delegated legislation subject to Parliamentary scrutiny in the same way as primary legislation?
No - Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.
Who checks SIs then?
The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act.
If the Committee identifies an issue, they publish recommendations on the SI. In the House of Lords, affirmative SIs cannot be debated before the JCSI make their recommendations. If an SI deals with financial matters it is only considered by the members of the committee from the Commons (Select Committee on Statutory Instruments). How Parliament considers SIs depends on whether they follow the negative or affirmative procedure, which is outlined in the parent Act.
Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.
What’s the ‘negative’ procedure?
They will automatically come into effect as law unless either House stops (annuls) them within a fixed period after they have been laid - usually 40 days, excluding days when both Houses are in recess or adjourned for more than four days.
- More likely for negative SIs to be debated in the House of Lords though they can be debated in the House of Commons if there is significant opposition to them.
- Successful motion to stop SI is rare - HoC last in 1979 and HoL in 2000.
About 80% of SIs laid down by negative procedure
What’s the ‘affirmative’ procedure?
Need to be approved by Parliament before they become law.
Most SIs subject to this procedure must be debated and approved by both Houses.
Draft affirmative SIs can be stopped if either House votes against or rejects the Government’s motion calling for the SI to be approved.
–> Certain Acts of Parliament allow the government to use an affirmative procedure which brings an SI into effect immediately and gives Parliament a set time to approve it (normally 28 or 40 days). The SI stops being law if Parliament does not approve it within that time. This emergency procedure is only allowed by a few Acts when there is a public crisis, such as a pandemic or serious terrorist threat.
Who is statutory interpretation a task for?
Primarily judges.
What are the ‘rules’/approaches (5) and ‘linguistic presumptions’ (3) of statutory interpretation?
Rules: 1 The literal rule 2 The golden rule 3 The mischief rule 4 The purposive rule 5 The contemporary approach Linguistic presumptions: 1 Expressio Unius est Exclusio Alterius 2 Ejusdem generis 3 Noscitur a Sociis
