Legal System of England & Wales - Legislative Process

Question 1

What is primary legislation?

Answer 1

Primary legislation is law passed by Parliament in the form of Acts of Parliament.

E.g. Statute.

Question 2

If there is a conflict between statute and other domestic law, what prevails?

Answer 2

Statute always will prevail.

E.g. the word ‘unfair’ in contract, the judge won’t be able to simply consider its definition in terms of common law however must look at the definition within the UCT Act as statute is more authoritative that common law and will prevail.

Question 3

What is secondary legislation?

Answer 3

These are laws created by government ministers (or other bodies) by virtue of powers given to them by a parent Act of Parliament.

E.g. Statutory instruments.

Question 4

What is the legislative process?

Answer 4

Bill is drafted
1) First Reading in the HoC
2) Second Reading in the HoC
3) Committee Stage
4) Report Stage
5) Third Reading
6) HoL and amendments
7) Royal Assent

Question 5

What is a bill?

Answer 5

A bill is a proposal for a piece of legislation.

Typically prepared by the office of the parliamentary counsel (specialist in drafting legislation) and are presented to Parliament for debate

Question 6

What is a public bill and what are the two types?

Answer 6

Public Bills propose new laws or amend existing laws that affect the public at large.

Government Bill - introduced by government ministers and are concerned with implementing the government’s legislative programme.

Private members bill - the bills that are not introduced by government are known as ‘private members bills’. These bills are not concerned with the implementation of the government’s legislative programme, little parliamentary time is allocated to debate them and very few become law.

Question 7

What is a private bill?

Answer 7

• Proposed to Parliament by organisations e.g local authorities or private companies.
• Concerned with gaining parliamentary authority to carry out particular activities or work
• Apply to the specific individual or organisation, rather than the general public

Question 8

What are hybrid bills?

Answer 8

• Affect the public at large
• Have a significant impact on an organisation or individual.

Example- The High Speed Rail (West Midlands - Crewe) Bill was a hybrid Bill concerning authroisation for the creation of a new railway. The Bill completed the legislative process and is now law.

Question 9

What happens in the first reading in the House of Commons?

Answer 9

This stage is purely formal.

The title is read out and the bill is printed and published.

Question 10

What happens in the second reading?

Answer 10

At this stage, the main debate by MPs on the principles of the Bill takes place.

Question 11

What happens at the committee stage?

Answer 11

Bills may be referred to the committee of the whole house or a general committee (reflecting the division of parties within the house).

The committee scrutinizes the Bill clause by clause and considers any amendments.

Opponents sometimes deliberately cause delays by discussing matters at length in committee. However, the Chairman has power to decide which amendments should
be discussed and a business sub-committee allocates time for discussion.

Question 12

What happens in the report stage?

Answer 12

If any amendments have been made by the Committee as a whole, or if the committee stage was taken in standing committee, a report stage is necessary. The House votes on any amendments.

The debate on the report stage is similar to that of the committee stage, i.e. each part of the bill is considered with a view to amendment or addition. The Speaker can select the amendments to be debated.

Question 13

What happens in the third reading?

Answer 13

The purpose of the third reading is to consider the Bill as amended but usually the debate is brief. This is the final opportunity to vote, although MPs often do not do so.

Question 14

What happens in the proceedings in the House of Lords?

Answer 14

Proceedings in the Lords do not begin until after the third reading in the Commons.

Procedure in the Lords is the same as that outlined above for the Commons, so the Bill will go through all the stages again.

Question 15

What happens in the amendments by lords?

Answer 15

When the Bill has reached its third reading in the Lords, it must be sent back to the Commons if any amendments have been made.

Theoretically, the Bill can go backwards and forwards an infinite number of times until the proceedings on it are terminated. In practice, if the Commons disagreed with the Lords’ amendments and restores the original wording, the Lords usually accepts it.

Under the Parliament Act 1911, the Commons can in extreme situations bypass the Lords if the latter blocks the will of the former. For this to happen, the Speaker of the Commons - i.e. the referee between the parties - must certify the conditions of the s1 of the 1911 Act are met.

Question 16

What are Royal Assent?

Answer 16

The final stage is where the monarch is formally gives approval to the Bill and it becomes an Act of Parliament.

Royal Assent is now a formality - an example of constitutional and legal convention.

Once a Bill has received the Royal Assent, it become ‘law’ and takes effect immediately on that day, unless there is a contrary provision in the statute.

Question 17

What are the equitable principles?

Answer 17

The desire for flexibility and fairness led to the creation of the court of chancery and the use of equity.

‘Equity’ means coming to a resolution that is fair to all parties, taking into account a mix of considerations such as the facts, the behaviour of those involved, and the respective situations of the parties.

The court of chancery was presided over by the chief law officers of the time, called Chancellors, and adopted the approach that certain disputes needed resolution in a different manner.

The equitable principles:
a) Equity looks on that as done which ought to be done. This means that equity will enforce the intention the parties, rather than allowing something to founder because of a failure to conform to rigid procedure.

b) He who comes to equity, as a consequence must come with clean hands, accordingly an equitable remedy will not be granted to a claimant who has not acted fairly.

c) Delay defeats equity, as a consequence, a claimant cannot wait too long before making a claim, as this may prejudice the other party.

d) Equity will not suffer a wrong to be without a remedy. This means what it says: under equitable principles, if a court decides there is a wrong, a solution beneficial to the injured party should result.

Question 18

What are equitable remedies?

Answer 18

1) Injunctions, i.e. a requirement that something be done or not done
2) Specific performance, i.e. the carrying out of an obligation, usually in relation to land
3) Rescission, in other words confirming that a contract no longer exists
4) Rectification, i.e. correcting a wrong
5) An account of profits, i.e. allowing an innocent party an appropriate share of a wrongdoer’s gains.

Question 19

Is there a combined common law and equity court?

Answer 19

Supreme Court and Judicature 1873 and 1875 created a single court structure and merged the separate court systems of equity and the common law. For the first time, court procedure as a whole adopted a common approach rather than being left to individual courts.

As a consequence, all civil courts can now grant both common law and equitable remedies in the same proceedings. For example, an injunction to stop continuing unlawful behaviour can be ordered in addition to damages for loss.

Question 20

What distinguishes between civil and criminal law?

Answer 20

• Criminal cases are where the prosecution has been brought against the defendant who is believed to have committed a criminal offence.
• Prosecutions are typically brought against individuals by the CPS on behalf of the state (prosecution).
• Standard of proof - beyond reasonable doubt.
• Burden of proof - rests with the prosecution

Civil cases - resolution of private disputes between individuals.

Standard of proof - on the balance of probabilities.
Burden of proof - claimant.

Question 21

What are the traditional sources of law?

Answer 21

1) The Crown (a convention now that the monarch must give Royal Assent to any Bill before it becomes an Act)

2) The Nobility (The Privy council today)

3) House of Lords - unelected chamber, but some members do submit a quasi-electoral process.

Question 22

What are hereditary peers in the house of lords?

Answer 22

Hereditary peers - hereditary members dominated the House of Lords but their parliamentary role has diminished recently. House of Lords act abolished the automatic entitlement of all hereditary peers to sit in the lords, leaving just 90 members at any one time to co-exist with the life peers.

Any hereditary vacancies are filled through by a by-election process amongst the hereditaries themselves. There is therefore the curious process of ancient bloodlines jockeying for position by way of electoral preference in a second chamber, which regularly receives criticism for being undemocratic.

Those interested in the position - or it might just qualify as a ‘job’ must declare themselves available for election. The authorities keep a register of hereditary peers who wish to stand for election under the obscure Standing Order 10.

Question 23

What are life peers?

Answer 23

The house of lords act also impacted on the role of life peers. Traditionally they are a mix of eminent achievers from all walks of life, MPs from the Commons who have retired or lost their seats and (controversially) sometimes donors to and key supporters of, political parties. Usually, life peers display considerable knowledge and wisdom in their main role of scrutinising and debating legislation. Even so, the body politic decided there were too many peers overall, and the HLA 1999 reduced their number to approximately 660. The government of the day refreshers the head count through regular appointments, mostly notable in the annual New Year’s honour process. The convention is the Prime Minister makes recommendations to the monarch who confirms the appointments.

Question 24

What does habeas corpus mean?

Answer 24

Freedom of the individual/

It is the principle that someone should only be arrested and imprisoned with lawful reason. Consequently, an arrested person should be given their freedom unless there is justification for them to be imprisoned.

Judicial reasoning is crucial to the operation of a free society and it is applied today.

Unlawful detention of immigrants is not allowed:
E.g. Jalloh case-
Ibrahima Jalloh was
granted asylum and then ordered to be deported following conviction for a criminal
offence. He was subject to a curfew at night in his home city of Sunderland between
February 2014 and July 2016. He was electronically monitored by way of tagging. Lady
Hale on behalf of a unanimous majority held the curfew to be unlawful, a deprivation of
liberty, and false imprisonment. This is an instance of policy colliding with law, and it is a
current example of the principle that freedom should only be withdrawn in accordance
with the law.

Question 25

What is the role of the executive?

Answer 25

The executive should formulate policy and initiate legislation.

Question 26

What is the role of the legislature?

Answer 26

The legislature should scrutinise laws and pass them.

Question 27

What is the role of the judiciary?

Answer 27

The judiciary should interpret laws.

Question 28

What are the key academic thinkers as source of law within the legal system?

Answer 28

A court will consider
1) Property rights (Locke)
2) The importance of legislation (Dicey)
3) Unlawful detention / habeas corpus (Coke)
4) The separation / balance of powers (Montesquieu)
5) Social entitlements (Bentham)

Question 29

When does a bill become an act?

Answer 29

It becomes an Act only once it receives royal assent.

Question 30

When can life peers ‘those appointed in the New Years’ honours list’ get involved in the bill process?

Answer 30

They can vote in the House of Lords as a life peer.