Legislation Flashcards
Explain Legislation
Legislation, sometimes referred to as a ‘source of law’ or an act of parliament or a statute all have the similar meaning - a law.
Legislation is often used as a synonym for ‘statutes’ however a statute is an Act of Parliament whereas Legislation is a generic term that includes different types of legislation such as secondary legislation and EU legislation for instance.
Legislation is ‘enacted’ by parliament - in this sense consisting of the House of commons, the house of lords together with the final approval of the crown called Royal Assent. The major role being played of course by the house of commons - consisting of the democratically elected members of parliament.
Define the ‘Rule of Law’
The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders.
Define Parliamentary sovereignty
Parliamentary sovereignty:
Statute is the primary source of law in England & Wales. This is a key consequence of the doctrine of parliamentary sovereignty, also known as parliamentary supremacy.
In the UK Parliament is sovereign because parliament has the right to make or unmake any law. Thus parliament is the supreme law-making body in the UK.
Even though England & Wales remains a common law jurisdiction with a sizable amount of case law (judge made law) parliament is at liberty to reverse the common law and no court can challenge the validity of an Act of Parliament. The ‘Enrolled Act’ Rule confirms this concep
Define public legislation
Public Legislation - Public legislation affects the general rule of the land i.e. the Coronavirus Act of 2020 and the Human Rights Act are both Public forms of legislation.
Define private legislation
Private (or local) legislation - Defined to confer particular powers or benefit on any person(s) in excess of, or in conflict with, the general law. Private legislation is of a local or personal nature. The Humber bridge Act 2013 is an example of private legislatio
Define Hybrid legislation
Hybrid Legislation - Hybrid legislation refers to public legislation which affects a private person or interest in a particular way.
The Channel Tunnel Act 1987 for instance. Its public legislation is that by allowing for the construction of a rail tunnel between the UK and France it potentially affects everyone in the UK however it is also private as certain parts of the act have very specific application.
Define an act
Acts - are known as primary legislation to distinguish them from secondary. Before it is enacted a statute is called a Bill. Public bills are introduced to parliament by members of parliament, usually government ministers concerning matters of public affairs as a whole.
Define private bills
Private Bills - are bills submitted to parliament by a person or body who needs parliamentary authority to get something done.
I.e. The Human Rights Act 1998 is a Public statute. All public statutes proceed through parliament as bills. Private members bills are public bills but they aren’t introduced on behalf of the government so do not benefit from the weight of any government majority.
Explain the distinction between private government bills vs members bills
Private government Bills are quite distinct from private members bills. The key distinction between the two is that government bills are endorsed by the government whereas private members bills are introduced into parliament from individual MP’s or peers.
However if/when a private member bull because an Act of Parliament it holds the same legal status.
Define a consolidation act
Consolidating Act - Consolidation occurs when one statute re-enacts law which was previously contained in several different statutes. There’s a presumption that consolidation does not materially change legislation - the presumption is rebuttable by an express statement of the Act or by the promoter of the Act. This is sometimes of importance.
Define a codifying act
Codifying Acts:
Codification occurs where all the law on a topic, which may have previously been covered by common law, is brought together in one new statute . The codifying statute may, if necessary, change the pre-existing law.
Define secondary legislation and statutory instruments
Secondary Legislation:
Also called delegated or subordinate legislation. Secondary legislation is any law not directly made by parliament or devolved legislature is called secondary legislation and can be made in a variety of forms.
The authority to make secondary legislation is usually obtained in a ‘parent’ Act which creates the framework of the law but delegates the power to add detailed provisions to others.
Statutory instruments - Statutory instruments are the most significant form of delegated legislation and it is a separate type of legislation in itself.
Statutory instruments enable parliament to call upon technical expertise to assist drafting regulations such as those relating to health or safety. Delegation can be extremely useful in dealing with emergencies i.e. in the coronavirus health crisis.
Explain some of the key types of statutory instruments (a form of secondary legislation)
The Types of statutory instruments:
Commencement orders - A number of SIs are used to bring parts of pre-existing acts of parliament into effect.
Remedial orders - A special type of statutory instrument made under 10(2) of the Human Rights Act 1998 which applies if a ‘provision of legislation has been declared under s4 to be incompatible with a convention right’ however is subject to certain pre conditionings.
Regulatory reform orders - The Legislative and Regulatory Reform Act 2006 had a controversial passage through parliament before being enacted. Section1(1) of the act states a minister ‘may by order (..) any provision which he conifers would serve by order in subsection (2) and section 1 (2) states that ‘purpose is removing or reducing the burden or overall burdens resulting directly or indirectly for any person from any legislation. The key reference being ‘any provision’ and ‘any legislation’.
ByeLaws -*Bylaws are made under the authority of parliamentary statute. They are usually made by local authorities. By laws cannot take effect until they’re confirmed by the appropriate minister.
Tertiary Legislation -Primary and secondary legislation are both created with a degree of legislative scrutiny and government is so complex that some rules need to be made by government departments without formal parliamentary examination.
Quasi-Legislation - Sometimes referred to as ‘soft’ law which is a category of rules passed with authority of parliament but in the form of guidance eg. some of the codes of practice. It often has a force of law. In the Highway code there’s ‘quasi-legislation’
Why is delegated legislation pr statutory instruments necessary?
Key reasons include;
Time constraints -If all legislation took the form of primary legislation then parliament would struggle with the mass of details required. An enabling (or parent act) lays down broad principles, leaving the details to be filled by delegated legislation
Complexity - the subject matter of much legislation is technical and highly complex so it wouldn’t be inappropriate to include this in an act of parliament. Not only would consideration of detail be limited, technical legislation be ineffective in the contentious atmosphere, but also the principles of the resultant legislation would be so difficult to comprehend.
Flexibility - allowance of delegated legislation allows account to be taken of local conditions and empowers local authorities to make provisions that are needed and considered appropriate.
