Legislation - primary & secondary, rules of SI

Question 1

What is primary legislation?

Answer 1

“Acts of Parliament”

put before parliament as Bills (draft legislation), debated and passed by both houses of Parliament (House of Lords & House of Commons).

Acts of Parliament receive “Royal Assent” formal approval by the monarch.

Question 2

what are bills?

Answer 2

draft legislation

the starting point

Question 3

What is secondary legisalation?

Answer 3

aka - subordinate legisaltion

law created by ministers (government) under the powers given to them by a ‘parent’ act of Parliament

It fills in the detail of primary legislation and provides practical measures which enable the law to be enforced and operate in daily life.

Question 4

What are the 2 types of secondary legislation

Answer 4

1. Public (or general) Acts

relate to matters of general public concern.

debated in both Houses of Parliament, and MPs or peers put forward outside bodies’ views to be considered for debate = Lobbying.

Public Acts make up by far the largest part of Parliamentary legislative output.

2. Private (or personal) Acts

relate to particular places or to particular people. T

usually stem from a proposal by a large organization such as a local authority or a large private company which wishes to acquire certain powers.

e.g, a local authority might be seeking a power to build a bridge.

The promoter
of a private Act is responsible for convincing Parliament of the desirability of the proposal.

Question 5

What are the 2 main categories of primary legislation?

Answer 5

1. Government Bill

policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department
promoting the Bill wants to bring into law.

It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (official government policy).

2. Private member’s bill

promoted by a particular Member of Parliament, normally through the Ballot system. They are given far less parliamentary time and so are often not successfully passed.

Question 6

What are the 5 steps in the primary legisaltion process?

Answer 6

1. First reading
2. Second reading
3. Committee stage
4. Report stage
5. Third reading

Question 7

Primary legisaltion process: what is the purpose of the first reading

Answer 7

• formality
• bill title is read out
• date set for second reading

Question 8

Primary legisaltion process: what is the purpose of the second reading

Answer 8

main principles debated by MPs

Question 9

Primary legisaltion process: what is the purpose of the committee stage

Answer 9

detail of the Bill scrutinised by a legislative committee

can be amended

Question 10

Primary legisaltion process: what is the purpose of the report stage

Answer 10

proposed amendments are debated

vote on the committee’s report

Question 11

Primary legisaltion process: what is the purpose of the third reading

Answer 11

final debate and vote on the Bill

if passed -> goes to other house

Question 12

Is Royal Assent a rule/ law or convention

Answer 12

convention; no legal rule formally requiring assent by monarch

Question 13

What does the Royal Assent Act 1967 provide?

Answer 13

Provides for how an Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary provision in the statute.

Legislation does not always come into force on the same day it was enacted. It is actually more usual for an Act to include a commencement section detailing when the Act is to come into force.

Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is concerned to issue a statutory instrument bringing the Act into
force.

Question 14

What are the 3 main structural elements of an Act of Parliament?

Answer 14

Short title

Long title

Date enacted

Question 15

Do courts have the power to invalidate an Act of Parliament?

Answer 15

No

Question 16

Does delegated (aka secondary/ subordinate) legisaltion have the same statutory force as primary legisaltion?

Answer 16

yes, equal statutory force

Question 17

What is the main power of the courts with regards to delegated legisaltion?

Answer 17

Courts have the power to examine whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is not.

Question 18

Which has more parliamentary scrutiny - secondary or primary legislation?

Answer 18

Primary legislation has more parliamentary scrutiny than secondary legislation.

Question 19

Can parliament amend secondary legislation

Answer 19

Parliament can either approve or reject but cannot amend it.

Question 20

What are the 5 main methods of statutory interpretation?

Answer 20

1. Literal rule
2. Golden rule
3. Mischief rule
4. Purposive approach
5. Contemporary approach

Question 21

What is the literal rule of statutory interpretation

Answer 21

Words to be given their ordinary, plain and natural meaning.

Linguistic presumptions are an important aid for this method of interpretation

Question 22

What is the golden rule of statutory interpretation

Answer 22

take whole statute together and construe all together.

Give words their ordinary meaning unless this produces an inconsistency/ absurdity so great as to convince the court that the intention could not have been to use them in their ordinary signification -> justifies the court putting on them some other meaning.

e.g: Adler v George (1964

FACTS: The defendant was charged with an offence under section 3 of the Official Secrets Act
1920 of obstructing a member of the armed forces ‘ in the vicinity of any prohibited place.
The defendant was in an RAF station which was a prohibited place for the purposes of
the Official Secrets Act. It was argued on his behalf that ‘in the vicinity of’ meant near to (not IN to), and since the obstruction had occurred within the prohibited place and thus fell outside the Act.

HELD: Parker LJ stated that it would be ‘absurd’ if it were an offence for an obstruction to take place just outside the RAF station but not where the obstruction took place in the RAF
station. He therefore held that ‘in the vicinity of’ should be read as ‘in or in the vicinity of.

Question 23

What is the mischief rule of statutory interpretation

Answer 23

note: defunct and has been completely subsumed into the purposive approach

examines original purpose of the provision

In Heydon’s Case (1584), it was stated that courts must consider four questions when applying the mischief rule:

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy for the mischief had Parliament intended to provide?
4. What was the true reason for Parliament adopting that remedy?

Question 24

What is the purposive approach of statutory interpretation

Answer 24

courts seek to determine the underlying purpose or intent of a statute.

This approach goes beyond the literal meaning of the words used in the legislation to consider what the lawmakers intended to achieve when they passed the statute.

It’s particularly relevant when dealing with legislation that could be ambiguous or where a strict literal interpretation might lead to an absurd or unreasonable outcome.

Degree of liberality influenced by context

Note: courts have been given additional powers of interpretation under HRA 1998 which allow them to interpret legislation in a purposive way to seek compatibility with ECHR

Question 25

What is the contemporary approach of statutory interpretation

Answer 25

combination of the literal and purposive approach

instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation,

If there is a tension between the literal and purposive approach -> purposive interpretation generally prevails where it provides a clear answer

Question 26

What are the 3 main linguistic presumptions used for SI?

Answer 26

1) Expressio unius est esclusion alterius -> The expression of one thing is to the exclusion of another.

2) Ejusdem generis -> Of the same kind.
3) Noscitur a socis -> A word is known by its associates.

Question 27

what is the Expressio unius est esclusion alterius linguistic presumption?

Answer 27

This phrase means that the express mention of one thing excludes its extension to others.

be used where there is a list of items with no general words that follow. The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated.

e.g: Tempest v Kilner [1846]

Statute of Frauds 1677 required that sale of ‘goods, wares and merchandise’ over £10 in value must be evidenced in writing. The question for the court was whether stocks and shares came within this definition.

HELD: As only those three types of transaction were mentioned, the court held that only those three transactions were covered, shares were not.

Question 28

what is the Ejusdem generis linguistic presumption?

Answer 28

‘of the same kind’ or ‘genus’

employed when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list.

The presumption is that, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific
words.

So, it is necessary to look at the specific words and see what characteristics they have in common.

e.g: In Powell v Kempton Park Racecourse [1899]

FACTS: A person was betting in Tattersall’s Ring, and the Betting Act 1853, in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.

HELD: The House of Lords held that the specific words, ‘house, office, room’ were all indoor
spaces; and so, the general words ‘other place’ would be taken to refer only to indoor areas. As Tattersall’s Ring was an open area at Kempton Park Racecourse, the defendant did not commit an offence under the Act.

Question 29

what is the noscitur a sociis linguistic presumption?

Answer 29

maxim states that “a word is known by the company it keeps”. This means that words of a statute are understood in the context of the statute itself.

wider application than ejusdem generis

applies where general words are (i) introduced by the words ‘or other’ or (ii) come at the end of a list.

e.g: Inland Revenue Commissioners v Frere [1965], the House of Lords considered the phrase ‘interest, annuities and other annual payments’, contained in s. 169 of the Income Tax Act 1952.

The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’. Noscitur a sociis was used here because it allowed the court to interpret the nature of one of the categories of things included in the legislation.