Primary and Secondary Law Making

Question 1

Dicey Limits on Parliamentary legislative power

Answer 1

External Limits: The Public can disobey and resist the law, therefore making it known to Parliament that they have acted contrary to public will

Internal: Each Member of Parliament moulded by their circumstance and Personal Moral feelings have a role to play in their decision making.

Question 2

EU Law:

Answer 2

Courts can display provisions of Primary Legislation that are not in accordance with EU law

Question 3

HRA S.4

Answer 3

The Judiciary can issue declarations of incompatibility when a piece of primary legislation cannot be reconciled with a provision under the European Charter of Human Rights

Question 4

Public Bills

Answer 4

government bills that are given most of the time in the Commons.
Most common bills and when passed, become general law
Usually the Source is Executive Manifesto’s

Question 5

Private Bills

Answer 5

Both MP’s and Lords can introduce their own bills

Question 6

Consultation papers (green/white)

Answer 6

Green Paper: Outlines initial views

White Paper: Government firmly lays out their policy.
after this the bill will be written by a team of government lawyers and will be introduced to the Commons.

Question 7

Current Draft bill process

Answer 7

They are only considered by Select committees

Reform of process: Oliver:
Checklists:
substantive: ensure compliance with EU law
Procedural: Consultation with relevant bodies affected
Informational: Include explanation of bill and policy

Question 8

R v Secretary of state ex. Fire Brigades Union

Answer 8

The Home secretary would not bring the statute into force as he was holding off on it until reform would be made.

HOL: His Decision was unlawful, he was entitled to decide when to bring the statute into force BUT he is not able to declare that he will never bring the statute into force, as this was contrary to what Parliament expressed within the Act

Question 9

Secondary (delegated) Legislation

Answer 9

Powers given to a minister which are derived from explicit provisions within a piece of Primary Legislation.
(power is derived from the Parent Legislation)

Question 10

Statutory Instruments

Answer 10

subject to parliamentary control, described in the parent Act. The instrument is laid before Parliament in either draft form or after it has been signed by ministers.

Question 11

Joint Committee on Statutory Instruments

Answer 11

A committee of both Houses that considers whether each SI falls foul of a number of specified technical flaws, outlined in the Standing Orders

Question 12

Statutory Instruments Uses: Framework Filling

Answer 12

Parliament may delegate matters of detail to the government to be made by secondary legislation.

Question 13

Statutory Instruments Uses: Commencement order

Answer 13

Ministers can decide when the time is right to bring into force sections of an Act of Parliament.
Gives Ministers time to implement the new Law and set everything up
Ex Parte Fire brigade Union:

Question 14

Statutory Instruments Uses: Implementing EU Law

Answer 14

European Communities act S.2(2) for the purpose of Implementing Directives

Question 15

Statutory Instruments Uses: Henry VIII clauses

Answer 15

Delegated legislation can be used to amend or repeal Acts of Parliament.

Question 16

Secondary Legislation: Judicial control

Answer 16

Since Parliamentary Sovereignty has no application with Secondary Legislation is it therefore opened up to Judicial Review Processes

Question 17

Javed v SSHD

Answer 17

Sought to give legal effect to a policy that certain countries should be designated as free from persecution, but claimants submitted Home Secretary had acted unlawfully in placing Pakistan on this list. Held that Home Secretary could not have reasonably concluded that women were not at risk from persecution in Pakistan, thus the Order in relation to Pakistan was quashed.

Question 18

Secondary Legislation and Parliamentary Sovereignty

Answer 18

The idea that the executive can make laws contradicts Dicey’s idea that Parliament is the only institution that can make or unmake any law and that no other body can override or set aside their legislation.

Question 19

Secondary Legislation and Rule of Law

Answer 19

Use of rule of law to constrain the Executive’s making of secondary legislation
Judges can strike down secondary legislation in breach of the rule of law

Question 20

Secondary Legislation and Separation of Powers

Answer 20

Contradicts with the idea that Parliament is in charge of the legislature, as the executive is also a part of the legislating process.