Section 3. Law - making Flashcards
What does a government issue if it is unsure about the legislation it wants to introduce?
A green paper
What does the government produce after a green paper?
A white paper
What is a green paper?
A document setting out options for legislation and inviting consultation
What is a white paper?
A more detailed statement of the government’s intentions
Why is consultation, before a new law is made, valuable?
- As it allows time for mature consideration
- From time to time governments are criticised for responding in a ‘knee-jerk’ fashion to incidents or a situation and, as a result, rushing through law that has subsequently proved to be unworkable
- E.g. The dangerous dogs act 1991
What is a bill?
A proposed law introduced into parliament
What are public bills?
- They involve matters or public policy that will affect either the whole country or a large section of it
- E.g. The constitutional reform act 2005, The equality act 2010, The criminal justice and courts act 2015, and etc.
Can private members bills be a public bill?
- If it affects the whole population then yes.
- E.g. The abortion act 1967
What are private bills?
Bills that are designed to pass a law that will affect only individual people or corporations, not the whole country.
What is an example of a Private Bill?
The UCL Act (1996)
What are private members’ (backbench) Bills?
A bill tabled by backbenchers as opposed to government bills and can be introduced by either members of the HofCs or HofLs who are not ministers
What are some examples of laws passed as the result of private members bills?
-The Abortion Act (1967) - Legalised abortion in GB
-The Marriage Act (1994) - Allowed people to marry in any registered place, not only in register offices or religious buildings
What are government bills?
These are introduced by the government. They are likely to become law as government business takes priority in parliament
What stages does the bill have to go through in the House of Commons/Lords first to become an act of parliament?
1.Origin (papers)
2. First reading
3. Second reading
4. Committee stage
5. Report stage
6. Third reading
7. (Sent to King for royal assent first)
What happens in the first reading in the House of Commons?
The bill is made available to MPs but is not debated or voted on at this stage
What happens in the second reading in the House of Commons?
Principle of the bill is debated and a vote may be taken if it is contested
What happens in the committee stage in the House of Commons?
- Bill is scrutinised in detail by a public committee whose membership reflects the strength of the parties in the Commons
- Amendments may be at this stage if the government is prepared to accept them
What happens at the report stage in the House of Commons?
Whole House considers amendments made at the committee stage and may accept or reject them
What happens at the third reading in the House of Commons?
-This is the final vote on the bill
- Amended bill is debated and voted in by the whole House
What happens after the bill has gone through the stages of it becoming law in the HofCs?
It is then passed on to the HofLS
What happens in the HofLs stages of a bill becoming law if the bill started in the HofCs?
- Bill goes through the same stages in the Lords, with the exception of the committee stage, which is carried out by the whole House
- The Lords can propose amendments
- The Commons has to decide whether to accept, reject or further amend these
What happens after both Houses have agreed on the bill proposal?
- Royal assent
- Monarch formally gives approval to the bill, making it law and an act of parliament
- This stage is a formality as the sovereign is a constitutional monarch
What is the importance of The Parliament Acts of (1911) and (1949)?
-The power of the House of Lords to reject a bill is limited by the parliament acts 1911 and 1949.
-These allow a bill to become law even if the House of Lords, rejects it, provided that the Bill is reintroduced into the House of Commons in the next season of parliament and passes all the stages again there
What are the advantages of the legislative process?
- Before bills reach Parliament, consultations like Green papers gather feedback on proposed law changes, allowing the government to consider objections and suggestions
- All bills undergo extensive scrutiny in both Houses ensuring thorough discussion before becoming law
- Parliamentary sovereignty dictates that laws passed by Parliament are supreme, can’t be questioned, and must guide judicial decisions made in court
- In times of emergency, law can be introduced, debated and, enacted on quickly. E.g. The Coronavirus Act (2020)
What are the disadvantages of the legislative process?
- The legislative process is criticized as undemocratic due to the unelected House of Lords, undemocratic royal approval, and MPs often being bound to ‘take the whip’ rather than voting according to their conscience or constituents’ interests.
- Due to government and parliament’s limited capacity, reforms can’t deal with all reforms proposed. For instance, the law on non-fatal offences like assaults awaits reform.
- The legislative process can span months. E.g., the Consumer Rights Act 2015 took 14 months. Emergency laws, however, like those addressing the COVID-19 pandemic in 2020, can swiftly pass
- Parliamentary sovereignty hinders the removal or amendment of poorly drafted or outdated laws like the Dangerous Dogs Act 1991, meaning additional legislation is required for change.
What is delegated legislation?
Allows government to make changes to a law without needing to push through a completely new Act of Parliament
What is the enabling act?
The authority given to ministers to issue declarations in the original act
What are the different types of delegated legislation?
- Orders in Council
- Statutory instruments
- By-laws
What are ‘Orders in council’?
- They’re made by the King and the Privy Council
- They give the PM and other leading members of the government the power to make laws without going through Parliament
- E.g. Making law in times of national emergency
What are statutory instruments?
- Rules and regulations made by government ministers under the authority of an enabling act
- E.g. Police Codes of Practice, such as ‘stop and search’
What are by-laws?
Laws made by local authorities that only apply to that specific area
What are the different ways Parliament control delegated legislation?
-Checks on the enabling act
-Negative resolution
-Affirmative resolutions
-Supper-affirmative resolution
-Scrutiny committees
How are are checks on the enabling act a way parliament controls delegated legislation?
- This is where the original act will set out what ministers can and can’t do if delegated legislation is required in the future
- Parliament can revoke these powers at any time
How is negative resolution a way parliament controls delegated legislation?
Means that the statutory instrument will become law unless rejected by Parliament within 40 days
How is affirmative resolution a way parliament controls delegated legislation?
Means that a statuary instrument must be either approved, annulled or withdrawn (Can’t be amended)
How is super-affirmative a way parliament controls delegated legislation?
- This is when DL is made under the Legislative and Regulatory Reform Act 2006
- Parliament is given greater controls in this area as ministers are given very wide ranging powers
How are scrutiny committees a way parliament controls delegated legislation?
- They can only scrutinise the technicalities of statuory instruments, not policy
- They can refer any matters arising back to Parliament but can’t make any changes
How effective is the scrutiny of committees?
-It can be said to be effective as the committee are able to check a number of statutory instruments
-However, due to the number of statutory instruments made each year, the committee are unable to thoroughly check all of them
How effective is the affirmative resolution procedure?
-When this procedure is required there will be some debate in parliament and it will usually be used for very important and potentially controversial matters
-However, it is a time consuming procedure and it relies on time bing allocated to debate
How effective is the negative resolution?
-As there are so many statutory instruments, it is likely that only a few will be looked at in detail.
-This procedure is considered to have limited effect as there is no strict requirement to look at statutory instruments made under this procedure
What ways do the courts control delegated legislation?
-Procedural ultra vires
-Substantive ultra vires
-Wednesbury unreasonableness
How can delegated legislation be challenged in court?
- A person with sufficient standing or interest in the case
- Can be challenged by the judicial review on the ground its ultra vires
What is ultra vires?
- Delegated legislation has gone beyond the powers given by Parliament in the enabling act
- If this is found, legislation/decision will be void and of no effect
What is procedural ultra vires?
-It is ultra vires because the correct procedure set out by the enabling act has not been followed
- E.g. Aylesbury mushrooms case (1972) - His failure to consult the mushroom growers’ association meant that an order setting up a training board was invalid as it was against the interests of mushroom growers generally
What are substantive ultra vires?
- This is when a rule making body has no substantive power under the empowering act to make the rules in question e.g. acting beyond what is authorised
- E.g. R v Home Secretary, ex parte Fire brigades union (1995)
What is ‘Wednesbury unreasonableness’?
-This is when a decision is so unreasonable (or irrational) that no reasonable body or authority would ever consider imposing it
- E.g. R v Swindon NHS trust (2006)
What is an advantage of judicial controls?
-It is positive that an individual person or body has the ability to challenge a piece of delegated legislation or a decision made by a public body
What are the limitations on judicial controls?
- Likely that a challenge will be made against a govt. department or public body, which are likely to have greater resources and funding to defend the legislation or decision
- An action will have to be launched within 3 months of the decision having been made, and there will be no state funding or legal aid available for the challenge
- A court doesn’t have the power to strike down a piece of legislation due to the principle of parliamentary supremacy
What are the reasons for the use of delegated legislation?
- Detailed law
- Expert knowledge
- Local knowledge
- Consultation
How is detailed law a reason for the use of delegated legislation?
- Parliament doesn’t have time to deal with all the detail needed
- Using this means parliament has control through the use of enabling acts
How is expert knowledge a reason for the use of delegated legislation?
- Parliament may not have the necessary technical expertise or knowledge required to draw up the most effective laws e.g. health and safety regulations
- Thought to be better if parliament debate on the main principles thoroughly, but leave the detailed to be filled in by those who have expert knowledge of it
How is local knowledge a reason for the use of delegated legislation?
- For by-laws, local councils know their own areas and can decide which areas need drinking bans or what local parking regulations there should be
- Would be impossible for Parliament to deal with all the local requirements of all cities, towns, etc. in the country
How is consultation a reason for the use of delegated legislation?
- Important for rules on technical matters
- Ministers can have the benefit of consultation before having regulations drawn up
What are the advantages of delegated legislation?
-Time saving
-Allows consultation
-Allows quick law making
-Access to expertise
-Easy to amend
How is time saving an advantage of delegated legislation?
- Parliaments doesn’t have time to consider and debate every small detail of complex regulations
- Making such regulations through DL saves time
How is allowing consultation an advantage of delegated legislation?
- Can have the benefit of further consultation before regulations are drawn up
- Particularly important for rules on technical matters
How is quick law making an advantage of delegated legislation?
- An act of Parliament can take time and in a emergency parliament may not be able to pass law quickly enough
- Orders in council can be made very quick to deal with disasters in threats
How is access to expertise an advantage of delegated legislation?
- Modern society has become very complex and technical so makes it impossible for members of parliament to have all the knowledge needed to draw up laws on complex areas
- By using DL, the necessary experts can be consulted
How is easy amendment an advantage of delegated legislation?
- Delegated legislation can be easily amended or revoked without having to go back to parliament
- Useful when monetary limits have to change yearly e.g. minimum wage
- Can respond to new or unforeseen situations by introducing a statutory instrument
What are the disadvantages of delegated legislation?
- Undemocratic
- Sub-delegation
- Large volume and lack publicity
- Difficult wording
How is being undemocratic a disadvantage of delegated legislation?
- DL take slaw making away from the democratically elected HofCs and allows non-elected people to make law
- However, this criticism can’t be made of by-laws made by local authorities since these are elected bodies and accountable to the local citizens
How is sub-delegation a disadvantage of delegated legislation?
- Law making authority is handed down another level
- Causes comments that much of our law is made by civil servants and merely ‘rubber stamped’ by the minister of that department
How is large volume and lack publicity a disadvantage of delegated legislation?
- The large volume of DL gives rise to criticism since it makes it difficult to discover what the present law is
- This problem is aggravated by a lack of publicity, as much DL is made in private and passed through parliament without debate
How is difficult wording a disadvantage of delegated legislation?
Complex and obscure wording that can lead to difficulty in understanding what the law means
What is statutory interpretation?
- Where judges give a meaning to the words of an act of parliament when they are delivering their judgement in court
What are the three rules of interpretation judges use to define words?
- The literal rule
- The golden rule
- The mischief rule