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UK Law Making Flashcards

1
Q

Primary Law Making: The Law Making Process (5+2)

A

1) Green Paper
2) White Paper
3) Draft Bill
- -> Pre-legislative scrutiny
4) Bill Introduced into Parliament
5) Act
- -> Post-legislative scrutiny

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2
Q

Primary Law Making: Bill in Parliament (6 stages)

A

HoC —> HoL (each stage)

1) 1st Reading
2) 2nd Reading
3) Committee Stage
4) Report Stage
5) 3rd Reading
6) Royal Assent

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3
Q

Who controls the legislative process?

A

The executive

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4
Q

How does the Executive control the legislative process?

A
  • Pre/Post legislative scrutiny
  • Drafting
  • Majorities on committees
  • Timetabling
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5
Q

How does Parliament influence legislation

A
  • Internally (via party, cross party negotiation)

- Rebellions and defeats (HoC, HoL)

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6
Q

Who does Secondary Law Making?

A

-Parliament delegates power of law making to the executive

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7
Q

Secondary Law Making Functions? (5)

A

1) Commencement clauses
2) Framework Filling
3) Giving Effect to EU Law
4) Henry VIII clauses
5) Regulatory Reform Orders

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8
Q

What is the Key Issue of Secondary Law Making?

A

This shift of power from Parliament to the Executive

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9
Q

Examples of Henry VIII clauses

A
  • HRA 1998 s.10(2)
  • ECA 1972 s.2(2)
  • Legislative and Regulatory Reform Act 2006 s.1(1)
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10
Q

The Process of Secondary Law Making

A
  • Drafted by Department Lawyers
  • Consultation
  • +/- Procedure
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11
Q

Scrutiny of Secondary Law Making

A
  • Select Committees:
  • -> Joint Committee on Statutory Instruments
  • -> House of Lords Secondary Legislation Scrutiny Committee

-Judicial Scrutiny:
Effective but too late

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12
Q

Primary Law making- limits on Parliamentary Sovereignty

A

MPs are subject to:
o External limits: Public can disobey and resist laws made by Parliament,
o Internal limits: Each MP moulded by circumstances under which they live: moral feelings and the society in which they belong.

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13
Q

Primary Law making- limits on Rule of Law

A

Human Rights Act 1998

  • Debate over the extent to which British judges should have the power to adjudicate on the validity of Acts of Parliament
  • UK Courts can disapply provisions in legislation that are not in accordance to EU law
  • Senior courts have power to make declarations of incompatibility for provisions in conflict with Convention rights
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14
Q

Primary legislation: Type of Bills (2)

A

Public Bills
- • Most common bills and when passed, become general law.

Private member bills
- Both MP’s and Lords can introduce their own bills. These are types of public bills.

Private Bills
- Local and one-off changes to the law, and aren’t too common.

Hybrid Bills
- Mixture of private and public bills.

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15
Q

Primary Legislation: Six stages of policy making process

A

1 • Subject becomes an issue
2 • Issue gets onto the policy agenda
3 • Government investigates an issue
4 • Government takes a decision (pre-legislative process ends, legislative process starts)
5 • Stages of legislation and legitimization
6 • Final stage of policy implementation and review

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16
Q

Primary Legislation: Consultation?

A

Major aspect of policymaking:
• Green Paper is published, outlining government’s initial views on a proposed policy, announcing proposals for discussion
• White Paper follows some time after, government lays out more firmly its policy plans
• Bill is introduced to Parliament

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17
Q

Primary Legislation: Drafting

A
  • Written by a team of the parliamentary counsel, government lawyers.
  • Act on the basis of formal instructions sent by departments, and their work is allocated to pairs of small teams of counsel.
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18
Q

Primary Legislation: Commencement

A

After a Bill has completed its passage through Parliament and received Royal Assent, it must be brought into force by commencement.

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]

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19
Q

Primary legislation: Proposal for reforms

A

Feldman (2002)
• Case for reform as parliamentarians are part-time legislators: scrutiny takes up concentration and time which could be spent on other more meaningful jobs or for rest

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20
Q

Secondary Legislation: What is secondary legislation?

A

Also known as delegated legislation, these are laws which derive their legitimacy from powers given to a minister or a department in primary legislation (Act of Parliament).

  • Must have explicit provision in primary legislation
  • Have ‘parent’ primary legislation
  • Can be declared invalid in courts if they are judged not to be consistent with the powers granted in the parent legislation, or if made invalidly
21
Q

Secondary Legislation: Secondary legislation procedure

A

Statutory instruments (SI) are 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.

22
Q

Secondary Legislation: Parliamentary scrutiny of SIs

A

Joint Committee on Statutory Instruments:
- A committee of both Houses that considers whether each SI falls foul of a number of specified technical flaws, outlined in the Standing Orders

House of Lords Secondary Legislation Scrutiny Committee:
- Examines the policy merits of any SIs laid before the House of Lords that are subject to parliamentary procedure.

23
Q

Secondary Legislation: Affirmative Procedure

A
  • Less common procedure
  • SI must receive Parliament’s approval before it can come into force or remain in force
  • Usually laid in form of a draft Order, and orders to be official SIs need to be approved by Parliament, by motion to approve by both Houses within 28 days

• Some come into effect immediately after being laid, but still require approval within usually 28 days (or 40)

24
Q

Secondary Legislation: Uses

A
  1. Framework Filling
  2. Commencement orders
  3. Henry VIII Clauses
  4. Regulatory Reform Orders
25
Framework Filling
Parliament may delegate matters of detail to the government to be made by secondary legislation.
26
Henry VIII Clauses
Delegated legislation can be used to amend or repeal Acts of Parliament. [ECA 1972, s. 2(2) & (4)] (Example) Empowers the executive to alter statutes in order to bring UK law in line with Community obligations.
27
Henry VIII Clauses Issues
* Prospective Henry VIII clauses threaten to fetter future Parliaments, contradicting the parliamentary sovereignty entrenchment ideology * Argues that does not effect sovereignty as an earlier Parliament cannot place substantive limitations on a later. * However, counter argues that implied repeal from later statutes only applies when they stand on the same subject-matter, as seen in the Thoburn case.
28
Regulatory Reform Orders
Used to assist with government policy relating to regulation of business activity. [Legislative and Regulatory Reform Act 2006] s. 1(1) & (2): Minister can make any provision that they consider would serve the purpose of removing or reducing any burden resulting for any person from any legislation.
29
Secondary Legislation: Judicial Control
Principle of parliamentary sovereignty has no application to delegated legislation, thus judicial review is applicable: • Illegality • Procedural impropriety • Irrationality • EU law • Contrary to s.6 HRA, quash the order for no legal effect rather than DOI R(Javed) v SSHD [2001]
30
R(Javed) v SSHD [2001]
• Court of Appeal had to consider whether the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 (SI 1996/2671) had been lawfully made by the Home Secretary. 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.
31
Secodary Legislation and Parliamentary Sovereignty
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. • Executive holds power as sections of Acts may not be brought into force and not binding, contrary to Parliament’s intentions • Henry VIII clauses, Ministers overruling Parliament-made law
32
Secodary Legislation and Rule of law
* 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 * Citizens and legal advisers struggle to work out whether a provision in an Act has come to force or not
33
Secodary Legislation and Separation of powers
* Contradicts with the idea that Parliament is in charge of the legislature, as the executive is also a part of the legislating process. * However, relieves Parliament of some burden of legislating.
34
Commencement orders: Purposes + Consequences
Used to bring into force primary legislation by the government when it feels that it is ready. Allows time for the infrastructure of an Act to be created first. Normally not subject to Parliamentary scrutiny Consequence: 1. Undermines Parliamentary Sovereignty a. Some sections of Acts are never brought into law b. Government can go against the will of Parliament by not enacted the Act 2. Problems with the openness and accessibility of law a. Unsure when the commencement order will be used
35
Framework Filling: Purposes + Problems
Used to give Acts more detail through secondary legislation Keeps primary legislation uncluttered Greater flexibility in updating law Problems: 1. Leads to the creation of skeletal bills 2. Often determines principles rather than details 3. Increased powers to Ministers 4. Lack of parliamentary scrutiny 5. Greater uncertainty 6. More difficulty discovering the actual law
36
Implementation of EU Law: Purposes + Problems
Delegated legislation is used to implement EU directives Faster and less likely to be scrutinized Problems Lack of scrutiny Replaces an responsibility that should be performed by Parliament, rather than by Ministers
37
Henry VIII Clauses Purposes + Problems
Delegated legislation used to amend or repeal Acts of Parliament (Primary Legislation) Used to make small amendments to Acts rather than sending it through Parliament (more efficient). Problems 1. PS- doesn’t get put through parliament 2. SOP: Gives Executive a lot of power 3. Goes against the will of Parliament (if misused) 4. Rule of Law: Judicial Review is possible
38
Regulatory Reform Orders: Purposes
i. Assists with government policy relating to regulation of business activity. ii. Too much “red tape” iii. Makes the process more efficient
39
Negative Resolution procedure + Parliamentary scrutiny?
* SI becomes law on the date stated on it unless it is annulled * Either house may pass a motion to cancel the SI * Motion calling for an annulment is called a “prayer” * In the commons, any member may call for an annulment * In the House of Lords, an individual member can table it and it will be usually debates, but rarely voted on. Parliamentary scrutiny: • Negative procedure needs more o Committee that scrutinizes it before it can be enacted? (check list?)
40
Judicial review of Delegated legislation
• Yes • All delegated legislation is subject to judicial review (even through the Affirmative procedure) • Delegated legislation should be judicially reviewed in respect to those passed through the negative procedure o Will not be reviewed otherwise
41
UK law making process and constitution principles: | • Principles of Parliamentary Sovereignty
o Government really controls the power over the process, not so much Parliament o The Government initiates policy, drafts Bills, follows Bills through the process, and decides when it is brought into force. o Government controls timing and content of legislation o Politicians, rather than the judiciary, have the final say about whether an Act of Parliament is valid and should be recognized as binding law o Political process of making legislation ensures that it reflects the wishes of the electorate
42
UK law making process and constitution principles: | • The Rule of Law
o Since 1973, UK courts and tribunals have the power to dis-apply provisions that do not follow EU law. o Only have power to declare provisions incompatible, not nullify them. o Legislation confers powers on government. o Gives minister broad discretionary powers
43
UK law making process and constitution principles: | • Separation of Powers
o Government has the dominant influence over the legislative process (i.e. Acts of Parliament & Delegated Legislation) o The Government initiates policy, drafts Bills, follows Bills through the process, and decides when it is brought into force. o Government controls timing and content of legislation
44
o Delegated Powers and Regulatory Reform Committees
* Monitors the inclusion of Henry VIII powers in Bills | * Reports any concerns to the House of Lords
45
Role of the Executive in the primary law making process
Drafting - Executive chooses who is consulted, when, and how long - Gov't drafts the Bill - Gov't introduces it Pre-Legislative Scrutiny - Gov't if it occurs - Gov't typically chooses the committee 1st Reading - Executive introduces 2nd Reading - Gov't creates timeline - Controls by creating a time table Committee Stage - Commitee reflects the house - Favours the Gov't - Executive in control Report Stage - Gov't holds majority - Executvie typically gets its way 3rd Reading Royal Assent
46
Parliament power in the law making process?
* HoC can affect change by amending the Bill * Parliament has subtle power * Can threaten to Rebel * Ex: House of Lords Reform Bill * Ex: Decision to use military force in Libya
47
HOL power in the primary process
* Filibuster the Bill * Can’t veto, but can affectively veto by: * Delaying legislation for up to a year * Which effectively amounts to a veto
48
Secondary law making Stages
Drafting stage • Executive dominance • Drafted by lawyers • No input from parliament ``` Committee stage • House of Lord secondary legislation scrutiny committee • Another one? • Operate on a cross party basis • Relatively neutral ``` ``` Procedures 1) No procedure • Not that important • Other 2 more important 2) Negative procedure • passes unless someone complains within 40 days • typically, no one complains 3) Affirmative procedure • Both houses must agree to it • Rarely scrutinized ```

Public Law (5 decks)

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