LEGISLATION REVISION NOTES

WHY DO WE NEED LEGISLATION?

New laws are required to meet changing society. (Old laws become outdated.) Judicial precedent can be inefficient because it is slow and undemocratic. Pressure on Government to make new law. Different Governments policies mean change in law.

HOW DO WE LEGISLATE? UK Parliament makes our National Laws (around 60-70 Acts each year) Parliament is supreme in developing the law as Acts (or statutes) of Parliament &

cannot be ignored by the courts. 2 Types of legislation:

1. Acts of Parliament2. Delegated or Subordinate Legislation.

UK PARLIAMENT

So far as law making is concerned Parliament consists of 3 elements All 3 must consent for a law to be established

THE HOUSE OF COMMONS The House of Commons is made up of 646 Members of Parliament (MPs). Each

elected by a simple majority to represent a constituency. There is a general election at least once every 5 years, though it can be called sooner

by the PM. By-elections in constituencies can also take place during these 5 years The Government of the day is formed by the political party which has a majority in

the House of Commons.

THE HOUSE OF LORDS

At the beginning of 2007 the House consisted of : 92 hereditary peers Life peers The judges who are the Law Lords (Lords in Ordinary) The most senior bishops in the Church of England (Lords Spiritual) Totalling around 720 people

In 1999 the government reduced the number of hereditary peers – as an interim measure until abolition of them – down to fewer than 100. This means that the hereditary principle was abolished and that life peers are now the majority.

Government as yet is undecided how peers will be chosen in the future. Royal Commission has suggested a mixture of elected and nominated.

JUDGES IN THE HOUSE OF LORDS

It is important not to confuse the HL’s in its legislative function with the HL’s as an appeal court.

It is agreed that the judges should not sit as part of Parliament. A new Supreme Court will open later this year to replace the judicial Committee of

the HL’s. The judges will cease to become members of the HL’s and will no longer sit in Parliament.

INFLUENCES ON LAW MAKING The Government Programme (party manifesto) – Announced in Queens

speech each November EU law - the UK may introduce a piece of legislation as a response to an EU

directive or regulation e.g. Consumer Protection Act 1987; or because a decision of the ECJ has shown that our law is not compatible with the Treaty of Rome e.g. Sex Discrimination Act 1986

Law reform agencies proposals – e.g. reform of the defence of provocation recently announced.

Specific Events – e.g. Dunblane massacre led to the banning of private ownership of most handguns; 9/11 led to Anti Terrorism, Crime and Security Act 2001

Pressure Groups – e.g. reduction of age of consent for homosexual acts in private from 21 to 18 and the Civil Partnerships Act 2004

LEGISLATIVE PROCESS

PRE-LEGISLATIVE

A Green Paper is issued by the minister with responsibility for that matter in question. It is a consultative document. The Government’s view on an issue is put forward

with proposals for reform. Interested parties are invited to comment so that consideration is given to all sides

and changes can be made to the proposals.

Following this the Government will publish a White Paper with its firm proposals for new law.

DRAFT BILL

Every Act of Parliament begins life as a bill. A bill is a draft law and may fall into one of three categories.

1. GOVERNMENT BILL The most common bill They are public bills put forward by the Parliamentary Party in power. Government policies are set out in the party manifesto. Bills based on these tend to be passed through Parliament easily – it is recognised

that the party was voted into power because of these policies. Proposals for bills for the coming year are included in the Queens speech each

November. E.g. Criminal Justice Act 2003; Constitutional Reform Act 2005

2. PRIVATE MEMBERS BILL

These are also public bills. They are put forward by individual backbench members of Parliament (MP’s) whose

names have been selected by ballot (20 per year) Time for debate on these bills is limited and so few become law unless they have

government support. Important Acts passed in this way include the Abortion Act 1967 and the Computer

Misuse Act 1990.

3. PRIVATE BILLS

These are the least common type of bill. They might be introduced to Parliament by large public corporations and only affect

a particular area or group in the community, not the general public. So, public bills affect the whole country, whereas private bills only affect a section of the community.

The Bill, once drafted to the approval of Minister (s), is then sent to one of the Houses (usually HOC).

FIRST READING The bill is introduced to the HOC. This merely notifies the House of the bill and its subject matter. There is no debate.

SECOND READINGExplained by Minister and followed by a ‘political’ debate about the principles of the bill, followed by a vote.

COMMITTEE STAGE Follows the second reading. Between 16 and 50 MP’s – proportionate to party in House - who know the subject area will examine the details of the bill clause by clause, line by line.

THIRD READING This usually coincides with the report stage and marks the final debate on the bill in its amended form. Something of a formality since there can be no changes to the substance of the Bill

OTHER HOUSE Any amendments will only be effective if agreed by HOC. Major function of HOL is to invite the HOC to reconsider. If agreement not reached, Commons may send the Bill for Royal Assent after a year.

ROYAL ASSENT The monarch gives approval to the bill. This is a formality and is not undertaken by the queen personally. Once it reaches Royal Assent stage it should reflect the ‘General Will’ of the people. Never since 1707 has it been refused.

Green Winged Dragons Fly Slowly Clockwise Round The Old Ruin.

A commencement order will state the time of inclusion into law Some Acts are immediate and some in part The Human Rights Act

EVALUATION OF THE LEGISLATIVE PROCESS

Renton Committee 1975 – 4 categories of complaints

1. The language used in many Acts was obscure and complex (this results in lots of cases going to court so that the judges can interpret)

2. Acts were ‘over elaborate’ because draftsmen tried to provide for every contingency 3. The internal structure of many Acts was illogical with sections appearing to be out of

sequence, making it difficult for people to find relevant sections4. A lack of clear connection between Acts, so that it was not easy to trace all the Acts,

on a given topic. The frequent practice of amending small parts of one Act by passing another increased the difficulty in finding out what the law was.

Lack of accessibility

e.g. Criminal Justice Act 2003 has 339 sections and several schedules – makes it difficult to access by the public, lawyers and even the Lord Chancellor. It took years to bring the majority of sections into force – where sections are brought in at different times it makes it difficult to know what the law is.

In order for democratic law making to improve the following principles should be taken account of:

Laws are made for the benefit of citizens and therefore they should be involved as fully and openly in the process

Statute law should be rooted in the authority of Parliament and appropriately scrutinised (improved scrutiny over delegated legislation)

Statute law should be as certain and intelligible as possible Statute law should be as accessible as possible Getting the law right is as important as getting it passed quickly.

PARLIAMENTARY SUPREMACY

Legislation is sovereign over other forms of law in the ELS Can overrule any custom, judicial precedent, delegated legislation or former

legislation Based on the idea of democratic law making (made by elected parliament) There are no limits on what Parliament can legislate on and it can also change its

own powers Each new Parliament should be free to make or change the law as it wishes – not

bound by law made by a previous parliament. (there are some limitations) An Act of Parliament cannot be overruled or challenged by the courts

Limitations

Membership of the EU – EU laws take priority over English law even where the English law was passed after the relevant EU law.

Human Rights Act – All Acts of Parliament must be compatible with the European Convention on Human Rights. Under s.4 of the HRA the corts hace the power to declare an Act incompatible with the ECHR.

TYPES OF EXAM QUESTION

a) Source A at lines 2–3 refers to making an Act of Parliament.

Describe how an Act of Parliament is created. [12]

REVISION NOTES DELEGATED LEGISLATION

Delegated legislation is law made by some person or body other than Parliament, but with the authority of Parliament.

WHAT YOU NEED TO KNOW:

The main types of delegated legislation How delegated powers are controlled

WHAT YOU NEED TO DISCUSS The advantages and disadvantages of delegated legislation The effectiveness of the various forms of control.

WHAT IS DL?

Stemming from the Local Government Act 1972, Delegated legislation is a law made by someone other than Parliament, but with the authority of Parliament.

The authority is usually laid down in a ‘Parent’ Act, known also as an enabling Act, which creates the framework of the law, allowing delegated legislation to make more detailed law in the area.

WHY?

Parliament does not have the time to debate every detail of every Act. Parliament will not always have the necessary expertise to deal with a particular

issue. Delegated Legislation can be changed more easily, which allows quicker response to

changing circumstances Parliament can not always respond quick enough in emergencies

TYPES OF DL?

1. Statutory Instruments - rules, regulations and orders, issued by ministers, national in effect

2. By Laws - issued by local authorities (and some public corporations), local in effect

3. Orders In Council - issued by the Privy Council, generally only used in emergencies

STATUTORY INSTRUMENTS Generally introduced by ministers of Government Departments under powers given

in Enabling Acts, e.g. Access to Justice Act 1999 They are introduced by an either affirmative or negative resolution procedure. Negative Resolution - the most common procedure, there is no debate on the issue.

The SI will become law unless rejected by Parliament within 40 days. Affirmative Resolution - Less common than the negative procedure, but offers more

stringent parliament control, due to the debate that follows and it needs Parliaments approval before being enacted.

Over 3,000 are brought into force each year Examples – Lord Chancellor’s powers regarding legal aid schemes under the Access

to Justice Act 1999 LRRA 2006 - gives Ministers power to make ANY provision by order if it will remove

or reduce a ‘burden’ resulting from legislation: A financial cost An administrative inconvenience An obstacle to efficiency, productivity or profitability A sanction which affects the carrying on of any lawful activity

So Ministers can change Acts of Parliament even though the original Act didn’t give them power to do so. Quite a wide power.

BY LAWS

Made by local authorities to cover local issues or by public corporations; They involve matters of local concern Generally passed under the Local Government Act (1972) An example could be the ban on smoking on the London Underground (before the

blanket smoking ban).

ORDERS IN COUNCIL

Introduced by the Queen or the Privy Council in times of emergency under the Emergency Powers Act (1920); (The Privy Council are a board of Senior Ministers past and present, that meet with the monarch).

Only used in emergency, particularly when Parliament is not sitting. Main function today is to give effect to EU directives Occasionally used to make other types of law e.g. to alter the Misuse of Drugs Act to

make cannabis a class C drug in 2004. TYPICAL EXAM QUESTIONS

a) Describe and illustrate bylaws and two other types of delegated legislation. [15]

(b) Identify and explain which type of delegated legislation would be most appropriate to introduce a law relating to each of the following:

(i) parking restrictions in a district or town; [5]

(ii) the implementation of regulations outlined in an Enabling Act relating to the use of mobile phones in cars; [5]

(iii) powers needed to deal with an emergency situation. [5]

b) Identify and explain the most suitable type of delegated legislation to implement law in the following situations.

(i) A national emergency such as an outbreak of war involving the UK. [5]

(ii) Where an enabling Act authorises the issuing of regulations concerning police powers. [5]

(iii) The local imposition of penalties for dogs fouling footpaths. [5]

THE NEED FOR CONTROL Because it does not go through Parliament DL results from transferring law-making powers from the legislature to the executive Delegated powers must be subject to effective checks and controls to ensure

accountability and prevent misuse

METHODS OF CONTROL

Parliaments Control

The enabling Act sets boundaries within which the Delegated Legislation is to be made.

The use of Affirmative/Negative resolutions Parliamentary Scrutiny Committee : set up in 2003 in HLs – looks at appropriateness

of provisions of any bills that give delegated legislative power and reports findings to HLs before the committee stage. BUT HAS NO POWER TO AMEND!!

They can question the Minister that first introduced the legislation. Parliament can at any time revoke the delegated power

Scrutiny Committee Joint Select committee on SI formed in 1973 Reviews all SI’s and where necessary draws Parliaments attention to points

that need further consideration. The main grounds for referral are that:

It imposes a tax or charge It appears to have retrospective effect which was not provided for

by the enabling act It appears to have gone beyond the powers given under the

enabling act or makes some unusual or unexpected use of the powers

It is unclear or defective. IT CAN ONLY REPORT AND REFER – IT HAS NO POWER TO ALTER!

LRRA 2006 This sets out the procedure for the making of SI’s which are aimed at removing a

burden of an act. S.13 – the minister must consult various people Orders made under the Act must be laid before Parliament either by:

Negative resolution (same as under enabling act SI’s) Affirmative resolution (same as under enablig act SI’s) Super-affirmative resolution – the minister must have regard to any

representations, any resolution of either H of P and any recommendations of a committee of either house.

GIVES PARLIAMENT MORE CONTROL OVER DL MADE UNDER THE 2006 ACT.

Judicial Control

Judicial Review: Done by the Queens Bench Division of the High Court DL Can be challenged in the courts on the grounds of Ultra Vires

(substantively or procedurally) Any DL which is rules to be ultra vires is void and not effective (R v Home

Secretary, ex parte Fire Brigades Union where changes made by the Home secretary to the Criminal Injuries Compensation Scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1988).

substantive ultra vires – beyond the power given under the enabling Act. R v Secretary for Social Security (1996)

procedural ultra vires - subject matter intra vires but serious failure to comply with a mandatory procedural requirement - e.g. failure to consult (Agricultural Training Board v Aylesbury Mushrooms (1972) – where the Minister of Labour had to consult ‘any organization…..appearing to him to be representative of substantial numbers of employers engaging in the activity concerned.’ His failure to consult mushroom growers, which represented about 85% of al mushroom growers meant that his order establishing a new training board was invalid as against these mushroom growers.)

Courts can declare a piece of Delegated Legislation invalid if it is deemed unreasonable – Strictland v Hayes Borough Council (1896) – a bylaw prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was to be unreasonable and so ultra vires, because it was too widely drawn in that it covered acts done in private as well as those in public.

There is an assumption that unless an enabling act expressly allows it, there is no power to levy taxes or allow sub-delegation.

R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000)

SI setting conditions for appraisal and access to higher rates of pay for teachers went beyond the powers given under the Education Act 1996 (SUBSTANTIVE ULTRA VIRES)

In addition, the procedure used was unfair as only four says had been allowed for consultation (PROCEDURAL ULTRA VIRES)

STATUTORY INSTRUMENTS CAN ALSO BE DECLARED VOID IF THEY CONFLICT WITH EU LEGISLATION.

TYPICAL EXAM QUESTION

(b) Explain in the following situations if there would be a successful judicial review

(i) A government minister wishes to repeal an old law. He has not consulted relevant bodies, which are affected by the proposals, before introducing new regulations [5]

(ii) A government minister is given power to make regulations concerning legal funding. He has now introduced a regulation on immigration. [5]

(iii) A government minister has made regulations which are argued to be unreasonable [5]

THE EFFECTIVENESS OF CONTROL Parliaments powers are limited The parameters set by the Enabling Act are a starting point in controlling Delegated

Legislation. If ministers exceed these parameters judicial review on the grounds of substantive ultra vires is likely.

Under affirmative resolution procedures, Parliament can only approve, annul or withdraw, not amend.

The Scrutiny Committee has no power to alter the statutory instrument; it can only refer it back to Parliament on certain technical matters;

Judicial review relies on an individual starting a claim. This can be affected by a lack of knowledge due to volume or limited finances;

Potential ultra vires (as mentioned above) is limited due to the breadth of most Enabling Acts. They give wide powers to ministers which makes ultra vires claims limited.

ADVANTAGES & DISADVANTAGES

Parliament has limited time and too much to do so delegation frees up some time. Parliament lacks the technical expertise in specialist areas such as health and safety

– it’s better to leave the detail to experts in the field Some areas of legislation benefit from local knowledge rather than centralised view

of what might be appropriate (bylaws) Can be passed quickly to deal with emergencies (orders in council) Allows greater flexibility to amend or revoke than an Act of Parliament

BUT…. Undemocratic – not made by those who elected into power. But is it a necessary

evil? (time and lack of expertise of parliament) Overused – volume makes it difficult to discover what the present law is which is

aggravated by lack of debate and publicity. Sub- Delegation – law made by civil servants and merely rubber stamped by the

minister Lack of Control – parliamentary scrutiny is limited; limitations of judicial review

(relies on individual starting a claim) Problems of interpretation – can be as bulky and complex as statutes

TYPICAL EXAM QUESTIONS

(c) With reference to Source B and your knowledge of delegated legislation:

(i) state the reasons why delegated legislation is needed; [15]

(ii) discuss the disadvantages of delegated legislation. [15]

c) With reference to Source B: (i) describe the controls on delegated legislation; [15]

(ii) discuss the effectiveness of the controls of delegated legislation. [12] Mark Levels AO2

(Cii) Using both sources and you own knowledge, discuss the statement that ‘Despite the controls over delegated legislation, the reality is that effective supervision is difficult [12]