Tagged as: UK Law

Legislative Functions Lecture

I. Primary Legislation

Primary legislation constitutes UK Acts of Parliament, some of which include important constitutional rules in the absence of a codified constitution in the UK. The process of drafting primary legislation and the institutions involved in the process illustrate three key constitutional principles in context: parliamentary supremacy, the rule of law and the separation of powers.

a. Parliamentary Supremacy

The UK's constitution gives the politicians the power to create an Act of Parliament, it is considered that the electoral process and the political process of making legislation leads to legislation which is approved of by the electorate.

A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10th edn, 1959) p.59 - Dicey explains that MPs are subject to 'external' limits on Parliament's power to legislation, i.e. that large numbers of subjects will not obey laws. The 'internal limit' is the MP's own sense of morality and of the society in which they live. The adjudicative process is considered to be superior to the courts in determining questions of the public interest.

The government has a dominant role in the creation of legislation, they initiate draft Bills. It is not strictly true that Parliament legislates, since the government determines the timing and content of legislation. The 'first past the post' electoral system does not allow for a proportionate number of seats being allocated according to the votes cast for each of the political parties. The House of Lords is not elected at all. This means of creating legislation gives little place for ensuring that it represents public opinion.

b. Rule of Law

Since 1973, UK courts and tribunals have had the power to disapply provisions of legislation that are not in accordance with EU law. Senior courts also have powers to make 'declarations of incompatibility' under the Human Rights Act 1998 (HRA) where provisions are found to be contrary to Convention rights. Legislation also confers powers on government; Acts often give ministers wide discretionary powers to carry out executive functions and create secondary legislation.

c. Separation of Powers

The consideration of the legislative process illustrates the restrictive nature of the UK's separation of powers.  The government has a dominant position in the legislative process as well as possessing extensive power to create secondary legislation.

d. Who is the Legislature?

The elected government takes a lead in the legislative process.  Ministers and civil servants develop the policy behind the legislation, government lawyers draft Bills, ministers introduce Bills into Parliament and push them through the House of Commons and House of Lords. The Secretary of State often decides when a statute should come into force. Where the Crown Prerogative is involved, the Queen is required to give consent for the Bill to progress through Parliament. Bills require the royal assent to become law, in present times this is merely a formality.

Technically laws are made by the Queen in Parliament. The role of Parliament is in scrutinising Bills introduced by ministers, MPs and peers. Draft Bills are sometimes published for scrutiny, but usually the First Reading is the first time that MPs and peers see the Bill.  The normal process is that the Bill is passed through the House of Commons and the House of Lords, before it receives the royal assent.  A small number of Bills have been given royal assent despite the disagreement of the House of Lords, under the terms of the Parliament Act 1911 (as amended in 1949).

e. Making Policy through Legislation

Legislation enables governments to create actions in relation to public policy.  The government comes into power with certain philosophies or ideas and then creates practical plans by which to implement them.  Labour governments come into power with the philosophy of creating human rights, human and animal welfare reforms, hence the last labour government enacted the Human Rights Act 1998 and the Hunting Act 2004. Conservative government rely on privatisation and the market economy and represent the interests of businesses. This current conservative government now seeks to repeal the Human Rights Act 1998 and the Hunting Act 2004.

Policy is made at different speeds, sometimes the government wishes to change policies quickly.  This requires the use of fast-tracked procedures to introduce legislation for certain policy imperatives.

The government took the view that there were problems with this common law principle as there were many witnesses who had been intimidated by the defendants, particularly in gang-related crimes.  A Bill was fast-tracked through Parliament to enable the government policy to be brought into law, it was introduced into Parliament on 4^th July 2008 and received the royal assent on 21 July 2008.

A spate of fast-tracked Bills led to the House of Lords Constitution Committee conducting an inquiry into the process in which Bills are introduced without the usual passage of time. They recommended that fast-tracked Bills be subjected to post-legislative scrutiny, usually within 12 months of the passage of the Bill.

Consultation on certain policy initiatives can include a Green Paper which outlines the government’s initial thoughts on the policy or various options. A White Paper may follow which further elaborates upon the ideas. After a period of consultation, a Bill may then be introduced into Parliament.

Green Papers were introduced by the Labour government of 1967 - they represent the best that a government can propose on an issue at that time, but there is no firm commitment when they are proposed. White papers date back much earlier than this, and announce firm government policy for implementation.

The HM Government Code of Practice on Consultation, 3^rd Edition (2008, London: HMSO) pp.4-6, requires that:

The government should seek the views of anyone who has a particular interest in a new policy or a change to policy.  The code sets out the approach the Government should take when it decides to run a formal consultation exercise. The code provides 7 criteria:

1. Formal consultation should take place when there is opportunity to influence the outcome of the legislation
2. The consultation period should last at least 12 weeks
3. Consultation documents should be clear about the process and what is being proposed
4. The exercise should be accessible and targeted at interested parties
5. The burden should be minimal
6. Feedback should be given to those who participated in the exercise
7. Officials who have run consultation exercises should share their experience

The code does not have legal force, but there have been judicial review proceedings in relation to expectations established via the code:

f. The Drafting of Bills

A team of sixty parliamentary counsel (government lawyers) draft the bills for Parliament. Geoffrey Bowman, 'Why is there a Parliamentary Counsel Office? (2005) 26 Statute Law Review, 69, 81 states

The process of legislative drafting needs someone who will stand back; who will ruthlessly analyse the ideas; who will question everything with a view to producing something that stands up to legislative scrutiny in Parliament and in the court; who will break concepts down to their essential components; and who will express them in easily digestible provisions and essential components... Counsel see themselves as technicians rather than policy makers. [...]

A drafting style has been established in the UK that is different from the continental approach that is used in EU directives and regulations, as well as the legislation of other EU Member States. Acts of Parliament in the UK tend to be more detailed than codes in the civil law jurisdictions. Acts of Parliament are often criticised for being confusing and not easily accessible to the public, but there are a number of reasons for their complexity:

1. the Statute may give legal effect to policy that is complex,
2. rights and obligations may need to be elaborated with great precisions
3. legal change may take place in a number of amendments to various Acts which must be read together
4. the policy makers may wish to create solutions to all possible challenges that might be brought in the courts

The complexity of Bills does create a significant workload for Parliament due to their length in terms of scrutiny of draft Bills. Since 1999, all government Bills have included 'explanatory notes' to further clarify their provisions.

g. Pre-legislative Scrutiny of Draft Bills

Most Bills are introduced directly into Parliament, but some are first subjected to pre-legislative scrutiny. The Commons Political and Constitutional Reform Committee argued that pre-legislative scrutiny is 'one of the best ways of improving legislation and ensuring that it meets the quality standard that Parliament and they public are entitled to expect'. (Ensuring Standards in the Quality of Legislation (HC 85 2013-14), [115]). It is considered to be one of the best methods to achieve a good quality of legislation and ensure the smooth passage of legislation through Parliament.

h. Bringing Legislation into Force

Pre-legislative scrutiny applies to a small number of bills, but all must pass through the main process. There is a tension during this process between the government wishing to get legislation through Parliament and the requirement for scrutiny of the legislation. Bills can be introduced into either the House of Lords (HL) or the House of Commons (HC). Non-controversial Bills usually begin in the HL.

1. First Reading - the Bill is presented to Parliament
2. Second Reading - the Bills general policy is debated and voted on. Most government Bills survive this stage.
3. Committee Stage - a committee of MP's scrutinises the Bill line by line. The whips make sure that government MP's say nothing or risk their career! The whips make sure that no one who wants to amend the legislation gets on the committee.
4. Public Reading Stage - used in the Children and Families Bill in 2013
5. Report Stage - includes further debate, and possible amendments which will not be subject to scrutiny
6. Third Reading - the Bill will be considered again with a short debate
7. Amendments agreed in the HC will have to also be agreed in the HL, differences between the two houses need to be reconciled. This process is known as 'ping pong' as it may bounce between houses a number of times.
8. Royal Assent is a formality and the Act of Parliament can be brought into force.

Scrutiny depends upon the type of Bill; enabling Acts provide a broad framework which enables Ministers and public agencies to supply the details through secondary legislation. An example is the Financial Services (Banking Reform) Bill 2013, which provides HM Treasury the requisite powers to implement policies through secondary legislation.

The House of Commons Political and Constitutional Reform Committee, Ensuring Standards in the Quality of Legislation (HC 85 2013-14) recommended in 2013 that a code of legislative standards be established regarding the relevant quality of legislation. The code would address:

• responsibility for the Bill
• its purpose, extent, application and implications for devolution,
• its legislative and policy implications
• whether it is understandable and accessible,
• the status of pre-legislative scrutiny
• the creation of new criminal offences
• the costs of the new law
• the type of legislative powers that the Bill delegates and the scrutiny these powers will be subject to

Further recommendations included the establishment of a new Joint Legislative Standards Committee to oversee the application of the code. The government rejected both of these proposals. The problem of the quality of legislation remains and enhanced scrutiny could improve the standard of statutes.

i. Post-Legislative Scrutiny

In a number of policy areas, such as criminal justice, immigration, and social security the government has repeatedly resorted to new legislation in order to address ineffective legislation or legislation that leads to unintended consequences. The redrafting of legislation, however, fails to address underlying policy and administrative issues that may not be workable. It is possible for Parliament or government to subject legislation to post-legislative scrutiny, however, the process has been used rarely and in an unsystematic manner.

In 2008, a systematic process of post-legislative scrutiny was introduced. A relevant government department will publish and submit a post-legislative memorandum to the relevant select committee, with an assessment of how the relevant statute has worked in practice, 3-5 years after the legislation has been enacted. In certain areas such as criminal law, immigration and social security, this time scale is frequently too long as primary legislation frequently becomes replaced during this time period.

II. Secondary Legislation

Delegated legislation is also referred to as 'subordinate' or 'secondary' legislation. The constitution allows the executive (Ministers) to create such legislation. This allows the government to create legislation on a large scale without the involvement of Parliament.

a. Statutory Instruments

(SIs) are the most common form of secondary legislation. They derive their legitimacy through powers delegated to a minister or department in primary legislation. SIs must refer to the specific clauses within the primary legislation, which gives the government the power to draft secondary legislation. If provisions within secondary legislation are found to be inconsistent with their parent legislation or procedurally incorrect, they can be declared invalid by the courts.

b. Delegated and Primary Legislation Compared

c. The Need for Delegated Legislation

In the earliest years of Parliament it was difficult to distinguish between enactment by the King in Parliament and the legislation by King in Council. In 1539, King Henry VIII's Statute of Proclamations the King was given the power to issue proclamations 'for the good order and governance' of the country; such proclamations were enforced as if they were Acts of Parliament. Such proclamations were invoked when there was insufficient time to pass an Act through Parliament and remained in use during the Tudor period even though the Statute of Proclamations was repealed.

After 1918, there was concern amongst lawyers and politicians regarding the wide legislative powers of government departments. The Committee on Minister's Powers concluded that unless Parliament was willing to delegate legislative powers, there would be not be the capacity to pass the quantity of legislation that modern public opinion required. The Statutory Instruments Act 1946 aimed to provide greater legislative scrutiny for delegated legislation.  There are a much greater number of Statutory Instruments passed each year than Public and General Acts.

Pages of Acts and Statutory Instruments 2000 to 2012

UK legislation only - separate Scottish, Welsh and NI legislation not covered

Source: Annual volumes of Acts and SIs published by TSO

d. Why is Delegated Legislation Important?

The time available in Parliament to enact new statutory rule is limited. Unless the procedure for considering Bills was streamlined, without SIs the Parliamentary machine would clog up.  There is a necessity to make detailed regulations, such as those that relate to road traffic or social security which are entrusted to the relevant government department so long as there is Parliamentary oversight. Details contained in SIs are often technical and require the involvement of experts and professional bodies or commercial interests. The more technical the details of the legislation, the less suitable the legislation is for scrutiny by Parliamentarians who have little understanding of the subject matter of the legislation.

The Civil Contingencies Act 2004 enables the executive to legislation subject to parliamentary safeguards in certain emergencies. In the United Nations Act 1946 the government may make such provisions as is necessary to give effect to decisions of the United Nations Security Council calling for sanctions to preserve international peace and security under Chapter VII of the UN Charter. Some of these powers of the executive to make legislation are potentially far-reaching, for example, under section 40 of the British Nationality Act 1981 the Secretary of State may deprive an individual of their British citizenship if thought to be 'conducive to the public good'.

e. Types of Delegated Legislation

Frequently delegated legislation is criticised for providing powers to government ministers in excess of that which is necessary.  Frequently powers are conferred broadly on government department to cover many eventualities. Certain Bills are proposed that are little more that skeleton Acts and many provisions are created through regulations which provide the executive with extensive powers and little parliamentary scrutiny is required of any of the powers conferred within the primary and secondary legislation.

Modern pressures particularly those associated with the economy require Parliament to delegate some powers in relation to taxation. In particular, the system of customs duties combined with the development of the EU has made necessary the delegation of power to give exemptions and reliefs from such duties. The Community Infrastructure Levy was a whole new system of taxation that was set up by delegated legislation under Part II of the Planning Act 2008.

Delegatus non potest delegare, means that a delegate may non sub-delegate her powers. The parent Act may override this by authorising sub-delegation. Sub-delegation dues exist, but it makes control by Parliament more difficult. The Civil Contingencies Act 2004 allows for sub-delegation of powers. Sub-delegation is prohibited under the European Communities Act 1972 (ECA 1972)

Retrospective legislation is contentious but permitted and retrospective rules might also be created through delegated legislation, but in such cases it requires the express authorisation of statute. Under Article 7 of the European Convention on Human Rights 1950 delegated retrospective legislation may not retrospectively create new criminal offences of impose additional penalties.

The courts are only able to declare delegated legislation as ultra vires. Rights under the Human Rights Act 1998 (HRA 1998) must also be protected by the courts. It is not for a Minister to determine his or her own powers, so courts are able to decide when a Minister is acting outside of them.

The Authority to Modify Acts of Parliament

Although it appears undesirable, Parliament has conferred bowers to Ministers to amend Acts of Parliament. Examples of such are found within the Scotland Act 1998 and the Government of Wales Act 2006. Some statutes go as far as allowing Ministers to modify existing and future Acts. Three examples of a delegated power to modify Acts of Parliament include

1. Section 2(2) ECA 1972 authorised the making of Orders in Council and ministerial regulations to implement certain of the UKs obligations under EU Treaties.
2. Section 10 HRA 1998 allows Ministers to amend primary legislation. When a superior court finds legislation to be incompatible with a right under the ECHR, Ministers or the Queen in Council may make remedial orders.
3. Section 1 of the Legislative and Regulatory Reform Act 2006 enables ministers to amend or repeal Acts in order to reduce financial costs, administrative inconvenience or obstacles to efficiency. This power is subject to many conditions and qualifications.

The Public Bodies Act 2011 confers powers on ministers to abolish bodies specified in schedule 1 of the Act and to transfer such powers to government ministers, or other persons carrying out a public function.

f. Control and Supervision by Parliament

Since all delegated powers stem from statute, there are always the opportunity to scrutinise clauses that seek to delegate legislative powers at the committee stage. In 1992, the House of Lords appointed a committee to consider such clauses in Bills, now known as the Committee on Delegated Powers and Regulatory Reform. It aims to discourage the granting of excessive powers through secondary legislation.  In general, the SI is placed before Parliament and requires an affirmative resolution either before it is 'made', before it comes into effect, within a stated period, or it is subject to annulment by a resolution of either House.  These cases include a positive procedure, an affirmative resolution of each House (or only the Commons for financial instruments). Two further procedures include the laying in draft before Parliament, subject to a resolution that no further action is taken or with no further provision for control. These two are negative procedures; no action is required by either House, unless there is some opposition to the SI.

The House of Lords is usually granted the same powers of control as the House of Commons. The Parliament Acts of 1911 and 1949 for by-passing the House of Lords only applies to Bills and not SIs.  It is rare for the House of Lords to veto subordinate legislation, but they did in 1968 in relation to sanctions in Rhodesia. In 2000, the House rejected the Greater London Election rules regarding free postal delivery. The Lords have the power to veto a SI, unless it is financial, although this power is expected to be used rarely.

All general SI come under scrutiny of the Joint Committee on Statutory Instruments. They pay attention to whether the SI imposes charges on public revenues that it is made under an Act that excludes challenges in the courts; the SI has retrospective effect without authorisation of the parent Act, in cases of unjustifiable delay. The SI will also be examined if it includes unusual delegated powers, its form needs to be explained, its drafting appears defective or any other grounds that do not examine its merits.

g. Challenges in the Courts

In general, delegated legislation can be challenged under Judicial Review. Unlike Parliament, Ministers' powers are limited; an individual may question the validity of an instrument that it imposed against them.

A SI may be challenged on the basis that:

1. the content or substance is ultra vires,
2. the SI was not created through the correct procedure.

The duty under s.3 HRA to interpret legislation in the light of Convention rights widens the scope for challenging delegated legislations. The HRA requires courts to strike down secondary legislation where it is not possible to interpret it in accordance with a Convention right. Courts cannot strike down secondary legislation where the primary legislation prevents this. Under s.4 HRA the court might declare a regulation incompatible with a Convention right.

The principle that no one can be deprived of access to the courts cannot be included within a SI unless Parliament has clearly legislated to this end.

A number of cases have arisen out of various legislative regimes that impose restrictions on certain individuals who are suspected of having links to terrorists or rogue states. This prescription leads to the freezing of bank accounts and the prevention of trade, which has potentially serious consequences for an individual or organisation.

There is no general requirement for prior publicity of delegate legislation, but departments proposing a new instrument frequently make consultations of those who are deemed to have an interest in the legislation. Where there is a duty to consult the courts have established criteria for that consultation process that should be followed:

• it must be undertaken when the proposal is at a formative stage,
• there must be sufficient reasons given for the policy that is proposed so consultation is informed,
• there must be sufficient time for a response to be made,
• any feedback must be taken into account when decisions are made,
• fairness might require disclosure to interested parties.

Even when there is no duty to consult, common sense dictates that reference to specialists in a certain policy area can make valuable contributions to the formulation of policy and the form of the legislation. There is often consultation when there is no duty to do so.

h. Administrative Rule-Making

SIs are more flexible than primary legislation, but are often complex and expressed in formal language. There are also less formal methods of rule making, for example the Immigration Rules under the Immigration Act 1971.

Later cases have not yet clarified that status of the Immigration Rules¸ but it has been held in R v (Munir) v Home Secretary [2012] UKSC 32, [2012] 1 WLR 2192, that the Immigration Rules were not derived from the royal prerogative and that they were delegated legislation.

Two other forms of rule making that are often authorised by statute are codes of practice and administrative guidelines or notice of guidelines. Codes of practice are not delegated legislation since they do not generally have mandatory effect. A code of practice is said to offer guidance rather than imposing requirements. Many administrative rules are issued without direct statutory authority. These have been used in the areas of town planning, housing, education and health and may include ministerial statements of policy.

Hands on Example - 'Primary and Secondary Legislation'

The following scenario aims to test your knowledge of the topics covered in the chapter on Primary and Secondary Legislation. The answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Scenario

Part A:  The government wish to introduce a new government Bill to implement government policy that all under 7's should receive free milkshakes in school. The government have called this Bill the Free Milkshake's Bill 2016. A government MP who is also formally a nutritional expert is opposed to the Bill as she believes that offering children free milkshakes will be detrimental to their health. She requests the opportunity to be involved at the committee stage of this Bill, she wishes to amend the Bill so that children are provided with organic apple juice instead of milkshake. What is the likely outcome of this request and what is the process for the Free Milkshake's Bill 2016 to pass into law?

Part B: Who are responsible for drafting of government bills? What are the skills that are required when drafting potential Acts of Parliament, where can they go wrong?

Part C: Is Parliamentary scrutiny of draft Bills sufficient to ensure that the public interest is being served in the creation of new legislation?

Part D: What are the reasons for delegated legislation being produced in addition to primary legislation? Is the process of scrutiny of secondary legislation sufficient?

Suggested Answers

A) The Free Milkshake's Bill would go through the stages of bring legislation into force, starting with a first reading where the Bill is presented into Parliament in either the House of Lords or House of Commons. This is not an uncontroversial Bill, it is likely to have significant cost implications so it should begin in the House of Commons. After its second reading, the Bill will reach the Committee Stage. At this point the government MP who wishes to be part of the Committee is unlikely to be permitted to join as she has reservations against the Bill. To get Bill's through Parliament, the whip system requires MP's on the governments side to vote for the Bill and not present amendments at the Committee stage. Government MP's risk their career if they attempt to make amendments to Bills at the Committee stage. IT is unlikely that the nutritional expert will be allowed by her party to join the Committee stage of the Bill reading. The Bill may also go to a Public Reading stage if it is considered relevant to do so. The next stage is the report stage, in which amendments may be proposed. An opposition MP may request an amendment at this point, all amendments have to be agreed in both the House of Commons and the House of Lords, creating a possible 'ping pong' effect where the Bill bounces between the two houses attempting to achieve consensus. The next stage is the third reading. The final stage of the Bill is the royal assent which is a formality. Unless an opposition MP produces an amendment that is accepted by the government and both Houses, the Bill is likely to pass through Parliament without too many difficulties, despite the possible health consequences of providing free milkshake's to under 7's.

B) A team of around 60 parliamentary counsel who are government lawyers are responsible for drafting government Bills. There is a particular art to the drafting of Bills. It requires a drafter to break down policy matters into essential components, to predict what challenges might occur in court and address them during the drafting stage and produced a Bill that will withstand legislative scrutiny in its passage through Parliament. The UK drafting style varies from that of continental European codes and is usually more elaborate in its explanations. However, since 1999 all Bills have also included 'explanatory notes'.

Drafting of Bills can go wrong if the are 'over drafted' offering too much detail or lack detail or are too broad giving rise to possible legal challenges in court and loopholes. The Computer Misuse Act 1990 is an example of a Statute that has been criticised for being drafted too broadly and has left loopholes in the legal provisions.

C) Parliamentary scrutiny often appears insufficient. There are a number of stages of possible scrutiny, but they are not always used. Pre-legislative scrutiny is one of the best methods of achieving quality legislation, but it is rarely used. The normal legislative process pressures government MP's to vote with their party and hence dissention is strongly discouraged. Any amendments or votes against legislation must thus come from opposition parties, who are numerically smaller in Parliament than the majority government. Hence it is very difficult for Bills to be prevented from passing, the House of Lords are not able to block Bills, they may only postpone their passage.

D) Secondary or delegated legislation is created by government Ministers or civil servants, there is no need for it to go through the Parliamentary stages of approval. It is authorised through an enabling Act, which gives powers to the executive to create such secondary legislation as required to implement the finer details of government policy. There are around three time more pieces of secondary legislation than primary legislation and without such legislation, Parliament is unlikely to be able to produce sufficient legislative provisions to implement its policies. Scrutiny of secondary legislation is less formal. Acts which include provisions for delegated legislation can be scrutinised at the Committee Stage, but it is hard at this point to envisage exactly what secondary legislation might be created as the result of an Act of Parliament. The Committee on Delegated Powers and Regulatory Reform seeks to prevent excessive powers being provided within delegate legislation. Further the Joint Committee on Statutory Instruments scrutinise all Statutory Instruments. Delegated legislation can also be subjected to judicial review, a court can find that a Minister has acted outside of his or her powers or procedurally incorrect. The courts can also strike down delegated legislation if it fails to conform to rights under the European Convention on Human Rights.

Cite This Module

To export a reference to this article please select a referencing style below:

• APA
• MLA
• MLA-7
• Harvard
• Vancouver
• Wikipedia
• OSCOLA