Parliamentary Law Making

Notes: Legislationnotes.doc Legislationnotes.doc

greenwhitepapers.doc greenwhitepapers.docadvantagesdisadvantageslegislation.doc advantagesdisadvantageslegislation.doc

influencesonlawmaking.doc influencesonlawmaking.doc The Separation of Powers The Separation of Powers

Parliamentary law-making


In this topic, we will be learning to explain and evaluate how law is made by the UK Parliament.

 

We will examine the formal legislative process in Parliament, and the roles of the different parts of Parliament when it comes to making law. The sovereignty of Parliament in law-making will also be discussed, as will any limitations or threats to its sovereignty. We will also outline the influences on Parliament in its law-making.

 

By the end of this topic you should be able to:

 

  • Explain the role of the House of Commons, House of Lords and the Commons in the creation of an Act
  • Describe and give examples of different types of Bill and the passage of a Bill through Parliament
  • Discuss the advantages and disadvantages of parliamentary law-making
  • Describe a range of influences on Parliament
  • Evaluate the effectiveness of the influences on Parliament
  • Explain the doctrine of parliamentary sovereignty
  • Consider the limitations on the doctrine of parliamentary sovereignty.

Green Papers

 

Key points

Green paper

Purpose of

To explore a proposed new law and introduce the change to those affected

 

 

Who is consulted

 

 

Anyone who might be affected by the new law

 

Why is consultation needed

 

To raise awareness and consult anybody who may be affected by the proposed law. More people seen the law should improve how it is made.

 

 

 

What happens with people’s views who have consulted

The department who is responsible for introducing the new law creates a report of all suggestions and gives this to the government, who can make changes If they wish.

 

Example ONE of

Policing in the 21st Century

 

Who consulted in example

Police, mp

 

 

Why consulted the people in the example

Directly elected Police and crime commissioners

 

 

Example TWO of

 

Families and Relationships

Who consulted in example

Families, parents and grandparents.

 

 

Why consulted the people in the example

 

Legal access rights to grand children for grandparents

 

 

Example THREE of

 

The Future of Child Maintenance

Who consulted in example

Families and parents

Why consulted the people in the example

 

reform of child child maintenance payments

 

 

 

White Papers

 

Key points

White paper

Purpose of

A white paper gives specific proposals for changes to the law, so those affected can be consulted in detail.

 

 

Who is consulted

Those who are specifically affected by the law, this will be a more specific and smaller group than a green paper.

 

 

 

Why is white paper issued

Make people aware of the change and gather any views

 

 

 

 

What happens with people’s views who have consulted

The department who is responsible for introducing the new law creates a report of all suggestions and gives this to the government, who can make changes If they wish. At this stage the government might decide not to proceed with the bill.

 

Example ONE of

The Importance of Teaching

 

Who consulted in example

 

Teachers, teaching unions, parent

 

Why consulted the people in the example

 

On the extended powers of teachers to search students

 

 

Example TWO of

Putting victims first

 

 

Who consulted in example

Landlords, tenants, police, civil rights groups.

 

 

Why consulted the people in the example

 

Speeding up eviction for anti-social tenants

 

 

Example THREE of

Universal credit

 

Who consulted in example

 

Why consulted the people in the example

Create one benefit for those in and out of benefit

 

 

 

 

Creating a Bill

 

A Bill is the proposal for new legislation, which if it successfully completes all stages, in both Houses of Parliament, and receives Royal Assent, then it becomes an Act —primary legislation.

 

 

 

 

Key Facts: Different Types of Bill

Type of Bill

Who does it affect?

Introduced by?

Examples

Public Bill

General public

Government Minister (Government Bill)

Football (Disorder) Act 2000, Children Act 2004, Dangerous Dogs Act 1991, Prevention of Terrorism Act 2005 all began as a Government Bill

Individual MP/Lord

(Private Member’s Bill)

Murder (Abolition of Death Penalty) Act 1965, Abortion Act 1967, Marriage Act 1994 all began as a Private Member’s Bill

Private Bill

An individual, organisation or local authority

Petition from individual, organisation, or  local authority

Edward Berry and Doris Eileen Ward (Marriage Enabling) Act 1980 began as a Private Bill

Hybrid Bills

An individual, organisation or local authority

Government Minister

The Channel Tunnel (Rail Link) Act 1996 began as a Hybrid Bill


 

 


 

 

Most new law arises from government policy:

  1. Government's election manifesto

    Promises of future reform, made by the party when on election campaign

  2. Queen's Speech - at the start of every Parliamentary session

    Government announces reforms it intends to make

  3. Or, in order for Government to enact European Law

    Create an Act in order to give effect to European Law (create the rights / obligations)

  4. Or, in response to suggestions of Law Reform agencies e.g. reform of rules concerning legal funding & advice]

  5. Or, in response to pressure from media / groups in society, e.g. Disability Discrimination Act 1995 (rights for the disabled)

  6. Or, in response to a tragic event e.g. following "9/11": Twin Towers terrorist attack in New York, Parliament created Anti-Terrorism, Crime and Security Act 2001.

 

 

Today, the Government dominates legislative process

  • Hence the major function of Parliament is the scrutiny of the Government.
  • Gladstone said: Parliament is
    " a constant critic of the government"
  • Government is elected: idea of democratic law making.
  • Law and politics entwined!

SUPREMACY of Parliament:

  • Parliament is the supreme lawmakers in our English legal system:
  • Parliament can make or break any law it likes (external and political pressures place restraints on the kind of legislation Parliament actually passes — "a political football")
  • Their law (Act / Statute) is supreme
  • Judges must apply legislation [legislation takes precedence over case law]

 

Parliamentary Supremacy in law Making

 

When Dicey wrote Law of the Constitution in 1885, a central part of his work was the sovereignty or supremacy of Parliament. By this he meant that Parliament had and should have the right to pass any law that it wished to pass. His reason for believing this was, in essence, that laws which passed through Parliament were subject to intense scrutiny and this intense scrutiny would ensure that only good laws would make it through Parliament. For example the Hunting Act 2004 was the subject of intense debate before it became law.

 

Generally, the courts cannot overrule its legislation (parliament is said to have legal sovereignty over the courts) and no Parliament can pass laws that future Parliaments cannot change (each parliament is said to have political sovereignty over previous governments). Parliamentary sovereignty is the most important part of the UK constitution. For example the railways were nationalized under the Transport Act 1947 and then privatized in the British Rail Act 1993.

 

 

The Separation of powers

 

 “Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the:

  1. Executive – the government of the day and the departments that work for it, eg The Ministry of Justice
  2. Legislature - The Houses of Parliament
  3. Judiciary - judges

In early accounts, such as Montesquieu’s The Spirit of the Laws, the separation of powers is intended to guard against tyranny and preserve liberty. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two. Today, the separation of powers is more often suggested as a way to foster a system of checks and balances necessary for good government.

For law the key element that is important is as follows:

  1. Executive – propose what the law should be and put this into practice through government departments
  2. Legislature – Debate, vote and pass laws that cover the everyday lives of society
  3. Judiciary – Mainly interpret laws made by the Legislature and put into practice by the Executive in specific cases to ensure they are applied correctly and within the boundaries set by the Legislature.

 

Example, The Police and Criminal Evidence Act was suggested by the Conservative government (___________) in 1984 and then voted on and passed by Parliament (________________). One law in this Act is to specifically stop police from gaining confessions to crimes from suspects through torture or inhumane treatment. On numerous occasions the judges (____________) have found against the police and said confessions cannot be admissible in court due to evidence of torture or inhumane treatment in police interviews.

This is the case even when the government of the day wants the high profile case to be concluded quickly (the Executive). As the judiciary are independent to the Executive there is no pressure on them to bow to political pressure, only to do what is fair according to the laws set by parliament and interpreted by the judiciary.

A balance of power is maintained between the three key elements of a democratic society.

If you want more detail read the recent government research researchon how the Separation of Powers works in practice today.

 

Process for Bill to become an Act

  1. Possible Green & White paper
  2. Bill drafted
  3. Bill introduced & debated in each House of Parliament

  4. Bill receives Royal Assent to become an Act of Parliament — [primary legislation]


All types of Bill must pass through each House of Parliament (Commons / Lords)

  • The same procedure is followed in each House, which involves:
    two
    main debates on the principles and a final vote.
    one debate - on the words / detail - by a select committee.
  • The Bill may start in either House first with exception of finance Bills which must start in the House of Commons first.



Procedure - through each House of Parliament:          5 stages

 

Stage

Exaplantion

First Reading

Formal introduction of Bill into the House Title and main aims read out, but no debate

 

Second Reading

Main debate on Bill's principles

"Catch Speaker's eye" to speak in the debate (Speaker of House controls who speaks in the House)

Committee Stage

Clause by clause consideration of the Bill by select committee of the House of Commons.

Consider Wording: whether it achieves main principles / aims

In the House of Commons: Committee of MP's chosen for each Bill; Group of MP's with knowledge of (interest in) the Bill. [Finance Bills require whole House sits as committee]

In House of Lords, this stage, if occurs, is usually by whole House sitting as committee.

 

Report Stage

Committee reports back to House:

on any recommendations for amendments to the Bill for the House to debate such amendments

(if Committee not suggest any amendments, Bill goes straight to Third Reading.)

Third Reading

Final debate on the Bill

Unlikely to fail at this stage, in fact is not always a debate. final vote for the Bill through the House:

[final vote on whether to accept or reject the Bill'

There will be vote at the end of each of the 5 stages, as to whether the members wish the Bill to be considered further, or not. The final vote for the Bill to be "passed by the House" occurs in the Third Reading. If final vote is "aye" [yes] then the Bill will be introduced to the other House of Parliament.

When the Bill has been successfully passed through both Houses of Parliament it must receive Royal Assent by the Monarch in order to become an Act of Parliament.

House of Lords

Bill goes through the 3 Readings (same as in House of Commons) — any amendments are then considered by House of Commons.

 

The House of Lords only has the power to delay a Bill becoming an Act:

 

Under the Parliament Acts of 1911 & 1949 if the House of Lords reject the Bill (vote "no") then the Bill can still become law if in the next Parliamentary session it successfully passes back through the House of Commons. However, rarely needed to invoke this power as non-elected House of Lords usually adheres to its function of refining, adding to proposal for  law made by the democratically elected House of Commons. Only been used 4 times e.g. Hunting Act 2004 where House of Lords did oppose the House of Commons.

 

 

     Advantages and Disadvantages of the Parliamentary Law making process

 

Disadvantages:

 

  1. Time taken to make law: It takes several months to go through the 5 stages in both Houses of Parliament

  2. A slow method of creating law

  3. Lack of accessibility

  4. Difficulty in finding out which Acts / sections are in force

  5. Difficulty in finding out all Acts on a given topic (original Act and later amendments)

  6. Lack of clarity: Obscure and complex language used e.g. Dangerous Dogs Act 1991 & wording “type” – not sure what this word means so not sure what dogs covered by the act. This results in many cases of statutory interpretation: To find the meaning of words in Act in order to apply the law to the facts of the case.

  7. Over-elaborate detail is used - as draftsmen try to cover every possible future situation the Act could be applied to.

 

Advantages:

  1. Democratic law making process

  2. Publicly elected government - "law for the people, by the people"

  3. Law is debated scrutinised and amended; publicised through debates.

  4. Enables consultation with interested parties

  5. For major government policy through green & white papers.

 

      

                  

 

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