Law Making: Authority and Process

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Power, Legitimacy, And Authority In The Law Making Process

The authority of the law-makers comes from:

  • The basic constitutional framework of a country;
  • The political ideology of a country.

The public accept law-making service is because they don’t want to make the law themselves.

Also, by having law-makers they organise the whole package (e.g. police, security services, etc.).

Even the most fundamental constitutional framework will fail if that society sees their constitutional basis unworkable e.g. Libya and Egypt.

Regular and free elections are important to ensure there is consent and legitimacy to the law making process.

Countries must ensure there is no corruption/scandal: the expenses scandal led to enactment of the Parliamentary Standards Act 2009 where Members of Parliaments' expenses claims are now controlled and regulated.

Constitution and constitutionalism

Most countries have a codified (i.e. written) constitution where law making powers are well defined, but the UK does not.

There are some constitutional conventions that exist (i.e. general rules not enforced by the courts):

  • Constitutional monarch: the head of the state is the monarch (i.e. the Queen), but the monarch does not run the country or make laws.
  • The prerogative: for example, the power to go to war is a prerogative power. This is an exclusive power of the monarch.
  • Cabinet government and collective responsibility: Cabinet collective responsibility, also known as collective ministerial responsibility, is a constitutional convention in governments using the Westminster System that members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them.
  • Individual ministerial responsibility: individual ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department.

Despite the lack of a codified constitution, there are some statutes that have constitutional effect e.g. the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010, House of Lords reform, and fixed term parliament.

British constitutionalism has 3 essential features:

  • Sovereignty of Parliament;
  • Rule of Law;
  • Separation of powers.

Membership of the European Union

Member states required to abide to European Law.

Factortame v Secretary of State for Transport (No. 2) [1991]: this case said that European Law has right of way if it conflicts with a UK Act of Parliament (Eurosceptics argued this was an unacceptable loss of sovereignty).

There is a 'democratic deficit' in the European Union e.g. European Commissioners (law makers) are not directly elected by the people, but their powers are constrained by the Council of Ministers.

The European Parliament is directly elected, but has a much smaller role to play in the law-making process.

European Convention on Human Rights

All UK bills must comply with the Human Rights Act 1998.

Section 4 of the Human Rights Act means that UK bills can never be invalid, but the UK can give a 'declaration of incompatibility' where they need to i.e. they can say that a particular statute is incompatible with the Human Rights Act and needs changing.

British Parliament and Central Government

The majority of legislation gets authority from parliament.

The process of legislation undergone a lot of change recently.

NOW, what is said about a bill during its passage may be used in court when dealing with statutory interpretation (Pepper v Hart [1993]).

Statute Law: the classification of legislative measures

Most law is statute (passed by parliament).

There is primary legislation, secondary legislation, tertiary legislation, and (although not strictly statute) 'quasi-legislation'.

Primary legislation: most are 'General Public Acts', but some are 'Local Acts'.

Secondary legislation: regulations and orders (statutory instruments) - there are approximately 3000 per year and not subject to detailed parliamentary scrutiny.

Tertiary legislation: legislative instruments under NO parliamentary scrutiny.

'Quasi-legislation': statements of good practice or guidance, may be made under an Act of Parliament and may be subject to parliamentary scrutiny e.g. ministerial directions.

Primary Legislation

Acts start as bills with an Explanatory Note (i.e. background and goals of the bill).

There are 4 bill types:

  • Government Bills: bills arising from the government. Most bills are government ones.
  • Law Reform Bills: these bills arise from law reform agencies e.g. the Law Commission.
  • Consolidation Bills: these bring together a range of legislation scattered around into one document i.e. it tidies the law.
  • Private Member Bills: these are bills introduced by backbench Members of Parliament.

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CONTENT

Preparatory Stage

Ideas for the new policy are usually formed as a green paper.

A firmer statement of the policy objective is then made: a white paper.

There is then a consultation: the House of Commons Select Committee on Modernisation 1967 meant that bills could be commented on and criticised before being formally introduced to Parliament.

The Queen's Speech

The Queen's speech is written by Government and sets out what legislation is to be dealt with during the legislative year.

Without getting a proposed piece of legislation into the speech you cannot advance it (unless it is emergency).

Parliamentary Stages

Parliamentary Stages of passing a bill.

Secondary Legislation

Secondary legislation is under the authority of an Act, but is not subject to detailed scrutiny.

Secondary legislation is also known as statutory instruments e.g. regulations and orders.

Statutory Instruments can be challenged by the court (but it is rare!) e.g. R v Secretary of State for the Environment, Transport and the Regions and Another, ex parte Spath Holme Ltd [2000].

Amending Legislation

Amending legislation is usually done by passing a new Act of Parliament.

Occasionally, the original Act will state that the Act can be amended using statutory instruments, thus avoiding parliament – these are known as ‘Henry VIII Clauses’ and not regarded with favour.

Regulatory Reform

Legislation that imposes unnecessary burdens on business/individuals should be able to be removed without waiting for a full parliamentary legislative slot.

Regulatory Reform Act 2001: ministers were given the power to lay orders that would amend legislation (so long as the amendment would remove the burden imposed within the legislation).

This act was replaced by the Legislative and Regulatory Reform Act 2006: this allows ministers to make legislative reform orders reducing a burden on an individual due to any existing legislation.

Regulatory Reform

Legislation that imposes unnecessary burdens on business/individuals should be able to be removed without waiting for a full parliamentary legislative slot.

Regulatory Reform Act 2001: ministers were given the power to lay orders that would amend legislation (so long as the amendment would remove the burden imposed within the legislation).

This act was replaced by the Legislative and Regulatory Reform Act 2006: this allows ministers to make legislative reform orders reducing a burden on an individual due to any existing legislation.

European Law Making Institutions

The Council of Europe

This aimed to prevent a repeat of the Human Rights outrage of World War 2.

The Council of Europe created the European Convention on Human Rights (ECHR) in 1950 → these are the fundamental rights and freedoms agreed by member states.

If the UK breaches the ECHR an individual may take proceedings against the Government.

The Human Rights Act 1998 incorporated the ECHR into English courts.

Legislation must comply with ECHR and declarations of incompatibility must be made where necessary → a declaration of incompatibility wil simply state that a piece of legisaltion is incompatible with the ECHR, so requires changing.

There have been some calls to replace the Human Rights Act 1998 with our own domestic Bill of Rights.

The European Union (EU)

The UK joined the European Economic Community in 1973.

As a member of the EU, a member state is obliged to incorporate the rules of the European Commissioner, the European Council of Ministers, and the European Parliament.

The purpose of the EU: it creates a free market of goods/services in EU states.

EU law also liberalises industries to ensure there is consumer choice.

Recently the EU has promoted Human Rights and social cohesion.

The UK voted to leave the EU in June 2016, although it is unlikely that the UK will formally withdraw from the EU until March 2019.

The Courts

The Development of Common Law

Judges also make law, but they do not get this power from an election.

Their power depends on the doctrine of separation of powers → the judiciary perform checks and balances to prevent a dictatorship.

Judicial law-making power is supported by the principles of the hierarchal structure of the court and the doctrine of precedent.

The Hierarchical Structure

The higher the court the more authority it has.

Denning - when he was Master of the Rolls - challenged the hierarchical structre of the courts stating that he believed the Court of Appeal should be on the same footing as the Supreme Court/House of Lords since most appeals did not reach the top court. This was dismissed.

The Doctrine of Precedent

The doctrine of precedent dictates that a principle of law in one case must be reapplied in later cases.

Such precedent will stand until the court decides it was an incorrect decision, a higher court overturns the decision, or parliament passes an Act to change the law.

The principle of law forming precedent is called the ratio decidendi, and the rest of the case is known as obiter dicta.

Statutory Interpretation

Some phrases/words in statute are ambiguous leaving it for the discretion of the judges to decide what they mean

Set of principles/’rules’ to help judges do this:

  • The literal rule: words/phrases given their literal meaning (although they may have more than one literal meaning).
  • The golden rule: the court should use the literal rule unless this would lead to an absurdity.
  • The mischief rule: the court should consider the legislative purpose of an Act and should interpret it in a way which does not compromise its purpose.
  • The 'unified common approach': a broader approach where the literal rule is used, but if there is ambiguity to the act then the purpose of the act will be looked at.

Often judges will come to different conclusions, and this is why cases will go to appeal.

Exam Tip

Have a look at the Parliament website to get a better understanding of how parliament operates.

Some other helpful legal resources:

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