mYou need to know:m Process of making an Act of Parliament (Legislation; law)m Need to be able to comment upon:m Process of Bill becoming an Act

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Legislation: Law made by Parliament

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!

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PARLIAMENT: House of Lords

o Hereditary and life Peerso Senior bishops in Church of England

House of Commons o Elected by the publico Cabinet = Gov. of the day — democratic

law makingo Mainstay for making law

Monarch[Queen]

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]

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Quick Questions

Parliament is based in what City?

Parliament is made up of what 3 parts?

Who are elected to the House of Commons?

Who sits in the House of Lords?

What is Legislation?

Who is responsible for introducing most Legislation?

Who becomes the government in an election?

Define what a Bill is?

Define what an Act is?

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

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Process of making an Act of Parliament: Legislation

Pre-legislative procedure:

Consultation On major matters, government will issue:

GREEN PAPER Consultation document on possible new lawUsually issued by Minister with responsibility for that matter. Use of Green Papers introduced 1967 (Labour Gov.) Interested parties are then invited Parliament and comments to the relevant Gov. dept. who consider the comments; which may lead to changes in the proposal. Then issue:

WHITE PAPER Government's firm proposals for a new law. These proposals will be drafted into the Bill.

The bulk of Bills are in the form of Public Bills,Introduced by the government.

Bills are written by Parliamentary Counsel —lawyers who are civil servants.

First Reading

Second Reading

Formal introduction of Bill into the House Title and main aims read out, but no debateMain debate on Bill's principles "Catch Speaker's eye" to speak in the debate [Speaker

Committee

Stage

Clause by clause consideration of the Bill by select committee of the House of Commons.Consider Wording: whether it achieves main principles / aimsIn 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

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

Third Reading Final debate on the BillUnlikely 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

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: UnderI the Parliament Acts of 1911 & 1949 if the House of Lords reject the Bill (vote "no") then the Bill can still become law ifin the next Parliamentary session it successfully passes back through the House of Commons. However, rarely needed toinvoke 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.

Process for Bill to become an Act: Legislation

1. Possible Green & White paper2 . B i l l d r a f t e d3. Bill introduced & debated in each House of Parliament4. 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 Bi l l may s tar t in e i ther House f ir s t with exception of finance Bills which must start in the House of Commons first.

Procedure - through each House of Parliament: 5 stagesVOTES

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Royal Assent - Monarch's approval mere formality as the Monarch rarely refuses. Queen Anne was last monarch to refuse consent: in 1707, refusal to assent to the Scottish Militia Bill. Bill becomes Act [law] atmidnight on day receives RoyalAssent; but may not come into force unti1 a later date (if future implementation date; for all or part of Act — is stated in the Act.)

Most new law arises from government policy:

1. Government's election manifestoPromises of future reform, made by the party when on election campaign

2. Queen's Speech - at the start of every Parliamentary sessionGovernment announces reforms it intends to make

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

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Pressures on Parliament to make new law: Legislation

Evaluation of Legislation:Disadvantages: ∑ Time taken to make law:

o It takes several months to go throughthe 5 stages in both Houses of Parliament

o A slow method of creating law∑ Lack of accessibility:

o Difficulty in finding out which Acts / sections are in force

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

Advantages: o Democratic law making process

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

o Law is debatedscrutinised and amended;publicised through debates.

o Enables consultation with interested partiesFor major government policy through green & white papers.

Exam Questions on LegislationTip: Ouestions tend to focus upon the following: Describing the process by which Bills become Acts of Parliament and stating what the benefits and problems are with the process.

Briefly describe the parliamentary procedure for passing an Act of Parliament (10)Briefly explain the roles of the House of Commons, House of Lords and the monarch in the formal process of statute law creation (10)Discuss the Advantages and disadvantages of Parliamentary Law making (10)

∑ Lack of clarity:o Obscure and complex language used eg Dangerous Dogs Act 1991 & wording “type” – not sure what this word means so not sure what dogs covered by tge act.

- which 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.

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

Briefly describe the parl iamentary procedure for passing an Act of Parl iament (10) (develop each point with 2 other sentences)

A bil l is defined as

To become a law a bi l l has to pass through

At the first reading

At the Second reading

At the committee stage

At the report Stage

At the third reading

The bi l l then goes to the other house, usually the

If the other house accepts the bi l l then the bi l l is passed to the Queen for

If the bi l l is rejected or amended

Discuss the Advantages and disadvantages of Parl iamentary Law making (10)

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One advantage of Parliamentary law making is

This is an advantage because

For example

Another advantage is

This is an advantage because

For example

However one disadvantage is

This is a disadvantage because

Another disadvantage is

This is a disadvantage because

For example

Green White Papers

Key points Green paperPurpose of To consult interested parties and these who may be affected by the

government’s ideas for a change in the law. The green paper will give a number of options over the change in law that people can comment on.

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Who is consulted Any individuals, groups or organizations that may have an interest in the proposed changes and anybody who might have experience or skills in the area of proposed legal change.

Why is consultation needed

To consult those who may be affected by the change to ensure government policy is sound and based on clear beneficial aims to society as a whole.

What happens with people’s views who have consulted

Any final fine-tuning of the proposed laws or strong views form those consulted and put in a report for the government to reflect on. It is upto the government to decide whether to alter the law and to what extent.

Example ONE of Policing in the 21 st Century

Who consulted in example

Police and voters who may be voting for elected police commissioners

Why consulted the people in the example

Directly elected Police and crime commissioners will impact directly on policing in the geographical area.

Example TWO of Families and Relationships

Who consulted in example

Grandparents, parents, family lawyers and children groups such as NSPCC

Why consulted the people in the example Legal access rights to grandchildren for grandparents clearly needs to

based on workable, practical legal framework that parents can commit to.

Example THREE of The Future of Child Maintenance

Who consulted in example

Families, family lawyers and social workers

Why consulted the people in the example reform of child child maintenance payments

White Papers

Key points White paperPurpose of

To propose changes to the current law as identified in by the government.

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Who is consultedAny individuals, groups or organizations that may have an interest in the proposed changes and anybody who might have experience or skills in the area of proposed legal change.

Why is white paper issued

Often based on the consultation that took place in the green paper the white paper is a firm proposal of new laws that is further consulted on to gauge public opinion and start the process of gaining public acceptance of the changes. Often a draft bill is also attached.

What happens with people’s views who have consulted

Any final fine-tuning of the proposed laws or strong views form those consulted and put in a report for the government to reflect on. It is upto the government to decide whether to alter the law and to what extent.

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

Benefit claimants, tax payers, civil servants who have to administer the benefit and economists.

Why consulted the people in the example

Create one benefit for those in and out of benefit which should create a more efficient and cheaper system of benefits for the tax payer.

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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.

Limitations of Parliamentary sovereignty:

Supremacy of EU law: The United Kingdom (UK) joined the European Union in 1973 by signing the European Communities Act 1972. The European Community law has to be given priority over domestic UK law under requirements of the European Community Law so this limits the sovereignty of parliament, as all laws must take into account those made by the EU.

In Factortame the issue was concerned with the regulations for registering fishing vessels. The Court of Justice held that the conditions laid down in the Merchant Shipping Act 1988 could not be adhered to as they were in breach of an article of the Treaty of Rome. This was the first case that clearly stated that Parliament was limited in its sovereignty in creating laws as any law that conflicts with EU law is no longer valid.

In Macarthys v Smith (1981) the case shows that citizens of the UK are entitled to rely on the rights in Treaties, even though they might not have been implemented in English law. In this case Wendy Smith’s employer paid her less than her male predecessor for exactly the same job. As the same employer did not employ them at the same time, there was no breach of English domestic law. But Wendy Smith was able to claim the company was in breach of the Treaty of Rome over equal pay for men and women. The European Court of Justice confirmed the claim showing the further limitations of parliamentary sovereignty as citizens can now rely directly on the laws of the EU even if UK law is not broken.

Devolution:

What is devolution in the UK?

The legal process of allowing a specific geographical area of a country rights to make their own laws. This limits UK parliamentary sovereignty as Parliament no longer are able to make laws on a number of issues in the devolved areas.

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Which areas of the UK have devolution

Scotland, NI and Wales

For one area which Act created devolution.

Scotland Act

Give an example of how devolution has limited parliamentary sovereignty

Tuition fees in Scotland can be set by the Scottish rather than the UK parliament. So this has produced 0 fees in Scotland compared to £9000 a year fees in the England.

Give another example of how devolution has limited parliamentary sovereignty

From 2016 Scotland will be able to raise set their own income tax rates and use these funds to pay for public services without the interference of the UK parliament.

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Compliance with Human Rights Act:

What is the Human Rights Act?

An Act of parliament that says all uk laws will abide by the articles of the European convention on human rights and make all acts compatible with an individuals human rights. This also means the government and parliament have given up any parliamentary sovereignty to the ECHR in Strasbourg. So if a case such as prisoners’ rights to vote is decided against the UK govt parliament no longer has the right to make its own laws.

Give two examples of Human Rights

Right to a fair trial, right to family life

What is one effect the Human Rights Act on parliamentary Sovereignty?

Prisoners RightsIt has been a long established law in the UK that when a person is imprisoned for a crime they lose their right to vote. This has been successfully challenged by prisoners going to the ECHR. Parliaments sovereignty is no longer supreme as parliament now have to allow prisoners the right to vote in elections.

Give another effect of the Human Rights Act on parliamentary Sovereignty?

In the case of A and others the Terrorism Act 2001 was declared incompatible with the human rights of terrorist suspects as they had a right to a fair trial before losing their liberty. Parliament was not supreme in deciding the law on this issue and had to make a revised law under the Prevention of Terrorism Act 2005 to ensure the law was compatible with ECHR, so terror suspects can no longer be detained for long periods without trial.

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Influences on Parliament making laws

Pressure GroupsDefinition of Pressure GroupAre groups of individuals who campaign either for a single issue, or for minor, often technical changes, eg Amnesty InternationalHow influence parliament depends on the issue and at what the law making procedure is at. E-petitions

When influence: At any time before a bill, through its passage through parliament or when it’s been madeWho can influence: As politicians are elected by voters they will listen to anyone who affects their share of the vote in an election.Effect of influence: From no change at all to a totally new Act being introduced.

Example one – Same sex Marriage legalization – Coalition4 marriagepetitions For same sex marriage

Example two Pasty Tax U turn – Greggs/Cornish Pasty association campaigned successfully to stop a proposed new law on adding VAT to pies and pasties. Greggs got 300000 signatures on a petition.Example three Friends of the Earth campaign to force landlords to make tenants property more energy efficient and warm, new law in the Energy Act 2011 Advantage one - raising public awareness – Pasty tax campaign was at all shops selling the products and captured the mood of those directly affected by the increase in tax (300000 signed petition)Advantage two - keeping Parliament in touch with issues of public concernSame sex marriage was emphasized as a major issue by Coalition4marriage and Stonewall by filling an e petition with 175000 signatures against. This forced parliament to debate the change taking into various concerns aired by each group.Disadvantage one – could be undemocratic -financial clout rather than the proportion of public support. This theory applies to many of the protective groups, whom have greater capital than many well supported cause groups. An example is Bernie Ecclestone who, it must be noted, is not a pressure group in the traditional sense of the term. He used his connections with Tony Blair to arrange a meeting in which the prime minister agreed to extend the deadline for the removal of tobacco advertising in formula one racing by five years. Supposedly this coincidently coincided with Mr. Ecclestone making a generous £1 million donation to the Labour party.Disadvantage two - provide one-sided argument – Out4marriage have campaigned to ensure gay couples have the legal right to marry but this ignores the views of the entire population and could lead to govt law making that is representative of the views of the majority of the electorate.

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Law Commission

What Act Created the Law Commission

1965 Law Commission Act & 2009

What does require the Law Commission to do all the time?

To continually review and update the law and recommend changes to the government

Who sits on the Law Commission

5 Commissioners. 1 high court judge and 4 barristers/solicitors

How work investigatedNew lawExample

Either govt ask LC to review and propose change or LC have included a review and proposed change in their own timetable of work

Matrimonial causes Act regarding criteria for divorce law.

Codifying lawExample

Corporate Manslaughter Act 2007: Brought together the old law including case law on corporate manslaughter reformed the law and then placed it into one Act. The aim was to improve the chances of successfully prosecuting companies and their directors for deaths caused by their negligent working practices.Codify means to improve and replace old laws in one Act.

Consolidating lawExample

Powers of Criminal Courts (Sentencing Act) 2000 With amendments, it consolidated sentencing legislation previously spread across twelve separate ActsConsolidate normally means all the old law is placed in one act but with no or very little improvement, e.g. Offences Against the Person Act 1861 was a consolidating Act.

Recommending repeals of old lawExample

Statutory Law (Repeal) Bill 2012 – 800 out of date laws to be repealed, e.g. Indian railways, toll roads back to 18th Century oldest back to 1322.

Advantage one - legal expertise

The legislation is continuously being reviewed and amendments suggested by legal experts and other experts consulted by the LC throughout the process so that law keeps pace with modern society needs, eg Corporate Manslaughter Act

Advantage two - independent/non-political

The LC Act makes says the commissioners have to be non-political so they are totally independent from the government’s views on how law should be changed. Eg the 5 commissioners are all legal rather than political appointments. With the recommendations regarding the abolition of the defence of Provocation for murder the LC believed

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the defence should no longer be bias towards men. So they suggested getting rid of the excuse of sexual infidelity for murder of a spouse.

Advantage three About 70% of the recommendations made by the LC to the govt are adopted into new Acts of which there have about 100 since 1965. Also new procedure for non-contentious bills to go straight to the HOL can fast track the recommended bill (with the govts approval) and make reforms through legislation, e.g. repeal of laws Statutory Law (Repeal) Bill 2012

Disadvantage one - lengthy investigations

Reports take 3 years to produce and then have to be reviews by the govt. So the law could have changed by the time of the report

Disadvantage two - non-implementation of recommendations by government

AS the govt has competing priorities for legislation often the law is not changed as the govt believes it is not as important as other matters, e.g. The draft criminal was recommended in 1989 but has never been implemented as legislation. This is probably because the time required to completely place all criminal law in a bill and debate it are too onerous.

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Past Questions

June 2011, question 02: 'Describe the law making procedure in Parliament'

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