Lecture notes
Legislation Lecture Notes
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- The University Of Liverpool (UoL)
English Legal System and Legal Skills, Legislation.
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What is legislation?Legislation are laws written 'before the event' produced by a body which has legal
and political power (authority) to make laws.
Whilst case law is Acts that have happened, legislation are acts that have not – it is
made prior to the illegality.
Legislation is most commonly Acts (or Statutes) or Statutory Instruments.
Not all pre-drafted rules are legislation.
Acts (statutes) - a form of law produced directly by Parliament according to their own
rules or 'conventions'.
Statutory Instruments - often called 'rules' or 'regulations'.
They are secondary legislation derived from a parent act.
Henry VIII Acts have a broad range of 'offspring' - they are a form of statutory
instruments that do not have to go through Parliament, they are private.
Acts and statutory instruments have a parent-child relationship.
Orders in Council and byelaws are forms of statutory instruments.
Parliamentary Sovereignty:
The sovereignty of Parliament is the dominant characteristic of our political
institutions (from a legal point of view). A.V. Dicey, introduction to the study of
the law of the constitution (1885)
“Where statute law and common law come into competition, it is the former that
prevails” (statutes are always considered more important than common law (case
law)). William Geldart, introduction to English law (OUP, 1995)
Parliament is part of a hierarchy of law, acts will always be favoured over statutory
instruments, case law and anything lower - Parliaments laws are supreme.
, The legislative process.
The process:
1. Bill drafted.
2. Presented to the House of Commons or House of Lords as a bill.
3. Goes through legislative stages.
4. Royal Assent.
5. Act of Parliament.
These are the stages for any bill to become a law.
There are also fast tracks for emergency bills.
Bill:
A bill is a draft of an Act before it becomes a law.
It will usually derive from a Government Department e.g., the Home Office or
Ministry of Justice.
The bill requires consultation and research - consultation from public, judges,
officers, and research from statistics and reviews - this produces mass amounts of
documentary materials (reports etc) which can occasionally be used to better
understand the law being proposed.
Does the effort and stages of legislation make it 'better' than case law? (Bentham).
Case law may highlight the errors in legislation.
Legislation has tradition and is politically driven, therefore is considered
superior to case law.
Presentation to the houses:
The bill is presented to the HL or HC. Some bills must start in the Commons e.g., if
they are 'money' bills.
Parliament's own conventions establish most of the rules in order to be given the
title of a higher form of law.
This presentation exposes the Bill to amendments and application errors before it
becomes a law.
Goes through the legislative stages:
Process:
First reading
Second reading
Committee stage
Report stage
Third reading
It must have the first reading - purely formal stage.
Just the formal reading of the Bill, sending it to print.
The second reading is where the debate of the main principles occurs.
No amendments are immediately made, it will go to a vote at the end where
the House will vote on whether the Bill should continue to the next stage.
The committee stage is the most important.
A detailed examination of the Bill will be considered line by line, the
amendments are noted and voted upon. This is the stage where the further
evidence will be considered to validate the Bill and any amendments proposed.
, The report stage is where every MP in the House has their opportunity to voice their
concerns about the Bill - an open debate on the amendments from the committee
stage.
Usually directly following the report stage, the third reading will take place.
The third reading is quick, it is usually immediately after the report stage.
The Bill is considered further, ending with a vote on whether to allow the Bill to
move onto becoming a law.
With the amount of documentation from this process, it raises questions whether if
the law is unclear, should we be able to look back to to gain clarity.
The Bill must go through both houses and must be approved by both in order to
become an Act.
There are some exceptions to this rule in The Parliament Acts 1911 and
1949.
Royal Assent:
The Bill will be formally presented to the Queen to gain royal assent to become
an Act of Parliament - this only happens when the Bill is approved by both
Houses.
Royal assent has only been refused once - Queen Anne in 1707 refused
assent on a Militia Bill aimed at arming the Scottish militia.
British Railways Board v Pickin (1974) AC 765 HL - the courts cannot
question whether an Act with royal assent is 'valid'; we can only interpret
and apply the law, not argue its validity or formality.
Three ways of enforcing an Act (to make it active):
The Interpretation Act 1978 s4 - a general rule where an Act has gone
through the legislative process, but does not have a specific date of
enforcement, then it will come into force on the day of royal assent.
Date Specified in the Act - where the date specified in the Act, it will come
into force on that date, it can either be fully or in sections (whichever
specified).
Power to bring into force in the Act - where the act itself states when it will
become in force through a powerful body e.g., the secretary of state must
state that this act is in force; the con of this is that there are 'zombie acts'
where they have not come into force.
e.g., The Easter Act, attempted to make a fixed date for Easter - the ways
of which it specified the stage of bringing it into the law never happened,
therefore it is not in force.
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