UK Constitution- (Lecture 3): PRIMARY LEGISLATION

 

Primary Legislation

This chapter is primarily concerned with primary legislation, which refers to the UK Acts that are passed by the Parliament, and how they are made through passing various parliamentary stages. Studying about this area gives us more knowledge of the three key constitutional principles- Parliamentary supremacy, Rule of Law, and Separation of powers.

Parliamentary Supremacy: The UK’s constitutional setup gives the final say on whether a statute is valid and be recognized as valid law to the politicians than the judiciary. This dominance has two justifications. Firstly, the legislature is elected and would be better able to reflect the views of the people who elect them. Secondly, the legislative process is superior to the adjudicative processes of the courts for deliberating on and determining questions of public interest. An important to bear in mind is that the government plays the main role in making legislation. It initiates policy, drafts bills, steers bills through the Parliament and often decides when legislation is brought into force. The government is then deciding the content and timing of the legislation. Also the FPTP electoral system ensures the government’s majority in the Commons which gives it further strength to pass a bill successfully.

Rule of Law: Rule of law comes into play when legislation confers power on government. Statutes give wide discretionary powers to ministers to carry out executive action and to make rules in the form of delegated legislation. Also, since UK joined the EEC in 1973, the courts have been given the power to disapply the legislative provisions not in line with the EEC law. Moreover, the Human Rights Act 1998 has given the court the power to issue a declaration of incompatibility if the legislation is seen to be inconsistent with the Convention rights.

Separation of Powers: UK does not have a separation of powers arrangement except for the principle of independence of the judiciary. Studying legislation is a good way of seeing the government being a dominant influence in the legislative process that leads to the enactment of an Act of Parliament and that it also has extensive power to make delegated legislation.

Who or What is the Legislature?

·        Government:

Ø  Ministers and civil servants develop policy initiatives.

Ø  Government lawyers draft bills.

Ø  Ministers introduce bills to the Parliament and steer them through both Houses, suggesting amendments along the way.

Ø  Secretary of State often decides when a statute should come into force.

·        The Queen:

Ø  Some bills require Queen’s consent to even progress through the Parliament. Here the Crown’s prerogative is usually involved and the Queen acts on the advice of ministers.

Ø  All the bills require Royal assent in order to become an Act of Parliament. This makes the legislature the Queen in Parliament, but the political reality is that Parliament is the effective law making body.

Policy Making:

According to S. James, a policy can be defined as a course of action deliberately taken by the government. Government policy is an authoritative determination by ministers and civil servants of what will be done about something. The government comes up with its own set of ideas and values and policies are the practical plans through which these ideas and values are brought into practice. James suggests that there are six stages through which a policy passes and develops:

Ø  A subject becomes an issue.

Ø  The issue gets onto the political agenda.

Ø  The government investigates an issue.

Ø  The government takes a decision.

Ø  There follow the stages of legislation and legitimization.

Ø  The final stage is that of policy implementation and review.

Consultation is a major aspect of the policy making process. Over the passage of time the government has adopted various consultation practices. Typically, at first a Green Paper, invented by the Labour government in 1967, is published which outlines the government’s initial views over a proposed policy or sets out various policy options. Then a White Paper follows, in which the government lays down its policy plans on a given topic more firmly and clearly. Then sometime later a bill would be introduced into the Parliament.

These consultation papers can be published either informally on the relevant government department’s website or formally in the form of Command Papers. Command Papers are Parliamentary papers which are introduced by the minister and there is a presumption that any Paper which will cause a statement to be made by the minister or lead to a debate in Parliament should be published as a Command Paper.

In 2000, the government published a code on consultation for the first time. Although the code says it has no legal force but attempts have been made in various judicial review cases, to challenge the lawfulness of consultation exercises on the basis that the code has not been followed properly. In R (on the application of Bhatt Murphy) v. The Independent Assessor, a firm of solicitors argued that the code had created a legitimate expectation that there would be consultation by the government according to the code when it wanted to change the way in which victims of miscarriages of justice were compensated. The Court of appeal agreed with the ruling of the trial judge and quoted his ruling with approval.

Drafting Bills:

In UK there is a centralized system of drafting bills. They are made by the government lawyers or parliamentary counsel on the instructions of the relevant government departments. A drafting style has been introduced in UK which is reflected by a more detailed and precise legislation as compared to the simple and short legislation of civil law jurisdictions. The problem with such Acts of Parliament is that they are usually not understandable to non lawyers and this is because of a variety of reasons. Firstly, the statute may seek to give effect to a policy which is itself complex; secondly the rule of law states that the law has to be certain and when it is so, it goes hand in hand with complexity; thirdly the problem may arise from the desire to control and restrict discretion in the implementation of policy.

If such bills are not understandable by the Parliament, they would not be later able to scrutinize the government’s policy proposals effectively. To overcome this problem, since 1999 all bills have been accompanied by explanatory notes drafted by lawyers in the departments sponsoring the bill. Dicey argues that little discretion should be given to the ministers and thus the powers in the bills should be particularly spelled out. Some commentators argue that the present detailed legislation ensures certainty while some call for less detailed legislation by adopting the practices used in continental law making to improve efficiency.

The Parliament usually sets out the broad framework leaving the rest of the details to be filled via delegated legislation. One example of this was S96 of the Policing and Criminal Act 2010 which aimed at varying PACE 1984 giving the Home Secretary wide powers to make delegated legislation in the area of retaining DNA material after an acquittal or discontinuance of prosecution. The House of Lords Constitution Committee was critical of this stating that after the ECtHR’s decision in Marper v. UK raised controversial issues which should be dealt via primary legislation to enable Parliament to scrutinize them. This criticism however did not prevent the government from using framework bills. Similarly, the Public Bodies Act 2011 aimed at reducing public expenditure through reducing the number of public bodies dramatically. The House of Lords was critical of the Bill as they thought that such an area should not be left for delegated legislation as it strikes at the heart of the UK constitutional system. The disadvantage of such skeleton style bills is that they confer too much unsupervised discretion on government.

Pre-Legislative Scrutiny of Draft Bills:

A recent development is that the government now publishes a draft of the bill, in the form of Command Papers, some months or even years earlier before it is formally introduced in the Parliament. The 1997 Report of the House of Commons Modernization Committee outlines the advantages of pre legislative scrutiny i.e. it provides the chance to the House as a whole including backbenchers and opposition to have a real input into the form of actual legislation which subsequently emerges; such scrutiny at an earlier stage speeds up the legislative process; and leads to better legislation which does not have to be amended repeatedly.

Parliamentary year:

Under the Fixed Term Parliament Act 2011, it is expected that the Parliament will have 5 sessions each year, beginning and ending in spring. The government in recent years has adopted the practice of publishing a draft legislative programme in which it outlines the main bills that it expects to introduce to the Parliament.

Parliamentary Stages of a Bill:

The UK legislature is a legitimate or a reactive legislature, where debates and discussions are carried out regarding the government’s decisions. The government plays the governing role in the state, as it initiates policy, formulates it on legislation and exercises its authority derived from statute or royal prerogative. The government however is not the sole input of business for the Parliament, as much of it is also originated by the opposition and the backbenchers. The Parliament is thus a recipient of wide range of proposals from the government on one side and the outside world or public at the other.

The basic rule is that all the bills have to pass through the parliamentary stages in order to become law. They can be introduced in either of the Houses with the exception of money bills always starting in the Commons.

1.     First Reading:

It is a formality stage which announces that the bill would be published and starts its passage through the House. Bills are accompanied by explanatory notes which explain what a bill is designed to achieve in non technical language. These notes are not endorsed by the Parliament.

2.     Second reading:

This stage takes place typically in two to four weeks after the First reading, and gives an opportunity to MPs and peers to debate the aims in the bill. Such debates are recorded in the official document called Hansard.

3.     Committee Stage:

This starts two weeks later, and is the most important stage as detailed consideration and drafting of the bill occurs. Committee stage takes place in both Houses of Parliament. In the Commons, a public bill committee is usually set up to examine the bill, with the power to make amendments provided they are relevant to the bill's subject matter. Amendments and new clauses may be moved by the minister from the government department introducing the bill, the opposition spokespersons, or by any member of the committee.

Since January 2007, when public bill committees replaced standing committees, parliamentarians have also been able to receive written evidence and call witnesses to testify on the detail of legislation they are examining. Committee stage can also take place on the floor of the Commons - in a committee of the whole House. This means that any member can contribute to the debate, and not just members of the public bill committee.

In the Lords, committee stage usually takes place in a committee of the whole House or in Grand Committee in the Moses Room, a large room away from the main Chamber, and rarely to other types of committee. In both Houses, a bill goes to report stage after committee stage.

4.     Report Stage:

Further amendments, and changes to amendments made at Committee Stage, may be made at this time. All members may speak and vote at Report Stage - unlike the usual procedure at Committee Stage, when only members on the Public Bill Committee can take part.

5.     Third Reading:

Substantive amendments cannot be made at this stage. Except for bills of major political or constitutional importance, third reading is usually very short. After third reading in the Commons a bill is sent to the House of Lords for its Lords stages, usually on the same day or the next day the Lords is sitting.

6.     Ping Pong:

Once the bill has been through both Houses, agreements need to be reached on the final text that will be presented for royal assent. Where there is a disagreement, a ping pong process will arise with proposed amendments and counter amendments shuttling back and forth, until both Houses are willing to consent to it.

7.     Royal Assent:

It is the final stage of the legislative process where the queen assents to the bill. This grant is a prerogative power of the queen though by constitutional convention, it is always granted.

8.     Printing and Publication:

The new Act of Parliament must be officially printed and published in three forms- a Queen’s Printer Version on paper; on www.legislation.gov.uk website; and printed on vellum parchment to which the courts have access when doubts about the authenticity or text of a statute arise.

Bills of Constitutional Importance:

As the Parliament usually has a majority of the governing party, it is the government which controls the Parliament rather than the other way around. There have to be checks on this awful lot of power and according to Robert Hazell, bills of first class constitutional importance have their second reading stage in the chamber of the House of Commons rather than in a public bill committee. The advantage is that more MPs would be involved if the stage takes place at the floor of the Commons. However the problem is that there is a lack of Parliamentary time and therefore a limited number of amendments can be debated.

The scrutiny of such bills can be improved by checklists or scrutiny standards. They may be concerned with substantive, procedural or informational matters. Substantive matters include compliance with EU law or human rights; procedural matters include consultation with various public bodies and compliance with Cabinet processes; while informational matters include the government’s explanations and views of the objectives of the bill and its compliance with ECHR and other international standards.

The House of Lords Constitutional Committee in 2011 proposed that a minister introducing such a bill should make a detailed statement explaining the impact of the proposal upon the existing constitutional arrangements; what public engagement had taken place; and how the bill was scrutinized within the government.

Bringing legislation into force:

Once the act has been passed y the Parliament and received royal assent, it has to be brought into force. Usually it contains a commencement provision but some acts are complex. For instance, the Home Secretary had refused to bring into force some sections of the Criminal Justice Act 1988 related to the Criminal Injuries Compensation Scheme and stated that the government would instruct the Board to make future payments according to a tariff system set by the Home Office. The House of Lords ruled in R v. Secretary of State for the Home Department Exparte Fire Brigades Union 1995 that the Home Secretary had acted unlawfully as he could not ever makes rules contrary to the will of the Parliament expressed in the Act.

Post Legislative Scrutiny:

The Law Commission of England and Wales recommended post legislative scrutiny which was introduced by the government in 2008. Its purpose is to review the legislation to see whether the intended policy’s objectives have been met by the legislation or not, and if yes, then how effectively.

Legislative Functions after Devolution:

The Scottish Parliament, the Northern Ireland Assembly and the National Assembly of Wales have power to enact primary legislation within the terms of the Scotland Act, Northern Ireland Act and Government of Wales Act respectively. Devolution has impacts for the UK Parliament. The UK Parliament continued to pass legislation for devolved matters in Scotland. Another problem is the role of the UK Parliament as the legislature for bills that only apply to England. A solution would be to create a separate English Parliament or that only the MPs from the constituencies of England can vote on bills applied only to England. This however would undermine the UK, in the Parliament of which all MPs should be free to vote equally on any issue.

In conclusion, given that approximately 70% of legislation initiated by governments is not voted on when it comes to the second readings of Bills, it can be said with confidence that the Government is the dominant player when it comes to getting legislation passed. Bills are discussed, on average, for 7½ hours, but this allocation is not equally distributed between or within Acts. During the Commons processes, much legislation is therefore passed with little or no scrutiny. Also, due to strong party affiliation within the UK system of government, many controversial Bills can be forced through all of their parliamentary stages. One such Bill was the Criminal Justice and Public Order Bill, which was opposed almost unanimously by the Opposition. Because of the government majority, however, the Bill survived, its original content practically unscathed, to become an Act.

This has led to concerns that the Commons is being used as a rubber stamp by governments with large majorities and that backbenchers are becoming increasingly irrelevant when faced with a strong and dominant executive.

Many commentators have been calling for greater scrutiny of legislation. There have been suggestions that the role of the Committee could be expanded. For instance, perhaps a Hybrid Committee could be created from the current Standing and Select Committees. Ministers could be summoned to appear before such a Committee to account for certain provisions that are either absent from or included in the proposed legislation, and to explain the reasoning behind them.

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