Creating legislation

Legislation starts off as a Bill. This merely means that the legislation is in draft form. Bills can be proposed by members of the House of Commons (MPs) or by members of the House of Lords. Bills can either be (a) public Bill or (b) Private members’ Bill.  A public Bill is one which affects the entire population and is introduced by a government minister. A private members’ Bill is introduced by a Lord or an MP who is not a government minister. However, if the bill goes on to become law it will affect the entire population. Private members' Bills usually come about because some current issue is important and has attracted the attention of a pressure group which then lobbies an MP for change. Examples of pressure groups are the Citizens Advice Bureau,  and “Which?”.

There are three ways in which a Private members Bill can be proposed:

• A ballot procedure allows a maximum of 20 back-benchers to propose new legislation. However, the timeframe for Parliament to process new legislation means that there is only a small quota of legislation allowed to be introduced by back-benchers. At the beginning of each parliamentary session the 20 members who were successful in the ballot are allowed to present their proposed legislation. Each of the private members’ Bills are usually discussed on a Friday and given a provisional date for a second reading or any further stages to be undertaken. These Bills may be of a controversial nature and they tend to relate to a member or a group of members who have a connection with the subject matter. The majority of private members’ Bills are usually done through the ballot procedure.

• Ten minute rule Bills are allowed under Standing Order No. 23. This order allows members to gain permission to introduce a Bill. The ten minute rule allows members to introduce a subject matter and a proposed change in the law. This process is usually taken up just after question time on a Tuesday. The ten minute rule was used by the MP Alex Cunningham to introduce a Bill which proposed a ban on smoking in private vehicles where there are children under the age of 18 years old present. Pressure groups such as the British Lung Foundation (BLF) have supported this proposal through their campaign against smoking in cars where children are present.

• An MP is permitted to introduce a Bill after giving notice under what is known as Standing Order No. 57. This type of Bill cannot be presented until after all the ballot bills have been presented and they have reached the second reading stage.

[The Open University, 2014]

The Abortion Act 1967 is an example of a Private members' Bill that became law.

The Law Commission and Criminal Cases Review Commission (CCRC) may also suggest changes to the law.

Stages of a Bill

The stages that a Bill that has to go through before it becomes law is fully described here.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© The Open University

The Parliament Acts of 1911 and 1949

Up until the first decade of the 20th century, the House of Lords had the power to veto any legislation coming through the House of Commons. In 1909 the House of Lords refused to pass the "People's budget" of David Lloyd-George. Subsequently, in 1911 the Parliament Act (1911) was passed, plus restricting the House of Lords from vetoing any Act of Parliament – with the exception of one to extend the lifetime of Parliament – and also reduced the lifetime of Parliament from 7 years to 5 years (meaning that a general election should be held every five years). The Parliament Act 1911 gave the House of Lords an option to delay any Bill for up to 2 years.

The 1949 Parliament Act further reduced this period of 2 years down to 1 year. Both the 1911 and 1949 Parliament Acts work together. Since 1949, only 4 Bills have been passed using these Acts:

War Crimes Act 1991
European Parliament Elections Act 1999
Sexual Offences (Amendment) Act 2000
Hunting Act 2004

As a matter of convention, the House of Lords does not veto any Bill related to a matter mentioned in an election manifesto.

Another convention is that Parliament cannot bind any previous Parliaments. What this means in practice is that any new government that is formed may make changes or repeal any previous legislation from preceding governments thus ensuring that the legislative power of the government is not restricted in any way. You can read more about conventions of the UK Parliament here.

Bear in mind that conventions are also a source of law under the UK constitution and cannot be easily changed.

The Westminster Parliament

The Westminster Parliament consists of two chambers (also known as ‘Houses’) called the House of Commons and the House of Lords. Having two chambers or houses is known as a bicameral parliament while having one legislative body (like the Welsh Assembly) is a unicameral parliament.

Theoretically, the Monarch is a third element of the law-making process, having to give formal approval for the proposed legislation to become law. This is done by affixing his/her signature (known as giving Royal Assent) to the legislation. In reality, no Monarch has done this since 1854 but it is actually done on behalf of the Monarch.

Theoretically also, the Monarch can withhold Assent to any legislation but this has not been done since 1707. You can read more about the role of the Monarch (currently a Queen) here.

House of Commons:

The House of Commons is considered to be the more important of the two Houses. The Members are also called Members of Parliament or MPs and are elected every 5 years in a general election. They are elected from constituencies or ‘seats’ by the people who reside in these areas, and are elected to represent the interests and concerns of the people who voted for them. They may also propose new laws, questions government ministers and generally raise interest in matters you think are important.

The House of Lords:

“Members of the House of Lords are not elected and are made up of peers, who have been appointed by the House of Lords Appointment Commission (HLAC), and life peers The HLAC is an independent body which was established by the then Prime Minister, Tony Blair, in 2000. Peers have a wide range of knowledge through experience gained during their professional careers, such as in the legal or academic professions, business, health and in various roles in public service. They utilise their occupational experience by contributing to matters which are debated in the House of Lords, such as education, health and public services. The function of the House of Lords is important as it contributes to the democratic process by scrutinising and revising proposed legislation that has been proposed by the current government, but as you will see later on in this unit their power to block legislation is curtailed by the Parliament Acts 1911 and 1949.

Members of the House of Lords do not have to be in a political office, such as being a member of a political party and, therefore, do not have to adhere to the convention of being either collectively responsible for a party policy or supporting proposed legislation. They may have a personal political persuasion and have previously held a ministerial role within a political party but this does not take away their independence as a member of the House of Lords. This places them in a position where they may either support or challenge a piece of proposed legislation by holding the government of the day to account, by questioning the MPs and undertaking formal enquiries which relate to the specific aspects of the new legislation. However, although members of the House of Lords may delay proposed legislation and bring the matter to the attention of the media and general public, they cannot defeat a piece of legislation. The reasoning behind this position, which is outlined below, is that members of the House of Lords are not democratically elected to this chamber. Whether a piece of legislation succeeds should be according to the will of the people, which is represented in the House of Commons and not by the members of the House of Lords. The bicameral structure of Parliament – the House of Commons and the House of Lords – produces a checks and balance system whereby power is not held by one body: the principle is that there should be transparency during the debate of any proposed legislation.”

[The Open University, 2014]

Next: The Parliament Acts of 1911 and 1949.

Sources of Law–Legislation

Unit 4 of W101 focuses on legislation as a source of law. It focuses on the idea of democracy, how laws are made by Parliament, and devolution.

Learning outcomes

After studying this unit you should be able to:

• explain the roles played by various individuals and bodies who may instigate legislative proposals
• discuss the legislative process in the Westminster Parliament
• distinguish between primary and secondary legislation
• explain the structure of a piece of legislation and discuss its application in context
• explain what is meant by devolution and explain how devolution has evolved in Wales.

[The Open University, 2014]

There are three main sources of law in the UK. These are: legislation, common law, and European law arising out of the EU. Note: this has not changed with the Brexit vote. It is still in effect.

© The Open University, 2014

The above figure gives details on how each of the sources are further sub-divided, so the various sources are more readily understood. However, there is a hierarchy of importance, and the OU advises:

“Given the hierarchical application of the three main sources of law, you need to be able to discuss the legal rules that apply in different situations. When dealing with a problem or essay question, you may need to consider whether the matter is controlled by EU law, by UK legislation or is governed by a previous decision of a court in England and Wales. Dealing with these sources of law and saying which source will prevail is important.”

[The Open University, 2014]

The hierarchy is as follows:

© The Open University, 2014

Democracy:

What is democracy? In theory, it is about the laws reflecting the values and views of the society in which you live, and that you are allowed a say in how you are governed. In the UK, this comes in several forms, one of which is the electoral process in which you get to choose who represents you in Parliament. It is a government by the people. You may have heard the phrase “a government of the people, by the people, for the people”. It was part of Abraham Lincoln’s Gettysburg Address.

The beginning of democracy is universally acknowledged as starting with the Magna Carta in 1215.

Constitutional Principles

“The constitutional statutes, conventions and prerogative powers that make up the UK’s uncodified constitution would not function as effectively as they do without three fundamental principles:

• the rule of law
• parliamentary sovereignty
• separation of powers.

These principles structure, strengthen and guide the legal and political aspects of a society.”

[The Open University, 2014]

The Rule of Law:

At level 1, I have already dealt comprehensively with The Rule of Law. We will meet this principle time and time again, so it is better to understand the basics of it now.

Separation of Powers:

Two philosophers contributed greatly to the theory of separation of powers; Montesquieu (1689–1755) who was French, and John Locke (1632–1704) who was English.

Montesquieu’s view was that:

“the administrative powers in France could be split into three: the executive, the legislature and the judiciary. The sovereign (monarch) stood alongside the administrative powers. The three powers would work and function separately from each other but still be linked in order to check and balance each other’s influences.”

[The Open University, 2014]

Locke had a slightly different view.

“He conceived of the legislative and executive as two different branches, as the law-making (legislative) and the law-executing power (executive). The judiciary was not seen as a source of power as its function was to interpret the existing law. According to Locke, it therefore did not need to be separated from the other two powers of legislature and executive.”

[The Open University, 2014]

In the UK, separation of powers means that the exercise of power is separated into three branches:

• Legislature – law making; refers to Parliament as the supreme (sovereign) law-making body.
• Executive – refers to all institutions of the state that apply the law. It includes the civil service, the police forces, and all the local authorities. The executive also relates to the Prime Minister, the Cabinet and other ministers.
• Judiciary – comprises of the courts, judges, magistrates and other personnel. Judicial officers have independence to prevent political interference, or any other type.

Previously, prior to the Constitutional Reform Act 2005 (“CRA”) which created the Supreme Court, the legislative and judicial branches of government were linked by the House of Lords. Remember that the House of Lords is the upper chamber of the legislative branch, but also 12 members made up the Judicial Committee of the House of Lords which was the highest court in the UK. This was considered a conflict and the CRA resolve this conflict by separating them through creation of the Supreme Court, which is now the highest court in the UK.

Parliamentary sovereignty:

“Parliamentary sovereignty is a key principle for the constitutional framework of the UK and unique to a common law system.

“A constitution provides the highest authority for a state. For example, the German constitution is a codified text which presents the sovereign authority of law in its interpretation by the constitutional court. The UK lacks this codified construct. There is no written and codified constitution that can be seen as embodying the sovereign authority of the law.

“The UK does, however, have a supreme law-making body: the Westminster Parliament. It is the highest law-making authority in the UK. The Westminster Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

“Parliamentary sovereignty is one of the essential pillars of the UK’s constitutional framework. However, this important principle is not enshrined in a constitutional statute. This is because the Westminster Parliament can make and unmake any law, so any statute regulating parliamentary sovereignty would be of limited effect.

“Constitutional statutes or conventions do not uphold parliament’s sovereignty. Constitutional statutes are the result of this principle. The courts and judiciary are the essential element of the UK’s constitution which secure parliamentary sovereignty. Hilaire Barnett summarises this in one brief paragraph:

Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

(Barnett, 2013, p. 112)

“Westminster Parliament, and therefore the legislature as a branch, is the most powerful institution in the constitutional framework. However, even Parliament can be held accountable for its actions. The Westminster Parliament is accountable to the electorate. The ultimate sovereign is the people as the electorate. The members of the Westminster Parliament are held responsible by citizens who vote in elections. The Westminster Parliament is given its authority and sovereignty by the citizens electing its members.”

[The Open University, 2014]

More on Parliamentary sovereignty later.