Sol Question 1 - Written by Brooke Griffiths
(a) Describe how an Act of Parliament is created.
Introduction
The main legislative body in the United Kingdom today is Parliament. They have the responsibility to pass new laws democratically. Parliament consists of the House of Commons, the House of Lords and the Queen. All three of these must consent for a law to be established. A bill must also go through the legislative process before it becomes an Act of Parliament which will be discussed further in this essay.
House of Commons
The House of Commons consists of 659 MP's. Each Member of Parliament represent an individual constituency in the United Kingdom and is accountable for his/hers party and electorate. Each member is voted for by the public who they believe will represent the correct views and opinions when speaking in Parliament.
House of Lords
The House of Lords consists of 92 hereditary peers, life peers, Law Lords and the most senior Bishops in the Church of England. Originally most of the members where hereditary peers but, later in the century a 'life peerage' title was awarded by Prime Ministers to people who they believed should receive a title for life.
What is an Act of Parliament?
When a Bill is successfully passed by Parliament they are called an 'Act of Parliament'. These are usually referred to as 'Statute law'. About 60 to 70 Acts of Parliament are passed successfully each year. There are two types of Bills – Private and Public Bills.
Public Bill
These are bills which involves matters of public policy which effect either a whole country or a very large section of it.
Private Bills
These bills are introduced by individual Members of Parliament and have the legal effect on a specific area of the country, or a particular individual.
The process for a Bill to become an Act of Parliament – Legislative Process
Pre-legislative process
A consultation document named the 'Green Paper' is put forward with the draft proposals for law reform. This consultation is extremely important before any laws are formed as it allows for any comments to be added and allows time for mature consideration. Changes are able to be made to the proposal at this consultation stage.
A 'white paper' is then put forward to act as a firm and detailed proposal which is then followed by a further public consultation. It is recommended that a bill should not be rushed known as 'knee-jerking' as seen in the case of the 'Dangerous Dog Act' (1991).
First Reading
This is where the bill is formally introduced whereby the name and aims of the bill are read out in the House of Commons. There is usually no discussion at this stage, however a verbal vote is made on whether the House wishes to consider the Bill further (to the second reading). Members decide by calling 'Aye' or 'No' to the speaker. If the verbal vote is unclear then the speaker will ask for a formal vote to be carried out. MP's leave and enter through the correct 'Aye' or 'No' doors and give their vote to the 'tellers'. The numbers are then declared to the members in the House by the speaker.
Second Reading
This is the most important stage of the process and also takes place in the House of Commons. This is where MP's discuss the main debate and detailed discussion of the Bill takes place. Members of Parliament who wish to speak at this stage must catch the 'Speakers eye', otherwise no one may speak without being called upon. This is because the speaker controls all of the debate. A vote is taken in the same way as in the first reading.
Committee Stage
At this stage a detailed examination of each clause of the Bill is undertaken by a committee (usually done by a Standing Committee) chosen specifically for that Bill. A committee is made up of between 16 and 50 Members of Parliament. Each MP nominated for each standing committee will have special interests or knowledge of the subject of the Bill. Amendments can be made at this stage.
Report Stage
This stage is only needed if amendments have been made to the Bill in the Committee stage. If Amendments have been made then the committee will reports back to the House of Commons on those amendments. This stage of the process is known as 'a useful safeguard' as it is an opportunity for second thoughts to be considered.
Third Reading
This is the stage where a final vote on the Bill is made. At this stage the Bill is not likely to fail after getting through the previous stages. Although at this stage it is almost a formality, some amendments can be made in the House of Lords at this stage.
The House of Lords
At this stage, the whole process from the House of Commons is repeated again. If the House of Lords make amendments to the Bill, it will be sent back to the House of Commons for the amendments to be considered. The House of Lords can delay a passing of a Bill for up to a year due to the power from the Parliament Act 1911 & 1949. However, if the Bill successfully passes through all of the above stages then the House of Lords can pass it on to the next stage where Royal Assent is given.
Royal Assent
This is the final stage of the process where the monarch finally approves the Bill. The Bill then becomes an Act of Parliament. The monarch does not have the text of the Bill, she only gets to see the title. The royal assent is seen to reflect the 'general will' of the people.
Commencement of an Act
Following Royal Assent , an Act of Parliament will come into force and have legal effect from midnight that day, unless another day is set. An unusual act brought into force unusually was the Criminal Justice Act 2003 where the act was brought in section by section.
Conclusion
Once a Bill proceeds successfully through the step by step process of the Legislative Process it becomes an Act of Parliament and has legal effect. Each stage is important as they make sure that each new piece of legislation is correct and accurate.
(b) Identify and explain the most suitable type of delegated legislation to implement law in the following situations.
There are three types of Delegated Legislation : Orders in Council, Statutory Instruments and Bylaws.
(i) Orders in Council is the most suitable type of Delegated Legislation to be used and implemented in the case of a national emergency such as an outbreak of war involving the UK.
(ii) Orders in Council are made by the Privy Council which is made up of the Prime Minister and other leading members of the Government. This type of Delegated Legislation would be most appropriate in this case because under the Emergency Powers Act 1920, the Privy council was given the power to make law in an emergency situation without having to go through the stages of Parliament. This saves time which is crucial when dealing with such situations as war. The Bill would be drafted by the Government ministers, approved by the Prime Minister and assented by the Queen.
(iii)
(iv) A Statutory Instrument is the most suitable type of Delegated Legislation to be used in a case where an enabling Act authorizes the issuing of regulations concerning police powers.
(v) This can be proven by the Serious Organized Crime and Police Act 2005 which showed that a minister of State is given the power to make Delegated Legislation requiring equipment used by th Serious Crime Agency. A Statutory Instrument would be the best one to use and implement because police powers would be dealt with in the Crime and Police Act.
(vi) The term Statutory Instrument refers to rules and regulations made by Government Ministers. Each Minister and Government department is given authority to make regulations for areas under their particular responsibility. Around 3,000 Statutory Instruments are made each year.
(vii) One of the three types of Delegated Legislation, ByLaws is the most suitable for a case below.
(viii) The local imposition of penalties for dogs fouling footpaths.
(ix) ByLaws would be most suitable because they are mainly made by local authorities to cover matters of law within their own area. Therefore, the local authority who would enforce a ByLaw on dog fouling would know more about the local area and its needs (maybe put forward penalties for dog fouling) and the ByLaw would not have effect in any other area. For example, if Surrey County Council issued a ByLaw stating parking restrictions within the area, the ByLaw would have no legal effect in any other area other than Surrey.
(i)( I)With reference to Source B describe the controls on Delegated Legislation
Introduction
As seen in Source B, Delegated Legislation is being controlled by Parliament and the Courts. Parliament is also given the opportunity to affirm or annul the proposed delegated legislation. I will discuss in detail the different control Parliament and Courts have on Delegated Legislation.
What is Delegated Legislation?
Delegated Legislation is a law mad by some person or body other than Parliament but, have been given the authority to make it by Parliament. Parliament passes a 'Parent Act' which gives an individual the right to create one of the three types of Delegated Legislation. According to source B, Delegated Legislation takes three different forms- Orders in Council, Statutory Instruments and ByLaws.
Orders in Council
Orders in Council are made by the Privy Council which is made up of the Prime Minister and other leading members of the Government. Under the Emergency Powers Act 1920, the Queen and the Privy Council were given the authority and power to make a law without having to go through the procedure of Parliament. This saves a vast amount of time and is extremely useful in emergency cases.
Statutory Instruments
Statutory Instruments are the most common and important piece of Delegated Legislation. With over 3,000 made a year. They allow Ministers and Government departments the authority to make regulations under their particular responsibility. For example, Ministers of education will deal with issues concerning teachers and schools whereas a Minister of Health and Safety would deal with hospitals and doctors. And, as seen in source B Statutory Instruments are normally drafted by the legal department of the ministry concerned and may be subject, when in draft, to consultations with interested parties.
ByLaws
ByLaws are distributed by local authorities to cover matters within their own area and will therefore only have legal effect within the specific area of the county. They can also be made by public corporations and certain companies within their jurisdiction.
Control over the three types of Delegated Legislation
Because Delegated Legislations are not produced democratically, relevant controls need to be made by Parliament and the Courts.
Parliament Control
Parliamentary control over delegated legislation is fairly limited. However, Parliament has initial control with the Enabling Act, seen in source B, which sets out the boundaries within which type of delegated legislation is to be made. There are three main ways in which Parliament controls delegated legislation, these are Affirmative resolutions, Negative resolutions and the Scrutiny Committee.
Affirmative resolutions
An Affirmative resolution requires both Houses of Parliament to approve the order, which means that it will involve some debate and will not become law unless exclusively approved by Parliament. Only a small amount of Statutory Instruments will be subject to an Affirmative resolution. There is a disadvantage of this procedure in that Parliament cannot amend the statutory instrument, they are only able to approve or withdraw it.
Negative resolutions
A negative resolution means that a relevant statutory instrument will not be debated and will become law unless objected to in 40 days of the Bill being put forward by one of the Houses of Parliament.
Scrutiny Committee
This committee was formed in 1973 and their main function is to review all statutory instruments and draw them to the attention of both Houses of Parliament with all points that they believe need further consideration.
They can refer the Statutory instrument back to Parliament on several grounds of refferal such as the statutory instrument requires a tax or charge. This is because the power has gone beyond that given in the enabling Act. However, the Scrutiny Committee has limited power as it can only report back its findings, it has no actual power to alter any Statutory Instrument.
Control by the Courts
As seen is Source B, Delegated Legislation can be controlled by the Courts on the ground that it is 'Ultra Vires' and the process of judicial review. Ultra Vires suggests that the legislation has gone beyond the power issued by Parliament in the 'Parent' Act. A Judicial review investigates whether a person or body has abused their given power.
Any Delegated Legislation which is ruled to be Ultra Vires is void and does not become effective in a point of law. This can be seen in the case of R v Home Secretary, ex parte Fire Brigades Union (1995). The case illustrated Ultra Vires because the Home Secretary had gone beyond his given power in the Criminal Justice Act 1988 and had made changes to the Criminal Injuries Compensation.
Delegated Legislation can also be ruled Ultra Vires because the correct procedure was not followed. This can been seen in the case of Aylesbury Mushroom (1972) where the Minister of Labour meant to consult 'any organisations appearing to him to be representative of substantial numbers of employees engaging in the activity concerned'. He failed to follow this procedure which represented 85 percent of Mushroom growers.
A Statutory Instrument can also be declared void if they conflict with those in the European Union legislation.
Conclusion
All delegated legislation can be controlled by Parliament or by the Courts and they will be made void instantly if they are found to meet certain conditions. Parliament and Court control is extremely important in keeping all types of Delegated Legislation fair within the country. And to avoid any inappropriate legislation from being made.
(i)( With reference to Source B discuss the effectiveness of controls of Delegated Legislation
Introduction
Control over Delegated Legislation is extremely important and has a very large effect on our laws today. Without control, many people would abuse their power given to them by Parliament and lots of inappropriate laws could easily be made. I will discuss both the positives and negatives of having control over Delegated Legislation.
Positives
Because in most instances, Delegated Legislation is made by non-elected bodies, and since there are such a vast amount of people given power to make Delegated Legislation, it is important that control by either Parliament or by the Courts is put in place sufficiently.
Although the control put forward by Parliament is fairly limited, it is also crucial because Parliament sets out the boundaries in the enabling Act for what Delegated Legislation can be made, so that people do not abuse their power given within the act and do not make useless laws.
The Scrutiny Committee also plays a large part in controlling Delegated Legislation because is allows for Statutory Instruments to be considered further by the Houses Of Parliament for change or correction. This makes sure that no part of Statutory Instruments are ignored as seen in the Hansard Society (1992) report.
Negatives
The main problem of controlling Delegated Legislation is that because there is such a large volume of it made, not everybody is able to establish what they are and where they can be found. Therefore how can people take control over something that they do not know exist? This problem is mainly due to the lack of publicity in most cases. This can be a large problem such as in ByLaws as people in a local area may not know of the new legislation brought forward in their county and are therefore unable to follow it. The lack of publicity can also rise to problems with Judicial reviews as they require and rely on individuals interests and challenges put forward. If it is unheard of, legislation may be ignored for years.
Another large problem is that Affirmative resolutions by Parliament cannot stop any legislation being passed, they are only able to approve it or get it withdrawn. This is a problem as only a few important statutory instruments are subject to this procedure but Parliament are unable to physically stop them going through.
In addition, the Scrutiny Committee lacks power and only has the role to report their findings to Parliament, they are unable to actually make changes to anything. Most of their important work is often too easily ignored by Parliament.
There is another problem with the control by Parliament is that the 'Parent Act' put forward by Parliament contains obscure wording and can seem ambiguous to some people. This can lead to people interpreting it in different ways which can lead to people abusing their power given as they did not understand their limits in the first place.
Conclusion
Overall, control over Delegated Legislation is extremely important in the UK today as legislations are made by non-elected bodies which shows that their decisions do not necessarily represent the views of the public.