Written by Conor Newman (October 2007)
Plan
-Intro
-First reading
-Second reading
Committee stage-report stage
-Third reading
-Royal assent
Conclusion
Introduction
In this answer I will be describing the various processes involved in the creation of and Act of Parliament. Parliament itself consists of two chambers, the democratically elected House of Commons, and the House of Lords. Both chambers have various stages that a bill must go through in order to become law.
When the idea for a bill is first come up with, it is called a green paper. It will simply include the title and a basic outline of the bill. There will then be a period of consultation, and the final details will be drafted into what is called a white paper. Then, the bill will be revealed publicly, and sent to Parliament for deliberation. Bills can start in either chamber, although most bills start in the House of Commons. Also, finance bills must start in the House of Commons.
First Reading
The first stage of the Parliamentary process is the first reading. The name and general aims of the bill will be read out, but no real discussion will take place. Instead, the MPs will take a verbal vote; those in favour will call out ‘aye’, while those against will call out ‘no’. If no clear majority can be ascertained, then the MPs will file out and return into the House through one of two doors; one is the ‘aye’ door, the other the ‘no’ door. Tellers will take a count of the MPs that come back through each door, and if a majority vote for the continuation of the bill’s passage, then it will move onto the second reading.
Second Reading
This is probably the most important stage of the process. Here, the MPs will debate and discuss the bill in detail, looking at it from different perspectives and ensuring that it is feasible and would be effective. This debate will usually focus on the overall principles behind the bill, rather than the fine details. To speak in the debate, an MP must catch the speaker’s eye and wait for their permission to speak. The speaker essentially controls the debate, and no-one can speak without their permission. After this debate, another vote is taken in exactly the same way as in the first reading. If a majority votes in favour, then the bill continues to the Committee Stage.
Committee Stage
In this stage, what is called a Standing Committee consisting of between 16 and 50 MPs will make a thorough examination of the bill line-by-line, and make any amendments that they see fit. Members of the Committee are chosen in regards to the expertise of the MPs in the subject being discussed, and also proportionately to the parties in the house. This means that the number of seats a party has in the house will be proportionate to the number of seats they have in the Committee. As a result of this, the party in power will usually have a significant majority in the committee. For finance bills, the entire house will sit in committee.
Report Stage
After the Committee Stage, the Standing Committee will report back any amendments they may have made. If none were made, then this stage will not occur. The House will then discuss and debate the amendments, and may accept or reject the amendments.
Third Reading
In this stage, the MPs will make a final vote on the bill. It is highly unlikely for there to be much debate, unless at least six MPs object and then request it. This stage is something of a formality as if a bill has passed through the previous stages then it is highly unlikely it would be stopped there. In the third reading, the MPs will have a final debate and discussion based on the fully amended bill. It will then be passed to the House of Lords (or House of Commons, if the Bill started in the House of Lords)
House of Lords
After the third reading, the bill is passed onto the second chamber, which is usually the House of Lords. The House of Lords will go through all the same stages the House of Commons does, except for the Committee Stage the entire chamber will stand as a committee. If the House of Lords makes any amendments, then the bill will be sent back to the House of Commons, to discuss and perhaps accept the amendments. Furthermore, the House of Lords can actually block laws until the next Parliamentary session-one year’s time. This is because of the Parliament Acts 1911 and 1949. Once both the House of Commons and the House of Lords accept the bill, it passes to the Monarch for the final stage.
Royal Assent
This is the final stage of the Parliamentary process. It is a mere formality, as although the Monarch does theoretically have the power to halt the passage of a bill, if a bill has gone through all the stages of Parliament then it is deemed to be the ‘will of the people’ and so should not be stopped. Regardless, the Monarch must give their stamp of approval first, which is called Royal Assent. Once this has occurred, the bill will become law on midnight of the same day, unless there is a specific time mentioned within the bill.
Conclusion
In conclusion, there are various stages within the Parliamentary process. The bill usually starts in the House of Commons, where it goes through two readings, which are votes and debates on the principles of the bill. It will then pass onto the Report stage where a committee analyses the bill and amends it, before moving onto the final reading. Next, it goes to the second chamber where the process is repeated, and finally the Monarch grants their assent.
b.)
c.)
Plan
-Affirmative resolutions
-Negative resolutions
-Scrutiny Committee
-Control by the courts-Ultra Vires
Introduction
In this answer I will be describing the various controls on Delegated Legislation, which are used for Parliament to ensure that the Government is not abusing its power.
Delegated Legislation is any law not made by Parliament, but with the authority or consent of Parliament through an enabling act. The most common type of delegated legislation is statutory instruments, which are laws made by Government ministers. For this reason, these are the types of laws with the most control by Parliament.
Affirmative Resolutions
Some statutory instruments are subject to an affirmative resolution, and it will say so in the enabling act. For example, the Police and Criminal Evidence Act 1984 states that an affirmative resolution is required before new or revised police Codes of Practice are brought into force. An affirmative resolution essentially means that the statutory instrument cannot come into force or become law unless it is specifically approved by Parliament. Parliament may approve, annul (declare void) or withdraw the statutory instrument, but they cannot amend it.
Negative Resolutions
Although some statutory instruments are subject to an affirmative resolution, most are controlled through the use of negative resolutions. This is when the statutory instrument will become law unless Parliament rejects it within 40 days. However, usually the statutory instrument comes into force immediately, and so any provisions made under it before it is rejected still stand. Furthermore, there is the ‘21-day’ rule, which states that a statutory instrument should be laid for scrutiny before Parliament twenty one days before it is planned to come into effect. This gives Parliament time to scrutinise the instrument before it comes into force.
Scrutiny Committee
The scrutiny committee (formally known as the Joint Select Committee on Statutory Instruments) reviews all statutory instruments created by the Government. If necessary, it will draw the attention of Parliament to any clause, regulation, or entire statutory instrument that needs revising, amendment or further consideration. The main grounds for doing so are if the law imposes a tax or charge-as only Parliament has that power; if the law has retrospective or unintended effect not included in the enabling act; if it is unclear or defective in some way; or if it has in some way gone beyond the powers of the enabling act. The scrutiny committee can then report back its findings to Parliament.
Control by the Courts
As well as control by Parliament, statutory instruments (and all delegated legislation) are subject to control by the courts. The case against a piece of secondary legislation can be made through the judicial review procedure, through a civil claim, or through an appeal. The courts may challenge delegated legislation on the grounds that it is ultra vires, which means that the law goes beyond the powers granted to it by the Enabling act. No delegated legislation can, unless stated in the enabling act, make unreasonable regulations, levy taxes, or allow for further sub-delegation. An example of an unreasonable regulation was seen in Strictland v Hayes Borough Council (1896), in which a bylaw that outlawed the use of profanity in both speech and in singing was deemed to be ultra vires, as it is clearly unreasonable to do so. A law may also be deemed ultra vires if the correct procedure has not been adhered to, such as in the Aylesbury Mushroom Case, in which the Ministry of Labour failed to go through the proper consultation with all the parties that would be effected. Another case was in R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) in which a judge of the High Court ruled that the Education Act 1996 did not grant the Education Secretary the powers to set higher rates of pay for teachers, and he also ruled that the proper procedure had not been followed as only four days had been allowed for consultation.
Legislative and Regulatory Reform Act 2006
For statutory instruments made under this enabling act, a different controlling process is used. The act itself grants Government ministers the power to amend or remove any law or regulation that is seen as a ‘burden’. This is defined as a law that causes unnecessary financial cost, administrative or productive inconvenience, or a sanction that affects any lawful activity. First of all, under s13 of the act the minister making the law must consult with a variety of people and organisations that include the welsh assembly if it affects them, the law commission, and those who would be affected by it. As well as this strict consultation procedure, there is a resolution procedure similar to those of normal statutory instruments. The minister can suggest one of three procedures: the negative and affirmative resolutions as per normal statutory instruments, or a super-affirmative resolution. If the minister suggests an affirmative resolution, this will go ahead as usual unless Parliament objects within 30 days. If the minister suggests a negative resolution procedure, then both Houses must approve of the statutory instrument. Even if Parliament does not object they may still require a super-affirmative resolution. This is when, over a 60 day period, Parliament and a variety of committees may report on the draft order or make resolutions regarding it, and the minister must accept and have regard to these reports and resolutions. Furthermore, the minister must follow the same procedure as an affirmative resolution in addition to the various checks by Parliament.
Conclusion
Overall then, there are a variety of controls and procedures that Parliament uses to regulate delegated legislation. Statutory instruments usually require either an affirmative or a negative resolution procedure, and all statutory instruments are regulated by the Scrutiny Committee. Furthermore, any statutory instruments created under the Legislative and Regulatory Reform Act 2006 are subject to separate, stricter procedure that gives Parliament more control, since it may involve changing Acts of Parliament. Finally, the courts can also deem any delegated legislation ultra vires if they deem the law to have gone beyond the powers intended by the enabling act.
ii.)
Plan
-Effectiveness of affirmative and negative resolutions-parliament cannot amend, only withdraw; affirmative resolutions are rarely used so an instrument will be stopped only if Parliament objects
-Scrutiny Committee-no real power; ministers often ignore their findings unless parliament gets involved
-Legislative and regulatory reform act 2006-more effective controls than most instruments
-control by the courts-only through judicial review or appeal; no initial control;
Introduction
In this answer, I intend to discuss the effectiveness of the various controls that Parliament and the courts have over delegated legislation, and whether they are really enough.
As discussed in the above answer, there are a wide range of controls over delegated legislation. Most statutory instruments require either approval or for parliament not to object (affirmative and negative resolutions) to become law, and there is also the scrutiny committee that assesses every statutory instrument. Furthermore, the courts maintain some control over delegated legislation in the form of judicial review and the doctrine of ultra vires.
Affirmative and negative resolutions
These are the most common form of control over statutory instruments, as most will require either one to become law. Affirmative resolutions are quite effective because it requires that the statutory instrument gain the approval of Parliament before it becomes law. However, this can be a lengthy process, which is why it is not used as frequently as negative resolution procedures. This is when a statutory instrument becomes law but is subject to a 40 day ‘trial period’ where Parliament may object. The problem with this procedure is that during the 40 days, the statutory instrument is in effect, which could cause a detrimental effect in some way. To tackle this issue, Ministers adhere to the ’21 day rule’, whereby they must submit a statutory instrument for review 21 days before it is to come into place, to allow Parliament to assess whether it could be a burden before it comes into force. Another problem with the effectiveness of a negative resolution is that Parliament may spend too much time debating the issue, since many MPs may be in favour of the law, while others may be against, which can lead to a sort of stale-mate. During this time, the law could be damaging for the country, the individual, or generate some kind of bad reputation. Moreover, Parliament only has the power to withdraw or approve a statutory instrument, not amend it.
Scrutiny Committee
The Joint Select Committee on Statutory Instruments (Scrutiny Committee) is another form of control on delegated legislation. Its purpose is to scrutinise every statutory instrument created and, if necessary, draw the attention of Parliament to any problem that they may find with it. This is quite effective because it means that there is always a committee ensuring that the Government is not going beyond its powers or abusing its authority. However, it does have some downsides. The Scrutiny Committee itself has no real powers; it can only alert Parliament to the problem, who are not in fact obliged to act upon the Committee’s recommendations. Furthermore, in the Hansard Society 1992 report, they found that many of the critical findings of the committee were actually ignored by Ministers, showing the Committee’s limited powers. Moreover, the committee only really focuses on the grounds of technicalities rather than policies, so many problems could be overlooked in the procedure.
The Legislative and Regulatory Reform Act 2006
This is an enabling act that grants Government ministers the power to create statutory instruments that can make any provision required to ensure that laws are not a ‘burden’ on the government, individuals, or the state. This can mean that the Government can actually change Acts of Parliament. For this reason, Parliament has a high level of control over such statutory instruments. They must follow the same affirmative and negative resolution procedures, but are also subject to a stricter period of consultation and a super-affirmative resolution procedure, where the minister must take into consideration Parliament’s recommendations on the law. This strict series of controls means that Parliament has a tight grip on statutory instruments made under this act; understandable, considering the vast amount of power the act grants the Government. These controls are largely successful and effective, because they ensure that the Government considers all parties involved and Parliament’s reports, which prevents ‘knee-jerk’ laws created without proper consultation. However, the process can be lengthy, although this can be seen as a small price to pay for Parliament to maintain control over the powers they have delegated.
Control by the Courts
The courts also maintain some control over not just statutory instruments, but other forms of delegated legislation as well. Through an appeal case or judicial review, the courts may deem delegated legislation ultra vires meaning the law has gone beyond the powers granted to it in some shape or form. This is effective because it means that the Government or any other body creating delegated legislation are held accountable for their actions. This was seen in Strictland v Hayes Borough Council (1896) in which a bylaw prohibiting the use of obscene language was deemed ultra vires by the courts. However, the process of actually bringing a body to court is lengthy, and judicial reviews may miss key information or overlook certain key points due to the vast amount of information they must assess. Furthermore, the courts do not have any initial control over statutory instruments; by the time they have actually been made aware of a problem with delegated legislation, the damage may already have been done.
Conclusion
Overall, there are some controls in place over delegated legislation. Parliament maintains initial control through the enabling act, and also has limited control over statutory instruments. However, the committee that actually reviews statutory instruments has no real power and is generally ignored. Furthermore, by the time Parliament has reviewed a law under the negative resolution procedure, the damage may already have been done, and Parliament also does not have the power to amend statutory instruments under the resolution procedures. On the other hand, control over laws made under the Legislative and Regulatory Reform Act 2006 are much stricter, and are more effective than the other controls; but very few statutory instruments are actually made under this act. Control by the courts is also limited because they have no initial control and by the time any problems are brought to their attention it may be too late. The controls on delegated legislation need to be much stricter and in a similar vein to those used under the Legislative and Regulatory Reform Act 2006 for Parliament to maintain any real control over the powers they have delegated.
B ibliography
Martin J., The English Legal System, Hodder Arnold, 2007
www.legislation.gov.uk
www.parliament.uk