Written by Christina Yoong (October 2007)
(a)
Introduction
Legislations are made to deal with new situation under new circumstances. In order to solve these situations, a quick efficient law-making method is essential for the country.
In the United Kingdom, the main legislative body is Parliament. Parliament has the responsibility of passing new laws democratically and to do so, there is House of Commons which consists 659 Members of Parliament (MPs) that are elected by the public; House of Lords which is full of hereditary peers, life peers, Law Lords and senior bishops from the Church of England.
House of Commons
Members of Parliament are representatives for each individual constituency in UK. The public from each area has the right to vote for a MP which they think has the quality to represent their views, to put their opinions forward and to stand up for them in the Parliament of the country.
House of Lords
This House of Parliament is originally full of hereditary peers who were awarded by the Monarch but later in the century, the life peers became more common in the house. They are those who were nominated by the Prime Minister and entitled to stay within the house for their entire life time, however, their title can not be passed on to their children. Personally, I think this is a good idea because it’s an award for the life peer because they have served the country and deserve the title. Their kids shouldn’t be allowed to take this honour away from their parents.
Act of Parliament
Law that is passed by the Parliament successfully are called as Acts of Parliament and they are normally referred to as statute law. Each year there are 60 to 70 acts passed through successfully.
Parliamentary Counsel to the Treasury has the lawyers which draft the acts. The correct term for proposed acts is called Bills and they will become a piece of legislation when they pass through the necessary stages in the Parliament.
Private Bills
These are bills that have the legal effect on a specific area of the country, or particular individuals. There are bills which are specifically influence one or two people and they are called the personal bills. E.g. University College London Act 1996
Public Bills
Bills that have the legal effect on the entire population of the country, and most of them are sponsored by the Government who always try to carry out the manifestos. Private Member bills are also in this category. E.g. Powers of Criminal Courts (Sentencing) Act 2000
Process for a Bill to become an Act
Preparation (Pre-legislative Process)
A proposal can be written down on to a piece of consultation paper, the “Green Paper”. Comments will then be then be added to it by the interested parties so that consideration can be taken place. Changes can be made to proposal at during the consultation stage.
“White Paper” is acting as a firm proposal that is fulfilled with ideas, comments by the Government department. It is recommended NOT to rush through the stages because law that is made before a complete side is consultation are proved to be unworkable. E.g. The Dangerous Dog Act 1991. It was an act made due to the incident that happened at that time, and it was criticised to be one of those incomplete act.
First Reading
This is the stage which the bills are introduced formally by the name and the aims of the bills read out in on of the House of Parliament. There should be no discussions taken place at this stage, however, there will be a verbal vote taken from the Speaker of the House to decide whether the bills will pass on to the Second Reading. “Aye” for yes, “No” for no will be shouted out by the MPs and Speaker of the House will take those in accounts. If the verbal vote in unclear, a further formal vote will be carried out where MPs have to enter the “Aye” or “No” chambers.
Second Reading
A main debate will be carried out at this stage based on the key principles of the bills. MPs who would like to speak must catch the Speaker of the House eyes, otherwise, no one allowed to give out their opinions. A vote will be organised like the First Reading, and there must be majority of votes in order for a bill to go further down the stage.
Committee Stage
There are two types of Committees:
Standing Committees are made up by 16 to 50 MPs. Most of them will be the representatives of the Government and the rest will be proportionately to the number of seats the parties have in the House of Commons. It can last up to a few months because they have to suggest minor changes to the bills and make amendments to the bills as well.
Select Committees are the committees who analyse the work of different departments. They are not often involved in the law-making process and an example for the selecting committees is Public Accounts Committees.
Report Stage
This stage can be skipped if there is a bill which no amendments were made in the Committee Stage. It has the responsibility to report back to the House on the amendments made by the pervious stage and further changes can be made.
Third Reading
There will be a final vote held in this stage and it can leads to a debate of more that 6 MPs requested to do so. Amendments can be made at this stage.
House of Lords-
Depending on whether the bill is started from the House of Commons or the House of Lords, the bill will then pass on to the opposite house and repeats the above stages again.
If the bill successfully passes through the opposite House, it can be passing to the final stage where Royal Assent is given. However, if House of Lords reject a bill, the bill can be passing back to the House of Commons and go through the stages again by next session of the Parliament. (E.g. the Fox Hunting Ban 2005) This is because under the Parliament Acts 1911 and 1949, the power of House of Lords is limited. Due to the fact that they are not democratically elected, their point of view should be the one supporting the public views of the House of Commons, but not standing opposite to them.
Royal Assent
This is the final stage of the passage of a bill because a Royal Assent will be issued by the Monarch. The assent will be acted as the approval for the bill to become a piece of legislation. The assent will only show the short title of the Queen. She has the right to refuse a bill that is passed to her and the last time was that she refused to assent the Scottish Militia Bill.
Commencement of an Act
Once an act goes through the stages, it shall have the legal effect start from the midnight f the Royal Assent. However, an act can be arranged to commence on certain date. The interesting one is The Criminal Justice Act 2003 which has been brought into force bits by bits.
Conclusion
So, basically, it is a step by step procedure that a bill has to go through before it becomes a formal legislation that has the legal effect. Each stage is important and they will have to carry out in an appropriate way in order to make sure the new legislation is workable within the country and there shall be no problems with them.
(b) Case Studies
One of the three types of delegated legislations, Order of council is suitable for the above case. Order of Council can be produced by the Queen and the Privy Council which is made up the Prime Minister of the country and also other leading Ministers of the government. Under the Emergency Powers Act 1920 and Civil Contingencies Act 2004, the Queen and the Privy Council are given authority to make an Order of Council without going through the procedure of the Parliament. The bill will be drafted by the Government Department, approved by the Prime Minister and assented by the Queen.
So, when there is an emergency situation where UK is involved in a war, an Order of Council will be the most suitable type of delegated legislation to implement.
One of the three types of delegated legislations, Statutory Instruments (S.I.) is suitable for the above case. Statutory Instruments refers to regulations mad by the Ministers and Government Department over the specific areas where they are responsible for. For example: Lord Chancellor ha the control the power of making regulations regard to the legal aids and issue guidance on the procedures for the Judicial Appointments Commission where the Ministers of Education will have the powers to deal with necessary regulations that have to do with students and teachers. There are about 3000 Statutory Instruments passed each year.
So, when an enabling Act giving authority concerning police powers, a Statutory Instruments should be the most suitable type of delegated legislation to implement.
This can be proven by the Serious Organised Crime and Police At 2005 which power was given to Secretary of State of making regulations requiring equipments used by Serious Crime Agency.
One of the three types of delegated legislations, Bylaws is suitable for the above case. Bylaws are distributed by the local authorities and they will only have the legal effect on the specific stated areas of the country. They can only be used within the control of the council that issued them. So, therefore if Slough Borough Council issues a bylaw stating some parking restrictions within the county, the bylaw will not have legal effects on other towns.
If there is a penalty charge required when dog fouling around the footpath, this means that a bylaw is the most suitable delegated legislation of this case, and it will only affect the whole county.
(c)(i)
Introduction
According to the Source B given with the questions, delegated legislations are being controlled by the Parliament and the Court and they have the right to annul the proposed delegated legislation.
What is Delegated Legislation?
According to Lord Hewart, delegated legislation is those which made by a subordinate body who is authorised to legislate by an Enabling Act or ‘Parent’ Act of the Parliament.
The Parent Act will have the outlined principle of the law and then delegate powers to other bodies. These people are then responsible to investigate in a more precise and detailed way in that particular topic. So, delegated legislation is made by those individuals who granted the power to legislate by the Parliament.
Order of Council
Order of Council can be produced by the Queen and the Privy Council which is made up the Prime Minister of the country and also other leading Ministers of the government. Under the Emergency Powers Act 1920 and Civil Contingencies Act 2004, the Queen and the Privy Council are given authority to make an Order of Council without going through the procedure of the Parliament. The bill will be drafted by the Government Department, approved by the Prime Minister and assented by the Queen.
Statutory Instruments
Statutory Instruments refers to regulations mad by the Ministers and Government Department over the specific areas where they are responsible for. For example: Lord Chancellor ha the control the power of making regulations regard to the legal aids and issue guidance on the procedures for the Judicial Appointments Commission where the Ministers of Education will have the powers to deal with necessary regulations that have to do with students and teachers. There are about 3000 Statutory Instruments passed each year.
Bylaws
Bylaws are distributed by the local authorities and they will only have the legal effect on the specific stated areas of the country. They can only be used within the control of the council that issued them. So, therefore if Slough Borough Council issues a bylaw stating some parking restrictions within the county, the bylaw will not have legal effects on other towns.
Controls over these Delegated Legislations
As the delegated legislations are not made by bodies that are elected by the public, suitable controls from the parliament and courts will be needed.
Parliament
Parliamentary control is reasonably limited. However, Parliament has the responsibility of monitoring the delegated legislation and the ‘Parent’ Act will have the control of who has the legal responsibility of making new delegated legislation and the way they can operate.
There may be a few confirmation processes with the enabling acts.
Affirmative resolutions
It’s suggesting that a statutory instrument will only become an act if it is exclusively approved by the Parliament. Although this type of affirmation is rarely seen but it is required before a new or revised police Codes of Practice can come into force under the Police and Criminal Evidence Act 1984. The disadvantage of having this affirmation is that Parliament can not change bits of the Statutory Instruments but approve them or cancelled them.
Negative resolutions
It’s suggesting that the delegated legislation will come in force unless it has been annulled by the Parliament within 40 days of the Bills first being placed forward.
Scrutiny Committees
This is a Joint Select Committee that is formed in 1973 and their job is to review every statutory instrument and draw the attention of the Parliament to every aspect of the issues. They can refer the statutory instruments back to the Parliament if it requires tax or a charge; it has gone beyond the powers given in the enabling act.
However, Scrutiny Committees can not make any amendments towards the statutory instruments.
Courts
Delegated legislation can be controlled by the courts on the ground that it is ultra vires.
Ultra vires suggested that the legislation has gone beyond the powers that are given in the ‘Parent’ Act. Then that piece of legislation will be annulled by the court which means that since then it’s a piece of ineffective legislation.
There are 2 types of Ultra Vires:
Substantive Ultra Vires
This is when the subject matter has goes beyond the power given by the enabling act.
R v Home Secretary, ex part Fire Brigades Union (1995) is one of the cases that illustrates the substantive ultra vires because it was about Home secretary has gone beyond his power of Criminal Justice Act 1988 and altered the Criminal Injuries Compensation Schemes.
Procedural Ultra Vires
This is when the subject matter is within the power given but failed to follow the correct procedure that is required.
Aylesbury Mushroom Case (1972) has clearly showed us about the procedural ultra vires. The Minister of Labour meant to consult organisation appearing to him to be the representative of substantial numbers of employees engaging his activity. He failed to consult with the organisation which seemed to be a representative of over 85% of the mushroom growers.
The court will also annual those legislation that makes unreasonable regulations, those that collect taxes and charges, and those which allows sub-delegation. Those delegated legislation that has the conflicts with the European Law will also get void.
Conclusion
So, all the delegated legislation can be controlled by the Parliament and Courts and they will be annulled immediately if they are found to meet certain condition.
Personally, I think that controls that are given by the Parliament and Courts has a huge impact on the delegated legislation because they are there to protect the national law and also avoid inappropriate legislation being made.
(c)(ii)
Introduction
I’ve been asked to discuss the effectiveness of the controls of delegated legislation in this task. To be able to do so, I will firstly talk about the criticisms of controls over delegated legislation and also evaluate to see whether the controls of delegated legislation are satisfactory or not.
Criticisms over the controls
Managing the delegated legislation is very difficult because there aren’t many people who understand about them and know where they can find them. This is dues to the limited affects of the publication. This then will have a very big influence over the control of the delegated legislation because judicial review relies on individuals’ challenges them and if they are not noticeable, the legislation will not be challenged until years later. It will create a big problem if that piece of legislation affects the majority of country, and people that are affected are those who are unaware of their own rights.
There is another problem which is that the ‘Parent’ act can be very ambiguous because they use obscure wordings and they can be interpreted in various different ways. This means that they will give powers to the Ministers and leave tiny space for the legislation to be classified as ultra vires on judicial reviews. .
Similarly, parliamentary control has the same problem when it is the main method of controlling the delegated legislation. Affirmative resolutions will be able to show some legislation which has a very big impact but after all it is impossible for the parliament to stop any legislation getting passed. Additionally, the special department, Scrutiny Committee has no real powers other than reports their finding to the parliament. And their hard work could be ignored by the Ministers in the Parliament.
Conclusion
So, all the above are the criticisms over the controls of delegated legislation and personally, I think that controls over the delegated legislation are a very important issue.
This is because of the fact they are produced by non-elected bodies which means that they can not exactly representatives of the pubic and their decisions can different to the public’s point f views. At the moment, I think that the controls of the delegated legislation has been organised very well as there isn’t any major problems or hassles with them but they can be improved in to more efficient way.