Legislative
process
Legislation has
been described as "The Linguistic dialogue between Parliament and the
Courts"; statutes are always talking (to the judges). Legislation stems
from limiting the Royal Prerogative.
It is an express
and formal laying down of the rules of conduct to be observed in the
future, so legislation is normally prospective (applies in the future) and
not retrospective. A retrospective law is generally considered unfair,
because the act being penalised was lawful when committed.
Legislative
procedure in a nutshell:
Manifesto
All political
parties have a manifesto, which is their promise to the electorate of the
actions they will take and the laws they will pass if they become the
government. It is these promises that persuade us to vote for a party.
Some parties are single-issue parties, for example, the United Kingdom
Independence Party (UKIP) has one electoral promise and that is
“...British withdrawal from the EU...” The manifesto of the elected party
that contains some of the legislation that is to be enacted during their
term of office. Not all their promises become law, when they get into
office they are supplied detailed information by senior civil servants and
then discover that the reforms are not realistic, or too expensive. Also,
other laws will be enacted during a government's term of office because of
unelected events, a war for example, or an unexpected ruling by the
courts. This happened in 1996; the government were faced with a ruling by
the House of Lords that an alleged fraud by a man called Preddy was not
unlawful, the case was R v Preddy [1996], and led to
the Theft (Amendment) Act 1996.
Queen’s
Speech
The Queen's
Speech at the State Opening of Parliament, in November announces the main
Bills constituting the Government's legislative programme. The government
actually writes the speech. The Queen in her speech refers to “My
government”, which constitutionally is true; the party that has the most
members of Parliament in an election forms the government on her request.
Government
departments are responsible for starting legislation that is within their
field of work, for example the Home Office is responsible for law and
order and prepares legislation affecting the police. The civil servants in
the departments prepare the draft ideas for the minister of government who
is responsible for that department. At this stage, there may be some
consultation by the government who may ask interested groups what their
opinions are.
Green Paper
Green Papers - or Command Papers to give them their correct title - are
actually printed on white paper, and are tentative proposals issued by the
appropriate Government Minister, they are consultation papers that, set
out government proposals, which are still taking shape and seek comments
from the public. There is no actual requirement for there to be a White or
Green Paper before a Bill is introduced into Parliament.
The importance
of consultation was seen when Prime Minister Blair, as part of a cabinet
reshuffle attempted to abolish the role of the Lord Chancellor, without
first consulting anyone. However, this could not happen without first
dealing with over 500 statutes that referred to functions of the Lord
Chancellor.
White Paper
Following the Green Paper, the Government will present to Parliament a
“White Paper” which is a statement of policy and contains definite
proposals for legislation and this is often published at the same time as
the relevant bill. Some White Papers - or Command Papers to give them
their correct title - are consultation documents on these firm
proposals. The consultation or discussion is with interested parties such
as professional bodies, voluntary organisations and pressure groups.
Private individuals may also respond to White Papers.
Drafting
After
consultation is completed highly skilled lawyers called Parliamentary
Counsel (Draftsmen) will draft a bill. The process is called drafting; the
Bill is then ready for scrutiny (careful examination) by both houses. A Cabinet Committee, made
up of senior government ministers called the Legislation Committee,
controls the legislative programme for example deciding which bills will
be dropped if they run out of Parliamentary time.
Bills
In order to
become an Act of Parliament, a Bill must be passed by both Houses of
Parliament and receive Royal Assent.
Acts of
Parliament consist of the following main elements–
-
the Short
Title – e.g. "House of Lords Act 1999";
-
the Long Title
– e.g. "An Act to restrict membership of the House of Lords by virtue of
a hereditary peerage; to make related provision about disqualifications
for voting at elections to, and for membership of, the House of Commons;
and for connected purposes." The long title describes the contents of
the Act;
-
the sections –
which contain the main provisions of the Act;
-
the Schedules
– which contain further provisions of the Act, often of a more technical
nature than those in the sections.
Bills contain
the same elements, but “sections” of Bills are called “clauses” (although,
somewhat perversely, divisions of clauses are called “subsections”).
The start and
finish of the process are formalities. The first reading of a Public Bill
is a formality; Royal Assent is a formality.
Public Bills can
be introduced into either the House of Commons or the House of Lords.
Types of Bill
Public Bills
Most Bills are
Public Bills that change the general law. The majority of Public Bills
that become Acts of Parliament are introduced by a government minister and
are known as government Bills.
Private
Members' Bills
There are four
types of these private Members’ bills. Few Private Members' Bills become
laws; many are not even debated in the Commons.
(1) Ballot
In the Commons
early in each session backbench MPs hold a ballot for the opportunity to
introduce a Bill. This takes place on one of the Fridays during the session when such Bills
have precedence over government business. No longer do MPs queue up behind the
Speaker's Chair and draw names out of a hat. The ballot itself is done on
a computer and is a purely random process. The first 20 MPs whose names
are drawn win this privilege. The ten Members placed highest in the ballot
may claim up to £200 expenses in drafting their bills. The figure was
fixed in 1971 and has never been revised. (A similar ballot exists for
choosing MPs to ask questions at Prime Minister's Question Time each
Wednesday).
(2) Ten
Minute Rule Bill
On most Tuesdays
and Wednesdays when the Commons is sitting, an MP may seek to introduce a
Bill under the 'ten minute rule'. This allows the proposer to make a brief
speech in favour and an objector to speak briefly against it. This process
is often used more as a way of making a point about the need to change the
law on a particular matter rather than a serious attempt at legislation.
The Bail (Amendment) Act 1993 was introduced in Parliament using this
procedure; the Act gives the prosecution the right to appeal against the
granting of bail.
Other Private
Members bills are: (3) Presentation bills. (4) Private Members’ bills
brought from the Lords.
Successful
Private Members Bills
Some Bills tend
to concern controversial subjects, upon which a Member or group of Members
feel strongly. If any Member shouts "Object!" when the title of a bill is
read, the second reading is adjourned, even if all the other Members
should be in favour of the bill.
The following
Bills were introduced as Private Members Bills and became Acts of
Parliament.
-
Leo Abse:
Sexual Offences Bill 1967 - legalised gay sex.
-
Sidney
Silverman: Murder (Abolition of Death Penalty) Bill 1965 -
Abolished Hanging:
-
David Steel:
Abortion Bill 1967 - legalised abortion in some
circumstances.
-
Janet
Anderson: Protection From Harassment Bill 1997 – outlawed
stalking
-
Stephen
McCabe: Human Fertilisation and Embryology (Deceased Fathers) Bill
2003 - This Act contains provisions relating to the circumstances in
which a man is treated in law as the father of a child where the child
has resulted from certain fertility treatment undertaken after the man's
death. This Act follows a High Court ruling that the Human
Fertilisation and Embryology Act 1990 was incompatible with the
European Convention on Human Rights. Diane Blood, who wanted the
right to have her late partner legally recognised as the father of her
children (born from his frozen sperm after his death) on their birth
certificates, had brought the case. This Act amends the 1990 Act to
ensure that domestic law complies with both the European Convention
on Human Rights and the Human Rights Act).
-
Michael
Foster: Wild Mammals (Hunting with Dogs) Bill was one of five
Private Members Bills on the subject of hunting; it was defeated in the
House of Lords. Eventually the government sponsored a Bill to honour its
manifesto pledge to stop foxhunting.
Private Bills
Private Bills
should not be confused with Private Members Bills. Private Bills are
available to local authorities, universities or companies. The
enable them to obtain powers for themselves in excess of, or in conflict
with, the general law. Private Bills affect the interests of
individuals, or particular localities, and do not involve matters of
public policy for example various Railway Acts have dominated the
lists of private Acts, but the Transport and Works Act 1992 has
provided an alternative method of gaining the special powers and
permissions they need.
The Bills are
proposals for legislation affecting the powers of particular bodies, such
as local authorities, or the rights of individuals. These are subject to a
special form of parliamentary procedure. There are only a few private
bills in each session.
Unlike Public
Bills, Private Bills may be carried over from one session to the next.
Personal
Private Bills
Personal private
bills are very rare nowadays, an interesting example is the George Donald Evans
and Deborah Jane Evans (Marriage Enabling) Act
1987 which allowed a marriage outside “permitted degrees”. Personal
Bills always start in the Lords.
[B
and L v UK [2005] ECtHR on the same "permitted degrees" issue led to a Remedial Order changing the Marriage Act to allow such marriages
(2006 order
here)]
Hybrid bills
Hybrid bills are
Public Bills that may affect the specific private rights of people or
bodies. They are generally introduced by the Government, but are fairly
rare. An example is the Bill that became the Channel Tunnel Act 1987,
which enabled the construction of the Channel Tunnel Rail Link to proceed.
This massive engineering undertaking required compulsory purchase
provisions to buy land and houses that were in the path of the railway. As
with Private Bills, the passage of such Bills through Parliament is
governed by special procedures, which allow those affected to put their
case.
First Reading
The First
Reading of a Bill is a formality, which involves a member reading the
title of the Bill; the First Reading takes place without debate. The First
Reading is essentially an announcement that the bill has been introduced.
Soon after the first reading copies of the bill published are available
for members to read, they are also made available on the Parliament
website.
There is a vote
as to whether or not the Bill should continue usually by members shouting
“Aye!” or “No!”. If there is a clear “Aye!”, then there is no formal vote
and the Bill proceeds to its next stage, which is the Second Reading, and
this usually takes place some weeks or months later.
Voting
If the Commons
take a vote, the Members leave the chamber and walk past one of two
“tellers”, who physically count each member who walks past.
Second
reading
The Second
Reading provides the first real occasion for debate on the general
principles of a Bill; detailed discussion takes place during the committee
stage. In the Commons, the Opposition will usually decide to vote against
a Government Bill on its second reading, or to move an amendment to the
motion that the Bill is read a second time - unless the Bill is
non-controversial. On second reading debates, a government minister (often
the senior minister) in the department responsible for the measure
normally proposes the Bill. He or she outlines the main principles of the
Bill and summarises the most important clauses. The official Opposition
spokesperson then responds and during the debate the views of other
Opposition parties and backbenchers is heard. The debate normally
concludes with a response from another government minister and he or she
deals with some of the major points raised in the debate. If the House
votes against the Bill at second reading, the Bill can progress no
further, but this virtually never happens.
Traditionally,
the Second Reading was always taken on the floor of the House, but in
recent years, some uncontroversial bills (e.g. Law Commission measures)
have been referred to a Second Reading Committee; the House then accepts
the Committee's report and passes a Second Reading motion without a formal
debate.
The effect of
Pepper v Hart
Following
Pepper v Hart [1993] HL the legislature needs to indicate
what the purpose of the legislation is, and to clarify the meaning of any
provisions that may be ambiguous.
Committee
stage House of Commons
(Standing Committees, renamed General Committees since 2006)
When a Bill has
passed its second reading in the House of Commons, it is usually referred
to a General Committee “upstairs” for detailed examination. The committee
consists of from 16 to 50 Mps, but usually only about 18. The Committee
examines the clauses of the Bill line by line and detailed amendments are
considered. The Bill’s opponents, seeking to emasculate or destroy it,
propose some amendments but many are technical improvements and
clarifications proposed by the government itself. Occasionally a Bill may
be referred to the whole House, sitting in committee, for example, Bills
of great constitutional importance or a Finance Bill. At the committee
stage, MPs study the Bill in depth, dealing with each clause in turn, line
by line. Whilst individual provisions may be altered, the main principle
of the Bill is preserved. MPs are often 'briefed' by interest groups
who wish to see amendments favouring their position.
Committee
stage House of Lords
In the House of
Lords, there are no second reading committees or standing committees.
Bills normally go through the committee stage in a Committee of the whole
House, although a few Bills are committed to committees of various kinds
off the floor of the House.
Report stage
Any amendments
made during the committee stage must be approved (or rejected) by the
whole house during the report state. The report stage is a detailed debate
where further amendments may be moved. This occurs on the Floor of the
House (which means the main chamber) further amendments are discussed and
made. In practice, it is very similar to the committee stage, but only
amendments and not the clauses of a Bill are discussed. All members may
speak and vote.
Third reading
The third
reading a Bill often follows on immediately after the report stage. It is
generally quite short – unless it is of constitutional importance - and
the bill is reviewed in its final form including amendments made at
earlier stages. Substantive amendments cannot be made at this stage to a
Bill in the Commons. Then the final version of the bill is approved and
passed by hand - bound in green ribbon - to the Lords, when the Lords
return the bill it is bound in red ribbon.
In the House of
Lords, broadly the same procedure is followed. One difference is the
committee stage, which is normally a committee of the whole House of Lords
and amendments can be made at Third Reading as well as at Committee and
Report. If the House of Lords amend the Bill, it must be sent back to the
Commons for Commons’ approval because both Houses must agree on the
wording of the Bill.
Passage
through the Lords
After passing
its third reading a Bill is sent to the House of Lords. The role of the
House of Lords is to act as a check on the Government’s power. The passage
through the second House is not a formality, and Bills can be further
amended. The Commons have certain contempt for the Lords and refer to it,
not as the House of Lords, but “another place”.
Financial
legislation is not scrutinised in detail by the Lords.
The Commons must
agree amendments made by the Lords, or a compromise agreement reached,
such that both Houses have agreed the same text, before a Bill can receive
Royal Assent.
The Lords do not
generally prevent Bills from the Commons becoming law, although they will
often amend them and return them for further consideration by the Commons.
The assent of
the Lords is not essential, subject to certain conditions, in the case of
fiscal (money Bills). Bills dealing solely with taxation or expenditure
must become law within one month of being sent to the Lords.
A Bill can
start in Lords
A Bill can start
in the Lords, but usually this procedure is reserved for non-controversial
matters, or because it is the responsibility of the Lord Chancellor, e.g.
Human Rights Act 1998 started in the Lords.
Most Government
Bills introduced and passed in the Lords pass through the Commons without
difficulty, but a Bill from the Lords, which proved unacceptable to the
Commons, would not become law.
If, after the
process of considering amendments, it proves impossible to reach agreement
on a non-financial Bill, then the Bill may be lost.
Government
(political) Bills start in the Commons. Bills of a less party-political
nature often go to the Lords first. Bills with a mainly financial purpose
are always introduced in the Commons, because a government minister in the
Commons must introduce new taxation or public spending.
Programme and
Guillotine Motions
These are
devices for ensuring speedy and timely progress of a Bill through the
various stages.
The
Parliament Acts 1911 and 1949
After many
clashes between the Lords and the Commons, matters came to a head in 1909
when the Lords rejected a Finance Bill. This led to the
Parliament Act 1911, which was only passed by the Lords after a threat
from the Commons that they would create several hundred new peers to
ensure its safe passage.
By this Act, the
Lords cannot reject a Bill, which the Speaker of the House of Commons has
certified as a “Money Bill”. The Parliament Act 1949 further
reduced the delaying power of the Lords, so the position now is that the
Lords can only delay a Bill for about two years. In some circumstances,
the Commons can present a Bill for Royal Assent after one year, even if
the Lords object.
The Parliament
Acts have only been used on the following occasions:
-
Government
of Ireland Act 1914
-
Welsh
Church Act 1914
-
Parliament Act
1949
-
War Crimes
Act 1991 (the first time the Conservatives
used the Acts) to prosecute war criminals who were not UK subjects at
the time of the offence.
-
European
parliamentary Elections Act 1999 (having party
list not individual candidates for EU elections)
-
Sexual
Offences (Amendment) Act 2000 (reducing the
age of consent for gay sex to 16)
Salisbury-Addison Conventions
If a provision
is in Government’s manifesto, the Salisbury Conventions holds that the
Lords should not oppose legislation to implement the provision. The reason
is that the peers recognise that they are unelected and are said to have
no “democratic mandate”.
An example was
the rejection by the Lords of the Government's plans to repeal Section 2A
of the Local Government Act 1986 (previously this was Section 28).
Section 28, which has now been repealed by Sec 122 Local Government Act
2003, banned local authorities from promoting the teaching in any
maintained school of the acceptability of homosexuality as a pretended
family relationship.
Lengthy
procedure
Passing an Act of Parliament is a lengthy procedure involving considerable
scrutiny and debate
Rapid procedure
However,
emergency legislation can be processed quickly (e.g. Football
(Disorder) Act 2000).
A government
with a secure majority can ensure its legislation passes, sometimes
regardless of doubts as to its effectiveness (e.g.
Dangerous Dogs Act
1991).
The most rapid passing of a Bill is probably the
Northern Ireland Act 1972, which took only seven hours and eleven
minutes to reverse the effects of a court decision that undermined the
powers of the armed forces in Northern Ireland.
More detail here.
Royal Assent
When a Bill has
been passed in identical terms in both Houses, it is presented for the
Royal Assent. This is a formality marking the Bill's official passage into
law.
The titles of
Bills to be approved are read in both Houses, and then Royal Assent is
achieved by quaint ceremony in the Lords. The Clerk of the Parliaments
turns towards the Commons and pronounces, in Norman French the formula,
"La Raine (or Le Roy) le veult" (the Queen wishes it),
pronounced "a wren le vurlt".
Royal Assent has
not been refused since Queen Anne refused it for a Bill to raise an army
to sort disorder in Scotland (Scottish Militia Bill) on 11 March 1708,
this was the last occasion on which it has proved necessary to use the
ominous formula "La Raine (or LeRoy) s’avisera." (The Queen will consider
it).
A popular
misconception is that Bills are or were signed by the Sovereign in fact
this has seldom happened, certainly not since the 16th Century.
Between 1603 and 1849, the monarch signed no Bills at all. Before 1603,
the Sovereign only sometimes signed the Acts. Royal Assent has, however
been given in person, but since Queen Victoria, faced by a greater
avalanche of legislation than any of her predecessors, was clearly
unwilling to make frequent visits to Parliament, she eventually ceased to
attend to give Royal Assents. Unless a Bill is urgent it is kept waiting
until a number of Bills are ready for Royal Assent. The last occasion the
Sovereign was present at the passing of an Act was 1854.
What are signed
are either Letters Patent which allows the Speaker of the Commons and the
Lords (the Lord Chancellor) to announce that the Queen has given her
assent, or she signs a Commission which commands the Royal Commissioners
to announce Royal Assent.
After Royal
Assent, a Bill becomes part of the law of the land. It is then known
as an Act of Parliament. Another misconception is the existence of “the
statute book”; it is true that there are statute books of antiquity, but
the expression simply means it becomes the law; there is no “statute
book”.
Commencement
of an Act
Once a Bill has
passed all the stages it becomes an Act of Parliament on the day appointed
by the Bill. However, it has become the practice to allow the minister
responsible for the Bill to decide the day a Bill becomes an Act. For
example, the Police and Criminal Evidence Act 1984 did not become
effective until 1986; this allowed police forces to train officers in its
provisions. Similarly, the Human Rights Act 1988 did not take
effect until 2000, again to allow the training of those who were going to
implement it and the appointment of new judges in the High Court who were
expected to deal with problems by way of
“Declarations of
Incompatibility”. The Easter Act 1928 has never been brought into
effect, but it remains an Act of Parliament.
