Introduction to how the UK is governed and how the
Parliament is the law-making body (legislature) and consists of the house of commons, the house of lords and the monarch.
- House of Commons is made up of members of Parliament (MPs) that are elected by the local people to represent their individual constituencies.
- The political party that has the most seats (majority) forms the government.
- House of Lords consists of hereditary peers (limited to 92 members), life peers (appointed by the monarch on advice from government), law lords and senior bishops.
- Government is the executive - runs the government through departments.
What are the Acts of Parliament?
UK legislation comprises Acts of Parliament, also known as Statutes. Are the result of a process involving the House of commons, House of lords and the monarch. Statutes are referred to as a primary legislation. Most legislation is drawn up by the government.
Types of Bill
All acts of parliament begin life as bills. The majority are public bills and these are subdivided into government bills and private members' bills.
- Government bills are introduced and piloted through the parliamentary process by a Government minister.
- Some bills can be controversial and reflect the views of the political party in power. Example: Thatchers privatisation of public utilities.
- Some bills are just concerned with the smooth running of the country. Example: Access to justice act 1999.
- The bill is drawn up by the Parliamentary Counsel (a group of specialised lawyers experienced in drafting bills.
Green and White papers
Before a bill is drawn up, the government department involved in the proposed changes to the law may issue a consultative document known as a Green Paper or a White Paper.
- Green Papers were brought in by the labour government and usually announce tentative proposals for discussion.
- White Papers announce firm government policy for implementation.
- After a consultation of a green paper the government usually publishes firmer recommendations in the form of a white paper.
- n.b: not all have to begin as a green paper.
How Bills become acts
A bill cannot become an Act of Parliament until it has been passed by both Houses of Parliament. The introduction of the draft bill into parliament starts the formal process. The procedure consists of a number of stages.
- The procedure could start in either of the houses. For example the Human Rights Act 1998 started in the House of Lords.
- All finance bills must commence in the House of Commons, because as the elected House, it has to control the raising and spending of public finance.
The first reading is a formal procedure and the title of the bill is read out to the house; more like a public announcement that the bill has been introduced.
- usually no discussion takes place.
- there is a vote in which the house decides whether it wants the bill to be given a second reading.
- many private members bills do not get beyond this stage.
The second reading of a bill is introduced by the government minister in the department responsible for the bill.
- this is a crucial stage which a debate is held on the main principles of the bill
- minister outlines the bills overall purpose and highlights the parts considered most important
- at the end of the debate, the house votes whether the bill should be given its second reading, and this proceed to the next stage. If the house votes against the bill at the second reading, the bill can progress no further.
- some uncontroversial bill can be referred to a second reading committee, instead of undergoing a full second reading debate.
- there is a convention in the house of lords, known as the salisbury convention, that at a second reading the lords should not oppose the government bills that were included in the election manifesto.
- Involves a detailed examination of each clause of the bill and is undertaken by a standing committee.
- amendments may be proposed to the various clauses. (either technical proposals or politically motivated)
- in the commons committee, the MPs are in the same proportions as the party strengths in the commons as a whole to ensure that the government as the same influence as it would have in the house.
The committee reports back to the house on any amendments that have been made. This is the opportunity given to the whole house to discuss and vote on the amendments suggested by the committee.
The bill is presented again to the House and a final vote is taken.
- It is unlikely that a bill will fail at this stage.
- A debate is only held if at least six MPs request it.
- Major amendments cannot be made and the third reading is often brief.
These stages (first reading to the third reading) are then repeated in the other House. Example: Commons to the Lords or vice versa.
- If the house it is passed to secondly makes amendments to a bill then it is referred back to the other house for them to consider the amendments. There would be the opportunity of this to "ping-pong" back and forth so the second house could delay.
Only goes to this stage if it has been successful in both houses and passed through all stages in each.
- The formal consent of the monarch is required legislation to become law.
- Some acts come into action when the Royal Assent is given but they can also start on a specific date and this may be stated in the Act.
- Sometimes different parts of the Act may come into effect at different times which can cause some uncertainty.
Example: the Easter Act 1928, which provides for Easter to be given a fixed date each year has never come into force because the various churches involved have not been able to agree on a date.
The Informal Process
As each bill progresses through parliament, there is also an informal process: opportunity is provided for interested groups or individuals outside Parliament to make their views known.b
Pressure groups, professional associates, trade unions and other large organisations prepare briefing papers to give to MPs and peers on bills they are interested in.
Example: During the passage of the hunting bill through parliament, the countryside alliance organised demonstrations outside parliament and a mass lobbying of MPs and peers.
Role of the House of Commons
As it is an elected body it has the most important role in the law-making process.
- All important legislation begins in the house of commons and all finance bills must start here.
- By using the parliament acts, the commons can defeat any attempt by the lords to oppose a measure that the commons has passed. However in practice this power is rarely used and the commons has to compromise in order to get legislation through.
- Lords can delay a bill for a year and it has considerably more influence over the commons during the last year of a parliaments life.
- in practice, any bill that the commons passes will either be a government bill or a private members bill that the government supports.
- therefore the house of commons is not a truly independent body.
Role of the House of Lords
Bills can start here though most begin in the Commons. Usually, it is legislation that is not politically controversial or that has a legal subject matter that starts in the Lords - for example the Access to Justice Act 1999.
- Occasionally more controversial legislation can start in the Lords. e.g. the Human Rights Act 1998.
- The house of lords is primarily a revising and debating chamber and allows further scrutiny of bills already passed through the Commons.
- Unelected house of lords used to be able to prevent legislation put forward by the commons but the power is now restricted by the parliament acts 1911 and 1949.
- A bill rejected by the lords, is re-introduced into the commons in the next parliamentary session and passes all stages again until it becomes law.
- Lords are not allowed to delay any finance bills.
- The power to force the Lords to pass a bill is rarely used. e.g. War Crimes Act 1991 and the Hunting Act 2004.
Role of the Crown
The Crown plays a purely formal role and any attempt by a monarch to thwart the will of the commons and lords would not be tolerated.
- Since Queen Anne refused to pass the Scotch Militia Bill 1707, no monarch has refused to decline a bill.
- The royal assent is needed for a bill to become an act of parliament.
- The queens speech at the state opening of parliament sets out the government legislative programme for the parliamentary session.
House of Lords Reform
Before 1958, membership of the House of Lords consisted of Hereditary Peers, Law Lords and Senior Bishops.
- in 1958, the life peerages act was passed. this meant that future peers could not be given peerages that lasted only for their lifetime.
- House of Lords Act 1999 allows only 92 hereditary peers to remain.
Advantages of the UK - law making system
- house of commons is an elected body and there must be an election every five years. reflects what the electorate want.
- it can be argued that parliament does take note of public opinion. while a bill is going through parliament, there is opportunity for the public to lobby to express their views. e.g. smoking ban 2006, took note on public opinion.
- house of lords is not elected and is made up of a wide variety of people from various backgrounds with specialised expertise. furthermore it is less worried about staying in favour with the public.
- the legislative process is thorough, with detailed committee examination and scrutiny of bills in both houses as well as general debates.
Disadvantages of the UK law-making system
- Some bills are passed to quickly, usually in response to a real or imagined emergency lacking scrutiny. for example the dangerous dogs act 1991 was described by a judge as being ill-thought out. it can be amended but only through the amending act which must go through all the law making process.
- it can be argued that the house of lords is unrepresentative of the society and ordinary people as they are unelected.
- one problem with the process is that the bill can be amended several times, therefore a number of bills have been substantially amended and their final meaning may become unclear and later interpreted by the courts.
- there is not enough time to pass all the legislation that is needed and, in particular reform bills are often left out of the governments legislative programme. it usually takes a bill several months to pass through all the stages and the house of commons sits for an average of 163 days a year.
Doctrine of Parliamentary Supremacy
Parliamentary Supremacy (sovereignty) is a fundamental part of the UK constitution. It means that as a democratically elected body, Parliament is the supreme law making body in the country.
In the words of A.V.Dicey (19th century jurist):
- override any judicial precedent, delegated legislation or previous act of parliament covering that area of law.
- acts of parliament passed under the proper procedures cannot be challenged and must be applied to the courts.
- parliament also has the power to make any law it wishes and rescind any law it has passed.
- no parliament can bind its successors.
Limitations on parliamentary supremacy
Public opinion - all politicians are sensitive to public opinion and plans for law making are likely to reflect this.
entrenched laws - these deal with fundamental constitutional issues which would be difficult for any future parliament to change, for example legislation extending voting rights to women and lowering the voting age.
membership of the EU - under the treaty of Rome 1957, European Community Law, enacted by the powers set out in treaties, takes priority over conflicting laws in member states.
Human Rights Act 1998 - came into force in October 2000 and incorporates the European Convention on Human rights under English Law. under the act the convention does not have superiority over Rnglish law and parliament can still make laws that conflict with it.