Transcript Slide 1

English Legal System
Institutions of the English Legal
System
The law-making process
Parliamentary Procedure
Aims
•
The aims of this lecture are:
1.
To revise the three branches of government and their
functions;
To look at the composition of each branch and how they
relate to one another;
To consider where laws start life and the consultation
procedure which precedes the Parliamentary stage of lawmaking;
To consider the quality of Parliamentary drafting;
To look in detail at the legislature and how laws are
passed through Parliament;
To examine Private Members’ Bills and why they are
relatively unsuccessful.
2.
3.
4.
5.
6.
Outcomes
•
By the end of this lecture you should be able to:
1.
Describe the different branches of government and
their relationship to one another;
Describe both the Whitehall stage of legislation and
the parliamentary procedure for passing bills into
law;
Critically assess the current method of drafting bills
and how effective this is in producing clear and
accessible legislation;
Critically assess the procedure for passing Private
Members’ Bills into law.
2.
3.
4.
The Branches of Government
Since the 17th or 18th century government has
traditionally been divided into 3 branches. These
are:
1.
2.
3.
The Legislature
The Executive
The Judiciary
The French legal theorist Montesquieu in the 18th
century devised the theory that these three branches
should have separate functions and personnel, what
is called the ‘separation of powers’
The Legislature
• A legislature, or legislator, is a person or body who makes
the law
• In England and Wales the supreme legislature, as for
Scotland and Northern Ireland is the Westminster
Parliament
• This sometimes expressed as the Queen-in-Parliament, as
for a valid Act of Parliament the consent of the Lords, the
Commons and the Queen is required
• One of the fundamental doctrines of the English Legal
System is that Parliament is supreme or sovereign
• The legal theorist Dicey expressed this view in the 19th
century
The Executive
• The executive is sometimes referred to as the
government, but is in fact a much wider term
• It includes the Queen, or rather the Crown in the
powers that are executed by the Prime Minister or
other Ministers of the Crown
• It also includes the civil service, the police, local
government and any services provided by the state
such as the National Health Service
• Its role is to execute, and in the government’s case,
propose the law
The Judiciary
• The Judiciary are the branch of government that most
people associate with the legal system, although it is
important to realise that the executive is also a major
maker of laws through its dominance of the legislature
• It is the Judiciary’s role to interpret and apply the law
• The Judges should be independent of the executive, this
has not always been the case as they were once subject to
the King’s displeasure and dismissal from office
• Their independence is essential to preserving the rule of
law and ensuring that individual litigants obtain justice
The Law-Making Process – Part 1
Parliamentary Law Making
• As stressed above, Parliament is not the only body who passes
laws, it is, however, the most important as its laws take
precedence over all others apart from EC law
Where do the laws start life?
• Laws start life as an idea – possibly that of a politician, or more
likely of a think-tank, or policy adviser
• Laws also are made to remedy defects and because of a
pressing need in the country – some of these may be populist
in nature
• They may be in the party manifesto, and if the party is elected
will become a part of its policy and may begin the long journey
to getting onto the statute book
• It is important to remember that law-making is vitally a political
process as much as legal one
What proportion of laws start
life in a political manifesto?
• You would think given the nature of the political system, the
election of parties based on their manifesto pledges would
mean that this is major source of legislation;
• However, this is not actually the case, the proportion
emanating from this source is negligible:
8 % of bills in the period 1970-1974
13 % of bills in the period 1974-9
Richard Rose, Do parties make a difference? (1984) –
reference in Professor Zander’s book on the Law Making
Process
The Whitehall Stage
After the government has endorsed a proposed law as part of
its policy, it must then get the feedback of groups who will
be affected by the law or have an interest in it
• White papers
• Green papers
After these papers have been published and approval, or not,
given, then the Office of Parliamentary Counsel to the
Treasury must draft the Bill
The staff of this office may be either solicitors or barristers
What is a White Paper?
• Harold Wilson gave the following definition:
‘A White Paper is essentially a statement of
government policy in such terms that
withdrawal or major amendment, following
consultation or public debate tends to be
regarded as a humiliating defeat’
What is a Green Paper?
• Introduced by the Labour Government in 1967 as an
alternative to a White Paper
• See Cedric Sandford’s article, ‘Open Government:
The Use of Green Papers’, British Tax Review , 1980
‘A Green Paper represents the best that the
government can propose on the given issue , but,
remaining uncommitted, it is able without loss of face
to leave its final decision open until it has been able
to consider the public reaction to it’
Quality of Government
Papers
•
Some commentators have criticised the
papers that the government publishes in
some areas for a number of reasons.
These may be summarised as:
1. Government assertions of policy;
2. Not fully reasoned in their decisions;
3. Failure to take account of the negative
steps in adopting a policy as well as the
positive.
The Drafting Stage – criticisms
of parliamentary drafting
• The Preparation of Legislation, 1975,
Cmnd paper 6053 surveyed the history
of criticism of parliamentary drafting
from the Early Modern Period
• The Renton Committee divided the
problems with drafting into four
headings
Renton Committee Headings
• Language – obscure and complex, often
elusive and effect uncertain
• Over-elaboration – desire for certainty leading
to involved provisions
• Structure – often illogical and unhelpful to the
reader
• Arrangement and amendment
The Westminster Stage
Once the Bill has been drafted it must be presented to
both Houses of Parliament, the Lords and the
Commons, for them to debate and propose
amendments
The procedure for both Houses is largely the same, so
can be dealt with together
Whether a bill starts life in one House or the other
depends on the pressure of Parliamentary business,
and the choice of the government. Money bills,
however, must start life in the Commons
Westminster – stages of the
bill
The First Reading
• This is largely a formality. The name of the bill is
read out by the Clerk of the House. Copies of the
bill are printed and distributed for reading.
The Second Reading
• This is rather more important, a debate on the
general principles of the bill and amendments
may be proposed. If the bill is passed at this
stage, then it is likely that it will, eventually, reach
the statute book
Stages of a bill (cont)
The Committee stage
• This is where detailed scrutiny of the bill, clause by
clause takes place by a Standing Committee of the
House (in the Commons that is, the Lords differs
slightly at this stage in that this is done by a
Committee of the whole House)
The Report Stage
• At this stage the Committee Chairman reports to the
House and proposes any amendments to the bill
which are then debated
The Third Reading
• This stage is mainly a formality
After the Third Reading
• After the third reading in one House, the bill then has to
go to the other House to be approved by them or for
amendments to be made. Sometimes amendments are
made for political reasons to try and scupper the bill
A recent topical example is the Civil Partnership Bill which
has been laid before the Lords and to which the Lords
recommended an amendment to include family members
who in a close relationship. Some commentators have
considered this to be an attempt to force the government
to withdraw the bill
The Civil Partnership was, however, eventually passed by
Parliament
Royal Assent
• The bill is then presented for the Royal Assent. This
is still given in Norman French, but not in person by
the monarch
• Royal Assent has not been refused to a bill since
1707 when Queen Anne withheld her consent to the
Scottish Militia Bill
• Whether Royal Assent can be refused is a moot point
• The bill still needs to be brought into force, however,
and most Acts of Parliament are not brought into force
at the date of the Royal Assent
A Parliamentary Session
• A Parliamentary Session runs from one State Opening of
Parliament to the other
• The State Opening of Parliament is when Queen delivers
the Queen’s Speech
• It is approximately a year long
• Traditionally all bills had to be passed within the
Parliamentary session, otherwise they would lapse
• The Labour Government has introduced a procedure
whereby bills will be carried over from one session of
Parliament to another
Constraints on Parliamentary
Scrutiny of Bills
•
Arguably Parliament does not scrutinise bills
adequately. Reasons for this can be given as
follows:
1. Pressure on Parliamentary time from the
debates of major public importance to the role of
MPs in promoting constituency interests;
2. The party politics of the House of Commons;
3. The lack of qualifications of many MPs.
Measures to improve
Parliamentary scrutiny
• Guillotine motions – introduced at the end of the
nineteenth century – limits the debating time which is
allotted to the Bill
• Programme motions – the Labour Government
introduced these – they allot the Bill specific time to
pass through the session of Parliament
• Special Standing Committees – these hear evidence
from specialists on a topic
• They have only been used on a handful of occasions –
the first was with the Criminal Attempts Act 1981
Private Members’ Bills
•
The government introduces the majority of
bills into Parliament
•
There are four types of private members
bills:
1)
2)
3)
4)
Ballot Bills;
Ten minute rule bills;
Peers’ Bills;
Presentation Bills.
Ballot Bills
• Ballot of backbench MPs is taken at the start of
the session
• 20 names are drawn and if high up on the ballot
there is a good chance that the bill proposed may
become law
• The drafting of these bills is a matter for the
private member, although funds have become
available in the House of Commons since 1971
(for further information see Zander)
Ten-minute rule bills
• These are introduced under Standing Order No 13
• Any MP may introduce one and gets to speak for 10
minutes in support of the bill
• If there is no opposition, then the bill will get a first
reading, but it is unlikely that it will proceed to the
second
• A vote is taken on the first reading if the bill is opposed
• Not regarded as serious attempt to make legislation
Presentation Bills
• After the ballot any MP may propose a bill,
‘present’, the bill to the House
• In order to do so he or she will have to inform the
clerk of the House
• This procedure is governed by Standing Rule 39
• Theses types of bills are particularly unsuccessful
as they can be destroyed by the opposition of one
member of the House
Success of Private Members
Bills
•
Not many private members’ bills are successful
•
Reasons for the relative lack of success of private
members’ bills may be cited as follows:
1.
2.
Lack of debating time;
The subject matter of the bill which may be either
controversial or obscure;
Adoption of the subject matter of the bill by the
government.
3.
The Abortion Act 1967 and the Sexual Offences Act 1967
were both introduced using this procedure
Lack of Debating
Time/adoption of a bill
• The government controls the
Parliamentary timetable and so is able
to give precedence to its bills
• The government may adopt a Private
Members’ Bill – for example the
Foxhunting Bill
Controversial Subject Matter
• We have already seen that Private Members’ Bills
can be used to give prominence to a certain issue
• Examples of controversial bills in the 1960s were
the Sexual Offences Act 1967 and the Abortion Act
1967
• In more recent times other controversial areas
have included the European Union (Implications of
Withdrawal) Bills – introduced in 1999/2000,
2000/01 & 2001/02
Success of ballot bills
•
By far the most successful are ballot bills, why?
1. They have the whole parliamentary session in
which to pass the process outlined above;
2. They are selected at the start of the process;
3. Arguably the government will allow a private
members’ bill to proceed, even though it does
not publicly wish to support it.
Private Bills
• The procedure outlined in this lecture has
been for the passage of public general acts
through Parliament – these apply to everyone
in the country, they affect the general public in
other words
• There are also private acts of Parliament
which govern an individual or legal person
• These are subject to a different procedure
Procedure for a Private Bill
• This depends on whether the bill is opposed or unopposed
and was considered in an article in Public Law, a journal, in
1981
• The key difference lies at the Committee stage of the bill
where it is considered in detail
• The proponents have to prove that the bill is ‘expedient’
• For opposed bills there is hearing before a Committee
where the proponents/opponents of the bill will be
represented by counsel
• In that goes to a third reading, although there may be a
report stage in the Commons
Summary of lecture
•
You should now be able to:
1.
Describe how laws are formulated at the policy
level;
Understand the difference between Green and
White Papers;
Describe the stages through which a Bill must pass
in order to become an Act of Parliament;
Identify what is meant by a Private Member’s Bill
and why these bills are not always successful;
Identify reasons why Ballot Bills are usually more
successful than other types of Private Members’
Bills.
2.
3.
4.
5.
Further reading for this
lecture
• Zander, M., The Law Making Process
(London: Butterworths, 1999, 5th
edition), chapters 1 and 2
• Slapper, G. and Kelly, D., The English
Legal System (London: Cavendish
Press, 2004, 7th edition), chapter 2.2
‘Legislation’, pp.63-75