Sources of Law: Statutes and Delegated Legislation ENGLISH LEGAL SYSTEM Sources of Law: Statutes and Delegated Legislation

Making an Act of Parliament Bill: before a proposal becomes law, as it goes through the stages in Parliament, it is called a Bill ***Clause: the individual parts of a Bill are know as clauses. Act: Once a Bill is passed and becomes law it is know as an Act. ***Section: the individual parts of an Act are known as sections.

Types of Bill Public Bills Private Members’ Bills Private Bills

Pre-Parliament Stage The Green Paper: sets out the Government's proposals for changes to the law and invites people and interested groups to make comments on the proposals.   The White Paper: sets out firm proposals for new law.  A draft Bill is sometimes now attached to the White Paper.

The Passage of a Bill Through Parliament First Reading: formal stage where the title of the proposed Bill is read out.  Second Reading: the main debate on the principles of the Bill takes place. Committee Stage: the Bill is considered in detail (clause by clause). Report Stage: all amendments made at the committee stage are reported to the whole House   Third Reading: final vote on the Bill. 

The Other House of Parliament If the Bill was started in the House of Commons then the above stages are repeated in the House of Lords, and vice versa. Royal Assent

The Parliament Acts 1911 & 1949 The Government can reintroduce a Bill which has been voted against by the House of Lords and if passed again by the House of Commons it will become law.  For the majority of Bills the Government must wait a year before it reintroduces the Bill, however, for “money Bills” the delay is one month. The House of Commons passed the Hunting Act 2004 using the powers under the Parliament Acts 1911 & 1949. *** If a Bill is started in the House of Lords and the House of Commons votes against it, it cannot be reintroduced.

Parliamentary Sovereignty The Parliament is the highest source of English law and no challenge can be made to an Act of Parliament in the courts.  Parliament can pass any law it wishes to.   ***Exceptions to this rule: Where an Act is in conflict with EU Law, EU Law will prevail (Take priority). See: Factortame Case No. 1 (1988) & No. 2 (1991).

The Human Rights Act 1998 Since the Human Rights Act 1998 came into force in October 2000 there must be a written statement (see: section 19 of the Act) that the Bill is compatible with the European Convention on Human Rights.  When an Act of Parliament is found to be incompatible with the Convention the court can make a declaration of incompatibility. The Act will not be invalid. The declaration just draws the Governemnt's attention to the fact that it is incompatible with the European Convention on Human Rights.  *** In 2004 the House of Lords held that the Anti-Terrorism Crime and Security Act 2001 was incompatible with the European Covention on Human Rights.  The Government then amended the law by passing the Prevention of Terrorism Act 2005.

Delegated Legislation This is law made by a body other than Parliament (Government departments, local authorities, or public or nationalised bodies) Parliament gives others the power to pass delegated legislation in a parent or enabling Act.

Why is Delegated Legislation Needed? Insufficient Parliamentary time Technicality of the subject matter Need for local knowledge, i.e. bylaws Flexibility (easier to amend than an Act of Parliament)

Types of Delegated Legislation Statutory Instruments - Made by Government departments, usually to add the details to a piece of primary legislation Bylaws - Made by local authorities (Town Councils) to deal with matters which affect their local area. Orders in Council - Made by Government in times of emergency. They are drafted by the relevant Government department, approved by the Privy Council and signed by the Queen.

Control of Delegated Legislation

Control by Parliament Revocation The Affirmative Resolution procedure requires some statutory instruments to be voted on by Parliament. The Negative Resolution procedure means that most statutory instruments become law unless a debate is requested by a Member of Parliament (MP). The Scrutiny Committee considers whether the provisions of a Bill give inappropriate law making powers to other bodies. The Joint Select Committee on Statutory Instruments reviews all statutory instruments and brings to the attention of Parliament any points that need to be considered. Government Ministers are accountable and can be questioned by MPs

Control by the Courts Delegated Legislation can be challenged in the courts under the doctrine of ultra vires.  (Beyond the power). ***Delegated Legislation may be substantive ultra vires R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2002) or procedural ultra vires Aylesbury Mushrooms (1972). ***If the court decides that a piece of delegated legislation is ultra vires the legislation can be declared void.  Unreasonableness

Criticism of Delegated Legislation Lack of democratic involvement - delegated legislation is often made by unelected people i.e. civil servants. Lack of publicity - The public are often unaware of new law which is introduced by statutory instruments. Over use -  Too much law is made through the use of delegated powers. Lack of parliamentary control over delegated legislation.