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;2. To look at the composition of each branch and how they relate

to one another;3. To consider where laws start life and the consultation procedure

which precedes the Parliamentary stage of law-making;4. To consider the quality of Parliamentary drafting;5. To look in detail at the legislature and how laws are passed

through Parliament;6. To examine Private Members’ Bills and why they are relatively

unsuccessful.

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;

2. Describe both the Whitehall stage of legislation and the parliamentary procedure for passing bills into law;

3. Critically assess the current method of drafting bills and how effective this is in producing clear and accessible legislation;

4. Critically assess the procedure for passing Private Members’ Bills into law.

The Branches of Government

Since the 17th or 18th century government has traditionally been divided into 3 branches. These are:

1. The Legislature2. The Executive3. 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 1970-197413 % 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 StageAfter 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) Ballot Bills;2) Ten minute rule bills;3) Peers’ Bills;4) 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. Lack of debating time;2. The subject matter of the bill which may be either

controversial or obscure;3. Adoption of the subject matter of the bill by the government.

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;2. Understand the difference between Green and White

Papers;3. Describe the stages through which a Bill must pass in

order to become an Act of Parliament;4. Identify what is meant by a Private Member’s Bill and

why these bills are not always successful;5. Identify reasons why Ballot Bills are usually more

successful than other types of Private Members’ Bills.

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