PARLIAMENTARY LAW-MAKING

Definition:

• Parliamentary law-making refers to the process through which statutes (Acts of

Parliament) are created, debated, and passed into law.
• Parliament is the supreme law-making body, meaning the laws it creates take
precedence over any other sources of law.

Supremacy of Parliament (Parliamentary Sovereignty)

• Parliament has the ultimate power to make or change laws.

• No other body, including courts, can override an Act of Parliament.
• A.V. Dicey established this principle, a fundamental part of the UK's unwritten
constitution.
• However, Parliament's power is limited by international obligations (e.g., EU law
before Brexit) and devolution (Scotland, Wales, and Northern Ireland having law-
making powers).

The Legislative Process (Stages of a Bill)

A Bill is a draft proposal for a law. It must go through several stages in both Houses of
Parliament before becoming an Act.

1. First Reading

• The Bill is introduced in the House of Commons or House of Lords.

• Only the title and main aims of the Bill are read out.
• There is no debate at this stage.
• A date is set for the Second Reading.

2. Second Reading

• This is the primary debate on the Bill's principles.

• The government minister or MP is responsible for explaining the Bill.
• MPs discuss and vote on whether the Bill should proceed.
• A simple majority is needed for the Bill to move forward.

3. Committee Stage

• A Public Bill Committee (formerly known as a Standing Committee) thoroughly

examines the Bill.
 • The Committee comprises MPs from all parties, with the government having a
majority.
• Amendments and changes can be made to the Bill.

4. Report Stage

• The Bill, with any amendments, is presented back to the House.

• Further debate on specific changes.
• Final minor adjustments can be made.

5. Third Reading

• The final version of the Bill is debated.

• No further changes can be made at this stage.
• A final vote is taken before the Bill moves to the other House.

6. House of Lords (or House of Commons if it started in the Lords)

• The exact process is repeated in the second House.

• If the Lords make amendments, the Bill is sent back to the Commons for approval.
• The Parliament Acts of 1911 and 1949 allow the Commons to override Lords'
objections in some instances.

7. Royal Assent

• The Bill is sent to the monarch for approval.

• This is now a formality; the last time a monarch refused a Bill was in 1707 (Queen
Anne).
• Once granted, the Bill becomes law and is now an Act of Parliament.

Types of Bills

1. Government Bills
o Introduced by Government Ministers.
o Form the majority of laws passed.
o Example: The Criminal Justice Act 2003.
2. Private Members' Bills
o Introduced by individual MPs or Lords, not the government.
o It is less likely to become law due to limited debating time.
o Example: Abortion Act 1967 (legalised abortion in England & Wales).
3. Private Bills
o Affects only specific groups, organisations, or local areas.
o Example: London Underground Act 1992.
 4. Hybrid Bills
o A mix of public and private bills.
o Example: HS2 Act (High-Speed Rail Project).

Influences on Parliament in Law-Making

1. Political Parties
o The ruling party's manifesto outlines proposed laws.
o Example: If a party promises to increase the minimum wage, they introduce
legislation once in power.
2. Pressure Groups
o Groups that lobby Parliament for legal changes.
o Sectional Groups (e.g., Trade Unions) represent members' interests.
o Cause Groups (e.g., Greenpeace) campaign for broader issues.
3. Public Opinion & Media
o Strong public sentiment can force government action.
o Example: The Dangerous Dogs Act 1991 was rushed due to media pressure.
4. Law Reform Bodies
o The Law Commission reviews outdated laws and suggests reforms.
o Example: Fraud Act 2006, simplifying fraud offences.
5. International Obligations
o Treaties and agreements require legal adjustments.
o Example: Human Rights Act 1998, incorporating the European Convention
on Human Rights (ECHR).
 DELEGATED LEGISLATION

Definition:

• Delegated legislation refers to laws made by bodies other than Parliament but with
Parliament's authority through an Enabling Act (also called a Parent Act).

Types of Delegated Legislation

1. Statutory Instruments (SIs)

o Laws made by government ministers under powers granted by Parliament.
o Example: Road Traffic Act 1988 allows the Transport Minister to update
traffic laws.
2. By-laws
o Made by local authorities and public bodies to regulate local matters.
o Example: Local parking restrictions set by city councils.
3. Orders in Council
o Made by the Privy Council (advisors to the monarch) in emergencies.
o Used for national security or urgent issues.
o Example: Terrorism Prevention Orders.

Advantages of Delegated Legislation

✔ Saves Parliamentary Time – Parliament cannot handle all details.

✔ Technical Expertise – Specialists create complex regulations (e.g., environmental laws).
✔ Quick Implementation – Can be passed faster than full Acts of Parliament.
✔ Flexibility – Can be updated without a complete parliamentary process.
✔ Localisation – Allows local authorities to make laws suited to their communities.

Disadvantages of Delegated Legislation

✘ Undemocratic – Not made by elected MPs.

✘ Overuse by Government – Ministers can pass laws with little scrutiny.
✘ Lack of Public Awareness – It is difficult to track many minor laws.
✘ Risk of Abuse – Lack of proper checks may lead to excessive use.

Controls over Delegated Legislation

1. Parliamentary Controls
o Affirmative Resolution – Some SIs require Parliamentary approval before
becoming law.
o Negative Resolution – SIs become law automatically unless Parliament
objects within 40 days.
o Scrutiny Committee – Reviews SIs to check for errors or unfair use.
2. Judicial Controls
o Ultra Vires Doctrine – Courts can declare delegated legislation invalid if it
goes beyond legal authority.
o Example: R v Home Secretary, ex parte Fire Brigades Union (1995) – The
Home Secretary was found to have exceeded his legal powers.
Substantive law: legal rules determining rights and obligations or how a society must behave,
such as criminal, contract, tort, or human rights law.

THE ROLE OF LEGAL PERSONNEL

The role of barristers
Barristers at the Bar are self-employed advocates who practise out of
chambers, sharing administrative staff. Their work can include:

✚ When required, being briefed by a solicitor on behalf of a client or approached directly in

certain civil matters.

✚ The rights of the audience in all courts are to represent clients, particularly the Crown Court
or higher courts.

✚ acting as a specialist legal adviser, giving clients independent and objective advice and
opinion on the merits of a case, called 'counsel's opinion.'

✚ if appointed as Queen's Council (QC), handling very serious or complex cases.

✚ Drafting legal documents for Court. Some barristers work for the CPS or large businesses
with legal departments.
The role of solicitors
Solicitors' roles largely depend on what type of firm they are employed by.

Their work can include:

✚ acting as a first contact with clients needing legal advice

✚ acting as advocates for clients, generally in the lower courts such as the Magistrates' Court
or County Court

✚ giving legal advice to clients on a range of specialist areas, for example, conveyancing or
family matters

✚ organising a barrister for their client if the case goes to the Crown Court or a higher Court
(some solicitors have rights of audience in all the courts)

✚ writing letters on their client's behalf on legal matters

✚ drafting contracts or other legal documents such as wills

✚ Generally working in private practice, they can also work for large businesses with a legal
department or local authorities.

SEPARATION OF POWERS
Originating from the writings of the French philosopher Baron de
Montesquieu, the doctrine of separation of powers refers to a tripartite model

of governance in a democratic society. In Montesquieu's model, there must be

a separation of the three primary sources of power:

✚ the executive – the government

✚ the legislature – the Parliament or equivalent

✚ The judiciary comprises judges in courts and those holding judicial office in tribunals.

These powers must not be held by one specific person or body. This ensures that no single
person or body of persons can keep all the power in a society. In having separate bodies, each
can work independently and be challenged in their operation.
There was recently a critical case example of judicial independence from the Executive: R
(Miller) v The Prime Minister (2019).
This was a joint appeal to the Supreme Court regarding Prime Minister Boris Johnson's
decision to prorogue the British Parliament. The Prime Minister had advised the Queen to
prorogue Parliament allegedly for his own and his government's benefit to prevent an essential
vote concerning the

UK's withdrawal from the EU from happening in Parliament. The case was brought through
judicial review, and although the High Court initially rejected it as 'non-justiciable', the
Supreme Court rejected this decision and stated that it was justiciable and that the prorogation
of Parliament was both unlawful and void.

DELEGATED LEGISLATION
Parliament is incredibly busy and does not always have the time or expertise to deal with every
required new law. Therefore, it delegates some of its law-making powers to secondary bodies,
allowing them to make new laws on Parliament's behalf. These new laws are sometimes known
as secondary legislation.

An Act of Parliament is passed to delegate its power to another body, giving that body the
power to carry out tasks. These Acts are known as parent or enabling Acts and are considered
primary legislation.
People must obey these new laws: they have the same effect as if Parliament had written them.

JUDICIAL REVIEW
These controls require a party affected by the delegated legislation to apply to the Queen's
Bench Division of the High Court for a judicial review. This review could find the delegated
legislation ultra vires (UV) void, i.e. without legal effect.

There are two types of UV

STATUTORY INTERPRETATION
This chapter examines how judges interpret the language used in Acts of Parliament. This is
necessary because sometimes:

✚ an Act contains ambiguous words – see Fisher v Bell (1961)

✚ words used are too broad – see R (Miranda) v Home Secretary (2016)

✚ the progress of technology means the words may need to be considered in light of new
advances – see Royal College of Nursing v DHSS (1981)

✚ The draft had an error; see R v Burstow (1997).

RULES OF STATUTORY INTERPRETATION
To interpret words, over time, judges have come up with regulations to guide them:

✚ literal rule

✚ golden rule

✚ mischief rule

✚ purposive approach.

No rule is obligatory, and judges can use whatever they prefer. Often, bodies such as the
Judicial Studies Board issue guidelines as to the preferred approach.
Table 3.3.1 explains the features of each rule and how it operates with examples.

Literal rule: where judges use the exact meaning of words when interpreting the statute, no
matter how absurd the outcome.
Golden rule: where judges decide that the literal rule produces absurd results when interpreting
the statute.

Mischief rule: a rule of statutory interpretation used to prevent the mischief an Act is aimed
at.
Purposive approach: where judges look to see what the purpose of the law is when
interpreting statutes.

Intrinsic and extrinsic aids to interpretation

Intrinsic aids
Intrinsic aids are 'inside the Act' and include:

✚ preamble/introductory text/long title, which may give some clues that will help with the
mischief rule or purposive approach

✚ explanatory notes are included in the margin to show what a section is about

✚ a glossary of key terms in some Acts.

Extrinsic aids
Extrinsic aids are 'outside the Act' and include:

✚ The historical context of the Act; for example, the Offences Against the Person Act 1861
uses the word 'grievous' – this word is no longer in common usage, but it was when the law
was drafted.

✚ Dictionaries and textbooks: in R v Jewell (2014), Lady Justice Rafferty referred to Smith
and Hogan's Criminal Law textbook.

✚ Previous commercial practice.

✚ Treaties with international law – to give continuity to the meaning of words.

✚ Hansard, after Lord Denning debates with Lord Diplock, culminating with the decision in
Pepper v Hart (1993) regarding tax on perks; see also Tuppen v Microsoft (2000).

✚ The Interpretation Act 1978 gives some statutory guidance – 'he' will always include 'she',
and singular will always include plural.
JUDICIAL PRECEDENT
DOCTRINE OF PRECEDENT
English law has developed from custom and the decisions of judges in cases. This system of
law is known as common law. The decisions of judges in cases are known as precedents.
Therefore, precedent is a vital law source, where judges' past decisions create laws for future
judges. The doctrine of precedent means that courts must follow the courts' decisions above.
This is known as stare decisis (see below). So, where the point of law in a previous and current
case is the same, the Court hearing the current case should follow the decision in the last case.
Treating similar cases in the same way promotes the idea of fairness and provides certainty.

Stare decisis
Stare decisis is the fundamental principle of precedent and means that a decision in an early
case will guide all future cases. The decision made by the Court is known as the 'judgment'.
This contains the decision and an explanation of how it was reached.

Ratio decidendi
Ratio decidendi is the part of the judgment which forms the precedent for future cases. All of
the points of law you learn throughout the substantive sections that come from cases are the
ratio decidendi. For example, words that can prevent an action from being an assault can be
found in the ratio decidendi of Tuberville v Savage (1669).

Obiter dicta
Obiter dicta comprises the rest of the judgment apart from the ratio decidendi. Judges do not
have to follow in future cases, but it can give helpful guidance. A key case is Hill v Baxter
(1958), where the example of being attacked by a swarm of bees gives valuable advice for the
need for a voluntary act and the defence of automatism.

HIERARCHY OF THE COURTS

Stare decisis means let the 'decision stand' by the Court, how decisions are binding on lower
courts and which courts bind others.

Practice Statement 1966

When the Supreme Court replaced the House of Lords in 2009, the Constitutional Reform Act
2005 transferred the House of Lords' powers to the Supreme Court. In Austin v London
Borough of Southwark (2010), the Supreme Court confirmed that the power to use the Practice
Statement had been transferred to it. Practice Directions 3 and 4 of the Supreme Court states:

'The Practice Statement is "part of the established jurisprudence relating to the

conduct of appeals" and "has as much effect in [the Supreme] Court as it did before
the Appellate Committee in the House of Lords."'
Therefore, the Supreme Court does not have to follow its own previous decisions but must
explain why if it chooses not to.

Types of precedent
Binding precedent
There must be a hierarchical court structure for this system to work. This means the courts are
tiered or ranked according to their seniority, and the higher ones bind the lower ones. Therefore,
a binding precedent is a decision in an earlier case and a higher court decision that must be
followed in later cases.

Persuasive precedent
There is also persuasive precedent, a decision that does not have to be followed by later cases,
but the judge may decide to follow. Persuasive precedents may:

✚ Come from courts that do not bind, such as the Judicial Committee of the Privy Council or
✚ come from courts lower down the hierarchy or
✚ be a part of the decision known as 'obiter dicta' (see earlier in this chapter).

Original precedent
An original precedent comes when the point of law in a case has never been considered. There
are no past cases upon which the judge can base a decision, so the standard doctrine of judicial
precedent cannot apply as there is no precedent to follow:

✚ Donoghue v Stevenson (1932) is an example of an original precedent.

✚ Original precedent is primarily likely to arise with the development of new technologies,
meaning new situations come before the courts.
✚ The concept of original precedent raises an issue about whether judges
create a law or declare it.

Operation of judicial precedent

Judges have several options when faced with a precedent set in an earlier case. The precedent
can be:
✚ overruled, or
✚ reversed, or
✚ distinguished.