Topic 8 - Legislation

11/10/22, 12:53 AM Topic 8 – Legislation
Topic 8 – Legislation
Site: Undergraduate Laws VLE Printed by: PREM KAUR BAHAL SINGH
Module: Public law 2022-23 Date: Wednesday, 9 November 2022, 4:53 PM
Book: Topic 8 – Legislation
https://laws.elearning.london.ac.uk/mod/book/tool/print/index.php?id=20867 1/23
Table of contents
Learning outcomes
Topic reading
Introduction
Mini lecture
Quick quiz 1
8.1 Primary legislation
8.2 Overview of the legislative process
Learning activity
Discussion activity
8.3 Framework Bills
8.4 Multi-topic Bills
8.5 Delegated, secondary or subordinate legislation
Quick quiz 2
Sample examination question
Further reading
Learning outcomes
After completing the study of this topic, you should be able to:
Outline the stages of the legislative process

Explain how pre-legislative scrutiny and consultation can occur
Identify the differences in the passage of a Bill through the House of Commons and the House of Lords
Distinguish between primary and secondary legislation
Explain what ‘Henry VIII’ clauses are
Evaluate the effectiveness of Parliamentary scrutiny of legislation, both primary and secondary
Topic reading
Core text
Le Sueur, Sunkin and Murkens, Chapter 12 ‘Introduction to legislative functions’, Chapter 13 ‘Primary legislation’, Chapter 14 ‘Delegated legislation’ and Chapter 15 ‘Case study: constitutionally
contested legislation’.
Essential reading
Succession to the Crown Act 2013 and Explanatory Notes.
Introduction
In contemporary society much of our everyday conduct is regulated by law and the majority of laws are to be found in written form. Some will be Acts of Parliament or statutes, which are the main type
of primary legislation in the UK; others will take the form of statutory instruments (SIs) and other types of secondary legislation. On average, between 30 and 40 new Acts of Parliament are made each
year but there are approximately a hundred times more pieces of delegated legislation passed.
Laws are drafted to fulfil a variety of purposes, including the implementation, by government, of promised policy, such as a commitment in a political party electoral manifesto or set out in the Queen’s
Speech. Legislation will also often be needed in order to implement external or international law commitments and sometimes it may that a law must be drafted quickly in order to respond to a
particular issue. An interesting example of this is the Parliamentary Standards Act 2009, which arose as a result of the MP expenses scandal. A more recent example is that of the Terrorist Offenders
(Restriction of Early Release) Act 2020 which completed its accelerated parliamentary passage in two weeks.
Queen’s Speech: at the start of each parliamentary session at the State Opening of Parliament, the Queen delivers a speech outlining the government’s forthcoming legislative programme.
This topic will introduce legislation in its different forms. We will also consider the process by which primary legislation is drafted and the type of scrutiny (both pre-legislative and post-legislative) to
which it is subjected.
Study task 1
In this task we will consider certain aspects of legislation and the legislative process. Through a series of tasks/questions you will begin to develop an understanding of how and why legislation is
made.
Look up the Succession to the Crown Act 2013 and the explanatory notes. You can find the statute (and indeed all UK legislation) at: www.legislation.gov.uk.
If you had difficulty finding the legislation, use the direct links provided under Topic reading.
Now try to answer the following questions in your own words. Then look at the feedback provided.
1. Look at the Succession to the Crown Act – can you identify the 'words of enactment' or enacting formula?
2. What does this tell us about the composition of Parliament as a legislative body?
3. This piece of legislation does three main things – can you explain these in your own words?
4. Look at s.3(4) of the Act? Is this an example of express or implied repeal?
5. Thinking of the description of 'ordinary' and 'constitutional' statutes in Thoburn, which of these do you think would be most appropriate to describe the Succession to the Crown Act?
Show feedback
1. ‘BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and
by the authority of the same, as follows…’
2. We can see, through the Succession to the Crown Act 2013 the three component parts of Parliament. These – the Commons, Lords and Crown (together comprising the formal entity known
as 'the Queen-in-Parliament' , are mentioned on the face of the Act in the enacting formula. We can also see the standard format which Public General Acts follow.
3. Students will describe in their own words but should have identified the following (text extracted from the explanatory notes to the Act):
Section 1: Succession to the Crown not to depend on gender
This provides that the gender of a person will have no relevance when determining succession to the Throne. The Crown passes lineally to the issue of the reigning Sovereign in birth order,
but (previously was) subject to male preference over females. This male preference has now been removed.
Section 2: Removal of disqualification arising from marriage to a Roman Catholic
This provides that a person will not be disqualified from succeeding to the Crown or from being the Sovereign due to their marriage to a Roman Catholic. The previous prohibition dated from
the Bill of Rights and the Act of Settlement at the end of the 17th and beginning of the 18th centuries. The prohibition on the Sovereign being a Roman Catholic is not changed by the Act.
Section 3: Consent of Sovereign required to certain Royal Marriages
This provides that any of the first six people in the line of succession to the Crown must obtain the consent of Her Majesty prior to their marriage. This effects a substantial decrease from the
number of people affected by the Royal Marriages Act 1772. The recent practice under that Act was for Ministers to be informed of a proposed marriage of a person close in the succession
to the Throne, and to have the opportunity of giving formal advice to Her Majesty as to whether consent should be given. The Government expects this practice to continue.
4. s.3(4) The Royal Marriages Act 1772 (which provides that, subject to certain exceptions, a descendant of King George II may marry only with the consent of the Sovereign) is repealed.
This section of the Succession to the Crown Act refers to the express repeal of a previous piece of legislation, namely the Royal Marriages Act 1772. This is the norm – when new legislation
is passed, previous legislation if obsolete or in conflict will be repealed or amended accordingly.
In the 'Schedule' at the end of the Act you can see more examples of amendments to existing legislation.
5. As you are hopefully aware from your reading, convention dictates that, in the House of Commons, bills of 'first class constitutional significance' receive their Committee stage before a
Committee on the Floor of the House. The Succession to the Crown Bill is a good (fairly) recent example of a Bill treated in this way. It was described by the House of Lords Constitution
Committee as 'legislation of first-class constitutional importance'.
A few questions to keep in mind as you work through this topic are:
What is ‘primary’ legislation?

Who makes it and why?
Who can have influence on the law?
Mini lecture
08:19
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Quick quiz 1
After having watched the Topic 8 – Mini lecture, take this quiz to test your understanding of the content.
At which stage is there a difference in how bills of ‘first class constitutional importance’ are treated?
 First Reading
 Post-legislative scrutiny
 Report Stage
 Committee Stage
8.1 Primary legislation
First, a reminder that in the context of primary legislation we mean the Acts or statutes made by the Westminster Parliament (formally ‘the Queen in Parliament’) which, because of the principle of
parliamentary supremacy, are the highest form of law within the United Kingdom. Remember that, although Parliament is a multi-functional body, much of its time (in both Houses) is taken up with the
passage of legislation.
A useful (and brief) introduction to the legislative process can be found on the Parliament website.
Most Bills, which are draft legislation, are introduced by the government; however, they may be introduced by individual members of the House of Commons or House of Lords in which case they are
known as Private Members’ Bills. Exceptionally, a Bill can be introduced by a private individual or organisation.
The government Bills are drafted by the specialist government lawyers who work in the Office of Parliamentary Counsel. They ‘work closely with departments to translate policy into clear, effective and
readable law’.
There are also different categories of Bills, of which the vast majority are Public Bills, which change the law as it applies to the general population. The others are Private Bills, which follow a special
procedure and are specific to an organisation, such as a local authority, to change the law in its area or in a manner which affects it, or Hybrid Bills that mix the characteristics of Public and Private
Bills.
Study task 2
Use the Parliament website to find an explanation for and an example of a Hybrid Bill.
Show feedback
Your answer will depend on the research and reading you have done, but examples are likely to include the High Speed Rail (HS2) Bills or Crossrail Bills.
A hybrid Bill is a set of proposals for introducing new laws, or changing existing ones. Hybrid Bills are quite rare. They are generally used to secure powers to construct and operate major
infrastructure projects of national importance. Recent hybrid Bills include those leading to the Channel Tunnel Rail Link Act 1996 (High Speed One) and the Crossrail Act 2008. Hybrid Bills are so
called because they address both public and private matters. Most Government Bills are public Bills, as they propose legislation that affects everyone equally. Private Bills, on the other hand,
change the law in a way that affects some individuals in a different way from others. A hybrid Bill does both. (Definition from HS2: IN YOUR AREA, Government hybrid Bills.)
Bills may be introduced into either House but the annual Finance Bill (which gives effect to the Budget), along with most other financial legislation, always begins in the Commons. Other
high-profile and contentious legislation is usually also introduced in the Commons.
Bills go through a number of stages in each House before passing to the other Chamber to work through the same stages. The final stage is the Royal Assent and it is at this point that a Bill (draft law)
becomes an Act (law).
8.2 Overview of the legislative process
8.2.1 Pre-legislative scrutiny

There is wide agreement that effective pre-legislative consultation and pre-legislative scrutiny make positive and constructive contributions to the law-making process. In recent years, more legislation
has also been published in the form of Draft Bills.
Green Papers
These are consultation documents produced by the government which contain proposals for future government policy for the purpose of debate and discussion. The aim is to allow people (both inside
and outside Parliament) to debate the subject and give feedback on suggestions.
White Papers
A White Paper will generally contain more in-depth proposals and will often be the basis for a Bill to be put before Parliament. A good example is the (now infamous) ‘Rights Brought Home’ White
Paper of October 1997 (Cm 3782) which preceded the Human Rights Act 1998.
Draft Bills
Draft Bills are published by government in order to facilitate consultation and pre-legislative scrutiny. They are usually examined by either a Select Committee or a Joint Committee. One high-profile
example was the Joint Committee established to examine the Draft House of Lords Reform Bill 2011–12. A Joint Committee, as its name suggests, comprises members from both the House of
Commons and the House of Lords.
Study task 3
Look up which Draft Bills have been published during the current parliamentary session.
Show feedback
Your answer will depend on the session of Parliament but the answer can be found on the Draft Bills before Parliament page on the UK Parliament website.
8.2.2 The passage of a Bill through Parliament

The stages which a Bill goes through in Parliament are similar in both chambers, with one particularly noteworthy difference at committee stage.
For more information on the discussion in this section, see ‘Passage of a Bill’ on the UK Parliament website.
Figure 8.1 Stages of passing a bill (Source: UK Parliament)
First reading
At this stage the Bill is formally presented in Parliament and the short title is read out. There is no debate or discussion.
Second reading
The second reading is the first opportunity for debate on the main principles of the Bill in Parliament. The second reading debate is opened by the government minister (or MP or peer in the case of
Private Members’ Bills) from the department responsible for the Bill.
Committee stage
This where practice differs between the House of Commons and House of Lords.
Public Bill committees (House of Commons)

In the Commons a Public Bill committee (until 2006 these were called Standing Committees) of around 20 members is set up to consider the details of a particular Bill and only last for the duration of
the Bill concerned. These committees are named after the relevant Bill (e.g. the Health Bill Committee), and their composition reflects the size of the political parties in the House.
All Bills, other than money Bills, are automatically sent to a Public Bill committee after their second reading unless they are committed to a committee of the Whole House.
Committee of the Whole House

In the House of Commons, since 1945 a convention has developed that Bills which are deemed to be of ‘first class constitutional importance’ have their committee stage on the floor of the House. This
is also known as a Committee of the Whole House as it takes place in the main Chamber and all MPs may contribute to the debate. Examples of legislation which has been treated in this manner are
the Succession to the Crown Act 2013 and the European Union (Withdrawal) Act 2018.
In the House of Lords, all Bills have their committee stage on the floor of the House rather than in a committee room. This arguably allows for greater scrutiny by a wider and more diverse group of
people.
For further detail on this see the House of Commons Library Parliamentary Information List, ‘Bills whose Commons committee stage has been taken in Committee of the Whole House’ (SN/PC/05435,
2 July 2013).
Report stage
This stage involves detailed consideration of the Bill, as amended at the committee stage, and discussion of further amendments. This is usually followed immediately by debate on the Bill’s third
reading.
Third reading
In the Commons this is the final chance for debate on the content of the Bill, but amendments cannot be made at this stage. In the House of Lords, however, amendments can be made ‘provided the
issue has not been fully considered and voted on during either committee or report stage’.
After the third reading, the Bill moves across to the other chamber and goes through largely the same process, subject to the differences outlined above.
Finally, each House considers the other’s amendments. If both Houses agree on the amendments and the exact wording of the Bill, it passes for Royal Assent. If not, a Bill may go back and forth
(described rather aptly as ‘ping pong’) between the Houses until both reach agreement.
Occasionally, where agreement cannot be reached, the Bill will fall. As we have seen, in certain circumstances the House of Commons can use the Parliament Acts 1911 and 1949 to pass the Bill
without the consent of the House of Lords (as discussed in the previous chapter).
Royal Assent
The final stage of the legislative process is the exercise of the prerogative power of the monarch to grant Royal Assent. As has been discussed elsewhere, by constitutional convention, Royal Assent
will not be withheld if the legislation has passed both Houses of Parliament.
8.2.3 Post-legislative scrutiny

According to the UK Parliament’s definition, post-legislative scrutiny is an inquiry by a parliamentary select committee into how a new law has worked in practice since it came into force.
Study task 4
Look at the Fixed-term Parliaments Act 2011 s.7(4) and (6). Such provisions are referred to as ‘sunset clauses’ – research what this term means.
Show feedback
The UK Parliament glossary describes a sunset clause as:
A provision in a Bill that gives it an expiry date once it is passed into law. Sunset clauses are included in legislation when it is felt that Parliament should have the chance to
decide on its merits again after a fixed period.
Learning activity
Drag and drop the various stages of the law-making process in the boxes so they accurately reflect
the passage of a Bill through parliament.
Second Third Report Royal Consideration of Committee First

reading reading Stage Assent Amendments Stage reading
 Check
Select those stages which differ between the two Chambers of Parliament.
 Second reading
 Consideration of Amendments
 Report Stage
 Committee Stage
 First Reading
 Third Reading
 Royal Assent
 Check
Discussion activity
Read the House of Commons Library Briefing Paper ‘Post-legislative scrutiny’ (23 May 2013) and discuss the following questions.
1. Do you think there is currently sufficient post-legislative scrutiny?

2. At what stage after enactment of legislation do you think it suitable to have post-legislative scrutiny (i.e. how many years after an Act comes into force)?
Post your answers in the Topic 8 – Discussion activity.
Topic 8 – Discussion activity
8.3 Framework Bills
Often, statutes contain only a broad framework of their purpose and more complex content is added later by the relevant government department through delegated legislation.
Although practically expedient and efficient, such a method of law-making necessarily receives significantly less scrutiny than a more detailed piece of primary legislation. This has led to criticism,
including from the House of Lords Constitution Committee. A recent example of legislation which provided extensive delegated powers to ministers is the European Union (Withdrawal) Act 2018.
8.4 Multi-topic Bills
Large multi-topic Bills are sometimes referred to as ‘Christmas tree’ or ‘omnibus’ Bills as they are used by government departments to ‘hang’ or ‘attach’ a wide range of topics or policy areas (much as
one would hang baubles on a Christmas tree). One prominent example of legislation which might be described in this manner is the Localism Act 2011.
There are a variety of reasons why such broad-ranging legislation can prove problematic, not least the difficulty in adequately scrutinising such a large Bill. Their breadth can also throw up unexpected
difficulties for government in that, as explained by a former First Parliamentary Counsel, ‘the scope is broad and amendments can come in on any subject … late in a bill’s passage and that is quite
often an area where mistakes creep in’.
8.5 Delegated, secondary or subordinate legislation
Delegated legislation, also known as subordinate or secondary legislation, is extremely important in a practical sense. As mentioned above, there are several thousand pieces of delegated legislation
made each year compared with a relatively small number of Acts of Parliament. It is ‘delegated’ in the sense that the power to make legislation has been delegated by Parliament to a person or body
other than Parliament, most often to government ministers. Normally, the secondary legislation is intended to ‘flesh out’ or fill in the detail in relation to a ‘framework’ Act. The power to make delegated
legislation is to be found in what is referred to as a ‘parent’ or ‘enabling’ Act – that is, a statute which contains an explicit provision allowing for the making of delegated legislation. As can be observed
from the examples below, delegated legislation enables the government to make changes to a law without passing a new Act of Parliament. Other bodies may also make delegated legislation, for
example, local authorities have the power to make bye-laws.
Study task 5
Use www.legislation.gov.uk to answer the following questions:
a. Look up the European Union (Withdrawal Agreement) Act 2020 (Commencement No. 1) Regulations 2020 and identify the enabling Act.
b. What did the Marriage (Same Sex Couples) and Civil Partnership (Opposite Sex Couples) (Northern Ireland) Regulations 2019 do? What was the enabling Act?
Show feedback
a. The enabling Act is the European Union (Withdrawal Agreement) Act 2020 (as per the introductory text: ‘The Secretary of State, in exercise of the power conferred by section 42(7) of the
European Union (Withdrawal Agreement) Act 2020(1)’).
b. According to the SI’s Explanatory Memorandum:
The purpose of this instrument is to allow same-sex couples in Northern Ireland and under Northern Ireland law to form a civil marriage and opposite-sex couples to
register a civil partnership. It provides such couples with a range of associated rights and entitlements, ensuring that these relationships are recognised throughout the
Northern Ireland statute book, in particular in relation to pensions and social security, but also in relation to children and families, and gender recognition. It also provides
for how equivalent overseas relationships should be treated in Northern Ireland.
The enabling Act was the Northern Ireland (Executive Formation etc) Act 2019 (‘The Secretary of State makes these regulations in exercise of the powers conferred by sections 8 and 11 of
the Northern Ireland (Executive Formation etc) Act 2019’).
Remedial orders, made under s.10 of the Human Rights Act 1998, are also a form of delegated legislation.
8.5.1 Statutory Instruments

Statutory Instruments (SIs) are usually drafted by the legal office of the relevant government department and often are consulted upon. SIs are the main type of delegated legislation in the UK, with
approximately 3,000 SIs being issued each year. About two-thirds of SIs are not actively considered before Parliament and simply become law on a specified date in the future.
8.5.2 Parliamentary scrutiny of delegated legislation

SIs are subject to either the affirmative procedure or the ‘negative procedure’. The former refers to statutory instruments which must be approved by both the House of Commons and the House of
Lords in order to become law, whereas in the latter procedure SIs automatically become law unless there is an objection from either House.
One key point to be made in relation to SIs and other delegated legislation is that, while it is absolutely necessary for the effective and efficient functioning of government, there are potential concerns
about the lack of adequate scrutiny. This is exacerbated in the context of Henry VIII clauses, discussed below.
Coronavirus and delegated legislation

The coronavirus pandemic has led to a large number of legislative provisions being passed in a time pressured and ‘emergency’ context. Most of the ‘lockdown’ and other restrictions have been
provided for by secondary or delegated legislation in the form of Statutory Instruments (SIs) (mainly under the authority of the Public Health (Control of Disease) Act 1984) rather than through primary
legislation. You will be aware that secondary legislation is not subject to the same level of scrutiny in Parliament as primary legislation. A large proportion of the coronavirus-related SIs laid before
Parliament have been subject to the ‘made negative’ procedure, which means that the SI is laid before Parliament after it has been made into law by the minister.
Concerns about inadequacy of scrutiny have been raised, including by the Speaker of the House of Commons. In September 2020, the Speaker made the following statement:
The way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory. All too often, important statutory
instruments have been published a matter of hours before they come into force, and some explanations why important measures have come into effect before they can be laid
before this House have been unconvincing; this shows a total disregard for the House.
You can read in full the Speaker's Statement from 30 September 2020.
8.5.3 Henry VIII clauses

According to the Parliament Glossary:
‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary
scrutiny.
The Lords Delegated Powers and Regulatory Reform Committee pays particular attention to any proposal in a bill to use a Henry VIII clause because of the way it shifts power to the executive.
The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.
A Henry VIII clause enables a minister to make delegated legislation to amend provisions in an Act of Parliament in order to remove an incompatibility (s.10(2) and s.10(3)). An example is s.10 of the
Human Rights Act 1998.
Section 8 of the European Union (Withdrawal) Act 2018 grants to the executive what might be considered very broad powers. The executive is empowered to make regulations to deal with deficiencies
in retained EU law that are likely to arise following Brexit. This is another example of a Henry VIII clause as it empowers the minister to make regulations which modify, amend or repeal primary
legislation.
Quick quiz 2
To consolidate your knowledge of legislation and the legislative process, answer the following questions by choosing the most appropriate answer from the alternatives available.
Which of the following are examples of delegated legislation (there is more than one answer)?
 European Union Treaties
 Bye-laws
 The ECHR
 Statutory Instruments
Sample examination question
Question
Give an account of the law-making process in the UK Parliament, distinguishing between primary and secondary legislation and evaluate the relative functions and powers of the two
Houses.
Feedback
It can be seen from this question that the institution of Parliament needs to be considered holistically in terms of composition, powers and law-making. In order to adequately address this question, you
need to understand the processes by which both primary and secondary legislation are made. This needs to be explained and discussed in an analytical rather than merely descriptive manner – for
example, there is no need to list the stages of the parliamentary process (although you may choose to discuss them all). Better answers will demonstrate a good awareness of the relationship between
the two chambers and where their roles differ in respect of law-making. In your answer to this question, you may also be able to bring in some analysis of the adequacy of scrutiny of legislation.
Further reading
A helpful summary of the legislative process can be accessed via the parliamentary website.
The Cabinet Office has produced some accessible and straightforward summaries of the law-making process:
Legislative process: taking a bill through Parliament.
Guide to making legislation.
Gover, D. and M. Russell ‘Parliament and legislation: perhaps Westminster is more powerful than you think?’ (Constitution Unit blog, 15 September 2015).
House of Commons Library Briefing Paper ‘Statutory Instruments’ (No. 06509, 15 December 2016).
Korris, M. ‘Standing up for scrutiny: How and why Parliament should make better law’ (2011) 64 Parliamentary Affairs 564.
The Law Commission ‘Post-legislative scrutiny’ (Law Comm No. 302, 6945, 2006).
Russell, M., D. Gover and K. Wollter ‘Does the executive dominate the Westminster legislative process?: Six reasons for doubt’ (2015) Parliamentary Affairs 1. Note that this is a more detailed
paper on the issues discussed in the blog post by the same authors.

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11/10/22, 12:53 AM Topic 8 – Legislation

Module: Public law 2022-23 Date: Wednesday, 9 November 2022, 4:53 PM

Book: Topic 8 – Legislation

Outline the stages of the legislative process

Section 2: Removal of disqualification arising from marriage to a Roman Catholic

Section 3: Consent of Sovereign required to certain Royal Marriages

What is ‘primary’ legislation?

8.1 Primary legislation

8.2 Overview of the legislative process

8.2.1 Pre-legislative scrutiny

8.2.2 The passage of a Bill through Parliament

Figure 8.1 Stages of passing a bill (Source: UK Parliament)

Public Bill committees (House of Commons)

Committee of the Whole House

8.2.3 Post-legislative scrutiny

Second Third Report Royal Consideration of Committee First

1. Do you think there is currently sufficient post-legislative scrutiny?

Post your answers in the Topic 8 – Discussion activity.

Topic 8 – Discussion activity

8.3 Framework Bills

8.4 Multi-topic Bills

8.5 Delegated, secondary or subordinate legislation

Use www.legislation.gov.uk to answer the following questions:

b. According to the SI’s Explanatory Memorandum:

8.5.1 Statutory Instruments

8.5.2 Parliamentary scrutiny of delegated legislation

Coronavirus and delegated legislation

8.5.3 Henry VIII clauses

 European Union Treaties

Sample examination question

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