Welcome to Law Making: Parliamentary Law Making and Delegated Legislation
Welcome to one of the fundamental building blocks of AQA A-Level Law (Paper 1). In this chapter, we explore how laws are created in England and Wales. We will divide this into two core halves: Parliamentary Law Making (primary legislation made directly by Parliament) and Delegated Legislation (secondary legislation created by outside bodies given permission by Parliament). Don't worry if the legislative steps or Latin terms seem challenging at first; we will break down every single concept step-by-step!
---Part 1: Parliamentary Law Making
1. The Pre-Legislative Stage: Green and White Papers
Before an idea even enters Parliament as a proposed law, the government typically consults the public and experts using two main documents:
Green Paper (Consultation): Think of this as a "green light" to start brainstorming. A Green Paper is a consultative document issued by the government setting out ideas for new law. It invites comments, feedback, and debate from the public, charities, pressure groups, and interested professionals.
White Paper (Firm Policy): Think of this as a "concrete" plan. Following the feedback from the Green Paper, the government publishes a White Paper. This is a firm statement of government policy outlining its specific legislative intentions before drafting a formal Bill.
Memory Trick: Green = Growing ideas (consultation); White = Written in stone (firm proposal).
2. Types of Bills
A Bill is a proposal for a new Act of Parliament. There are four main categories of Bills you need to know:
1. Public Bills: These affect the entire general public and make up the vast majority of government legislation.
2. Private Members' Bills (PMBs): These are introduced by individual Members of Parliament (MPs) or House of Lords peers who are not government ministers. They are introduced through a Ballot, the Ten-Minute Rule, or Presentation. A famous example is the Abortion Act 1967.
3. Private Bills: These are designed to affect only specific individuals, organizations, or local areas (for example, giving special powers to a particular port or company).
4. Hybrid Bills: A mix of Public and Private Bills. They affect the general public but have a significant direct impact on specific groups or locations. An example is the High Speed Rail (Preparation) Act.
3. The Formal Legislative Stages (How a Bill Becomes an Act)
To become an official Act of Parliament (statute), a Bill must pass through five rigorous stages in both the House of Commons and the House of Lords, followed by Royal Assent.
Stage 1: First Reading
This is a purely formal introduction. The short title of the Bill is read aloud. There is no debate and no vote at this stage.
Stage 2: Second Reading
This is the first major debate. MPs debate the general principles of the Bill. At the end of the debate, a formal vote is taken. If the government loses this vote, the Bill progresses no further.
Stage 3: Committee Stage
A detailed, clause-by-clause, line-by-line examination of the Bill carried out by a dedicated Public Bill Committee. Amendments are debated and voted on to fix loopholes and clarify wording.
Stage 4: Report Stage
The Public Bill Committee reports its proposed amendments back to the whole House. The full House considers, debates, and votes on these specific amendments.
Stage 5: Third Reading
The final review of the completed, amended Bill. Debate is strictly limited to what is currently written in the Bill. A final vote takes place.
Stage 6: The Second House
The Bill is transferred to the other chamber (usually from the Commons to the House of Lords) where it repeats all five stages: First Reading, Second Reading, Committee Stage, Report Stage, and Third Reading.
Stage 7: Ping-Pong and Royal Assent
If the House of Lords makes amendments, the Bill is sent back to the Commons to accept or reject them ("parliamentary ping-pong"). Once both Houses agree, the Monarch gives formal constitutional approval known as Royal Assent. The Bill is now officially an Act of Parliament.
Constitutional Limit on the Lords: Under the Parliament Acts 1911 and 1949, the House of Lords cannot block a Bill indefinitely. The House of Commons can bypass the Lords to pass a Bill after a one-year delay. Examples where the Parliament Acts were used include the Sexual Offences (Amendment) Act 2000 and the Hunting Act 2004.
Mnemonic for the Stages: Fast Sharks Can Really Travel = First reading, Second reading, Committee stage, Report stage, Third reading.
4. Influences on Parliament
What persuades Parliament to pass new legislation? There are four major influences:
1. Political Influence / Government Mandate: When a political party wins a general election, it has a mandate to implement the promises outlined in its election manifesto.
2. Public Opinion and the Media: Strong public reactions, media reporting, and social media campaigns put immense pressure on MPs to act quickly. For example, extensive media coverage of dog attacks led directly to the rushed passing of the Dangerous Dogs Act 1991.
3. Pressure Groups: Groups of people who join together to campaign on specific issues. They fall into two categories:
- Sectional / Interest Groups: Represent the specific interests of a profession or sector (e.g., the British Medical Association [BMA], Law Society).
- Cause / Promotional Groups: Promote a shared belief or cause for the wider good (e.g., Greenpeace, Howard League for Penal Reform).
4. Law Reform Bodies: Independent statutory bodies like the Law Commission (established under the Law Commissions Act 1965), Royal Commissions, and Public Inquiries conduct in-depth research to suggest modernising and consolidating outdated laws.
5. Parliamentary Supremacy (Dicey's Formulation)
Constitutional scholar A.V. Dicey set out the three core principles of Parliamentary Sovereignty:
Principle 1: Parliament has the absolute right to make or unmake any law whatever.
Principle 2: No person or body is recognised by law as having the power to override or set aside an Act of Parliament.
Principle 3: No Parliament can bind its successors, nor can it be bound by its predecessors.
Limits to Parliamentary Supremacy:
- The Human Rights Act 1998: Under Section 4, superior courts can issue a declaration of incompatibility if an Act clashes with European Convention rights. However, the courts cannot strike down the Act; Parliament remains supreme and decides whether to amend it.
- Devolution: Powers have been transferred to the Scottish Parliament, Senedd Cymru (Wales), and the Northern Ireland Assembly to make laws on specific devolved matters.
- European Union Law (Historical): During the UK's EU membership, EU law took priority over UK domestic law (demonstrated in Factortame (No. 2) 1990). This was altered by the European Union (Withdrawal) Act 2018 upon the UK's departure.
Key Takeaway for Part 1: Primary law is made through a 5-stage legislative process in both Houses. Under Dicey's doctrine of Parliamentary Supremacy, Parliament is the supreme law-making authority and cannot be overruled by UK courts.
---Part 2: Delegated Legislation
1. What is Delegated Legislation?
Delegated (or secondary) legislation is law created by an individual or subordinate body under powers granted directly to them by Parliament through an enabling Act (also known as a parent Act).
Analogy: Imagine Parliament is the headteacher writing the overarching school framework rules, and the enabling Act is a hall pass authorizing heads of departments (ministers) or site managers (local councils) to create specific, detailed rules for their own corridors.
2. The Three Types of Delegated Legislation
1. Orders in Council:
- Made by: The King and the Privy Council (composed of senior government ministers and advisers).
- Purpose: Used in national emergencies (under the Emergency Powers Act 1920 or the Civil Contingencies Act 2004), updating laws, transferring responsibilities between government departments, or formally dissolving Parliament.
2. Statutory Instruments (SIs):
- Made by: Government ministers and their departments within their specific areas of authority.
- Purpose: Adding detailed national regulations to general statutory frameworks. For example, Codes of Practice created under the Police and Criminal Evidence Act 1984 (PACE).
3. Bylaws:
- Made by: Local councils (county or district authorities) or public corporations / statutory undertakers (such as railway companies or the National Trust).
- Purpose: Regulating local matters within a specific geographical boundary or on specific property (e.g., local park opening hours, dog control zones, or passenger rules on railway property).
3. Reasons for Using Delegated Legislation
Why doesn't Parliament simply pass everything itself?
- Saves Parliamentary Time: Parliament does not have the time to debate hundreds of small administrative rules every day.
- Technical and Specialist Expertise: Ministers and civil servants can consult industry experts and scientists on complex topics (e.g., pharmaceutical standards or road vehicle specifications).
- Local Knowledge: Local councils understand local traffic or park management needs far better than Westminster MPs.
- Speed in Emergencies: Orders in Council can be signed instantly during civil emergencies or pandemics without waiting weeks for debates.
- Flexibility: Delegated legislation can be quickly updated, amended, or repealed as technology and social needs change.
4. Controls Over Delegated Legislation
Because unelected bodies are creating enforceable laws, strict controls exist to prevent abuse of power. These controls are divided into Parliamentary Controls and Judicial Controls.
A. Parliamentary Controls (Political Oversight)
1. The Parent / Enabling Act: Parliament controls the law from the start by setting precise boundaries, procedures, and definitions in the parent Act.
2. Affirmative Resolution Procedure: The statutory instrument must be formally debated and approved by Parliament within a set timeframe (often 28 to 40 days) before it can become law. This is reserved for major or controversial regulations.
3. Negative Resolution Procedure: The instrument is published and automatically becomes law unless an MP challenges or moves an annulment motion against it within 40 days (the vast majority of SIs use this process).
4. Scrutiny Committees: The Joint Committee on Statutory Instruments (JCSI) and the House of Lords Secondary Legislation Scrutiny Committee review all instruments. They check for technical errors, ambiguity, retrospective effects, or whether the minister has acted beyond the enabling power.
5. Parliamentary Questions: MPs can directly question ministers about proposed secondary legislation during ministerial question time.
B. Judicial Controls (Judicial Review in Court)
An individual or organisation with sufficient interest can challenge delegated legislation in the High Court (Administrative Court) via Judicial Review on the grounds that it is Ultra Vires (Latin for "beyond the powers"). If the court agrees, the delegated legislation is declared void.
There are three ultra vires grounds you must learn:
1. Substantive Ultra Vires:
The decision-maker made a regulation that exceeds the actual subject matter or powers permitted in the parent Act.
Case: R v Home Secretary, ex parte Fire Brigades Union [1995] — The Home Secretary introduced an entirely new criminal injuries compensation scheme that went beyond the powers granted by the parent Act.
2. Procedural Ultra Vires:
The decision-maker failed to follow mandatory procedural steps set out in the parent Act (such as failing to consult specific bodies).
Case: Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] — The minister was required by statute to consult relevant trade bodies before creating training boards. He failed to consult the Mushroom Growers' Association, so the order was invalid as applied to them.
3. Unreasonableness (Wednesbury Unreasonableness):
The delegated rule is so completely irrational or bizarre that no reasonable authority could ever have made it.
Cases: Associated Provincial Picture Houses v Wednesbury Corporation [1948] (which established the test) and Strickland v Hayes Borough Council [1896] (a bylaw banning obscene singing in both public and private spaces was held unreasonable because it went too far into private homes).
Key Takeaway for Part 2: Delegated legislation allows ministers, local councils, and the Privy Council to create detailed law. It is held in check by parliamentary mechanisms (resolutions, scrutiny committees) and court judicial review (substantive, procedural, and unreasonable ultra vires).
---Common Pitfalls to Avoid in the Exam
Mistake 1: Confusing Green and White Papers. Remember: Green Papers are purely open consultation documents; White Papers represent firm, decided government policy intentions.
Mistake 2: Mixing up the Order of Legislative Stages. Students often place the Report Stage before the Committee Stage. Remember: the committee examines the Bill first, and then reports back to the House.
Mistake 3: Confusing the Types of Delegated Legislation. Statutory Instruments are made by government ministers, Orders in Council by the Privy Council/Monarch, and Bylaws by councils/public corporations. Do not mix their creators!
Mistake 4: Believing UK Courts Can Strike Down Primary Acts. Under the Human Rights Act 1998, courts can only issue a Section 4 declaration of incompatibility against primary Acts of Parliament; they cannot strike them down. Only delegated legislation can be struck down (declared void) via Judicial Review on ultra vires grounds.
Mistake 5: Failing to Distinguish Parliamentary Controls from Judicial Controls. Affirmative/negative resolutions and scrutiny committees are Parliamentary controls. Ultra vires (Substantive, Procedural, Unreasonableness) challenges in the High Court are Judicial controls.
---Quick Summary Checklist
Can you confidently explain:
- The difference between a Green Paper and a White Paper?
- The 5 stages a Bill takes through the House of Commons?
- Dicey's three limbs of Parliamentary Supremacy and their modern limits?
- The difference between Orders in Council, Statutory Instruments, and Bylaws?
- The difference between Affirmative and Negative resolutions?
- The three ultra vires grounds (Substantive, Procedural, Wednesbury Unreasonableness) and their supporting cases?