Learning Outcomes
After reading this article, you will be able to describe the stages of enacting primary legislation in the UK, explain the principle of parliamentary sovereignty, and distinguish between primary and delegated legislation. You will also be able to identify the controls on delegated legislation and understand the role of the judiciary in interpreting and reviewing legislation, all in the context of SQE1 assessment requirements.
SQE1 Syllabus
For SQE1, you are required to understand the legislative process and the constitutional principles that underpin it. In your revision, focus on:
- the stages involved in the enactment of primary legislation (Acts of Parliament)
- the principle of parliamentary sovereignty and its practical limits
- the distinction between primary and delegated (secondary) legislation
- the procedures and controls for delegated legislation
- the role of the judiciary in interpreting and reviewing legislation
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the main stages a Bill must pass through to become an Act of Parliament?
- What is meant by parliamentary sovereignty, and how can it be limited in practice?
- How does delegated legislation differ from primary legislation, and what are the main controls on its use?
- Can the courts strike down an Act of Parliament? What about delegated legislation?
Introduction
Primary legislation in England and Wales is created through a structured parliamentary process. Understanding how a Bill becomes law, the constitutional principle of parliamentary sovereignty, and the role of delegated legislation is essential for SQE1. This article explains each stage, the key legal concepts, and the practical controls that ensure the integrity of the legislative process.
The Legislative Process: How a Bill Becomes Law
Types of Legislation
Key Term: primary legislation Law made by Parliament in the form of Acts of Parliament (statutes). It is the highest form of law in the UK.
Key Term: delegated legislation Law made by individuals or bodies under powers granted by an Act of Parliament (the enabling Act). Also called secondary or subordinate legislation.
Types of Bills
Bills are proposals for new laws or changes to existing laws. There are several types:
- Public Bills: Affect the public at large. Most government legislation is in this category.
- Private Members' Bills: Introduced by MPs or Lords who are not government ministers. Rarely become law but can influence debate.
- Private Bills: Affect specific individuals, organizations, or localities.
- Hybrid Bills: Affect the public generally but have a significant impact on specific groups or interests.
Stages of Enactment
A Bill must pass through several stages in both the House of Commons and the House of Lords before it becomes law.
First Reading
The Bill is formally introduced. Its title is read out. There is no debate or vote at this stage.
Second Reading
The general principles and purpose of the Bill are debated. Members vote on whether the Bill should proceed.
Committee Stage
The Bill is examined in detail, clause by clause. Amendments may be proposed and debated. This is usually done by a Public Bill Committee or, for important Bills, by a Committee of the Whole House.
Report Stage
Further consideration of the Bill and any amendments made during the Committee Stage. All members can participate.
Third Reading
The final version of the Bill is debated. Only minor amendments are permitted. Members vote on whether to approve the Bill.
Consideration by the Second House
The Bill then goes through the same stages in the other House (Commons or Lords). If the second House makes amendments, the Bill returns to the first House for agreement. This process may repeat (known as "ping pong") until both Houses agree on the text.
Royal Assent
Once both Houses agree, the Bill is sent to the monarch for royal assent. This is now a formality. After royal assent, the Bill becomes an Act of Parliament.
Key Term: royal assent The formal approval by the monarch that is required for a Bill to become law.
Commencement
An Act may specify a commencement date or state that it comes into force on royal assent. Sometimes, commencement is left to be determined by a minister through delegated legislation.
Key Term: commencement The date on which an Act or part of an Act comes into legal force.
Parliamentary Sovereignty
Key Term: parliamentary sovereignty The constitutional principle that Parliament is the supreme legal authority and can make or repeal any law. No other body can override or set aside an Act of Parliament.
Parliamentary sovereignty means that Parliament can legislate on any subject. However, in practice, there are some limits:
- European Union law (before Brexit) and the Human Rights Act 1998 have limited Parliament's power in certain areas.
- Devolution: The UK Parliament has devolved some powers to Scotland, Wales, and Northern Ireland, but retains the legal right to legislate on all matters.
- Political constraints: Conventions such as the Sewel Convention mean Parliament will not normally legislate on devolved matters without consent.
Worked Example 1.1
A Bill to increase the minimum voting age is passed by the House of Commons, but the House of Lords rejects it. The Commons passes the Bill again in the next session, and the Lords again refuse. Can the Bill become law?
Answer: Yes. Under the Parliament Acts 1911 and 1949, if the Lords reject a public Bill in two successive sessions, the Commons can send the Bill for royal assent without the Lords' approval (except for money Bills and certain constitutional Bills).
Delegated Legislation
Delegated legislation allows Parliament to give others the power to make detailed rules or regulations under the authority of an Act (the enabling Act). This is necessary for flexibility and efficiency.
Types of Delegated Legislation
- Statutory Instruments (SIs): The most common form. Used by ministers to make regulations or orders.
- Orders in Council: Made by the Privy Council, often for emergencies or constitutional matters.
- By-laws: Made by local authorities or certain public bodies for local matters.
Controls on Delegated Legislation
Parliamentary Controls
- Negative Resolution Procedure: The SI becomes law unless Parliament objects within a set period (usually 40 days).
- Affirmative Resolution Procedure: The SI must be approved by Parliament before it takes effect.
Judicial Controls
Courts can review delegated legislation to ensure it does not exceed the powers granted by the enabling Act.
Key Term: ultra vires Acting beyond the legal powers conferred by law. Delegated legislation that is ultra vires can be declared invalid by the courts.
Worked Example 1.2
A minister makes regulations under an Act, but fails to follow the required consultation procedure specified in the Act. Can the regulations be challenged?
Answer: Yes. If the minister fails to follow a mandatory procedure in the enabling Act, the regulations may be declared invalid by the courts as procedurally ultra vires.
The Role of the Judiciary
The courts cannot strike down Acts of Parliament, but they play an important role in interpreting legislation and reviewing delegated legislation.
- Statutory Interpretation: Courts use various rules (literal, golden, mischief, purposive) to interpret statutes.
- Judicial Review: Courts can review delegated legislation and administrative actions for legality, procedural fairness, and reasonableness.
Exam Warning
The courts cannot strike down primary legislation, even if it is inconsistent with human rights or constitutional principles. However, they can issue a declaration of incompatibility under the Human Rights Act 1998, which does not affect the validity of the Act but may prompt Parliament to reconsider.
Revision Tip
Focus on the distinction between primary and delegated legislation, and the controls on delegated legislation, as these are frequently tested in SQE1.
Key Point Checklist
This article has covered the following key knowledge points:
- The legislative process for enacting primary legislation involves several stages in both Houses of Parliament and royal assent.
- Parliamentary sovereignty means Parliament can make or repeal any law, but practical and political limits exist.
- Delegated legislation allows detailed rules to be made under the authority of an Act, but is subject to parliamentary and judicial controls.
- The courts cannot strike down Acts of Parliament, but can review delegated legislation for legality.
- Statutory interpretation and judicial review are key judicial functions in relation to legislation.
Key Terms and Concepts
- primary legislation
- delegated legislation
- royal assent
- commencement
- parliamentary sovereignty
- ultra vires
