Legislation and legislative procedures - Powers and procedures for legislative scrutiny

Learning Outcomes

This article outlines the procedures through which legislation is scrutinised within the UK Parliament. It details the roles of both Houses of Parliament, the different types of committees involved in examining bills, and the mechanisms for overseeing delegated legislation. For the SQE1 assessment, you will need to understand the key stages of the legislative process, the functions of parliamentary scrutiny, and the principles of judicial oversight related to legislation. This knowledge will enable you to apply these concepts to SQE1 assessment scenarios.

SQE1 Syllabus

For SQE1, you are required to demonstrate functioning legal knowledge regarding the powers and procedures for legislative scrutiny. It is important to understand how Parliament examines and refines proposed laws, ensuring accountability and legal validity. You should focus your revision on:

• The stages of the legislative process in the House of Commons and House of Lords.
• The role and powers of parliamentary committees (eg Select Committees, Public Bill Committees, Joint Committees) in scrutinising primary legislation.
• The procedures for parliamentary oversight of delegated legislation, including the affirmative and negative resolution procedures.
• The purpose and implications of specific legislative devices like Henry VIII clauses.
• The role of courts in scrutinising legislation, primarily through judicial review of secondary legislation and the application of the Human Rights Act 1998.

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.

1. Which parliamentary stage involves the most detailed line-by-line examination of a Bill?
   1. First Reading
   2. Second Reading
   3. Committee Stage
   4. Third Reading

2. True or false? Delegated legislation made under the negative resolution procedure automatically becomes law unless objected to by either House within a specific timeframe.

3. What is the primary function of the Joint Committee on Statutory Instruments?

4. Identify one key constitutional principle fundamental to the process of legislative scrutiny.

Introduction

The process by which laws are made in the United Kingdom involves detailed scrutiny to ensure legislation is effective, clear, and constitutionally sound. Legislative scrutiny is fundamental to parliamentary democracy, providing checks and balances on executive power and refining proposed laws before they receive Royal Assent. For SQE1, understanding the various mechanisms and stages of scrutiny applied to both primary and secondary legislation is essential. This includes appreciating the distinct roles played by the House of Commons and the House of Lords, the functions of specialised committees, and the limited but significant role of the judiciary.

Scrutiny of Primary Legislation

Primary legislation, in the form of Acts of Parliament, undergoes a rigorous multi-stage process involving both Houses of Parliament. This process is designed to allow for debate, detailed examination, and amendment.

Parliamentary Stages

A Bill must pass through several stages in both the House of Commons and the House of Lords before it can become an Act. While the sequence is similar in both Houses, the emphasis and procedures can differ slightly.

Key Term: Bill
A proposal for a new law, or a proposal to change an existing law, presented for debate before Parliament.

1. First Reading: A formality where the Bill's title is read out and a date for the Second Reading is set. No debate occurs.
2. Second Reading: The first substantive debate on the Bill's general principles and purpose. A vote determines if the Bill proceeds.
3. Committee Stage: Detailed line-by-line examination of the Bill. In the Commons, this usually occurs in a Public Bill Committee specific to the Bill. In the Lords, it often takes place in a Committee of the Whole House. Amendments are proposed, debated, and voted upon. This is the primary stage for detailed scrutiny and revision.
4. Report Stage: The amended Bill returns to the floor of the House. Further amendments, often focusing on issues raised in committee, can be considered.
5. Third Reading: A final review of the Bill in its amended form. In the Commons, debate is limited and no further amendments are usually permitted. In the Lords, some amendments may still be made. A final vote is taken on whether the Bill should pass.

Bicameral Scrutiny and 'Ping Pong'

A Bill must be approved in the exact same form by both Houses. If the second House amends the Bill, it returns to the first House for consideration of those amendments. This exchange, known as 'ping-pong', continues until agreement is reached or the Bill fails.

The Role of the House of Lords

The House of Lords primarily functions as a revising chamber. Its members, often possessing specialist knowledge, scrutinise Bills passed by the Commons, proposing amendments to improve clarity, address technical issues, or challenge controversial aspects. While the Parliament Acts 1911 and 1949 limit the Lords' power to block legislation indefinitely, their scrutiny significantly influences the final shape of many Acts.

Key Term: Parliament Acts 1911 and 1949
Legislation limiting the power of the House of Lords to veto Bills passed by the House of Commons, replacing the veto with a power to delay (generally for one year).

Parliamentary Committees

Various committees play key roles in scrutinising legislation.

• Public Bill Committees (Commons): Examine Bills line-by-line at the Committee Stage, taking evidence and considering amendments. Membership reflects party strengths in the Commons.
• Select Committees: Departmental select committees monitor the policy, administration, and spending of government departments. They often conduct inquiries relevant to proposed legislation, providing expert evidence and recommendations. Cross-cutting committees (eg Public Accounts Committee, Environmental Audit Committee) scrutinise government activities across departments.
• Joint Committees: Comprise members from both Houses. Examples include the Joint Committee on Human Rights (JCHR), which scrutinises Bills for compatibility with human rights obligations, and the Joint Committee on Statutory Instruments (JCSI), which examines secondary legislation.

Worked Example 1.1

A Government Bill concerning data protection has passed its Second Reading in the House of Commons. It contains several technically complex clauses regarding encryption standards. Which parliamentary body is most likely to conduct the initial detailed scrutiny of these clauses?

Answer: The Public Bill Committee assigned to the Bill in the House of Commons will conduct the line-by-line examination during the Committee Stage. They may take evidence from technical experts to inform their scrutiny of the complex clauses.

Scrutiny of Secondary (Delegated) Legislation

Parliament frequently delegates law-making powers to government ministers or other bodies through primary legislation (an enabling or parent Act). The resulting laws are known as secondary or delegated legislation (often taking the form of Statutory Instruments - SIs). Scrutiny of this form of legislation is essential to ensure it remains within the powers granted by Parliament and is properly made.

Key Term: Delegated Legislation
Law made by an executive authority (eg a Government Minister) under powers delegated to them by an Act of Parliament (the parent Act). Examples include Regulations, Orders, and Rules, often made as Statutory Instruments (SIs).

Parliamentary Control Procedures

The enabling Act specifies the level of parliamentary scrutiny required for delegated legislation made under it. The main procedures are:

1. Negative Resolution Procedure: The SI becomes law on the date stated within it but can be annulled if either House passes a motion against it within a set period (usually 40 sitting days). This is the most common procedure. No active approval is needed.
2. Affirmative Resolution Procedure: The SI requires active approval from Parliament before it can become law or remain law. It must be debated and approved by resolution in one or both Houses (as specified by the parent Act). This procedure is typically used for SIs that impose significant burdens, taxes, or make substantial policy changes.

Committee Scrutiny of SIs

• Joint Committee on Statutory Instruments (JCSI): Scrutinises most SIs for technical defects, such as unclear drafting, exceeding the powers granted by the parent Act (acting ultra vires), or imposing a charge without parliamentary authority. It reports its findings to both Houses but cannot amend or annul the SI.
• House of Lords Secondary Legislation Scrutiny Committee: Examines the policy merits of SIs subject to parliamentary procedure, drawing the attention of the House to instruments of interest or concern.

Key Term: Ultra Vires
Acting beyond one's legal power or authority. Delegated legislation can be challenged in court if it is ultra vires the enabling Act.

Henry VIII Clauses

These are provisions within a parent Act that grant ministers the power to amend or repeal provisions in that Act, or even other Acts of Parliament, using secondary legislation. They are named after the Statute of Proclamations 1539, which gave King Henry VIII wide powers to legislate by proclamation.

Henry VIII clauses are controversial because they allow primary legislation to be changed without the full scrutiny associated with passing a new Act. Their use is often limited by the parent Act and subject to stricter parliamentary control, such as the affirmative resolution procedure or a 'super-affirmative' procedure involving enhanced consultation and committee scrutiny.

Worked Example 1.2

An Act of Parliament gives the Secretary of State power to make regulations concerning food safety standards. The Act states these regulations are subject to the negative resolution procedure. The Secretary of State makes regulations introducing new labelling requirements. A food industry body believes these requirements go beyond what the Act intended. What is the primary parliamentary mechanism for challenging these regulations?

Answer: The primary parliamentary mechanism is for a member of either House to table a motion (a 'prayer') to annul the regulations within the 40-day period. If the motion is passed by either House, the regulations are annulled. The JCSI would also scrutinise the regulations for technical defects, including whether they appear ultra vires.

Judicial Scrutiny of Legislation

While Parliament holds primary responsibility for scrutinising legislation during its passage, the courts play a role in scrutinising legislation after it has been enacted, particularly secondary legislation.

Judicial Review of Secondary Legislation

Delegated legislation can be challenged in court via judicial review. The main grounds for challenge include:

• Illegality (Ultra Vires): The legislation goes beyond the powers granted by the parent Act.
• Irrationality (Wednesbury Unreasonableness): The legislation is so unreasonable that no reasonable authority could have made it.
• Procedural Impropriety: The correct procedure for making the legislation (as set out in the parent Act or general administrative law) was not followed.
• Incompatibility with Human Rights: The legislation breaches rights protected under the Human Rights Act 1998 (see below).
• Incompatibility with Retained EU Law (where applicable): The legislation conflicts with relevant principles of retained EU law.

If a challenge is successful, the court can declare the delegated legislation unlawful and void (quash it).

Key Term: Judicial Review
A type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

Scrutiny of Primary Legislation by Courts

Due to the doctrine of parliamentary sovereignty, UK courts cannot declare an Act of Parliament invalid or unconstitutional simply because they disagree with it or believe it was improperly made (the 'enrolled Act' rule). However, courts scrutinise primary legislation in two main ways:

1. Statutory Interpretation: Courts interpret the meaning of Acts of Parliament when applying them to specific cases. This process inherently involves scrutiny of the legislation's wording, purpose, and scope.
2. Human Rights Act 1998: Courts must, where possible, interpret primary legislation compatibly with Convention rights (s.3 HRA 1998). If compatibility is not possible, higher courts can issue a 'declaration of incompatibility' (s.4 HRA 1998), signalling to Parliament that the legislation may need amendment, although the Act itself remains valid unless Parliament acts.

Exam Warning

Do not confuse the scrutiny powers over primary and secondary legislation. Courts can strike down (quash) secondary legislation if it is found to be unlawful (eg ultra vires). However, courts cannot strike down primary legislation (Acts of Parliament) due to parliamentary sovereignty, although they can issue a declaration of incompatibility under the HRA 1998.

Summary

Legislative scrutiny in the UK involves multiple stages and bodies, ensuring laws are examined for effectiveness, clarity, legality, and compatibility with fundamental rights.

Primary Legislation Scrutiny:

• Passes through formal stages (Readings, Committee, Report) in both the Commons and Lords.
• Subject to detailed line-by-line review in Committee Stage.
• The House of Lords acts as a revising chamber, limited by the Parliament Acts.
• Select Committees provide expert analysis and oversight.
• Judicial scrutiny is limited by parliamentary sovereignty, focusing on interpretation and HRA compatibility.

Secondary Legislation Scrutiny:

• Subject to parliamentary control via negative or affirmative resolution procedures.
• Technical scrutiny provided by the JCSI; policy scrutiny by the Lords Secondary Legislation Scrutiny Committee.
• Henry VIII clauses permit amendment of primary legislation via secondary legislation, subject to safeguards.
• Can be challenged in court via judicial review on grounds like illegality (ultra vires), irrationality, procedural impropriety, or HRA incompatibility.

Key Point Checklist

This article has covered the following key knowledge points:

• Primary legislation (Acts of Parliament) follows a multi-stage process (First Reading, Second Reading, Committee Stage, Report Stage, Third Reading) in both Houses.
• The Committee Stage involves the most detailed scrutiny of a Bill's clauses.
• The Parliament Acts 1911/1949 limit the House of Lords' power to block legislation from the Commons.
• Select Committees (departmental, JCHR) provide specialised scrutiny.
• Delegated (secondary) legislation is made under powers granted by a parent Act.
• Parliamentary control over delegated legislation includes the negative and affirmative resolution procedures.
• Committees like the JCSI and the Lords Secondary Legislation Scrutiny Committee oversee delegated legislation.
• Henry VIII clauses allow ministers to amend primary legislation via secondary legislation, raising scrutiny concerns.
• Courts cannot invalidate Acts of Parliament but must interpret them, including compatibly with the HRA 1998 where possible (s.3), or issue a declaration of incompatibility (s.4).
• Delegated legislation can be challenged and quashed by courts via judicial review if found unlawful (eg ultra vires).

Key Terms and Concepts

• Bill
• Parliament Acts 1911 and 1949
• Delegated Legislation
• Ultra Vires
• Judicial Review