Legislation and legislative procedures - Powers and procedur...

Learning Outcomes

This article examines the powers and procedures for legislative scrutiny in the UK for SQE1 FLK1 purposes, including:

• the multi-stage passage of primary legislation through both Houses, with emphasis on readings, committee stages, report stage, and 'ping-pong';
• the distinct roles of the House of Commons and House of Lords, including the Lords as a revising chamber;
• key parliamentary committees involved in scrutiny, such as Public Bill Committees, Select Committees, Joint Committees, and specialist Lords committees;
• mechanisms for controlling delegated legislation, including negative, affirmative, super-affirmative, and special procedures, and the work of SI scrutiny committees;
• the nature, risks, and safeguards associated with Henry VIII clauses and their impact on separation of powers and accountability;
• judicial scrutiny of legislation, focusing on grounds of judicial review of delegated legislation and the limits of review over Acts of Parliament;
• how constitutional principles—parliamentary sovereignty, the rule of law, and human rights protection—shape and constrain UK legislative scrutiny practice.

SQE1 Syllabus

For SQE1, you are required to understand the powers and procedures for legislative scrutiny in the UK, with a focus on the following syllabus points:

• The multi-stage legislative process through the House of Commons and the House of Lords, including the drafting, readings, and amendment of Bills.
• Parliamentary committee structures and their functions in examining and revising legislation, including Public Bill Committees, Select Committees, Joint Committees, and the role of committees in pre-legislative scrutiny.
• The scrutiny and legal status of delegated legislation, differentiated procedures for approval (affirmative/negative resolution), and safeguards such as the role of statutory committees.
• The use and constitutional implications of Henry VIII clauses in primary Acts and their impact on the separation of powers.
• Judicial powers and limitations in scrutinising legislation, including the doctrines of parliamentary sovereignty, the grounds for judicial review of delegated legislation, and interaction with the Human Rights Act 1998.
• The role of the courts in the interpretation of statutes and the impact of constitutional principles such as the rule of law and the separation of powers.

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 scrutiny of legislation is central to the operation of the UK constitution, ensuring accountability, legislative quality, and the legitimacy of law. Parliamentary scrutiny is not limited to the passage of primary legislation but extends to delegated legislation and, through judicial review, to certain judicial oversight. A robust system of checks and balances is maintained through the interplay between Parliament, the government, and the courts. Accordingly, a detailed knowledge of these principles and procedures underpins a comprehensive understanding of constitutional and administrative law for prospective solicitors.

Key Term: Legislative scrutiny
The processes by which proposed laws are subjected to examination, amendment, and oversight to ensure they are constitutionally valid, effective, and consistent with the rule of law.

Scrutiny of Primary Legislation

Parliamentary Stages

A Bill's progress through Parliament is a structured multi-stage process designed to ensure substantive debate, detailed review, and opportunities for amendment at various points. While there are variations for different categories of Bills (public, private, hybrid), the general model for primary (public) Bills includes:

• First Reading: The Bill’s short title is read aloud; the Bill is published but not debated at this stage. Its main function is notification.
• Second Reading: The Bill’s principles and broad policy objectives are debated. Members discuss the necessity, objectives, and impact of the Bill. It concludes with a vote to determine if the Bill should proceed. The second reading represents the principal opportunity for Members to contest the general policy, less so its detailed content.
• Committee Stage: The Bill is considered in detail on a line-by-line basis. In the House of Commons, most Bills are referred to a Public Bill Committee (formerly Standing Committee), which reflects the party composition of the House but allows for detailed, non-partisan examination. For significant or constitutional Bills, a Committee of the Whole House may be used. In the House of Lords, the Committee of the Whole House is the norm for most Bills. Proposed amendments are developed, debated, and voted on. This stage is essential for technical scrutiny and necessary refinement.
• Report Stage: Members may introduce new amendments (even those not on the committee), including those raising new or unresolved issues. The focus is on further scrutiny and on issues not satisfactorily resolved in committee.
• Third Reading: This typically marks the final opportunity to debate the Bill's provisions as amended. In the Commons, debate is brief and amendments are rare. In the Lords, minor amendments may still be made. The Bill is then subject to a final yes/no vote.
• Repeat in the Second House: The Bill proceeds through the same stages in the other House (unless started there). If amendments are made, these must be agreed to by both Houses.
• Consideration of Amendments and ‘Ping-Pong’: Disagreement on amendments triggers the 'ping-pong' process, whereby each House may insist on or reject amendments until consensus is reached or the Bill fails. In practice, most disagreements are resolved within one or two exchanges.

Key Term: Committee of the Whole House
A committee consisting of all members of the House, allowing full participation in detailed scrutiny rather than delegating this to a smaller committee.

Special Features: Government Control and Timetabling

While Parliament determines the fate of Bills, the government wields considerable influence over the legislative timetable and the scheduling of debates, which can affect the degree of scrutiny. Procedural devices such as 'programme motions' or 'guillotine motions' may limit debate and accelerate the passage of government-sponsored Bills. Nevertheless, core constitutional and financial Bills typically command extended debate and intensive scrutiny.

Bicameral Scrutiny and 'Ping Pong'

Parliament is bicameral, comprising the House of Commons and the House of Lords. Both Houses must agree to the same text before a Bill can receive Royal Assent and become law. 'Ping pong' describes the shuttle of a Bill between the Houses if there are disagreements over amendments. Ultimately, the Parliament Acts 1911 and 1949 enable the Commons to override the Lords in certain circumstances to ensure democratic primacy.

Key Term: Parliament Acts 1911 and 1949
Statutes limiting the Lords' power to block public Bills passed by the Commons. The 1911 Act removed the Lords’ absolute veto, replacing it with a suspensory veto (originally two years, reduced to one year by the 1949 Act). The procedure cannot be used for Bills extending the life of Parliament or for Money Bills, for which the Lords have only a one-month delaying power.

The Role of the House of Lords

The House of Lords acts primarily as a revising chamber, scrutinising Bills passed by the Commons for clarity, constitutionality, and practicality. Lords membership encompasses a broad range of knowledge (e.g., law, medicine, science), leading to significant technical and policy scrutiny. Although the Lords cannot block Bills indefinitely, their suggested amendments often improve draft legislation and remedy technical defects.

The constitutional convention (the Salisbury-Addison Convention) reinforces the Commons' primacy, especially regarding government manifesto commitments, by indicating the Lords will not oppose at second reading Bills fulfilling such pledges.

Parliamentary Committees

Detailed scrutiny of legislation is largely the remit of its committee system:

• Public Bill Committees (Commons): Consider the detailed provisions of Bills, hear oral and written evidence, and report amendments.
• Committee of the Whole House (Commons and Lords): Used for significant or constitutional Bills (e.g., budget, finance Bills).
• Select Committees: Departmental Select Committees examine the implementation of government policy and administration, frequently making recommendations that inform or assess legislative proposals. They may hold pre-legislative scrutiny by reviewing draft Bills.
• Joint Committees: Comprising members from both Houses, these committees play a central role in scrutinising particularly significant legislation and in the review of secondary legislation.
• Special and Ad hoc Committees (Lords): Formed for detailed review of complex or technical matters or topics, such as science and technology.

Key Term: Select Committee
A committee established to oversee government departments, scrutinise policies, monitor administration, and investigate specific matters of public concern, with the power to summon witnesses and documents.

Pre-legislative and Post-legislative Scrutiny

Increasingly, pre-legislative scrutiny in the form of draft Bills referred to select or joint committees allows for informed input and early identification of constitutional issues. Post-legislative scrutiny, while less formalised, may be conducted by committees or review panels to assess the effectiveness and impact of new statutes.

Worked Example 1.1

A major environmental Bill includes technical amendments to pollution standards and energy targets. After the second reading, MPs from a variety of backgrounds, including former engineers and environmental consultants, are invited to a committee to examine these details and propose amendments.

Answer:
The Bill is sent to a Public Bill Committee in the House of Commons. The committee undertakes clause-by-clause consideration, aided by witness evidence, with membership mirroring party strength in the Commons.

Other Mechanisms for Parliamentary Scrutiny

• Opposition Days and Backbench Debates: Provide time for non-government legislation, scrutiny, and challenge outside the government agenda.
• Early Day Motions: Allow MPs to raise concerns and opinions, although these do not result in legislative changes themselves.

Scrutiny of Secondary (Delegated) Legislation

Secondary or delegated legislation—also called statutory instruments (SIs), regulations, rules, or orders—is generally made by government ministers (or occasionally public bodies) under powers granted by an Act of Parliament (the 'enabling' or 'parent' Act). Delegated legislation provides flexibility, technical detail, and efficiency in law-making, but raises particular scrutiny concerns due to its less rigorous parliamentary process.

Key Term: Delegated Legislation
Law made by a body other than Parliament under authority conferred by a parent Act, typically through statutory instruments such as regulations, orders, or rules.

Parliamentary Control Procedures

Parliament employs procedural safeguards to ensure that delegated legislation is made and exercised within limits set by the enabling Act. The main forms of procedure are:

• Negative Resolution Procedure: The default for most SIs. The instrument will become law after a specified period (usually 40 days) unless either House resolves to annul it. While a large volume of SIs go unchallenged, this process still allows for annulment in the event of significant concern.
• Affirmative Resolution Procedure: Used for more significant delegated legislation. The SI requires express Parliamentary approval before it becomes law, generally after being laid in draft form for approval in both Houses. Parliamentary time is set aside for debate and a positive resolution must be passed.
• Super-Affirmative and Enhanced Procedures: Apply to controversial powers such as those in certain Henry VIII clauses or under the Legislative and Regulatory Reform Act 2006. They require extended parliamentary involvement, additional reports, and greater opportunities for amendment.
• Hybrid or Special Procedures: Some SIs require special procedures, often involving notice to affected parties or public inquiries, particularly where individual rights are affected.

Parliament may also exercise control through:

• Prayers (motions to annul), primarily under the negative procedure.
• Debates, especially if there is concern over the breadth, policy, or technical defect within an instrument.
• Questions to ministers and select committee inquiries into the impact and use of delegated legislation.

Committee Scrutiny of SIs

Dedicated committees play an important role in the oversight of delegated legislation:

• Joint Committee on Statutory Instruments (JCSI): Reviews SIs for technical defects rather than policy substance. Issues examined include whether the instrument exceeds the powers granted by the parent Act (ultra vires), contains ambiguity or defects in drafting, or imposes unlawful financial charges.
• House of Lords Secondary Legislation Scrutiny Committee: Assesses the policy merits, public impact, and compliance with standards of good law-making. Flags SIs of particular interest or concern for House debate.
• Select Committees: May draw attention to the use or consequences of delegated legislation.

Key Term: Ultra Vires
Acting beyond or outside the legal powers conferred by statute; an SI found to be ultra vires may be annulled by Parliament or quashed by the courts.

• Standards and Safeguards: The effectiveness of parliamentary scrutiny of SIs is a subject of ongoing constitutional debate, given the huge quantity of delegated legislation and the fact that most SIs do not receive debate or scrutiny in either House.

Henry VIII Clauses

Henry VIII clauses are a controversial legislative device by which a statute authorises the government to amend or repeal primary legislation by means of secondary legislation—without a full parliamentary process. Their use raises separation of powers and accountability concerns, particularly if wide powers or matters of principle are left to delegated legislation. The inclusion of such a clause in an Act typically invokes the affirmative or super-affirmative procedure and extra scrutiny by committees.

Key Term: Henry VIII clause
A provision in an Act which enables the government to amend or repeal provisions in primary legislation using secondary legislation (SIs), rather than by a full Act of Parliament. Named after the Statute of Proclamations 1539, reflecting historical executive law-making.

Parliamentary committees and select committees often raise concerns about such clauses and seek to limit their scope or require sunset clauses.

Worked Example 1.2

Parliament has passed an Act allowing the Home Secretary to "amend any statutory provision relating to public health" by regulation, subject to the affirmative procedure. The Home Secretary makes an SI introducing wholly new quarantine offences, which the JCSI considers go beyond the Act’s intention.

Answer:
The affirmative procedure requires parliamentary debate and approval. The JCSI can report on whether the SI appears ultra vires, recommending annulment or amendment, and Parliament may refuse to approve the SI if its use is beyond the intended powers. If the SI is made outside the scope of the parent Act, it can also be judicially reviewed and, if found ultra vires, set aside by the courts.

Judicial Scrutiny of Legislation

While Parliament is the principal scrutiniser of legislation, the courts play a specific, constitutional role in ensuring that both primary and secondary legislation are consistent with legal limits, constitutional principles, and human rights.

Judicial Review of Secondary Legislation

Delegated legislation, as a form of law made under statutory powers, is susceptible to judicial review. The courts may quash SIs or regulations on four main grounds:

• Illegality/Ultra Vires: The delegated legislation exceeds the scope of the powers conferred by the enabling Act, serves an improper purpose, or is made by a body/person not authorised.
• Irrationality (Wednesbury Unreasonableness): The SI is so unreasonable that no reasonable authority could have made it, or the outcome is utterly illogical.
• Procedural Impropriety: The delegated legislation is not made in accordance with the procedural requirements set out in the parent Act, including failure to consult, defective laying procedures, or failure to provide sufficient notice of events such as public inquiries.
• Incompatibility with Human Rights: An SI may be struck down if it infringes rights protected by the Human Rights Act 1998 (e.g. right to fair trial, privacy) and the abrogation cannot be justified.
• Incompatibility with Retained EU Law: Post-Brexit, delegated legislation must not contravene 'retained' EU law or the Withdrawal Agreement, to the extent retained EU law has ongoing effect in UK law. Mechanisms exist for statutory instruments to be disapplied if in breach.

Key Term: Judicial Review
Judicial review is a court proceeding where a judge reviews the lawfulness of a decision or instrument made by a public body or official, ensuring their actions or legislation are within legal limits.

Where a claim is successful, the courts can quash the delegated legislation and grant mandatory or prohibitory orders.

Parliamentary Remedies and Judicial Deference

Where an SI is invalid for procedural failure (such as not being laid properly), the courts will typically declare it void. Courts exercise restraint in matters of high policy or where Parliament has clearly expressed its intention, but will not permit SIs or other delegated legislation to override fundamental constitutional principles without explicit language in the parent Act.

Ouster Clauses and Restricted Review

Although some Acts attempt to include ouster clauses to prevent judicial review of delegated legislation, the courts have repeatedly found means to review ultra vires or unlawful action, as seen in Anisminic v Foreign Compensation Commission [1969] AC 147 and, more recently, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.

Scrutiny of Primary Legislation by Courts

The constitutional principle of parliamentary sovereignty means that UK courts cannot strike down Acts of Parliament on constitutional grounds, except in very rare and qualified circumstances (such as incompatibility with EU law before Brexit or, in the context of devolution, if devolved legislatures legislate beyond their competence). However, the courts play a supervisory and interpretive role in respect of primary legislation:

1. Statutory Interpretation: Judges interpret and apply Acts of Parliament to specific cases, using tools such as the literal, golden, and purposive rules. This can lead to the courts shaping the impact of legislation but always within the statute’s wording and Parliament’s intention.
2. Interpretation under the Human Rights Act 1998: Section 3 requires courts to interpret all UK primary and secondary legislation, so far as possible, in a manner compatible with the European Convention on Human Rights (ECHR). If such interpretation is not possible, senior courts may issue a "declaration of incompatibility" under section 4, which does not invalidate the legislation but signals to Parliament that amendment is required.
3. Interpretation in line with Retained EU Law (where relevant): For certain statutes predating EU withdrawal, UK courts may still take account of retained EU law in construction and interpretation.

Courts may apply constitutional presumptions (such as access to justice, legality, proportionality) and the principle that clear language is required to abrogate fundamental rights.

Judicial deference and constitutional statutes

Certain statutes now receive the status of ‘constitutional statutes’ and are not subject to implied repeal, only express repeal (e.g., Human Rights Act 1998, European Communities Act 1972 (now repealed), devolution statutes). Courts will read later Acts compatibly with constitutional statutes where possible.

Worked Example 1.3

A statutory instrument made under the Food Safety Act is issued without the required 21-day notification to affected industry bodies, as stipulated in the Act. Retail groups challenge the SI.

Answer:
The SI is procedurally defective (procedural impropriety) because of the failure to fulfil the consultation or notification requirement. The courts may quash it as ultra vires for breach of the enabling Act’s process, even if the instrument was substantively lawful.

Exam Warning

Do not confuse the scrutiny of primary and secondary legislation. Courts may interpret and issue declarations of incompatibility for primary legislation but cannot strike it down. Courts may quash secondary legislation (SIs, regulations) if unlawful, including for being ultra vires, unreasonable, or in breach of the Human Rights Act.

Summary

Legislative scrutiny within the UK works on several interlocking levels to ensure legislative quality, accountability, and compliance with constitutional principles:

• Primary legislation (Acts of Parliament) must complete a multi-stage parliamentary process (including readings, committee, and report stage) in both Houses before becoming law.
• The House of Lords acts as a revising chamber, shaping the substance of legislation but ultimately subject to the will of the Commons through the Parliament Acts.
• Select committees, joint committees, and public bill committees provide informed analysis, specialist analysis, and line-by-line scrutiny throughout the legislative process.
• The government controls much of the legislative timetable, but scrutiny mechanisms and conventions protect against hasty or poorly considered law-making.
• Delegated legislation (SIs, regulations, rules, orders) is made under powers in primary legislation and is overseen by standing parliamentary procedures (affirmative, negative, and super-affirmative), parliamentary committees (especially the JCSI), and scrutiny in both Houses.
• Henry VIII clauses allow the government to amend or repeal primary legislation by SI, usually subject to more intense parliamentary scrutiny owing to the separation of powers concerns.
• Delegated legislation may be quashed or declared invalid by the courts for illegality, irrationality, procedural impropriety, or human rights incompatibility. Courts exercise restraint in reviewing primary legislation due to parliamentary sovereignty.
• Under the Human Rights Act 1998, courts must interpret legislation compatibly with ECHR rights "so far as possible." Where not possible, they can issue a declaration of incompatibility for Parliament to consider reform.
• Recent practice, including pre- and post-legislative scrutiny, select committee inquiries, and the use of enhanced procedures for controversial SIs, reflects the evolving nature of legislative scrutiny in response to complex modern governance.

Key Point Checklist

This article has covered the following key knowledge points:

• The multi-stage passage of primary legislation (including First Reading, Second Reading, Committee Stage, Report Stage, and Third Reading) in both Houses, with scope for debate and amendment.
• Detailed scrutiny and revision are most pronounced at the Committee Stage, which may be conducted by Public Bill Committees or in committee of the whole House.
• The House of Lords acts as an informed revising chamber, with its powers of veto curtailed by the Parliament Acts 1911 and 1949.
• Select Committees, Joint Committees, and ad hoc committees provide specialist knowledge and analytical assessment, both in pre-legislative and post-legislative stages.
• Delegated legislation is subject to parliamentary controls, including negative and affirmative resolution procedures, and enhanced procedures for significant legislative changes.
• The Joint Committee on Statutory Instruments provides technical scrutiny of SIs, while the House of Lords Secondary Legislation Scrutiny Committee assesses their policy impact.
• Henry VIII clauses permit the amendment of primary legislation by SI, but their use is viewed with caution due to constitutional concerns about accountability.
• Delegated legislation may be subject to judicial review for excess of powers, procedural flaws, irrationality, and incompatibility with human rights or retained EU law.
• Primary legislation is interpreted and applied by the judiciary but not subject to quashing by the courts except for incompatibility with retained EU law (for statutes predating Brexit) or where a declaration of incompatibility is issued under the Human Rights Act 1998.
• Ouster clauses are generally ineffective in preventing judicial review of delegated legislation that is unlawful.
• The Human Rights Act 1998 obliges courts to interpret legislation compatibly with Convention rights and empowers declarations of incompatibility for primary legislation.

Key Terms and Concepts

• Legislative scrutiny
• Committee of the Whole House
• Parliament Acts 1911 and 1949
• Select Committee
• Delegated Legislation
• Ultra Vires
• Henry VIII clause
• Judicial Review