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Tuesday, March 01, 2005

Feel free to copy, there is no copyright on an anoneumouse montage.

How it Should be Done

Legislative process

Legislation has been described as "The Linguistic dialogue between Parliament and the Courts"; statutes are always talking (to the judges). Legislation stems from limiting the Royal Prerogative.

It is an express and formal laying down of the rules of conduct to be observed in the future, so legislation is normally prospective (applies in the future) and not retrospective. A retrospective law is generally considered unfair, because the act being penalised was lawful when committed.

Legislative procedure in a nutshell:

Manifesto

Green Paper

White Paper.

1st Reading

2nd Reading

Committee stage

Report Stage

3rd Reading....

Passed to Lords for similar procedure

Royal Assent

Manifesto

All political parties have a manifesto, which is their promise to the electorate of the actions they will take and the laws they will pass if they become the government. It is these promises that persuade us to vote for a party. Some parties are single-issue parties, for example, the United Kingdom Independence Party (UKIP) has one electoral promise and that is “...British withdrawal from the EU...” The manifesto of the elected party that contains some of the legislation that is to be enacted during their term of office. Not all their promises become law, when they get into office they are supplied detailed information by senior civil servants and then discover that the reforms are not realistic, or too expensive. Also, other laws will be enacted during a government's term of office because of unelected events, a war for example, or an unexpected ruling by the courts. This happened in 1996; the government were faced with a ruling by the House of Lords that an alleged fraud by a man called Preddy was not unlawful, the case was R v Preddy [1996], and led to the Theft (Amendment) Act 1996.

Queen’s Speech

The Queen's Speech at the State Opening of Parliament, in November announces the main Bills constituting the Government's legislative programme. The government actually writes the speech. The Queen in her speech refers to “My government”, which constitutionally is true; the party that has the most members of Parliament in an election forms the government on her request.

Government departments are responsible for starting legislation that is within their field of work, for example the Home Office is responsible for law and order and prepares legislation affecting the police. The civil servants in the departments prepare the draft ideas for the minister of government who is responsible for that department. At this stage, there may be some consultation by the government who may ask interested groups what their opinions are.

Green Paper

Green Papers are actually printed on white paper, and are tentative proposals issued by the appropriate Government Minister, they are consultation papers that, set out government proposals, which are still taking shape and seek comments from the public. There is no actual requirement for there to be a White or Green Paper before a Bill is introduced into Parliament.

The importance of consultation was seen when Prime Minister Blair, as part of a cabinet reshuffle attempted to abolish the role of the Lord Chancellor, without first consulting anyone. However, this could not happen without first dealing with over 500 statutes that referred to functions of the Lord Chancellor.

White Paper

Following the Green Paper, the Government will present to Parliament a “White Paper” which is a statement of policy and contains definite proposals for legislation and this is often published at the same time as the relevant bill. Some White Papers are consultation documents on these firm proposals. The consultation or discussion is with interested parties such as professional bodies, voluntary organisations and pressure groups. Private individuals may also respond.

Drafting

After consultation is completed highly skilled lawyers called Parliamentary Counsel (Draftsmen) will draft a bill. The process is called drafting; the Bill is then ready for scrutiny by both houses. A Cabinet Committee, made up of senior government ministers called the Legislation Committee, controls the legislative programme.

Bills

In order to become an Act of Parliament, a Bill must be passed by both Houses of Parliament and receive Royal Assent.

Acts of Parliament consist of the following main elements–

the Short Title – e.g. "House of Lords Act 1999";

the Long Title – e.g. "An Act to restrict membership of the House of Lords by virtue of a hereditary peerage; to make related provision about disqualifications for voting at elections to, and for membership of, the House of Commons; and for connected purposes." The long title describes the contents of the Act;

the sections – which contain the main provisions of the Act;

the Schedules – which contain further provisions of the Act, often of a more technical nature than those in the sections.

Bills contain the same elements, but “sections” of Bills are called “clauses” (although, somewhat perversely, divisions of clauses are called “subsections”).

The start and finish of the process are formalities. The first reading of a Public Bill is a formality; Royal Assent is a formality.

Public Bills can be introduced into either the House of Commons or the House of Lords.

Types of Bill

Public Bills

Most Bills are Public Bills that change the general law. The majority of Public Bills that become Acts of Parliament are introduced by a government minister and are known as government Bills.

Private Members' Bills

There are four types of these private Members’ bills. Few Private Members' Bills become laws; many are not even debated in the Commons.

(1) Ballot

In the Commons early in each session backbench MPs hold a ballot for the opportunity to introduce a Bill on one of the Fridays during the session when such Bills have precedence over government business. The first 20 MPs whose names are drawn win this privilege. (Each Member selects a number that is then put in a box in the form of a raffle ticket. The tickets are drawn out of the box by the Clerk Assistant in the Public Bill Office and announced by the Chairman of Ways and Means). The ten Members placed highest in the ballot may claim up to £200 expenses in drafting their bills. The figure was fixed in 1971 and has never been revised.

(2) Ten Minute Rule Bill

On most Tuesdays and Wednesdays when the Commons is sitting, an MP may seek to introduce a Bill under the 'ten minute rule'. This allows the proposer to make a brief speech in favour and an objector to speak briefly against it. This process is often used more as a way of making a point about the need to change the law on a particular matter rather than a serious attempt at legislation. The Bail (Amendment) Act 1993 was introduced in Parliament using this procedure; the Act gives the prosecution the right to appeal against the granting of bail.

Other Private Members bills are: (3) Presentation bills. (4) Private Members’ bills brought from the Lords.

Successful Private Members Bills

Some Bills tend to concern controversial subjects, upon which a Member or group of Members feel strongly. If any Member shouts "Object!" when the title of a bill is read, the second reading is adjourned, even if all the other Members should be in favour of the bill.

The following Bills were introduced as Private Members Bills and became Acts of Parliament.

Leo Absey: Sexual Offences Bill 1967 - legalised gay sex.

Sidney Silverman: Murder (Abolition of Death Penalty) Bill 1965 - Abolished Hanging:

David Steel: Abortion Bill 1967 - legalised abortion in some circumstances.

Janet Anderson: Protection From Harassment Bill 1997 – outlawed stalking

Stephen McCabe: Human Fertilisation and Embryology (Deceased Fathers) Bill 2003 - This Act contains provisions relating to the circumstances in which a man is treated in law as the father of a child where the child has resulted from certain fertility treatment undertaken after the man's death. This Act follows a High Court ruling that the Human Fertilisation and Embryology Act 1990 was incompatible with the European Convention on Human Rights. Diane Blood, who wanted the right to have her late partner legally recognised as the father of her children (born from his frozen sperm after his death) on their birth certificates, had brought the case. This Act amends the 1990 Act to ensure that domestic law complies with both the European Convention on Human Rights and the Human Rights Act).

Michael Foster: Wild Mammals (Hunting with Dogs) Bill was one of five Private Members Bills on the subject of hunting; it was defeated in the House of Lords. Eventually the government sponsored a Bill to honour its manifesto pledge to stop foxhunting.

Private Bills

Private Bills should not be confused with Private Members Bills. Private Bills are available to local authorities, universities or companies. The enable them to obtain powers for themselves in excess of, or in conflict with, the general law. Private Bills affect the interests of individuals, or particular localities, and do not involve matters of public policy for example various Railway Acts have dominated the lists of private Acts, but the Transport and Works Act 1992 has provided an alternative method of gaining the special powers and permissions they need.

The Bills are proposals for legislation affecting the powers of particular bodies, such as local authorities, or the rights of individuals. These are subject to a special form of parliamentary procedure. There are only a few private bills in each session.

Unlike Public Bills, Private Bills may be carried over from one session to the next.

Personal Private Bills

Personal private bills are very rare nowadays, but the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Act 1987, which allowed a marriage outside “permitted degrees”. Personal Bills always start in the Lords.

Hybrid bills

Hybrid bills are Public Bills that may affect the specific private rights of people or bodies. They are generally introduced by the Government, but are fairly rare. An example is the Bill that became the Channel Tunnel Act 1987, which enabled the construction of the Channel Tunnel Rail Link to proceed. This massive engineering undertaking required compulsory purchase provisions to buy land and houses that were in the path of the railway. As with Private Bills, the passage of such Bills through Parliament is governed by special procedures, which allow those affected to put their case.


First Reading

The First Reading of a Bill is a formality, which involves a member reading the title of the Bill; the First Reading takes place without debate. The First Reading is essentially an announcement that the bill has been introduced. Soon after the first reading copies of the bill published are available for members to read, they are also made available on the Parliament website.

There is a vote as to whether or not the Bill should continue usually by members shouting “Aye!” or “No!”. If there is a clear “Aye!”, then there is no formal vote and the Bill proceeds to its next stage, which is the Second Reading, and this usually takes place some weeks or months later.

Voting

If the Commons take a vote, the Members leave the chamber and walk past one of two “tellers”, who physically count each member who walks past.

Second reading

The Second Reading provides the first real occasion for debate on the general principles of a Bill; detailed discussion takes place during the committee stage. In the Commons, the Opposition will usually decide to vote against a Government Bill on its second reading, or to move an amendment to the motion that the Bill is read a second time - unless the Bill is non-controversial. On second reading debates, a government minister (often the senior minister) in the department responsible for the measure normally proposes the Bill. He or she outlines the main principles of the Bill and summarises the most important clauses. The official Opposition spokesperson then responds and during the debate the views of other Opposition parties and backbenchers is heard. The debate normally concludes with a response from another government minister and he or she deals with some of the major points raised in the debate. If the House votes against the Bill at second reading, the Bill can progress no further, but this virtually never happens.

Traditionally, the Second Reading was always taken on the floor of the House, but in recent years, some uncontroversial bills (e.g. Law Commission measures) have been referred to a Second Reading Committee; the House then accepts the Committee's report and passes a Second Reading motion without a formal debate.

The effect of Pepper v Hart

Following Pepper v Hart [1993] HL the legislature needs to indicate what the purpose of the legislation is, and to clarify the meaning of any provisions that may be ambiguous.



Committee stage House of Commons

When a Bill has passed its second reading in the House of Commons, it is usually referred to a standing committee “upstairs” for detailed examination. The committee consists of from 16 to 50 Mps, but usually only about 18. The Committee examines the clauses of the Bill line by line and detailed amendments are considered. The Bill’s opponents, seeking to emasculate or destroy it, propose some amendments but many are technical improvements and clarifications proposed by the government itself. Occasionally a Bill may be referred to the whole House, sitting in committee, for example, Bills of great constitutional importance or a Finance Bill. At the committee stage, MPs study the Bill in depth, dealing with each clause in turn, line by line. Whilst individual provisions may be altered, the main principle of the Bill is preserved.

Committee stage House of Lords

In the House of Lords, there are no second reading committees or standing committees. Bills normally go through the committee stage in a Committee of the whole House, although a few Bills are committed to committees of various kinds off the floor of the House.

Report stage

Any amendments made during the committee stage must be approved (or rejected) by the whole house during the report state. The report stage is a detailed debate where further amendments may be moved. This occurs on the Floor of the House (which means the main chamber) further amendments are discussed and made. In practice, it is very similar to the committee stage, but only amendments and not the clauses of a Bill are discussed. All members may speak and vote.

Third reading

The third reading a Bill often follows on immediately after the report stage. It is generally quite short – unless it is of constitutional importance - and the bill is reviewed in its final form including amendments made at earlier stages. Substantive amendments cannot be made at this stage to a Bill in the Commons. Then the final version of the bill is approved and passed by hand - bound in green ribbon - to the Lords, when the Lords return the bill it is bound in red ribbon.

In the House of Lords, broadly the same procedure is followed. One difference is the committee stage, which is normally a committee of the whole House of Lords and amendments can be made at Third Reading as well as at Committee and Report. If the House of Lords amend the Bill, it must be sent back to the Commons for Commons’ approval because both Houses must agree on the wording of the Bill.

Passage through the Lords

After passing its third reading a Bill is sent to the House of Lords. The role of the House of Lords is to act as a check on the Government’s power. The passage through the second House is not a formality, and Bills can be further amended. The Commons have certain contempt for the Lords and refer to it, not as the House of Lords, but “another place”.

Financial legislation is not scrutinised in detail by the Lords.

The Commons must agree amendments made by the Lords, or a compromise agreement reached, such that both Houses have agreed the same text, before a Bill can receive Royal Assent.

The Lords do not generally prevent Bills from the Commons becoming law, although they will often amend them and return them for further consideration by the Commons.

The assent of the Lords is not essential, subject to certain conditions, in the case of fiscal (money Bills). Bills dealing solely with taxation or expenditure must become law within one month of being sent to the Lords.

A Bill can start in Lords

A Bill can start in the Lords, but usually this procedure is reserved for non-controversial matters, or because it is the responsibility of the Lord Chancellor, e.g. Human Rights Act 1998 started in the Lords.

Most Government Bills introduced and passed in the Lords pass through the Commons without difficulty, but a Bill from the Lords, which proved unacceptable to the Commons, would not become law.

If, after the process of considering amendments, it proves impossible to reach agreement on a non-financial Bill, then the Bill may be lost.

Government (political) Bills start in the Commons. Bills of a less party-political nature often go to the Lords first. Bills with a mainly financial purpose are always introduced in the Commons, because a government minister in the Commons must introduce new taxation or public spending.

Programme and Guillotine Motions

These are devices for ensuring speedy and timely progress of a Bill through the various stages.

The Parliament Acts 1911 and 1949

After many clashes between the Lords and the Commons, matters came to a head in 1909 when the Lords rejected a Finance Bill. This led to the Parliament Act 1911, which was only passed by the Lords after a threat from the Commons that they would create several hundred new peers to ensure its safe passage.

By this Act, the Lords cannot reject a Bill, which the Speaker of the House of Commons has certified as a “Money Bill”. The Parliament Act 1949 further reduced the delaying power of the Lords, so the position now is that the Lords can only delay a Bill for about two years. In some circumstances, the Commons can present a Bill for Royal Assent after one year, even if the Lords object.

The Parliament Acts have only been used on the following occasions:

Government of Ireland Act 1914

Welsh Church Act 1914

Parliament Act 1949 (It was used in 1949 after the Lords rejected plans to nationalise the steel industry).

War Crimes Act 1991 (the first time the Conservatives used the Acts) to prosecute war criminals who were not UK subjects at the time of the offence.

European Parliamentary Elections Act 1999 (having party list not individual candidates for EU elections)

Sexual Offences (Amendment) Act 2000 (reducing the age of consent for gay sex to 16)

The Hunting Act (2004) (banning fox hunting and hare coursing)

An Act passed in this way has the unusual introduction "BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows:- "

Salisbury-Addison Conventions

If a provision is in Government’s manifesto, the Salisbury Conventions holds that the Lords should not oppose legislation to implement the provision. The reason is that the peers recognise that they are unelected and are said to have no “democratic mandate”.

An example was the rejection by the Lords of the Government's plans to repeal Section 2A of the Local Government Act 1986 (previously this was Section 28). Section 28, which has now been repealed by Sec 122 Local Government Act 2003, banned local authorities from promoting the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

Lengthy procedure

Passing an Act of Parliament is a lengthy procedure involving considerable scrutiny and debate

However, emergency legislation can be processed quickly (e.g. Football (Disorder) Act 2000)

A government with a secure majority can ensure its legislation passes, sometimes regardless of doubts as to its effectiveness (e.g. Dangerous Dogs Act 1991).

Royal Assent

When a Bill has been passed in identical terms in both Houses, it is presented for the Royal Assent. This is a formality marking the Bill's official passage into law.

The titles of Bills to be approved are read in both Houses, and then Royal Assent is achieved by quaint ceremony in the Lords. The Clerk of the Parliaments turns towards the Commons and pronounces, in Norman French the formula, "La Raine (or Le Roy) le veult" (the Queen wishes it).

Royal Assent has not been refused since Queen Anne refused it for a Bill to raise an army to sort disorder in Scotland (Scottish Militia Bill) on 11 March 1708, this was the last occasion on which it has proved necessary to use the ominous formula "La Raine (or LeRoy) s’avisera." (The Queen will consider it).

A popular misconception is that Bills are or were signed by the Sovereign in fact this has seldom happened, certainly not since the 16th Century. Between 1603 and 1849, the monarch signed no Bills at all. Before 1603, the Sovereign only sometimes signed the Acts. Royal Assent has, however been given in person, but since Queen Victoria, faced by a greater avalanche of legislation than any of her predecessors, was clearly unwilling to make frequent visits to Parliament, she eventually ceased to attend to give Royal Assents. Unless a Bill is urgent it is kept waiting until a number of Bills are ready for Royal Assent. The last occasion the Sovereign was present at the passing of an Act was 1854.

What are signed are either Letters Patent which allows the Speaker of the Commons and the Lords (the Lord Chancellor) to announce that the Queen has given her assent, or she signs a Commission which commands the Royal Commissioners to announce Royal Assent.

After Royal Assent, a Bill becomes part of the law of the land. It is then known as an Act of Parliament. Another misconception is the existence of “the statute book”; it is true that there are statute books of antiquity, but the expression simply means it becomes the law; there is no “statute book”.

Commencement of an Act

Once a Bill has passed all the stages it becomes an Act of Parliament on the day appointed by the Bill. However, it has become the practice to allow the minister responsible for the Bill to decide the day a Bill becomes an Act. For example, the Police and Criminal Evidence Act 1984 did not become effective until 1986; this allowed police forces to train officers in its provisions. Similarly, the Human Rights Act 1988 did not take effect until 2000, again to allow the training of those who were going to implement it and the appointment of new judges in the High Court who were expected to deal with problems by way of “Declarations of Incompatibility”. The Easter Act 1928 has never been brought into effect, but it remains an Act of Parliament.

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