Primary Legislation

Question 1

How is the Rule of Law relevant to primary legislation?

Answer 1

• Judges do not have ultimate power to adjudicate on legislation passed by government
• They can disapply acts which are inconsistent with Community Law (Factortame/Equal Opportunities Commission)
• They can make declarations of incompatibility on legislation which is contrary to convention rights - s.3(1) of the HRA 1998 i.e. Bellinger v Bellinger [2003]

Question 2

Does ‘Parliament’ Legislate?

Answer 2

• This is seen as a half-truth

- Whilst Parliament does legislate, government has a great deal of influence in the content and timing of legislation

Question 3

Why are fast-tracked bills an issue?

Answer 3

• Generally it is required that bills are debated at length in Parliament before they become acts
• ‘Consultation’ is a major aspect of the policymaking process

Question 4

What is the key practice of consultation?

Answer 4

• Firstly publishing a Green Paper, which outlines government’s initial view on a proposed policy
• Secondly publishing a White Paper, in which the firm plans of government are laid
• Finally a Bill may be passed into Parliament

Question 5

What are Command Papers?

Answer 5

-Consultation papers which are published formally, not just on the department’s website etc.

Question 6

What Problems have the Hansard Society found with the Consultation Process?

Answer 6

• Consultation is not the best way to influence policy as their length varies greatly
• Some departments simply go through the motions and are not open to consultation on new ideas

Question 7

What are the issues with Parliamentary Counsel?

Answer 7

• A question of legitimacy is raised; they have the ultimate say over what the Act will say but are unelected
• Their drafting is incomprehensible to non-lawyers
• Explanatory notes are provided but they are not of great use

Question 8

What are Framework Bills?

Answer 8

• Bills which set out the broad framework for the government’s policy
• The substantive details are to be filled in later on by delegated legislation

Question 9

Why are Framework Bills Controversial?

Answer 9

• They transfer a great deal of power to individual departments to create delegated legislation
• They add further to the suggestion that Parliament legislating is only a half-truth
• The acts themselves are very complicated and delegate more power than they ought to - worst of both worlds!

Question 10

What are the pros and cons of pre-legislative scrutiny of Bills?

Answer 10

• They ensure that Bills are thoroughly considered before being introduced
• They save time at a later process by being better scrutinised
• Kennon finds that pre-legislative scrutiny of bills controversial between parties never takes place

Question 11

What type of legislature is the UK Parliament and why is this?

Answer 11

• ‘Policy-influencing’
• It does not bring in its own proposals but works to debate and ratify policies made by government
• This is said by Blackburn

Question 12

What is the Legislative Process?

Answer 12

1. First Reading - a formality announcing that the bill will be published. Explanatory notes are issued
2. Second Reading - takes place 2-4 weeks following the first reading. An opportunity for MPs or peers to debate the general policy aims of the bill
3. Committee Stage - the bill is debated clause by clause in committee, the opposition is usually too weak to make amendments
4. Report and Third Reading - another opportunity for MPs or peers to press for amendments
5. Ping-pong - once the bill has been through both houses ping-pong of amendments and counter-amendments will take place before it can be presented for royal assent
6. Royal Assent - the final formality, royal assent is granted by the prerogative power of the queen, but is always granted by constitutional convention. The bill is now an Act
   * Victoria was the last monarch to give royal assent personally

Question 13

Which Diceyan Principle gives Parliament power to pass primary legislation?

Answer 13

-Parliamentary Sovereignty - Parliament can make or unmake any law it sees fit

Question 14

What happens with bills of first class constitutional importance?

Answer 14

• They should take their committee stage on the floor
• This enables more MPs to take part in the committee stage without changing the proportion of the parties
• There are issues with considering what a bill of first class constitutional importance actually is…

Question 15

What was at the heart of the issue in the Fire Brigades Union Case [1995]?

Answer 15

• The minister had decided he would not enact certain sections of the Criminal Justice Act 1988 which had not yet been brought into force
• He was not within his right to do this

Question 16

What is the Sewel Convention?

Answer 16

-Westminster may not legislate for devolved matters without the explicit consent of the devolved legislature