(p. 27) 3. Law-making: authority and process
Chapter 2 considered a number of functions that law plays in the ordering of society. Here we consider how law is made in the United Kingdom. Before getting into the detail, we ask: what gives the law-making institutions their authority? What gives law-makers their legitimacy?
3.1 Introduction: power, legitimacy, and authority in the law-making process
One of the macro functions of law identified in Chapter 2 was support for the political order. Law provides much, if not all, of the legal framework within which power is exercised. But simply stating that constitutional principles provide governments or other executive agencies with the power to make law begs a more fundamental question: from where do these constitutional legal principles derive their authority?
The answer is far from easy. Different states base claims for the legitimacy of their law-makers on different theoretical foundations. In broad terms, however, law-makers may be said to derive their authority from two principal sources:
(1) the basic constitutional framework or constitutional settlement that operates within that country; and
(2) the underlying political ideology of that country.
The reasons why people are more or less willing to accept these as bases for the exercise of power are complex. One is that most people, while accepting that certain services such as education and health need to be provided, do not want to run them themselves. They are happy to let politicians and bureaucrats get on with the job. Furthermore, once a government has established a claim to exercise power, particularly coercive power, it invariably creates the machinery—police, security services, and the like—to enforce the law which results from the exercise of that power.
But it should always be remembered that even the most fundamental of constitutional arrangements fail if significant groups within a particular society find that constitutional basis unworkable. The fact that in some countries in the world there have been civil wars, that in others there have been coups d’état, demonstrates the point. The destruction of the Berlin Wall, the collapse of apartheid in South Africa, and more recently events in countries in the Middle East can all be cited as modern (p. 28) examples. Even countries that now enjoy the most stable and secure of constitutional arrangements, such as the United Kingdom or the United States, can trace their present situation to resistance to or rebellion against historically unacceptable constitutional arrangements.
In the United Kingdom, and in many other developed countries, that consent is more taken for granted than actively sought (save on particular issues which are the subject of referendums (see Box 3.1)). In these countries, free and regular elections are the primary mechanism through which continuing consent to govern is implied. What concerns many people today, particularly in countries where democratic process is well established, is that voter apathy weakens the legitimacy of law-making institutions.1 This leads some to argue that voting in elections should be made compulsory; this is already the law in Australia, for example. Whether or not this step is taken, it is vital that cynicism regarding politicians should not prevent citizens from participating in this fundamental constitutional process. It is also important that electoral processes are as efficient and corruption-free as possible.2
Referendums are a mechanism for giving the electorate a chance to vote on a specific question of policy. In countries, such as the United Kingdom, where referendums are neither mandatory nor binding, there nonetheless exists an unwritten convention that important constitutional changes are put to a referendum and that the result will be respected. Although rare, there have been a number of important referendums in recent years:
• In 2011, there was a referendum on whether the system of voting in General Elections should be changed from ‘first past the post’ to one involving an element of proportional representation. Even though proportional representation is used in a number of contexts already, including elections to the Scottish and Welsh Parliaments, the idea was rejected by the electorate in 2011.
• In 2014 Scotland held a referendum on whether it should leave the United Kingdom; although this was defeated, it led to a commitment by the Westminster government to devolve further power to the Scottish Parliament.
• In 2016 there was a referendum on whether the United Kingdom should leave the European Union. The majority was in favour of leaving, reversing a referendum on the same subject held in 1975. This has set in train a process whose detailed outcome is, at the time of writing, still far from clear.
(p. 29) Advocates of referendums argue that certain decisions are best taken out of the hands of representatives in Parliament and determined directly by the people. Critics argue that in a representative democracy, it is the job of politicians to take these decisions. Voters in a referendum are not sufficiently informed to make decisions on complicated or technical issues, being swayed by strong personalities and expensive advertising campaigns. Critics also argue that voter apathy may result in low turnout so that in reality the results of referendums do not reflect general public opinion. Although legally a referendum result is not binding on a government, nevertheless to ignore the outcome would usually be politically unthinkable.
A thoughtful analysis of the use of referendums, particularly in the UK context, can be found in the report of the Independent Commission on Referendums available at www.ucl.ac.uk/constitution-unit/research/electionsandreferendums/icreferendums.
Lastly, the authority and legitimacy of a country’s law-making institutions must not be squandered. Recent scandals concerning the expenses claimed by Members of Parliament (MPs) represented a serious challenge for the UK Parliament. The Parliamentary Standards Act 2009 was enacted to try to address the issue. It created the Independent Parliamentary Standards Authority and the Parliamentary Standards Commissioner, whose task is to monitor the propriety of MPs’ expense claims and other financial interests.
3.1.1 Constitutions and constitutionalism
One basis for the authority given to the law-makers can therefore be found in a country’s constitution and its related principles of constitutionalism. What are these?
In most countries there exists a written constitution or other form of ‘basic law’ that defines the powers of the law-making institutions of the country. The constitutional arrangements of the United Kingdom are unusual; there is no formal written constitution. Many of the most important constitutional principles are found not in any written document but in unwritten practice, known as constitutional conventions (see Boxes 3.2 and 3.3). (p. 30)
There is a substantial literature on constitutional conventions and the extent to which they have changed over the years. Some examples of constitutional conventions may be noted, as follows.
Constitutional monarchy. The theoretical Head of State remains the monarch. The principle of constitutional monarchy means that the Queen takes no active part in the running of the country. Although the parliamentary year starts with the ‘Queen’s speech’ and although bills are given ‘royal assent’, the Queen does not intervene in the politics of the law-making programme. The Queen is kept informed about what is happening in Parliament and, through audiences with the Prime Minister of the day, is briefed about significant developments. It would be surprising if, on occasion, she did not offer her views on particular issues. But the monarch is not the source of political decision-taking or law-making.
Prerogative powers. Nevertheless, there are still certain functions of government that are based not in legislative authority, but on the historic exercise of power by the monarch. These are known as ‘prerogative powers’. The most dramatic and controversial example is the power to go to war. This is exercised by ministers not under the authority of an Act of Parliament, but by exercise of prerogative powers. (In practice these days, governments do not go to war without ensuring that Parliament has at least had an opportunity to debate the merits of such action.) The Home Secretary’s ‘prerogative of mercy’ to reduce a sentence imposed by the courts after a criminal trial is another example. The ability to enter into international treaties is a third example. The government’s argument that it could start the process of quitting the EU by use of the prerogative was rejected by the Supreme Court in January 2017, on the ground that the prerogative could not be used to take away rights created by Parliament when it enacted the European Communities Act 1972. (See R (Miller) v Secretary of State for Exiting the European Union  UKSC 5, noted in my blog, www.martinpartington.com, February 2017.)
Cabinet government and collective responsibility. The very existence of the Cabinet—the central committee of ministers chaired by the Prime Minister, which decides the government’s legislative programme—is another aspect of the British Constitution based in convention, rather than legislation. The related doctrine of collective responsibility, whereby ministers who do not agree with the policy of the government as determined in Cabinet are supposed to resign, is also based in constitutional convention, not constitutional law.
Individual ministerial responsibility. Another constitutional convention is that ministers should take ultimate responsibility for what goes on in their departments. This means that they must answer questions in Parliament or select committees about the work of their departments. On occasion this may also lead ministers to resign, where something has gone very seriously wrong, though in practice this is now a rare occurrence.
These unwritten principles are nevertheless supplemented by an increasing number of statutory provisions that have constitutional effect (see 2.2.2). Devolution of powers to government in Scotland and Wales, human rights, and freedom of information have required legislation which has transformed the constitutional legal landscape. The Constitutional Reform Act 2005 went further, significantly changing the role of the (p. 31) Lord Chancellor, making the Lord Chief Justice the head of the judiciary, and creating the new Supreme Court.
A key outcome of the referendum on Scottish devolution was the promise that further powers would be devolved from the government in Westminster to the Scottish Parliament. Provision for this is in the Scotland Act 2016.
One noteworthy feature of the Act is that it enshrines in law a constitutional convention, which, as noted earlier, are usually unwritten rules of constitutional practice (see Box 3.3).
Legislating a constitutional convention
During the debate on what became the Scotland Act 1998, Lord Sewel indicated in the House of Lords (HL Deb vol 592 col 791) that ‘we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’.
Section 2 of the Scotland Act 2016 inserts a new subsection (8) into section 28 of the 1998 Act so it is recognized in statute that, although the sovereignty of the UK Parliament is unchanged by the legislative competence of the Scottish Parliament, the UK Parliament will not normally legislate for devolved matters in Scotland without the consent of the Scottish Parliament. A similar provision has been enacted relating to Wales—see section 2 of the Wales Act 2017.
For further details see www.legislation.gov.uk/ukpga/2016/11/contents/enacted; and www.legislation.gov.uk/ukpga/2017/4/introduction/enacted.
A number of important constitutional changes have been made in recent years, for example the creation of the Supreme Court (see 8.13.1) or the introduction of fixed-term (five-year) Parliaments (see Box 3.4). The relative ease with which important changes to the structure of government in the United Kingdom may be made arises from the fact that the United Kingdom does not have a written constitution. (p. 32)
Fixed-term Parliaments Act 2011
One peculiarity of the British system of government used to be that the duration of the Westminster Parliament—i.e. the length of time a government lasts following a general election—was not fixed. The Septennial Act 1715, as amended by the Parliament Act 1911, limited any Parliament to five years. If not dissolved at the end of the five-year period, it automatically expired. These provisions gave the Prime Minister of the day considerable flexibility on when he or she ‘goes to the country’—a decision that may well be determined by the state of the public opinion polls.
The Coalition government enacted the Fixed-term Parliaments Act 2011. This set down fixed days for polls for parliamentary general elections. The polling day for elections will usually be the first Thursday in May every five years. The first such polling day was 7 May 2015. Under the legislation, the Prime Minister has power to alter, by statutory instrument, the polling day for parliamentary general elections, but only to a day not more than two months earlier or later than the scheduled polling day.
The holding of early parliamentary general elections outside this time frame can be triggered either by a vote of no confidence in the government following which the House of Commons did not endorse a new government within 14 days, or a vote by at least two-thirds of all MPs in favour of an early election. The ease with which this can be achieved was revealed when Prime Minister Theresa May decided to hold an early election in June 2017. Where such an early election occurs, the next scheduled election after that will be five years from the previous first Thursday in May, i.e. in May 2022.
British constitutionalism—the principles which underpin the constitution—rests on three principal concepts: the sovereignty of Parliament, the rule of law, and the separation of powers. Definitions of these concepts have, over the years, been fiercely contested. For present purposes:
● The sovereignty of Parliament asserts that the ultimate legal authority for law-making in the United Kingdom is Parliament.
● The rule of law insists that power should not be exercised by persons acting by or on behalf of the state without their being able to point to legal authority for their actions. Further, the processes by which decisions are reached should be fair. Section 1 of the Constitutional Reform Act 2005 gives statutory recognition to the principle of the rule of law.
● The separation of powers suggests that, to prevent any particular arm of government from becoming too powerful, there should be separation between the legislative (law-making), executive, and judicial arms of government. Thereby each branch of government is subject to checks and balances. This in turn leads to the proposition that the judges (and by extension lawyers in general), must act independently of government—a principle also clearly recognized in the Constitutional Reform Act 2005, section 3.
These principles relate to the central issues of power: who may exercise it, how it can be controlled, and how those who exercise power can be called to account.
3.1.2 Political ideology
Stating these constitutional principles still leaves unanswered the question: what is the theoretical basis on which power to make law may be asserted by political (p. 33) institutions? To answer this, it is necessary to consider the underlying political ideology of the country.
In the United Kingdom, and many other countries, the currently dominant political ideology is representative democracy, expressed principally through the holding of regular elections. Democratic theory suggests that society is unable to function effectively if everyone retains their unique power to control their own life or the lives of others. Instead, political parties set out their ideas for the policies they would like to deliver in election manifestos. By electing MPs who are members of those political parties to represent the views of electors, individuals pass to those elected some of the control or sovereignty that gives them the authority to govern on behalf of the people. In practice, that authority extends not just to issues set out in manifestos, but to the much wider range of issues that inevitably arise during the course of any period of government.
Those in power are also subject to the principle of accountability. Thus politicians are regularly called to account when general elections are held. The electoral process gives those elected to political office their authority to make laws on behalf of the citizens of the country. But they know that if their actions are not approved of by the electorate they will be defeated at the next general election. They are also subject to accountability through the checks and balances that exist, both within Parliament (such as parliamentary debates or questions to ministers) and outside (including the essential part played by the press and other mass media in exposing things that go wrong within government).
22.214.171.124 Principles in practice
The application of these principles is not as clear in practice as theory might imply:
● First, in the British system, the work of Parliament is strictly controlled by the political party that forms the government of the day. There are very few issues on which MPs vote independently of their party. There is the occasional backbench revolt; and the occasional ‘free vote’ on a matter of conscience where the party ‘whip’ is not applied. But these are the exception, not the rule. (This control is weakened when, as at present, no single political party has an overall majority in the House of Commons.)
● Secondly, all legislation in the United Kingdom passes through not only the elected House of Commons, but also the non-elected House of Lords. Although the House of Lords rarely exercises the power it theoretically has to delay bills from becoming law, on many occasions the House of Lords amends, often very substantially, legislation coming to it from the House of Commons. The threat of delay may also lead to significant amendment or even the dropping of legislative proposals. While there is in the Commons a clear link between the democratic process of election and the outcomes of the legislative process, in the Lords this is not so.
● Thirdly, knowing the extent to which the electoral process actually represents the will of the people is very difficult. In the United Kingdom, the ‘first past the post’ voting system has meant that nearly all recently elected governments have (p. 34) attained power with significantly less than 50 per cent of the popular vote. This leads many, particularly those in the smaller parties who struggle to get elected under the present system, to argue that a fairer voting system would incorporate proportional representation, with seats in Parliament distributed in proportion to votes cast. The primary argument against this apparently attractive proposition is that this tends to lead to coalition governments, in which small minority parties acquire a disproportionately powerful position. Nevertheless, proportional representation has been introduced in the United Kingdom in the context of elections to the devolved Parliaments in Wales and Scotland as well as to the European Parliament. In 2011 the Liberal Democrat party tried to get the voting rules changed, but the public rejected the idea in a referendum.
● A fourth issue said to weaken the democratic process is a decline in the percentage of the population voting in elections. This has led to procedural changes making it easier for people to vote by post. There have also been suggestions that there should be electronic voting systems in supermarkets. There have even been calls to make voting compulsory, as happens in some other countries.
● Fifthly, there are important sources of law other than Parliament. In particular, judges in the higher courts have power to make new rules of law. They do this through the development of rules of ‘common law’—long-standing principles of law developed over the years, in some cases centuries (see 3.4). Yet judges are not elected; they do not get their authority from any theory of representative democracy. The legitimacy for their law-making is found in other constitutional principles, in particular the separation of powers. The judges are recognized to be both a part of the machinery of government and, at the same time, independent of it.
3.2 The law-making institutions in the UK and Europe
With these points in mind, we take a closer look at the functions of a number of the law-making institutions that exist in the United Kingdom and consider: (1) the British Parliament and central government; and (2) judges and the courts. Later in the chapter we discuss the impact of Europe on the law-making process in the United Kingdom and how this is likely to change following Brexit.
3.3 The British Parliament and central government
The principal law-making body in the United Kingdom is the British Parliament. Its legislative programme is at the heart of the law-making process. By no means all legislative measures are the subject of detailed parliamentary scrutiny (see Box 3.5), but the vast bulk of legislative measures derive their authority from the parliamentary process. Even the European measures that the British government is currently required to put into law have to have the stamp of parliamentary approval. (p. 35)
Statute law: the classification of legislative measures
The vast bulk of new law brought into effect in England is statute law, that is, law that has been enacted by Parliament following debate in the House of Commons and the House of Lords, or law made under the authority of statutes. Statute law comes in a variety of forms:
• primary legislation;
• secondary legislation;
• tertiary legislation; and
• (though not strictly statute law) ‘quasi-legislation’ or ‘soft law’.
Primary legislation comprises the Acts of Parliament that are passed by Parliament. Most Acts are ‘Public General Acts’, which apply generally in England. They also apply in Wales if they relate to matters not devolved to the Welsh Assembly Government. They often apply in Scotland, though not on matters devolved to the Scottish Parliament. (Each Act contains a section detailing the precise extent of its coverage.) Some are ‘Local or Personal Acts’ applying only in particular localities or to specific people (see further Box 3.6).
Primary legislation is supplemented by a vast body of secondary legislation—regulations and orders made under the authority of an Act of Parliament. These are known generically as statutory instruments. There are typically more than 3,000 of these made each year, running to many thousands of pages of text. They are not subject to detailed parliamentary scrutiny, though in many cases statutory instruments cannot be made by the government without consultation with specialist advisory committees (see Box 3.9).
Besides primary and secondary legislation, there is a huge amount of tertiary legislation—legislative instruments, made under the authority of an Act of Parliament, but which are subject to no parliamentary scrutiny at all. For example, in housing law, numerous powers are given to ministers to issue ‘directions’ or other instruments, drafted in the form of legislation and which effectively have the force of law, but which are simply issued by the government department in question. Similar examples are found in many other areas of government.
There is, lastly, a fourth category of instrument, sometimes referred to as quasi-legislation or soft law, which comprises statements or codes of good practice or guidance. These may be made under the authority of an Act of Parliament and are in some cases subject to parliamentary approval. But, as with tertiary legislation, they get no detailed parliamentary discussion. Examples include the Highway Code or the codes of practice relating to police behaviour made under the Police and Criminal Evidence Act 1984 (see Chapter 5). Many other examples could be given.
There is a practical problem with tertiary and quasi-legislation. It is not published through the National Archive—the official outlet for legislative publications. An important issue of principle flows from this. It is frequently asserted that because legislation is published by a single authoritative source, ‘everyone is deemed to know the law’. Such a claim is simply not sustainable in the case of such instruments.
Acts of Parliament: Public General Acts and Local and Personal Acts
Most Acts of Parliament are Public General Acts (see Box 3.5).
Local and Personal Acts (together called ‘Private Acts’) apply only to a local area (say a town), to a specific institution (say a body such as a university), or to a particular individual. The procedure by which Local and Personal Acts become law is quite different from the procedure by which Public General Acts become law. The detail is not considered here, but in essence such Acts use a procedure involving committees of the House, not the full House of Commons.
Private Acts must be sharply distinguished from Private Members’ Acts (see Box 3.7).
The legislative process has undergone significant change in recent years—an example of the often understated dynamism that characterizes many developments in the English legal system. The discussion here focuses on the process of enacting an Act of Parliament. Apart from the inherent importance of the subject, there is a good practical reason why lawyers need to know about this. There are now circumstances—albeit limited—in which what was said about a bill as it passed through Parliament may be used in court when dealing with a question of statutory interpretation (see Pepper v Hart  AC 593 (HL); see further 3.4.2).
3.3.1 Primary legislation
All Acts of Parliament start as bills. Bills are accompanied by an Explanatory Note, drafted by the bill’s sponsors, which sets out the background to the bill and explains what it is trying to achieve. (Since 1999, Explanatory Notes have also been published alongside new Acts of Parliament.) These notes are key to any public understanding of legislation. They are written in plain language and explain the policy and legal context to non-lawyers. All bills and notes are published on the internet. Four distinct types of bill may be identified:
(1) Government bills, designed to advance the political programme of the party in government. They are sponsored by government ministers and absorb the bulk of parliamentary time spent on legislation.
(2) Law reform bills, arising from recommendations made by law reform agencies, such as the Law Commission (see further 4.2.6). These are less politically controversial.
(3) Consolidation bills, which bring together into a single place a wide range of legislative provisions scattered through many Acts of Parliament and thus difficult to find. These measures do not introduce new law but tidy up and re-present what is already on the statute book. Failure to consolidate adds to the complexity (p. 37) of carrying out legal research, since printed versions of Acts of Parliament that have been substantially amended can be very misleading. New computer technology makes it easier to keep texts of statutes up to date. In the United Kingdom this is achieved in part by commercial legal information providers such as Westlaw, and in part by government through its Statute Law Database. This does not reduce the need for regular consolidation bills. A special procedure enables these bills to reach the statute book without going through the full parliamentary process discussed later.
(4) Private Members’ bills, which are a special type of bill introduced by backbench MPs (see Box 3.7).
Private Members’ Acts
Private Members’ Acts start as bills introduced by backbench MPs who are not members of the government. They are subject to special rules. The most important is that they cannot contain any provision that would result in the expenditure of public money.
The backbenchers who bring these bills forward are selected following a ballot—a process that takes place early in each parliamentary session. Private Members’ bills are debated only on Fridays—a day when the pressure of government business is usually less. Twenty private members are able to introduce their measures following the ballot; those near the top of the list have a greater chance of seeing their bills introduced into law. For a bill to have any chance of success it must either be supported by the government, or at least not actively resisted by the government.
The Housing (Homeless Persons) Bill 1976 is a good example: as originally drafted it would have given a range of legal rights to the homeless that the government regarded as wholly unacceptable. In that case, the government offered the bill’s sponsor, the late Stephen Ross, an alternative bill, which he took forward. With this government support the bill passed into law.
Private Members’ bills can be used to introduce measures on which there are fierce divisions of opinion, but where those divisions are not the subject of party-political debate. An example is the Abortion Act 1967, which was a very important, obviously controversial, measure introduced by David Steel, to which none of the main political parties wished to tie their political reputations. The willingness of a private member to take such an issue forward means that the political parties, in particular the government party, can to an extent distance themselves from the issue.
Over the last 15 years or so, about 8 out of 20 Private Members’ bills have reached the statute book each year. There are three other means by which backbenchers may attempt to introduce legislation: ‘presentation bills’, Ten Minute Rule bills, and bills from individual members of the House of Lords. The numbers of such bills passing into law are tiny and are not considered further here.
(p. 38) 126.96.36.199 Preparatory stages
Before being presented to Parliament, many bills start the process of becoming law by being included in the political manifesto of the party that won the last general election. Political parties want power to turn their ideas into legislative form. Issues that involve a good deal of specialist know-how are frequently the subject of consultation with persons or other agencies outside government. There are various ways in which this is carried out.
Commonly, ideas for new policies and related changes in the law are floated in green papers, so called because years ago they were published with green covers. (These days, image-conscious governments produce green papers with multi-coloured covers.) They set out policy proposals and ask the public for comments on them. The government often attempts to steer responses by indicating its preliminary view on what should happen.
Following initial consultation, further and firmer statements of the government’s policy objectives may be published in white papers (which are also no longer white) that summarize responses to consultations and set out what the government plans to do.
It used to be the case that all bills had to be presented first to Parliament. However, the wisdom of this principle became subject to increasing criticism.
As the result of important procedural changes introduced in 1997, a number of bills are now published in draft and circulated for comment and criticism by those most likely to be affected, prior to their formal introduction into Parliament. They are usually the subject of an inquiry by one of the select committees of the House of Commons or the House of Lords, occasionally a joint committee of both Houses, which involves taking evidence—oral and written—from those likely to be affected by the proposed legislation. The reports arising from these inquiries can lead to changes being made to the bill before it is introduced formally into Parliament. (The Investigatory Powers Bill 2015 was subject to this procedure.) On occasion, a draft bill is abandoned completely.
188.8.131.52 The Queen’s speech
Each session of Parliament opens, usually in May, with the Queen’s speech. (Following the 2017 General Election, the Queen’s Speech was delivered in June. With Brexit as the dominant legislative issue, it was decided that the parliamentary session should run for two years until May 2019.) Written by the government, the speech sets out the legislative priorities for the coming parliamentary session. Getting a slot in the Queen’s speech is a key objective for ministers seeking to introduce a bill into Parliament. Without it, their legislative ambitions cannot be advanced. The only exception is emergency legislation needed to deal with an important but unexpected issue. The contents of the Queen’s speech are determined by a Cabinet committee.
184.108.40.206 Parliamentary stages
Once a bill’s policy objectives have been determined by government, those policies are transformed into legislative form—the bill—by specially trained lawyers known (p. 39)
as parliamentary counsel. Most measures designed to advance the political objectives of the government are presented first in the House of Commons; less controversial measures (including consolidation bills) may start in the House of Lords. Diagram 3.1 sets out the different stages.
The first reading is purely formal. The House orders the bill to be printed. No further progress can be made until it has been printed.
At the second reading, the minister responsible sets out the main policy objectives; the opposition parties set out their objections. This is followed by comments from other MPs. At the end of the debate, there is a summing-up by a government minister. It is rare for a government bill to be defeated at this stage, though this happened to the Shops Bill 1986, designed to deregulate Sunday trading. If a bill requires either the raising of taxation or the expenditure of public money, Parliament also has to pass (respectively) a ‘ways and means’ resolution or a ‘money’ resolution.
The committee stage involves detailed scrutiny of the text. This is carried out by one of several public bill committees of MPs, which range in size from 16 to 50. These committees have power to take written and oral evidence from officials and experts outside Parliament. They consider the clauses of the bill, as drafted; consider amendments proposed to those clauses; and determine whether or not such amendments should or should not be accepted. This is a highly ‘political’ stage in the legislative process. Not only do opposition members put down amendments that they have thought of, but members of public bill committees are also subject to intense lobbying from groups outside Parliament seeking to persuade them to put down amendments that reflect their interests. (These groups also exert pressure in other ways, through press releases, interviews on TV and radio, social media and so on.)
Given that the governing party always has a majority on the committee, and that MPs from the government side are instructed to vote as the whip tells them, the government usually either gets its way or makes only those concessions which it is prepared to accept. Nevertheless, bills are frequently amended and often emerge from the overall process significantly changed from the form in which they were first advanced. Very occasionally, where a bill is being rushed through Parliament or involves significant constitutional change, the committee stage takes place in the whole House.
(p. 40) The report stage is where what happened to the bill in committee is reported to the main House. This gives the government the chance to undo anything that the committee may have done to the bill which the government does not like. It is often the point at which amendments which the government itself wishes to bring into the bill (perhaps following debate in committee) are introduced.
Lastly, the third reading is a more formal stage in which the bill in its amended form is brought together but no more amendments are made. The bill then goes to the House of Lords, where it begins a similar process.
The progress of a bill through Parliament is regulated by a programme order, formally approved by Parliament following the second reading. This sets out the dates by which each stage of the bill must be completed. One effect of programme orders is that, not infrequently, substantial parts of a bill may pass into law without any debate.
220.127.116.11 The House of Lords
Procedure in the House of Lords is broadly similar to that in the Commons. The major differences are:
(1) the committee stage is taken on the floor of the House. There are no separate committees of peers which report back to the House as a whole;
(2) there is no programme order, and thus debate on amendments is not restricted; and
(3) amendments can be made at the third reading stage.
These potentially can be, and on occasion are, a source of delay. In theory the House of Lords could wreck or seriously delay legislation. But peers are aware that, given the House of Lords’ status as a non-elected legislative body, the ultimate decision on legislation must lie with the elected House of Commons. While they do not in practice wholly destroy bills, there have been a number of occasions in recent years where they have secured significant amendments or even caused a bill to be withdrawn. (For a case study on the work of the House of Lords, see Box 3.8.)
House of Lords consideration of the Constitutional Reform Bill 2004
In June 2003, the then Labour government decided it wanted to abolish the post of Lord Chancellor, establish a new mechanism for the appointment of judges, and create a new Supreme Court. This generated considerable controversy, not least among the senior judiciary who feared that such a step could undermine the conventional constitutional balance of power between the judicial and executive branches of government. It was also discovered that, in any event, simple abolition of the office of Lord Chancellor without legislation was not technically possible.
There followed a period of public consultation on the three principal elements of reform, and the government published summaries of the responses on 26 January 2004. (p. 41) The Supreme Court and judicial appointments issues were also considered by the Constitutional Affairs Committee of the House of Commons, which reported on 3 February 2004. One of its recommendations was that the Constitutional Reform Bill would be ‘a clear candidate for examination in draft’. A number of speakers in the House of Lords on 12 February 2004 made the same point.
Nevertheless, the government decided to introduce the Constitutional Reform Bill into the House of Lords without prior discussion. It became clear that, such was the degree of opposition to the bill, it stood little chance of being passed by the House of Lords. However, the Lords was also conscious that to deny progress to what the government regarded as an important measure would be a risky step to take.
The compromise was to ‘rediscover’ a procedure—not used in relation to a government bill for about 90 years—of referring the bill to a specially constituted select committee of the House of Lords. The Committee spent nine days hearing evidence and a further 11 days deliberating. It made numerous drafting changes to the bill, though on the two main issues—abolition of the post of Lord Chancellor and creation of the Supreme Court—the committee remained divided.
The effect of the process was that people outside Parliament had a chance to comment on the bill. The Committee also made detailed changes to the bill, as public bill committees of the House of Commons do.
Although the select committee did not agree on everything, the bill, as amended, was recommitted to the House of Lords, from which it finally emerged as the Constitutional Reform Act 2005.
One of the most important features of the select committee’s report is that it published the hitherto unpublished agreement reached by the Lord Chancellor and the Lord Chief Justice on the guarantees needed to ensure the continuing independence of the judiciary. For further information about the concordat, as the agreement is known, see 4.2.3.
Once the Lords’ stages are complete, there is a further process in the Commons and the Lords for all the amendments to be agreed to produce a single version of the text. Particularly towards the end of the parliamentary year, this can lead to dramatic horse-trading (called, unbelievably, ‘ping-pong’) between Lords and Commons, especially where measures are very controversial. In the last resort, the House of Lords has power under the Parliament Act 1911 to delay a Commons bill (though not a money bill) for up to one year. If there is an ultimate impasse, then the view of the elected legislature, the House of Commons, prevails. The most recent occasion on which the Parliament Act was invoked was in relation to the passing of the Hunting Act 2004.
Carry forward enables a bill to be carried forward from one parliamentary session to the next. However, bills that are not enacted before a general election is held cannot be carried forward to the new Parliament, even if the new government is formed by the same political party as the outgoing government. In such cases, the bill must start the parliamentary process afresh.
(p. 42) 18.104.22.168 Royal assent and commencement
Lastly comes royal assent. This has not been withheld since 1707, but, reflecting the fact that the United Kingdom is a constitutional monarchy, remains a formal step that has to be completed. It is at this point that the clauses in the bill become the sections in the Act.
The mere fact that an Act has completed the legislative process does not mean it becomes effective at once. Commonly, new administrative arrangements have to be made before an Act can become operational. In such cases, the legislation is effective only when a commencement order—a special type of statutory instrument (see 3.3.2)—is made. (The Easter Act 1928 has still not been brought into force.) It is essential that those who wish to use new rules of law discover whether or not statutory provisions are in force. This can involve difficult detailed research. However, the availability of statutes online, through legislation database services such as Westlaw or LexisNexis and the government Statute Law Database, has made it easier to discover whether new legislation is in force.
22.214.171.124 Reports of debates
The debates on all the parliamentary stages are the subject of verbatim reporting in the Official Reports of the Houses of Parliament (known collectively as Hansard). Thus it is possible to research what was said and by whom at each stage of the parliamentary process. These reports also detail how MPs voted. These reports are available online.
126.96.36.199 English votes for English laws (EVEL)
An important outcome of the referendum on Scottish devolution was that the then Prime Minister, David Cameron, pledged to introduce the principle of English votes for English laws. This would mean that for legislative proposals that would only affect England (or in some cases England and Wales), MPs from other parts of the UK would have their rights to vote restricted. Finding a way of putting this principle into practice proved to be extremely controversial.
Changes to parliamentary procedure to bring the principle into effect were agreed on 22 October 2015. The changes are extremely complex.3 The House of Commons Procedure Committee will at some stage undertake a review of how these procedures are operating in practice.
3.3.2 Secondary legislation
Because of the time needed to ensure the passage of legislation through Parliament, modern Acts of Parliament tend to contain the essential principles of legislation only. The detail is filled in by secondary legislation made under the authority of the Act, but which is not subject to the full parliamentary scrutiny that a bill faces. Secondary legislation is technically known as statutory instruments, which come in two forms, regulations (the most common) and orders.
(p. 43) Underpinning the creation of secondary legislation are a number of controls designed to ensure that governments only introduce measures for which they have authority.
(1) Regulations are subject to formal vetting by the Joint Committee on Statutory Instruments.
(2) Many categories of statutory instruments also have to be shown in draft to particular bodies or organizations detailed in the ‘parent’ Act. There are governmental advisory committees which have the specific task of commenting on and vetting proposed regulations (see Box 3.9). Some parent Acts require the government to consult not just with a specific nominated body, but with ‘such bodies as appear to have an interest in the legislation’. This is code for requiring the government to discuss the content of proposed delegated legislation with a range of interested groups.
(3) There is the potential for some parliamentary input, though this rarely happens. All regulations are subject either to a negative resolution procedure or to an affirmative resolution procedure. (Two particular types of statutory instrument, commencement orders—which bring Acts of Parliament, or parts of Acts of Parliament into effect—and orders in council, are not subject to any parliamentary procedure.) The negative resolution procedure is the more common. It means that, once laid before Parliament, a new regulation becomes effective on the date stated in the regulation, unless Parliament passes a resolution stating that the regulations should be annulled. Given that regulations are introduced by government and that (usually) the government has a majority in the House of Commons, annulment happens very infrequently.
By contrast, the affirmative resolution procedure means that a regulation laid before Parliament cannot become effective unless Parliament adopts a resolution that states positively that the regulation should become effective. This process does not give the House of Commons much control over the detail, since debate is permitted only on the underlying issues, not specific details. But affirmative resolution debates give some opportunity for opposition parties to make broad political points about the regulation in question. An example is found in the annual uprating of social security benefits. The relevant regulations are subject to the affirmative resolution procedure. Debate on whether the new amounts should be 50p more or less is not permitted; but general debate about social security provision and social welfare policy is allowed.
(4) In an extreme case, the validity of a statutory instrument may be challenged in the courts and, if found to be ultra vires (outside the legal framework provided by the parent Act), will be declared by the courts to be a nullity. (See 6.3.4.) (p. 44)
Case study: consultation on regulations: the case of social security
An example of the use of a specialist committee to review delegated legislation is found in the work of the Social Security Advisory Committee, which looks at draft regulations relating to social security. It not only considers the proposals, but also consults on them with a wide range of bodies and pressure groups outside government. It reflects on these comments before making its own report to the government. The government then decides whether or not to accept the advice of its Committee.
When it brings forward the final version of the regulations, the government is required to publish a special report which not only reproduces the report from the Advisory Committee, but also details why the government has (or more often has not) followed the advice of the Committee.
This represents a particular form of accountability which to some extent replaces normal parliamentary debate; arguably it is more relevant since most of those consulted have a specialist interest in and knowledge of the area. This is a model that, it has been forcefully argued, should apply in other regulation-making contexts.
For more information go to www.gov.uk/government/organisations/social-security-advisory-committee.
3.3.3 Amending legislation
The process of amending legislation is usually done by passing a new Act that alters an Act already on the statute book. Thus time for amending legislation must find a slot in the legislative programme. On occasion, ministers have sought to make their lives easier by providing that provisions in an Act of Parliament can be amended by statutory instrument, thereby avoiding Parliament. These provisions are called ‘Henry VIII clauses’, reflecting the propensity of that monarch to ride roughshod over Parliament. However, they are not regarded with favour.
One consequence of the passing of amending legislation is that it makes it harder to find out what the current law is on a particular subject. The Statute Law Database provides details of how and when legislation has been amended. It is not yet complete, in the sense that not all legislation on the statute book is currently in the database; but its scope is expanding. Commercial legal databases such as Westlaw, LexisNexis, and Justcite also contain statutes as amended.
3.3.4 Regulatory reform
Over the last 20 years, it has been accepted that where legislation imposes unnecessary regulatory burdens on business or individuals, they should be able to be removed without waiting for a full parliamentary legislative slot. The first Act to move in this direction was the Deregulation and Contracting-Out Act 1994. It provided that, subject to (p. 45) detailed safeguards, ministers could lay orders before Parliament that had the effect of amending legislation. The power was used 48 times to remove burdens that might not otherwise have received parliamentary time.
The Regulatory Reform Act 2001 gave ministers wider powers to lay orders before Parliament to amend legislation, again so long as any such amendment removed burdens. This Act was replaced by the Legislative and Regulatory Reform Act 2006, which came into force at the start of 2007. Further detailed amendment is found in the Enterprise and Regulatory Reform Act 2013.
The passage of all these bills was very controversial. MPs and commentators outside government argued that the powers could allow ministers to make significant legislative change without exposing their arguments to parliamentary scrutiny. Many of their fears were, frankly, overstated; ministers’ powers to amend legislation are significantly circumscribed (see Box 3.10 for further detail).
Legislative and Regulatory Reform Act 2006: scope of the Act
The Act gives ministers power to make any provision by an order, called a legislative reform order, that would remove or reduce any burden, or remove or reduce the overall burdens, to which any person is subject as a direct or indirect result of any legislation. Burdens are defined as: a financial cost; an administrative inconvenience; an obstacle to efficiency, productivity, or profitability; or a sanction, criminal or otherwise, which affects the carrying on of any lawful activity. Each of these concepts is defined further in the legislation. Ministers can only use their power to reform an area where there is already a legislative framework. It could be used to replace one statutory regime with another where this removes or reduces burdens. But it cannot be used to introduce an entirely new regulatory regime. So, for example, it would not be possible to create an entirely new legislative framework relating to a new area of consumer protection, employment rights, or environmental protection simply because there are considered to be good policy reasons for doing so.
Ministers are also given power to amend the powers of regulators so that their functions comply more closely with defined Principles of Good Regulation. These are that regulatory activities should be carried out in a way that is transparent, accountable, proportionate, and consistent, and should be targeted only at cases in which action is needed.
Save where a minister wants simply to restate existing law, he or she must meet six conditions:
(1) There are no non-legislative solutions that will satisfactorily remedy the difficulty that the order is intended to address.
(2) The effect of the provision made by the order is proportionate to its policy objective.
(3) The provision made by the order, taken as a whole, strikes a fair balance between the public interest and the interests of the persons adversely affected by the order.
(p. 46) (4) The provision made by the order does not remove any necessary protection.
(5) The provision made by the order will not prevent any person from continuing to exercise any right or freedom that he or she might reasonably expect to continue to exercise.
(6) The provision made by the order is not constitutionally significant.
The Act sets out the procedures ministers must follow. First, the minister must consult on his proposals. He must then lay a draft order and an explanatory document before Parliament. The order must be made by statutory instrument in accordance with the negative resolution procedure, or the affirmative resolution procedure (see 3.3.2), or the super-affirmative resolution procedure. The minister’s recommended procedure applies unless either House of Parliament requires a higher level of procedure.
The super-affirmative procedure affords greater parliamentary scrutiny than the ordinary affirmative resolution orders procedure. First, the minister must lay a proposed legislative reform order before Parliament in draft, together with a full explanatory document. Following a 60-day period of parliamentary consideration, during which time the proposal is referred automatically and simultaneously to two parliamentary committees, the committees make their first reports to their respective Houses. If the reports are favourable, the next stage is for the minister formally to lay a draft order in each House, along with an explanation of any changes made to the original draft proposal. If the minister accepts any changes proposed to the draft order by the committees or others between this stage and the final vote on the order, he must formally withdraw the draft order he has laid and replace it with another which incorporates the changes. The ability to make changes (minor or otherwise) to the draft order is a key feature of the order-making power, which is not available to statutory instruments dealt with in the usual way.
The final procedural stages for parliamentary scrutiny of draft regulatory reform orders are set out in standing orders. The Commons committee produces a report on the draft order within 15 days. The Lords committee has no set time period but usually reports within the same time period. Each House then considers the relevant committee report on the draft order (this is the main feature that makes this form of parliamentary consideration ‘super-affirmative’).
These powers have not been used extensively. Only one such order was made in 2016, 2017, and 2018.
3.3.5 Post-legislative implementation review
This idea, which had been floating around academic circles for many years, is fairly simple. After a period following the enactment of a new Act of Parliament, is it not sensible to ask: is the Act working as it was intended to do?
(p. 47) The House of Lords Constitution Committee considered it in 2004. Things moved forward significantly when the then Labour administration asked the Law Commission to think how it could be turned into a practical reality. Its report was published in 2006; the then government’s response was published in 2008. The Law Commission’s report and the government’s response can be accessed at: www.lawcom.gov.uk/project/post-legislative-scrutiny/.
Since then there has been a modest programme of post-legislative implementation reviews.4 The key features of the programme are:
● not all Acts of Parliament are subject to review;
● the review process is started by the preparation within the government department concerned of a memorandum on the Act of Parliament under review;
● this is presented to the relevant departmental select committee who then invite wider observations and inputs from people and bodies outside government on the Act’s operation. They in turn report back to the government on their findings and recommendations.
It is not thought that the impact of such reviews has been very dramatic. Certainly no legislation has been repealed as a result of scrutiny.
3.3.6 The use of parliamentary time: a comment
Given the domination of the parliamentary timetable by the government machine, it is sometimes asked whether the amount of time spent debating proposals in relation to which the outcome is totally or largely predictable is worthwhile. Elected MPs do not, in general, have any detailed control over the content of Acts of Parliament; indeed, there is no guarantee that all clauses in bills are subject to considered debate. The vast bulk of legislation—secondary legislation—reaches the statute book with no consideration by MPs at all.
Nevertheless, it should be remembered that much of the detail of the parliamentary process was developed in an age when the party machine and the discipline over the parliamentary party provided by the whips were not as they are today. The ability of a government with an overall majority to dominate the legislative process is perhaps the best reason for retaining the detailed process that currently exists. This arises from the very political theories, noted earlier, that underpin the British Constitution and its system of government. Although ministers may be able to achieve their desired goals in the end, the process ensures that they will have been subject to challenge by elected MPs. Without these procedures it would be far harder for ministers seeking to defend a particular measure to claim legitimacy for their legislative acts. Where the government lacks an overall majority, as in the current (2019) Parliament, legislative outcomes may be less certain.
(p. 48) 3.4 Judges and the courts
It should be stressed at the outset that only judges in the higher courts—the Supreme Court, the Court of Appeal, and the High Court—have authority to make law (see further Chapter 8). There are three principal ways in which English judges develop English law:
● Development of the common law. England is a ‘common law’ country. This means that many of the principal doctrines of law have been established, not by Parliament, but through cases determined in the higher courts. Many examples of judicial law-making can be given:
- the fundamental law of contract, on which much economic activity is based;
- the law of negligence, which relates (among other matters) to dealing with the aftermath of accidents and other forms of injury; and
- the development of the principles of judicial review, which is the basis on which judicial control of the administrative arm of government is achieved.
● Statutory interpretation. Courts play a crucial role in the interpretation of the statutes that Parliament has enacted.
● Procedural law. Courts also make important contributions to the development of procedures that the courts must follow.
3.4.1 Development of the common law
It seems odd today, but judicial power to make law was, for many years, not acknowledged. Judges said their power was merely to ‘discover’ basic principles of the common law. No one seriously believes this now; judges do make law. There is, however, often unease about the theoretical basis for this power. Certainly it cannot derive from any theory of representative democracy; judges are not elected. Rather, the power of the judiciary depends on the doctrine of the separation of powers, that to prevent dictatorial powers from being asserted by any one branch of government there must be checks and balances in the constitution. Judges have the primary task of ensuring adherence by ministers and other agents of the state to the principles of the rule of law. This cannot be achieved without an independent judiciary (see further Box 3.11).
Independence of the judiciary
The key claim made for the judges, indeed for adjudicators of all kinds (see Chapter 9), is that they must not only be, but also be seen to be, independent. Judicial independence relates centrally to the constitutional function of judges in interpreting and applying law outside the constraints of internal government departmental policies. Judges and adjudicators not perceived as independent are fatally compromised in the eyes of the public, particularly by those whose disputes are being resolved by them. One of the (p. 49) strong claims for adjudicators in the English legal system is that, with rare exceptions, they both appear to be independent and do in fact act independently. This is not to say that they may not bring their own views of the world into play when reaching decisions or determining facts. But claims of corruption of those who hold judicial office—which would undermine judicial independence—are not heard in England.
The Constitutional Reform Act 2005 made judicial independence, for the first time, subject to statutory protection. Section 3 states, in part:
(1) The Lord Chancellor, other ministers of the Crown, and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary . . .
(2) The following particular duties are imposed for the purpose of upholding that independence.
(3) The Lord Chancellor and other ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.
(4) The Lord Chancellor must have regard to—
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;
(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.
Occasionally you hear government ministers criticizing the senior judiciary. There have also been cases where the press have been not simply critical but abusive of the judiciary. In two important lectures delivered by the recently retired Lord Chief Justice, Sir John Thomas, he noted the importance of an independent judiciary in supporting the rule of law, and argued that abuse of the judiciary could undermine its constitutional standing. On such occasions, he made it clear that the Lord Chancellor should remember his/her obligations under section 3 of the Constitutional Reform Act, 2005.5
The law-making powers of the judiciary are supported by two other fundamental principles: the hierarchical structure of the courts, and the doctrine of precedent.
188.8.131.52 The hierarchical structure of the courts
The idea of courts being arranged within a hierarchical framework is quite straightforward. The courts are organized on the basis of seniority (see Diagram 3.2); the higher the level of seniority, the greater the authority of the court. Thus the decisions of the Supreme Court (formerly the House of Lords) are the most authoritative; those (p. 50) of the Court of Appeal are next; those of the High Court are third. Decisions of courts at lower levels are not regarded as precedents, though very occasionally the judgment of a county court judge on a novel point of law may get reported (see Box 3.12 on the importance of law reporting).
The ability of the courts to develop principles of common law or to give authoritative interpretations of statutory principles relies on the publication of law reports, which contain reasoned judgments prepared by judges in particular cases, and from which general principles of law are then drawn.
Decisions as to which cases get reported are not, in general, taken by members of the judiciary themselves, but by editorial teams responsible for the publication of law reports. Many sets of law reports are now published. The publication of law reports is not seen as a function of government (though some government departments do, in fact, publish the text of decisions in specialist areas, such as taxation and immigration).
The most authoritative of the generalist sets of law reports are those published by the Incorporated Council of Law Reporting, which publishes: Appeal Cases (decisions of the Supreme Court), the Queen’s Bench Reports, and the Chancery Division Reports. The Council also publishes the Weekly Law Reports. There is a requirement that if a case is reported in these reports, that is the version that must be used, at least in the High Court and Court of Appeal.
Other sets of law reports are published by commercial publishers. The most widely available generalist set is the All England Law Reports, published by LexisNexis. In addition, there is now a wide range of specialist reports available in areas ranging from local government to housing, from education to family law, from criminal appeals to judicial review. Many sub-specialisms in legal practice now have their own sets of law reports. Law reports are also reported in some broadsheet newspapers; the most widely used are those reported in The Times.
Maintaining a complete library of all sets of reports is very expensive, only possible for the best-endowed university libraries, the libraries of the Law Society and the Inns of Court, and the most prosperous law firms.
Legal electronic databases
In addition to reports in paper format, more and more law reports are now published in electronic format. For many years, LexisNexis provided full-text versions of decisions from a range of the most senior courts. Initially, their use was limited by the refusal of judges to take into account judgments that appeared only in the Lexis format. This has now changed. Other companies, such as Westlaw and Justcite, also offer extensive legal databases.
A great deal of source legal material is also available free online. The Supreme Court/House of Lords has placed all judgments since 14 November 1996 online; Her Majesty’s Courts and Tribunals Service website carries reports from the Court of Appeal and Administrative Court. There are also other online sources available (see the Online Resources, list of websites). For those with access to the internet, the costs of obtaining the report of a particular case are limited to the costs of going online and printing the text. The provision of the reports themselves is currently free. To facilitate use of these sources, ‘neutral citation’ of judgments has been introduced (see Box 3.13).
Neutral citation of judgments
Since 11 January 2001 every judgment of the Court of Appeal and of the Administrative Court, and since 14 January 2002 every judgment of the High Court, has been prepared and issued as approved with single spacing, paragraph numbering (in the margins), and no page numbers. In courts with more than one judge, the paragraph numbering continues sequentially through each judgment and does not start again at the beginning of each judgment. A unique reference number is given to each judgment.
Each Court of Appeal judgment starts with the year, followed by EW (for England and Wales), then CA (for Court of Appeal), followed by Civ (for Civil) or Crim (for Criminal), and finally the sequential number. For example: Smith v Jones  EWCA Civ 10.
In the High Court, abbreviated as HC, the number comes before the divisional abbreviation and, unlike Court of Appeal judgments, the latter is bracketed: (Ch(ancery)), (Pat(ent)), (Q(ueens) B(ench)), (Admin(istrative)), (Comm(ercial)), (Admlty (Admiralty)), (TCC (Technology and Construction Court)), or (Fam(ily)) as appropriate. For example,  EWHC 123 (Fam) or  EWHC 124 (QB) or  EWHC 125 (Ch).
Paragraph numbers are referred to in square brackets. Thus paragraph 59 in Green v White  EWHC 124 (QB) would be cited: Green v White  EWHC 124 at ; paragraphs 30–35 in Smith v Jones would be Smith v Jones  EWCA Civ 10 at –. Page numbers are not given.
This ‘neutral citation’ is the official number attributed to the judgment and must always be used at least once when the judgment is cited in a later judgment. It is designed to facilitate the use of websites so that any confusion caused by differences in pagination that occur when information is downloaded to different computers with different printers is avoided.
184.108.40.206 The doctrine of precedent
This is also a simple idea, though not always easy to apply in practice. The essence of the doctrine is that a principle of law, established in one case, must be applied in a similar situation in a later case. Such law continues to be applied until either another court decides that the case was incorrectly decided, or for some other reason cannot be allowed to stand; or until a court higher in the hierarchy overturns the decision; or until Parliament decides to change the law by passing a new Act of Parliament that overrules or alters the rule laid down by the court.
There have long been arguments for and against the use of precedent. Against, it is argued that precedent introduces unnecessary rigidity into the law, thereby preventing legal doctrine from developing as society develops. In favour, the use of precedent is said to bring certainty to the law by enabling people to know how issues in the future will be resolved. The principle of law in one case that forms the precedent is known by the Latin phrase ratio decidendi. Any part of a judgment that does not form part (p. 53) of the ratio is not part of the precedent, and thus not relevant in later cases. These are referred to as obiter dicta.
There are many reasons why these apparently straightforward ideas can be exceptionally hard to apply in practice:
(1) The facts on which the ratio of one case is based never replicate themselves precisely in a later case. Thus lawyers wishing to argue that a particular precedent does not apply to the later case seek to distinguish the two fact situations, thereby, they hope, rendering the earlier decision irrelevant.
(2) Given the large number of reported decisions, there may be situations where a decision in one case was reached in ignorance of other relevant decisions. The argument is then made that the precedent in question was made incorrectly or, again to use the Latin, per incuriam.
(3) Because of the large numbers of cases that are now reported, there may be two reported decisions that are simply inconsistent with each other, so that straightforward application of a particular decision to a new situation is not possible.
(4) Since 1966, the House of Lords/Supreme Court has asserted the authority, in very exceptional circumstances, to change its mind and alter a precedent. It may, therefore, on occasion and notwithstanding the existence of clear precedents, decide that earlier cases were wrongly decided and that the law should now be changed.
There are also more technical reasons why the doctrine of precedent is not always simple to apply in practice. It can be very hard to decide what the precedent is. When, in the famous case of Donoghue v Stevenson  AC 562, the House of Lords found that a manufacturer of ginger-beer was negligent after it allowed a decomposed snail to enter a ginger-beer bottle, was this a case about not allowing snails to get into ginger-beer bottles? Or was it about not allowing foreign bodies in general to get into manufacturing processes? Or was it about the duty of care that any person—including a professional person giving advice to a client—should demonstrate towards others? In short, what was the ‘level of generality’ at which the particular instance of snails in ginger-beer bottles was to be treated in future cases?
Even if the principle of law that can be derived from the cases is clear—such as the principle of negligence, that one person owes a ‘duty of care’ to his or her ‘neighbour’—who will be categorized for these purposes as a neighbour? And what will be the standard of behaviour that will result in a conclusion that the ‘duty of care’ has been broken? If teachers take a party of teenage pupils to the seaside, and one of the pupils is washed out to sea by a freak wave, were the teachers in breach of a duty of care in those circumstances to the pupil who drowned? Or did the fault lie with the pupil who ignored advice and went clambering onto the rocks from which he was swept?
Much of the litigation that arises out of the principles of the law of negligence is not seeking to redefine the principles of the law, but is rather exploring the extent to which those principles should apply in new situations of risk. This is not the place for a detailed analysis of the law of negligence. The point to be stressed here is that, even (p. 54) though at one level the law may be quite clear, the situations to which the law may be applied in future are often far from clear. And the development of the law is in the hands of the senior courts, not legislators.
3.4.2 Statutory interpretation
Statutory interpretation is another way in which courts with authority within the hierarchical structure develop the law. The work of the courts interpreting statutes may not be as dramatic as developing principles of common law, as judges clearly have to work within the texts that have been prescribed by Parliament through the legislative process. Nevertheless, the interpretative process can lead to the clarification of words in statutes, and thus in the implementation of those statutory rules (see Box 3.14 for an example).
Case study: statutory interpretation: the case of Mr Fitzpatrick
Until recently amended, housing law provided that a tenant can pass his or her right to occupy premises on death to a ‘member of his family’. Over many years, the question arose: who is a member of the family? In the 1940s, the courts held that the phrase was limited to blood relatives; thus the former mistress of a deceased tenant could not take over the tenancy, despite having lived together with her partner for many years. Later, in the 1960s, the courts held that, with changes in the nature of relationships and society’s attitudes, the mistress of a deceased male tenant could in such a circumstance be regarded as a member of the family and thus take over the tenancy.
More recently still, in 1999, the House of Lords decided that the long-standing homosexual partner of a deceased tenant could similarly take over the tenancy. The judges found that, in terms of love and affection and thus the attributes of family, a distinction could no longer sensibly be drawn between a couple of the same sex living together and a couple of different sexes. Reference was made to the provisions of the European Convention on Human Rights protecting family and family life. (See Fitzpatrick v Sterling Housing Association  3 WLR 1113, HL.)
This case illustrates that, even without changing the words, there was scope for developing statute law by interpretation to reflect changes in social practices and attitudes.
The power of the court to interpret statutes increased when the Human Rights Act 1998 came into force. British courts not only interpret legislative provisions, but also test the substance of legislative provisions against the standards laid down in the Human Rights Act 1998, which derive from the Articles of the European Convention on Human Rights (see 220.127.116.11). By giving the courts power to declare a statute or provision within a statute to be incompatible with the Convention—effectively requiring ministers to change the law—the Act conferred on the courts a significant new power to develop English law.
(p. 55) One question that may be asked is: why—if Parliament has passed legislation—is there any need for the courts to intervene at all? There are two basic reasons why this needs to happen: the unpredictability of fact situations, and the ambiguity of language.
18.104.22.168 The unpredictability of fact situations
However detailed statutory provisions may be, they can only set down rules at a certain level of generality. There will always be those whose particular circumstances are not captured precisely by the legislative provisions. In such cases the facts need to be determined by the courts—in itself not always a straightforward task—and, once this has been done, a judgment reached as to whether or not the relevant legislative provision applies. Particularly where legislative provisions seek to impose some burden or penalty on the citizen, there is a general judicial policy that this should not happen unless those provisions quite clearly ‘bite’ on the individual circumstances concerned. To give an example: the ‘tax avoidance industry’ engages in the detailed analysis of tax legislation to see whether arrangements can be made to enable those who might otherwise have to pay tax quite legitimately to avoid paying it.6
Many apparently pedantic points taken in some criminal trials are, similarly, the result of the principle that a person should not be convicted of a crime unless the facts found by the court are clearly caught by the relevant statutory provisions.
22.214.171.124 The ambiguity of language
The other justification for the role of the courts is that the meaning of language is not itself precise. There may be ambiguities arising from the way particular rules have been drafted. There may be differences in the meaning of words chosen. Some statutory provisions are deliberately drafted using words such as ‘reasonable’ or ‘fair’ that do not have a precise meaning and that therefore give scope to officials and others for the exercise of discretion or judgment. There may be changes in the meaning of a word (see Box 3.14) resulting from broader developments in society.
There is, in the literature on statutory interpretation, a set of principles—rather inaccurately described as ‘rules’—designed to be of assistance. These include:
● the literal rule;
● the golden rule;
● the mischief rule; and
● the ‘unified common approach’.
The literal rule is what it implies. The words of a statute should be given their literal meaning. However, this does not solve the problem of linguistic ambiguity—words may have more than one literal meaning.
(p. 56) The golden rule suggests that the courts should use the literal rule unless this would lead to manifest absurdity.
The mischief rule asks the judge to consider what was the legislative purpose of the Act—what was the ‘mischief’ the Act was trying to deal with. Any question of interpretation should be resolved in such a way as not to thwart that purpose. The problem with this view is: does it not undermine the independence of the judiciary? If the mischief rule is rigidly adhered to, does this not result in the judges losing their independence and doing the government’s job for it? On the other hand, if legislative intention is wilfully ignored by the judges, how does that square with the constitutional principle that the primary law-making authority should rest with the democratically elected Parliament, not the unelected judiciary?
Clearly these principles are not consistent with each other; they offer great scope for reaching different conclusions. The reality is that different judges favour different approaches; indeed individual judges are themselves not consistent.
The unified common approach is the label now used to suggest that judges should adopt a broader, less specific approach. It implies that judges should start by considering the literal meaning of the words; but if they are really not clear or would lead to absurd results then the judge should consider what the purpose of the Act was and interpret the Act so as to advance that purpose.
The inference should not be drawn from this discussion that the bases on which the judiciary interprets legislation are so varied that there is no principle at all. Reading reported judgments in decided cases reveals that judges in the higher courts go to great lengths to try to ensure that their decisions are founded in rationality and principle. But that there are different approaches cannot be denied, and the inevitable consequence is that there is some inconsistency of outcome. The ability of different judges to arrive at different decisions in individual cases is seen most clearly in cases that go to appeal, when judges are quite frequently divided in their views.
3.4.3 Procedural law
A third way in which judges make law is by the development of new procedures. A number of examples may be briefly mentioned.
● The day-to-day practice of litigation is regulated by rules of procedure that are drafted by the judiciary—in Rules Committees—acting under legislative authority. Many rules of court are supplemented by practice directions, also made by the judiciary (see Chapters 6, 7, and 8).
● Rules of evidence—what evidence is or is not admissible in a court of law—have to an important degree been developed by the judiciary, though supplemented by very important statutory provisions, for example the Police and Criminal Evidence Act 1984, the Civil Evidence Act 1991, or the Criminal Justice Act 2003 (see Chapter 5).
● A number of powers of the court are asserted on the basis of what it claims as its ‘inherent jurisdiction’—the High Court’s powers of wardship over children may be given as an example (see Chapter 7). (p. 57)
● The most important judicial development of the last 50 years has been the shaping of the rules and practice relating to judicial review, which goes to the heart of the powers of the judiciary to render government departments and other public bodies legally accountable for their actions (see Chapter 6).
3.5 European law-making institutions and their impact on the UK
So far, the discussion has considered law-making process in the United Kingdom only. But no student of the modern English legal system can ignore the impact of international law in general, and European law in particular, on the United Kingdom. European law-making institutions and their practices and procedures are poorly understood. The following pages offer a brief introduction to the law-making functions carried out in Europe, the role of the courts in Europe, and their overall impact on the United Kingdom.
Before proceeding, you must always remember that, when talking about European law-making, two completely separate institutions are involved which are frequently confused: the Council of Europe and the European Union. While the UK government is in the process of exiting the European Union, this in no way affects the relationship between the UK and the Council of Europe.
3.5.1 The Council of Europe
The Council of Europe was established in 1949. Its primary aim was to prevent a repeat of the human rights outrages of the Second World War period. More recently it has engaged in assisting countries of the former Eastern Bloc to develop institutional arrangements to support their moves towards democracy. The Council has 47 member countries and is based in Strasbourg.
126.96.36.199 European Convention on Human Rights
The Council of Europe’s most significant achievement, insofar as its impact on English law is concerned, was the creation of the European Convention on Human Rights. This document, drafted with considerable input from British lawyers, is a charter of fundamental rights and freedoms agreed by all the Member States of the Council of Europe. In common with all international treaties, the Convention could not come into effect until it had been ratified by a specified number of governments. This happened in 1953. The Convention has been amended a number of times since then. The current version, amended by Protocol 14, came into effect in June 2010 (see Box 2.1). Two more protocols, 15 and 16, have been made by the Council. Protocol 16 has been ratified by 10 Member States (not including the UK) and has been in force in those countries since 1 August 2018. Protocol 15 has still not been ratified by a sufficient number of Member States.
(p. 58) Ensuring adherence by Member States to the standards set out in the Convention is the responsibility of the European Court of Human Rights, which has power to decide cases raising alleged breaches of the European Convention by Member States of the Council of Europe.
Normally, treaties seek to regulate relationships between nation states. They may provide that one country may take action against another where there is an alleged breach of an international treaty obligation. The European Convention on Human Rights is unusual. In it, provision is made for individuals to take proceedings to the European Court of Human Rights where it is alleged that a government is in breach of its obligations under the treaty. In the case of the United Kingdom, the right of individuals to take proceedings against the British government for alleged breaches of the Convention was accepted by the British government in 1966.
188.8.131.52 The impact of the Council of Europe
The impact of the Council of Europe on the law-making process in the United Kingdom has been indirect. The European Convention on Human Rights sets out a list of rights—principles against which the actions of governments may be tested (see Box 2.1). Where cases are taken before the European Court of Human Rights in Strasbourg that result in a decision that a rule of British law or some practice of the British government is contrary to the provisions of the Convention, this leads to a requirement that the British government change the law to bring it into line with the Convention, as interpreted by the Court. In more than 50 years, there have only been around 30 decisions of the Court adverse to the British government, though many more cases have been taken to but rejected by the Court (for an example, see Box 3.15).
Case study: prisoners’ voting rights
The UK government believes that all prisoners should be denied the right to vote while they are in jail.7 However, in Hirst v United Kingdom (No 2) ((2006) 42 EHRR 41) the European Court of Human Rights (ECtHR) found that this blanket ban was incompatible with the European Convention on Human Rights. (A number of other cases had also reached this conclusion.)
Given the clear ruling of the ECtHR, in 2012 the UK government—after considerable delay and with major misgivings—published a draft Voting Eligibility (Prisoners) Bill. This bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords. In December 2013, it published a thoughtful report on the issue. It stated that:
‘It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’
(p. 59) The Committee identified a number of principles which it argued should be taken into account, including:
• ‘In a democracy the vote is a right, not a privilege: it should not be removed without good reason . . .’
• ‘There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote . . . ’
• ‘There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.’
The Committee concluded that ‘the Government [should] introduce a Bill at the start of the 2014–15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections’. No bill was published.
Since then, more cases have been taken to the European Court of Human Rights. Thus, in Firth and others v United Kingdom  ECHR 874, a Chamber of the Court held that—failing a legislative response to its earlier rulings—the United Kingdom remained in breach of the European Convention on Human Rights. However, the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough.
The decision also included a dissenting judgment from Judge Nicolaou, who did not think that there had been a breach of the European Convention. In another dissenting judgment, Judge Wojtyczek indicated his view that the line of decisions developed by the European Court might not be correct; in his view the whole issue should have been revisited by the Court.
In November 2017, the government announced that it would be making administrative changes. First, it would make it clear to criminals when they are sentenced that while they are in prison they will lose the right to vote. (This directly addresses a specific concern in the [original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.) Secondly, it would amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence cannot. Release on Temporary Licence is used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point was, in the government’s view, consistent with this approach.
It remains to be seen whether these changes will ultimately go far enough to satisfy the European Court.
(p. 60) 184.108.40.206 Human Rights Act 1998
Following enactment of the Human Rights Act 1998, most of the articles of the European Convention on Human Rights became directly enforceable in the English courts. It is arguable that the Human Rights Act 1998 did not really change UK law but simply made it easier to use because cases can now be brought in the United Kingdom without the need to go to Strasbourg.
The Human Rights Act 1998 has had two principal effects on the law-making process in the United Kingdom.
First, in presenting bills to Parliament, ministers must declare that in their opinion proposed legislation complies with Convention provisions. Policy-makers within government have become conscious of the need to ensure that policies are Convention-compliant. New legislation is scrutinized for compliance by the Parliamentary Joint Committee on Human Rights. To that extent the Act has had significant impact.
Secondly, under section 4 of the Human Rights Act 1998, British courts have power to declare a provision of UK law to be incompatible with the provisions of the Convention. This formula was adopted to preserve the notion of the sovereignty of Parliament. This is in effect a direction to the government of the day that a particular statutory provision must be amended in order to comply with the provisions of the European Convention on Human Rights. Although not declaring an Act of Parliament, or a provision in an Act, unlawful, any such judicial ruling puts pressure on ministers to introduce changes so that the incompatibility is removed. In this sense, the legislative freedom of ministers is reduced.
Legal arguments based on the Human Rights Act 1998 have been advanced in a significant number of cases in the upper courts (High Court, Court of Appeal, and Supreme Court). However, the extent to which these arguments have been upheld in the courts has so far been relatively limited. A major exception to this generalization has been in the area of counter-terrorism, where getting the right balance between protecting personal freedom and introducing measures to try to ensure security from terrorist attack is exceptionally difficult.
For example, following the attacks on the Twin Towers in New York City in September 2001, the Labour government of Tony Blair sought to extend significantly, to 90 days, the length of time terror suspects could be detained without a criminal charge being brought against them. The House of Lords ruled in A and others v Secretary of State for the Home Department  UKHL 56 that this was contrary to the provisions of the European Convention on Human Rights. A further attempt to introduce a similar provision was defeated in the House of Commons in 2006. The Coalition government decided, in the Protection of Freedoms Act 2012, that the normal period of detention without charge of those suspected of terrorism should be 14 days.
One feature of the Human Rights Act 1998 is that it provides that, in interpreting its provisions, English judges must take account of the jurisprudence developed by the European Court of Human Rights in Strasbourg. One possibly unexpected consequence is that judges in the court in Strasbourg now take more notice of what British judges say on human rights issues and their interpretation of the Convention than they did before the Human Rights Act was enacted.
(p. 61) 220.127.116.11 The authority of the Council of Europe
The authority of the Council of Europe to make rules of law which have an effect in the United Kingdom stems from the international treaty which set out the constitution of the Council and the powers of the European Court of Human Rights. These documents came into effect in the UK following exercise of its prerogative power to sign up to international treaties. Members of the Council are appointed by governments who have signed up to be members of the Council. There are no public elections for membership of the Council of Europe.
In this respect, the Council and the Court are like other international bodies to which the UK has signed up.
18.104.22.168 The European Court of Human Rights
The European Court on Human Rights, also based in Strasbourg, is the ultimate arbiter of whether there has or has not been a breach of the European Convention on Human Rights. In the UK, and since the passing of the Human Rights Act 1998, it is clear that any allegation of breach of the European Convention on Human Rights must now be determined first in the English courts. Nevertheless, there remains a residual right for parties to go to the European Court of Human Rights.
Paradoxically, some now claim that the Human Rights Act 1998 has to an extent undermined the legitimacy and authority of the European Court of Human Rights. They argue that if issues under the European Convention on Human Rights can be argued in the UK Supreme Court, there should be no need for a further tier to appeal to the European Court. On the other side, there are still those who strongly defend the right of the European Court to be the ultimate authority in the interpretation of the European Convention, not least because this ensures that consistent standards are applied throughout all the Member States of the Council of Europe.
The Council of Europe itself has recognized that there is a need to reform the relationship between the European Court of Human Rights and Member States, though this is more for the practical reason that the Court has a huge backlog of cases which has led to quite unacceptable delays. In 2012, an important conference was held in Brighton, which set out the framework for a programme of reform to the Court (see Box 3.16).
Reforming the European Court of Human Rights: the Brighton Declaration
The question of the relationship between the English legal system, in particular the UK Supreme Court, and the European Court of Human Rights has generated a lot of political controversy—much of it deriving from the decision in the case involving the terror suspect Abu Qatada. The British government wanted to deport him to Jordan for trial. The European Court feared that evidence obtained by torture could be used against him. This would be contrary to the European Convention on Human Rights. (p. 62) The European Court decided that he could not be deported until this question had been resolved. The political fallout from this very controversial case has been significant, with many people demanding that the United Kingdom no longer acknowledge the jurisdiction of the European Court.
In April 2012—during the UK Presidency of the Council of Europe—a conference was held in Brighton to consider proposals for the reform of the Court, designed to rebalance the relationship between Strasbourg and national supreme courts.
In outline, the Brighton Declaration made proposals for:
• amending the Convention to include the principles of subsidiarity and the margin of appreciation; this should give more power to domestic courts to decide matters without intervention from Strasbourg;
• amending the Convention to tighten the admissibility criteria, so that trivial cases can be thrown out and the focus of the Court can be on serious abuses;
• reducing the time limit for making claims from six months to four;
• improving the selection process for judges; and
• setting out a roadmap for further reform.
The full text of the Brighton Declaration is at www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf.
Some progress in achieving these goals has been made. (See my blog, www.martinpartington.com, October 2017.) Nevertheless, despite a number of changes, the principal problem facing the Court—delay—seems to be as intractable as ever. In my view, the final implementation of any effective reform proposals will take a considerable time to complete.
There has been controversy in the United Kingdom about the impact of the Human Rights Act. In 2011, the then Coalition government proposed that the Human Rights Act might be repealed and replaced by a new British Bill of Rights. An Independent Commission on a UK Bill of Rights was asked to look into the matter. It reported at the end of 2012. Its conclusions were not clear-cut.
Since then, the issue has slipped down the political agenda and will certainly not be revived until after the Brexit negotiations are complete.
3.5.2 The European Union
The European Economic Community was established in 1957 by the Treaty of Rome. It became the European Community (EC) in 1967. The United Kingdom joined the Community in 1973, and confirmed that decision following a UK-wide referendum in 1975. It has now started the process of leaving the Union, following the referendum on the issue held in 2016. Despite the fact that, if the Brexit process does actually result in the UK leaving the EU, law made by the EU institutions after the departure of the (p. 63) UK will no longer directly impact on the UK, the regulations made by Brussels will continue to impact on businesses in the UK. I think that anyone studying law should have at least some understanding of how the EU law is made. The following paragraphs offer a short introduction to the EU and its institutions.
22.214.171.124 The development of the EU
The Treaty of Rome gave the Community a number of tasks including: establishing a common market and progressively approximating the economic policies of the Member States. Originally there were only six members of the Community. In 1986, the Single European Act made further provision for the establishment of the common market, now referred to as the ‘internal market’. This is defined as an area without internal frontiers, in which the free movement of goods, persons, services, and capital is ensured. The Single Market Act also brought a number of new policy areas into the Community’s competence, including, for example, a specific environmental competence.
The Maastricht Treaty (1993) established the European Union, which had a three-pillar structure: the European Community was the first pillar; the common foreign and security policy the second pillar; and justice and home affairs (covering immigration and asylum, civil judicial cooperation, and police and judicial cooperation in criminal matters) the third pillar. Further changes were made by the Treaty of Amsterdam (1997) and the Treaty of Nice (2001), including to the competences of the Union.
The European Union entered a period of expansion which prompted calls for a new treaty. After long discussion, and a failed attempt to establish a European-wide constitution for the European Union, the Lisbon Treaty was signed in 2007. This treaty renamed and amended the original treaties, collapsed the three-pillar system into a single European Union, and incorporated the Charter of Fundamental Rights into the EU Treaties. At the time of writing, there are 28 countries in the EU, with more beginning the process of accession to the Union. The UK is in the process of leaving.
The fundamental purpose of the European Union remains the creation of a free market for the provision of goods and services in all EU countries. To achieve this, the European Union seeks to provide a framework within which trade between the member countries of the European Union can take place fairly. For example, there are policies on the promotion of competition and the regulation of anti-competitive practices; there are policies to liberalize industries, such as telecommunications or the airlines, to allow greater freedom of consumer choice; it has policies on agriculture and fisheries designed to promote those two industries and promote European food security. It prescribes EU-wide standards for the manufacture of goods, both to protect consumers and to try to ensure that industry overheads are broadly similar. It also sets common standards for social security provision for workers, as well as entitlements for citizens of one country in the European Union to work in other countries of the Union. There are specific rules relating to employment protection, including safety at work and the prohibition of discriminatory employment practices. The laws of the European Union are designed to promote those policies.
(p. 64) In recent years, the European Union has developed other wider areas of activity, for example, the promotion of human rights and supporting measures for social cohesion. In response to criticism about the inability of the European Union to intervene in situations of conflict that might seem to warrant a Europe-wide approach, it has sought to develop a common foreign and security policy and a common defence policy. It is seeking to develop supra-national responses to challenges posed by climate change and environmental degradation. There have been important initiatives in the area of justice and home affairs. And, of course, the European Union has sought to resolve the financial problems that exist in the euro-zone.
Powerful voices within the EU would like to see yet further expansion and integration of policies and institutions on a trans-European scale. This has been one of the reasons why eurosceptics (not just in the UK but in many other European countries as well) have been resisting what is sometimes referred to as the European project.
126.96.36.199 Law-making in the EU
The law-making processes of the European Union are extremely complex. They are not like the parliamentary processes we are familiar with in the United Kingdom. Suggestions for law-making may come from a variety of sources. However, under the European Treaties, the European Commission has the exclusive right to initiate proposals for legislation. Whether or not its proposals become law and, if so, on what terms, depends on the outcome of complex negotiations and consensus-building between the Commission, the Council of Ministers,8 and the European Parliament. (See Box 3.17 for a summary of the EU legislative process.) (p. 65) (p. 66)
The legislative process in the EU
(1) Legislative proposal from the European Commission. The European Commission prepares legislative proposals on its own initiative or at the request of other EU institutions or countries, or following a citizens’ initiative, often after public consultations. The final proposal is forwarded simultaneously to the European Parliament, Council, and national parliaments and, in some cases, to the Committee of the Regions and the Economic and Social Committee.
(2) First reading in European Parliament. The President of the European Parliament refers the proposal to a parliamentary committee, which appoints a rapporteur who is responsible for drawing up a draft report containing amendments to the proposed text. The committee votes on this report and any amendments to it tabled by other members. The European Parliament (EP) then discusses and votes on the legislative proposal in plenary on the basis of the committee report and amendments. The result is the EP’s position. The EP can accept the proposal without any changes or make amendments. In rare cases the President can request the Commission to withdraw its proposal. The EP’s first reading position is forwarded to the Council.
(3) First reading in Council. Preparatory work in Council runs in parallel with the first reading in the EP, but Council may only formally conduct its first reading based on Parliament’s position. Council can: accept the EP position, in which case the legislative act is adopted; or adopt changes to the EP’s position, leading to a Council’s first reading position, which is sent to the EP for a second reading.
(4) Second reading in the EP. The EP has three (with a possible extension to four) months to examine Council’s position. The Council position goes first to the responsible committee, which prepares a recommendation for the EP’s second reading. The plenary meeting of the EP votes on the recommendation, including possible albeit limited amendments. There are four possible outcomes to a second reading: the EP approves Council’s position and the act is adopted; the EP fails to take a decision within the time limit, in which case the act is adopted as amended by Council in its first reading; the EP rejects Council’s first reading position, in which case the act is not adopted, and the procedure is ended; the EP proposes amendments to Council’s first reading position and forwards its position to Council for a second reading.
(5) Second reading in Council. Council has three (with a possible extension to four) months to examine the EP’s second reading position. It is also informed about the European Commission’s position on the EP’s second reading amendments. The Council either approves all the EP’s amendments, in which case the legislative act is adopted, or it does not approve all the amendments. In the latter case, the President of the Council, in agreement with the Parliament President, convenes a meeting of the Conciliation Committee.
(6) Conciliation. Within six (with a possible extension to eight) weeks of the Council’s refusal to adopt the EP’s second reading position, the Presidents of the Council and European Parliament convene the Conciliation Committee, with equal numbers of members of the European Parliament (MEPs) and Council representatives. The Conciliation Committee has six (with a possible extension to eight) weeks to decide on a joint text based on the second reading positions of the EP and Council. If the Conciliation Committee does not approve a joint text, the proposed legislative act falls, and the procedure is ended. If the Conciliation Committee approves a joint text, the text is forwarded for a third reading to the EP and the Council.
(7) Third reading in Council and Parliament. The joint text is sent simultaneously to the EP and Council for approval. There is no specific order in which the co-legislators must decide. They have six (or eight if jointly agreed) weeks to decide and they cannot modify the text. In the EP, the vote on the joint text is preceded by a debate in plenary. If Parliament and Council approve the joint text, the legislative proposal is adopted. If one or both rejects it, or does not respond in time, the legislation falls, and the procedure is ended. It can only be restarted with a new proposal from the Commission.
Source: www.europarl.europa.eu/aboutparliament/en/20150201PVL00004/Legislative-powers. This site has an excellent slide presentation.
The European Parliament—the only body with directly elected members—plays an important part in the law-making process. Successive treaties (Maastricht (1993), Amsterdam (1997), Nice (2001), and Lisbon (2007) (see Box 3.18)) gave the European Parliament increasing amounts of power to control the content of legislative measures. While it still cannot initiate legislative proposals, the majority of European law-making must be approved by a majority of the European Parliament as well as the Council of Ministers. (The poor participation by the British electorate in European elections may be explained, at least in part, by widespread ignorance about the role of the European Parliament and how it has changed.)
Principal features of the Lisbon Treaty
The changes introduced by ratification of the Lisbon Treaty are still not well understood. The Treaty:
• created the post of President of the European Council, who is elected for two and a half years;
• created the post of High Representative for the Union in Foreign Affairs and Security Policy. The post-holder is also Vice-President of the Commission. The European Union now also has a single legal personality designed to make its international negotiating power more effective;
• gave the European Parliament new powers over EU legislation, the EU budget, and international agreements, designed to ensure the European Parliament is placed on an equal footing with the Council for the vast bulk of EU legislation. It also limits the size of the European Parliament to 751, with no country having more than 96 nor fewer than six Members of the European Parliament;
(p. 67) • made qualified majority voting the default voting method in the European Council of Ministers, save where treaties require a different procedure (e.g. unanimity). This means that qualified majority voting has been extended to many new policy areas, such as immigration and culture. From November 2014, a new voting method was introduced—double majority voting. To be passed by the Council, proposed EU laws require a majority not only of the Union’s member countries (55 per cent) but also of the EU population (65 per cent);
• gave national parliaments greater opportunities to be involved in the work of the Union, in particular to monitor the principle of subsidiarity whereby the Union only acts where results can be better attained at Union level;
• explicitly recognized for the first time the possibility of a Member State withdrawing from the European Union.
188.8.131.52 The law of the EU
A number of technical points need to be made about the different types of law that are made by the EU institutions.
First, all the institutions of the European Union draw their ultimate authority from the treaties that underpin the establishment of the European Union. There are now two key EU Treaties, which bring together various treaties made since 1957. They are the Treaty on the European Union (TEU, originally called the Maastricht Treaty), and the Treaty on the Functioning of the European Union (TFEU, originally called the Treaty of Rome). These are the basic law or the primary legislation of the European Union.
While many of these fundamental provisions of Community law are designed to deal with obligations between states, some have been held by the European Court of Justice to have ‘direct effect’ on the law of individual Member States in the determination of individual rights and duties. For treaty provisions to have this effect, the content of the provision must be clear; the provision must be self-executing, in the sense that it imposes a specific duty; and the provision must not contain any conditions or qualifications. There are many European Court of Justice decisions that have held particular treaty articles to be of direct effect; for example, Articles 101 and 102 of TFEU, which outlaw anti-competitive agreements, or Article 157 of TFEU, establishing the principle of equal pay between men and women.
Secondly, where a treaty provision is found to be of direct effect, it may be both vertically and horizontally effective. ‘Vertical’ effectiveness arises when an individual uses a treaty provision to challenge an act of the government or some other public body. ‘Horizontal’ effectiveness arises where one individual or other body wishes to use EU law to challenge the behaviour of another individual body of similar status.
(p. 68) Thirdly, more detailed legislative measures that seek to implement the detailed policies of the European Union can collectively be described as the secondary legislation of the European Union. They are called: regulations, directives, and decisions.
Under Article 288 of TFEU, regulations are—like the treaty provisions considered earlier—of ‘direct effect’; that is to say, they automatically become part of the internal law of each of the Member States of the European Union. An example is Regulation 1408/71, which deals with aspects of social security law and the need to insure workers under a scheme of national insurance. As with treaty provisions, regulations may have both vertical and horizontal effectiveness.
Directives are more general in tone. They set down standards towards which Member States are required to aim, but some discretion as to the detail of how that is to be done is left to the Member States. The implementation in the United Kingdom of the Working Time Directive, which regulates the maximum number of hours to be worked each week, provides a good example. The principle of direct effect may be invoked if there is a complaint that a government has failed to incorporate the provision into national law. In the United Kingdom, directives are usually brought into effect in statutory instruments. This will cease once the UK has left the EU.
Decisions are rulings on particular matters addressed to either governments of Member States, corporations, or individuals. For example, an argument about whether a particular take-over bid was or was not anti-competitive could be the subject of a decision. Decisions are binding on those to whom they are addressed.
In addition to these forms of secondary legislation, the European Union may also make recommendations and opinions, but these do not have any direct effect.
184.108.40.206 Enforcement of EU law
One of the fundamental principles of membership of the European Union is that the institutions of the Union, in particular the European Commission in Brussels and the European Court of Justice in Luxembourg, have power to force Member States to obey EU law. This gives the Union power to intervene directly in the law-making processes of Member States. To try to secure the authority of the European Union’s law-making powers in the United Kingdom, the UK government did two things. First, prior to the entry of the United Kingdom into the Union (in 1973), Parliament enacted the European Communities Act 1972, which committed the UK government to implementing and abiding by EU law, if necessary without the intervention of the UK Parliament. Secondly, in 1975 it held a referendum (see Box 3.1) which sought, and obtained, a majority vote in favour of ratifying the United Kingdom’s entry into the Union. The 2016 referendum went the other way. The European Union (Withdrawal) Act 2018, when brought in to force, repeals the European Communities Act, 1972. Nevertheless, all the existing rules and regulations made by the EU before the date of Brexit will remain part of UK law.
It was the ability of the European Institutions to make laws which had a direct impact in the UK that led eurosceptics to argue that the UK should leave the EU, since, in their view, this led to an unacceptable limitation on the powers of the UK Parliament and courts to be the final arbiters of the law which applies in the UK.
(p. 69) One of the currently highly contentious and still (at the time of writing) unresolved issues about the Brexit process is the extent to which, after Brexit, decisions of the European Court of Justice should be taken into account in the UK courts.
220.127.116.11 Where next? A warning
At the time of writing, major questions about the Brexit process remain unanswered. It is likely that there will be many points of detail, not yet decided, that will need to be discussed in future editions of this book. Those interested in the development of the relationship between the UK and the EU will need to keep abreast of developments. What is stated here is by no means the last word.
3.6 Other sources of law-making
3.6.1 Local and regional government
Local government has long had power to make by-laws—a form of tertiary legislation (see Box 3.6)—since by-laws are made under the authority of Acts of Parliament but apply only in the area of the local authority in question.
Under the terms of the Scotland Act 1998, the Scottish Parliament was granted authority to pass legislation in areas within its competence. Following the referendum on Scottish independence, the Scotland Act 2016 devolves more legislative powers to the Scottish Parliament. Under the Government of Wales Act 1998, the National Assembly for Wales was given power to pass secondary legislation, again within the scope of its areas of competence. Defined powers to make primary legislation have been granted to the Welsh Assembly government by the Government of Wales Act 2006, expanded by the Government of Wales Act 2014, and further expanded by the Wales Act 2017. The Northern Ireland Act 1998 similarly grants legislative power to the Northern Ireland Assembly (though at the time of preparing this edition the Assembly is not functioning).
3.6.2 Other rule-making agencies
A great deal of rule-making is also undertaken by industry regulators: for example, the Civil Aviation Authority or the regulators of the privatized utilities. The Financial Services Act 2012 created a new regulatory structure consisting of the Bank of England’s Financial Policy Committee, the Prudential Regulation Authority, and the Financial Conduct Authority. The rules made by regulatory bodies fall outside the parliamentary framework, though in most cases they are based on legislative authority conferred by Act of Parliament and have the effect of law on those companies that are the subject of their regulation.
(p. 70) 3.6.3 Other international institutions and bodies of international law
We have considered the Council of Europe and the European Union in context. Many other international institutions also have an impact on detailed rules of English law. There are many industries, for example aviation and telecommunications, where at least some of the legislative framework results from the provisions of international treaties. Increasing globalization of economic activity combined with increasing pressure to deal with some of the major issues of the day—the environment, genetic engineering, global warming, international trade—ensures that this trend will develop.
Lastly, it is relevant to note the existence of a separate body of private international law—in essence rules of English law, designed to assist in the determination of private law rights and entitlements that have an international dimension.
3.7 Key points
1. Law-making is a central feature of modern government. Its authority is principally based in principles of representative democracy, though by no means all sources of law derive their authority from those principles.
2. Other constitutional principles—in particular the separation of powers—are also engaged, particularly in relation to the authority of the senior courts.
3. Much legislation is influenced directly or indirectly by international obligations, in particular those arising from the Council of Europe and (for the present) the European Union.
4. There is currently great uncertainty about the legal and political relationships that will exist between the UK and the EU, following the Brexit referendum.
5. The devolution debates, in particular the devolution of powers to the Scottish Parliament, have led to changes in who can vote on bills relating solely to England.
6. The making of key rules and regulations is not solely undertaken in Parliament. It also occurs in many contexts outside Parliament.
7. This all makes for considerable complexity that has increased enormously in recent years. It is unlikely that the ordinary person in the street is aware of more than a fraction of the law which in theory affects him or her. It is fanciful to claim that ordinary people can be assumed to know the law.
8. One of the challenges facing modern society is how new technologies can be used to transform this vast mass of legal information into knowledge that can actually be used by the ordinary citizen.
(p. 71) 3.8 Questions
Use the self-test questions in the Online Resources to test your understanding of the topics covered in this chapter and receive tailored feedback: www.oup.com/uk/partington19-20/.
3.9 Web links
Check the Online Resources for a selection of annotated web links allowing you to research easily topics of particular interest: www.oup.com/uk/partington19-20/.
3.10 Blog items
See Spotlight on the Justice System, at www.martinpartington.com/category/chapter-3-2/.
Suggestions for further reading
Bingham, T., The Rule of Law (London, Penguin Books, 2011)Find this resource:
Bogdanor, V., The New British Constitution (Oxford, Hart Publishing, 2009)Find this resource:
Craig, P., The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford, Oxford University Press, 2010)Find this resource:
Justice, Law for Lawmakers: A JUSTICE guide to the law (JUSTICE, London, 2015) available free at justice.org.uk/law-for-lawmakers-a-justice-guide-to-the-law/Find this resource:
Zander, M., The Law-Making Process (7th edn, Oxford, Hart Publishing, 2015)Find this resource:
2 The Electoral Registration and Administration Act 2013 made technical changes to the electoral process.
4 In February 2019, the Ministry of Justice published two post-implementation reviews: of Part 1 and Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. See www.gov.uk/government/publications/post-implementation-review-of-laspo; and www.gov.uk/government/publications/post-implementation-review-of-part-2-of-laspo-act-initial-assessment.
5 See www.judiciary.gov.uk/announcements/lionel-cohen-lecture-by-the-lord-chief-justice-the-judiciary-within-the-state-governance-and-cohesion-of-the-judiciary/; and www.judiciary.gov.uk/announcements/michael-ryle-memorial-lecture-by-the-lord-chief-justice-the-judiciary-within-the-state-the-relationship-between-the-branches-of-the-state/.
6 The distinction between tax avoidance, which if successful is lawful, and tax evasion, which is clearly unlawful, should be noted. In recent years, governments have become increasingly adept in their attempts to thwart tax evaders. Tax incentives—schemes that attract tax advantages and are part of the government’s fiscal policy, for example tax relief on pension premiums—are quite different.
8 Although in the formal descriptions of the European Union there is only one Council of Ministers, there is in fact a substantial number of Councils of Ministers reflecting the different portfolios of those ministers, for example agriculture, foreign policy, economic matters, trade matters, and the like. The supreme Council of Ministers comprises the leaders of the governments of the European Union, brought together to determine the most fundamental issues affecting the Union. Initially, decisions of the Council of Ministers had to be unanimous; a single vote against a proposal would result in its not being adopted. As the European Union has expanded, the principle of unanimity has been replaced in a large number of policy areas by the principle of qualified majority, which enables measures to be introduced despite the opposition of some ministers.