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Legislation is the primary source of English law, but can be open to interpretation; it is a broad term which covers not only statutes (i.e. Acts of Parliament) but other types of legislation such as delegated legislation (sometimes called subordinate legislation) and European legislation.

Parliament passes legislation in the form of statutes, or Acts of Parliament. Such Acts will often begin as either a Public Bill, a Private Bill, or a Private Member’s Bill. Bills can be introduced in the House of Commons or, less frequently, in the House of Lords.

Public Bills are introduced by the government as part of its programme of legislation and tend to affect the public as a whole. In contrast, Private Bills are introduced for the benefit of particular individuals, groups of people, institutions or a particular locality. They often fail to become law however because of insufficient time in a particular Parliamentary session and as such, are very rare in the modern English legal system. Private Member’s Bills are non-government Bills introduced by MPs of either House; they often deal with relatively narrow issues.

Statute law may also be passed to consolidate or codify the law. In addition, hybrid bills contain both public and private elements and money bills are purely financial. Consolidation does not change the law however. A consolidating statute is one in which a legal topic, previously contained in several difference statutes, is re-enacted. Examples of consolidating statutes include the Limitation Act 1980 and the Insolvency Act 1986. As Lord Simon said in Farrell v. Alexander [1977], ‘[A]ll consolidation Acts are designed to bring together in a more convenient, lucid and economical form a number of enactments related in subject-matter [where were] previously scattered over the statute book’. On the other hand, codification may change the law. A codifying statute is one in which a legal topic, previously contained in the common law, custom and previous statute, is restated. An example of a codifying statute is the Theft Act 1968.

Creation of statutes

Government proposals on topics of current concern are set out in White Papers. These signify the government’s intention to enact new legislation, and may involve setting up a consultation process to consider the finer details. Green Papers are issued less frequently – they are introductory higher-level government reports on a particular area without any guarantee of legislative action or consideration of the legislative detail. Any proposed legislation is passed to Parliamentary draftsmen (official the ‘Parliamentary Counsel to the Treasury’ who draft the Bill.

Without express provision to the contrary, an Act of Parliament is deemed to come into force on the day (and for the whole day – Tomlinson v. Bullock (1879) 4 QBD 230, DC) that it receives Royal Assent. Otherwise, it will come into force on a date specified within the Act itself, or an ‘appointed day’ provision which allows the Act to be brought into force via a statutory instrument. Parts of the Act may be brought into force on different dates (e.g. the provisions of the Anti-Social Behaviour Act 2003 relating to high hedges did not come into force until June 2005).

Impact of the Human Rights Act 1998

Section 19 of the Human Rights Act 1998 (HRA) provides that the Minister in charge of each new Bill in either House of Parliament must, before the second reading of the Bill, either a) make a statement of compatibility – that is, state that the provisions of the Bill are compatible with the European Convention on Human rights; or b) make a statement acknowledging that it is not possible to make a statement of compatibility, but, despite this, the Government still wishes the House to proceed with the Bill. This is typically done on first reading.

Moreover the courts have no power to set aside any Act of Parliament that is incompatible with Convention rights; this is the prerogative of Parliament (which has a fast-track procedure which it may use in such cases if it wishes to do so).

Validity of statutes

The doctrine of Parliamentary sovereignty means that the validity of any statute passed by Parliament cannot be challenged. It is most commonly associated with Dicey (1982), who defines sovereignty as consisting of a) the right to make any law whatsoever (unlimited legislative competent); and b) the principle that there is no competing legislative body to Parliament.

In British Railways Boad v Pickin [1974] AC 765, HL, Lord Morris confirmed that the courts could not argue whether a statute ‘should be on the statute book at all’. However, T.R.S. Allan (1985) has proposed that the courts should be able to challenge Acts of Parliament in exceptional circumstances (for instance, if the Act challenges the basis of democracy or is made by an unrepresentative Parliament).

Delegated legislation

Delegated legislation is sometimes referred to as subordinate legislation. What this refers to is the process by which Parliament has delegated the power to legislate to various persons and bodies. Hence, delegated legislation is a law made by such persons or bodies with the authority of Parliament. The authority is granted by an enabling Act (sometimes called a parent Act), which confirms the extent of the authority and any procedural stipulations which are to be followed.

Unlike Acts of Parliament, delegated legislation may be challenged in the courts via the doctrine of ultra vires (a Latin term meaning beyond (his) powers). If a body acts beyond the powers that are delegated to it, then the delegated legislation can be declared void by the court. This may be procedural (where the delegated legislation was created without following the proper procedure); substantive (where the provisions of the delegated legislation were outside the enabling Act); or where the provisions are irrational (such that no reasonable rule-maker could have arrived at them). Delegated legislation is also ultra vires if it conflicts with a previous Act of Parliament or European legislation (s.2(4) European Communities Act 1972).

There are several advantages to delegated legislation. It generally means the detailed rules and regulations can be implemented into the legal system relatively quickly. Another advantage is that MPs usually do not have sufficient knowledge to debate particular specialist areas and therefore the interests of the public are better served by delegating their authority to those who have full knowledge. Moreover, there is insufficient Parliamentary time available to debate all Bills in full and delegated legislation enables the most effective use of the limited time available.

To the contrary, there are several disadvantages to delegated legislation. The most fundamental one is that this type of legislation is not fully debated in Parliament and therefore the opportunity for public objection is minimised meaning that it is less democratic. In addition, delegated legislation is not publicised before and after implementation as widely as Acts of Parliament.


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