English%20Legal%20System

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English Legal System

• Institutions of the English Legal System
• The law-making process
• Parliamentary Procedure

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Aims

• The aims of this lecture are
• To revise the three branches of government and
  their functions
• To look at the composition of each branch and how
  they relate to one another
• To consider where laws start life and the
  consultation procedure which precedes the
  Parliamentary stage of law-making
• To consider the quality of Parliamentary
  drafting
• To look in detail at the legislature and how laws
  are passed through Parliament
• To examine Private Members Bills and why they
  are relatively unsuccessful.

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Outcomes

• By the end of this lecture you should be able to
• Describe the different branches of government and
  their relationship to one another
• Describe both the Whitehall stage of legislation
  and the parliamentary procedure for passing bills
  into law
• Critically assess the current method of drafting
  bills and how effective this is in producing
  clear and accessible legislation
• Critically assess the procedure for passing
  Private Members Bills into law.

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The Branches of Government

• Since the 17th or 18th century government has
  traditionally been divided into 3 branches.
  These are
• The Legislature
• The Executive
• The Judiciary
• The French legal theorist Montesquieu in the 18th
  century devised the theory that these three
  branches should have separate functions and
  personnel, what is called the separation of
  powers

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The Legislature

• A legislature, or legislator, is a person or body
  who makes the law
• In England and Wales the supreme legislature, as
  for Scotland and Northern Ireland is the
  Westminster Parliament
• This sometimes expressed as the
  Queen-in-Parliament, as for a valid Act of
  Parliament the consent of the Lords, the Commons
  and the Queen is required
• One of the fundamental doctrines of the English
  Legal System is that Parliament is supreme or
  sovereign
• The legal theorist Dicey expressed this view in
  the 19th century

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The Executive

• The executive is sometimes referred to as the
  government, but is in fact a much wider term
• It includes the Queen, or rather the Crown in the
  powers that are executed by the Prime Minister or
  other Ministers of the Crown
• It also includes the civil service, the police,
  local government and any services provided by the
  state such as the National Health Service
• Its role is to execute, and in the governments
  case, propose the law

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The Judiciary

• The Judiciary are the branch of government that
  most people associate with the legal system,
  although it is important to realise that the
  executive is also a major maker of laws through
  its dominance of the legislature
• It is the Judiciarys role to interpret and apply
  the law
• The Judges should be independent of the
  executive, this has not always been the case as
  they were once subject to the Kings displeasure
  and dismissal from office
• Their independence is essential to preserving the
  rule of law and ensuring that individual
  litigants obtain justice

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The Law-Making Process Part 1 Parliamentary Law
Making

• As stressed above, Parliament is not the only
  body who passes laws, it is, however, the most
  important as its laws take precedence over all
  others apart from EC law
• Where do the laws start life?
• Laws start life as an idea possibly that of a
  politician, or more likely of a think-tank, or
  policy adviser
• Laws also are made to remedy defects and because
  of a pressing need in the country some of these
  may be populist in nature
• They may be in the party manifesto, and if the
  party is elected will become a part of its policy
  and may begin the long journey to getting onto
  the statute book
• It is important to remember that law-making is
  vitally a political process as much as legal one

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What proportion of laws start life in a political
manifesto?

• You would think given the nature of the political
  system, the election of parties based on their
  manifesto pledges would mean that this is major
  source of legislation
• However, this is not actually the case, the
  proportion emanating from this source is
  negligible
• 8 of bills in the period 1970-1974
• 13 of bills in the period 1974-9
• Richard Rose, Do parties make a difference?
  (1984) reference in Professor Zanders book on
  the Law Making Process

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The Whitehall Stage

• After the government has endorsed a proposed law
  as part of its policy, it must then get the
  feedback of groups who will be affected by the
  law or have an interest in it
• White papers
• Green papers
• After these papers have been published and
  approval, or not, given, then the Office of
  Parliamentary Counsel to the Treasury must draft
  the Bill
• The staff of this office may be either solicitors
  or barristers

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What is a White Paper?

• Harold Wilson gave the following definition
• A White Paper is essentially a statement of
  government policy in such terms that withdrawal
  or major amendment, following consultation or
  public debate tends to be regarded as a
  humiliating defeat

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What is a Green Paper?

• Introduced by the Labour Government in 1967 as an
  alternative to a White Paper
• See Cedric Sandfords article, Open Government
  The Use of Green Papers, British Tax Review ,
  1980
• A Green Paper represents the best that the
  government can propose on the given issue , but,
  remaining uncommitted, it is able without loss of
  face to leave its final decision open until it
  has been able to consider the public reaction to
  it

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Quality of Government Papers

• Some commentators have criticised the papers that
  the government publishes in some areas for a
  number of reasons. These may be summarised as
• Government assertions of policy
• Not fully reasoned in their decisions
• Failure to take account of the negative steps in
  adopting a policy as well as the positive.

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The Drafting Stage criticisms of parliamentary
drafting

• The Preparation of Legislation, 1975, Cmnd paper
  6053 surveyed the history of criticism of
  parliamentary drafting from the Early Modern
  Period
• The Renton Committee divided the problems with
  drafting into four headings

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Renton Committee Headings

• Language obscure and complex, often elusive and
  effect uncertain
• Over-elaboration desire for certainty leading
  to involved provisions
• Structure often illogical and unhelpful to the
  reader
• Arrangement and amendment

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The Westminster Stage

• Once the Bill has been drafted it must be
  presented to both Houses of Parliament, the Lords
  and the Commons, for them to debate and propose
  amendments
• The procedure for both Houses is largely the
  same, so can be dealt with together
• Whether a bill starts life in one House or the
  other depends on the pressure of Parliamentary
  business, and the choice of the government.
  Money bills, however, must start life in the
  Commons

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Westminster stages of the bill

• The First Reading
• This is largely a formality. The name of the bill
  is read out by the Clerk of the House. Copies of
  the bill are printed and distributed for reading.
  
• The Second Reading
• This is rather more important, a debate on the
  general principles of the bill and amendments may
  be proposed. If the bill is passed at this
  stage, then it is likely that it will,
  eventually, reach the statute book

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Stages of a bill (cont)

• The Committee stage
• This is where detailed scrutiny of the bill,
  clause by clause takes place by a Standing
  Committee of the House (in the Commons that is,
  the Lords differs slightly at this stage in that
  this is done by a Committee of the whole House)
• The Report Stage
• At this stage the Committee Chairman reports to
  the House and proposes any amendments to the bill
  which are then debated
• The Third Reading
• This stage is mainly a formality

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After the Third Reading

• After the third reading in one House, the bill
  then has to go to the other House to be approved
  by them or for amendments to be made. Sometimes
  amendments are made for political reasons to try
  and scupper the bill
• A recent topical example is the Civil
  Partnership Bill which has been laid before the
  Lords and to which the Lords recommended an
  amendment to include family members who in a
  close relationship. Some commentators have
  considered this to be an attempt to force the
  government to withdraw the bill
• The Civil Partnership was, however, eventually
  passed by Parliament

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Royal Assent

• The bill is then presented for the Royal Assent.
  This is still given in Norman French, but not in
  person by the monarch
• Royal Assent has not been refused to a bill since
  1707 when Queen Anne withheld her consent to the
  Scottish Militia Bill
• Whether Royal Assent can be refused is a moot
  point
• The bill still needs to be brought into force,
  however, and most Acts of Parliament are not
  brought into force at the date of the Royal Assent

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A Parliamentary Session

• A Parliamentary Session runs from one State
  Opening of Parliament to the other
• The State Opening of Parliament is when Queen
  delivers the Queens Speech
• It is approximately a year long
• Traditionally all bills had to be passed within
  the Parliamentary session, otherwise they would
  lapse
• The Labour Government has introduced a procedure
  whereby bills will be carried over from one
  session of Parliament to another

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Constraints on Parliamentary Scrutiny of Bills

• Arguably Parliament does not scrutinise bills
  adequately. Reasons for this can be given as
  follows
• Pressure on Parliamentary time from the debates
  of major public importance to the role of MPs in
  promoting constituency interests
• The party politics of the House of Commons
• The lack of qualifications of many MPs.

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Measures to improve Parliamentary scrutiny

• Guillotine motions introduced at the end of the
  nineteenth century limits the debating time
  which is allotted to the Bill
• Programme motions the Labour Government
  introduced these they allot the Bill specific
  time to pass through the session of Parliament
• Special Standing Committees these hear evidence
  from specialists on a topic
• They have only been used on a handful of
  occasions the first was with the Criminal
  Attempts Act 1981

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Private Members Bills

• The government introduces the majority of bills
  into Parliament
• There are four types of private members bills
• Ballot Bills
• Ten minute rule bills
• Peers Bills
• Presentation Bills.

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Ballot Bills

• Ballot of backbench MPs is taken at the start of
  the session
• 20 names are drawn and if high up on the ballot
  there is a good chance that the bill proposed may
  become law
• The drafting of these bills is a matter for the
  private member, although funds have become
  available in the House of Commons since 1971 (for
  further information see Zander)

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Ten-minute rule bills

• These are introduced under Standing Order No 13
• Any MP may introduce one and gets to speak for 10
  minutes in support of the bill
• If there is no opposition, then the bill will get
  a first reading, but it is unlikely that it will
  proceed to the second
• A vote is taken on the first reading if the bill
  is opposed
• Not regarded as serious attempt to make
  legislation

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Presentation Bills

• After the ballot any MP may propose a bill,
  present, the bill to the House
• In order to do so he or she will have to inform
  the clerk of the House
• This procedure is governed by Standing Rule 39
• Theses types of bills are particularly
  unsuccessful as they can be destroyed by the
  opposition of one member of the House

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Success of Private Members Bills

• Not many private members bills are successful
• Reasons for the relative lack of success of
  private members bills may be cited as follows
• Lack of debating time
• The subject matter of the bill which may be
  either controversial or obscure
• Adoption of the subject matter of the bill by the
  government.
• The Abortion Act 1967 and the Sexual Offences Act
  1967 were both introduced using this procedure

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Lack of Debating Time/adoption of a bill

• The government controls the Parliamentary
  timetable and so is able to give precedence to
  its bills
• The government may adopt a Private Members Bill
  for example the Foxhunting Bill

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Controversial Subject Matter

• We have already seen that Private Members Bills
  can be used to give prominence to a certain issue
• Examples of controversial bills in the 1960s were
  the Sexual Offences Act 1967 and the Abortion Act
  1967
• In more recent times other controversial areas
  have included the European Union (Implications of
  Withdrawal) Bills introduced in 1999/2000,
  2000/01 2001/02

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Success of ballot bills

• By far the most successful are ballot bills, why?
• They have the whole parliamentary session in
  which to pass the process outlined above
• They are selected at the start of the process
• Arguably the government will allow a private
  members bill to proceed, even though it does not
  publicly wish to support it.

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Private Bills

• The procedure outlined in this lecture has been
  for the passage of public general acts through
  Parliament these apply to everyone in the
  country, they affect the general public in other
  words
• There are also private acts of Parliament which
  govern an individual or legal person
• These are subject to a different procedure

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Procedure for a Private Bill

• This depends on whether the bill is opposed or
  unopposed and was considered in an article in
  Public Law, a journal, in 1981
• The key difference lies at the Committee stage of
  the bill where it is considered in detail
• The proponents have to prove that the bill is
  expedient
• For opposed bills there is hearing before a
  Committee where the proponents/opponents of the
  bill will be represented by counsel
• In that goes to a third reading, although there
  may be a report stage in the Commons

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Summary of lecture

• You should now be able to
• Describe how laws are formulated at the policy
  level
• Understand the difference between Green and White
  Papers
• Describe the stages through which a Bill must
  pass in order to become an Act of Parliament
• Identify what is meant by a Private Members Bill
  and why these bills are not always successful
• Identify reasons why Ballot Bills are usually
  more successful than other types of Private
  Members Bills.

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Further reading for this lecture

• Zander, M., The Law Making Process (London
  Butterworths, 1999, 5th edition), chapters 1 and
  2
• Slapper, G. and Kelly, D., The English Legal
  System (London Cavendish Press, 2004, 7th
  edition), chapter 2.2 Legislation, pp.63-75