Parliamentary Law Making (AQA A-Level Law): Revision Notes
Parliamentary law making
This content will be assessed in Paper 2 of the AQA A-Level Law examination.
Introduction
Law making is a fundamental aspect of the English legal system. Understanding how Parliament creates legislation is essential not only for appreciating the legal system itself, but also for understanding how it impacts substantive areas of law such as criminal law and tort law. This note focuses specifically on parliamentary law making, which is the primary source of law in the UK.
The structure of Parliament
The UK Parliament, based in the Palace of Westminster in London, is a tripartite body consisting of three parts: the monarch, the House of Lords, and the House of Commons. It is also a bicameral legislature, meaning the legislators are divided into two separate assemblies or chambers (the House of Lords and the House of Commons).
The UK Parliament's structure reflects centuries of constitutional development. The combination of the monarch (representing tradition), the House of Lords (providing expertise and revision), and the House of Commons (representing democratic will) creates a system of checks and balances in the legislative process.
The monarch
The UK operates as a constitutional monarchy. This means the monarch (currently the King) is bound to exercise powers and authority only within the limits prescribed by law. Unlike some countries, the UK does not have a written constitution. Instead, rules originate from conventions, practices, and precedents of Parliament, which together form the Constitution of the United Kingdom.
The monarch acts as a ceremonial figurehead — a theoretical source of executive power who does not actually exercise executive powers. Instead, executive powers may be exercised in the monarch's name by Parliament and the government.
All persons accepting significant public office must swear an oath of allegiance to the monarch. However, the monarch is bound by constitutional convention to act on the advice of the government when making these appointments.
Political theorist Walter Bagehot identified three main political rights which a constitutional monarch may freely exercise:
- The right to be consulted
- The right to encourage
- The right to warn
House of Commons
By convention, the House of Commons is the seat of government and is Parliament's only democratically elected element.
The UK is divided into 650 constituencies, each of which votes for a Member of Parliament (MP) to represent it. This vote is known as a general election and must be held at least every five years.
The government is formed by the political party with a majority of MPs in the House of Commons. The leader of this political party is invited by the monarch to be Prime Minister. Because the government has a majority, it has the main influence in formulating new Acts of Parliament.
House of Lords
The House of Lords is a non-elected body made up of:
- 92 hereditary peers who inherited their title (though after reforms in 1999, this right will not pass down with their title)
- Around 700 life peers appointed on a non-partisan basis by the House of Lords Appointments Commission
- The 26 most senior bishops in the Church of England
Prior to 1999, there were approximately 750 hereditary peers. Following reforms, only 92 hereditary peers retain the right to sit in the House of Lords. This significant reduction was part of efforts to modernize the House of Lords and reduce the influence of inherited titles in the legislative process.
Imperfect bicameralism
Because the House of Lords is non-elected, the House of Commons can override it under powers contained in the Parliament Acts 1911 and 1949. This is known as imperfect bicameralism, meaning the two houses are not equal in power. The elected House of Commons ultimately has greater authority than the unelected House of Lords.
The principle of imperfect bicameralism is crucial to understanding UK parliamentary democracy. While the House of Lords plays an important role in scrutinizing and revising legislation, it cannot ultimately block the will of the democratically elected House of Commons. This ensures that the elected representatives of the people have the final say in law-making.
Green and White Papers
Each government department (such as the Ministry of Defence or the Department for Education) is responsible for a specific area of government policy.
When a change in the law is being considered, the relevant department will draft preliminary documents known as Green Papers and White Papers:
Green Paper: A consultative document issued by the government putting forward proposals for reform of the law and inviting suggestions from interested parties.
White Paper: A document issued by the government stating its decisions as to how it is going to reform the law. This is for information rather than consultation.
Think of Green Papers as the government asking "What do you think?" and White Papers as the government stating "This is what we're going to do." Green Papers invite debate and feedback, while White Papers announce firm decisions that will typically proceed to the Bill stage.
Types of Bills
While a new law is making its way through the formal stages of becoming an Act of Parliament, it is known as a Bill. There are several types of Bills:
Public Bills
Public Bills involve matters of public policy affecting the whole country or a large section of it. Most government Bills fall into this category.
Example: Public Bill
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is a Public Bill because it affects sentencing policy and legal aid provision across the entire country, impacting the general public rather than specific individuals or organizations.
Private Members' Bills
These are Bills introduced by individual (private) MPs who are not part of the government. They can be from any political party and are known as 'backbenchers' because they do not sit in the front row in the House of Commons with the government.
There are two ways a private MP can introduce a Bill:
- By ballot
- Through the 'ten-minute' rule
Private Members' Bills are particularly important in areas involving moral issues, where MPs may vote according to their conscience rather than party lines. While relatively few Private Members' Bills become law, they can address important social issues that might not be government priorities.
Private Bills
Private Bills are designed to create a law which will affect only individual people or corporations. They do not affect the whole community.
Hybrid Bills
Hybrid Bills are a cross between Public Bills and Private Bills. They are introduced by the government, but if they become law they will affect a particular person, organisation or place.
The formal legislative process
A Bill must pass through several stages before becoming an Act of Parliament. The process involves careful scrutiny and debate to ensure the law is properly considered. The stages are:
- Bill is drafted: The proposed legislation is written in legal language
- First reading in the House of Commons: The Bill's title is read out and a date set for the second reading. No debate occurs at this stage
- Second reading in the House of Commons: The main principles of the Bill are debated and voted upon
- Committee stage: A committee of MPs examines the Bill in detail, clause by clause, and may propose amendments
- Report stage: The committee reports back to the whole House, which considers any amendments
- Third reading in the House of Commons: A final vote on the Bill, usually without further debate
- Same procedures in the House of Lords: The Bill goes through similar stages in the House of Lords
- Royal Assent: The monarch formally approves the Bill, which then becomes an Act of Parliament
This process contains important checks and balances designed to prevent abuse of power and ensure legislation is properly scrutinized before becoming law. The multiple readings and stages ensure that Bills receive thorough examination from different perspectives before they can become binding law.
Influences on Parliament
Parliament's legislative agenda is shaped by various influences. Understanding these helps explain why certain laws are created.
Political influences
When a general election is called, political parties publish a manifesto containing promises about what new laws they will introduce if elected. Once in power, the governing party will typically seek to implement these manifesto commitments.
Advantages
Each political party has its proposals ready, and a government with a majority can usually pass the Bills it introduces.
Disadvantages
Making promises during an election is easier than fulfilling them when in power, particularly without an overall majority (as the Conservative/Liberal Democrat coalition found in 2010-15).
Example: Political Influence
The Hunting Act 2004 followed the Labour Party's manifesto promise to outlaw fox hunting if elected. This Act also demonstrates the use of the Parliament Acts 1911 and 1949, as the House of Lords opposed it but could not ultimately prevent it from becoming law.
Media influences
Where there is strong public opinion about an issue, particularly when given high-profile media coverage, the government may respond with legislation.
Advantages
The UK's free press is able to criticize government policy and bring important issues to the government's attention through public opinion.
Disadvantages
Responding too quickly to high-profile incidents can lead to poorly drafted law. Media companies can also manipulate news to create or influence public opinion.
Example: Media Influence
Following the Dunblane massacre in 1996, private ownership of handguns was banned. This demonstrates effective responsive legislation to a tragic event.
However, the Dangerous Dogs Act 1991 is cited as an example of poorly drafted legislation created in response to media pressure, showing the dangers of legislating too hastily.
Pressure groups
Pressure groups are organizations that seek to influence government policy. There are two main types:
- Sectional pressure groups: Represent the interests of a particular group of people
- Cause pressure groups: Promote a particular cause
Advantages
Pressure groups often bring important scientific discoveries or social issues to the government's attention, such as the damage caused by greenhouse gases and other pollutants.
Disadvantages
Sometimes two pressure groups have conflicting interests, making it difficult for the government to satisfy all parties.
Example: Pressure Group Influence
In 2007, laws against smoking in public places were introduced because of pressure from public health groups and medical opinion. This shows successful collaboration between medical evidence and activism.
The fox hunting debate involved conflict between the League Against Cruel Sports (which wanted a ban) and the Countryside Alliance (which wanted hunting to continue), demonstrating how pressure groups can have opposing objectives.
Public opinion
Public opinion refers to the views of members of the general public in the UK. This is a strong influence on Parliament because those aged over 18 are entitled to vote in general elections, and the government needs public support to remain in power.
Advantages
Where the majority of the public holds certain beliefs or demands, Parliament can safely pass legislation on that issue.
Disadvantages
Gauging public opinion can be notoriously difficult. Realistically, no one can definitively say that the majority of the public believes one way or another on a specific issue.
Example: Public Opinion Influence
Public opinion was mixed as to whether the UK should leave the EU. In a national referendum in 2016, the majority of those who voted chose to leave the EU. This allowed Parliament to legislate in 2017 to permit this to happen (Brexit).
Lobbyists and lobbying firms
Lobbyists are usually professionals or organizations who try to persuade or influence governments to enact, amend or repeal legislation that affects their interests or their representatives' interests. Most multinational companies employ or use lobbyists.
Advantages
Like any service industry, citizens or organizations can approach a lobbyist to represent and present their interests directly to government ministers or their departments, particularly where lobbyists have political contacts.
Disadvantages
Lobbyists are expensive and may only represent those citizens or groups who can afford to pay for their services. Accusations of dubious and corrupt methods, such as 'cash for questions', have been made against lobbyists.
Example: Lobbying Influence
Bell Pottinger Private is an example of a lobbying firm that has represented various clients' interests to government.
The Law Commission
The Law Commission is the UK's main law reform body, which recommends or researches law reform on behalf of the government. Its role in influencing changes to the law is significant and will be examined in more detail in the law reform section.
The doctrine of parliamentary supremacy (sovereignty)
The constitutional expert A.V. Dicey provided the classic definition of parliamentary sovereignty:
The principle of Parliamentary sovereignty means ... that Parliament ... has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
This principle means two important things:
- Parliament cannot control the actions of its future self
- The courts have no power to question the legality of an Act of Parliament
British Railways Board v Pickin (1974) is the key case establishing that courts cannot question the validity of an Act of Parliament. This case demonstrates the fundamental principle that once Parliament has passed an Act, the courts must apply it regardless of any procedural irregularities in how it was passed.
Limitations on parliamentary supremacy
Despite the doctrine of parliamentary supremacy, there are currently several Acts that give the courts power to declare new parliamentary laws incompatible with them, creating apparent contradictions to the rule above.
Human Rights Act 1998
Section 4 of the Human Rights Act 1998 gives courts the power to declare an Act incompatible with the European Convention on Human Rights.
Case Example: H v Mental Health Review Tribunal (2001)
This case declared that the Mental Health Act 1983 was incompatible with the European Convention on Human Rights. The case demonstrates how courts can make declarations of incompatibility, though they cannot actually strike down Acts of Parliament.
European Communities Act 1972
Section 2 of the European Communities Act 1972 (ECA) provided that where EU law existed on a particular subject, it could override any inconsistent UK law, including Acts of Parliament.
Case Example: Factortame v Secretary of State for Transport (1990)
This case held that the Merchant Shipping Act 1988 was contrary to EU law and could not be enforced. This was a significant case because it showed EU law taking precedence over an Act of Parliament.
However, as part of Brexit (the UK's withdrawal from the European Union), the ECA was repealed, demonstrating that Parliament ultimately retained its supremacy and could choose to leave the EU legal framework.
Devolution Acts
By passing the Scotland Act 1998, Wales Act 1998 and Northern Ireland Act 1998, the UK Parliament devolved some of its powers to the Scottish Parliament, Welsh Government and Northern Ireland Assembly. This handed over much self-governance to Scotland, Wales and Northern Ireland.
Parliament's ultimate supremacy
Despite these apparent limitations, Parliament remains ultimately supreme. In theory, there is no reason why Parliament cannot repeal the Human Rights Act, the Scotland Act, the Wales Act or the Northern Ireland Act, thus regaining its full supremacy. These Acts can be repealed without requiring an additional majority.
While repealing devolution legislation would not be considered politically wise, it remains technically possible, demonstrating that parliamentary supremacy is a continuing reality. The fact that Parliament could theoretically undo these arrangements proves that it has not permanently limited its own power.
Remember!
Key Points to Remember:
-
Parliament consists of three parts: the monarch (ceremonial figurehead), the House of Commons (elected), and the House of Lords (unelected)
-
Bills go through multiple stages in both Houses before receiving Royal Assent and becoming Acts of Parliament
-
Various influences shape Parliament's legislative agenda: political manifestos, media coverage, pressure groups, public opinion, and lobbyists all play important roles
-
Parliament is ultimately supreme: it can make or unmake any law, and courts cannot question the validity of Acts of Parliament (British Railways Board v Pickin 1974)
-
Apparent limitations on supremacy (Human Rights Act 1998, devolution) can theoretically be removed by Parliament repealing the relevant Acts, confirming Parliament's continuing sovereignty