Parliament consists of three distinct elements; the House of Commons, the House of Lords and the Monarch. Before any legislative proposal, known at that stage as a Bill can become an Act of Parliament it must proceed through, and be approved by both Houses of Parliament and must receive the Royal Assent. Delegated legislation is of particular importance. Generally speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law making power. Delegated legislation has the same degree of legal force and effect as the Act of Parliament under which it was enacted.
During the course of this essay I will compose an evaluation of both, the legislative process and delegated legislation, highlighting their relative merits and limitations within the English legal system today. When a Bill is introduced to the House of Commons, it undergoes five distinct procedures: the first reading, second reading, committee stage, report stage and finally the third reading. The first reading is purely a formal procedure in which the title of the Bill is read and a date set for its second reading.
The second reading is when the general principles of the Bill undergo extensive debate. This is the critical stage in the process of a Bill. At the end, a vote may be taken on its merits and, if approved, it will find its way on to the next stage. The committee stage is where the Bill is passed to after the second reading. A standing committee have the job of considering the provisions of the Bill in detail, clause by clause. The committee has the power to amend it in such a way, as to, ensure that it is in conformity with the general approval given by the House at its second reading.
The report stage, at this point the standing committee reports the Bill back to the House for consideration of any amendments made during the committee stage. The third reading is when further debate may take place during this stage, but it is restricted to matters relating to the content of the Bill and questions relating to the general of the Bill cannot be raised. When a Bill has passed all these stages, it is passed to the House of Lords for its consideration. The above procedures are repeated in this House unless the Bill began here, in which case it would pass to the Commons.
After the Bill passes all stages in both Houses, it proceeds on to, for Royal Assent. This is when the monarch gives the final approval, by signing and authorising the Bill, thus converting the Bill to an act and bringing it into effect. The Royal Assent is mere formality today, and the Bill, by convention of both Houses, cannot be refused, as it would place the constitutional position of the monarchy in jeopardy. Most Bills are proposals by the government, but it is also possible for a member of parliament to propose a Bill. This is what is known as, a Private Member's Bill.
Members of Parliament can do this in one of three ways. They are; the ballot procedure, by means of 20 back-bench members get the right to propose legislation on the 10 Fridays in each parliamentary session, specifically set aside to consider such proposals. Secondly under Standing Order 39 this permits any member to present a Bill after the 20 balloted Bills have been presented. Finally Under standing 13, the 10-minute rule procedure, which allows a member to make a speech in favour of introducing a particular form of legislation for up to 10 minutes. Of these procedures the most common and successful is the first.
Alongside these types of Bills there are; Public Bills, and private bills. A Public Bill is a Bill affecting the public at large for example buggery; the sexual act between a man and woman. A Private Bill is one where the powers and interests of particular individuals or institutions can have a major effect on the public. For example companies, given the power to appropriate property through compulsory purchase orders. Delegated legislation, as has previously been defined is, when Parliament has handed over the authority to a person or body to its general law making power.
Some examples of delegated legislation are commencement orders, regulation orders, Church of England measures, Northern Ireland Orders, but mostly Orders in Council and the Highway Code. Delegated legislation is normally created by an Act of Parliament, although it may also be made under the Royal Prerogative. This is termed subordinate legislation, since delegated legislation can only be created by delegated (statutory) authority. Although the sovereignty of Parliament necessarily implies total freedom to create delegated legislation by whatever form it chooses in practice there are a limited number of types of delegated legislation.
Some examples are; local authority by-laws made by councils under enabling Acts (Local Government Act 1972), Orders in Council made by statutory authority or under the Royal Prerogative e. g. for exercising control over new dominions. Delegated legislation, despite saving precious time for our elected representatives in the House of Commons, suffers from a myriad of problems. For instance, the necessity of using delegated legislation implies that Parliament has insufficient time to scrutinise it. Therefore Parliament is not reviewing legislation properly.
Another problem is, there may be subdelegation of powers1 causing complexity and confusion. Delegated legislation can, more often than not, cause great confusion and it is difficult to fathom, at least in its entirety because there is such a vast amount of it. It is also a defence to prosecution to plead that the relevant Statutory Instrument had not been published, unless reasonable steps had been taken to bring it to the attention of the public whom it would affect2.
In certain cases the primary reason for using delegated legislation, is that there can be a rapid response to new developments, e.g. the Prevention of Terrorism Act3 allows the quick addition of new prohibited groups. Similarly delegated legislation may allow minor amendments to statutes, such as might be appropriately being left to politicians, without the rigmarole of a new Act. For example the increase of the maximum extended licence period imposable on violent offenders to be in line with that imposable on sexual offenders4. An advantage of delegated legislation is that, unlike statutes, judicial review may be sought, although only by 'interested' parties (persons directly affected by the legislation).
The Committee on Minister's Powers5 said "whether good or bad", delegated legislation is inevitable, and, in the opinion of one of its members that it was a "necessary evil, inevitable… but nevertheless a tendency to be watched with misgiving" Delegated legislation is made because of; limits in time in Parliament, they allow rapid change and M. Ps lack detailed and technical legal knowledge. Turning attention to relative advantages/disadvantages of the legislative process, there exist several discernible disadvantages. Most M. Ps as previously mentioned, lack legal knowledge in brevity.
They are, after all, politicians and not lawyers. In the House of Lords, there are many former barristers, lawyers and the like. It should be noted that there is an inbuilt Conservative majority in the House of Lords and it has been deployed for less than praiseworthy campaigns. Amongst the latest of these involves equalising the age of sexual consent between homosexuals at 16, as it is with heterosexuals. In 1998 the House of Lords managed to avoid this by threatening the Government's major Criminal justice Bill, subsequently the Crime and Disorder act 1998.
The Lords maintained there resistance but eventually gave way; it resulted in the Sexual Offences (Amendment) Act 2000. The Lords have also stuck there distinguished noses, in the Labour Government's promise to remove s 28 of the Local Government Act 1988 to intentionally promote homosexuality in schools, they were successful. These are merely two examples of interference on the part of the Lords, who, when suiting there Conservative 'Middle England' views and principles, can bully and threaten the Government. Perhaps, they feel their retaining good English values and morals that once existed.
One thing is for sure, democracy has never prevailed in the House, so how can they possibly be speaking on behalf on the nation? In 1975, in response to the criticisms of the language and style of legislation, arose the Renton Committee, comprised from the judiciary to the lay public examined the obscurity of language, over-elaboration of provisions, logicality of structure and confusion arising from the amendment of existing provisions. In short, it was unanimous that archaic language was very much prevalent and all criticisms were to certain extents justified.
It may be argued legislation is heavily debated, by those whom we have duly elected. Scrutiny is a key issue in this debate, and the processes of legislation are by no means hastily carried forward. Much time is devoted by our M. Ps in the House of Commons, and by the Lords, as each aspect is carefully debated and discussed sometimes even challenged. In conclusion, there lies within both forms of legislation, much room for rectification. Rectification we hope to see sooner rather than later.