Parliament (Legislation)

StudyBlue printing of Parliament (Legislation) html, body, div, span, applet, object, iframe, h1, h2, h3, h4, h5, h6, p, blockquote, pre, a, abbr, acronym, address, big, cite, code, del, dfn, em, font, img, ins, kbd, q, s, samp, small, strike, strong, sub, sup, tt, var, b, u, i, center, fieldset, form, label, legend, table, caption, tbody, tfoot, thead, tr, th, td { margin: 0; padding: 0; border: 0; outline: 0; font-size: 100%; background: transparent; } body { line-height: 1; } blockquote, q { quotes: none; } blockquote:before, blockquote:after, q:before, q:after { content: ''; content: none; } /* remember to define focus styles! */ :focus { outline: 0; } /* remember to highlight inserts somehow! */ ins { text-decoration: none; } del { text-decoration: line-through; } /* tables still need 'cellspacing="0"' in the markup */ table { border-collapse: collapse; border-spacing: 0; } /* end RESET */ .header { min-width:800px; } .logo { padding:6px 20px 2px 20px; margin:0; font-size:25px; font-weight:bold; color:#808285; position:relative; border-bottom: 1px solid #c5c5c5; } .logo-blue { color:#70adc4; } .logo-desc { font-weight:normal; font-size:19px; color:#cccccc; margin-top:50px; position:absolute; display: none; } .back-button { position:absolute; top:20px; right:20px; font-size:13px; line-height:25px; color:rgb(0,175,225); font-weight:normal; } .back-button a { color:rgb(0,175,225); } .instructions { padding:0; margin:0; width:100%; position:relative; color:rgb(100,100,100); } .step-holder { border-left:1px solid #ededed; margin-left:20px; } .steps { padding:15px 0; float:left; width:24%; border-right:1px solid #ededed; text-align:center; } .steps-01 { } .steps-02 { } .steps-03 { } .steps-04 { } .label { padding:5px 10px; } .print-button { } .print-button a { background-color:rgb(0,175,225); color:white; line-height: 19px; padding:9px 8px 5px 30px; font-size:14px; text-decoration:none; background-image: url(images/printer.png); background-repeat: no-repeat; background-position: 7px 50%; -moz-border-radius: 5px; -webkit-border-radius: 5px; } .print-button a:hover { background-color:black; } .theNote .content { width: 8.0in !important; margin: 5px auto; padding:20px; background-color:white; } .theNote .header { border-bottom: 1px dashed #C8C8C8; font-size: 17px; padding: 0 0 10px; line-height: 19px; color: #00ADE1; min-width:500px; } .theNote .body { font-size: 14px; line-height: 19px; padding: 10px 0; } .theNote{ padding:6px 0; clear:both; background-color: rgb(200,200,200); } .theNote h3{ color: rgb(100,100,100); } .theNote h1, .theNote h3{ background-color:white; padding:2px 20px; width:8.0in !important; margin: 0 auto; font-size: 15px; } .theNote h1{ padding-top: 10px; font-size: 15px; } .theNote h1:first-child{ font-size: 20px; } .theNote h3 { font-size: 14px; font-weight: normal; } #options { border: 3px double #ccc; padding: 5px 12px; margin: 10px 50px 10px 20px; float: left; } #info { border-top: 1px solid #ccc; padding-top: 5px; font-style: italic; } li { margin: 5px 10px 5px 25px; } ul li { list-style: disc; } ol li { list-style: decimal; } img { border: 0; } table { clear: both; width: 100%; border: 1px solid #c5c5c5; border-width: 1px 0; margin: 0; page-break-after: always; } table#page { page-break-after: auto; } td { text-align: center; font-size: 12px; border-bottom: 1px dashed #c5c5c5; height: 1.75in; width: 50%; padding-left: 15px; } .leftside { border-right: 1px solid #cccccc; padding: 0 15px 0 0; } .bottom td { border-bottom: none; } .clearfix { clear:both; line-height:1px; height:1px; } img { max-width:80%; max-height:150px; margin:20px; } @media print {.header { display: none; } .content .header{ display:inherit; } table { border: 1px dashed #bbb; border-width: 1px 0; } .theNote{ background-color:white; } } Parliament Functions of the House of Commons represent the grievances of all sections of society scrutinize government action propose legislation through private members' bills legitimise government actions Composition & Procedure 646 MPs, a regulatory Speaker, Government depends on Parliament's support for its existence. If there is a vote of no confidence in HM Government, one or the other must go. An election is held. The Whips Party enforcers; with the growth of the party system, the whips became an instrument for enforcement to make all MPs vote along party lines. This may be done through bribery or threat of expulsion from the party. Critics argue that this has removed the individuality of MPs and nullifies the effect of a system that intends to hold the executive to account. Allocation of Parliament's Time Government business takes priority during 75% of the days the commons sits. 20 days for opposition. Standing orders allow for emergency debate, passing of a bill with the 10 minute rule and Private Members bills. A 'guillotine motion' gives the government procedural powers to limit the amount of time allowed for debate at one of the stages of the passage of a bill. Legislative Steps Proposal > Green Paper > White Paper > Pre-legislative scrutiny by Parliamentary committee > Scrutiny by Joint Committee on HR > First Reading (Formality) > Second Reading (Debate) > Committee Stage (analysis and vote on each clause to agree on whether it should "stand part" of the bill) > Third Reading and Vote > Readings in HL > Agreement between Houses > Royal Assent Increasingly, there is pre-legislative scrutiny through select committees. Also under s. 19 HRA, the relevant minister must certify whether a bill is in compliance with HR. Private Member's Bills (relating to matters of private interest brought by individuals or organisations) and Hybrid bills (relating to matters of general interest, but in reality affecting only individuals) have limited success in becoming law. Different parliamenary stages apply. Delegated legislation Specific provisions of an act may be brought into force or altered by passing Statutory Instruments. These comprise the largest volume of law made each year. The law made with powers of delegate legislation are of equal status to primary legislation except that the minister's abuse of power under the parent act may be questioned by the courts. SIs may or may not be subject to parliamentary scrutiny depending on the parent act's provisions. If it is subject to scrutiny, the procedures to be followed are laid down in the SI Act, 1946. Parliamentary Scrutiny of the Executive PMQ - 30 minutes of questions to the PM from the opposition every week on issues concerning security, economy, foreign affairs etc. No prior notice. Parliamentary questions may also be asked of other ministers. Select Committees and Public Enquiries Some scrutinise proposed legislation; e.g. European Legislation Committee, Joint HR Committee. Others function on a departmental level to achieve ministerial accountability. Started in 1979, the effectiveness of SCs was seen during the investigation into the decision to go to war in Iraq in 2003. Foreign secretary and PM's special adviser Alistair Campbell were both rigorously questioned. Limitations to SCs were seen in the investigation into the 'arms to Iraq' affair in 1992. The Select Committee on Trade & Industry sought information about export licenses but the government did not co-operate. Judicial proceedings were brought against Matrix Churchill's directors for allowing the export licenses. In court it was revealed that government knew about them all along. The Scott Inquiry investigated this further and found that government deliberately misled government. The use of "public interest immunity" certificates by government to withhold information was criticised. Vernon Bogdanor noted that "parliament [was] losing its capacity to bring government ministers to account. Of late, government ministers have been more willing to come before SCs. The Hutton Inquiry once again asked questions of their effectiveness. Dr. Kelly, a scientist who 'committed suicide' after the publication of an Iraq weapons capabilities dossier that was criticised for being 'sexed up' to further the case for war. This was investigated by the FASC and I&SC. The judicial inquiry that followed was seen as revealing more about the 'machinations' of government. The criticism is unfair when seen in light of the mandates of the SCs which were limited to whether "available intelligence was properly assessed". The Hutton Inquiry asked questions surrounding the death of Dr. Kelly and was therefore able to go deeper. The House of Lords Functions: Forum for debate on issues of public interest Revision of Bills from Commons Scrutiny of the Executive Proposal/Initiation of Bills Select Committee Work Supreme Court of Appeal Consideration of Delegated Legislation Power & Influences of the HL Prior to 1911 Parliament Act, the HL had equal powers to the HC apart from a convention forbidding HL vetos on finance bills. The Parliament Act took away the Veto for finance bills as well as non-money bills leaving the HL with a power of delay of 2 years after which its approval was no longer necessary. In 1949, this period was lowered to 1 year. Parliament Acts are used infrequently: European Parliamentary Elections Act 1999, Sexual Offences (Amendment) Act 2000, Hunting Act, 2004. Lords debate has no party angle and is more constructive as well as liberal on social rights. Whips are less domineering. Reform of the Lords Phase One - Labour shifts from abolitionism to reform House of Lords Act, 1999 removed all hereditary peers (759 of 1272). An appointment commission was established consisting of representatives the 3 main parties and 4 independent members. This body makes non-party appointments. 15 nominations announced in April 2001. Phase Two: Implementations of A House for the Future (Lord Wakeham) . White Paper, The House of Lords, Completing Reform (2001) published with recommendations for composition and appointment procedure to the House. Reaction was hostile with even Lord Wakeham stating that he would not support the White Paper as it left out many of his key recommendations including an independent appointments commission for all appointments and a 15 year term. The White Paper was abandoned and the PM supported a fully appointed as opposed to partly elected HL. A fully appointed house would amount to no reform and would perpetuate a patronage system. A fully elected house would mean an undermining of the HC and the current system as a whole. A partly elected house would mean some members would have greater mandate owing to elected status. Reform stalled on the election-appointment problem but on other fronts there has been progress. White papers on the reform of the Lord Chancellor's position and the establishment of a Supreme Court were published. This came to fruition in 2009. A further White Paper, Constitutional Reform: Next Steps for the HL (September 2003) is seen as the next step in reform. Proposals: removal of hereditary peers remaining, shift of powers of PM to Appointments Committee. May 2008, An Elected Second Chamber: Further reforms to the HL. Proposals: Fully elected chamber, longer term, 'take account of prevailing political view...also independent and minority views.' Electoral Reform of Westminster 4 requirements of the Jenkins Commission broad proportionality extension of voter choice maintenance of link between MPs and geo constituencies stability of government Jenkins Report (1998) proposed AV + which would function using AV and a List system. 80-85% of MPs would be elected using the preference model of AV, the remaining MPs would be selected from a regional list according to a second vote each voter enters for their preferred party. No further action on this front since 2001. Parliamentary Privileges Freedom of speech Freedom to regulate composition Freedom to regulate proceedings Freedom from civil arrest - not practically relevant Power to punish contempt - last exercised in 1880 [From Erskine May's Parliamentary Privilege.] Speech Stockdale v Hansard (1839) - privileges were conceded without "a murmur of doubt" Prebble v Television NZ Ltd. (1995) - Privy Council ruled that courts are not to allow a challenge on what is said in parliament or on the regulation of its established privileges. BUT in R v HM Treasury Ex p Smedley [1985], Donaldson MR ruled that `parliament must refrain from trespassing on the province of the courts'. The courts must be left to decide whether a matter of privilege falls within their realm. Composition and Proceedings Bradlaugh v Gosset (1884) - Bradlaugh was excluded from the Commons for refusing to swear an oath to the crown. He sought an injunction. The QB recognised it had no jurisdiction to interfere. Allighan's case [1948] - excluded for misconduct Sinn Fein exclusion for refusing to swear oath. Judicial review refused, taken to ECHR, where it was considered inadmissible. Parliamentary Standards Parliament must be responsible for regulating the conduct of its members. Committee on Standards in Public life established in 1994 following Cases concerning government sleaze. Parliamentary Commissioner for Standards appointed to deal with complaints of misconduct. S/he reports to the committee that then decides actions to be taken. Principles of Public Life Selflessness Integrity Objectivity Accountability Openness Honesty Leadership LSM on Parliament What is the legislature? Legislature is linguistically, the maker of law and in actuality comprises the coming together of the Queen, the Commons, the Lords and the Cabinet. The government proposes laws and it is the function of the parliament to scrutinise, approve and in effect legitimise government policy. S James on Policy - a course of action which the government has taken a deliberate decision to adopt. Six stages of policy making includes the phase of legislation and legitimization. This is where parliament comes in. Policy-making can take place at different speeds, e.g statute protecting witness identity passed between 4July 2008 and 21 July 2008. Also, the 2001 Standing Order was passed within 3 weeks. The public's role in policymaking is usually limited to voting and referendums. However a huge public outcry can lead government to implement a policy in great haste, e.g. Dangerous Dogs Act, banning of handguns after the Dunblane shootings. Consultation with the use of a white paper for example, may or may not happen. With the abolition of the Lord Chancellor, no consultation was sought. This may be published as a command paper (white or green) on the relevant department's website. In 2000, a code on consultation was published detailing when, how long (12 weeks), in what terms (clear about process, proposal, scope to influence, expected costs and benefits), how accessible (should be accessible to those people the xercise is intended to reach) and how difficult (minimum burden) consultation should be. The code does not have legal force but has been used to challenge the lawfullness of consultation in various JR cases - R on the Application of Bhatt Murphy v The Independent Assessor [2008]. Drafting in the United Kingdom Done by parliamentary counsel from Whitehall. Unique drafting style compared with the continent. Acts of parliament are detailed and precise. Reasons for complexity of English legislation: Policy itself complex Certainty goes handin hand with complexity Incremental change to policy resulting in amendment of older law Complexity from a desire to control discretion To avoid misinterpretation by government agency implementing policy Framework bills have resulted in the majority of detail being filled in by government departments. This includes important sections such as that dealing with the retention of DNA samples in the Policing & Crime Act 20010, s.96. The HL constitution committee advised that this was too important to be dealt with by government. Government did not heed this advice. Three Types of Legislature Policymaking e.g. US Congress Legitimizing, policy-influencing e.g. House of Commons Assent-giving parliament P Norton: The [British] legislature does not seek to generate - or make - policy. It lacks the political will, the institutional resources or even in some cases, the constitutional power to do so. Post-legislative Scrutiny Law Commission of England and Wales [2006] - "a broad form of review to address the effects of legislation...this does not preclude questions of a purely legal or technical nature" The government's response was positive but qualified. It argued that post-legislative scrutiny should not result in "duplication or conflicting work from other committees". Legislative Functions Post-Devolution Sewell Convention Recognition in the Scotland Act that the UK Parliament would continue to legislate on devolved matters in certain circumstances. HL constitution committee in a 2002 report: First, expressed concern about the functioning of the Sewell convention. Scottish assent is very often "in the nature of a blanket permission". From the Scottish perspective there appears to be a loss of control over legislation affecting devolved matters when it is devolved. Second, an issue of inter-parliamentary communication had turned into one between executives. The 'English' Question/ West Lothian Question Scottish MPs still vote on English matters while the UK parliament no longer votes on Scottish matters. Proposed solutions include establishing en English Parliament distinct from the UK Parl and establishing a system of "English votes for English Laws" The latter has a "technical" and "political" difficulty. Technical problem is identifying which laws are English. Some provisions of a piece of legislation deal with Scotland and England, while others exclusively with England. The political problem is that this system would create 2 classes of MPs leading to political instability [Robert Hazell]. Delegated Legislation Nature of Delegated Legislation: Derives its legitimacy from powers given to a department or minister by Parliament. Every statutory instrument must contain references to the relevant provisions in primary legislation. Delegated legislation may be quashed by the courts. Orders in Council It is a type of Statutory instrument. In addition to ministerial approval, it is also approved by the Privy Council. It also refers to government's remaining law-making powers with the prerogative. Only with regard to the civil service. This is anomalous in a modern constitutional democracy. Why Delegated Legislation? Commencement orders are usually delegated. An enabling provision creates a power, not a duty [Ex p Fire Bridages Union]. Framework Filling The Hansard Society proposed that: main provisions of statute law should be set out in Acts of Parliament, but that most detail be left to delegated legislation, provided that much more satisfactory procedures are adopted by Parliament for scrutiny of delegated legislation. Henry VIII Clauses Secondary legislation can be used to amend or repeal primary legislation. This risks giving ministers Henry VIII powers contained in acts of parliament that may allow them to suspend legislation on the whole. The Delegated Powers and Regulatory Reform Committee was established to monitor the inclusion of Henry VIII clauses in bills. This committee reports to the lords where peers may decide that it needs amending. Civil Servant's Role The process of creation of texts of SIs is significantly different to that of acts of parliament. It varies from department to department e.g. Department of Health: Preparation and Making of Statutory Instruments Often drafted by legal branches of departments as opposed to parliamentary counsel (government lawyers) Intra-departmental scrutiny includes questions of vires and structure & style. Legal advisers in doubt about vires must consult the Law Officers How much is a minister expected to know about the subject matter of the draft SI? The guidelines above only apply to civil servants, legal advisers. Where do the ministers come in apart form the approving signature? Remember, Carltona makes a minister liable for the acts of his department. See R (On the application of National Association of Health Stores) v Secretary of State for Health) Parliament's Role With regard to scrutinising/controlling SIs, parliament will adopt either a negative procedure or an affirmative procedure [House of Commons Information Office, Statutory Instruments] SIs cannot be amended or adapted by either house. Either annulled or approved on the basis of the procedure laid down in the enabling act. Negative Procedure: Annulment of an SI can take place if a motion to that effect is passed within 40 days of when the SI is laid. In practice, time is rarely available for these motions Affirmative procedure: Accounts for 10% of all SIs under parliamentary procedure. Here an instrument must receive parliamentary approval BEFORE it is laid. [Amenability to judicial review does not change when the SI is approved by parliament this way] In light of concerns that SIs were not subject to sufficient scrutiny the Select Committee on the Merits of Statutory Instruments was established in 2003. Role of Courts R (on the application of Javed) v Secretary of State HD