Saturday, 25 September 2010

Making the law; deciding what it means and Bills now before Parliament

Within the U.K. sovereignty rests with "The Queen in Parliament" (Q in P).  Thus, the Q in P is the supreme law making authority for the U.K.  New laws start their lives as "bills" presented to parliament and the bills before parliament at the moment may be seen here.  When a bill has gone through all of the required stages in parliament AND has received the Royal Assent it becomes an Act.   As a basic rule it would become law from the beginning of the day on which Royal Assent was given.  However, it is common practice to delay commencement and to use Commencement Orders as a method of implementation.  Commencement is made even more complex because, very often, different sections of an Act are brought into force on different dates.

The actual interpretation of an Act is a matter for the judges.  The Interpretation Act 1978 sets out a number of key points which commonly arise in interpretation but there are judicial rules and techniques which are used when a court has to decide what legislation means - see here for some of the methods used.  Interestingly, it used to be the rule that the judges would not look at Hansard in order to find out what had been said in Parliament during the passage of an Act.  This rule was changed as a result of the House of Lords decision in Pepper v Hart 1993.  In practice, many judges played mere lip service to the rule - see "Statute Law: Judges as Legislators" (Francis Bennion).  In addition, the Human Rights Act 1998 section 3, states that - "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

In the process of interpretation the judges create additional law. - see Open University Judges and the Law.  An older theory that judges do not make but merely declare the law which they have discovered is now largely discredited - see Declaratory Theory.  The eminent judge Lord Reid said - "We do not believe in fairy tales any more, so we must accept the fact that for better or worse judges do make law."

Where does the European Union fit into this?  There is a massive amount of law making carried out by the European Union.  However, strictly speaking, it only has effect in the United Kingdom by virtue of the Economic Communities Act 1972.  This Act came into force on 1st January 1973 when the U.K. acceded to the communities.

Bills currently before Parliament:

The bills currently before Parliament can be categorised into public bills; private member's bills and private bills.  Public Bills of particular constitutional importance are the Fixed Term Parliaments Bill and the Parliamentary Voting and Constituencies Bill .  There is good reason to be concerned about these - see the comments about the Fixed Term Parliaments Bill on Head of Legal and Of Interest to Lawyers.  Private Members Bills are those raised by individual members of either the Commons or the Lords.  Only a few of these Bills ever get to become law since the government's legislative programme usually dominates.  For example see the Defamation Bill introduced by Lord Lester of Herne Hill QC and the Anonymity (Arrested Persons) Bill.   Private Bills are a third category.  These are bills promoted by some person or body outside parliament e.g. The Leeds City Council Bill.   They are very expensive to promote and follow a particular route through parliament - see Private Bills Factsheet August 2010.

Occasionally a bill appears which has both public and private effect.  This is referred to as a Hybrid Bill.

For completeness it should be added that Parliament also enacts "Measures" for the Church of England - see. for example, here.


  1. Will you be writing a post on Statutory Instruments and their like?

  2. Westengland - yes, I think that is worth looking at in the near future.