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7.1.3 Legislative Functions Lecture - Hands on Examples

The following scenario aims to test your knowledge of the topics covered in the chapter on Primary and Secondary Legislation. The answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Scenario

Part A:  The government wish to introduce a new government Bill to implement government policy that all under 7's should receive free milkshakes in school. The government have called this Bill the Free Milkshake's Bill 2016. A government MP who is also formally a nutritional expert is opposed to the Bill as she believes that offering children free milkshakes will be detrimental to their health. She requests the opportunity to be involved at the committee stage of this Bill, she wishes to amend the Bill so that children are provided with organic apple juice instead of milkshake. What is the likely outcome of this request and what is the process for the Free Milkshake's Bill 2016 to pass into law?

Part B: Who are responsible for drafting of government bills? What are the skills that are required when drafting potential Acts of Parliament, where can they go wrong?

Part C: Is Parliamentary scrutiny of draft Bills sufficient to ensure that the public interest is being served in the creation of new legislation?

Part D: What are the reasons for delegated legislation being produced in addition to primary legislation? Is the process of scrutiny of secondary legislation sufficient?

Suggested Answers

A) The Free Milkshake's Bill would go through the stages of bring legislation into force, starting with a first reading where the Bill is presented into Parliament in either the House of Lords or House of Commons. This is not an uncontroversial Bill, it is likely to have significant cost implications so it should begin in the House of Commons. After its second reading, the Bill will reach the Committee Stage. At this point the government MP who wishes to be part of the Committee is unlikely to be permitted to join as she has reservations against the Bill. To get Bill's through Parliament, the whip system requires MP's on the governments side to vote for the Bill and not present amendments at the Committee stage. Government MP's risk their career if they attempt to make amendments to Bills at the Committee stage. IT is unlikely that the nutritional expert will be allowed by her party to join the Committee stage of the Bill reading. The Bill may also go to a Public Reading stage if it is considered relevant to do so. The next stage is the report stage, in which amendments may be proposed. An opposition MP may request an amendment at this point, all amendments have to be agreed in both the House of Commons and the House of Lords, creating a possible 'ping pong' effect where the Bill bounces between the two houses attempting to achieve consensus. The next stage is the third reading. The final stage of the Bill is the royal assent which is a formality. Unless an opposition MP produces an amendment that is accepted by the government and both Houses, the Bill is likely to pass through Parliament without too many difficulties, despite the possible health consequences of providing free milkshake's to under 7's.

B) A team of around 60 parliamentary counsel who are government lawyers are responsible for drafting government Bills. There is a particular art to the drafting of Bills. It requires a drafter to break down policy matters into essential components, to predict what challenges might occur in court and address them during the drafting stage and produced a Bill that will withstand legislative scrutiny in its passage through Parliament. The UK drafting style varies from that of continental European codes and is usually more elaborate in its explanations. However, since 1999 all Bills have also included 'explanatory notes'.

Drafting of Bills can go wrong if the are 'over drafted' offering too much detail or lack detail or are too broad giving rise to possible legal challenges in court and loopholes. The Computer Misuse Act 1990 is an example of a Statute that has been criticised for being drafted too broadly and has left loopholes in the legal provisions.

C) Parliamentary scrutiny often appears insufficient. There are a number of stages of possible scrutiny, but they are not always used. Pre-legislative scrutiny is one of the best methods of achieving quality legislation, but it is rarely used. The normal legislative process pressures government MP's to vote with their party and hence dissention is strongly discouraged. Any amendments or votes against legislation must thus come from opposition parties, who are numerically smaller in Parliament than the majority government. Hence it is very difficult for Bills to be prevented from passing, the House of Lords are not able to block Bills, they may only postpone their passage.

D) Secondary or delegated legislation is created by government Ministers or civil servants, there is no need for it to go through the Parliamentary stages of approval. It is authorised through an enabling Act, which gives powers to the executive to create such secondary legislation as required to implement the finer details of government policy. There are around three time more pieces of secondary legislation than primary legislation and without such legislation, Parliament is unlikely to be able to produce sufficient legislative provisions to implement its policies. Scrutiny of secondary legislation is less formal. Acts which include provisions for delegated legislation can be scrutinised at the Committee Stage, but it is hard at this point to envisage exactly what secondary legislation might be created as the result of an Act of Parliament. The Committee on Delegated Powers and Regulatory Reform seeks to prevent excessive powers being provided within delegate legislation. Further the Joint Committee on Statutory Instruments scrutinise all Statutory Instruments. Delegated legislation can also be subjected to judicial review, a court can find that a Minister has acted outside of his or her powers or procedurally incorrect. The courts can also strike down delegated legislation if it fails to conform to rights under the European Convention on Human Rights.


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