Jesús Lorenzo VieitesThe UK Legal SystemPart III: Sources of Law (1)A SERIES OF GRAPHIC SKETCHES TO UNDERSTAND HOW THE UK LEGALSYSTEM IS STRUCTURED NOWADAYS. Based on G. Slapper & D. Kelly’s The English Legal System, 11th ed.
If we are pursuing a topic related to civil law there exists a great difference betwen common law and civil law systems Civil law systems Common law (UK) (Continent) We have to: We just look into the legislation 1.Look at the legislation (primary relevant to the issue to try and & secondary sources) resolve a judicial question 2.Find out cases in which judicial statements relevant to the issue exist.After the UK joined the EEC, later called EU, it has progressively passed the power to create laws that affect theUK citizens to the Europan institutions which promulgate laws for the rest of the continent. And this is so to theextent that all legal issues related to the EU which affect the UK’s legislative, executive and judicial powers aredeveloped within a common EU framework.
This absolute power is a consequence of the struggle between parliament and the monarchy in the 17th cent. As a result, Parliament was the sole body1. It is the sovereign power that makes laws capable of making laws while curtailing the Crown of its former royal prerogative of2. Under UK constitutional law, it has the power to doing so. The obvious consequence of this process was that the role of the monarchy was reduced to a purely formal one in the whole legislative process.enactenact alter alter or or revoke revoke As a reward for having sided along with such, and any such, and any Parliament, the courts were allowed to have law, as it sees fit law, as it sees fit independence from its control; a fact which still remains today. Although prerogative powers do still exist, they are mainly exercised by the Government in the name of the Crown, rather than by the Crown itself.
We have to bear in mind The UK Legislative Processthat, in spite of the fact that the UK English system is referred to as a common Most statutes are the result of a government’s political law system, and having party decisions; thus, a great deal of law-making can regard to the role that be seen as the natural outcome of the implementation courts play in the of party political policies. interpretation of statutes, LEGISLATION is the prevalent method of law- The party in majority in the making nowadays. Government House of Commons chooses … Therefore, the political agenda is drawn from the policies the governing party chooses to implement by way of proposals which will be backed by the majority of its members sitting in the House of Commons.
The UK Legislative Process What is the main criticism that this system faces?…. That powerful governments with substantial majorities can work On the other hand, when the majority iseven without the backing of their scarce or even a government having to own parties (in such situations govern in minority, the playing field you’d better not be a member in changes and the government has to playthe opposition benches!). The role its card shrewdly so as to be able to of the government supporters is implement its desired policies in a but that of merely rubber- Parliament not directly controlled by it. stamping its proposals
The UK Legislative Process The government is responsible for most of the legislation which will be included into Yet, it is a consolidated right that any individual MP can propose a new legislation in the form of… The Statute Book Private Members’ Bills (or: members’ bills, an MP’s legislative motion)‘A Bill is a proposal for a new law, or a proposal to change an existing law, presented for debate before Parliament’
They are Public Bills introduced by MPsand Lords who are not governmentministers. As with other Public Bills their Private Members’ Billspurpose is to change the law as it applies are Public Bills that can beto the general population introduced in three different ways: 1. The Ballot 2. The Ten Minute Rule 3. Presentation Procedure (Standing Rule 13) (Under Standing Order 39)Ballot Bills have the best chance of This procedure allows a Member to Any Member may introducebecoming law, as they get priority for make a speech of up to 10 minutes a Bill in this way as long asthe limited amount of debating time with a view to voicing an opinon on he has previously givenavailable. The names of Members a subject or aspect of an existing notice of their intention toapplying for a Bill are drawn in a legislation that needs further do so. Members formallyballot held at the beginning of the consideration. introduce the short title ofparliamentary year. By means of the It is a good opportunity to raise the the Bill but do not speak inballot procedure 20 backbenches profile of an issue and to see support of it - they rarelyMembers get the right to propose whether it has support among other become law.legislation on the 10 or so Fridays in Members.each parliamentary Session
Any individual or associations, organisations outside Parliament can seek to influenceMembers who have been selected in the ballot so as to voice the Private members’ bills inquestion. Therefore, members of the public who want to voice their objections to PrivateMembers Bills can do so by: writing to their MP or a Lord writing to the government department responsible for the Bill lobbying ParliamentOf these procedures, however, only the ballot one has any real chanceof success. Even then, only a small proportion of Private Members Bills Talking out a bill is alsoare enacted. This depends mainly on securing a high place in the ballot referred to as ‘a filibuster’and on the actual proposal not being to controversial. A controversial or parliamentary procedure where debatePrivate Members Bill can be "talked out". In some cases, measures that a is extended, allowing onegovernment does not want to take responsibility for may be introduced or more members toby backbenchers, with the government secretly or openly backing the delay or entirely prevent ameasure and ensuring its passage. They are sometimes known as vote on a given proposal."handout" or "whips bills." (The Abortion Act 1967 was enacted through It is a form of obstruction in a legislative body.this means)
It determines which Bills Two Cabinet committees The Future Legislation will be presented to parliament in thetake the decision as to Committee followingwhich government Bills are parliamentary Sessionto be placed beforeparliament in any Session: 1. It is responsable for the legislative programme conducted in the The Legislation immediate Committee parliamentary Session. 2. The drawing of the legislative programme announced during the Queen’s Speech is within its responsibility
What are ‘Green Papers’? …and White Papers?Consultation documents issued by the White Papers are used as a means ofgovernment, whose purpose is to set out and presenting government policy preferencesinvite comments from interested parties or prior to the introduction of legislation; in thisparticular proposals for legislation. Green regard its intended purpose is to serve as a kindPapers tend to be statements by the of ‘feeler’ to test the public opinion regardinggovernment of propositions put before the a controversial policy issue and enables thewhole nation for discussion before a final government to gauge its probable impact.decision is taken of the best policy option. White Papers do set out firm proposals for legislation. A Green Paper will often contain Both Green Papers and several alternative policy options. White Papers are both After considering this consultation, types of command the government will normally paper and may be the publish firmer recommendations subject of statements or in a second document in the form debates in the House of of a White Paper. Commons.
Both Commons and Lords meet in the Palace of Westminster. Members are elected, through the first-past-the-post system, by electoral districts known as constituencies, and hold their seats until consists of… Parliament is dissolved (a maximum of five years after the preceding election). The House of Commons The House of Lords (with The Monarch(646 directly elected MPs) 74 unelected MPs) (the lower house) (the upper house) As mentioned before, a Bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before Parliament. Before any legislative proposal (Bill) can become an Act of Parliament (ie, a law) it must proceed through and be approved by the House of Commons and the House of Lords for examination, discussion and amendment. When both Houses have agreed on the content of a Bill it is then presented to the reigning monarch for approval (known as Royal Assent). Once Royal Assent is given a Bill becomes an Act of Parliament and is law.
A Bill can start in… A Bill can start in… the House of Any Bill must be Any Bill must be or given three readings given three readings Lords in both the in both the Commons and the Commons and the Lords before it can Lords before it can be presented for be presented for … and must be approved in … and must be approved in Royal Assent. Royal Assent.the same form by both Houses the same form by both Housesbefore becoming an Act (law) before becoming an Act (law)
When a Bill is presented in the Commons it undergoes five distinct procedures When a Bill is presented in the Commons it undergoes five distinct procedures1. First reading2. Second reading3. Committee stage4. Report stage5. Third reading
…undergoes the …undergoes the following steps until it following steps until it 1. Short title is read gets the Royal gets the Royal 2. Read at any time during a Assent Assent parliamentary Session 3. Followed by an First reading order for the Bill6. Date set for to be printed 2nd reading 5. The Bill is 4. There is no published as a debate House of Commons paper for the first time 1 1
1. It usually takes place no 2 2 sooner than two weekends 2. The spokesperson after first reading. responsible for the Bill opens the second reading debate. 3. Main principles of the Bill are debated 9. At the end byvoting a 2nd reading it is meant that the Bill can proceed to the next stage. Second reading 4. The official Opposition spokesperson responds with their views on the Bill 8.…it is likely that it willfinally become a law (in ulterior steps) 5. The debate continues with other Opposition 7. At the end, a vote may be parties and backbench taken on its merits; if 6. It is the critical point MPs giving their opinions. approved… in the process of a Bill
1. It usually starts within a couple of 2. The Bill is examined line by line by a Standing 3 3 weeks of a Bill’s committee second reading 3. The Committee has the power to amend it in such a way as to ensure that it 9. If the Bill has been conforms with the general amended the Bill is reprinted approval given by the before its next stage House at its second reading8. Amendments proposed by MPs to the Bill will be published daily and Committee stagereprinted as a Marshalled 4. Most Bills are dealt with List of amendments for in a Public Bill Committeeeach day the committee discusses the Bill. 5. The committee is able to 7. Amendments for discussion take evidence from are selected by the chairman 6. Occasionally, a Bill experts and interest groups of the committee and only may be passed to a from outside Parliament members of the committee Special Standing can vote on amendments Committee during committee stage.
2. There is no set time period between the end of committee stage and the 4 4 start of the report stage. 1. Report stage gives MPs an opportunity, on the floor of the House, to consider further amendments (proposals for change) to a Bill which has been examined in committee. 3. All MPs may speak and vote - for lengthy or complex Bills the debates may be Report stage spread over several days.5. Report stage is normally followed immediately by debate on the Bills third 4. All MPs can suggest reading.. amendments to the Bill or new clauses (parts) they think should be added.
5 5 1. This is the final chance for 2. It usually takes place further debate regarding the immediately after report stage as discussed Bill the next item of business on the same day Third reading 3. If any more debate is5. At the end of the debate, necessary this will going to bethe House decides whether restricted to matters relating to to approve (votes on) the the content of the Bill third reading of the Bill or exclusively: questions relating to not. the general principles of the Bill cannot be raised now. 4. That means that any proposals for a change (amendments) cannot be done at this stage.
What happens after ‘Third Reading’? If the Bill started in the Lords itIf the Bill started in the returns to the House of Lords for Commons it goes to the consideration of anyHouse of Lords for its first amendments the Commons has reading. made.
When a Bill is presented in the Lords it also undergoes the same five distinct When a Bill is presented in the Lords it also undergoes the same five distinct procedures as seen before procedures as seen before1. First reading2. Second reading3. Committee stage4. Report stage5. Third reading
…undergoes the …undergoes the following steps until it following steps until it gets the Royal gets the Royal Assent Assent 2. First reading can take1. First reading is the place at any time in a first stage of a Bill’s parliamentary Sessionpassage through the House of Lords -usually a formality, ittakes place without debate 3. The long title is First reading read out by the MP in charge of introducing the Bill 4. Once formally introduced, the Bill is printed 1 1
2. It is the first 1. Before second reading takes place A opportunity for list of speakers for the second reading Members of the debate is opened and interested Lords to debate the Members add their names to it. main principles and purpose of the Bill Second reading 3. At this stage MPs may5. A Bill’s second reading flag up concerns and usually takes place no areas where they think less than two weekends amendments might be after first reading needed 4. Second reading debates usually last for a few hours but sometimes stretch over a couple of days. 2 2
1. The day before committee 2. At this stage there is a detailed line stage starts, amendments are by line examination of the separate published in a Marshalled List – parts (clauses and schedules) of the Bill, in which all the amendments with its subsequent discussion of are placed in order. amendments of the Bill in question 7. Committee stage canlast for one or two days to 3. Any Member of eight or more. It usually Committee stage the Lords can starts no fewer than two take part in this weeks after the second debate reading 4. Every clause of the Bill 6. If the Bill has been 5. All proposed has to be agreed to amended it is reprinted amendments can be and votes on the with all the agreed discussed and there is amendments can take 3 no time limit – or 3 amendments. place. guillotine - on discussion of amendments.
1. This is a further chance 2. Report stage to change the Bill. usually starts 14 Members of the Lords days after can consider proposals committee stage. It for change to the Bill can be spread over anew several days 3. The day before report stage starts, amendments 6. If the Bill is amended Report stage are published in ait is reprinted to include Marshalled List – in which all the agreed all the amendments are amendments. placed in order. 5. Votes can take place and any 4. Detailed line by Member of the Lords line examination of the Bill continues. 4 can take part 4
1. The Bill moves to third reading for the final 2. At least three chance for the Lords to sitting days usually debate and amend the pass between Bill. report stage and third reading. 6. The Bill goes to theHouse of Commons for its 3. The day before report first reading. The stage starts, amendmentsCommons reprints the Bill Third reading are published in a with the Lords Marshalled List – in which amendments. all the amendments are placed in order. 5. Amendments at third reading in the Lords are often used to clarify 4. Unlike the Commons, specific parts of the Bill and to amendments can be made allow the Government to make at this stage, provided the good any promises of changes to the Bill made at earlier stages. issue has not been fully considered and voted on at 5 5 an earlier stage.
What happens after ‘Third Reading’ in both Houses? Consideration of Each House considers the other’s amendments; that is to say, when a Bill has passed through third amendments reading in both Houses it is returned to the first House (where it started) for the second Houses As Bills must naturally complete amendments (proposals for change) to be their process within the life of a considered. particular parliamentary Session, a failure to reach agreement might Both Houses must agree on the mean the total loss of the Bill exact wording of the Bill If the Commons makes amendments to theA Bill may go back and forth between each Bill, the Lords must consider them andHouse until both Houses reach agreement. either agree or disagree to the amendments or make alternative proposals.
What happens after ‘Consideration of amendments’?Once the Commons and Lords agree on the final version of the Bill, itOnce the Commons and Lords agree on the final version of the Bill, itmust have Royal Assent before it can become an Act of Parliament.must have Royal Assent before it can become an Act of Parliament.Exceptionally, when the two Houses do not reach agreement, the Bill falls. If Exceptionally, when the two Houses do not reach agreement, the Bill falls. Ifcertain conditions are met, the Commons can use the Parliament Acts 1911* certain conditions are met, the Commons can use the Parliament Acts 1911*and 1949 to pass the Bill, without the consent of the Lords, in the following and 1949 to pass the Bill, without the consent of the Lords, in the followingsession.. session *The Parliament Act of 1911 removed the House of Lords’ power to veto a Bill. It also reduced the maximum lifespan of a parliament from 7 years to 5 and specifically retained the House of Lords’ power to block any attempt to prolong the lifetime of parliament. This Act reduced the power of the Lords of the ability to delay a bill by up to two years. The Parliament Act 1949 further reduced the Lords’ delaying powers to one year.
The Royal AssentThe Royal Assent is required before any Bill can become law. Although there isno constitutional rule requiring the reigning monarch to assent to any Actpassed by Parliament, there is, however, a convention to that effect. The Royal Assent Act 1967 highlights the procedural nature The Royal Assent Act 1967 highlights the procedural nature of this stage: it reduces the process of acquiring Royal of this stage: it reduces the process of acquiring Royal Assent to a formal reading out of the short title of any Act Assent to a formal reading out of the short title of any Act in both Houses. in both Houses. An Act of Parliament comes into force on the date of the Royal Assent, unless there is any provision to the contrary in the Act itself.
What happens at Royal Assent? Royal Assent is the Monarchs agreement to make the Bill into an Act . There is no set time period between the consideration of amendments to the Bill and Royal Assent – it can even be a matter of minutes after agreement is reached.When Royal Assent has been given to a Bill, the announcement is usually made in bothWhen Royal Assent has been given to a Bill, the announcement is usually made in bothHouses --at a suitable break in each House’s proceedings – by the Lord Speaker in the LordsHouses at a suitable break in each House’s proceedings – by the Lord Speaker in the Lordsand the Speaker in the Commons.and the Speaker in the Commons.At prorogation (the formal end to a parliamentary year), Black Rod interrupts theproceedings of the Commons and summons MPs to the Lords Chamber to hear the LordsCommissioners announce Royal Assent for each Bill.
What happens after Royal Assent? After Royal Assent… The legislation within the Bill may commence immediately, after a set period or only after a commencement order by a Government minister. A commencement order is designed to bring into force the whole or part of an Act of Parliament at a date later than the date of the Royal Assent. If there is no commencement order, the Act will come into force from midnight at the start of the day of the Royal Assent. The practical implementation of an Act is the responsibility of the appropriate government department, not Parliament.
1 1 Royal Assent: a short historical overview 1. The Royal 2. Once a Bill is presented 2. Once a Bill is presented a. Granting of the Royal Assent, Assent is the final to the monarch or his/her to the monarch or his/her therefore it becomes an Act step before any representative, there are representative, there are b. Withholding of the Royal Assent, so a veto is imposed on it. Bill becomes law. three options: three options: c. Reserving the Royal Assent, ie, defer a decision on the Bill until a later time.Originally, a Curia Regis(Royal Council) made of That Parliament includednobles and clerics, advised bishops, abbots, earls, The power strugglesthe Monarch (who held the barons, and two knights between Henry III and hislegislative power), on from each shire and two barons (notoriously Simonimportant issues. This Royal burgesses from de Montfort) led to aCouncil evolved into a each borough amongst parliament divided intoParliament. it members two main bodies:
22 Royal Assent: a short historical overview The House ofLords composedof bishops, earls, As a result, no any barons and new law would The Monarch would, therefore, abbots become law unless seek the advice and consent the Monarchs Assent of both Houses before making was obtained, as the and: and: any new law Monarch was, and still remains, the enactor The House of of lawsCommons, which wascomposed of knights Hence, all Acts include the clause: "Be it enacted by the (representatives of Queens most Excellent Majesty, by and with the advice the shires) and and consent of the Lords Spiritual and Temporal, and burgesses Commons, in this present Parliament assembled, and by the (representatives of authority of the same, as follows the boroughs)