How Laws Are Created
Successive governments continually reform the laws of the United Kingdom with Acts of Parliament and Statutory Instruments made where legislation that is perceived to be ‘outdated, unnecessary or over-complicated’ is reformed under the first part of the Regulatory Reform Act 2006. There is a similar procedure possible under the Regulatory Reform Act 2001, which, whilst it permits a minister to make Regulatory Reform Orders, under the framework of Delegated Legislation (a form of secondary legislation under powers granted under the 2001 Act to remove or reducing legislation which is imposing regulatory burdens), it can only be used to reform existing legislation.
An Order cannot be used to remove ‘necessary protection’. At the draft stage the Order must be opened to public consultation, reviewed by Committees from both Houses of Parliament, and then approved by both the Houses of Parliament.
A review of the first 4 years of operation of the Regulatory Reform Act 2001 published by the Cabinet Office in July 2005, concluded that it not only presented some hurdles which inhibited the production of the Reform Orders, but that its powers were too technical and limited.
At the beginning of each Session of Parliament the Government announces in the Queen’s Speech the legislation it hopes to introduce during that Session.
Bills are drafted by a team of lawyers in the Parliamentary Counsel Office (PCO), a part of the Cabinet Office, on the instructions of the Government department concerned. There may have been a Green (consultative) or White (statement of policy) Paper on its subject before the bill is introduced but these are not necessary and the bill may simply be presented without any earlier announcement.
Parliamentary scrutiny at the pre-legislative stage can play an important role in improving the law, even where there has already been lengthy and extensive external consultation by Government.
FIRST & SECOND READING
On the day of presentation, a ‘dummy’ copy of the bill is placed on the Table. Once it has been presented, each bill is allocated a bill number, which is printed on the bottom left-hand corner of the front page in square brackets i.e. [Bill 4]). Each time the bill is re-printed (such as after the committee stage), it is given a new number.
This First Reading stage also forms the House’s order to print the bill, which is done for the House by The Stationery Office.
Explanatory Notes are also published to go with the bill, although they may not always be available as soon as the bill itself is published.
When the bill is printed, only then can it go ahead, (after examination for compliance with the House’s rules), to its first substantive stage, called Second Reading. Notice may be given of programme motions to set out a timetable for the conclusion of proceedings on a bill, which would be moved and voted on after the Second Reading debate. This is the time at which the House considers the principle of the bill and debate is often wide-ranging. A major government bill will normally take about a day to debate (about six hours in practice), although some major bills have spent far longer in the House.
The Second Reading is also the first stage at which a Government bill can be defeated. The Opposition may object to a bill by tabling a ‘reasoned amendment’. This is not an amendment to the bill itself but is technically an amendment to the question which is before the House at Second Reading: ‘That the bill be now read a second time’, giving the reasons for objecting to the bill. It appears as a motion on the Order Paper, beginning with the words, ‘That this House declines to give a Second Reading to the bill because …’
Money Resolutions and Ways and Means Resolutions
After a bill has been given a Second Reading, any Money or Ways and Means Resolutions are dealt with. Money Resolutions authorise any part of a bill which involves a significant charge on central government funds; Ways and Means Resolutions are needed to authorise the levying of taxes or other charges. These Resolutions are not debatable if they are moved immediately after Second Reading. Otherwise, they may be debated for up to 45 minutes.
After Second Reading, and any money or ways and means resolutions have been dealt with, the bill moves to its committee stage. This usually takes place in a public bill committee (formerly known as a standing committee) but may be taken in a Committee of the Whole House.
The committee will look at each clause and schedule of the bill. The committee debates amendments first, and after that agree or disagree to a motion that it ‘stand part’ of the bill (meaning to leave it in or drop it). In addition to deliberating on amendments to existing clauses and schedules, new clauses and new schedules may be added to the bill.
NUMBER OF MEMBERS & REPORT STAGE
A public bill committee generally has about 17 members though this can vary (the Committee of Selection must nominate between 16 and 50 Members to serve on each general committee) and its membership reflects the party composition of the House. At least one Minister from the Government Department in charge of the bill will be on the committee, as will a front-bench spokesman from opposition party represented. A new public bill committee is appointed for each bill and the membership of each committee is discharged when it has reported its bill to the House. There may be several public bill committees appointed at any one time and they are named after the bill that they look at e.g. the Welfare Reform Bill Committee.
At this stage, the House may make further amendments to the bill but does not consider those clauses and Schedules to which no amendments have been tabled. However, the important point to note is that at the Report Stage the bill is considered as a whole and not clause by clause.
Report stage provides an opportunity for Members who were not on the public bill committee to move amendments to the bill. The delay between Committee and Report allows time for the Government to give further thought to some of the points raised during the committee stage. They may choose to bring forward their own amendments in lieu of amendments which were rejected or withdrawn in the Committee.
The House may reverse or amend changes made by the public bill committee. If a bill has been dealt with by a Committee of the whole House, and has not been amended, it progresses immediately to Third Reading without a Report Stage.
THIRD READING AND THE LORDS
The last Commons stage of the bill is the Third Reading, usually taken directly after the conclusion of Report. This enables the House to take an overview of the bill, as amended in Committee or on Report. No amendments may be made at this stage and debates are usually very short.
Lords Stages and Amendments
Once it has passed its Third Reading in the Commons, the bill is sent to the Lords, usually on the next sitting day. The legislative process in the House of Lords is broadly similar to that in the House of Commons. Important differences are:
- After Second Reading, bills are usually committed to a Committee of the whole House;
- There is no guillotine;
- Debate on amendments is unrestricted.
Amendments can be made at Third Reading as well as at Committee and Consideration stage.
The Lords and Commons must finally agree a text of each bill. If the Lords have not amended a Commons bill they tell the Commons of the fact.
If the Lords do amend a Commons bill, their amendments are printed and considered by the Commons. Here, the Commons can do three things:
- They may agree to the Lords amendments (self-explanatory);
- They may agree to them but with amendments which they ask the Lords to agree to;
- They may disagree to them and send a Message giving the reasons for their disagreement and the Lords consider the matter further.
THE PARLIAMENT ACTS & ROYAL ASSENT
A bill may travel backwards and forwards between the two Houses in this way several times. A deadlock is reached once each House has insisted on its position without proposing some alternative. If this does happen, as in the case of the Hunting Bill in 2004, then the bill may be passed in the following session of Parliament without the consent of the House of Lords under s2 of the Parliament Act 1911, as amended by the Parliament Act 1949. In order for this to happen, three criteria must be met:
- In each case, the bill must have been taken to the Lords at least one month before the end of the session;
- One year must have elapsed between the Second Reading of the bill in the Commons in the first session and the bill being passed by the House in the second session;
- The bill in the second session must be identical to the bill in the first session,containing only amendments which are necessary to take account of the passage of time.
This means that the House of Lords may delay a piece of legislation which emanates from the Commons, but may not block it indefinitely or insist on amendments.
When a text has been agreed between the Houses, the bill is submitted for the Royal Assent.
The Crown, as the third element in Parliament’s composition, must give Assent to a bill for it to pass into law. Such Assent has not been withheld since 1707, but every bill is still required to go through the procedure appointed. After signification of Royal Assent, the bill becomes an Act.
COMMENCEMENT ORDERS/STATUTORY INSTRUMENTS
Some Acts are brought into force immediately, some at a date specified in the Act and others by Commencement Orders, which may activate all or part of the Act, (combinations of the three methods are common). There may be more than one such order for portions of certain Acts, for instance the Town and Country Planning Act 1971 had 75. Some Acts may not be brought into force for a considerable time such as the Easter Act 1928, which whilst it sought to give a fixed date for Easter, has still not been brought into force, mainly because the various Churches involved have not agreed the date.
Commencement Orders are Statutory Instruments, made by a Minister and issued by HMSO. Enquiries about the commencement of statutes should be made to the Government Department concerned, since there is no particular parliamentary involvement with this.
THE SESSIONAL CYCLE & CONSOLIDATION BILLS
Under normal circumstances, a Public bill must complete all its stages in one session of Parliament but should it fail to do so, it may be represented in the following session. However it must begin again right at the start of the legislative cycle.
A Consolidation Bill brings together, (sometimes with minor amendments), several existing Acts into one with the object of simplifying the statutes as was the case with the Companies Act 2006.
The progress of such a bill through Parliament differs from that of a Government bill in several respects.
The principal points are that the Lord Chancellor lays before Parliament a memorandum proposing any amendments or minor corrections to the Acts being consolidated and a notice is published in the London Gazette. Each Consolidation bill begins in the House of Lords where, following the Second Reading, it is committed to a Joint Select Committee of both Houses which considers any written representations and usually takes evidence from the bill’s draftsman. The Committee may amend the bill and produces a Report, drawing the attention of the two Houses to any points which it believes are of special interest and stating whether or not the bill is “pure consolidation” (i.e. it does not amend the existing law).
Consideration and Third Reading in the Lords, and all stages in the Commons, are usually formal – without debate.