Types of Legislation
Legislation falls into two categories:
- Acts of Parliament
- delegated legislation.
Acts of Parliament
Parliament consists of:
- the House of Commons
- the House of Lords
- the Monarch.
In order to become an Act of Parliament, a Bill must go through the following stages in both Houses:
- first reading - the name of the Bill and the its proposer is read out
- second reading - debate takes place on the principles of the Bill and it is then voted upon
- committee stage - a smaller number of MP's consider the wording of the Bill. This stage can last several months depending on the contentiousness of the Bill
- report stage - the Bill as amended by the Committee is reported back to the full House
- third reading - the Bill is read for the final time.
At the end of this process in both Houses, the Bill must receive the Royal Assent.
Note that an Act does not necessarily come into force immediately. Its provisions may take effect on a piece-meal basis. An example is the Companies Act 2006.
Doctrine of sovereignty of Parliament
Parliament is sovereign. This means that, in theory, it is only Parliament that can make new law and it can make any law it wishes. However it cannot pass an Act which can never be repealed.
The courts cannot question the validity of an Act. However, they must refuse to apply an Act that contravenes EC law.
Delegated legislation is made on behalf of Parliament. It consists of:
- statutory instruments: made by Government Ministers using powers delegated by Parliament
- bye-laws: made by local authorities
- Orders in Council: made by the Privy Council in the name of the Monarch on the advice of the Prime Minister.
Delegated legislation has a number of advantages:
- It saves Parliamentary time.
- It may benefit from access to technical expertise, thus leaving Parliament free to consider and debate the underlying principles.
- Flexibility - it is quick and easy to make and to change.
However, it also has a number of disadvantages:
- Its volume and lack of publicity means that it can be difficult to keep up with the changes introduced.
- It is criticised as being undemocratic as it is made without recourse to the elected House of Commons.
There are a number of means of controlling delegated legislation:
- Parliamentary - Since 1973 there has been a Joint Select Committee on Statutory Instruments, whose function it is to scrutinise all statutory instruments. They have the power to draw the instrument to the attention of both Houses on any number of grounds, but cannot do so on a ground which relates to the actual merits of the instrument or the policy it is pursuing.
- Judicial - The courts can challenge the validity of delegated legislation through the process of judicial review. It can be challenged on the grounds that the person making it has acted ultra vires, by exceeding their powers. If successful the court will declare it void and unenforceable.
- Human Rights Act 1998 - Delegated legislation is secondary legislation, therefore it can be declared invalid by the courts if it is incompatible with HRA 1998.
Rules of statutory interpretation
The process by which judges assign meanings to ambiguous words or phrases in statutes is called the interpretation of statutes.
Judges can use certain aids, rules and presumptions to help them assign a meaning to a word.
Aids to interpretation
The courts can use the following aids to help them interpret a statute:
- the legislation itself (i.e. its definition section).
- judicial precedents.
- the Interpretation Act 1978 - the Act defines certain terms frequently found in legislation. The Act also states that 'unless a specific intention to the contrary exists, the use in a statute of masculine gender terminology also includes the feminine, and vice versa'.
- the Oxford English Dictionary.
- Hansard (to see what was said in Parliament when the Bill was being debated). In Pepper v Hart (1992) the House of Lords established the principle that when primary legislation is ambiguous then, under certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation.
- sources of EC law. Since the United Kingdom joined the EC in 1972 they agreed to conform with existing and future EC law. One of the many sources of EC law is a Directive which generally addresses the member states and requires that the states take action within an identified time period to change their own law. When in doubt courts may look to the Directive for guidance on interpretation.
- Human Rights Act 1998.
Words must be given their ordinary dictionary meaning, even if this produces an undesirable outcome.
Fisher v Bell (1961) - Under the Restriction of Offensive Weapons Act 1959 it was a criminal offence to 'offer for sale' a flick knife. A shopkeeper who displayed one in his shop window was held not guilty as the court chose to follow the contract law meaning of the word 'offer'.
Where the literal rule gives more than one meaning or provides an absurd result, the golden rule is used to ensure that preference is given to the meaning that does not result in the provision being an absurdity.
Adler v George (1964)
Facts: a conviction was challenged on the basis of what appeared to be a miswording in the Official Secrets Act (1920). This Act made it an offence to obstruct a member of the armed forces `in the vicinity of' particular locations, but not actually `in' those locations. The defendant was actually inside an Air Force base at the time of the incident, which he claimed was beyond the literal scope of the act.
Held: The words 'in the vicinity of' a prohibited place in the Official Secrets Act were held to cover the acts of the defendant which took place 'within' a prohibited place.
Used to interpret a statute in a way which provides a remedy for the mischief the statute was enacted to prevent.
Gorris v Scott (1874)
Facts: the Contagious Diseases (Animals) Act 1869 provided that any ship carrying animals should contain them in pens. The defendant neglected his duty and some of the claimant's sheep were washed overboard and lost.
Held: Since the purpose of the statute was to prevent the spread of contagious disease, and no to guard against the danger of property being washed overboard, the claim failed.
This is a more modern approach. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve.
Gardiner v Sevenoaks RDC (1950)
Facts: The purpose of an Act was to provide for the safe storage of film wherever it might be stored on 'premises'. The claimant argued that 'premises' did not include a cave and so the Act had no application to this case.
Held: The purpose of the Act was to protect the safety of persons working in all places where film was stored. If film was stored in a cave, the word 'premises' included the cave.
General words mean the same kind of thing as the specific words they follow.
Powell v Kempton Park Racecourse Co (1899)
Facts: Section 1 of the Betting Act 1853 prohibitted betting in a 'house, office, room or other place.' The issue was whether a ring at a racecourse was an 'other place' for the purposes of this statute.
Held: The Lords decided that if the eiusdem generis rule was applied, the specific words such as 'room' and 'office' that preceded the general phrase 'other place' created a class of indoor places. As a ring on a racecourse was outside it would not fall within this catgory. Therefore the Act did not apply to restrict gambling here.
Expressio unius exclusio alterius
Where a statute seeks to establish a list of what is covered by its provisions, then anything not expressly included in that list is specifically excluded.
There are presumptions which will generally apply unless the legislation specifically states otherwise, for example:
- A statute will not bind the Crown.
- A statute cannot conflict with international law. An Act should therefore be interpreted as giving effect to international obligations.
- A statute does not have any retrospective effect.
- A statute does not alter the common law.
- A statute does not exclude the jurisdiction of the court.
- Legislation does not extend beyond the territorial jurisdiction of the UK.
Created at 8/20/2012 9:36 AM by System Account
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Last modified at 11/14/2012 1:57 PM by System Account
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