Discuss the processes through which primary and secondary legislation in the United Kingdom
Parliament is formed and highlight areas that need reform. 2023A
General remarks Parliament (i.e. the elected House of Commons, the appointed House of Lords and the
monarch) is the supreme law-maker. Since i) Parliament has (in theory) unlimited law-making power and ii) the
executive and the legislature are not separated, the resulting ‘elective dictatorship’ questions both the notion
that ‘Parliament makes law’ and also Parliament’s role regarding the scrutiny of laws.
A good answer to this question would… focus on the subjects of legislating and holding the executive
to account. The executive dominance in P may be touched upon, especially since it controls the
timetable for debating legislation. The adversarial nature of parliamentary procedure (government
versus opposition) and party discipline (whips) may be discussed as well but the focus should be on
legislative procedure (three readings) and executive supervision (questions, debates; select
committees). A very good answer will find time to say something about delegated legislation, which is
subject to a limited degree of parliamentary scrutiny. The purpose of the HL (which is subordinate to
the HC) should not be forgotten: it is to act as a check on the lower house. The Salisbury Convention,
the composition of the House and its status (unelected but a useful counterweight in the mixed
constitution) may be discussed.
8.1 Primary legislation
First, a reminder that in the context of primary legislation we mean the Acts or statutes made by the
Westminster Parliament (formally ‘the Queen in Parliament’) which, because of the principle of
parliamentary supremacy, are the highest form of law within the United Kingdom. Remember that,
although Parliament is a multi-functional body, much of its time (in both Houses) is taken up with the
passage of legislation.
Most Bills, which are draft legislation, are introduced by the government; however, they may be
introduced by individual members of the House of Commons or House of Lords in which case they are
known as Private Members’ Bills. Exceptionally, a Bill can be introduced by a private individual or
organisation.
The government Bills are drafted by the specialist government lawyers who work in the Office of
Parliamentary Counsel. They ‘work closely with departments to translate policy into clear, effective and
readable law’.
There are also different categories of Bills, of which the vast majority are Public Bills, which change the
law as it applies to the general population. The others are Private Bills, which follow a special procedure
and are specific to an organisation, such as a local authority, to change the law in its area or in a manner
which affects it, or Hybrid Bills that mix the characteristics of Public and Private Bills.
Bills may be introduced into either House but the annual Finance Bill (which gives effect to the Budget),
along with most other financial legislation, always begins in the Commons. Other high-profile and
contentious legislation is usually also introduced in the Commons. Bills go through a number of stages in
each House before passing to the other Chamber to work through the same stages. The final stage is the
Royal Assent and it is at this point that a Bill (draft law) becomes an Act (law).
8.2 Overview of the legislative process 8.2.1 Pre-legislative scrutiny
There is wide agreement that effective pre-legislative consultation and pre-legislative scrutiny make
positive and constructive contributions to the law-making process. In recent years, more legislation has
also been published in the form of Draft Bills.
Green Papers
These are consultation documents produced by the government which contain proposals for future
government policy for the purpose of debate and discussion. The aim is to allow people (both inside and
outside Parliament) to debate the subject and give feedback on suggestions.
White Papers A White Paper will generally contain more in-depth proposals and will often be the basis
for a Bill to be put before Parliament. A good example is the (now infamous) ‘Rights Brought Home’
White Paper of October 1997 (Cm 3782) which preceded the Human Rights Act 1998.
Draft Bills Draft Bills are published by government in order to facilitate consultation and prelegislative
scrutiny. They are usually examined by either a Select Committee or a Joint Committee. One high-profile
example was the Joint Committee established to examine the Draft House of Lords Reform Bill 2011–12.
A Joint Committee, as its name suggests, comprises members from both the House of Commons and the
House of Lords.
8.2.2 The passage of a Bill through Parliament
The stages which a Bill goes through in Parliament are similar in both chambers, with one particularly
noteworthy difference at committee stage.
First reading At this stage the Bill is formally presented in Parliament and the short title is read out.
There is no debate or discussion.
Second reading The second reading is the first opportunity for debate on the main principles of the Bill
in Parliament. The second reading debate is opened by the government minister (or MP or peer in the
case of Private Members’ Bills) from the department responsible for the Bill.
Committee stage This where practice differs between the House of Commons and House of Lords.
Public Bill committees (House of Commons) In the Commons a Public Bill committee (until 2006 these
were called Standing Committees) of around 20 members is set up to consider the details of a particular
Bill and only last for the duration of the Bill concerned. These committees are named after the relevant
Bill (e.g. the Health Bill Committee), and their composition reflects the size of the political parties in the
House. All Bills, other than money Bills, are automatically sent to a Public Bill committee after their
second reading unless they are committed to a committee of the Whole House.
Committee of the Whole House In the House of Commons, since 1945 a convention has developed that
Bills which are deemed to be of ‘first class constitutional importance’ have their committee stage on the
floor of the House. This is also known as a Committee of the Whole House as it takes place in the main
Chamber and all MPs may contribute to the debate. Examples of legislation which has been treated in
this manner are the Succession to the Crown Act 2013 and the European Union (Withdrawal) Act 2018.
In the House of Lords, all Bills have their committee stage on the floor of the House rather than in a
committee room. This arguably allows for greater scrutiny by a wider and more diverse group of people.
Report stage This stage involves detailed consideration of the Bill, as amended at the committee stage,
and discussion of further amendments. This is usually followed immediately by debate on the Bill’s third
reading.
Third reading In the Commons this is the final chance for debate on the content of the Bill, but
amendments cannot be made at this stage. In the House of Lords, however, amendments can be made
‘provided the issue has not been fully considered and voted on during either committee or report stage’.
After the third reading, the Bill moves across to the other chamber and goes through largely the same
process, subject to the differences outlined above.
Finally, each House considers the other’s amendments. If both Houses agree on the amendments and
the exact wording of the Bill, it passes for Royal Assent. If not, a Bill may go back and forth (described
rather aptly as ‘ping pong’) between the Houses until both reach agreement.
Occasionally, where agreement cannot be reached, the Bill will fall. As we have seen, in certain
circumstances the House of Commons can use the Parliament Acts 1911 and 1949 to pass the Bill
without the consent of the House of Lords (as discussed in the previous chapter).
Royal Assent The final stage of the legislative process is the exercise of the prerogative power of the
monarch to grant Royal Assent. As has been discussed elsewhere, by constitutional convention, Royal
Assent will not be withheld if the legislation has passed both Houses of Parliament.
8.2.3 Post-legislative scrutiny
According to the UK Parliament’s definition, post-legislative scrutiny is an inquiry by a parliamentary
select committee into how a new law has worked in practice since it came into force.
8.3 Framework Bills
Often, statutes contain only a broad framework of their purpose and more complex content is added
later by the relevant government department through delegated legislation. Although practically
expedient and efficient, such a method of law-making necessarily receives significantly less scrutiny than
a more detailed piece of primary legislation. This has led to criticism, including from the House of Lords
Constitution Committee. A recent example of legislation which provided extensive delegated powers to
ministers is the European Union (Withdrawal) Act 2018.
8.4 Multi-topic Bills
Large multi-topic Bills are sometimes referred to as ‘Christmas tree’ or ‘omnibus’ Bills as they are used
by government departments to ‘hang’ or ‘attach’ a wide range of topics or policy areas (much as one
would hang baubles on a Christmas tree). One prominent example of legislation which might be
described in this manner is the Localism Act 2011.
There are a variety of reasons why such broad-ranging legislation can prove problematic, not least the
difficulty in adequately scrutinising such a large Bill. Their breadth can also throw up unexpected
difficulties for government in that, as explained by a former First Parliamentary Counsel, ‘the scope is
broad and amendments can come in on any subject…late in a bill’s passage and that is quite often an
area where mistakes creep in’.
8.5 Delegated, secondary or subordinate legislation
Delegated legislation, also known as subordinate or secondary legislation, is extremely important in a
practical sense. As mentioned above, there are several thousand pieces of delegated legislation made
each year compared with a relatively small number of Acts of Parliament. It is ‘delegated’ in the sense
that the power to make legislation has been delegated by Parliament to a person or body other than
Parliament, most often to government ministers. Normally, the secondary legislation is intended to
‘flesh out’ or fill in the detail in relation to a ‘framework’ Act. The power to make delegated legislation is
to be found in what is referred to as a ‘parent’ or ‘enabling’ Act – that is, a statute which contains an
explicit provision allowing for the making of delegated legislation. As can be observed from the
examples below, delegated legislation enables the government to make changes to a law without
passing a new Act of Parliament. Other bodies may also make delegated legislation, for example, local
authorities have the power to make by-laws.
Remedial orders, made under s.10 of the Human Rights Act 1998, are also a form of delegated
legislation.
8.5.1 Statutory instruments
Statutory instruments (SIs) are usually drafted by the legal office of the relevant government
department and often are consulted upon. SIs are the main type of delegated legislation in the UK, with
approximately 3,000 SIs being issued each year. About two-thirds of SIs are not actively considered
before Parliament and simply become law on a specified date in the future.
8.5.2 Parliamentary scrutiny of delegated legislation
SIs are subject to either the affirmative procedure or the ‘negative procedure’. The former refers to
statutory instruments which must be approved by both the House of Commons and the House of Lords
in order to become law, whereas in the latter procedure SIs automatically become law unless there is an
objection from either House. One key point to be made in relation to SIs and other delegated legislation
is that, while it is absolutely necessary for the effective and efficient functioning of government, there
are potential concerns about the lack of adequate scrutiny. This is exacerbated in the context of Henry
VIII clauses, discussed below.
8.5.3 Henry VIII clauses
According to the Parliament Glossary:
‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of
Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.
The Lords Delegated Powers and Regulatory Reform Committee pays particular attention to any
proposal in a bill to use a Henry VIII clause because of the way it shifts power to the executive.
The expression is a reference to King Henry VIII’s supposed preference for legislating directly by
proclamation rather than through Parliament.
A Henry VIII clause enables a minister to make delegated legislation to amend provisions in an Act of
Parliament in order to remove an incompatibility (s.10(2) and s.10(3)). An example is s.10 of the Human
Rights Act 1998.
Section 8 of the European Union (Withdrawal) Act 2018 grants to the executive what might be
considered very broad powers. The executive is empowered to make regulations to deal with
deficiencies in retained EU law that are likely to arise following Brexit. This is another example of a
Henry VIII clause as it empowers the minister to make regulations which modify, amend or repeal
primary legislation.
Examine the powers to make delegated legislation and assess the scrutiny by Parliament of the
statutory instruments that arise from those powers. 2022B
Law cases, reports and other references the examiners would expect you to use Strathclyde Review,
Brexit, Coronavirus Act 2020.
General remarks The question asks the candidate to define the role and function of Parliament with
respect to holding government to account and scrutinising the policies, decisions and actions of the
executive. Since Parliament has unlimited law-making power and the executive and the legislature are
not separated, the resulting ‘elective dictatorship’ questions both the notion that ‘Parliament makes
law’ and also Parliament’s role regarding the scrutiny of laws.
A good answer to this question would… acknowledge that government can enact measures in the UK
without adequate parliamentary supervision. However, delegated legislation can become problematic if
the government is promoting Bills that delegate secondary law-making power to Ministers through
‘regulations’ or ‘statutory instruments’ – subject to a limited degree of parliamentary scrutiny.
Examples: Commencement orders; framework filling; implementation of EU law; Henry VIII clauses and
EU (Withdrawal) Bill; Regulatory Reform Orders. Joint Committee on Statutory Instruments; House of
Lords Delegated Powers and Regulatory Reform Committee (DPRRC); House of Lords Secondary
Legislation Scrutiny Committee.
A very good answer will ask if the House of Lords is properly resourced and equipped for scrutiny of
delegated legislation, and whether the absence of electoral legitimacy is a constitutional problem or
asset? Recent developments include Strathclyde Review, which recommends curbing the veto power of
the House of Lords (but would unbalance the relationship between Commons and Lords, and
particularly between parliament and the government. Big question: is delegated legislation
constitutionally necessary? Democratically problematic? Both?
Consider the claim that scrutiny of legislation is Parliament’s most important function and identify any
areas of the legislative process where improvements could be made. 2021B
General remarks Parliament (i.e. the elected HC, the appointed HL, and the Monarch) is the supreme
lawmaker. Since i) Parliament has (in theory) unlimited law-making power and ii) the executive and the
legislature are not separated, the resulting ‘elective dictatorship’ questions both the notion that
‘Parliament makes law’ and also Parliament’s role regarding the scrutiny of laws.
A good answer to this question would… recognise that the main focus should be on legislating and
holding the executive to account. The executive dominance in Parliament may be touched upon,
especially since it controls the timetable for debating legislation. The adversarial nature of parliamentary
procedure (government versus opposition) and party discipline (whips) may be discussed as well but the
focus should be on legislative procedure (three readings) and executive supervision (questions, debates;
select committees). A very good answer will find time to say something about delegated legislation,
which is subject to a limited degree of parliamentary scrutiny. The purpose of the HL (which is
subordinate to the HC!) should not be forgotten: it is to act as a check on the lower house. The Salisbury
Convention, the composition of the House and its status (unelected but a useful counterweight in the
mixed constitution) may be discussed.
Discuss the relationship between parliamentary scrutiny and good government. 2021A
General remarks Parliament (i.e. the elected HC, the appointed HL, and the Monarch) is the supreme
lawmaker. Since i) Parliament has (in theory) unlimited law-making power and ii) the executive and the
legislature are not separated, the resulting ‘elective dictatorship’ questions both the notion that
‘Parliament makes law’ and also Parliament’s role regarding the scrutiny of laws.
A good answer to this question would… recognise that the main focus should be on legislating and
holding the executive to account. The executive dominance in Parliament may be touched upon,
especially since it controls the timetable for debating legislation. The adversarial nature of parliamentary
procedure (government versus opposition) and party discipline (whips) may be discussed as well but the
focus should be on legislative procedure (three readings) and executive supervision (questions, debates;
select committees). A very good answer will find time to say something about delegated legislation,
which is subject to a limited degree of parliamentary scrutiny. The purpose of the HL (which is
subordinate to the HC!) should not be forgotten: it is to act as a check on the lower house. The Salisbury
Convention, the composition of the House and its status (unelected but a useful counterweight in the
mixed constitution) may be discussed.
Discuss the various ways that Parliament scrutinises the government and critically assess the
effectiveness of Parliament’s role in the legislative process. 2019B
General remarks Parliament (i.e. the elected HC, the appointed HL and the monarch) is the supreme
law-maker. Since i) Parliament has (in theory) unlimited law-making power and ii) the executive and the
legislature are not separated, the resulting ‘elective dictatorship’ questions both the notion that
‘Parliament makes law’ and also Parliament’s role regarding the scrutiny of laws.
A good answer to this question would… realise that the main focus should be on legislating and holding
the executive to account. The executive dominance in Parliament may be touched upon, especially since
it controls the timetable for debating legislation. The adversarial nature of parliamentary procedure
(government versus opposition) and party discipline (whips) may be discussed as well but the focus
should be on legislative procedure (three readings) and executive supervision (questions, debates; select
committees). A very good answer will find time to say something about delegated legislation, which is
subject to a limited degree of parliamentary scrutiny. The purpose of the HL (which is subordinate to the
HC!) should not be forgotten: it is to act as a check on the lower house. The Salisbury Convention, the
composition of the HL and its status (unelected but a useful counterweight in the mixed constitution)
may be discussed.
Discuss the view that delegated legislation is a ‘necessary evil’. 2020B
