Legislation

Stephen Laws, then First Parliamentary Counsel, gave a special lecture entitled 'How Statute Law is Made' for the LRMSP in 2010 (video will start upon clicking the link). The lecture and a series of interviews that provide a unique insight into the process by which legislation is created in the UK is available on podcasts.ox.ac.uk as 'Statute Law: Making Legislation'. 

Types of Legislation

There are two main types of legislation in the UK:

  • Primary legislation - Acts of Parliament or Statutes
  • Secondary legislation - Statutory Instruments (SIs, which are often called Codes, Orders, Regulations, Rules)

There are also quasi legislation and European Community Legislation.

Primary legislation

There are two types of primary legislation:

  • Public General Acts - There are usually 25 to 50 new Public Acts each year. Since 1999, most Public General Acts are accompanied by Explanatory Notes, which explain in clear English what the Act sets out to achieve and place its effect in context.
  • Local and Personal Acts - these Acts affect a particular locality, person or body. There have been less than five per year in recent times, but in the Victorian era these Acts were used in relation to boroughs, railways, canal companies and enclosed land. Personal Acts were also one important method of obtaining a divorce before it became available in the secular courts in 1857.

Legislation is available from legislation.gov.uk however not all legislation is available as amended on that site at present. For up-to-date versions of legislation use Lexis+ UK or Westlaw, or, in print, Halsbury's Statutes and its noting up services.

Secondary legislation

Statutory Instrument (SI) is a generic term used for Orders, Regulations, Rules, Codes etc. They are also referred to as subordinate, subsidiary or delegated legislation. They are generally made by Goverment Ministers under under powers delegated by Parliament.

Quasi legislation

This broad category of legislation is difficult to classify. It includes Government Circulars (often available from government web sites); Rule Books (produced by the body concerned) and Codes (Codes of Practice under Police and Criminal Evidence Act, Highway Code etc).

Structure of an Act

A typical modern Public General Act consists of the following parts: title; year and chapter number; purpose of the Act; date of Royal Assent; body of the Act, in sections, and if the Act is long, also in parts; interpretation and commencement sections; schedule providing information about repeals and amendments resulting from the Act.

How statutes are made

A statute begins life as a Bill. A Bill may be introduced into either House of Parliament but must pass through both to become an Act. If the Lords fail to agree to the Commons' amendments the Parliament Act 1949 can be invoked and the Commons' will prevails after one year's delay. Bills are generally available from the Parliament web site and their progress throughout the various stages can be followed. The debates are published in Hansard, and General Committe Debates (formally Standing Committee Debates) are available on the UK Parliament website.  Previous sessions can be found on an archived site here https://www.parliament.uk/business/publications/hansard/commons/gc-debates/previous-sessions/

The standard House of Commons procedure is:

  • First Reading - formal announcement that the Bill has been presented
  • Second Reading - the debate stage where the purpose of the legislation is discussed
  • Committee Stage - normally a Standing Committee is established to consider the Bill clause by clause
  • Report Stage - a review of the Bill as amended by the Committee; new amendments may be added
  • Third Reading - The House reviews the amendments and permits it to proceed to the next House or not.
    At this stage, substantive amendments cannot be made.

The standard House of Lords procedure is basically the same as in the Commons. However after the Second Reading in the House of Lords, Bills are committed to a Committee of the whole House.

Royal Assent

When a Bill has passed all stages in both Houses, the Queen signs the Bill and it becomes an Act of Parliament. The date of Royal Assent is published in the Act. However, the Act does not necessarily come into force at this time.

One reason it is important to know about legislative procedure and publications is in order to do Pepper v Hart 

How to find commencement and repeal dates

Electronically, Lexis+ UK and Westlaw legislation have commencement and repeal information at the bottom of each section, with links to relevant SIs and amending legislation. The Schedules of the repealing Act include tables of repealed sections. Lexis+ UK provides a table of commencement information in Is it in Force? which is also available in print (Cw UK 30I73). Other sources that provide commencement and repeal information are Halsbury's Statutes (Cw UK 30H196),Current Law (Cw UK 200C976c) and several journals including the New Law Journal, Law Society's Gazette and the Solicitor's Journal (Cw UK 300s).

How to cite Acts

Cite Acts with their title (also known as short title) and year, for example, Human Rights Act 1998. Abbreviations can be used for subsequent citations of an Act: the Human Rights Act 1998 is abbreviated as HRA 1998.

If referring to specific sections or parts of an Act, after the name and year, insert a comma, then the relevant abbreviation and number.Some abbreviations are pt for part; s for section; sub-s for subsection, para for paragraphs; sch for schedule. For example, Consumer Protection Act 19087, s 2 refers to section 2 of that Act. It is also suitable to write, for example, section 11 of the Limitation Act 1980. When referring to subsections, use parentheses. For example Human Rights Act 1998, s 15(1)(b) refers to subsection 1b of section 15.

Regnal years

Prior to 1963, the citation was the regnal year of the Parliamentary session and the chapter number. For example, 50 & 51 Vict ch. 52 is the 52nd Act passed in the session of Parliament during the 50th and 51st years of Queen Victoria's reign.

Lists of regnal years may be found in CR Cheney's Handbook of Dates (Bodleian Law Library, Ref 60) and Sweet & Maxwell's Guide to Law Reports and Statutes (Ref Bibl Cw UK 5974c4).

How statutory instruments are made

Statutory instruments confer powers on Ministers to bring sections of an Act into force or to vary penalties for offences or to fill out detail in broad provisions of an Act. SIs are drafted in government departments, and then 'made' by the Minister or Secretary given such authority in the relevant Act. These powers are generally outlined in the enabling legislation:

Each Order has a preamble stating the authority or the primary legislation for its production. For example the Gaming Act (Variation of Monetary Limits) Order 1999 states:
"In exercise of the powers conferred on me by Section 20(3) and (8) and 51(4) of the Gaming Act 1968, I hereby make the following Order ...”

House of Commons FactSheet L7, Statutory Instruments page 2.

 

More than 3500 SIs are made each year. They are numbered consecutively, eg SI 2005/1234. There are basically two types: general and local. Between 50 and 60% are general. An example of a commencement order (SI 2000/3376) is shown above.

SIs are published individually and in annual volumes by the Stationery Office and are available for free on legislation.gov.uk and by subscription in Justis, LexisLibrary and Westlaw. Halsbury's Statutory Instruments contains some important SIs.

Commencement

The date an SI comes into operation is published at the top of the SI after the enabling statement. However if a commencement date is dependent on a future event, the commencement date will be published in the London, Edinburgh and Belfast Gazettes.

Citation of SIs

An SI is identified by the year and number printed at the top of the SI. For example, the Export and Investment Guarantees (Limit on Foreign Currency Commitments) Order 1998 is cited by its name, followed by a comma then SI 1998/1675. Another example of an SI citation is The Control of Asbestos Regulations 2012, SI 2012/632.

Some SIs have letters and a number in brackets after the sequence number.

  • C stands for Commencement Order
  • L relates to fees and procedures in courts
  • S relates to Scotland only

 

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