In Great Britain laws are made in Parliament at Westminster. Its law-making status makes Parliament Great Britain’s main legislative body – though the Welsh Assembly and the Scottish Parliament do have legislative capabilities. However, it is difficult to estimate what the impact of law making by the European Union will be in future years. To date, most EU laws that have been imposed on the UK (and other members off the EU) have concerned environmental issues. Some political parties in the UK, such as the UK Independence Party, fear that the EU will broaden its net with regards to areas where it will impose legislation. Time will tell.
In the UK there are five types of legislation considered by Parliament. These are:
Private Members’ Bill
Government Bills embody government policy and a Minister introduces them. The bulk of Parliament’s time is taken up with these types of bills. As the current government has such a large parliamentary majority, it is almost certain that all Government Bills will be passed into law (though some may be amended along the way).
Individual MP’s from any political party (or a peer) can introduce a Private Members Bill. These rarely have any chance of becoming law as too much of Parliament’s time is taken up with Government bills. As a result of this, Parliament gets little chance to discuss Private Members Bills, let alone vote on them.
Private Bills are promoted by organisations that want specific powers. This type of bill is introduced following a petition to Parliament by the organisation that wants that bill to become law. These usually suffer the same fate as Private Members Bills – timed out as a result of Parliament concentrating on government bills.
Hybrid Bills are very rare. The government or backbenchers introduce them. They are a mixture of private and public bills and come about if someone or some people are going to be treated differently to others.
Statutory Instruments are rules made under powers contained in an Act of Parliament. Because they come from primary legislation, they are sometimes known as secondary legislation.
The idea for a new law can come from a variety of sources:
1) An election manifesto promise;
2) A government department after an election has been won;
3) The influence of pressure groups;
4) The influence of experts within their field;
5) In response to an EU directive.
Each parliamentary year, the Cabinet has to decide on what it wishes to do regarding legislation that year. As such it has to prioritise what it wants – though it has to be wary of promises made to the public at large. A parliamentary session does not last for one calendar year. With extended recesses, Parliament actually sits for a lot less than twelve months. Each parliamentary year, the government has time for perhaps no more than twenty major bills. As these absorb the bulk of Parliament’s time, there is little time left for Private Members’ Bills etc.
Legislation in Parliament is driven by what is said in the Queen’s Speech that traditionally opens Parliament in November. Once a decision has been taken by the government to introduce whatever form of legislation it wants, a potentially convoluted process takes place before the bill becomes law.
The first process is one of formulation. This is actually deciding what is going to be contained in that bill. Both ministers and civil servants acting on behalf of the government do this process. In fact, in many instances, the details of a bill are left to experts within a civil service department who are there to work for the government. Parliamentary Counsels (government lawyers) are responsible for actually drafting the bill.
Before words are put to paper, a period of consultation occurs. Either a ‘Green’ Paper or a ‘White’ Paper is published and members of the public are invited to comment on future bills using these papers as a basis for discussion and contact with their MP if they feel that this is necessary.
What is the difference between a White and a Green Paper?
A Green Paper is an exploratory one that is designed to stimulate discussion amongst a wide audience. A White Paper is a statement of where the government wishes to go in the sense that it is fairly definite in what it thinks is required. If the issue is very much an open one, a Green Paper usually comes before a White Paper to allow for an expansive debate on the issue. One single issue can have both a Green and a White Paper released on it so that the public can have an insight into what the government wants but also has access to a document that presents an across-the-board selection of arguments.
If the government want a bill to pass, it is in their interest to ensure that all the areas that need to be analysed have been. Therefore, extensive consultations are carried out to ensure that what the government wants, comes into being. For a bill that is deemed by the government to be important, many groups are consulted: experts, Treasury officials if there are major monetary implications, trade union leaders especially, if there are employment issues at stake, MP’s, trade organisations etc.
To allow for full public consultation, a draft bill might be published to allow the public at large (and the Parliamentary opposition!) to see what the effective final act might be. Prior to 1997, releasing a bill in draft form was quite rare. However, since 1997, this has become more and more common. In one sense, this process is seen as the government being more responsive to the people and giving the people the opportunity of making the government responsible to them rather than the other way round.
Only after a bill has been drafted and agreed on by ministers, does it go to the House of Commons for its first reading.
After so much preparatory work, the bill that goes before the House of Commons cannot be considered a mere ‘rough draft’. It is a lot more than this. Even at this seemingly early stage of its ‘life’, the bill is what the government wants to become law. If a government has a large parliamentary majority in the House, a bill, even on its first reading, frequently passes with relative ease (assuming that it is not a controversial one) and with few, in any, amendments to it.
The First Reading is the first time that a bill goes before the House itself. The First Reading is, in fact, when a bill is introduced after which the bill is then put into print. Though the title “First Reading” conjures up the image of a big parliamentary event, it is really the opposite in that nothing actually happens other than the fact a bill goes before Parliament. As the bill is not in a printed format at this time, MP’s can do little about assessing content etc. From this purely formal introduction, the bill then gets a Second Reading.
By the time of the Second Reading, MP’s have access to the detail of the bill and it is in the Second Reading that MP’s have the chance for a wide-ranging discussion on a bill’s merits or otherwise. Usually, though not exclusively, a parliamentary day is given over to a Second Reading, which usually corresponds to about six hours of discussion. More controversial bills have been known to be given three days of parliamentary time – about eighteen hours.
Traditionally, a government minister opens a Second Reading while his/her opposite number on the Opposition Benches replies. From here, backbench MP’s join in the debate. When it comes to closing the Second Reading, the minister concerned does this. The debate in the House in controlled by either the Speaker of the Deputy Speaker. Controversial bills may proceed to a vote at a Second Reading. It is almost certain that a government with a decent Parliamentary majority will win this as the bill represents what that government wants and the party whips would ensure that a smooth vote takes place. From the Second Reading, the bill moves onto to the Committee Stage.
The Committee Stage is probably the most thorough examination of the bill. This examination is done by a Standing Committee that is made up of 18 to 25 MP’s. The number per political party is determined by each party’s strength in the House of Commons. With a large parliamentary majority, the Labour government has a sound representation on such committees. The Minister responsible for the bill is on the committee along with junior ministers. The opposition minister is also on the committee along with his/her junior ministers. There are two Whips on the committee – one from the government and one that represents the opposition. The other places on the committee are made up of MP’s from both sides of the House. They are considered to have an expertise in the matter being discussed and can bring such expertise to the detailed discussion that occurs at the Committee Stage.
The number of times a Standing Committee meets is determined by the importance of the bill. A major government bill may require a number of meetings (between 10 and 12 is usual) over a six-week period. However, controversial bills have taken up more time than this. A Standing Committee is chaired by a senior backbencher from either side of the House. His/her task is to remain impartial throughout the committee stage. Bills that are likely to take time due to their controversial nature may have two chairs appointed – one from the government and one from the Opposition.
What does a Standing Committee do?
A Standing Committee assesses and approves each clause of a bill. It does not discuss the overall purpose of a bill. Each member of a Standing Committee is allowed to propose an amendment to clauses in the bill.
The government does not have to accept amendments, and despite the input of a Standing Committee, a bill, after the Committee Stage may be the same as at the time of the Second Reading. Governments with a large parliamentary majority and with a disciplined Whip structure, can all but guarantee that its bill will be voted for. However, a government may well accept amendments to a bill simply because a Standing Committee may have suggested an improvement that the government simply did not ‘see’. The power to do this rests with the government and not with the Standing Committee. Some have argued that this government power makes a Standing Committee and its work redundant.
However, this procedure is a fundamental part of the parliamentary set-up and is seen as part of the whole democratic structure of Parliament and an insurance against governments doing what they want to do. Standing Committees act as a reservoir of expertise than can be used constructively by a government – if only that it can discuss in clinical detail a bill and suggest changes that, according to the Committee, will enhance the bill.
A government might accept minor changes to a bill. Major changes are a different matter. These might only be forced on a government if sufficient government backbenchers combine with the Opposition. In this scenario, the government might be faced with the embarrassment of its bill being defeated in the House. This would clearly undermine its authority. With the current huge parliamentary majority of the Blair government in 2003, this is extremely unlikely to occur.
On rare occasions, the Standing Committee stage might be expanded. This is done when this examination of a bill is taken ‘on the floor’. This is when a Committee of the Whole House is convened to give all MP’s the opportunity to express their views on a bill. This happens rarely as it is a time-consuming process. Major finance bill and proposed constitutional changes have led to Committees of the Whole House being instigated in the past.
The whole committee stage is meant to be a thorough examination of a bill and it is the longest part of the process. Once it has ended, the process moves on to the Report Stage.
This stage is also known as ‘The Consideration’. This is a detailed examination of the bill by all MP’s, including amendments if they have been suggested at the Committee stage. New amendments can be introduced at this stage. This is usually done by the government in response to amendments suggested at the Committee stage. By doing this, the government can claim to have listened to the proposed amendments to a bill. It can also claim to still be in charge of the bill as it has proposed the amendments! The Report Stage can last from 30 minutes to several days. From here, the bill returns for its Third Reading.
The Third Reading is the final part of the debate regarding the bill within the House of Commons. MP’s discuss the overall content of the amended bill. From here the bill automatically moves onto the House of Lords.
Under its current structure, the Lords operate in broadly the same way as the House of Commons. The First Reading in the Lords is, as in the Commons, a formal introduction. A major debate on the bill occurs at the Second Reading. The Lords continue to follow the pattern of the Commons with a Committee Stage, followed by the Report Stage and then a concluding Third Reading.
However, though there are many similarities in the way both Houses proceed with regards to the way bills are passed, there are also a number of important differences.
The Lords Committee Stage is usually held on the floor of the Lords itself. In this way, any peer may put forward amendments and comment about the bill. Amendments can be made in the Lords at the Third Reading. This is usually done to clarify any amendments the government has agreed to make to its bill.
If the bill is voted for in the Lords, it is immediately sent for Royal Assent. However, if any amendments have been made in the Lords, the bill is returned to the Commons which debates each amendment the Lords have made. The Commons can:
Accept the amendment Amend the Lords amendment Completely replace a Lords amendment with one of its own Reject a Lords amendment.
If any of the last three are done in the Commons, the bill returns to the Lords with an explanation as to why the government has taken the course of action it has. This is a ‘statement of reasons’. The Lords can accept this and pass the bill. However, it can also reject the ‘statement of reasons’. When this happens, the amendments concerned (and therefore the bill itself) goes to and from the Commons and Lords until an acceptable compromise is reached. If both Houses fail to agree on their differences, the bill dies. This is an extremely rare event and has only happened on very infrequent occasions since 1945.
There are two major restrictions on the Lords ability to kill of a bill.
1) The Lords may not delay a bill for more than one parliamentary session. A bill lost in the Lords in one session but then passed by the Commons in the next parliamentary session, would automatically receive the Royal Assent regardless of whether the Lords opposed it in that session.
2) The Lords does not deal with any “Money Bills”. These pass through the Lords without discussion.
This theoretical ability of the Lords to kill off a bill or even to hinder its passing has highlighted a major constitutional issue.
To some, the Lords acts as an insurance against an over-dominant government based in the Commons. Those in the Lords are usually older than MP’s and have the worldly experience (usually of politics) to make a positive input into the making and creating of new laws. Their experience is usually greater than the majority of MPs’ in the Commons and their perceived wisdom is a much-needed stabilising factor in British politics.
To others, the Lords are an unelected and, therefore, an undemocratic relic from another time that undermine the whole concept of representative democracy. If an elected government, so the argument goes, decides to pursue a certain policy, an electoral victory gives it the right to do so – and the Lords have no right to interfere in this process.
The current projected reform of the Lords is still being considered. In February 2003, Tony Blair argued that a fully appointed Lords would allow a cross-section of experts to be appointed to the second chamber. Such experts would offer a serious scrutiny of government bills and society as a whole would only benefit from this. This approach has been soundly criticised by many who argue that an appointed Lords would simply pass whatever the government wanted to be passed and would offer no scrutiny whatsoever to government bills. One of the major critics of an appointed Lords was the then Leader of the House, Robin Cook, a member of the Cabinet, who was to resign over the government’s decision to attack Iraq.
After the First Reading, Second Reading, Committee Stage and Third Reading in the Commons and the input by the Lords, a bill (if it has passed through all the stages) is ready for the Royal Assent.
In this process, the monarch formally signifies assent to the bill so that it becomes an act and part of the law of the land. The Queen uses Norman French as part of tradition – “La Reyne le veult” (“The Queen wishes it”). The last time the monarch refused to give Royal Assent was in 1707 with Queen Anne. It is all but impossible to imagine a situation whereby the Queen would refuse to give Royal Assent to a bill that has gone through such a thorough examination. Such a refusal would spark off a major constitutional crisis.
An act usually has a date or dates in its text as to when it will be implemented (or when parts of it will be implemented if it is a multi-layered act). Some acts have a Commencement Order in them to activate it, or parts of it. The implementation of that act means that it is part of the law of the land from that date.