Sources of Law in England and Wales: Legislation

This article will discuss what legislation is, how it is made and where it fits in the English legal system. This article is part of the ‘Introduction to English Law Series’. The series can be found here.

What is Legislation?

Put simply, legislation refers to laws that have been formally written down in a document. A piece of legislation will make laws about a particular topic, or a range of topics, such as criminal justice or consumer rights.

In the UK the power to make legislation rests with Parliament. For these purposes Parliament is comprised of the House of Commons, the House of Lords and the monarch. Parliament is supreme and can make or unmake any law it wants. It could, for example, legislate that all blue-eyed babies were killed at birth.

Legislation can be broadly split into two types: primary and secondary.

Primary Legislation

Primary legislation is made by Parliament itself (and because Parliament is supreme the law it makes itself is of primary importance, hence ‘primary legislation’). Legislation made by Parliament is known as an Act of Parliament (or a statute). Well known examples include the Human Rights Act 1998 and the Sale of Goods Act 1979.

How is an Act of Parliament made? A proposed version of the law – known as a Bill – enters one of the Houses of Parliament. Often, a Bill will start in the House of the Commons where it will be debated by MPs first. It can, however, start in the House of Lords where it will be debated by peers first. The Bill will pass through the following stages in each House.

• First reading – the Bill is read and formally introduced.
• Second reading – the general principles of the Bill are debated and voted on.
• Committee stage – the Bill is examined line by line and amendments can be proposed and voted on. This is normally done in a committee room away from the chamber of the House of Commons or the House of Lords.
• Report stage – further amendments are debated and voted on in the chamber of the House of Commons or House of Lords
• Third Reading – the final opportunity to debate and amend the Bill. A vote is then held on whether to approve the Bill. When it is approved it passes to the next house for consideration.

Occasionally the House of Commons and House of Lords will disagree over a Bill and it will pass back and forth between the two houses. This is known as ‘ping-pong’. When a Bill completes its passage through both Houses and is approved it is ready to receive royal assent; the monarch will formally agree to make the Bill into an Act of Parliament. Royal assent is granted as a matter of course. It has not been refused since Queen Anne refused to grant it in 1707.

The Act will either come into force immediately or on another day appointed or to be appointed in secondary legislation.

Secondary Legislation

Secondary legislation (or delegated or subordinate legislation) is legislation made by someone other than Parliament. Parliament allows another to make the law on its behalf. Often this power is given to government ministers and local councils. However, it is always subject to the control of Parliament.

The power to make delegated legislation is given to the relevant person in an Act of Parliament. Since the Act enables a person to make law it is referred to as an ‘enabling Act’.

There is a range of types of delegated legislation. The three most significant types are:

• Statutory instruments – these normally take the form of Regulations, Rules and Orders. These are by far the most numerous type of legislation passed (about 3000 are passed each year).
• Bylaws – normally made by local councils, concerning matters such as parking restrictions.
• Orders in Council – approved by the Privy Council and signed by the monarch. Often used in times of emergency.

When secondary legislation is properly made, it has the full force and effect of primary legislation. However, the lawmaker can only makes laws within the scope of the power given to it by Parliament in the enabling Act. If the lawmaker goes beyond the powers they were given then the delegated legislation can be declared ultra vires (meaning ‘beyond powers’ in Latin) by the courts and quashed. The courts cannot, however, quash primary legislation since Parliament is supreme and can never act beyond its own powers: they are limitless theoretically.

It is the role of the courts to interpret all of this legislation. As the higher courts do this they create law by their interpretation: common law. Lower courts will follow the rulings of higher courts because it is desirable to have a body of law that is applied consistently. This will be discussed further in the next article in the series.