Parliamentary Structure
1.1 The House of Commons
The House of Commons consists of 650 elected Members of Parliament (MPs), each representing a specific geographic constituency secured during the most recent general election. The majority of MPs are affiliated with a political party, and those belonging to the party currently in power are seated alongside the government, including ministers who occupy the prominent front benches.
The principal opposition party forms Her Majesty’s Loyal Opposition, with its leader assuming the role of Leader of the Opposition. This individual engages in regular discourse with the Prime Minister, critiquing the government’s performance. The Leader of the Opposition is assisted by the Shadow Cabinet, whose members are tasked with challenging and questioning their corresponding government ministers. For instance, the Shadow Foreign Secretary would directly engage with the Foreign Secretary on matters of foreign policy.
The Speaker of the House of Commons. The Speaker, elected by all MPs, is responsible for presiding over debates and upholding the rules of parliamentary conduct. To maintain neutrality, the Speaker relinquishes any party affiliations and operates in a non-partisan capacity.
1.2 The Election Process
Elections to the House of Commons, known as general elections, determine the composition of the legislature. In contrast, the House of Lords remains an appointed body without electoral processes. In the UK's parliamentary system, general elections fulfil a twofold purpose: they elect Members of Parliament and simultaneously decide which political party, or coalition of parties, is to form the government.
Ordinarily, the tenure of Parliament spans five years, at the end of which Parliament dissolves, MPs relinquish their seats, and a general election is convened.
The Fixed-term Parliaments Act 2011. The Fixed-term Parliaments Act 2011 stipulates that a general election can be triggered prior to the completion of the standard five-year term under two specific conditions:
A motion declaring "This House has no confidence in Her Majesty’s Government" is approved by the House of Commons, and subsequently, no motion affirming "This House has confidence in Her Majesty’s Government" is passed within the next 14 days;
or
At least two-thirds of the total number of MPs, which equates to 434 out of 650, cast their votes in support of holding an early general election.
Moreover, by virtue of parliamentary sovereignty, Parliament retains the authority to enact new legislation that supersedes the Fixed-term Parliaments Act 2011, thereby setting an alternative date for the forthcoming election.
Imagine a situation where Parliament decides to amend the succession rules to implement gender-neutral succession, where the throne passes to the monarch's eldest child regardless of gender, or to introduce a rule where the monarch's role rotates among the countries of the United Kingdom. Such changes would significantly alter centuries-old traditions governing the monarchy.
To enact this, Parliament would need to pass a new Act, effectively amending or replacing the existing laws governing the line of succession. This legislation would require the standard legislative process: approval by both the House of Commons and the House of Lords, followed by the Royal Assent.
Once enacted, this new law would supersede the current rules, illustrating the power of Parliament to make or unmake any law, even those with deep-rooted historical and cultural significance. This example underscores the fundamental principle of parliamentary sovereignty in the UK legal system, highlighting its capacity to reshape even the most established constitutional elements.
Eligibility for Becoming an MP. In general, most individuals are eligible to stand as candidates in parliamentary elections. Nonetheless, specific groups are prohibited from becoming MPs, even if they win an election:
Individuals younger than 18 years of age;
Non-Commonwealth citizens, with the exception of Irish citizens, who are permitted to become MPs;
Members of the House of Lords.
Additionally, certain professions are precluded from MP membership to preserve the separation of powers, ensuring that those in the judiciary or executive do not concurrently legislate.
This includes:
Judges serving in high-ranking courts such as the High Court, Court of Appeal, and Supreme Court;
Civil service personnel;
Armed forces members;
Police force officers;
Legislators from non-Commonwealth countries and Ireland, including the European Parliament, as outlined in the House of Commons Disqualification Act 1975.
By-Elections. Seats in the House of Commons may become vacant due to an MP's death or resignation. When this occurs, a by-election is organised in the relevant constituency to elect a replacement.
The Recall of MPs Act 2015. Under certain circumstances, an MP may be subject to a recall:
If convicted of a crime leading to imprisonment;
If suspended from the House of Commons for at least 10 days due to misconduct;
If found culpable of falsifying expenses claims.
When such situations arise, the Speaker informs the affected constituency, initiating a recall petition. If over 10% of the electorate in the constituency sign this petition, a by-election is triggered. The MP has been effectively recalled to their constituency and may choose to stand in the by-election.
1.3 Composition of the House of Lords
The House of Lords, as the second chamber of Parliament, is distinctive in that its members are not elected. Its composition includes approximately 800 members who fall into one of four distinct categories.
Hereditary Peers. These individuals inherit titles such as Duke, Earl, Viscount, or Baron, which traditionally pass through family lineage, typically to the eldest son. Although there is a substantial number of hereditary peers, only 92 have the privilege to sit in the House of Lords, a limitation set by the House of Lords Act 1999.
Life Peers. Appointed directly by the Monarch upon the recommendation of the Prime Minister, life peers receive the title of Baron for their lifetime. Appointments are often reflective of the political party vote shares from the last general election, maintaining a semblance of political representation. The life peerage does not carry over after death, thus ensuring the House of Lords is predominantly composed of appointed members rather than hereditary ones.
Lords Spiritual. This group consists of the 26 most senior bishops from the Church of England, known as the Lords Spiritual, who hold seats in the House of Lords.
Law Lords. Before the establishment of the Supreme Court, Law Lords, officially titled as Lords of Appeal in Ordinary, were appointed for life and served as the highest appellate judges in the UK. While the judicial function of the House of Lords has been transferred to the Supreme Court, some of the Law Lords retain their seats.
PRIMARY LEGISLATION
2.1 The State Opening and the Queen's Address
The lifespan of a Parliament is traditionally capped at five years, segmented into distinct sessions typically lasting a year, commencing in May. The ceremonial inauguration of each parliamentary session is punctuated by the State Opening, where the Monarch delivers the Queen’s Speech. This key event features the Monarch articulating the government’s planned legislative agenda for the upcoming session, effectively setting the government's priorities and intended policies.
The timing of a parliamentary session is crucial for the progression of legislation. A bill must successfully navigate through the House of Commons and the House of Lords and subsequently be granted Royal Assent within the same session of its introduction. Failure to complete this legislative journey within the allotted time frame results in the bill’s expiration, necessitating reintroduction in the subsequent session. However, provisions exist for a bill to be ‘carried over’ to the next session by parliamentary consent, allowing the bill to pick up where it left off.
Between sessions, Parliament is in recess, putting a pause on all parliamentary activities until the next session's initiation. This interval underscores the procedural rhythms of the UK’s legislative machinery.
2.2 The Curtailment of Parliament: Prorogation
The transition between parliamentary sessions is marked by prorogation, a formal mechanism initiated by the Monarch on the Prime Minister's counsel. This process brings one session to a close and signals the commencement of the next. Prorogation has the effect of temporarily suspending parliamentary proceedings, including all pending legislative business, which must either conclude before this suspension or resume in the following session if carried over.
The prerogative power to prorogue carries significant potential for misuse, as an extensive or unjustified prorogation could disrupt the legislative function and democratic process. Such an act would essentially halt Parliament's operations and could be construed as an attempt to circumvent parliamentary scrutiny.
To guard against abuse, any prorogation extending beyond a brief interlude necessitates a compelling justification. If deemed excessive and lacking reasonable grounds, such prorogation may face judicial scrutiny and potential annulment, affirming the judiciary's role in upholding constitutional propriety.
Consider a scenario where a new healthcare reform bill is introduced in the House of Commons on 10th June and successfully passes its Second Reading on 20th June. The detailed examination of the bill, known as the Committee Stage, is scheduled to begin on 30th June. Unexpectedly, the government announces the prorogation of Parliament on 25th June, with the subsequent session set to begin on 5th July, marked by the Queen's Speech.
In this situation, unless specific provisions are made to 'carry over' the bill, it would lapse due to the prorogation. The bill, therefore, would need to be reintroduced in the new session post-5th July, starting once again from the initial stages of the legislative process. This example highlights the significance of prorogation in shaping the legislative agenda and the potential implications for ongoing parliamentary proceedings.
2.3 The Procedure for Enacting Legislation
The journey of a bill through Parliament is a well-defined process, with both the House of Commons and the House of Lords following a similar sequence of stages. Typically, legislation proposed by the government is presented initially in the House of Commons. However, bills that are less contentious may commence their legislative passage in the House of Lords.
The progression of a bill encompasses several key stages:
First Reading. This initial phase formally introduces the bill to the parliamentary chamber. It is purely procedural, entailing no debate, and serves to make the bill's text and its accompanying explanatory notes public.
Second Reading. This stage provides the first opportunity for the principles and underlying purpose of the bill to be discussed. All Members of Parliament may engage in this debate, voicing support or raising objections.
Deliberation at the Committee Stage. At the committee stage, the bill is examined with great attention to detail. Members of Parliament are presented with the opportunity to propose changes or amendments to the bill, which are then subject to rigorous debate and potential adoption into the bill's framework. The committee stage takes on one of two primary forms:
Public Bill Committee. A Public Bill Committee, comprising between 16 and 30 MPs, is established to undertake a thorough review of the bill. The committee's composition reflects the proportional distribution of the political parties within the main chamber. This committee has the authority to solicit and scrutinise evidence from specialists or advocacy groups relevant to the bill.
Committee of the Whole House. For bills that are either non-contentious or demand urgent attention, or for those that carry significant constitutional weight, the Committee of the Whole House is convened. Although it operates as a committee, it assembles within the main Commons chamber, involving the participation of all MPs.
In the House of Lords, a parallel procedure is observed, where each bill is subjected to the collective scrutiny of all peers, analogous to the House of Commons' Committee of the Whole House. This inclusive approach in the Lords mirrors the comprehensive assessment seen in the Commons, ensuring a detailed examination of the bill in both houses.
Report Stage. Following meticulous examination at the committee stage, the bill returns to the chamber for the report stage. This phase allows for the introduction and discussion of additional amendments.
However, it's customary in the House of Commons for the Speaker to refrain from selecting amendments for debate if they revisit topics previously deliberated upon in the process.
This stage primarily serves as a platform where all Members of Parliament can voice any remaining issues or considerations regarding the policy implications of the bill. It is an opportunity to ensure that any outstanding concerns are addressed and that the bill is refined before it progresses further in the legislative journey.
Third Reading. The third reading serves as the concluding review of the bill within its originating house, typically conducted with brevity. At this juncture, Members of Parliament or Lords take one last look at the bill in its entirety before it crosses over to the other chamber to commence the legislative process anew.
Notably, in the House of Lords, this stage represents the final opportunity to propose and debate amendments, making it a critical point for peers to ensure the bill's provisions are as intended before it leaves their chamber.
Consideration of Amendments—‘Ping Pong’. As legislation advances through the parliamentary stages, it often undergoes modifications, at times significantly altering its original form. These adjustments necessitate careful examination in the originating House. Should these modifications find acceptance, the legislation progresses towards receiving the Monarch's formal consent.
Conversely, should there be disagreements, the originating House may either discard these amendments or propose alternate ones to the revising House. This initiatory House must then deliberate on whether to stand firm on its amendments, accept the proposed alternatives, seek a middle ground, or retract them entirely. This iterative dialogue, colloquially known as 'ping pong', continues until both Houses reach a consensus on the bill's final wording.
It is customary for the House of Lords, as the non-elected chamber, to eventually defer to the will of the elected House of Commons. Nonetheless, the Lords might persist with an amendment to prompt a thorough re-evaluation of the matter in the Commons.
Royal Assent. Following successful navigation through both the House of Commons and the House of Lords, a bill's transformation into law hinges on receiving the Monarch's formal endorsement, known as the Royal Assent. This stage is largely ceremonial, as by long-standing constitutional tradition, the Royal Assent is invariably bestowed, rendering the bill an official Act of Parliament.
Specific Legislation for English Matters. In an effort to address the absence of a distinct devolved body for England, a supplementary procedural step known as English Votes for English Laws has been instituted within the House of Commons. This step is applied to legislative proposals or certain sections thereof that exclusively pertain to England. Previously, there was a potential for laws applicable solely to England to be passed by the collective vote of the House of Commons, despite opposition from English MPs, due to support from representatives of Scotland, Wales, and Northern Ireland.
This procedural stage ensues after the Report Stage and before the Third Reading. At this juncture, the Speaker of the House identifies and certifies any clauses of a bill that are relevant only to England. Consequently, only those Members of Parliament who serve English constituencies are entitled to cast their vote on these matters. Should these MPs reject the specified provisions, the bill in question is returned for additional deliberation and potential amendment.
Authority of the House of Lords. The House of Lords, although generally equipped with similar legislative powers as the House of Commons, often finds the legislative journey more arduous due to the usual absence of a government majority. The Lords possess the ability to impose amendments upon the government, and they can, in principle, reject a bill outright.
Nonetheless, their capacity to influence legislation is moderated by a blend of political conventions and statutory limitations, which underscore the principle that an unelected chamber should not indefinitely obstruct legislation approved by the democratically elected House of Commons.
This balance is encapsulated in the subsequent protocols, which delineate the extent of the Lords' legislative influence.
The Salisbury Convention. Under this convention, the House of Lords typically accedes to the second reading of a government bill that enacts manifesto pledges of the elected ruling party. Despite this deference to the Commons at the initial stage, the Lords retain the prerogative to propose amendments during the bill's subsequent progression through Parliament.
Suspensory Veto Under the Parliament Acts 1911-1949. The House of Lords' capacity to reject legislation is not absolute but rather suspensory. This means the Lords can only delay legislation, not permanently prevent it. If the Commons passes a bill which the Lords subsequently reject, and the Commons then passes it again in a new session, the legislation can proceed to the Monarch for Royal Assent without the Lords' concurrence. The critical temporal requirement for this process is that at least a year must have passed between the bill's second reading in the initial session and its third reading in the subsequent session.
Let's consider the hypothetical 'Climate Change Bill'. This bill, aimed at introducing stringent environmental regulations, was initially passed by the House of Commons. However, it faces rejection in the House of Lords due to concerns about its impact on industries. The Commons, persistent in their environmental agenda, reintroduced the bill in the following parliamentary session. After a year has elapsed since its original Second Reading in the Commons, the bill is passed once more. Despite the Lords' continued resistance, the bill now moves forward to receive Royal Assent from the Monarch. This sequence exemplifies how the House of Lords' veto is suspensory in nature under the Parliament Acts, demonstrating their limited capacity to indefinitely halt legislation.
2.4 Commencement
Following the granting of Royal Assent to legislation, its provisions typically do not become operative instantaneously. The norm is for the Act to encompass a stipulation that grants the government the discretion to instigate the law at a future point in time. These provisions, known as commencement orders or regulations, fall under the umbrella of secondary legislation. Such orders specify which sections of the Act are to be activated (should it not be the entirety of the Act) and stipulate the commencement date. It's usual practice for different segments of an Act to be phased into legal force at varying times.
In the absence of any commencement directive within the legislation, the default position is that the law becomes effective upon receiving Royal Assent. Contemporary legislative practice typically ensures this immediate effect is explicitly articulated within the Act itself.
2.5 Modification, Revocation, and Expiry Provisions
Typically, legislation remains in force indefinitely, persisting as part of the statute book until Parliament decides otherwise. Parliament retains the authority to modify or entirely revoke any piece of legislation, effectively removing it from the corpus of active law.
Occasionally, a legislative act may incorporate a 'sunset provision', which dictates that certain sections or the entirety of the Act will lapse on a specified date. The primary benefit of this mechanism is that it compels Parliament to reassess the effectiveness and relevance of the legislation at a predetermined point in the future, ensuring its continued suitability and alignment with current needs and conditions.
SECONDARY LEGISLATION
Secondary legislation, also known colloquially as delegated or subordinate legislation, statutory instruments, or simply regulations, encompasses various forms of legislation that derive their authority from primary legislation passed by Parliament.
This category of lawmaking allows the government to fill in more detailed or administrative content under the framework established by an Act of Parliament. Throughout this section, the term 'secondary legislation' will be consistently employed to describe these legal instruments.
3.1 Definition of Secondary Legislation
Secondary legislation encompasses those legal rules and regulations formulated by government authorities under the empowerment of an Act of Parliament. It typically serves to enact detailed provisions essential for the practical implementation of governmental policies and administrative schemes.
This type of legislation ensures that complex or technical details, which are subject to change and may not be suitable for inclusion in the primary legislation, can be efficiently managed and updated as necessary.
3.2 How Secondary Legislation Is Created
Secondary legislation is brought into effect through two principal mechanisms:
Negative Resolution Procedure. Under this procedure, the proposed secondary legislation is presented before both the House of Commons and the House of Lords. It becomes valid law on its specified commencement date unless a resolution to annul it is passed by either chamber within a statutory period, typically 40 days after presentation. Should no objection be registered within this timeframe, the legislation will be automatically enacted.
Affirmative Resolution Procedure. Alternatively, secondary legislation can be implemented via the affirmative resolution procedure, which necessitates explicit approval from both Houses. The proposed legislation must be proactively supported through a formal vote in both the House of Commons and the House of Lords. Within the Commons, the legislation can be subject to debate either on the floor of the house or within a Delegated Legislation Committee. Neither House has the capacity to amend the proposed secondary legislation.
It is important to note that the procedures outlined in the Parliament Acts of 1911 and 1949 do not extend to secondary legislation, affording the House of Lords the authority to veto such legislation outright.
3.3 The Scope and Use of Henry VIII Clauses
Named after the Tudor monarch known for his assertive approach to governance, Henry VIII clauses grant the executive branch the authority to revise or repeal provisions within an Act of Parliament through secondary legislation. These powers typically facilitate minor, technical, or administrative adjustments to laws.
The employment of such powers is generally uncontroversial when applied to minor adjustments. However, broader applications that enable significant modifications to primary legislation have sparked debates concerning constitutional propriety. This is because they blur the traditional separation of powers, transferring substantial legislative functions from Parliament to government ministers.
The increasing reliance on Henry VIII clauses raises concerns about the balance of power between the legislature and the executive, and the potential erosion of parliamentary oversight and democracy.
3.4 Judicial Review of Secondary Legislation
Secondary legislation is established by the government under the authority delegated by an Act of Parliament, hence it is not directly crafted by the legislative body itself.
Consequently, it is susceptible to judicial scrutiny and can be invalidated by the courts if it is found to exceed the powers conferred by the primary legislation. This process, known as judicial review, is a mechanism that safeguards the rule of law by ensuring that the government's regulatory actions remain within the legal boundaries set by Parliament.
For instance, if a court determines that secondary legislation has been enacted outside the scope of its enabling statute or that it infringes upon fundamental principles of the rule of law, such legislation may be declared unlawful and thus void.
Additionally, when interpreting the scope of powers under which secondary legislation is made, courts may infer certain limitations to align the government's regulatory powers with the overarching principles of fairness and legality that underpin the rule of law.
Parliamentary Privilege and Freedom of Speech
Parliamentary privilege encompasses a collection of rights that safeguard the independence and functioning of Parliament, a cornerstone of which is the guarantee of uninhibited speech within its chambers.
This privilege is a manifestation of the separation of powers doctrine, affirming that the internal deliberations and expressions within Parliament are the preserve of the legislative body and not subject to external judicial scrutiny.
This special protection enables Members of Parliament (MPs) and Lords to engage in open and robust debate, secure in the knowledge that they are immune from litigation or legal repercussions for statements made in the course of parliamentary proceedings.
Additionally, it serves to reinforce the doctrine of parliamentary sovereignty by precluding judicial interference with the legislative process and the contents of the enacted laws.
4.1 The Sub Judice Rule and Parliamentary Conduct
Parliamentary privilege comes with an implicit understanding that the privileges exercised will respect the judiciary and the legal processes in play. This mutual respect is embodied in the sub judicie rule, which instructs Members of Parliament and peers to refrain from discussing active legal cases within the confines of parliamentary debate.
The rationale for this restraint is the potential influence parliamentary discussions might exert on legal proceedings, thereby ensuring that judicial matters are determined solely within the judicial domain. Adherence to the sub judicie rule demonstrates Parliament's commitment to honouring the separation of powers by allowing the courts to operate without legislative encroachment or bias.
4.2 Exception to Privilege
While the doctrine of parliamentary privilege typically precludes the use of parliamentary discourse in judicial matters, there is a notable exception where the courts are permitted to consult the Hansard—the official transcript of debates in Parliament—as an interpretative aid for legislative intent.
This recourse is available under specific conditions: the legislation in question must present ambiguities; there must be an elucidatory statement by a minister within the debate; and such a statement must be clear enough to aid in the resolution of the ambiguity. This exception is an acknowledgment of the interconnectedness of legislative intent and judicial interpretation, providing a bridge where the legislative history may illuminate the path to understanding the law's purpose and scope.
Consider the case of a renewable energy company, EcoPower, which applied for subsidies under a new governmental renewable energy scheme. The scheme's enabling legislation was somewhat ambiguous about the eligibility criteria for these subsidies. EcoPower's application was initially rejected on the grounds that their technology didn't meet the criteria specified in the regulations. However, during the parliamentary debate on the legislation, the responsible minister clearly stated that the subsidies were intended for a broad range of renewable technologies, including emerging and less conventional ones like EcoPower.
EcoPower challenged the rejection in court, arguing that their technology should be eligible for the subsidy based on the minister's statement. The court, acknowledging the ambiguity in the legislation, referred to the Hansard record of the parliamentary debate. Utilising the minister's explicit statement, the court interpreted the legislation to include a wider range of renewable technologies within the subsidy scheme, thus ruling in favour of EcoPower's eligibility.
This example illustrates how, in specific instances, the courts can draw on ministerial statements made during parliamentary debates to resolve ambiguities in legislation and to discern legislative intent.