The legislative process

As an outcome of various historical political struggles, Parliament, and in particular the House of Commons, has asserted its authority as the ultimate source of law making in the UK. Parliament’s prerogative to make law is encapsulated in the notion of the supremacy of Parliament.  Parliament consists of three distinct elements: the House of Commons, the House of Lords and the Monarch. Before any legislative proposal, known at that stage as a Bill, can become an Act of Parliament, it must proceed through and be approved by both Houses of Parliament and must receive the royal assent.  Before the formal law making procedure is started, the Government of the day, which in practice decides and controls what actually becomes law, may enter into a process of consultation with concerned individuals or organisations.  Green Papers are consultation documents issued by the Government which set out and invite comments from interested parties on particular proposals for legislation.   After considering any response, the Government may publish a second document in the form of a White Paper, in which it sets out its firm proposals for legislation

Delegated legislation

In contemporary practice, the full scale procedure detailed above is usually only undergone in relation to enabling Acts. These Acts set out general principles and establish a framework within which certain individuals or organisations are given power to make particular rules designed to give practical effect to the enabling Act. The law produced through this procedure is referred to as ‘delegated legislation’.

As has been stated, delegated legislation is law made by some person or body to whom Parliament has delegated its general law making power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted; equally, however, it only has effect to the extent that its enabling Act authorises it. Any action taken in excess of the powers granted is said to be ultra vires and the legality of such legislation can be challenged in the courts, as considered below

The Deregulation and Contracting Out Act 1994 is an example of the wide-ranging power that enabling legislation can extend to ministers. The Act gives ministers the authority to amend legislation by means of statutory instruments, where they consider such legislation to impose unnecessary burdens on any trade, business, or profession. Although the DCOA 1994 imposes the requirement that ministers should consult with interested parties to any proposed alteration, it nonetheless gives them extremely wide powers to alter primary legislation without the necessity of following the same procedure as was required to enact that legislation in the first place. An example of the effect of the DCOA 1994 may be seen in the Deregulation Order 1996 which simplifies the procedures that private companies have to comply with in passing resolutions. The effect of this statutory instrument was to introduce new sections into the Companies Act 1985 which relax the previous provisions in the area in question. A second example is the Deregulation Order 1996 which sets out a model structure for appeals against enforcement actions in business disputes.

The powers under the DCOA 1994 were extended in the Regulatory Reform Act 2001. It should also be remembered that s 10 of the HRA allows ministers to amend primary legislation by way of statutory instrument where a court has issued a declaration of incompatibility