The legislation : Source of English law

The legislation : Sources of English law :

Legislation is law that is created by the legislature. The most important pieces of legislation are Acts of Parliament.

The principal legislature is the UK Parliament, which is based in London. This is the only body that has the power to pass laws that apply in all four countries. The UK Parliament consists of the House of Commons and the House of Lords.

As in French law, the sources of English law are diverse. But the strength of this sources are quite different than the strength they may have in civil law countries. And also the interactions of the sources are so different in the English system.

It has been an evolution of the importance of the strength of each source. For centuries, English law was only Common Law that is to say the law created by the royal courts. And statutory law was a secondary source of law. Statutes were in fact enacted in order to bring exceptions to the Common Law. This explains why the statutes were interpreted in a very narrow way. Statute was the exception; the normal law was the common law. The law was still the main expression of law in civil law. And then the rules of law contained in the statute. Only when the courts applied this statute.And so then the substance that was in a statute law was better known through the courses. There was like a shift (changement) in the apprehension, application of lawsembodied in statutes. Statute law is a secondary nature. You would quote the decisions that applied this statute. We find the laws in decisions but not in the statute.

Nowadays since the 2^nd world war the importance of statutory law has grown. Everything needed to be regulated and case law is too slow to adapt the law at that kind of time. At that time the amount of this legislation grew (for instance social security cannot be made through the decision of courts, so it was necessary that an act on social security be enacted). Nowadays statutory law is the main source of English law. 2013: there are almost 3000 pieces of legislation enacted just for this year, there will be more. The statutory law is important today in England.

What are the sources of English law? Statute law, case law (Jurisprudence), customs and equity, the international sources in England.

The types of legislation:

Legislation is for one part what emerged from the parliament and there are different words to describe an act of Parliament = Statute, legislation, Act. They mean the act which is passed by the Parliament and then enacted by the Queen. There are different types of legislation.

Distinction should be drawn between what recall primary legislation which is the bodies of act passed directly by the Parliament. And so this is the statute and act.

There is also a secondary legislation which is passed by other bodies than the Parliament. This bodies being delegated of the Parliament to adopt this kind of legislation.

In France, there is “lois” and “règlements” (primary and secondary legislation).

Very often, the law on a particularly subject comprises combination of primary and secondary legislation. Some facts are governed by primary and secondary legislation.

Usually, the primary legislation lay down a frame work of principles and rules and then the details are left to the secondary legislation. A very big difference between primary and secondary legislation is that the possibility of judicial review.

For primary legislation there is no judicial review but there is a possibility of judicial review for the secondary legislation. That means that there was act of parliaments are immune for challenges in the courts and secondary legislation can be challenged in the courts.

A) Primary legislation:

An act of Parliament begins as a Bill. The birth of an act of Parliament is a Bill.

A Bill: it’s a proposition of a law and when it’s passed it’s become an act or a statute: when the law has been passed (Royal Assent).

Bills are introduced in the HC or the HL for examination, discussion and amendment. When both houses have agreed on the content of the Bill, it’s then presented to the monarch for approval. And when Royal Assent is given, a Bill becomes an act of Parliament and is law.

A Bill can be discussed first in the HC or in the HL. But for many matters, it should start in HC (with money consideration).

Most of the time the Bill comes from the government but it can also be introduced by individual members of Parliament or Lords. Some private individual organizations may also propose a Bill.

Different types of Bills:

– Public Bills:

• The one introduced very usually by government and these public Bills modified the law through England and Wales, and sometimes Scotland and NI. It should be applied in all territory and concerns everyone living in England. For instance, the Human Rights Act is a public Bill because it is applied in the whole territory.
• “Private member’s Bills”: They can also be introduced by MP’s and they are called private member’s Bill. MP’s parliament who aren’t in the government, it’s a proposal from a backbench member. Example : the Abortion Act in 1967 which legalized abortion.

– Private Bills: they aim at changing the law that applies only to individuals or to organizations. Usually, they are promoted from organizations, lobbying groups, local authorities,and private companies.

The process of passing a Bill: there are 5 steps:

– First reading of a Bill. This is something which is really short. The title of the Bill is read out and then the date is fixed for the second reading but nothing more takes place at the first stage.

– Second reading: at this stage, the House considers the principles and purposes of the Bill and then there is a first debate on this Bill at the second stage. After some discussions a vote is given and if the Bill is voting on, then he can move on to the next stage. But if the vote is no, the second hearing is defeated and it’s the end of the Bill.

– The third stage is the comity stage. A work that is more efficient than in assembly. He studies the Bill and proposes amendments of the Bill (Commission).

– After this comity stage there is a report stage. The Bill is reported back to the whole House and there is a discussion of the amendments.

– 5 step: third reading, the whole House considers the Bill and vote. When the Bill has been adopted by one House, the same work starts again in the other House. The second house may adopt amendments and modify the Bill. When it happens, the amendment Bill must return to its original House. If a common’s Bill (HC) has been changed by the HL, it has to go back in the HC. Some others describe that at the ping-pong game. Some solutions have been found in order to avoid this ping-pong game (“navetteparlementaire”).

• 2 ways of solving the absence of agreement b/w both Houses :

– An agreement to carry the Bill over the next station. Usually one Bill should be adopted in the same station that it has been presented and if it hasn’t, the Bill is let. A Bill has a certain time life. The two houses trying to reach a solution to adopt the Bill.

– The big weapon: the Parliament Act that can give the HC the priority and the final decision. Example: Hunting Act 2004, there has been a ping-pong game between HC and HL. The HC wanted to prohibit the fox hunting (chasse des renards). HL proposed some amendments to have possibility to have fox hunting, to give some authorizations. HC was decided not to allow this kind of Hunting, HC refused these amendments and the Lords refused to rethrow the amendment. There was an act of parliament which gives presidencies to the HC, then the Bill could be passed and becoming an act.

The HC is permitted to override the HL’s refusal: it was adopted in the 1911 after the HL’s refused to pass the final’s Bill in 1909. At that time, whenever the HL refused to adopt an act, the Bill can’t be adopted, the HL had a veto. The liberal government responded to this refusal by introducing this Parliament Bill which was adopted by both Houses. Even if the HL agreed to adopt this Parliament Act, it has consequences for the HL to lose one of his powers, but it was accepted for some political reasons. This act permits to avoid this none ending ping-pong game.

Finally, there is the Royal Assent. The monarch has to grant the royal Assent. The last time a monarch refused to give the Royal Assent was Queen Anne in 1706. Now, the monarch cannot really oppose to grand the Royal Assent. When was an act comes into force, the Bill becomes an act of the date of the Royal Assent, but it doesn’t necessarily mean that it enters into force at that time. There will be a provision when the act will enter into force.

Humans Rights Act 1998 entering to force only in October 2000, after 2 years.

B) Secondary legislation:

Delegated legislation is the same. This is the legislation which isn’t passed by Parliament but this is legislation passed by other bodies like government ministers, local authorities or other regulatory agencies (“AAI :autadmind”). This bodies need an enabling act which an authorization from the Parliament to adopt this legislation. Sometimes the enabling act may be very restrictive but most of the time it’s written in a very brought language. Regulation is secondary legislation. It can also take the form of a rule or order. Even if the adoption of these statutory instruments is regulated, there are some possible dangers inherent in the secondary legislation. These possible dangers are inconvenient, are the lack of straitening because this kind of legislation is passed very quickly. This legislation is written without the help of the parliament commission, there are professionals in the elaboration of laws. There is a risk that these bodies might abuse of their power to legislate.

Some discrepancies on how statutes are made…

Compare:

– Marriage (Same Sex Couples) Act 2013: the date is the date of the Royal Assent (17^th July 2013). It’s extremely detail with 69 pages.

– French Law, 17 mai 2013. We have the modifications of the civil legislation. There is just 7 pages.

English act is very detailed; they try to think of all the consequences that the act may have whereas in French law we preferred to deal with principles. But English jurist don’t like general principles, they like the details provisions. This is why there is no code in England. There is a strong refusal to have general formulations in a code. Rules of law are written in a very abstract way. The languages of t