Legislation and legislative procedures - Enactment of primar...

Learning Outcomes

This article outlines the enactment of primary legislation and the constitutional controls on lawmaking in the UK, including:

• Meaning and hierarchy of primary and secondary legislation
• Types of Bills and legislation (public, private, Private Members’, hybrid, and money Bills)
• Stages in the passage of a Bill to an Act of Parliament
• Structure and authority of the UK Parliament
• Commencement, programme orders, consultation, amendments, and scrutiny processes
• Parliamentary sovereignty: basis, scope, and practical and legal limits
• Devolution, retained EU law, and the Human Rights Act 1998 in the constitutional framework
• Delegated legislation: types, importance, limits, and Henry VIII clauses
• Parliamentary controls over delegated legislation (negative, affirmative, and super-affirmative procedures)
• Judicial controls over delegated legislation (ultra vires, procedural impropriety, and unreasonableness)
• Statutory interpretation: rules and aids, purposive approach, and declarations of incompatibility
• Judicial precedent and the limits on courts’ power to strike down legislation
• Constitutional conventions and the status of constitutional statutes
• Practical competencies for solicitors: legal status of laws, anticipating change, and sources of obligations and public body powers

SQE1 Syllabus

For SQE1, you are required to understand the UK legislative process for enacting primary legislation and the constitutional controls governing legislation, with a focus on the following syllabus points:

• the stages involved in the enactment of primary legislation (including the differences between public, private, and hybrid Bills, and understanding money Bills and supply legislation)
• the principle of parliamentary sovereignty and its practical and legal limits (express, implied, and political)
• the status, effect, and authority of delegated (secondary) legislation, including the difference between primary and delegated legislation and the types and sources of delegated legislation
• parliamentary controls and processes for the scrutiny of delegated legislation (negative, affirmative, and super-affirmative resolution procedures)
• legal controls over delegated legislation, including judicial review and the doctrine of ultra vires, and recent examples
• the role of statutory interpretation in applying and understanding Acts of Parliament, including the primary rules (literal, golden, mischief, purposive) and the use of internal and extrinsic aids
• the function and limits of judicial precedent in applying and developing statutory law
• the UK Parliament's relationship with devolved administrations and the status of devolved legislation
• the standing and enforceability of international treaties and conventions in UK law (including EU law and retained EU law)
• the role of key constitutional statutes and conventions that affect the passage, authority, and interpretation of legislation

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the main stages a Bill must pass through to become an Act of Parliament?
2. What is meant by parliamentary sovereignty, and how can it be limited in practice?
3. How does delegated legislation differ from primary legislation, and what are the main controls on its use?
4. Can the courts strike down an Act of Parliament? What about delegated legislation?

Introduction

The creation of primary legislation in the UK is central to its constitutional arrangements and legal system. Parliament’s authority to make, amend, and repeal laws is a fundamental element of the legal order, and its procedures are grounded in centuries of constitutional practice and statecraft. This article dissects the procedures by which legislation is passed, clarifies the constitutional and practical controls that shape lawmaking, and situates these within a broader framework of parliamentary sovereignty, the interplay between Parliament and the judiciary, and the controls on delegated legislation—all within the context of the constitutional settlement of England and Wales.

Key Term: primary legislation
Primary legislation consists of Acts of Parliament (statutes), which are the highest form of law in the UK’s domestic legal order. Statutes take precedence over case law, common law, and delegated legislation.

Key Term: delegated legislation
Delegated (secondary or subordinate) legislation refers to law made by persons or bodies under powers conferred by an Act of Parliament. It includes statutory instruments, by-laws, and orders in council, and is valid only within the scope of the enabling Act.

The Legislative Process: How a Bill Becomes Law

Types of Legislation

Parliament enacts primary legislation as Acts of Parliament, providing the core statutory framework of the legal system. Delegated legislation, by contrast, is made by other bodies under the authority of primary legislation ("enabling Act" or "parent Act") and is subject to specific controls.

Primary legislation also encompasses Acts of devolved parliaments, such as the Scottish Parliament, but in England and Wales, the principal focus is on laws made by the UK Parliament in Westminster. It is important to understand that not all law in England and Wales is statute-based; the common law, case law, and international law also contribute to the overall legal context.

Types of Bills

Bills are formal legislative proposals presented to Parliament for debate and approval. They fall into several significant categories:

• Public Bills: Apply to the general population and usually reflect government policy priorities. Most government legislation takes this form. Public Bills are generally introduced by ministers, but a subset—known as Private Members' Bills—are proposed by individual MPs or Lords.
• Private Members' Bills: Introduced by MPs or Lords not acting as a government minister. They usually address non-government issues and have higher hurdles to clear, as they are allocated little parliamentary time and rarely become law without government support. Their function, however, is important for raising issues and shaping public debate.
• Private Bills: Concern individuals, corporations, or specific localities. Their passage requires detailed scrutiny of petitions for and against the legislation, with processes for objection.
• Hybrid Bills: Incorporate features of both public and private Bills. While affecting the general public, hybrids have a particularly significant impact on certain individuals or organisations, often involving compulsory acquisition of property or major infrastructure projects (e.g., High Speed Rail Acts).

Key Term: Bill
A draft proposal for a piece of legislation submitted to Parliament for consideration.

Money Bills make up another special category. These can only be introduced in the House of Commons, deal solely with national taxation or public expenditure, and are subject to a distinct fast-tracked procedure. The Speaker of the House of Commons certifies a Bill as a "money Bill."

Stages of Enactment

All primary legislation (apart from certain financial measures and specific exceptional cases) must complete several key stages in both the House of Commons and the House of Lords in identical, parallel forms. The typical legislative journey involves:

First Reading

The Bill is formally introduced. The short title is read, and the Bill is ordered to be printed. There is no debate or vote at this stage, which functions as formal notification and publication.

Second Reading

This is the main debate on the Bill’s general principles and policy objectives. MPs or Lords discuss the merits of the Bill, culminating in a vote which decides whether the Bill should proceed.

Committee Stage

Following a successful second reading, the Bill is examined in detail clause-by-clause. In the House of Commons, this is normally conducted by a Public Bill Committee, the Committee of the Whole House (for significant or constitutional Bills), or a special ad hoc committee. Amendments may be proposed, debated, and voted upon. In the House of Lords, the Committee stage often takes place on the Floor of the House.

Report Stage

The Bill returns to the full House to consider further amendments. This stage allows for new amendments and scrutiny of those made in committee. All members of the House can participate.

Third Reading

The House debates the final version of the Bill. In the Commons, debate is usually brief, with limited opportunity for further amendment (typically only corrections of manifest errors). The House then votes whether to approve the Bill.

Consideration by the Second House

If the Bill began in the Commons, it passes to the Lords for an identical process (and vice versa). If the second House disagrees with amendments, the Bill may “ping-pong” between both Houses until agreement is reached.

Royal Assent

Once both Houses agree on the text, the Bill is sent for royal assent. The monarch’s grant of assent is now a constitutional formality. The Bill then becomes an Act of Parliament.

Key Term: royal assent
Royal assent is the monarch’s formal approval required for a Bill to become law. In practice, royal assent has not been refused since 1707 and is granted as a matter of convention, emphasising the primacy of Parliament over the Crown.

Special Procedures and Exceptions

Some Bills follow additional or deviating procedures. For example, "fast-tracked" Bills—usually those considered urgent—may compress the above stages into a single day. Hybrid Bills and private Bills require additional forms of public consultation and petition processes.

Key Term: ping pong
"Ping pong" refers to the process where a Bill is sent back and forth between the two Houses until agreement is achieved over its content.

Commencement

An Act of Parliament takes effect only when it is "commenced"—that is, brought into legal force. Unless the Act specifies an alternative date or provides that commencement is by ministerial order, the default is that it comes into effect upon royal assent. Most Acts or specific sections of Acts come into force on dates appointed in them or by a subsequent statutory instrument (a form of delegated legislation), known as a commencement order.

Key Term: commencement
The commencement date is when an Act (or provision within it) becomes legally effective.

Acts may also contain a "sunset clause," meaning provisions expire or require review after a specified period.

Consultation, Amendments, and Scrutiny

Most government Bills arise after extensive policy development, consultation, public input, and drafting. During committee and report stages, select and public Bill committees may call witnesses, consider external evidence, and propose amendments based on stakeholder feedback. Constitutional Bills, or those with far-reaching implications, usually receive especially rigorous scrutiny and may go through committee of the whole House.

Programme orders enable the government to set the timetable for debate on each Bill, balancing thorough scrutiny against legislative efficiency.

Worked Example 1.1

A backbench MP introduces a Public Bill to impose minimum standards for rental housing, but it is not adopted by the government’s legislative programme and few MPs attend its allocated debate day. What is the likely outcome?

Answer:
The Bill is unlikely to become law. Private Members’ Bills have limited parliamentary time, and most fail without government support; however, the Bill may influence government policy in future reforms.

Parliamentary Sovereignty

Key Term: parliamentary sovereignty
Parliamentary sovereignty is the constitutional doctrine that Parliament can make or unmake any law it wishes and that no other body can override or set aside an Act of Parliament.

This principle, famously articulated by A.V. Dicey, means Parliament holds ultimate authority: no court, government, or outside body can legally restrict its legislative competence. In practice, this means:

• Parliament can legislate on any subject—there are no subject-matter limitations
• No Parliament can bind its successors—future Parliaments can change or repeal earlier laws, even constitutional statutes
• No person or body can override or question the validity of an Act of Parliament

However, practical and legal developments have placed limits, or at least "softened" the edges of, this doctrine:

• Some statutes are now recognised by courts as "constitutional statutes" (e.g., Magna Carta, Bill of Rights 1689, Human Rights Act 1998, Scotland Act 1998). According to Thoburn v Sunderland City Council [2002], such constitutional statutes can only be repealed expressly, not by implication, but Parliament remains free to expressly repeal any prior law.
• The enactment of EU law—though now mostly historic post-Brexit—subjected Parliament's authority to direct effect and the supremacy of EU law over domestic law (see Factortame). Today, retained EU law still has special status for older enactments, though Parliament may legislate to remove or amend it.
• The Human Rights Act 1998 requires courts to interpret legislation in a way compatible with rights contained in the ECHR "so far as it is possible to do so" (s.3), but, if not possible, primary legislation still prevails and courts may only make a declaration of incompatibility.
• Devolution statutes (e.g., Scotland Act 1998) devolve powers from Westminster but do not permanently surrender sovereignty. The Sewel Convention states Westminster will not "normally" legislate on devolved matters without the devolved body's consent, but this is a political, not legal, constraint. The UK Parliament can in law override devolved legislation or repeal devolution statutes.
• International treaties (other than some constitutional treaties and obligations) do not generally affect Parliament's ability to legislate contrary to their terms unless incorporated into UK law.

Key Term: constitutional statute
An Act of Parliament that is recognised by courts as fundamental to the UK constitutional order and not susceptible to repeal by implied repeal, but only by express words.

Worked Example 1.2A

A Bill to ban public smoking passes the Commons but is delayed repeatedly by the Lords. What recourse does the government have?

Answer:
Under the Parliament Acts 1911 and 1949, the House of Commons can bypass the Lords’ consent after specified delays. Once the conditions (two sessions and one year elapsed) are met, the Bill can be sent for royal assent without Lords’ approval.

Controls on Parliamentary Procedure and Validity

The courts will not investigate the internal procedures or validity of an Act of Parliament ("enrolled bill rule"), provided the proper constitutional forms (passage through both Houses, royal assent) are observed (Pickin v British Railways Board [1974]). The only exception is if a purported Act is not, in substance, an Act of Parliament under these constitutional requirements.

Worked Example 1.2B

A client argues his land was taken by an Act of Parliament passed without proper notification procedures as required by the House’s standing orders. Can the court set aside the Act?

Answer:
No. The courts are not permitted to inquire into the validity or procedure by which an Act was passed (see the enrolled bill rule and Pickin). Parliament decides its own processes.

Delegated Legislation

Many Acts of Parliament confer powers on ministers, government departments, agencies, or local authorities to create detailed statutory rules, regulations, orders, or byelaws: this is delegated or secondary legislation. Delegated powers allow Parliament to focus on key principles and policies, leaving technical and practical detail to be worked out within an appropriate framework.

Types of Delegated Legislation

• Statutory Instruments (SIs): The most common type. These include Regulations, Rules, and Orders made by ministers or government departments under statutory authority. They are published, numbered, and tracked on the public record.
• Orders in Council: Made by the Privy Council, usually involving government ministers and the monarch. These are used for constitutional, emergency, or transition measures (e.g., transferring functions under the Constitution).
• By-laws: Made by local authorities, public corporations, or certain private bodies under an express enabling Act; they operate locally and must be confirmed by the relevant government department.

Special or controversial forms such as "Henry VIII clauses" allow ministers to amend or repeal primary legislation by delegated legislation; these require special scrutiny (e.g., super-affirmative procedure).

Key Term: Henry VIII clause
A provision in an Act of Parliament enabling ministers to amend, repeal, or extend primary legislation by statutory instrument.

Controls on Delegated Legislation

Parliamentary Controls

• Negative Resolution Procedure: The default mechanism; a statutory instrument becomes law unless, within 40 days of being laid before Parliament, either House resolves to annul it.
• Affirmative Resolution Procedure: Used for more important or controversial regulations; the SI must be actively approved by both Houses before coming into force.
• Super-Affirmative Procedure: A more enhanced version, giving Parliament opportunity for additional scrutiny, comment, and amendment (used, for example, with remedial orders under the Human Rights Act 1998).
• Laying before Parliament: All SIs must be laid before either or both Houses.

In practice, relatively few SIs are annulled by Parliament, though scrutiny committees play an increasingly active role in identifying potential problems before instruments come into effect.

Judicial Controls

Delegated legislation, unlike primary legislation, is susceptible to challenge in the courts using judicial review, with the main grounds being:

• Illegality (Ultra Vires): The delegated legislation exceeds the powers conferred by the enabling Act ("parent Act") or is used for a purpose not authorised by the parent Act.
• Procedural Impropriety: Failure to observe any mandatory procedures or requirements stipulated in the enabling Act, such as consultation or laying before Parliament.
• Irrationality/Unreasonableness: The exercise of delegated powers is so unreasonable that no reasonable authority would have so acted (Wednesbury unreasonableness).

Delegated legislation may also be challenged for incompatibility with the Human Rights Act 1998 and the ECHR.

Key Term: ultra vires
Acting beyond legal powers conferred by law; delegated legislation that is ultra vires can be declared null and void by the courts.

Worked Example 1.2

A local council enacts byelaws restricting the use of public parks but fails to follow a statutory requirement for public consultation. A member of the public seeks a judicial review. What outcome?

Answer:
The court may declare the byelaw void for procedural ultra vires—the enabling Act's mandatory requirement for consultation was not followed.

Case Law and Key Examples

• Aylesbury Mushrooms [1972]: Delegated legislation was quashed for failure to properly consult with those affected, as required by the parent Act.
• Ahmed v HM Treasury [2010]: Orders in Council freezing assets were declared unlawful for failing to comply with fundamental rights and the proper use of enabling powers.

Parliamentary committees may also scrutinise delegated legislation for clarity, legality, and correct procedure, often relying on the reports of the Joint Committee on Statutory Instruments and, in the House of Lords, the Secondary Legislation Scrutiny Committee.

The Role of the Judiciary

The UK’s legal system is one of Parliamentary supremacy balanced by the rule of law and judicial independence. This is reflected in the way courts deal with legislation.

Statutory Interpretation

The principal role of the courts in relation to legislation is to interpret and apply statutes enacted by Parliament. Disputes as to meaning, ambiguity, or application of legislation are resolved through established rules and principles of statutory construction:

• Literal Rule: Courts apply the ordinary, plain meaning of the words of a statute. If the meaning is clear, courts must give effect to it, even where this leads to a harsh result.
• Golden Rule: Courts may depart from the literal rule to avoid an absurd or repugnant outcome, either in a narrow sense (to choose between conflicting possible meanings) or a wider sense (to prevent manifest injustice).
• Mischief Rule: Originating in Heydon’s Case (1584), this rule allows courts to interpret a statute in order to suppress the “mischief” (problem) at which it was aimed. Judges may look at the context and purpose behind the statutory provision.
• Purposive Approach: Now commonly used—especially in light of EU law and the Human Rights Act 1998—courts construe statutes to give effect to parliament’s purpose, even if that requires a strained meaning.

Key Term: statutory interpretation
The process by which the judiciary determines the meaning and application of statutory provisions.

The courts can make use of internal (internal) aids—such as the Act’s long title, preamble, headings, and schedules—and extrinsic (external) aids, such as Hansard (parliamentary debates, under the Pepper v Hart principle), dictionaries, legal textbooks, and international treaties.

In human rights cases, s.3 Human Rights Act 1998 compels a purposive, rights-compatible interpretation "so far as it is possible to do so"; if impossible, courts may make a declaration of incompatibility under s.4 HRA 1998, but the legislation remains in force.

Courts cannot strike down, refuse to apply or declare void an Act of Parliament unless it fails to fulfil the formal constitutional requirements (passage through both Houses and receipt of royal assent) or falls outside Parliament’s competence (which, as of 2025, has never occurred in practice).

Key Term: declaration of incompatibility
A statement by a superior court that a legislative provision is incompatible with the rights protected under the HRA 1998. It does not invalidate the legislation but signals to Parliament that reform is required.

Statutory interpretation is a key means by which judges “mediate” Parliament’s will with contemporary contexts, social change, and constitutional developments.

Worked Example 1.3

A client is prosecuted under an Act that creates a criminal offence but is ambiguous as to whether a particular act falls within its terms. The court applies the mischief rule and finds the client guilty. Why was the mischief rule used?

Answer:
The court identified that Parliament’s purpose was to prevent a specific harm, and applied the mischief rule to interpret the ambiguous word in the Act so as to give effect to that purpose. The court may also have considered the wording and context, and any relevant external aids.

Judicial Precedent and Limits on Court Power

The system of binding precedent ensures that statutory interpretation, once settled by higher courts (notably the Supreme Court or Court of Appeal), is applied consistently throughout the courts of England and Wales. However, no court—including the Supreme Court—may strike down or ignore an Act of Parliament on grounds of unconstitutionality (save for incompatibility with EU law, where retained EU law remains supreme over pre-Brexit statutes).

The sole exceptions are:

• Retained EU Law: For law made before the transition period ended, retained EU law can prevail over earlier inconsistent statutes, but Parliament remains able to legislate to the contrary prospectively.
• Declarations of incompatibility under the Human Rights Act 1998: These highlight inconsistency with Convention rights but do not affect the validity of the Act.

The courts can, however, strike down delegated legislation that is ultra vires or unlawful.

Key Term: precedent
Legal principle established in a previous case that must be followed by lower courts in future similar cases.

Key Point Checklist

This article has covered the following key knowledge points:

• UK Parliament enacts primary legislation via a structured, multi-stage process involving two Houses and the monarch’s formal assent
• Types of legislation include public, private, private members’ and hybrid Bills, each with their own roles and procedures
• The legislative process includes stages of introduction, debate, amendment, scrutiny, and agreement between the Houses, culminating in royal assent and commencement
• Parliament’s sovereignty means it is legally supreme, but in practice is subject to political, conventional, and constitutional constraints (e.g., devolution, HRA 1998, retained EU law)
• Delegated legislation is an essential tool for detail and modern lawmaking but is subject to parliamentary and legal (judicial) controls, especially the doctrine of ultra vires
• Statutory interpretation by the courts is governed by a suite of rules and aids, and judicial precedent ensures consistent legal application, but judicial review of primary legislation is extremely constrained
• Only delegated legislation may be quashed by the courts for unlawfulness; primary legislation may be declared incompatible with rights but remains in force until repealed or amended by Parliament

Key Terms and Concepts

• primary legislation
• delegated legislation
• Bill
• royal assent
• commencement
• parliamentary sovereignty
• constitutional statute
• ultra vires
• Henry VIII clause
• statutory interpretation
• declaration of incompatibility
• precedent
• ping pong