Legislation and legislative procedures - Implementation and ...

Learning Outcomes

This article outlines UK legislative procedures and institutional frameworks governing the implementation, commencement, amendment, and repeal of legislation relevant to SQE1, including:

• Mechanisms and procedures for implementing, updating, and repealing legislation in England and Wales, with particular focus on commencement provisions and commencement orders
• The full legislative process from policy formulation and Bill drafting through parliamentary stages, Royal Assent, and bringing an Act or specific sections into force
• The structure, hierarchy, and interaction of primary and secondary legislation, and how enabling Acts confer and limit delegated powers
• Types of Bills—public, private, and hybrid—and their procedural routes and strategic importance in problem-based questions
• Delegated legislation: principal forms (statutory instruments, by-laws, Orders in Council), common policy uses, and legal controls via judicial review
• Parliamentary scrutiny of delegated legislation, including affirmative, negative, and super-affirmative procedures and the roles of key select committees
• Parliamentary sovereignty and the doctrines of express and implied repeal, including the emerging treatment of constitutional statutes
• The rationale and operation of sunset clauses, statutory review duties, and time-limited emergency powers
• The impact of devolution on legislative competence, the distribution of law-making powers, and the constitutional status of the Sewel Convention
• Application of these topics to statutory interpretation, exam-style multiple-choice questions, and realistic SQE1 problem scenarios

SQE1 Syllabus

For SQE1, you are required to understand UK legislative procedures and institutions governing the implementation, commencement, amendment, and repeal of legislation, with a focus on the following syllabus points:

• the stages a Bill passes through to become an Act of Parliament, distinguishing public, private, and hybrid Bills
• the structure and features of an Act of Parliament
• the function, creation, and oversight of delegated legislation (including statutory instruments, by-laws, and Orders in Council)
• mechanisms for repealing or amending legislation, including express and implied repeal, and special considerations for constitutional statutes
• the significance of sunset clauses and their policy implications
• the impact of devolution—especially distinctions in the legislative competence of devolved institutions and the operation of the Sewel Convention
• procedures for commencing legislation, including variable commencement dates and the use of commencement orders
• operation of select committees in legislative and delegated legislation scrutiny
• application of these principles to problem-based SQE1 questions and pitfalls in problem scenarios

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.

• What are the main stages a Bill must pass through in Parliament before becoming law?
• What is the difference between express repeal and implied repeal of legislation?
• How does delegated legislation differ from primary legislation, and what are the main forms it takes?
• What is a sunset clause, and why might it be included in an Act of Parliament?

Introduction

The implementation and repeal of legislation are foundational elements within the legal system of England and Wales. To understand how the law functions in practice, it is essential to know how statutes are made, brought into force, modified, interpreted, and potentially rendered obsolete or repealed. The dynamic operation of the law reflects both practical needs (such as flexibility for detailed secondary rules) and deep constitutional principles (like the sovereignty of Parliament and the rule of law). This article provides comprehensive coverage of legislative procedures, including institutional roles, enactment, amendment and repeal, and the increasing complexity of the UK’s legislative framework as impacted by delegated law-making and devolution.

The Legislative Process: From Bill to Act

Legislation in England and Wales commences as a Bill—a formal proposal for a new law or a change to existing law. Bills may originate from the Government, from individual Members of Parliament or Lords (as private members’ Bills), or from private or local interests. The legislative process seeks to provide robust scrutiny, enable amendment, and secure democratic legitimacy.

Key Term: Bill
A Bill is a draft proposal for a new law or an amendment to existing law, presented for debate and approval by Parliament.

Types of Bills include:

• Public Bills: Affect the public at large and are usually part of Government’s legislative agenda.
• Private Bills: Affect only specific individuals, organisations, or localities.
• Hybrid Bills: Contain elements of both, affecting the public at large but with particular impact on certain individuals or bodies (e.g. infrastructure projects like high-speed rail).

Stages of a Bill

A Bill (aside from money Bills or in exceptional circumstances when Parliament Acts are invoked) must pass through the same set of stages in both the House of Commons and the House of Lords:

• First Reading: Purely formal introduction and publication of the Bill; no debate or vote at this stage.
• Second Reading: Main debate takes place on the Bill’s general principles and policies, ending with a vote to continue. Important for highlighting overall policy direction.
• Committee Stage: Detailed examination clause by clause. In the Commons, often by a Public Bill Committee or, for major constitutional or financial Bills, by a Committee of the Whole House. Amendments can be proposed and voted upon here.
• Report Stage: The Bill, as amended in committee, is considered in full. Further amendments may be made, and members not involved in the committee stage may participate.
• Third Reading: Final version of the Bill is debated, with amendments possible in the Lords but only minor corrections permitted in the Commons; concludes with a vote.
• Other House: The Bill repeats these stages in the second chamber.
• Consideration of Amendments: Any changes by the second chamber are considered by the first. This may result in “ping-pong”, where the Bill passes back and forth between Houses until final agreement.
• Royal Assent: The monarch’s formal approval. Although a legal requirement, this is always given as a matter of convention.

Key Term: Act of Parliament
An Act of Parliament is a piece of primary legislation that has passed all necessary parliamentary stages and received the Royal Assent, thus becoming law.

Money Bills and the Parliament Acts

Certain Bills relating only to national taxation or expenditure (money Bills) must originate in the Commons. The Parliament Acts 1911 and 1949 restrict the Lord’s powers to delay or amend these, ensuring the ultimate supremacy of the elected chamber. Public Bills opposed by the Lords can nonetheless receive Royal Assent if the Acts’ procedural requirements are met, usually after a maximum delay of one year.

Worked Example 1.1

A Bill to reform sentencing is introduced in the House of Commons and successfully passes all Commons stages. The Lords oppose key provisions, proposing several amendments. After prolonged disagreement, the Commons invokes the Parliament Acts 1911 and 1949. Can this Bill become law without the Lords’ consent?

Answer:
Provided the requirements of the Parliament Acts are met (including the lapsing of the required time and passage in two sessions), the Bill can receive Royal Assent and become law without the consent of the House of Lords.

Bringing Legislation into Force

Legal effect does not always coincide with Royal Assent. Some Acts or provisions commence immediately; others specify a date or require a commencement order.

Key Term: Commencement
Commencement is the point or means by which an Act (or part of it) becomes legally operative. This can be on Royal Assent, a specified date, or via secondary legislation known as a commencement order.

If an Act or section states it comes into force “on such day as the Secretary of State may by order appoint”, commencement will occur only once a minister issues a statutory instrument known as a commencement order, enabling flexibility in implementation by area or subject.

Worked Example 1.2

An Act states it shall come into force “on such day as the Secretary of State may by order appoint”, but no commencement order is made for over a year. What is the status?

Answer:
Until the Secretary of State issues a commencement order (statutory instrument), the Act or the respective provision does not come into force and has no legal effect.

Structure of an Act of Parliament

Every Act of Parliament follows a generally consistent structural format:

• Short Title
• Year and Chapter Number
• Long Title (describing the Act’s general purposes)
• Date of Royal Assent
• Enacting Formula (standard constitutional wording)
• Main Body (divided into sections, subsections, and, for clarity, sometimes parts or chapters)
• Commencement Provisions (detailing how and when the Act or its sections are to be brought into force)
• Schedules (for detailed ancillary or technical provisions)
• Explanatory Notes (not part of the Act but aid in understanding)

Schedules typically provide additional details that would clutter the main text, such as definitions, transitional arrangements, or technical rules.

Delegated Legislation

The volume and complexity of modern legislation means Parliament cannot scrutinise all detail itself. Instead, Acts of Parliament routinely delegate powers to ministers, government departments, local authorities, and certain other bodies to produce more detailed, technical, or responsive rules.

Key Term: Delegated Legislation
Delegated legislation refers to law made by persons or bodies other than Parliament, exercising authority granted to them via an Act of Parliament (the ‘parent’ or ‘enabling’ Act).

The principal forms are:

• Statutory Instruments (SIs): The most common form, made by ministers or departments, covering regulations, orders, and rules.
• By-laws: Rules made by local authorities or certain public bodies, such as Transport for London or the Environment Agency, affecting particular geographical or functional areas.
• Orders in Council: Made by the Privy Council (a body of senior government ministers), mostly used for constitutional or emergency matters, or when primary legislation explicitly assigns this power.

Delegated legislation enables timely responses to technical or unforeseen issues and is necessary in areas requiring frequent updating, but it is subject to numerous controls.

Key Term: Statutory Instrument
A Statutory Instrument is a form of delegated legislation commonly used by UK government ministers to create detailed rules and regulations under powers granted by an Act of Parliament.

Parliamentary Controls and Scrutiny

Parliament controls delegated legislation using either the negative resolution or affirmative resolution procedure:

Key Term: Negative Resolution Procedure
Under the negative resolution procedure, a statutory instrument becomes law without debate unless either House objects within a specified period (usually 40 days).

Key Term: Affirmative Resolution Procedure
Under the affirmative resolution procedure, a statutory instrument must be expressly approved by one or both Houses before it comes into law.

Certain types of delegated legislation are scrutinised by the relevant select committee, such as the Joint Committee on Statutory Instruments, which reviews SIs for technical correctness, compliance with the parent Act, and respect for constitutional principles.

Key Term: select committee
A select committee is a parliamentary or legislative committee established (often on a permanent basis) to scrutinise, investigate, and report on specific policy areas, government actions, or types of legislation. In the legislative context, select committees play an important role in examining Bills and delegated legislation for their effectiveness, technical accuracy, and policy implications, thereby providing a further layer of accountability and oversight.

Key Term: Henry VIII Clause
A “Henry VIII clause” is a provision within an Act allowing ministers to amend or repeal primary legislation via delegated legislation. Such clauses grant significant powers to the executive and are viewed as constitutionally sensitive, subject to increased scrutiny.

Legal Controls

Delegated legislation must always remain within the powers granted by the enabling Act (intra vires); actions beyond this remit (ultra vires) can be challenged and struck down by the courts, usually through judicial review. The courts will review the content of the instrument, its procedural validity, and compliance with constitutional rights or the Human Rights Act 1998. Challenges often arise if legal requirements (like mandatory consultation or publication) are not complied with, or if the measure breaches rights protected under the ECHR.

In addition, Acts may require that certain forms of delegated legislation only come into effect if Parliament passes a resolution (the super-affirmative procedure) or may require longer periods of scrutiny, particularly where the delegated powers are wide-ranging (for example, Henry VIII powers).

Worked Example 1.3

A timetable for the implementation of a new licensing system is legislated to “come into force by such Order as the Secretary of State may direct,” but a legal challenge arises after the Secretary fails to consult a required advisory panel. Is the resulting delegated legislation lawful?

Answer:
If the parent Act mandates consultation as a condition for valid delegated legislation and the consultation did not occur, the delegated legislation is subject to a finding of procedural impropriety and can be declared ultra vires (unlawful) by the courts.

Repeal of Legislation

Throughout its life, legislation may become obsolete, be overtaken by new developments, or be found inconsistent with other laws or constitutional values. Amendments and repeal ensure that the statutory framework remains coherent and effective.

Express Repeal

Key Term: Express Repeal
Express repeal occurs when a new Act of Parliament specifically states that an earlier Act, or particular provisions of it, are no longer in force. Such provisions are often detailed in a schedule to the new Act.

Express repeal provides legal certainty, making it clear to courts, practitioners, and the public precisely which provisions remain operative.

Implied Repeal

Key Term: Implied Repeal
Implied repeal refers to a situation where a later Act contains provisions that are inconsistent with an earlier Act, but does not explicitly repeal the earlier Act. The inconsistency is resolved by treating the earlier Act as repealed to the extent of the conflict.

The doctrine of implied repeal upholds the principle that no Parliament can bind its successors, allowing each Parliament absolute sovereignty to make, amend, or unmake any law.

Exceptions are emerging in relation to “constitutional statutes”—such as the Human Rights Act 1998, the Scotland Act 1998, and the European Communities Act 1972 (now repealed)—for which courts have sometimes required express words for any repeal or amendment, to safeguard fundamental constitutional arrangements (as highlighted in Thoburn v Sunderland City Council [2002]).

Sunset Clauses

Key Term: Sunset Clause
A sunset clause is a provision within legislation providing that the entire Act (or specified sections) will automatically expire after a set period unless Parliament chooses to renew or extend its effect.

Sunset clauses are particularly common in emergency or experimental legislation, ensuring that extraordinary powers or controversial measures are reviewed by Parliament and prevented from lingering without active political consent.

Worked Example 1.4

Parliament passes Act X in 2015 and Act Y in 2022. Act Y introduces new anti-corruption measures that mirror, but update, the provisions in Act X. Act Y does not mention Act X. What is the effect on inconsistent provisions in Act X?

Answer:
The inconsistent sections of Act X are repealed by implication (implied repeal) to the extent that they conflict with Act Y. Where both Acts can operate side by side, both remain in force.

Mechanisms for Scrutiny and Amendment

The quality and democratic legitimacy of the legislative process depend essentially upon mechanisms for scrutiny, challenge, and ongoing review. In addition to the debate and committee stages already discussed, Parliament and responsible authorities rely on a range of procedures to monitor both primary and delegated legislation.

• Parliamentary Questions: MPs and Peers may question ministers about existing law, proposed amendments, and the use of delegated powers. This holds the government accountable and clarifies controversial measures.
• Debates and Committees: Committees and the full House debate Bills and delegated legislation, considering amendments and the practical impact of proposals.
• Select Committees: Select committees are specialist parliamentary committees tasked with oversight of particular policy areas, departmental performance, or the use of delegated powers. For example, the Joint Committee on Statutory Instruments, the Public Administration and Constitutional Affairs Committee, or, in the Lords, the Delegated Powers and Regulatory Reform Committee.
• Post-Legislative Scrutiny: Increasing emphasis is being placed on reviewing the effectiveness of Acts after implementation (for example, scheduled committee review, sunset clause triggers, or statutory reporting requirements), ensuring that legislation achieves its policy objectives and undergoes timely amendment or potential repeal if circumstances change.

Devolution and Legislative Procedures

With devolution, legislative powers have been conferred upon institutions such as the Scottish Parliament, Senedd Cymru (Welsh Parliament), and the Northern Ireland Assembly. Each devolved body has substantive legislative competence in specified fields, with UK Acts continuing to apply in reserved areas. All devolved parliaments have primary and secondary law-making powers as conferred by Westminster statutes.

The Sewel Convention embodies the principle that Westminster “will not normally legislate with respect to devolved matters without the consent of the devolved legislature,” but, as affirmed in R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, this remains a political, not a legally binding, constraint.

Commencement Provisions in Devolved Legislation

Devolved legislation frequently mirrors the commencement practices of Westminster, allowing for staged bringing into force, and often using delegated powers for commencement orders administered by the relevant minister or Welsh/Scottish/Northern Irish Government official.

Worked Example 1.5

A UK-wide Act contains a section stating it applies to England and Wales, Scotland, and Northern Ireland, but also stipulates that in devolved areas, it will only operate following passage of a legislative consent motion. Is the Act still valid if the Scottish Parliament refuses consent?

Answer:
Legally, the UK Parliament retains the supremacy to enact and extend legislation UK-wide. Refusal of a legislative consent motion does not invalidate the Act but carries significant political, rather than legal, consequences.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The legislative process requires that a Bill, whether public, private, or hybrid, pass through formal stages in both Houses of Parliament (with special procedures for money Bills and in rare cases under the Parliament Acts 1911 and 1949).
• Not every Act comes into effect immediately; commencement can be immediate, delayed, or controlled by ministerial order or statutory instrument.
• Delegated legislation is necessary for detailed rule-making and responsiveness, but is subject to defined parliamentary controls—affirmative and negative procedures—and judicial review for legality.
• Select committees provide important scrutiny at various points in the legislative and delegated law-making processes, monitoring government policy, administration, and the exercise of delegated powers.
• The mechanisms of repeal consist of express repeal (explicitly stated in the new Act) and implied repeal (by contradiction or inconsistency in later primary legislation), but with possible exceptions for certain “constitutional statutes”.
• Sunset clauses demand active parliamentary engagement to maintain certain legislative provisions, ensuring temporal limitation and review.
• The devolution settlement has developed a complex legislative map, with the UK Parliament retaining supremacy, but with devolved parliaments enjoying significant powers within their own fields.
• The Sewel Convention and legislative consent motions, while politically significant, do not limit Parliament’s legal competence.
• Mechanisms for legal and parliamentary review, including courts and committees, ensure the constitutionality and legality of all forms of legislation.

Key Terms and Concepts

• Bill
• Act of Parliament
• Commencement
• Delegated Legislation
• Statutory Instrument
• Negative Resolution Procedure
• Affirmative Resolution Procedure
• Express Repeal
• Implied Repeal
• Sunset Clause
• Henry VIII Clause
• select committee