Parliament and how it creates new laws

Parliament is responsible for making many laws in the UK. It is worth remembering that Parliament is not just the House of Commons: it encompasses the House of Lords and the Crown as well. How it makes laws is a matter of some complexity, but Parliament has produced a useful guide to explain it detail (http://www.parliament.uk/about/how/laws/).

The basic method is that a bill is presented to the House of Commons; this is then debated several times, considered by a committee and by the House of Lords, before being given royal assent by the Queen. Other bodies in the UK have the right to pass legislation too; we’ll focus on Parliament in this blog for simplicity, but you may wish to read about how other bodies do it (e.g. the Scottish Parliament or the EU).

As with many aspects of the UK constitution, the functioning of Parliament is determined by tradition and convention. However, theory and practice can sometimes be quite distant from each other. In theory, the Queen could overrule a bill for which the Commons and Lords have voted by refusing to give assent to it. In practice, this has not happened for a long time. Convention dictates that Her Majesty is neutral in political matters and will not disagree with the wishes of the Lords and Commons. Rather, her engagement in politics is limited to three rights: “the right to be consulted, the right to encourage, the right to warn.”

Interestingly, though, this problem has occurred in Belgium (another country with a constitutional monarchy). Belgium’s parliament passed a bill liberalising the country’s abortion laws. The King could not agree to give the bill royal assent because of his Catholic faith. As such, a constitutional crisis loomed. The Belgian solution was to declare the king temporarily unable to reign. Under the Belgian constitution, the government as a whole takes over the role of head of state. The bill was signed into law and the king was restored.

Acts of Parliament confer legal powers on the government or rights on individuals within the country. The act (or statute) itself will normally specify when it comes into force: some come into force straight away; others in a few months or years; others, only when the government passes enabling legislation. Statutes are imperfect instruments and a key role of the courts is to interpret them. In interpreting acts, the courts are meant to realise Parliament’s intention. They do this by following a number of rules:

• The Literal Rule: the courts give a statute its plain meaning;
• The Golden Rule: the courts depart from the Literal Rule where following it would produce an absurd outcome;
• The Mischief Rule: the courts ask what “mischief” exists in the common law which was intended to be corrected by statute, then interprets the statute accordingly; and
• The Purposive Rule: the court considers the statute’s purpose and interprets it accordingly.

Traditionally, the courts begin with the literal rule and work down as necessary; however, the purposive approach has become more popular in recent years. Look at the case of R v G and another [2003] UKHL 50 (http://www.bailii.org/uk/cases/UKHL/2003/50.html). In that case, the court explores what the meaning of the word “reckless” is in the Criminal Damage Act 1971 and how word has been understood differently by the courts: how does the court resolve the issue?

Human rights, innit

As I have mentioned before, judges in England & Wales are understood not to make the law but to bring out its true meaning. Having read R v G, you may feel this is something of a legal fiction but a key principle of Parliamentary Sovereignty is that the UK courts can always be overruled by Parliament. If the courts interpret a statute in a way that Parliament does not like, Parliament can change the law to clarify it. Once example of this is the Housing Act 2004 which required landlords to protect their tenants’ deposits in special schemes; if a landlord did not do this, the court could fine the landlord three times the amount of the deposit and make him pay back the money to the tenant.

The idea behind this sanction was to force landlords to protect their tenants’ deposits. But when the first few tenants applied to court because their landlords had failed to do so, the courts found ways of letting landlords off the hook. There was a sense that the punishment was so harsh, judges were reluctant to punish landlords who accidently did not comply. Subsequently, Parliament passed the Localism Act 2011 which amended the sanction to make it clearer when it should be used but also to allow judges more discretion in applying it in the hope they would do so. The current debate about whether the Human Rights Act 1998 should be replaced or clarified is partly about the role of judges and the role of Parliament. Do the courts mitigate harsh laws in individual circumstances? Do unelected courts undermine the democratic will or Parliament?

Statutes often fall out of use because society changes. The Law Commission (http://lawcommission.justice.gov.uk/) exists to update review and reform laws. It has produced a fascinating document setting out odd laws still in existence – and fabled ones which are urban myths) http://lawcommission.justice.gov.uk/docs/Legal_Oddities.pdf). At the most extreme, Parliament can (and does) act very quickly to respond to specific events. The 1998 Omagh bomb prompted Parliament to be recalled and to pass the Criminal Justice (Terrorism and Security) Act 1998 in two days. Whether acts passed so quickly make good laws is debatable. The Dangerous Dogs Act 1991 was passed quickly, but has been widely criticised as ill-considered.

However, sometimes Parliament is content to let the courts modify legislation for it. In the contract law case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6 (http://www.bailii.org/ew/cases/EWCA/Civ/1953/6.html), the court came up with some ingenious contractual analysis so that Boots did not breach the Pharmacy and Poisons Act 1933 by allowing chemists’ shops to be self-service rather than counter-service. Romer, LJ, recognised that if they had found the case the other way,”I should imagine the popularity of those shops would wane a good deal”. Rather than simply being a matter of correct legal analysis, judges are often motivated by policy considerations. More generally, sometimes the police and prosecuting authorities simply do not apply laws, rendering them ineffective.