(b) Legislation
Legislation refers to law that has been created by the legislative body within a constitution. In the United Kingdom that body is Parliament, constituted by both the House of Commons and the House of Lords and Bills have to be considered in, and approved by, both houses before they become law subsequent to the formality of their receiving royal approval. Since the Parliament Acts of 1911 and 1949, the blocking power of the House of Lords has been restricted as follows:
– a ‘Money Bill’, that is, one containing only financial provisions, can be enacted without the approval of the House of Lords after a delay of one month;
– any other Bill can be delayed by one year by the House of Lords. Statutes take the form of Acts of Parliament or delegated legislation. Delegated legislation is of particular importance. Generally speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law-making power. Delegated legislation may come in the form of:
– Orders in Council permit the Government, through the Privy Council, to make law.
– Statutory Instruments are the means through which government ministers introduce particular regulations under powers delegated to them by Parliament in enabling legislation.
– Bye-laws are the means through which local authorities and other public bodies can make legally binding rules.
– Court rule committees are empowered to make the rules which govern procedure in the particular courts over which they have delegated authority.
– Professional regulations governing particular occupations may be given the force of law under provisions delegating legislative authority to certain professional bodies which are empowered to regulate the conduct of their members.
A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted but, equally, it only has effect to the extent that its enabling Act authorises it and anything done in excess of, or contrary to, that authority may be challenged in the courts as ultra vires through an action for judicial review.
Within countries with written constitutions there is usually a limitation placed on the power of the legislature to make law, in that it cannot make laws which are contrary to, or in conflict with, the fundamental provisions of the constitution. In the United Kingdom, due to the doctrine of Parliamentary Sovereignty, legislation is superior to the common law, and the courts cannot strike down primary legislation, although, under the Human Rights Act 1998, they can declare that such law is incompatible with the rights contained in the European Convention on Human Rights. Legislation is published in the form of individual Acts and collectively in annual volumes.
The courts exercise the essential task of interpreting statutes in such a way as to give them effect. In so doing the courts make use of the three main rules of interpretation:
– the literal rule (see R v Maginnis (1987) and AG’s Reference (No 1 of 1988) (1989))
– the golden rule (see Re Sigsworth (1935) and Alder v George (1964))
– the mischief rule (see Heydon’s case (1584) and Corkery v Carpenter (1950)). |
