7.1.2 Legislative Functions Lecture

I. Primary Legislation

Primary legislation constitutes UK Acts of Parliament, some of which include important constitutional rules in the absence of a codified constitution in the UK. The process of drafting primary legislation and the institutions involved in the process illustrate three key constitutional principles in context: parliamentary supremacy, the rule of law and the separation of powers.

The government has a dominant role in the creation of legislation, they initiate draft Bills. It is not strictly true that Parliament legislates, since the government determines the timing and content of legislation. The 'first past the post' electoral system does not allow for a proportionate number of seats being allocated according to the votes cast for each of the political parties. The House of Lords is not elected at all. This means of creating legislation gives little place for ensuring that it represents public opinion.

Who is the Legislature?

The elected government takes a lead in the legislative process.  Ministers and civil servants develop the policy behind the legislation, government lawyers draft Bills, ministers introduce Bills into Parliament and push them through the House of Commons and House of Lords. The Secretary of State often decides when a statute should come into force. Where the Crown Prerogative is involved, the Queen is required to give consent for the Bill to progress through Parliament. Bills require the royal assent to become law, in present times this is merely a formality.

Pre-legislative Scrutiny of Draft Bills

Most Bills are introduced directly into Parliament, but some are first subjected to pre-legislative scrutiny. It is possible for Parliament or government to subject legislation to post-legislative scrutiny, however, the process has been used rarely and in an unsystematic manner.

Types of Delegated Legislation

Frequently delegated legislation is criticised for providing powers to government ministers in excess of that which is necessary.  Frequently powers are conferred broadly on government department to cover many eventualities. Certain Bills are proposed that are little more that skeleton Acts and many provisions are created through regulations which provide the executive with extensive powers and little parliamentary scrutiny is required of any of the powers conferred within the primary and secondary legislation.

In general, delegated legislation can be challenged under Judicial Review. Unlike Parliament, Ministers' powers are limited; an individual may question the validity of an instrument that it imposed against them.


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