Prior to the start of the twenty-first century, laws were made for Wales by the Parliament at Westminster. Devolution, and the creation of the National Assembly, has given Wales another legislature that does not replace the UK Parliament but shares in its law-making activity regarding certain subjects. This book considers how legislation is made for Wales; its primary focus is law-making by the National Assembly and the Welsh Government, but the role of Westminster and Whitehall is also observed. The purpose of this volume is to raise a critical awareness of what is involved in sound law-making – it is intended not only for those who prepare and make legislation within the institutions of government, but equally also for the citizens whose lives are affected by that legislation, and who have an interest in the quality of the laws that govern them and the society in which they live. This is the first such work to consider these issues from a Welsh perspective.
About the Author
Daniel Greenberg is Counsel for Domestic Legislation, House of Commons; he has worked extensively with the National Assembly for Wales on legislative scrutiny.
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Legislation and Legislatures
LEGISLATION: THE WORD AND ITS MEANING
The English word legislation is derived from two Latin words: legis from lex meaning 'an enacted law', and latio meaning 'a bringing forward' or 'a proposing'. The phrase legis latio was the technical expression used in ancient Rome to describe the proposing of a law or the bringing forward of a legislative proposal.
The meaning, or rather meanings, of the word legislation in modern English are not far removed from the word's etymological roots in Latin. Modern English dictionaries ascribe two meanings to the word. Collins English Dictionary gives these as:
the act or process of making laws; enactment; and,
the laws so made;
while the Oxford English Dictionary's entry is similar:
the action of making or giving laws; the enactment of laws; law giving;
the enactment of a legislator or legislature; the whole body of enacted laws.
In both cases, the first of the meanings describes a process – the process of making laws, while the second meaning describes the end-product of that process – the law or laws so made.
IMPLICATIONS OF THESE MEANINGS
The meanings of the word legislation therefore imply certain things about legislation as a concept. It is implied that legislation in the sense of an enacted law is the end-product of legislation in the sense of a process of enacting, and – from the etymology of the word – that the process of enacting is the result of some person or some body having brought forward or proposed that an enacted law be made by that process. The word may be said to carry those implications. The implications are, as it were, the 'baggage' which the word carries.
These implications give rise to questions. If legislation in the sense of enacted law is the result of a process of enactment, who may enact such laws, and what is the process by which such enactment is achieved? If the process results from someone or somebody bringing forward or proposing that a law be made by the process, who may bring forward such a proposal? How is such a proposal to be brought forward?
How is it to be decided whether to enact the proposal in the form in which or with the content with which it is brought forward? Where and when can such proposals be brought forward, and where and when can they be enacted? Can any proposal be brought forward and enacted or are there topics which are not susceptible to such initiatives; in other words, what can be proposed and enacted? From where does the authority to bring forward such proposals come? From where does the authority to enact such proposals derive? Why are such proposals brought forward and why are they enacted? These are all questions which arise from a consideration of the meaning and root of the word, but they lead to an analysis of the concept of legislation itself.
Who can enact legislation?
A person who has the authority to make law is described as a legislator, while a body which has the authority to enact is termed a legislature. Such legislatures include Parliament and the National Assembly for Wales, while when individuals, such as government ministers in Whitehall or Cardiff, exercise powers to make regulations in the form of what is called subordinate legislation, they act as legislators.
Where and when can legislation be enacted?
In the case of legislatures, such as Parliament or the National Assembly, they will conduct the activity of legislating in a place to which their members will have been summoned in order to perform that function. Likewise, there will be a time or times fixed for their meetings. In the case of legislators, on the other hand, their law-making may not be restricted to time and place in the same manner, although there will probably be other requirements regulating the manner in which they perform the task.
How is legislation enacted?
The manner in which a legislator or legislature performs the task of legislating raises the question of whether there is a process to be followed. In the case of a legislature there are likely to be procedures which allow for the proposals which are brought forward to be deliberated upon and scrutinized, with opportunity for the proposal to be altered or refined by being amended as part of that process. Even when a single legislator is making a law, he or she may be required or expected to follow a set procedure, for instance to ensure that he or she has consulted with those likely to be affected by the proposal and has considered the responses to such consultation.
When the appropriate procedures have been followed and completed, there will be a formal mechanism for deciding that the proposal becomes law. In the case of legislatures, this may involve a vote of the members followed by a formal promulgation. In the case of a single legislator, it may involve the signing of a written document setting out the new law, followed by some form of publication.
What may be enacted?
The question of what a legislature may or may not enact or what a legislator may or may not use legislative power to do concerns the legislative competence of that body or person. Some legislatures operate within limits which are themselves set by a higher law, often the written constitution of the country in question, while others may not be subject to such limitations. A single legislator who is untrammelled by any such limitations would be an absolute ruler or dictator. Where legislative power is entrusted to a single person it is therefore almost invariably itself subject to strict limitations with regard to the manner of its exercise.
Who may bring forward a proposal that a law be made?
If there is only one person who may bring forward such a proposal and that person is the same person who can decide whether it should be made together with its final form and content, then one is indeed dealing with the dictatorship of an absolute ruler. If, on the other hand, any citizen is free to bring forward a legislative proposal and the entire citizen body is entitled to decide whether or not to enact the proposal following their consideration of it, then one is dealing with a very pure form of democracy. Most modern states opt for a position between these two extremes and allow representatives of the people to perform these tasks on behalf of the citizens as a whole, acting as the representatives of the citizens who will have chosen their representatives in regularly held elections.
Where does the authority to bring forward proposals or enact laws come from?
Where legislative proposals are brought forward, considered and decided upon by representatives of the people, one can trace the authority to perform those tasks to the authority given by the people to their representatives in the process of election. That process, and the limits, if any, upon the powers of the representatives once elected, may be set out in the written constitution of the state. Where there is no written constitution and no limits to the law-making powers of the representatives once elected, the question of whence the authority to legislate derives becomes more difficult. Almost always, there is an element of 'which came first, the chicken or the egg?' to such inquiries – but that does not mean that the question is in any way trivial, nor that attempts to answer it lack usefulness.
Why is a proposal being brought forward and why should it be enacted?
If the person or persons bringing forward a proposal for scrutiny by others has to persuade them as part of the process of consideration and scrutiny of the merits of the proposal, then those bringing forward the proposal need to be able to produce convincing, cogent reasons for asking that their proposal be enacted. There needs therefore to be – usually for practical reasons rather than strict legal necessity – a clear, well-thought-out policy behind the proposal. Although only the legislature may have the power to decide upon the proposal, in a free society the policy behind it may well be debated more widely by the people, and organs such as the press and the media.
THE PHASES OF LEGISLATION AS AN ACTIVITY
There are therefore certain features that will be common to the making of an enacted law in any circumstances. These common factors are sometimes described by legal theorists as the phases of the legislative process. They are three in number.
First, there is the introductory phase. This is the phase in which the proposal is brought forward. Those who are able to bring forward such proposals are said to have the legislative initiative.
Secondly, when a proposal has been brought forward by those with the legislative initiative, the proposal will be subjected to consideration and scrutiny, during the course of which it may undergo changes in the form of amendment. This is termed the deliberative phase.
Finally, when the process of deliberation has ended, the question remains of whether the proposal as it has emerged from the deliberative phase should become a law, that is whether it should be enacted. This is the decision-making phase, the third and final phase of the legislative process as a whole.
These three phases can be identified whenever and wherever laws are made, regardless of whether one is dealing with an ancient or a modern society, regardless of whether one is contemplating a dictatorship or a democracy. In a dictatorship, it is likely that only one person may bring forward legislative proposals and that same person will consider their content and decide as to whether they will become law, while in a democracy the tasks are likely to be shared by the people or their representatives. Sometimes the legislative initiative will be confined to those who are members of the legislature, as is the case with the United Kingdom Parliament. Sometimes persons who are not members of the legislature but are members of the government will be allowed to bring forward proposals. In that event, they may be allowed to speak to those proposals in the legislature but probably not be allowed to participate in the decision-making phase. The legislative initiative may also be enjoyed by certain public bodies, for instance regional assemblies or parliaments can bring forward proposals in the national parliament in some countries where some but not all legislative power has been devolved. Indeed, in some countries the people themselves may be permitted to bring forward proposals which their representatives must then deliberate upon. In Italy, for example, the legislative initiative can be exercised by any 50,000 electors. They can submit a proposal in the form of a Bill to the Italian Parliament, which must then consider it, although, of course, there is no guarantee that it will be passed and become law. Such a broad approach to the exercise of the legislative initiative is a form of direct democracy.
The deliberative phase will almost certainly involve the legislature as a whole or committees from within it considering the merits of the legislative proposal viewed as a whole and scrutinizing the content of the proposal in detail to consider how it is intended that the proposal should be carried into effect. In carrying out these tasks, persons and bodies from outside the legislature may be given the opportunity to comment on the proposal and submit evidence regarding it in writing or by giving oral testimony. During this phase, there will generally be opportunity for changes to be made to the proposal as a consequence of the deliberations. The questions therefore again arise as to who may propose such changes, by whom and how will the merits of the proposed changes be considered, and who can decide whether or not they should be made. The process of amending legislative proposals during deliberation therefore exhibits once more the three phases identified earlier with regard to the legislative process as a whole: who may propose; who may deliberate; who may decide. The process of dealing with an amendment is a microcosm of the process of dealing with a proposal as a whole; it is the legislative process in miniature.
Finally comes the decision-making phase. This will almost certainly involve the members of the legislature as this ultimately is the key function they are elected to perform, but it may also involve others. Within the legislature, there may be more than one chamber that has to consider and decide upon the proposal. Where there is only one chamber, the legislature is said to be unicameral. The National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly, together with the German Bundestag are examples of unicameral legislatures. The United Kingdom Parliament and the United States Congress, on the other hand, have two chambers, an arrangement described as bicameral, the two chambers being the House of Commons and the House of Lords in the UK Parliament and the Senate and the House of Representatives in the case of the US Congress. Participation in the decision-making phase may not, however, be restricted to the members of the legislature. On some issues, the people may be included in the process by means of a referendum on the proposed or enacted law. Thus, in Italy once more, direct democracy can be discerned in the right of any 500,000 electors to call for a referendum on a law which has been passed by the two chambers of the Italian Parliament, in which case, if a majority of those who vote in the referendum are opposed to the law, it is as a consequence abrogated. Some laws are not susceptible to such an abrogative referendum, for instance laws concerning the state's treaty obligations and taxation. However, popular referenda have been held on laws concerning such issues as divorce, abortion, hunting with guns, environmental issues and nuclear power.
The completion of the decision-making phase may involve the formal promulgation of the enacted law by the head of state. This may or may not be part of the decision-making process. There may, however, be an opportunity prior to such promulgation for the proposal as passed to be challenged before the courts on the grounds that the legislature has exceeded its powers in agreeing to the proposal. Such a possibility is common in countries which have a written constitution and in which the legislature has to exercise its powers within the limits of that fundamental law. Such an opportunity also exists where the legislative powers of a devolved legislature are subject to legal limits. This is the case with the National Assembly for Wales. The opportunity to challenge proposals which have been agreed prior to final promulgation should not be confused with the continuing right of citizens to challenge enacted laws on the grounds that a legislature has exceeded its powers. The former is part of the law-making process; the latter is not.
It is not only devolved legislatures and the legislatures of countries with written constitutions that have limited legislative powers. The same is true of legislators to whom legislative power is delegated by national or regional legislatures. It is not uncommon for government ministers or other public bodies to be given such delegated powers to make laws, which laws are then described as delegated or subordinate or secondary legislation, terms which are more or less synonymous. Even where it is one person, such as a government minister, who has the power to make such laws, the three phases of law-making can still be identified. A proposal to make subordinate legislation will come from the minister or be presented to him to adopt by his officials. He will deliberate by taking advice from his officials and possibly by engaging the public through going out to consultation. On the basis of such deliberation, he will decide to make the law, usually by signing a document, called a statutory instrument, containing the subordinate legislation he is making. His signature may in itself be sufficient to make the law, but he may be required to submit it to the legislature and give them opportunity to annul it, or he may even be required to submit the document to the legislature for approval. There are various ways in which the decision-making phase may be organized but, whichever way is chosen, its presence can be identified. The three phases are always present.
A legislative proposal before the United Kingdom Parliament or before the National Assembly for Wales is referred to as a Bill. It remains a bill until it is finally passed into law by receiving Royal Assent, at which point it ceases to be a bill and becomes an Act, either an Act of Parliament or an Act of the Assembly, according to which legislature passed it into law.
Acts of Parliament are also frequently referred to as statutes. This term is not often encountered in relation to Assembly Acts, probably because the legislation which gave the Assembly the power to enact laws states that such laws are to be known as 'Acts of the Assembly'. Assembly Acts are quite properly regarded, however, as part of statute law, that is law which is enacted or made.(Continues…)
Excerpted from "Legislating for Wales"
Copyright © 2018 Thomas Glyn Watkin and Daniel Greenberg.
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