Volume 15: Government and Public Administration
3. Policy-making and legislation
The legislative process
Introduction
Primary legislation
Secondary legislation
European legislation

Introduction

3.34 This section describes the different categories of domestic and European legislation needed to implement UK government policy, including policy on BSE. It also outlines the processes by which legislation was made and the interaction between UK domestic legislation and European Union (EU) legislation. ¹ The exceptional arrangements applying to Northern Ireland are described in vol. 9: Wales, Scotland and Northern Ireland.

3.35 This section does not take account of the arrangements for the devolved legislatures in Scotland, Wales and Northern Ireland, which came into being after 20 March 1996 (the cut-off date in the Inquiry's terms of reference).

Primary legislation

3.36 All governments face constant pressure to amend statute law; for example, to address events that are causing concern or to implement reforms that are considered desirable. The period examined by the Inquiry was no exception. Constitutionally such amendments could only be made by the United Kingdom Parliament, or under its authority. With two exceptions, such authority was usually narrowly circumscribed. The first exception was that authority to amend statute law without primary legislation was conferred under the European Communities Act 1974. The second exception was that power to make and amend legislation affecting most matters in Northern Ireland was devolved to the Northern Ireland Parliament and its successor, the Northern Ireland Assembly. From 1974 onwards, however, the Assembly was prorogued and most legislation affecting Northern Ireland was made by Order in Council (see vol. 9: Wales, Scotland and Northern Ireland).

3.37 In draft, and during its passage through Parliament, a package of legislative proposals (draft primary legislation) was called a Bill and was subdivided into clauses. There were two kinds of Bill:

1. 'Public Bills' - draft proposals for legislation that would affect the community at large or alter the general law, and which would apply to all persons subject to the authority of Parliament or to certain classes of persons; in other words, proposals which 'relate to matters of public policy'. ²
2. 'Private Bills' - draft proposals for legislation that would affect only a section of the community or individuals; ie, 'for the particular interest or benefit of any person or persons, public company or corporation, or local authority . . . promoted by the interested parties themselves'. ³

3.38 Most Public Bills could be introduced in either the House of Commons or the House of Lords, but certain Bills (for example, those dealing with financial or electoral matters) could originate only in the House of Commons.

3.39 The 'scope' of a Bill was defined by the long title that appeared at the front. Proposals could only be included in a Bill if they fell within this. A Bill could be, and invariably was, amended during its passage through Parliament. This could delay it significantly, so a Department would try to keep its scope as tightly defined as possible. Even so, on completing its passage through Parliament, a Bill might contain provisions not originally intended by Ministers. The miscellaneous nature of the result reflected the fact that law-making in Parliament involved political considerations as well as administrative and legal ones.

3.40 A Bill passed through five stages in each House of Parliament:

1. introduction and first reading - a formality (there was no debate at this stage);
2. second reading - the occasion for wide-ranging debate on the principles of the Bill;
3. committee stage - every clause (indeed every line and word) was subjected to detailed scrutiny and amendment, generally by a designated committee of MPs in the House of Commons, and by a Committee of the whole House in the House of Lords;
4. report (or consideration of amendments) stage - the Bill as amended was considered again by the whole House, and further amendments could be made; and
5. third reading - a further general debate on the Bill.

3.41 When both Houses had passed a Bill (a process which could take up to 12 months), the Queen gave it Royal Assent, and it became an Act of Parliament. Its subdivisions were then known as 'sections'.

3.42 Acts of Parliament in general consisted of statements of law, which included the powers;

1. of government Ministers to take particular steps;
2. of Ministers to make secondary legislation (see below); and
3. of local authorities or other agencies to take particular steps.

They also defined criminal offences and sanctions within the fields covered by the Act, remedies in the civil Courts, etc. For example, in the Food Act 1984, ⁴ section 1 specified offences relating to the preparation and sale of injurious foods; section 4 provided for Regulations to be made setting standards in respect of the composition of food; section 31 provided for the inspection and control of infected food; sections 127-30 dealt with expenses and receipts; and sections 131 and 132 interpreted the terms used.

Secondary legislation

3.43 In general, Acts of Parliament established the essential principles of a policy, while delegating the details of (for example) implementation and enforcement to Ministers and their Departments. Such details could be dealt with by means of Orders or Regulations. These were known as 'secondary legislation' (or alternatively as 'delegated legislation', as Parliament had delegated particular law-making powers to Ministers or to another body).

3.44 In giving Ministers a power to make an Order, Regulations and Rules, an Act specified the extent of that power. The secondary legislation had to keep within the scope of the powers specified in the Act. If it strayed outside them, the Courts could strike down anything that happened as a result.

3.45 There were several reasons for such powers:

1. Parliament, especially the House of Commons, only had time to discuss essential principles. Much time could be saved, and the need for amendments to primary legislation avoided, by delegating the details (eg, of procedure, or less important aspects) to Ministers to deal with in secondary or subordinate legislation;
2. the subject matter of modern legislation was often highly technical, and it might not be possible to deal with this in Parliament. Delegating such matters to Ministers enabled them to consult experts and interested parties on draft Regulations and to address such issues effectively; and
3. delegated legislation gave some flexibility to the legislative process, as changes could be made from time to time in the light of experience without the need for amending Acts of Parliament. It could be difficult for Departments to secure Parliamentary time to do this. Subordinate legislation enabled the law to be amended and desirable reforms introduced far more quickly.

3.46 However, there were safeguards designed to ensure that such delegated powers were not abused. Parliament had two means of review. Firstly, the Joint Committee on Statutory Instruments (JCSI) ⁵ considered 'instruments laid before each House and upon which proceedings may be, or might have been taken'. ⁶ The JCSI could draw an Instrument to the special attention of Parliament 'on any of a series of specified grounds, or on any other ground not impinging on the merits of or policy behind the instrument' (which was a matter for the full House). The specified grounds included where an Instrument had been unjustifiably delayed in publication or being laid before Parliament; had not been notified in proper time where it came into effect before being presented to Parliament; gave rise to doubts that it was intra vires; ⁷ appeared to make an unusual or unexpected use of the powers in the parent Act; required elucidation; or was defective in drafting. ⁸

3.47 Secondly, much secondary legislation was also subject to review by Parliament, using the 'negative resolution' and 'affirmative resolution' procedures. Under the negative resolution procedure, secondary legislation came into effect immediately, but was laid before Parliament and could be annulled (by Order in Council) if either House passed a resolution against it within 40 days. ⁹ Usually, anything done under that legislation before it was annulled stood. There was a further informal time limit, the '21-day rule', which embodied:

. . . an undertaking that, wherever possible, an instrument subject to the negative procedure will be laid at least 21 days before it is to come into effect. Scrutiny of the instrument is thus usually ensured before its provisions come into force. ¹⁰

3.48 It was unusual for MPs or peers to object to secondary legislation, so the negative resolution procedure was a quicker way of implementing such measures. The Bovine Offal (Prohibition) Regulations 1989 ¹¹ were made under the Food Act 1984 ¹² and were subject to the negative resolution procedure (section 120(2) of the 1984 Act). However, some MPs sought and obtained a debate on these Regulations 'to test whether the order meets the Government's objectives. We support it, but we have major reservations.' ¹³

3.49 Under the affirmative resolution procedure, secondary legislation was laid before Parliament in draft or when made, but could only take effect when approved by affirmative resolutions in each House. This meant that room in the parliamentary programme had to be found for at least a brief debate on the matter in each House, which was inevitably more time-consuming than the negative resolution procedure. Sometimes, the legislation laid before Parliament came into effect immediately, but in such cases it would cease to have effect unless it was approved by resolution within a prescribed period. A time limit could be placed on consideration under the affirmative resolution procedure, but only if this was laid down by the parent statute. ¹⁴

3.50 Not all secondary legislation had to be laid before Parliament. For example, the Animal Health Act 1981 did not require this for Orders made under it. ¹⁵ Thus the Bovine Spongiform Encephalopathy Order 1988 ¹⁶ was made under that Act by the relevant Ministers and came into force on the dates specified in the Order. There was no parliamentary procedure; no such procedure is prescribed by the Act, save in respect of Orders made under one specified subsection, which did not apply to the BSE Order.

3.51 As Chapter 8 explains, all government decisions were potentially subject to judicial review (or similar procedures) in the Courts. Secondary legislation embodying such decisions was therefore open to such review.

3.52 Much of the subordinate legislation in the BSE story was made not by Ministers acting alone but jointly as required by the relevant primary legislation. The Bovine Spongiform Encephalopathy Order 1988 ¹⁷ was made jointly by the Minister of Agriculture, Fisheries and Food, the Secretary of State for Wales and the Secretary of State for Scotland, under the Animal Health Act 1981. Similarly, the Bovine Offal (Prohibition) Regulations 1989 ¹⁸ were made by the Minister of Agriculture, Fisheries and Food, the Secretary of State for Health and the Secretary of State for Wales, under the Food Act 1984. The requirement that all Ministers involved should sign the same document could pose logistical problems.

3.53 Subordinate legislation for Northern Ireland was generally made separately from that for the other parts of the United Kingdom. Sometimes, separate subordinate legislation was required for different parts of Great Britain. For example, the Bovine Offal (Prohibition) Regulations 1989 were made by the English and Welsh Ministers. There were separate Regulations in Scotland - the Bovine Offal (Prohibition) (Scotland) Regulations 1990 ¹⁹ - made under the Food and Drugs (Scotland) Act 1956. This situation could result in coordination and timing problems, as described in vol. 9: Wales, Scotland and Northern Ireland.

European legislation

3.54 Within the legal order of the European Community (EC), ²⁰ European law takes priority over the national law of a Member State. Commercial activity in the UK, including agriculture, is now to a considerable extent governed, directly or indirectly, by European law.

3.55 The primary source of European law is the Treaty of Rome 1957, which established the European Economic Communities, as amended (eg, by the Maastricht Treaty). The Treaty of Rome also confers law-making powers on specified Community institutions - ie, either the Commission, the EC's executive arm, or the Council of Ministers - to 'make regulations, issue directives, take decisions, make recommendations or deliver opinions'. ²¹ The Council of Ministers can confer on the Commission powers for the detailed implementation of legislation adopted by the Council. ²² The Council may adopt one of three procedures to govern the exercise of these delegated powers. ²³ Each requires the Commission to submit a draft of its proposals to a Committee ('Advisory', 'Management' or 'Regulatory') consisting of representatives of Member States and chaired by a Commission official. The Commission is only required to take the 'utmost account' of the opinion of an Advisory Committee, but both Management and Regulatory Committees have power to delay the adoption of a measure, to enable the Council to intervene if it disagrees with the draft proposal.

3.56 Each form of subordinate legislation has different legal consequences. A Regulation is 'binding in its entirety and directly applicable in all Member States' ²⁴ - ie, without any need for further legislation. An example is Council Regulation No. 3508/92 of 27 November 1992 on Community aid schemes. ²⁵ This established an integrated administration and control system for Community aid to producers in the crop and livestock sectors.

3.57 By contrast, Directives set out provisions to which Member States are required to give effect in their national laws within a specified time. Their contents and requirements are 'binding, as to the result to be achieved, but shall leave to the national authorities the choice of form and methods'. ²⁶ For example the UK Fresh Meat (Hygiene and Inspection) Regulations 1992 ²⁷ gave effect in part to EC Directive 91/497/EEC, ²⁸ which extended an earlier Directive on health problems affecting intra-Community trade in fresh meat so that it also covered the production and marketing of fresh meat. Directive 91/497/EEC required Member States to 'bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1993'.

3.58 A Decision is 'binding in its entirety upon those to whom it is addressed'. ²⁹ An example is Commission Decision 90/261/EEC of 8 June 1990, ³⁰ which amended two Decisions arising from the outbreak of BSE in the UK: one in 1989 on certain protection measures relating to BSE in the UK; and another in 1990 on additional requirements for some tissues and organs with respect to BSE. Decision 90/261/EEC was intended to harmonise measures taken by Member States where there was a danger that the introduction into their territory of fresh meat from another Member State might spread animal diseases. It required Member States to 'amend the measures which apply to trade so as to bring them into compliance with this Decision within three days after its notification'.

3.59 Regulations, Directives and Decisions are all capable of having 'direct effect'. The principle of direct effect means that a provision of European law which is sufficiently clear, unambiguous, unconditional and not contingent upon further action will confer rights on individuals which they may enforce in the national Courts of a Member State. This principle is enacted in UK law under the European Communities Act 1972, which provides that directly effective rights are enforceable in the UK without further enactment. ³¹ Any provision of European law which is not directly effective will not confer rights unless and until it is implemented in national law.

3.60 In the case of a Regulation, a provision having direct effect will do so as between an individual and the state, and as between individuals. ³² A provision of a Directive can only have direct effect once any time limit for the implementation of that Directive has expired. If the criteria mentioned above are met, the provision will then give rise to rights as between an individual and an 'emanation' or 'organ' of the state, but it cannot be relied upon as between individuals. ³³ Equally, a Decision which is addressed to a Member State gives rise to rights which may be enforced by an individual, though only against that Member State. ³⁴

3.61 Recommendations and Opinions have no binding force and no direct effect. ³⁵