public law lecture 3 FINAL

What is the difference between primary and secondary legislation?

Parliament makes primary legislation directly. Someone else makes secondary legislation using powers given by a parent Act.

What is a parent Act?

The Act giving a person or body power to make secondary legislation.

Why is secondary legislation also called delegated or subordinate legislation?

The law-making power is delegated to someone else, and their legislation ranks below the parent Act.

What forms can secondary legislation take?

Regulations, Statutory Instruments, Scottish Statutory Instruments, Orders and Orders in Council.

What does ultra vires mean?

Beyond legal power. Secondary legislation made outside the powers granted by its parent Act is not valid law.

Can courts review secondary legislation?

Yes. They can check its legal powers and matters such as rationality, reasonableness and human rights.

Which takes priority over conflicting precedent and secondary legislation?

Primary legislation.

How do the UK and Scottish Parliaments' law-making powers differ?

The UK Parliament has theoretically unlimited power. The Scottish Parliament must stay within the limits set by the Scotland Act 1998.

Why must you check an Act's geographic extent?

To see where the relevant section applies. Different sections of one Act can apply to different parts of the UK.

What is a bill?

A proposed law. It becomes an Act after completing the required process and receiving Royal Assent.

How do Government Bills and Private Members' Bills differ?

A minister introduces a Government Bill. A member who is not acting as a minister introduces a Private Member's Bill.

Is a Private Bill the same as a Private Member's Bill?

No. A Private Bill concerns a particular person or organisation. 'Private Member's' describes who introduces the bill.

What are the main stages of a UK bill?

First Reading, Second Reading, Committee Stage, Report Stage, Third Reading, consideration by the other House, then Royal Assent.

What happens at First Reading?

The bill is introduced. There is no vote at this stage.

What happens at Second Reading?

The House debates the bill's general principles and votes on whether it should continue.

What happens at Committee Stage?

A committee examines the bill in detail and debates and votes on amendments.

What happens at Report Stage?

The bill returns to the whole House for debate and votes on amendments.

What happens at Third Reading?

Further debate and a final vote on whether to approve the bill.

What is parliamentary ping-pong?

A bill moves between the Commons and Lords as they try to agree on amendments and final wording.

Can a UK bill ever pass without the Lords' agreement?

Yes. The Parliament Acts 1911 and 1949 allow this in specified circumstances. The Lords generally has a delaying power.

What is Royal Assent?

The monarch's formal approval of a bill, turning it into an Act.

How many chambers and elected members does the Scottish Parliament have?

One chamber and 129 elected MSPs.

What are the stages of a Scottish bill?

Introduction, Stage 1, Stage 2, Stage 3, then Royal Assent.

What happens when a Scottish bill is introduced?

The bill is introduced and its legislative competence, meaning whether it is within Scottish powers, is checked.

What happens at Stage 1 of a Scottish bill?

A committee examines the general principles. Parliament then debates them and decides whether the bill should continue.

What happens at Stage 2 of a Scottish bill?

MSPs propose amendments and the committee votes on them.

What happens at Stage 3 of a Scottish bill?

MSPs consider further amendments and then vote on the bill as a whole.

Can a Scottish bill receive Royal Assent if a s.35 order blocks its submission?

No. The UK Government can prevent submission for Royal Assent on the grounds in s.35 of the Scotland Act 1998.

What does commencement mean?

When an Act, or a particular part of it, starts operating as law.

What is the general starting point for when an Act comes into force?

The day of Royal Assent, unless a commencement provision sets a different time.

Does Royal Assent always mean every section starts operating immediately?

No. A commencement provision can delay the whole Act or particular sections, sometimes until an official makes an order.

Can sections of the same Act start at different times?

Yes. Check the relevant commencement provisions.

Why does commencement matter in a legal problem?

The law must have been operating when the relevant event happened.

What is express repeal?

A later law clearly states that an earlier law, or part of it, is removed.

What is implied repeal?

A later law conflicts with an earlier one and replaces it only to the extent of the conflict, without expressly saying so.

What is a constitutional statute?

A constitutional statute is an important law about how the country is governed or people’s basic rights., protected from implied repeal.

Which case is associated with protection of constitutional statutes from implied repeal?

Thoburn v Sunderland City Council [2002] EWHC 195.

Can Parliament repeal a constitutional statute?

Yes, but it must do so expressly. Examples of constitutional statutes include the Scotland Act 1998 and Human Rights Act 1998.

How do you cite section 1, subsection 1 of the Scotland Act?

Scotland Act 1998, s.1(1).

What is statutory interpretation?

Working out what legislation means and how it applies.

Why do statutes need interpretation?

Words can be unclear, have several meanings or lead to unintended results. People can disagree about how a law applies.

How do interpretation rules differ from guidelines?

Rules are legally binding. Guidelines help support an interpretation but do not automatically decide it.

Which wins if a binding interpretation rule conflicts with a guideline?

The binding rule.

What is an example of a binding interpretation rule?

A definition written into the Act, or a rule in the Interpretation Act 1978.

What is an example of an interpretation guideline?

The presumption that words have their ordinary meaning.

What is an interpretation section?

A part of an Act defining terms used in that Act. Its definitions are legally binding.

Which wins: an Act's specific definition or a general definition in the Interpretation Act 1978?

The specific definition in the Act.

What does Interpretation Act 1978, s.6 say about singular and plural words?

Unless a contrary intention appears A word for one person or thing can also mean more than one—and the other way round

What does Interpretation Act 1978, s.6 say about gendered wording?

Unless a contrary intention appears, words referring to one gender include the other.

What does a 'month' mean under the Interpretation Act 1978?

A calendar month.

Why can a court's interpretation of a statute matter in later cases?

The interpretation can become binding precedent.

What are the three classic approaches to statutory interpretation?

The literal rule, golden rule and mischief rule.

What is the literal rule?

Give the statutory words their literal meaning.

What is the golden rule?

Use the literal meaning unless it would produce an absurd or unjust result.

What is the mischief rule?

Interpret the law by considering the problem Parliament wanted it to solve.

Are the three classic 'rules' always legally binding instructions?

No. They are broad approaches or guidelines, despite being called rules.

What is purposivism?

Interpreting legislation by focusing on Parliament's purpose and what the law aims to achieve.

What is the modern literalist approach?

Focus on the words Parliament used and what a reasonable reader would understand them to mean in context.

How is modern literalism different from simply reading words mechanically?

It considers context and reasonable understanding, including changing circumstances.

Which 2025 case uses the idea of 'mischief' when interpreting the Equality Act 2010?

For Women Scotland Ltd v the Scottish Ministers [2025] UKSC 16, paragraph 164.

What is an interpretative presumption?

A starting assumption about what Parliament meant. Clear wording to the contrary can defeat it.

Are explanatory notes legally binding like an Act's interpretation section?

No. They help explain the Act but are supporting material rather than binding statutory text.

What is Hansard?

The official record of parliamentary proceedings.

When can parliamentary debates help interpret a statute?

When its wording is unclear, ambiguous or produces an absurd result. Pepper v Hart and Short's Trustee support consulting parliamentary proceedings.

Why should Government papers be used carefully to show Parliament's intention?

They show the Government's views, which are not automatically the views of Parliament as a whole.

What is the presumption of consistency within and across statutes?

Parliament is assumed to use words consistently, both within an Act and across different Acts.

What is the presumption of statutory endorsement?

If Parliament uses a term with an established judicial meaning, it is assumed to adopt that meaning.

What is the presumption of ordinary meaning?

Words are assumed to have their normal meaning. A dictionary can help identify it.

What is the presumption of parliamentary correctness?

Parliament is assumed to choose words carefully and intentionally, without making a mistake.

What does 'the specific overrides the general' mean?

A rule aimed at a particular situation normally takes priority over a conflicting general rule.

What does the 'always speaking' presumption mean?

An older law can apply to changing circumstances by interpreting its words in their updated context.

Does 'always speaking' mean every proposed update must be accepted?

No. McCartan Turkington Breen illustrates updating being accepted; News Corp [2023] UKSC 7 illustrates its limits.

What is the presumption against penal provisions?

A law should impose criminal or punitive consequences only where Parliament makes that intention explicit.

What is the presumption against implicit common-law reform?

Parliament is assumed not to change judge-made law without making that intention clear.

What is the presumption protecting natural justice and basic legality?

Parliament is assumed not to remove fundamental protections, such as a fair trial, without making that intention explicit.

What is an ouster clause, and how is it interpreted?

Wording that excludes court review. Courts interpret it narrowly and require very clear language to exclude review.

What is the presumption about legislation binding the Crown?

A law is assumed not to bind the Government unless it says so explicitly.

What is the presumption against retrospectivity?

A new law is assumed not to apply to events or conduct from before it began operating.

What is the presumption in favour of international law?

Parliament is assumed not to break international law unless it clearly intends to do so.

What does 'may' usually mean in legislation?

A person has permission or power to act, but is not required to use it.

How can a list help explain an unclear statutory word?

Compare the word with the other items to identify their shared meaning.