LAW MAKING: AUTHORITY AND PROCESS

POWER, LEGITIMACY, AND AUTHORITY IN THE LAW MAKING PROCESS

⇒ The authority of the law-makers comes from:

• The basic constitutional framework of a country;
• The political ideology of a country.

⇒ The public accept law-making service is because they don’t want to make the law themselves.

⇒ Also, by having law-makers they organise the whole package (e.g. police, security services, etc.).

⇒ Even the most fundamental constitutional framework will fail if that society sees their constitutional basis unworkable e.g. Libya and Egypt.

⇒ Regular and free elections are important to ensure there is consent and legitimacy to the law making process.

⇒ Countries must ensure there is no corruption/scandal: the expenses scandal led to enactment of the Parliamentary Standards Act 2009 where Members of Parliaments' expenses claims are now controlled and regulated.

CONSTITUTION AND CONSTITUTIONALISM

⇒ Most countries have a codified (i.e. written) constitution where law making powers are well defined, but the UK does not.

⇒ There are some constitutional conventions that exist (i.e. general rules not enforced by the courts):

• Constitutional monarch: the head of the state is the monarch (i.e. the Queen), but the monarch does not run the country or make laws.
• The prerogative: for example, the power to go to war is a prerogative power. This is an exclusive power of the monarch.
• Cabinet government and collective responsibility: Cabinet collective responsibility, also known as collective ministerial responsibility, is a constitutional convention in governments using the Westminster System that members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them.
• Individual ministerial responsibility: individual ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department.

⇒ Despite the lack of a codified constitution, there are some statutes that have constitutional effect e.g. the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010, House of Lords reform, and fixed term parliament.

⇒ British constitutionalism has 3 essential features:

• Sovereignty of Parliament;
• Rule of Law;
• Separation of powers.

MEMBERSHIP OF THE EUROPEAN UNION

⇒ Member states required to abide to European Law.

⇒ Factortame v Secretary of State for Transport (No. 2) [1991]: this case said that European Law has right of way if it conflicts with a UK Act of Parliament (Eurosceptics argued this was an unacceptable loss of sovereignty).

⇒ There is a 'democratic deficit' in the European Union e.g. European Commissioners (law makers) are not directly elected by the people, but their powers are constrained by the Council of Ministers.

⇒ The European Parliament is directly elected, but has a much smaller role to play in the law-making process.MEMBERSHIP OF THE EUROPEAN UNION

⇒ Member states required to abide to European Law.

⇒ Factortame v Secretary of State for Transport (No. 2) [1991]: this case said that European Law has right of way if it conflicts with a UK Act of Parliament (Eurosceptics argued this was an unacceptable loss of sovereignty).

⇒ There is a 'democratic deficit' in the European Union e.g. European Commissioners (law makers) are not directly elected by the people, but their powers are constrained by the Council of Ministers.

⇒ The European Parliament is directly elected, but has a much smaller role to play in the law-making process.