Primary Legislation — SQE1 FLK1 Legal System

An Act lets a minister make regulations prescribing maximum speeds for vehicles on motorways, in the interests of road safety. Worried about accidents outside schools, the minister makes regulations imposing a 20 mph limit on all residential streets. Your client, a haulage company, is prosecuted for exceeding it. Can the court simply refuse to apply that limit? Yes. It can treat the regulations as void.

Now change one thing. Put that identical limit in an Act of Parliament instead. Can the court refuse to apply it? No. Not the High Court, not the Supreme Court, no court at all. Same rule, opposite answers. That difference is this episode. This is Primary Legislation, the third topic in Legal System.

Here is the route. Where legislation sits among the sources of law, and why it always wins. Then parliamentary sovereignty, in Dicey's three principles. Then how a Bill becomes an Act, and when an Act actually bites. Then the anatomy of a statute, delegated legislation and ultra vires. Then the assimilated law Brexit left behind, the Human Rights Act, and devolution.

Start at the top. Legislation is the highest source of law in the English legal system, and an Act of Parliament overrides any conflicting common law rule. Beneath Acts sit delegated legislation, then assimilated law, formerly retained EU law, then case law, then custom. Custom survives, but it is vanishingly rare, and must be ancient, certain and reasonable.

Try it on facts. For years the courts held that an occupier owed no duty to a trespasser injured by an unguarded hazard. An Act then imposes a duty to take reasonable steps against known dangers. A child is hurt by an unfenced machine on a site where the occupier knew children got in. The occupier relies on the old cases, which no court has overruled. Which rule governs?

The Act. Legislation displaces an inconsistent common law rule directly, and no words of abolition are needed. The court has no discretion to prefer whichever rule it finds fairer.

Why does the Act win? Parliamentary sovereignty. The classic statement is Dicey's, and it has three limbs. Parliament can make or unmake any law. No person or body can override or set aside an Act. And no Parliament can bind its successors.

First, there are no legal limits on subject matter. Say that in 2026 Parliament criminalises a purchase made by a UK national anywhere in the world, lawful where it happened. A defendant calls that beyond Parliament's competence. It is not. Unenforceability abroad is a diplomatic problem, not a ground of invalidity.

Second, the courts cannot strike an Act down. If Parliament has enacted it, the judge applies it, however intrusive the judge thinks it. The strongest thing any court can do is declare the provision incompatible with a Convention right under s.4 of the Human Rights Act 1998. We will come to how little that changes.

Third, entrenchment does not work here. An Act of 2015 creates a compensation scheme and says it shall not be repealed or amended by any future enactment. An Act this year repeals it outright. Is the repeal good? Yes. No special form of words, no two-thirds majority, no judicial blessing. And express words are not even needed. Under implied repeal a later inconsistent Act prevails to the extent of the inconsistency.

So how does an Act get made? Begin before the Bill. A Green Paper is a consultation document: options, no decision, responses invited. A White Paper follows and states the government's firm proposals. Green for go ahead and discuss, white for here is what we will do. Neither has legal force, and neither is a stage in a Bill's passage.

Then the Bill, and three labels candidates run together. A Public Bill changes the general law and applies to everyone. A Private Bill affects particular individuals, organisations or localities. A Private Members' Bill is one introduced by a backbencher rather than the government. So a backbencher's Bill making landlords fit carbon monoxide alarms is a Public Bill and a Private Members' Bill at once.

Five stages in each House. First Reading: the title is read, the Bill is printed, no debate. Second Reading: the general debate on principles. Committee Stage: clause by clause, usually in a Public Bill Committee. Report Stage: the full House considers the committee's amendments. Third Reading: the final debate and vote.

A Bill has been introduced without debate, and its principles have now been approved. Which stage comes next? Committee. Then the same five stages in the other House, and if the two disagree, ping-pong, until the wording is agreed. Then Royal Assent. And the Lords delay, they do not veto: under the Parliament Acts 1911 and 1949, a Bill the Commons passes in two successive sessions can reach Royal Assent without them.

Now the point everyone forgets. Royal Assent makes an Act. It does not bring the Act into force. An Act received Royal Assent eighteen months ago. Sections 1 to 5 commence on Royal Assent. Sections 6 to 10 commence on a day the Secretary of State appoints by order, and no order has been made. Your client wants section 3 and section 8.

Section 3 only. Section 8 confers nothing yet, and no rule brings it into force after a fixed period. It may sit there for years. Check commencement before you advise on anything.

Open the Act itself. Acts divide into sections, sections into subsections, subsections into paragraphs, so s.2(1)(a) is section 2, subsection 1, paragraph (a). Schedules sit at the end, and here is the trap. Supplementary describes what a Schedule contains, not what it is worth. A Schedule has the same force as a section, so if section 4 requires the eight items in Schedule 2, handing over three is a breach.

Two more parts to check every time. The interpretation section defines the Act's key terms, and Parliament may give a word any meaning it likes: if the Act says vehicle includes bicycles, your bicycle is a vehicle. And transitional provisions govern the changeover, so an Act that does not reach contracts made before commencement leaves a three-year-old contract untouched.

Back to your haulage company, and to law made by someone other than Parliament. Delegated legislation is made under powers granted by an Act, and that Act is the parent, or enabling, Act. Parliament delegates because it cannot handle every detail, and because regulations can be made in days where a Bill needs five stages in each House. The price is less scrutiny, and law made by unelected officials.

Three forms. Statutory instruments, made by government ministers, much the most common, over 3,000 a year. Orders in Council, made by the Privy Council, for constitutional matters and emergencies. And by-laws, made by local authorities and other public bodies, for the likes of parking restrictions, often confirmed by a minister.

Parliament keeps two levers. Under the negative procedure the instrument is made, laid, and takes effect on the date it names, unless either House resolves to annul it within 40 days. Most instruments go this way. Under the affirmative procedure a draft must be approved by a resolution of each House before the instrument can be made at all.

So test it. A parent Act says regulations may not be made unless a draft has been approved by a resolution of each House. The Commons approves. The Lords have not debated it. The department starts enforcing anyway, saying nobody objected within 40 days. Affirmative or negative? Affirmative. Nothing is in force. That 40-day window belongs to the other procedure entirely.

Then the courts, and this is where your haulage company wins. Delegated legislation is valid only so far as it falls within the powers the parent Act confers. The enabling provision covered maximum speeds on motorways. A limit on every residential street lies outside that subject matter. Ultra vires, and void. The company can raise it as a defence, and a court can quash the regulations on judicial review.

And it is not only about subject matter. Where the parent Act requires the minister to consult the bodies representing manufacturers first, and nobody is consulted at all, the regulations fall on procedure alone.

Brexit next, and a change of vocabulary to keep straight. The transition period ended at 11pm on 31 December 2020, IP completion day. The European Union (Withdrawal) Act 2018 converted EU law into domestic law, so the statute book did not wake up full of holes. Three categories were retained: EU-derived domestic legislation, direct EU legislation such as EU regulations, and rights that had been directly effective.

Then the Retained EU Law (Revocation and Reform) Act 2023. From the end of 2023 it abolished the supremacy of EU law and removed this body of law's special status. From 1 January 2024 it is called assimilated law, and treated as ordinary domestic legislation. So an ordinary regulation-making power can amend it, with no fresh Act. And from 1 October 2024 the higher courts may more freely depart from assimilated EU case law.

The Human Rights Act 1998. Before it, enforcing a Convention right meant going to the European Court of Human Rights in Strasbourg. The Act brought the European Convention on Human Rights into domestic law, so those rights can be raised in a UK court, and it did that without touching parliamentary sovereignty.

Section 2: a court must take Strasbourg case law into account. Take into account, not be bound by it. Section 3: legislation must be read and given effect compatibly with Convention rights, so far as it is possible to do so. A provision making an inspector's certificate conclusive proof, shutting the defendant out entirely, can be read instead as proof unless the contrary is shown.

How far does possible reach? Well beyond the natural meaning of the words. That is the lesson of Ghaidan v Godin-Mendoza, from 2004. But it stops short of amendment. No reading that contradicts a clear provision, and none that goes against the grain of the statutory scheme.

When no compatible reading is possible, s.4. The court may declare the provision incompatible, and this is the trap that decides exam questions. The declaration does not affect the validity, continuing operation or enforcement of the provision. The section stays in force and keeps being applied. Under s.10 a Minister may then make a remedial order, if there are compelling reasons. May. Not must.

Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right, and public authority is wide: police, councils, the NHS, courts and tribunals. But s.6(2) is the escape hatch. Where primary legislation left the authority no choice, it is not liable. A council statutorily obliged to inspect tenants' homes quarterly and unannounced, in terms no compatible reading can soften, is not liable for doing it.

The complaint lies against the legislation, not the body that had to apply it. Then the mechanics, and this is where marks go. Section 7: only a victim may bring the claim, much narrower than the sufficient interest test in judicial review. A campaign group with expertise but no personal stake clears one test and fails the other.

One year to bring it, or longer if the court thinks that equitable, but expressly subject to any stricter limit on the procedure used. Run a Convention point inside a judicial review and the three-month rule still bites. Section 8: any relief the court thinks just and appropriate, with damages only where necessary for just satisfaction. Often the finding of a breach is the satisfaction, and nothing is paid.

Last, the rights themselves, sorted by how they behave. Articles 2 and 3, life and the prohibition of torture, are absolute. No balancing, and no derogation even in a public emergency, so a Bill authorising torture to locate a bomb cannot be rescued by any safeguard. Articles 8 and 10, private life and expression, are qualified: an interference must be prescribed by law, pursue a legitimate aim, and be proportionate.

A legitimate aim is where the analysis begins, not where it ends. Article 14, discrimination, is the odd one out. It is not free-standing, and bites only within the ambit of another Convention right. And Article 2 carries a positive duty to protect life, so ignoring an evidenced threat to an identified person can itself be the breach.

Finally, law-making beyond Westminster. Power was devolved to Scotland by the Scotland Act 1998, to Wales by the Government of Wales Act 2006, and to Northern Ireland by the Northern Ireland Act 1998. The Wales Act 2017 moved Wales to the reserved powers model: the Senedd may legislate on anything not expressly reserved. The Senedd itself was renamed from the National Assembly for Wales on 6 May 2020, and its primary legislation is Acts of Senedd Cymru.

Section 107(6) of the Government of Wales Act 2006 says Westminster will not normally legislate on devolved matters without the Senedd's consent, mirroring s.28(8) of the Scotland Act 1998. Statutory words, but not a rule the courts will enforce. In law, sovereignty is untouched. Devolution constrains politically. And England and Wales remain one jurisdiction, though the law in Wales increasingly is not the law in England.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best one. So learn the rules and what they do to facts. Names are memory pegs, nothing more.

If you keep only three. The Human Rights Act 1998, and the ladder inside it: read compatibly under s.3, and only if you cannot, declare under s.4, which changes nothing. Ghaidan v Godin-Mendoza, for how far a compatible reading can be pushed. And the parent Act behind any statutory instrument, because that is where an ultra vires challenge begins and ends.

Five traps, and the examiners set every one. One: an Act in force is not the same as a section in force. Check commencement. A provision can sit on the statute book for years, never commenced, conferring nothing.

Two: see a challenge to delegated legislation and think ultra vires first. Did the minister go beyond the parent Act, in subject matter or in procedure? Three: a declaration under s.4 never strikes anything down. If an option says the provision is void, or suspended until Parliament acts, it is wrong.

Four: two standing tests, not interchangeable. Sufficient interest for judicial review, victim for a Human Rights Act claim. Identify the claim before you choose the test. Five: absolute against qualified. Articles 2 and 3 admit no balancing at all. Proportionality belongs to Articles 8, 10 and their kind, and applying it to an absolute right is a wrong answer dressed as a careful one.

Quick check. A recent Act allows visits to a patient in a secure hospital only by a spouse or a child. A woman refused permission to visit her relative argues the section is incompatible with her right to respect for family life. The High Court agrees, finds the words cannot be read any other way, and makes a declaration. Parliament has not amended it. Does the section still apply to her request?

Three candidate answers. One: no, the declaration renders the section void from the date it was made. Two: no, the section ceases to have effect until Parliament amends it. Three: yes, because a declaration of incompatibility does not affect the operation or enforcement of the section. Pause here if you want a moment.

The answer is three. Where a court cannot read a provision compatibly under s.3, it may declare it incompatible under s.4, and s.4(6) is explicit. The declaration does not affect the validity, continuing operation or enforcement of the provision. It does not even bind the parties to the case in which it is made.

Why the other two fail. One treats a declaration as a strike-down, and it has no effect on validity, prospectively or retrospectively. Two suspends the provision, but it does not cease to have effect. Whether the law changes is for Parliament, by an Act or by a remedial order. That is how the Act preserves sovereignty.

Five things to take away. One: legislation is the highest source, an Act beats an inconsistent common law rule, and no court can set an Act aside. Two: Dicey's three principles, and the third is the one candidates forget. Entrenchment fails, and a later Act impliedly repeals an earlier one so far as they conflict.

Three: your haulage company. No court could touch that 20 mph limit in an Act of Parliament. Any court can quash it as a regulation made beyond the parent Act. Four: the Brexit vocabulary. Retained EU law became assimilated law on 1 January 2024, and is now ordinary domestic legislation.

Five: the Human Rights Act ladder. Read compatibly under s.3. If you cannot, declare under s.4. And the declaration changes nothing about the provision's force. Next time, Statutory Interpretation.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.