CM Anglais

Examen : 30 minutes 30 QCM, une seule bonne réponse, sanctions réponses fausses et absence
de réponse.

The Legislative Process in the UK

Boris Johnson is the head of the government. He is not the head of the state because there is no
president : the head of the state is the Queen. He belongs in a system where the head of the
government is the chief of the executive branch. In other terms, the monarch is pretty useless,
and must be replaced by the government. The Parliament is the central piece.

Every five years (it used to be different), there is a general election by the UK citizens in order to
elect the Prime Minister.

Legislation is prepared by the government, with help from civil services (unselected members of
the government). It must be validated by the Parliament (Parliamentary sovereignty). The
government has a majority in Parliament (Convention).

Boris Johnson was not elected, he replaced the former leader of the Majority, Theresa May.

Basically, the easiest and basic government is designed to make the system easy, but it is not
(« elective dictatorship »). The risk is to become one, and it was probably the case, but now it is
not the truth anymore with Brexit.

For the government, is it possible to lose the control of the Parliament ? Probably not, because it
is the product of the government. It can change if there is a very slim majority.

Why did Theresa May leave ? In 2017 she did a snap election because she needed a stronger
majority. When you get out from the EU, you get out from the laws. After the election, she did not
have majority anymore.

It was a failure : Tories lost their majority. There was a need for support outside of Tories. It lead to
a coalition with Democratic Unionist Party that weakened her politics.

By choosing these two women to support her politics (?), she shattered her career, because they
were not appreciated by public opinion, which made the government vulnerable to rebellions. A
small majority government equals a weak government.

Several things lead her to leave : rebellions from backbenchers (MPs from the ruling party who are
not in the government), divisive issues of Brexit, not enough support from the Brexit withdrawal
bill, the deal she had negotiated with the EU which the Parliament had to approve. She lost her
party with her credibility, causing her departure.

The backbenchers is the name given to members who are neither a minister nor a shadow
cabinet member, nor holds another parliamentary office such as whip or caucus chair from the
House of Commons.

There was a recent attempt to take control of the legislative agenda.

Theresa May’s successor, Boris Johnson, was a rising star of the government, because he is the
minister of Brexit. He stood for an election. Context = by-elections (élections partielles) = majority
by one MP

He was stopped by the Brexit, because no majority wanted to support Brexit. He said « if I don’t
have majority of the seats, I cannot pass the bill. We will go out without a deal ». Everybody was
surprised by this elocution.

BJ’s solution is to take the UK out of the EU without a dead (« no deal Brexit »). This kinda looks
like Trump’s politics, it has similarities, but BJ seems more educated, at least socially speaking.
He has a reaction worthy of Trump, he adopted a behavior that made his choices even if they are
1 sur 10
radical, hard at first, strategic choices and open to negociation. He took a step back to take a
break.

He then decided to make the Parliament dysfunctional, by making them take a break. He basically
shot the Parliament and made a deal without them. It is a very complicated strategy because he
did not respect majority.

In August, he decided to prorogue (suspend) the Parliament for five weeks. There was a little
chance to scrutinize the government’s Brexit strategy and prevent a no-deal Brexit. It was
necessary for the Queen to talk in order to suspend the Parliament, which she did (and basically
killed the democracy).

It was criticized as undemocratic, and challenged before courts for constitutionality. The Labor
Party’s MPs called for an emergency debate on the introduction of a bill to prevent a no-deal
Brexit. It had the support from all parties except most of the Conservatives and the DUP. A debate
was called for the supporters of the bill to be given control over parliamentary time, instead of the
government. One Tory’s MP defected to the Liberal Democrats before the vote, causing them to
lose their majority.

17/09
Video BBC Live

Did BJ’s attempt to take control of the legislative agenda succeed ?

Yes. Supporters of the bill and 21 Tory backbenchers are in support of the bill. But he lost some
people from his own party, which is not good.

On September 4, the Parliament introduced a bill to stop a no-deal Brexit introduced in

Parliament. Since BJ lost his majority, his only solution is now to hold an early general election :
British people need to vote. He seems to be optimistic, because he thinks that the general
election will give him a strong majority.

The Labour Party (J. Corbyn) wants to wait until the legislation blocking a no-deal Brexit has
gone through Parliament : J.C thinks argue that he lost his majority and that he should work with
them.

BJ wants to the early general election to be hold before the decision about Brexit. The Labour
Party wants to vote and change the law about Brexit within a few days, in order to block a
possibility of leaving EU with a no-deal Brexit, and then have a general election.

The Speaker of the House, who holds the debates in the House of Commons, is John Barcow :
he tries to organize the House. He announced on September 9, 2019 his resignation for October
31st, the date the Brexit should be. He was openly hostile to BJ, which is unusual because the
Speaker should be very neutral about politics. BJ doesn’t like him and said that if he leaves his
post to try to become a MP, the Tory party will oppose his election as a MP.

BJ recently went to the Queen as the Prime Minister and asked to suspend the Parliament, so
«  he could do his job  ». It is a possibility, but normally the circumstances have to be very
exceptional, in the public’s interest. This decision was then very criticized.

Firsty, Scottish MPs went to the Scottish court to complain about BJ’s decision to ask the Queen
to suspend the Parliament (which she agreed by convention, because she has no real powers).
They think that BJ lied to the Queen with false arguments to convince her. The Scottish court
ruled that prorogation is unlawful.

But the English High Court ruled about the same issue and said that they cannot have a look at it,
because it is a politic issue and not a judicial issue. Judicial reviews are only possible for judicial
issues. Since it is a Parliament prorogation, it should be a politic matter.

In order to take a definitive decision, they asked the Supreme Court of the United Kingdom. They
hold a 3-day emergency hearing to give a final answer. They made their decision known on
September 23, 2019 and sided with Scottish Court. «  The court has concluded that the prime
minister’s advice to Her Majesty to suspend parliament was unlawful, void and of no effect ». It is
as if Parliament had not been prorogued.

2 sur 10
But actually, Parliament was still prorogued: until October; there were no legislation, no debates,
no committees, no votes.

This happened because of Parliament’s sovereignty, the decision of the Supreme Court has no
power over the executive or the Parliament : it is a « you should » and not a « you shall ».

There are no written Constitution. Rules are customs and unwritten conventions. But due to
Brexit’s exceptional political circumstances, people tend to think that the system is outdated and
broken: they should maybe move to a typical written Constitution system.

People are opposed to this mostly because of their singular British spirit.

I. Making laws
A- Primary/Secondary Legislation
There are basically two types of legislation in the UK:

- Acts of Parliament : primary legislation. It is the whole set of what they due. They are
usually prepared by government departments (agriculture, education…). These bills are
scrutinized and passed by the Parliament. It takes some expertise because sometimes
bills are very detailed and precise.

- Secondary legislation: prepared by governments departments but are called «  statutory

instruments ». It represents a huge amount of the law. It’d take too much to time to pass
these bills by primary legislation: since they are not as detailed or complicated, they are
not scrutinize by Parliament, and Parliament may only have to approve it in some cases.

When can a government department make secondary legislation?

There is still Parliament soveirignity.

When authorized by an Act of Parliament. The Parent Act.

The minister must act in accordance with the parent Act. If not: challenged in courts (judicial
review).

Primary legislation = no invalidation by Court.

Secondary legislation - judicial review. A court can make an order to quash a SI.

3 grounds for quashing a SL :

- if the minister does not act in accordance with the parent act.

- If the minister’s actions are contrary to certain principles of justice.

- If the minister’s actions violate the ECHR.

Example : University tuition fees

Vince Cable, Secretary of State for Business Skills and Innovation, decided that the educational
system needed more money, and that students should pay more : he raised tuition fees to 9000
pounds. It was authorized by the Higher Education Act (2004) and the Higher Education (Higher
Amount) Regulations 2010. Two students went before a court and said that the parent Act was
illegal because it creates a social and economic rupture of equality. They lost their case. 24/09

Why the need for a second legislation ?

Instead of using a primary legislation: the SL does not need to be debated by the Parliament,
which means that it saves a lot of time. One of the other reasons is the fact that there are many
things that need to be done, and some areas of the legislation may be too technical and detailed
for an Act of Parliament to cover.

Exemple : The Highway Code: this kind of decision doesn’t need to go through Parliament.

PL takes a lot of time, it is a very long process, and sometimes we have to respond with
emergency to some urgent situations. For that the SL is quick and efficient.

3 sur 10
 B- Different types of Primary Legislation
Public bills are introduced by a government member.

Private member’s bills: introduced by one MP who does not belong to the government
(backbencher). It is used to legislate on controversial issues, such as abortion or death penalty. It
is a way to prevent division in the government, by giving a political hot potato to a backbencher.

Who gets to introduce a PMB ?

You have to go through a lottery system, in which all the MPs are put on the table, and then select
20 MPs randomly, to submit a private member bill. 7 of them will have to introduce a bill.

Why 7? Four reasons:

- Practicality of the system, they don’t have that much time

- Everything in the Parliament is made according to rules which are called standing orders. It is
a document in which every rule is qualified by a number. For example, standing order 14 is
an organization of parliamentary time. Usually, the time is used by the government to
introduce bills

- PMB’s get 13 slots during the year

- There is not always enough time

The government can kill the PMB by voting against it, or if they don’t vote against it they will « talk
it out ». Most of them will be lost, and replaced by public bills.

Example of the government talking out a PMB: John Nicholson’s PMB introduced a very
controversial bill about sexual offenses and homosexuality. Basically, this PMB was about fixing a
situation that had existed for a very long time In the UK, to give an automatic pardon to all gay
men who had been convicted of homosexual relations by older laws. The aim was just for the UK
to be in tune with modernity, as a posthumous pardon. Homosexuality has been decriminalized in:
- 1967 in England and Wales
- 1980 in Scotland
- 1982 in Northern Island

The bill was destined to people who were already dead, not to people who are still alive. It is not
because the government is homophobic, it just does not want to give a general pardon. The
government wanted them to apply for a pardon individually. Their argument was: what if the
conviction was not only for a homosexual case but for cases about rape or pedophilia?

Who can help MPs prepare their PMBs?

Sometimes, the PMBs can be backed by the government, because the government needs it to
save some time for a public bill. We call it «  hand-out  » bills. Groups of people who share the
same interest and the same agenda.

Example : nation autistic society. The autism bill was drafted by the association, to provide for
children exclusively and adultes suffering from autism, and then became the Autism Act in 2009.

C- The composition of the Executive Branch

1. Two parts to the Executive Branch

There is the visible political part formed by the Ministers. They are essential, because all the bills
come from them. They put forward policy objectives. They control the various government
departments. They can also lose their job if the prime minister does not like how they do their job.

There is the invisible administrative part: the people who « really work ». They are called the Civil
Service. They do not change with every election, but they do the job because they know it. They

4 sur 10
help politicians to achieve their policy objectives by giving them advice. They remain in the
ministry.

2. The ministers

The ministers are headed and nominated by the PM, who tells them what he wants from them.
They set out government’s broad policy objectives, and ensure they are maintained (BJ is the only
one who want to keep them, who they are, no one else can do it). The PM is at the top of the
chain, and he’s the one who will set the agenda.

For example, Boris Johnson’s agenda is hard Brexit.

The PM has to compose over 100 ministers: it is most important sit in the Cabinet.

Who sits in the Cabinet?

The people who sit in the Cabinet are called senior ministers, or Secretary of the State (equivalent
of minister). They are known as the party’s heavyweights: MPs who have influence within the party
or the public (easier to get legislation passed). Example : Sajid Javid, the minister of economy,
who is the most senior minister.

If these people disagree with the PM on government policies, there is a rule: if you criticize the
government you have to go. If you don’t like the way the PM works, you have to leave.

3. Important members without the government’s portfolio

➡ The leaders of the House of Commons and House of Lords

They are responsible for arranging the government’s business in the House of Commons and in
the House of Lords. The leader of the House of Commons is a chairperson of the Parliamentary
Business and Legislation Committee : the Cabinet committee that decides which legislative
proposals get introduced as bills in Parliament.

➡ The Chief Whip

He is the person who leads the MPs and makes them obey.

The parties are essential in UK politics. It is virtually impossible to get elected as independent. The
parties provide finance and infrastructures for election campaigns, and the party leaders decide of
highest positions : the Cabinet or Shadow Cabinet.

The Chief Whip ensures the party discipline, and the governing party’s MPs votes for its legislative
proposals : carrot and stick approach.

He informs the government if parts of the legislation will be opposed (they work with the MPs and
also for the government).

4. The collective Cabinet responsibility

A minister cannot publicly disagree with the government. Public disagreement = resignation.

It is a constitutional convention. It ensures political stability by obligating the government to speak

with only one voice.

5. Ministers outside of the Cabinet

There are 100 ministers in total. In order of importance :

- Secretaries of State

- Ministers of State

- Parliamentary undersecretaries

- Parliamentary private secretaries

All ministers are in « payroll vote » : they are guaranteed to vote for the government, unless they
want to lose power.

5 sur 10
The civil Service is a very hierarchical structure, headed by the Cabinet Secretary. Each
department has a permanent secretary (the head of the bureaucratic side of the department).
Each sector within a department has a director, assisted by a whole team of bureaucrats: policy
experts and legal experts. The department also has agencies dealing with different aspects of its
responsibilities. Generally, thousands of civils servants are working for each department.

D) Reasons for initiating legislation

➡ Implementing manifesto promises

➡ Reversing previous government’s policies

➡ Responding to events or changes in public opinion

1) Implementing a manifesto promise

Party manifestos are promises to the electorate before the elections. For example, in 2014 David
Cameron promised to hold a referendum if he was elected on the next election. He introduced the
EU Referendum Bill in 2015. It then became the EU Referendum Act, which organized the Brexit
referendum.

2. Reversing Previous government’s policies

For example, David Cameron made a repeat of the Human Rights Act, to replace it by a new Bill
of Rights. The Human Rights Act was indeed criticized for obligating British judges to take ECHR
judgments into account (ECHR = European Court of Human Rights = CEDH). It has not yet been
passed.

3. Responding to events or changes in the public’s opinion

The Health Act 2006 banned smoking in enclosed public spaces, because people were very
opposed to passive smoking.

The Dangerous Dogs Act 1991 was passed in response to a series of high-profile attacks by
dogs.

E) The four steps towards a place on the legislative agenda

1. The Consultation Process

Normally during 12 weeks. Tentative proposals in Green Paper (Frist draft before the bill)

=> May contain several possible options

Allows interested parties and experts to make submissions to the department that will be in
charge of the final draft.

Department will adapt the proposal and publish White Paper (summary when they have chosen
between all the propositions)

➡ Contains the specific changes

➡ Possible feedback on White Papers

2. Approval by Cabinet

Cabinet must approve all proposals (collective cabinet responsibility)

➡ All changes in legislation must be agreed upon by the entire cabinet

Discussions in cabinet committees (teams of cabinet members who will be discussing)

➡ To improve Cabinet’s efficiency

6 sur 10
3. Cabinet Committees

Most of the examining done in committee

Committee = road policy areas (ex : Housing, employment and skills, Social reform, National
Security…)

6 in total chaired by the PM or a senior cabinet minister.

The Cabinet has one goal : they look at the proposal and examine the effect of legislative
proposals on other departments (ex : the effect of proposals for increased environmental
regulation on industry for example).

To enable more “joined-up policy making

4. Getting a slot on the legislative programme

Parliamentary business and legislation committee choose what proposals get on the
Government’s agenda.

Choice based on :

➡ Policies the Cabinet gives priority to

➡ Need for reform

➡ Support of the bill within the party

When approved : on Queen’s Speech

➡ Given at the opening of Parliament every year (on the HL but she don’t have access to
the HC)

➡ Outlines the Government’s main legislative proposals for the coming year

➡ Written by the government and read out by the queen

➡ Highly ceremonial moment

Getting a Bill Drafted

After approval => drafting stage.

Bill team is set up by bill manager (= a senior civil servant) and composed of civil servants. They
are legal experts and policy experts, and they have to write the bill. Instructions to parliamentary
counsel (group of lawyers specialized in drafting legislation).

Main goal : draft the bill as clearly as possible.

There is a constant dialogue between parliamentary counsel and the bill team to clarify grey areas.

Examination of draft bills publication. Examination by a parliamentary committee for report

with recommendations. Government has 60 days to respond to the report.

Positive aspect of pre-legislative process :

- Gives Parliament more time to examine legislation before the debates

- Can help a bill’s passage

When the bill is ready, it can be introduce in Parliament on Government’s timetable.

7 sur 10
 15/10

Checks and balances : the US Legislative

process through the prism of gun laws

Introduction

What are laws for ?

Hobbes, The leviathan (1661) : “Laws are rules that bind all people living in a community. Laws
protect our general safety, and ensure our rights as citizens against abuses by other people, by
organisations, and by the government itself. We have laws to help provide for our general safety.”

Laws are made in order to not leave in a state of nature because the life in the state of nature is
solitary, poor, nasty, brutish and short. We need rules.

Video : Prime Minister Jacinda Anrdern’s responds : gun laws must change.

Christchurch, New Zealand (March 15, 2019) : single armed individual kills 49 people in mosque.

Shot guns used had been bought legally.

Are NZ gun laws too lax ? Is people’s safety jeopardized ? Should laws be changed ? Should new
laws be passed ?

Prime Minister Jacinda Anrdern’s responds : Gun laws must change (March 15, 2019).

She is speaking about an armed attack which caused a massacre, from someone who had a gun
license. She promises that the NZ gun laws will change. On April 10, 2019, only four weeks and a
half after that, the NZ Parliament passed a gun control law.

The NZ Parliament has one chamber (used to be bicameral).

The main elements of the bill are :

- Ban on semi-automatic weapons and «  military-style  » semi-automatics, because these

guns are meant to kill as many people as possible in the shortest amount of time. No one
can buy those and nobody can sell them.

- No owning parts, magazines and ammunition that can be used to assemble prohibited
weapons, because you can build semi-automatics guns from other pieces (a magazine is the
part of the gun where the bullets are stocked).

- Ban on any semi-automatic shotguns that can be fitted with detachable magazines,
and pump-action shotguns (fusil à pompe) that hold more than five rounds (how many
bullets you can fire without having to reload).

- Exemptions : weapons used by farmers, hunters and collectors, who need it against wild
animals (common in New-Zealand). This is a controversy, because some people think that
one does not need military-style weapons to kill an animal (and this exemption means that
you can legally have those weapons only if you are passionated by weapons and want to
collect it).

- Amnesty for unlawful items to be handed in by the end of September 2019, with a buyback
scheme: the state buys back the returned weapons. After that, they can be confiscated.

On April 12, the Bill were signed into law by Governor General, on behalf of the Queen. Law is
then enforced : banned guns are surrendered to authorities by owners. Almost of the weapons
were returned: there was no resistance from the population.

8 sur 10
The US reacted to New Zealand gun law, because the right to carry a weapon is a huge
controversy.

There was a positive move: laws must swiftly adapt to circumstances. There is a problem with
guns, there is a solution with laws. This is an evidence that the legislative system works. You
cannot constantly say that people will continue to die because there are still guns in circulation.
NZ showed their sense of national unity: they made the law sensible enough to protect people.
They went through a tragedy, and had the intelligence to take the moment and take the best
opportunity for political action, with a balanced law which did not forbid every kind of weapon.
For some people, it was indeed clear the US should do the same. This massacre was the only one
happening in NZ for decades: it took one and they changed the law. In the US, there are plenty of
killings every month.

The negative move: some people think that the law was passed too fast, too soon, too immediate.
They think that it was more a political opportunism, that the Parliament used a national tragedy
to confiscate gun debate. For them, the executive is too strong; the legislative branch is too
submissive, and the US should have their sacred freedom.

How did the New-Zealand gun ban relate to the US?

There are far more gun attacks in the US than in NZ. Of course they are in a country where the
problem is constantly discussed, so they had to discuss NZ’s case.

Many deadly attacks in US: Orlando (2016), a school in Florida, Las Vegas, Pittsburg, El Paso
(2019)… There is deadly attacks once a week in the US. The numbers are rising.

There are calls for US Congress to act: March for our lives movement.

This was mostly created by students, because massacres take usually place in schools. A lot of
perpetuators are teenagers, mostly young men, who are obsessed by violence and guns. It is
sadly people that are bullied, that feel alone, and think that they are marginal and want to die by
taking people’s lives with them. It is a form of copycat: by talking about it in the medias, it brings
knowledge of their name, causing them to enter prosperity.

They marched in Washington DC, because there is the Congress, all of the administrations, the
US Supreme Court and the White House. This is the place where they take norms concerning the
whole US population.

There was a bill willing to control gun circulation, but it did not pass. Almost all the gun bills that
were entered in the Parliament since 2000 died. Almost none was passed, out of more than 100
gun control bills. If bills can not be passed when children, teenagers, dozens of people are dying
every month, what does it take?

Is there something wrong with legislation changes in the US?

1_ Where do laws come from?

2- Who makes US legislation?

3- How does the system works in theory?

4- From checks and balances to systematic gridlock: why the system has become dysfunctional?

9 sur 10
1/ Where do laws come from ?
A/ Two levels: federal level and state level
On the American Flag: 13 stripes for the 13 colonies, 50 stars for the 50 states.

The US were created from 13 colonies. It was formerly controlled by the British. But in practice, it
is difficult to govern between two places which are that far away. You have to let them do what
they want to do. Geography leads to the fact that you cannot intervene as you want. There was a
large degree of self-government for the colonies.

They were different economically, socially and culturally.

First of all, there is a very large space in each state. The climate is different between South and
North, leading to different ways to govern.

In the 1760s, the self-government was under threat by the British government. It was indicated by
new taxes imposed by British Parliament, with no consultation of colonists, no real interest from
the British for the colonies. There was also a strong opposition in American colonies.

The main reason for the colonies to rebel is not because they felt American; they actually felt more
British, but they were obligated to paye lots of taxes without any counterpart such as political
representation. This leaded to the «  No taxation without representation  »
adage.

In 1776: Boston Tea Party after lots of conflicts and protesting. This lead to
the American War of Independence (1775-83) against they own mother
country. The colonies then changed their modo to «  Join Or Die  » (by
Benjamin Franklyn). The image associated with the moto shows a snake
divided in 13 parts, representing the 13 colonies against the British forces.

In 1776, representatives from each of the colonies declare independence from

the British. They created institutions to collectively govern the 13 colonies through the Articles of
Confederation. The Confederation lets a lot of liberty and independence to each local institution.
The idea is not to build a centralized country.

10 sur 10