INTRODUCTION TO LAW: STATUTES AND STATUTORY LAW LECTURE 1 2000

In order to study the law of any country one must have some idea of what law is and where it is to be found and that calls for a discussion of (1) the nature and (2) the sources of law. As to its nature, "law" may be understood, provisionally, as a body of rules and whatever else may be included among the sources of the rules of English law, Statute and Precedent are central.



In the two lectures this week, I will consider some aspects of Statutes, and of Statutory Interpretation. Next week I will discuss Precedent. This prioritising of statute is a deliberate attempt to register its importance. Traditional legal education over-emphasises the importance of the case-law method which, although important, is not all-important. This lecture is concerned primarily with the nature and making of statutes. In the second lecture this week the emphasis moves more towards application and interpretation.



An obvious point to make about statutes is their sheer volume. Lord Denning put the matter thus [1]: "In almost every case on which you have to advise you will have to interpret a statute. There are stacks and stacks of them. Far worse for you than for me. When I was called in 1923 there was one volume of 500 pages. Now in 1978 there are three volumes of more than 3,000 pages. Not a single page but it can give rise to argument". This flood of legislation has not abated. In 1992, there were three volumes of more than 3,500 pages, plus a fourth volume for various tables and in 1996) there were four volumes running to 4,096 pages not including substantial tables and indices, themselves running to hundreds of pages. In 1998 (the most recent year for which my college library has a complete bound set) there were again 3 volumes running to xxx pages.



The next point is that statutes generate argument. I hope to assist you understand why. Lord Denning sees the cause, in part, as our [English] method of drafting statutes - the principle object is certainty. However, pursuit of certainty can prejudice another important objective -clarity. In pursuit of certainty the draftswoman or draftsman brings forth obscurity, sometimes even absurdity.



Here we encounter what is taken by many to be a characteristic distinction between civilian (that is of Roman origin) and common law jurisdictions and therefore between Scotland and England on the one hand, and between Europe generally and the United Kingdom on the other. Acts of the Scottish Parliament before the union of the parliaments of Scotland and England in 1707, were very short and terse, stating a broad general principle and leaving the details of implementation to the judges. English statutes, in contrast are usually very lengthy and detailed. They attempt to cover all the circumstances to which an Act might apply. It is perhaps too early to consider whether differences in legislative style will again distinguish the legislatures at Westminster and in Edinburgh. There was one Act of the Scottish Parliament in 1999 and about nine are currently (October 2000) featured on that Parliament's web pages as having been passed in 2000. But so far as any judgment can legitimately be made on so small a sample there appears at present to be little difference.



As to Europe contrasted with the United Kingdom, I refer to Denning, The Discipline of Law pp 17-19. Writing there of the Treaty of Rome and quoting from his own judgment in Bulmer v Bollinger [1974] 4 Ch 401, 411, he states [2]: "The draftsmen of our statutes have striven to express themselves with the utmost exactness. They have tried to foresee all possible circumstances that may arise and to provide for them. They have sacrificed style and simplicity. They have forgone brevity. They have become long and involved. In consequence, the judges have followed suit. They interpret a statute as applying only to the circumstances covered by the very words. They give them a literal interpretation. If the words of the statute do not cover a new situation - which was not foreseen - the judges hold that they have no power to fill the gap. To do so would be a 'naked usurpation of the legislative function'... The gap must remain open until Parliament finds time to fill it"



"How different is this Treaty! It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the Treaty there are gaps and lacunae. These have to he filled in by the judges, or by Regulations or Directives. It is the European way ... much is left to the judges. The enactments give only an outline plan. The details are to he filled in by the judges. Seeing these differences, what are the English courts to do when they are faced with a problem of interpretation? They must follow the European pattern. No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent. To quote the words of the European Court . . ., they must deduce 'from the wording and the spirit of the Treaty the meaning of the community rules'. They must not confine themselves to the English text. They must consider, if need he, all the authentic texts ...



So, an important point about statutes relates to styles of drafting. One style is that of brief, general and therefore indeterminate clauses; the other is of labourious, precise and therefore long-winded and potentially obscure phrases. The attempt to be comprehensive may have its roots in the hostility with which the common law judge originally received statute. Common law was once perceived as the perfection of reason (Justice Coke 1604) This view continued to hold sway such that Sir Frederick Pollock thought that [3] "Parliament generally changes the law for the worse and ... the business of judges is to keep the mischief of its interference within the narrowest possible bounds" [cited Lord Reid, p 27] So statutes originally were given a very restrictive interpretation and, accordingly, in order to make clear what the legislature intended it was thought necessary to go into great detail and precision. But the legislature that conceives certainty brings forth obscurity ...



[4] "Law was originally devised, that ordinary men might know what they had to expect; and there is not, at this day, a lawyer existing in Great Britain, [so] vain-glorious to pretend that he has mastered the code ... It is a labyrinth without end; a mass of contradiction that cannot be disentangled" [William Godwin (1756-1836) Enquiry Concerning Political Justice, (1793, 1796, 1798) Vol II, p 402]

In similar vein, Professor Hart (1961, 1994), thought that [5] "... we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives" [Concept 128] The reason for this is to be found in the human predicament: "...we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the world in which we lived were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. We could make rules, the application of which to particular cases never called for a further choice. Everything could he known, and for everything, since it could he known, something could he done and specified in advance by rule. This would be a world fit for 'mechanical jurisprudence'. Plainly this world is not our world" [Concept 128]. I regard this as a very important passage. It draws attention to what is arguably an unavoidable defect in statutes, however skilfully drafted: that they are both over- and under-inclusive.



It may appear easy at this point to fall into a radical scepticism about the very possibility of meaningful legislation, given this chronic indeterminacy of language. A possible source of error is to view texts (including legislative texts) independently of context. Context gives life and meaning to the text. Meaning is not acontextual, transcendent, objective or absolute. Meaning is situational. And the situation of interpretation includes the structure of beliefs held by the interpreters ... but these beliefs are themselves social and interpersonal. Professor Fish therefore emphasises the role of what he calls "interpretive communities" in sustaining meaning [6]: "... interpretations rest on other interpretations, or, more precisely, on assumptions about what is possible, necessary, telling, essential and so on, so deeply held that they are not [even] thought of as assumptions, the activities they make possible and the facts they entail seem not to be matters of opinion or debate, but a[n objective] part of the world" (Fish, see Katz pp 53-54). But these assumption can - and do change - and the meaning of the texts (including legislative texts) change with the change of standpoint within an interpretive community. An interesting recent example is to be found in Lord Steyn's judgment in R v Burstow & Ireland [1997] 3 WLR 534 where two approaches are identified (1) construing legislation [7] "as if one were interpreting it the day after it was passed"; and (2) construing legislation in the words of Lord Thring, the great Victorian draftsman on the basis that [8] "An Act of Parliament should be deemed to be always speaking". His Lordship holds it to be itself [9] "a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning" and concludes that so far as an interpretation of section 47 of the Offences Against the Person Act, 1861 is concerned, it is appropriate to adopt the "always speaking" approach so as to apply current meanings and contemporary understandings to the words of the statute, in order that "bodily harm" may or "must be interpreted so as to include recognizable psychiatric illness"



More broadly, changes in assumptions about the status of slaves or women in society may significantly alter the meaning given to texts, including legislative and constitutional texts. These changes in underlying assumptions are sometimes referred to as "paradigm shifts", drawing on Thomas Kuhn's influential work, The Structure of Scientific Revolutions (1967). Kuhn's profound point was that there is a distinction to be drawn between normal science and revolutionary science. Normal science occurs within a ruling paradigm or theoretical world view. Revolutionary science involves a change in ruling paradigm or theoretical world view. Examples might include the "Copernican revolution" which shifted from a geocentric perspective to a view of the sun at the centre of our system. Another example might be a switch from particle to wave theories of light. Legal academics have drawn parallels with their own discipline. There is normal lawyering wherein rules be they statutory or judicial in origin are applied to fact situations without question as to the status, merit or meaning of the rules and "revolutionary lawyering" wherein the rules and doctrines themselves are open to critical scrutiny and conceptual review.



Lloyds Bank v Bundy [1974] 3 All E R 757 is offered by Katz (p 58) as an example of this process at work in the legal process. Here the idea is that where a rule attracts a number of exceptions over time, eventually the rule is the exception and the law ought to be restated (as it was in Bundy by Lord Denning). So we can distinguish "landmark" and merely illustrative cases. For many commentators, including Katz, Bundy represents a shift in the perspective of the interpretive community of contract lawyers in that the traditional assumption of unqualified party autonomy was trumped by conceptions of justice and fairness. Thus a passive judicial role in contract adjudication was displaced by judicial activism. You will encounter such "paradigm shifts" and the creation of "deviationist doctrine" (Unger) often enough in your law studies and I hope that you will welcome them as opportunities rather than shun them as obstacles.



In any event, within or outside the current ruling paradigm, language is the tool with which lawyers do their work. Natural [10] "language is not an instrument of mathematical precision". [Denning, Discipline ..., p 12]. Accordingly, there will always be an interpretive process, applying written law to concrete facts. Of course, those who draft the laws seek to do justice but the weight of the words may lead to harsh outcomes in some cases, unless the courts have a discretion to temper the letter of the law with the spirit of justice. So I want to stress an inner tension and dynamic of the law, that of Certainty versus Justice. Lord Reid suggests that [11] "People want two inconsistent things; and that the law is certain and that the law shall be just and move with the times". There is a tendency in law sometimes to swing from one extreme to another. Thus the Child Support Act replaced judicial discretion and party autonomy with a rigid formulation for the calculation of the child support maintenance payable by the absent parent to the parent with care on behalf of the children. I appreciate that some of you may have a close knowledge of the operation of that legislation but I hope that all of you can understand that the rigidity of the legislation, though solving some problems, produces others, subsumed generally under the head of "unfairness", meaning a failure to take account of all relevant circumstances. If however, one seeks to meet these complaints with greater flexibility and a re-introduction of some element of discretion, one open the door again to uncertainty and another kind of "unfairness", that is, the treating of similar cases differently.



What follows from this is that legislation is necessarily incomplete and legitimately open to judicial refinement in the process of application and that at least insofar as the interpretive community is sufficiently broadly-based that refining process is not overly open to challenge as being "undemocratic". It may be, too, that those who revere legislation as "democratic" and condemn judicial lawmaking as "undemocratic" have an altogether too favourable notion of the processes of statute making.



I turn therefore to the Drafting Process in general and the pre-Parliamentary stages in particular. By the time parliament gets to consider legislation, in the form of a Bill, the product is already as near to a finished statute as it is possible to get. It is widely understood that [12] "...most legislation is conceived, drafted and all but enacted in Whitehall" (Miers & Page, p 39). But if that is so, a very significant part of statutory law-making is arguably no more democratic than judicial lawmaking and clearly much less open to public scrutiny.

Of course, many parliamentarians would argue that parliamentary scrutiny is a real not a formal hurdle and that members have a hands-on involvement in primary law-making. [Tony Blair recalls parliament ... Private Eye Cartoon September 1998 ... as " that body which used to decide before I did"] But that does seem to be a dated view, not least because nearly all legislation is initiated by government and because of the influence of the party system, whipping members into line behind government policy. Accordingly, there is an [13] "... almost total exclusion of the House of Commons from the processes whereby legislative initiatives are decided upon and formulated" (Miers & Page, p 43).



To be sure there is a system of pre-legislative committees but any contribution that these might make is constrained by the rigid legislative timetable [14]:- "There is an inherent contradiction between [the House of Commons] wanting to 'involve itself at an earlier stage in the preparation of certain kinds of legislation' and spending about half the time of the House examining Bills. For if 'earlier stage' means a formal legislative stage, the likelihood is that there will simply be a Chinese game of names but no real progress; but if it means getting in on the basic processes of inquiry, discussion and opinion-formulation that begin to make legislation seem needed, this can only come through general debates and through reports of committees which, in turn, need debating - for all of which time must he found. More fundamentally the need for legislation emerges from administrative processes. The House will only get in at a significantly 'earlier stage' if it tightens its scrutiny generally of all major processes of administration. . . " (Miers & Page p45, citing Crick, The Reform of Parliament, 2nd edn.,1967, p227) So these committees appear not to be a great success.



Better, perhaps, is the system of departmental select committees set up in 1979; their involvement is on their own initiative, not governments but even these committees were not envisaged as having any specific responsibility for legislation, [15] "especially if this was to disrupt their ordinary programme of scrutiny and oversight" (cited Miers & Page, p 46). So, despite occasions influence as with the repeal of the so-called "sus" laws by section 8 of the Criminal Attempts Act, 1981, their role does not involve any generalised participation in the preparation or passage of legislation.



Although the Parliamentary Counsel Office was established 1869 it was not until 1945 that the practice was settled that government bills (not including those for Scotland) were exclusively drafted in that Office. By 1989 there were 30 parliamentary draftsmen and in Scotland, the Lord Advocate's Department has 10 Counsel. (There are formidable problems in drafting government bills affecting Scotland - see Lord Mackay, 1983 Stat L R 68). The draftsmen and those instructing them are unelected civil servants and their primary function is to express government's intentions as accurately as possible in legislative form. This means, in practice, seeking to extirpate as far as possible interpretation of legislation in any way other than the government wishes. This, as already noted, leads to cumbersome and detailed legislation.



Thus drafting may have to conceal the fact that the government was not able to obtain the agreement of all groups affected by the legislation and this may have to be done by deliberate ambiguity. Again, Ministers prefer Bills drafted in a manner that eases their passage. One example relates to the environmental impact of legislation facilitating construction of the Conway Tunnel. The building was expected to do very significant environmental harm (including the destruction of salmon and mussel fishing and pleasure boating areas through the dredging of the estuary, so the draft legislation included a power vested in the Secretary of State to pay compensation. These provisions were highly profiled and attracted much of the parliamentary time available for debate; so much so that cl.21 under the heading "Miscellaneous and Supplemental" was passed into law with little, if any, debate, although it dis-applied a whole raft of environmental protection legislation, including those relating to the "level of noise which may be emitted in the course of carrying out operations".

There are other obstacles to achieving effective statutory law-making. We have already noted the indeterminacy of language and Professor Hart's observations about our "relative ignorance of fact" and our "relative indeterminacy of aim" which impact adversely upon meaning and therefore limit the extent to which parliamentary review can be effective. Further, what I call "standard-bearing terms" such as "what is reasonable" or "appropriate inquiries" or "fit and proper person" or "anti-competitive practices" or "suitable alternative accommodation" or "as soon as practicable" or the notion of "fairness" in one of its many guises are unavoidable. This, of course, opens the draft legislation up to a range of possible interpretations even at the point of enactment so that some members of parliament may not appreciate what the legislation may come to mean once enacted. Beyond that, there is a chronic shortage of legislative time which renders "continuous redesign" impractical. Every word has legal significance and therefore great care is necessary in formulating the Bill. Accordingly, a drafted Bill is difficult for critical members to alter readily, if at all, because they lack the special expertise of the parliamentary draftsman.



A. Draftsman and Instructing Department: Lawyers in the instructing department instruct Parliamentary Counsel. Instructions ordinarily

(1) contain sufficient background information to enable the draftsman to see in perspective and in context the facts and the problems which the measure is intended to meet;

(2)state clearly and fully its principal objects;

(3)state the means by which these objects are to be achieved; and

(4)refer to all known implications and difficulties, whether legal, social or administrative.



So the draftsman is given the opportunity to see what is wanted and draftsmen much prefer a free creative role unconstrained by words that may be sacrosanct because the minister has agreed them. Sometimes, too, the words used by ministers conceal the political fact that no real agreement may have been reached. In any event, the draftsman discharges a creative function. One distinguished draftsman (Kent) described it thus, [16] "... the draftsman holds the pen and plays a leading part in shaping the document" (cited Miers & Page, pp 59-60) The American draftsman, Dickerson, likewise considered it appropriate for the draftsman to educate the client department to assist it to make informed decisions, but he also advocated a more active role for the draftsman at the earlier stage of policy-making, with the aim of anticipating legal and drafting difficulties. Such very early involvement of draftsmen is rare in the UK other than where the Law Commission prepares a draft Bill as part of a final submission (Miers & Page pp 59 - 60). EG Theft Amendment Act, 1996





B. Main Steps in Drafting (pp 61-64)

Another distinguished draftsman (Hutton) says that a draftsman should -

(1) master the subject matter (2) ascertain in detail what primary and secondary effects the client wishes to secure or avoid; and (3) express the results in clear and unambiguous language. There are said to be five analytically distinct stages in drafting: (1) understanding

(2) analysis (3) design (4) composition (5) revision.



Clearly "understanding" is an obvious requirement, but "analysis" involves thorough consideration of existing law in general and a number of areas of special sensitivity, in particular: (1) personal rights and civil liberties (2) vested property rights (3) retrospective legislation (4) compliance, or otherwise, with international law (5) constitutional significance

(6) whether too bureaucratic (7) encroachment, if any, on the interests of other government departments and public bodies (8) prerogative powers.



"Design" includes order of provisions. Some of this is formal or conventional such as interpretation clauses, short title, commencement, savings and extent provisions, all of which go towards the end of the Bill but in respect of the substance of the proposed legislation, the draftsman has considerable discretion, subject as already noted in relation to legislation about the Conway tunnel, to the Minister's preferences for highlighting some and marginalizing other substantive matters.



"Composition" can be a highly creative activity, even to the extent of coining new words having specific meanings within the context of a particular statute, it necessarily takes place against the background of the need for legal compatibility. The draftsman's room for manoeuvre is almost always constrained by the structure and language of existing statute law.



"Revision" is necessitated by the Bill being subjected to amendments in the legislative process, and this is frequently the subject of criticism because it may be very difficult within a complex piece of legislation with carefully integrated provisions to add or subtract yet maintain coherence and logical structure. That being so, oftentimes amendments do not greatly alter the initial scheme of the legislation but satisfy critics that some change has been made.



C Scrutiny: not much other than those provided by the parliamentary stages of the legislative process But NB time constraint [17]: ".. . on the one hand, how to find time within limited parliamentary hours for disposing of the growing mass of business which devolves on the Government; and on the other hand, how to reconcile the legitimate demands of the Government with the legitimate rights of the minority, the dispatch of business with the duties of Parliament as a grand inquest of the nation at which all public questions of real importance find opportunity for adequate discussion." (cited Miers & Page, p 68)

Any change in procedures in order to facilitate governments' legislative programmes restricts the rights and opportunities accorded to backbench members, yet the only limits on reform of legislative procedures are contained in vague and unwritten conventions of the constitution, such as [18] "... the power of the majority should not be used to steamroller into silence the protests of the minority" (Butt, cited Miers & page, pp 72-73). There is some fine rhetoric addressed towards protecting minorities but it is not clear whether that represents only hopes and fears rather than realities [19]:- "Protection of the minority is, therefore, in the British Parliament no mere privilege of the minority for the time being: it is a vitally important institution developed in the highest interests of a nation ruled by Parliament" (Redlich, cited Miers & Page, p 73)

One aspect of this sensitivity to minorities is the existence, by convention, of an official opposition which has an important role not only in the political but also the legislative life of the nation: Chief beneficiary of this convention is the opposition [20]: "Thus Cabinet control of Parliament is exerted - at a price. The Government can only obtain the actual connivance of the official Opposition by sharing with it the planning of the [legislative] timetable, and the responsibility for keeping the debates within the time limits they have agreed upon. [There is] continuous and intimate co-operation of the Government and Opposition Chief Whips through the usual channels" (Crossman, cited Miers & page, p 74) So there is a high degree of artificiality the formal stages ("readings") which cannot be understood except against the backdrop of collusion [21]:- "It's as though there had been one staff sergeant major running the British and German Staffs in World War I and it's this which really keeps the House of Commons running and enables us to have so few misunderstandings between the two Chief Whips on either side." Crossman, cited Miers & Page, p 75) Thus although the government formally possesses the capacity to dominate the legislative process through its party majority ... in practice, the emphasis is on inter- and intra-party co-operation.

Formal Stages

1 first reading;

2 second reading

3 committee

4 report

5 third reading



1 (first reading)purely formal/simply notice of the bill

2 (second reading) approval in principle [22]: "... the most important stage through which the Bill is required to pass; for its whole principle is then at issue, and is affirmed or denied hy a vote of the House..." (Erskine May, cited Miers & Page, p77) but NB government majority means that normally, the second reading is easily carried. Thus, 79% of bills from 1945-1983 received unopposed second readings

3 (committee) Most bills go to committee; those that don't being of "constitutional importance" [wide, vague] are taken on the floor of the House because all MPs should have an opportunity to participate in discussion. In practice that is difficult, and some seriously important bills are simply not adequately considered. Amendments may be politically inspired [23]: "The purpose of many Opposition amendments is not to make the bill more generally acceptable but to make the Government less generally acceptable." (Griffith, cited Miers & Page, p82). [24] "It has been as rare for ministerial amendments to be rejected as for other members' amendments to be successfully moved against Government opposition." (Griffith, cited Miers & Page, pp 82-83). The stats. from Griffiths' research are impressive. Of successful amendment, 93.7% were moved by Ministers; during the same period only one ministerial amendment failed; only 4.3% of amendments moved by the Opposition and 9.2% of those moved by government backbenchers succeeded. Indeed, [25] "If the government cannot command a majority in the House or in the Committee, something is wrong. . . . On British parliamentary principles, it is not merely the usual thing but also the normal thing for the government to win." (Wheare, cited Miers & Page, p 83).

It is easy to be cynical [26], "It is utterly futile to have this method of taking a Bill to pieces in order to improve it and moreover it's utterly debilitating. The Government backbenchers waste their time in Standing Committee, where they are hardly allowed to speak because that would prolong the business and anything they say may provoke another Tory speech. The opposition arguments are amateur and bogus, because half the time they don't really understand the details of the clauses they are discussing. . . From time to time dramatic Second Reading debates are staged and the Bill rolls along, getting through without any critical dissection. It is this kind of thing that brings Parliament into disrepute and our modern backbenchers find it quite intolerable." (Crossman cited Miers & Page, p84). [27] "We are convinced that whatever view is taken of the purposes of committee stage, whether it is seen as an opportunity to scrutinise Government's proposals and genuinely to improve a bill, or primarily as an opportunity to draw attention to weaknesses in it, or just to harass Ministers, the House as a whole expects its committees to give their attention to all parts of bills. The belated imposition of timetables means that this is most unlikely to happen in bills arousing greater political controversy." (Crossman, cited Miers & Page, p.86)



4 (report) and 5 (third reading) and so to the Lords. The Lords have been much more active in amending and opposing legislation in recent times, especially given the removal of all but a few hereditary members, and, subject to debates as to its membership, there is a persuasive case, based upon volume of legislative business, for a second chamber. Even in 1917 extending the legislative role of the House of Lords was under discussion. The all party conference on the reform of the Second Chamber appointed in 1917 under the chairmanship of Lord Bryce attributed three legislative functions to a reformed upper House:

"(1)The examination and revision of Bills brought from the House of Commons, a function which has become more needed since, on many occasions, during the last thirty years, the House of Commons as been obliged to act under special rules limiting debate

(2) The initiation of Bills dealing with subjects of a practically non-controversial character which may have an easier passage through the House of Commons if they have been fully discussed and put into a well-considered shape before being submitted to it.

(3) The interposition of so much delay (and no more) in the passing of a Bill into law as may he needed to enable the opinion of the nation to be adequately expressed upon it. This would he specially needed as regards Bills which affect the fundamentals of the Constitution or introduced new principles legislation; or which raise issues whereon the opinion of the country may appear to he almost equally divided." (Cd 9038 (1918), p 4, cited Miers & Page,p 92)



It is the third of these functions that excites controversy about the future of a Second Chamber. The evident ability of the Lords to inflict defeats on the Government, when contrasted with the impotence of the Commons, has worked to obscure the fact that Conservative Governments historically possessed a critical advantage over their rivals in that they were by a comfortable margin the single largest party in the Lords with about four times as many 412 compared to the next largest party. A conservative Government is vulnerable to challenge or defeat in the Lords but when it really matters, "backwoods Peers" can be relied upon to further the government's policy as in May, 1988 when they defeated an amendment to the government's Local government Finance Bill. However that has been partly addressed - as I think unsatisfactorily - by the House of Lords Act 1999



Royal Assent: A "matter of form" not withheld since 1707. So one may ask whether this is a dormant "power", de facto unused but de jure available; or has the power itself withered away through non-use so that there is no de jure power to refuse. It is plain that the Royal Assent is - as a matter of fact - still treated as a necessary step in the legislative process and it is also plain that there is a widely held belief - indeed a "convention of the constitution" that the monarch could not nowadays constitutionally refuse to assent.



Assessment (pp 94-97): Parliament is not an independent decision-making body and what is presented to Parliament in the form of a Bill is in substantial measure a finished product to which the Government is committed. Government has a majority ... it is seldom compelled to withdraw or to substantially modify measures, and that it is even less frequently defeated.