4 - Making the law

Summary

Legislation and constitutional change

Since at least the nineteenth century, a first objective for lawyers has been to arrange legal norms logically and in a hierarchical fashion. This is the essence of both Dicey's nineteenth-century doctrine of parliamentary sovereignty and Hart's celebrated theory of primary and secondary rules (see Chapter 1), each of which seeks to establish when and why rules are binding and to be obeyed. The fact that the constitution is unwritten sets statute law at the apex of the hierarchy of legal norms; the prerogative powers, historical rival of parliamentary legislation, are nowadays subordinate to statute and those remnants of the prerogative legislative powers that remain in respect of colonial territories are controversial and subject to review by the courts. At the other end of the spectrum, the borders between law and non-law are not always easily discernible. It may often be hard to differentiate the confusing ‘ragbag of rules, regulations, orders, schemes, byelaws, licences, directives, warrants, instruments of approval or minutes’ that bear the label delegated legislation, from the confusing ragbag of directives, circulars, guidance, guidelines and codes of practice that clutter the desks – and computer screens – of bureaucrats. Discussion of this mass of ‘soft law’, generated by the use of rule-making as a standard technique of modern bureaucracy and e-governance, is reserved for Chapter 5.

A sharp line is commonly drawn between statute law, which falls into the field of constitutional law, and secondary legislation which, merely by virtue of being made by the executive or other authorised public bodies, falls within the purview of administrative law.