Parliamentary Function of Lawmaking

AGORA administrator's picture
 
 
Parliaments worldwide perform three core functions: to represent citizens interests, to pass laws, and to monitor the actions of the government. They perform a legislative function because, in addition to introducing legislation on their own, they have the power to amend, approve or reject government draft laws. This function is strongly linked to the representation function in that it is through the will of the people that the parliament receives its authority in democratic countries.

Key functions of parliament: lawmaking

This is the process by which a parliament considers draft legislation and ultimately approves its final form. Almost all parliaments have a role to play in reviewing draft laws before they are adopted, including the ability to recommend amendments to draft laws. Some parliaments are more active in the development of draft laws prior to debate in the chamber. Others rely almost exclusively on the government to develop, draft and introduce laws for debate. Special rules often apply to te legislation containing the annual state budget – commonly considered one of the most significant laws reviewed by a parliament. 

Source: Parliament’s Role in Implementing the Sustainable Development Goals: A Parliamentary Handbook  

The exact means by which a parliament is engaged in the lawmaking process varies depending on the type of parliamentary system. In Westminster systems (i.e. – those that derive from the British system), the executive branch of government develops most draft laws and the main role of parliament is to review, amend and pass laws. Individual MPs can introduce draft laws (known as Private Members Bills) but few of these draft laws reach the committee stage and even fewer are ever passed.
 
In presidential systems, individual MPs have a greater opportunity to produce draft laws before they are reviewed, amended and passed. Some hybrid systems have developed other methods of developing draft laws, including providing authority to parliamentary committees to develop and introduce draft laws and, in rare cases, some parliaments allow citizen initiatives to introduce draft laws for debate.
 
In most parliaments with permanent committees, proposed legislation is introduced formally on the floor of the house, and then referred to one or more committees with jurisdiction over the legislation. Westminster systems typically hold draft laws on the floor for a second reading and a debate and vote on the draft law “in principle”. After this, draft laws are referred to committees where committee members typically work on technical details and amendments.
 
In presidential systems, draft laws introduced are immediately referred to committee, and those draft laws over which more than one committee has jurisdiction may be referred to multiple committees. An education draft law with financial implications, for example might be referred to both the education and finance committees. In political systems with a very large volume of legislation (more than 10,000 draft laws are introduced each year in the US Congress, for example), most legislation never gets beyond committee.
 
If the parliament has two houses, draft laws may move through each house simultaneously, or through the houses consecutively. Two house parliaments generally devise methods of reconciling different versions of the draft laws.
 
For a parliament to be able to efficiently fulfill its legislative function, MPs must have the capacity to read and review draft legislation and amendments in order to interpret any policy changes and analyse proposed new rules. The staff of the parliament, especially committee staff, need to be well trained in legal drafting and legislative review processes. Committees also often rely on external expertise to assess the exact scope of a draft law and its consequences from diverse perspectives (for example legal, social, economic or environmental). This external expertise can be from within respective political parties or from academia or civil society.
 
Legislative strengthening programs for parliaments may have a key component that targets lawmaking capabilities. This type of assistance might include developing parliament-based research services, strengthening library and information systems, supporting the identification and engagement of expert consultants to committees, developing university intern programs for assisting committees, and strengthening legislative-civil society partnerships.
 

Legislation: Drafting and Review

Parliament has two key functions related to lawmaking. The first is to draft legislation and amendments to laws. The second is to scrutinize the draft laws before the parliament prior to adoption.
 
Drafting Legislation – There is a common but mistaken understanding that parliaments are the primary source for the drafting of new laws. The rate by which individual MPs draft laws depends on the parliamentary system, but most draft laws introduced to parliament have been initiated and drafted by the executive branch. Many parliaments provide the right to introduce draft laws to MPs, in some jurisdictions known as a Private Member’s Bill, but most of these draft laws are never debated. Some parliaments enable committees to develop and introduce draft laws. A small number of parliaments allow citizens to introduce draft laws where a minimum number of signatures have been obtained or where a referendum has been approved.
No matter where the draft laws originate, it is common for MPs to be able to move amendments to draft laws during debate, either in committee or during specific plenary sessions. However, legal drafting is a complex a detailed form of legal work, with few true experts, and many MPs do not have access to this expertise to enable them to draft legally sound amendments. For more information on legislative drafting, please click here.
 
Reviewing Legislation – No matter how a draft law is introduced into a parliament, it is the clear mandate of all parliaments to review and scrutinise the draft before it is approved. The review process has two aspects – one technical and one consultative.
There are usually several stages to the review of a draft law, thus preventing a parliament or government from passing a law too hastily. Many parliaments require that a draft law be tabled in the assembly for at least one or two days between stages of debate, allowing time for interested parties to be notified and for MPs to consider the ramifications of the proposal. Stages of the review process vary between parliaments but many include the following:
 
  • Committee Stage
  • Approval of the Draft Law in Principle
  • Clause-by-Clause Review
  • Final Adoption of the Draft Law
It is at the committee stage of the process, no matter when it occurs, that parliaments should be engaging citizens and interested parties and organizations to solicit their opinions on the proposed law. This is an opportunity for MPs and parliamentary groups to gain access to and ask questions of those that live and work within the subject matter of the proposed law and to hear their opinions and expertise on the topic, before proposing amendments or deciding whether or not to support the adoption of the law.
 
Such consultations can include formal public hearings or less formal opportunities to solicit feedback, including online submissions, field visits and town hall meetings.
 

For more information on legislation review and drafting functions, please click here.