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The process of lawmaking

Prepared by The Parliament Secretariat
The Red House, Port-of-Spain

What are laws?

All organizations need rules to function. Society, as the most complex of organizations, needs a large variety of rules to govern relations with and between its members. Because society is constantly changing, these rules need regular updating, and new rules need to be made to meet new circumstances.

There are two sorts of rules which regulate the activities of society. There are customs and conventions, and there are laws. There are two types of law - common law and statute law. Common law is made by the decisions of judges in particular cases. Statute law is made by a legislative body (a Parliament). It is with statute law that this article is concerned.

Each country has its own laws and Trinidad and Tobago is no exception. As a nation, it has its own laws.

The Parliament, by section 39 of the Constitution, comprises the President and the two Houses, the Senate and the House of Representatives. All three constituent parts of the Parliament are involved in the process of making a law.

A proposal for a new law, or for amendments to an existing law, can be initiated in either House (except for “money” bills - see “Powers of the Houses in respect of Bills”). When introduced into a House of Parliament, a proposal for a new law or for amendments to an existing law becomes known as a bill. After a bill has passed both Houses it is presented to the President for assent, or approval. The grant of assent which is done in the name of the President, converts the bill into an Act-an Act of the Parliament of the Republic of Trinidad and Tobago. It is then part of the law of the land.

An Act, although assented to, does not necessarily come into immediate operation. In fact there is often a delay between the assent and when the Act comes into force.

Draft Laws - Bills

A bill is a draft of a legislative proposal. It can consist of proposals to deal with any matter affecting peoples lives such as the export and import of certain goods or measures to deal with importation of medical supplies.

Types of Bills

Private Bills usually affect the private rights or interests of particular persons such as corporate bodies, a club or a church.

Public Bills or Government bills deal with matters of general,public interest affecting the entire citizenry such as the prices of goods and services or traffic regulations.

Most bills introduced into the Parliament are sponsored by the Government. The majority of government bills are introduced first into the House of Representatives because that is the House where the Government is based, and where most Ministers are located. It is also the House with the “financial initiative” in respect of “money” bills. However, government bills (except “money” bills) within the portfolios of Senate Ministers are usually first introduced into the Senate.

Draft Laws – Bills Continued

Government Bills may originate from a variety of different situations. For example, someone, based on his working experience, may see the need to forbid a particular practice and may refer the matter to his immediate supervisor. The observation continues to be considered at higher levels until it comes to the attention of the Minister responsible for the subject matter under consideration.

Should the Minister see the need for legislative action he puts the proposal to the Cabinet for its approval, together with a request that the Attorney General and Minister of Legal Affairs be directed to draft the legislation. When the proposal is accepted by the Cabinet, the Attorney General is directed to draft the legislation.

Drafting of Laws

Two departments, both falling under the aegis of the Office of the Attorney General and the Ministry of Legal Affairs are responsible for the drafting of Public Bills. These are:

  1. the Office of The Chief Parliamentary Counsel or Legislative Drafting Department which is responsible:
    1. for the drafting of original legislation, that is, written law relating to an area of activity not already covered by existing written law; and
    2. for amendments to existing written laws.
  2. the Law Commission, the function of which is to keep all law applicable to Trinidad and Tobago under review by inviting suggestions from the public, with a view of development and reform. This includes modification of any branch of law, and the repeal of outdated laws.

In order to ensure that a Bill when enacted is legally sound and functional, before the drafting is commenced, Parliamentary Counsel undertake a detailed study of a number of factors including:

  1. the circumstances which gave rise to need for the legislation; and
  2. the state of the existing law on the particular subject to determine whether there is a real need for additional legislation.

While the Bill is being drafted, consultation is done with the various personnel for the Ministry at whose request the Bill is being prepared.

When the draft Bill meets with the satisfaction of that Ministry, the approval of the Cabinet must be sought before it is sent to the House of Representatives or the Senate.

Generally, for a Bill to become law it must be passed by the House of Representatives and the Senate, and it must receive the assent of the President of the Republic of Trinidad and Tobago.

The Form of a Bill

The major elements of a bill are described below:

Long title

Every bill begins with a long title which sets out the purpose(s) of the bill or which provides a brief description of its scope.

Preamble

The preamble states the reasons why the enactment proposed is desirable, or else it states the objects of the legislation. Not used often.

Enacting formula

This is the short paragraph which precedes the clauses of a bill. It is worded as follows:

“BE IT ENACTED by the Parliament of the Republic of Trinidad and Tobago as follows:“.

Short title

The short title is the name by which a bill is to be commonly known.

The short title of the bill is taken from clause 1, where the short title of the Act is specified, e.g.: “This Act may be cited as the Bail Act, 1994.“. A bill to amend an Act has the word “Amendment” in its short title, e.g., The Trinidad and Tobago Free Zones (Amendment) Bill, 1995.

Commencement provision

Usually to be found in clause 2, the commencement provision specifies when the Act is to come into effect. This may be the date of assent by the President, a date to be fixed by proclamation, a particular nominated date or some combination of these to provide for different sections or parts to come into effect at different times.

Definitions

A definition or interpretation clause, usually clause 3, sets out the meanings of certain words and expressions as they are to be understood in that bill. Definitions can also appear elsewhere in the bill.

Clauses

The substantive provisions of the bill are contained in the remaining clauses. Clauses may be divided into subclauses, subclauses into paragraphs and paragraphs into sub-paragraphs. Once a bill has become an Act, the clauses become known as sections, and subclauses as subsections.

Parts, divisions

A bill (or Act) as a whole may be divided into broad subject groupings known as parts. Each part can be divided into divisions and each division into subdivisions. Each part or division usually contains a number of clauses.

Schedule

Matters of detail may be appended to a bill in the form of a schedule (e.g., a table of Acts to be repealed, an agreement or convention, a form of words for a document, the wording of an oath or affirmation, a plan, minor amendments of a technical nature, etc.).

Explanatory Note
Bills introduced in the Parliament are accompanied by an explanatory note located at the beginning of the Bill. These notes form no part of the Bill but are intended only to indicate its general purport.

Powers of the Houses in respect of Bills

The two Houses of Parliament have equal powers in respect of all proposed laws (or bills), with the exception of certain financial measures. These are specified in sections 63, 64 and 65 of the Constitution of the Republic of Trinidad and Tobago.

Section 63 provides that proposed laws which appropriate revenue or moneys or impose taxation (commonly referred to as “money” bills) shall not originate in the Senate. This reflects the “financial initiative of the Government”-the principle that only the Government may initiate or move to increase appropriations or taxes.

Control of expenditure is Parliament’s greatest power and both Houses are equally involved in the granting of funds to the Government. However, as the Government is based on the House of Representatives, it is the prerogative of that House to initiate taxing and appropriation bills.

Section 63 also provides that except on the recommendation or with the consent of the Cabinet neither House shall-

  1. proceed upon any bill, including any amendment to a bill, which, in the opinion of the person presiding, makes provision for any of the following purposes:
    1. for imposing or increasing any tax;
    2. for imposing or increasing any charge on the revenues or other funds of Trinidad and Tobago or for altering any such charge otherwise than by reducing it; or
    3. for compounding or remitting any debt due to Trinidad and Tobago;
  2. proceed upon any motion, including any amendment to a motion, the effect of which, in the opinion of the person presiding, would be to make provision for any of the purposes aforesaid, or
  3. receive any petition which, in the opinion of the person presiding, requests that provision be made for any of the purposes aforesaid.

Although the Senate cannot initiate “money’ bills, it can amend “money” bills. Apart from the specific constitutional limitations of sections 63, 64 and 65, the Senate has equal powers to introduce or amend any proposed law.

The Stages of a Bill

Within each House there are steps, or stages through which a bill must pass. These are: first reading, second reading, committee of the whole, report from committee of the whole, third reading.

The standing orders (or rules) of each House provide for bills to be taken through the different stages on different days. The historic purpose of this was to prevent surprise, and to ensure that each bill was considered carefully and without haste. The different stages provide different opportunities to consider a bill-first overall or in principle, then in detail with opportunity for amendments to be made, and, finally, to enable reconsideration and a “last look”.

Today, while a bill still has to pass through each of the stages established by the standing orders, the provisions requiring consideration of the various stages on different days are usually suspended by motion or by leave (i.e., the agreement of the majority of Senators or Members, as the case may be, present in the chamber) in order to eliminate unnecessary delay.

Nevertheless, unless the bill is urgent, it is still the case that usually several sitting days will intervene between the motion for the second reading and the vote on the second reading, to provide time to consider the bill.

As the majority of bills are government bills introduced in the House of Representatives, we will follow the steps such a bill goes through in the process of becoming an Act. If a bill is introduced in the Senate, then it would proceed through the various Senate stages before being read a first time in the House of Representatives.

Government Bills (except “money” Bills) may also be introduced first in the Senate. Such Bills proceed through their Senate stages before consideration in the House of Representatives.

Private Bills can also be introduced in either House and proceed through the same stages in both Houses as Government Bills. Private Bills for incorporation of bodies/organisations by Acts of Parliament are required by Standing Order to be referred to a Special Select Committee of the House in which it was introduced after the second reading.

Introduction/ First Reading of Bill

Subject to certain conditions as outlined in the Standing Orders, any Member of the House may seek leave to introduce a Bill of which he has given notice. In the case of a Government Bill, The Cabinet (Executive Government) approves draft legislation and its introduction into Parliament.

Notice of the Introduction of a Bill on behalf of Government, that is the Cabinet decision to introduce a particular piece of Legislation is conveyed to the Clerk of the House by means of a Cabinet Minute and may be entered on the Order Paper for the day following the day which it was received.

In practice, the Chief Parliamentary Counsel or Law Commission (Departments of the Office of the Attorney General) will forward copies of the Bill to Parliament and if it is not expressly stated in the Cabinet Minute, the Leader of the House will indicate when and in which House the Bill is to be introduced.

The Bill will be referred to by its “Short Title” and placed on the Order Paper of the particular House under the Heading “Introduction of Bills” with the name of the Minister in Charge of the Bill written beneath it-

e.g. The Appropriation Bill, 1995
(By the Minister of Finance)

A copy of the Bill is circulated to Members together with the Order Paper so that they can familiarize themselves with the proposed Legislation. The Clerk is responsible for having Bills published in the Trinidad and Tobago Gazette as soon as possible. The Gazetted copy of the Bill is also circulated to Members.

The First reading is a purely formal procedure. The Clerk simply reads the name of the Bill and the Minister in Charge when the item is called. Bills are made available to the public after this stage.

In the House, an interval of not less than five days must elapse between the first and second reading of a Bill, whereas in the Senate an interval of not less than fifteen days unless the House or Senate, on motion made and question put, agrees to proceed with the Bill at an earlier date or forthwith.

In the normal course of things, the Bill will be listed on the subsequent Order Paper under the Heading “Bills Second Reading” under the Item-“Public Business, Government Business” if it is a Government Bill or under “Private Business” if it is a Private Member’s Bill or a Bill seeking incorporation for an organization.

With increasing regularity, sporting bodies, charitable organizations and various churches have been seeking incorporation by Acts of Parliament. This is done by way of a petition presented by a member of the House on their behalf to introduce a Private Bill for the incorporation of the particular organization. This is different from a Private Member’s Bill.

In our Parliament, it has not been the practice for Members of either House to seek leave to introduce Private Bills. This has been so for many reasons, but mainly because of the limited number of sitting days in a Session and the fact that “Private Members Day” is only once a month in either House. In addition, in recent Parliaments the Government Legislative Agenda has been very heavy and some Private Members Days, have by agreement, been utilized to debate Government Matters.

Nevertheless, history was made in the 1994-1995 Session of the Fourth Parliament when Senator Diana Mahabir-Wyatt successfully sought leave to introduce a Private Bill entitled “The Household Survey and Counting Unremunerated Work Bill, 1995”. This Bill was passed in the Senate but lapsed upon dissolution of Parliament with effect from October 6, 1995. It was reintroduced and passed later that year.

Second Reading

The motion for the second reading is usually moved by the Minister in Charge of the Bill. In support of the Motion, the Minister makes a speech in which the principles and purposes of the Bill are outlined. The Minister may speak for a maximum period of seventy-five (75) minutes in the House and sixty (60) minutes in the Senate. At the end of the Minister’s presentation, the Presiding Officer will propose the question for debate

At this stage, members wishing to express their views on the draft legislation will get an opportunity to do so. But fast, the member must "catch the eye” of the Presiding Officer immediately after another member has concluded his contribution. This is usually done by a show of the hand by a member wishing to speak. Each person is allotted a maximum of forty-five minutes and a possible extension of thirty minutes to make their contribution. Extensions are granted by leave of the House on motion made by a member.

The debate on a Bill may go on over a week or even longer, depending on the number of members wishing to speak and the frequency of Sittings. During the debate, amendments may be proposed and circulated to other members.

At the end of the debate, the Minister who originally piloted the Bill replies. In his reply, he deals with all the comments made or objections raised and seeks to convince members to vote for the Bill.

The Presiding Officer then “puts the question” that the Bill be read a second time by saying “those in favour say ‘aye’. Those against say ‘noe’.” If the majority says “aye”, the Presiding Officer will then say “the ayes have it”. At this juncture, any member can call for a “division”. Once a division is called, a vote must be taken to determine how many have voted for or against. If the House approves the second reading of the Bill, the Clerk then reads the “Long title” of the Bill.

At this stage, a Bill may be referred for consideration to a Select Committee or a Joint Select Committee by motion made immediately after the second reading.

When a Bill has been referred to a Select Committee, no further proceeding shall be taken until the Select Committee has reported. When a Bill has been reported from a Select Committee a motion has to be made for the report to be adopted and a debate can take place or if the motion is agreed to without amendment, the House may proceed to the third reading of the Bill as reported.

Normally however, when the Bill has been read a second time, the Minister responsible will move that the House resolve itself into a Committee of the whole House to consider the Bill “clause by clause”. Here the members of the House become a Committee which examines the Bill more closely. The Presiding Officer takes up a position at a lower table on the right of the Clerk and is called “Chairman” when so seated. The individual clauses of the Bill are examined and suggested amendments to each clause are discussed and either accepted or rejected at this stage.

The Chairman, will then put the question that the bill (as amended) be reported to the House. Once this question is agreed to, the Committee’s deliberation is reported to the Presiding Officer (who has meantime will have resumed his seat) by the Minister responsible.

Report from Committee of the Whole

On the resumption of the House, the Minister in Charge of the Bill shall report to the House that the Bill was considered in Committee and passed with or without amendment(s). The Minister will then move that the Bill be read a third time and passed.

If any Member desires to delete or amend any provision contained in the Bill as reported from a Committee of the whole House, he may at any time before the Minister rises to move the third reading, move that the Bill be either wholly or in respect of only some particular part or parts be recommitted to the Committee of the whole House. No notice of such motion is required.

Reference of Bills to Select Committee

In either House, a bill may be referred to a Special Select Committee of the particular House or to a Joint Select Committee of both Houses for detailed inquiry away from the floor of the Chamber. Further consideration of the bill is postponed until the Committee has reported.

The reference of a bill to a Select Committee is usually moved after the bill has been read a second time and before it is considered by a Committee of the whole House.

The purpose of such inquiry is to enable a small group of Parliamentarians to give more detailed consideration on a bill or certain aspects of it than is possible on the floor of the Chamber. A committee is usually given specific terms of reference, and has the power to summon witnesses and obtain evidence from the public, interested persons and relevant Government Agencies. Once a Committee has reported, its report and the bill is then considered by the House in which the Bill was first introduced. In the case of Joint Select Committees, the report will also be laid in the other House and debated.

Third Reading

When the motion for the third reading of a Bill is made, no amendment(s) may be proposed and the question shall be put without debate. Corrections of errors or oversight may be made by the Presiding Officer before putting the question for the third reading. Any member can call for a division at this stage. The Bill can be rejected by a negative vote.

If a Bill had been referred to a Select Committee of a House or a Joint Select Committee of both Houses, the Minister in Charge of the Bill will move the motion for the third reading only after the report of the Committee has been adopted.

After the motion for the third reading has been agreed to, the Clerk reads the long title of the Bill.

When a Bill has been read a third time and passed in one House, a printed copy of it is signed by the Clerk of that House and endorsed by the Presiding Officer of that House and then transmitted to the other House for its concurrence.

When a Bill originated in one House is read a third time and passed with amendment(s) in the other House, the Clerk of that House shall cause the said amendment(s) made to the Bill to be entered in the original copy of the Bill received and return the Bill with the amendment(s) for the concurrence of that House with respect to the amendment(s).

Special Majority Vote

Some Bills brought to Parliament infringe rights established in the Constitution and must be passed with a special majority. At the end of such a Bill, there is a certificate which clearly states the required majority has been obtained. Section 54 of the Constitution of the Republic of Trinidad and Tobago spells out the types of majorities required for laws infringing various sections of the Constitution.

Presidential Assent

A Bill must pass through all these stages in each House of Parliament and any amendment(s) made in one House must be agreed to by the other House before it can be presented to His Excellency for Presidential Assent. Once a Bill has been passed by both Houses, special ASSENT copies are prepared for the signature of the President of the Republic. When the President signs, the Bill becomes an Act. This gives the legislation the status of Law.

Publication and Commencement

Once Presidential Assent has been obtained, it is the duty of the Clerk of the House to have the Act printed and published in the Trinidad and Tobago Gazette. The Gazette notification shows the Act No., the Short Title and the date of Assent.

An Act can come into effect in one of several ways, namely:

  1. Date of Assent;
  2. A date to be fixed by Proclamation;
  3. A particular or specified date or dates, or;
  4. A combination of the above.

If there is no commencement date, the date of Assent is the date the Act becomes law.

Acts of the Republic of Trinidad and in which they are assented to.

Delegated Legislation

The making of Statute Law is a function of Parliament and not the Executive Government (Cabinet). However, Parliament frequently delegates to the Executive Government a limited power of Legislation, namely the power to make regulations.

This is often referred to as delegated or subsidiary legislation and done by means of a provision in an Act empowering the Executive Government (Minister responsible) to make laws in the form of regulations, by-laws, orders and rules for matters prescribed in the Act or which are necessary to give effect to the Act.

All subsidiary legislation has to be tabled in both Houses and must be published in the Trinidad and Tobago Gazette when laid, passed or approved as the case may be.

Terms used in Respect of Documents before Parliament

Reports are LAID.
Bills are INTRODUCED.
Bills when ASSENTED TO become ACTS.
Resolutions are PASSED.
Orders are APPROVED when subject to AFFIRMATIVE Resolution.
Orders are LAID when subject to NEGATIVE Resolution.
Regulations are APPROVED when subject to AFFIRMATIVE Resolution.
Regulations are LAID when subject to NEGATIVE Resolution.
Rules are APPROVED when subject to AFFIRMATIVE Resolution.
Rules are LAID when subject to NEGATIVE Resolution.

Application and Interpretation of Laws

Deciding what the law should be is the Parliament’s responsibility. Deciding how a law applies in a particular case is the function of the courts. Courts also finally determine what a law means. Thus as well as applying the law, the courts interpret the law. Administration and enforcement of the law is the responsibility of the Government.

Everyone who is, or may be, affected by a law may be involved in its interpretation-deciding what it means and how it will affect them: everyone is expected to know the law as it applies to them. However, because there are many laws, and some are complex and use difficult legal expressions, on occasions advice may need to be sought from lawyers, who are trained to interpret the law.

Most important disputes on the meaning, or intent of a law, sooner or later end up in a court of law. The court then makes a decision on the “correct” or intended meaning, and this decision will stand unless subsequently overruled by a higher court or until the Parliament passes an amending law.

Parliament Secretariat