1.1- describe processes used for law making Flashcards
Parliament
A parliamentary democracy, the country’s laws are made by passing acts of Parliament, they are referred to as ‘statutes’ or legislation’. It is made up of 3 parts: the monarch, House of Lords and House of Commons.
The Lords
These are called peers, there about 800 peers. Today there are only 92 hereditary peers, there are also 26 Church of England Bishops and archbishops. The rest of members are life peers who cannot pass their position. Its main job is to double check new laws.
The Commons
Made up of elected representatives of the people, the 650 MP’s is elected at a general election to represent a constituency (geographical area).
The Government
Governments job is to run the country. It is made up of the political party that has majority of the 650 MPS’s. The prime minister as the leader of the majority party. Most proposals for new laws come from the government. A proposal is a bill.
Green Paper and White Paper
Before putting a bill before Parliament, the government usually publishes a Green Paper, this is an initial report to provoke a public discussion on the subject, it often includes questions for interested individuals and organizations to respond to. A White Paper is that after the consultation, this is publish as a document setting out the plans for legislation and often involves a draft version of the bill they intend to put before Parliament.
Green Paper and White Paper
Before putting a bill before Parliament, the government usually publishes a Green Paper, this is an initial report to provoke a public discussion on the subject, it often includes questions for interested individuals and organizations to respond to. A White Paper is that after the consultation, this is publish as a document setting out the plans for legislation and often involves a draft version of the bill they intend to put before Parliament.
Parliamentary stages of a Bill
First reading- formal announcement of Bill and followed by a vote. Second reading- main principles are considered and debated and a vote is taken. The committee stage- Bill is examined in detailed by a small committee then reported and propose amendments. The report stage- gives MP’s an opportunity to consider the committees report and debate on any amendments. Third reading- final chance for Commons to debate the Bills contents, no amendments allowed here, house votes. The Lords- Bill goes to House of Lords where it goes through same stages, if it has been amended must return to Commons and have final say. Royal assent- goes to the monarch for signing, changing Bill to act.
Judicial precedent
Where the past decisions of judges create law for future judges to follow. It is based on the principle of standing by or following what judges have decided in previous cases. (‘Stare decisis’).
Court hierarchy
Legal system has a hierarchy of courts meaning the Supreme Court is at the top and the magistrates court is at the bottom. A decision taken in a case by a higher court automatically creates an original or binding precedent for all lower courts.
Exceptions to precedents
Distinguishing- the judge has found the facts in the present case to be different from the earlier one and may choose not to follow the precedent. Overruling- where a court higher up in the hierarchy states that a legal decision in an earlier case is wrong and overturns it.
R v R (1992)
An example of a case being overruled, a husband had been convicted of attempting to rape his wife, he appealed on the grounds that there was a centuries-old precedent that a husband could not be guilty of raping his wife because the marriage contract gave a wife’s ‘irrevocable consent’ to sex. The judge decided to overrule this on the grounds that in marriage now, partners are seen as equal.
Statutory interpretation
The rules in which judges can follow in terms of interpreting the meanings of Acts of Parliament.
The literal rule
Judges should use the everyday, ordinary meaning of the word. One problem a word can have multiple different meanings. R v Maginnis (1987): a case involving illegal drugs, different meanings of the word ‘supply’.
The golden rule
Allows the court to modify the literal meaning of word. Adler v George (1964): it was an offence to obstruct Her Majesty’s Forces in the vicinity of a prohibited place, such as a naval base. Adler argued he had not broken the law because he was not literally in the vicinity of a prohibited place, but was actually in it. The court chose to apply the golden rule to avoid an absurd result and Adler was convicted.
The mischief rule
Allows the court to enforce what the statue was intended to achieve, rather than what the words. Corkery v Carpenter (1951): Corkery was found guilty even though he had been in charge of a bicycle, and it was an offence to be drunk in charge of a ‘carriage’ but the intention of the statute was to prevent any form of transport on the public highway, in usage when drunk.
