1.1. Describe processes used for law making.

Question 1

What are the two main sources of the law?

Answer 1

• the government; through parliament.
• the judiciary.

Question 2

What is parliament?

Answer 2

UK is a parliamentary democracy. Means that most of the country’s laws are made by passing Acts of Parliament. Laws made by Parliament are often referred to as ‘statues’ or ‘legislation’.

Question 3

What is Parliament made up of?

Answer 3

• the monarch
• the House of Lords
• the House of Commons

Question 4

What is the monarch’s role in law making?

Answer 4

the monarch has only a formal role in law-making. The king/queen simply gives the Royal Assent - their agreement to the new law.

Question 5

What is the Lords role?

Answer 5

• HoL are called peers (800 peers).
• In past, all peers were noblemen and they were hereditary positions that passed from father to eldest son. However, today there are 92 heredity peers - also 26 CoE bishops and archbishops. Rest of the members are life peers who cannot pass their position onto their children.
• Main job of the Lords is to act as a ‘double check’ on new laws.

Question 6

What is the Commons role?

Answer 6

• HoC most important part of Parliament as it is made up of the elected representatives of the people.
• 650 members (MPs).
• Each MP is elected at a general election to represent a constituency.

Question 7

What is the role of the government?

Answer 7

• Main job is to run the country.
• Formed by political part that has majority of 650 MPs - prime minister is the leader of the majority party.
• Most proposals for new laws come from the government; a proposal for a new law is called a Bill.
• Bills must be agreed by both Houses and receive the Royal Assent before they can become laws.

Question 8

What is the green paper?

Answer 8

• Before putting Bill before Parliament, government usually published Green Paper.
• This was initial report to provoke public discussion of the subject.
• Often includes questions for interested individuals and organisations to respond to.

Question 9

What is the white paper?

Answer 9

• After the consultation, the government publishes a white paper, which is a document setting out their detailed plans for legislation.
• Often includes a draft version of the Bill they intend to put before Parliament.

Question 10

How does a bill become a law?

Answer 10

For a Bill to become a law, it must go through a series of stages in Parliament.

Question 11

Stage 1 of making a Bill: First reading.

Answer 11

The government first introduces the Bill into the Commons (occasionally Lords), where it receives a first reading. This is just a formal announcement of the Bill and is followed by a vote to allow it to move to its next stage.

Question 12

Stage 2 of making a Bill: Second reading.

Answer 12

At second reading, its main principles are considered and debated by entire HoC and a vote is taken. As the government has the support of a majority of MPs, they will usually win this vote. If so, the Bill moves onto the committee stage.

Question 13

Stage 3 of making a Bill: The committee stage.

Answer 13

Bill is now examined in detail by a small committee made up of MPs from different parties. The committee will report back to the whole House and often propose amendments to the Bill.

Question 14

Stage 4 of making a Bill: The report stage.

Answer 14

Report stage gives MPs opportunity to consider the committee’s report and to debate and vote on any amendments they may wish to make to the Bill. For major Bills, the debates may be spread over several days.

Question 15

Stage 5 of making a Bill: Third reading.

Answer 15

Report stage is normally followed immediately by third reading of the Bill. This is the final chance for the Commons to debate the Bills contents. No amendments are allowed at this stage - the House votes either to pass or reject the Bill.

Question 16

Stage 6 of making a Bill: The Lords.

Answer 16

At third reading, the Bill goes to the HoL, where it goes through the same stages as in the Commons. If the Lords have amended the Bill, it must return to the Commons so MPs can decide whether to accept/reject the Lords’ amendments. HoC has the final say as it is made up of the people’s elected representatives.

Question 17

Stage 7 of making a Bill: Royal Assent.

Answer 17

Once the Bill has passed by both Houses, it goes to the monarch for signing, known as Royal Assent. This is monarch’s agreement to make the Bill into an Act of Parliament or law and is a formality. The new law will now come into force immediately, unless the Act specifies that it will only apply for some later date (known as commencement order).

Question 18

Criminal Laws introduced by government and passed by Parliament.

Answer 18

• The Criminal Justice Act (2003) - introduced change in double jeopardy rule.
• The Crime (Sentences) Act (1997) - introduced mandatory minimum sentences for a range of repeat offences e.g. automatic life sentence for 2nd serious sexual/violent crime.
• The Dangerous Dogs Act (1991) - rushed due to moral panic, so many flaws become apparent.

Question 19

What are judicial processes of law making?

Answer 19

Judges can also make laws. This is done through two processes: judicial precedent and statutory interpretation.

Question 20

What is judicial precedent?

Answer 20

• A source of law-making where the past decisions of judges create law for future judges to follow.
• Based on the principle of standing by/following what judges have decided in previous cases.
• Means that where the point of law in a case today is the same as in the previous case, the judge should follow the decision made in the previous one. Treating similar cases the same way creates certainty, consistency and fairness in the legal system.
• Much of law has developed from following the decisions made in earlier cases. This helped create a single set of laws common to the whole country and so the system has become known as common law.

Question 21

Judicial precedent: the court hierarchy.

Answer 21

• Legal system has hierarchy of courts, with Supreme Court at the top and magistrates’ court at the bottom.
• A decision taken in case by a higher court automatically creates an original or binding precedent for all lower courts - one that they have to follow when dealing with similar cases.

Question 22

Judicial precedent: expectations to precedent.

Answer 22

2 main situations where a court does not have to follow precedent:
1. Distinguishing - a precedent from earlier case is only binding on a present case if legal principle involved is the same and if the facts are similar in both cases. The judge finds facts in the present case that are different enough from earlier one to allow them to reach a different decision and not have to follow the precedent of the earlier case.
2. Overruling - a court higher up the hierarchy state that a legal decision in an earlier case is wrong and overturns it.

Question 23

Example of overruling a precedent - case of R v R (1992).

Answer 23

A husband had been convicted of attempting to rape his wife. He appealed on the grounds there was a centuries-old precedent that a husband could not be guilty of raping wife because the marriage contract gave a wife’s ‘irrevocable consent’ to sex. But the appeal court overruled this on the grounds that the idea of irrevocable consent was unacceptable today as a couple are now seen as equal partners in a marriage.

Question 24

Statutory interpretation.

Answer 24

• Judges can also make a law by the way they interpret the statues/Acts of Parliament.
• A statue is a written law and so judges need to interpret the meaning of its words and apply them to the case they are judging.
• Judges have 3 main interpretation rules to help them do so: the literal rule, the golden rule, the mischief rule.

Question 25

Statutory interpretation: 1. The literal rule.

Answer 25

• Under this rule, judges should use the everyday, ordinary meaning of the words in a statute.
• However, one problem is that a word can have several different literal, dictionary meanings.
• e.g. R v Maginnis (1987) a case involving illegal drugs, different judges found different meaning of the word ‘supply’.

Question 26

Statutory interpretation: 2. The golden rule.

Answer 26

• Sometimes, the literal rule can lead to an absurd result and the golden rule allows the court to modify the literal meaning to avoid this.
• e.g. Adler v George (1964) - Adler argued he had not broken the law as 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.

Question 27

Statutory interpretation: 3. The mischief rule.

Answer 27

The mischief rule allows the court to enforce what the statute was intended to achieve, rather than what the words actually say.
- e.g. the Licensing Act (1872) makes it an offence to be drunk in charge of a ‘carriage’ on the highway.