3 - Law-Making Flashcards
Describe green and white papers
Pre-legislative stage.
Green papers are issued by government departments and they are to gain views and opinions on the paper from interested bodies. Sets out the ideas and this stage allows the government to consult and get a feel of how it will be received. The government will usually act on the responses but they don’t have to.
White papers come after green papers and these have the firm proposals for the new law.
If a government already has firm views a white paper can be published without a green one,
Consultation is valuable and causes problems when it doesn’t happen (Dangerous Dogs Act 1991 - poorly made law)
Describe the different types of bills.
Come after the white papers and these are drafted by Parliamentary Counsel and are voted on in parliament.
Public Bills - introduced by government nod affect the whole country (Equality Act 2010). These are the most frequent.
Private Bills - affect only individual people or bodies not the whole country (University College London Act 1996)
Private Members’ Bills - introduced by single MPs, few become law because government set the parliamentary timetable and often leave these out (Only 20 selected by ballot each year to be put to parliament). (Abortion Act 1967 - also a Public Bill) - it is rarer but these can be made by Lords.
Hybrid Bills - mix of private and public - usually affect a small part of the country (Channel Tunnel Act 1987)
Describe the role of the House of Commons in the legislative process.
Voted democratically so is more important than HoL.
First Reading - formal procedure where the aims of the bill are read out, usually no discussion and there won’t be a vote.
Second Reading- the main debate on the whole bill. Usually focuses on the principles of the bill rather than the smaller details. There will then be a vote and there must be a majority of the bill to progress.
Then it goes to the Committee stage and it is thoroughly examined by between 16 and 50 MPs who are chosen specifically for the bill because of their qualifications or personal interests (whole house sits for finance), Committee can propose amendments and additions which will be voted on by the committee members before being suggested to parliament.
The Committee then reports back to HoC, additions and amendments are debated and accepted or rejected.
Third Reading - final vote on a bill, usually just a formality, unlikely to fail at this stage. If passed it goes to HoL
Describe the role of the House of Lords in the legislative process.
First Reading - short title and order made for the bill to be printed.
Second Reading - main debate, government ministers will answer questions and explain the bill. Then there is a vote with a required majority.
Committee Stage - detailed scrutiny of every part of the bill, any peer can participate in this, all amendments are discussed and it can take as long as they want.
Report Stage - They can all re-examine the bill and proposals or amendments and then this is voted on.
Third Reading - amendments can still be made as long ass it wasn’t considered before.
If there are any changes it returns to HoC for consideration, if there isn’t and it is passed it goes to the sovereign for royal assent (Royal Assent Act 1967).
If a bill is rejected by HoL it can be passed again in a year and if it goes through the HoC then it is immediately passed (Parliament Acts 1911 and 1949).
Describe delegated legislation.
Laws made by a body which is not parliament.
Usually parliament has to have made a ‘parent Act’ to all the delegation to happen (Police and Criminal Evidence Act 1984 gives powers to make Codes of Practice for the use of police powers)
Required because parliament has a limited schedule and lots of laws have to be passed.
Often used by councils, large bodies (e.g. airports) etc.
Describe Orders in Council
The Crown and Privy Council make these.
Effectively allows government to pass laws without going through parliament.
Usually used to transfer power between government offices (creation of the Ministry of Justice)
Or for emergency laws made under Civil Contingencies Act 2004.
Can also be used to alter laws (Changing cannabis upgraded to Class B - Enabling Act - Misuse of Drugs Act 1971).
Describe Statutory Instruments.
Rules and regulations made by government.
Government separated into ministries and they have power to change the law in their fields (Minister for Work can make work-related laws).
They can be very short (changing minimum wage), or be incredibly complicated (Chemicals Regulation Act 2009)
Usually made when its not complicated enough to require debate or too complicate for a debate in parliament.
Describe By-laws.
Made by local authorities and cover matters in their own area.
Usually made under Local Government Act 1982
Often involve traffic control, prohibiting certain activities in an are (no ball games).
They can be made by public corporations British Airports Authority makes by-laws for airports.
South West Train Limited Railway make by-laws und s129 Railways Act 1993
Describe how parliament controls delegated legislation.
Approval of the parent Act - initial control over what powers are delegated - this can be repealed.
Negative Resolution - Most statutory instruments are subject to this - it will become law unless rejected by parliament within 40 days. Very few are looked at but many are made.
Affirmative Resolution - Won’t become law unless parliament approves - the need for this must be in the parent Act (required for revised police Codes of Practice under PACE 1984)
Scrutiny by Committee - Can only check legislation once it has come into force, the review is also only technical not based on policy. Main grounds to refer back to parliament are: imposes a tax or charge, has retrospective effect. gone beyond enabling Act, made unusual use of the power or is unclear or defective.
Describe how the courts control delegated legislation.
A piece of DL can be challenged by the courts in the KBD. The challenge can be made on the grounds of ultra vires.
Procedural Ultra Vires - the procedure set out in the parent Act hasn’t been followed correctly, even if the outcome is fine. (Aylesbury Mushrooms).
Substantive Ultra Vires - The legislation goes beyond what is set out in the parent Act (R V Home Secretary ex parte Fire Brigades Union).
Wednesbury Unreasonableness - The legislation is so unreasonable that no one would consider imposing it. (R (Rogers) V Swindon NHS Trust - woman prescribed non-approved drug)
Describe the literal rule.
Judge gives the words their plain, ordinary, dictionary definition even if the result is not sensible (R v Judge of the City of London Court).
Whiteley V Chappell - D charged with impersonating someone who was entitled to vote, but since that person had died they weren’t entitled to vote so D was not guilty.
London & North Eastern Railway Co. V Berriman - railway worker killed while oiling the line, no compensation could be given because he was not ‘relaying’ or ‘repairing’ the line.
ADVANTAGES:
Democratic as it is exactly what parliament wants.
More consistent law.
Makes parliament be clear when making the law
Respects Parliamentary Sovereignty and Separation of Powers
DISADVANTAGES:
It isn’t possible to cover every situation in an Act
Words can have multiple meanings.
Leads to harsh sentences.
Unrealistic perfection of draftsmen
Describe the golden rule.
Words are given their literal meaning, but judges are allowed to avoid an interpretation that would lead to an absurd result.
If words have multiple meanings then the most sensible one is chosen. If the literal meaning of words leads to a repugnant result, judges can modify the words of a statute.
Re Sigsworth - D killed his mother, and should have inherited her estate under the law. There was no ambiguity in the Act but the judge didn’t want D to benefit from the crime so the judges changed the law.
ADVANTAGES:
Respects parliamentary sovereignty but still avoids repugnant decisions.
DISADVANTAGES:
Limited in its use.
It can’t do very much.
Describe the mischief rule.
Judges have more discretion to interpret legislation.
Judges look at what the common law was before the Act was made, look at what mischief the Act was trying to fix, and the court should aim to cover the mischief.
Smith V Hughes - prostitutes were on balconies and it was illegal to do it on the street, the Act attempted to make street prostitution illegal so the courts interpreted it to mean anything visible from the street.
ADVANTAGES:
Promotes the purpose of law, to produce a just result.
LC’s preferred method.
DISADVANTAGES:
Could go against Parliamentary Sovereignty
Splits judges.
Leads to uncertainty in the law.
Describe the purposive approach.
Adopted from the EU
Court looks at what parliament wanted to achieve and interprets the law to achieve this.
All EU law has to be interpreted this way as that is what it is written for.
(Quintavalle)
ADVANTAGES:
Judges have more free will to apply the law to certain situations.
Judges are experts in law so know more than parliament
DISADVANTAGES:
Undemocratic.
Time consuming
Legal advice is very difficult and inconsistent.
Describe intrinsic aids.
Judges using parts of the statute to help give the words their wanted meaning.
Long title, short title, and preamble.
Headings and Schedules
Marginal notes
