5 Markers Flashcards
Explain the main sources of delegated legislation
Delegated legislation is law made by other bodies other than parliament. This means that parliament passes power to other bodies in what is known as an enabling act/ parent act whereby other bodies can make legislation. There are many types of delegated legislation but the main ones are: Statutory instruments , By laws and orders in council. Statutory instruments refer to delegated power made to government departments where they can make legislation around finance law or war. By laws are another main source of delegated legislation which are made by local authorities and private companies .g South Yorkshire Borough Council and the London Underground. Finally Orders in council are made by the Queen and the Privy council and they can also turn EU directives into UK regulation.
Explain the role of pressure groups in reforming the law.
Pressure groups are a body of people who aim to change an area of law based on common interest which would benefit a group or section of society . This means that pressure groups have a large role in promoting the interests of wider society through protests, pettitions etc. The role of Pressure groups in reforming the law has been significant for example the BMA successfully campaigned against smoking in public and this contributed to the reform of the law in public and contributed to the ban in July 2007 under the Health Act 2006.
Explain what is meant by ratio decidendi and obiter dicta of a judgement
Ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts. This means that when giving a judgement is given in a case ratio decidendi often looks at whether a party can rely on the judgement for precedent in future cases. Therefore it is an important part of a judgement in the interests of this and is the potentially binding part of a judgement. Obter dicta translates to ‘things said in passing’. It is a statement made by a judge after the ratio decidendi has been decided, stating how he or she would have decided a case if the material facts were slightly different to the ones present. This creates a persuasive precedent for future cases for example R v Howe, the obiter dicta established was that duress could not be a defence for murder. Then later in R v Gotts, where a boy killed his mother due to his father threatening to kill him if he did not kill her, the precedent of the obiter dicta from R v Howe was followed and the boy was charged and unable to have the defence of duress.
Explain what methods a judge can adopt to avoid an awkward precedent
Explain what is meant by the rule of law
The rule of law underpins the law of society which dates back to the Magna Carta 1215 and is apart of the constitution. Dicy’s law .This maintains rules such as no person is above the law ( this includes governments), no prosecution without law and there is fairness and clarity within the law. These principles have been expanded by Lord Bingham..
- parliamentary sovereignty
- separation of powers
Explain what is meant by the separation of powers
The separation of powers is fundamental in a democratic society which means that power is distributed fairly between systems of government( the executive) , the legislature and the judiciary. The idea of the separation of powers links back to Montesquieu who was a french philosopher and identified and claimed that the only way to safeguard the liberty of citizens is to keep them separate. The legislature is the law making body of the state , the executive is the government and the judiciary is the body that apply’s the law, there was an overlap between the bodies which is why the concept of the separation of powers is so significant which was also addressed by the constitutional reform act 2005. This is an act that separated the state from the judicial system
Explain the role of the Court of Justice of the European Union.
The court of justice interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.
Explain the types of bill.
Before a bill passes through Parliament, a consultation process often takes place. Green papers and White papers are often issued, outlining proposals for the bill, in order to canvas opinion and to generate debate before the bill comes before Parliament. Green Paper is a document issued by government which outlines proposals for debate and discussions, it contain several alternative policy options to consider. The aim of a green paper is to allow people both inside and outside Parliament to give the department feedback. White paper is
Explain the stages of the law making process
A Bill goes through a procedure in both Houses of Parliament. It usually starts in the House of Commons, but can start in House of Lords.
First Reading – letting MPs and the public know about the proposed legislation. The first reading is a formal procedure where the main aims and name of Bill read out. Second Reading – explaining the purpose of the Bill. This is the main debate on the whole Bill, MPs debate the principles behind the Bill. Committee Stage – looking at the details of the Bill This is a detailed examination of each clause of the Bill and it is carried out by a committee. Report Stage – further consideration & changes by the House of Commons At the committee stage amendments to clauses of the Bill. Third Reading – overall examination of the Bill This is the final vote on the Bill. It is almost a formality and it is unlikely a Bill will fail at this stage. The House of Lords If a Bill started off in the Commons it is now passed to the Lords and goes through a similar procedure as in the Commons. If the Lords make amendments it has to go back to Commons. Royal Assent This is the final stage where the monarch formally gives approval to the Bill and it becomes an Act.
Explain the purpose of the Law Commission
The law commission is statutory independent body created by the Commissions Act 1965 that keeps the law under review and recommends reform where it is needed. The aim of the Commission is to ensure that the law is fair, modern, simple and as cost-effective as possible. The role of the Law Commission is set out in s.3 Law Commission Act 1965. It:
Reviews all the areas of law which are believed need reforming
Keeps under review all the law with a view to systematic development and reform, including especially the following:
Codification of the law, i.e. bringing together all the law on a topic into one source of law, e.g. PACE 1984,
Consolidation – simplify and modernise the law, i.e. brings all existing laws from several Acts into one Act
Elimination of anomalies
Repeal obsolete and or unnecessary Acts
Reduction of separate enactments
Explain the different forms of delegated legislation.
Delegated Legislation is law made by other bodies other than Parliament. There are many forms of delegated legislation. Orders in council is a type of delegated legislation which are ordered by the queen and the privvy council. The Emergency Powers Act 1920 and Civil Contingencies Act 2004 allow the government to pass emergency legislation in times of war. It is used to alter legislation quickly as there is no need for the legislation to pass through Parliament quickly. It is also used to implement European Directives. A second type of DL is statutory instruments which is governed by the statutory instruments act 1946 ammended by 1996 and requires statutory instruments to be printed and sold as soon as possible unless they are local , temp or sensitive. s and government departments are given authority to make legislation for areas under their responsibility. By laws are also a type of delegated legislation where ed by local authorities and relate to issues in that area. For example traffic regulations and parking restrictions. Bylaws can also be made by private corporations mple of such a bylaw is the smoking ban on the London underground trains and The Water Authority imposing a hose pipe ban.
Explain the controls on delegated legislation
There are parliamentry controls on delegated legislation. Affirmative resolution this means that the statutory instrument will not become law unless approved by Parliament. The need for an affirmative resolution will be included in the enabling Act. Negative resolution is a parliamentry control on delegated legislation is means that the relevant piece of legislation will become law unless rejected by Parliament within 40 days. MPs can also be questioned on work within their departments. Scrutiny committee committee reviews all statutory instruments and if necessary, draws parliament’s attention to matters of concern. Super affirmative resolution egislative and Regulatory Reform Act 2006 that requires ministers to have regard to any representations by a committee of either House such as the Scrutiny Committee. Finally consultation Many enabling Acts require consultation with interested parties, or those who will be affected by the delegated legislation. Consultation is an effective control
Explain the literal rule
The literal rule of statutory interpretation should be the first rule applied by judges. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statut. Some examples of the literal rule can be seen in the cases such as R V Harris this is where the D bit the victim and under the literal rule couldn’t be convicted because ct of biting did not come within the meaning of stab cut or wound. Or in the case of Fisher v Bell
Explain the literal rule and golden rule
Explain the mischief rule
- Haydens case
