AC 1.1 - DESCRIBE THE PROCESSES USED FOR LAW MAKINGš¤ Flashcards
Government Process (to make laws)
The government process of law making involves a formal procedure for turning proposals to change or introduce a new law into new laws:
Part 1 - āProposalā to a āBillā
Proposal:
Proposals to change the law can come from a variety of places:
- Changing the values in society e.g. the Marriage (same sex couples) Act 2013
- Campaigns e.g. Claireās Law (information can be given to an individual if their partner has previously been convicted of domestic violence
Green Paper
- If the proposal is seen as worthwhile then these will be taken up by the government and published as a Green Paper.
- Green Papers are consultation documents produced by the Government. The aim of this document is to allow people both inside and outside of Parliament to give the relevant government department feedback on the policy proposal.
White Paper
- If the proposal in the Green Paper is popular or there is clearly a need for the proposal, it moves to the next stage, which involved the publication of white paper.
- A white paper is a document, produced by the government, setting out their detailed plans for the potential new law/legislation. This often includes a draft version of the Bill they intend to put before Parliament.
The Bill
- If the White Paper has enough support, then the proposal will move to the net next stage which is the publication of a Bill.
- A Bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before Parliament.
Part 2: The Stages a Bill must pass through to become a Law
In order for a Bill to become law if has to be passed by Parliament. Parliament consists of 3 parts:
- House of Commons: The most important part of Parliament - made up of 650 elected MPās.
- House of Lords: Made up of around 800 unelected peers e.g. life peers, hereditary peers etc.
- Monarch: The reigning King or Queen.
House of Commons: Role in a Bill becoming a Law
- Usually a Bill will start in the House of Commons (though occasionally it starts in the House of Lords).
- However, we will look at it from the perspective of the Bill starting in the House of Commons (as the vast majority of Bills start here). Bills must go through several stages in the House of Commons.
First Reading
The Bill is introduced to the House of Commons. This means a formal announcement of the Bill is made to the House of Commons. The Bill is not formally debated at this stage but is voted on to allow it to move to its next stage. A date is set for its second reading.
Second Reading
At the second reading of the Bill, itās main principles are debated by the whole House of Commons and a vote is taken. If the Bill passes this stage (it had more votes for, than against) if moves to the Committee Stage.
Committee Stage
The Bill is now examined in detail (line by line) by a small committee of MPās from different political parties. The committee will report back to the whole House of Commons. They may recommend changes (amendments) to the Bill.
Report Stage
This stage gives MPās the opportunity to consider the committeeās report and to debate and vote on any amendments, to the Bill, recommended at the Committee Stage.
Third Reading
The Report Stage is normally followed immediately by a third reading of the Bill. This is the final chance for the Commons to debate the Billās content. The MPās in the House of Commons then vote on the Bill. If the Bill passes this stage (it has more voted for, than against) it moves to the House of Lords.
House of Lords: Roll in a Bill becoming a Law
Scrutiny
The Bill then goes to the House of Lords, where it goes through the same stages as in the House of Commons.
āPing Pongā
If at any point the House of Lords want to amend the Bill, it has to go back to the House of Commons, so MPās can decide whether to accept or reject the Lordās amendments. This is known as āping pongā between the two Houses of Parliament.
Passing or Rejecting the Bill
The House of Lords can either pass or reject a Bill passed to it by the House of Commons. If it passes it moves on for Royal Assent.
However, if it rejects the Bill, the House of Commons has the power to force Bills to be passed without the approval of the House of Lords (after a year) e.g. the Sexual Offences Act 2000
The Monarchās Role in a Bill becoming a Law
Royal Assent
Once a Bill has been passed by both the House of Commons and the House of Lords, it goes to the monarch for signing. This is known as Royal Assent.
In reality the monarch does not ever reject Billās passed to her by the Houses of Parliament. This is just a formal / traditional procedure.
Part 3: When a Bill has passed through Parliament
- When a Bill has finally passed through both Houses in Parliament and gains āRoyal Assentā it becomes a law (also known as an āAct of Parliamentā, a āstatuteā or ālegislationā).
- A new law is rarely put into practice (implemented) immediately - this is because organisations (like the Police and the Courts) need time to become familiar with a new law, undertaking training if necessary.
- One example of this is the Human Rights Act (1998) which only came into force 2 years after it became an Act of Parliament.
Judicial Process (to make laws)
The judicial process of law making involved judges āmakingā laws through specific cases before the courts. Judges make laws in two ways: Judicial Precedent and Statutory Interpretation.
Judicial Precedent
- Judicial Precedent refers to decisions by judges which provide an example or authority for later judges to follow, known as āstate decisionsā.
- This is particularly used when there is not a direct law from parliament relating to a particular case.
- In order for this to operate it requires a court hierarchy in which lower courts follow decisions of higher courts for cases that are similar. This allows for consistency in the law.
Criminal Court Hierarchy
Supreme Court
Court of Appeal
High Court
Crown Court
Magistratesā Court
Avoiding a precedent
If a judge wants to avoid a precedent they can by:
- Distinguishing on the facts: Allows judges to avoid an earlier precedent that would otherwise blind them. The judge will point out some differences in the facts between the precedent and their present case. As a result, they can say that they do not need to follow the precedent.
- Overrule: This is where the court higher up the hierarchy decides a precedent set in an earlier and lower court was wrong.
Statutory Interpretation
Statutory Interpretation relates to how judges interpret the words set down by Parliament in statutes. Judges can interpret Acts of Parliament when judging the case in front of them in 3 ways.
Literal Rule
- The āLiteral Ruleā gives the word in the statute their ordinary and natural meaning as this is the best way to interpret the will of Parliament even though it may lead to an absurd result. This respects Parliamentary sovereignty.
Golden Rule
- If the literal rule gives an absurd result that Parliament would not have intended, then the judge can substitute a reasonable meaning in the light of the statute as a whole - this is called the āGolden Ruleā. This is usually only used where the words of the law are ambiguous.
Mischief Rule
The mischief rule allows the court to enforce what the statute was intended to achieve, rather than what the words actually say. The rule can avoid absurdity and promotes flexibility.
Other ways judges make law
- Judges can also make judicial comments asking for Parliament to change the law. For example, in the case of C v DPP (1995) the judge asked for Parliament to look at the law on criminal liability and children.
- Judges can also make a declaration of incompatibility between the Human Rights Act 1998 and an Act of Parliament. This will NOT make an Act invalid but draws the Governmentās attention to the fact that an Act is incompatible with the Convention of Human Rights. The government, however, will generally amend a law to remove the conflict between the two. This happened in 2004 when the House of Lords held that the Anti-Terrorism Crime and Security Act 2001 to be incompatible with the Convention of Human Rights. The Government then amended the law by passing the Prevention of Terrorism Act 2005.
