AC1.1 Describe processes used for law making Flashcards
Binding precedent
when a decision is made it binds all legal institutions and they are required to follow it
Government processes
made through statute created by parliament
Statute
An Act of Parliament- a law that has been through the various law making stages in parliament
Parliamentary Supremacy (Sovereignty)
Laws that are made by Parliament are supreme over any other source
Functions of Parliament
- examining/challenging the work of government
- Debating/passing all laws
- Enabling government to raise taxes
House of Commons
-ELECTED body. Made up of MP’s in government who debate issues and introduce and pass new acts.
Government
- Help PM run country
- made up of 100 ministers
Cabinet
- made up of 20 senior ministers
- each responsible for particular issue
House of Lords
- NON-ELECTED body
- Made up of senior judges, bishops, life peers and hereditary peers
Monarch
-signs new laws
How do new laws come into existence?
- tragic incidents
- crimes committed
- lobbying
- public opinion/media coverage
- pressure groups
- the law commission
- government manifestos
Stage 1: Pre-legislative stage- consultation
green paper > white paper
Green paper
an outline of proposals sent to parties (seek feedback)
White paper
Feedback considered and final proposals outlined (forms basis of bill)
Why is consultation important?
greater awareness
Stage 2: Drafting of a Bill
before a statute becomes a law it has to become a bill
Public bills
- intended to affect public as a whole
- introduced by MP
- main way of making statute
- aim to change law of whole country
Private bills
- intended to affect few
- usually proposed by local authority
- e.g. local authorities may want to build a highway
Hybrid bills
- cross between public and private bills
- only affect particular person/place/organisation
- introduced by government
Private member bills
-prepared by back-bend mp or members of HL
-Have to enter ballot to win right to do so
(ballot- 20 mps selected or 10 min rules)
Stage 3: law making in parliament
Green Winged Dragon Flies Slowly Clockwise Round The Old Ruin (consultation) Green paper White paper (Draft bill) First reading Second reading Committee stage Report stage Third reading Other house (HL) Royal assent (Statues)
Stage 3 explained
(consultation)
Green paper- proposals sent out to parties for feedback
White paper- following feedback, draft bill
(Draft bill)
First reading-government announces bill by reading it out
Second reading- main debate takes place, all MP’s discuss and vote
Committee stage- smaller groups look at bill in more detail
Report stage- amendments made are reported to everyone in HC
Third reading- overall consideration of bill in HC + final vote
Other house (HL)- bill goes to HL(similar stages) can suggest amendment and send it back to reach agreement
Royal assent- queen signs off bills
(Statues)
Parliament acts 1911 and 1949
allows hc to have power if hl rejects
Why does power exist?
- allows hc to pass laws even if hl reject
- hl, wealthy so bias
- parliament act, allows them to pass law without hl
Explain the role judges play in law making [6 marks]
- judges make law through judicial precedent
- Act of Parliament must be followed, can make own law
- they will outline key facts, and reason for decision based on law (ratio decideni)
- anything else that doesn’t form the reasons behind decision (obiter dicta)
- Higher courts bind lower courts (most judicial made by court of appeal) this is known as binding precedent
- binding precedent can include decisions made by a lower court, statement from dissenting judge, decisions made by decisions of lower court
- if no precedent exists can be made by lower courts, original precedent
- Judges may use persuasive precedent to determine law, not binding on court (cant use if already binding precedent)
- judicial precedents ensures consistency
- Statutory interpretation, makes law that interprets Acts of Parliament and apply them to cases
- literal rule, golden rule and mischief rule
common law
judge made laws
ratio decidendi
the reason for the decision
obiter dicta
other things said
Literal rule and e.g.
- all words in statute are given natural meaning
- e.g. Whiteley v Chopell
Golden rule and e.g.
- says if literal rule produces absurdity the court should look for another meaning
- e.g. Adler V George
Mischief rule and e.g.
- allows judge to give consideration as to what parliament intended to achieve when drafting
- e.g. Corkery V Carpenter
Original precedent
-if point of law has never been decided before, then ratio in judgement will form new precedent
Binding precedent
-precedent from earlier case must be followed, even if judge in later cases don’t agree
Persuasive precedent
-not binding, but judge may consider it and decide that is the correct principle so its persuaded to follow
Statutory interpretation (what/why)
-judges can also make laws by the way they interpret statutes they need to do this because: -ambiguity -drafting error -new developments -changes in use of language
