Ch7,8,9,10 Flashcards
What is legislation?
Laws that govern a country and its functioning. This can be primary legislation (Acts of Parliament), or secondary legislation (parliament giving legislative powers to a person/body)
Sources of law?
- Parliament (Acts of Parliament)
- Case law (court judgements)
- Expert writings/opinions
- Custom (uncodified rules we follow)
EU and national law
Principles
EU primacy over domestic law
-Bills/laws incompatible w ECHR (HRA Act) must be amended or even revoked
-Domestic laws interpreted to give rise to EU law as much as possible
-Where possible, EU supersedes areas of domestic law
What is the pre-legislative process in the UK?
- Topic picked (ie. healthcare)
- Committee of the Cabinet ranks the proposals
- Consultation on the bill received, experts come in and evaluate the bill
- Barristers + state advocates create a draft and send it to the parliamentary council. Must make sure bill is vague so open to Parliamentary interpretation + not violate ECHR + other national law (v time costly)
- General Advocate receives it and comments
Legislative process in the UK?
Step 1: The bill originates in the House of COMMONS or LORDS. Government bill introduced by Minister, Private Member bill introduced by member of COMMONS or LORDS.
Step 2: FIRST READING. Largely ceremonial, bill title published and bill made public.
Step 3: SECOND READING. Debate on the bill w bill proposer stating why believe bill should become law + possibility other members dispute. Vote on whether bill should pass to committee stage, usually does because proposed by gov, so maj would vote in favour of it…
Step 4: COMMITTEE STAGE. Committee of COMMONS and LORDS meet and propose amendments to bill, voting on these amendments (only committee members may vote at this stage!!)
Step 5: REPORT STAGE. Committee creates a report outlining their suggested amendments, w Parliament able bring their own amendments + suggestions for bill. Vote taken to move to the THIRD READING.
Step 6: Final approval of bill, w Parliament unable propose more changes.
Step 7: Royal Assent
BILL BECOMES A LAW (ACT OF P!)
How do members of UK Parliament introduce private member bills?
2 routes
Route 1: Ten-minute method
-A member of Parliament speaks for 10 minutes on why they believe the bill should pass. Another member of parliament disputes for 10 minutes. Whole of parliament votes on the bill. Rarely used.
Route 2: Private Member ballot
-Members of parliament draw from a hat w 20 proposals on potential laws drawn
-Debated on in parliament
-Up to 1/3 of Acts of Parliament have been enacted as private member bills through private member ballot
Legislative process in Scotland
Step 1: Members of the Scottish Parliament bring proposal on bill forward, w/i their power (s31 Scotland Act 1998 must be w/i Scottish competences w devolved powers, HRA Act 1998 must be compatible w) [member bill]
Step 2: Committees may also introduce bills but w the agreement of Parliament, known as committee bills. Report must be written to P saying (a) why Committee proposing bill (b) why bill is needed (c) what it does (d) and a draft of the bill (not compulsory).
Step 3: Scottish Minister may propose bills to P, are most powerful in legislative process because of devolved powers: may amend bills or even repeal them w/o need for act to stipulate this [government bill]
STAGE 1 COMMITTEE REVIEW. Bill given to lead committee, hearing from experts on the topic, writes opinion on bill in the form of a report and whether P should support/not support this bill
STAGE 2 AMENDMENTS. MPs propose amendments. Amendments are debated on IN THE COMMITTEE and the the committee only. Committee votes on WHETHER OR NOT TO ACCEPT AMENDMENTS.
STAGE 3 AMENDMENTS AND MP VOTING
Amendments debated in general chamber w MPs ability to vote for/against amendments
STAGE 4 Bill accepted, sent for royal assent
STAGE 5 Bill becomes law post-royal assent!
Legislative process EU?
- Commission submits proposal to Council + Parliament on bill
- Council + Parliament must jointly adopt bill either at first or second reading
- If Council + Parliament do not reach agreement by second reading, a conciliation committee is gathered
- Text of conciliation committee accepted, legislative act is adopted!! If amendments are not accepted or rejected at any stage prior to the committee gathering, the bill is not passed!!
What is stare decisis and judicial precedent?
Legal principle requiring courts to follow the judgements that previous courts have upheld (stare decisis), and process by which judgement is set and must be adhered to (precedent).
Ie. Donaghue v Stevenson affirmed that manufacturers owe a duty of care to their customers, setting a precedent for other courts to also meet. This is an example of the highest form of judicial precedent as it is the highest court (house of lords) deciding on outcome of case + judgement.
What is obiter dicta?
Commentary that the court (namely judges) provide on a case, but that does not actively play a role in the final court judgement. Is not legally binding.
Ratio decidendi
The rationale, or reasoning behind a certain decision, as explained by the judges. IS legally binding.
What is “secondary legislation”
When Parliament delegates legislative powers (the right to legislate) to other persons/bodies. Discretionary power w some areas remaining reserved to P.
Who can legislate (secondary legislation)
- Secretary of State and subsequent ministers (the government)
- The local government (ie. public housing department)
- Public authorities (ie. the police department)
- Other bodies (ie. railway legislating on laws regarding railroads)
- Court system (ie. judges)
What are limitations to secondary legislation?
Concept of ultra vires.
If limits of legislative powers exceeded, court may rule laws created as amendable, or even repealed!
Examples of secondary legislation?
Statutory Instruments (SIs), or Scottish Statutory Instruments (SSIs).
- Become SIs if an enabling act states it is one
-Allows P stay sovereign as no delegated leg w/o enabling act
-SIs public vote -> positive SI not approved unless w P takes vote to change this + negative, SI approved unless no motion annul w/i 40 days
