Chapter 2 - The Creation of Law Flashcards
UK constitution elements
The legislature (Parliament) The executive (Government) The Judiciary (Judges)
Judicial review
Judges have the power to review decisions of the government ministers and other decision makers to check that they have acted within their legal powers
Parliamentary sovereignty
A principle of UK constitution which makes Parliament the supreme legal authority in the UK, with power to create or end any Law.
***
The doctrine of parliamentary sovereignty states that no Parliament may pass a law
which will bind subsequent parliaments.
Parliament
The legislature of the UK –> key function to make laws.
Houses in Parliament
House of Lords
House of Commons
The Crown (The Queen) in Parliament
She has certain formal roles such as opening of Parliament and giving the royal assent to Bills
The Judiciary
The judges.
Their role is to apply the law to decide the cases brought before them in the courts.
The Executive
Government - make decisions and run the country.
Government ministers are elected in General Election and to lead Government they have to have majority (at least 326)
Separation of Powers
The doctrine that the liberty of the individuals can be protected only if the 3 main functions of the state are exercised by distinct and independent organs.
In the United Kingdom, however, the doctrine is only partly applied. The Executive
(government) led by the Prime Minister consists of Members of Parliament (the
Legislature). The Judiciary are independent of Parliament and the government.
House of Commons
House has 650 members elected in General Election.
House of Lords
The House is made up of unelected peers. Most of them are appointed but some are hereditary (inherited). It also includes some Church of England bishops.
The Bill
it is a draft of the law which is considered by Parliament.
Bill sections call - Clauses
Bill types
Bill can fall across in number of classifications. *** By subject: Public (all country); Private; Hybrid. By Originator: Government; Private Members By Purpose: Law reform; Consolidation (reorganize)
Primary sources of law
Act of Parliament/Statute
Secondary sources of law - Delegated legislation
Law made by Government minister or other body under powers given to then by a statute.
Delegated legislation types
Statutory instruments are the most important category and include regulations, rules and orders.
Bye-laws are created by local authorities or organizations such as Transport for London.
Ultra vires
Beyond its/his/her powers.
This concept is used in Judicial review cases
An Act of Parliament
Also known as Statute. A document that sets our legal rules that has passed through the Houses of Parliament and been formally agreed by the Crown (the Queen)
The Law Commission
A politically - independent organization established under the Law Commissions Act 1965 which reviews and reforms the law
Green paper
Drafts of the Governmental proposals for the creation of a new Act.
The Doc is circulated to interested parties who are invited to comment
White Paper
A doc published by the Government when the consultation process is complete which sets out their proposals for the new law and the reasons for them.
Bills By Subject
PRIVATE - a Bill which proposes new law which affects a limited geographical area or limited group of people or an institution
PUBLIC - Bill which affects the whole country
HYBRID - particularly affects certain individuals or locations
The Parliament Acts 1911 and 1949
Acts if Parliament which limit the scope of the House of Lords to block bills approved by the House of Commons
Stages in creation of Act of Parliament
1 2 C R 3 ******** 1 - 1st reading 2 - 2nd reading C - Committee Stage R - Report Stage 3 - 3rd Reading
1st reading
Formal presentation of the Bill to Parliament
2nd reading
The Purpose of the Bill and the means proposed for giving it effect are debated
Committee Stage
Each clause of the Bill is examined in detail and may be amended or deleted by a committee.
Committee will be English MPs (or Eng+Welsh) only in the House of Commons if a Speaker’s certificate has been issued.
Report Stage
A Bill is formally reported back to the House of Commons or the House of Lords
3rd Reading
A Bill is reviewed in its final form by he House of Commons or the House of Lords and minor amendments only are debated and voted on.
Consideration of Amendments
The House in which the Bill was 1st introduced will consider the amendments of the other House.
If they are not agreed, a “ping-pong” process will take place until both Houses have agreed all the changes.
Royal Assent
A Bill is formally signed and authorized by the Queen and becomes and Act of Parliament
Statutory instruments
Delegated legislation including:
- Regulations
- Rules
- Orders
- Orders in council
Bye-laws
Laws made under delegated legislation by local councils that relates to a specific area
Orders of Council
Orders which are made by the Queen and the Privy Council.
Parliament has no involvement in theater creation
Laying before Parliament
Statutory instruments must be formally made available for Parliament to scrutinize
Parliamentary control
Control over delegated or secondary legislation in order to prevent abuse by a government minister, local council or other authorized body/organization
Advantages of delegated law
Fast
Flexible
Saves Parliamentary time
Technical and detailed
Disadvantages of delegated law
Lack of democratic control
can be poorly drafted
volume
may contain obscure language
European Court of Human Rights
Established in Strasbourg.
Hears cases concerning breaches of the European Convention of Human Rights (ECHR)
European Convention of Human Rights (ECHR)
International treaty setting out fundamental human rights
The Human right act 1998 - includes articles from ECHR in Sch 1 enabling UK courts to apply the ECHR directly.
Human Rights Act 1998
Through this Act UK courts are able to apply the legal rights in the European Convention of Human Rights directly to UK cases
s2 Human Rights Act 1998 (HRA)
Requites UK courts to take into account decisions of the European Court of Human rights.
These decisions are not Binding on them but are “persuasive”.
s3 Human Rights Act 1998 (HRA)
UK courts must so far as possible interpret all legislation in the way which makes it compatible with the European Convention of Human Rights
s4 Human Rights Act 1998 (HRA)
If High, Appeal, Supreme court or Judicial Committee of the Privy council can not interpret primary legislation n (Act of Parliament) in the way that complies with the European Convention of Human Rights in Schedule 1 of the Human Rights Act 1998 they must apply the Act and may make a DECLARATION OF IMCOMPATIBILITY.
s6 Human Rights Act 1998 (HRA)
Only public authorities, e. g. the government or the police, are required to comply with the European Convention of Human Rights in Schedule 1 of the Human Rights Act 1998
s7 Human Rights Act 1998 (HRA)
A victim of the breach of his/her rights under the European Convention of Human Rights is entitled to bring the claim against the public body which has committed the breach
