Law Making Flashcards
Bicameral
2 Chamber legislature. Houses at the Palace of Westminster
Legislature
To make a law
House of Lords (Upper House)
760 Members
Mixture of party members appointed for life
Can delay bills but not prevent them
Each law needs Royal Ascent (the Queen’s Approval)
House of Commons (Lower House)
650 elected members
Elections held every 5 years
Members represent parties and PM
Source of all primary legislation and Acts of Parliament
Can override the HOL
Sovereign Power- no higher authority than parliament
Influences on Parliament
Political Influence
Public Opinion
Pressure Groups
Lobbyists
Political Influence
Elections
Political parties publishing manifestos
Public Opinion
Governments will make changes to law if there is string public opinion about it eg: Abortion Act 1967
Pressure Group
A group that campaigns for a specific cause
Lobbyists
An individual who will try to convince politicians to support a specific cause
Pros of Political Influences
Each party has proposals for reform
Know what they wish to do if they are elected as government
Cons of Political Influences
If a different party is elected they may alter laws which can be costly and open to criticisms eg: Coalition Government of 2010-2015
Pros of Public Opinion
The Uk has a free press meaning the press are able to criticise policy and bring any other issues to the attention of the government
Cons of Public Opinion
Government may respond too quickly to high profile incidences resulting a law to be made without a proper thought process eg: Dangerous Dogs Act was a ‘knee jerk’ reaction
Pros of Pressure Groups
Groups that have large memberships such as National Trust can raise an issue of concern to a large number of people
Cons of Pressure Groups
Can be occasions where 2 pressure groups have conflicting interests and want opposing things eg: fox hunt ban
Pros of Lobbyists
Brings issues to the attention of the MPs. This may lead to a debate in parliament
Cons of Lobbyists
Professional lobbyists can lead to the abuse of the process. Eg when MPs are paid to ask questions
Green Paper
When a law is propose the department will issue a Green paper. This is a document outlining the governments proposals
White Paper
Once all these comments have been considered the department may then issue a white paper. This sets out the governments firm proposals
Different types of bills
Acts of Parliament/Statutes
Private Members’ Bills
Private Bills
Hybrid Bills
How does a bill become a law
First Reading
Second Reading- allows MPs to debate and comment on the bill
Committee Stage- specialist examine the bill
Report Stage- Minister will report back to the house with amendments
Third Reading- last opportunity for debate
Royal Ascent- Bill is approved by the Queen as is published as a law
Pros of the legislative process
Democratic
Full Reform- acts of parliament can reform whole areas of law at once
Broad Policy
Consultation- allows government to take into consideration subjections and objections to the proposal
Cons of the legislative process
Lack of time
Long Process
Complexity
Delegated Legislation
Law made by another person or body other than parliament
Types of Delegated Legislation
Order in council- Queen and the Privy Council
Statutory Instrument- Rules and regulations made by ministers in their department
By Laws- laws made by local authorities
Order In Council
Privy Council being the Queen the PM and leading government members. They cover:
Bringing acts of parliament into force
Making Law in times on national emergency
Can update existing laws
Statutory Instruments
Has an enabling act which gives ministers authority to issue declarations eg: Building Regulations (2010) and Police Codes of Practice
How is delegated legislation controlled?
Control by parliament
Control by courts
Control by courts
Ultra Vires is when court deems that DL has 1. Gone beyond the power given by the enabling act 2. The incorrect procedure was used 3. A decision has been made unreasonably eg:
R v. Home Secretary
R v. Swindon NHS Trust
Reasons for Delegated Legislation
Detailed Law- parliament doesn’t have time to go over all detail
Local Knowledge - impossible for parliament to deal with the local requirements of every city and town
Pros of delegated legislation
Saves parliamentary time
Access to technical expertise
Easy to amend
Cons of delegated legislation
Undemocratic
Difficulty wording
Statutory Interpretation
Is the process of interpreting statues. Used by judges to help them interpret the law properly
Reasons we need statutory interpretation
Changes in the use of language
Draftsman may use a broad term
Ambiguous words
Archaic language
The 3 Rules
Literal Rule
Golden Rule
Mischief Rule
Literal Rule
The words in the statute are given their ordinary meaning. They will read it literally and not deviate eg Berriman Case (1946)
Golden Rule
Used to prevent inconsistency and absurdity when interpreting and act literally
Has a ‘narrow approach’ eg Adler v. George and
‘wider approach’ eg RE Sigsworth (1935)
Mischief Rule
This gives judegs more discretion than the literal and golden rule. It allows judges to look at the law before the statute was implemented to see the gap which the act was intended to cover
Purposive Approach
Judicial consideration to the effect of their interpretation eg R v. Registar the applicant was refused a copy of his birth certificate because he was likely to murder his mother
3 Rules surrounding latin terms
Ejusdem Generis - general words are interpreted in line with specific words
Expresio Unius - mention of one thing excludes another
Noscitar a sociis- words interpreted in context of the sentence they are used in
Intrinsic Aids
Are explanations within the act itself that make it clearer eg: Long Title, Short Title and the Prelude
Extrinsic Aids
External aids such as Hansard (the official record of everything said in parliament. Could only be used after Pepper v. Hart) , Dictionaries (published at the time the act was passed)
Pros of extrinsic aids
Available for everybody to consult
Online
Can clear up what the original intent was in the bill’s discussion
Cons of extrinsic aids
Statements made in debate may not be clear
Can be costly and a waste of legal personnel time
Reports by law reform agencies
Law reform bodies such as the law commission publish reports where they highlight gaps or anomalies in the law. Permitted by Black-Clamson case
Pros of reports
Problems in the current law are identified
Cons of reports
Law commission reports are only available for limited areas of law
Effects of EU Law on statutory interpretation
Courts must follow strict procedure to make sure that it is interpreted in line with EU Law
Effects of Human Rights Act 1998 on statutory interpretation
Legislation must be read and given effects in a way which is compatible with the European Convention on Human Rights
Menadoza v. Ghaidan (2002)
Human Rights act overturned the decision of the rent
Stare Decisis
Where you stand with the binding decision of the court
Ratio Decidendi
The judgment itself in the case
Obiter Dicta
The non-binding judge’s suggestions used going forward
Where does judicial precedent fit into the court hierarchy?
The basic rule is that a court must follow the precedents of a higher court but are not bound to follow the ones in the lower courts
Outline of Hierarchy
European Court of Justice
Supreme Court
Court Of Appeal
Divisional Courts
All other courts criminal and civil have no power to create precedents
Exceptions to the rule
When the cases of human rights are involved. The courts cannot act in ways incompatible with the European Convention on Human Rights. Must follow judgments and decisions of the EC of HR
London Street Tramways v. London County Council (1898)
House of Lords decide they are bound by their own previous decisions
Practice Statement (1966)
House of Lords will depart from their own previous decision when ‘it is right to do so’
Conway v. Rimmer (1968)
First use of the practice statement
R v. Shivpuri (1986)
First use of practice statement in criminal case
Pepper v. Hart
Allows courts to use Hansard in statutory interpretation
Richards v. Rickards (1989)
When a past decision has been made by mistake, per incuriam.
Pros of the literal rule
.The literally rule follows the words that the democratically elected parliament has used
.The literal rule should make the law more certain as it is interpreted exactly
Cons of the literal rule
.Assumes that very Act is perfectly drafted
.Words may have more than one meaning making the Act unclear
Pros of the golden rule
.Where there is a problem with using the literal rule it provides an ‘escape route’
.The fact it’s used in limited situations prevents judges from making new law
.Allows judges to choose a more sensible meaning
Cons of the golden rule
.It is very limited in use and used in rare occasions
Pros of the mischief rule
.Promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover eg Smith v. Hughes
.This approach is more likely to produce a ‘just’ result by making judges interpret the law in the way parliament intended
Cons of the mischief rule
.Risk of judicial law making
.Use of mischief rule may lead to uncertainty
.Not as wide as purposive approach
Pros of the purposive approach
.Leads to justice in individual cases
.Gives judges more discretion than using the literal meanings of words and create absurd situations
Cons of the purposive approach
.Judges refuse to follow the clear words of Parliament
.Difficult to discover the intention of parliament
.Leads to uncertainty in the law
Main reasons for law reform
.The law needs to adapt to changes in society
.We need law reform to clear up confused law
.The government has ultimate control of the law reform agenda but there are other influences too:
-Pressure Groups
-Law Commission
-Judgments
The Law Commission as a body
Was set up as a permanent body in 1965. The chairman is a high court judge and he is assisted by four other qualified lawyers that serve as Law Commissioners.
The Law Commission focuses on:
-Keep under review all of the law
-Development and reform of law
-Codification which is writing down proposals for new law or clarifying old ones
-Repealing obscure or no longer relevant laws
Codification
.Is bringing together all the law on one topic into one complete code of law
-The Draft Criminal Code incorporated the main general principle of criminal law but has never been implement by government
Consolidation
.Is combining the law from several acts of parliament into one act of parliament
-Consolidation makes the law easier to understand and more accessible
-Needed because there might be several parts of different statues that spell put entire law
Repeal
.Is where certain areas of law go out of date and need to be cancelled
-Repeal is the process of cancelling out an act of parliament. It can only be achieved by a vote in parliament. An example of this is the Great Repeal Bill.
Advantage of reform through the law commission
.Research by legal experts
.Non-political
.Consultation before finalising proposals
.Whole areas of law can be considered
Disadvantages of reform through the Law Commission
.Parliament can be slow at enacting Law Commission Reports
.Lack of parliamentary time
Royal Commissions
.Are temporary committees set up to investigate changes in the law in one specific area.
-Have sometimes led to changes in the law
-Can only make recommendations
Review by judges
.Judges can sometimes be asked to lead an investigation into specific area of law
-Woolf Committee on civil justice
-Lord Briggs 2015 on ODR
Advantages of Royal Commissions
Focus of one are of Law
The use of experts
Disadvantages of Royal Commissions
They can only make recommendations and this may not always be put into effect
Advantages of review by judges
They bring in the experience of the legal system and courts
Business people bring in experience from a different perspective
Disadvantages of review by judges
Takes up the judges time in the courts
Business people may not understand the system
