Law Making Flashcards
What is parliament made up of?
House of commons - elected MPs - usually representing a party
House of Lords - Hereditary or Life Peers
Crown
What are green papers?
When the government unsure of the details of a law it wishes to make.
Invites interested parties to send comments
If the government agrees they will be added to the paper.
What are white papers?
Usually comes after a green paper.
Published by the government and sets out the proposals the government wants to make law
Sometimes the green paper can be skipped in emergencies (Coronavirus Act 2020) - Can result in a poorly thought out law with mistakes
What are the 4 types of bills?
Government
Public
Private
Private Members’
What is a government bill?
Proposed law by the government introduced into parliament
Usually drafted by a lawyer as it can be difficult to not leave room for interpretation.
What is a public bill?
Most frequent type of bill
Affect whole or most of the country
Focused on public policy
e.g. Equality Act 2010
What is a private members’bill?
Introduced by individual MPs
Since government controls schedule of parliament few of these are debated on.
e.g. Abortion Act 1967
What is a private bill?
Only affect certain people or institutions
e.g. University College London Act 1996
Combined 3 hospitals in London
What are the advantages of bill making?
Democratic - Elected MPs and green papers
Emergency bills can be passed quickly (Coronavirus Act 2020)
What are the disadvantages of bill making?
House of Lords and King not elected
MPs often vote with their parties to avoid ‘getting the whip’
Often not interested in laws that won’t make them popular with the public
Make popular but bad laws (Dangerous Dogs Act 1991)
Often takes a long time
What is delegated legislation?
Law made by a party that isn’t Parliament, but with the authority of Parliament. The authority is usually laid down by a parent Act of Parliament.
What are Orders in Council?
Type of delegated legislation made by the Crown and the Privy Council
Privy Council is mainly made up of senior/former politicians
Don’t have to be debated in parliament
What are Statutory Instruments?
Made by government ministers. Different ministers make different statutory instruments (Minister of Transport - road traffic regulations)
Can be very short or very long and complicated
Police codes of conduct made by Secretary of State using parent Act Police and Evidence Act 1984
What are By-laws?
Made by local authorities for matters in their own area.
Usual parent Act is Local Government Act 1982
Some public corporations can make by-laws (e.g. Railway companies)
What are the 4 ways of controlling delegated legislation?
Approval of the parent Act
Negative Resolution Process
Affirmative Resolution Process
Scrutiny by Committee
What is the Negative Resolution Process?
Only for Statutory Instruments
They will automatically become law unless rejected by parliament within 40 days of it being published
So many statutory instruments made not all can be reviewed
Government makes them and reviews them
What is the Affirmative Resolution Process?
Only for Statutory Instruments.
Has to be approved by parliament before becoming law.
Need for this process is in the parent Act.
What is Scrutiny by Committee?
Only for Statutory Instruments
Committee made up of MPs and Peers (Main committee is Joint Committee on Statutory Instruments)
Decides if Parliament needs to be alerted - Main Grounds - Creates a new tax - has retrospective effect - goes beyond the parent Act - is Defective
How is delegated legislation controlled by the courts?
Delegated can be challenged by someone who has sufficient standing (personally affected), and will be heard by the KBD who can find the legislation ultra vires (goes beyond the parent Act)
What is procedural ultra vires?
The correct procedure set out in the parent Act hasn’t been followed (Aylesbury Mushrooms 1972), The outcome is within the parent Act but how they have gotten to it is incorrect - May not have consulted people which the parent Act states as necessary.
What is substantive ultra vires?
When the legislation that has been made goes beyond the power, (R v Home Secretary ex parte Fire Brigades Union 1995)
What is Wednesbury unreasonableness?
When a decision is so unreasonable that no body would consider imposing it.
How effective is judicial contol?
It is good that individuals can challenge delegated legislation.
However, no legal aid is offered, the challenge has to be made within 3 months of the legislation being made, the government can easily afford lawyers to defend, and only people with standing can start the challenge.
Why is delegated legislation needed?
Parliament doesn’t have enough time to consider every law.
Parliament doesn’t have technical expertise in every area.
Ministers can consulate relevant parties
Can be passed quickly
Can be easily amended
Parliament focus on bigger issues
What are the disadvantages of delegated legislation?
It is undemocratic
Huge amounts of delegated legislation leads to criticism
Can be difficult to understand
What are the 4 types of statutory interpretations?
Literal Rule, Golden Rule, Mischief Rule & Purposive Interpretation
What is the literal rule?
Judges will give statutes their plain, ordinary meaning even if the result is unreasonable.
Berriman (1946) - Railway worker killed oiling the tracks, widow wasn’t entitled to compensation as he wasn’t ‘repairing or relaying’ the track
What is the golden rule?
A modification of the literal rule - the judge can avoid an interpretation that would lead to an unreasonable result - Only when the statute has ambiguity
Sigsworth - Son murdered his mother and according to literal rule would inherit her estate but the interpreted the statute so he didn’t