Law Making Flashcards
How many in House of Commons
650 MPS
Each MP elected to serve a constituency
How many in House of Lords
800 unelected members
700 appointed lofe peers
96 inherit their seats
Who proposes laws
Government
Individual MP
What is a public bill
Affects whole country
Put forward by gov
What is a predicate members bill
Less likely to become law unless supported by government
e.g vouyerism
Changes the law regarding specific individuals or organisations not in the general public
Anyone specifically and directly affected can petition against the bill
What’s a hybrid bill
Mixes characteristics of public and private bills
Affects general population - but impacts specific groups or individuals
Often involves large projects e.g channel tunnel cross rail
Allows affected parties to petition
What is the pre legislative process
Green paper - consultation document e.g competition and markets
White paper - firm proposal of law
Draft bill - formal legal language
How does a bill get passed
First reading - bill is formally introduced to parliament.
Short title of hill is read out an order made for bill to be oriented
No debate or vote which is a formality
Second reading
Bill is introduced by government minister or MP responsible for it
Main principles of bill debated as well as what might have been included and a vote held to decide if it can proceed to next stage
Committee stage
Bill examined carefully and in detail by public bill committee made up of MPs
Makeup of committee reflects amount of sears parties have in parliament
Committee takes evidence from experts and interest groups
Members of committee vote
Report stage
MPs consider amendments to bill which is examined in committee
All MPs suggest amendments or new clauses and vote
Third reading
MPs debate contents of bill and vote on whether to proceed
No amendments
Whole process is repeated in House of Lords
If lords disagree or make alternate proposals, bill sent back to commons (ping pong stage)
Example of hill that went through ping pong stage
EU withdrawal bill
Order of a bill in parliament in order
First reading
Second reading
Committee stage
Report stage
Third reading
Pingpong stage
What happens when a bill is agreed
It can receive royal assent and become an act of parliament
What happens if commons and lords can’t agree on a hill
Bill fails
Unless certain conditions are met and commons can use parliament acts 1911 and 1949 to pass bill anywsy
e.g Hunting Act 2004
What is commencement
When act comes into force
Can be immediately, after a set period or after a commencement
If commencement is required but not come into force act does not come into force Easter act
Advantages of parliamentary law making
Democratic - MPs elected, legislation reflects electorate
Legislation is relivant - to morals and ethical issues, leads to changes in law which have popular support such as abortion act 1967 however little time for private member bills to be considered
Process is very thorough - involves debates and close examinations of proposals. With consultation that occurs prior to introduction of a bill subject to detailed scrutiny and mistakes are spotted. Helps law be fit for purpose, upholding rule of law
Disadvantages of parliamentary law making
Undemocractic- House of Lords can debate suggest and amend and they are not elected - because unelected people not accountable for desicions they make which may lead to poor quality law
Process is very slow - can take months or years and some stages such as royal ascent can be argued as pointless. Leaves little parliamentary time for consideration - poor quality law can still be passed such as dangerous dogs act 1991
Complex legal language - terms hard for unqualified people to understand, contrary to law ehich states law should be ascertainable
Who is in the law commission
Chair and four other commissioners
Chair either a high court or appeal court judge appointed by commission by the Lord Chanceller for up to 3 years
What is the role of the law commission
S3 Law commissions Act 1965 duty is to keep all law under review with a view to its systematic development and reform
What 4 things do lae reform do
Reform
Codification
Consolidation
Repeal
How do the law commission reform
Referral from lord chancellor
Choose own area with lord chancellors approval
Consultation paper -> responses -> proposal and draft bill to chancellor
What is the law commission currently consulting on
Laws on search warrants in order to make it fairer, safer and more cost effective
What is meant by codification
Collecting together laws on one subject into one set of rules
e.g draft criminal code
What is consolidation
Collecting together existing laws on one subject into a statute
Powers of criminal courts sentencing act 2000
What is repeal
Removing obsolete and out of date acts
Draft bill presented
19 starbies hills since 1965 repealing 3000 statues
Is law commission successful
1965-1975 85% of reports implemented
1975-1985 50% reports implemented
2010 + 27% reports implemented
Advantages of law comission
Research done by experts likely to be comprehensive and accurate - more likely to be free from political bias ‘unfair contract terms act 1977’
Disadvantages law comission
Most reports go unimplented - gov yet to reform non fatal offences against person
Gov not legally obliged to consult law commission about new laws
What is delegated legislation
Parliament gives powers to another body by passing an enabling act
Any act of parliament that gives law making powers to another body
WhT are by-laws
Made by locals authorities such as county councils in relation to local matters
Clean neighbourhood and environment act
Delegate powers to local councils to designate poop scoop areas
Also made by public corporations in relations to their activities
Transport act 2000
Delegates powers to strategic railway authority to make railway by-laws
What are statutory instruments
By enabling act
Employment rights act -> time off for public duties
Give effect to EU law
European communities act -> control of trade in endangered species regulations
Used to update law
National minimum wage act 2018
Respond to developments
Expert control North Korea sanctions order
What are orders in council
Made by Privvy council and approved by the king
Under powers delegated to them by enabling act
Keep up with events
Misuse of drugs act 2017
Deal with emergencies
Energy act 2000
Other reasons
Transfer of tribunal functions order 2013
Advantages of delegated legislation
Saves parliamentary time
Laws made by those with relevant expertise
Can be implemented quickly in contrast to act of parliament
Disadvantages of delegated legislation
Undemocratic
It is overused - typically 3500 stat instruments passed each year
Lack of effective control - poor law making
What is statutory interpretation
About judges making sense of acts of parliament and delegated legislation and deciding what the words used in them mean
Why is interpreting statues challenging
Can be difficult to identify parliaments intention
Sometimes words are left out as they are thought to be implied
Broad terms are often used
Error in drafting can be made
Sometimes new situations arise that were unforeseen
The meaning of words can change over time
What comes under statutory interpretation
Literal rule
Golden rule
Mischief rule
Purposive approach
What is the literal rule
Judge reads statute as a whole, puts words in context and gives them in ordinary meaning
LORD ESHER
if words of an act are clear you must follow them, even though they lead to a manifest absurdity. Court has nothing to do with the question of whether the legislature has created an absurdity
Evaluate literal rule
Follows parliament exact words - appropriate because parliament is supreme law making body
Literal rule creates certainty in law
Leads to consistent outcomes, fair and just
Can lead to unjust outcomes if meanings are applied regardless of consequence
Does not account for fact words have more than one meaning
What is the golden rule
The literal rule is to be followed unless it leads to an absurd outcome
Lord Wensleydale
‘Grammatical and ordinary sense of the word is to be adhered to unless that would lead to some absurdity or inconsistency’
Narrow view - choose between two meanings
R v Allen
Wide view - modify meaning
Sigsworth
Exvaulate folden rule
Respects exact words of parliament
Avoids judges making law
Escape route from absurd outcomes
Avoids desicions that would lead to reupgant situations
Very limited in use
Not always possible to predict when courts will consider outcome absurd
What is the mischief rule
Takes view statues are enacted to cure problems with common law
Or mischief and should be interpreted to achieve this
Lord coke
‘For sure and true interpretation of statues for things should be considered
What was law before act was passed
What was problem with statue when seeking remedy
What was parliaments solution
True reason for parliaments solution
Smith v Hughes
Evaluate mischief rule
Produces more just outcomes than a literal approach - law is less predictable
Promotes the aim of the law passed
Flexible
Leads to judicial law making - judges are unelected
Impossible to know when judges will use it - uncertainty
What is the purposive approach
Aims to give effect to purpose of legislation
Lord Denning
‘We sit here to find our intention of parliament and we do this better by filling in the gaps and making sense of enactment then opening it to analysis’
Popper v Hart
Evaluate of mischief rule
Leads to justice
More discretion to judges to aboid absurd outcomes
Keeps lane up to date
Difficult to find out parliaments true intentions so hard to apply statue
Difficult to determine outcome of case depending on what judge thinks purpose of act was
Judges may refuse to follow clear words set out in parliament
What is judicial precedent
Judge decided facts and decides how to apply laws
What is stare decisis
Stand by what has been said and do not unsettle the established
Once issue has been decided by court it should not be changed
How are like cases decided alike
Cases on similar facts to previous should follow desicions taken by judges in previous case
Donoghue v Stevenson
What is the judgement
Judge makes desicion and reasons judgement
What is ratio decedendi
Binding precedent must be followed
E.g Donoghue v Stevenson
Person owes dirty of care to those if reasonably forseesbcould affect his act or on mission
What are types or persuasive precedent
Desicions of power courts
Commonwealth courts
Privvy council
What is obiter dicta
If a judge makes comments on the law which are not exactly to do with the point in dispute in that case these are obiter dicta which means other things said
What is following
If facts are similar enough to previous case law will be applied in same way
Robinson v Chorf Constance of Yorkshire police followed desicion by
Hill v Chief Constable of Yorkshire police
What is overruling
If relevant earlier desicion made by lowrr court and judge disagrees with interpretation it can be over ruled
Does not change outcome of original case but will for later cases
Candler v crane
Reversing
Where appeal higher court decided lower court interpreted wrong - appeal court substitutes desicion
McLoughlin V O Brian
Distinguishing
When court considers material factors of the case they not bound by previous precedent
Merritt v Merritt
Elements of stare decisis
Like cases are decided alike
Ratio decedendi
Original president
Persuasive precedent
Follow overrule reverse distinguish
