Law Making Flashcards
What are the 2 Houses of Parliament?a
House of Commons and House of Lords
Briefly describe the House of Commons.
Made up of 650 MPS, each MP is elected to serve a geographical area . All MPs are members of a political party.
Briefly describe the House of Lords
Made up of 800 unelected members who mostly are members of a particular party and inherit their seats
What are the 5 influences on law making?
Political influences
Public opinion
Media
Pressure groups
Lobbying
What is political influences as an influence on law making?
Ideas that political parties have are set out in manifestos and are considered when voting and when introducing BILLs. Political influences on law making depends on the part which wins the majority.
What is an advantage and disadvantage of political influences?
Adv: manifestos are a way in which people can see if the government is fulfilling its promises.
Disadv: if the governments majority is small, it can be difficult to pass legislation
What is public opinion in relation to influences on law making?
Public opinion is the thoughts and views of the public that politicians need to keep up with to win the publics votes.
What is an advantage and disadvantage of public opinion?
Adv: if laws are passed due to public opinion, it means the government is answerable to the public and reflects the will of the people
Disadv: if public opinion is manipulated by the media, it can be argued that it is not representative of the public
What are pressure groups and the 2 they are divided into?
Pressure groups are groups of people that campaign on certain issues.
They can be divided into 2 groups:
1. Cause groups = work to promote a particular cause
2. Interest groups = represent the interests of the people in the group
What is an advantage and disadvantage of pressure groups?
Advantage: groups with large numbers of members are able to raise concerns that affect many people
Disadvantage: pressure groups can have directly opposing aims
What does the media do in terms of influencing the law?
The media can bring pressure on the government to pass legislation
- the media can manipulate public opinion
- legislation passed due to media pressure=dangerous dogs act 1991
What is an advantage and disadvantage of the media on influencing laws?
Adv:Can help bring important issues to the governments attention
Disadv: if laws are rushed in response to the media, the quality of law may suffer
What is lobbying?
Lobbying attempts to gain the support of individual MPs for a particular cause. It can come from pressure groups or individuals.
What is an advantage and disadvantage of lobbying ?
Adv: lobbying makes sure that MPs and government are aware of issues
Disadv: people with more money may be able to exert a disproportionate influence over the law making process
What is a Bill in relation to parliamentary law making?
Is a draft of an act of parliament
What are the 4 types of bills?
- public
- private members
- private
- hybrid
What is the public bill and the private members bill?
Public bill= affects the whole country and is put forward by the Government
Private members bill= affects the whole country and is put forward by an individual MP.
What is the private bill and the hybrid bill?
Private bill= changes the law regarding specific individuals or organisations, not the general public
- anyone who is “specifically and directly” affected can petition against the Bill
Hybrid bill= affects the general population but impacts specific groups or individuals
What are the 3 stages of the pre-legislative parliamentary law making process?
- Green paper- consultation document
- White paper- firm proposal of law
- Draft bill - formal legal language (made by parliamentary draftsman)
What are the stages when the bill is in the House of Commons?
- First reading
- Second reading
- Committee stage
- Report stage
- Third reading
What happens when the bill is passed to the House of Lords?
The whole process is repeated and if then proceeded it goes into the ping pong stage where the bill goes between the houses until they come to an agreement.
What are the last 2 stages of the law making process?
Royal assent- happens when the final version on the bill is agreed and it becomes an act of parliament
Commencement- this is the final stage where the act comes into force
What is the order of the parliamentary law making process?
Green paper - white paper- draft bill - 1st reading - 2nd reading - committee stage - report stage - 3rd reading - House of Lords - royal assent - commencement
What is an advantage of parliamentary law making?
It is a democratic process and can represent the public views about certain laws and issues
What is a disadvantage of parliamentary law making process?
It is very slow and can take many months to pass bills meaning it is not suitable in dealing with emergencies
Briefly describe the law commission
The law commission was created by the Law commissions act 1965
It is an independent body and aims to ensure the law is fair, modern, simple and cost effective as possible
What is the role of the law commission?
Reform
Codification
Consolidation
Repeal
What is reform in relation to the role of the LC?
Reform consults all groups and individuals that are affected by the area of law, making the law modern and fairer
What is codification in relation to the role of the LC?
Codification is collecting together laws on one subject into one set of rules
What is consolidation in terms of the role of the LC?
Consolidation is collecting together existing laws on one subjects into into one statute.
What is repeal in terms of the role of the LC?
Repeal is the removal of obsolete and out-of-date acts
What is an advantage and disadvantage of the law commission?
Adv: The research is done by legal experts meaning information and law is more likely to be accurate and reliable
Disadv: many laws remain out dated and difficult to understand
What are the 3 law reforms?
Law commission
Royal commission
Judge-led inquiries
What is the royal commission?
They are advisory committees established by the government to investigate a matter of public concern on a one-off basis.
What is the role of the royal commission?
Take evidence from interested parties and undertake research, they then produce a report setting out their recommendations
What is an advantage and disadvantage of the royal commission?
Adv: As they are an independent body it enables them to tackle politically sensitive issues in an unbiased way.
Disadv: rarely used
What are judge- led inquiries?
A judges is appointed by the government to look into a specific area of the legal system or the law
What is an advantage and disadvantage of judge-led-inquiries?
Adv: judges have considerable expertise and can deal with complex and specialist topics
Disadv: those who are not legal experts are not best placed to assess the legal system and its needs
What is delegated legislation?
Delegated legislation is when parliament gives powers to another body by passing an enabling act.
What is an enabling act?
Any act of parliament that gives law-making power to another body
What are the 3 types of delegated legislation?
By-laws
Statutory instruments
Orders in council
What are by-laws?
By-laws are made by local authorities in relation to local matters.
(Boddington v British transport police)
What are statutory instruments and its uses?
Statutory instruments give government ministers power to issue and to make changes to existing law.
Uses: give effect to EU law, update the law and respond to developing issues
What are orders in council and its uses?
Orders in council are made by the king and privy council under powers delegated to them by an Enabling act
Use: keep up with events,deal with emergencies etc
What is an advantage and disadvantage of delegated legislation?
Adv: saves parliamentary time- parliament can concentrate on issues of national importance
Disadv: it is undemocratic as officials are not accountable
What are the 2 categories of controls on delegated legislation?
Parliamentary and judicial
What is one parliamentary control on delegated legislation?
The enabling act: it sets out the scope and procedure of delegated powers and can be repealed by parliament
What is statutory interpretation?
The process used by judges to determine the meaning of words in a statute
What are aids to interpretation?
Tools available to judges while interpreting statutes
What are the 2 aids to interpretation?
Intrinsic and extrinsic aids
What are intrinsic aids and some rules/types?
Intrinsic aids= found within acts of parliament
Rules:
General rule
The specific rule
The context rule
What are some other intrinsic aids?
Short title
Long title
Interpretation sections
What is an advantage and disadvantage of intrinsic aids?
Adv: saves time and money, and is quicker than the use of extrinsic aids
Disadv: may be limited and may not provide the judge with a solution
What are extrinsic aids?
External aids found outside the act of parliament
What are some examples of extrinsic aids?
Academic textbooks and articles
Treaties
Oxford English Dictionary
Law commission reports
What is an advantage and disadvantage of extrinsic aids?
Adv: allows judges to consult a greater range of material than intrinsic aids
Disadv: can be a lengthy and costly process
What is judicial precedent?
When courts must follow the decisions of higher courts in previous or similar cases.
What is judicial precedent also known as?
Stare decisis
What does stare decisis mean or stand for?
“Stand by what has been decided”
Once an issue has been decided by court, other court should not change it
What are the elements for stare decisis?
- like cases are alike
- ratio decendi
- original precedent
- persuasive precedent
What does like cases are alike mean in terms of stare decisis elements?
When a judge decides a case that is similar on the facts of a previous case, he should follow the decisions taken by the judge in that previous case.
(Donoghue v Stevenson)
What is ratio decendi?
Ratio is the reason for the courts decision and the precedent that other courts must follow (it forms a binding precedent)
What is original precedent?
Original precedent is where there is no existing precedent as so the court must create an original precedent.
(Hunter v Canary Wharf)
What is persuasive precedent?
It is other factors taken into account by judges when making their decision
Such as: decision of lower courts, orbiter dicta and dissenting judgements.
What is obiter dicta?
Other things said- the comments the judges make are not binding on other courts but may influence them.
What is dissenting judgement?
Where a judge disagrees with his or her colleagues, so they will set out their reasons
What are the 4 options when deciding a case?
Follow
Overrule
Reverse
Distinguish
Briefly describe these 4 options when deciding a case.
Follow- if the facts are similar enough to the previous case, the law will be applied in the same way to reach a decision
Overrule- if the relevant early decision was made in a lower court and the judge disagrees with that courts interpretion of the law then it can be overruled
Reverse- the appeal can substitute the previous decision with its own interpretation of the law
Distinguish- courts are not bound by a previous precedent
What is an advantage and disadvantage of judicial precedent?
Adv: judicial precedent creates certainty in the law, which allows lawyers to advise their clients on the likely outcome of their cases and agree with the rule of law
Disadv: the system is hugely complex and it can be hard to find out wha the law is and judgements made are not always clear
What is the European Commission?
Th European Commission is made up of 27 commissions appointed by the members of state, they are independent of national interests and promote the interests of the EU as a whole.
What is the role of the European Commission?
Decide on policy and strategy, propose legislation, draft EU budget and negotiation trade on the EU’s behalf.
What is the European council
The main decision making body, they discuss, amend and adopt laws proposed by the commission.
What is the European Parliament?
Makes laws: debate issues, make decisions together with European council, can approve, ammend or reject commissions proposals
What are the 3 sources of law?
Treaties
Regulations
Directives
What are treaties?
International agreements between member states, they create EU institutions and establish aims of the EU
- they are automatically part of EU law and have direct effect- horizontal and vertical
What are regulations?
They are issued by the European council and must be applied even if later domestic legislation conflicts (it is binding)
- it has horizontal and vertical direct effect
What are directives?
They set out a goal all members of state must achieve but each country can chose how to implement it, member states introduce their own law within a certain time limit
It ensures harmonisation of laws across the EU
- they have vertical direct effect against the state
What does direct applicability mean?
Treaties and regulations automatically become part of the law without the need for legislation.
What is direct effect in terms of eu law?
Individual rights created by EU law must be protected by domestic courts.
It can be vertical or horizontal
What happens where EU and national law conflicts?
EU law is more powerful so will always have to be follow even if the national law is made afterwards.
