Parliamentary Law Making Flashcards
What did joining the EU mean to UK citizens?
- It provided access to a new and additional source of law from the European community.
- The EU can and have passed a number of different laws which provide us with additional legal rights and duties.
- Rights include employment rights, equality rights, consumer protection and environmental legislation.
Sources of European Law
Treaties, Regulations, Directives
Treaties
Used to introduce major laws or amend existing treaties
- Treaty of Rome
- Treaty of European Union
Regulations
Laws issued by the EU which are binding on Member States
- Re Tachographs: EC Commission v UK (1979)
Directives
Used to harmonise laws in small areas/detail, member States introduce using own legislation
- Consumer Protection Act 1987
Vertical direct effect
Regards relations between individuals and the state. This means that individuals can invoke a European provision in relation to the country.
Horizontal direct effect
regards relations between individuals. This means that an individual can invoke a European provision in relation to another individual.
UK passes the European Communities Act 1972
The Act stated that all treaties passed by the head of government would automatically become part of UK law.
The Act has delegated law making powers to the European Union and has agreed to European law having priority over our own domestic legislation. Any treaty passed by the EU will have direct effect on our domestic law. This means that you can enforce any right, duty, obligation etc provided to you under any European treaty. It does not need to be implemented by an Act of Parliament.
The Formation of the EU
The European Economic Community was set up by Germany, France, Italy and the Benelux in 1957, by the Treaty of Rome. By joining in 1973, the UK accepted another source of law, European Union Law. The EU was introduced by the Treaty of European Union in 1993. There are now 28 Member States. In 2016 Britain voted to leave the EU.
Background to the European Union
The European Community was established by the Treaty of Rome in 1957. The founding states were Germany, France, Italy, Netherlands, Luxembourg and Belgium. The aim was to create a trading community which would prevent another major war in Europe. It is important to remember this is the starting point of the EU, the role of the institutions and the impact of EU law has had to be determined by the European Court of Justice through a number of key cases.
The Treaty of Rome, 1957
‘To harmonise the member states’ laws on a number of issues including trade, the economy, social protection, standard of living and employment within these countries’
What are the main institutions of the EU
The Council of the European Union, The Commission, The European Parliament, The Court of Justice of the EU
What are the two treaties which set out the EU rules
The Treaty of European Union (TEU), The Treaty of the Functioning of the European Union (TFEU)
The Commission - Membership
27 Commissioners supposed to act independently of their national origin
Each are appointed for 5 years and can only be removed by a vote of the European Parliament
The Commission - Function
- Puts forward proposals for new laws
- The guardian of the treaties, ensuring provisions are implemented
- Administers the Union and has executive powers to implement the Union’s budget
The European Parliament - Membership
MEPs are elected by the electorate of the Member States in elections every 5 years. The number of MEPs is determined by the size of the population of the country. The members do not operate within national groups, but political groups. MEPs are elected by the electorate of the Member States in elections every 5 years. The number of MEPs is determined by the size of the population of the country. The members do not operate within national groups, but political groups
The European Parliament - Function
- Can legislate on an equal footing with the Council in most areas
- Approve or reject the Commission’s legislative proposals
- Decides whether to admit new Member States
The Council of the European Union - Membership
Each government sends a representative to the council. Twice a year government heads meet in the Summit to discuss broad matters of policy. Member States take it in turns to provide the President of the Council. There is a committee of permanent representatives
The Council of the European Union - Function
- The principal law making body of the Union
- Voting in the Council is (in 80% of decisions) by double majority, which is reached if two conditions are met:
55% of member states vote in favour
The proposal is supported by member states representing at least 65% of the total EU population
What does The Court of Justice of the European Union do
- The Court hears cases to decide whether Member States have failed to fulfil obligations under the Treaties
- The Court hears references from national courts for preliminary rulings on points of European law
What is the role of The Court of Justice of the European Union
- ensure that in the interpretation and application of the Treaty the law is observed’ - Article 19 of the Treaty of European Union
- to ensure the law is applied uniformly in all Member States. Rulings made are binding on courts in all Member States.
The European Communities Act 1972
All such rights, powers, liabilities, obligations and restrictions… created under the Treaties…are without further enactment to be given legal effect in the United Kingdom… [they] shall be recognised and available in law, and be enforced, allowed and followed accordingly’
Mccarthy’s Ltd v Smith (1980)
received a salary of £50 per week. She complained that the man who had previously held the same job received £60 per week, in breach of both the British Equal Pay Act 1970, as well as Article 119 of the European Communities Treaty. Ms Smith submitted that where UK and EC legislation was incompatible on the matter, EC law would prevail.
The case was then referred to the European Court of Justice where it was held that Ms Smith was entitled to compare her salary with that of a former employee
Why is it important to keep the law under review?
To keep track of the multiple sources of law , to keep the law accessible and manageable, to ensure it is democratic, to ensure large areas of the law are not neglected, to avoid overly complicated laws, to adapt to the changing needs of society, to remove old laws
What is the role of the Law Commission?
It’s role is to ‘review all the law’ and to be concerned with:
‘Systematic development and reform’
Codification
Consolidation
Repeal
Who are the law commission
A full-time body and consists of a Chairman who is a High Court Judge and four other Law Commissioners who are highly qualified lawyers.
Set up by the Law Commissions Act 1965.
Consolidation
combining the law from several Acts of Parliament into one Act of Parliament.
Codification
bringing together all the law on one topic into one complete code of law.
Repeal of an Act of Parliament
the Act is no longer law. Only Parliament can repeal an Act of Parliament.
The process of the Law Commision
A topic for research is chosen by the Law Commission or referred by the government, the Law Commission researches the law, the Law Commission issues consultation paper, law Commission issues final report
How successful is the Law Commission?
Between 1965 and 1975 - 85% of proposals were enacted
Between 1975 and 1985 - 50% were enacted due to lack of parliamentary time
Overall 66% of reform reports became law 1965-2016.
What measures have been put in place to ensure reforms are implemented?
- The Law Commission Act 2009 - placed a requirement on the Lord Chancellor to report to Parliament annually on the government’s progress on implementing reports
- A protocol agreed between the government and the Law Commission in 2010 which requires ministers to respond to reform proposals
- A dedicated parliamentary procedure to implement Law Commission reports
Advantages of the law commission
- Researched by legal experts
and consults before finalising proposals. - Whole areas of the law can be considered. If Parliament enacts the reform of a whole area of law, then the law is in one Act.
Disadvantages of the law commision
- Law Commission has to wait for the government to bring in laws it proposes. Criminal law and law of negligence in need of reform.
- Lack of parliamentary time and gov. can choose not to follow recommendations.
- Changes made as the Bill goes through parliament may affect the proposed reforms.
Three laws that have been implemented by the Law Commission since 2002.
stare decisis
stand by what has been decided
The doctrine of precedent
Precedent is based on stare decisis
Every court is bound to follow any decision made by a court above it..
In general, courts of appeal are bound by their own past decisions.
Ratio decidendi
Following a case there will be a judgement explaining the reasons for the court’s decision. These principles are known as the reason for deciding. This creates precedent to follow in future cases. The ratio is any rule expressly treated by the judge as a necessary step in reaching his conclusion.
Obiter dicta
The rest of the judgement, that does not set precedent, the other things said. Sometimes a judge may speculate on what their decision would have been if the facts of the case had been different. The legal reasoning may be considered in future cases but is not binding.
R v Howe
Two men, including Howe, were acting under orders of an older man called Murray. On the first night, Murray ordered them to kick and punch a man and they were told they would succumb to similar treatment if they did not do as he ordered. The man was strangled to death.
The second killing took place the following night at the same location on another male. Murray had ordered Howe and the other man to strangle him and they complied. The third charge related to a similar incident, however, the intended victim managed to escape.
Howe tried to plead that he was acting under duress.
Ratio decidendi: duress cannot be a defence for murder
Obiter dicta: you also can’t apply duress to attempted murder
R v Gotts
The appellant, a 16 year old boy, was ordered by his father to kill his mother otherwise the father would shoot him. The boy stabbed his mother causing serious injuries but she survived. He was charged with attempted murder and the trial judge ruled that the defence of duress was not available to him. He pleaded guilty and then appealed the judge’s ruling. The appeal was dismissed and his conviction upheld.
- Following the obiter dicta of R v Howe, the House of Lords found the defendant guilty on the basis that duress is not a defence to attempted murder.
