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.
Binding precedent
A precedent which must be followed. The ratio decidendi of a case sets a binding precedent on courts of the same level and courts below.
Donoghue v Stevenson (1932)
Donoghue v Stevenson (1932)
Ratio decidendi: the manufacturer’s owe a duty of care to the ultimate consumer.
This case had never been seen before, so this was binding and original precedent.
Original Precedent
Precedents are original whenever the court addresses a point of law for the first time.
Re A 2001
Re A (2001)
Mary and Jodie were conjoined twins. Jodie was stronger and capable of living independently. Mary was dependent on Jodie for survival. According to medical evidence, if the twins were left as they were, they would both die. Doctors applied to the court for a declaration that it would be lawful and in the best interests of the children to operate. The High court granted the declaration on the grounds that it would be akin to withdrawal of support. The parents appealed to the Court of Appeal.
- Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors.
Persuasive Precedent
Precedents are persuasive when they are not binding on future cases.
Judges, are however free to adopt persuasive precedents.
They can be from a lower court, or were part of the obiter dicta (other things said) of a case.
Overruling
The procedure where a court higher up in the hierarchy overrules a legal ruling established in a previous case.
Reversing
Can only occur in the specific case being appealed. The appellate court disagrees with the legal reasoning of lower court and reverses the decision.
Distinguishing
The judge does not follow the decision in an earlier case because the facts are materially different.
Balfour v Balfour
A husband worked overseas and agreed to send maintenance payments to his wife. At the time of the agreement the couple were happily married. The relationship later soured and the husband stopped making the payments. The wife sought to enforce the agreement.
- Held: the agreement was a purely social and domestic agreement and therefore it was presumed that the parties did not intend to be legally bound.
Merritt v Merritt
A husband left his wife to live with another woman. He signed an agreement to pay the wife £40 per month to meet the mortgage payments. If she paid the mortgage until it was paid off he would transfer his share of the house to her. When the mortgage was fully paid she brought an action for a declaration that the house belonged to her.
- Held: The agreement was binding. The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated. Where spouses have separated it is generally considered that they do intend to be bound by their agreements.
Preamble
the preliminary part of an Act where Parliament expresses its general purposes
Internal (intrinsic aids)
Matters within the statute itself that may help make its meaning clearer.
Preamble, short titles, long titles
Headings and marginal notes
They are there for guidance.
Impact of EU Law on Interpretation
The purposive approach is preferred by most European countries and used in the European Court of Justice in interpreting European law. Member states have to accept use of the purposive approach as the Treaty of Rome stated that all member states were required to ‘take all appropriate measures… to ensure fulfilment of the obligations. The Marleasing Case (1992) ruled that this included interpreting national law in the light and the aim of the European law.
Impact of human rights on interpretation
S3: so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights. This applies to any case where one of the rights is concerned
Extrinsic aids of interpretation
Hansard, reports of law reform, International conventions, regulations or directives which have been implemented by English legislation, Previous acts, Historical Setting, Earlier case law, Dictionaries from the time
Hansard
Official report of what was said in parliament when the act was debated
Exceptions to judicial precedent
Where there is a decision of the Court of Justice of the EU, Cases involving human rights
Does the supreme court follow past decisions
in order to maintain certainty, the court is bound by past decisions unless decisions were per incuriam (in error)
problems with binding precedent
law can’t change to meet social conditions or challenged by other courts (DPP V Smith)
The Practice Statement
the House of Lords would treat its former decisions as ‘normally binding’ and would depart from a previous decision only when it appeared right to do so.
The Court of Appeal
Decisions by one division of the Court of Appeal will not bind the other. However, within each division, decisions are normally binding. This rule comes from the case of Young v Bristol Aeroplane Co Ltd. (1944).
Herrington v British Railways Board, overruling Addie v Dumbreck.
Why do the courts need to interpret legislation?
Parliament acts may not be clear, acts may include interpretation section which defines certain words, The Interpretation Act 1978 was passed to help judges with general words stating that unless the contrary appears, he includes she and singular includes plural
Why may the meaning of an Act be unclear?
broad terms may cover may possibilities ( Brock v DPP ), ambiguity when word has two or more meanings which are unclear, changes in language (Cheeseman V DPP)
The Literal Rule
The literal rule respects parliamentary sovereignty. The judge takes the ordinary and natural meaning of the word and applies it to the case, even if doing so creates an absurd result.
- Cheeseman v DPP
officers stationed there were not considered passers by, and therefore he did not commit an offence.
The golden rule
The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning.
- Adler v George
offence to obstruct HM Forces in the vicinity of a prohibited area. Adler was arrested for obstructing forces whilst in a prohibited area.
The Mischief Rule
The main aim of the rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would “suppress the mischief, and advance the remedy”.
- Royal College of Nursing v DHSS
nurses can legally perform surgical induced abortion.
The purposive approach
This approach goes beyond the mischief rule. It is not just looking to see what the gap was in the old law, the judges are deciding what they believe Parliament was intending to achieve. In other words, what was the purpose of the original law?
- Jones V Tower Boot Co
The purpose of the law was to prevent ethnic minorities from suffering in the workplace.
advantages and disadvantages of the literal rule
respects parliamentary sovereignty, may end up in absurd results, no scope for the judges own opinion, assumes that every Act is written perfectly without any mistakes or drafting errors
advantages and disadvantages of the golden rule
allows the court to make sensible decisions, it is unpredictable and lacks guidelines, judges can technically change the law by changing the meaning of words in statutes
advantages and disadvantages of the purposive approach
consistent with legislative intent, encourages a broader view, can be subjective, create uncertainty
advantages and disadvantages of the mischief rule
gives effect to parliament’s intentions, allows judges to consider social and technological changes, allows judges to look at external aids like Hansard, undemocratic, might cause uncertainty
Consultation documents
If a change in law is being considered, the ministry responsible will draft ideas for change. Two types of consultation document will be drawn up. A green paper is a consultative document, which puts forward the government’s initial proposals for law reform. White papers are policy documents produced by the Government to set out their firm proposals for future legislation.
Private members Bill
Introduced by individual MPs or members of the HOL. Relatively few become law. Introduced by Ballot or Ten-minute rule.
Government Bill
Introduced by the government minister responsible. Majority of Acts are introduced in this way, drafted by the Parliamentary Counsel.
Public Bills
Involves matters of public policy. Most government bills are in this category.
Private Bills
Affects only an individual, particular organisation or place. Eg. Changing the way a company is run.
The Parliament Acts, 1911 & 1949
Limit the power of the Lords as they are not an elected body.
Allow a Bill to become law even if the Lords rejects it, provided that the Bill is reintroduced into the Commons in the next session of Parliament and passes all the stages again there
First reading
This is a purely formal stage at which the title of the bill is read out. There is no debate on the bill.
Second reading
Main debate in which MPs debate the principles behind the Bill. Speaker controls the debate. A vote is taken (verbal). If unclear, a formal vote takes place, MPs leave the chamber passing vote to the ‘tellers’. There must be a majority for a Bill to progress.
Committee stage
Detailed examination of each clause of the Bill, by a Standing Committee (chosen specifically) of 16-50 MPs. Government will have a majority in the committee and the other parties are represented proportionally to the number of seats in the HoC.
Report stage
The committee report back to the House on any amendments made at Committee Stage. Amendments will be debated in the House and accepted or rejected. Seen as a safeguard against a small committee amending a Bill against the wishes of the House.
Third reading
Final vote on the Bill. Formality and unlikely to fail at this stage.
Same procedures in the Lords
If started in HoC, now passes to HoL for the same five stages. If amendments are made it returns to the HoC for them to consider. If they do not accept, they send it back to the Lords. This ‘ping-pong’, can go on for some time.
Royal assent
Final stage, monarch gives approval.
Now a formality under the Royal Assent Act 1967. Monarch does not have text to the Bill she is assenting. Last refused in 1707.
advantages of parliamentary law-making?
democratic, wide reaching, can legislate on any subject matter, delegated legislation, consultation documents allow for objections and amendments.
disadvantages of parliamentary law-making?
time pressures, can take a long time, government is in majority, house of lords not democratic, lords often politically affiliated
Why do we have delegated legislation?
allows the opportunity to add technical detail without having to pass a new Act of Parliament each time.
It is a relatively quick process, so emergency situations can be responded to quickly.
It allows for further consultation with affected parties and it is more flexible than primary statutes and can be altered to fit changing circumstances.
It can be used to update the law quickly.
Enabling Acts
create the framework of the law and then delegates power to them to make more detailed law in the area. For example, the Hunting Act 2004 enabled the Secretary of State to make amendments to easily tweak the law.
Orders in council
Made by the Queen and the Privy Council - most commonly used to transfer responsibility between government departments.
- Misuse of Drugs Act 1971
making cannabis a class c drug an order of council was used to change cannabis back to a class B drug
Statutory instruments
rules and regulations made by government ministers, often to implement the provisions made in Acts of Parliament.
- Police and Criminal Evidence Act 1984
Police codes of practice in relation to stop and search, arrest and detention.
By-laws
Made by local councils and other public bodies.
For example, a local council might wish to ban drinking in its town centre and public corporations such as bus and train services can impose fines for non-payment of fares.
advantages of delegated legislation
allows Parliament to concentrate on broader issues, delegated legislation allows the use of experts in relevant areas to make more detailed laws, delegated legislation is quick and can be easily removed if necessary if causing problems
disadvantages of delegated legislation
undemocratic, lack of scrutiny, may go beyond powers
Affirmative resolutions
some statutory instruments will not become law unless specifically approved by Parliament
Negative resolutions
statutory instruments will become law unless rejected by Parliament within 40 days
Control by the courts
courts can challenge delegated legislation on the ground that is is ultra vires, any legislation found to be ultra vires will be void and not effective.
R v Home Secretary, ex parte Fire Brigades Union
Party manifestos
are a list of reforms parties promise to carry out if elected, In 1997, Tony Blair’s Labour Party pledged the implementation of the Human Rights Act in its election manifesto. After they were elected, the Human Rights Act was passed in 1998.
The media
members of the public go directly to the media to build awareness on a particular issue. However, media outlets can use their platform to express their own political opinion. For example, The Sun is pro-Conservative and The Guardian is pro-Labour.
If they ignore the media then they run the risk of losing favour with the public and possibly losing voters for the next election.
- The Firearms (Amendment) Act 1997
League Against Cruel Sports
Causal pressure groups promote causes or values, as opposed to the interests of a section of society. They tend to seek a broader membership and are less influential,
The League Against Cruel Sports is an animal welfare charity which campaigns to stop blood sports. It was instrumental in bringing about the Hunting Act 2004, which banned hunting with hounds in England and Wales.
Lobbyists
Lobbying is when a particular group, perhaps a commercial organisation, or an individual whose job is lobbying can rally support for a change in the law.
These groups and people must be registered. However, this doesn’t always happen, and becomes controversial when someone might meet a political party and donate money to their cause in return for influence.
- Ecclestone and Tony Blair, the Department of Health sought exemption for Formula One from the European Union’s proposed ban on tobacco advertising.
