Parliamentary Law Making + Law Reform Flashcards
What is consultation
● Valuable part of the legislative process
● Interested parties can send comments, and amendments can be made at
this stage
● Allows for measured, detailed discussion
● Government can ‘skip’ the Green Paper, and issue a White Paper
immediately
● This removes the time for consultation, and often leads to ‘bad law’, as a
result of rushing through legislation that ultimately proves unworkable
What was the Dangerous Dogs Act? And what is its significance
‘Knee-jerk reaction’
What was set out in the parliament Acts 1911 & 1949
● A Bill has to pass all three parliamentary stages before it can become law
● If there is deadlock, the House of Commons will always prevail
● The power of the the House of Lords to reject a Bill is limited by the Parliament Act 1911
● It allows a rejected Bill to be reintroduced to the House of Commons in the next session of Parliament, and if it passes the stages in the Commons afgain, it will become law
What is the meaning of ‘separation of powers’
Baron Montesquieu: 18th century French political theorist described the perfect political system as ideally composing three separate and distinct branches, each co-equal in power
What were the powers split off into?
- The Executive (or government) = propose the law
- The Legislature (or parliament) = approve the law
- The Judiciary (or judges) = interpret the law
What is delegated legislation?
allows the Government to make changes to a law without needing to push through a completely new Act of Parliament.
Why is delegated legislation used?
● Time and expertise of Parliament
● Local area knowledge
● Technical knowledge (Police & Criminal
Evidence Act 1984)
● Small changes to existing laws (Misuse of
Drugs Act 1971; Dangerous Dogs Act;
1991; Road Traffic Act 1972
● War or national crisis (Covid-19 2020
legislation; 2000 petrol shortages
What are bylaws (type of DL)
● Local authorities/councils
● Cover their area only- county or
district
● Many involve traffic/parking
restrictions - pedestrianising
roads in Kingston, for example
● Public corporations - control
public behaviour on their premises and using their services - drinking is banned on the tube
● Enabling Act - Local Government Act 1982
What are orders in council (type of DL)
● Made by King and Privy Council
● Can be used in an emergency if
Parliament can not sit
● Enabling Act = Civil Contingencies Act 2004
● E.g. 2000 petrol strikes
● Other Enabling Acts granting PC
right to make changes:
○ Misuse of drug Act 1971 -
change classification of
drugs
○ Constitutional Reform Act 2005 - increase number of SC judges
● Used to give effect to European Directives into UK law, and to move responsibilities between government departments
What are statutory instruments (type of DL)
● Over 3,000 made every year
● Made by government ministers
and their departments
● Often dealing with minor changes - increase in the
national minimum wage; add breeds of dogs to Dangerous Dogs Act 1991; Road Traffic Act - bike helmets
● Different Ministries responsible for making different SIs, saves entire Act being rewritten
● Can be very short - minimum wage; dangerous dog breeds
● Can be very long - codes of practice relating to police powers under PACE (Police & Criminal Evidence Act) 1984
What 3 types of control does parliament have over the law?
- Enabling act
- Affirmative and negative resolution procedures
- Scrutiny by committees
What is the enabling act and what does it do?
● States who has law making power delegated to them
● States the type and extent of laws - whole country?
● States procedure that must be followed to use the power
● Can specify a period of consultation before new SIs are made
● Can ultimately be repealed (withdrawn) by Parliament - Parliamentary sovereignty
What are negative resolution procedures for SIs
Negative:
● Automatically becomes law after 40 days unless rejected by Parliament
● Very few SIs are looked at, but most SIs become law this way
● Laws are made with no scrutiny or challenge
What are affirmative resolution procedures for SIs
● The SI has to be specifically approved by Parliament to become law via a vote
● Very few SIs subject to this procedure, which will be set out in the enabling Act
● E.g. any revised codes of practice under PACE 1984
● Parliament can: approve, annul, or withdraw only - can not amend the SI
What is scrutiny by committees and what is the scrutiny committee?
● Members from both Houses
● Checks the SI once it has been made and
is in force
● A ‘review’ procedure - can not alter or
withdraw the SI
● Reports back to Parliament any concerns, e.g unusual use of powers; has exceeded powers in the enabling Act
● Can only review limited number of SIs each year
What is the delegated powers and regulatory reform committee?
● This gives the HoL power to check the Bills that include sections that delegate law making powers - future enabling Acts - before they come law
● Can not make changes to the Bill, but can report any concerns during the legislative process
What are some key criticisms of parliamentary controls?
● Undemocratic
● Over-use of negative resolution procedure
● Committee scrutiny is not powerful enough - toothless
What are the 4 different controls by the court?
Judicial review
Procedural ultra vires Substantive ultra vires ‘Wednesbury’ unreasonableness
What is judicial review?
● Individuals are allowed to challenge laws
● This extends to SIs
● To bring a challenge you have to
be directly affected by the
legislation
● The judge will consider if the SI
has been made beyond the
power of the enabling Act
What is substantive ultra vires?
● The law-making body does not have the power to make the rule under the enabling Act
What is procedural ultra vires?
● The correct procedure in the enabling Act has not been followed by the secondary body
What is ‘Wednesbury unreasonableness’
● A decision is so unreasonable a sensible person would not have arrived at it
● If a decision taken by a public body is found to be unreasonable based on the Wednesbury test, the decision will be held to have been ultra vires
● Associated Picture Houses v Wednesbury Corporation (1948)
What are key criticisms of judicial controls?
● Strict time-limit: unfair, discourages applications
● High standard of proof - Wednesbury unreasonableness
● Challenges doctrine of Separation of Powers
● Limited effectiveness - courts do not review legislation unless an individual
make an application, no inherent powers to control it
What are some of the main difficulties in statutory interpretation?
- It can be difficult to identify parliament’s intention
- Sometimes words are left out as they are thought to be implied
- Broad terms are often used
- Errors in drafting can be made
- Sometimes new unforeseen situations arise
- The meaning of the words change over time
What are the 4 different interpretations to statutory interpretation?
- The literal rule
- The golden rule
- The mischief rule
- The purposive approach
What is the literal rule?
● Simplest rule to apply
● Judge gives the word its plain and ordinary meaning
● Usually = dictionary definition
● Even if it leads to an absurd result
Literal rule case:
Whitely v Chappeli
What is a key advantage of the literal rule?
Adds certainty as we know judges will always apply the ordinary rule of the word in the context
What is the golden rule?
Known as the ‘safety valve’.
A judge can use the Golden rule if using the literal rule would lead to an ‘absurd’ result. They can take either of the following approaches:
○ if there are 2 possible meanings to a word, they choose the best interpretation - Narrow approach
○ if using the clear meaning of a word would lead to a repugnant result, tthey can modify the meaning - Wide approach
Narrow approach case
Official Secrets Act 1920: it was an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited palace. D was actually in the prohibited place, rather than ‘in the vicinity’ of it, at the time of obstruction.
Wide approach case
Re Sigsworth: a man murdered his mother. Under the administration of Estates 1925, he was the ‘next of kin’ and stood to inherit her property as she had not made a will
What is the mischief rule?
Law reform: political influence
These promises are usually contained in a party’s manifesto, which is their plan for new laws if they are elected. After the party is elected, the plan is announced to the country in the Queen’s speech at the opening of Parliament. The full parliamentary process is considered in depth in the Diploma course when studying the English legal system and involves more detail than we are able to cover in this article.
Law reform: media
The Dangerous Dogs Act, following the death of several small children savaged by dogs
The formation of the sex offenders register, following the tragic death of a child at the hands of a paedophile
The ban on smoking in public places following years of lobbying by pressure groups such as the British Medical Association
As you may now see, the development of the law in this country is influenced by many different bodies. Next time you hear the news or read a newspaper article announcing the creation of a new law, you may be able to pause and consider who is actually behind the idea in the first place.
Law reform: pressure groups
Pressure groups are a body of people with a shared interest in getting Parliament to change an area of law to benefit a cause or section of society. They do this by lobbying MPs, creating petitions and working with the media to gain as much publicity as possible.
Law reform: law commission
statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed.
Unfair contracts acts
Judicial precedent: stare decisis (‘stand by the decision’)
- a decision in an earlier case will stand as guidance for all future decisions
- the reported decisions of judges - contain the decision, and an explanation of how it was arrived at
- Judicial precedent operates by ensuring courts must follow the decisions made by the courts ‘above’ in the hierarchy of the court system
Judicial precedent: ratio decidendi
- binding
- refers to a key factual point or chain of reasoning in a case that drives the final judgment.
Judicial precedent: binding precedent
● Judge researches earlier cases on similar points of law
● If there is an earlier judgment
from a higher court, they are bound to follow the ratio in that case (the legal reasoning used by the judge in the higher court).
Judicial precedent: original precedent
● Sometimes a point of law has never been considered before, and there is no binding precedent for the judge to follow
● When this happens the decision made by the judge on the new point of law is an original precedent
● Sometimes a judge decides a point of law in an entirely new way, this also creates a new original precedent
Judicial precedent: persuasive precedent
● Courts lower down in the hierarchy - R v R 1991 (criminalised rape within marriage) HofL chose to follow decision in a case in the Court of Appeal
● Obiter parts of a judgment (R v Howe and R v Gotts)
● A dissenting judgment
given in a lower court might
be preferred by a higher court
Judicial precedent: following precedent
● the precedent is ‘relevant’ to the case the court is deciding - facts are significantly similar (for example: see R v Brown 1994
Judicial precedent: overruling precedent
● court believes the law set out in the earlier case (the precedent) is wrong, and
● earlier case was decided in a lower court
Judicial precedent: reversing precedent
● a higher court hears an appeal of a case from a lower court and decides to overturn the lower court’s decision (Fearn v Tate Gallery the SC has reversed the precedent set by the CofA)
Judicial precedent: distinguishing precedent
● it wants to avoid following a previous decision which it would normally have to follow (because it’s a binding precedent)
● Court must show that the ‘material facts’ of the present case are sufficiently different to allow it to draw a distinction between it and the precedent,
