Section 3. Law - making Flashcards
What does a government issue if it is unsure about the legislation it wants to introduce?
A green paper
What does the government produce after a green paper?
A white paper
What is a green paper?
A document setting out options for legislation and inviting consultation
What is a white paper?
A more detailed statement of the government’s intentions
Why is consultation, before a new law is made, valuable?
- As it allows time for mature consideration
- From time to time governments are criticised for responding in a ‘knee-jerk’ fashion to incidents or a situation and, as a result, rushing through law that has subsequently proved to be unworkable
- E.g. The dangerous dogs act 1991
What is a bill?
A proposed law introduced into parliament
What are public bills?
- They involve matters or public policy that will affect either the whole country or a large section of it
- E.g. The constitutional reform act 2005, The equality act 2010, The criminal justice and courts act 2015, and etc.
Can private members bills be a public bill?
- If it affects the whole population then yes.
- E.g. The abortion act 1967
What are private bills?
Bills that are designed to pass a law that will affect only individual people or corporations, not the whole country.
What is an example of a Private Bill?
The UCL Act (1996)
What are private members’ (backbench) Bills?
A bill tabled by backbenchers as opposed to government bills and can be introduced by either members of the HofCs or HofLs who are not ministers
What are some examples of laws passed as the result of private members bills?
-The Abortion Act (1967) - Legalised abortion in GB
-The Marriage Act (1994) - Allowed people to marry in any registered place, not only in register offices or religious buildings
What are government bills?
These are introduced by the government. They are likely to become law as government business takes priority in parliament
What stages does the bill have to go through in the House of Commons/Lords first to become an act of parliament?
1.Origin (papers)
2. First reading
3. Second reading
4. Committee stage
5. Report stage
6. Third reading
7. (Sent to King for royal assent first)
What happens in the first reading in the House of Commons?
The bill is made available to MPs but is not debated or voted on at this stage
What happens in the second reading in the House of Commons?
Principle of the bill is debated and a vote may be taken if it is contested
What happens in the committee stage in the House of Commons?
- Bill is scrutinised in detail by a public committee whose membership reflects the strength of the parties in the Commons
- Amendments may be at this stage if the government is prepared to accept them
What happens at the report stage in the House of Commons?
Whole House considers amendments made at the committee stage and may accept or reject them
What happens at the third reading in the House of Commons?
-This is the final vote on the bill
- Amended bill is debated and voted in by the whole House
What happens after the bill has gone through the stages of it becoming law in the HofCs?
It is then passed on to the HofLS
What happens in the HofLs stages of a bill becoming law if the bill started in the HofCs?
- Bill goes through the same stages in the Lords, with the exception of the committee stage, which is carried out by the whole House
- The Lords can propose amendments
- The Commons has to decide whether to accept, reject or further amend these
What happens after both Houses have agreed on the bill proposal?
- Royal assent
- Monarch formally gives approval to the bill, making it law and an act of parliament
- This stage is a formality as the sovereign is a constitutional monarch
What is the importance of The Parliament Acts of (1911) and (1949)?
-The power of the House of Lords to reject a bill is limited by the parliament acts 1911 and 1949.
-These allow a bill to become law even if the House of Lords, rejects it, provided that the Bill is reintroduced into the House of Commons in the next season of parliament and passes all the stages again there
What are the advantages of the legislative process?
- Before bills reach Parliament, consultations like Green papers gather feedback on proposed law changes, allowing the government to consider objections and suggestions
- All bills undergo extensive scrutiny in both Houses ensuring thorough discussion before becoming law
- Parliamentary sovereignty dictates that laws passed by Parliament are supreme, can’t be questioned, and must guide judicial decisions made in court
- In times of emergency, law can be introduced, debated and, enacted on quickly. E.g. The Coronavirus Act (2020)
What are the disadvantages of the legislative process?
- The legislative process is criticized as undemocratic due to the unelected House of Lords, undemocratic royal approval, and MPs often being bound to ‘take the whip’ rather than voting according to their conscience or constituents’ interests.
- Due to government and parliament’s limited capacity, reforms can’t deal with all reforms proposed. For instance, the law on non-fatal offences like assaults awaits reform.
- The legislative process can span months. E.g., the Consumer Rights Act 2015 took 14 months. Emergency laws, however, like those addressing the COVID-19 pandemic in 2020, can swiftly pass
- Parliamentary sovereignty hinders the removal or amendment of poorly drafted or outdated laws like the Dangerous Dogs Act 1991, meaning additional legislation is required for change.
What is delegated legislation?
Allows government to make changes to a law without needing to push through a completely new Act of Parliament
What is the enabling act?
The authority given to ministers to issue declarations in the original act
What are the different types of delegated legislation?
- Orders in Council
- Statutory instruments
- By-laws
What are ‘Orders in council’?
- They’re made by the King and the Privy Council
- They give the PM and other leading members of the government the power to make laws without going through Parliament
- E.g. Making law in times of national emergency
What are statutory instruments?
- Rules and regulations made by government ministers under the authority of an enabling act
- E.g. Police Codes of Practice, such as ‘stop and search’
What are by-laws?
Laws made by local authorities that only apply to that specific area
What are the different ways Parliament control delegated legislation?
-Checks on the enabling act
-Negative resolution
-Affirmative resolutions
-Supper-affirmative resolution
-Scrutiny committees
How are are checks on the enabling act a way parliament controls delegated legislation?
- This is where the original act will set out what ministers can and can’t do if delegated legislation is required in the future
- Parliament can revoke these powers at any time
How is negative resolution a way parliament controls delegated legislation?
Means that the statutory instrument will become law unless rejected by Parliament within 40 days
How is affirmative resolution a way parliament controls delegated legislation?
Means that a statuary instrument must be either approved, annulled or withdrawn (Can’t be amended)
How is super-affirmative a way parliament controls delegated legislation?
- This is when DL is made under the Legislative and Regulatory Reform Act 2006
- Parliament is given greater controls in this area as ministers are given very wide ranging powers
How are scrutiny committees a way parliament controls delegated legislation?
- They can only scrutinise the technicalities of statuory instruments, not policy
- They can refer any matters arising back to Parliament but can’t make any changes
How effective is the scrutiny of committees?
-It can be said to be effective as the committee are able to check a number of statutory instruments
-However, due to the number of statutory instruments made each year, the committee are unable to thoroughly check all of them
How effective is the affirmative resolution procedure?
-When this procedure is required there will be some debate in parliament and it will usually be used for very important and potentially controversial matters
-However, it is a time consuming procedure and it relies on time bing allocated to debate
How effective is the negative resolution?
-As there are so many statutory instruments, it is likely that only a few will be looked at in detail.
-This procedure is considered to have limited effect as there is no strict requirement to look at statutory instruments made under this procedure
What ways do the courts control delegated legislation?
-Procedural ultra vires
-Substantive ultra vires
-Wednesbury unreasonableness
How can delegated legislation be challenged in court?
- A person with sufficient standing or interest in the case
- Can be challenged by the judicial review on the ground its ultra vires
What is ultra vires?
- Delegated legislation has gone beyond the powers given by Parliament in the enabling act
- If this is found, legislation/decision will be void and of no effect
What is procedural ultra vires?
-It is ultra vires because the correct procedure set out by the enabling act has not been followed
- E.g. Aylesbury mushrooms case (1972) - His failure to consult the mushroom growers’ association meant that an order setting up a training board was invalid as it was against the interests of mushroom growers generally
What are substantive ultra vires?
- This is when a rule making body has no substantive power under the empowering act to make the rules in question e.g. acting beyond what is authorised
- E.g. R v Home Secretary, ex parte Fire brigades union (1995)
What is ‘Wednesbury unreasonableness’?
-This is when a decision is so unreasonable (or irrational) that no reasonable body or authority would ever consider imposing it
- E.g. R v Swindon NHS trust (2006)
What is an advantage of judicial controls?
-It is positive that an individual person or body has the ability to challenge a piece of delegated legislation or a decision made by a public body
What are the limitations on judicial controls?
- Likely that a challenge will be made against a govt. department or public body, which are likely to have greater resources and funding to defend the legislation or decision
- An action will have to be launched within 3 months of the decision having been made, and there will be no state funding or legal aid available for the challenge
- A court doesn’t have the power to strike down a piece of legislation due to the principle of parliamentary supremacy
What are the reasons for the use of delegated legislation?
- Detailed law
- Expert knowledge
- Local knowledge
- Consultation
How is detailed law a reason for the use of delegated legislation?
- Parliament doesn’t have time to deal with all the detail needed
- Using this means parliament has control through the use of enabling acts
How is expert knowledge a reason for the use of delegated legislation?
- Parliament may not have the necessary technical expertise or knowledge required to draw up the most effective laws e.g. health and safety regulations
- Thought to be better if parliament debate on the main principles thoroughly, but leave the detailed to be filled in by those who have expert knowledge of it
How is local knowledge a reason for the use of delegated legislation?
- For by-laws, local councils know their own areas and can decide which areas need drinking bans or what local parking regulations there should be
- Would be impossible for Parliament to deal with all the local requirements of all cities, towns, etc. in the country
How is consultation a reason for the use of delegated legislation?
- Important for rules on technical matters
- Ministers can have the benefit of consultation before having regulations drawn up
What are the advantages of delegated legislation?
-Time saving
-Allows consultation
-Allows quick law making
-Access to expertise
-Easy to amend
How is time saving an advantage of delegated legislation?
- Parliaments doesn’t have time to consider and debate every small detail of complex regulations
- Making such regulations through DL saves time
How is allowing consultation an advantage of delegated legislation?
- Can have the benefit of further consultation before regulations are drawn up
- Particularly important for rules on technical matters
How is quick law making an advantage of delegated legislation?
- An act of Parliament can take time and in a emergency parliament may not be able to pass law quickly enough
- Orders in council can be made very quick to deal with disasters in threats
How is access to expertise an advantage of delegated legislation?
- Modern society has become very complex and technical so makes it impossible for members of parliament to have all the knowledge needed to draw up laws on complex areas
- By using DL, the necessary experts can be consulted
How is easy amendment an advantage of delegated legislation?
- Delegated legislation can be easily amended or revoked without having to go back to parliament
- Useful when monetary limits have to change yearly e.g. minimum wage
- Can respond to new or unforeseen situations by introducing a statutory instrument
What are the disadvantages of delegated legislation?
- Undemocratic
- Sub-delegation
- Large volume and lack publicity
- Difficult wording
How is being undemocratic a disadvantage of delegated legislation?
- DL take slaw making away from the democratically elected HofCs and allows non-elected people to make law
- However, this criticism can’t be made of by-laws made by local authorities since these are elected bodies and accountable to the local citizens
How is sub-delegation a disadvantage of delegated legislation?
- Law making authority is handed down another level
- Causes comments that much of our law is made by civil servants and merely ‘rubber stamped’ by the minister of that department
How is large volume and lack publicity a disadvantage of delegated legislation?
- The large volume of DL gives rise to criticism since it makes it difficult to discover what the present law is
- This problem is aggravated by a lack of publicity, as much DL is made in private and passed through parliament without debate
How is difficult wording a disadvantage of delegated legislation?
Complex and obscure wording that can lead to difficulty in understanding what the law means
What is statutory interpretation?
- Where judges give a meaning to the words of an act of parliament when they are delivering their judgement in court
What are the three rules of interpretation judges use to define words?
- The literal rule
- The golden rule
- The mischief rule
What is the literal rule?
This rule developed in the early 19th century and has been the main rule applied every since then. Using this rule, a judge will give words their plan, ordinary or literal (dictionary) meaning, even if the result is not very sensible
Where was the literal case expressed?
- By Lord Esther in R v judge of the city of London court (1892)
- He said: “If th words of an act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity”
Where was the use of the literal rule illustrated?
- In Whiteley v Chappell (1868)
- The defendant was charged under an act that made it an offence to impersonate ‘any person entitled to vote’
-The defendant had pretended to be a person whose name was on the voters’ list, but who has died
-The court held that the defendant was not guilty since a dead person is not, in the literal meaning of the words ‘entitled to vote’
What happened in Fisher v Bell (1961)
-A shopkeeper had a flick knife displayed in his shop window with a price tag on it.
-The restriction of offensive weapons act 1959 made it an offence to ‘offer’ such flick-knives for sale.
-In ordinary contract law, goods on display in shops are not ‘offers’ in the technical sense but an ‘invitation to treat’, preparatory to a customer making an offer
-Lord Justice Parker applied the literal rule of statutory interpretation to the offence and found that the shopkeeper had committed no offence
What is the definition of the literal rule?
Words in an act are given their ordinary, natural, dictionary meaning
What is the golden rule?
A modification of the literal rule as it starts by looking at the literal meaning of words but the judge is then allowed to avoid an interpretation that would lead to an absurd result
What are the two views on how far the golden rule should be used?
- Narrow approach where there are only a couple of ways in which the judge can interpret words, so they will choose the meaning that makes the most sense
- The wider approach allows the judge to be more flexible and possibly add in words to avoid an absurd outcome.
What is an example of the narrow view of the golden rule in practice?
- Adler v George (1964)
- “in the vicinity”, one meaning, that means ‘near ‘, the other meaning would include actually being in the area itself
What is a case that is an example of a judge modifying the words of a statute (wider approach)?
Re Sigsworth (1935)
What happens in Re Sigsworth?
The judge added to the words to include ‘unless they had filled the victim to inherit their wealth’
What is the mischief rule?
-This rule gives a judge more discretion when interpreting legislation than the previous 2 rules.
-The definition of the rule comes from Heydon’s case (1584), where it was said that there were 4 points the court should consider.
What are the 4 points the court should consider in the mischief rule?
- What was the common law before the making of the act
- What was the mischief and defect for which the common law did not provide
- What was the remedy of the parliament bath resolved and appointed to cure the disease of the commonwealth
- The true reason of the remedy
What is an example of the way the mischief rule operates?
-Seen in Smith v Hughes (1960). There was a disagreement over using the mischief rule or the literal rule in Royal college or Nursing v DHSS (1981)
What is the purposive approach?
The courts look to see what is the purpose of the law passed by Parliament
What is an example of a case that uses the purposive approach?
R v Registar-General, ex parte Smith (1990)
What are the advantages of the literal rule?
- Follows wording of Parliament
- Prevents unelected judge making law
- Makes the law more certain
- Easier to predict how the judges will interpret the law
What are the disadvantages of the literal rule?
- Not ALL Acts are perfectly drafted
- Have more than one meaning
- Can lead to unfair or unjust decisions
What are the advantages of the golden rule?
- Respects the words of parliament
- Allows the judge to choose the most sensible meaning
- Avoids the worst problems of the literal rule
What are the disadvantages of the golden rule?
- Can only be used in limited situations
- Not possible to predict when the courts will use it
- It is a ‘feeble parachute’
What are the advantages of the mischief rule?
- Deals with mischief Parliament was trying to deal with
- Fills in the gap in the law
- Produces a ‘just’ result
What are the disadvantages of the mischief rule?
- Risk of judicial law making
- Not as wide as the purposive approach
- Limited to looking back at the old law
- Can make the law uncertain
What are the advantages of the purposive approach?
- Leads to justice in individual cases
- Allows for new developments in technology
- Avoids absurd decisions
What are the disadvantages of the purposive approach?
- Difficult to find Parliament’s intention
- Allows judges to make law
- Leads to uncertainty in the law
What rules have been delivered in the Acts of Courts to help make the meaning of words and phrases clear?
- The ejusdem generis rule
- Expressio unius
- Noscitur a sociis
What is the rule of language ‘Ejusdem generis’?
- General words that follow a list are limited to the same kind (be related)
- e.g. Apples, oranges, grapes (specific words), and other seeded fruit (general words). Would a pineapple be part of this? Yes, because it fits the seeded fruit list
What is the rule of language ‘Expressio unius’?
- The express mention of one thing excludes others
- E.g. Apples, oranges, and grapes. Would the lemon be part of this? No, because it isn’t one of the specific words
What is the rule of language ‘Noscitur a sociis’?
- This means that if the general words at the end of a list clearly state what something is, then it will exclude anything else
- E.g. Tomatoes, grapes and other fruit that grows on a vine
What are intrinsic aids?
- Explanations within the act itself that make it clearer
- E.g. the long title, the short title, and the preamble (if any)
What is a case example where intrinsic aids are present?
Harrow London Borough Council v Shah (1999)
What are the advantages of intrinsic aids?
- The words/instructions/notes etc. are included in the act.
- They’re easy to refer to and by and large clarify meaning and understand of the Act and its purpose
What are the disadvantages of intrinsic aids?
With rules around words, this might lead to a decision which appears unfair, but if the words are arranged in a particular way, there is no choice but to interpret them as they’re written
What are extrinsic aids?
Outside the Act, which can help explain the meaning of words in an Act
What are case examples of external aids?
- Pepper v Hart (1993)
- Cheeseman v DPP (1990)
What are the undisputed sources of extrinsic aids?
- Dictionaries - published at the time the Act was passed
- Hansard - the official record of everything said in Parliament
What are the advantages of hansard?
- Available for everybody to consult
- Online
- Can clear up what the original intent was in records of the bill’s discussion in Parliament
What are the disadvantages of hansard?
- Statements made in the debate may not be clear
- Lawyers can spend a long time reading back over debates. This costs lots of money
What are the advantages of law reform reports as an aid to statutory interpretation?
Problems in the current law are identified and in many cases
- A draft bill is included as a suggested alternative
What are the disadvantages of law reform reports as an aid to statutory interpretation?
- Law Commission reports are only available for limited areas of law.
- Any of the proposals or draft bills might have been rejected by government so that Parliament’s intention differs from the report
What effect does the Human Rights Act 1998 have on statutory interpretation?
Legislation must be read and given effect in a way which is compatible with the European Convention on Human Rights
(Doesn’t include areas where human rights are not involved)
What is a case example of the effect of the Human Rights Act has on statutory interpretation?
Mendoza v Ghaidan (2002)
What is stare decisis?
Stand by the decision in the court
What is ratio decidendi?
-When the judge gives the final decision
- It’s extremely important that the judge is absolutely clear about how and why they’ve reached that decision as this will be binding on any future cases of a similar nature unless, in the meantime, Parliament decides to step in and make a new law
Does it matter what court ratio decidendi is given in?
-If the ratio is given by a judge in a higher court, particularly an appeal court, it will carry great authority and must be followed by all lower level judges in later cases
What happens if there is a ratio decidendi given in an appeal case?
- Where there is a particularly important or complicated point of law, more than one judge may want to explain the legal reasoning that led to a decision
-This can cause problems in later cases as each judge mag have had a different reason for their decision, so there will be more than one ratio decidendi
-It will be for lawyers and judges in later cases to choose which ratio they prefer and which to use in court
What are the 3 stages of the doctrine of precedent?
- State decisis
- Ratio decidendi
- Obiter dicta
What is Obiter dicta?
- The judges notes that give suggestions about future cases
What is a major problem in Obiter dicta?
-When looking at a past judgement, its to divide the ratio decidendi from the Obiter dicta, as the judgement is usually in a continuous form, without any headings specifying what is meant to be part of the ratio decidendi and what is not
-Lawyers and judges dealing with later similar cases have to make their own decisions as what the ratio of a decision is and what forms the Obiter
What is an example of a ratio decidendi in a decision?
-R v Howe (1987)
-The House of Lords decided that the defence of duress was not available to a charge of murder
-They also expressed the opinion that duress is not a defence to a charge of attempted murder. This opinion was Obiter dicta, as Howe was not charged with attempted murder and it was directly relevant to the facts of the case
What is an example of Obiter statement becoming persuasive in later cases?
-R v Gotts (1992)
-The House of Lords followed the Obiter statement in R v Howe and, in their ratio decidendi, ruled that duress cannot be a defence to a charge of attempted murder
What is the hierarchy of courts in civil cases?
Supreme Court
Court of appeal (civil division)
Divisional courts
High court
County court
What is the hierarchy of courts in criminal cases?
Supreme Court
Court of appeal (criminal division)
Queen’s bench divisional court
Crown court
Magistrates court
What is the binding precedent?
-This is a precedent from an earlier case that must be followed if the decision was made by a court that is senior to (or in some cases the same level as) the court hearing the later case
-E.g. a precedent set by the court of appeal civil division must be followed by all lower courts in the hierarchy and will generally be followed by later cases heard by the court of appeal
-This follows the principle of stare decisis
What is the persuasive precedent?
A precedent that is not binding on a court, but the judge may consider it, decide that it is a correct principle and be persuaded that it should be followed
What are the different sources that persuasive precedents can come from?
-Courts lower in the hierarchy
-Decisions of the judicial committee of the privy council
-Statements made Obiter dicta
-A dissenting judgement
-Decisions of courts in other countries
What is an example of courts lower in the hierarchy for a persuasive precedent being formed?
- R v R (1991)
- The the House of Lords agreed with and followed the same reasoning as the court of appeal in deciding that a man could be guilty of raping his wife. In this case, the judgement of the court of appeal was persuasive and the House of Lords followed it
How is decisions of the judicial committee of the privy council a source of persuasive precedent?
- This court is not part of the court hierarchy in England and Wales and so it’s decisions are not binding but, since many of it’s judges are also members of the Supreme Court, their judgements are treated with respect and may often be followed.
- E.g. the law on remoteness of damages in the law of negligence in tort and the decision made by the privy council in the case of the Wagon Mound (No.1) (1961).
- In later cases, courts in England and Wales followed this decision. This means that law made as a result of a case from another country can have an effect on the law in England and Wales
What is the Supreme Court and what did it replace?
-Until October 2009, the senior court in the UK legal system was the House of Lords. This court was then abolished and replaced by the Supreme Court.
-The lower courts have to follow decisions of the Supreme Court, and also decisions by the House of Lords that have not been changed by the Supreme Court
Does the Supreme Court bind itself?
-The main debate about the Supreme Court (and previously the House of Lords) is the extent to which it should follow it’s own past decisions
-In London street tramways v London country (1898), the House of Lords decided that certainty in the law by following a past decision was more important than preventing individual hardship
-It was completely bound by its own past decisions unless the decision had been made per I curial, that is, ‘in error’
-In the middle of the twentieth century this approach was not felt to be satisfactory, as the law could not alter to meet changing social conditions and opinions, nor could any possible ‘wrong’ decisions be changed except by legislation
-It was felt that the highest court of appeal should have greater flexibility in it’s decision making
What is the practice statement?
-In 1966, the Lord chancellor issued a practice statement announcing a change to the rule in London street tramways v London county council which allowed them to depart from a previous decision when it appears right to do so
-This approach was confirmed by practice directions 3 and 4 issued by the Supreme Court in 2009
What is an example of the use of the practice statement?
- British Railways board v Herrington (1972), which involved the law on the duty of care owed to a child trespasser (first major use)
-In the Herrington case, the Lords held that social and physical conditions had changed since 1929, and the law should also change, allowing the injured child trespasser’s claim
What is the Supreme Court’s relationship to the practice statement?
- From October 2009, the constitutional reform act 2005 transferred the House of Lords’ powers to the Supreme Court
-Initially, it was not clear if this included the use of the practice statement - In Austin v London borough of Southwark (2010), which was about tenancy law, the Supreme Court confirmed that the power to use the practice statement had been transferred to it
What is an example of a statement made Obiter dicta becoming a persuasive precedent?
R v Howe
R v Gotts
What is an example of a dissenting judgement becoming a persuasive precedent?
- Where a case has been decided by a majority of judges (for example, two to one in the court of appeal), the judge who disagreed will also have explained the reasons for reaching that decision
-If that case goes on appeal to the Supreme Court, or if there is a later case on the same point that goes to the Supreme Court, it is possible that the Supreme Court may prefer a dissenting judgement and decide the case in the same way
-The dissenting judgement has persuaded the higher court to follow it. - E.g. Lord denning’s dissenting judgement in Candler v Crane, Christmas & co (1951) which was the later upheld in Hedley Byrne v Heller (1963)
What is an example of decisions of courts in other countries becoming a persuasive precedent?
Bazley v Curry (1999), a Canadian case which was considered in Lister v Hesley Hall Ltf (2001
What is an original precedent?
- If the point of law arising in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow; that is an original precedent
- As there are no past cases for the judge to base the decision on previous cases that are the closest in principle will be considered with similar rules used. This way of arriving at a judgement is called reasoning by analogy. The judge will try to say something specific about the case being dealt with based on the fact that it is ‘like’ another example in a certain way.
- E.g. Hunter v Canary Wharf where a principle from Alfred’s case of 1610 was used by Lord Hoffman
What are the methods of handling precedent?
-Following
-Overruling
-Reversing
-Distinguishing
How is following a method of handling precedent?
-When a judge considers a precedent is relevant to the case, and it is binding, then the precedent must be followed
How is overruling a method of handling precedent?
-This is where a court, in a later case, states that the precedent decided in an earlier case is wrong
-Overruling may occur when a higher court changes, or overrules, a decision made in an earlier case by a lower court, such as the Supreme Court overruling a decision of the court of appeal
-Can also happen when the Supreme Court uses the practice direction, as restated by practice directions 3 and 4 2009, to overrule a past decision of it’s own
What happened in Pepper v Hart (1993)?
The House of Lords ruled that Hansard (the record of what is said in parliament) could be consulted when trying to decide what certain words in an act of parliament meant. This decision overruled the earlier decision in David v Johnson (1979), when the House of Lords had held that it could not consult Hansard
How is reversing a method of handling precedent?
- This is where a court higher in the hierarchy, in an appeal, overturns the decision of a lower court on appeal in the same case
- For example, the court of appeal may disagree with a ruling of the high court and come to a different view of the law
- In this situation it reverses the decision made by the high court. The decision of the appeal court will then be substituted for that of the lower court
- E.g. Sweet v Parsley (1970), when the House of Lords reversed the decision of the divisional court of the Queen’s bench division
How is distinguishing a method of handling precedent?
- This is a method that can be used by a judge to avoid following a past decision, high would otherwise have to be followed
- Means that the judge finds that the material facts of the present case are sufficiently different to allow a distinction to be drawn between the present case and the previous case is not binding
What are some examples of distinguishing in criminal cases?
R v Brown (1993) and R v Wilson (1996)
What happened in R v Brown?
The House of Lords decided, by a majority, that consent to suffer injuries in the course of homosexual wasp-masochistic activities is no defence to charges of s 20 OAPA 1861 or to charges of actual bodily harm
What happened in R v Wilson?
The defendants were a married couple and the defence of consent was allowed by the court of appeal to charges of actual bodily harm
What are 2 cases involving a wife making a claim against their husband for breach of contact?
Balfour v Balfour (1919) and Merritt v Merritt (1971)
What happened in Balfour v Balfour?
It was decided that the claim could not succeed because there was no intention between them to create legal relations; there was merely a domestic arrangement between a husband and wife and so there was no legally binding contract
What happened in Merritt v Merritt?
A different decision was reached and the court of appeal distinguished the otherwise binding decision of Balfour. Although the parties were husband and wife, the agreement was made, in writing, and after they had separated. This was different as it was meant as a legally enforceable contract
What are the different influences on parliament?
-Political influences
-Media
-Pressure groups
-Lobbying
What are political influences on parliament?
-When there is a general election, all the political parties publish a list of their policies and suggest reforms and new laws they would introduce if they were elected as the next government.
-This is called rhe party’s manifesto and it is one of the ways in which each party tries to persuade people to vote for them
-The manifesto can include policies on issues such as finance, education, transport and law and order
What is example of a party manifesto?
The promise in the Labour Party manifesto before the 1997 election to ‘bring rights home’. This was achieved by the government when the Human rights act 1998 was passed by parliament
How is media an influence on parliament?
-Where an issue is given a high profile on Tv, in newspaper’s or through social media, it will be brought to the attention of the public and politicians and may add to the weight of public opinion
-The media are able to criticise government policy or demand government action. This can be especially effective in a general election campaign, where every political part is keen to gain public support
-Members of the public can make their views known by contacting media sources or by posting material on social media
-Government regularly monitors social media to judge public opinion
-Government regularly monitors social media to judge public opinion
-Government also uses focus groups to gauge opinion on an issue or their overall popularity
What are examples of social media campaigns that have successfully brought about changes to the law?
-The snowdrop campaign successfully used the media to campaign for handguns to be banned
-When ‘dangerous dogs’ attacked a number of adults and children, this led to the passing of the dangerous dogs act 1991. This act was subsequently considered to be a poorly drafted piece of legislation as it was introduced as a ‘knee jerk reaction’ to media publicity
How do pressure groups influence parliament?
These are groups of people who campaign as they have a special interest in a subject or cause. They can bring their interest or cause to the attention of the general public and government. This can be done by lobbying a government minister or department responsible for an issue
What are the two types of pressure groups?
- Sectional groups which represent the interests of a group of people and often represent workers’ groups or professions. E.g. the law society for solicitors interests, British medical association represents doctors, trades unions for workers in different types of jobs
- Cause groups for a particular cause e.g. environmental groups such as Greenpeace, animal welfare groups, human rights groups, such as amnesty
What are examples of pressure groups making the government change laws?
-The passing of the hunting act 2004, which banned hunting foxes with dogs, was due to the efforts of the league against cruel sports
-sometimes they will campaign against a proposed change to the law. This was seem when, in 1997, government attempts to restrict the right to trial by jury were opposed by the law society and bad council
What is law reform by the law commission?
This full time body was set up by the law commission act 1965. It consists of:
-A chairperson
-A high court judge
-4 other law commissioners who are experts in certain areas of laws
There are also researchers and draftsmen who prepare proposed bills. The role of the commission is to consider areas of law that need reform. His role is set out in s3 of the law commissions act:
-To review areas of law
-Where possible, to codify or consolidate areas of law
-To repeal old unnecessary law, and
-Where possible to simplify and modernise law
How does the law commission work?
- The commission researches the area of law needing reform
- It publishes a consultation paper, seeking views on possible reform from lawyers, academics and anyone with an interest in the area under investigation. The consultation paler will suggest options for reform
- Following responses to the consultation paper, the commission will then draw up proposals for reform presented in a researched report. There will often be a draft bill attached to the report which can be considered by parliament
What is repeal of existing law?
-There remain in force many old, unnecessary and irrelevant statutes. In order to deal with these, the law commission investigates whether they are still required and will prepare a repeals bill for parliament to consider for those that are unnecessary or irrelevant
-By 2015 there had been 19 statute law (repeals) acts, and the whole of 3000 old acts had been repealed
What is the consolidation by the law commission in law reform?
-In some areas of law there a number of statutes which set out a small part of the total law. The aim of consolidation is to draw all the existing provisions together in one act to make the law more accessible
-The law commission produces about 5 consolidation bills each year. However, consolidation is not always successful
-For example, for many years the law on sentencing practice and procedure was contained in:
-The powers of criminal courts (sentencing) act 2000
-The criminal justice and courts services act 2000
-The criminal justice act 2003, and
-The legal aid, sentencing and punishment of offenders act 2012
-The sentencing act 2020 has replaced sentencing practice and procedure from these acts, as set out in codification
What is the codification of law reform by the law commission?
-This involves bringing together all the law, both statutory and judicial precedent, on a topic into one single law
-Again, the intention is to make the law more understandable, consistent and easier to find
-The law commission worked on producing a sentencing code so that all the law on sentencing adult and young offenders is in one document instead of all the acts referred to above
-This was achieved by the passing of the sentencing act 2020.
-The sentencing code is concerned with sentencing procedure and does not introduce any new law or change any sentences
-It will apply to all offenders convicted of an offence after 1st October 2020
What are the successes of the law commission?
-Although the law commission has not achieved it’s original idea of codification of many areas of law, it has been successful in some areas. After it was established, about 85% of it’s proposals were enacted by parliament
-These included the unfair contract terms act 1977, the supply of goods and services act 1982 and the occupiers’ liability act 1984
-Following this, however, only about 50% of it’s suggestions have become law due to lack parliamentary time and lack of interest by parliament in technical reform. The law commission act 2009 tried to deal with the issue of non-acceptance of it’s reports by requiring the Lord chancellor to tell parliament every year why the government has decided not to implement any of the previous year’s crop of law commission proposals.
-The commission’s annual report of 2017-18 showed that there were 12 reports awaiting response from govt. who also rejected about 1 in 6 of the law commissions reports
What are the advantages of political influence?
-Each political party has it’s proposals for law reform ready and published in a manifesto during an election campaign so that, if they are elected as the government, the electorate knows what they wish to do in future parliamentary sessions to achieve their aims
-If the govt. has a majority of seats in the House of Commons, virtually every one of their policy proposals will be passed. This can be said to make the law making process popular with the majority of the population
-By publishing manifestos, the public know before an election what the broad proposals of each political party are, and have a choice as to which set of proposals and law reforms they would wish to see put in place
-Proposed changes to laws will be debated in parliament and Improvements to initial proposals can be suggested and included
-Members of the House of Lords have expertise in a wide range of topics. Suggestions made by the Lords to alter government proposals carry considerable weight and authority, and are generally non political
What are the disadvantages of political influence?
-If a different party is elected in a general election from the previous governing party, they may decide to repeal or alter some of the laws that the previous govt. passed. This is because their policies are likely to be different from the previous govt. . Such changes of policy can be costly, open to criticism and lead to piecemeal reform of laws
-If the govt. has a large majority of seats in the House of Commons, they can force through their policy proposals, ignoring criticism from opposition
-If the govt. only has a small majority, it may be difficult or impossible to achieve changes to the law or their manifesto commitments
-Suggestions to alter or improve the proposals made by experts in the House of Lords do not have to be accepted by the commons or the govt.
-If a crisis occurs, such as the COVID-19 pandemic, the government’s focus will be to take measures to deal with that crisis, which may differ from their manifesto commitments
What are the advantages of media as an influence?
-The media can raise awareness of public concern of an issue with government- for example, damage to the environment. Government may have greater willingness to act on a media campaign if they see it is popular
-The public can use the media to raise concern about issues and individual incidents, such as the Dunblane massacre and, more recently, terrorist related attacks. Individuals are much more prepared to use social media to raise concerns and voice opinions
-The media can inform and raise public awareness, which is essential to encourage government to form policy, to act and legislate. Government is ultimately responsible to the electorate and, especially before an election, they will fear losing public support if they are not seen to be responding to an issue of public concern
What are the disadvantages of media as an influence?
-While radio and television channels are required to remain politically neutral, this is not the case with newspapers, which may be willing to promote inaccurate individual views and campaigns, and may not have wide public support. Some newspapers give support to a specific political party and regularly promote their views
-Newspapers are commercial businesses and may be prepared to sensationalise an issue to expand their readership. This can be seen as parts of the media manipulating the news and creating public opinion
-There is no regulation on the expression of views on social media. Any views expressed may be inaccurate or have limited public support
-Even if an issue appears to have wide public support, there is no guarantee that government will act on it
What are the advantages of pressure groups as an influence?
-Pressure groups have experts in their membership, or can employ experts, to effectively argue their cause
-There are many pressure groups with different aims and issues to promote. A wide range of issues can be drawn to the attention of government
-Pressure groups often raise important issues. Environmental groups have made the government much more aware of the damage being done to the environment from greenhouse gases and other pollutants
What are the disadvantages of pressure groups as an influence?
-Pressure groups may seek to impose their ideas on the public or on government, even where there is limited public support. For example, when trades unions call strike action involving a public service, this can cause disruption for the general public who are unlikely to support the cause
-Sometimes two pressure groups who may have conflicting interests and will campaign for opposing actions. For example, when the ban against cruel sports wanted is banned, but the countryside alliance wanted it to continue
What are the advantages of the law commission as an influence?
-The law commission uses legally qualified commissioners to investigate, who are experts in their field. Their reports are thoroughly researched and recommendations for reform are fully justified. Draft bills accompany their reports so there is no need for delay in consideration of the recommendations by parliament
-It is politically independant and has the aim of improving the law- it does not get involved in matters of public policy. It reports to parliament, not the government, thereby maintaining it’s independence
-If parliament accepts a recommendation to codify an area of law, it becomes easier for lawyers and the public to understand and apply
-Many old, unnecessary and irrelevant laws are removed from the statute book
What are the disadvantages of the law commission as an influence?
-Governments are reluctant to find parliamentary time to consider and debate ‘pure’ law issues. As a result, parliament has to wait for government to accept a law commission report and act on it
-Parliament tends to concentrate on debating matters or broad policy, such as health and education, rather than on ‘purely’ legal issues where there is limited poplar support
-Govt. is not bound to accept law commission reports or implement any recommendations, either fully or in part. For example, the law commission recommended in 1993 reforms for the non fatal offences in criminal law and, in 1998, to the civil law of negligence but neither area law has been changed
-The govt. is not bound to consult the law commission before bringing any changes in the law to parliament- e.g. the commission was not consulted on changes to sentencing practice and procedures before any of the 4 acts were introduced on this issue
