Section A Flashcards
what are the three types of Bills?
private, public and private members - also hybrid
what are the stages of the pre legislative process?
green paper
white paper
what are the stages of the legislative process?
first reading
second reading
committee stage
report stage
third reading
other house
royal assent
what is an example of a private members bill?
1967 abortion act
what is an example of a public bill?
- privatisation of public utilities under thatcher
- legal services act 2007
what is an example of a private bill?
- medway council act - gave council more power in street trading
- Faversham oyster fishery bill 2016
what is an example of a hybrid bill?
high 2 speed legislation
what are the four influences on parliament?
political
the media
pressure groups - fathers4justice
lobyists
how many members in the HOC?
650
what are the three basic principles that make up the UK’s unwritten constitution?
parliamentary sovereignty
separation of power
rule of law
what is separation of powers?
making sure that not one governing body holds all the power
1. legislature - parliament
2. executive - govt
3. judiciary
what is parliamentary sovereignty?
idea that parliament is supreme
can be an issue with HR - incompatibility?
what is the rule of law?
idea that nobody is above the law
1. no punishment without breach
2. equality before the law
3. protection by independent judiciary
entick v carrington
searched defendants house arbritrarily - reinforced that government action must be backed by law
R(Evans) v At gen 2015
reinforced importance of publics right to know about government dealings - equality before the law
belmarsh prisoners
involved detainees - without trial = unlawful
black spider memos
letters written by prince Charles to govt minister - link to Rule of Law
what is Sarahs law?
impact of the media - coverage led to this law against sexual offenders - newspaper campaign
what are some examples of pressure groups?
fathers4justice
shelter
Just stop oil
Child poverty action group
what is an example of a manifesto/queens speech?
Brexit 2016
Anti immigration laws
Repeal of HRA (manifesto)
what is an example of a public bill?
criminal justice and courts act
what is an example of lobbying?
Jamie Oliver - wanting healthier school meals
Select committee on obesity
what is an example of the media in relation to influences on parliament?
the 1977 firearm act - tighter regulations of gun controls
What is an example of a private members bill?
Abortion act 1967
Bail act
What is Delegated legislation?
When law making is passed onto another body
EG the enabling act creates By laws
What is the need for DL?
- update law
- parl not always in session
- faster
- fill in detail
- some areas of law are diff
What are the types of delegated legislation?
- statutory instrument
- by laws
- orders in council
What is a statutory instrument?
Rules and regulations made by the government minister for their areas of responsibility
How many departments of govt are there?
15 - major method of law making
What are some examples of Statutory instruments?
- chemical (hazard information and packaging supply) regulations 2009 = minister for work and pensions
- PACE = minister for justice
- student loans regulations = minister for education
- regulations regarding prescriptions = minister for health
What are By laws?
When local authority makes rules that apply to one place - EG BBQ’s banned on Bournemouth beach, parking restrictions
What legislation permits by laws?
Local government act 1972
What is the need for By laws?
Only local councils are in best positions to make best regulations for their area
EG - littering or dog fouling
R V Fadol
- Commuter put feet on seats
- Got a 1 yr conditional discharge
- Due to by law - railway regulations act - disorderly, indecent manner
Boddington v BRB
- smoking In a railway carriage
- By law prohibiting smoking on trains under the transport act 1962
What are orders in council?
Made by the king and privy council to give affect to EU directives or make law in emergency situations
What act is orders in council under?
Civil contingencies act 2004
What are the occasions that orders in council can be used?
1: give legal affect to European directives
2: bring acts into force
3: transfer responsibility between govt departments
4: privy council make law in emergency
How are orders in council made?
They are drafted by govt and approved by king/PC - enabling act
What is special about orders in council?
Allows legislation without having to go to parliament
Dangerous drugs act 2008
- added cannabis from class C to class B drug
- under misuse of drugs act
What are the parliamentary controls on DL?
1: enabling act
2: questions by MP’s
3: affirmative resolution
4: negative resolution
5: super affirmative resolution
6: scrutiny committee
Enabling act
- details who can make DL
- whether applies to whole country
- whether need to be laid before parl first
Questions by MP’s
Individuals may be questioned in relation to DL
Affirmative resolution
Only comes into force after approval and response in parl - vote
Negative resolution
If nothing is done within 40 days becomes law
Super affirmative resolution
Minister presents change, goes through scrutiny committee + decide it neg/affirmative
Scrutiny committee
Review statutory instrument and draw attention to points that need further attention
Judicial controls on DL?
- If ultra vires (beyond/outside power) - necessary for democracy
- if challenge: have to prove locus standii (directly affected by DL) = then high court
Procedural ultra vires
Had the power to create DL but didn’t follow right procedure
Aylesbury mushroom 1972
Minister for labour had to consult before writing regulations about mushroom growing
BUT failed to consult mushroom growing association
= procedural ultra vires
Substantial ultra vires
Body making DL has gone beyond power and done something it never had the power to do
Strickland
- when interferes with human rights
- a by law prohibiting singing or reciting of any obscene song - restricts freedom of expression/speech - A10
= substantial UV
Unreasonable ultra vires
So unreasonable that a public body would never do it
Wednesbury corporation
- banning from cinema on weekends
= unreasonable UV
Percy v hall
- several people arrested for entering a protected military area
= unreasonable UV
What is an example of public opinion?
State pension
What is Hansard?
Debates in parliament
What is the law commission?
- independent institution interested in law reform
- legally trained commissioners
EG. Criminal justice act, matrimonial causes act
Examples of other professional organisations
- law society and British medial association
Other pressure groups that have been successful
Friend of the earth led to house water recycling act 2003
What is statutory interpretation?
The process of interpreting statutes in order to find parliaments intention
Why is Statutory interpretation important?
To ensure accuracy in law
- fairness
- justice
- democracy
Cheeseman V DPP
Cheeseman was caught exposing himself to two undercover police officers in a public toilet. he was charged for ‘exposing himself to the annoyance of passengers’. the word ‘passengers’ refers to passers by. As the officers were stationary, and not passers by, cheeseman was found not guilty.
What is the need for Statutory interpretation
- broad terms
- drafting errors
- ambiguity
- new developments
- change in the use of language
What are the 2 approaches to Statutory interpretation?
Literal approach
Purposive approach
What is the literal approach
Judges examining each word individually and taking their literal meaning
What is the purposive approach?
Judges finding the intention of parliament by looking at what they were trying to achieve
Which is approach is favoured in European law and why?
Purposive approach
Because; diverse cultures so need a margin of appreciation
Also use of language in Europe
R V registrar
Adoption act 1976
Literal approach used first
This wasn’t used ultimately tho as he was a convicted murderer and thought mentally unstable
- applied purposive approach and denied his birth certificate
R v (Quintavalle)
- research regarding clones and cloned embryos
- HOL used purposive approach in order to protect clones and cloned embryo’s
- perhaps this wouldn’t have been case with literal approach
What are the rules or interpretations
- literal rule
- mischief rule
- golden rule
What is the issue with different judges using different rules?
Inconsistent, unfair and unpredictable
What is the literal rule
Courts must give words their plain, ordinary, literal meaning even if it leads to an absurd result
R V judge of the city of London court
If the words of an act are clear you must follow them even if they lead to a manifest absurdity = definition of literal rule
Whitely v Chappell
- defendant used vote of dead man
- Offence to impersonate a person entitled to vote
- acquitted as dead person not permitted to vote
- intention was likely to ensure people were using own vote
London and north eastern railway v Berriman
- killed whilst oiling track
- statute didn’t say “oiling” just “repairing or laying” the track
- no ambiguity so literal rule applied = widow entitled to NOTHING
What is the Golden rule ?
Starts by looking at literal meaning but court is allowed to avoid an interpretation that would mean a harsh or absurd result
How can the golden rule be applied?
Narrow application
Wider application
What is the narrow application of the golden rule?
Applicable where the word had multiple meanings, some of which would produce less absurd outcomes than others - apply meaning that avoids absurdity
R V Allen
Charged with bigamy
But 2 definitions of “marry” - used legal definition of marry to ensure conviction
What is the wider application of the golden rule
When there is only one literal meaning and it must be overridden if absurd result is to be avoided - judge adds words
Re Sigworth
Killed mum to get inheritance - “next of kin” but judge didn’t think it was fair to give it to murderer so read into act/add words
Adler v George
Official secrets act made it an offence to obstruct an officer in “vicinity” of prohibited place
Judge allowed in the place as part of in the “vicinity” to avoid a absurd result = broad application
What is the mischief rule?
Judges must consider:
1: what was the law before making act
2: what was the mischief (gap in law)
3: what was the remedy parl was trying to provide
4: what was the reason for remedy
- fits more with purposive approach
Where does the definition of mischief rule come from?
Heydons case 1584
Smith v Hughes
Soliciting off balcony, technically not in streets
- led to change in meaning of soliciting in street
Royal college of nursing v DHSS
Technological changes in terms of abortion
But 2 judges used literal rule and kept abortion restricted to doctors - moral issue so parl should make judgement
What are the aids to interpretation
- intrinsic aids
- extrinsic aids
What are intrinsic aids?
Matters within the statute that may help to make interpretation more clear
What are some examples of intrinsic aids?
- long title
- short title
- headings before a group of sections
- marginal notes
- preamble
- schedule attached to act
What are extrinsic aids
Matters which are outside the statutes
What are some examples of extrinsic aids?
1: Hansard
2: law reform reports
3: dictionaries
4: previous case law
5: text books
Law reform reports
- reports by the law commission
- courts hold that they should be able to use these reports
European conventions, regulations or directives
- UK law should “fit” international law
Hansard
Things said in parliament
Official report
Onto considered when words of an act are ambiguous
What are the rules of language
- Ejusdem generis
- Expressio unis exclusion alterius
- Noscitur a sociis
What is Ejsudem generis?
Of the same kind, where there is a list of words followed by a general list of words; the general words are limited to the same kind of items as the specific
EG: dogs, cats, rabbits and other animals - goats would apply
Hobbs v CG Robertson
Brick didn’t fit in “similar materials” category - so the claim failed under Ejusdem generis
Powell v kempton racecourse
House office or room - he was outside so didn’t fit in the list of “other places” = not guilty
How many specific words are needed for Ejusdem generis
At least 2 specific words
What is Expressio unis eclusio Alterius?
Where there is a list of words which is followed by general words, then the act applies only to the items in list
Tempest v Kilner
“Goods and merchandise” named in statute BUT stocks and shares had to be interpreted
- so act can only apply to words in statute
What is Noscitur a Sociis?
The words must be looked at in context and interpreted accordingly - this involves looking at the other words
Inland revenue v Frere
Annual interest allowed to be deducted from income BUT respondents interest payment wasn’t on annual interest payment and thus couldn’t be deducted from income
Bromley v Greater London
GLC sought to reduce traffic congestion by raising rates on London residents to reduce cost of public transport
- held this policy was unlawful because GCL wasn’t allowed to take into consideration social factor
What are the presumptions of interpretation
1: mens rea is required in criminal cases
2: legislation doesn’t apply retrospectively
3: crown isn’t bound by statutes
4: a presumption against a change in common law
What is the effect of the HRA on statutory interpretation ?
Legislation must be compatible with European convention on Human rights
Mendoza v Ghaidan 2002
the court determined that Godin-Mendoza was being discriminated against in comparison to a heterosexual couple and, as such, the Rent Act definition of “spouse” should be interpreted to apply also to same-sex couples.
Fisher V Bell
Knives in a shop window - offence to offer for sale “flick knives”
= guilty using literal rule = absurd decision
What is Judicial precedent?
Source of law where past decisions of judges create new law for future judges to follow
What does “stare decisis” mean?
Stand by what has been decided and do not unsettle the established
What does “ratio decidendi” mean?
Reasons for decisions
Create precedent for future judges to follow
Binding
What are obiter dicta statements?
Other things said
Not binding
What is original precedent ?
Where a point of law has never been decided - creates new and original precedent for future judges to follow
What is persuasive precedent?
Precedent that is not binding on court but judges may consider it and decide it is the correct judgement so persuaded to follow it
What is binding precedent?
Precedent from earlier cases which must be followed even if later case doesn’t agree with principle
What is the operation of Judicial precedent?
Every court is bound by court above it
In general appellate courts are bound by their own past decisions
What are the rules of judicial precedent?
1: follow
2: overruling
3: reversing
4: distinguish
Following precedent?
What majority of judges will do not a method of avoiding precedent
Overruling precedent
Earlier ruling is wrong - so can overrule
Reversing precedent
A court higher up in the hierarchy overturns decisions of a lower court on appeal in same case
Distinguishing precedent
A method where a judge can avoid an otherwise binding precedent - must show difference in material facts of 2 cases
What is ‘per Curial’
The earlier decision has been made in error
Shaw v DPP
Shaw published a ladies directory (list of sex workers) - shaw not guilty as wasn’t offering services themselves
Knuller v DPP
- This case involved a magazine which contained advertisements for readers to meet up and engage in homosexual practices
- Follow precedent set in Shaw v DPP
Anderton v Ryan
Mrs A bought a VCR and thought it was stolen
But it wasn’t so not liable
R v Shivpuri
Thought he was bringing drugs into UK
No drugs tho
But overrule previous decision in Anderton v Ryan = guilty
R V Kingston
D held paedophilic tendencies - abused V while he was drugged
Found guilty BUT court of appeal reversed then HOL reinstated original verdict
Balfour v Balfour
Lived apart MR B promised to pay money to Mrs B - fails to pay
Mrs b takes to court to enforce
Rules = contracts between partners aren’t legally binding
= Mrs b gets nothing
Merit v Merit
Separated
Mr m agree to pay Mrs m - fails to pay
Court
Distinguishing agreement was after separation - legally enforceable
What was the 1966 practice statement?
Allowed the HOL to depart from its own previous statements but only when its right to do so
Used sparingly to avoid uncertainty
Continues to apply in UKSC
EG. Conway V rimmer
Conway V Rimmer
Overruled Duncan v Connell Laiird but this onto regarded a technical point of law
Young V Bristol aeroplane
Court of appeal bound to follow own decisions
BUT exceptions
- if later Supreme Court decision = must follow that
- if 2 conflicting precedent must chose
- if previous decision was made ‘per incuriam’ (earlier decision made in error)
R v Taylor
Questions involving liberty - must reconsider decision if law has been misunderstood or mis implied
What is the law commission?
A full time law reform body that is independent
- reviews law and proposes new law
What is the law commission under?
Law commission act 1965
Who is the law commission chaired by?
High court judges and staffed by four other legal professionals/academic lawyers
What are some other law reform bodies?
- law reform committee (1952)
- royal commission
What is the royal commission
- committees set up to investigate and report on one specific area of law
What legislation has the royal commission had an affect on
- PACE
