Source of Laws Flashcards
Two major sources
- Acts of Parliament
- Decisions made by judges
Act of Parliament
Statutes:
* are important because they convey in their purest form the will of the people, who have elected the House of Commons to run Government on their behalf;
* have scope through their impact on society; and
* have judicial relevance because the courts take delight in interpreting them
Parliament
Parliament consists of :
* the Monarch,
* the House of Commons (which is democratically elected 650 or so Members of Parliament) and
* the House of Lords (which is not).
Both Houses are involved in the process of creating Acts of Parliament.
Creation of Act of Parliament
- the Government usually publishes a Green Paper, which is a consultation document on possible new law, and a White Paper, which incorporates the Government’s firm proposals for the new law.
- An Act will then begin its life as a document known as a Bill. Only
when it has passed through a series of stages, involving scrutiny and debate, will it eventually become an Act of Parliament.
Acts for Parliament -Process before House of Commons
- Bill is drafted and given a first reading in House of Commons: no speaking
- Second reading: detailed debate
- Committee strutiny: clause by clause. House will vote on any proposed amendment by committee
- 3rd and final reading and final version approved by the Commons
Process in House of Lords
Follow same various stages:
* The Lords will scrutinise, vote on and agree the final version.
* The Lords is free to adopt the Bill as provided by the Commons, or it can vote on amendments to it.
* No speaking at First Reading. At the Third Reading stage it must return to the Commons for any amendments to be approved
* If the Lords rejects a Bill twice it is possible for the Commons to bypass the Lords . This prevents what is seen as the undemocratic Lords blocking the will of the democratically elected Commons.
* Includes life peers (appointed) and hereditary peer (90, vacancy filled by election of other hereditaries). Total peers 660
Royal Assent
The final step in this, usually lengthy, process is provision of Royal Assent by the Crown. At this stage the Bill becomes an Act, ie becomes law
Attempts to delay a Bill
Filibustering : talking at length in committee or debate
Case law
- Common law: Common law historically, it involved decisions on contracts and the payment of damages. It provided remedies for disputes involving the letter of the law.
- Equity: equitable principles and maxims
Equitable maxims
- Equity looks on that as done which ought to be done : equity will enforce intention
- He who comes to equity must come with clean hands
- Delay defeats equity
- Equity will not suffer a wrong to be without a remedy
Equitable remedies
- injunctions, ie a requirement that something be done or not done;
- specific performance, ie the carrying out of an obligation, usually in relation to land;
- recission, in other words confirming that a contract no longer exists;
- rectification, ie correcting a wrong; and
- an account of profits, ie allowing an innocent party an appropriate share of a wrongdoer’s gains.
Traditional sources of laws
- Crown
- Nobility: House of Lords, hereditary and life peers
- Judge and Parliament: Constitutional Reform Act2005 removed the top judges from House of Lords and instead created a Supreme Court and sited the Law Loards there.
- Religious influences
- Military
- Legal academics, commentators and philosophers: Sir Edward Coke (habeas corpus), John Locke (property rights), Montesquieu (separation of powers), Bentham (utilitarianism), AV Dicey (parliamentary sovereignty).
- Reflection on jurists and academics
- EU law: currently part of legal system (to be changed after Brexit), relevant source of law.
- internet
