Sources of Law Flashcards
What is the rule of law?
Every person should be governed by and benefit from the laws of the land.
These laws should be clearly stated, understood and administered.
It provides certainty
What principles did Lord Bingham add to the rule of law?
o The law must be clear and predictable
o The exercise of discretion should be subordinate to the exercise of law
o We should all be equal before the law
o The state should provide a safety net for settlement of matters individuals are unable to resolve
o The state should adhere to international and national obligations
How is international law treated in consideration of E&W law?
International law should be considered adjunct to the legal system of E&W.
The rule us law is paramount.
What are the sources of law?
Primary legislation
Secondary legislation
Case law
What is secondary legislation?
o Statutory instruments
o Byelaws for local councils
o Church of England measures (these are obscure)
What is primary legislation?
Statutes i.e. Acts of Parliament
What is case law?
o Common law
o Equity
What does Parliament consist of?
Parliament consists of the Monarch, House of Commons (democratically elected) and House of Lords (not democratically elected)
What are the types of bills?
Public
Private
Hybrid
Explain how public bill is passed
- Possibly a green paper and/or white paper
- The bill is drafted
- 1st reading
- 2nd reading
- Committee stage
- Report stage
- 3rd reading
- Bill passes to the other House which undertakes a similar process
- The first House is then asked whether they agree with any amendments the second House has made
- Once agreed, the bill receives Royal Asset
Where can a new bill be introduced?
A bill can generally be introduced in either house first (unless it relates to finance measures which must be introduced by a minister in the commons)
Explain the green/white paper stage
These are consultation documents produced by Government departments. They may invite comment from the public.
They are common, but there is no requirement to have them
What is a green paper?
A green paper is used to gather feedback on changes to policy
What is a white paper?
It outlines legislative proposals or draft bills
Explain what happens at the first reading of the bill
This is the formal stage of introducing the bill. There is no debate.
The clerk reads out the name of the bill and date of the second reading.
Explain what happens at the second reading of the bill
This is a detailed debate of the bill and MPs are called to make contributions
The House will then decide whether it should pass to the next stage
Explain what happens at the committee stage of the bill
A public bill committee is appointed by the Committee of Selection.
The committee then go through the bill in detail. Parties are proportionally represented.
Important bills or bills that require little discussion may be referred to the ‘Committee of the Whole House’
Explain what happens at the report stage of the bill
The House can consider what has been done during the committee stage and amendments can be proposed.
If the bill has been considered by the Committee of the Whole House and no amendments have been made, the bill can skip this stage
Explain what happens at the third reading of the bill
This is the final opportunity for a bill to be passed / rejected.
The text of the bill cannot be amended in the HoC (but it can in the HoL). If an MP disagrees with the content of a bill, they can submit a reasoned amendment as to why. The Speaker will decide whether this should be debated, this is rare.
What happens after the third reading?
The bill is sent to the other House and the above stages are repeated. The bill is ‘ping ponged’ between the two until is it agreed. Then it is sent for Royal Assent
What is Royal Assent?
The final stage of the parliamentary process. The bill is approved by the monarch and it becomes an Act.
How do the Parliament Act 1911 and 1949 affect the legislative process and why?
Where a bill has been rejected by the HoL in two successive sessions, it can be sent to for Royal Assent
This is to reflect that whilst the HoL can have an input, the HoC is the elected body and so should have greater power
When does an Act begin?
On its commencement date. The Act may suspend commencement until a future date.
What is filibustering?
Where opponents attempt to delay a bill with verbosity
How does the government deal with filibustering?
They implement a ‘guillotine’ timetable to limit the amount of time MPs can spend debating at certain stages
What is a public bill?
A bill which affects the public as a whole
What are the types of public bill?
Government bills
Private member’s bills
What is a government bill?
A bill introduced by a minister as part of the Government’s legislative process
What is a private members bill?
Non-government sponsored bills introduced by backbench MPs or Lords.
These rarely become law due to lack of time.
What is a bill?
A bill is a proposal for a new law, or a proposal to change an existing law, that is presented for debate before Parliament.
Who can introduce bills?
The government
Individual MPs or lords
Private individuals or organisations
What is a private bill?
A bill that affect particular people, organisations or localities
What is a hybrid bill?
Bills that combine elements of private and public bills i.e. it affects the public as a whole, but has a more specific impact on individuals / groups
Example - the bill that made provision for HS2
How do new bills come about?
o Political party manifesto pledges
o Changes in nature of society
o Unexpected events i.e. Coronavirus Act 2020
o Administrative / technical matters i.e. the Finance Act 2019
What are the key features of an Act of Parliament?
- Royal coat of arms
- Short title
- Year and chapter
- Long title
- Enacting formula
- Headings
- Sections
- Schedules
What is the short title of an Act of Parliament?
The most commonly used name
What is meant by the year and chapter of an Act of Parliament?
The year of the Act and its number with the Parliamentary sequence
What is the long title of an Act of Parliament?
The more lengthy decision of what the Act covers and is designed to achieve
What is the most common type of secondary legislation?
Statutory instrument
What is the schedule of an Act of Parliament?
These appear at the end and are used to add further information where it wouldn’t be appropriate to have this in the main body of the act.
What is the enacting formula of an Act of Parliament?
a statement of the process by which the Act was passed, confirming it has complied with the necessary constitutional steps
Where does the power to make a statutory instrument come from?
It is set out in an Act of Parliament. The Act may or may not prescribe a procedure to be followed.
Who makes statutory instruments?
Government ministers
What can a minister with power to make a statutory instrument do?
The minister is able to make an instrument on the matters identified in the Act using the procedure set out in the Act
What is common law?
Common law is the law declared by judges, derived from custom and precedent
Example of a byelaw
i.e. Coventry Council banning alcohol on the street
What is a byelaw?
These are local laws made by local councils under an enabling provision by an Act of Parliament
There may be a sanction attached for non-observance
What is the problem with common law?
It was somewhat inflexible and so other principles began to develop
What is equity?
Equity refers to reaching a resolution that is fair to all taking into consideration the facts, behaviours of parties and their situations
What are they key principles of equity?
o That as done which ought to be done i.e. equality will enforce the intention of parties, rather than allowed something to founder because of a failure to confirm to rigid procedure
o He who comes to equity must come with clean hands i.e. an equitable remedy will not be granted to someone who has not acted fairly
o Delay defeats equity i.e. a claimant cannot wait too long to bring a claim as this may prejudice the other party
o Equity will not suffer a wrong to be without a remedy i.e. if the court decides a wrong has been committed, then a solution beneficial to the injured party should result
Name and explain the equitable remedies
- Injunctions - requirement that something be done / not done
- Specific performance - carry out an obligation
- Recission - confirming that a contract no longer exists
- Rectification - correcting a wrong
- An account of profits - allowing an innocent party a share of the wrongdoer’s gains
