Topic 1.1 - Describe processes used for law making

Question 1

Parliament

How does a parliamentary democracy like the UK make most of its laws?

Answer 1

Laws are made by passing Acts of Parliament

Question 2

What are the laws made by Parliament often referred to as?

Answer 2

Statutes or legislation

Question 3

What is the role of the monarch in law-making in the UK?

Answer 3

Only hold a formal role as they simply give Royal Assent which is their agreement to the new law

Question 4

The Lords

What are those within the House of Lords referred to as? How many of them are there within the HoL?

Answer 4

Peers. Around 800 Peers within the HoL

Question 5

In the UK today, how many hereditary peers are there? How does this compare with the past?

Answer 5

Only 92 today, in the past all Peers were noblemen (barons and dukes) and they held hereditary positions that passed from father to oldest son

Question 6

How many Church of England representatives are there in the HoL today?

Answer 6

26 CofE bishops and archbishops

Question 7

Who are the rest of those in the HoL?

Answer 7

Life Peers who cannot pass their position onto their children and the title has been gifted to them for their work in certain areas e.g Business or Medicine

Question 8

What is the main role of the Lords in law-making?

Answer 8

To act as double-checkers on new laws

Question 9

The Commons

Why is the House of Commons the most important part of Parliament?

Answer 9

It is made up of the elected representatives of the people - 650 MPs within the HoC

Question 10

How do the 650 MPs get their role in the HoC?

Answer 10

They will be elected at a general election to represent each constituency (area of the country)

Question 11

The government

What is the government’s job? What is Parliament’s job?

Answer 11

The government’s job is to handle and run the country and Parliament’s job is to represent the people

Question 12

Who can form the government in the UK?

Answer 12

The government will be formed by the political party that holds a majority of the 650 MPs with the Prime Minister being the leader of the majority party

Question 13

What is a Bill?

Answer 13

A Bill is a proposal for a new law, usually by the government

Question 14

Who has to agree on a Bill for it to become law?

Answer 14

Bills must be agreed upon by both houses within Parliament and receive Royal Assent before they can become law

Question 15

What is a ‘Green Paper’?

Answer 15

Before a Bill will be presented to Parliament the government will usually publish a ‘Green Paper’ which is an initial report to provoke public discussion of the subject which tends to include questions for interested individuals and organisations to respond to

Question 16

What is a ‘White Paper’?

Answer 16

After the consultation takes place the government will publish a ‘White Paper’, which is a document setting out their detailed plans for the legislation - tends to include a draft version of the Bill they intend to display to Parliament

Question 17

What must happen before a Bill can become law?

Answer 17

It must first go through a series of stages in Parliament

Question 18

The parliamentary stages of a Bill

What is the first reading stage?

Answer 18

The government will first introduce the Bill into the HoC, sometimes the HoL, where it is read out for the first time and a formal announcement commences of the Bill and it is followed by a vote to allow it to move to its next stage

Question 19

What happens in the second reading stage?

Answer 19

The main principles will be considered and debated by the whole of the HoC and a vote will be taken. As the government has the support of the majority of MPs, they tend to win this vote. If so, the Bill will then move to the committee stage

Question 20

What occurs in the committee stage?

Answer 20

The Bill will be examined in detail by a small committee of selected MPs from different parties. The group will report back to the HoC and will often propose amendments to the Bill

Question 21

What takes place in the report stage?

Answer 21

The MPs will consider the committee’s report and can debate and vote on any amendments they might wish to make to the Bill. For major Bills, the debates may be spread over several days or weeks

Question 22

What occurs in the third reading?

Answer 22

This is the final chance for the Commons to debate the Bill’s contents - no amendments are allowed at this stage - the House will vote whether to pass or reject the Bill

Question 23

What happens concerning the Lords after the third reading has taken place and the Bill has been passed?

Answer 23

The Bill goes to the HoL, where it goes through the same stages as in the Commons. If the Lords amend the Bill, it must return to the Commons so MPs can decide whether to accept or reject the Lords changes. The HoC has the final say because it is made up of the people’s elected representatives

Question 24

What happens after the Lords approve the Bill?

Answer 24

Once the Bill has been approved by both Houses of Parliament, it goes to the Monarch for signing - Royal Assent - the Monarch’s agreement to make the Bill into an Act of Parliament or Law and is a formality that must be followed

Question 25

What happens after the Lords approve the Bill?

Answer 25

Once the Bill has been approved by both Houses of Parliament, it goes to the Monarch for signing - Royal Assent - the Monarch’s agreement to make the Bill into an Act of Parliament or Law and is a formality that must be followed

Question 26

When will the new law come into force?

Answer 26

Usually immediately, unless the Act specifies that it will only apply on some later date, known as the commencement order

Question 27

Criminal laws introduced by government

What did the Criminal Justice Act 2003 do?

Answer 27

It changed the double jeopardy law, following Ann Ming’s campaign and the advice of the Macpherson’s report on the murder of Stephen Lawrence. Change allowed the killer of Ann Ming’s daughter and one of the 5 suspects of Lawrence’s murder to be tried again. Both were convicted

Question 28

What does the Crime (Sentences) Act 1997 do?

Answer 28

Brought in mandatory minimum sentences for a range of repeat offences, such as automatic life sentences for a second serious sexual or violent offence

Question 29

What was the issue with the Dangerous Dogs Act 1991? What did this mean for the law?

Answer 29

Act was rushed through parliament in four weeks because the over the top public reaction to the media driven moral panic. This meant that it wasn’t given due consideration and many flaws became clear, such as that it blames the breed, not the deed and the fact that most of the dog attacks were not committed by breeds banned in the act

Question 30

Judicial processes of law making

Judicial precedent

What is ‘judicial precedent’?

Answer 30

It is a source of law-making where the past decisions of judges create law for future judges to follow

Question 31

What is judicial precedent based on?

Answer 31

Based on the principle of standing by or following what judges have decided in previous cases. This idea is called, ‘standing by a decision’ and is also known by its Latin name, decisis

Question 32

What is the advantage of treating similar cases in the same way?

Answer 32

Creates certainty, consistency and fairness in the legal system

Question 33

Why is the term ‘common law’ used?

Answer 33

Much of the law of the land has developed from following the decisions made in earlier cases - helped to create a single set of laws common to the whole country and so it becomes known as common law

Question 34

The court hierarchy

Summarise the court hierarchy in the UK

Answer 34

The legal system has a hierarchy of courts, with the Supreme Court at the top and the magistrates’ court at the bottom. A decision taken in a case by a higher court automatically creates an original or binding precedent for all lower courts - one that they have to follow when dealing with similar cases

Question 35

Summarise what distinguishing means in a situation where a court does not have to follow precedent

Answer 35

A precedent from an earlier case is only binding on a present case if the legal principle involved is the same and if the facts are similar in both cases. ‘Distinguishing’ means that the judge finds the facts in the present case are different enough from the earlier one to allow him or her to reach a different decision and not have to follow the precedent of the earlier case

Question 36

Summarise what overruling means in a situation where a court does not have to follow precedent

Answer 36

Where a court higher up the hierarchy states that a legal decision in an earlier case is wrong and overturns it. For example, the Supreme Court can overrule a lower court’s decision when it hears an appeal

Question 37

Use the example of marital rape to explain why a court might overrule a precedent

Answer 37

In the case of R v R (1992) a husband had been convicted of attempting to rape his wife. He appealed on the grounds that there was a centuries-old precedent that a husband could not be guilty of raping his wife because the marriage contract gave a wife’s irrevocable consent to sex - the appeal court overruled this on the grounds that the idea of irrevocable consent was unacceptable today because a couple are now seen as equal partners in a marriage

Question 38

Statutory interpretation

As well as making the law by creating precedents for others to follow, how else can judges make laws?

Answer 38

Through the way they interpret the statutes or Acts of Parliament.

Question 39

What is a statute?

Answer 39

A written law

Question 40

What do judges have to interpret in statutes?

Answer 40

The meaning of words and apply them to the case they are judging

Question 41

What do judges have to do when interpreting under the literal rule?

Answer 41

They should use the everyday, ordinary meaning of the words in a statute

Question 42

What is a key problem of judges using the literal rule?

Answer 42

A word can sometimes have several different literal, dictionary meanings

Question 43

Can you show a case to illustrate the issue of using the literal rule?

Answer 43

In the R v Maginnis (1987) case which involved illegal drugs, different judges found different meanings of the word ‘supply’

Question 44

Why would judges use the golden rule?

Answer 44

Because the literal rule could lead to an absurd result and the golden rule allows the court to modify the literal meaning to avoid this

Question 45

Can you show an example of how the golden rule has been used by judges?

Answer 45

Under the Official Secrets Act 1920, it was an offence to obstruct Her Majesty’s Forces ‘in the vicinity of’ a prohibited place, such as a Naval base. In the case of Adler v George 1964, Adler argued that he had not broken the law because he was not literally in the vicinity of a prohibited place, but was actually in it. The court chose to apply the golden rule to avoid an absurd result and Adler was convicted

Question 46

What does the mischief rule allow?

Answer 46

Allows the court to enforce what the statute was intended to achieve, rather than what the words actually say

Question 47

Can you give an example of how the mischief rule has been used by judges?

Answer 47

The Licensing Act 1872 makes it an offence to be drunk in charge of a ‘carriage’ on the highway. In Corkery v Carpenter 1951, Corkery was found guilty even though he had been in charge of a bicycle, not a carriage. The court used the mischief rule to convict him, arguing that the Act’s purpose was to prevent people from using any form to transport on the public highway when drunk - not just carriages