AC 1.1 Flashcards
(27 cards)
What are the stages of government law making?
Green paper
White paper
First reading
Second reading
Committee stage
Report stage
Third reading
Other house
Royal assent
What is the green paper stage?
Optional
First draft proposal
Goes to the public before parliament
What is the white paper stage?
First formal draft
Presented to parliament
Mandatory
What is the first reading stage?
Ten minute process
Main title and aims read out to parliament
Vote at the end and it only progresses if the majority vote in favour
What is the second reading stage?
Main debate where aims and intentions of the bill are scrutinised between the party in power and the opposition for a balanced debate.
Vote at the end.
What is the committee stage?
Panel of experts set up to scrutinise wording, legality and accuracy of the bill.
Clause by clause breakdown and analysis.
They look for loopholes and vote at the end.
What is the report stage?
All amendments are put forward in the second reading and committee stage and are recorded and redrafted
What is the third reading stage?
Final chance for debate.
Any objections must be raised before the bill is finalised.
Vote at the end.
What is the other house stage?
If the bill is announced in the House of Commons then it must go to the House of Lords.
It goes back and forth between 2 houses until they agree. House of Commons can bypass the House of Lords.
What is the royal assent stage?
The monarch signs the bill but it is more of a formality as the last time they refused it was in 1708.
What are some examples of government law making?
The criminal justice act 2003
The crime (sentences) act 1997
The dangerous dogs act 1991
What are the 2 ways of judicial law making?
Judicial precedent
Statutory interpretation
What is judicial precedent?
-Law made by judges
-can only create the law in specific circumstance where there is no existing legislation in place in relation to the current case before the judge
-The judge must be decisive and create the legal principle
-based on the hierarchy it can become a binding or a persuasive precedent.
-judges must follow precedent in accordance to the hierarchy.
What is a precedent made up of?
A precedent is made up of ratio decidendi and obiter dicta.
Ratio decidendi - central rule to precedent
Obiter dicta - other information/comments
How can a precedent be avoided?
Overruling - superior courts may overrule decisions in lower courts
Distinguishing - making a decision about significant factual differences between cases
Reversing - higher courts changed decision of lower courts in a case
When can a precedent become binding?
A precedent is binding when the precedent was set by that same court or a court above in the hierarchy and also when the facts of the current case are similar to those of the case in which the precedent was created.
What are some case examples of judicial precedent?
Donoghue v Stevenson - claimant suffers gastroenteritis after drinking ginger ale which had a decomposed snail in it. (House of Lords case and now known as the Supreme Court). Precedent = duty of care owed to consumers.
Daniel’s v White - claimant suffers a burst oesophagus after drinking lemonade found to have a corrosive metal at the bottom. Court of Appeal = follow superior courts. Facts similar = same precedent.
R v Brown (1993) - 5 homosexual men met regularly to engage in sado-masochistic activity. Precedent = consent is no defence to an offence against the person where they were all convicted of GBH.
lol
What is statutory interpretation?
-Words in an act that have more than one meaning.
-Where a term is vague and ambiguous, the judges must decide what it actually means and their chosen definition becomes binding on that court and also below but never courts above.
What are the four rules of interpretation available to a judge?
Literal rule
Golden rule
Mischief rule
Purposive approach
What is the literal rule?
Judge uses the ordinary dictionary definition of a word and applies it even if it leads to a harsh decision.
Judges should not deviate from usual meaning as words were chosen by parliament and it keeps all application of law fair and consistent.
How was the literal rule applied to the LNER v Berryman case in 1946?
-Man was maintaining train track to preserve it and did not hear upcoming train and was killed.
- law stated employee would be liable if a worker was killed whilst ‘repairing or relaying’ the track.
-widow could not claim compensation as judges decided words did not mean the same thing.
What is the golden rule?
Only applied when the literal rule has produced an absurd result and some judges may decide to amend the definition of the word to make the understanding of the law more clear.
How was the golden rule applied in the Adler v George 1964 case?
-man was protesting and snuck into an army base.
-literal rule was applied as ‘vicinity’ at the time meant around.
-defendant was not guilty as they were not around, they were inside.
-golden rule then applied as they changed vicinity to ‘in and around’ so defendant was found guilty.
What is the mischief rule?
Courts step away from words and look to fix the problem which the act was designed to solve. They apply the law in this way to ensure the law is applied in a way Parliament would have wanted (more flexible rule).
