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Law Making Flashcards

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1
Q

What is parliament made up of?

A

House of commons - elected MPs - usually representing a party
House of Lords - Hereditary or Life Peers
Crown

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2
Q

What are green papers?

A

When the government unsure of the details of a law it wishes to make.
Invites interested parties to send comments
If the government agrees they will be added to the paper.

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3
Q

What are white papers?

A

Usually comes after a green paper.
Published by the government and sets out the proposals the government wants to make law
Sometimes the green paper can be skipped in emergencies (Coronavirus Act 2020) - Can result in a poorly thought out law with mistakes

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4
Q

What are the 4 types of bills?

A

Government
Public
Private
Private Members’

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5
Q

What is a government bill?

A

Proposed law by the government introduced into parliament
Usually drafted by a lawyer as it can be difficult to not leave room for interpretation.

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6
Q

What is a public bill?

A

Most frequent type of bill
Affect whole or most of the country
Focused on public policy
e.g. Equality Act 2010

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7
Q

What is a private members’bill?

A

Introduced by individual MPs
Since government controls schedule of parliament few of these are debated on.
e.g. Abortion Act 1967

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8
Q

What is a private bill?

A

Only affect certain people or institutions
e.g. University College London Act 1996
Combined 3 hospitals in London

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9
Q

What are the advantages of bill making?

A

Democratic - Elected MPs and green papers
Emergency bills can be passed quickly (Coronavirus Act 2020)

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10
Q

What are the disadvantages of bill making?

A

House of Lords and King not elected
MPs often vote with their parties to avoid ‘getting the whip’
Often not interested in laws that won’t make them popular with the public
Make popular but bad laws (Dangerous Dogs Act 1991)
Often takes a long time

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11
Q

What is delegated legislation?

A

Law made by a party that isn’t Parliament, but with the authority of Parliament. The authority is usually laid down by a parent Act of Parliament.

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12
Q

What are Orders in Council?

A

Type of delegated legislation made by the Crown and the Privy Council
Privy Council is mainly made up of senior/former politicians
Don’t have to be debated in parliament

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13
Q

What are Statutory Instruments?

A

Made by government ministers. Different ministers make different statutory instruments (Minister of Transport - road traffic regulations)
Can be very short or very long and complicated
Police codes of conduct made by Secretary of State using parent Act Police and Evidence Act 1984

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14
Q

What are By-laws?

A

Made by local authorities for matters in their own area.
Usual parent Act is Local Government Act 1982
Some public corporations can make by-laws (e.g. Railway companies)

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15
Q

What are the 4 ways of controlling delegated legislation?

A

Approval of the parent Act
Negative Resolution Process
Affirmative Resolution Process
Scrutiny by Committee

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16
Q

What is the Negative Resolution Process?

A

Only for Statutory Instruments
They will automatically become law unless rejected by parliament within 40 days of it being published
So many statutory instruments made not all can be reviewed
Government makes them and reviews them

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17
Q

What is the Affirmative Resolution Process?

A

Only for Statutory Instruments.
Has to be approved by parliament before becoming law.
Need for this process is in the parent Act.

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18
Q

What is Scrutiny by Committee?

A

Only for Statutory Instruments
Committee made up of MPs and Peers (Main committee is Joint Committee on Statutory Instruments)
Decides if Parliament needs to be alerted - Main Grounds - Creates a new tax - has retrospective effect - goes beyond the parent Act - is Defective

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19
Q

How is delegated legislation controlled by the courts?

A

Delegated can be challenged by someone who has sufficient standing (personally affected), and will be heard by the KBD who can find the legislation ultra vires (goes beyond the parent Act)

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20
Q

What is procedural ultra vires?

A

The correct procedure set out in the parent Act hasn’t been followed (Aylesbury Mushrooms 1972), The outcome is within the parent Act but how they have gotten to it is incorrect - May not have consulted people which the parent Act states as necessary.

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21
Q

What is substantive ultra vires?

A

When the legislation that has been made goes beyond the power, (R v Home Secretary ex parte Fire Brigades Union 1995)

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22
Q

What is Wednesbury unreasonableness?

A

When a decision is so unreasonable that no body would consider imposing it.

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23
Q

How effective is judicial contol?

A

It is good that individuals can challenge delegated legislation.
However, no legal aid is offered, the challenge has to be made within 3 months of the legislation being made, the government can easily afford lawyers to defend, and only people with standing can start the challenge.

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24
Q

Why is delegated legislation needed?

A

Parliament doesn’t have enough time to consider every law.
Parliament doesn’t have technical expertise in every area.
Ministers can consulate relevant parties
Can be passed quickly
Can be easily amended
Parliament focus on bigger issues

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25
Q

What are the disadvantages of delegated legislation?

A

It is undemocratic
Huge amounts of delegated legislation leads to criticism
Can be difficult to understand

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26
Q

What are the 4 types of statutory interpretations?

A

Literal Rule, Golden Rule, Mischief Rule & Purposive Interpretation

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27
Q

What is the literal rule?

A

Judges will give statutes their plain, ordinary meaning even if the result is unreasonable.
Berriman (1946) - Railway worker killed oiling the tracks, widow wasn’t entitled to compensation as he wasn’t ‘repairing or relaying’ the track

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28
Q

What is the golden rule?

A

A modification of the literal rule - the judge can avoid an interpretation that would lead to an unreasonable result - Only when the statute has ambiguity
Sigsworth - Son murdered his mother and according to literal rule would inherit her estate but the interpreted the statute so he didn’t

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29
Q

What is the mischief rule?

A

Looking at what the common law was before the Act, what the ‘mischief’ (error) was in the common law that meant an Act was needed. Then interpret the Act in such a way to cover the gap
Smith v Hughes 1959 - Prostitutes charged with soliciting on the streets but were soliciting from windows/balconies. Mischief rule applied as the prostitution was what parliament wanted to stop.

30
Q

What is purposive interpretation?

A

Working out what parliament wants and interpreting the Act to have that result.
Newport Corporation 1950

31
Q

What are aids to interpretation?

A

Things used by judges to help interpret Acts - can be extrinsic or intrinsic
Intrinsic - From with the Act (Long & short titles, preamble)
Extrinsic - Green & white papers, Hansard (Report on what is said in parliament), Interpretation Act 1978 (sets definitions for commonly used words - says that single gender words apply to all genders.

32
Q

How has EU law affected the interpretation of Acts?

A

EU countries favour the purposive approach and the CJEU (European Court of Justice) uses it
So UK judges had to use it when dealing with EU law and so started using it in regular law.

33
Q

How has the Human Rights Act 1998 affected the interpretation of Acts?

A

Courts must try to interpret Act to make them compatible with the Ruopean Convention on Human Rights. (According to s3 Human Rights Act)
Ghaidan 2002 - used it to interpret the rent Act to include same-sex couples.

34
Q

What is stare decisis?

A

Stand by what has been decided before
Judicial precedent follows this

35
Q

What is ratio decedendi?

A

Part of the judgement that becomes law
Must be followed by all lower-level judges
Donoghue V Stevenson 1932 created tort of negligence.

36
Q

What is obiter dicta?

A

Part of the judgement that doesn’t become law and therefore lower judges are not bound by it.

37
Q

Is the Supreme Court bound by its own decisions?

A

Old House of Lords was but it proved to be inflexible and so was abolished and the Supreme Court carries this on (Found in Practice Decisions 3 or 4)

38
Q

When can the Court of Appeal not be bound by previous decisions made in the Court of Appeal?

A

From Young 1944
Conflicting cases
Supreme Court overruled the previous decision
Made per incurium (carelessly or by mistake)`

39
Q

What is binding precedent?

A

Precedent from an earlier case which must be followed (stare decisis)
Donoghue V Stevenson 1932

40
Q

What is persuasive precedent?

A

Not binding but can be considered.
Can follow decisions of lower courts
Using obiter dicta from other cases
Decisions from commonwealth countries
Gotts 1992 House of Lords used obiter dicta from R V Howe 1987

41
Q

What is original precedent?

A

When a new issue arises.
The judge will set procedure for future cases.
Hunter V Canary Wharf - building interrupted TV signals which had never been in court before so the decision made was original precedent.

42
Q

What is overruling?

A

When previous cases are decided as wrong by higher courts in a new case with the same issue
Pepper V Hart (1993)

43
Q

What is reversing?

A

Where a higher court disagrees with a result and changes it when it is appealed.

44
Q

What is distinguishing?

A

When the facts of a case are decided as sufficiently different from a different case that precedent no doesn’t have to be followed
(R V Brown 1993, R V Wilson 1996)

45
Q

What are the advantages of precedent?

A

Certainty - Past decisions are going to be followed. Easy to understand.
Saves Time - Judges don’t have to make new la every time
Fills gaps in law

46
Q

What are the disadvantages of precedent?

A

Rigidity - Law can be too inflexible
Complexity - Hard to find relevant cases
Illogical decisions
Uncertainty when decisions are reversed.

47
Q

How does politics influence parliament?

A

Pledges made in manifestos help to gt votes and sboud become law if they are voted in (Human Rights Act 1998 promised by Labour)

48
Q

How does the media influence parliament?

A

Brings public opinions to the government’s attention.
Media can criticise the government - certain newspapers have political views (Guardian - left, Times - right)
Media Campaigns - Media campaigning for laws (Snowdrop Campaign - banned handguns in Scotland)

49
Q

How do pressure groups influence parliament?

A

Groups with specific interests
(Law Society - Law)
Aim to lobby the government to persuade them to take particular actions
2 types - Sectional - specific group (Unite), Cause - particular interest (Amnesty International)
Hunting Act 2004 - League against cruel sports

50
Q

How does lobbying influence parliament?

A

Trying to persuade government ministers or MPs to support a cause
Can be through writing letters, Meetings, Petitions
e.g. Snowdrop Campaign

51
Q

How does the Law Commission influence parliament?

A

Set up by Law Commission Act 1965
Made up of a chair person, high court judges, 4 experts in areas of law, researchers & drafters
Review areas of law and do stuff:
Consolidate - Putting law from many statutes into one e.g Sentencing Act 2020
Codify - Bring common law and statutes together e.g. Sentencing Act 2020
Repeal old and unnecessary Laws and simplify and modernise law
ONLY ADVISE PARLIAMENT (often ignored)

52
Q

What are the advantages of Political Influence?

A

Manifestos made before elections give public a say in elections
Protests and petitions give public a say

53
Q

What are the disadvantages of political influence?

A

New governments may repeal laws
Parties may not have a majority to pass the laws
Crises aren’t included in manifestos (Coronavirus)

54
Q

What are the advantages of media influence?

A

Public use it to raise concern
Report on the government so hold them to a high standard

55
Q

What are the disadvantages of media influence?

A

Some sources are biased, leading to misleading campaigns
Often sensationalise their stories leading to poorly thought out laws (Dangerous Dogs Act 1991)
Social media isn’t regulated leading to inaccurate views becoming popular
May be ignored by government

56
Q

What are the advantages of pressure groups?

A

Specialised in an area so experts

57
Q

What are the disadvantages of pressure groups?

A

Undemocratic, may not have strong public support
Some pressure groups are conflicting (League Against Cruel Sports (anti-fox hunting) and Countryside Alliance (pro-fox hunting)

58
Q

What are the advantages of lobbying?

A

Leads to changing of law to help a particular cause
Often experts in their field, leading to good law reform

59
Q

What are the disadvantages of lobbying?

A

Government chooses who to listen to (Often rich people)
Undemocratic, leads to laws not in manifestos

60
Q

What are the advantages of the Law Commission?

A

Made up of legal experts
Politically independent
Easy for parliament (Often already drafted)
Makes the law easy and efficient (Removes unnecessary laws and codifies)

61
Q

What are the disadvantages of the Law Commission?

A

Government can’t be bothered as technical law reform isn’t popular
Takes a long time
Don’t have to be consulted when new laws are passed by parliament

62
Q

What is the EU Commission?

A

Commissioners appointed every 5 years and are in charge of a specific are (e.g. agriculture)
Commission is responsible for the day-to-day running of the EU
Commission is the ‘guardian’ of the treaties, will refer members to the CJEU if they are broken
Puts forward proposals for new EU laws

63
Q

What is the EU Parliament?

A

MEPs are directly elected by the public of the member states every 5 years
Number of MEPs per country decided by population
MEPs sit in political groups rather than national
Typically meet monthly
Can approve, oppose or suggest amendments to proposed laws from the commission
Only consulted in some areas of law (competition law)
Decides on new EU member states
Scrutinises the work of the commission

64
Q

What is the Council of the EU?

A

Main decision making & law-making body of EU
Council with parliament debate and adopt proposed laws
Each member state sends their minister for the relevant area (Discussing agriculture, minister of agriculture sent)
Sets the agenda of the EU (makes long-term decisions)
Meets every 6 months - discusses broad matters
Member stats take turns to provide a president every 6 months

65
Q

What is the Court of Justice of the European Union?

A

One judge per member state (27)
To be appointed you must be a senior judge in your country or a senior legal academic
Sit in 6 year terms and can be reappointed for another 6 years
Judges elect a president
11 advocates general who hold office for 6 years - Impartially research the case and give their view on the result of the case
Main role of CJEU is set out in Article 19 of The Treaty of the European Union
Hears cases to decide is members haven’t followed the treaties, usually initiated by the Commission (Tachographs: Commission V UK 1979)
Issues preliminary rulings when a national court considers EU law that hasn’t arisen before, they refer the case to the CJEU who make a ruling - Binding on all courts in EU

66
Q

What is direct applicability?

A

Automatically a part of the law in EU countries

67
Q

What is direct vertical effect?

A

Individuals can enforce rights against the state when a directive hasn’t been implemented effectively
Marshall 1986

68
Q

What is direct horizontal effect?

A

Individuals can enforce their rights against other individuals

69
Q

What are treaties?

A

Highest form of EU law, made by member states
Sets out how EU institutions work
Has direct applicability, direct vertical and horizontal effect
Treaty of Rome 1958, Treaty of Lisbon 2007, Maastricht Treaty 1992
Van Gend en Loos (1963) - CJEU held that treaties contained rights which could be enforced in EU courts

70
Q

What are Regulations?

A

Proposed by the commission and passed by the council/parliament
Have direct applicability, direct vertical and horizontal effect
GDPR 2016

71
Q

What are directives?

A

Proposed by the commission and passed by the council/parliament
Sets a goal for all members to achieve within a time-frame
Individual member states have to pass the necessary laws to achieve the directive
Used to achieve harmonisation across member states
Frankovich 1991 - Individuals can sue the state if a directive isn’t implemented.
Marshall 1986 - A directive that hasn’t been implemented in time has direct effect but not horizontal effect.

72
Q

What is supremacy of EU law?

A

EU law has supremacy over national law.
Van Gend en Loos 1963
If national law is made after the EU law then it still has supremacy (Costa 1964)
Factortame 1990 - CJEU decided UK couldn’t enforce Merchant Shipping Act 1988

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