Law making

Parliament - laws should be made by the elected representatives of society. In the UK, this means that major laws are made by Parliament. Parliament consists of the House of Lords, House of Commons and the Crown.

House of Commons - The members of the House of Commons are elected by the electorate. The country is divided into constituencies and each of these vote for one MP.
There must be a general election every 5 years. The government is formed by the political party which has a majority in the House of Commons, and it is the government that has the main say in formulating new Acts of Parliament.

House of Lords - The members of the House of Lords is a non-elected body. After the Labour Government in 1999, membership of the House of Lords would consist of some nominated members (like life peers) and some elected members. Inherited titles should not automatically allow that person to take part in the law-making process. It now consists of 92 hereditary peers, 700 life peers and 26 senior bishops in the Church of England.

Green and White papers - Each government minister has a department of civil servants and advisers. The particular ministry which is responsible for the area in which a change in the law is being considered will draft ideas for change.

On major matters, a Green Paper is issued. This is a consultative document on a topic in which the government's view is put forward with proposals for law reform. Parties are then invited to send comments to the relevant government department, so that a full consideration of all sides can be made and necessary changes made to the government's proposals.

After this, the government may publish a White Paper with its firm proposals for new law. Consultation before any new law is valuable as it allows time for mature consideration. Governments have been criticised for sometimes responding in a 'knee-jerk' fashion to incidents and, as a result, rushing law through that has subsequently proved to be unworkable.

Influences on Parliament

Political influence - When there is a general eleection all the political parties publish a list of reforms they would carry out if they were elected as the next government, "manifesto". It is one of the ways in which the party tries to persuade people to vote for them.

Each political party has its proposals for reform ready so that if they are elected as the government, they know what they wish to do. Also, the fact that the government has a majority in the House of Commons means that virtually every law it proposes will be passed. This makes the law-making process efficient.

However, if a different party is elected at the next general election, they may decide to repeal or alter some of the laws that the previous government passed. Changes in the law in this way can be costly and open to criticism. When there is a coalitin government then they will have to compromise in what policies are followed.

Public opinion/media - Where there is a strong public opinion about a change to the law, the government may bow to such opinion. This is more likely to be towards the end of a term of government when there will be a general election soon and the government wants to remain popular with the majority of the public.
This also includes the information shared online and in the media (tv, newspapers and radio). The media plays a large role in bringing public opinion to the government's attention. Where an issue is given high profile on tv, then this aso brings it to the attention of other members of the public and may add weight of public opinon.

Sometimes public opinion will be affected by specific events and these may play a role in formulating the law, e.g. Dunblane and the right to own a gun. We have a free press meaning they are able to criticise government policy or bring any other issue to the attention of the government, for instance, in 2009, the media highlighted Members of Parliaments' expenses claims spending large amounts of money and some were even for times which the MP had not paid for. This meant that the whole system had to be reformed.

The government may react too quickly too high profile incidences. This can lead to the law being created too quickly and not thought through so that the law is poorly drafted, e.g. the Dangerous Dogs Act 1991.
It can also be argued that the media manipulate the news and create public opinion.

Pressure groups - These are groups that have a particular interest and they try bring the attention of the general public and the government. Sectional pressure groups exist to represent the interests of a particular group of people, e.g. Farmers' Union. Cause pressure groups exist to promote a particular cause such as environmental groups of Green Peace and more. Pressure groups make the government reconsider the law on certain areas like the Hunting Act 2004.

Lobbying - Some pressure groups try to persuade individual Members of Parliament to support their cause. This is called lobbying because members of the public can meet MPs in the lobbies through which MPs go to get to the House of Commons.

It can be argued that pressure groups are seeking to impose their ideas, even where the majority of the public do not support their views. There are also occassions when two pressure groups have conflicting interests and want opposite things.

A wide range of issues is dawn to the attention of the government as there are so many pressure groups with different aims and issues.

Law Reforn

Official law reform bodies consider what reforms of the law are needed and report on these. The Law Commission is the most important body.

The Law Commission is a permenant panel of legal experts who research ares of law and recommend which laws need to be reformed.

Before setting out their final proposals for reform, they issue a consultation paper so that they can get the views of interested parties. In most cases their final report includes a draft Bill setting out the exact way they think the law should be reformed. These reports go to Parliament and most of the recommendations are eventually made law.

The Law Commission

However, the government does not always implement the reforms it suggests. This is partly because of a lack of parliamentary time for pure law reform.

The doctrine of parliamentary supremacy

Dicey made three points of
parlimentary supremacy.

  1. Parliment can legislate on any subject-matter
  1. No Parliament can be bound by any previous Parliament, nor can a Parliament pass an Act that will bind a later Parliament
  1. No other body has the right to override or set aside an Act of Parliament.

Limitations of parliamentary supremacy

Effect of the Human Rights Act 1998

This states that all Acts of Parliament have to be compatible with the European Convention on Human Rights. It is possible to challenge an Act on the ground that it does not comply with the Convention.

Devolution

The Scotland Act 1998 and the Wales Act 1998 have devolved certain powers to the Scottish and Welsh Parliament. As a results they can make laws on some matters for their own countries without having to get Parliament's approval. It is theoretically possible that a future Parliament could repeal these Acts but it seems unlikely as such a move would be very unpopular and would lose support for many political party which proposed it.

EU membership

While Britain is a member of the EU, there are limitations on parliamentary supremacy. EU law takes priority over British law.

Delegated legislation - law made by some person or body other than Parliament, but with the authority of Parliament.

Parliament's authority to make delegated legislation is usually laid down in a 'parent' Act of Parliament known as an enabling Act. The enabling Act creates the framework of the law and then delegates power to others to make more detailed law in the area.

Orders in Council

The Queen and the Privy Council have the authority to make Orders in Council. This type of delegated legislation effectively allows the government to make laws without going through Parliament.

Orders in Council can be made on a wide range of matters, especially: transferring responsibilities between government departments, bringing Acts (or parts of Acts) of Parliament into force, and (as a member of the EU) giving legal effect to European Directives.

The Privy Council also has the power to make law in emergency situations under the Civil Contingencies Act 2004.

There must be an enabling Act allowing the Privy Council to make Orders in Council on the particular topic, e.g. for the change of category of cannabis, the enabling Act was the Misuse of Drugs Act 1971.

Statutory Instruments -
rules and regulations
made by government ministers.

Ministers and government departments are given authority to make regulations for areas under their particular responsibility.

By-laws

Statutory Instruments can be very short, covering one point such as making the annual change to the minimum wage.

Statutory instruments are an important way of making law, as over 3,000 are made each year.

These can be made by local authorities to cover matters within their own area, for example, a county council can pass laws affecting the whole county while a district or town council can only make bylaws for its district or town.

This means that bodies such as the British Airports Authority and the railways can enforce rules about public behaviour on their premises.

Statutory Interpretation - The meaning in statutes should be clear and explicit but this is not always achieved. In order to help with the understanding of a statute, Parliament sometimes includes sections defining certain words used in that statute.

Judicial precedent - this refers to the source of law where past decisions of the judges create law for future judges to follow. This sources of law is also known as case law.

Original precedent - If the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow. It is an original precedent as there are no past cases for the judge to base his decision on. He is likely to look at cases that are the closest in principle and he may decide to use similar rules. This way of arriving at a judgement is called reasoning by analogy.

Binding precedent - This is a precedent from an earlier case that must be followed even if the judge in the later case does not agree with the legal principle. A binding precedent is only created when the facts of the original case and the second case are sufficiently similar to one another and the decision was made by a court which is senior to the court hearing the later case.

Persuasive precedent - This is a precedent that is not binding on the court but the judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it.

Persuasive precedent can come from courts lower in the hierarchy, decisions of the Judicial Committee of the Privy Council, statements made by obiter dicta, a dissenting judgment or decisions of courts in other countries (Commonwealth countries).

Obiter dicta - statements made in a judgement that were not part of the point of law in deciding the case.

Control of delegated legislation

Control by Parliament

Checks on the enabling Act - Parliament has the initial control over what powers are delegated as the enabling Act sets out the limits within which any delegated legislating must be made. The Act will state which government minister can make regulations, as well as stating the type of laws to be made and whether they can be made for the whole country or only for certain places.

There is also a Delegated Powers Scrutiny Committee in the House of Lords which considers whether the provisions of any Bill going through Parliament delegate legislative power inappropriately, as well as reporting its findings to the House of Lords before the Committee stage of the Bill, but it has no power to amend the Bill.

Checks on the delegated legislation - affirmative resolution, negavtive resolution, questioning of the government ministers and Join Select Committee on Statutory Instruments.

Affirmative resolution - This means that the statutory instruments will not become law unless specifically approved by Parliament. The need for an affirmative resolution will be included in the enabling Act.

Negative resolution - This means that the relevant statutory instrument will be law unless rejected by Parliament within 40 days.

Questioning of government ministers - Individual ministers may also be questioned by MPs in Parliament on the work of their departments, and this can include questions about the proposed legislation.

Scrutiny Committee - A more effective check is the Joint Select Committee on Statutory Instruments. This committee reviews all statutory instruments and, where necessary will draw the attention of both Houses of Parliament to points that need further consideration.

Control by the courts

Delegated legislation can be challenged in the courts on the ground that it is ultra vires (it goes beyond the powers that Parliament granted in the enabling Act), e.g. R v Home Secretary, ex parte Fire Brigades Union.

While the UK remains a member of the EU, statutory instruments can also be declared void if they conflict with EU legislation.

Reasons for the use
of delegated legislation

Need for detailed law.

Need for expert knowledge.

Need for local knowledge.

Need to consultation.

Advantages and Disadvantages

Advantages

Saves Parliamentary time.

Access to technical experitse.

Allows consultation.

Allows for quick law making.

Easy to amend.

Disadvantages

Undemocratic.

Sub-delegation.

Large volume and lack of publicity.

Difficult wording.

In English law, the judges have not been able to agree on which approach should be used, but instead, over the years they have developed three different rules of interpretation.

The literal rule - courts will give words their plain, ordinary or literal meaning, even if the result is not very sensible, e.g. R v Judge of the City of London Court.

The golden rule - starts by looking at the literal meaning but the court is then allowed to avoid an interpretation that would lead to an absurd result, e.g. Jones v DPP.

The mischief rule - gives a judge more discretion than the other two rules. The words of the statute are interpreted to fill in the gaps in the original Act, e.g. Heydon's case.

The purposive approach - This goes beyond the mischief rule; the judges are deciding what they believe Parliament meant to achieve, e.g. R v Register-General, ex parte Smith.