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Law-Making - Coggle Diagram
Law-Making
Precedent
Types of Precedent
Binding Precedent: MUST be followed! Usually decisions made by the HoL/Supreme Court (R v G & R 2003 - the test for recklessness MUST be subjective)
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Finding precedent
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Obiter Dicta: “other things said” - any other comments the judge makes which are not included in the strict reasoning for the decision. (R v Howe 1987 - duress is not a defence for attempted murder) Was Link Title
Ratio Decidendi: the exact reasoning for the precise judgement delivered (R v Chan Fook 1994 - psychiatric injury amounts to ABH/GBH)
Avoiding Precedent
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Distinguishing: finding that the facts between the precedent case and current case are sufficiently different to make it fair to avoid precedent. (Balfour v Balfour 1919 & Merritt v Merritt 1970)
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Evaluation
Advantages: allows the law to develop in line with social attitudes/ensures law is precise and there are no loopholes/the court hierarchy ensures the certainty of the law
Disadvantages: it’s undemocratic as law is made by unelected judges/it makes the law too complex and confusing (Woollin/ Nedrick)/it’s inefficient and unfair as only cases which make it all the way to the Supreme Court will achieve law change
Parliament
Types of Bill
Private Members' Bills: Introduced by a non-government member of Parliament (e.g. Bail (Amendment) Act 1993). Two methods:
10-min Rule: MPs can put forward a motion to have 10 minutes to introduce and argue for the introduction of their bill. This is unlikely to be successful if the government has a majority
Ballot: There is a ballot of MPs each Parliamentary session, and of these 20 MPs will be selected to introduce a bill on their chosen topic
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Hybrid Bills: A cross between the two. Usually directly affects a particular entity but has the long-term aim of benefiting the entire country (e.g. High Speed Rail Act 2017)
The Legislative Process
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2nd Reading: Bill read in detail, there is a debate and then a vote. 2/3 majority required to continue.
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Houe of Lords: If bill started in HoC, it goes through exactly the same stages as the Lords. Only difference is that any member can take part in Committee stage
Ping-Pong: Once the Lords are finished, they send the bill back to the Commons who may make more amendments. This carries on until both Houses agree.
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Influences on Parliament
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Pressure Groups
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Disadvantages: undesirable tactics/lack of balanced argument(fathers4justice)/corrupt insider relationship with gov
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Law Commission
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Disadvantages: Less parliamentary time for 'pure' law/proposals often amended by Parliament/Parliament not obliged to listen to them (OAPA Report 2015)
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Delegated Legislation
Orders In Council
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When Used: When Parliament isn't sitting/in emergency situations(Afghanistan Order 2001)/exercising the Royal Prerogative
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Statutory Instruments
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Main Uses: Creating detailed regulations in framework Act/Updating existing law/commencement of Acts (e.g. PACE codes of practice 1984)
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Bye-Laws
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Main uses: Parking regulations/companies making laws on their jurisdiction (e.g. British Airports Authority can make regulations such as no leaving unattended baggage in airports)
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The EU
Institutions
The Council: the main law-making body. A council of 27 ministers with one representing each member. Members usually ministers/president of member state’s government
The Parliament: co-legislative body with the council. There are 705 MEPs which are elected by the electorate of each member state. Examples of roles: admitting new members/voting on EU legislation
The Commission: Responsible for suggesting proposals to the council/parliament. Also responsible for monitoring all members are complying with their obligations under A288 of the Treaty of the Dunctioning of the EU
The ECJ: the highest court in the EU. There are 27 judges each of whom sit to hear 2 types of cases. 1) cases of member states failing in their obligations (A288 TFEU) 2) deciding on EU points of law sent to them by the highest court in each state (A267)
Law making
Regulations
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Tachographs Case 1979: the British government allowed lorry drivers to carry on without fitting recorders to their trucks. This was in direct contradiction to the EC regulation the equipment to be installed. It was held that EU regulations have direct horizontal and vertical effect in British courts.
Directives
Applicability: vertical direct effect only (claim can only be made against the state or a public body)
Marshall v Southampton Health Authority 1986: the claimant was forced to retire from her job in the NHS at 62 despite male employees being allowed to retire at 65. Her claim was successful although British law did not accommodate it. This was because she relied on an EU equal treatment directive .
Francovich v Italian Republic 1991: Although EU directives only have vertical direct effect. The member state can be liable for any “horizontal” losses incurred by individuals because of the states failure to implement a directive.
Treaties
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McCarthys Ltd v Smith 1979: a woman claimed that her employers were paying her less than the previous male worker in her position. This violated A119 of the EC Treaty on equal pay and horizontal direct affect allowed her claim to be successful
Statutory Interpretation
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The 4 Methods
Golden Rule: 1) narrow approach: the judge must follow the literal words of Parliament but can choose between meanings when word is ambiguous 2) wider approach: judges can use any means to avoid absurd results
Adler v George 1964: Official Secrets Act 1920 said it was illegal to obstruct a soldier “in the vicinity” of a prohibited place. The Ds obstruction took place actually in the prohibited place. The court used the golden rule to avoid the absurdity of the D avoiding prosecution.
Re Sigsworth 1945: the D killed his mother in order to receive his inheritance. British law meant there was nothing to prevent him receiving this money. The court was not prepared to let a murderer be fit from his crime so used to golden rule to stop the transaction
Advantages: democratic as it still respects the words of Parliament/still promotes certainty of the law where possible/avoids absurd results
Disadvantages:Inconsistency as no guidelines as to when the judge will use it/not really concerned with the purpose of the law/difficult to give legal advice as impossible to know when judge will use it
Mischief Rule: the judge looks back to the gap in the old law and interpret the law in a way to cover this gap.
Smith v Hughes 1960: The Act made it an offence to solicit prostitution in a “public place”. The Ds were soliciting from windows and balconies.The court looked back to the gap in the old law of “dirty streets” and used this to convict the Ds
Royal College of Nursing v DHSS 1989: The abortion Act 1967 stated only doctors could carry out the second part of the abortion procedure. Nurses had been carrying out the procedure. The judge looked at the gap in the old law which was illegal abortions and held that nurses carting out the abortion was legal as it was covering this gap.
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Disadvantages: cannot be as wide as the purposive approach/encourages judge-made law which is I democratic/leads to inconsistency+uncertainty of the law
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Purposive Approach: used mainly in EU law. The judge must identify parliaments purpose and then interpret the act as to deliver this purpose
R(Quintavelle) v SS Health 2003: The HoL used the Human Fertilisation and Embryology Act 1990 to say that embryos created through cloning were equal in status to those created by fertilisation.Parliament could not have had the purpose to distinguish between embryos
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Disadvantages: sometimes hard to identify parliaments precise purpose/I democratic as it facilitated judge-made law/leads to inconsistency+uncertainty of the law
The Law Commission
Their Work
Consolidation: bringing multiple Acts of parliament on one topic together in one complete Act of Parliament (CRA 2015)
Codification: Reviewing all the law under one topic, including statutes and common law, and bringing it all together in one complete code of law (e.g. Draft Criminal Code 1985)
Proposals: select/reffered area of law to research - carry out consultation - produce final report/draft bill (e.g. 2015 OAPA report)
Repeal: An act ceases to be law (e.g. Statute (Repeals) Act 2013 repealed old legislation on construction of St Pauls)
Evaluation
Advantages: Legal experts/simplify+modernise the law (Consumer Rights Act 2015)/consult on all proposals
Disadvantages: Focus on 'pure' law (Lord Chancellor's Report 2012)/parliament not obliged to accept proposals (1993 OAP Report))/proposals amended to non-recognisable point