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Parliamentary Law Making - Coggle Diagram
Parliamentary Law Making
Legislative process: Uk parliament consists of house of commons (members elected), house of lords (hereditary/appointed life peers) & queen (has to give her assent before a law can become an act of parliament) - all acting together
MPs sit in house of commons & represent political party - elected by public with the country being divided into constituencies and each of these returning one MP
under fixed term parliaments act 2011, must be a general election every 5 years
law passed by parliament are known as acts of parliament or statutes, and this source of law is usually referred to as statute law - about 60/70 acts are passed each year
2020 - house of lords consisted of:
- max 92 hereditary peers - title could be passed down through family
- about 660 life peers - nominated by PM (mostly former politicians retired from commons) either support one or political parties/independent cross bencher
- 26 most senior bishops in church of england
Green & White Papers
If gov is unsure what law to introduce on a topic, may issue a green paper by the minister with responsibility for that matter - consultative doc in which gov's view is put forward with proposals for law reform
interested parties are then invited to send comments to relevant government department in order to consider fully the views of all stakeholders & suggest any necessary changes to the governments proposals
following this, the government may publish a white paper with its firm proposals for new law, taking into account views received during green paper consultation - if gov has firm views on topic them it may go straight to issuing white paper so that advance notice of future legislation can be given
consultation is essential before any new law is framed - allows time for mature consideration. governments are criticized for responding in 'knee-jerk' fashion to incidents or situations and consequently rushing through law proved to be unworkable
Bills: when proposed act has been drafted it is called a bill - only become an act of parliament if it successfully completes all necessary stages in parliament
even at this early stage there are difficulties as draftsmen face problems in trying to frame bill
has to be drawn up so that it represents governments wishes -whilst at same time using correct legal wording so that there will not be any difficulties to courts in applying it - needs to be unambiguous, precise and comprehensive
Private members bill:
ballot: bills can be sponsored by MPs - parliamentary process allows for ballot in each parliamentary session - 25 members are selected who can take turns in presenting their bill
time for debate of private members bills is limited - usually on fridays so that hte first six/seven members in ballot have realistic chance of introducing bill on chosen topic
relatively few of these bills become law - there have been some important law passed as results of such bills
ten minute rule: backbenchers can also try to introduce bill through ten minute rule under which any MP can make a speech of up to ten minutes supporting intro of new legislation
method is rarely successful unless there is no opposition to bill - but some acts have been introduced this way
members of house of lords can also introduce private members bills
public & private bills
public bill involves matter of public policy that will affect either the whole country of large selection of it
most gov bills are in this category - constitutional reform act 2005, legal service act 2007, legal aid, sentencing and punishment of offenders act 2012 and criminal justice and courts act 2015
not all bills are aimed at changing law for entire country (some may affect just 1 or more devolved countries) , some are designed to pass law that will affect only individual people or corporation - known as private bills
legislative process - process in parliament: in order for bill to become an act of parliament, usually has to be passed by both houses
bill may start in either house with exception of finance bills (house of commons)
first reading: formal procedure where name and main aims of bill are read out - no discussion, usually, and usually no vote
second reading: main debate on whole bill in which MPs debate principles behind bill - debate usually focuses on main principles rather than smaller details
MPs who wish to speak must catch speakers eye - since speakder controls all debates and no one can speak without being called on - at end of debate there will be a vote either verbal or formal
- verbal vote: speaker asking members as a whole how they vote and members shout aye/no - if clear members are agreeing/against - no need for formal debate
- formal vote: if verbal unclear/inconclusive - formal vote where MPs leave chamber and walk back through one of 2 voting doors on either side of chamber - two tellers positioned at doors will make list of members voting for and against
must be majority for it to progress to next stage
committee stage: if bill passes second reading - committee stage then examines each clause in detail
undertaken by standing committee of 16-50 employees chosen specifically for bill
MPs on committee tend to be those with special interest in, knowledge of, subject of bill - from either majority/opposition/minority parties
for finance bills - whole house sits as committee - during this stage, amendments to various words or clauses in bill may be voted on & passed
report stage: where committee reports back to house on any amendments to bill. amendments are debated in house and either accepted/rejected or further amendments added
this stage has been described as safeguard against small committee amending bill against wishes of house
if no amendments there will not be a report stage - instead bill will continue straight to third reading
third reading: final vote on bill - almost a formality since bill that has been passed through all stages is unlikely to fail at this late stage - no debate or vote
there will only be an actual further debate on bill as a whole if at least six MPs request it - however, in house of lords there may be amendments made at this stage
royal assent: final stage is where monarch formally gives approval to bill and it then becomes an act of parliament - now a formality and under royal assent act 1967 monarch will not even have text of bills to which she is assenting - only have short title
commencement of an act: following royal assent - act will come in force on midnight of that day unless another date has been set
although, there has been growing trend for acts of parliament not to be implemented immediately - instead act itself states date when it will commence or passes responsibility on to appropriate minister to fix commencement date
in latter case the minister will bring act into force by issuing commencement order - often different sections are brought into effect at different times (causes problems of uncertainty)
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royal prerogative: this is the term used to describe powers held by monarch or government ministers that may be used without consent of commons or lords
it is one of the most significant elements of UK's constitution - concept stems from medieval king acting as head of kingdom, but it is by no means a medieval device
prerogative enables ministers among many other things to deploy armed forces, make and unmake international treaties and to grant honors
in modern times gov ministers exercise majority of prerogative powers either in their own right or through advice they provide to the queen which she is bound constitutionally to follow
fundamental principles are:
- supremacy of statute law - where there is conflict between prerogative and statute, then statute prevails, statute law cant be altered by use of prerogative
- use of this remains subject to common law duties of fairness and reason - is possible to challenge use of prerogative by judicial review in most cases
- while prerogative can be abolished/abrogated by statute, can never be broadened - however, parliament could create powers by statute that are similar to prerogative powers in nature
court rulings have restricted circumstances in which prerogative powers can be used - determined when prerogative powers are subject to judicial review and established how statute law interacts with these powers
common law & equity
common law: in anglo saxon times, there were local courts which decided disputes but it was not until after norman invasion 1066 that a more organised system of courts emerged - because norman kings realised that rule of country would be easier if controlled among other things - legal system. first norman king - william -set up curia regis/kings court and appointed his own judges - nobles who had a dispute were encouraged to apply to have king/judges decide matter as well the central court, judges were sent to major towns to decide cases and to dispense justice in kings name - during reign of henry ii these tours became more regular and country was divided into circuits or areas or areas for judges to visit - initially, judges would use local customs or old anglo saxon laws to decide cases but over a period of time it is believed that the judges on their return to westminster in london would discuss with each other the laws or customs they had used - gradually judges selected best customs and these were then used throughout country and had effect of making law more common across whole country
common law is basis for english law today - unwritten law that has developed from customs and judicial decisions. phrase common law is still used to distinguish laws that have been developed by judicial decisions from laws that have been created by statute e.g. murder is common law, crime is statutory - means that crime has been defined by theft act 1968 but murder hasnt
judges can still create new law today, however they can only do this when relevant case comes before them -only be done by statute law
equity: this was an important source and it still plays a part today with many legal concepts having developed from equitable principles - means fairness and is the basis on which it operates when adding to English law
it was developed because of problems in common law - only certain types of case were recognized - law was also very technical and if there was an error in formalities the person making claim would loose case
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common law & equity
customs are rules of behaviour, these develop in a community without being deliberately invented, and of two main types - general and local
- william conqueror gouht with king harold and won battle of hastings
- william claimed all of england as his - he applied feudalism by distributing land to nobles
- norman kings realised that control of country would be easier if they controlled the legal system
- first norman king (william) set up the curia regis (kings court) and appointed his own judges
- nobles who had a dispute were encouraged to apply to have the king/his judges decide the matter
- king sent his itinerant justices to go around the country to collect taxes and adjudicate (judge) disputes
- in time of henry II (1154-89) these tours become more regular and he divided the the country up into circuits or areas for judges to visit
- then itinerant judges chose the best customs among other differing customs of different towns to form common law - applied uniformly throughout the country
common law - basis of our law today, unwritten law that developed from customs and judicial decisions
defects of common law
- writ system: lord chancellor started all actions in common law by issuing writs - each wrong was assigned a writ - wrong must fit the writ available in order to have successful application, if it didnt the action wont be started
- provisions fo oxford 1258: common law court judges inhibited from creating new writ according to statutory law - so many wrongs suffered without remedies
- monetary payment only: only provides monetary payment compensation - in some cases this wouldnt be the best method of putting matters right between parties
- look at form instead of intention: it only looks at form (contract details) but the intention behind the crime or cas
- corruption and intimidation of juries: juries can be intimidated or bribed to support a certain judgement
creation of equity
historically and today equity is an important source that plays a part with many of our legal concepts - word equity means fairness and this is the basis on which it operates when adding to our law - it means rules developed to solve defects of common law
equity developed because of flaws in common law - only certain types of cases were recognised, people who couldnt obtain justice in common law courts appealed directly to the king - most of cases were referred to kings chancellor this was because his duty was to establish the truth and ensure justice without undue adherence to technicalities and procedure
to ensure decisions were fair, chancellor used new procedures such as subpoenas, which ordered a witness to attend court or sik imprisonment for refusing to obey the lord chancellors order - also developed new remedies which were able to compensate plaintiffs more than common law remedy of damages - called equityable remedies
court of chancery came into being which operated these rules of fairness/equity
equity was not a complete system of law - merely filled gaps in common law and softened the strict rules of common law
conflict between common law and equity
the 2 systems of common law and equity operated quite seperately so it wasnt suprising that this overlapping of the 2 systems led to conflict between them
one of the main problems was that the common law courts would make an order in favour of one party and the court of chancery an order in favour of the other party
conflict was finally resolved in earl of oxfords case when the king rules that equity should prevail - the decision made in chancery court was the one which must be followed by parties
equitable maxims
as time went on, a series of maxims were developed which formed the basis of the rules on which equity operated - a rule of equity, the system of justice which complements the common law, as equity became more formal, judges became
maxim is a broad statement of principle, truth and reasonableness of which are self evident
more likely to follow past decisions
today the doctrine of judicial precedent applies to cases involving equity, just as it applies to cases involving the common law
- he who seeks equity must do equity
- he who comes to equity must come with clean hands - equitable principle or remedy will not be granted to plaintiff who hasnt acted
- delay defeats equity - means that a plaintiff must not wait too long before making a claim as this might lead to unfairness to the other party
- equity is equality - where 2 people have an equal right, property will be divided equally
- equity looks to intention rather than the form
- equity acts in personam - equitable decrees were orginally enforced against the person of defendant and not against any property involved in dispute
- equity will not sufer a wrong to be without remedy - allows equity to create new remedies where otherwise the plaintiff would not have an adequate remedy for the case and would only be able to claim the common law remedy of damages
- equity acts on conscience
- equity imputes on intent to fulfil obligation
- where there are equal equities, common law shall prevail