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1.1 describe processes used for law making - Coggle Diagram
1.1 describe processes used for law making
Government processes of law making
Parliament
Parliamentary democracy in the UK makes most of its law as they are made up by passing acts of parliament.
These laws are referred to as statues or legislations which are made up of three parts
The monarch (queen or king)
The monarchs role is formal in law making
the king or queen gives the royal assent which is their assessment to the new law
The house of lords
members of the house of lords are called peers. (800)
All peers in the past were noblemen such as dukes and barons and they were hereditary positions that passed from father to son
There are only 92 hereditary peers today in the UK and also 26 church of England bishops and archbishops
Rest of members are life peers who cannot pass their position down to their children
The main job of the house of lords is to act as a double check on new laws
The house of commons
The house of commons is the most important part of parliament - made up of elected representatives of the people
650 members of parliament and each is elected at a general election to represent a constituency
The government
The government job is to run the country
The government is formed by the political party that has a majority of the 650 mps
The prime minister is the leader of the majority party.
Most proposals for new laws come from the government and a proposal for a new law is called a bill
Green paper
before putting a bill before parliament, the government usually publishes a green paper.
This is an initial report to provoke public discussion of the subject. It often includes questions for interested individuals and organisations to respond to.
White paper
After the consultation, the government publishes a white paper.
This is a document setting their detailed plan for legislation. It includes the draft version of the bill they intend to put before parliament.
The parliamentary stages of a bill
First reading
The government first introduces the bill into the commons where it receives a first reading.
This is a formal announcement of the bill and is followed by a vote to allow it to move to its next stage
Second reading
main principle are considered and debated by the whole house of commons and a vote is taken
As the government has the support of a majority of mps, they will usually win this vote
Then will move on to the committee stag
the committee stage
The bill is now examined in detail by a small committee made up of mps from different parties
The committee will report back to the whole house and will often propose amendments to the bill
The report stage
This gives mps an opportunity to consider the commitee's report and to debate and vote on any amendments they might wish to make to the bill
for major bills, the debates may be spread over several days
Third reading
the report stage is normally followed immediately by a third reading of the bill
this is the final chance for the commons to debate the bills contents
no amendments are allowed at this stage
The house votes either to pass or reject the bill
The lords
After the third reading, the bill goes to the house of lords, it goes through the same stages as in the commons
if the lords have amended the bill, must return to the commons so mps can decide whether to accept or reject the lords amendments
house of commons has the final say bc it is made up of the peoples elected representation
Royal assent
Once the bill has been passed by both the house of parliament, it goes to the monarch for signing (royal of assent)
the monarchs agreement to make the bill into an act of parliament or law and is a formality
The new law, now comes into force immediately unless the act specifies that it will apply from some later date. (commencement order)
Judicial processes of law making
Judicial precedent
Judicial precedent is a source of law making where the past decisions of judges create law for future judges to follow
It is based on the principle of standing by or following what judges have decided in previous cases (stare decisis)
Where the point of law in a case today is the same as in the previous case. the judge should follow the decision made in the previous one.
Treating similar cases in the same way creates certainty, consistency and fairness in the legal system
The law have developed from following the decisions made in earlier cases. This helped to create a single set of laws common to the whole country and so the system has come to be known as common law
The court hierarchy
The legal system has this hierarchy of courts, with the supreme court at the top and the magistrates courts at the bottom.
A decision taken in a case by a higher court automatically creates an original or binding precedent for all lower courts
one that they have to follow when dealing with similar cases
Exceptions to precedent
two main situations where a court does not have to follow precedent
Distinguishing
A precedent from an earlier case is only binding on a present case if the legal principle involved is the same and if the facts are similar in both cases.
It all means that the judge finds the facts in the present case are different enough from the earlier one to allow them to reach a different decision and not have to follow the precedent of the earlier case
overruling
Where a court higher up the hierarchy states that a legal decision in an earlier case is wrong and overturns it.
The supreme court can overrule a lower courts decision when it hears an appeal
Law on marital rape
R v R: husband had been convicted of attempted rape on his wife. - appealed against this with the old century precedent that a husband could not be guilty of raping his wife due to the marriage contract his wife gave ‘irrevocable consent’ to sex
This was overruled due to that it can not be irrevocable consent anymore due to a marriage being seen as 2 equal partners
Statutory interpretation
As well as making the law by creating precedents for others to follow, judges can make law by the way they interpret statutes or Acts of parliament.
A statute is a written law and so judges need to interpret the meaning of its words and apply them to the case they are judging.
Three main interpretation rules
The literal rule
Judges should use the everyday, ordinary meaning of the words in statue. However, one problem with this method is that a word can have several different literal dictionary meanings
R V marginnis a case involving illegal drugs, different judges found different meanings of the word ‘supply’
The golden rule
The literal rule can lead to an absurd result therefore the golden rule allows the court to modify the literal meaning to avoid this
Under the official secret act 1920 - it was an offence to obstruct her majesty’s forces in the vicinity of a prohibited place such as a naval base
In the case of Adler v George 1964, Adler argued that he had not broken the law bc he was not literally in the vincity of a prohibited place but was actually in it = the court chose the golden rule to avoid an absurd result and Adler was convicted
The mischief rule
The mischief rule allows the court to enforce what the statute was intended to achieve rather than what the actual words say
The licensing act 1872 makes it an offence to be drunk in charge of a carriage on the highway
Corkery V carpenter 1951, Corley was found guilty even though he had been in charge of a bicycle not a carriage - the court used the mischief rule to convict him arguing that the acts purpose was to prevent people from using any form of transport on the public highway when drunk not just carriages