1
Q
political influences
A
- parties set out proposed laws in their manifesto
- winning party forms the government who decide most of the ideas that become laws
2
Q
political influences examples
A
- European union referendum act 2015 followed a conservative manifesto
- human rights act 1998 fulfilled a labour party manifesto to incorporate the EU convention on human rights
3
Q
public opinion and media
A
- strong public opinion can bring about change in the law
- often expressed via the media
4
Q
example of pressure group
A
black lives matter
5
Q
public opinion
A
expressed via media and raise government awareness of certain issues
6
Q
pressure group
A
exist to further the interests of a section of society or to promote a cause
7
Q
lobbyist
A
an individual or a group tries to persuade someone in parliament to support a particular campaign or policy
8
Q
examples of pressure groups and lobbyists
A
a campaign by the league against cruel sports led to a ban on fox hunting in the hunting act 2004
9
Q
professional lobbyist
A
paid to lobby by business, charities, trade unions, professions, trade associations or pressure groups
10
Q
pressure groups and lobbyist examples
A
- fox hunting ban= hunting act 2004 banned cruel sports
- snowdrop campaign= banned handguns following public opinion following Dunblane
11
Q
public opinion and media examples
A
- voyeurism act 2019 made up skirting a specific offence as a result of a high profile case in the media
- dangerous dogs act 1991 banned certain breeds in response to some fatal dog attacks
12
Q
human rights act 1998
A
fulfilled a labour manifesto commitment to incorporate the European convention on human rights into UK law
13
Q
law commission
A
- full time law reform created by the law commission act 1965
- its main focus/ functions are to consolidate, codify existing laws and repeal outdated laws
14
Q
law commission examples
A
- coroners and justice act 2009 abolished the defence of provocation and replaced it with the defence of loss and control
- consumer rights act 2015 gives consumers new legal rights when buying goods and services
15
Q
consolidation
A
this means drawing together law that is contained in several acts of parliament into one act
16
Q
repeal
A
this means removing outdated or obsolete acts of parliament, only parliament can repeal an act, but the law commission can advise about acts
17
Q
codification
A
codification brings together all the law on one topic into one complete code of law to make it simpler
18
Q
how the law commission works?
A
- referral- topics may be referred by the Lord Chancellor on behalf of the government.
- research- the law commission researches the area of law to identify its problems
- consultation- a consultation paper is published seeking views on possible ideas to reform
- proposals for reform- the LC analyses the responses to the consultation. a report is presented giving its final recommendations
19
Q
advantages of political
A
- each political party has its proposals known and ready if they are elected
- a government majority means most of the laws it introduces will be passed
20
Q
disadvantages of political
A
- new governments may repeal or alter laws made by previous government
- difficult for minority or coalition governments to fulfill manifesto promises, leads to compromises
21
Q
advantages of public opinion and media
A
- where majority of public has certain beliefs, then parl can safely pass law on that issue
- free press able to criticise gov policy or bring issues to attention of the gov using public opinion
22
Q
disadvantages of public opinion and media
A
- gauging public opinion is notoriously difficult
- responding too quickly to high profile incidents can lead to poorly drafted law
- media can be accused of manipulating news and creating public opinion, so called “moral panics”
23
Q
advantages of pressure groups
A
- raise important issues drawn to the attention of parl
- wide range of memberships, expertise
24
Q
disadvantages of pressure groups
A
- try to impose their ideas on the majority
- pressure groups may have conflicting interests
25
advantages of lobbyists
- lobbyist can represent and present interests direct to gov ministers or departments
- anyone can lobby their MP
- may trigger publicity and/or debate in parl
26
disadvantages of lobbyists
- professional lobbyists are expensive and may only represent those who can afford it
- accusations of dubious and corrupt methods
27
disadvantages of law commission
- legal experts
- consultation
-whole areas of reform
- more than 2/3 of proposals successful
28
disadvantages of law commission
- some reforms may never be implemented due to lack of political will
- lack of parliamentary time to discuss technical law reform
29
green paper
an initial consultation documents to gain views about proposed new law and inviting suggestions from a variety of interested parties
30
white paper
a document that sets out the governments preferred process/approach to a future piece of legislation
31
first reading
the short title and main aims of the bill are announced. no debate at this stage
32
second reading
main debate on the whole bill takes place. minister, mp or lord responsible describes the aims of the bill and fields questions. at the end of the debate a vote is taken, there must be a majority in favour for the bill to progress
33
committee stage
details examination of the bill is undertaken by a committee of 15-60 MPs. usually done by standing committee. the committee is entitled to make recommendations for any amendments necessary for the bill to reflect intention discussed in the second reading
34
report stage
after scrutiny by committee, they will report back with any amendments to house for debate. at the end there will be a vote whether to accept the amendments, if there are no amendments the bill will go straight to the next stage
35
third reading
gives house final chance to look at the bill and decide it they want it to go further. a formality since a bill that has passed all previous stages is unlikely to fail
36
repeat process in other house
bill is now passed to the other house going through the previous stages. if either house makes amendments it is passed back to the previous house to consider the amendments. sending back and forth can be referred to as "ping-pong". it will continue until both houses agree to proposed changes
37
royal assent
final stage where monarch formally gives approval to the bill and becomes an act of parliament. it is a formality
38
public bills
involve matters of public policy affecting the whole country or a large section of it
39
private members bill
these give an opportunity to individual MPs who aren't part of government to introduce a bill
40
private bills
designed to create a law which will only affect individual people or corporations. they don't affect the whole community
41
advantages of legislative process
- democratic= law is made by our elected representatives and gives effect to election manifesto
- consultation= law can be made after detailed inquiry or report from LC
- detailed debate= bill are subject to high levels of scrutiny and detailed consideration
- full reform= parliament can reform and consolidate whole areas of law
- law making power can be delegated to other bodies
42
disadvantages of legislative process
- lengthy process= can take several months, if not years
- government control= effective scrutiny of proposed laws is limited
- complexity= acts of parliament are very long and written in complex language
- lack of publicity= the public should know when the law has changed after an act, but many acts receive little to no publicity beforehand
43
enabling act
this act gives the right to create delegated legislation. power is delegated to a secondary body, an act of parliament is passed giving the secondary body the power to create laws
44
orders in council
- made by king and privy council
- making laws in national emergency's
- transferring responsibility between government departments
- bringing acts of parliament into force
- dealing with some aspects of foreign affairs
- also be used to amend or update existing law
45
statutory instruments
- made by government ministers
- ministers and gov departments are given authority to make regulations for areas under their responsibility
- during pandemic the health secretary was given powers under the coronavirus act 2020
46
by laws
- made by local authorities to cover matters within their own area
- by laws must be confirmed by relevant secretary of state before they can come into force
- local by laws will involve traffic control, most local by laws are created under local government act 1982
- technical by laws can be made by public corporations and certain companies for matters within their jurisdictions
47
reasons for delegated legislation
- detailed law= parliament doesn't have time to deal with all the rules and regulations
- expert knowledge= details to be filled in by those who have expert knowledge of it
- local knowledge= local councils know their own areas and can decide which areas need restrictions
- consultation-= ensures legislation is accurate
- speed= can be passed quickly
48
advantages of delegated legislation
- saves parliamentary time= parliament doesn't have time to consider and debate everything
- access to technical expertise= allows technical matters to be dealt with by qualified experts and public opinion
- allows quick law making= the process of passing an act of parliament can take a while
- easy to amend= can be amended or revoked easily when necessary so that the law can be up to date
49
disadvantages of delegated legislation
- undemocratic= takes law making away from democratically elected house of commons
- sub delegation= law making authority is handed down another level, much of our law is made by civil servants
- large volume and lack of publicity
- difficult wording= complex and obscure wording can lead to difficulty in understanding the law
- length and expertise of judicial review= no legal aid is available for this procedure
50
enabling act- control by parl
- sets out limits of any delegated legislation, such as who can make, amend or repeal the law
- act can set out the gov department must consult other people before making regulations
- parl retains overall control over dl as it can repeal or amend the powers in enabling act at any time
- publication of all SIs is required under the statutory instruments act 1946
51
affirmative resolutions- controls by parl
the SI won't become law unless specifically approved by parliament within 28-40 days
52
negative resolutions
SI will become law unless rejected by parl within 40 days. any MP is allowed to put down a motion to annul the delegated legislation
53
scrutiny committees- controls by parl
- par has a number of committees that scrutinises proposals to delegate law making power
- other committees consider the lawful use and impact of delegated legislation
- the joint committee on SI specifically considers SI
54
questioning of government ministers- controls by parl
individual ministers may be questioned by MPs in the house of commons on the work of their departments
55
can delegated legislation be challenged?
delegated legislation can be challenged in court by a person with sufficient standing. it can be challenged by judicial review on the ground it is ultra vires- meaning it goes beyond the powers given
56
substantive ultra vires
- the secondary body has gone beyond the powers granted to it
case example:
- fire brigade union case= gov minister lacked power to make changes to criminal injuries compensation scheme
57
procedural ultra vires
- the secondary body failed to follow the correct procedure in the enabling act
case example
- aylesbury mushroom case= failed to consult mushroom growers association over establishing a new training board
58
unreasonable
- delegated legislation is so unreasonable that no reasonable authority could ever come to it
case example= wednesbury case= cinema was granted permission to open on sunday's that no children under 15 shall be admitted
59
effectiveness of controls on delegated legislation
- the amount of all means that not all of it can be given proper scrutiny= can be quite difficult to remove
- dl is often very technical and those scrutinising may lack knowledge or expertise in the relevant law to be able to assess its validity
- scrutiny committees can only make recommendations
- affirmative resolution procedure can draw parls attention to dl but rarely stops it being passed
- SI following negative resolution procedure rely on other MPs and lords investigating the legislation to say if it should be opposed
- questioning of ministers responsible for dl can be useful method of drawing parl's attention to unsatisfactory law
- judicial review is an important check on the use of dl by ministers and public bodies, but dl can only be challenged by someone with "standing"
60
literal rule
giving words their plain, ordinary, grammatical and literal meaning, as it would appear in a dictionary. the rule is applied even if it results in an absurd, harsh or ridiculous outcome
61
whitely v chapell
D was charged with impersonating any person entitled to vote at an election. D was acquitted because he impersonated a dead person, who isn't entitled to vote
62
LNER v Berriman
a railway worker was only entitled to a lookout if they were "relaying or repairing" the track. widow was unable to claim compensation for death of her husband who was oiling the track
63
fisher v bell
D was a shopkeeper who had flick knives on display in his shop window. the restriction of offences weapons act 1959 made it an offence to "offer for sale" these knives. D succeeded in arguing that a display in a shop window isn't an offer for sale but an invitation to treat
64
golden rule
a modification of the literal rule. judges only use the golden rule when the use of the literal rule would produce an absurd or unjust result
65
narrow use
where a word has 2 possible meanings, but one would produce an unwanted or absurd outcome, the court chooses the sensible meaning
66
R v Allen
the offence of bigamy is committed by marrying someone while legally still married to the other. it is impossible to commit the offence, because you can't marry another if you are already married. the court held that marry should be interpreted to mean to go through a ceremony of marriage and convicted allen
67
wide use
only one literal meaning of a word which would lead to an absurd outcome, the golden rule can be used to alter the meaning of the word in order to avoid the unwanted outcome and give effect to parls intentions
68
Re Sigsworth
a son, who murdered his mum, was prevented from inheriting his mum's estate. D was the next of kin but the court didn't want the murdered to benefit from his crime as its outcome would be absurd
69
mischief rule
originating from heydon's case, this rule looks back to the gap in the previous law and interprets the act
70
smith v hughes
the words soliciting the street in the street offences act 195 were held to included soliciting from the window of a house. the court said that the aim of the act was to allow people to walk along the streets without being solicited and should be interpreted to cover this
71
royal college of nursing case
the court had to consider the wording of the abortion act 1967 which allowed registered medical practioners to carry out abortions. the court looked at the mischief that parl was aiming to redress and decided that nurses supervising part of the procedure wasn't unlawful
72
purposive approach
seeks to give effect to parl's intentions when passing a new law. language should be interpreted in a which achieves those aims
73
jones v tower boot
the court of appeal decided that racial harassment by fellow workers was in the course of employment, making the employer liable. parl's intention was to eliminate racism in the workplace
74
R (Quintavalle) v Secretary of State
the court used purposive approach in deciding that organisms created by cell nuclear replacement came with the definition "embryo" in the human embryology and fertilisation act 1990. the act stated that "embryo means a live human embryo where fertilisation is complete." CNR doesn't require fertilisation, but hadn't been developed in 1990 when the act was passed
75
intrinsic aids- long and short title
- these may give some clues as to the meaning of words used in the act
e.g. royal college of nursing- court referred to the log title of abortion act 1967 to help confirm its purpose
76
intrinsic aids- preamble or purpose section
- older acts have a detailed preamble outlining what the statute covered and its purpose. newer acts may have a objective or purposes section at the beginning of the act
77
intrinsic aids- interpretation section
sometimes known as a definition section, this is like a glossary of key terms
78
intrinsic aids- schedules
these usually come at the end of an act and contain more detailed clarification of rules
79
intrinsic aids- explanatory notes
these are inserted by parliamentary draftsmen when the act goes for printing. notes may be included in the margins or as headings to show what a particular section is about
80
intrinsic aids- punctuation
this can and should be taken into account by judges when interpreting statutes
81
extrinsic aids- dictionary
used to discover the plain, ordinary meaning of a word at the time the act was passed
82
extrinsic aids- hansard
this is the report on debates in parl during the progress of a bill. since pepper v hart the courts have been allowed to refer to hansard in order to discover parl's intention. the statements of the minister must be clear
83
extrinsic aids- law commission reports
which led to the passing of the act e.g. the coroners and justice act 2009
84
extrinsic aids- EU law
EU laws has influenced judges to adopt a purposive approach when interpreting statutes
85
extrinsic aids- precedent
case law appropriate to the area of law
86
extrinsic aids- academic textbooks
e.g. in dunlop v selfridge the court adopted the definition of "consideration" in contract law given by the academic pollock
87
extrinsic aids- human rights act 1998
judges must, as far as possible, interpret acts of parl so they are consistent with human rights
88
extrinsic aids- interpretation act 1978
it gives some statutory guidance
89
advantages of literal rule
- respects parliamentary sovereignty- judges follow words used by parl, which is democratic
- respects separation of powers- recognises that parl is our law, making body and judges apply the law a its written
- legal certainty and predictability- should make law more certain as the law will be interpreted as its written
- precision- literal rule encourages accuracy by parl
90
disadvantages of literal rule
- absurd results- following words exactly can lead to blatantly harsh or unjust results
- undermines parliament's intention
- unrealistic- expects impossible level of perfection
- ignores the limitations of language because the rule over-emphasises the literal meaning of a word
91
advantages of golden rule
- escape route= avoids absurdities that the literal rule can create
- upholds parl's will= assumed parl never intends to pass absurd law
- respects parl supremacy= only used in response to a failing of the literal rule
- saves parl having to pass amending legislation= better that minor changes are made to acts rather than forcing parl to spend valuable time passing an act
92
disadvantages of golden rule
- the definition of absurd is subjective= it may mean different things to different judges
- gives judges too much discretion/power= this leads to accusations of judicial law making cause it means the case outcome is determined by a judge
- unpredictable= no guidance on how or when the golden rule will be used
- limited use= restricting its use to situations that are absurd or repugnant means that the rule is only used on rare occasions
93
advantages of the mischief rule
- promotes the purpose of the law by allowing judges to put into effect the remedy parl chose
- avoids absurd and unjust outcomes of literal approaches
- flexibility= allows the law to adapt to changing social and technological conditions
- the emphasis is on making sure that the gap is filled= provides an alternative to the literal rule
94
R v Jogee
D shouted encouragement while his friend beat up the victim. D's friend went further than expected and stabbed the victim to death. D was convicted of murder alongside his friend under rules on "joint enterprise." Allowing D's appeal, the supreme court overruled its earlier decision in powell and english which had said D was liable as an accessory to murder if he foresaw murder was a possibility, even if he didn't intend. D needed to have intended to assist or encourage murder to be guilty as an accomplice
95
Young v Bristol Aeroplane
- where a previous decision of the CA has been overruled by the SC, they must follow the SC
- in the event there are 2 conflicting CA decisions, the CA can choose between them
- if the decision is made per error, CA can ignore bad law and create new precedent
96
DPP v Cheeseman
D exposed himself in public toilets. Act stated it was an offence to do this to annoyance of "passengers." police officers weren't "passengers" as they weren't using the toilet for its normal purpose, so D wasn't guilty
97
disadvantages of mischief rule
- uncertainty= impossible to know when judges will use this rule. judges may reach different conclusions.
- judicial lawmaking= the judge is effectively ignoring the words of the act
- difficult for judge to identify parl's intention= the mischief aimed at can be difficult to establish and the judge may be hampered by extrinsic aids
- more limited than the purposive approach= the judge looks backwards to find the gap in the old law that the act was trying to deal with
98
advantages of purposive approach
- leads to justice in individuals cases= a broad approach which allows the law to cover more situations than applying words literally
- flexibility= allows the law to adapt to changing social and technological conditions
- allows discretion= avoids harsh analysis of language and the absurdity and injustice of more literal approaches
- more appropriate to modern acts of parl= the purposive approach goes further than the mischief rule
99
disadvantages of purposive approach
- judicial law making= trying to find the purpose of the act allows a judge too much power
- difficult for the judge to identify parl's intention= approach can only be used if the judge can find parl's intention
- uncertainty= impossible to know when judges will use this approach which makes it difficult to advise clients
100
stare decisis
to stand by what has previously been decided fundamental principle of precedent, donoghue v stevenson
101
ratio decidendi
the reason for deciding, most important part of judgement because it is the binding part, R v Howe- D took part in murder but claimed he was acting under duress cause of threats to kill him if he didn't
102
obiter dicta
other things said by judges, so the future cases don't have to follow obiter dicta but can give useful guidance, R v Gotts- D tried to kill his mum because his dad threatened him with violence if he didn't
103
court hierarchy- civil cases
county court, high court, divisional court, court of appeal, supreme court
104
court hierarchy- criminal cases
magistrates court, crown court, king's bench divisional court, court of appeal, supreme court
105
court hierarchy- supreme court
- the sc replaced the house of lords as the highest court in the UK
- its decisions bind all other courts in the english legal system
- normally follow its own previous decisions but will depart from them "when it appears right to do so"
106
court hierarchy- court of appeal
- must follow decisions of the SC
- decisions by one division of CoA will not bind its other division
- civil division of CA is bound to follow its own past decisions
- criminal division will normally follow its own past decisions but can depart from a decision where the liberty of someone may be at stake
107
human rights act 1998
gives all courts freedom to ignore precedent from higher courts if the precedent contravenes the European Convention on human rights
108
Re Medicaments, Director of Fair Trading v Proprietary Association of GB
the CoA refused to follow the house of lords precedent of R v Gough because it conflicted with decisions of the EC + HR
109
binding precedent
- must be followed by future courts
- usually comes from a higher court
- usually found in the ration decidendi
- R v Howe
110
persuasive precedent
- doesn't have to be followed but the judge may choose to follow it
- can come from a variety of different sources: courts lower in hierarchy, privy council decisions, obiter dicta, dissenting judgement, decisions of courts in other countries
111
privy council decisions
this court is the highest court of appeal for many commonwealth countries. it is presided over by many of our own sc justices, it is only reasonable to consider their decisions as worthy precedent
112
dissenting judgement
where a case has been decided by a majority of judges, the judge who disagreed will have explained his or her reasons
113
decisions of courts in other countries
this is especially so where that country uses the same ideas of common law as hour legal system, R v Bentham
114
judgement
a judge will write a "judgement" to be published in a law report
115
original precedent
comes about when point of law in a case has never been decided before, no past cases upon which the judge can base a decision
116
Gillick v West Norfolk Health Authority
the house of lords had to decide whether girls under 16 could be prescribed the pill without parental consent. the court decided that the doctors could do so, provided the girl understood the possible risks and consequences of having sex
117
hunter v canary wharf
claimants complained that the constructions of the canary wharf tower interfered with their TV reception. there hadn't been a case like this before. in deciding the case, the court drew an analogy between loss of a view and loss of TV reception
118
overruling
this is where a court in a later cases states that the legal rule decided in a new earlier case is wrong and replaces it with a new precedent
119
R v G
the SC overruled its previous decision in caldwell and said that reckless in criminal law should be judged subjectively. this means that the decision in caldwell is no longer good law and shouldn't be relied upon in future
120
reversing
this is where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case
121
kingston
the CoA appeal had quashed D's conviction for sexual assault by allowing a defence of intoxication. on appeal, the house of lords reversed the CA's decision and ruled that he was still guilty
122
distinguishing
this is where the facts of the case being decided are so different from an earlier precedent that the judge isn't bound to follow the earlier case
123
merritt v merritt
h and w separated. h signed agreement to pay w money. husband later tried to go back on his promise claiming he didn't intend to create a legally binding agreement
124
use of practice direction
the SC will only rarely use its power under the practice direction to avoid uncertainty, especially in criminal and contract law
125
herrington v british railways board
a child trespasser had been badly injured while playing on a railway track. the house of lords overruled the old case addie v dumbreck which had said that there was no duty of care owed to trespasser. they changed the law because social conditions and attitudes had shifted over time, there was now less playing space for children and so a greater temptation to trespass
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