#19833 - Ocr Law Making - OCR A-Level Law (with Contract Law)

Law Making

Topics:

• Delegated legislation

• European Union

• Judicial precedent

• Law reform

• Parliamentary law making

• Statutory interpretation

Delegated legislation

'Parent Acts' created to give groups powers to create legislation.

Types

• Orders in Council - made by Monarch and Privy Council.

• Statutory Instruments - made by Ministers in government.

• By-laws - made by local councils and corporations.

Orders in Council

• amend acts/bring them into effect

• deal with foreign affairs or national emergencies

• Example: Misuse of Drugs Act 1971 (Amendment) Order 2008.

Statutory Instruments

• amend acts / commence acts

• Example: National Minimum Wage (Amendment) Regulations 2012.

By-laws

• made under Local Government Act 1972.

• enforce good governance and good behaviour.

• Example: Transport Act 1993.

How are these controlled/implemented?

Parliamentary controls

Inspections:

• Minister can be questioned in Parliament.

• Joint Select Committee review Statutory Instruments and bring Parliament's attention to it if: tax is involved, retrospective, ultra vires, wording is unclear.

• Delegated Power Scrutiny Committee consider Bills.

Laying before Parliament:

• Affirmative procedure: Bill must be approved by Parliament between 28 and 40 days.

• Negative procedure: Bill is put a to a debate and if not annulled within 40 days, goes through.

Judicial controls

• Unreasonableness ultra vires - what 'no reasonable person' acting reasonably would have chosen to do (R(Rogers) v Swindon NHS Trust).

• Procedural ultra vires - process is not followed (Aylesbury Mushroom).

• Substantive ultra vires - no power to make the Bill that is made (Customs and Excise v Core and Dealey).

• Declare void and challenge compatability if conflicts arise with Human Rights Act 1998.

Locus standi is the legal concept that refers to the right of an individual to participate in and/or bring a claim to court.

European Union

Bodies

The Commission - politically independent, proposes legislation and enforces it. Eg protect treaties and it acts 'neutral broker'.

The Council - political, comprised of Member State Heads of State, determines policy

The Parliament - comprised of directly elected MEPs, oversees legislation, particularly controlling the budget. Budgetary Treaties gave the Parliament even more power on matters. Can request Commission proposals.

The Court of Justice - enforces EU law like any other court.

Sources of EU law

Treaties - not legislation, govern issues between states.

Regulations - these are rules that states must follow as they are written.

Directives - indirect, they require states to implement their own laws based on the overall directive.

Judicial precedent

Overview

Is where past judicial decisions create law for future cases.

Stare decisis - foundation, means let the previous decision stand.

Judgment terms

Ratio decidendi - the reason for the decision, forms binding precedent.

Obiter dicta - means other things said, forms persuasive precedent.

Court hierarchy

Supreme Court

Court of Appeal (Civil and Criminal Divisions)

Divisional Courts/High Court (KBD, Chancery, Family)

Crown Court/County Court

Magistrates' Court

Types of precedent

Binding - mandatory, from higher courts to lower courts.

Persuasive - optional, can originate from lower court decisions (R v R), Obiter Dicta statements (R v Howe), Judicial Committee of the Privy Council advice (JCPC), dissenting judgments.

Original - new precedent (example: Donoghue v Stevenson), could be based off reasoning by analogy (Hunter v Canary Wharf).

Precedent treatment

Overruling - state a previous decision was wrong.

Reversing - changing judgments of appealed cases (R v Woollin).

Distinguishing - finding the case different to the precedent/previous case, so precedent doesn't need to be followed (Balfour v Balfour and Merritt v Merritt).

Special rules

Supreme Court - the 1966 Practice Statement allowed SC to depart from its previous decisions if those decisions 'unduly restricted' the law, but only 'when it is right to do so'. SC very reluctant to do this, but some examples: R v Shivpuri (overruled Anderton v Ryan), R v G (overruling Caldwell recklessness), Knuller (PPP) v DPP.

Court of Appeal - decisions normally binding (Young v Bristol Aeroplane), unless there are previous conflicting decisions and per incurium decisions. This must only happen in 'rare and exceptional cases' (Rickards v Rickards). An extra exception for the criminal division is overruling allowed when the law has been 'misapplied or misunderstood' because liberty is involved.

Evaluation

Advantages

• Certainty and consistency

• Precision

• Flexibility

• Time-saving

Disadvantages

• Rigidity

• Complexity with the ratio

• Illogical distinctions - distinguishing can lead to 'hair-splitting'.

• Slowness generally

Law reform

The Law Commission

Based on the Law Revision Committee (ran from 1934-39).

Set out in s3 Law Commissions Act 1965.

The objectives:

• Reform the law, to simplify and modernise the law.

• Repeal laws that are obsolete (by 2015, over 3000 Acts were repealed).

• Codify laws via the building-block approach (systematic collection of law topics).

• Consolidate laws (combining law statutes into one), example: Powers of Criminal Courts (Sentencing) Act 2000.

Successful law reform examples: Criminal Justice and Courts Act 2015; Statute Law (Repeals) Act 1998.

Made up of 5 legal experts (one of whom is the Chair).

An awaiting reform example: OAPA 1861 (proposed in 1993).

By 2016, 66% of reports had led to implementation.

Process:

• Topic is chosen and researched.

• Consultation paper is produced detailing current law, problems and solutions.

• After responses, final report is produced including a Bill and any proposals.

Improvement measures:

• Law Commission Act 2009 made Lord Chancellor have to make an annual report to Parliament to improve rate of implementation.

• A dedicated parliamentary procedure to implement ‘uncontroversial’ reports since 2010 exists.

Advantages of Law Commission

• Legal expert research ensures detail.

• Consultation procedure ensures accuracy.

• Reform purpose simplifies and modernises the law.

Disadvantages of Law Commission

• Parliamentary reliance causes report failure.

• Lack of time for ‘pure law’ matters.

• Parliamentary sovereignty means Parliament does not have to answer to the Law Commission.

Royal Commissions

Are temporary committees formed by experts for specific issues. Examples: Runciman Commission - their report led to the Criminal appeals Act 1995 being created after the Birmingham Six miscarriage of justice. Phillips Commission - investigated police procedure, resulting in the Police and Criminal Evidence Act 1984.

Evaluation: they're subject experts but powers are limited - can only make recommendations.

Judicial review

Are committees led by judges who review specific issues. They then propose changes to be made. Example: Woolf Committee - investigated civil justice and made major reforms in 1999 on the civil court system.

Evaluation: they're legal experts but reduces judicial efficiency.

Parliamentary law making

Parliament

Is legislative and composed of the House of Commons, House of Lords and the monarchy.

Has parliamentary sovereignty.

House of Commons: around 650 MPs represent constituencies and scrutinise proposals; 100 can be ministers in Government and 20 of these form the Cabinet.

House of Lords: around 750 peers can use delaying power for a year (Parliament Act 1949) but does not have power over money bills. Have voted against 4 bills in the past: War Crimes Act 1991; Sexual Offences (Amendment) Act 2000; European Parliamentary Elections Act 1999; Hunting Act 2004 (led to R v Attorney General).

Influences on Parliament

Political: proposals are public through manifestos and government majorities mean most laws will pass. However, limited in that laws can be later altered or repealed.

Public opinion: highlight issues of social concern. However, too quick responses can lead to poor drafts and the media can manipulate opinions.

Pressure groups: can be for cause (example: RSPCA) or sectional (example: BMA); can use insider connections (using contacts) or outsider connections (using general public). Raises important and a range of issues. However, can be a narrow opinion from a small group and may have conflicting interests.

Lobbyists: allows anyone to raise an issue. However, can cause cash-for-questions affairs and can have an unfair influence when using professional lobbyists.

Legislative process

Bill types:

• Government (Criminal Justice and Courts Act 2015).

• Private Members - through ballots (Abortion Act 1967) and/or ten-minute rule.

• Hybrid - government and private members are included (HS2 train issue).

Bill scope:

• Public - involves general public, no one is specified.

• Private - involves individuals or company.

Stages:

Whitehall - creates the Bill

• Green paper - preliminary report explaining proposals.

• White paper - detailed report as above.

• Parliamentary Counsel drafts the Bill.

Westminster - creates the Act from the Bill

• House of...