unit 2- LAW - Section A - Law Making – Specifications AQA LAW - Unit 1 - Section B – The English Legal System

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LAW IN ACTIONAspects of theEnglish Legal System

A Revision Guide

AQA LAW - Unit 1 - Section A - Law Making Specifications

AQA LAW - Unit 1 - Section B The English Legal System Specifications



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LAW IN ACTIONAspects of theEnglish Legal System

CONTENTS 02-03

Specification - Unit 1 - Section A - Law Making 04Specification - Unit 1 - Section B - The English Legal System 05

Section A - Law Making - Contents 06

THE FORMAL LEGISLATIVE PROCESS

1. Identify and outline the stages in the formal legislative process. 072. Identify and outline the ways in which a Bill can be presented to Parliament. 093. Discuss the advantages and disadvantages of the legislative process. 104. Outline the doctrine of Parliamentary supremacy and limitations on it. 135. Explain how the Law Commission can influence Parliament. 156. The advantages and disadvantages of the Law Commissions influence. 167. Explain how public opinion and the media can influence legislation. 17

TEST YOURSELF 19-21DELEGATED LEGISLATION

1. Identify and briefly outline three forms of delegated legislation 232. Explain and discuss how delegated legislation is controlled both by

Parliament and by the Judiciary. 253. Discuss the advantages and disadvantages of delegated legislation. 27

TEST YOURSELF 29-32

THE DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedent 33and how it operates within the English system of case law.

2. Explain how precedent works within the hierarchy of courts. 343. Explain the role of law reporting in the system of precedent. 354. Discuss whether the doctrine of precedent allows judges flexibility in

developing the law (distinguishing, overruling, reversing) 365. Outline and briefly explain the court structure. 386. Discuss the advantages and disadvantages of the system of precedent. 40

TEST YOURSELF 42-45



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Section B - The Legal System Contents 46

MAGISTRATES

1. How lay magistrates are selected and appointed. 472. How District Judges (Magistrates Courts) are selected and appointed. 483. The jurisdiction (responsibilities) of magistrates. 484. The advantages and disadvantages of magistrates

within the English legal system. 50

TEST YOURSELF 52-54

JURIES

1. The qualifications required for jury service. 552. How jurors are selected for jury service. 563. The function of a jury in a criminal trial. 574. The advantages and disadvantages of the use of juries. 585. Describe the function of the judge during a criminal trial. 61

TEST YOURSELF 61-65

THE LEGAL PROFESSIONS

1. Outline the qualifications and training required to become a barrister 66or a solicitor, and describe the work each profession carries out.

2. Outline how complaints against solicitors can be dealt with. 693. Outline how complaints against barristers can be dealt with. 694. Outline the training and role of Legal Executives. 705. Discuss the suggestion that because of recent changes to the legal

profession it is no longer necessary for there to be two distinctprofessions of solicitor and barrister. 71

TEST YOURSELF 73-74

CRIMINAL COURTS

1. The Magistrates Courts in criminal cases. 752. The Crown Court in criminal cases. 77

TEST YOURSELF 79



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AQA LAW - SPECIFICATION

Unit 1 - LAW01- Law Making and the Legal System

Candidates answer three questions Candidates will study both section Aand section B.

In the examination, they will answer onequestion from eachsection,and a third question from either section. 1 hour 30 minutes 95 marks

Section A Law Making

Parliamentary Law Making

Outline of influences on Parliament: role of the Law Commission; political, media and

pressure group influences; Green and White consultative papers.

Formal UK legislative process: roles of the House of Commons, House of Lords, and theCrown; the types of Bill; stages in the process. Doctrine of Parliamentary Supremacy and

limitations on it: effect of membership of the European Union; effect of Human Rights

Act 1998.

Advantages and disadvantages of the influences on Parliament and of Parliamentary law

making.

Delegated Legislation

Statutory Instruments; Orders in Council; By-Laws (Local Authority and other bodies).Reasons for delegating powers.

Parliamentary and judicial control over delegated legislation.

Advantages and disadvantages of delegated legislation.

Statutory Interpretation

Approaches to interpretation: literal, golden and mischief rules; purposive approach.Aids to interpretation: rules of language; internal and external aids.

Advantages and disadvantages of the different approaches and aids to statutoryinterpretation.

Judicial Precedent

The Doctrine of Precedent: the hierarchy of the courts; stare decisis, ratio decidendiandobiter dicta; law reporting. The operation of the doctrine: following, overruling,

distinguishing and disapproving.

Advantages and disadvantages of the doctrine and operation of precedent.



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Unit 1 - LAW01- Law Making and the Legal System

Section B The Legal System

The Civil Courts and other forms of dispute resolution

Outline of civil courts and appeal system.

Other form of civil dispute resolution: tribunals, arbitration, mediation, conciliation and

negotiation.

Advantages and disadvantages of the civil courts and other forms of dispute resolution,

including comparisons with each other.

The Criminal Courts and lay people

Outline of criminal courts and appeal system, including classification of offences.

Lay magistrates: qualification, selection and appointment; training, role and powers.

Jurors: qualification and selection; role.

The advantages and disadvantages of using lay people in the criminal courts.

The Legal Profession and other sources of advice, and funding

Barristers, solicitors and legal executives: qualification, training and work of each group.Other sources of legal advice.

Outline of private funding: own resources, insurance and conditional fees. Outline of

state funding: Community Legal Service and Criminal Defence Service.

Simple evaluation of the legal profession, of other sources of advice and of funding.

The Judiciary

Judges: qualification; selection and appointment; role; training; dismissal.

The independence of the judiciary: security of tenure, immunity from suit; independenceof the Executive; the separation of powers.

Simple evaluation of the judiciary.



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UNIT 1 - LAW MAKING And The LEGAL SYSTEM

SECTION A: LAW MAKING


1. Identify and outline the stages in the formal legislative process.2. Identify and outline the ways in which a Bill can be presented to

Parliament.3. Discuss the advantages and disadvantages of the legislative process.4. Outline the doctrine of parliamentary supremacy and its limitations.5. Explain how the Law Commission can influence Parliament.6. The advantages and disadvantages of the Law Commissions influence.7. Explain how public opinion and the media can influence legislation.

DELEGATED LEGISLATION

1. Identify and briefly outline three forms of delegated legislation2. Explain and discuss how delegated legislation is controlled both by

Parliament and by the Judiciary.3. Discuss the advantages and disadvantages of delegated legislation.

DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedentand how it operates within the English system of case law.

2. Explain how precedent works within the hierarchy of courts.3. Explain the role of law reporting in the system of precedent.4. Discuss whether the doctrine of precedent allows judges flexibility in

developing the law (distinguishing, overruling, reversing)



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Introduction

The formal legislative process refers to the process by which a Bill passes through

Parliament in order to become an Act of Parliament. A Bill, often called a draft Act, mustpass through a number of stages in both the House of Commons and the House of Lords

before it can be given Royal Assent and become law.

There is often a period of consultation before a Bill is introduced into Parliament by thegovernment. The government may publish a Green Paper in which it outlines its reasons

for wishing to create new legislation. A Green Paper gives the opportunity fort a widerange of organisations and groups of people to comment on the proposals. Greenpeace,

Age Concern, and trade unions are examples of the organisations who may wish tocomment on the governments proposals. They may also lobby Members of Parliament

to influence views in their favour.

The government then publishes a White Paper that outlines the proposals in more detail.These proposals will be similar to the approach taken in the Bill. For example, the White

Paper Justice for All (2002)outlined significant changes to the ways in which criminal

courts operate.

Not all Bills are preceded by Green and White Papers. In recent years the government has

published fewer Green Papers, preferring to use a more informal approach to

consultation.

1. Identify and outline the stages in the formal legislative process.

To become an Act of Parliament, a Bill must pass through both the House ofCommons and the House of Lords, and it must receive Royal Assent. MostBills can start off in either House, but where a Bill is likely to be controversial itwill start off in the Commons. Government Bills involving changes in taxationor public spending must be first introduced in the Commons.

Bills must go through the following procedure in each House: First Reading,Second Reading, Committee Stage, Report Stage, Third Reading. After theThird Reading, the Bill is passed to the other House where it goes through thesame stages. The Committee Stage is not usually required in the Lords butwhen it is, the whole House of Lords acts as the Committee. If a Bill fails towin a majority vote in either House it will not become law unless it repeats thewhole procedure successfully.



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Once a Bill has passed through both Houses, it requires Royal Assent tobecome law. It is not customary for the Monarch to consent in person; consent

is given by a committee of 3 peers (Lords), including the Lord Chancellor. Thegranting of Royal Assent is a formality. Withholding Assent would cause aconstitutional crisis.

The most important stages in the legislative process are probably the SecondReading and the Committee Stage.

During the Second Reading the aims and principles of the Bill are debated atlength. The government minister from the department responsible for the Billopens the debate, outlining the main principles of the new law and

summarising its most important clauses. Shadow ministers from theOpposition then respond. The debate is then open to all MPs who wish tospeak. A vote is then taken on whether the Bill should proceed further.Government Bills are usually whipped, which means MPs must vote in linewith their political partys instructions.

At the Committee Stage in the Commons each Bill is scrutinised in detail by itsown standing committee made up of MPs drawn from all political parties. AStanding Committee is made up of between 16 to 50 MPs selected according tothe strength of each political party in the House. The committee examines theBills wording and may amend it to ensure it conforms to the general approvalgiven by the House at the Second Reading. For Bills concerned with taxation(Finance Bills) or with constitutional matters, the whole House may sit as acommittee at this stage.

There are no Standing Committees in the House of Lords. After the SecondReading, the Lords as a whole may act as a committee, scrutinising the Bill andproposing amendments.

The Third Reading is generally a formality. Major changes cannot be proposed,and a Commons vote is taken only if requested by at least six MPs. Ifapproved, the Bill will then pass to the other House of Parliament, and then onto Royal Assent.



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2. Identify and outline the ways in which a Bill can be presented toParliament.

There are three types of Bill. These are:PrivateBills,Public/ GovernmentBills, andPrivate MembersBills.

Private Billsdeal with local or personal matters. They are introduced by aMember of Parliament on behalf of a private organisation, local authority, orthe individual concerned. For example, a Private Bill used to be the only way ofobtaining a divorce. However, in modern times only a very small number ofPrivate Bills have been passed. They were more common in the 19thcentury.For example, a Private Bill enabled the construction of the Manchester Ship

Canal, a project much too large for the local council to achieve on its own.

By far the majority of Bills introduced into Parliament each year arePublic/ Government Bills, introduced by the Government. Government Billsare usually introduced as a result of party Manifesto promises, or for particularissues that arise such as the terrorism legislation, or as recommendations from

various law reforms bodies, for example the Law Commission or a RoyalCommission. An example of an Act that started as a Government Bill is theDisability Discrimination Act 1995.

Private Members Billsare introduced by backbench MPs, i.e. MPs who donot hold office in the Government. Every 12 months MPs who wish tointroduce a Private Members Bill can enter their names in a ballot, and 20names are drawn.

Around 10% of Commons time is spent on Private Members Bills, but unlessthe Bill has the support of the Government its chances of becoming an Act ofParliament are limited. However, Private Members Bills have produced anumber of important statutes. Examples of Private Members Bills that have

become Acts of Parliament include the Murder (Abolition of Death Penalty)Act 1965, the Abortion Act 1967, and the Marriage Act 1994 that allows peopleto get married in any registered venue.



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3. Discuss the advantages and disadvantages of the legislative process.

ADVANTAGES

The legislative process has a number of advantages.

Firstly, it is democratic. The members of the House of Commons aredemocratically elected to make our laws. Before each General Election, eachpolitical party presents its Manifesto to the electorate. The winning party thenhas control of the House of Commons and forms the Government led by thePrime Minister. By far the majority of Bills introduced into Parliament each

year are Government Bills; it is these Bills that eventually become statutory law.

MPs in the Commons, therefore, are our democratically-elected representatives,entrusted by the electorate to legislate for the benefit of the citizens of theUnited Kingdom. MPs are answerable to the electorate and know full well thatif they produce consistently unpopular legislation, they are likely to lose theirseats and the right to govern at the next General Election.

A second advantage is that the legislative process is open and transparent fromGreen Paper to Royal Assent. Formal legislation may be preceded by a GreenPaper and a White Paper. This period of consultation allows a wide range oforganisations, groups of people, the general public, and the media to commenton the Governments proposals. MPs will certainly take into account thepopularity or unpopularity of any proposed legislation.

Formal legislation itself takes place in public. Members of the public mayattend any of the debates in Parliament. The Committee Stage, especially forcontroversial Bills, will be attended by the Press, and issues may be reported inthe Media while MPs themselves may be grilled on radio and television.

There are also checks and balances throughout the legislative process. HerMajestys Loyal Opposition, composed of MPs not in political power, are thereto scrutinise legislation at every stage. Although a Government with a clearmajority can get most of its legislation through, it will take into account thecriticisms offered by the Opposition, especially if the Opposition hasconsiderable support amongst the general public on a particular piece oflegislation, for example changing the jury system.



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The House of Lords has a crucial role to play as a revising chamber who can bethought of as critical friends in the legislative process. A Bill can go back and

forth between the Houses until agreement is reached on amendments proposedby the Lords; this often produces better Law.

The Lords recognise they are not democratically elected, so it is very rare forthem to vote against a government Bill. However, peers can force theGovernment to think again by indicating they intend to vote against a Bill.Under the Parliament Acts 1911 and 1949, the Lords may delay a Bill for up toa year. After that, the Commons can send the Bill for Royal Assent without theLords agreement as happened with the Hunting Bill 2004. This ensures thatthe Commons has to listen to the advice of the Lords, but it is not bound by

that advice.

Advantages of the formal legislative process:

1. Democratic. Our laws are made by our elected representatives, MPs.Manifesto promises become Government bills, which then become

Acts, e.g. Hunting Act 2005.2. Open and transparent process. Green Paper, White Papers, etc.

Everything debated in public. There are no secret laws.3. Lots of checks and balances. For example, 2nd Reading, Committee

Stage, House of Lords (revising chamber), Royal Assent.4. Bills are drafted by Parliamentary draftsmen; they have many years of

experience of drafting complicated legislation. Also each Minister isresponsible for his/ her Bill, so theyd better get it right.



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DISADVANTAGES

The legislative process has a number of disadvantages

The main disadvantage of the legislative process is that it often produces Actswhich are incredibly complex and difficult to interpret. For example, about75% of the cases heard by the House of Lords in its judicial capacity each yearinvolve disputes over the interpretation of Acts.

The Renton Committee on the Preparation of Legislation highlighted fourmain categories of complaint: (1) the language used in many Acts is obscureand complex, (2) many Acts are over-elaborate because they try to cover every

contingency, (3) the structure of many Acts doesnt make much sense so it ishard to find particular sections, (4) the lack of clear connection betweendifferent Acts often made it difficult to find out what the law actually is!

The Renton Committee (1975) made 81 recommendations but only about halfof these have been implemented.

Laws are made for the benefit of the citizens. Therefore, statute law should beas certain and as easy to understand as possible. This is clearly not the case withstatute law at present.

Summary of disadvantages of the formal legislative process

1. The legislative process is very slow. Only 300 Acts a year. Bills must gothrough both Houses. System depends upon delegated legislation toproduce enough laws, especially through Statutory Instruments andbylaws.

2. Legislation is extremely complicated. Renton Committee highlighted 4main problems: (1) language obscure and complex; (2) Acts over-elaborate and complex because they try to cover everything; (3) difficultto find the connection between Acts because the law may be scatteredacross several Acts.

3.About 75% of all the cases heard by the Law Lords involve argumentsabout what the Acts of Parliament actually mean.



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4. Outline the doctrine of Parliamentary supremacy and limitations on it.

The doctrine of Parliamentary supremacy is based on the concept ofdemocratic law-making. Statutory law is created by Members of Parliamentwho have, at least in the House of Commons, been elected to represent theirconstituencies in Parliament. In other words, MPs are representatives of thethose who democratically elect them, and in this way the electorate canconsider themselves as part of the law-making process.

However, there are a number of limitations on this concept. Firstly, MPsusually vote on party lines rather than how their particular constituents wish. Inthis way it is more accurate to say that it is the Government in power that is

supreme rather than Parliament itself. The leaders of that party, the Cabinet,decide what legislation will be introduced. Members of Parliament areinstructed when and how to vote by the party whips. There is the occasionalrebellion but generally the Government gets its own way. The limit on whatParliament can do is, therefore, in reality set by the views of the Cabinet as tothe best political decision.

In addition, many MPs are elected by very small majorities, and do not in realityrepresent the majority of their constituents as much as they might claim to do.Often an MP will be elected by out 30% of his constituents, particularly if

several candidates stand for election, and if he wins by only a narrow majority.

Parliamentary elections only have to take place once every five years. Thismeans that constituents may find their MP regularly votes against their wishesand be able to do nothing about it, or even that their MP leaves their politicalparty and crosses to the opposition bench in Parliament. Having said that, agreat deal of law is not at all political in content and similar legislation would bepassed no matter which political party was in power.

The House of Lords plays an important part in the legislative process but thereare objections to their role on the grounds they are not an elected body. TheHouse of Lords is seen as a revising chamber. Their task is to debate the Billand offer amendments. Their views are usually respected by the Commons.The Lords are seen as a check on the balance of power in Parliament. If amajority of the House of Lords oppose a bill, they can defeat the Governmentin a vote on the bill and delay its passage for a year. However, in the finalresort, the Government can use the Parliament Acts of 1911 and 1949 tooverrule the Lords and force the Bill through.



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The will of the House of Commons must eventually prevail because itsmembers have been elected by the people at a General Election and, therefore,

the victorious party and the Government it forms have a mandate toimplement the proposals set out in their Manifesto.

In theory, the Queen could refuse to give the Royal Assent which signs a Billinto Law. However, the monarchs power is only symbolic and theoretical; inpractice, the monarchy could not defy the will of Parliament and survive. Yetthe Queen remains a much-respected figure and her views will be takenseriously by the Prime Minister and the Government.

Parliament remains the supreme domestic legislative authority but it has chosen

to limit its sovereignty in relation to Europe. When the United Kingdompassed the European Communities Act 1972, we accepted that European lawtakes priority in legislation affecting all of Europe. This was confirmed byFactortame Ltd. v Secretary of State (1989).

Finally, the Human Rights Act 1998 has begun to influence domestic legislationvery significantly. Acts of Parliament may not conflict with any judgementsmade by the European Court of Human Rights. In addition, our courts maynot make any judgements that conflict with judicial precedent set by theECHR.

As we live in a parliamentary democracy, the will of the people as expressed bythe House of Commons must always prevail. However, there are lots of checksand balances in our legislative system to ensure that legislation expresses thewill of at least a majority of the electorate.



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5. Explain how the Law Commission can influence Parliament.

Introduction

Acts of Parliament are created by Parliament, but how does Parliament, and in particular

the Government, decide what Bills will be introduced in Parliament? Clearly Parliamentwill be influenced by a wide variety of groups. These include political parties, public

opinion, the media, pressure groups, law reform bodies such as the Law Commission, andjudges as they interpret and apply the law in courts.

During a general election campaign, each political party publishes and promotes its own

Manifesto, its proposed programme of legislation, hoping that it will appeal to theelectorate and secure them victory at the ballot box. Proposed Bills generally fall onto

three groups. First there are non-controversial Bills that have broad approval from all, ormost of the political parties; these pass through Parliament with little opposition. Second

there are the Bills that reflect public concern, for example the Dangerous Dogs Act 1991.

Third there are political Bills that reflect the philosophy of the party that proposes them;

these are usually designed to change society in some way. For example, Conservativegovernments between 1979 and 1993 passed considerable legislation to weaken the

power of the trade union movement.

The Law Commissionwas established by the Law Commissions Act 1965. Itis a permanent, independent law reform body and has a full-time staff headed

by five Law Commissioners, consisting of two academics, a barrister, a solicitorand a judge. The chairman is usually a High Court judge who is appointed forthree years. The commissioners are supported by barristers and solicitors fromthe civil service, parliamentary draftsmen, researchers and administrative staff.

Under section 3(1) of the 1965 Act, the role of the Law Commission is to keepunder review all the law and to recommend reform when it is needed. TheCommission carries out research and consultation, then draws up proposalsleading to modernisation and improvement of the law. These proposals are putbefore Parliament who then decide whether or not to turn these draft Bills into

Acts of Parliament.

The five key areas of concern are: (1) the development and reform of the law;(2) repealing obsolete law (getting rid of outdated law); (3) the simplification ofthe law; (4) codifying the law (putting laws on the same subject together); and(5) repealing laws that are obsolete or that conflict with each other. Since 1965,around 5000 enactments have been repealed by Statute Law (Repeals) Actsproposed by the Law Commission.



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The Law Commission investigates matters referred to it by Governmentdepartments but also decides itself which areas to investigate. It usually has

around 30 projects in hand at the same time. Following research andconsultation, the Law Commission produces a report that is sent to the LordChancellor with its final recommendations. The report usually includes a draftBill which is then laid before Parliament. Examples of legislation passed toimplement Law Commission recommendations include the Criminal Attempts

Act 1981, the Sale and Supply of Goods Act 1994, the Computer Misuse Act1990, and the Family Law Act 1996.

6. The advantages and disadvantages of the Law Commissions influence.

Advantages of the law reform bodies

Both the Law Commission and Royal Commissions have the advantage ofmany members who have considerable technical and legal expertise andknowledge in their fields. The Law Commission is headed by a High Court

judge, a barrister, a solicitor and two legal academics. A Royal Commission caninvite whomever it wishes onto its committee.

Because the membership of both bodies is drawn from a range of backgrounds,their recommendations are usually free from political bias; they do not supportone political party or the other. Therefore, they are likely to give a balancedrange of recommendations. Furthermore the Law Commissioners change everyfive years so a different range of views is brought into the law reform body.

Both types of Commission conduct extensive research during theirinvestigations so their recommendations are supported with considerableevidence. This helps to reform, develop and clarify the law and avoid futureproblems in the application of the law.

Disadvantages of the law reform bodies

A major disadvantage of both the Law Commission and Royal Commissions isthat many of their recommendations are not turned into statutory legislation.This is unfortunate because their recommendations are often well-balanced.However, if the Government of the day dislikes any of the recommendations,they will not put them into practice.



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For example, there was recently, a Royal Commission on the Reform of theHouse of Lords. It recommended that 80% of the peers should be appointed,

and 20% should be elected. This was not implemented because a majority ofLabour MPs felt that more than 20% of the Lords should be elected.

The lack of power possessed by the Law Commission is also shown by the factthat the Government is not obliged to consult the Law Commission or set up aRoyal Commission. Margaret Thatcher did not like Royal Commissions so shedid not appoint a single one when she was Prime Minister for eleven years.

The process of investigation often takes a long time; it can sometimes be yearsbefore a report is produced. With Royal Commissions, this is partly because

their members work only part-time. The Law Commission often conductsseveral investigations at the same time; this can seriously delay a report on anysingle investigation; and investigations may not be as thorough as they couldbe.

7. Explain how public opinion and the media can influence legislation.

Members of Parliament, at least in the House of Commons, are elected by thegeneral public, the electorate, so it is only right that they continue to listen tothose who have voted them into office. In theory, the government representsthe population, and the government will usually introduce legislation that hasthe general support of the country. No government that consistently ignoresthe opinions of its supporters, or the country as a whole, is likely to win thenext general election.

Each political party has its local organisation whose members feed ideas andopinions to the national party. An MP listens closely to his constituencymembers because it is they, after all, who help him win his seat at a general

election. However, active party members are a small minority of the electorateas a whole, so politicians will seek other ways to gauge the mood of the generalpublic. From time-to-time political parties commission opinion polls to assesspublic attitudes on legislation they may consider introducing.

Sometimes the public demand changes in the law following a small number ofsensational incidents. For example, the Government found it very difficult toresist the campaign supported by leading tabloid newspapers following themurder of little Sarah Payne to change the law concerning how muchinformation about paedophiles should be made public. On the other hand,



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shifts in public opinion may take much longer. For example, homosexual sexbetween consenting adults was a criminal offence in the 1960s; today changing

attitudes have resulted in the reduction of the age of homosexual consent to 16for both males and females.

Does public opinion shape media influence, or does media influence shapepublic opinion? In fact, it is a two-way process though there is little doubt thatmedia influence has become increasingly powerful. This is hardly surprisingsince the news media is a major source of information for most people.Newspapers in particular can be very influential because they often put forwarda partisan political view while radio and television have an obligation to presentbalanced arguments.

For example, following the murder of Stephen Lawrence in 1993 and theacquittal of three young men, the media raised serious questions about the wayin which the police had handled the investigation and whether the acquittal

verdict was right. In response to this fierce criticism, the government set up aninquiry led by Sir William Macpherson, a retired judge. The MacphersonReport, published in 1999, among other recommendations, suggested that thedouble jeopardy rule was in need of review this is the law which preventsanyone being prosecuted for the same offence for the same offence if theyhave already been acquitted. The Law Commission suggested amendments tothe law, and the Criminal Justice Act (2003) removes the double jeopardy rulefor serious cases if new and compelling evidence comes to light, so that adefendant can be tried a second time.

It is fair to say the media has increasingly set the agenda for muchparliamentary debate and even legislation, for example, in relation to asylumseekers, national identity cards, gun control and top-up fees for universitystudents. One must hope that the media, particularly the press, takes generalpublic opinion into account when launching their campaigns.



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THE FORMAL LEGISLATIVE PROCESS - TEST YOURSELF

Introduction

1. To what does the legislative process refer?

2. What is a Bill often called?3. Name the two Houses of Parliament.

4. Who gives her Royal Assent?5. What is the purpose of a Green Paper?

6. Who might contribute their views concerning a Green Paper?7. What does lobbying in Parliament mean?

8. What is the purpose of a White Paper?

9. What did the White PaperJustice for All (2002)outline?

10. Why has the Government published fewer Green Papers in recent years?

Stages in the Legislative Process

1. What are the three principal stages in the legislative process?

2. Why is passage through the House of Commons the most important stage?

3. In which House are most controversial Bills introduced?4. Which Government Bills must be first introduced in the Commons?

5. Name the 5 stages a Bill goes through in both Houses.

6. What happens if the Committee Stage is needed in the Lords?

7. What must a Bill win in both Houses if it is to become an Act of Parliament?8. Describe in detail the nature of Royal Assent.9. Describe in detail what takes place during the Second Reading of a Bill.

10. Describe in detail what takes place during the Committee Stage in the Commons.11. What may the Lords do at the Committee Stage?

12. Explain why the Third Reading is generally a formality.

The Ways in which a Bill can be presented to Parliament

Private Bills

Public/Government Bills

Private Members Bills

1. What kind of matters do Private Bills deal with?2. Who introduces a Private Bill?

3. On whose behalf are Private Bills introduced?4. When were Private Bills fairly common? Give an example of a Private Bill.5. Why have only a small number of Private Bills been passed in recent times?

6. By whom are Public Bills introduced?

7. What are Public Bills usually based on?



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8. Give one example of an Act of Parliament that started as a Government Bill.9. Give examples of occasions when other Public Bills may be introduced.

10. Name the two Law Reform bodies.

11. Private Members Bills are introduced by whom?12. Explain the term backbench MP.

13. Describe the selection process by which an MP is given the opportunityto introduce a Private Members Bill.

14. What support does a Private Members Bill need to become law?15. Name 3 important Acts of Parliament that started off as Private Members Bills.

Advantages and Disadvantages of the Legislative Process

Advantages

1. Legislative process can be regarded as democratic.

Commons - democratically elected - General Election - Manifesto to the electorate -

winning party - forms the Government - Prime Minister - majority of Bills Government

Bills - eventually become statutory law. MPs answerable to electorate - consistently

unpopular legislation - likely to lose their seats and right to govern - next General

Election.

2. The legislative process is open and transparent.

From Green Paper to Royal Assent - preceded by a Green Paper and a White Paper -

period of consultation - organisations, groups of people, general public, media -comment on the Governments proposals. MPs take into account popularity or

unpopularity of any proposed legislation. Legislation takes place in public - public andpress may attend any of the debates in Parliament. The Committee Stage, especially for

controversial Bills, attended by the Press - issues reported in the media while MPsgrilled on radio and television.

3. Checks and balances throughout the legislative process

Her Majestys Loyal Opposition - scrutinise legislation at every stage - although a

Government clear majority most of legislation through, take into account the criticismsoffered by the Opposition - especially if the Opposition considerable support general

public on a particular piece of legislation, for example changing the jury system.

The House of Lords crucial role - revising chamber - critical friends in the legislative

process. A Bill back and forth between the Houses until agreement is reached on

amendments proposed by the Lords - often produces better Law.



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Lords not democratically elected - rare for them to vote against a Government - however,force Government to think again - indicating they intend to vote against a Bill. Under the

Parliament Acts 1911 and 1949, Lords delay a Bill for up to a year - After that, the

Commons send Bill for Royal Assent without the Lords agreement - Hunting Bill 2004.Ensures Commons listen to advice of Lords, but not bound by advice.

Disadvantages

The main disadvantage of the legislative process - often produces Acts incredibly

complex and difficult to interpret. For example, about 75% of the cases heard House ofLords - judicial capacity each year involve disputes - interpretation of Acts.

Renton Committee on the Preparation of Legislation highlighted four main categories of

complaint: (1) the language many Acts obscure and complex, (2) many Acts over-elaborate - try to cover every contingency, (3) the structure of many Acts doesnt make

much sense - hard to find particular sections, (4) the lack of clear connection betweendifferent Acts often makes it difficult to find out what the law actually is!

The Renton Committee (1975) made 81 recommendations - only about half -

implemented.

Laws made for benefit of the citizens. Therefore, statute law should be as certain and as

easy to understand as possible. Clearly not the case with statute law at present.

The Law Commission

1. When and how was the Law Commission established?2. Describe two characteristics of this law reform body.

3. Describe in detail how the Law Commission is staffed and organised.4. What is the role of the Law Commission Under section 3(1) of the 1965 Act ?

5. Outline briefly how the Law Commission operates.6. What are their five key areas of concern?

7. How does the Law Commission decide which areas of law to investigate?8. To whom is its final report and recommendations submitted?

9. What does the final report usually include?10 Name three Acts of Parliament which were originally based on

Bills submitted by the Law Commission.



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DELEGATED LEGISLATION

Introduction

Delegated legislation can be defined as law made by some person or by some body under

the authority of an Act of Parliament. Parliament delegates its authority but not itsultimate responsibility for all legislation. Parliament cannot, in the time and with the

resources available to it, make all the laws society requires. A law may only be neededfor a specific geographical area, such as a town or county, it may only be needed on a

specialist matter, for example transport or education, or it may be needed to meet anunforeseen emergency.

Parliament gives its authority to make laws to other bodies in parent or enabling Acts

of Parliament. The Parent/Enabling Act contains the basic framework of the law, togetherwith authorisation for the person/s or bodies, such as a Government department, to make

further law on the matter. For example, the Criminal Justice Act 2003 allows rules to be

made allowing trial for serious or complex fraud cases to be held without a jury.

Another example is the Road Traffic Act 1988 which gives the Secretary of State for

Transport the authority to make regulations regarding the type of helmet that must be

worn by motorcyclists.

There are three different types of legislation, which are: Orders in Council, statutory

instruments, and bylaws.



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1. Identify and briefly outlinethree formsof delegated legislation

Three forms of delegated legislation are: Orders in Council, statutoryinstruments, and bylaws.

Orders in Council

The Queen and the Privy Council have the authority to make Orders inCouncil. The Privy Council is made up of current and former Cabinet ministersand other senior politicians. This type of delegated legislation allows theGovernment to make legislation without going through Parliament. Orders inCouncil are drafted by government departments.

The main use of Orders in Council is to put European directives into effect.These directives are intended to harmonise the laws of Europes memberstates. They cover many issues, including health and safety or workers, equalrights, consumer law, banking, insurance, and social security.

The Privy Council also has power to make law in emergency situations undertheEmergency Powers Act 1920and theCivil Contingencies Act 2004. Forexample, the Privy Council might use Orders in Council during an outbreak offoot and mouth to help prevent the spread of the disease.

Orders in Council are also used to transfer responsibilities between governmentdepartments. For example, they were used to transfer power from the ministersof the UK government to those of the devolved assemblies in Scotland andNorthern Ireland.

Statutory Instruments

Statutory Instruments (SIs) are rules made by government ministers under theauthority of the parent/ enabling Act for the area of government for which theyhave responsibility. For example, the Minister for Transport has power undertheRoad Traffic Act 1988to make regulations concerning motorcyclists, suchas the type of helmets to be worn. For this reason, SIs are often calledministerial regulations.

If a minister did not have these powers, the Parent Act would need to beregularly updated whenever regulations were changed. This would be time-consuming and cumbersome.



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The Statutory Instrument is also the most usual form of law used to put

European directives into practice. European members must pass their ownlaws to bring the directives into effect, and the usual, but not the only, methodin the United Kingdom is the SI. For example, the Unfair Terms inConsumer Contracts Regulations 1994 implemented a European directivegiving consumers protection from unfair terms in contracts.

About 3000 SIs are brought into force every year, which demonstrates thatStatutory Instruments are a major method of law-making.

BYLAWS

Bylawsare made by local authorities and public bodies or companies. Thesebylaws must be approved by the relevant government minister.

Under the Local Government Act 1972, local authorities are given the powerto make laws concerning their geographical area. A County Council can passlaws affecting the whole county while a District or Town Council can pass lawsaffecting that district or town. Many local bylaws involve the control of traffic,including parking restrictions, but they also cover a wide range of issues such asthe drinking of alcohol in certain places and the fouling of public areas by dogs.In Canterbury it is an offence to consume alcohol in the street or any openspace in the city centre.

We can think of bylaws as local laws made by local people (councillors) fortheir local area.

Public bodies and some companies make laws within their areas that affect thepublic. For example, the railway companies can issue bylaws about the

behaviour of the public on their premises and trains. The LondonUnderground has created a by-law banning smoking on any part of theUnderground.



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2. Explain and discuss how delegated legislation is controlled both byParliament and by the Judiciary.

1. CONTROL BY PARLIAMENT

Parliament delegates its authority to produce legislation but it retainsresponsibility for all delegated legislation created in its name. Therefore,Parliament has a number of ways by which it controls delegated legislation.

All delegated legislation is written within a framework authorised byParliament. The framework is outlined in a Parent/ Enabling Act. The Enabling

Act sets limits which the delegated legislation must respect. For example, all

bylaws are created under the Local Government Act 1972; and all Orders inCouncil are created under the Emergency Powers Act 1920 and theCivilContingencies Act 2004 No delegated legislation can include powers notgranted by the Parent Act, otherwise they are ultra vires, which means actingbeyond the powers outlined in the Enabling Act.

In addition, Parliament established aDelegated Powers Scrutiny Committeein 1993. This is a joint committee, including members of both Houses ofParliament. This committee hears evidence from government departments onSIs. The task of this committee is to recommend that Parliament reviews SIs

when it considers the SI is defective in some way. For example, the authority ofParliament may have been exceeded or the drafting is defective (not wordedproperly). However, the Scrutiny Committee can only report its findings; it hasno power to amend/change a statutory instrument.

A small number of SIs must receiveaffirmative resolutionin order to becomelaw. This means the Statutory Instrument cannot become law unless it isspecifically approved by vote by Parliament. If affirmative resolution is requiredthis will have been stated in the Enabling Act. One of the disadvantages of thisprocedure is that Parliament cannot amend the SI; it can only be approved,annulled or withdraw.

Most SIs are subject to negative resolution. This means that the SI willbecome law unless it is rejected by Parliament within 40 days. Ministers may becalled before Parliament to answer questions about the proposed SI during thisperiod.

In the final resort, Parliament has the power to revoke delegated legislationorpass an Acton the same subject.



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2. CONTROL BY THE JUDICIARY

All delegated legislation is subject to review in the Queens Bench Division ofthe High Court. This court has the power to review legislation and to declare it

void, especially if the legislation goes beyond the powers (ultra vires) granted inthe Parent/Enabling Act.

There are two ways in which delegated legislation can beultra vires substantiveultra viresand procedural ultra vires. Substantive ultra viresmeans the delegatedlegislation included powers that were not granted in the Enabling Act. Forexample, in Strictland v Hayes Borough Council(1896) thecourt decidedthat although Hayes BC had the right to ban singing obscene songs in public,

they had no right to ban singing these songs in private because this power hadnot been granted in the Enabling Act.

Proceduralultra viresmeans that the delegated legislation is ultra viresbecause thecorrect procedure outlined in the Enabling Act has not been followed. Forexample, in the Aylesbury Mushroom case (1972), the court declared thedelegated legislation void because the Minister of Labour had not consulted allthe parties, including the Mushroom Growers Association as required by theEnabling Act.

The court may also declare delegated legislation void if it includes makingunreasonable regulations, imposes a tax, or allows sub-delegation. These willonly be permitted if the power is granted by the Enabling Act.

The courts may also issue what are calledprerogative orders.There are threekinds of prerogative orders: (a) quashing,which cancels an ultra viresdecision,(b)mandatory, ordering a party to do something, and (c) prohibition, order abody not to do something.

The courts may also declare delegated legislation void if it conflicts withEuropean directives.



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3. Discuss the advantages and disadvantages of delegated legislation.

Delegated legislation has severaladvantages.

Firstly, it saves Parliament time. Parliament simply does not have enough timeto pass all the laws the country needs. Over 3000 statutory instruments aloneare passed each year. The whole Parliamentary year would be taken up withpassing these, leaving little or no time for important legislation to be passed.Parliament needs to concentrate on converting the Manifesto promises madeby the winning political party into Acts of Parliament, for example the Hunting

Act (2005).

Secondly, delegated legislation can be passed quickly to deal with situationswhen they arise, including emergencies. For example, following the terroristattacks on September 11, 2001, an Order in Council was made to stop flights inand out of the UK for a temporary period. In the same way, StatutoryInstruments can be created or amended far more quickly by Governmentdepartments than by going through the whole formal legislative process.

Thirdly, people with specialist knowledge pass delegated legislation. Forexample, local councils have greater knowledge of their local area. These bylawscover many issues including the drinking of alcohol in certain places and thefouling of public areas, such as parks, by dogs. In Canterbury it is an offence toconsume alcohol in the street or any open space in the city centre.

Statutory Instruments are drawn up by civil servants who usually have manyyears working in the same Government department and therefore havespecialised knowledge about their subjects from transport to education toindustry to health. There is also some control over this type of delegatedlegislation because it is scrutinised by the Scrutiny Committee and it is subjectto affirmative or negative resolutions.

Delegated legislation has a number of disadvantages.

Firstly, the process is to some extent undemocratic because it allows non-elected people to make the law. It is the civil servants who draft the statutoryinstruments; civil servants are not elected, and the instruments are often onlyscrutinised briefly, then rubber-stamped by the Minister responsible. Thiswould be acceptable if there was sufficient control over statutory instruments,but in reality Parliaments control is fairly limited. For example, not all Statutory



28

Instruments are subject to affirmative or negative resolution, and quite a fewget through with very little scrutiny.

On the other hand, bylaws are made by local authorities whose members aredemocratically elected and accountable to local citizens.

Secondly, there is such a huge volume of legislation for example, 3000statutory instruments annually that it is often difficult to discover just whatthe present law is. In addition, much delegated legislation is made in privatewith few opportunities for public or media scrutiny. This is sharp contrast tothe formal legislative process which is open and transparent.

Thirdly, delegated legislation is often as difficult to understand and interpret asActs of Parliament. SIs are complex and complicated, often using obscurewording that is incomprehensible to the man in the street.

Finally, judicial review is not generally available to the man in the street. Theprocess is very expensive and time-consuming. As a result, many citizensprobably have to suffer in silence from the abuse of delegated powers.

In addition, if the Enabling Act has given very wide powers of discretion to theMinister, it may be very difficult for the courts to challenge laws that have beencreated. Judges may only challenge delegated legislation where it appears to beoutside the powers given by the Enabling Act, not just because the legislationappears to be an abuse of power.



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DELEGATED LEGISLATION - TEST YOURSELF

Introduction

1. How can delegated legislation be defined?

2. Does Parliament delegate both its authority and its responsibilityfor delegated legislation?

3. Why does Parliament delegate some legislation to other bodies?4. Describe three occasions for which delegated legislation may be appropriate.

5. Explain the nature and function of a Parent/Enabling Act.6. Give one example of how the Criminal Justice Act 2003 makes use

of delegated legislation.

7. The Road Traffic Act 1988 gives the Secretary for Transport the authority

to introduce what kind of legislation?8. Why is it important that the Secretary for Transport has the authority

to introduce regulations under the Road Traffic Act 1988?

9. Name three kinds of delegated legislation.

10. Of the three kinds of delegated legislation you have named in Q9,

why are bylaws different from the other two?

THREE FORMS OF DELEGATED LEGISLATION

Orders in Council

1. Who have Parliaments authority to make Orders in Council?2. Who make up the Privy Council?

3. What do Orders in Council allow the Government to do?4. Who actually draft the Orders in Council?

5. Describe the relationship between Orders in Council and European directives.6. What is the purpose of European directives? What are some of the issues

covered by European directives?7. Under what two acts does the Privy Council have the authority to make law

in emergency situations?8. Orders in Council are also used to transfer what kind of

responsibilities? Give one example of this kind or transfer.

Statutory Instruments

1. What are Statutory Instruments?

2. What authority does the Road Traffic Act 1988 give to the Minister for Transport?3. Why are SIs often referred to as ministerial regulations?

4. What is the main advantage of ministers having the power to make SIs?5. Explain the relationship between SIs and European directives.



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6. Why doesnt Parliament simply use the formal legislative processto put European directives into effect?

7. What was the purpose of the Unfair Terms in Consumer Contracts Regulations

1994?8. How many Statutory Instruments are drafts and put into practice every year?9. Who drafts Statutory Instruments?

10. Why are Health & Safety regulations usually in the form of SIs?

Bylaws

1. Bylaws are made by whom?

2. Why is it necessary for Government ministers to approve bylaws?

3. Which Act gives local authorities the power to make laws concerning their

geographical area?4. Outline some of the issues covered by bylaws.

5. Complete the following: Bylaws are .. laws made by .. people (councillors)for their .. area.

6. Give two examples of how companies and organisations are empowered

to make bylaws.

PARLIAMENTARY AND JUDICIAL CONTROL

OF DELEGATED LEGISLATION

Control by Parliament

1. How does Parliament set limited to delegated legislation?2. Under which Act are all bylaws created?

3. Under which Acts are Orders in Council created?4. What do you understand by the phrase ultra vires?

5. Why is the Delegated Powers Scrutiny Committee described as a joint committee?6. Explain the purpose of the Scrutiny Committee.

7. When might the Scrutiny Committee recommend that Parliament reviewa Statutory Instrument?

8. There are number of standing committees on delegated legislation.What is their purpose?

9. Explain the function of the affirmative resolution procedure.10. Describe on disadvantage of the affirmative resolution procedure.

11. Most Statutory Instruments are subject to negative resolution.Explain how negative resolution works.

12. What is Parliaments ultimate power in relation to delegated legislation?



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Control by the Judiciary

1. In which division of the High Court is all delegated legislation subject to review?

2. Why might the court review legislation and declare it void?3. Name three things the court will presume delegated legislation has no power to do

unless this power is expressly granted by the Enabling Act.

4. What regulations were made by Hayes Borough Council in 1896 that the courtdecided were unreasonable?

5. Why do you think the Review Court regarded Hayes regulations as unreasonable?6. Explain the meaning of procedural ultra vires.

7. Explain why the Aylesbury Mushroom case (1972) is an example of proceduralultra vires.

8. Explain the meaning of substantive ultra vires.

9. The Review Court may also issue prerogative orders.

Describe three kinds of prerogative orders.10. What action will the Review Court take if delegated legislation

clashes with European directives?

THE ADVANTAGES & DISADVANTAGES

OF DELEGATED LEGISLATION

Advantages of Delegated Legislation

Complete the sentences

Firstly, it saves Parliament time. Parliament simply does not have enough time topass.. Over 3000 statutory instruments alone are ...

The whole Parliamentary year would be taken up with passing these, leaving little or no

time . Parliament needs to concentrate on converting

. made by the winning political party into Acts of Parliament, for

example the ...(2005).

Secondly, delegated legislation can be passed quickly to deal with situations when they

arise, including .. For example, following the terrorist attacks on September11, 2001, an Order in Council was made to stop flights in... In

the same way, Statutory Instruments can be created or amended far more quickly byGovernment departments than by going through ...

Thirdly, people with specialist knowledge often create delegated legislation. For

example, local councils have greater knowledge of ... These bylaws cover manyissues including the drinking of ..and the fouling of public

areas, such as parks, by dogs. In Canterbury a bylaw makes it an offence to.. in the street or any open space in the city centre.



32

Statutory Instruments are drawn up by civil servants who usually have many yearsworking in the same .. and therefore have specialised knowledge

about their subjects from transport to education to industry to health. There is also some

control over this type of delegated legislation because it is scrutinised by the and it is subject to .. or .. resolutions. Inaddition, particular Ministers are responsible for their own .., and

government Ministers are always answerable to Parliament.

The Disadvantages of Delegated Legislation


Firstly, the process is to some extent undemocratic because it allows

... It is the civil servants who draft the statutory instruments;

civil servants are not elected, and the instruments are often only.,

then rubber-stamped by the Minister responsible. This would be acceptable if there was

sufficient control over statutory instruments, but in reality Parliaments control is... For example, not all Statutory Instruments are subject to . or

negative .., and quite a few get through with very little scrutiny.

On the other hand, bylaws are made by local authorities whose members are

. and .. to local citizens.

Secondly, there is such a huge volume of legislation for example, 3000 statutory

instruments annually that it is often difficult to . In addition,

much delegated legislation is made in private with few opportunities for .. or

. scrutiny. This is sharp contrast to the formal legislative process which is openand transparent.

Thirdly,delegated legislation is often as difficult to understand and interpret as Acts of

Parliament. SIs are . and , often using obscure wording that is

incomprehensible to the man in the street.

Finally, judicial review is not to the man in the street. The process is

very expensive and ... As a result, many citizens probably have to suffer insilence from the abuse of delegated powers.

In addition, if the En A... has given very wide powers of discretion to the

Minister, it may be very difficult for the courts to ... Judges may onlychallenge delegated legislation where it appears to be outside the powers given by the

Enabling Act, not just because the legislation appears to be an .



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THE DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedentand how it operates within the English system of case law.

Judicial precedent is based on the Latin maxim stare decisiswhich roughlymeans stand by what has already been decided. This means that judgementsreached in earlier cases should be followed in later cases unless there are soundreasons why they should not be. In other words, judges can create bindingprecedents by the judgements they make because other courts are bound tofollow these judgements. This system provides fairness and certainty in the lawbecause defendants can expect to be treated fairly no matter where the case is

heard, and the courts will be reasonably certain how the law should be appliedin particular cases.

Precedent can only operate effectively if the legal reasons for past decisions aremade clear. Therefore, at the end of a case, the judge will make a speech givinghis decision and, most importantly, giving his reasons for his decision. This iscalled the ratio decidendi (reason for deciding), and it is the part of the

judgement in which the judge explains the principles of law upon which hisdecision is based. This is what creates a precedent for judges to follow infuture, similar cases. Judgements made by a higher court are binding on all

courts beneath them.

A judges speech may also include obiter dicta (other things said). Forexample, a judge may comment on what his decision would have been if thefacts of the case had been different. These comments are not binding in futurecases, but they may help other judges understand the legal reasoning for theratio decidendi. It is sometimes difficult to separate the ratio decidendi from theobiter dicta because the judgement is usually given as a continuous speech withno headings or sections.

If a point of law in a case has never been decided before, the judge will createwhat is called an original precedent. For guidance, he will look at cases similarto the one before him and decide on what legal principles the judgement wasbased. This will influence him in the creation of the new precedent. This iscalled reasoning by analogy. Nowadays it is accepted that judges are creatingnew law when they create judicial precedent.



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2. Explain how precedent works within the hierarchy of courts.

In England and Wales the courts operate a rigid doctrine of judicial precedent.This means that every court is bound to follow any judgement made by a courtabove it in the judicial hierarchy.

Since 1973, the highest court affecting the English legal system is theEuropeanCourt of Justice. Decisions made by the ECJ are binding on courtsthroughout the European Union.

The most senior national court is the House of Lords. Its decisions bind allother courts in the English legal system. From 1898 (London Street Tramways

v London County Council until 1966, the House of Lords was bound by itsprevious precedents. However, the Practice Statement 1966 allows the Lordsto depart from previous precedents where it is in the interests of fairness and

justice so to do. The Practice Statement 1966 allows the Lords more flexibility,but they use this power sparingly as they wish the public to have confidencethat the law is as certain as it can be.

Below the House of Lords is the Court of Appealwhich has two divisions:Civil and Criminal. With limited exceptions, the Appelate Courts are bound bytheir own past precedents. The Criminal Division is allowed more flexibilitythan the Civil Divisions where the point at issue involves the liberty of thedefendant.

Below the Court of Appeal are thethree Divisional Courts (Queens Bench,Chancery and Family). These courts are bound by the decisions of the courtsabove them. They are also in general bound by their own past decisions.

The High Courtis bound by the decisions of all the courts above it, and inturns it binds the courts beneath it. High Court judges follow each others

decisions though they are not obliged to do so.

The so-called inferior courtsare the Crown Court,the County Court, andthe Magistrates Court. They are bound to follow the decisions of thesuperior courts, and it is unlikely that a decision created by an inferior court cancreate precedent.



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3. Explain the role of law reporting in the system of precedent.

For precedent to be effective there must be an accurate record of whatdecisions have been made by the courts. In1865 the Incorporated Council ofLaw was established and controlled by the courts to report the law.

Judgements are noted down exactly as delivered by the judge to ensureaccuracy.

Other well-established reports include theAll Englandseries (All ER) and theWeekly Law Reports(WLR). In addition, all High Court, Court of Appealand the Law Lords cases are reported on theInternet.

Quality newspapers and journals also publish law reports; these aresummarised versions in which the law reporter tries to identify and explain theessential parts of the judgement.

Explain:

case lawstaredecisisbinding precedenthierarchy of courts

Appeal courtsPractice Statement 1966ratio decidendiobiter dictaLaw Reporting Incorporated Council of Law Reporting 1865 All Englandlaw reports Weekly Law Reports Internet reporting newspapers and

journals

www.lawreports.co.uk(summaries of important cases in the Daily Law Notessection)www.publications.parliament.uk(reports of cases from the House of Lords)www.bailii.org(cases from the Court of Appeal)



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4. Discuss whether the doctrine of precedent allows judges flexibility in

developing the law (distinguishing, overruling, reversing)

As society changes and develops, our laws must be able to reflect these changesif they are to be seen as fair and relevant. Judges have a number of ways toavoid precedent, so they have room to manoeuvre in giving judgement.

Distinguishingis the main device used by judges in all courts for avoiding abinding precedent. No two cases are exactly the same. Therefore, a judge mayregard the facts of the case before him to be sufficiently different from thefacts of the case in which the binding precedent was set. In thesecircumstances, the judge is not bound to follow the original precedent; they

may distinguish the case on its material facts. This creates a second bindingprecedent. The original precedent remains binding in cases of the same materialfacts.

These two cases show how the distinguishing process operates. Balfour vBalfour (1919)and Merritt v Merritt (1971)both involved a wife making aclaim against her husband for breach of contract. However, inBalfourthere wasmerely a domestic agreement between husband and wife, while in Merritthusband and wife had made an agreement in writing after they separated. Thecourt distinguished the facts between the cases and created a new precedentbased onMerritt.Balfour, of course, remained the precedent for cases similar toitself.

Overruling occurs where a court in a later case states that the legal ruledecided in an earlier case is wrong. For example, the House of Lords canoverrule a decision of the Court of Appeal by declaring the Court of Appealreached the wrong legal rule. The House of Lords may also use its power underthe Practice Statement 1966 to overrule one of its own past decisions.

For example, inDavis v Johnson (1979)the Lords ruled that judges could notuse Hansard (the record of what is said in Parliament) to try and decide whatcertain words in an Act of Parliament meant. However, in Pepper v Hart(1993) the Lords overruled David v Johnson (1979) and created a newprecedent allowing judges to consult Hansard.



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Reversingoccurs where a higher court reverses the decision of a lower courton appeal in the same case. In other words, reversing is where the same case

has gone to appeal and the higher court reaches the opposite decision to that ofthe lower court.

For example, in Fitzpatrick v Sterling Housing Association Ltd (2000), theCourt of Appeal refused to allow a homosexual partner of the deceased tenantto take over the tenancy as he could not be considered part of his family asrequired under the Rent Act 1977. Fitzpatrick appealed to the House of Lordswho reversed the decision of the Court of Appeal, so giving same-sex partnersthe same right as different sex partners.

(It is important you makethedifferencebetween overrulingand reversingclear. Many candidates muddletheexplanations).

Distinguishing: avoiding a previous precedent because the facts in the presentcase are materially different. Balfour v Balfour (1919)not followed in Merritt

v Merritt (1971).

Overruling: avoiding a precedent by stating the legal ruling in an earlier case iswrong. Pepper v Hart (1993) overruled and replaced Davis v Johnson(1979)on the use of Hansard.

Reversing: a higher court overturns the decision of a lower court on appeal.This can only happen if the case is appealed to a higher court. InFitzpatrick vSterling Housing Association Ltd (2000), the House of Lords overturnedthe decision of the Court of Appeal.



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5. Outline and briefly explain the court structure.

European Court of Justice

It is necessary for there to be a settled court hierarchy as judges need to knowwhat judicial precedents they are bound to follow.

Since 1973, the European Court of Justice has been the highest courtaffecting our legal system. A decision made by the ECJ is binding on all courtsin the European Union, including those of the United Kingdom. The ECJ isprepared to overrule its own past decisions if it feels this is necessary.European courts are generally more flexible than courts in the UnitedKingdom.



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The House of Lordsis the senior national court and its decisions bind allother courts in the English legal system. Until 1966, the HL regarded itself as

bound by its own previous decisions, unless the decision was made per incuriam(through lack of care). However, Practice Statement 1966stated that theHL in future would be free to depart from its own previous decision where itappears right to do so. However, this freedom is used sparingly so as tomaintain certainty and consistency in decisions. Pepper v Hart (1993)overruledDavid v Johnson (1979).

The Court of Appeal(CA) is directly below the House of Lords in the courtstructure. It is divided into two divisions, theCivil Divisionand theCriminalDivision. As a general rule, the Court of Appeal is bound by its own previous

decisions with some limited exceptions to this rule. The Criminal Division ispermitted to be more flexible where the decision involves the liberty of thedefendant.

The High Courtcontains three separate appeal courts: The Queens Bench,Chancery, and Family. All three are bound by decision of the Court of

Appeal. The House of Lords and the European Court of Justice. TheDivisional Courts, with a few exceptions, are bound by their own decisions.

The Crown Court, the County Court and the Magistrates Court aredescribed as inferior courts. This is because they are bound to follow decisionsmade by all higher courts. In addition, it is unlikely that a decision made by aninferior court can create binding precedent. In theory, the Crown Court can setprecedent for the Magistrates Court on a point of law; however, since suchdecisions are hardly ever recorded they have little practical effect.



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6. Discuss the advantages and disadvantages of the system of precedent.

Advantages

The system of judicial precedent has several advantages, including certainty,consistency and fairness, precision and flexibility.

Precedent providescertaintybecause the courts must follow decisions made inprevious similar cases. Precedents are established by the ratio decidendi andexplained in the obiter dicta. This means people know what the law is and how itis likely to be applied in their case. For example, a lawyer can advise his clientabout the likely outcome of his case, based on the knowledge of precedent in

similar cases. It also allows people in business to make financial and otherarrangements secure they will be recognised and supported by the law. ThePractice Statement 1966reminds us how important certainty is in the law.

Precedent provides consistency and fairnessbecause defendants know theywill receive the same treatment no matter where their case is heard or who ishearing the case. As in sport, the rules of law will be applied equally to bothsides. Precedent also means that judges cannot make random or arbitrarydecisions because judges are bound to apply binding precedent in similar cases.

However, judges also have considerable flexibility in avoiding precedent bydistinguishing, overruling and reversing. For example, the House of Lords cannow use the Practice Statement 1966 to change the law when necessary; forexample, Pepper v Hart (1993) overruled and replaced Davis v Johnson(1979)on the use of Hansard.

Precedent provides precision in law-making. As new precedents areestablished, English case law becomes more and more precise. For example,the judge was able to distinguish between Balfour v Balfour (1919) and

Merritt v Merritt (1971), so that we new have precedents appropriate to casessimilar in the material facts to these cases.



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Disadvantages

The system of judicial precedent has several disadvantages, including rigidity,complexity and slowness of growth.

Although judges can avoid precedent by distinguishing, reversing, andoverruling, there is still a degree of rigidityor inflexibility in the system. Forexample, although Crown Courts hear very serious cases, they cannot createbinding precedent. This means too many cases go to the Court of Appeal thatcould be dealt with in the lower courts.

In addition, the Court of Appeal itself is generally bound by its own decisions,

so many cases that could be dealt with on appeal are passed up to the House ofLords. However, the Law Lords can only hear about 50 cases a year. Thismakes the system slowand cumbersome, and means that bad precedentsmay be in force far longer than necessary. Sometimes there is a very long waitfor a suitable case to be appealed ball the way to the House of Lords.

The system of precedent has become increasinglycomplex. Distinguishing isuseful in avoiding past decisions, but it has made the law very complex in someareas because the differences in the material facts may be so small to justify yetanother precedent. There are nearly half a million reported cases, so it is noteasy to find all the relevant law even with computerised data bases.

Another problem is in thejudgements themselves, which are often very longwith no clear distinction between the reason for the decision (ratio decidendi) andother things said by the judge (obiter dicta). This makes is difficult in some casesto extract the ratio decidendi. Indeed, in Dodds Case (1973), the judges in theCourt of Appeal said they were unable to find the ratio decidendiin a decision ofthe House of Lords.



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THE DOCTRINE OF JUDICIAL PRECEDENT - TEST YOURSELF

How Precedent operates within the English system of Case Law

1. On what Latin maxim is judicial precedent based?

2. What does this maxim mean?3. What do you understand by binding precedent?

4. What does the system of precedent provide, and how?5. Why must the legal reasons for past decisions be made clear?

6. In one word, what do we call the judges speech at the end of case?7. What does the ratio decidendiexplain?

8. What does the ratio decidendicreate?

9. What is the meaning of obiter dicta?

10 What might the obiter dictacontain?12 What difficulty sometimes arises between the ratio decidendiand the obiter dicta?

13 Explain the meaning of original precedent.

14 Where will the judge look for guidance in creating an original precedent?

What kind of reasoning is this?

15 In relation to precedent, what is generally accepted nowadays?

How precedent works within the hierarchy of courts

1. Why can the doctrine of precedent be described as rigid?

2. Since 1973, what has been the highest court affecting English law?3. Why are decisions made by the ECJ so powerful?4. What is the most seniornational court in the United Kingdom?

5. Explain the significance of London Street Tramways v London County Council(1898).

6. Why do you think the Lords reached this decision in 1898?7. What does the Practice Statement 1966 empower the Lords to do?

8. When is this power used?9. Why is this power used sparingly?

10 Name the two Divisions of the Court of Appeal.11 Which Division is allowed more flexibility, and why?

12 Name the three Divisional Courts below the Court of Appeal.13 These three Divisional Courts are bound by the decisions of the courts above them,

but are they also bound by their own past decisions?14 To what extent is the High Court bound by precedent?

15 Explain how precedent affects the so-called inferior courts.



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The role of law reporting in the system of precedent.

1. Why is it essential that ratio decidendiare reported accurately?

2. Explain the importance of the Incorporated Council of Law 1865.3. Name two organisations who regularly report new precedents.4. Where are cases heard in High Court, Court of Appeal and the Law Lords

now reported?5. Where can the general public read abbreviated reports of important cases?

Flexibility in developing the law (distinguishing, overruling, reversing)

Avoiding Precedent

distinguishing

overruling

reversing

1. Why must judges be able to avoid precedent?

2. What is the main device used by judges in all courts

for avoiding a binding precedent?

3. On what grounds does a judge distinguish between two cases?

4. What do you understand by the material facts of a case?

5. When a judge distinguishes between two cases because of their material facts,

how many precedents become operative?6. Explain in some detail how Balfour v Balfour (1919) and Merritt v Merritt (1971)

are very useful in demonstrating how two cases may be distinguished

from each other.

7. In avoiding precedent, explain how overruling occurs.

8. Give an example of how the House of Lords can overrule a decision

of the Court of Appeal.9. How have the House of Lords been empowered to overrule their own past decisions?10 Explain in some detail how the Lords used Pepper v Hart (1993)

to overrule their earlier decision in Davis v Johnson (1979).

11 In avoiding precedent, explain how reversing occurs.12 In other words, Complete the sentence.

13 Explain in some detail how Fitzpatrick v Sterling Housing Association Ltd (2000)is very useful in demonstrating how reversing occurs.



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THE ADVANTAGES & DISADVANTAGES

OF JUDICIAL PRECEDENT

Advantages of Judicial Precedent


The system of judicial precedent has several advantages, including c..

Documents

unit 2- LAW - Section A - Law Making – Specifications AQA LAW - Unit 1 - Section B – The English Legal System