Paper 2 section A- law making

A consultation paper on a new law

A paper which sets out the key proposals for a new law

Draft of the proposed law

Made up on 650 elected MPSs who represent the public and debate and vote on new laws

Second chamber of the UK Parliament who share task of making and shaping new laws

The proposed law is formally signed off by the monarch

• party manifestos, persuade people to vote for it in the general election

• government announces in the queens speech what law it intends to introduce during that session

• Example: human rights act 1998, fulfilled a labour manifesto commitment to incorporate the European convention of Human rights into UK law

• strong public opinion about a change to the law, government might consider it

• expressed via media on tv, newspapers and the internet

• media can add to the weight of the public opinion

• media might offer free press, increasing public awareness

• Example: Voyeurism act 2019, made up skirting a specific offence as a result of high profile case in the media which caused public outrage

• an organisation formed to bring their issues to the attention of the public and government

• lobbying (persuading) individual MPs to support their cause

• direct action, e.g. strikes or demonstrations

• petitions

• media and advertising

• Example: a campaign by the league against cruel sports led to a ban on fox hunting in the Hunting act 2004

• investigate issues of serious public concern, scrutinising past decisions and events

• commissioned by the government and investigated by an independent panel

• Example: the Cullen inquiry investigating the Dunblane school shooting resulted in the Firearms (amendment) act 1997, banning handguns in the uk

• Emergency situations may also influence parliament to act by passing legislation

• role is to keep all english law under review and recommend reform where it is needed

• it is an independent body

• Law commission act 1965

• ensures that the law is fair, modern, simple and cost effective

• repeal of unnecessary or outdated laws

• drawing together law that is contained in several acts of parliament into one act

• enables the law to be more coherent and accessible

• Example: the sentencing act 2020, drew together 65 different acts of parliament into one single ‘sentencing code’

• removing outdated or obsolete acts of parliament

• only parliament can repeal an Act, law commission can advise about which acts it thinks should be replaced

• example: statue of Marlborough 1267, passed during king henry VIII

• brings together all the law on one topic (statue and case law) into one complete code of law

• makes law simpler and easier

• example: 1985, law commission published a draft criminal code which included all the main general principles of criminal law

Parliament dosen’t always have the time or expertise to deal with every new law that is required. therefore, it delegates some of its law making powers to secondary bodies, allowing them to make new laws on Parliaments behalf

this act gives the right to create one of the following types of legislation: order in council, statutory instrument, by-law

(also known as the parent Act)

• drafted by the governments departments and approved by the Queen and privy council

• privy council made up of prime minister and other leading members of the government

• transfers responsibilities between government departments

• brings acts into force

• dealing with foreign affairs

• making law in times of national emergency

• can also be sued to amend or update existing law

• Example: Energy Act 1976

• Ministers and government departments are given authority to make regulations for areas under their particular responsibility

• can be very short, covering one point

• other statutory instruments can be very long with detailed regulations which were too complex to include in an Act of parliament

• EXAMPLE: police and criminal evidence Act 1984

• made by local authorities to cover matters within their own area.

• Two types: local by-laws and technical by-laws

• By-laws must be confirmed (approved by the relevant secretary of state) before they can come into force

• will involve traffic control, such as parking restrictions or when dogs can be exercised on a beach

• Other by-laws for matters such as banning the drinking of alcohol in public places

• Most local by-laws created under the Local Government Act 1982

• made by public corporations and certain companies for matters with their jurisdictions which involve the public

• Example: Transport act 2000

1. detailed law

2. expert knowledge

3. local knowledge

4. consultation

5. speed

1. saves parliamentary time

2. access to technical expertise

3. allows consultation

4. allows quick law making

5. easy to amend

1. Undemocratic

2. Sub-delegation

3. Large volume and lack publicity

4. Difficult wording

5. Length and expense of judicial review

Sets out the limits of any delegated legislation, such as who can make, amend or repeal the law. The Act can also set out whether the government department must consult other people before making the regulations

The statutory instrument will not become law unless specifically approved by Parliament (by a vote) within a specific time, usually 28-40 days

Statutory instrument will become law unless rejected by parliament within 40 days

an important check on he use of delegated legislation by ministers and public bodies

Takes place in a special administrative court with in the Queen’s Bench divisional court

the secondary body has gone beyond the powers granted to it

Example: Fire brigades union case (1995)

The secondary body failed to follow the correct procedure in the enabling Act.

Example: Aylesbury Mushrooms case (1972)

Delegated legislation is so unresoable that no reasonable authority could ever come to it

Example: Wednesbury case (1948)

the way in which judges interpret the language used in Acts of Parliament 

1. literal rule

2. golden rule

3. mischief rule

4. purposive approach

Involves giving words their plan, ordinary and grammatical and literal meaning, as it would appear in a dictionary. The rule is applied even if it results in an absurd or ridiculous outcome 

Case example: LNER v Berriman (1946)

Golden rule

The golden rule is 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.

Can be used in two ways: narrow use and wide use

Where a word has two possible meanings but one would produce an unwanted or absurd outcome, the court chooses the sensible meaning.

Case example: R v Allen (1872)

Where there is only one literal meaning of a word which would lead to an absurd or repugnant outcome, the golden rule can be used to alter the meaning of the word(s) in order to avoid the unwanted outcome and give effect to Parliament’s intentions.

Case example: Re Sigsworth (1935)

Originating from Heydon’s Case (1584), this rule looks back to the gap in the previous law and interprets the Act so as to cover the gap

(i) What was the common law before making the Act?

(ii) What was the mischief and defect for which the common law did not provide?

(iii) What remedy hath Parliament resolved and appointed to cure the disease of the Commonwealth?

(iv) The office of the judge is to make such construction as shall suppress the mischief and advance the remedy.

The purposive approach seeks to give effect to Parliament’s intentions when passing a new law. Language should be interpreted in a way which achieves those aims and reflects the “spirit” of the statute (rather than limited to the literal meaning of words).

• Respects parliamentary sovereignty. The main advantage of the literal rule is that judges follow the words used by Parliament, which is democratically elected.

• Respects Separation of Powers. The literal rule recognises that Parliament is our law-making body and it is right that judges should apply the law exactly as it is written. Using the literal rule to interpret Acts of Parliament prevents unelected judges from making law. 

• Legal Certainty and Predictability. Using the literal rule should make the law more certain, as the law will be interpreted exactly as it is written. This makes it easier for lawyers to advise clients confidently and can therefore reduce litigation. Alternative approaches to the literal rule might allow for unpredictable results which would undermine certainty in the law.

•  Precision. The literal rule encourages accuracy by Parliament. Legislation which is clear, precise and plainly written can be understood and interpreted by anyone who can read English

• Absurd results. Following words exactly can lead to blatantly harsh (Berriman) or unjust results (Whiteley v Chappell).

• Undermines Parliament’s intention – e.g. the decisions in Fisher v Bell and Cheeseman can hardly be said to have achieved what Parliament wanted. Judges are now required to interpret statutes in a way which is consistent with human rights which favours a more purposive approach.

•  Unrealistic. It expects an impossible level of perfection from Parliamentary draftsmen. Parliament cannot be expected to foresee every situation that might arise.

• Ignores the limitations of language because the rule over- emphasises the literal meaning of a word without giving due weight to its context. Michael Zander said that it was “mechanical and divorced from the realities of the use of language”

• Escape route. It avoids absurdities that the literal rule can create. For example, the narrow use allows the judge to choose the most sensible meaning where there is more than one meaning to the words in the Act (e.g. R v Allen).

•  Upholds Parliament’s will. It assumes Parliament never intends to pass absurd law. For example, the wide approach in Re Sigsworth prevents injustice and puts into practice what Parliament really intended.

• Respects Parliamentary Supremacy. The golden rule is only used in response to a failing of the literal rule. The departure from the literal meaning is therefore limited which avoids excessive judicial law-making. It does not give judges complete freedom and respects the words Parliament has chosen.

• Saves Parliament having to pass amending legislation. It is better that minor changes are made to Acts rather than forcing Parliament to spend valuable time passing an amending Act, e.g. Adler v George (“vicinity” included being inside a prohibited place).

• The definition of “absurd” is subjective – it may mean different things to different judges. It depends whether that judge thinks the result is absurd so the outcome of a case becomes too dependent on the views of the judge deciding it.

• Gives judges too much discretion / power. This leads to accusations of judicial law-making because it means the case outcome is determined by a judge rather than the words of Parliament. For instance, in Sigsworth the words of the statute (“next of kin”) were clear and unambiguous, but the judge chose to ignore them.

• Unpredictable. There is no guidance on how or when the golden rule will be used, making it hard for lawyers to advise clients. It has been described as “an unpredictable safety valve”.

• Limited use. Restricting its use to situations that are absurd or repugnant means that the rule is only used on rare occasions – it is a “feeble parachute”.

• Promotes the purpose of the law by allowing judges to put into effect the remedy Parliament chose. This also saves Parliament time in not having to legislate afresh, e.g. Smith v Hughes. Leads to reforming and improving law as each case is interpreted to try and prevent the specific mischief.

• Avoids absurd and unjust outcomes of literal approaches. Blackstone justified his support for the mischief rule by stating that “the fairest and most rational method to interpret the will of the legislator is by exploring his intention at the time the law was made”.

• Flexibility. It allows the law to adapt to changing social and technological conditions, e.g. Royal College of Nursing v DHSS.

• The emphasis is on making sure that the gap (mischief) is filled - This is more respectful of parliamentary sovereignty than the purposive approach because the focus of the judge is looking back at the defect in the law and the remedy intended by the Act.

• Judicial law-making – The judge is effectively ignoring the words of the Act e.g. Royal College of Nursing v DHSS. This undermines the doctrines of parliamentary sovereignty and the separation of powers.

• Uncertainty – It is impossible to know when judges will use this rule.mJudges may reach different conclusions and bring their own views and prejudices to bear. This makes it difficult for lawyers to advise clients on the law and the result of their case. E.g. Smith v Hughes.

• Difficult for the judge to identify Parliament’s intention – The “mischief” aimed at can be difficult to establish and the judge may be hampered by the availability of extrinsic aids, e.g. Hansard.

• 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. It cannot be used for a more general consideration of the purpose of the law.

• The rule is redundant – The purposive approach is more appropriate to modern Acts of Parliament.

• Leads to justice in individual cases. It is a broad approach which allows the law to cover more situations than applying the words literally. E.g Jones v Tower Boot gives effect to Parliament’s true intentions (eliminating racism in the workplace).

• Flexibility. It allows the law to adapt to changing social and technological conditions, e.g. Quintavelle (cloning was not possible when Parliament passed the Act).

• Allows discretion. It avoids harsh and destructive analysis of language and the absurdity and injustice of the more literal approaches. Many of the cases leading to unfair outcomes under the literal rule could have been avoided if a purposive approach had been taken.

• More appropriate to modern Acts of Parliament. The purposive approach goes further than the mischief rule in that judges can give a more general consideration to the purpose of the law and are not required to identify a “mischief” which the Act was intended to remedy.

• Judicial law-making. Trying to find the purpose of the Act allows a judge too much power. Judges may be ignoring the clear words of Parliament which goes against the doctrines of Parliamentary

• Sovereignty and Separation of Powers. E.g ex parte Smith (denying applicant right to his birth certificate).

• Difficult for the judge to identify Parliament’s intention. Approach can only be used if the judge can find Parliament’s intention (does it even exist?). Trying to find the intention of parliament relies on extrinsic aids, in particular Hansard, and that can cause delays and adds to the cases costs.

• Uncertainty. It is impossible to know when judges will use this approach which makes it difficult to advise clients on the outcome of their case.

In addition to the rules of statutory interpretation, there are also a number of “aids” (sources of help) judges can use to help them interpret statutes.

Intrinsic (or internal) aids are found “inside the Act”.

These may give some clues as to the meaning of words used in the Act

Older Acts have a detailed preamble outlining what the statute covered and its purpose. Newer Acts may have an objectives or purposes section at the beginning of the Act

Sometimes known as a definition section, this is like a glossary of key terms

 These usually come at the end of an Act and contain more detailed clarification of rules

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. They are intended to act as a useful reference to aid interpretation. However, where contradictions exist between the actual wording of the statute and the explanatory note, the wording of the Act should be adhered to.

 This can and should be taken into account by judges when interpreting statutes.

Extrinsic (or external) aids are “outside the Act”

Used to discover the plain, ordinary meaning of a word at the time the Act was passed. E.g. DPP v Cheeseman

This is the report on debates in Parliament during the progress of a Bill. Since Pepper v Hart the Courts have been allowed to refer to Hansard in order to discover Parliament’s intention.The statements of the Minister must be clear.

which led to the passing of the Act, e.g. the Coroners and Justice Act 2009.

Case law appropriate to the area of law.

Judges must, as far as possible, interpret Acts of Parliament so they are consistent with human rights.

E.g. in Dunlop v Selfridge, the Court adopted the definition of “consideration” in contract law given by the academic Pollock.

gives some statutory guidance, e.g. “he” will always be “she” and singular will always include plural.

refers to the source of law where past decisions of judges create law for future judges to follow. Also known as “common law” or “case law”

laws created by parliament- supreme law making body. Also known as acts of parliament

laws created by judges when they decide a case in court, known as common law or precedent. Can be changed by a statute

• The doctrine of precedent means that if a judge finds that there has been a previous decision by a higher court in a similar case, he or she must follow it. 

• Past cases can be found in special volumes called Law Reports.

• This idea of treating similar cases in the same way promotes the idea of fairness and provides legal certainty.

• At the end of a case, a judge will write a “judgment” to be published in a law report. He or she will explain their reasoning and why they feel bound to follow one case rather than another.

• This means “to stand by what has previously been decided”.

• Stare decisis is the fundamental principle of precedent, and simply means that a decision in an earlier case will stand as guidance for all future cases.

• It operates through the court hierarchy and requires accurate law reporting to work effectively.

CASE EXAMPLE: Donoguhe v Stevenson

• The legal principle upon which the decision of the court is based is called the ratio decidendi, meaning “the reason for deciding”.

• Ratio decidendi is the most important part of the judgment because it is the binding part of the decision. It must be followed by other judges in future cases.

CASE EXAMPLE: R v Howe 

• Obiter dicta comprises the rest of the judgment apart from the ratio decidendi. It translates as “other things said” by the judge.

• Judges in future cases do not have to follow the obiter dicta (i.e. it is not binding), but it can give useful guidance, e.g. helpful examples or speculation about how the law might develop in the future.

CASE EXAMPLE: R v Gotts 

• A binding precedent must be followed by future courts, depending on their position in the court hierarchy (i.e. higher courts bind lower courts).

• Usually a binding precedent comes from a higher court, but a precedent can be binding due to the principle of being bound by a court’s own previous decision (where no exception applies).

• The binding precedent is usually found in the ratio decidendi of the judgment. However, the obiter dicta of one case can develop into the ratio of another case. Sometimes a case can have more than one binding precedent.

CASE EXAMPLE: R V HOWE 

• This is a precedent that does not have to be followed by later cases, but which the judge may choose to follow.

Persuasive precedents may come from a variety of sources, for example:

Courts lower in the hierarchy 

Privy council decisions 

Obiter dicta 

Dissenting judgments 

Decisions of courts in other countries 

• Comes about when the point of law in a case has never been decided before. There are no past cases upon which the judge can base a decision, so the normal doctrine of judicial precedent cannot apply as there is no precedent to follow.

• Once declared, the precedent becomes both binding and original.

• CASE EXAMPLE: Gillick v West Norfolk Health Authority (1986)

• Original precedent is most likely to arise with the development of new technologies, meaning new situations come before the courts.

• Judges may employ the method of “reasoning by analogy” in order to deal with a novel situation and produce an original precedent.

• The concept of original precedent raises an issue about whether judges create law or are merely declaring it.

• Overruling

• Reversing

• Distinguishing

 when a court in a later case states that the legal rule decided in an earlier case is wrong and replaces it with a new precedent 

• Overruling operates through the court hierarchy- usually where a higher court overrules a decision made in an earlier case by a lower court

• In certain circumstances, the supreme court and the court of appeals may overrule its own previous decisions 

• CASE EXAMPLE: R v G (2003)

where a court high up in the hierarchy overturns the decision of a lower court on appeal in the same case i.e. the same case moves higher up the court structure 

• CASE EXAMPLE: R v Kingston (1984)

where the facts if the case being decided are so different from an earlier precedent that the jude is not bound to follow the earlier case 

• The material facts of the case being decided must be sufficiently different for the judge to be able to draw a distinction from the earlier decision. Judges decision creates a new precedent 

• It is possible for any court to distinguish 

• The effect of distinguishing is that both cases remain good law- this is because they are different enough that each could still be relevant in future cases 

• CASE EXAMPLE: Merritt v Merritt (1971)

• The supreme court was created by the constitutional reform act 2005 to replace the judicial functions of the house of lords 

• The supreme court will generally follow its own previous decisions in accordance with stare decisis 

• The supreme court has the power to overrule its own previous decisions “when it appears right to do so” using powers now contained in practice directions 3 & 4 

• Use of the practice direction: the supreme court will only rarely use its powers under the practice direction to avoid uncertainty, especially in criminal and contract law 

• CASE EXAMPLES: Herrington v British railways board (1972) and R v Jogee (2016)

• The court of appeal must follow decisions of the supreme court

• Decisions of one division of the court of appeal will not bind the other division

• The court of appeal is generally bound by its own past decisions, apart from certain limited expectations 

• The court of appeal may also be able to avoid previous precedent where it is necessary to give effect to human rights 

Expectations set out in Young v Bristol aeroplane (1944):

• Where a previous decision of the CA has been overruled by the SC, they must follow the SC- this is based on the rules of court hierarchy

• In the event there are two conflicting CA decision, the CA can choose between them

• If the decision is made per incuriam (through lack of due regard to the law or the facts, in error), CA can ignore bad law and create new precedent 

• Certainty

• Fairness and consistency

• Flexibility

• Precision

• Time-saving

• Expertise of judges

• Rigidity

• Complexity

• Illogical distinctions

• Slowness of growth

• Judicial law making