Beruflich Dokumente
Kultur Dokumente
Court of Appeal
Tribunals
(County Court)
Ever one of the Court rooms which is apart of the Court System of England
and Wales are based upon and use this structure.
The House of Lords, soon to be The Supreme Court is the highest level of the
system, the Court of Appeal is where all appealed cases from lower courts will
take place, and then there is a divide in the flow chart representing the Civil
and Criminal Divisions and their courts.
Each one of these sections should be kept separate so each branch doesn’t
have too much power in the making and decisions of law.
If the Front Benches (Executives) have too much power, resulting in them
being able to tell the Legislature what laws to make and write then it will
undermine the Legislatures.
If the Front Benches (Executives) have too much power resulting in them
being able to tell the Judiciary how to put the laws into affect then the justice
system will be a democracy as there will be no giving or taking on sentencing
as the Executive will tell the Judiciary what decisions to make.
Influences on Parliament
Different political parties have their own ideas, ‘Party Manifestos’. If they are elected
as the leaders of the country then they will enforce their ideas that will be stated in
the manifesto.
Possible party ideas may be as follows:
- Taxes
- School leaving age
- NHS
- Immigration
Pressure Groups
A pressure group is a group of people who will fight for something they feel
strongly about and want a change in.
European Union – This group may want changes in, Employment, Taxation,
Discrimination (Statute Law UK) including Sex, Age, Racial and Disability
OAP’s – This group may want Parliament to give them Higher State Pension,
more Free Travel (travel times for their bus pass) and more Fuel Allowance.
A good quotation that shows what trouble the media can do is,
‘The Press/Media have the power, without the responsibility’.
This shows that the media can make the Public so irritated and angry at the
current Government by reporting on subjects such as;
- Immigrants
- Taxes
- Dangerous Dogs
- Muggings
- Hand Guns
- Knife Crime
- Gang Crime
The Government will have to act quickly to answer the public needs, but when
the Government does act, it isn’t always the best way. An example of this is
the Dangerous Dogs Act.
An issue that has caused many problems is Fox Hunting. The media
continuously reported on Fox Hunting to be banned. Along with the media
many members of the public campaigned for fox hunting to be illegal. The law
was made fairly quickly, but as a result of it being a fast change in law there
are floors in the Law. The chasing and killing of the fox is illegal, so now fox
hunters chase the fox but no longer kill it.
Consolidation
This doesn’t change any laws but brings certain laws together to make into one
Statute, this also means they’re easier to find.
The Law Commission
Who are the Law Commissioners
The Commission is made up of 5 full-time Commissioners, these are;
- The Chairman (High Court Judge)
- 4 Commissioners (People of the Court [Barristers and Solicitors] and
teachers of the Law)
- These people are appointed by The Ministry of Justice
- The Commissioners are supported by the Chief Executive oh the
Commission and another 20 members of staff who do background
research (Government Civil Servants) and the Parliamentary Council
- The Lord Chancellor decides on what the Civil Research Team will
research and on what the criteria is. He will take views from Judges,
Lawyers, Government Departments and the Public to decide what is
best and what needs to be done.
1. A Bill is drafted
2. First reading in The House of Commons
3. Second reading in The House of Commons
4. Committee Stage
5. Report Stage
6. Third reading in The House of Commons
7. Same procedures in The House of Lords
8. Royal Assent
Parliamentary Councel
This is made up from 2 Lawyers who physically write the law – along with
Parliament.
Judicial Independence
Judicial Independence is defined as where the Judicial Brach are separated
from the executive and legislative departments. This means that judges can
reach their own decisions, taking into the facts of the case and the law itself.
Judicial Review
This is the process of taking a case to a High Court to see if it was the right
decision – Legally. An example could be an application to the local council to
build something somewhere and it was rejected. The person hoping to build
the object would take the local council to a High Court to appeal the decision.
Judges’ Salaries
Judges’ salaries are held in the Treasury – Bank of England, so the
parliament cannot pressure the Judges’ into making a decision and using their
salaries into making a decision.
Separation of Powers
The separation of Powers keeps the Executive, Legislative and Judicial
branches separate from each other and ensuring they don’t become
dependent upon each other.
Reasons
The reasons behind the Separation of Powers is so one branch does not
become too powerful, resulting in one becoming a dictatorship.
Pre-Legislative Processes
Green Paper
It doesn’t particularly matter if Government loose the vote for this new Act as it
is in its premature stage.
- Green Cover
- An early draft
- An early discussion document
White Paper
If the Government lost the vote for this new Act to be taken to the next stage,
it would look bad on Government
- A formal draft of what the Act will look like
- A formal discussion stage
- Draft of the law to be
Legislative Programme
- Finalising the idea of the Bill to be passed through Parliament
Most laws are not made in Parliament, but in fact by Government Departments
and Civil Servants.
Report Stage
Amendments voted for/not for on the suggested amendments
3rd Reading
- Minor amendments
(Then …)
- Sent to the House of Commons/House of Lords ‘Ping-Pong Stage’
- House of Commons make the change and then sends back to the
House of Lords (Ping-Pong Stage, taking place)
- Agreement made
The Bill and Clauses become an Act of Parliament and different sections – The
different sections come into affect when Parliament chooses too.
Delegated Legislation
Primary Legislation – An act of Parliament, E.g. Theft Act
Secondary Legislation – Delegated legislation/Powers given by Government
- By-Laws – Laws made by the county/district council, these could include
No-Drinking Zones, No-Parking Zones etc.
Parent Acts
Other people bar Senior Ministers can make Delegate Legislation. These
people can include the Prime Minister and the Queen, however, on the advice
of the Privy Council. Others may include Councils, NHS, National Trust, BMA,
Air-Ports and Train Companies. In more detail;
- Air-Ports/National Trust – Where members of the Public can go
- Rail Operators – Throwing objects over a bridge
- NHS – Car parking fees
- BMA (British Medical Association) - What doctors restrictions are
- Technical Expertise
The relevant bodies in Parliament may not have necessary knowledge of the
certain areas they are dealing with and making new acts for. Delegated
Legislation allows people with a brilliant knowledge of a certain department to
help make the new acts. The reason why they have such a good knowledge is
because they are working in that specific department.
Affirmative: There are around 200 Affirmative Instruments made a year. The
most important delegated legislations are subject to Affirmative. Both houses
must approve the Draft S.I in a vote. (To be approved by parliament).
If any Delegated Legislation is deemed as ultra vires then it becomes void and
is not effective. An example of this was in R v Home Secretary ex parte Fire
Brigades Union (1955). This is where changes from the Home Sectary to the
Criminal Injuries Compensations Scheme had gone beyond the powers which
were given to him in the Criminal Justice Act 1988. This means a barrister
representing the Crown with a lawyer representing the Home Secretary on
matters which concerns Fire Brigades.
‘ex parte’ – A case about someone who isn’t actually giving evidence in court,
but are being represented.
In the Aylesbury Mushroom’s case the Ministry of Labour failed to consult the
Mushroom’s Growers Association who represents around 85% of mushroom
growers. This resulted in part of his Training Board was invalid as he did not
follow the procedure correctly.
Allows Consultation
Ministers can have a consultation before regulations are drawn up – this is
important for technical matters; to ensure it is workable
Disadvantages
Undemocratic
Delegated Legislation is made now further from the HOC. It allows non-
elected bodies make the law. Parliament has little control over this.
Large Volume
The large volume of Delegated Legislation makes it difficult to discover the
present law. This is because of the lack of publicity.
Sub-Delegation
This means that the law making authority is handed down to another level.
This causes criticism such as ‘our law is made my civil servants and merle
stamped by a minister’.
Statutory Instruments
Statutory Instruments are rules and regulations made by Government
Ministers. Different Government departments are given the authority to create
these Statutory Instruments for their departments. Statutory Instruments are
largely used for law making. With around 3000 bought into effect each year.
An example of a statutory Instrument is the Police and Criminal Evidence Act
1984. This gave powers to the Minister of the Home Office to produce codes
of practice to the police to use powers such as police arrest.
Literal Rule
RELATED CASES:
Whiteley v Chappell (1868) or LNER v Berriman (1946)
Description of the Literal Rule
This rule is where the Judge will simply read the statue and judge the case by
what Parliament wrote on the statue. However sometimes the outcome of this
can sometimes become unjustified, as was seen in Whiteley v Chappell and
LNER v Berriman (1946).
Golden Rule
RELATED CASES:
R v Allen (1872) or Re Sigsworth (1935)
Description of the Golden Rule
This rule is a follow on from the Literal Rule. The judge will use the Literal
Rule, but of the outcome of the ruling is absurd then the judge will follow the
Golden Rule. Cases that show and use this rule are R v Allen and Re
Sigsworth:
R v Allen (1872)
This case is a case involving bigamy. The Offences Against the Person Act
1861 under section 57 made it an offence to ‘’marry’ whiles ones original
spouse was still alive’ (with no divorce). However the word ‘marry’ can mean
to become legally married to someone or it can mean the person ‘goes
through a ceremony of marriage’. The courts then had to decide to use the
second meaning also as the outcome if they didn’t would result in no one
being able to commit bigamy as they could still go through a ceremony of
marriage but not legally marry them if this broad term was not included.
Re Sigsworth (1935)
This case shows that Sigsworth murdered his mother to inherit her estate and
possessions. This is an absurd result as the person has committed murder of
his mother to receive her possessions. The judge ruled that Sigsworth would
be imprisoned for his crime. He would not receive the estate and possessions
of his mother as no one should be rewarded for their crimes.
Mischief Rule
RELATED CASES:
Smith v Hughes (1960)
Purposive Approach
RELATED CASES:
R v Registrar General ex parte Smith (1990)
Description
This approach goes beyond the Mischief Rule, as it court does not look to see
what the gaps in the law are. Judges will simply decide what they think
Parliament want to achieve.
The Court of Appeal took into account that even though the words of the Act
is clearly written, Parliament could not have wanted to provoke serious crime
so it was rules by using the Purposive approach that the Registrar-General
did not have supply this information.
External Aids
- Hansard
- Parliamentary Documents (Green and White Papers)
- Law Commissioners Reports
- Dictionaries
- Related Statutes - Pari Material
- Academic Research
- Human Rights Act
Hansard
Hansard is the day to day minutes of the House of Commons and the House
of Lords. It is published daily.
Judges can use Hansard if the Statute they are using is unclear, ambiguous
or obscure. Hansard will help clarify the meaning of the Statute. They can only
use the words of a minister or MP who are in favour of the Bill; they can note
use someone who is opposing the Bill.
At one point judges were unclear of when they could use Hansard, and did so
unofficially. However now it has been cleared and judges can use Hansard
officially as long as they follow the requirements above. (Someone speaking
in favour of the Bill)
No one can tell Parliament what to do and what laws to make. However if a
court sees that a decision is unjust then the court can challenge the decision,
based on the Act but not Parliament itself. As Parliament is at the highest
level their Acts can not be questioned but their decisions can be.