Law Making - Judicial Precedent.
Module 1 - Law Making
Judicial Precedent
There are 2 sources of law: -
. Common Law - Common assault and battery, Murder
2. Statute Law - An act of parliament OAPA 1861 s47, s20, s18
Theft act 1968 s9 (1) (a) Burglary,
"A person is guilty of burglary is he enters any building or part of a building as a trespasser with the intention to commit GBH, Rape, Steal, or Criminal damage"
Collins 1972 - Substantial and Effective
Brown 1985 - Effective
Ryan 1996 - Entry
Compared with other legal systems the English legal system relies heavily on judicial precedent. A system of judicial precedent requires 2 basic things: -
. A structure of hierarchy of the courts
2. A system of law reporting
All courts have to follow decisions made in the HOL
All courts except HOL have to follow decisions made in the COA.
High court rules bind over lower courts
These 3 courts (superior) make binding precedent. This stems from the 1870's.
The basic requirements of judicial precedent where met by the English legal system in the 1870's. Cases prior to the 1870's can still create precedent but the system of reporting was some what different to the modern system (M'Naughton, 1843)
Binding Judicial Precedent
This is a rule of law which must be followed by all inferior courts. E.g. the precedent created in M'Naughton by the HOL sets out the rules of insanity which must be followed by all courts in the system. Only the HOL, COA, and High Court can create binding precedent.
The binding judicial precedent stems from what is known as 'RATIO DECIDENDI' of the case. This is the reasons put forward by the judges on why they have reached this decision. The specific words of the decision form the rules which the inferior judge's must follow. The judge summarises up the reasons for the decision. This can run from anything from a few to dozens and dozens of pages. Everything said specifically about the case is the Ratio Decidendi. Inevitably the judge may discuss other possible situations. E.g. what would have happened in the case of Collins if he had entered the building through the back door? These situations which do not directly relate to the case are known as the 'OBITER DICTA' which means 'things said by the way' unfortunately law reports do not identify which sections are ratio and which arte obiter of the case. The ratio and the obiter are decided later by fellow judges, Barristers, Solicitors, legal academics, and students of law.
Persuasive Judicial Precedent
Where no binding precedent exists but a judge needs to reach a decision. E.g. a new piece of legislation being tested for the first time. The judge may use a variety of sources to help persuade him what is the right decision.
. Obiter Dicta - An appeal court judge in his obiter may have suggested how situations seminal to the one to the court might be dealt with if they were to arise.
2. Work of Leading Legal Academics - In all areas of law certain authors are leaders in their filed. They might have discussed the possibility of certain events occurring and then made a suggestion on how the problem might be dealt with.
E.g. Smith & Hogan on Criminal Law
3. Other Legal Systems - If a similar legal problem has occurred in another legal system the English courts can use the success or failure to formulate law in this country. Persuasive legal systems particularly include Scotland, the EC, USA, and the Commonwealth.
4. The Decisions of other Judges - The COA for example in reaching a decision look at the detailed transcripts from the inferior courts. If for example a crown court judge has given a very good ruling, the appeal court judges will use this ruling to formulate their own ideas. Appeal court judges don't necessarily agree. A judge who disagrees with the majority is described as dissenting. Such judges are allowed to state why they disagree with the decision. This may be useful later as persuasion for judges in lower courts.
5. The Privy Council - This is used by some commonwealth countries as their final court of appeal. The most senior English judges hear these cases. If these judges hear these cases in the HOL their decisions would be binding, when they sit in the Privy Council their decisions are highly persuasive.
Case Law examples of persuasion
* Legal Academics - Smith & Hogan
R v Cunningham 1957 - Subjective (see the risk and take it)
R v Caldwell 1982 - Objective (Subjective + Failed to see a risk)
A man wearing glasses was shot in the eye.
Eye - OAPA 1861 - Intention
Subjective Recklessness
Glasses - CD Act 1971 - Intention
Subjective Recklessness
Objective Recklessness
Law protects property than your person!!
* Other Legal Systems/Inferior courts
R v R 1992 - marital rape - Civil and dated back 200 years. Criminal court misinterpreted it as anywhere, anytime, and anyway. (Because consent was given at marriage vows)
Case went forward due to the shift in the Scottish legal system allowing marital rape to be an offence.
C (a minor) v D.P.P 1995 - C vandalises motorbikes. Should have had an hearing of Doli Incapax (13 year old) Didn't because he had done this lots of times before.
Appealed to COA but failed
Appealed to HOL who said that he had to go to the procedure
In 1996 the presumption of Doli Incapax was abolished.
* Decisions of dissenting judges
R v Brown 1993 - Sadomasochistic homosexuals who recorded their 'play' on video tape. The tape got into the polices hands and they were all charged with s18 GBH (possibly life imprisonment)
Appealed to COA but unsuccessful
Appealed to HOL and failed on a 3 to 2 majority
The 2 judges that disagreed with the decision said that there should be some things that the law should not deal with when conducted in the privacy of your own home.
Went to ECHR and failed again.
Overturning judicial precedent
A decision made by the high court can always be overturned by the COA. The COA can always be overturned by the HOL. Prior to 1966 the HOL could not overturn its own decisions, in effect only a new act of parliament could overturn a bad decision made in the HOL. In 1966 the Lord Chancellors Practice Statement changed this situation. The HOL can now overturn its own decisions. Between 1966 and 1980 it reconsidered 29 of its previous decisions and changed only 8. This has been the general pattern. The HOL seldom overturns its own decisions.
Anderton v Ryan 1985 - 1981 Criminal Attempts Act says 'You can attempt the impossible'
R is questioned about a video recorder. She admits it was stolen but later the police are unable to find proof of it being stolen so R changes her statement.
HOL said not guilty because it wasn't stolen goods.
This was an incorrect decision.
R v Shivpuri 1987 - Caught for having 'drugs' in his bag. It was really vegetable powder (unknown to S). Goes to HOL and HOL says that the decision in Anderton v Ryan was incorrect and S was guilty.
Court Of Appeal
The decision of the civil part of the COA is not binding to the criminal part and vice versa. E.g. Trespass in Collins 1972. The decision of the COA should be binding on itself. The case that establishes this was Young v Bristol Aeroplane Co. 1944 which said that the COA can change its own decisions: -
. When there are 2 conflicting decisions
2. When the HOL overrules it
3. If it can be proven the decision was wrong (PER INCURIAM)
High Court
This court is not required to follow its own decisions. They are, however, expected to. Lower courts do have to follow the decisions made here.
The actual process of changing a precedent
. Distinguishing
In this situation the judge claims that the facts of the case before him are so different to the precedent that he is not bound by the precedent
Balfour v Balfour 1919 - Contract law assumes husband and wife don't intend to enter into contracts.
Can enter into contracts if they expressively state they do.
Merritt v Merritt 1971 - Husband and wife handing over home after separation. Wife sues for money promised to her by husband.
Husband quoted B v B 1919
Mrs. M convinced the judge it was a distinguished case "B v B was a verbal agreement but M v M was written down"
She won.
2. Overruling
Either a superior court overrules an inferior court. E.g. HOL overrules the COA
OR the HOL overrules itself.
Shivpuri overruled Andreton v Ryan
Davis v Johnson 1979 - Publication 'Hansard'
Hansard is everything said in House of Commons and House of Lords. Interpretation of new statute. It was suggested to look at Hansard.
HOL ruled that you can't use Hansard
Pepper v Hart 1993 - Tax perks
Can a company pay for your kids' school fees?
Wasn't in statute to help but was debated in House of Commons - Hansard
Overruled D v J and said you can use Hansard
3. Reversing a decision
Reversing can only take place as a direct result of an appeal. A decision of an inferior court can be reversed by a superior court.
E.g. C (a minor) v D.P.P 1995. The HOL ruled that the magistrates' decision was wrong and reversed the decision
An overruling is where a different case in a different time period overrules an earlier case. Merritt in 1971 overruled Balfour 1919.
A reversal involves the same case at different points in time and in different courts. The case of C (a minor) in the magistrates' court was later reversed by the HOL.
The advantages of Judicial Precedent
. Certainty
With the vast amount of common law, most legal situations have already been dealt with by the courts. This means that the English law is highly predictable. Judges are not expected to create new directions for their juries, they use wording determined by previous precedent. The prosecution knows how a statute is interpreted and how best to prosecute a case.
E.g. Death by dangerous driving
Defence council in cases can give good advice, particularly the advice to plea guilty if they believe their client has no hope of success based on precedent. This should lead to a lesser sentence.
Other legal systems such as France don't relay on precedent, each case is decided on its own merits, the outcome is never certain.
2. Time and Cost savings
As the system is predictable this saves money for 3 main reasons: -
* In most criminal cases the defendant pleads guilty
* In civil ...
This is a preview of the whole essay
E.g. Death by dangerous driving
Defence council in cases can give good advice, particularly the advice to plea guilty if they believe their client has no hope of success based on precedent. This should lead to a lesser sentence.
Other legal systems such as France don't relay on precedent, each case is decided on its own merits, the outcome is never certain.
2. Time and Cost savings
As the system is predictable this saves money for 3 main reasons: -
* In most criminal cases the defendant pleads guilty
* In civil cases a high proportion results in out of court settlements
* As the law is certain, the English legal system results in relatively few appeals. If the HOL set a precedent there is no point appealing a similar case
3. Precedent produces a consistent legal system
The magistrates court operates out of 700 locations with over 30,000 magistrates, consistency over such a large court can only be achieved by the fact that magistrates all follow decisions of superior courts.
4. Precedent produces precision
Legal systems such as France operate what is describes as 'Roman Law' this relies heavily on statute. Statutes which have to be describes in enormous detail, E.g. Resulting in a legal definition of what a banana is.
Under English law statutes are deliberately vague. How the law works is decided by the courts which look at real people who find themselves in real legal situations.
5. Flexibility
Everyday there is a possibility that someone will break the law in a new way. This gives the courts the opportunity to revisit that area of law and question whether or not the law is in need of change. This means that the law is constantly updated. This also means that a statute which has been deliberately vaguely worded is constantly updated and can last for many years without the need for parliament to pass new legislation.
E.g. S47 OAPA 1861
In the case of R v Constanza 1997 the appeals court decided that the word body meant the mind, as a result constanza was found guilty of ABH by stalking his victim causing her severe depression.
Disadvantages of Judicial Precedent
. Precedent is too rigid
The high court and the COA have always been able to change their own decisions; the HOL has been able to do this since the PRACTICE STATEMENT 1966. Although they can change their decisions they don't use the facility as much as they could. When the decision clearly contradicts a statute, E.g. Anderton v Ryan 1985 the HOL must act quickly to change the precedent. However, when the decision is common law perhaps created by the HOL, the HOL appears unwilling to overturn it.
E.g. C (a minor) v D.P.P 1995 the HOL had the power to abolish doli incapax as the COA had already suggested. However, the HOL overruled the COA suggesting the matter was one of parliament.
2. Complexity
The advantage of precedent is that virtually every legal situation has been tested in the superior courts. Unfortunately this had now created around 1/2 million binding precedents. There is probably a precedent to answer every legal question; the problem is finding that precedent.
In the case of Dodds 1973 the COA assumed it was bound by a HOL precedent. In practice the COA couldn't find any ratio decidendi which was relevant to the case of Dodds. Computer technology will speed this process up.
3. Illogical distinctions
A case which sets a judicial precedent is never likely to be repeated with exactly the same events. A judge dealing with a burglary case will never face the same circumstances as the case of Collins which creates the precedent on criminal trespass. Some judges feel that judicial precedent restricts their legal creativity. To avoid precedent the constantly distinguish the case before them with the precedent being quoted.
E.g. Donaghue v Stevenson established negligence when a person suffered physical injury and nervous shock. However, in the later case of Grant v Australian Knitting mills, Grant had to take his case all the way to the HOL because he suffered physical injuries but not nervous shock. A situation it was argued that was not covered by Donaghue v Stevenson.
4. Precedent develops the law by chance
Statute law can predict situations which will exist in the future and so can create law before the situation occurs. This does 2 things: -
* Create a deterrent for people who might break the law
* If the law is broken the machinery is immediately available to deal with it
E.g. the 1996 Theft Act had to be passed to cover advances in electronic crime which didn't exist when the 1968 Theft Act was passed.
However, judicial precedent only creates law when someone commits an act which can then be considered buy the court. The law can only develop when someone is caught who has actually committed the necessary conduct.
5. Judicial precedent creates law retrospectively
For a case to pass through the legal system right to the HOL can take several years. It may then be appealed to the European court of Human rights which may take further years. In R v R 1991 part of Mr R's defence was that at the time he had intercourse with his wife he could not commit a criminal offence as that offence was created by the HOL through judicial precedent some 2 years later.
Statutes by comparison set a date at which the law becomes effective. Only conduct after that date can be declared illegal.
6. Precedent is undemocratic
Judges are employees of the state; they have been elected by the public. Should an unelected individual have the right to create law for the British Society?
In Stock v Jones 1978 Lord Scarman questioned his own right to change the law as he was not democratically elected
7. Precedent creates a narrow view of the law
The French criminal system regards each case as unique to be judged by the special circumstances of that case. Under our law a precedent based on the circumstances of a single case (even very bazaar cases like Collins 1972) is then used to create law which is applied to all individuals.
Statutory interpretation
Under English law statute is supreme. The common law can never challenge statutes, however, as statutes are written, in vague terms the HOL and the COA are frequently called upon to give rulings on what the statutes mean. This interpretation of the statute might involve a single word, or an entire section
The reasons for statutory interpretation
BENNION 1990
. Poor Draftsmen ship (often newly qualified barristers)
Dangerous dogs act - Dog epidemic - matter of days to pass statute
2. Assumptions clear to person who wrote it but not to anyone else. (person who wrote it are making assumptions that we would understand it)
3. Wording is brief (on purpose) keep brief easy to prove
4. Can not anticipate the general public (drafters are good legal brains) general public - not so clever, some on will do it in away never to be anticipated
5. Printing (mistakes) today the quality of printing may be decreasing
If for any reason a statute needs interpreting the courts must follow a set procedure which must produce an answer
General Aids
Some of the basic rules are set out by statute. E.g. the Interpretation Act 1978, and PACE 1984
. Masculine is feminine
2. Singular is plural
3. A person can be a corporate body (Fred Jones or could be Dixons)
4. Definitions of term writing (a visual form of the word)
Formal Rules of interpretation
Facing a problem of interpretation a judge in an inferior court or a panel judge in an appeal court have to follow set rules of interpretation
If the rule produces an answer, they stop at that point. Only if the rule fails should they progress to the next one.
. The Literal Rule
You give it is normal English meaning if you don't know what it is, you consult the Oxford Dictionary
The literal approach will give the word its normal meaning. If this creates a legal solution it is acceptable, even if the result may not be the desirable one.
Whitely v Chapell 1868 Aim of statute was to stop people casting more than one vote
Words - "impersonate a person, entitled to vote"
Chapell turned up, caste a vote; vote was in the name of a dead man.
Chapell - A dead man is not entitled to vote
Chapell was acquitted
London Railway v Berriman 1946 Start to pay compensation to workers injured on track.
Wording - "Relaying and repairing track"
Hit by train whilst maintaining
Said no reference to maintaining
Inland Revenue v Hinchy 1960 1960 Finance Act (tax act) if didn't pay tax, taxman could charge you 3 times the amount
Originally limit - 3 times amount of evaded tax
Fisher v Bell 1961 related to sale of flick-knives
Partridge v Crittenden 1968 related to sale of wild birds
Offence to attempt/sell Flick knives & Wild birds
Knives in window with prices
Advert sale of wild birds
Making an indication to treat (make an offer)
You offer to buy it; he then sells it - so only guilty at point of sale
Even though in the cases of Bell and Crittenden, the literal approach led to there acquittal, the rule applied because it produced a result, however, if the literal rule produces no result or an absurd result the judge is allowed to go to the next rule
2. The Golden Rule
This is sometimes described as the Purposive approach. The judge looks at the original statute and the purpose for which it was passed. The judge is allowed to slightly change the wording to enable the statute to achieve its purpose
R v Allen 1872 Offence of bigamy
"Anyone who marries, when already married"
Under English law you can only marry one person at a time. No one can commit the offence of bigamy
"Anyone who attempt to marry, when already married"
Maddox v Store 1963 Purpose to make mini-busses/people carriers safe
"Vehicles adapted to carry more than 7 people"
Statute doesn't include me, mine is purpose built minibus
Changed "vehicles suitable to carry more than 7 people"
Adler v George 1964 Official secrets act
Wording "in the vicinity of a prohibited place"
Actual meaning 'you can't go in (but can stand outside)
Changed "within a prohibited place"
3. The Mischief Rule
Again this rule can only be applied if the golden rule fails to produce an answer. The mischief rule is a further development of the purposive approach. The judge must consider the specific problem that the statute was trying to stop.
This is a more specific approach than the general approach of the golden rule.
E.g. the golden rule may look at the general problem of prostitution. The mischief rule might look at the more specific problem of curb crawling
To use the mischief rule the courts use guidance from HEYDONS CASE 1584 to solve the problem the judge must ask 3 questions: -
. What was the common law before the statute was passed?
2. Why was the common law inadequate?
3. What was the intended remedy to the mischief?
E.g. 1981 Criminal Attempts Act
. Cannot attempt the impossible
2. People to were trying to attempt the impossible
3. To make impossible attempts criminal
By applying these 3 rules of HAYDON's case 1584 the problem that the judge faces is putting to context of the statutes which should help the judge solve the mischief.
Smith v Hughes 1960 Prostitute
The mischief was curb-crawling
Men driving down streets being solicited by women
Statute related to prostitutes, but mischief was curb-crawling (take prostitutes off the streets, loose the curb-crawlers)
"Soliciting on the streets"
Prostitutes moved into shop windows
HAYDON's rules
. Allowed woman to solicit on the street
2. Didn't make prostitution illegal
3. To get prostitutes off streets, cut curb-crawling
Elliot v Grey 1960 "uninsured vehicles being parked on the street"
Grey must have been aware of the statute - Jacked up vehicle so wheels were not on the road.
Mischief was abandoning car on street - uninsured
Grey guilty because was abandoned
RCN v DHSS 1981 Abortion
967 Abortion Act "Termination of pregnancy by medical practitioners"
Medical practitioners? Generally interpreted - Doctor
When the act was written, was clinical procedure in 1981 could do it with drugs
DHSS advised nurses and midwives that they could carry out these procedures
RCN - nurses union - said not sure if it was correct
Took employees to court to check the theory
Aim - To stop backstreet illegal abortions
HOL said nurses could do it
Summary of the rules to interpretation
. Literal Rule
Advantage - maintains parliamentary supremacy
Disadvantage - Produces absurdities
2. Golden Rule
Advantage - Should avoid absurdity and injustice
Disadvantage - Absurdity isn't defined
3. Mischief Rule
Advantage - Tackles specific purpose of statute - the mischief itself
Disadvantage - Modern statutes are written in less and less detail (may not clearly be able to identify mischief)
Dates back to HAYDON's case 1584. In 1584 statutes were written in much more detail
Other Aids to interpretation
As the judge attempts to interpret the statute, he is required to apply each rule in turn. If the 1st rule doesn't answer the problem he moves to the 2nd and 3rd. To help the judge operate within these rules he is allowed to use a wide variety of internal and external aids to interpretation.
Internal - Intrinsic aids - Within statute - E.g. Lies before and after
External - Extrinsic aids - Not in statute - E.g. Hansard
Intrinsic aids to interpretation
. The statute itself - Title of statute
- Sub Headings
- Other sections
2. Explanatory notes - since 1999 all statutes are produced with notes
3. Rules of language
* Ejusdem Generis rule - General words follow specific words
The general words have the same meaning
E.g. Cats, Dogs, and other animals
Powell v Kempton race course 1899 - Gambling. Statute used "house, office, room, or other places of betting" they had set up tables outside the race course to bet
Other places meant other buildings
Allen v Emmerson 1944 - "theatres, and other places of entertainment" Funfair? Yes
* Expressio Unius rule - The mention of 1 thing expressively excludes all others
E.g. Guide dogs excepted excludes all other dogs
Tempest v Kilner 1846 - "goods, wears, and merchandise" stocks and shares? No
* Noscitur a Sociis rule - Words draw their meaning from the words around them.
E.g. Dog, Food, Other canine equipment
IRC v Frere 1965 - "interest, Annuities and other annual interest"
What did interest mean? Annual interest (money)
Bromley LBC v GLC 1983 - "economic" meant cheap, not business by GLC, but HOL disagreed
Extrinsic aids to interpretation
Having used all possible clues to the statute judges can then look to any external source that may give them guidance
. The Historical setting - a statute may have been a response to a particular situation or series of events. To understand the statute the judge may use these events to put the statute into context.
E.g. Future Human Rights legislation may be affected by the events of September 11th 2001
2. Text Books in the work of legal academics - Smith and Hogan
3. Previous acts of parliament on the same topic - a piece of legislation may replace or add to existing legislation. If the new legislation has problems with interpretation the old legislation may give clues as to why the new law was passed.
E.g. The current law on theft stems from the 1968 Theft Act. 1978 Theft act was created due to failures in the 68 act. The 68 act was very weak on deception offences
Delegated legislation
The process of passing a statute
. Green Paper stage - discussion document (think about change)
2. White Paper stage - We are going to change the law
3. Queens Speech - not always done
Parliament - House of Commons
. First Reading - Formality to just read it out
2. Second Reading - Major debate - Vote (not often go past this)
3. Goes to Committee - Mini version of parliament - Ratio in parliament same as ration in committee. Drafted here
4. Report - May go back to committee if not happy
5. Third Reading - Generally a vote is formality
HOL goes through 5 stages above
Judges - Appointed for life - Got experience of doing it
Highest judge - Much better debate
Royal Ascent - Final stage - Technically becomes law (may delay coming law)
6. Report of law reform organisation
The law commission is appointed by the government to look into problems with the law. If the report is accepted it may become the basic of new legislation in two to three years time. Clearly these reports are important background to subsequent statute
7. International conventions, regulations, and directions (EC law)
As an EC member English law must reflect EC law. The EC may for example pass a direction on contracts of employment. Individual countries must then change their domestic law to meet the conditions of that direction. Therefore to understand English employment law you must need to understand EC law. 1998 Employment Protection Act - the EC said there must be no discrimination between genders.
In this country part time workers, under English law had far less employment protection than full time workers.
Most part time workers are woman. Part time workers were being sacked before full rights were achieved and so never did come into it. Didn't have dismissal rights.
Delegated Legalisation
Reasons for Delegated Legislation: -
. Time
The queen's speech sets out the typical plans of the government for the next parliamentary session. The speech might suggest 25-30 new statutes. In addition parliament introduces new statutes which are not mentioned in the speech. It will be highly unlikely that new statutes would exceed 100 per year. By comparison delegated legislation exceeds 2,000 per year.
2. Speed
A typical statute takes several months even when fully supported to pass through parliament. Many bills don't become law because they run out of parliamentary time. Comparison delegated legislation can be passed very quickly and is particularly useful to respond to national emergencies.
E.g. The minister of agriculture during the 'foot and mouth' outbreak.
3. Technical Detail
Individuals or bodies which enjoy delegated power may have the technical specialist knowledge which the government lacks. These may be little point in debating foot and mouth legislation before the entire HOC if they have little knowledge of what is involved.
4. Local Knowledge
In the case of local authority by-laws the need of local councils are far better understood than matters being dealt with by parliament in London. All local authorities have unique needs for their area.
5. Easy to Amend
With statute law mistakes are difficult to deal with. The power of courts to use statutory interpretation allows very limited flexibility. Major mistakes may require further statute. By comparison changing delegated legislation is a relatively simple task.
6. Anticipating future needs
Delegated legislation can give statute a much longer life span. Within statutes there is normally an enabling clause. This can give wide powers to the minister of the relevant department. Without the need to return to parliament the minister can make significant changes within the original statute.
E.g. Disability and Discrimination Act 1995 / Access to Justice Act 1999
Types of Delegated Legislation
. Orders in Council
They are passed by the Queen and Privy Council. It comes from the 1920 Emergency Powers Act.
Its main use is when parliament is on holiday (June-October). The law made here is called an ORDER IN COUNCIL, not a statute.
2. statutory Instruments
These are passed by government ministers for the department they run. There are about 2,000 statutory instruments passed per year.
Disability Act
Access to Justice Act
Consumer Credit Act 1974 delegates powers to control deposits
Companies Act 1985 - Department of trade and industry
3. By-Laws
Local authorities pass them. Also use to be used by public corporations but there are not many left now (only 1 or 2)
Local government Act 1972 - Vague clause - Maintaining local authority as they see fit.
The control of Delegated Legislation
Given the volume of delegated legislation and its potential power (E.g. forcing local authorities to sell council houses) Delegated Legislation needs to be controlled. This is done in 2 main ways: -
. Control by parliament itself
These delegated powers were handed out by parliament, parliament maintains its right to restrict, overturn, or even withdraw these powers.
2. Control by the courts
Parliamentary legislation is supreme and can not be challenged by the courts. Delegated legislation even is passed by the home secretary isn't the work of parliament; as a result the courts have recognised the fact that they can legally challenge delegated legislation. Following such a challenge the court can declare that the delegated authority has gone beyond its powers. It is declared ULTRA VIRES.
Control by parliament
This is achieved in 3 main ways: -
. An Affirmative Resolution
These are quite rare. Parliament insists that the delegated body puts the legislation before parliament for approval. Only following parliamentary approval does the legislation become effective and create new law.
2. Negative Resolution
This is by far the most common. The delegated body can pass legislation without the need to put it before parliament. If parliament is unhappy with the legislation it must act within 40 days, during which time it is relatively easy to overturn the legislation. After 40 days the process of removing delegated legislation becomes far more complicated.
3. The Scrutiny Committee (Introduced in 1973)
* If the delegated law creates any form of taxation
* If the legislation appears to be retrospective
* Beyond the powers of the delegated body
* If the delegated legislation is unclear. I.e. Badly worded
If it is any of the above 4, they are automatically checked.
Any delegated legislation scrutinised and found to be wanting can be sent back to parliament who have the power to amend it.
Looking at affirmative /negative resolution plus the scrutinising committee it becomes clear that the majority of delegated legislation becomes law without the knowledge of parliament. Inevitably someone is accused of breaking that law and finds themselves before a court of law. As the legislation is not supreme (parliamentary) the courts now have the opportunity to question the legality of this delegated legislation. Faced with delegated legislation a court may accept it or consider it unlawful. If it is unlawful the court declares the legislation ULTRA VIRES stating that the delegated body has gone beyond its powers. Id the court refuses to enforce the delegated legislation, the law in effect ceases to exist.
Procedural ULTRA VIRES
This implies the minister involved didn't follow the procedures which parliament required when it delegated power. The minister probably has the power to introduce the legislation but not in the way that he did.
Aylesbury Mushrooms 1972 - Training program for farmers would affect mushroom growers that he did not consider.
The most common situation is one of SUBSTANTIVE ULTRA VIRES, this is simply the minister has taken action which is far greater then the powers delegated to him by parliament. The court simply refuses to enforce the law saying that the authority has gone too far.
Strickland v Hayes 1896 - local authority made it unlawful to use bad language in pubic places. It was aimed at singing and shouting.
S challenged the by-law saying it was so badly worded that it made all bad language (even in your own home) unlawful. Court agreed
AG v Fulham Co. 1921 - Washhouses and laundrettes
Laundrettes were different to washhouses and didn't have the power to open the.
Commission of customs & excise v Cure & Deeley Ltd 1962 - 1940 Finance Act. The enabling clause said the minister could do anything to make the act work. C & E decided they could say how much tax was due. C & D said they wouldn't pay
Court agreed with C & D - meant the taxman could collect the calculated tax by any means.
R v Sec. State Ex parte Fire Brigade Union 1995 - Criminal Justice Act 1988 clause related to CICB. Home secretary could run the scheme as it saw fit. He said firemen don't qualify for the CICB
Court disagreed
R v Sec. State Soc Sec Ex parte Joint Council for Welfare if Immigrants 1996
Related to benefits (1992 social security act) gave powers to restrict social security payments. In 1993 immigrants appeal Act gave asylum seekers the right to appeal against benefit and being turned down
The 1993 act superseded the 1992 act
The advantages of Delegated Legislation
. Timescale
Takes far less time than parliamentary legislation and allows parliament to get ion with more important things
2. The speed of the response
Delegated legislation can be passed in days and weeks whilst statute law takes weeks ands months
3. Local Knowledge
All local authorities and government departments have their own specific problems which delegated powers enable them to deal with
4. Easy to amend
Delegated legislation is far easier to amend than statute law and gives the statute a longer working life
The Disadvantages of Delegated Legislation
. Non-Democratic
Laws being made behind closed doors unlike parliament where it is debated fully
2. Its volume
There is so much delegated legislation passed that perple can break it without knowing it existed
3. Sub-Delegation
Powers delegated from parliament is directly to the minister. The minister delegates it to civil services (employees of the state)
Law Reform
As society develops, hopefully law develops with it. Sometimes there is a need for brand new law as new situations develop (E.g. Computer crime) sometimes the law needs updating as the original view of the law is no longer the view of society (E.g. Matrimonial rape)
In other situations the common law may have developed into a structure which is no longer practical (E.g. Insanity)
Whatever the problem law reform is an ongoing and important feature of the legal system.
Law reform stems form 5 main sources: -
. The courts
Technically everyday the courts come across the possibility of cases which could change the law
2. Parliament
Each year parliament deliberately sets out its program of law reform. As its earlier stages this appears in the manifesto. The manifesto on election becomes a mandate (I.e. the manifesto pledges now to become government policy)
Finally the Queens speech sets out each part of the government's policy which will be introduced in the next parliamentary session
3. Law reform organisations
These bodies look into problems in the law and make recommendations to parliament on how the law could be improved. (E.G. the law commission was set up in 1965) and has an ongoing program of investigating Royal Commissions on the other hand to be set up for one off investigations.
4. The role of legal academics
In all areas of law the leading experts point out problems with the law as it develops. A new precedent in criminal law for example may have wider implications than the courts originally envisaged. Legal academics may point out how the law might face problems in the future.
5. The role of interest and pressure groups
These organisations constantly lobby government reform organisations, the courts and anyone of influence. Sometimes they can be highly influential (E.g. Woman & Homosexual rights movements in the 70's and 80's) Sometimes with even mass support, they are simply ignored. (E.g. CND)
Reform by the courts
When the courts reform law, this simply means that a superior court has either,
. Dealt with a legal issue for the 1st time
2. Distinguished the legal position from a previous case
3. Over ruled the case of a previous court
4. Reversed the decision of a lower court
All these produce Judicial Precedent, although this is an important form of law reform it is not always the best way to proceed.
. The use of precedent means that the law reform develops through the actions of individuals. The law has to wait for individuals to break the law before reform can take place.
2. Using case law a s the basis of reform is harsh as Judicial Precedent creates retrospective law
3. Precedent can only reform the common law system. As parliament is supreme precedent can never be used to challenge statute. Statute is in need of reform just as much as the common law
4. Law reform is seen as part of the democratic process. Through the ballot box, the public express their views on how society should develop. The courts on the other hand are not democratic; they are employees of the state which the public can not remove.
Law reform by Parliament
Although law reform comes from a wide variety of sources the ultimate decision on how the law is to develop is a matter for parliament and more specifically the government of the day.
Reform of the law by parliament occurs in 3 main ways: -
. Repeal of the law
The English legal system is poor at this process, as a result large numbers of statutes are available, many of which haven't been issued for long periods of time. New statutes are passed in much greater numbers that the old ones repealed, as a result the law becomes increasingly complicated and the likelihood of an individual breaking the law also increases.
The law reform act 1995 repealed 223 complete statutes and 259 parts of other statutes. In the past 25 years parliament has repealed in excess of 1,600 statutes.
2. Consolidation
This involves passing several acts on the same subject. The latest version of the act in effect takes on board all the previous versions of the act. In effect repealing all acts prior to the latest one (E.g. The government constantly changes the law on sentencing young offenders. This has happened 10 times in the last 25 years) to understand to current law you do not need to consider the last 10 statutes. The most recent version consolidates the last 10 into 1.
3. Codification
It is quite possible that a single legal issue can be dealt with in a wide variety of acts.
E.g. the various homicide, non-fatal, and theft acts may all specify different ways of dealing with arrest and charge.
These acts span over 140 years. For the police these different arrest procedures would be unworkable, as a result the police and criminal evidence act 1984 (PACE) codified police stop, search, and arrest into a single piece of legislation. Regardless of the offence being committed police procedures are now standardised.
Organisations that advise on law reform
If the problem exists with the law there are various organisations which can look into the problem and report back to the government. The government may then decide to accept or reject the recommendations.
The main organisations are: -
. Law Reform Committee 1952
This is part time and sits as and when it is needed. It reports directly to the Lord Chancellor. It deals with civil legal issues, not criminal.
In the early days reports of this committee often led to changes in the law.
957 Occupiers Liability Act (Negligence for buildings)
2. Criminal Law Revision Committee 1957
This is similar to 1 but deals with criminal issues. The government approaches it to look into things. 1968 Theft Act is an example
3. The Law Commission 1965
Created by the law commission act 1965 (statute)
Can work in 2 ways: -
* Pro-active - It can start and investigation
* Reactive - Reacts from others (Lord Chancellor)
It is full time and sits as a panel of 5 usually. The chair of the committee is usually a High Court judge. It is also seen as a stepping stone to be a COA judge.
Have a Criminal Barrister
Have a Solicitor in a different area (land)
2 more that is often legal academics
They investigate in blocks and most of these investigations will have been referred to them by the Lord Chancellor
Current issues include: -
* Consent (Capacity to consent)
* OAPA 1961 - Its age
* Involuntary manslaughter
* Bail - Re-offending whilst on bail
* Personal injury claims
* Limitation periods (on claiming)
* Assisting and encouraging crime
Law Commission Reports
There are 3 stages: -
. 1 or 2 commissioners produce a detailed working paper on how the law could be changed (each commissioner has between 20 ands 30 staff working for him) they then report back to the whole committee of 5 who then agree on the document. It is then printed and about 1500 copies are made.
2. 6 months to 2 year after the working paper is published the commission produces a draft report and a draft bill. This draft bill is their suggestion of what could be submitted to parliament to ultimately become statutory law.
3. The report and draft bill is then submitted to the Lord Chancellor who then passes it onto parliament.
The effectiveness of law commission reports
In the early days of the law commission, parliament appeared to accept most of the recommendations put forward. The first 20 reports had become law within 2 years. The overall success rate in the 1960's was around 85%. By the 1970's it was around 70%, and by the 1980's it was less than 50%. By the early 1990's the role of the law commission had dramatically declined. It produced 36 reports none of which parliament had acted upon. In 1985 the law commission published its most dramatic reform proposals. The draft Criminal Code suggested how all criminal offences could be brought under a single piece of legislation. Although the draft Criminal Code was well received by the judiciary and the legal academics it appeared to be far too radical for parliament. Since 1985 the law commission has limited itself to investigations into small specific areas of law.
The Royal Commission
These appear to be more popular these days and consist of a committee set up by parliament to investigate a particular legal problem. The commission is often set up following particular events. The reports of the commission are often named after the chairman.
E.g. the royal Commission under Woolf resulted in changes in the civil justice system which introduced the various tracks to speed up the process.
Also Royal Commission reports frequently lead to legislation
E.g. the 1999 Access to Justice Act which introduced the Legal Services Commission
Types of Parliamentary legislation
In the majority of cases an act of parliament is first introduced into the HOC although it is possible for it to start in the HOL first before going through the HOC.
Most legislation is introduced as a public bill. This is introduced by the government of the day and is usually the work of a particular department. The cabinet which is made up of the government's top minister's normally formulate government policy.
In addition to the public bill a small number of bills are introduced as private members bills. Once they become law these bills have exactly the same force as a standard public bill.
In each parliamentary session a small number of MP's are randomly selected to introduce a private members bill. When selected these MP's become the target of literally hundreds of pressure and interest groups. These groups suggest ways in which the law can be changed in favour of their views. Private members find these pressure groups extremely useful as the private member does not get the resources (E.g. researchers, legal advice etc...) of his parliamentary party.
E.g. when a private member introduces a bill to ban fox hunting he would have been approached by pressure groups such as RSPCA, Animal rights campaigners (anti blood sport league), Crufts, national union of farmers, countryside commission etc...
In the majority of cases private members bills which don't get parliamentary support rarely become law. However, some bills if not receiving government support don't face government opposition. These bills are often on subjects too controversial for a single party to be associated with. These bills have a better chance of becoming law
E.g. Abolition of death penalty act 1965
Abortion Act 1967
Sexual Offences Act 1967 - Legalised homosexuality
Divorce reform Act 1969 - Eased rules on divorce
The physical process in the creation of a statute
Preliminary stage
. Green Paper
This is a very early stage of consultation and encourages politicians to discuss possible ways in which the law can develop.
2. White Paper
This sets out the governments intentions on how they will proceed with the issue
3. The Queen's Speech
States that the bill will be introduced in the next parliamentary session
The process of a bill becoming law
Most bills; public and private members bills are introduced first into the HOC although the HOL occasionally is the starting point.
. First Reading
This is to introduce it to the house. There is no debate/vote. It is just read out.
2. Second Reading
Formal debate on the whole bill. This can be a long time. Most private members bills run out of time at this stage. A vote is also taken.
3. Committee stage
This is a mini version of the HOC. The committee is in the exact same ratio as HOC but only includes 30-50 members. The committee goes through the bill line by line and makes amendments as necessary. These amendments may be legal and political the committee may make amendments under pressure from pressure groups, E.g. Various churches
4. Report Stage
The Committee reports back on each amendment made on the bill. Each amendment can be accepted or ejected. The commons occasionally send the bill back to the committee for further amendments.
5. Third Reading
By this stage the process is normally a formality. There is a brief debate and a final vote. However, the opposition opposing the amendments can force a vote on each amendment made to 'waste' time and force the bill to run out of time.
The next Stage
The bill is now sent to the HOL which performs the exact same process as the HOC. The HOC then returns the bill to the commons with amendments. If the amendments are accepted the bill proceeds to Royal Ascent. After Royal Ascent the act becomes law on a pre-determined date. Depending on the type of legislation the date can be anything from a few weeks to over a year form the Royal Ascent.
Robert Cook
Module 1
P. 1
