parliamentary law making

• Green paper


  Consultation document
• White paper


  Firm proposal
• Bill


  Proposed law
• Types of Bill


  • Public Bill – affects the public as a whole
  • Private Bills – affect one particular area, organisation or institution
  • Private Members' Bills – Bills introduced by individual MPs – usually non-party political issues
• Legislative Process


  1. First Reading – formality only. Bill's name read out

  2. Second Reading – main debate and vote

  3. Committee Stage – detailed scrutiny

  4. Report Stage – any amendments reported back

  5. Third Reading – final vote – mainly a formality

  6. Repeat Process in 'the other House' - Bill passes back and forth between houses until consensus is reached (Ping Pong) – outline description only

  7. Royal Assent – Monarch approves the Bill
• By-laws


  Made by local authorities, public corporations
• Orders in Council


  Made by King and Privy Council
• Statutory Instruments


  Made by Ministers
• Parliamentary Control


  • Approval of Parent Act
  • Consultation
  • Publication
  • Revocation
  • Amendment
  • Negative Resolution Procedure
  • Affirmative Resolution Procedure
• Judicial Control


  • Judicial review
  • Ultra vires - Procedural
  • Ultra vires - Substantive
  • Irrationality or 'Wednesbury Unreasonableness'
  • Incompatible with Human Rights Act
• Literal Rule


  Interpret the statute according to the plain, ordinary meaning of the words
• Literal Rule


  • LNER v Berriman (1946)
  • Whitely v Chappell (1868)
  • Cheeseman v DPP (1990)
• Golden Rule


  Narrow - interpret the statute to avoid an absurd or unjust outcome

  Wide/Broad - interpret the statute to give effect to the purpose of the legislation
• Golden Rule


  • R v Allen (1872)

  Adler v George (1964)

  Re Sigsworth
• Mischief Rule


  Interpret the statute to remedy the mischief that the legislation was intended to address
• Mischief Rule


  • Smith v Hughes (1960)

  RCN v DHSS (1981)
• Purpose approach


  Interpret the statute in light of its purpose, especially where the statute is influenced by EU law

  
• Purpose approach


  • Jones v Tower Boot Co (1997)

  R v Registrar General, ex parte Smith (1990)

  R (Quintavalle) v HFEA (2003)
• Intrinsic aids


  • Preamble
  • Short and Long title
  • Marginal notes
  • Interpretation sections
• Extrinsic aids


  • Previous Acts of Parliament (on same/similar area)
  • Dictionaries
  • Interpretation Act 1978
  • Explanatory notes
  • Law Commission/Law Reform Reports
  • Law Reform Reports
  • Hansard
• Stare decisis


  The doctrine that courts should follow precedent

  
• Ratio decidendi


  The legal principle or rule upon which a court's decision is based
• Obiter dicta


  Incidental remarks or observations made by a judge that are not part of the binding ratio decidendi
• Precedent


  • Original precedent

  Binding precedent

  Persuasive precedent

  
• Be able to explain and illustrate (with relevant cases), the exceptions to the general rule of stare decisis in: The UK Supreme Court under Practice Directions 3 & 4 (formerly the Practice Statement 1966) including circumstances where there is a conflict between a decision of the UKSC and a conflicting decision of either the CJEU or the ECtHR eg Anderson v Ryan and R v Shivpuri, The Court of Appeal under the doctrine set out in Young v Bristol Aeroplane (and where a criminal case is being considered) including circumstances where there is a conflict between a decision of the Court of Appeal and a conflicting decision of either the CJEU or the ECtHR
• Methods of handling/avoiding precedents

  • Following

  Overruling

  Reversing

  Distinguishing
• Influences on Parliament


  • Government Policy or 'manifesto promises' (political)

  Private Members' Bills

  Pressure groups & lobbyists

  The Law Commission

  
• Law Commission


  A formal, full time law reform body
• Liability in negligence for injury to people and damage to property
• Duty of care


  Robinson v CCWY three part test
• Breach of duty


  The objective standard, class of defendant and factors varying the standard
• Damage


  Factual causation, remoteness (reasonably foreseeable harm/damage)
• Duty of care


  Robinson v CCWY: is there an existing precedent, is there an existing statute, where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law
• Breach of duty of care

  Reasonable man test - objective - Blythe v Birmingham Waterworks Co, Class of defendant (only use when relevant)
• Duty of care


  Establish if there is an existing precedent, statute, or closest analogies in the existing law
• Reasonable man test


  Objective standard
• Class of defendant


  Learner, inexperienced person, child, sports person, professional
• Factors that may raise or lower the standard

  Foreseeability of risk, size of risk, practicalities of precautions, social utility
• Factual causation


  'But for' test
• Legal causation


  Remoteness of damage - foreseeability of the kind of damage rather than the specific actual damage