Law Making in the UK - Essay Example

?Legal Questions Question Define page 11,89 WH100, Block An Act of Parliament is a law passed by the parliament in Westminster whichoperates throughout the United Kingdom, and which can be enforced by a court of law. It may on occasions be superceded by a law from one of the devolved parliaments e.g. the Welsh Assembly. Acts of Parliament, together with common law and those originating in the European Union and from the European Court of Human Rights. make up legislation in the United Kingdom. 2. Delegated legislation ( page 114) is when parliament makes a change in the law based upon existing legislation known as ‘mother acts’. Such things as local byelaws or professional rules are delegated legislation. 3. Devolved parliaments such as the Scottish Parliament can pass both primary legislation and also separate legislation on devolved issues e.g. those that apply particularly to their regions. 4. Precedent. ( page 141) This is a legal term in common law. It refers to a decision made based upon earlier judgments. The lower courts base their decisions upon principles which have been laid down in higher courts. 5. Common Law. ( page 189) This term refers to the substantive rules, i.e. rules about which behaviour is allowed, and procedural rules i.e. how things should be done.. Both of these kind of rules judges create and use in court. Common law alters according to changes in society i.e. what society considers to be allowable or not during a particular period. . 6. European Union law. ( page 225) Laws passed by the European Parliament are valid in the member countries of the European Union. Primary legislation includes laws based upon treaties and agreements between members. Secondary legislation includes such things as directives and guidelines. Also included are judgments made in the European Court of Human Rights. Question 2 Explain the role of the judiciary in developing common law. Does this role assist with law making? Common law, otherwise known as case law, is case centred i.e. it depends upon the particular cases that occur. This distinguishes it from statutory law i.e. that detailed in Acts of parliament. I t is judge centred as it is the judiciary, at various levels, who make the decisions. Common law develops in a very gradual way depending upon circumstances i.e. which cases come to court. It is based upon precedent, that is what has preceded it. Where a new case presents the same situation as an earlier one then the earlier decision will be followed. It is not planned ahead. It is a system used by the United Kingdom and still in place in many of her former possessions such as Commonwealth countries and the United States of America. The European Court of Justice was established under different rules – those based upon Roman and German styles of Civil Law, but in practice is basing its decisions more on a case by case style, although based upon earlier decisions it has made i.e. it is building up a common law base to be used by its judiciary when making rulings on particular cases.. Hobhouse is cited as saying ( page 190) that common law must develop as “circumstances change and the balance of legal , social and economic needs change.” Society is in a constant flux and judges need to be able to make decisions based upon the changing circumstances. This can be done by overruling earlier decisions made in a lower court. Lower courts are bound by decisions made in higher courts. Judges are not necessarily required to follow the precedent of earlier rulings. It can be a matter of distinguishing – pointing out particular circumstances which mean that somewhat different principles might be applied in a certain case – mitigating circumstances for instance. The disadvantage of this system is that it only works for cases that are actually brought before the courts - the courts only rule on these cases not hypothetical ones that might or might not occur. Some would consider this a disadvantage, but at least time is not wasted considering what might have been. The real disadvantage is that until the cases are tired and decisions made the law on a particular matter might remain uncertain. A third way is referred to as ‘departing’ i.e. departing from an earlier decision because of changing times. In this third case the House of Lords used to be bound to follow its own decisions i.e. the principle of ‘stare decisis’, that is standing by a decision They could not legally ‘depart’ from a ruling previously made. Then in 1966 the then Lord Chancellor produced a Practice Statement allowing for changes where this was felt to be required in order to allow the law to keep up with changes in society, to develop, and to prevent perceived injustice. This means that the law can be modernized without a whole new Act of Parliament being enacted. Question 3 Explain the law making process at the Westminster Parliament. Is it a satisfactory process? The main purpose of both houses ( page 87) is to discuss what laws are required, to debate these in a formal way and to vote upon their acceptance into the body of legislation as Acts of Parliament. Acts originate from various sources and situations e.g. a national emergency may require emergency powers as in a time of war or other perceived or actual threat. The Anti-terrorism Act of 1991 is such a law ( page 96) A new law may be required in order to fulfill promises the ruling party made to voters in its manifesto. If they fail to fulfill promises made they will meet problems with their opponents and also the electorate at the next election. However such election promises are not enforceable - there may be reasons why such a promise does not become law – a change in the countries financial circumstances for instance could mean that such things as improvements to education or the health services may not be possible despite being promised only a few months earlier. An individual member may make a bill. This is known as a Private Members Bill.. Such bills are comparatively rare. Royal commissions are advisory groups (99) set up to look into such things as health service provision, or immigration, and new laws may come out of their findings. They do not relate to a particular political party and so are used to consider non-party issues, or for those things that need considering in an all encompassing way. The Criminal Appeal Act of 1995 is an example of an act resulting from the findings of a Royal Commission. The sitting government however may choose not to accept the advice or findings of such a commission. The Law Commission, established in 1965, has as its aim reform of existing law and from their findings new laws or amendments to previous ones may develop. They may be introduced as a response to a particular situation. They do such things as consider the removal of outdated laws which remain on the statute book they suggest the removal of legal irregularities i.e. where one statute says something which another one interprets in a contradictory way. The law making process at the Westminster parliament has developed over many centuries. It is a complicated process which is expensive in time and money. The system results in a codified body of rules and principles to be applied. All acts begin as proposals, referred to as bills.( page 104) Public bills , which include private members bills , affect everyone. Private bills only affect a certain part of the population e.g. those living in a particular borough. When a bill of whatever type is planned evidence is looked at carefully. This avoids the introduction of unworkable bills. A Green Paper is prepared and advice is taken from people likely to be affected Comments upon proposals are passed on to the minister concerned. Hi s department, in his name, then issues a White Paper giving ideas for the proposed bill, which is then drafted by lawyers .A first reading consists of naming the bill in parliament. Copies are made available, but the contents are not debated at this stage. This takes place at the second reading , when a minister will outline the meaning of the contents. A very careful examination of the bill is then undertaken by a parliamentary committee which will have a majority of government members. Amendments may be made A report is made. Amendments will be debated and perhaps further ones made. After this comes the third reading i.e. the final vote is made. Amendments can still be made if enough members request this. The bill then goes to the House of Lords, who again can make amendments. It goes through very similar stages in the upper house and both houses must agree on the final text. I f they do not the bill goes back to the Commons. Such a bill will become law only if it is passed by the Commons on a second vote. This system of checks and counter checks means that unworkable bills, or those likely to have very negative impacts, are unlikely to become law. Therefore, the present system, although usually long winded, has proved to be effective over many years. References OPEN UNIVERSITY, 2010, W100, Rules, Rights and Justice, An Introduction to Law, Milton Keynes, Open University, Read More