Law Comp 1 SA

parliamentary law making

PLM. list the sources of law

Statutory interpretation

European convention of human rights

European Union law

delegated legislation

judicial precedent

acts of parliament

PLM. what are the green and white papers

The first stage of making a law is to consult the elevent people via green and white paper

GREEN PAPER

• a green paper is an intention to change the law and outlines the format this change this change could take

• published in internet for the public to comment on and copies are also distributed to interested parties, who also make comments and put forward suggestions on the proposal

WHITE PAPER

• parliament will then publish a white paper, which is a positive proposal on the format the new law will take, it often includes changes suggested by opinions of the interested parties

• there is then a further chance for consultation before the final bill enters parliament for consideration

PLM. what are the three different types of bill?

All acts begin as a bill, which is a draft or proposal for a change in the law

PUBLIC BILL

• involves matters of public policy that will effect the whole country or a large section of it

• sometimes reflect the manifesto of the gov in power

• Examples include :

> children and social work act 2017

> juries act 1974

PRIVTE MEMBERS BILLS

• sponsored by MPs, at each parliamentary session, 20 members are chosen from a ballot to take their turn in presenting their bills at parliament

• relatively few PMBs become the law, and time available for debating them is very short

• as they tend to cover issues that the individual MP is interested in, they rarely reflect the Govs general agenda

• examples include

> abortion act 1967

> marriage act 1994

PRIVATE BILLS

• a priv bill is a law designed to affect only individual ppl or corporations

• examples include:

> University College London act 199

PLM. What is the order of the legislative process?

1. first reading

2. second reading

3. committee stage

4. report stage

5. third reading

6. House of Lords

7. royal assent

commencement

PLM. what are the first and second reading?

1. first reading

• the title of the bill is read to the house of commons, acts as a notification of the proposed measure

2. second reading

• the first opportunity for MPs to debate the main principles of the bill

• at end of the debate the House of Commons voeson whether the legislation should proceed

PLM. what is the committee stage and the report stage?

3. committee stage

• a detailed examination of the bill where every clause is agreed to, changed, or removed; taking into account the points made during the debates at the first and second readings

4. report stage

• committee will then report back to the House of Commons, and any proposed amendments are debated and voted upon

PLM. what is the third reading, House of Lords, and royal assent?

5. third reading

• the third reading is a final chance for the House of Commons to debate the contents of a bill but no amendments can be made during this stage

• simply a vote on whether to accept or reject the legislation as it stands

6. House of Lords

• the bill then goes to the HoL, where it travels through a similar process of three readings

• if the lords alter anything, the bill returns to the commons for consideration - ping pong

7. Royal assent

• in the majority of cases, agreement between the lords and commons is reached then the bill is presented for royal assent

• technically the king must give consent for all legislation before it can become law, but in practice that consent is never refused

• the bill would then be an act of parliament and becomes law, although most acts only take effect on a specific date given - commencement

PLM. explain the UK constitution

The UK doesn’t have a written constitution. this means it has no single document which sets out the fundamental laws outlining how the state works. Unlike most other countries, there is no formal regulation of the organization and distribution of state power.

The Uk therefore relies on three key principles to underpin its unwritten constitution:

1. parliamentary sovereignty

2. the rule of law

3. separation of powers

PLM. what is parliamentary sovereignty?

• in simple form, sovereignty is the principle of absolute and unlimited power. An act of parliament can completely overrule any custom, judicial precedent, delegated legislation or prev act of parliament.

• this is because MPs are elected by the voters in their constituency in a democratic process, so each MP is participating in the legislative process of behalf of those voters

PLM. What is Diceys theory of parliamentary sovereignty?

A.V Dicey was a famous Oxford scholar and his traditional view has three main points that explain concept of parliamentary sovereignty

1. Parliament is Sovereign

• parliament can make or unmake any law on any subject without legal constraints.

• means that parliament is the highest source of English law and has the right to make, unmake override, or set aside any existing legislation

• the reason for this poor is that parliament is democratically elected

• parliament has absolute and unlimited power, and an act of parliament can overrule nay other source of law

2. No parliament can bind another

• no parliament can bind another and an act of parliament can be reapealed by the next parliament

3. no act can be challenged

• no act can be challeged by a court nor its validity questioned. this means that, even if it were alleged that an act had been passed by fraudulent means, it has to be upheld by the courts

• it cannot be overruled by another’ arm of the state’. the only way to challenge the action of ministers, r any other law makers, is through judicial review, which is dealt with by the kings bench division of the high court

PLM. what are 3 threats to Diceys theory of parliamentary sovereignty?

membership of the EU:

• EU law overrides any UK law made before or after the UK joined the EU in 1972. However, since the 2016 Brexit referendum result, it remains to be seen how EU law will continue to influence UK

• not as applicable anymore

human rights act 1998

• the HRA 1998 made it a legal requirement that all public authorities must behave in a way that does not infringe on human rights

• this means that under S3 judges have to interpret every act of Parliament in a way that upholds human rights

• if the law abuses human rights, they have to declare it incompatible under S4 and send the law back to parliament to change.

devolution:

• there have been changes to the UK constitution through devolution. the formation the welsh parliament, Northern Ireland assembly and the Scottish parliament have had an impact on parliamentary severest because these devolved institutions can now make laws sometimes without the approval of the UK parliament.

PLM. what are the three components of the rule of law proposed by Dicey?

Dicey was also responsible for the second theory that underpins the UKs unwritten constitution, rule of law has three components:

1. no sanction without a breach

• no one should be punished unless they have broke the law

• this means that there should be proper legal procedures and that all law should be public and cannot be secret

• no law should have a retrospective effect, new law doesn’t apply to past events

2. one law should govern everyone

• everyone (including gov) is equal before the law

• diceys idea was that court proceedings, the judicial mechanisms controlling society, would apply to the citizen and to the gov and public bodies. however some institutions of the state, such as police, are given more powers than citizens to enable the state to function

3. right of individuals are secured by decisions of judges

• this engages with the idea of judicial precedent, which is the highest courts can make a decision in a case which then has to be followed by the lower courts. in this way no new legal principles are created

• although most modern laws are created by acts of parliament and delegated legislation, judicial decisions still do create law

PLM. what are problems with Diceys theory of the rule of law?

Diceys theory conflicts with the principle of parliamentary supremacy, the acknowledgment that parliament has the right to make or unmake any law, including granting arbitrary power to the state. this is exactly the sort of arbituary power