OCR A Level Law Paper 2 Section A

what is delegated legislation?

parliament passes it’s power to another law making body as a form of secondary legislation. the three types are bylaws, statutory instruments and orders in council

what is a bylaw?

made my local governments/authorities to cover matters in their own area. if they’re broken, you get fined not jailed. examples include no dogs on the beach between may and september and parking restrictions

what is a statutory instrument?

rules and regulations made by government ministers under the authority of an enabling act (3000+ a year).

can be very short e.g minimum wage every year.

made in government departments e.g Department for Work and Pensions.

nade one of two ways: affirmative resolution procedure - parliament have to accept it or negative resolution procedure - automatically becomes law unless rejected within 40 days

e.g national minimum wage act and covid restrictions

what is an order in council?

the kind and the privy council have authority to make these.

it allows the government to pass laws without parliament - power comes from the Civil Contingencies Act 2004.

an enabling act must exist.

e.g in 2003, Misuse of Drugs Act 1971 - cannabis a class C. in 2008, amended to make cannabis a class B again

can change the number of judges in the supreme court

what is a private member’s bill?

tend not to become law. an MP from any house can introduce a bill. can be introduced in two ways

1. by ballot - 20 MPs are selected e.g David Steele introduced the Abortion Act 1967

2. 10 minute rule - any MP can make a 10 minute speech setting out their proposal for a bill

what is a private bill?

will change the laws for specific individuals or groups rather than the general public

usually promoted by organisations e.g local authorities

only 2 on average are promotors every parliamentary session

e.g national rail could promote a bill that allows them to build more tracks

what is a public bill?

known as government bills and most acts come from public bills.

introduced by government ministers e.g the Home Secretary introduced the The Illegal Immigration Bill

drafted by government lawyers

affect everyone or a large part of the country e.g The Disability Act

what is statutory interpretation?

judges use one of four methods to interpret the meaning of a word in an Act of Parliament

1. the literal rule

2. the golden rule

3. the mischief rule

4. the purposive approach

what is the literal rule?

judges use the plain, ordinary, dictionary definition of a word in an act, even if it leads to absurdity

e.g Berriman and Cheeseman

what is the golden rule?

judges begin with the literal definition, but if it leads to absurdity, they modify the meaning of a word.

narrow approach: two meanings of a word and they choose the most sensible

wide approach: can modify the meaning if there’s an absurd outcome

e.g Allen - narrow approach and Sigsworth - wide approach

what is the mischief rule?

comes from Heydon’s case (1584) and gives judges more discretion then literal and golden. judges look beyond the words of the act

1. what was the common law before the act?

2. what was the mischief not covered?

3. what remedy did parliament put in place?

4. what was the true reason for the remedy?

judges should interpret the act so it covers the gap in the law

what is the purposive approach?

modern approach and goes beyond the mischief rule.

judges try to interpret what parliament intended when making the act.

they use extrinsic and intrinsic aids to help find parliaments intentions

e.g Ex Parte Smith and Tower Boot Company

what are the disadvantages of the mischief rule?

1. are judges making laws? not respecting parliaments sovereignty etc

2. the royal college of nursing was a 3:2 decision showing its weak and may change in the future - uncertainty

3. time consuming to go through all stages

4. how do judges know what parliament were intending?

5. judges are deciding what the mischief is so are they deciding the end result before choosing with rule fits?

what are the advantages of the literal rule?

1. judges are respecting their role by only applying the law

2. the law is certain as the plain and ordinary meaning is used

3. quick and easy - cases are short and reduces delays

4. judges unlikely to make an error by trying to guess what parliament intended

what are the advantages of the purposive approach?

1. more flexible than the other rules and it’s the only one that considers parliaments intentions

2. can be used to protect the public and avoid absurdities like dangerous results

3. modern rule that’s popular amongst judges as it allows them to develop laws with society

4. can lead to justice which is what the law seeks to achieve

what are the disadvantages of the purposive approach?

1. judges may be going beyond their role of applying the law and are straying into law making

2. how can judges be certain about what parliament intended?

3. takes along time to find parliaments intention e.g looking through the Hansard

4. not clear with rule judges will use which creates uncertainty - makes it much hard for lawyers to defend clients as they don’t know what to expect

what are the advantages of the golden rule?

1. avoids absurdity of the literal rule

2. provides more flexibility than the literal rule as words can be modified

3. rule is limited and restricted to 2 approaches meaning judges are not acting beyond their role

4. the rule still follows parliaments intentions as judges do not go beyond the words

what are the disadvantages of the golden rule?

1. the rule is limited as judges can only modify words

2. very rarely used - not a popular choice

3. judges are limited - it’s difficult to modify words to fit with modern society - doesn’t allow development of the law

4. do judges decide the end result and then pick the rule that fits?

what are the disadvantages of the literal rule?

1. can lead to absurdity and injustice

2. doesn’t allow judges to develop the law as society develops

3. assumes acts are clear from errors

4. an old fashioned rule that’s barely used now

what are the advantages of the mischief rule?

1. wider approach than the literal and golden rule as it avoids any absurdities

2. clear structure to follow as there’s four stages a judge has to go through. this ensures there are no errors

3. greater flexibility - judges avoid absurdity as they interpret the law. it respects parliaments sovereignty as they’re not changing or making laws, only interpreting them

4. filling gaps in the laws protects the public - sets a precedent and makes the law certain

what is ratio decidendi?

the binding part of the decision - part that sets precedent for future judges

what is stare decisis?

literally translated “stand by what has already been decided”

judicial precedent - past judges have created law for future judges to follow e.g Dica

what is obiter dicta?

“other things said” - not binding bjt its persuasive so can be used in the future, but doesn’t have to be

Gotts used the obiter from Howe

what is a binding precedent?

must be followed in the future e.g R v R 1991

what is a persuasive precedent?

not binding but can be followed (obiter) e.g Gotts

what is an original precedent?

a decision made on a point of law that’s never been decided on before - no past cases with a similar legal point e.g Dica

what are the three ways to avoid precedent?

1. overruling - judges decide the last decision is wrong e.g Shivpuri overruled Anderton

2. reversing - judges can reverse the decision from a lower court e.g K

3. distinguishing - judges find factual differences between cases e.g Wilson and Brown

what are Practice Directions 3 and 4?

come from the case of London Street Tramways 1898 - the HoL (the now Supreme Court) must follow its past decisions - created certainty

in 1966, Lord Chancellor issued a Practice Statement - the HoL can depart from last decision “when it appears right to do so”

what are the 3 Young Expectations and Rickards?

the previous decision was made per incurian (in error)

the SC made a decision that overrules the CA decision - the CA must then follow the SC

if there are two conflicting CA decisions, the CA can choose which one to follow

Rickards: the CA will only be justified in not following a previous decision in “rare and exceptional cases”

how can the SC avoid precedent?

1. Practice Directions 3 and 4 - can avoid following own past decisions

2. distinguishing - finding factual differences

3. ECHR - judges can’t set a precedent that goes against human rights

4. the SC can overrule the decisions of a lower court or reverse their decision

what are the advantages of precedent?

1. certainty - helps lawyers advise clients (predictable)

2. flexibility - number of ways to avoid prevent - can update outdated laws

3. saves time - avoids law making in parliament

4. precision - system is consistent, precedent is clear (rule of law)

what are the disadvantages of precedent?

1. undemocratic - unelected judges are making laws

2. takes time - appeals can take years to get leave AND delays in court (70000 cases waiting)

3. illogical distinctions - distinguishing may be abused e.g Wilson - how do judges know this was not abusive and harmful sexual activity?

4. too rigid - escape routes to avoid precedent are limited and some are very vague. no flexibility with the law and cannot be easily updated to fit with modern society