Law

Parliament

House of lords- Appointed to their seats. Often have great levels of expertise. They can suggest new legislations and attempt to make changes to proposed legislations. The parliament act 1949 reduced the delaying power to only 1 year. The House of Lords act 1999 removed all, but 9 of the hereditary peers.

• House of Commons- consists of 650 MPs who are elected to seats. Elections take place at least once every 5 years

• The crown- Provides royal assent to all acts of parliament. Since Royal ascent act 1967 the monarch only receives the short title of a bill

Why join a political party as an MP?

• Party with the most votes wins

• As the parties want to be in government, they will help their candidates by paying for election materials

• Each member has their own vote in their constituency, whoever wins over 50% of the vote in each gets the seat.

The whip-

• In return for helping Mp’s get elected, parties expect them to vote with the party in the house of commons.

• The most severe whip is a 3 line whip, if you vote against a three line whip you will be removed from the party.

• Free votes - MPs can vote according to their own conscience and not on their party’s views- whips aren’t used.

Manifesto-

• A promise to the public made by a party if they get elected

• People vote for manifestos and so the government have a mandate to enact them

The separation of powers-

• The legislative, create the law. For example, government, house of commons, house of lords

• The Executive, enforce the law. For example, Government, civil service, police

• the Judiciary, apply the law. For example, Judges

  Lord Halishams view on separations of powers is that “ the weak seperation of powers, where the government forms part of the executive and the legislative means we are in an elected dictatorship”

Law making Process

Bills= Draft bill before it becomes an act; drafted by parliamentary council to the treasury: this ensures the bill achieves the proposers intent.

Types:

Public- Most frequent and effect the country at large.

Private- Bills that affect one identifiable group or corporation.

Private members- Bills that are introduced by a single MP.

1. First Reading- Formal procedure, name/aim read out. Usually no vote/discussion

2. Second reading- Main debate, MP’s debate main principles of bill. Vote takes place at end end debate, majority required for it to proceed.

3. Committee stage- A committee of 16-50 MP’s , with an interest or knowledge about the area, they scrutinize smaller details. Also can propose amendments.

4. Report stage- Committee reports any amendments to rest of the house. House debated any further change, amendments can be added, majority vote needed.

5. Third reading- Usually a formality, will be further vote if 6 MP’s request it.

6. Other house- The bill is then sent to other house. The house of lords can only delay legislation for 1 year following the Parliaments act 1911/49. They do not delay manifesto commitments.

7. Royal ascent- The king only receives the short title of the bill following the Royal Ascent Act 1967. The king realistically has no say in passing the bill.

Delegated legislation

DL- Parliament delegates its powers to others. However, parliament remains supreme law maker and can remove them at any time. Parliament delegates by an enabling act. An example is the Policing Act 1984.

Why do we need delegated legislation?

• Parliament does not have time to consider every possible law

• Parliament lacks expertise

• Delegated legislation, especially orders in council, can be made much faster than normal laws , allowing for timely responses to urgent issues and changes in circumstances.

Orders in council- Made by king with the advice of the Privy council ( made up of former and senior politicians) . They do not require government votes, used to: transfer responsibility between government departments, establish detailed regulations under existing laws, and respond swiftly to emergencies without the lengthy parliamentary process (Civil contingencies act 2004). In 2003, order in council was used to alter the Misuse of Drugs Act 1971.

Statutory Instruments - Rules and regulations created by Government ministers. Secretary of States head up departments and can make regulations in relation to these; for example, The Minister for Work and Pensions can make regulations on work-related matters such as health and safety. Some instruments are very short (increasing minimum wage, whereas others are long, technical and detailed). Police's codes of practice are altered by statutory instrument, enabling act: PACE 1984.

Bylaws - made by local authorities and public corporations by-laws are usually made under the local government. Miscellaneous provision at 1982 for local authorities.

Parliamentary controls/ Judicial controls

Prior to enabling act-

• Approval of the parent act- Before any DL is made parliament must have approved it in the parent act; Parliament can clear parameters such as: Which government ministers can make the DL, the types of delegated law they can make whether consultation is necessary. Parliament can also repeal the act at any time.

After enabling act-

• Negative resolution- Statutory instruments are laid before parliament for 40 days, if no MP’s object they automatically become law. Most statutory instruments are negatively resolved.

• Affirmative resolution- Statutory Instruments do not become law unless specifically approved by parliament which will be noted in the parent act. For example, PACE 1984 requires approval to change the polices code of practice. Parliament can only approve or annul the delegated legislation- but prior to this the minister can withdraw it.

Scrutiny Committee- The joint committee on statutory instruments (commons) and the secondary legislation scrutiny committee (lords). Both committees only look at delegated legislations once its in force, but only consider technical aspects and will refer things back to parliament if the statutory instrument: Imposes a tax/charge; the SI applies retrospectively which was not provided for not provided for in the enabling act; the SI appears to have gone beyond powers in the enabling act; the SI appears to have made unusual or unexpected use of legitimate powers; it is unclear or defective in someway.

Judicial Interpretation

Reasons why its important-

Drafting errors (S20/S10 of the offences against a person act 1861)

New development in medicine of society (Royal college of nursing v D4SS)

Changes in meaning of language (DPP v Cheeseman)

Ambiguity- words can have several meanings

Broad definitions of terms are used (Brock v DPP)

What options of judges have-

1. The literal rule

2. The golden rule

3. The mischief rule

4. The purposive approach

The literal rule:

• Oldest rule in statutory interpretation

• Judges follow dictionary meaning of words

• They will follow the literal meaning of the law and they will do it regardless of how absurd it is

• “Repairing or relaying” is not the same as oiling or maintaining a track (Berriman v Northeastern railway co)

The golden rule:

Narrow approach-

“If the words are capable of more than one meaning, then you can choose between the meanings but you cannot go further.”

• Use literal rule first, if its unclear use the golden rule to choose the most appropriate meaning of an ambiguous word

• (R v Allen) - The word marry was interpreted to mean go through the marriage ceremony

Wide approach (public policy)-

“Where the meaning is clear but leads to an absurdity or a repugnance the court can modify the words in the act”

• The administrations of estates act 1925 was clear ‘sole issues’ should inherit property, but courts added the condition that when a person kills to inherit, they cannot inherit.

The mischief rule-

1. What did the common law say before the act

2. What did the common law not do

3. What’s parliament trying to get the law to do

4. How can we plug the gap in the law that we missed

   ex.

   Smith v Hughes- In private balconies, or a place viewable to the public via a window, is a public place for the purposes of the street offences act 1959.

The purposive approach -

• This approach goes beyond the mischief rule. The court is not just lookin at the meaning of individual words to see what the gap is. Instead they are looking at the overall intent of parliament

R v Register general, Ex parte Smith 1990-

(Adoption act 1976)

Mr. Smith had 2 convictions of murder, however he was mentally robust. But parliaments purpose was never to encourage/ facilitate crime so Mr. Smith did not receive records or meet birth parents.

R (Quinta Valle) v Secretary of state

• Embryology and fertilization act 1990 law says you cannot test on fertilized embryos

• New embryos created by other means were covered because it was parliaments intent to respect them all

Jones v Tower Boot Coe

• Purpose was to prevent racism in Race relations act 1976, therefore they were guilty of racism

Internal and external influences on interpretation-

Tort

Negligence

• Duty of Care

• Breach

• Factual/legal causation

Duty of care-

Robinson v Chief constable of west Yorkshire police

a) If any existing precedent exists, apply that

b) If not, reason by analogy (Darnley v Croydon NHS trust)

c) For novel situations, apply Caparo industries v Dickman

1. Was the harm reasonably foreseeable (Kent v Griffith)

2. Was the harm proximate in time, space and law (Bourhill v Young)

3. Would it be fair, just and reasonable to impose a duty of care (Hill v CCWYP)

Breach-

D needs to act as a reasonable person would have (Blythe v Birmingham waterworks co.)

What the reasonable person is not:

• A learner ( Nettleship v Western)

• Shares the defendants view (Vaugn v Menlove)

The court may add these factors to the reasonable person:

• The defendants age( Orchard v Lee)

• Professional qualifications (Bolam v Friern hospital management)

How to work out:

Known characteristics of claimant (Paris v Stepney borough council)

Adequacy of precautions (Latimer v AEC)

Knowledge of risk (Roe v minister for health)

Social benefit (Responsibility and heroism act 2015)

Factual causation-

• But for test - But for D’s actions (or inactions) would the harm have happened

• If no, factual causation can be established(Barnett v Chelsea and Kensington Hospital Management

Legal causation

• Was the type of damage foreseeable from the breach

• If yes, then legal causation can be established (wagon mound No1)

Occupiers Liability

Definition - A branch of negligence created by statute that holds property owners responsible for injuries occurring on their premises due to unsafe conditions.

Premises - Occupiers Liability Act 1957 S1(3)(a) - Any fixed or moveable structure , including buildings, fences, and any other installations that may present a risk to visitors.

• Occupier - Lord Denning, Wheat v E Lacon - A person with a sufficient degree of occupational control

• A defendant may have occupational control if they have legal ownership (Harris v Birkenhead corporation)

• If no one exercises control over a part of a premises its possible no one has occupational control (Bailey v Armes)

  What act applies-

• The occupiers liability act 1957 applies to lawful visitors - Section 2(2) OLA 1957, the defendant must keep visitor reasonably safe while on the premises.

• The occupiers liability act 1984 applies to trespassers

  How to establish if someone is a lawful visitor-

  If D does not fit into one of these categories then they will be an unlawful visitor

• Invitees

• Licenses-If someone exceeds permission they will become trespasser(The Calgarth)

  1. Express license

  2. Implied license (Lowrey v Walker)

• Contractual permission

• Statutory rights of entry

How is reasonable safety established in cases involving general adults-

• Reasonable safety is not complete safety (Laverton v Kapisha Takeaway)

• Slips, trips and falls caused by minor defects which have a foreseeable chance of causing injury do not prevent reasonable safety. (Dean and chapter of Rochester Cathedral v Debell)

• The duty is not indefinite and does not enable claims for pure accidents (Cole v Davies Gilbert)

How is reasonable safety established in cases involving children-

• Children are owed a higher standard of care - based on their age, (S2(3)(a) OLA 1957

• The occupier must guard against allurement (Glasgow corporation v Taylor)

• The occupier can expect parents to be responsible for their child (Phipps v Rochester corporation)

• When assessing foreseeability of harm, only harm needs to be foreseen (Jolley v London borough of Sutton)

How is reasonable safety established in cases involving workers-

• A worker must guard against ordinary risks of their job S2(3)(b)

• This does not extend to non incidental risks (Ogwo v Taylor)

What may limit an occupiers liability-

• C’s voluntary acceptance of risk, if C knows of the risk and accepts it - no liability S2(5) OLA 1957

• Exclusion notices, the defendant asks an independent contractor to fix a problem

• Passing liability to an independent contractor, excludes liability by agreement

  Liability can be passed if the defendant can show 3 conditions under S2(4)(b)-

  1. It was reasonable to subcontract the work(Hazeldine v Daws and sons ltd)

  2. The occupier checked the competence of the contractor (Bottomley v Todmorden cricket club)

  3. The occupier checked the completion of work(Woodward v Mayor of Hastings)

• Warning notices, puts up a warning notice to keep C reasonably safe

How does C exclude their liability with exclusion clauses-

• Residential occupiers are able to amend or exclude liability by providing oral/written warnings S2(1) OLA 1957

• Trades(Businesses) cannot restrict liability for death or serious injury from their negligence (S65 consumer rights act 2015)

How does the court use warning notices-

• Warning notices can satisfy the duty of care ‘in all the circumstances’ the claimant was kept reasonably safe S2(4)(a) OLA 1957

• If there’s an extremely dangerous risk their should be a specific warning (Roe v Mars UK ltd)

• But the occupier doesn’t need to warn against obvious dangers (Darby v national trust)

Remedies-

• Claimants can claim for personal injury and property damage

Defenses-

• Contributary negligence

• Volenti