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STATUTE LAW IN BRITAIN. Unit 3. Preview. 1. Introduction: statute, legislation, parliament 2. Common law vs. Statute law 3. Parliamentary sovereignty 3. Parliament: functions, composition 4. House of Commons: elections 5. House of Lords: hereditary peers, life peers

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preview
Preview
  • 1. Introduction: statute, legislation, parliament
  • 2. Common law vs. Statute law
  • 3. Parliamentary sovereignty
  • 3. Parliament: functions, composition
  • 4. House of Commons: elections
  • 5. House of Lords: hereditary peers, life peers
  • 6. Law-making procedure
  • 7. Types of bills
  • 8. Statute book
  • 9. Statutory interpretation
  • 10. Legal terms
  • 11. Exercises
statute definition
Statute: Definition

An established written law, especially an Act of Parliament

An express and formal laying-down of a rule or rules of conduct to be observed in the future by persons to whom the statute is expessly, or by implication, made applicable

parliament definition
Parliament: Definition
  • Elected group of representatives who form the legislative body which votes the laws of a country
legislation
Legislation
  • The process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process
  • Also: lawmaking; statute-making
  • Translation equivalents:
  • Zakonodavstvo; donošenje zakona
common law vs statute law
Common law vs. statute law
  • In today’s world: a need for new law to meet new situations
  • Precedent – not suitable for major changes to the law, nor is it sufficiently quick, efficient law-making method for a modern society
common law vs statute law1
Common law vs. statute law
  • Judges - not elected by the people
  • In a democracy, laws should only be made by the elected representatives of society
  • The main legislative body in the UK: Parliament
statute law
Statute law
  • Laws passed by Parliamnet: Acts of Parliament or statutes
  • 60-70 Acts passed each year
parliament
Parliament
  • The only body which has the right to enact a new law, or alter or reverse a law which Parliament itself has passed
  • Any law passed by Parliament which clashes with, or alters or reverses any part of the common law automatically takes precedence
the sovereignty of parliament
The Sovereignty of Parliament
  • Parliament is legislatively supreme and can make and unmake (=repeal) laws to any extent
  • Any Act passed by Parliament which is of general application is absolutely binding on all persons within the sphere of Parliament’s jurisdiction
sovereignty of parliament
Sovereignty of Parliament
  • However controversial a particular statute may be, a judge is bound to enforce its provisions, although there may be some scope for judges to interpret a new statute in a particular way
  • EU law takes precedence in the event of conflict with statute or common law
functions of parliament
Functions of Parliament
  • To pass laws
  • To provide, by voting for taxation, the means of carrying on the work of government
  • To scrutinise government policy and administration
  • To debate the major issues of the day
the british parliament
The British Parliament
  • The Queen
  • The House of Commons
  • The House of Lords
the house of commons
The House of Commons
  • Members of Parliament (MPs) – not members of the nobility but ordinary common people known as ‘commoners’
elections
Elections
  • The UK: 646 geographical parts: constituencies
  • At least once every five years a General Election is held
  • Those who wish to stand for Parliament are called candidates
elections1
Elections
  • The candidate who gets the most votes in a constituency is elected to become its MP
  • Most MPs belong to political parties (Conservative, Labour, or Liberal Democrat MP)
elections2
Elections
  • Candidates – voted for as individuals
  • If for instance a Labour MP resigns or dies while in office, another Labour candidate will not automatically take over; there must be a new election in this constituency (by-election)
elections3
Elections
  • Each political party – manifesto: a document setting out its aims and the policies it proposes to implement to achieve them
elections4
Elections
  • The party with an overall majority of MPs - asked by the Queen to form the Government
  • Prime Minister is appointed to lead the Government
  • He forms his Cabinet from the important members of his party
elections5
Elections
  • When no one party has a sufficient majority, or when a national emergency occurs, a coalition government may be formed by two or more parties temporarily uniting
  • The Cabinet forms its policies of government and turns to legislation as the means of carrying the policies into effect, e.g. The Local Government Act, 1972
the house of commons1
The House of Commons
  • Elected by universal adult suffrage
  • The chief officer of the House of Commons – the Speaker, elected by MPs to preside over the House
the house of lords
The House of Lords
  • Lords Spiritual
  • Lords Temporal
lords spiritual
Lords Spiritual
  • Archbishops of Canterbury and York and leading Bishops, representatives of the Church of England (26 in total)
lords temporal
Lords Temporal
  • Hereditary Peers
  • Life Peers
hereditary peers
Hereditary peers
  • Those whose titles are passed down from generation to generation
  • ‘peers by succession’ – they have succeeded to the titles of their ancestors
the house of lords act 1999
The House of Lords Act 1999
  • Hereditary peers lost the right to sit and vote in the House of Lords; 92 hereditary peers allowed to remain in the House for a transitional period
  • A small number have been made Life Peers
life peers
Life Peers
  • Peers for their lifetime; cannot pass their titles on to their children
  • Distinguished in politics, education, business, law, arts, etc.
  • Membership in the House of Lords: a wide range of highly talented people
the house of lords1
The House of Lords
  • Not able to change or delay any laws which relate to finance and taxation
  • Power to hold up legislation of which they disapprove for a certain period of time
  • Power to check, influence or alter legislation
parliament act 1911
Parliament Act 1911
  • If a Bill is passed by the House of Commons but rejected by the House of Lords twice in two successive years, it may immediately be presented to the Queen for her Assent without obtaining the Lords’ further approval
law making procedure
Law-Making Procedure
  • 1. Preparatory stage
  • 2. First Reading
  • 3. Second Reading
  • 4. Committee stage
  • 5. Report stage
  • 6. Third Reading
  • 7. Passage through the other House
  • 8. Royal Assent
preparatory stages
Preparatory stages
  • The government may initiate a consultative process by the publication of a Green Paper to attract public response and comment
preparatory stage
Preparatory stage
  • The government’s White Papers contain their more definite proposals; often published following consultation or discussion with pressure groups, professional bodies, or voluntary organisations
first reading
First Reading
  • The title of the prepared Bill is read to the House of Commons
  • Acts as a notification of the proposed measure
  • The Bill is printed and published
second reading
Second reading
  • The Minister or Member in charge of the Bill explains its purpose and the main issues of policy involved
  • The debate – limited to the purpose of the Bill and the means proposed for giving it effect
  • The House votes on the Bill
  • If the Bill survives the vote it passes to the next stage
committee stage
Committee stage
  • The Bill is dealt with by:
  • A) A committee of the whole House,
  • B) A select committee, or
  • C) A standing committee
committee stage1
Committee Stage
  • A Select Committee – constituted on a party basis, while a Standing Committee is composed of 20-50 Members appointed to examine Public Bills, which, after a second reading, are not passed to a committee of the whole House or to Select Committees
  • The purpose: to consider the details of the Bill clause by clause
the report stage
The Report stage
  • The committee reports back to the House, and any proposed amendments are debated and voted upon
  • The amendments made in the committee are considered by the House, which may make any additional amendments
third reading
Third Reading
  • A Bill is reviewed in its final form and may be debated again
  • The debate is confined to verbal amendments only, not the principles of the Bill
passage through the other house
Passage through the other House
  • After the third reading a Commons Bill is sent to the Lords where it has to pass all the required stages again
  • Amendments made by the second House must be agreed by the first, or a compromise reached, before a Bill can become law
passage through the other house1
Passage through the other House
  • If agreement is impossible, the Commons can invoke its powers under the Parliament Acts, 1911 and 1949 whereby it may present the Bill for Royal Assent after one year without the agreement of the Lords
  • A Money Bill must originate in the Commons and may be delayed by the Lords for one month only
royal assent
Royal Assent
  • When a Bill has passed through all its parliamentary stages, it is sent to the Queen for Royal Assent, after which it is part of the law of the land and known as an Act of Parliament
  • The Royal Assent has not been refused since 1707
royal assent1
Royal Assent
  • May be given by the Queen personally or by three Lords Commissioners
  • The Royal Assent Act, 1967, provides that an Act is duly enacted if the Royal Assent is notified to each House of Parliament, sitting separately, by the Speaker of that House
  • When Royal Assent is given, the Bill becomes an Act of Parliament and takes effect immediately
types of bills
Types of Bills
  • Public Bills – introduced by the Government
  • Private Members Bills – proposed by MPs
  • Private Bills – proposed by a local authority, etc.
public bills
Public Bills
  • Written by parliamentary counsel who specializes in drafting legislation
  • Presented to Parliament by Government ministers and change the general law of the whole country
private members bills
Private Members’Bills
  • At the beginning of a Parliamentary Session (a session lasts one year), the Cabinet lays down its legislative programme
  • It is still possible for a Private Member (i.e. an MP who is not a member of the Government) to introduce a Bill
private members bills1
Private Members’ Bills
  • If the Private Member’s Bill is of general importance and receives the suport of the House it may be adopted by the Government and so form part of its legislative programme
private members bills2
Private Members’ Bills
  • Relatively few Private Members’ Bills become law, but some important laws have been passed as result of such Bills: Matrimonial Causes Act, 1937, Murder (Abolition of Death Penalty) Act, 1965 Abortion Act 1967, Marriage Act 1994
private bills
Private Bills
  • Two types:
  • 1) Local
  • 2) Personal
local bills
Local Bills
  • Purely local matters
  • Where a local authority or other public body wishes to acquire additional powers not available under the general law, it may obtain them by the promotion of a private Bill
local bills1
Local Bills
  • Construction or alteratikon of bridges, canals, docks, ports, roads, railways, tramways, waterworks, etc.;
  • extending the powers of local authorities,
  • gas, electricity or other public utility undertakings
personal bills
Personal Bills
  • Relate to private estates, names, naturalization, divorce, peerage etc.
obsolescence
Obsolescence
  • Social conditions change
  • Some case law may therefore have to be disregarded on account of obsolescence
  • Statute law does not become obsolate on account of age
obsolescence1
Obsolescence
  • Ashford v. Thornton (1818): the plaintiff aserted that a right to trial by battle was available to him under a statute of Henry II
  • This long forgotten statute was repealed the year after its existence was revealed by the plaintiff’s application
obsolescence2
Obsolescence
  • The Treason Act, 1351, is still law despite its age, and was invoked in 1946 to prosecute a British subject broadcasting enemy propaganda during the Second World War (Joyce v. Director of Public Prosecutions, 1946)
obsolescence3
Obsolescence
  • Though statute law does not become obsolete by reason of age, there are some Acts which are so inappropriate that in practice they are not enforced: e.g. The Sunday Observance Act, 1677, forbids meetings of people out of their parishes on Sunday for any sports or pastimes
statute book
Statute book
  • All laws passed by Parliament which are still in force
  • There should be no conflict of meaning between a new statute and an old one
the state of the statute book
The state of the statute book
  • In theory the whole of the law could be set out clearly and logically in statutory form; decided cases would be useful only as interpreting the statutes, and important decisions could be incorporated by amendment
  • In practice: the same subject may be divided between many statutes and the same statute may contain bits of several subjects
consolidation and codification
Consolidation and Codification
  • A statute and its amending Acts can be gathered together into a single “consolidating” Act, but even a consolidation statute is unlikely to state the whole law on the subject
  • The process of setting out both statute law and common law is called codification
codification
Codification
  • Codification may mean a complete statement of all the law of a given State, and not, as in England, certain parts only
  • The French Civil Code, Germany, Switzerland
citation of statutes
Citation of statutes
  • 1) by the short title, which includes the calender year (e.g. The Fatal Accidents Act 1846)
  • 2) by the regnal year or years and the chapter (e.g. 9 & 10 Vict. c. 93)
  • 3) a compromise of the two (e.g. The Fatal Accidents Act 1846 (c. 93)
  • The chapter indicates the number of the statute
the parts of a statute
The parts of a statute
  • The main body of a statute is divided into sections, and sections may be divided into subsections
  • A subdivision following an opening part is called a paragraph
  • Subsections have a number in brackets while paragraphs have a letter in brackets
the theft act 1968 s 21
The Theft Act 1968, s. 21
  • “(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief –
  • (a) that he has reasonable grounds for making the demand; and
  • (b) that the use of the menaces is a proper means of reinforcing the demand.”
validity of acts
Validity of Acts
  • Parliamentary sovereignty precludes the courts’ questioning Acts of Parliament where there is no conflict with EU law
  • There is no written constitution against which the courts could test their constitutionality, as does the Supreme Court of the United States
interpretation of statutes
Interpretation of statutes
  • Statutes – drafted by Parliamentary draftsmen, who are lawyers skilled in this highly important work
  • Despite the care taken to ensure that statutes are clear and exact, in due time legal actions will arise on points of doubt and the courts will be called upon to interpret the meaning and to adjudicate
interpretation of statutes1
Interpretation of statutes
  • A statute usually contains an interpretation section which explains the meaning of words in that statute
interpretation of statutes2
Interpretation of statutes
  • Section 34 of the Theft Act, 1968, contains a definition of the words ‘goods’ as follows:
  • ‘For the purpose of this Act “goods”, except in so far as the context otherwise requires, includes money and every other description of property except land, and includes things severed from the land by stealing’
statutory interpretation reasons why the meaning may be unclear
Statutory interpretation: reasons why the meaning may be unclear
  • A broad term
  • Ambiguity
  • A drafting error
  • New developments
  • Changes in the use of language
interpretation of statutes3
Interpretation of statutes
  • The Literal Rule
  • The Mischief Rule
  • The Golden Rule
  • The Eiusdem Generis Rule
  • Expressio unius est exclusio alterius
  • Noscitur a sociis
  • The Exclusionary Rule
the literal rule
The literal rule
  • Words must be given their literal meaning
  • Words in old statutes are given the meaning they had when the statute was passed
  • Words appearing more than once must be given the same meaning throughout the Act
the mischief rule
The mischief rule
  • Also: the Rule in Heydon’s case (1584)
  • Lays down that the court must look at the Act to see what ‘mischief’ or defect in the common law the Act was passed to prevent
the mischief rule1
The mischief rule
  • Four questions:
  • 1. what was the common law before the Act was passed?
  • 2. What was the mischief and defect for which the common law did not provide?
  • 3. What remedy had Parliament resolved to provide?
  • 4. What was the true reason for the remedy?
the golden rule
The Golden Rule
  • ‘It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconveniance, but no further’ (Becke v. Smith, 1836)
eiusdem generis rule
Eiusdem Generis Rule
  • Where general words follow specific words, the general words must be construed as applying to the persons or things of the same class as those already mentioned
  • E.g. ‘dogs, cats and other animals’ – does not include tigers and lions, for ‘other animals’ includes domestic animals
expressio unius est exclusio alterius
Expressio unius est exclusio alterius
  • ‘the express mention of one thing implies the exclusion of another’
  • Where specific words are used in a statute and are not followed by general words, the statute applies only to those things mentioned
noscitur a sociis
Noscitur a sociis
  • The meaning of a word can be comprehended from its context
  • Ambiguous or doubtful words may be determined by reference to those words appearing in association with them
the exclusionary rule
The Exclusionary Rule
  • Excludes reference to parliamentary materials in interpreting an Act
  • If the Act is ambiguous or obscure, or its literal meaning leads to an absurdity, the court may have regard to the Official Report of Debates (Hansard) for assistance in interpreting the Act (Pepper v. Hart, 1993)
points to remember
Points to remember
  • Composition of Parliament
  • Types of Bills
  • Law-making procedure
  • Statute book
word formation
Word formation
  • Verb:
  • Donositi zakone:
  • legislate
  • Adjective:
  • zakonodavni
  • legislative
  • Nouns:
  • zakonodavac
  • legislator
legislation1
Legislation
  • “consists of the making of determinations which are issued to indicated but unnamed and unspecified persons or situations”
adjudication
Adjudication
  • The act of giving a judgement or of deciding a legal problem
  • Izricanje presude; sudska odluka; donošenje odluke
  • Verb:
  • adjudicate
  • Suditi; riješiti sudskom odlukom
legislation vs adjudication
Legislation vs. adjudication
  • “Legislation afffects the rights of individuals in the abstract and must be applied in further proceedings before the legal position of an individual will be touched by it, whilst adjudication opertes concretely upon individuals in their individual capacity”
activity
Activity
  • Look up a recent Act on the Internet. Try the website: www.opsi.gov.uk
  • Choose an Act and now search for the debates in Parliament on that Act (try www.parliament.uk)
reading on the internet
Reading on the Internet
  • Public Bills currently considered:
  • http://www.parliament.uk/business/bills_and_legislation.cfm
  • Recent legislation:
  • http://www.opsi.gov.uk/acts.htm
  • Government’s explanatory notes:
  • http:www.opsi.gov.uk/legislation/uk_expa.htm
exercise i
Exercise I
  • Find verbs that can be used to make word combinations with the words below. There is more than one possibility for three of the answers:
  • Amend, codify, consolidate, enact, pass, repeal, update
exercise i amend codify consolidate enact pass repeal update
Exercise I: Amend, codify, consolidate, enact, pass, repeal, update
  • Parliament can:
  • 1. _____ Acts of Parliament
  • Pass/enact
  • 2. _____new statutes.
  • Enact/pass
  • 3. ______existing legislation.
  • Amend/update
amend codify consolidate enact pass repeal update
Amend, codify, consolidate, enact, pass, repeal, update
  • 4._______obsolete law
  • repeal
  • 5. _______statute law, case law, and amendments into one Act.
  • codify
  • 6. _____law by repealing and re-enacting in one statute provisions of a number of statutes on the same subject.
  • consolidate
exercise ii
Exercise II
  • Replace the underlined words with the correct form of the following:
  • approve, Bill, debate, drafting, enshrine, introduce, propose, re-present, submit, undertake
approve bill debate drafting enshrine introduce propose re present submit undertake
approve, Bill, debate, drafting, enshrine, introduce, propose, re-present, submit, undertake
  • N: How is new legislation enacted?
  • C: Well, initially the (1) draft legislation has to be (2) presented to both houses. The draft is (3) discussed several times. A committee has the job of checking that the Bill (4) incorporates the fundamental elements (5) agreed at the second reading. After this, the Bill is (6) shown again to the lower house.
approve bill debate drafting enshrine introduce propose re present submit undertake1
approve, Bill, debate, drafting, enshrine, introduce, propose, re-present, submit, undertake
  • N: Who does the (7) formal writing of the legislation?
  • C: It’s done by qualified barristers employed as civil servants, known as Parliamentary Counsel.
  • N: Who can (9) put forward Bills?
  • C: The government and, less commonly, MPs.
answer
Answer
  • Well, initially the (1) Bill has to be (2) submitted/introduced/proposed to both houses. The draft is (3) debated several times. A committee has the job of checking that the Bill (4) enshrines the fundamental elements (5) approved at the second reading. After this, the Bill is (6) re-presented to the lower house.
answer1
Answer
  • Who does the (7) drafting of the legislation?
  • C: It’s undertaken by qualified barristers employed as civil servants, known as Parliamentary Counsel.
  • N: Who can (9) propose/introduce/submit Bills?
  • C: The government and, less commonly, MPs.
exercise iii
Exercise III
  • Use the following words to complete the sentences:
  • Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto
slide94

: Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 1. Germany has a federal ____.
  • constitution
  • 2. A government _____revealed that discussions had been concluded on the treaty.
  • spokesman
slide95

Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 3. According to the latest opinion ___the Prime Minister is more unpopular than ever.
  • poll
  • 4. Austria’s application for___of the EU was successful.
  • membership
slide96

Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 5. Many Welsh would like to see more ___of power from Westminster.
  • devolution
  • 6. Parliament has introduced ___to control the sale of drugs.
  • legislation
  • 7. The bill was passed by both ___and sent to the President for signature.
  • Houses
slide97

Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 8. The crisis happened during the summer___and Parliament had to be recalled.
  • recess
  • 9. The government is investigating the latest____of documents relating to the spy trial.
  • leak
slide98

Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 10. The government is running a tight monetary___to try to control inflation.
  • policy
  • 11. The___of the opposition criticised the Prime Minister for his failure to act.
  • leader
  • 12. The motion was carried by 200 votes to 150; there were 60_____
  • abstentions
slide99

Abstentions, budget, consensus, constitution, devolution, houses, leader, leak, legislation, policy, membership, poll, recess, spokesman, veto

  • 13. The President has the power of ___over bills passed by Congress.
  • veto
  • 14. There is a ____between all the major parties about what we should do now.
  • consensus
  • 15. The minister has put forward a ____aimed at slowing down the economy
  • veto
additional information
Additional information
  • www.parliament.uk
  • www.lexadin.nl/wlg/legis/nofr/legis.htm