The Need:. The legislative Process:. Pre-legislative Process:. New laws are required to meet challenging society as old laws become outdated. Judicial precedent can be inefficient – slow & undemocratic. Pressure groups on Govt to make new law.
The legislative Process:
- Consultative document – Govt view on issue put forward with proposals for reform.
- Parties are invited to comment and changes can be made to the proposals.
- Followed by a White Paper which is the firm proposals for new law.
How do we legislate?
Acts of Parliament.
Influences on law making:
2.Private Members Bill:
House of Commons (HOC)
House of Lords (HOL)
Green, Winged, Dragons, Fly, Slowly, Clockwise, Round, The, Old, Ruin.
The bill is introduced to the HOC – merely notifies the House of the Bill and it’s the subject matter. No debate.
The bill is explained by the Minister and followed by a ‘political’ debate about the principles of the bill, which is then followed by a vote.
This follows the second reading, where the bill is examined inclusive of the subject area – bill is scrutinised and amendments can be made.
This coincides with the report stage and makes a final debate about the bill in its amended form.
Any amendments will only be effective if agreed by HOC – major function of HOL is to invite HOC to reconsider. If agreement is not reached bill can be sent for royal assent after a year.
The Monarch gives approval of the bill.
(Control) Negative Resolution Procedure:
(Control) Affirmative Resolution Procedure:
(Control) Super-Affirmative Resolution Procedure:
(Control) LRRA 2006:
Statutory Instruments – rules, regulations and orders, issued by ministers, national in effect.
By Laws – issued in local authorities, local in effect.
Orders in Council – issued by the Privy Council, generally only used in emergencies.
(Control) Negative Resolution Procedure:
3.Orders in Council:
Void to Substantive Ultra Vires:
Void to Procedural Ultra Vires:
Void due to Unreasonableness:
Literal v Purposive Approach:
Intrinsic & Extrinsic Aids:
Rules of language:
1. Hears cases – to decide whether MS have failed to fulfil obligations under the treaties – E.g. Re Tachographs where the UK failed to implement a regulation on the use of Tachographs in road vehicles for the carriage of goods.
LAW MAKING INSITUTIONS:
2. Preliminary rulings – hears references from national courts for preliminary rulings on points of EU law under Art.234.
a) the interpretation of treaties
b) the validity and interpretation of acts of the institutions of the Union
c) the interpretation of the statutes of bodies established by an act of the council, where those statutes so provide.
When must a referral be made?
Council of Ministers:
Bulmer v Bollinger (1974) COA set out the approach for deciding if a discretionary referral should be made:
CASE: Van Duyn v Home Office (1974)
Effect of EU Membership:
Sources of EU Law:
*READ ADDITIONAL NOTES*
*READ ADDITIONAL NOTES*
Directives & Direct effect:
Vertical & Horizontal direct effect:
Treaty provisions can produce vertical direct effect if, they are “clear, precise and unconditional” leaving no discretion to MS as to implementation.
Stare Decisis – ‘stand by what has been decided and do not unsettle the established’.
Supports idea of fairness & provides certainty.
Where past decisions of judges creates law for future judges to follow. Higher courts bind lower courts and in some cases themselves.
Created by the ratio decidendi & referred to as ‘case law’.
Cases which illustrate stare decisis – Knuller v DPP and Jones v Secretary of State for Social Services (where despite regarding an earlier decision as wrong, refused to overrule using the practice statement, preferring certainty)
Accurate law reporting is essential for stare decisis to operate. Stare decisis can be avoided by distinguishing, overruling and reversing
Precedent that isn’t binding on the court but the judge may consider it and decide it is the correct principle and is persuaded to follow it.
Courts Lower in the Hierarchy:
R v R (1991) – the H of L agreed with and followed the same reasoning of the C of A when deciding that a man could be guilty of raping his wife.
Decisions of the Privy Council
since many of its judges are also members of the H of L’s, their judgements are treated with respect any may often be followed.
A-G for Jersey v Holley (2005) (PC) followed in R v James; R v Karimi (2006) by the C of A instead of following a H of L precedent.
Statements made Obiter
R v Gotts (1992) – CA followed obiter of HL in R v Howe(1987)
A dissenting judgement
Hedley Byrne v Heller & Partners followed dissenting judgements in Candler v Crane Christmas & Co (1951).
Decisions made by courts in other countries:
Re A (2000) Conjoined Twins; Re S Refusal of Medical treatment - American precedent
Ratio Decidendi & Obiter Dicta
Principles of law used to decide a case – ‘reason for deciding’.
Sir Rupert Cross: ‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’.
The part of the decision that forms the precedent for future cases to follow.
The remainder of the judgement. ‘Other things said’.
Judge in future cases does not have to follow but may be persuasive (Howe & Gotts)
Separating the ratio and obiter
More than one speech at the end of the case with different reasons for decisions (ration decidendi)
Hierarchy of the Courts
Precedent from an earlier case which must be followed even id the judge in the later case doesn’t agree with the legal principle.
Only created where facts are sufficiently similar and when decision was made by a court which is senior to (or in some cases the same level).
If point of law which has never been decided forms new precedent
Judge may look at cases which are closest in principle and use similar rules (reasoning by analogy)
Here, the judge has a law making role (creating new law).
Cases: Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation (1995)
Avoiding Precedent: Distinguishing
Court of Appeal & It’s OWN precedent:
Overruling: The court in a later case states that the legal rule in an earlier case is wrong. It may happen when:
- A higher court overrules a decision made in an earlier case by a lower court
- The ECJ overrules a past decision it has made
- The HL’s use the practice statement to overrule a past decision of its own.
Pepper v Hart (1993) overruling Davis v Johnson (1979)
Reversing: A court higher up the hierarchy overturns the decision of a lower court on appeal in the same case. E.g. the CA disagrees with a ruling of the high court/crown court and reverses their decision by coming to a different view of the law.
CA & Its own decisions
One division of the CA will not bind the other
Within each division, decisions are normally binding.
Young v Bristol Aeroplane Co Ltd (1944) – although there are limited exceptions.
conflicting decisions in past CA cases - can choose
a decision of the HL which effectively overrules a CA decision - CA must follow the decision of the HL
decision was made per incuriam
Denning tried to challenge the rule in Young’s case but in Davis v Johnson the court “expressly, unequivocally and unanimously reaffirmed the rule in Young”.
Justifications: there would be a risk of confusion and doubt if the CA was not obliged to follow its own past decisions. Although the HL’s needs power to review as it is the last court of appeal, the CA does not as their errors can be corrected by the HL’s.
Per incurium case examples:
Williams v awcett (1986); Rickard v Rickard (1989)
‘rare and exceptional cases’ that the CA would be justified in refusing to follow a previous decision.
Can also refuse to follow a past decision if the law has been ‘misapplied or misunderstood’.
because people’s liberty is at stake, R v Spencer (1985)
Distinguishing: The judge finds that the material facts of the case are sufficiently different for him to make a distinction between the case he/she is hearing and the past one. – He is then not bound to follow it. Balfour v Balfour (1919) & Merritt v Merrit (1971)
The Privy Council & Precedent
The Privy Council & Precedent
Decisions not usually binding but form persuasive precedent.
Usually follow decisions of the HL except where the point of law has developed differently in the country from which the appeal has come.
Unusual case = A-G for Jersey v Holley – PC refused to follow HL’s decision in Smith (Morgan James). CA in ELS then followed Holley rather than Smith because the decision was made by 6 law lords.
CA bound by HLs
CA is bound by the HL and ECJ. Can depart from HL decision in human rights cases where it is different from the decisions of the ECHR
Lord Denning: an avid champion of the view that the CA should not be bound by the decisions of the HL. (
Broome v Cassell & Co Ltd (1971) LD refused to follow the HL in Rookes v Barnard (1964)
Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank (Textiles) Ltd (1976) the CA refused to follow HL in Havana Railways (1961) which said that damages could only be awarded in sterling.
On appeal to the Lords they pointed out that the CA had no right to ignore overrule decisions of the HL. However the HL then went on to use the Practice Statement to overrule its own decision agreeing with the reasoning of Lord Denning.