Cavendish: AS Level Lawcard

Routledge-Cavendish

• Publisher: Routledge-Cavendish
• Year: 2010
• eBook ISBN: 9781135332938
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Cavendish Lawcards are complete, pocket-sized guides to key examinable areas of the law for both undergraduate and PGDL courses. Their concise text, user-friendly layout and compact format make Cavendish Lawcards the ideal revision aid for identifying, understanding, and committing to memory the salient points of each area of the law.

PART 1
SOURCES OF LAW/LAW MAKING

Introduction

ACTS OF PARLIAMENT

Law made by Parliament, ie the House of Commons, House of Lords and Monarch

DELEGATED LEGISLATION

Law made under the authority of Parliament, eg by government departments

JUDICIAL PRECEDENT

Case law, ie law developed by judges through applying rules laid down in previous cases

EUROPEAN LAW

Law made by the European Union and then applied in Member States

1 Legislation

‘Legislation’ refers to Acts of Parliament, or statute law.

Under the doctrine of parliamentary sovereignty (or supremacy), Parliament is the highest law-maker for the country, and in theory may make or repeal any law it wishes. In practice, however, membership of the European Union has placed some limitation on parliamentary sovereignty and, where there is a conflict, European law must be followed.

In addition, the Human Rights Act 1998, which came into force in October 2000, has had an impact on English law, as it measures our legal system against standards set down in the European Convention on Human Rights.

The passing of legislation

Proposals for legislation are put forward to Parliament in draft form as Bills. These fall into two main categories: Public Bills and Private Bills. Public Bills, if passed, will apply to the public as a whole and are usually introduced by the Government (Prime Minister and Cabinet) and so are called Government Bills. Alternatively, Public Bills can take the form of Private Members’ Bills introduced by individual Members of Parliament; these have little chance of success unless they receive Government support. Private Members’ Bills should not be confused with Private Bills, which affect only particular areas or people.

All new Bills must state whether or not their provisions are compatible with the European Convention on Human Rights. Before the Government introduces a Bill it may issue:

• 
  A Green Paper. This is a consultation document. The Government says what it wants to do and invites comments from interested parties. For instance, trade unions and business organisations might want to give their views if there was a proposed change to employment law.
• 
  A White Paper. This contains firm proposals for change and forms the basis of the Bill itself.

The passing of a Government Bill

Advantages of statute law

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  Bills can be thoroughly debated in both the Commons and the Lords.
• 
  Opposition parties and the House of Lords can act as a check on Government power.
• 
  Law is made democratically, ie by MPswho are elected representatives of the people.
• 
  Law can reflect community opinion and respond to issues of concern as they arise.

Disadvantages of statute law

• 
  Slow and elaborate procedure. Some Bills fail to become law because they run out of time.
• 
  A Government with a strong majority can ignore opposition and force controversial bills through.
• 
  Bills are often complex and so are difficult to understand and interpret.
• 
  Bills passed quickly in response to public opinion may be badly drafted and have undesired consequences.

2 Delegated Legislation

Under the doctrine of parliamentary sovereignty, Parliament is the highest authority for making law. However, it often delegates (ie, passes down) some of this authority to other bodies such as government departments and local authorities.

Such delegation is authorised by Parliament passing a Parent or Enabling Act. These Acts lay down a general framework of law and leave other bodies to add detailed rules when necessary. Examples of Parent Acts include:

• 
  Road Traffic Act 1988—gives power to the Department of Transport to make rules regarding safety on the roads and related issues.
• 
  Animal Health Act 1981—gives power to the Ministry of Agriculture to make rules concerning matters such as foot and mouth disease.

Statutory instruments	Orders in Council	Bylaws
Regulations and Orders issued by government departments, eg Motor Cycles (Protective Helmets) Regulations 1980 issued by the Departement of Transport.	Issued by the Monarch and Privy Council. Mainly used in times of emergency when Parliament is not sitting.	Issued by local authorities, eg 'no cycling' signs, or by other authorised bodies such as London Transport, eg ban on smoking on trains and the Underground.

Types of delegated legislation

Control of delegated legislation

Parliamentary control

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  Some Acts provide that statutory instruments must be ‘laid before’ Parliament before coming into effect. This may involve one of the following:
• 
  Negative resolution procedure. The instrument will become law unless Parliament votes against it within 40 days of its being laid before the House.
• 
  Affirmative resolution procedure. The instrument will become law only if Parliament votes in favour of it. This procedure is rarely used.
• 
  The Scrutiny Committee composed of members from both Houses of Parliament. It can recommend that Parliament reviews statutory instruments in certain circumstances, eg if it considers the authority of the Parent Act has been exceeded.

Judicial control

Courts can declare a piece of delegated legislation to be ultra vires, ie ‘beyond the powers’ given by the Parent Act. This means the delegated legislation in question can then be declared null and void.

Boddington v British Transport Police (1998)

A total ban on smoking in trains on the London to Brighton line, was held not to exceed powers ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• PART 1: SOURCES OF LAW/LAW MAKING
• PART 5: CRIMINAL LAW