1. LAW OCR UNIT 2 – G154 -Judicial Precedent - Acts Of Parliament - Delegated Legislation -Statutory Interpretation - European Law -Law Reform

2. The First Reading is the formal procedure where name and main aims of the Bill are read out. There will be a vote on whether House wishes to consider the Bill further. The vote may be verbal: this is when the Speaker of the House asks the members as a whole how they vote and members shout out ‘Aye’ or ‘No’. If it is clear that all members agree either for or against then there is no need for a more formal vote. However if unclear then there will be a; Formal vote in which the members of the House vote by leaving the Chamber and then walking back in through one of two special doors on one side or the other of the Chamber. The tellers count the votes for and against and declare the numbers to the Speaker in front of members of the House. The Second Reading is the main debate on the whole Bill, where the MPs debate the principles behind the Bill. The debate usually focuses on the main principles as oppose to smaller details. MPs cannot speak unless they are called upon by Speaker. At the end a vote is taken in same way as for the first reading; there must be a majority for the Bill to progress further. At the Committee stage a Committee of 16 to 50 MPs examine each clause of the Bill in detail. It is usually called a Standing Committee and the Committee is chosen specifically for that Bill. Membership of the above Committee is decided ‘having regard to the qualifications of those members nominated and to the composition of the House. Even though the Government will have a majority, the opposition and minority parties are represented proportionately to the number of seats they have in the House of Commons. MPs nominated for each Standing Committee will usually be those with a special interest in, or knowledge of the subject of the Bill being considered. For Finance Bills the whole House has to sit in the Committee. The Legislative Process

3. During the Report Stage the Committee report back to the House and inform the House as to whether various clauses in the Bill may have been voted on and passed at the Committee stage. (If no amendments were made at the Committee stage, there will not be a Report stage, the Bill will go straight to Third Reading). The amendments will be debated in the House and rejected or accepted. Further amendments may also be added. The Report stage is a safeguard against a small Committee amending a bill against the wishes of the House, and an opportunity for second thoughts. The Third Reading is the final vote on the Bill, almost a formality to pass. In the House of Commons there will only be a further debate on the Bill if at least 6 MPs request it. However in the House of Lords amendments may be made at this stage. If the Bill started in the House of Commons it is now passed to the House of Lords. It will go through same 5 stages outlined above. If the House of Lords decide to make amendments then the Bill will go back to the House of Commons for it to consider the amendments. If the Bill started in the House of Lords then it will pass to House of Commons. Royal Assent is the final stage where the Monarch formally gives approval to the Bill and it becomes an Act of Parliament. It is now a formality under the Royal Assent Act 1961. The last time a monarch refused assent was in 1707, when Queen Anne refused to assent Scottish Militia Bill. The Legislative Process

4. Legislation Be able to describe the different stages of a Bill in correct order Don’t forget to say – usually starts in HC, then repeated in HL before RA If there is conflict, HC may steamroll HL using powers in Parliament Acts 1911 and ’49 Some examples: War Crimes Act 1991, Hunting Act 2004, Sex Offences (A) Act 2000

5. Different bills You may be asked about different types of Bills: Public / Private Members Private 10 minute rule Be able to briefly describe

6. Influences on leg You may be asked about influences on leg: Pressure groups EU law Government manifesto World events Law reform bodies Be able to describe briefly each one, with examples

7. Evaluation You may be asked to evaluate the process: Complex language over-complicated, tries to provide for every issue Illogical structure Difficult to follow later amendments Complex commencement dates Difficult for citizens to know law Give examples where appropriate!

8. Parliamentary Sovereignty/Supremacy Dicey’s definition Explain each part Effects of EU law Effects of HRA ’98 Does PS still exist? Is it limited /undermined while we remain in EU and while we have HRA? Remember these are 2 different things!

9. Delegated Legislation 3 types: SI, bylaw and O in C Be able to describe who makes each one and when SI – Govt ministers for their department, 15 depts, 3-4000 made p.a. e.g. health, transport, police powers Bylaw – local council, LU, BAA e.g. parking, rules on trains O in C – Q &PC (PM, senior gov and ex gov ministers) – emergency, bringing some EU and Acts into force

10. Del leg - evaluation Needed in increasingly technical and complex society : Saves time, expertise (technical etc), local knowledge, wider consultation, easily amended/updated – expand on these points with examples Hard to control, made by non-elected bodies (excluding bylaws), sub-delegation, huge volume, lack of publicity, made in private, complex wording – again, expand with examples

11. Control by Parliament Parent act – limits who can make del leg, when, what type, where for, who needs to be consulted Parl supremacy – P can repeal powers anytime Laying before P for either +ve or –ve resolution/approval (explain both sorts) Questioning ministers in P Scrutiny C’tees – there are 2: Delegated Powers C’tee– HL C’tee looks at parent acts to ensure power is delegated correctly Joint Select C’tee on SIs – HL/HC C’tee checks SIs to ensure they do not make taxes, are not backdated, go beyond powers or use powers oddly, are clear and not defective C’tees can only report to P, cannot amend LRRA 2006 – gives ministers more powers but introduced super- affirmative resolution for some SIs

12. Control by courts Anyone can ask for judicial review (in High Court) Court may declare del leg ultra vires and void Can be substantively UV (Fire Brigades case) Or procedurally UV ( Aylesbury Mushrooms or Nat Union of Teachers case) Courts will also presume del leg cannot be made : unreasonably (Strictland v Hayes BC; Assoc Picture Houses v Wednesbury Council – Wednesbury unreasonableness (a decision that no reasonable body would make i.e. clearly mad) Or to raise taxes Or where there is sub-delegation Or where there is conflict with EU law

13. Effectiveness of controls Parl cannot amend – can only approve annul or withdraw Many SIs are not seen by P Scrutiny c’tees can only report to P (guard dogs without teeth), cannot amend. JSC can review only technical issues, not policy matters Parent Acts sometimes give such wide powers that judicial review is not possible

14. Effectiveness continued A case is needed – expensive, time-consuming and people are often unaware of their right to challenge del leg Grounds for a successful challenge may be limited by wide parent act Court can only find del leg UV if it goes beyond powers, does not follow correct procedures or is unreasonable or conflicts with EU law

15. External /internal aids Internal – within act e.g. long/short title, preamble, headings, schedules, definition sections. Notes in margin not truly internal External – Hansard, previous acts, historical context of act, previous caselaw, dictionaries of time act was passed, Law Commission reports, international conventions Cases on Hansard– Davis v Johnson (Lord Denning – using H is like switching on light instead of groping in dark but disapproved of), Pepper v Hart, 3 Rivers DC v Bank of England – use mre when EU law is involved. Pepper v Hart – H may only be used when leg is ambiguous, obscure or literal approach leads to absurdity AND there is a statement in H by a minister that is clear and resolves the problem Law reform reports – Black Clawson International conventions – Fothergill v Monarch Air – use in case of translation problems Dictionary, stat instrument and international convention - Laroche v Spirit of Adventure – balloon is aircraft

16. Effect of EU law Judges must use purposive approach when English law is to interpreted in line with EU law Treaty of Rome (TFEU now) says that we must take all appropriate measures to ensure our EU obligations are fulfilled Use any EU case

17. Effect of HRA 98 Judges must interpret leg so as to comply with human rights law AS FAR AS POSSIBLE. Fitzpatrick v Sterling; Mendoza v Ghaidan – tenancy rights for same sex partners If it is not possible, judge will issue a “declaration of incompatibility” to Parliament, leaving P to deal with this e.g. Bellinger v Bellinger where HL decided that it was not possible to read English family law in a way that allows transsexuals to marry and that this was a breach of human rights. P then passed the Gender Recognition Act 2004

18. Presumptions Judges are entitled to presume that there is: No change in the common law unless P makes it clear ( Leach, CEA 1898, now amended by PACE 1984 where spouses may be made to give evidence against each other in crimes of violence) Mens rea is needed for criminal conviction Crown (monarch) is not bound by law Law does not apply retrospectively (will not be back-dates) Law applies to England and Wales Remember P can overturn these presumptions but must make clear it is doing so. Often used in small 5 mark scenarios

19. Rules of language Ejusdem generis – where there is a list of words and then general words, the general ones must be the same kind as those listed Powell V Kempton Park Racecourse (other betting place) Allan v Emmerson (theatres and other places of amusement)

20. Rules of language contd Expressio unius exclusio alterius – where there is a list not followed by general words, the act only applies to the list Tempest v Kilner (good wares & merchandise) Noscitur a sociis – words must be looked at in context Inland Rev v Frere (interest); Bromley Council v GLC (economic)

22. Check List LEGISLATION [Act / Statute] Must know facts: AO1 Who makes primary legislation o Composition of Parliament The 3 types of Bill – who makes / whom affect / Process of creating an Act – the 5 stages through each House of Parliament o Royal Assent / Power of House of Lords to delay o [Green & White paper] Supremacy of Parliament / primary legislation Pressures on Parliament to make new law [ in outline ] o Link with topic of law reform Must know thoughts: AO2 Advantages and disadvantages of primary legislation Be able to apply the above AO1 knowledge to factual problem scenarios DELEGATED LEGISLATION [Statutory Instrument / Bylaw / Order in Council] Must know facts: AO1 What delegated legislation is Why we have delegated legislation The 3 types of delegated legislation o who makes / whom they affect / examples of o Procedure for creating Control of delegated legislation by Parliament and by Courts Must know thoughts: AO2 Advantages and disadvantages of delegated legislation o [reasons have delegated legislation and criticism of delegated power] Advantages and disadvantages of control of delegated legislation By Parliament and by Courts [have controls to address criticism of delegated power to make law / are controls effective?] Comparison of process for creating legislation & delegated legislation Be able to apply the above AO1 knowledge to factual problem scenarios

23. MARK SCHEME EUROPEAN LAW

28. MARK SCHEME DELEGATED LEGISLATION

29. Exercise on Legislation and Delegated Legislation 1 (a)* Describe how an Act of Parliament is made with reference to Source A and your knowledge of legislation. [15] Potential answers MAY: Assessment Objective 1 – Knowledge and understanding [12] Describe the stages involved:  Green Paper – a consultation document  White Paper – a firm proposal  First Reading – laid before the House  Second Reading – the first major debate  Committee Stage – a clause by clause consideration of the bill  Report Stage – the committees amendments are reported  Third Reading – the final debate on the bill  Switch House and repeat – moves from the House of Commons to the House of Lords or vice versa  Royal Assent – a formality when the Bill is signed on behalf of the Monarch. Make relevant reference to the source. Responses which do not include pre-legislative process will be unable to achieve above 10 marks unless the detail is exceptionally good. Candidates will be unlikely to achieve Level 3 without all/most of the stages with some explanation. Candidates will be unlikely to achieve Level 2 without some stages w

30. Each of the following interviews was conducted by police officers and took place at a police station covered by Statutory Instrument 1991/2687 (Source B), but none of the interviews was tape-recorded. Explain the lawfulness of each of the following interviews: (i) On the 1st November 1991 Gemma was arrested for a summary offence (not serious) and was interviewed. [5] (ii) Carl was suspected of an indictable offence (serious) and was interviewed on 1st November 2000. [5] (iii) Hank was detained under section 14(1)(a) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and was interviewed in March 2000. [5] in the case of (i) recognise that the interview need not be tape recorded (CP). Discuss the reasons why there was no need to tape record the interviews as firstly the statutory instrument applies only to indictable offences and secondly that the statutory instrument has not come into force. Credit reference to the source. In the case of (ii) recognise that the interview should have been tape recorded (CP). Explain that it complies with the statutory instrument. The offence is an indictable offence and the commencement date has passed. Credit reference to the source. In the case of (iii) recognise that the interview need not have been tape recorded (CP). Explain that although the offence is an indictable offence under section 3(2)(a) there is an exception for terrorist offences. Credit reference to the source. Candidates will be unlikely to achieve Level 4 without identifying the Critical Point (CP) and two other relevant factors, an explanation and without linking to the source.

31. With reference to Sources A and B and using your knowledge of delegated legislation: (i)describe the three different types of delegated legislation. Describe the character of a statutory instrument:  they are generally introduced by Ministers of Government Departments under powers given in enabling Acts  they are introduced by either an ‘affirmative, negative or super affirmative resolution’ procedure  over 3000 are brought into force each year, give any examples eg Access to Justice Act 1999. Describe the character of a bylaw:  they are made by local authorities to cover local issues or by public corporations  they are mostly created under the Local Government Miscellaneous Provisions Act 1982. Use relevant examples of a bylaw eg dog fouling or London Underground banning smoking on the underground. Describe the character of an Order in Council:  they are drafted by government departments and approved by the Queen and Privy Council  power is granted by the Emergency Powers Act 1920 and is generally used in times of emergency, particularly war and when Parliament is not sitting  they are used to implement some EU law under the European Communities Act 1972. Give any example of an Order in Council. Make relevant reference to the sources.

32. discuss the advantages and disadvantages of delegated legislation. Advantages:  Discuss that delegated legislation saves Parliamentary time  Discuss how delegated legislation can utilise technical or specialist expertise  Discuss how delegated legislation benefits from local knowledge  Discuss how delegated legislation can be passed quickly  Discuss how delegated legislation is more flexible allowing Parliament to amend or revoke delegated legislation more easily than an Act of Parliament. Disadvantages:  Recognise that delegated legislation is based on an undemocratic procedure – a necessary evil?  Recognise that there is a lack of debate and lack of publicity  Show awareness that Parliamentary scrutiny of delegated legislation is limited  Discuss the problem of sub-delegation  Discuss the limitations of judicial review  Discuss the problems of volume – 3,000 SI’s alone. Make relevant reference to the sources

33. discuss the advantages and disadvantages of delegated legislation. Advantages:  Discuss that delegated legislation saves Parliamentary time  Discuss how delegated legislation can utilise technical or specialist expertise  Discuss how delegated legislation benefits from local knowledge  Discuss how delegated legislation can be passed quickly  Discuss how delegated legislation is more flexible allowing Parliament to amend or revoke delegated legislation more easily than an Act of Parliament. Disadvantages:  Recognise that delegated legislation is based on an undemocratic procedure – a necessary evil?  Recognise that there is a lack of debate and lack of publicity  Show awareness that Parliamentary scrutiny of delegated legislation is limited  Discuss the problem of sub-delegation  Discuss the limitations of judicial review  Discuss the problems of volume – 3,000 SI’s alone. Make relevant reference to the sources

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