Law_Making

E-TMA 02 The law making in the United Kingdom is very broad, and it can be made by statute law, which is the law created in Parliament by Delegated legislation, which law is created by subordinates of Parliament or even by the European Union. Law can also be made in the courts, as judges set precedents and interpret law in various ways which will then be binding in future cases. An Act of Parliament, also known as a statute, is a bill that has become law after being passed by parliament. A bill is a legislative proposal for a law which has to be passed by both the House of Commons and the House of Lords, and after being passed by both houses, it has to receive Royal assent before it can become a statute. For example, the “Crime and Disorder Act 1998” is an Act of Parliament. Delegated legislation, also known as subordinate legislation, is where parliament transfers its law-making authority to subordinates such as Government departments, local authorities or public bodies. This authority is granted when parliament feels under pressure in creating law, i.e. lack of time and therefore an enabling act of the Act of Parliament creates a framework of law, which then passes the authority of the subordinates to pass on the law. The courts may be called upon to interpret a statute if they feel that parliament has not been clear when writing an Act of Parliament. This can happen when a draftsman has left out some words when writing the Act, a broad term was used or when an ambiguous word or phrase was used. Therefore, it is then down to the judges to decide what parliament meant when writing the Act of Parliament. The concept of precedent is based on the Latin word “stare decisis”, which means stand by what has been decided. Once a precedent is set, it will be binding in future cases, only if the case is heard on a court of equal or lower status of where the precedent was created. If the court is of a higher status, the judge may not follow such decision but will still consider it. Since the UK joined the European Union the UK is bound by any laws set by the European Union. The doctrine, known as the supremacy of European law, was set in the European Court of Justice where it set the EU law must prevail over domestic laws. This means that if there is any conflict within a domestic law, the EU law concerned will be binding. Although this can sometimes seem undemocratic for the laws of the Member state who is affected as it contradicts the sovereignty of the Member state. It has to be done for the proper function of EU law. Judges can create law in courts. This can be done by precedent and statutory interpretation. Judges refer to statute, also known as Acts of Parliament, when hearing cases where the law is set. In some cases statutes may not be clear as some wording or phrases may be spelt wrong or even has an ambiguous meaning. When this happens, judges choose to interpret the statute following a set of rules. The three traditional rules of statutory interpretation are the literal rule, golden rule and mischief rule. The literal rules give the words of a piece of legislation their usual and general meaning when the word is not ambiguous. In Fisher V Bell [1961], the offence of offering for sale an illegal object was not committed as to display goods is an invitation to treat and not to offer. By using this rule, it can give a more certain result as parliament creates laws and not judges, but it can also end in a wrong result. In the golden rule approach, the word must be interpreted according to its normal or general meaning unless this creates an absurd result. In R v Allan [1872], the judge in this case decided that the word “shall marry” meant “shall go through ceremony” as if not this could cause bigamy. Using this rule, they may interpret the act in a different way than its original meaning but on the other hand it can adapt to new conditions in society. The mischief rule was established in Haydon’s case and stated that the judges should look at the law before the statute was created, look at the mischief it was trying to remedy and look that the remedy that parliament created. In Smith V Hudges [1960] (The Tapping tarts case), prostitutes were accused of soliciting on the street by tapping on the balcony window. It created that it shall be an offence to solicit on the street by any means. By interpreting a case by this rule, can give the judges more power to decide while it will be unjust as every judge has different ideas and emotions, but on the other hand the court would make the rule more just, fair and correct, a more human approach. Another rule of statutory interpretation is the purposive approach; this is an extension of the mischief rule which establishes the purpose of the statute in order to ascertain parliament intention. The judges may also refer to other words within the act to establish a decision; this is known as Rules of Language. There are three main rules of language. Ejusdem generis, if at least two words are followed by a general word, then the general word must be interpreted. The Expressio Rule, if the act states something specific does not follow its general word; the act will only apply to specific area and nothing else. And the Noscitar a socciis rule, words must be constructed in their own context. Judges can also refer to Intrisic or Extrinsic aids. Intrisic aids are when judges refer to wordings within the Act i.e. the use of marginal notes. Extrinsic Aids are where the judges use sources outside of the Act to refer to it, i.e. the use of a dictionary. A precedent is a decision made in a court. Every court must have a reason for the decision, which is referred as “ratio decidendi”. In some law cases there may by an “obiter dicta”, which means, something said only by the way. Usually a court indicates that if the facts were slightly different, they would make a different decision or they consider hypothetical situations and suggest solutions. Precedents are binding on any court of equal or lower status where it was decided, but a higher court is not bound to follow previous decisions. Is referred to a persuasive precedent, where the court has the choice not to follow a precedent but to consider it. Judges can also use a mechanism for avoiding precedents. This can be done by overruling previous decision, which can only be done in a higher court of where the precedent was set, or by distinguishing the precedent by stating that the case before the one they are hearing is different. Precedent can be flexible and enables the judge to change the law to reflect views of society. In some law cases, such as, R v R [1992] where the house of Lords used their authority to overrule an old common law which states that the husband cannot be charged of marital rape. The House of Lords decided that in today’s society husband and wife are of equal partners and therefore the rule is not acceptable in today’s society. A pressure group is a group whose purpose is to influence decision makers but do not actually want to become elected or become a political party. Pressure groups are narrower than political parties, they only concentrate on campaigning for issues they are concerned about and therefore pressurize the government to pass on a law in the field they are concerned about. Pressure groups are bigger in size than political parties, by this they have more influence to compel political parties to create or remove any legislation they consider is wide of the mark of their belief to society and the society they are representing. I.e. NUS (The National Union of Students) was founded to support students and make their lives while being a student easier and better. Pressure groups can also bring to the attention of the government local issues that they are not aware of. Sometimes the Government are not aware of issues in small residential areas, schools, hospitals etc... And this is when pressure groups come into force by gathering support from society and the people concerning the issue. A disadvantage of pressure groups is that they do not have the power to create laws or even making people create such laws. They can only campaign and protest about the issues they are concerned about but the outcome may not be of their interest. There are many sources involved in the process of law making, this includes courts decisions, European Law, pressure groups, Acts of Parliament and by the use of subordinate legislation.