In this report, I will start of by selecting a statute and will explain how the statute is differently influenced. I will later evaluate the law-making process both inside and outside of Parliament. Finally, I am going to conclude on the effectiveness of the law-making processes both inside and outside of parliament.
Brexit Bill
U.K. and European Union negotiators have reached an outline deal on the Brexit bill, the country will have to pay when it leaves, which is one of the key obstacles in their talks. Even if the plan still needs the confirmation of EU member states, U.K. Prime Minister Theresa May was expected to present the offer on 4th December when she meets European Commission President Jean-Claude Juncker. The EU was asking for at least 60 billion euros, while the U.K. has never put a number on it. EU officials have said that “any final figure would be covered to help the U.K. government sell the unpopular settlement to doubtful voters.”
Influences to the Brexit Bill
Parliament is the supreme law-making body in the United Kingdom, and can make or amend laws as they wish. Most ides for new laws and bills come from the government, as they are the ones who are elected to rule/govern the country to implement its political agenda. However, there ways in which the public may contribute and influence a change within the law; the main influences are: the Law Commission, pressure groups, and the media.
The Law Commission
The Law Commission is an independent, and permanent body set up by the Law Commissions Act 1965. Its role is to keep the laws of England and Wales kept checked up and also to suggest any changes where it is needed. It focuses on the codification of laws which already exist, and also focus on the repeal of obsolete law. Codification is bringing together all of the law on a particular topic in a single Act of Parliament. Repeal of obsolete law is when the Law Commission removes out-of-date, and old laws. The Law Commission has a full time staff headed by five Law Commissioners, and one of them is the Chairman. They mainly look over areas of law that were referred to them by the Government.
The Law Commission does not have any influence on the Brexit Bill.
Pressure Groups
Pressure groups are groups of people who have a similar interest/ideas in making changes in the law, and also to try influence government and parliament to pass laws on matters which interest them. The can range from a very small group of people to a large amount of people (near the millions). The may use many different ways to succeed in their influencing; they may do that by holing petitions, marches, demonstrations, strikes, or publicity operations which include advertising. There are different types of pressure groups and these include sectional, this sector focuses on promoting their members’ interests and ideas. Also, there are pressure groups and they focus on promoting a general belief or idea they came up as a group. Furthermore, insider groups focus on influencing the government ministers and official law-makers in order to achieve what they desire. Finally there are outsider groups, and due to them not having access to lawmakers, they use direct actions or barely legal ways to promote their ideas and beliefs.
UKIP (pressure groups) influenced the Brexit Bill by persuading some people to vote out of the European Union by only giving a speech about the good outcomes, and did not warn them about
The Media
The media is a wide term which covers the channels by which the information is reported. Commonly, the media spreads its news through TV, radios, newspapers and magazines. Nowadays media also uses a faster way to spread their news which is through the Internet and especially social media. All these forms of media are allowing to to inform the public and therefore allowing to represent and assist in structuring public opinions. The media and pressure groups have a very strong link between each other, due to this lawmakers in Parliament use social media to encourage engagement and the interpretations of view.
The media (newspaper) influenced the Brexit Bill by putting their own political views forward and convinced people to vote out such as the Sun, who have been supporting The Conservatives party. A source of media, like The Sun, who supports the same ideas as a party can help the party to increase the number of people who follow the same views.
Statutory Interpretation
The Purposive Approach
The case of Mr S. Wesson, who committed a robbery at a post office with a toy plastic gun, can be guided using the case of R v Bentham (2003) where in the act of a robbery the defendant had held his finger in his pocket to make the victim think that he was pointing a gun at him to intimidate him. The victim then appealed against a conviction for possession of an imitation firearm. Due to this a purposive approach had to be adopted. Purposive approach comes from the European Court of Justice, it reviews the legislation and it looks at the purpose of it as a whole. Also, the Firearms Act 1968 will apply because Section 17 of the Firearms Act 1968 Schedule 1 states “It is an offence for a person to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person.” Also Schedule 2 states “If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection unless he shows that he had it in his possession for a lawful object.” As result to this, Mr S. Wesson is to be found guilty for possession of an imitation firearm.
The Golden Rule
The case of Mrs T. Street, who killed her husband but wanted to claim his estate as she is named as the sole beneficiary in his will, can be guided by the precedent of Re: Sigsworth (1935) where the son (the murderer) would have inherited her estate, making him the beneficial party of the crime, there were no ambiguous words in the act, therefore the court did not agree to let a murderer benefit from his crime, so this led the court to decide that the literal rule should not be applied and therefore the golden rule was used to prevent the repugnant situation. The Golden Rule is an extension of the literal rule and it is only used when an unjust decision has been decided. This rule has two approaches: the narrow approach and the broad approach. In Mrs T. Street’s case a broad approach was utilised, it is only used when a word or phrase has only one meaning but exploiting the single meaning would lead to absurdity. As a result, Mrs T. Street should be found guilty because a criminal should never benefit from their crimes as it is absurd.
How influences affect the law making in Parliament
Pressure groups can affect the law making in parliament in a positive way because they can raise public awareness of an issue, for example “AllOut”, a pressure group who stands up for international LGBT (lesbian, gay, bisexual, and transgender) rights, mainly uses new media. They make YouTube videos, online petitions, and post content on social media to spread the knowledge of encourage people to stand up against injustice and abuse suffered by the LGBT. Additionally, large pressure groups could have a big membership, which politicians can do nothing about, for example, the National Trust, which represents two million members, are able to raise awareness of issues of importance to a large number of people. Finally, pressure groups have detailed knowledge of their interests to be able to put their points and ideas forward convincingly. On the other hand, pressure groups can affect the law making in parliament in a negative way because pressure groups may not be able to able to present an objective, balanced argument and may be biased. For example, the Father 4 Justice group in essence are doing their best to help the children of the family (the public). Additionally, members of a group may be prepared to use violence and criminal actions to put their views in the eye of everyone. For example, this include incidents such as when animal activists attacked scientific laboratories that experiment on animals, and therefore could threaten the workers and their families in order to put their views forward. Finally, some people who represent and support a pressure groups may represent only a small section of the population. However, if the pressure group is influential then they can still have a chance to change some laws.
The Law Commission can affect the law making in parliament in a positive way because they develop considerable legal, and political knowledge is not needed. The wording of their bills and their investigations are very accurate and therefore this results to their recommendations being well informed. This means that problems are avoided when the law is brought into force. Also, they are an independent body, which means that the Law Commission makes sure that the all law is being kept under review, and not just the areas the Government wants to put their focus on. Finally, a bill is drafted to be attached to the report written to the Government. This therefore allows the bill to be based completely on the Commission’s research, this results to the bill taking less time to be introduced into Parliament. On the other hand, the Law Commission can affect the law making in parliament in a negative way because a vast majority of their recommendations are not carried out. This means that the Government does not have to introduce any of the Law Commission’s proposals. Also, the Law Commission’s investigations of the law can be very time consuming, and therefore this could take them time to produce a report. Finally, Government does not have to consult Law Commission on changes to the law. Therefore, major changes are made without the benefit of the Law Commission’s legal knowledge and extensive research. As a result this shows the Law Commissions lack of power.
The media can affect the law making in parliament in a positive way because they can lead and raise public awareness, which is imperative for the Government to consider when making legislative reforms. Ultimately, the Government is answerable to the electorate, and fears the loss of the public’s support because this could mean that they may lose in an election. Also, the media’s raises Government attention of some matters, and assists the Government to know about the public’s concerns and ideas. For example, after the shooting of several pupils at a school in Dunblane in 1996, an anti-handgun pressure was set up and it was called Snowdrop Campaign. Several newspapers and TV channels assisted in increasing the awareness of Snowdrop Campaign in order for their beliefs to be heard by the Government and the public. This therefore allowed a legislation to ban handguns. On the other hand, the media can affect the law making in parliament in a negative way because some traditional sources of media are not neutral or equitable, such as newspapers because they can promote their own political views and other views as well. For example, The Sun originally supported The Conservative Party and reported favourably on the politics of the Thatcher Government. Finally, newspaper are businesses who are looking for profit, therefore this could mean that they may publish articles that will sell more copies rather than actually inform the public of threats or other issues. They can easily start a public panic over a matter that occurs very rarely but still manage to worry the public. For example, this occurred with the News of the World’s “Name and Shame” campaign.
How interpretations of statutes affect the law making in Parliament
The different types of interpretation of statutes can also affect the law-making in Parliament. The Literal Rule can affect the law making in parliament in a positive way because the parliament’s power is respected and the duty of the judges in a court is to put forward the law (made by the parliament) to the spectators attending the dispute. Also, another advantage of the literal rule could be that when you make decisions based on this rule, there can be issues with the law, so parliament can later pass an amending law (which is a law in process of changing by parliament). On the other hand, the media can affect the law making in parliament in a negative way because words with more than one meaning can refrain from using the rule effectively. Another disadvantage of a literal rule is that they presume that the form of the will be perfect. Moreover, the use of this rule can allow unjust results to conclude, as it is exemplified in the case of London and North East Railway v Berriman (1946), where the result was unfair harsh but according to the literal meaning of “relaying or repairing”, Mr. Merriman’s window was not entitled to compensation.
The Golden Rule can affect the law making in parliament in a positive way because It refrains unfair judgments to take place which can consequence to absurdity from the utilisation of literal rule. Another advantage for the golden rule is that it opens up a better chance to end up with the same outcome as the Parliament. Finally, it permits the court to select a more suitable definition of a word or phrase in an Act. On the other hand, The Golden Rule can affect the law making in parliament in a negative way because its use is unreliable, which prevents lawyers to advocate their clients to the best of their ability, this can as a result not give a full intel to the clients. Another disadvantage of the golden rule is that it can be viewed as oppressive due to the power being only granted to the judge on how to operate this rule. Finally, although the judges are able to escape the literal rule, they are still constrained in what they can do.
The Mischief Rule can affect the law making in parliament in a positive way because it is flexible as it allows the law to be practiced as the Parliament wanted it to be used. Another advantage for Mischief Rule is that it evades the possibility of absurdity and unjustness. Finally, it has been authorised by the law Commission in 1969 over the literal rule and also the golden rule. On the hand, the Mischief Rule can affect the law making in parliament in a negative way because it is oppressive to grant too much responsibility to unelected judges, this can be a massive drawback because in some cases, judges renew the law, which is the parliament’s job. Another disadvantage of Mischief rule is that it is not always simple to spot the wrongdoings that the Parliament was meant to remedy. Finally, it is too old as it was formed in the 16th Century and therefore this means that the purposive approach is more suitable to use.
The Purposive Approach can affect the law making in parliament in a positive way because it reflects on the approach used by the judges in the European Union courts. On the other hand, this might be looked down on due to the referendum vote in June 2016. Another advantage of the purposive approach is that it follows what the same actions as the Parliament, and also apply a legislation similarly. Finally, its use prevents absurd and unfair outcomes to occur. On the hand, the Purposive Approach can affect the law making in parliament in a negative way because this gives a large amount of power to unelected judges which can be seen as an oppressive decision by the Parliament. Moreover in some occasions, judges have renewed law legislations due to the public decisions, therefore it is not up to the judges to conduct such an act but the Parliament.
Delegated Legislation
By-laws
Mr P. West was arrested for drinking in the local park. In 2001 Kestley Town introduced a by-law which banned drinking in public areas. By-laws are made by the local authorities to safeguard incidents within their own areas. By-laws are usually associated with traffic control, parking restrictions, or even banning alcohol in some streets. Moreover, by-laws can be put forward by public companies and organisations, for instance, railway companies can ban smoking in stations or/and on the train. By-laws are controlled the relevant government ministers, local authorities and companies. All by-laws are approved by the relevant Government Minister. For example, the by-laws formed by Hampshire County Council to regulate the employment of children (under the Children and Young Person Act 1933) were approved by the Secretary for Health. These Government Ministers make sure that every laws that are made locally are looked over by people with professional knowledge of the subject.
Statutory Instruments
Mrs. E. Porter was caught by the police using her mobile phone while driving through the local town centre. This is banned by Statutory Instrument No. 2695 – The Road Vehicles Regulation 2003. Statutory instruments are laws which are produced by government ministers to set out on a certain area under their responsibilities. Some statutory instruments could possibly be quite brief, like making the yearly minimum wage change. On the hand, other statutory instruments may be too complex with very developed rules that are over-complicated to put it in an Act of Parliament. Statutory instruments are controlled by Members of Parliament and Peers, this committee looks at all the statutory instruments and gets of the House of Parliament to the points of consideration.
Control on Delegated Legislation
After an Act is passed there will be checks from Parliament regarding the use of power within that act and if it is being used for the right purpose. These checks are processed through the following ways:
- Affirmative resolution
- Negative resolution
- Super-affirmative resolution procedure
- Questions
- Scrutiny committees
Affirmative Resolution
A Statutory Instrument will not be able to become a law unless it has the Parliament’s approval. For example, the Human Rights Act, Section 1 (4) allows the Secretary of State to make any kind of changes to the Act.
Negative Resolution
Negative resolution is when a statutory instrument becomes a law unless if parliament rejects its proposition within 40 days. All members of both Houses can bring forth a motion, known as a ‘prayer’. After that a vote and debate is carried out, therefore if either one of the Houses decides to pass the motion, the statutory instrument does not become a law.
Super-Affirmative resolution procedure
This procedure is only applicable when delegated legislation is under the control the power of the Legislative and regulatory Reform act 2006, where Parliament is given more power. The Act allows to give the government ministers a high amount of power to change Acts of Parliament as they wish.
Questions in Parliament
The responsible government ministers are to be questioned by the Parliament during a debate or Question Time. This procedure of control is allowing to grant publicity to delegated legislation because of the amount of media within the Parliament. Therefore, this can include questions regarding a proposed regulation they intend to bring forth.
Scrutiny Committees
Scrutiny Committees are selected by the House of Lords to analyse whether sections of a bill going through Parliament are used appropriately and fairly. Moreover, they can carry out checks on bills and they review all statutory instruments to then draw the Houses of Parliament’s attention towards parts which need consideration. The main reason to send back statutory instruments to Houses of Parliament is to:
- Enforce a tax or charge, which can only be done by an elected body within the Parliament
- Have a reflective outcome that was not provided by the enabling Act
- Control the legislation when it has gone beyond the powers given under the Enabling Act
- Sustain unusual use of delegated legislation
- Remove or rectify any unclear or defective parts of the bill.
Regulations
Article 288 of the TFEU allows the EU to be capable of issuing regulations; regulations official in each regard and specifically appropriate in every Member State. This implies that regulations, similar to treaties, have an impact and can be depended on by a person in a UK court. They automatically progress toward becoming law in every Member State, which don’t need to pass their own particular laws to provide for them. This was tested in Re Tachographs: Commission v UK (1979), where the wording of Article 288 was explicit, which implied that regulations were automatically law in all Member State and the UK had to enforce the installation of tachographs.
Directives
Article 288 of the TFEU allows the EU to be capable of issuing directives. Directives allow each Member State to choose how to introduce a law at its full potential to accord with directives, this allows laws to be dependable all around the European Union. Directives have been put forward in fields like: employment, health and safety, and consumer law. However, if a Member State fails to announce a law, this can lead to paying compensation to a body who has lost money due to the failure. This is seen in the case of Francovich v Italian Republic (1991), where the EU state was to pay the compensation to a person who suffered loss because of the Member State failing to introduce an EU directive into their national law.
Decisions
In the European Union, a decision is a lawful mechanism which is official to the targeted. They are one of three sorts of lawful instruments which are very likely to be affected under EU law which can have reasonable restricting impacts on some people. Decisions may be targeting Member States or individuals.
Impact of EU laws on the UK
When the UK joined the EU, all Member States exchanged their sovereign lawful rights to the EU. No Member State can depend on its own law when it is in conflict with EU law. This rule has been as a result since the UK joined the EU in 1973 and was one of the principle worries of the Brexit campaigners in the 2016 referendum to leave the EU. While the UK remains in the EU, the EU has supremacy over UK law. Furthermore, one of the significant impacts of the European law to English legal system is on direct applicability or direct effect. For example, the British constitution builds up that parliament is sovereign. This implies no other law in Britain that are above laws made by the government. Relative to its sovereignty, Parliament is the most elevated legislative authority in UK, but no one, except Parliament, can make law, also no court in UK can limit Parliament’s law making capacity. Parliament can make whatever laws it needs, and the courts must apply that law, Parliament’s sphere of legislation has no boundaries; it can administer on any matter of its picking (E.g. retrospective legislation) and no parliament can bind a future Parliament. Consequently, Parliament can make or cancel any law it chooses, and the courts must authorise it.
Conflict
An example of a conflict between the EU law and the UK is when EU law altered the way English legal system approaches the rights of United Kingdom citizens. Essentially, the areas affected include those dealing with rights of the employees, female workers and children. For example, in the case of R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994), the House of Lords found that parts of the Employment Protection Act 1978 were conflicting with European Court law on equal treatment for male and female employees, because the Act gave part-time workers fewer rights than full-time workers. Another example of a conflict is when the European Court of Justice stated that national courts were going to ignore any national law that had opposing ideas to European law. Therefore, it is clear that the European law has made the English legal system to become less efficient because it cannot make its own decisions without considering the legal provisions designated by the EU laws on certain issues. Any doubt as to the primacy of European Court law over national law was resolved by the European Court of Justice in Costa v ENEL (1964). The primacy of European Court law controls the domestic law where it is punitive in nature, therefore this led the English legal system making a defence of reliance on European Community law.
Evaluation
Law-making inside of Parliament
Law-making in Parliament can have positive outcomes. The first advantage of parliamentary law-making is that it is democratic, this means that MPs in the House of Commons are democratically chosen to make laws. Throughout the debates on the suggested law, each MP should have the chance to express their view of his/her components. Members of the House of Lords are not democratically elected, therefore they are not able to ban or reject a bill that has been approved by the House of Commons. Another advantage of parliamentary law-making is that it is under the Government’s control, this means that it controls parliament’s timing for debates and has a higher chance of winning at each voting stage of the process, however if its own MPs vote against them they may lose. Also, a government minister who announces the bill to Parliament has a considerable understanding in the field of responsibility and the support of a civil service department. Finally, parliamentary law-making is flexible, which means that it is not just the Government that has the power to propose new laws, but MPs and Lords have the power to do so as well. This could help when the Government has not looked over a certain issue, or when it does not want to be conducted into introducing a disputed legislation. An example of this could be the Marriage Act 1994, which permitted marriages to be held in places apart from in churches and registry offices.
On the other hand, the down side of making law within Parliament is that the Government still has control over the Parliament and allows little time for private members’ bills to form. The Government has too much power over others, due to its capability of bypassing the House of Lords by putting into effect the Parliament Acts. Another disadvantage of parliamentary law-making could be that it is very time consuming, this because of the bill which has to go through the legislative stages, which can take months and therefore important legislations will take time to come into force. Finally, when making a bill, the people making the bill use ambiguous words (words that have more than one mean), and this is a disadvantage because 75% of the cases heard are about interpretations of words.
Law-making outside of Parliament
An advantage of making law outside of parliament is that it does not go through a long process, and therefore can be very helpful in emergencies, this is because it does not follow the Parliamentary procedure, which would not be ideal in cases of emergencies. Additionally, those with law making knowledge can help form and take part to legislation, nonetheless, Parliament still has a bit of control over the construction of the law. For example, local councils have a better knowledge of the local residents. Bristol City Council has many by-laws regarding the Clifton and Durdham Downs. Furthermore, there is some form of parliamentary control over delegated legislation. Within Parliament, statutory instruments are enforced to affirmative or negative resolutions or are scrutinised by the Scrutiny Committee. Finally, delegated legislation is democratic to an extent, this is because government ministers are elected and they hold the responsibility for issuing statutory instruments and approving by-laws.
On the other hand, laws made outside of Parliament are made by elected Parliament members. Also, there is very little publicity for the making of laws outside of Parliament, this means that a vast majority of laws that are being made are not being put out for the public to be aware of it. Additionally, there is no effective control, this means that many of the parliamentary controls are restricted in effect. For example, not every statutory instruments are enforced to an affirmative or negative resolution, and these may be ignored. Finally, law-making outside of Parliament could be undemocratic to an extent, this is because delegated legislation is not debated by Parliament, unless statutory instruments enforce to the affirmative resolution.
Conclusion
In my opinion, I believe that
parliamentary law-making is more appropriate than delegated legislation. This
is because the legislative process (which is passing a bill through the House
of Lords and the House of Commons, and finally getting Royal Assent) is very
accurate but time consuming. There are several circumstances for debates,
amendments, and making sure that any mistakes can be rectified, this is due to
the three readings and two stages in each Houses of Parliament. Whereas
delegated legislation contradicts the separation of powers, this means that
delegated legislation stands against the principles of separation of powers.
Under this principle, there are three sectors of power: the executive, the
legislature, and the judiciary.
Bibliography
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