Legislative Process PDF

LAW MAKING Case study/Case Law Summary of Notes - Acts of Parliaments: Most of our law comes from the UK Parliament, which passes hundreds of laws every year. - Parliament is made u...

LAW MAKING Case study/Case Law Summary of Notes - Acts of Parliaments: Most of our law comes from the UK Parliament, which passes hundreds of laws every year. - Parliament is made up of three institutions. - The three institutions that form Parliament: House of commons -The House of Commons is composed of elected officials known as Members of Parliament (MPs). -MPs must have won an election in the constituency they represent. House of Lords The House of Lords is composed of peers, who are NOT elected. There are three categories of peer: life peers (for example, Lord Alan Sugar) 92 excepted hereditary peers ° senior Church of England bishops. Monarch The monarch has to approve all laws passed by Parliament. - The Uk parliament is based at the palace of westminster - it consists of two debating chambers: House of commons and House of Lords - The third element of the uk parliament is the monarch, who is the head of state. - the role of the monarch is hereditary: it normally passes from the present monarch to their eldest child when the reigning monarch dies - all 3 parts of the parliament must approve acts of parliaments before they can become law KEYWORDS. LAW MAKING Case study/Case Law Summary of Notes - The first stage is often to consult relevant people via a Green and or White paper. - Green Papers: This is an intention to change the law and outlines the format this change could take. It is published on the Internet for the public to comment on and copies are also distributed to interested parties. These individuals will then comment and put forward suggestions on the proposal. - White Papers: Parliament will then publish a White Paper, which is a positive proposal on the format the new law will take. It often includes changes as a response to the opinions of the interested parties. There is then a further chance for consultation before the final Bill enters Parliament for consideration. - Bills: All Acts of Parliament begin as Bills- a draft law or a proposal for a change in the law - There are three types of Bill: Public Bills, Private Members' Bills and Private Bills. - Public Bills: A Public Bill involves matters of public policy that will affect the whole country or a large section of it. These Bills will sometimes reflect the manifesto of the government in power at the time. Most government Bills are in this category. Examples include: Children and Social Work Act 2017 Juries Act 1974 Finance Act 2017. - Private Members' Bills: These Bills are sponsored by individual MPs. At each parliamentary session, 20 members are chosen from a ballot to take their turn in presenting their Bills to Parliament. Relatively few Private Members' Bills become law, and the time available for debating them is very short. As they tend to cover issues that the individual MP is interested in, they also rarely reflect the government's general agenda. Examples of Private Members' Bills that have become law are: Abortion Act 1967 Marriage Act 1994. - Private Bills: A Private Bill is a law that is designed to affect only individual people or corporations. Examples include: University College London Act 1996 LAW MAKING- LEGISLATIVE PROCESS Case study/Case Law Summary of Notes - Legislative process: - Parliament Acts When a Bill is prepared, it is first presented to the UK Parliament 1911 and 1949→ and then has to go through a specific process before it officially Hunting Act 2004, becomes law. which outlawed the hunting of wild - The House of Commons can use powers under the Parliament Acts animals using dogs. 1911 and 1949 to make a law without the consent of the House of - Lords. This rarely happens but is an available option if the House of Lords cannot reach an agreement. - An example of the House of Commons using this power was when they passed the Hunting Act 2004, which outlawed the hunting of wild animals using dogs. 1) First reading: - The title of the prepared Bill is read to the House of Commons - acts as notification of the proposed measure. 2) Second reading: - This is the first opportunity for MPs to debate the main principles of the Bill. At the end of the debate, the House of Commons votes on whether the legislation should proceed. 3) Committee stage: - This is a detailed examination of the Bill where every clause is agreed to, changed or removed, taking into account the points made during the debates at the first and Second readings. 4) Report stage: - The committee will then report back to the House of Commons, and any proposed amendments are debated and voted upon. 5) Third reading: - This is a final chance for the House of Commons to debate the contents of a Bill but no amendments can be made at this stage. - There is simply a vote on whether to accept or reject the legislation as it stands. 6) House of Lords: - The Bill then goes to the House of Lords, where it travels through a similar process of three readings. If the House of Lords alters anything, the Bill returns to the Commons for consideration. This is known as 'ping pong'. 7) Royal Assent: The King must give his consent to all legislation before it can become law but, in practice, that consent is never refused and is always granted. The Bill is now an Act of Parliament and becomes law, though most TITLE Case study/Case Law Summary of Notes - The UK constitution: - The UK does not have a written constitution- it has no single legal document which sets out the fundamental laws outlining how the state works - Unlike in most other countries, there is no formal regulation of the organisation and distribution of state power - Countries which do have a written constitution include the USA, France and Germany. - We therefore rely on three key principles to underpin the UK's unwritten constitution: 1. parliamentary sovereignty 2. the rule of law 3. separation of powers. - Parliamentary sovereignty: -In its most simple form, Sovereignty is the principle of absolute and unlimited power. - An Act of Parliament can completely overrule any custom, judicial precedent, delegated legislation or previous Act of Parliament. - This is because MPs are elected by the voters in their constituency in a democratic process so each MP is participating in the legislative process on behalf of those voters. - Dicey's theory of parliamentary sovereignty: Dicey's principle that Parliament has absolute and unlimited power, and that an Act of Parliament over rules any source of law - Dicey’s view has three main points that explain the concept of parliamentary sovereignty. 1. Parliament is sovereign and can make or unmake any law on any subject without legal constraints - This means that Parliament is the highest source of English law and has the right to make or unmake any law, and to override or set aside any existing legislation. So, if Parliament decided that all dog owners also had to own a cat, there might be a public outcry, but the laws would still be valid and the courts would be obliged to uphold them. - The reason for this power is that Parliament is democratically elected and therefore has the upper hand when making the laws that every citizen has to follow. 2. No Parliament can bind another - An Act of Parliament passed by a previous Parliament can be repealed by the next Parliament. - No Act of Parliament is entrenched like the American Bill of Rights. 3. No Act can be challenged by a court nor its validity questioned - This means that, even if it were alleged that an Act has been TITLE Case study/Case Law Threats to Dicey's theory: - Dicey's theory of parliamentary sovereignty is outdated and does not reflect our current legal position because there are three significant erosions of parliamentary sovereignty. - 1. Membership of the European Union: - EU law overrides any UK law made before or after the UK joined the EU in 1972. - However, Since the 2016 Brexit referendum result, it remains to be seen how EU law will continue to influence the UK. - 2. Human Rights Act 1998: - The Human Rights Act 1998 made it a legal requirement that all public authorities must behave in a way that does not infringe our human rights. - This means that under s3 judges have to interpret every Act of Parliament in a way that upholds human rights. - If the law abuses human rights, they have to declare it incompatible under s4 and send the law back to Parliament to change. - 3. Devolution - There have been changes to our constitution through devolution. - The formation of the Welsh Government, Northern Ireland Assembly and the Scottish Parliament have had an impact on parliamentary sovereignty. Rule of law: - Dicey was also responsible for the second theory that underpins the UK's unwritten constitution. He said that the concept of the rule of law has three components: 1. No sanction without breach: - No one should be punished unless they have broken a law. This means that there should be proper legal procedure and that all law should be public and cannot be secret. - In principle, no law should have retrospective effect; that is, a new law should not apply to past events. - In our legal system actions of, and decisions by, government ministers can be challenged by judicial review. This element of the rule of law ensures that the state does not have wide discretionary powers to make arbitrary decisions. TITLE Case study/Case Law Summary of Notes Problems with Dicey's theory - The Constitutional - Dicey's theory conflicts with the principle of parliamentary Reform Act 2005- supremacy. This is the acknowledgement that Parliament has the created the Supreme court right to make or unmake any law, including granting arbitrary power to the state. This is exactly the sort of arbitrary power that the rule of law seeks to forbid. - Dicey also considered equality before the law. This is often compromised because the cost of taking legal cases to court is very high and so may not be accessible to everyone. Breaches of the rule of law: - some examples of allegations in which the rule of law was alleged to be breached Prisoners' vote: Conservative MPs proposed to ignore a ruling by the European Court of Human Rights (ECtHR) that gave UK prisoners the right to vote. Abu Qatada: The Human Rights Act 1998 protects people from torture, and Abu Qatada would have been tortured or received an unfair trial for terrorist crimes that he had allegedly committed if he had been deported to his home country of Jordan. In 2013, Abu Qatada left the UK after Jordan signed a treaty promising not to use evidence obtained by torture. Upholding the rule of law: There are also examples which show judges upholding the rule of law: The Constitutional Reform Act 2005: This Act recognised the rule of law and the importance of the independence of the judiciary. Section 1 Constitutional Reform Act 2005: this states that the Act does not adversely affect 'the constitutional principle of the rule of law or the Lord Chancellor's existing constitutional role in relation to that principle. Section 17(1) Constitutional Reform Act 2005: this outlines the oath to be taken by the Lord Chancellor to respect the rule of law and defend the independence of the judiciary. This is significant because this is the first time that the rule of law was recognised as a central issue in a statutory provision. Separation of powers: - Montesquieu- His theory stated that the only way to safeguard the liberty of citizens is to keep the three arms of the state separate. - This theory requires that individuals should not be members of more than one arm of the state, but in reality there is some overlap and we are increasingly seeing a fusion of the arms, rather than a separation. - eg. The Prime Minister and their cabinet make up the Executive, but they are also members of Parliament who sit in the legislature. - The Executive is also influential on the legislative agenda TITLE Case study/Case Law The devolution settlement - In 1998, the Government of Wales Act created a legislature for Wales, called the National Assembly for Wales, which allowed ministers to create secondary legislation in around ten areas. - The Government of Wales Act 2006 increased the Assembly's power by allowing it to make laws in 20 areas with the approval of the UK Parliament, and also allowed for the creation of the Welsh Government (the Executive of Wales). - Following a referendum in 2011, Wales voted to increase the Assembly's powers further so that Wales can now make its own primary legislation within a number of key specific areas, such as education and health. - This means that the laws passed in the Westminster Parliament still apply in Wales but certain subject areas are now transferred to the Welsh Government, which is based in the Senedd in Cardiff. The Welsh Assembly: - The Welsh Assembly is the legislature for Wales and includes 60 Assembly Members (AMs), one for each constituency shown on the map. The AMs are representatives from all different political parties. - MAs scrutinise proposed legislation being put forward in the Westminster Parliament when legislation is being debated. The Welsh Government: - The Welsh Government is different to the Welsh Assembly because it is the Executive, made up of representatives from the single party that holds the majority of seats in the Welsh Assembly. - Its role is to implement the laws made through the legislative process. - The leader of the Welsh Government is known as the First Minister. - This structure also upholds the theory of the separation of powers in Wales. Law-making powers in Wales: - The National Assembly of Wales can pass laws on all subjects in 20 devolved areas, without needing the agreement of the UK Parliament. - The 20 devolved areas are contained in Schedule 5 of the Government of Wales Act 2006. TITLE Case study/Case Law Summary of Notes The future for Wales - The Wales Act 2017 - Act of the Parliament of the Uk that sets out amendments to the Government of Wales Act 2006 and devolves further powers to Wales. - The legislation is based on the proposals of the St David's Day Agreement. - The Act gives extra powers to the National Assembly for Wales and the Welsh Government: eg. The ability to amend sections of the Government of Wales Act 2006 that relate to the operation of the National Assembly of Wales and the Welsh Government, including control of its electoral system. Legislative control over areas such as road signs, speed limits, onshore oil and gas extraction, harbours, rail franchising, consumer advocacy and advice, among others. Management of Ofcom (the communications regulator) in Wales. Recognition that the National Assembly for Wales and the Welsh - Government are permanent parts of the UK's constitutional arrangements, with a referendum required before either can be abolished. - The Act also recognised that there is a body of Welsh law and it established the position of President of Welsh Tribunals, although it does not change the singe England and Wales jurisdiction. - In September 2017, First Minister Carwyn Jones established the Commission on Justice for Wales, covering courts, probation, prisons and youth justice. - The aim of the Commission is 'to develop a distinct Welsh justice system, which improves people's access to justice, reduces crime and promotes rehabilitation'. The Commission is chaired by the outgoing Lord Chief Justice, Lord Thomas, and he will review the idea of a separate Welsh legal system. -Who is your Assembly Member? What political party do they represent? The European Union (EU) - The UK voted to leave the EU in the referendum on 23 June 2016. (Brexit). - To leave the EU, the UK invoked an agreement called Article 50 of the Lisbon Treaty, which gave the country and the EU two years to agree the terms of the split. Until then, the UK remains one of the 28 member states of the EU and is affected by its law in exactly the same way. The UK joined the EU on 1 January 1973 by passing the European Communities Act 1972. Each of the current 28 member states remain as independent sovereign states but agree to recognise the supremacy of the European Union law created by the institutions of the EU. They have also delegated some of their decision-making TITLE Case study/Case Law Summary of Notes European Parliament - The European Parliament is the directly elected arm of the EU and is its main law-making body, along with the Commission and the Council of the European Union. - The Parliament currently has 751 Members of the European Parliament (MEPs), from all 28 EU countries. They are elected every five years by the citizens of the member states. - MEPs are not grouped by nationality but broadly according to their political affiliation. - The number MEP’s reflects the populations of member states and is decided according to a system of degressibe proportionality. This means that MEP’s from more populous countries will each represent more people than those from smaller countries. For example, the Uk has 73 MEP’s, Germany, which has a larger population, has 96 and the small state of Cyprus has just 6. - The European Parliament has three main roles: 1. Legislative: passing EU laws in conjunction with the Council of the European Union (see below), based on proposals put forward by the European Commission. 2. Supervisory: supervising all other U institutions, and electing the President of the European Commission. 3. Budgetary: managing the EU budget, along with the Council. European Commission: - The Commission is the Executive arm of the European Union, and its main job is to manage the day-to-day running of the EU, as well as proposing legislation. - The Commission is known as the 'Guardian of the Treaties' and ensures that all member states comply with their EU obligations. If they do not, the Commission can take action against them in the Court of Justice of the European Union (CJEU). - There are 28 members of the Commission, one for each member state, although they represent the interests of the EU as a whole rather than their own state. They also represent the EU internationally, negotiating agreements between the EU and other countries. The Council of the European Union: - The Council of the European Union is the main decision-making body of the EU and is its legislative arm. Its membership varies according to the topic under discussion. - For example, if the topic is environmental issues, the environment minister from each state will attend. - Council ministers represent national interests by balancing the role of the Commission. They approve the budget jointly with the European Parliament. The European Council: - The European Council became an official institution after the Treaty of Lisbon in 2009. It consists of the heads of the member states, together with its president. - The European Council meets every six months, or more often if the Council president requires. The meetings are known as summits and are used to set out overall EU policy. TITLE Case study/Case Law The CJEU has two main functions: 1. Judicial: The CJEU hears cases to decide whether member states have failed to fulfil their treaty obligations. These actions are usually started by the European Commission, although they can also be started by another member state. If they are found to be at fault, the accused member state must change their practice at once. If they don't comply, the court may impose a fine on the member state. Tachographs: Commission v UK (1979) - The UK was not enforcing the EU regulation that stipulated road vehicles used for the carriage of goods (such as lorries) had to have tachographs fitted (devices that record information about driving time, speed and distance). The UK had to fulfil its EU obligation and make it compulsory for these road users to fit tachographs. 2. Supervisory: This is known as the preliminary ruling procedure. - It helps to ensure that EU law is consistently applied in all member states. The power is given in Article 267 of the Treaty of the Functioning of the EU. This procedure allows a national court to ask for advice on the interpretation and validity of EU law. The preliminary ruling will help the court come to a decision in the national case. - The case of Bulmer v Bollinger (1974) laid down guidelines as to where national courts should refer questions to the CJEU. Generally, only the highest court in the member state should refer questions to the CJEU, under the principle that member states should first exhaust their own national appeal process to see if they can reach a conclusion. - The guidelines state that a referral should only be made where a ruling by the CJEU is necessary to enable the member state's court (for example, the English court) to give judgement in the case; that is, the ruling would be conclusive. The courts should also take into account: whether the CJEU has already made a judgement on the meaning of EU law whether the point is clear the circumstances of the case, for example, the length of time that may elapse before a ruling is given possible overloading of the CJEU the expense of taking it to the CJEU in relation to the wishes of the parties. Sources of EU law: TITLE Case study/Case Law Summary of Notes Primary Sources: Treaties - Primary sources of EU law are treaties, the most important being the Treaty of Rome, which established the European Union. The Lisbon Treaty is also important for the purposes of Brexit. -Treaties are agreements between all 28 member states and are the highest source of EU law. Treaties set out basic principles of EU law and the aims of the EU overall. - Provisions of treaties are called articles and outline the general principles of EU law rather than giving detailed, technical rules. The application and interpretation of the articles is left to the CJEU. - Treaty provisions have both horizontal and vertical direct effect, which means that individuals can rely on the provisions before a national or European court, even if their member state has not implemented the legislation. Horizontal direct effect example case: Macarthys Ltd v Smith (1980). having to take the case to the Vertical direct effect example case: Van Gend en Loos (1963). European courts. Secondary sources: regulations - Secondary sources of EU law are passed by the institutions of the EU under Article 288 of the Treaty on the Functioning of the European Union. - Regulations are 'binding in every respect and directly applicable in each member state'. This means that they do not need to be adopted by the member state to become law because they apply directly with no intervention from the legislative process of the member state. - Tachographs: Commission v UK (1979) - An EU regulation required tachographs, mechanical recording equipment to be installed in vehicles used for the carriage of goods, such as lorries. The UK government decided not to implement the regulation, but left it to lorry owners to decide whether or not to install the equipment. The CJEU held that member states have no discretion in the case of regulations and that Article 288 was explicit in that all regulations automatically become law in all member states. They could not pick and choose which regulations they would implement. Horizontal direct effect example case: Antonio Munoz v Frumar Ltd (2002). Vertical direct effect example case: Leonesio v Italian Ministry of Agriculture (1972). KEYWORDS. TITLE Case study/Case Law Summary of Notes Secondary sources: decisions - Decisions are made by the European Commission against member states, corporations or individuals. These are only binding on those to whom the decisions are directed. Secondary sources: directives - Directives are the main way in which harmonisation of laws within member states iS reached. Directives are formal instructions that require member states to change their national laws within a stated period of time to give effect to the directive and achieve a particular result. - Directives are binding, but the manner of implementation is left to the discretion of the member states. This means that member states will pass their own laws, either by statute (written laws that have been passed by a legislative body in that state) or delegated legislation to bring directives into effect. - Directives can cover many topics, including company laws, banking, insurance, health and safety of workers, equal rights, consumer law and social security. Directives have vertical direct effect only. Vertical direct effect example cases: Marshall v Southampton Health Authority (1986); Van Duyn v Home Office (1974) Horizontal direct effect does not apply to directives. Example case: Duke v GEC Reliance (1982). Overcoming the problem of no horizontal direct effect for directives Certain steps have been taken by the CJEU to overcome the problem of directives having 'no horizontal direct effect'. These include the following: Providing a wide definition of the state' or 'emanations of the state'. For example, in Foster v British Gas (1990), the central question was whether British Gas, which was going to be privatised, was an 'emanation of the state'. The CJEU held that it was subject to a degree of state control and providing a public service. Therefore, Foster could rely on the Equal Treatment Directive against British Gas as an emanation of the state. KEYWORDS. TITLE Case study/Case Law Summary of Notes Interpreting national law in conformity with EU law. This uses the purposive approach to interpretation, which means that courts look for the purpose of the legislation before interpreting its words. This leads to the indirect effect principle, as laid down in the case of Marleasing (1990). Here, Spanish company law conflicted with an EU directive. National courts were required by the CJEU to interpret law 'in every way possible' to reflect the text and aims of a directive. Such interpretation gives way, indirectly, to horizontal direct effect by enabling individuals to sue a private body. This is also known as the Von Colson principle after the case where this technique was used. The Francovich principle allowed individuals the right to compensation from their state if it fails to implement EU law. Francovich v Italy (1991) A directive required member states to set up a scheme to ensure that employees received their outstanding wages if their employer had gone into liquidation. The Italian government did not set up such a scheme, so when Francovich's employer became insolvent he lost his wages and there was no scheme to compensate him. The CJEU held that Francovich had a right to compensation from the Italian government for failing to implement the directive. This right to compensation would be recognised, provided that three criteria were satisfied: that the purpose of the directive was to grant such rights to individual citizens that the content of those rights was clear and precise that there was a clear link between the failure by the state to fulfil obligations and the damage suffered by the person affected. Byrne v Motor Insurers' Bureau (2007) Mr Justice Flax found that the UK government's failure to comply with an EC directive on motor insurance was a sufficiently serious breach to give rise to claim for damages. Here, a child who had suffered injuries during a hit-and-run incident was unable to claim compensation from the Motor Insurer Bureau because it was operating under a government agreement that fell short of EU law requirements. The government should, Direct effect of EU directives accordingly, face liability for damages for failing to implement EU law. KEYWORDS. TITLE Case study/Case Law Summary of Notes The impact of EU law on the law of the United Kingdom: It is often argued that membership of the European Union has led to an erosion of parliamentary sovereignty and that, by joining the EU in 1973, the UK gave away powers to allow it to determine its own affairs. Therefore, it can be claimed that the direct effect and the direct applicability of EU laws in domestic law has eroded sovereignty of member states. The supremacy of EU law and the decline of parliamentary sovereignty has been confirmed by a number of decisions made by the CJEU. Costa v ENEL (1964) It was held that, in the event of a conflict between national law and EU law, EU law prevails. R v Secretary of State for Transport ex p Factortame (1991) A UK national law, the Merchant Shipping Act 1988, restricted opportunities for foreign fishermen to register their ships in the UK, thus preventing them from fishing in UK waters. The fishermen applied to the European Court, as this appeared to be a contravention of an article of the Treaty of Rome. The court held that the Merchant Shipping Act 1988 did not comply with EU law and the Act should be suspended. This marked the first time that a national law was in clear breach of EU law and so the UK had to accept that, in such a situation, EU law would take precedence. There is no doubt that the passing of the European Communities Act 1972 did result in a loss of sovereignty. However, it happened willingly and Parliament has always been able to withdraw from the EU if it so wished and regain full sovereignty. Bulmer v Bollinger (1974) Lord Denning said in his case report: 'Our sovereignty has been taken away by the European Court of Justice... courts must no longer enforce our national laws. They must enforce community law... no longer is European law an incoming tide flowing up the estuaries of England. It is like a tidal wave bringing down our sea walls and flowing inland over our fields and houses - to the dismay of all.' The UK has now chosen to leave the EU and Article 50 has been triggered, despite a legal challenge by Gina Miller. Ms Miller had appealed to the Supreme Court, arguing that the government could not invoke Article 50 of the Lisbon Treaty without seeking approval from Parliament. She won and Theresa May had to seek approval, which was successful. This demonstrates the sovereignty of Parliament, and the process will ultimately lead to the United Kingdom no longer being part of the EU. The European Union (Withdrawal) Bill 2017-2019 is making its way through the legislative process. Using a reliable news source, keep up to date with its progress. 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