Parliament and the legislative processFoundation LawLecture 3

Lecture 2-RECAP Common Law System v Civil Law System

Key difference: CODIFICATION

United Kingdom: Common Law System

Three sources of law…………………….

Statutory Law (Acts of Parliament/ “Statutes”)

Common Law (“ Judge made law”/Doctrine of Judicial Precedent)

Equity (legal principles and rules which, promote fairness & justice)

Who is this?

Keir Stamar QC-DPP

Alison Saunders-Chief Crown Prosecutor for LondonReplaces Keir Stamar as DPP in Nov.2013

What is the role of the CPS & the DPP? CPS- government body which represents the state in criminal matters

The CPS prosecutes (“brings the action against the defendant”) the defendant in criminal cases investigated by the police

The CPS is responsible for:

Advising the police;

Investigating criminal matters; and

Bringing the prosecution case against the defendant (which includes preparing the case for hearing and representing the state at hearing)

The DPP overlooks the CPS and is responsible for prosecutions, legal issues and criminal justice policy

DPP’s recent report on reasons not to prosecute doctors in abortion case:

http://www.cps.gov.uk/news/latest_news/dpp_abortion_case_fuller_reasons/

Parliament and the legislative processLearning Outcomes:

Outline the basic structure of the English constitution

Understand the role and composition of parliament

Show knowledge and understanding of the law making process

Identify the different types of “Bills” and explain how & who introduces them in parliament

Explain what is an Act of Parliament/Statute; and

Explain the doctrine of parliamentary supremacy and power of repeal

What is the role of parliament and how is it composed?

There are 3 main bodies in the UK which collectively make up the English constitution:

1. The Legislature2. The Judiciary3. The Executive

“Separation of Powers”

The Separation of PowersTerm used to describe the function and powers of each of the

institutions

Parliament: law making body

Judiciary: consists of the courts and judges-law enforcement/statutory interpretation

Executive: the cabinet, the PM, government departments and the civil service

Parliament Parliament consists of the House of Commons and the House of Lords

House of Commons

House of Commons Members of the House of Commons are referred to as a Member of

Parliament (MP)

Elected by the public during a general election

The country is divided into constituencies (geographical areas) and each constituent (resident/voter), votes for one MP during the general election to represent their constituency in Parliament

House of Commons A MP represents a particular political party

In the UK the major political parties are:

Labour

The Conservatives

The Liberal Democrats

There are also many smaller parties too.......

House of Commons The party’s manifesto: sets out the key political and economical aims +

proposals for reforms

The government of the day is formed by the political party which has a majority in the House of Commons-half the seats in the House

In the United Kingdom, general elections (to elect the government) are held every 5 years

However, By-Elections can be held to replace MPs in a constituency, in the event of their death or retirement

The voting age in the United Kingdom is 18 years

The 2010 General Elections “Hung Parliament”-no one party had an overall majority/half the seats

in the House of Commons

A “coalition government” was therefore, formed between the Conservative and Liberal Democratic parties, who collectively had the requisite majority seats

What problems may arise in a coalition government?

The Government This is the political party which has the majority in the House of Commons

It is the government which has the main say in formulating new Acts of Parliament

Parliament is the body which is responsible for law making as a whole and consists of both the House of Commons and the House of Lords

The House of Lords The House of Lords is the non-elected body

Before 1999: 1,100 members (750 were hereditary- the rest consisted of life peers, judges and bishops)

Post 1999-only nominated members and some elected members (92 hereditary peers, life peers and the most senior bishops in the Church of England.)

The Supreme Court (post Oct.2009)-12 senior judges of the country

The House of Lords Until 2009 the 12 most senior judges sat in the House of Lords as the

Judicial Committee of the House of Lords

Hence some of the leading cases where heard in the “House of Lords” (HL)

However, in October 2009 the Supreme Court was formed which replaced the Judicial Committee of the House of Lords, separating the judges from parliament

The Supreme Court is the highest court of the land, which creates precedent which binds all lower courts

The law making procedure1) The consultation papers:

Outline the proposed changes

“Green Paper”-this is a consultative document on a topic in which the govt.`s view is put forward with proposals for law reform

“White Paper”- sets out firm proposals for new law

2) Draft Acts of Parliament (“Bills”) A draft Act of Parliament is known as a “Bill” and there are different types of Bills,

which have been outlined in the table below:

Type of Bill Explanation Example

Government Bill Introduced by the Government Legal Services Act 2007

Private Member’s Bill

Introduced by a private MP Household Waste Recycling Act 2003

Public Bill Involves matters of public policy and affects the general public

Legal Services Act 2007

Private Affects a particular person, organisation or place

Whitehaven Harbour Act 2007

Hybrid Introduced by the Government but affects a person, organisation or place

Crossrails Act 2008

3) The parliamentary process The Bill will be introduced in the House of Commons and will go

through the following stages..........

The Five Stages1) First reading: this is a formal procedure where the name and main aims of the Bill are read

out-simple verbal vote on whether the House wishes to consider the Bill.

2) Second reading: this is the main debate on the whole Bill in which MPs debate the principles behind the Bill

3) Committee stage: a detailed examination of each of the clause of the Bill is undertaken by a committee of between 16-50 MPs- this committee is known as a “Standing Committee”

4) Report stage: this is where the committee report back to the House on the amendments it has suggested to the Bill during the committee stage

5) Third reading: this is the final vote on the Bill

The law making procedure in the House of Lords

The Bill is than passed to the House of Lords where it goes through the same 5 stage procedure

If the House of Lords makes amendments to the Bill, it will go back to the House of Commons for consideration

The law making procedure-Rejection by the House of Lords

Parliament Acts 1911 & 1949: a Bill can still become law even if it has been rejected by the House of Lords, provided that it is reintroduced into the House of Commons in the next session of Parliament and passes all the stages again there

The Royal Assent The Bill officially becomes an Act of Parliament once it receives the

Royal Assent (“agreement” or “approval”)

A mere signature of the monarch (King/Queen)

The monarch however, has no say with respect to the contents of the Bill itself

Parliamentary Supremacy Parliament is the legislative body

A.V.Dicey (1885): “Parliament...has...the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”

Parliament makes the law and the courts must apply the law

Limitations to Parliamentary Supremacy EU Law: takes priority over English law

The Human Rights Act (1998): all Acts of Parliament have to be compatible with the ECHR

Limitations to Parliamentary Supremacy Scotland Act 1998 & Wales Act 1998: Parliament has “devolved”

certain powers to the Scottish and Welsh Assemblies

Power to Repeal Parliament can “repeal” an Act of Parliament

Repeal- amend/withdraw an Act of Parliament

Parliament is not bound by a law made by a previous Parliament and thus can repeal any previous Act of Parliament

Therefore, theoretically parliament can repeal the European Communities Act 1972, which it passed to become a member of the EU and withdraw its membership

Seminar 3 Preps Hand-Out Reading:

Jacqueline Martin, “GCSE Law”, 5th edition, Chapter 13 Preparatory Questions