Law | Parliamentary and judicial law making

Welcome to Parliamentary and Judicial Law Making!

Hello future lawyers! This chapter is incredibly important. If law is the road map of society, this chapter teaches you who draws the map and how the routes are decided. We are diving into the two major sources of English Law: the laws made by Parliament (statutes) and the laws made by judges (precedent).

Don't worry if this seems tricky at first. We will break down every process using simple steps and real-world analogies!

Section 1: Parliamentary Law Making (Legislation)

The Concept of Parliamentary Supremacy

In the English Legal System (ELS), Parliament holds the top spot. This is the foundational principle known as Parliamentary Supremacy (or Sovereignty).

Think of Parliament as the ultimate rule-maker. No other body (including the courts) can challenge the validity of an Act of Parliament, provided it was passed correctly.

Key Takeaway on Supremacy:

• Parliament can make or unmake any law it chooses.
• No Parliament can bind a future Parliament (meaning today's laws can be repealed or changed tomorrow).
• No other body can override or declare an Act of Parliament invalid.

Primary Legislation: Acts of Parliament (Statutes)

Acts of Parliament are the highest form of law. They start life as a Bill.

How a Bill Becomes an Act (The Legislative Process)

This process is long and designed to ensure careful scrutiny.

Step 1: First Reading
What happens? The Bill’s title is read out in the relevant House (usually the House of Commons). There is no debate or vote. It’s just an announcement.

Step 2: Second Reading
What happens? This is the first main debate on the general principles of the Bill. The purpose is discussed, and a vote is taken to decide if the Bill should continue.

Step 3: Committee Stage
What happens? A small group of MPs (the Committee) scrutinises the Bill clause by clause. This is where detailed amendments (changes) are proposed and voted upon.

Step 4: Report Stage
What happens? The Committee reports the Bill (with any approved amendments) back to the full House. Further amendments can be suggested and voted on by all MPs.

Step 5: Third Reading
What happens? This is the final debate on the Bill in its amended form. Usually, only minor points are discussed before the final vote.

Step 6: The Other House
What happens? Once passed by the first House (e.g., Commons), the Bill moves to the second House (House of Lords). The process is repeated (Readings, Committee, Report). If the Lords suggest amendments, the Bill must go back to the Commons for approval.

Step 7: Royal Assent
What happens? Once both Houses agree on the final text, the Bill is presented to the Monarch for formal approval. This turns the Bill into an Act of Parliament (a Statute). This is a formality today.

Delegated Legislation (Secondary Legislation)

Parliament cannot deal with every tiny detail of every law. It is too busy and lacks the specific technical expertise needed for things like railway safety rules or specific tax forms.

Delegated Legislation (DL) is law made by a body other than Parliament, but under power granted by Parliament through an Act (called the Enabling Act).

Analogy: Parliament is the CEO who sets the policy (the Enabling Act). Delegated bodies (Ministers, Local Councils) are the managers who handle the necessary day-to-day details and rules.

Types of Delegated Legislation

1. Statutory Instruments (SIs): These are the most common form, made mainly by government ministers. They usually add detail to existing Acts (e.g., changing the amount of a fine or updating technical regulations).
2. By-Laws: Laws made by Local Authorities (Local Councils) to cover specific matters in their area (e.g., banning dog fouling in parks).
3. Orders in Council: Made by the Privy Council, often used in emergencies or to transfer responsibility between government departments.

Controls Over Delegated Legislation (Checks and Balances)

Because DL is not scrutinised by Parliament in the same way, controls are necessary to prevent abuse of power:

1. Parliamentary Controls:

• The Enabling Act sets the boundaries (it dictates what DL can and cannot cover).
• DL is subject to Parliamentary oversight (sometimes required to be actively approved or passively laid before Parliament).

2. Judicial Controls (Judicial Review):

• The courts can challenge the legality of DL through a process called Judicial Review.
• If a piece of delegated legislation goes beyond the powers granted by the Enabling Act (known as ultra vires – meaning ‘beyond the powers’), the courts can declare it void (invalid).
Example: If Parliament allows a Minister to set speed limits on motorways, but the Minister then tries to set rules for primary school attendance, that would likely be ultra vires.

Section 2: Judicial Law Making (Precedent)

The Doctrine of Precedent (Stare Decisis)

While Parliament makes the 'big laws', judges also make law. They do this through interpreting statutes and developing common law rules, following the system known as the Doctrine of Precedent.

The Latin phrase for this doctrine is Stare Decisis et Non Quieta Movere, which means "stand by things decided and do not disturb the settled point."

Analogy: If a judge has already ruled that speeding past a red light warrants a £100 fine based on the facts of the case, a future judge dealing with an identical case should also impose a £100 fine. Consistency is key!

The Parts of a Judicial Decision

When a judge delivers a judgment, only part of what they say creates binding law.

1. Ratio Decidendi (The Binding Reason)
   This is the legal reason for the decision. It is the core principle or rule of law that led the judge to their conclusion based on the material facts of the case. The Ratio Decidendi is the part that creates the binding precedent for lower courts.
2. Obiter Dicta (Other Things Said)
   This includes everything else the judge says: hypothetical examples, summaries of the law, and opinions that do not form the direct basis of the decision. The Obiter Dicta is persuasive (it might influence a future judge) but it is not binding.

The Court Hierarchy and Binding Precedent

Precedent only works because there is a strict hierarchy of courts. Higher courts bind lower courts.

Binding rule: A court must follow the precedent set by a court higher than itself in the hierarchy.

• The Supreme Court (SC) binds all courts below it (Court of Appeal, High Court, etc.).
• The Court of Appeal (CA) binds all courts below it. It is also generally bound by its own past decisions (subject to limited exceptions in civil cases).
• The High Court binds the inferior courts (County Courts, Magistrates' Courts). High Court judges are bound by the SC and CA.

Did you know? The Supreme Court was traditionally bound by its own past decisions until 1966, when the Practice Statement was issued, allowing the House of Lords (now the SC) to depart from its own previous decisions "when it appears right to do so" to achieve justice. This is rarely used, preserving stability while allowing flexibility.

Tools for Avoiding Precedent

If precedent was too rigid, the law could not adapt. Judges have four main tools to avoid following a precedent they feel is outdated or inappropriate for the current facts:

1. Distinguishing:
The judge finds that the facts of the current case are materially different from the facts of the previous case. If the facts are different enough, the precedent does not apply. Example: A case about a speeding horse might not apply to a case about a speeding car because the means of transport are fundamentally different.

2. Overruling:
A higher court decides that a legal rule established in an earlier case by a lower court (or itself) is wrong, and replaces it with a new precedent. Crucial point: Overruling changes the law for the future, not the past case.

3. Reversing:
When a higher court in the same case (on appeal) decides that the lower court got the decision wrong. The higher court overturns the decision in that specific case.

4. Disapproving:
When a judge in a higher court states that a precedent set by a lower court is wrong, but cannot formally overrule it because the decision is not relevant to the current case, or they lack the power. This acts as a strong signal for the future.

Section 3: Statutory Interpretation

Even though Parliament writes the laws, those laws often use general language, or the situation they cover was not foreseen when the Act was passed. Therefore, judges often have to 'translate' or 'interpret' the law.

Why Interpretation is Needed

• Ambiguity: Words can have multiple meanings (e.g., does the word 'vehicle' include a bicycle, a plane, or a skateboard?).
• Drafting Errors: Poor language choice by parliamentary drafters.
• New Technology: Laws written in 1950 cannot account for the internet or AI, forcing judges to interpret old words in modern contexts.

The Main Rules of Interpretation

Judges use various approaches (or "rules") to determine Parliament’s true meaning:

1. The Literal Rule

The judge takes the plain, ordinary, and grammatical meaning of the words, even if it leads to a strange or unjust result.

Example: Whiteley v Chappell (1868). It was an offence to "impersonate any person entitled to vote." The defendant impersonated a dead person. Since a dead person is not 'entitled' to vote, the defendant was found not guilty under the literal meaning.

2. The Golden Rule

The judge starts with the literal meaning, but if that meaning leads to an absurd, ridiculous, or repugnant result, they can modify the meaning just enough to avoid that absurdity.

Example: Re Sigsworth (1935). A son murdered his mother. Under the literal rule of the Administration of Estates Act, he would inherit her estate. The court applied the Golden Rule to prevent the murderer benefiting from his crime, thus avoiding an absurd and repugnant outcome.

3. The Mischief Rule (Focusing on the Gap)

This is a much older rule used to look for the "mischief" (the problem or gap) in the previous law that Parliament intended to fix when they passed the new Act.

The judge asks: "What was the defect in the common law that Parliament was trying to remedy?"

Example: Smith v Hughes (1960). Prostitutes were soliciting from balconies, which was technically not 'in the street' (the literal wording). The court used the Mischief Rule, stating the Act intended to clean up the streets, and therefore the Act applied.

4. The Purposive Approach (Modern Context)

This is the most common modern approach, often used in EU law contexts (though now less binding, still highly relevant). The judge looks beyond the words to determine Parliament’s overall intention and purpose behind the legislation.

It is broader than the Mischief Rule because it looks at the overall purpose of the Act, not just the previous 'mischief'.

Aids to Interpretation

To figure out what Parliament meant, judges can use specific aids:

1. Intrinsic Aids (Internal): Sources found within the Act itself.
   • The Long Title (the full name explaining the Act’s purpose).
   • Headings and marginal notes.
   • Definitions sections within the Act.
2. Extrinsic Aids (External): Sources found outside the Act.
   • Dictionaries (for the literal meaning).
   • Reports from Law Reform bodies that preceded the Act.
   • Hansard: The official record of parliamentary debates. (Allowed following the case of Pepper v Hart (1993), but only in specific, limited circumstances).