Statute Law in Britain 13n

8/11/2019 Statute Law in Britain 13n

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STATUTE LAW INBRITAIN

Unit 3


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Statute: Definition

An established written law, especially an Act of Parliament

An express and formal laying-down of arule or rules of conduct to be observed inthe future by persons to whom thestatute is expessly, or by implication,made applicable


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Parliament: Definition

Elected group of representatives whoform the legislative body which votes the

laws of a country


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Legislation

The process of making or enacting a positivelaw in written form, according to some type offormal procedure, by a branch of governmentconstituted to perform this process

Also: lawmaking; statute-makingTranslation equivalents:Zakonodavstvo; donoenje zakona


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Common law vs. statute law

In todays world: a need for new law tomeet new situations

Precedent not suitable for majorchanges to the law, nor is it sufficientlyquick, efficient law-making method for amodern society


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Common law vs. statute law

Judges - not elected by the peopleIn a democracy, laws should only be

made by the elected representatives ofsocietyThe main legislative body in the UK:Parliament


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Statute law

Laws passed by Parliamnet: Acts ofParliament or statutes

60-70 Acts passed each year


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Parliament

The only body which has the right toenact a new law, or alter or reverse a

law which Parliament itself has passed Any law passed by Parliament whichclashes with, or alters or reverses anypart of the common law automaticallytakes precedence


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The Sovereignty of Parliament

Parliament is legislatively supreme andcan make and unmake (=repeal) laws to

any extent Any Act passed by Parliament which isof general application is absolutelybinding on all persons within the sphereof Parliaments jurisdiction


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Sovereignty of Parliament

However controversial a particularstatute may be, a judge is bound to

enforce its provisions, although theremay be some scope for judges tointerpret a new statute in a particularway

EU law takes precedence in the event ofconflict with statute or common law


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Functions of Parliament

To pass lawsTo provide, by voting for taxation, the

means of carrying on the work ofgovernmentTo scrutinise government policy andadministrationTo debate the major issues of the day


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The British Parliament

The QueenThe House of Commons

The House of Lords


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The House of Commons

Members of Parliament (MPs) not

members of the nobility but ordinarycommon people known as commoners


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Elections

The candidate who gets the most votesin a constituency is elected to become its

MPMost MPs belong to political parties(Conservative, Labour, or LiberalDemocrat MP)


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Elections

Each political party manifesto: adocument setting out its aims and the

policies it proposes to implement toachieve them


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Elections

The party with an overall majority of MPs- asked by the Queen to form the

GovernmentPrime Minister is appointed to lead theGovernmentHe forms his Cabinet from the importantmembers of his party


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Elections

When no one party has a sufficient majority, orwhen a national emergency occurs, a coalitiongovernment may be formed by two or moreparties temporarily unitingThe Cabinet forms its policies of governmentand turns to legislation as the means of carryingthe policies into effect, e.g. The Local

Government Act, 1972


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The House of Commons

Elected by universal adult suffrageThe chief officer of the House of

Commons the Speaker, elected byMPs to preside over the House


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The House of Lords

Lords SpiritualLords Temporal


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Lords Spiritual

Archbishops of Canterbury and York andleading Bishops, representatives of the

Church of England (26 in total)


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Lords Temporal

Hereditary PeersLife Peers


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Hereditary peers

Those whose titles are passed downfrom generation to generation

peers by succession they havesucceeded to the titles of their ancestors


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The House of Lords Act 1999

Hereditary peers lost the right to sit andvote in the House of Lords; 92 hereditary

peers allowed to remain in the House fora transitional period A small number have been made LifePeers


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Life Peers

Peers for their lifetime; cannot pass theirtitles on to their children

Distinguished in politics, education,business, law, arts, etc.Membership in the House of Lords: awide range of highly talented people


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The House of Lords

Not able to change or delay any lawswhich relate to finance and taxation

Power to hold up legislation of whichthey disapprove for a certain period oftimePower to check, influence or alterlegislation


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Parliament Act 1911

If a Bill is passed by the House ofCommons but rejected by the House of

Lords twice in two successive years, itmay immediately be presented to theQueen for her Assent without obtainingthe Lords further approval


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Preparatory stages

The government may initiate aconsultative process by the publication

of a Green Paper to attract publicresponse and comment


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Preparatory stage

The governments White Papers containtheir more definite proposals; often

published following consultation ordiscussion with pressure groups,professional bodies, or voluntaryorganisations


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First Reading

The title of the prepared Bill is read tothe House of Commons

Acts as a notification of the proposedmeasureThe Bill is printed and published


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Second reading

The Minister or Member in charge of theBill explains its purpose and the main

issues of policy involvedThe debate limited to the purpose ofthe Bill and the means proposed forgiving it effect

The House votes on the BillIf the Bill survives the vote it passes tothe next stage


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Committee stage

The Bill is dealt with by: A) A committee of the whole House,

B) A select committee, orC) A standing committee


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Committee Stage

A Select Committee constituted on aparty basis, while a Standing Committee

is composed of 20-50 Membersappointed to examine Public Bills, which,after a second reading, are not passedto a committee of the whole House or to

Select CommitteesThe purpose: to consider the details ofthe Bill clause by clause


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The Report stage

The committee reports back to theHouse, and any proposed amendments

are debated and voted uponThe amendments made in the committeeare considered by the House, which maymake any additional amendments


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Third Reading

A Bill is reviewed in its final form andmay be debated again

The debate is confined to verbalamendments only, not the principles ofthe Bill


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Passage through the other

House After the third reading a Commons Bill issent to the Lords where it has to pass all

the required stages again Amendments made by the secondHouse must be agreed by the first, or acompromise reached, before a Bill can

become law


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Passage through the other

HouseIf agreement is impossible, theCommons can invoke its powers under

the Parliament Acts, 1911 and 1949whereby it may present the Bill for Royal Assent after one year without theagreement of the Lords

A Money Bill must originate in theCommons and may be delayed by theLords for one month only


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Royal Assent

May be given by the Queen personally or bythree Lords CommissionersThe Royal Assent Act, 1967, provides that an

Act is duly enacted if the Royal Assent isnotified to each House of Parliament, sittingseparately, by the Speaker of that HouseWhen Royal Assent is given, the Bill becomesan Act of Parliament and takes effectimmediately


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Types of Bills

Public Bills introduced by theGovernment

Private Members Bills proposed byMPsPrivate Bills proposed by a localauthority, etc.


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Public Bills

Written by parliamentary counsel whospecializes in drafting legislation

Presented to Parliament by Governmentministers and change the general law ofthe whole country


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Private Members Bills

If the Private Members Bill is of generalimportance and receives the suport of

the House it may be adopted by theGovernment and so form part of itslegislative programme


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Private Members Bills

Relatively few Private Members Billsbecome law, but some important lawshave been passed as result of such Bills:Matrimonial Causes Act, 1937, Murder(Abolition of Death Penalty) Act, 1965

Abortion Act 1967, Marriage Act 1994


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Local Bills

Purely local mattersWhere a local authority or other public

body wishes to acquire additionalpowers not available under the generallaw, it may obtain them by the promotionof a private Bill


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Local Bills

Construction or alteratikon of bridges,canals, docks, ports, roads, railways,tramways, waterworks, etc.; extending the powers of localauthorities,gas, electricity or other public utilityundertakings


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Personal Bills

Relate to private estates, names,naturalization, divorce, peerage etc.


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Obsolescence

Social conditions changeSome case law may therefore have to be

disregarded on account of obsolescenceStatute law does not become obsolateon account of age


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Obsolescence

Ashford v. Thornton (1818): the plaintiffaserted that a right to trial by battle wasavailable to him under a statute of HenryIIThis long forgotten statute was repealedthe year after its existence was revealed

by the plaintiffs application


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Obsolescence

The Treason Act, 1351, is still lawdespite its age, and was invoked in 1946to prosecute a British subjectbroadcasting enemy propaganda duringthe Second World War ( Joyce v. Directorof Public Prosecutions, 1946)


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Obsolescence

Though statute law does not becomeobsolete by reason of age, there aresome Acts which are so inappropriatethat in practice they are not enforced:e.g. The Sunday Observance Act, 1677,forbids meetings of people out of their

parishes on Sunday for any sports orpastimes


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Statute book

All laws passed by Parliament which arestill in force

There should be no conflict of meaningbetween a new statute and an old one


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The state of the statute book

In theory the whole of the law could beset out clearly and logically in statutoryform; decided cases would be usefulonly as interpreting the statutes, andimportant decisions could beincorporated by amendmentIn practice: the same subject may bedivided between many statutes and thesame statute may contain bits of severalsubjects


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Consolidation and Codification

A statute and its amending Acts can begathered together into a singleconsolidating Act, but even aconsolidation statute is unlikely to statethe whole law on the subjectThe process of setting out both statute

law and common law is calledcodification


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The parts of a statute

The main body of a statute is divided intosections, and sections may be dividedinto subsections

A subdivision following an opening partis called a paragraphSubsections have a number in bracketswhile paragraphs have a letter inbrackets


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The Theft Act 1968, s. 21

(1) A person is guilty of blackmail if, with a viewto gain for himself or another or with intent tocause loss to another, he makes any

unwarranted demand with menaces; and forthis purpose a demand with menaces isunwarranted unless the person making it doesso in the belief (a) that he has reasonable grounds for making

the demand; and(b) that the use of the menaces is a propermeans of reinforcing the demand.


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Validity of Acts

Parliamentary sovereignty precludes thecourts questioning Acts of Parliamentwhere there is no conflict with EU lawThere is no written constitution againstwhich the courts could test theirconstitutionality, as does the Supreme

Court of the United States


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Interpretation of statutes

A statute usually contains aninterpretation section which explains themeaning of words in that statute


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Section 34 of the Theft Act, 1968,contains a definition of the words goodsas follows:For the purpose of this Act goods,except in so far as the context otherwiserequires, includes money and every

other description of property except land,and includes things severed from theland by stealing


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Statutory interpretation: reasonswhy the meaning may be unclear

A broad term Ambiguity

A drafting errorNew developmentsChanges in the use of language


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The Literal RuleThe Mischief Rule

The Golden RuleThe Eiusdem Generis RuleExpressio unius est exclusio alterius

Noscitur a sociisThe Exclusionary Rule


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The literal rule

Words must be given their literalmeaning

Words in old statutes are given themeaning they had when the statute waspassedWords appearing more than once mustbe given the same meaning throughoutthe Act


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The mischief rule

Also: the Rule in Heydons case (1584) Lays down that the court must look at

the Act to see what mischief or defect inthe common law the Act was passed toprevent


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The mischief rule

Four questions:1. what was the common law before the

Act was passed?2. What was the mischief and defect forwhich the common law did not provide?3. What remedy had Parliament resolvedto provide?4. What was the true reason for theremedy?


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The Golden Rule

It is a very useful rule in the construction of astatute to adhere to the ordinary meaning of thewords used, and to the grammatical

construction unless that is at variance with theintention of the legislature to be collected fromthe statute itself, or leads to any manifestabsurdity or repugnance, in which case thelanguage may be varied or modified so as toavoid such inconveniance, but no further(Becke v. Smith, 1836)


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Eiusdem Generis Rule

Where general words follow specificwords, the general words must beconstrued as applying to the persons orthings of the same class as thosealready mentionedE.g. dogs, cats and other animals

does not include tigers and lions, forother animals includes domesticanimals

Expressio unius est exclusio


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Expressio unius est exclusioalterius

the express mention of one thing impliesthe exclusion of another

Where specific words are used in astatute and are not followed by generalwords, the statute applies only to thosethings mentioned


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The Exclusionary Rule

Excludes reference to parliamentarymaterials in interpreting an Act

If the Act is ambiguous or obscure, or itsliteral meaning leads to an absurdity, thecourt may have regard to the OfficialReport of Debates (Hansard) for

assistance in interpreting the Act(Pepper v. Hart , 1993)


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Points to remember

Composition of ParliamentTypes of Bills

Law-making procedureStatute book


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Word formation

Verb:Donositi zakone:legislate

Adjective:zakonodavnilegislative

Nouns:zakonodavaclegislator


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Legislation

consists of the making of determinationswhich are issued to indicated butunnamed and unspecified persons orsituations


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Legislation vs. adjudication

Legislation afffects the rights ofindividuals in the abstract and must beapplied in further proceedings before thelegal position of an individual will betouched by it, whilst adjudication opertesconcretely upon individuals in their

individual capacity


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Reading on the Internet

Public Bills currently considered:http://www.parliament.uk/business/bills_

and_legislation.cfm Recent legislation:http://www.opsi.gov.uk/acts.htm Governments explanatory notes: http:www.opsi.gov.uk/legislation/uk_expa.htm
http://www.parliament.uk/business/bills_and_legislation.cfmhttp://www.parliament.uk/business/bills_and_legislation.cfmhttp://www.opsi.gov.uk/acts.htmhttp://www.opsi.gov.uk/acts.htmhttp://www.parliament.uk/business/bills_and_legislation.cfmhttp://www.parliament.uk/business/bills_and_legislation.cfm


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Exercise I

Find verbs that can be used to makeword combinations with the words below.There is more than one possibility forthree of the answers:

Amend, codify, consolidate, enact, pass,repeal, update

Exercise I: Amend, codify, consolidate,


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Exercise I: Amend, codify, consolidate,enact, pass, repeal, update

Parliament can:1. _____ Acts of Parliament

Pass/enact2. _____new statutes.Enact/pass

3. ______existing legislation. Amend/update

Amend codify consolidate enact


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Amend, codify, consolidate, enact, pass, repeal, update

4._______obsolete lawrepeal5. _______statute law, case law, andamendments into one Act.codify6. _____law by repealing and re-

enacting in one statute provisions of anumber of statutes on the same subject.consolidate


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Exercise II

Replace the underlined words with thecorrect form of the following:

approve, Bill, debate, drafting, enshrine,introduce, propose, re-present, submit,undertake

approve, Bill, debate, drafting, enshrine, introduce,


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approve, Bill, debate, drafting, enshrine, introduce, propose, re-present, submit, undertake

N: How is new legislation enacted?C: Well, initially the (1) draft legislation

has to be (2) presented to both houses.The draft is (3) discussed several times. A committee has the job of checking thatthe Bill (4) incorporates the fundamental

elements (5) agreed at the secondreading. After this, the Bill is (6) shownagain to the lower house.


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Answer

Well, initially the (1) Bill has to be (2)submitted/introduced/proposed to bothhouses. The draft is (3) debated severaltimes. A committee has the job ofchecking that the Bill (4) enshrines thefundamental elements (5) approved at

the second reading. After this, the Bill is(6) re-presented to the lower house.


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Answer

Who does the (7) drafting of thelegislation?C: Its undertaken by qualified barristersemployed as civil servants, known asParliamentary Counsel.N: Who can (9)propose/introduce/submit Bills?C: The government and, less commonly,MPs.


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Exercise III

Use the following words to complete thesentences:

Abstentions, budget, consensus,constitution, devolution, houses, leader,leak, legislation, policy, membership,

poll, recess, spokesman, veto


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Abstentions budget consensus constitution devolution


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Abstentions, budget , consensus, constitution, devolution,houses, leader, leak, legislation, policy, membership, poll,recess, spokesman, veto

5. Many Welsh would like to see more ___of power from Westminster.devolution6. Parliament has introduced ___tocontrol the sale of drugs.legislation

7. The bill was passed by both ___andsent to the President for signature.Houses

Abstentions, budget, consensus, constitution , devolution,


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houses, leader, leak, legislation, policy, membership, poll,recess, spokesman, veto

8. The crisis happened during thesummer___and Parliament had to berecalled.recess9. The government is investigating thelatest____of documents relating to the

spy trial.leak

Abstentions, budget , consensus, constitution, devolution,


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10. The government is running a tightmonetary___to try to control inflation.policy11. The___of the opposition criticisedthe Prime Minister for his failure to act.leader

12. The motion was carried by 200 votesto 150; there were 60_____abstentions

Abstentions, budget , consensus, constitution, devolution,


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13. The President has the power of ___overbills passed by Congress.veto

14. There is a ____between all the majorparties about what we should do now.consensus15. The minister has put forward a ____aimedat slowing down the economyveto


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Additional information

www.parliament.uk www.lexadin.nl/wlg/legis/nofr/legis.htm
http://www.parliament.uk/http://www.parliament.uk/

Statute Law in Britain 13n

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