STATUTE LAW IN BRITAIN Unit 3. Preview 1. Introduction: statute, legislation, parliament 2. Common...

STATUTE LAW IN BRITAIN

Unit 3

Preview

1. Introduction: statute, legislation, parliament 2. Common law vs. Statute law 3. Parliamentary sovereignty 3. Parliament: functions, composition 4. House of Commons: elections 5. House of Lords: hereditary peers, life peers 6. Law-making procedure 7. Types of bills 8. Statute book 9. Statutory interpretation 10. Legal terms 11. Exercises

Statute: Definition

An established written law, an Act of Parliament

An express and formal laying-down of a rule or rules of conduct to be observed in the future by persons to whom the statute is expessly, or by implication, made applicable

Parliament: Definition

Elected group of representatives who form the legislative body which votes the laws of a country

Legislation

The process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process

Also: lawmaking; statute-making Translation equivalents: Zakonodavstvo; donošenje zakona

Common law vs. statute law

In today’s world: a need for new law to meet new situations

Precedent – not suitable for major changes to the law, nor is it sufficiently quick, efficient law-making method for a modern society

Common law vs. statute law

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

made by the elected representatives of society

The main legislative body in the UK: Parliament

Common law v. Statute law

Statute Judgment

(a) Creates new law

(b) Lays down general rules for the guidance of future conduct

(c) Is imperative

Usually disclaims any attempt to create new lawUsually applies an existing law (precedent) to a particular set of circumstancesGives reasons

Statute law

Laws passed by Parliamnet: Acts of Parliament or statutes

60-70 Acts passed each year

Parliament

The only body which has the right to enact a new law, or alter or reverse a law which Parliament itself has passed

Any law passed by Parliament which clashes with, or alters or reverses any part of the common law automatically takes precedence

The Sovereignty of Parliament

Parliament is legislatively supreme and can make and unmake (=repeal) laws to any extent

Any Act passed by Parliament which is of general application is absolutely binding on all persons within the sphere of Parliament’s jurisdiction

Sovereignty of Parliament

However controversial a particular statute may be, a judge is bound to enforce its provisions, although there may be some scope for judges to interpret a new statute in a particular way

EU law takes precedence in the event of conflict with statute or common law

Functions of Parliament

To pass laws To provide, by voting for taxation, the

means of carrying on the work of government

To scrutinise government policy and administration

To debate the major issues of the day

The British Parliament

The Queen The House of Commons The House of Lords

Elections

The UK: 646 geographical parts: constituencies

At least once every five years a General Election is held

Those who wish to stand for Parliament are called candidates

Elections

The candidate who gets the most votes in a constituency is elected to become its MP

Most MPs belong to political parties (Conservative, Labour, or Liberal Democrat MP)

Elections

Candidates – voted for as individuals If for instance a Labour MP resigns or

dies while in office, another Labour candidate will not automatically take over; there must be a new election in this constituency (by-election)

Elections

Each political party – manifesto: a document setting out its aims and the policies it proposes to implement to achieve them

Elections

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

Prime Minister is appointed to lead the Government

He forms his Cabinet from the important members of his party

Elections

When no one party has a sufficient majority, or when a national emergency occurs, a coalition government may be formed by two or more parties temporarily uniting

The Cabinet forms its policies of government and turns to legislation as the means of carrying the policies into effect, e.g. The Local Government Act, 1972

The House of Commons

Elected by universal adult suffrage The chief officer of the House of

Commons – the Speaker, elected by MPs to preside over the House

The House of Lords

Lords Spiritual Lords Temporal

Lords Spiritual

Archbishops of Canterbury and York and leading Bishops, representatives of the Church of England (26 in total)

Lords Temporal

Hereditary Peers Life Peers

Hereditary peers

Those whose titles are passed down from generation to generation

‘peers by succession’ – they have succeeded to the titles of their ancestors

The House of Lords Act 1999

Hereditary peers lost the right to sit and vote in the House of Lords; 92 hereditary peers allowed to remain in the House for a transitional period

A small number have been made Life Peers

Life Peers

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

Distinguished in politics, education, business, law, arts, etc.

Membership in the House of Lords: a wide range of highly talented people

The House of Lords

Not able to change or delay any laws which relate to finance and taxation

Power to hold up legislation of which they disapprove for a certain period of time

Power to check, influence or alter legislation

Parliament Act 1911

If a Bill is passed by the House of Commons but rejected by the House of Lords twice in two successive years, it may immediately be presented to the Queen for her Assent without obtaining the Lords’ further approval

Law-Making Procedure

1. Preparatory stage 2. First Reading 3. Second Reading 4. Committee stage 5. Report stage 6. Third Reading 7. Passage through the other House 8. Royal Assent

Preparatory stages

The government may initiate a consultative process by the publication of a Green Paper to attract public response and comment

Green paper

a tentative government report and consultation document of policy proposals for debate and discussion,

without any commitment to action—the first step in changing the law.

Green papers may result in the production a white paper

White paper

A white paper is an authoritative report or guide helping readers understand an issue, solve a problem, or make a decision

Preparatory stage

The government’s White Papers contain their more definite proposals; often published following consultation or discussion with pressure groups, professional bodies, or voluntary organisations

First Reading

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

Acts as a notification of the proposed measure

The Bill is printed and published

Second reading

The Minister or Member in charge of the Bill explains its purpose and the main issues of policy involved

The debate – limited to the purpose of the Bill and the means proposed for giving it effect

The House votes on the Bill If the Bill survives the vote it passes to

the next stage

Committee stage

The Bill is dealt with by: A) A committee of the whole House, B) A select committee, or C) A standing committee

Committee Stage

A Select Committee – constituted on a party basis, while a Standing Committee is composed of 20-50 Members appointed to examine Public Bills, which, after a second reading, are not passed to a committee of the whole House or to Select Committees

The purpose: to consider the details of the Bill clause by clause

The Report stage

The committee reports back to the House, and any proposed amendments are debated and voted upon

The amendments made in the committee are considered by the House, which may make any additional amendments

Third Reading

A Bill is reviewed in its final form and may be debated again

The debate is confined to verbal amendments only, not the principles of the Bill

Passage through the other House

After the third reading a Commons Bill is sent to the Lords where it has to pass all the required stages again

Amendments made by the second House must be agreed by the first, or a compromise reached, before a Bill can become law

Passage through the other House

If agreement is impossible, the Commons can invoke its powers under the Parliament Acts, 1911 and 1949 whereby it may present the Bill for Royal Assent after one year without the agreement of the Lords

A Money Bill must originate in the Commons and may be delayed by the Lords for one month only

Parliament Act 1949

reduced the Lords’ power to delay a bill to a single year, by altering the wording of the 1911 Act.

the Parliament Acts 1911 and 1949 should be construed together

Royal Assent

When a Bill has passed through all its parliamentary stages, it is sent to the Queen for Royal Assent, after which it is part of the law of the land and known as an Act of Parliament

The Royal Assent has not been refused since 1707

Royal Assent

May be given by the Queen personally or by three Lords Commissioners

The Royal Assent Act, 1967, provides that an Act is duly enacted if the Royal Assent is notified to each House of Parliament, sitting separately, by the Speaker of that House

When Royal Assent is given, the Bill becomes an Act of Parliament and takes effect immediately

Types of Bills

Public Bills – introduced by the Government

Private Members Bills – proposed by MPs

Private Bills – proposed by a local authority, etc.

Public Bills

Written by parliamentary counsel who specializes in drafting legislation

Presented to Parliament by Government ministers and change the general law of the whole country

Private Members’Bills

At the beginning of a Parliamentary Session (a session lasts one year), the Cabinet lays down its legislative programme

It is still possible for a Private Member (i.e. an MP who is not a member of the Government) to introduce a Bill

Private Members’ Bills

If the Private Member’s Bill is of general importance and receives the suport of the House it may be adopted by the Government and so form part of its legislative programme

Private Members’ Bills

Relatively few Private Members’ Bills become law, but some important laws have been passed as result of such Bills: Matrimonial Causes Act, 1937, Murder (Abolition of Death Penalty) Act, 1965 Abortion Act 1967, Marriage Act 1994

Private Bills

Two types: 1) Local 2) Personal

Local Bills

Purely local matters Where a local authority or other public

body wishes to acquire additional powers not available under the general law, it may obtain them by the promotion of a private Bill

Local Bills

Construction or alteratikon of bridges, canals, docks, ports, roads, railways, tramways, waterworks, etc.;

extending the powers of local authorities,

gas, electricity or other public utility undertakings

Personal Bills

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

Obsolescence

Social conditions change Some case law may therefore have to be

disregarded on account of obsolescence Statute law does not become obsolate

on account of age

Obsolescence

Ashford v. Thornton (1818): the plaintiff aserted that a right to trial by battle was available to him under a statute of Henry II

This long forgotten statute was repealed the year after its existence was revealed by the plaintiff’s application

Obsolescence

The Treason Act, 1351, is still law despite its age, and was invoked in 1946 to prosecute a British subject broadcasting enemy propaganda during the Second World War (Joyce v. Director of Public Prosecutions, 1946)

Obsolescence

Though statute law does not become obsolete by reason of age, there are some Acts which are so inappropriate that 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 or pastimes

Statute book

All laws passed by Parliament which are still in force

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

The state of the statute book

In theory the whole of the law could be set out clearly and logically in statutory form; decided cases would be useful only as interpreting the statutes, and important decisions could be incorporated by amendment

In practice: the same subject may be divided between many statutes and the same statute may contain bits of several subjects

Consolidation and Codification

A statute and its amending Acts can be gathered together into a single “consolidating” Act, but even a consolidation statute is unlikely to state the whole law on the subject

The process of setting out both statute law and common law is called codification

Codification

Codification may mean a complete statement of all the law of a given State, and not, as in England, certain parts only

The French Civil Code, Germany, Switzerland

Citation of statutes

1) by the short title, which includes the calender year (e.g. The Fatal Accidents Act 1846)

2) by the regnal year or years and the chapter (e.g. 9 & 10 Vict. c. 93)

3) a compromise of the two (e.g. The Fatal Accidents Act 1846 (c. 93)

The chapter indicates the number of the statute

The parts of a statute

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

A subdivision following an opening part is called a paragraph

Subsections have a number in brackets while paragraphs have a letter in brackets

The Theft Act 1968, s. 21

“(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief –

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.”

Validity of Acts

Parliamentary sovereignty precludes the courts’ questioning Acts of Parliament where there is no conflict with EU law

There is no written constitution against which the courts could test their constitutionality, as does the Supreme Court of the United States

Interpretation of statutes

Statutes – drafted by Parliamentary draftsmen, who are lawyers skilled in this highly important work

Despite the care taken to ensure that statutes are clear and exact, in due time legal actions will arise on points of doubt and the courts will be called upon to interpret the meaning and to adjudicate


A statute usually contains an interpretation section which explains the meaning of words in that statute


Section 34 of the Theft Act, 1968, contains a definition of the words ‘goods’ as follows:

‘For the purpose of this Act “goods”, except in so far as the context otherwise requires, includes money and every other description of property except land, and includes things severed from the land by stealing’

Statutory interpretation: reasons why the meaning may be unclear

A broad term Ambiguity A drafting error New developments Changes in the use of language


The Literal Rule The Mischief Rule The Golden Rule The Eiusdem Generis Rule Expressio unius est exclusio alterius Noscitur a sociis The Exclusionary Rule

The literal rule

Words must be given their literal meaning

Words in old statutes are given the meaning they had when the statute was passed

Words appearing more than once must be given the same meaning throughout the Act

The mischief rule

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

the Act to see what ‘mischief’ or defect in the common law the Act was passed to prevent

The mischief rule

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

Act was passed? 2. What was the mischief and defect for

which the common law did not provide? 3. What remedy had Parliament resolved

to provide? 4. What was the true reason for the

remedy?

The Golden Rule

‘It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconveniance, but no further’ (Becke v. Smith, 1836)

Eiusdem Generis Rule

Where general words follow specific words, the general words must be construed as applying to the persons or things of the same class as those already mentioned

E.g. ‘dogs, cats and other animals’ – does not include tigers and lions, for ‘other animals’ includes domestic animals

Expressio unius est exclusio alterius

‘the express mention of one thing implies the exclusion of another’

Where specific words are used in a statute and are not followed by general words, the statute applies only to those things mentioned

Noscitur a sociis

The meaning of a word can be comprehended from its context

Ambiguous or doubtful words may be determined by reference to those words appearing in association with them

The Exclusionary Rule

Excludes reference to parliamentary materials in interpreting an Act

If the Act is ambiguous or obscure, or its literal meaning leads to an absurdity, the court may have regard to the Official Report of Debates (Hansard) for assistance in interpreting the Act (Pepper v. Hart, 1993)

Points to remember

Composition of Parliament Types of Bills Law-making procedure Statute book

Word formation

Verb: Donositi zakone: legislate Adjective: zakonodavni legislative Nouns: zakonodavac legislator

Legislation

“consists of the making of determinations which are issued to indicated but unnamed and unspecified persons or situations”

Adjudication

The act of giving a judgement or of deciding a legal problem

Izricanje presude; sudska odluka; donošenje odluke

Verb: adjudicate Suditi; riješiti sudskom odlukom

Legislation vs. adjudication

“Legislation afffects the rights of individuals in the abstract and must be applied in further proceedings before the legal position of an individual will be touched by it, whilst adjudication opertes concretely upon individuals in their individual capacity”

Activity

Look up a recent Act on the Internet. Try the website: www.opsi.gov.uk

Choose an Act and now search for the debates in Parliament on that Act (try www.parliament.uk)

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 Government’s explanatory notes: http:www.opsi.gov.uk/legislation/uk_expa.htm

Exercise I

Find verbs that can be used to make word combinations with the words below. There is more than one possibility for three of the answers:

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

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

Parliament can: 1. _____ Acts of Parliament Pass/enact 2. _____new statutes. Enact/pass 3. ______existing legislation. Amend/update

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

4._______obsolete law repeal 5. _______statute law, case law, and

amendments into one Act. codify 6. _____law by repealing and re-

enacting in one statute provisions of a number of statutes on the same subject.

consolidate

Exercise II

Replace the underlined words with the correct form of the following:

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 that the Bill (4) incorporates the fundamental elements (5) agreed at the second reading. After this, the Bill is (6) shown again to the lower house.


N: Who does the (7) formal writing of the legislation?

C: It’s done by qualified barristers employed as civil servants, known as Parliamentary Counsel.

N: Who can (9) put forward Bills? C: The government and, less commonly,

MPs.

Answer

Well, initially the (1) Bill has to be (2) submitted/introduced/proposed to both houses. The draft is (3) debated several times. A committee has the job of checking that the Bill (4) enshrines the fundamental elements (5) approved at the second reading. After this, the Bill is (6) re-presented to the lower house.

Answer

Who does the (7) drafting of the legislation?

C: It’s undertaken by qualified barristers employed as civil servants, known as Parliamentary Counsel.

N: Who can (9) propose/introduce/submit Bills?

C: The government and, less commonly, MPs.

Exercise III

Use the following words to complete the sentences:

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

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

1. Germany has a federal ____. constitution 2. A government _____revealed that

discussions had been concluded on the treaty.

spokesman

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

membership, poll, recess, spokesman, veto

3. According to the latest opinion ___the Prime Minister is more unpopular than ever.

poll 4. Austria’s application for___of the EU

was successful. membership


5. Many Welsh would like to see more ___of power from Westminster.

devolution 6. Parliament has introduced ___to

control the sale of drugs. legislation 7. The bill was passed by both ___and

sent to the President for signature. Houses


8. The crisis happened during the summer___and Parliament had to be recalled.

recess 9. The government is investigating the

latest____of documents relating to the spy trial.

leak


10. The government is running a tight monetary___to try to control inflation.

policy 11. The___of the opposition criticised

the Prime Minister for his failure to act. leader 12. The motion was carried by 200 votes

to 150; there were 60_____ abstentions


13. The President has the power of ___over bills passed by Congress.

veto 14. There is a ____between all the major

parties about what we should do now. consensus 15. The minister has put forward a ____aimed

at slowing down the economy veto

Additional information

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

STATUTE LAW IN BRITAIN Unit 3. Preview 1. Introduction: statute, legislation, parliament 2. Common...

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