Describe and analyse the four sources of law and the two classifications of law in the UK
Title: ‘Explain and analyse the process for making primary legislation in the United Kingdom.’
Introduction
In the United Kingdom Parliament which comprises the House of Commons, The House of Lords and the Monarch collectively make law. This essay will consider the law making process and the role each of the three institutions performs in the process. A brief assessment of the Consultation Stage, which takes place before the Parliamentary Stage will be considered, with particular reference to Green and White Papers. An analysis of the Parliamentary stage will be provided with reference to the different types of Bill including Public Bills; Private Bills; Private Members’ Bills and Hybrid Bills. The process within Parliament with an explanation of each of the stages (First Reading, Second Reading, Committee Stage, Report Stage and Third Reading) will be reviewed and an analysis of the responsibilities of the House of Commons and The House of Lords in that process will be given. The Parliament Acts 1911 and 1949 will be assessed with reference to the greater power of the House of Commons over The House of Lords. For a Bill to become an Act of Parliament Royal Assent is required, accordingly the questions of what would happen if the Monarch did not sign a Bill or what would happen if the Monarch could not sign a Bill due to incapacity or if he/she was a minor will be analysed. Finally, an assessment of the advantages and disadvantages of the law making process in the United Kingdom will be provided.
Look at some of the verbs used in the introduction – considered; reviewed; assessed; analysed.
Look at some of the nouns used in the introduction – assessment; analysis; explanation.
It is usual for an introductory paragraph to contain such verbs and nouns as the purpose of the introduction is to set out the topics which will be addressed in the essay.
Additional Notes on the first source of law – Legislation
Primary Legislation
The first source of law in the UK is legislation, this is law made by Parliament. For the purpose of law making, Parliament comprises the House of Commons, the House of Lords and the Monarch. A bill, a proposal for a new law or an amendment to an existing one must complete a prescribed process within both houses and must be signed by the Monarch for it to become law.
Pre Parliamentary Stage – White and Green Papers
Parliamentary Stage – four types of Bill, Public (the most frequent as these are government bills); Private; Private Member’s Bills and Hybrid Bills. Describe what each is.
Process within Parliament – First Reading, Second Reading, Committee Stage, Report Stage, Third Reading.
Consider the role both Houses play – can the house of Lords start a bill for example? Yes. Can the House of Lords stop a bill? N0 – Explain further why they can’t veto a bill – Parliament Acts 1911 & 1949.
Consider the role of the Monarch in law making. The monarch must sign a bill for it to become law. What would happen if the monarch refused o sign? (Queen Anne 1707. Comparative recent example in another country with a constitutional monarchy, Belgium in 1990.) what would happen if the monarch was unable to sign? Illness or a minor. Consider The Regency Acts 1937 & 1953.
Analyse the advantages and disadvantages of the system for making primary legislation.
Then consider secondary or delegated legislation.
Secondary Legislation is delegated legislation – you must explain what it is and consider advantages and disadvantages
The second source of law is case law or common law. This is based upon the concept of judicial precedent.
Additional Notes for support on Judicial Precedent
Judicial precedent: A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent.
A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.
In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent.
Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as ‘obiter’ because some other ‘ratio’ has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision.
A single decision of a superior court is absolutely binding on subsequent inferior courts. However, certain of the superior courts regard themselves as bound by their own decisions whilst others do not:
1 Decisions of the House of Lords bind all other courts but the House does not regard itself as strictly bound by its previous decisions, for example, in Murphy v Brentwood District Council (1990) the House elected to overrule its earlier decision in Anns v London Borough of Merton (1978) on the issue of a local authority’s liability in negligence to future purchasers of property.
2 The Court of Appeal, Civil Division, holds itself bound by its previous decisions: Young v Bristol Aeroplane Co Ltd (1944) but in that case also identified three exceptional cases where it would disregard its own previous decision. These are (i) where two Court of Appeal decisions conflict; (ii) if the decision although not expressly overruled conflicts with a later decision of the House of Lords; and (iii) if the earlier decision was given per incuriam (through want of care) however it cannot ignore a decision of the House of Lords on the same basis.
3 Divisional courts of the High Court have adopted the rule laid down in Young’s case although judges sitting at first instance are not bound to follow the decisions of other High Court judges although they tend to do so for the sake of certainty
Judicial precedent is an important source of English law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents.. In particular, they may be:
• Reversed: where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect
• Overruled: where in a later case a higher court decides that the first case was wrongly decided
• A refusal to follow: this arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision
• Distinguished: where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts
• Explained: a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.
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