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Case law slow to change law:

  • Judges tend to be conservative.
  • Reluctant to change law in courts unless issue clearly requires it.

  • Doctrine of precedent.

Common loweroded by legislation as the main source of English law?

From the late 19th century to the present day the socio-economic conditions in this country have changed enormously and judicial precedent has been unable to respond quickly enough to these changing circumstances.

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What is legislation?

Law created by Parliament.

What does Parliament consist of?

  • House of Commons (646 MP’s) (elected by public).

  • House of Lords.

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Country divided into areas called Constituencies, and each constituency elects one MP.

What does the House of Lords consist of?

  • People who have been inherited a peerage (around 90 at present).

  • Those made life-peers (often former MP’s).

  • Senior bishops of the Church of England.

  • Approx. 700 ‘peers’.

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What forms the Government?

The political party that gains a majority of seats in the House of Commons

Who leads Government?

Prime Minister.

He/she then forms their Cabinet from the most important members of his party and appoints junior officials to various posts in the Government.

When no party has a sufficient majority/when a national emergency occurs, two or more parties temporarily uniting may form Coalition Government. Once a Cabinet is formed it will then form its policies and use legislation to put these policies into effect.

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Who are the members of the House of Commons elected by?

Whole adult population every four/five years.

In 2010 the Conservatives and Liberal Democrats formed a coalition government as no single party had obtained an overall majority of seats in parliament.

Legislation can also be made by the Scottish Parliament under powers devolved to it in 1998.

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Who has power to make law?

  • The Welsh Assembly government (WAG).

  • Only if it’s delegated from Westminster, though plans are in place to give the Welsh assembly more law making powers.

  • However, a referendum in 2011 has been held to determine whether the Welsh Assembly is to have similar law making powers to that of Scotland.


  • Legislation is the supreme source of law for England and Wales (and Scotland).

  • It takes precedence over case law and earlier legislation, and judges must enforce legislation in the courts, even if it is contrary to existing precedents.

  • Judges may be critical of Acts of Parliaments but the can’t refuse to apply them.

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Parliamentary sovereignty

What is the Sovereignty of Parliament?

  • Idea that Parliament is supreme over all other sources of law.

  • Parliament can make and repeal law to any extent and the laws that Parliament make must be enforced- there is nobody in the UK that can challenge legislation on the grounds that it is illegal.

This can be contrasted to the situation in the USA that unlike Britain has written constitution.

Supreme Court of the United States may rule that a law passed by the Senate is against the constitution of the United States and is therefore illegal.


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Parliamentary sovereignty

Is Parliament supreme?

  1. Idea that is is supreme is qualified since Britain's entry to the European Community Act 1973, for where there is a conflict between Community law and UK law, it is Community law which has priority. By legislation the UK may decide to withdraw from the EU, and to this extent Parliament is still sovereign. Since our entry to the EU we've gradually seen erosion of Parliamentary sovereignty.

  2. Another limit on parliamentary sovereignty exists following enactment of the Human Rights Acts 1998- judges can declare any act of parliament incompatible with the HRA if its effect is to deny a person their human rights, subject to any restrictions contained in the HRA. If this declaration of incompatibility is given by judges, the government, through parliament must mend the act to bring it in line with the HRA.

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Creating Act of Parliament

  • create laws called Statutes.

  • Most statutes emanate from the House of Commons, but House of Lords can introduce one.

  • Stages Act of Parliament goes through before it becomes law (Bill-a draft provision that is proposed to become law):

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Creating Act of Parliament

  1. Public Bills.

  • Introduced by Government.

  • Parliamentary Counsel drafts them (team of lawyers who works for Treasury on instructions from Prime Minister/Cabinet ministers).

Sometimes before it's put before the House, a consultation document is produced stating what bill is about and inviting comments from interested parties- green paper.

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Creating Act of Parliament

Private Member Bills.

  • Introduced by individual member of Parliament who doesn’t have to be member of Government.

  • Time’s limited, ballot in each session of Parliament of those members who wish to introduce bills.

  • 20 names selected, only first 6 or 7 MP’s chosen are likely to get chance to present their bill to House. (Unless Governments supports bill then it has little chance of becoming law-few private members bills do become law).

Important law created through private member bills e.g. Abortion Act 1967.

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Creating Act of Parliament

Private Bills.

  • Sponsored by local authorities, public authorities, large public companies.

  • Bills don’t affect country as a whole- only affect sponsor.

  • e.g. private bill sponsored by Manchester City Council could seek permission to build another runway at Manchester airport.
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Creating Act of Parliament

Once drafted the bill will go through the following stages:

  1. First Reading.

  • Formality which informs House of the Bills existence.

  • Name of Bill and aims are read and printed copies are available.

  • No discussion/debate at this stage.

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Creating Act of Parliament

Second Reading.

  • Main purpose of bill explained to House and main debate on principles.

  • MP’s who wish to speak in debate try and catch speakers eye, since Speaker controls all debates in House.

  • If more than 20 MP’s object to bill then vote called on whether to implement it.

If majority goes against it then it goes no further.

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Creating Act of Parliament

Committee stage.

  • Bill examined in detail by various committees.

  • Committees may comprised of whole House/standing committees between 20-50 MP’s.

  • MP’s in standing appointed on basis of political numerical strength in House of Commons.

  • Therefore, if Government has large majority it will control committees too.

Committees task is to go through each clause of bill and where it thinks necessary to prepare amendments/alterations.

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Creating Act of Parliament

Report stage.

  • Chairperson of committee will report back to House of Commons informing them of any changes made to bikk,

  • Amendments only accepted if majority if House is in favour.
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Creating Act of Parliament

Third reading.


  • Final vote on bill as whole.

  • If more than 6 MP’s request it then there’s no further debate on principles.

  • If House votes in favour of bill then it passes from Commons to Lord's.
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Creating Act of Parliament

House of Lords.

  • After bill's third reading it is sent to House of Lords where debated in similar fashion to procedure outlined above.

  • Lord may amend bill that will then be considered by Commons.

  • If Commons reject amendments then bill sent back to Lords to reconsider it.

  • Parliament Acts 1911 and 1949, Lords can no longer stop bill becoming law if Commons wishes to be enacted.

  • If Lords refuse to pass bill, then Commons can introduce same bill in next session of Parliament, if the Commons passes it for second time then it becomes law without agreement of Lords.

Welsh Church Act 1914, War Crimes Act 1991 and Hunting Act 2004 were all enacted by by-passing the Lords.

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Creating Act of Parliament

Royal Assent.

  • Final stage of enactment-no bill can become the law of England and Wales unless signed/authorized by Queen.

  • Formality- last time Royal assent was refused was in 1707.

Once Assent given then bill becomes law (enacted).

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Creating Act of Parliament

If bill not completed all above stages then by time a Parliamentary session ended (last one year) it may be introduced in another session of Parliament but bill must pass through all these stages once again.

As a result of the HRA 1998 all legislation must carry statement declaring its compliance with HRA.

Both Houses recognize that many bills are required to become law urgently.

Same sex marriage Bill:

  • first reading- jan 2013 Bill introduced.

  • Queen granted Royal Assent Bill on in July 2013.

  • thereby becoming The Marriage (Same Sex Couples) Act 2013.

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Creating Act of Parliament

What happens in extreme circumstances of national emergency?

  • Bills can pass in single day sitting.

  • e.g. 2001 (after twin towers attack) legislation rushed through to give powers to arrest and detain suspected terrorists without trial.

  • December 2004, law challenged in House of Lords and Home secretary, Charles Clarke, amended legislation in order that it complied with HRA 1998.

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Creating Act of Parliament


  • Just because statute is old doesn’t mean it's obsolete.

  • As soon as statute becomes law it remains in force until it is repealed by another statute. Rule has had unfortunate consequences on outcome of some cases:

Ashford v Thornton 1818

Defendant strongly linked with murder of young girl, but was able to avoid justice by challenging accuser to Trial by Battle- long forgotten statue created by Henry II. After this statute's existence has been rediscovered t was hastily repealed.

Some ancient statutes haven’t been repealed as it has been recognised they may have some future use e.g. Treason Act 1351 invoked in 1946 to prosecute traitor William Joyce for broadcasting enemy propaganda during WW2.

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