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Statutory Instruments

-Made by Government ministers and their departments

-Has a national effect

-Comes in the form of regulations, rules and Codes of Practice

-Statutory Instrument are a major way of law making

Constitutional Reform Act 2005
- gives Lord Chancellor power to issue guidance on procedures for Judicial Appointments Commission recommending who should be appointed as Judges

Serious Organised Crime and Police Act 2005
-
gives the Secretary of State the power to make regulations requiring equipment used by the Serious Crime Agency to satisfy levels of design and performance

The Legislative and Regulatory Reform Act 2006
- gives Ministers power to make any provision by order if it will remove/reduce a burden. Burden defined as :Financial cost, Administrative inconvenience, obstacle to efficiency + productivity + profitability and sanction affecting the carrying on of any lawful activity

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Bylaws

-Made by local authorities or public corperations

-It affects people living in the area

-Local bylaws cover matters of local concern (dogs fouling footpaths, consumption of alcohol outdoors)

-Public corperations bylaws cover matters that affect the public using their services (smoking on trains on trains or trespassers near railways,ect)

-Bylaws have to be approved by the relevant government department

Local Government Act 1972
Gives local authorities wide-ranging power to make bylaws

South West Trains Limited Railway Bylaws
Is an example of power being given to a public corporation to make bylaws

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Orders in Council

-Made by the Queen and Privy Council

-The affect is on national or local scale or specfic to the activity aimed at

- It is usually drafted by the Government Minister then approved by the Queen and 3 or 4Privy Councillors.

-It is used for tranfer of responsibility between governement departments, transfer of powers to devolved assemblies (eg Wales, Scotland, and northern Ireland) and the extend legislation to former colonies.

-Also can be used for emergenicies under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 and at times when Parliament isn't sitting

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Control by Parliament - The Enabling Act

-Parliament may repeal the delegated legislation or amend it at any time

-The Act may lay down strict requirements, limitations and procedures.

-Consultation is often required with government ministers, experts, interested parties or the public

-Publication of all Statutory Instruments (SI) is required under the Statutory Act 1946

-The Enabling Act lay down the nature and scope of the delegated powers

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Control by Parliament - Resolution Procedures

Statutory instruments come into force through a resolution procedure:

Negative Resolution

  • involves the instrument being laid before the Parliament for a period which is usually 40 days
  • At the end of this time the instrument will become law unless the Parliament has objected at in the meantime

Affirmative Resolution

  • where Parliament is required to vote its approval of the DL on a given date during the time it is laid before Parliament

Super Affirmative

  • procedure exists to exercise a greater degree of control over the delegated legislation known as Legislation Reform Orders made under the Legisative and Regulatory Reform Act 2006 which gives ministers wide range of recommendations, resolutions and representations
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Control by Parliament - Scrutiny Committee

Parliament has a number of committees that scrutinise delegated legislation.
Joint Select Committee on Statutory Instrument
-since 1973 has had power to draw the attention of both Houses to an instrument on a number of proscribed grounds laid out in the Standing Orders under which it operates
-including that instruments do not:
     -impose a tax or charge
     -appear to have retrospective effective
     -appear to have gone beyond the powers given under the enabling legislation
     -make some unusual or unexpected use of those powers
     -is unclear or defective in some way
House of Lords Delegated Powers Scrutiny Committee
-was established to "keep under constant review the extent to which legislative powers are deligated by Parliament to government ministers"
-Also examines all Bills with delegated powers which allow SI's to be made before they begin their passage through the House.
House of Lord Secondary Legislation Scrutiny Committee
-consider the policy merits of any SI or regulations that are subject to parlimentary procedure

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Control by Court - Procedural Ultra Vires

-Where the body or indivisual making the decision has failed to follow some procedure or requirement laid down in the legislation

Agriculture Training Board vs Aylesbury Mushrooms

The minister set up a training board without consulting the Mushroom Growers' Association which was a required procedure.

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Control by Court - Substantive Ultra Vires

-Where the body or individual making the decision has used the authorised powers in an unauthorised way

R v Secretary of State for Eductation and Employment, ex parte National Union of Teachers

The court ruled that a statutory instrument setting conditions for appraisal was beyond the powers given to the Minister of Education under the Education Act 1996

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Control by Court - Substantive Ultra Vires for unr

-Where the body or individual making the decision makes a decision with no reasonable body or individual in the same situation would do

Associated Picture Houses vs Wednesbury Corporation

A local authority places a restriction on a cinema's Sunday opening (that no children under 15 would be permitted) which no reasonable local authority would have.

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Control by Court - Incosistency with Human Rights

-Where the body or indivisual making the decision has made a decision which breaches an individual's human rights

R (Bono) v Harlow DC 2002

The defendants were denied the right to a fair trial when the committee who heard their appeal about housing benefit was found insufficiently impartial.

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Effectiveness of Parliamentary Controls

Parliamentary controls are effective because:

-Parliament retains the greatest control that exists over delegated legislation which is the power to revoke, repeal or amend the Enabling Act.

-This fits in with the doctrine of Parliamentary Supremacy which states that Parliament is the ultimate law-making body.

-Parliament only delegates power to bodies that are accountable to the Parliament and places restrictions on the exercise of delegated powers.

Parliamentary controls are ineffective because:

-When considering the sheer volume of instruments Parliament is supposed to consider.

-The resolution procedures (esp the negative procedure) are weak and rarley used.

-The Scrutiny Committees lack the power to amend or reject legislation and are only able to report the findings where and when allowed.

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Effectiveness of Courts Controls

Courts controls are effective because:

  • The government accepts the courts findings even when they dislike it
  • This is due to the adherence to the rule of law
  • This situation seems to have increase notably since the enactment of the Human Rights Act which has significantly empowered the courts in this area.

Courts controls are ineffective because:

  • Judicial review can only happen if someone brings a case
  • Potential litigants have to establish a sufficient legal interest in the case called locus standii and adhere to strict time limit, both of which can prove to be difficult
  • Legal Aid is rare and taking cases to the High Court can prove exepensive, it takes determination and financial capacity to pursue a case
  • Many Enabling Acts grant ministers wide and vaguely detailed powers which are open to wide interpretation
  • Furthermore, courts can be reluctant to stand up to government due to their belied in the seperation of powers
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Statutory Interpretation - The Literal Rule

  • Consists of giving words their plain, oridinary, grammatical meaning
  • Even if it leads to an absurdity
  • According to Lord Esher
    "If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity."
  • The rule can operate simply and effectivley for many words especially where the meaning is plain
  • Rule reflects the traditionalist and narrow views in the 19th century
  • It can produce harsh, unjust and absurd outcomes
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The Literal Rule - Cheeseman v DPP

  • Cheeseman was caught exposing himself to two plain clothes pliceman in a public lavatory
  • Charged under s28 of the Police Town Clauses Act 1847 with
    "wilfully and indecently exposing his person in a street to the annoyance of passengers"
  • Using the literal rule, the courts decided that the policemen were not passengers
  • In 1847, passenger meant passer-by
  • The police were stationed there and not passing by and therefore not passengers
  • Cheeseman got away with the activity which the Parliament clearly meant to criminalise producing an abusrd result
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The Literal Rule - London & North Eastern Railways

  • Berriman was killed whilst oiling points on the railway line
  • Under the Fatal Accidents Act 1864 he should have been given a lookout if he were 'relaying or repairing' the line
  • The court held that oiling the lines was maintaining them not relaying or repairing them
  • So Act did not apply and his widow was not entitled to any compensation
  • A harsh and unjust result
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The Literal Rule - Whitely v Chappell (1868)

  • Court had to interpret the meaning of the words 'any person enititled to vote' from the Poor Law Amendment Act 1851
  • Whitley had gained an extra vote in an election by pretending to be someone who, whilst still registered on the electoral list, was in fact dead
  • Since Whitely was impersonating a dead man, he couldn't ( on literaly meaning) be impersonating 'any person entitled to vote' - since dead men cannot vote
  • This is an unrealistic result as it cannot have been Parliament's intention to allow someone to get away with an extra vote
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Literal Rule PROS&CONS

PROS

  • It respects the theories of Separation of Power and Supremacy of Parliament by avoiding judges being accused of law making
  • Some judges argue that they are doing Parliament a service by drawing faulty legislation and loopholes to their attention
  • Alternative approaches might be unpredictable where the literal rule offers certainty and consistency

CONS

  • The rule clearly produces absurd, unjust and indefensible results which cannot represent Parliament's true intentions (Cheeseman v DPP)
  • It ignores the fact that language has limitations and can change meaning over time
  • The rule demands standards of unattainable perfection from parliamentary draftsmen
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Statutory Interpretation - The Golden Rule

  • Literal rule has been amended to the degree that most jusges will attempt a reasonable interpretation of statutes but only to avoid an obvious absurdity
  • Sometimes referred to as the escape route
  • Two ways this rule works

NARROW APPROACH
Used when the words have more than one meaning and the better one is chosen

BROADER APPROACH
The words have one clear meaning and the courts modify the word to make sense of them within the case and the Act

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The Golden Rule (Narrow Approach) - Adler v George

  • D was caught inside an RAF base where he was staging a protest
  • He was charged under s3 of the Official Secrets Act 1920 with
    obstructing member of the armed forces "in the vicinity of" any prohibited place
  • Argued that since he was inside the RAF base he could not be in the vicinity of as this means near to
  • Court held that 'in the vicinity of' could mean 'near to' or both 'near to and within' in order to get a conviction 
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The Golden Rule (Wide Approach) - Re Sigworth (193

  • A son had killed his mother
  • Under the rules of inhertiance, the mother's estate would pass on to the son
  • There was no ambiguity in the words here
  • Sigworth was clearly her 'issue' (next of kin)
  • The wide golden approach was used to avoid the D inheriting the estate
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The Golden Rule - PROS&CONS

Pros

  • The rule still respects the Constitutional Doctrines of Separation of Powers and Supremacy of the Parliament by only allowing judges enough freedom to correct errors 
    they are not deciding what Parliament intended
  • Provides an escape route from the absurd and unjust results produced by the literal rule
  • By avoiding absurdities and injustices, the Golden Rule puts Parliament's true intention into force, closes loopholes and avoids the need to legislate a new

Cons

  • No clear guidance about when and how the rule should be used and no defintion of what an absurd result is before deciding to avoid it
  • It is very limited un use, so only used in rare occasions
  • Judges can and have effectively re-written statute law which goes against the doctrines of the Supremacy of Parliament- Separation of Powers
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Statutory Interpretation - The Mischief Rule

  • Originates from the Heydon's case of 1584
  • Examination of the common law before the statute law was passed to find out Parliament's intention

The court should

  • Look at the law prior to the passing of the act
  • Identify the mischief or gap frim the previous law
  • Identify the way that Parliament propesed the remedy the defect
  • Give effect to that remedy
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The Mischief Rule - Smith v Hughes (1960)

  • Offence under s1 of the Street Offence Act 1959
  • The 'mischief' - this Act was trying to control was that of prostitutes, openly soliciting customers in the street
  • The prostitues in this case were siting a house and tapping on a window of the ground floor room and another one was on the balcony to attract the attention of men walking by
  • The courts decided that the aim of the Act was to enable people to walk along the street without being solicited or harassed
  • Even though the prostitute was not in the street herself, the Act should be interpreted to include this activity
  • and hence were guilty
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The Mischief Rule - PROS&CONS

pros

  • The mischief rule helps to avoid absurdity and injust
  • 'repairs' bad laws quickly
  • Reforms and improves the law as eacg case is interpreted to avoid mischief behind the act
  • Constitutionally some judges would argue that they are respecting Parliament by giving effect to their true intentions, despite using a degree of discretion

CONS

  • Rule dates back to the 16th century when there were for fewer Acts of Parliament and those that were passed would have been less complex with intentions that were easier to workout
  • This makes the rule less suited to the quantity abd complexity of modern legislation
  • It must be possible to discover the mischief. Less extrinsic materuak available for older Acts making it difficult to discover why an act was passed
  • Constitutionally some critics argue that the mischief rule allows for judicial law making which is against the Doctrine of Separation of Powers and Supremacy of Parliament
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Statutory Interpretation - The Purposive Approach

  • goes beyond mischief the rule in that the court is not just looking to see what the gap was in the old law
  • The judges are deciding what they believe Parliament meant to achieve
  • It looks to split rather than the letter of law
    tries to give effect to the wider purpose of the law
  • The approach orginates the dissatifcation with literalism clearly expressed in the case of
    Carter v Bradbeer
    "If one looks back at the actual decision of this House over the last 30 years one cannot failt to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions"

  • The Purposive Approach recieved a boost resulting from our membership of the EU as this is the method used in interpreting European Union Law
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The Purposive Approach - R v Registrar-General, ex

  • Smith was a violent murderer who had mental health problems
  • Having found out that he was adopted, Smith tried to find out the identity of his biological mother
  • The Registrar General refused even though Smith was entitled to know
  • Court held that although Smith was entitled to know, it would be contrary to the purposive of the Act to provide information to someone who might, at some stage, use it to harm
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The Purposive Approach - PROS&CONS

PROS

  • The PA gives effect to Parliament's true intentions
  • The rule makes extensive use of extrinsic aids to ensure an accurate and informed view of Parliament's intentions is established
  • It avoids all the absurd, unjust, and harsh outcomes of the literal approach and avoids the destructive analysis of language

CONS

  • Constitutionally this approach allows the greatest judicial freedom and some critics would argue that it goes directly against the doctrines of Separation of Powers and Supremacy of Parliament
  • Like the mischief rule, the purposive rule can only be used if Parliament's intentions can be identified
  • whilst it suited to the interpretation of European law, it is less suited to the more precise and detailed structure of English Legislation
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Process of Law Making - Green Paper

The Pre-Legislatve Procedure

  • a consultation document
  • idea for a new law and the reasoning behind it
  • the minister for the relevant government deparement will be responsible for the Green Paper
  • Allows for debate and comments on the proposal to be directed to the appropriate minister
  • For example: giving green paper 2010 - contained ideas for road traffic laws might be of interest to the police
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Process of Law Making - White Paper

The pre-legislative procedure

  • After consultation and the Minister has made any ammendments
  • Set of firm proposals which are passed to the relevant cabinet committee
  • approved by the whole cabinet before being passed to pariamentaru draftsmen
  • ready to be formally drafted into a bill

BILL
The proposed Act has been drafted, it is published

PUBLIC BILL
Affect the whole of the public or a large section

PRIVATE MEMBERS' BILL
Non-government Bills introduced by individual back-bench MPs

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Process of Law Making - 1st Reading

The formal process of law-making

  • formality to announce the Bill to the House of Commons
  • Title of the Bill is read out and an order for the Bill to be printed is made
  • A date is usally set for the second reading
  • no vote or debate
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Process of Law Making - 2nd Reading

The formal process of law-making

  • Main debate on the Bill
  • the MP responsible describes the aims of the Bill and will field questions
  • A vote will be taken and a majority will be required to proceed 
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Process of Law Making - Committee Stage

The formal process of law-making

  • Allows for detailed scrutiny of the Bill(s)
  • Bill(s) is considered by small committees of between 15-60 MPs (public bill committees)
  • Memebership is propotionate to no of seas a party holds in the Commons
  • Chosen for their expertise/interest in a particular field
  • Separate committee is formed for each individual bill
  • Amendments are made if neccessary
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Process of Law Making - Report Stage

The formal process of law-making

  • Inform the House of Commons of any amendments
  • Amerndments will be debated and voted on -either being accepted or rejected
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Process of Law Making - 3rd Reading

The formal process of law-making

  • If approved, the Bill gets its third reading
  • House of Commons has a final chance to look at the Bill again as a whole with all its amendments
  • Bill cannot be changed substantially
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Process of Law Making - House of Lords

The formal process of law-making

  • Goes through the same stages as the House of Commons
  • If the HoL makes amendments to the Bill it will go back to the House of Commons for it to consider those amendments
  • HoL can prevent the Bill passing through for a year
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Process of Law Making - Royal Assent

The formal process of law-making

  • Monarch of the day gives consent and the Bill finally becomes an Act of Parliament
  • The short title will be read out and assent is automatically given
  • Although the monarch retains the theoretical power to withold assent
  • No monarch has refused assent since Queen Anne in 1707 with Scottish Miltia
  • Bill comes into force at midnight of the date of commencement is specified
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