Disability Discrimination Act 1995 O Some Bills example essay topic

Legislation Precedent is not suitable to make big changes in the law, nor is it quick or particularly efficient. Judges are also not elected by the people. 1 Acts of Parliament 1.2 Influences on Parliamentary Law Making o Several influences on law making: 1. Government Manifesto. 2. European Law, Treaty of Rome.

3. Law Reform agencies 4. Commissions 1.3 The Pre Legislative Procedure o On major matters a Green Paper may be issued by a minister with responsibility for a certain matter. o The use of green papers began in 1967. o A green paper is a consultative document on a topic in which the governments view is put forward with proposals of law reform. o Other views are then invited to be sent to relevant party. o A white paper will then be issued outlining the firm proposals for new law. o Rushing law through in response to incidents 'knee jerking' is criticised e.g. Dangerous Dogs Act 1991.1. 4 Introducing an Act of Parliament Most acts of parliament are introduced by the government. These are initially drawn up by civil service lawyers known as Parliamentary Counsel to the Treasury. The instructions on what to add are given by the relevant government department.

Bills o The proposal is published and is called a bill. o It must go through stages, even at the beginning there are difficulties, the draftsmen must make sure it represents government wishes. o It must be unambiguous, precise and comprehensive. o Time important as / set to introduce bill. Private Members Bills Ballot o Bills can be sponsored by individual M.P. o Parliamentary process allows for a ballot each session in which 20 private members are selected to take turn in presenting a bill to parliament. o Usually only on a Friday, so only first 6 -7 have a realistic chance of presenting. o Not many get passed but some important ones do. o Abortion act 1967 o Marriage Act 1994, so marriage in any registered place. 10 Minute rule o Backbenches can introduce a bill through the ten minute rule. o M. p's can make a speech up to ten minutes supporting the introduction of new legislation. o Only really successful if no opposition. o e.g. Bail Amendment Act 1993, prosecution have right to appeal granting of bail. Public & Private o Public Bill involves matters of public policy which will affect whole country or large section. o Most government bills are in this category, disability discrimination act 1995. o Some bills are not aimed at this; some may affect an individual or corporation. o e.g. University College London Act 1996.1. 5 The Process of Parliament Bills must usually pass thorough the house of commons and lords.

They can start in either house unless they are finance bills which must start in the commons. They must pass through certain stages: 1. first reading; Formal procedure, name and aim of bill read out, vote on continuing bill, no discussion, usually informal vote of Aye or Nay, if clear no formal vote needed. More formal they leave and enter through a certain door. 2.

Second Reading; Main debate on whole bill, usually focus on main points of bill, must catch speakers eye to speak, at en vote as first. 3. Committee stage; Detailed examination of each clause in bill by committee of between 16 - 50 M. p's. usually called standing committee chosen for particular bill. Parties are represented in proportion to seats; usually some knowledge of area, in finance whole house sits. 4. Report stage; At committee stage amendments to clauses may have been voted, so the committee report back to house. debate, and accept or reject.

Thought of as good as it prevents a committee going against wishes of house. Not done if no amendments. 5. Third reading; Formality of final vote. In commons it may be debated again if six M. p's request it, at H of L they may amend at this stage. 6.

House of Lords; If stated in H of C then it passes through same five stages in H of L, any amendments are sent back to commons, if began in H of L then passed over to H of C. Parliament Acts o Power of H of L is restricted by Parliament Act 1911 and 1949. o This can be used to pass a ill even if H of L says no. o They H of L's function is to refine and add to the la rather than oppose the will of the elected house. o Bill must be re introduced in next session of parliament and must pass through stages again. o Usually threat is enough though sometimes not, War Crimes Act 1991, threat - Sexual Offences Amendment Bill 2000, age of consent for males to 16.7. Royal Assent Monarch formally approves bill, doesn't even see the bill just a title, last time refused was 1707 by Queen Anne and Scottish Militia Bill. Commencement of an Act o Following royal assent it becomes act of parliament at midnight that day unless otherwise stated. o It is becoming more of a trend not to pass straight away. A date is set or minister to set a date. o Causes difficulties, Disability Discrimination Act 1995, bit by bit. o Some parts never become Law such as Easter act setting an Easter day. o As can be seen it is a long process and can take months to pass an act, though can be quick if all agree, Northern Ireland Bill 1972 passed in 24 hrs. 1.6 Following the Disability Discrimination Act through legislative stages 1.7 Criticisms of the Legislative Process o Renton Committee 1975 said there where four main areas of complaint: 1. Language used in many acts is obscure 2.

Acts are over elaborate as draftsmen try to provide for every contingency. 3. Internal structure of acts was illogical, finding a required bit is difficult. 4. Lack of clear connections between acts, hard to find all acts on a subject.

Also habit of amending bits makes it even harder. o Committee made 81 recommendations only half implemented. Accessibility The different date's acts are brought in means it is hard to know which parts are law and which aren't. Even the L Chancellor has difficulty. Other Problems Many Statutes are amended so two statutes have to be read o In 1992 the report of the Hansard Society Commision underlined 5 principles for democratic law making: 1. Laws are made for benefit of citizens and they should be involved. 2.

Should be exposed to democratic scrutiny. 3. Intelligible as possible. 4. Accessible as possible. 5.

Getting it right as important as being quick. If these where followed it would lead to a better quality of the statue book. Codification and consolidation would lead to better accessibility. 1.8 Parliamentary Sovereignty Parliamentary law is sovereign over all other forms, delegated legislation, precedent, custom or previous act of parliament. The view that M. P's participate in the legislative process on behalf of their constituents is too simplistic. o Mps usually vote on party lines o Elected on small majority of constituents o If vote against constituents wishes will be 5 yr before they can be changed. H of L also un elected as well as civil servant draftsmen.

2 Delegated Legislation o Law passed by body other than parliament but with parliamentary consent. o Powers usually laid down in 'Parent act' know as enabling act which creates framework of the law and then delegates the power to others to make law more detailed in that area. o e.g. Access to Justice Act which gives L Chancellor power to make changes to legal funding scheme. 2.1 Types of delegated legislation Orders in Council o Queen & Privy council have authority to make orders in council under emergency powers act 1920, but only usually used in emergency if parliament are not sitting. Statutory Instruments o Ministers and government departments given authority to make regulations for area under their responsibility. o Use of statuary instruments is a major method of law making, about 3000 statutory instruments brought into force each yr. Byelaws o Done by local authorities to cover matters within their own areas. o Byelaws also made by public corporations such as British Airports Authority. e.g. smoking ban. 2.2 Need for delegated Legislation 1. Lack of time for parliament to debate all complex regulations.

2. Parliament may lack technical expertise, local knowledge 2.3 Control of Delegated Legislation o Must be regulation as it is made by unelected bodies and by so many. Control by Parliament o Fairly limited though have initial control with enabling act to set parameters within which the delegated legislation is to be made. o In addition: Delegated Powers Scrutiny Committee 1993, checks if delegated power was used inappropriately. o Reports to H of L before committee stage, no power to amend. Affirmative resolution o Small amount of startutary instruments will be subject to affirmative resolution. o Means Statutory instrument does not become law unless approved by parliament o Will be included in Enabling Act. o Problem is that parliament cannot amend the statutory instrument only approve, annul or withdraw. Negative resolution o Most statutory instruments will be subject to NR.

Meaning becomes law unless withdrawn by parliament in 40 days. Scrutiny Committee o Joint Select Committee on Statutory Instruments 1973 / SC, reviews all statutory instruments and can draw attention of both houses for further consideration. o The review is technical not on policy. o The main reasons for referring to H of C is: 1. Imposes tax or charge - only elected body has the right. 2. Appears to have a retrospective affect not provided for by enabling act. 3.

Gone beyond powers given in enabling legislation. 4. Unclear or defective I some way. Control by he courts o Delegated leg challenged in court if Ultra Vires. i.e. goes beyond powers. o May be made through judicial review procedure or come up in civil claim. o Any del leg found to be UV is void. e.g. R vs. Home secretary ex parte fire brigade union, changes made by HS on CICA where beyond powers given in Criminal Justice Act 1988. o Courts presume unless expressed in enabling act the following are Ultra Vires o Make unreasonable regulations o Levy taxes o Allow sub delegation o Sts Instruments can be void if procedure is wrong or conflict with European legislation.

Criticisms of the Use of Delegated Legislation 1. Takes law making away from elected. Would be ok if better control over non elected but as seen it is limited. Byelaws ok as they are elected. 2. Sub delegation is written by civil servants and merely rubber stamped by ministers.

3. Large volume of delegated legislation means it is hard to find what the actual law is. Most done in private non public like parliament. 4. Shares problem of wording with parliament. 3 Statutory Interpretation o Cases come before courts due to dispute over meaning of act of parliament. o Government sometimes includes sections defining key words in the statute. o Reasons for problems: 1.

Broad Term A word which is meant to cover several possibilities - how wide does it go 2. Ambiguity Word which has two meanings. 3. Drafting error May be error in writing which was unnoticed. 4.

New development Old acts may not cover present situation, e.g. Royal College of Nursing vs. DHS S and abortion. 5. Changes in Language Words meanings may change. 3.1 Literal Approach V Purposive Approach o Cheeseman case had the judge taking the word passenger to mean exactly what it does, the actual aim of the act was ignored. o The Purposive approach takes into account the broader meaning. o Big conflict in stat inter is should judges take purposive or literal approach. o Should judges examine each word & take the literal approach. o Or should they understand that it is hard to cater for all meanings. o European Law uses the purposive approach. o Criticised by Denning as not defining what each word means but as it is translated into many languages there are not always exact translations. There are three rules for interpretation which have developed for English law: o Literal Rule o Golden Rule o Mischief Rule Some judges prefer one over another, which can mean very different outcomes depending on the judge. Though formal precedent takes over once a decision has been made.

3.2 The Literal Rule Court gives word plain, ordinary or literal meaning, even if it leads to an absurdity. Some judges say if the meanings are clear then a judge should not be concerned if the law has made an absurdity. Case: Whitley vs. Chappell (1868) Rule said illegal to impersonate anyone entitled to vote; he impersonated a dead man who is obviously not entitled to vote so not guilty. Case: London & North East Railway Co vs. Berri man (1946) Oiling points, no look out, fatal accidents act said lookout for repair and laying, not maintenance, so no compensation. Micheal Zander says 'literal rule is mechanical & divorced form the realities of the use of language. 3.3 Golden Rule Modification of literal rule: courts look at literal meaning but can avoid interpretation that results in absurdity.

There are two views: 1. Jones vs. DPP says if there are two meanings you can choose between them. If only one meaning, then must choose it. Case: R vs. Allen (1872) Bigamy, marriage could mean legally marrying or joining, as you can't marry if already married no one would be guilty, so golden rule applied. 2. The second and wider application.

If the word has only one meaning that would lead to a repugnant outcome, then the judge can modify the word of the statute to avoid it. Case: Re Sigs worth (1935) Murdered mother and Administration of Estates Act 1925 made it clear next of kin would inherit; the golden rule was applied, as a repugnant outcome would result. 3.4 The Mischief rule Definition comes from: Case: Hey don (1584) It said the courts should consider four points. 1. What was the common law before the act? 2. what was the mischief and defect the common law did not provide for? 3.

What was the remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? 4. The True reason of the remedy. Under the rule the court should look at what law was before the act in order to discover what gap or 'mischief' the act was intended to cover.

The court should interpret the act to ensure the gap is covered. Case: Smith vs. Hughes (1960) The street offences act 1959 said it was an offence to solicit in a street or public place. They where doing from their balconies or rooms. The judge saw that the mischief was prostitutes harassing people, so the fact they did so on own property is irrelevant. 3.5 Rules of Language Even literal rule does not take individual words out of context with the sentences. There are a number of rules which have been developed to help make meanings of words and phrases clear where a particular sentence construction has been used.

1. The Ejusdem Rule If there is a list followed by a general word, e.g. theatre, cinema, bowling alley, then the general word 'or other places of amusement,' then it would be unfair to regard the general word as outdoors. If there was just theatre once, then the general word could be an amusement place. 2. Expression Units Exclusion Alter ius (the mention of one thing excludes the other). If there is a list of words with no general one then only the places listed can be covered by the act.

3. Noscitur a Soci is (a word is known by the company it keeps.) Words should be looked at in context to other words in the act. e.g. the word interest used in an act could mean monthly, or yearly etc, but later on it says 'and other annual interest,' so it means that it is actually yearly. 3.6 Presumptions Courts will make assumptions or presumptions about the law, though if the statute clearly says the opposite then the presumption is rebutted. These are the presumptions: 1.

A presumption against the change in a common law. Unless an act makes it clear that a common law has been altered then the common law still applies. 2. A presumption that mens rea is required in a criminal case.

This means that in order to commit a crime the required intention is needed. In Sweet vs. Parsley 1970 an owner of a building leased it out to cannabis smokers. She did not know. The new act said nothing about the need for knowledge of a criminal event, though mens rea was not specifically rebutted so still stood as common law. 3.

A presumption that the crown is not bound by any statute unless the statute expressly says so. 4. A presumption that legislation does not apply retrospectively This means no act of parliament will be back dated, only comes into affect on date stated. 3.7 The Unified Approach How do all the rules fit together?

It is said there is a unified approach to interpretation so that: 1. Judge should start by using grammatical and ordinary or where appropriate, technical meaning of words 2. If thought it could produce absurdity then may apply second meaning 3. Judge may read in words in the statute to give meaning to others, limited power to alter add or ignore words to prevent absurd outcome. 4.

In applying these rules judge may resort to various aids and presumptions. This is basically the literal approach and not the purposive approach which some judges tend towards today. 3.8 The Purposive Approach o Goes beyond mischief rule of filling in gap, the judge tries to apply what he thinks parliament where trying to achieve. o Denning championed this approach. He said he is there to carry out parliaments intentions. o H of L criticized him as they said we are ruled by parliaments enactments, not by their intentions. o It is criticised as how can the intention of parliament be found if the words they use are ignored. European Influences European law uses the purposive approach and so do many European countries. In the U. K it is basically accepted that purposive approach has to be used when dealing with law emanating from Europe, using it in this way is also making judges more use to it.

3.9 Finding Parliaments Intention There are certain ways in order to help them with interpretation of statutes and help them find parliaments intention: Intrinsic Aids o Matters within the statute itself which may help meaning clearer. o Perhaps long, short title or preamble. o Sometimes headings before a group of sections may help. o Marginal notes. Extrinsic Aids o Matters outside the act. o Accepted some external sources can help explain meaning of act: o Previous acts on same topic o Historic setting o Earlier case law o Dictionaries of the time o Used to be strict that no other extrinsic aid be used, but now three allowed: o Hansard - report of what said in parliament when act debated. o Reports of law reform bodies which led to passing of act. o International conventions which have been implemented by English legislation. Use of Hansard o Until 1992 strict that hansard not be used. o Denning tried in Davis vs. Johnson o H of L said it was wrong as the cut and thrust of debating did not represent government intention. o In Pepper vs. Hart 1993 H of L said Hansard could be used o Hansard could be used where the words of an act where ambiguous, obscure or lead to an absurdity. o Cost and extra time result in the use of Hansard. Law Reform Reports o Black Clawson 1975 relaxed rules on never using LRR. o Could be used to find mischief gap.

International Conventions o Fothergill vs. Monarch Airlines 1980, H of L said the original convention could be considered as it was possible the meaning was lost in translation. o As other countries are allowed to look at the travaux preparator ies or preparatory notes of an international convention, so should we to keep uniformity in the interpretation of international rules. Explanatory Notes o Since 1998 explanatory notes are produced alongside bills. o Done by dept responsible for bill. o Usually explain background, summarise main provisions and if a complicated point, give worked examples. o Notes get extended as the bill progresses and final version made when becomes statute. o Potentially new extrinsic aid. o As the notes are not part of the law it may cause conflict on their use. o Not yet been a case to use them on. o Purposive approach judges will like them, not literal approach judges. 3.10 Interpretation of European Law European Union Law o In regards to European law courts must interpret it according to wording and purpose of the law. o Treaty of Rome says its all member states duties to take all appropriate erasures to ensure fulfilment of obligations. 3.11 Human Rights Act 1998 o Section 3 of the Human Rights Act 1998 says that legislation should be read and given effect in a way which compatible with the rights in the HRA, this applies to any case where one of the rights is concerned. not applied if no right involved. o e.g. crime act said life sentence for second serious crime unless exceptional.

In R vs. Offen 2001 it was decided the earlier view of exceptional being its general definition was in breach of HRA, if not a danger to public then exceptional. 3.12 Conclusion o View change to purposive and towards extrinsic aids. o Depends upon individual judge.