mhage
MODEL ANSWERS AS LAW
LAW01 EXAM
JANUARY 2013
Law Making and the Legal System
'Describe the law making procedure in Parliament' (10)
Or Outline the process in the House of Commons and the House of Lords in the making of an Act of Parliament (10)
A bill is a proposed law that must go through 11 stages in parliament, before it becomes actual law, an act. The majority of Acts of Parliament are introduced by the government in the House of Commons (HOC) and are called public bills, as they are laws that affect everyone, eg Dangerous Dogs Act 1991 outlawing certain types of dogs. After a proposed Act has been drafted and published it becomes a Bill. A Private Bill can eb introduced by an individiual MP who wishes to make a law on behalf of a specific issue affecting his constuency or even the wider public, eg Edward Berry and Doris Eileen Ward (Marriage Enabling) Act 1980. Finally a bill can be a hybrid bill which may affect the public but is specifically aimed at an organisation or company and can be introduced by a single MP or the government, for example the Channel Tunnel Act 1996 gave legal authority for a company to build this transport link.
Most Bills start this procedure in the House of Commons although Bills can start in either of the two houses. For the purpose of this, the Bill is assumed to have started in the Commons.
The first stage a Bill takes is the First Reading. The purpose of this is to introduce the members of parliament to the Bill and to inform them on what the Bill is about and is done by a gernment minister if it is a public bill. MP’s aretold of the broad aims, at this stage, not the actual contents of the Bill as there is no debate. Once a Bill has been given its first reading, it is printed so that Members can read the details of the proposed Bill and a verbal vote takes place.
Presuming the bill reaches the second reading an explanation ofthe purpose ofthe Bill is given and the main aims are debated by the HOC.. MP’s can ask the Minister questions regarding the Bill. After the reading a vote takes place where the Members of Parliament vote whether they are in favour or against the Bill. Oniy if the majority ofthe House vote ¡n favour ofthe Bill does it proceed to the next stage.
The next stage is known as the Committee Stage. This allows between 16-50 MP’s from different parties to be conduct a thorough analysis of all the details ofthe proposed Bill. The membership ofthese committees is always represented proportionally to the number of seats each party has in the Commons. The Members of Parliament nominated for each Standing Committee will usually be those with a special interest in, or have knowledge of, the subject ofthe proposed Bill.If it is a finance bill the whole of HOC must debate this stage. A detailed examination ofthe Bill is given clause by clause at this stage. It is during the Committee Stage that Members are allowed to suggest changes and amendments to the Bill.
After the Committee Stage, the whole House of Commons will be given details of what happened in that stage as oniy a small number of members wouid have been present to witness it. This stage is known as the Report Stage. If there have been alterations to the Bill, it wouid have to be reprinted before the Report Stage to allow all members access to the amended Bill. Further changes can be suggested by MPs at this stage if they so wish and a vote is taken on any amendments.
The Third Reading ofthe Bill follows the Report Stage. This allows the House of Commons to look at the amended Bill as a whole and decide whether it shouid be taken further or not. At this stage, substantial modifications cannot be made to the Bill and it ¡s either accepted or rejected by the MPs.
Once a Bill has passed its Third Reading in the Commons, one of the Clerks at the Table carries the Bill to the House of Lords, so that the Lords can consider it as soon as possible.
If the Bill started life in the House of Commons ¡t will then be passed onto the House of Lords where ¡t goes through the same five outlined stages as mentioned before. If the House of Lords make amendments to the Bill it will be passed back into the House of Commons for the alterations to be considered.
The final stage before the Bill becomes an Act of Parliament is where the monarch finally gives approval to the Bill and it is oniy after that that the Bill becomes an Act. Under the Royal Assent Act 1961, the monarch will not have the text of the Bills; they will oniy be supplied with the short title.
The Parliament Acts 1911 & 1949 ensure that a Bill, if rejected by the House of Lords, will be taken back into the Commons and will be accepted i fthe House of Commons pass ¡t the second time. This can only happen after 1 year of rejection of the bill by the HOL and is sometimes referred to as “ping pong”, for going backwards and forward between both houses.
Following the Royal Assent, the Act of Parliament will come into forcé on midnight ofthat day, unless another date has been set. Recently, however, a growing number of acts are not implemented immediately after they receive the Royal Assent. On these occasions the Act itself states the date on which the Act will come into force.
Describe any one influence operating on Parliament in the law-making process.
(10 marks)
During the law-making process, the Law Commission can influence Parliament. The Law Commission was created by the Law Commission Act 1965, and updated in 2009. The Law Commission continually review and update the law, by advising the government on what bills they should introduce. It is a full time government organisation, with the aims of keeping the law fair, simple, modern, and as cost effective as possible.
There are five commissioners. The chairman of the Law Commission is a High Court judge or an Appeal Court judge, creating independence from the government. Other experienced judges, barristers, solicitors or teachers of law, sit on the law commission. These are then supported by teams reflective of that particular area of law, e.g. criminal law.
The Law Commission has a continual process of reform. The government asks the Law Commission to look at a law; commissioners then research the law, ask the public how it can be improved, and then write a detailed report with recommendations. They propose new laws to the government, of which a considerable amount, however not all, are then introduced into Parliament as bills.
The Law Commission takes a role in codifying law. They take all acts, and case law (which is decided upon by judges), to then reform and modernise it into one single Act of Parliament. For example the Corporate Manslaughter Act 2007 reformed the law, with the aim of improving the chances of prosecuting companies for deaths caused by their negligent working practices.
They also consolidate law; this still involves putting all acts and case law into one; however there is very little change to the law as it stands. For example the Powers of Criminal Courts Act consolidated sentencing legislation which had previously been separated into twelve various acts.
The Law Commission also recommend repeals of the law. As they are a body of continual reform for legislation, they regularly check the law and recommend repeals on out of date and irrelevant acts. For example the Statutory Law (Repeal) Bill was recommended so that 800 out of date laws could be repealed, e.g. laws regarding Indian railways, irrelevant due to the fact that Britain no longer owns India.
Outline the following:
- the nature of the green and white papers and purpose
- the law making process in the House of Commons
Green and White papers are publications made by the government after a party has been voted in by the public based on their manifesto.
Green papers are published to highlight issues, and the ways in which they can be dealt with including the legislative process. The government consult the people who are most likely to be affected, before making a report on all the suggestions and comments made by those consulted. An example of this is the issue of families and relationships, in which the legal access of grandparents was reviewed. In this case, the government consulted grandparents, children and parents.
White papers are the next step after the green papers. Again, they are a government document, however these provide more specific details of suggested changes to the law; enabling the affected groups to be given more detailed briefing on the proposals, before giving their views. The government then use this to decide whether or not to continue with the bill. An example of this is the importance of Teaching. The people consulted were teachers, teaching unions and parents.
After the green and white papers are released, the proposal becomes a bill, which then undergoes 5 stages in the House of Commons. These are the first reading; where the main aims are read and the copies are distributed. Then it reaches the second reading if a verbal agreement is made for it to go ahead. Another vote is then made and the bill is gone over.
The bill then goes through the committee stage where 16-50 MPs gather and discuss the bill clause by clause, before feeding back to the rest of the house, in the Report Stage. A vote is again taken and the bill is accepted or rejected. The house will made additional amendments here.
After this, the bill reaches the Third Reading, which is just a formality. The bill is very unlikely to fail this stage after having made it through all of the others. Further amendments may also be made.
The same five stages are then taken through the House of Lords, who may reject it if they do not approve. In this case, under the Parliament Act 1911 and 1949, after 1 year of ‘ping-ping’ between the two houses, the House of Commons may take the act straight to receive royal assent. The bill then becomes an act.
Advantages and disadvantages of law commission
To begin, Law Commission aims to ensure that the law is as fair, modern, simple and as cost-effective as possible. It also aims to conduct research and consultations in order to make systematic recommendations for consideration by Parliament and to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.
To start of an advantage of law commission would be that it enables laws to reform to be debated and discussed. Another advantage is that laws are continually being checked to make sure they are fair, modern, simple and as cost effective as possible and as a result of this they are constantly researched and looked at by people with the right level of expertise. There are five commissioners, all of whom work full-time at the Commission. The chairman is either a High Court Judge or an Appeal Court Judge who is appointed to the Commission for up to three years. Commissioners include Professor Elizabeth Cooke, David Hertzeu, Professor David Ormerod and Frances Patterson. The Commission is independent and so is not political making the reforms quicker and with better intentions. An example of an advantage of law commission would be when the law commission published its report “reforming bribery” on November 20th 2008 which sets out its proposals for reform of the law in England and Wales on bribery. The recommendations, if accepted, will have a direct impact on companies carrying out business activities overseas and may require such companies to re-think their existing business ethics policies.
Disadvantages to law commission could include non-implementations of recommendations. An example of a proposal which has not yet been implemented could be the Partnership Law which recommended weaving together the law on general and limited partnerships. Under the current law a partnership in England and Wales is not a legal entity separate from its members. Another disadvantage could be the non-consultation of the Governments; sometimes it is better to have the Government involved as they are powerful. The Law Commission sometimes have lengthy investigations which is also a disadvantage.
Describe the Law Commission as an influence operating on Parliament in the law-making process
The Law Commission is the statutory independent body created by the Law Commissions Act 1965 - more recent: 2009. Their job is to continually review and recommend reform where it is needed. It is a full time government organisation consisting of: high court judge, 4 law commissioners, support staff to assist research and 4 parliamentary draftsmen.
The Government asks the Law Commission to look at laws and they have a continual process of reforming. They ensure laws are simple, fair, modern and cost-effective to provide effectively for the current and future needs of the rapidly changing society. They codify the law; consolidate laws and recommend repeals of old laws in order to make systematic ideas for consideration by parliament.
The role of consolidating law means to make very little change to laws but to pull together acts into one. For example, Powers of Criminal Courts (Sentencing Act) 2000 brings together parts of several other acts dealing with sentencing and treatment of offenders. With amendments, it consolidated sentencing legislation previously spread across 12 separate laws.
The role of recommending repeals of old laws basically means getting rid of old laws. For example, Statutory Law (Repeal) Bill 2012 – there are 800 out of date laws to be repealed, one including Indian railways which have 38 acts relating to it which were enacted between 1849 and 1942. India gained freedom in 1947 therefore there is no point in the laws as Britain doesn’t even own India anymore.