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Chapter 2: The Creation of Law Outline 2.1 Introduction 2.2 The elements of the UK constitution 2.3 Acts of Parliament 2.4 The Human Rights Act Delegated legislation 2.6 Case law 2.7 Interaction
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Chapter 2: The Creation of Law Outline 2.1 Introduction 2.2 The elements of the UK constitution 2.3 Acts of Parliament 2.4 The Human Rights Act Delegated legislation 2.6 Case law 2.7 Interaction between Acts of Parliament, secondary legislation and case law 2.8 Summary Aims of this Chapter This chapter will enable you to achieve the following learning outcomes from the CILEx syllabus: 2 Understand what the organs of government are 3 Understand how an Act of Parliament is created 4 Understand the meaning of delegated legislation 5 Understand how the doctrine of judicial precedent operates 7 Understand the court hierarchy 8 Understand the relevance of the European Convention on Human Rights 2.1 Introduction In this chapter we will consider the three key elements of the UK constitution and the political theory known as the separation of powers. These three elements are sometimes referred to as the organs of government. We will see how these elements are involved in the creation of Acts of Parliament, statutory instruments and case law. In addition, we will consider the way in which judges use an interlocking body of earlier cases to guide them as they decide new cases. This is known as judicial precedent. 2.2 The elements of the UK constitution In many countries, including the United States and the Irish Republic, there is a single written document which attempts to set out the key institutions of the state and the relationships between them. These documents matter not only to lawyers and politicians but also to the general population who see them as fundamental to their nation s sense of identity. The United Kingdom does not have any single document labelled The Constitution, although the institutions and rules governing their relationships are set out in a number of historical and more recent documents. The political theory known as the separation of powers was very influential on the United States constitution amongst others. It identifies three basic elements to a constitution: the legislature (Parliament); UQ01 CLS 11 the executive (the government); the judiciary (judges). According to this theory there is a threat to liberty if the three types of function, legislative, executive and judicial, are not carried out by separate institutions. Students should note that the UK constitution does not maintain this strict separation. In particular, the legislature and the executive overlap, although the judicial function is separated out. Parliament Government The legislature (Parliament) Judiciary The key function of the legislature is to make laws. The UK Parliament in Westminster, London passes laws which affect all four countries in the UK: England, Wales, Scotland and Northern Ireland. The Scottish Parliament, National Assembly for Wales and the Northern Ireland Assembly have the power to pass their own laws where the Westminster Parliament has devolved limited areas of policy. The UK Parliament consists of two Houses of Parliament: the House of Commons and the House of Lords. In addition, the head of state, the Queen, plays an important formal role in the institution of Parliament. (1) The House of Commons The territory of the United Kingdom has been divided into 650 separate areas of land reflecting a roughly even split of the population. Each area of land is known as a constituency. Every five years at a General Election each constituency elects a Member of Parliament (MP) using a voting system called first past the post. Essentially, whichever candidate has the highest number of votes in each constituency becomes its MP. Most MPs belong to the major political parties, the Conservatives, Labour Party and the Scottish Nationalists UQ01 CLS The next General Election will take place in May On 1 October 2018 the map of parliamentary constituencies will be re-drawn (see s6 Electoral Registration and Administration Act 2013) so that the 2020 General Election will take place with only 600 constituencies electing 600 MPs. (2) The House of Lords The House of Lords has approximately 790 members who are commonly referred to as peers. The majority are appointed for life and are known as life peers. They are appointed formally by the Queen on the recommendation of the Prime Minister or the other party leaders. Some are appointed by the independent House of Lords Appointments Commission. There are also 75 hereditary peers who have inherited their aristocratic titles such as Earl or Baron from their fathers (only two of the hereditary peers are women). In addition, 26 senior bishops of the Church of England are also members. The House of Lords is an undemocratic institution whose membership will carry on increasing until it and the House of Commons can agree on reforms. (3) The Monarch Queen Elizabeth II is the head of state of the United Kingdom and became queen following the death of her father, King George VI. Her eldest son, Prince Charles, will become king on her death under the hereditary principle. Her role is now largely symbolic and ceremonial. She will formally open Parliament and give the Royal Assent to all Acts of Parliament The doctrine of parliamentary sovereignty This is a fundamental principle of the UK constitution. It states that Parliament has absolute power and that no Parliament may make any law which limits the law-making powers of future Parliaments. Some politicians and legal writers have argued that the principle has been breached by the Human Rights Act 1998 and the effects of membership of the European Union. (1) Name two categories of members of the House of Lords The executive (government) The role of the executive, or government, is to govern the country. The Queen, as head of state, will ask the leader of the political party which has won the largest number of seats (constituencies) in the House of Commons at a General Election to form a government. If the largest political party does not have an absolute majority of seats (more than half i.e. at least 326), the leader of that party will seek to form a coalition government with another political party. In 2010 the Conservative Party was the largest party in the House of Commons following the General Election but did not have enough seats for UQ01 CLS 13 a majority. Its leader, David Cameron, formed a coalition government with the Liberal Democrats. The Queen then appointed David Cameron as Prime Minister. In May 2015 the Conservatives formed a government on their own after winning 331 seats, an absolute majority. The Prime Minister will then select his or her government ministers from members of their own party who are MPs in the House of Commons or peers in the House of Lords. The most senior ministers are known as Secretaries of State and include the Chancellor of the Exchequer who is responsible for the nation s finances. They are assisted by Ministers of State, Parliamentary Secretaries and Whips (government business managers). The Prime Minister is assisted in leading the government by a committee of about 22 senior ministers who are known as the Cabinet. Each minister is allocated to a different department with, for example, the Secretary of State for Defence having responsibility for the Ministry of Defence. The ministers are assisted by civil servants who are required to be politically neutral. Ministers are able to make many decisions on their own about the activities and spending priorities of their departments, taking advice from their civil servants. In some cases they are able to make law in the form of delegated legislation (rules and regulations). The Prime Minister and the Cabinet will introduce Bills into Parliament which will become law in the form of Acts of Parliament, if approved. All ministers are expected to vote for government Bills and support government policy more generally, in public at least. If a minister is not willing to do so, he or she is expected to resign under the doctrine of collective ministerial responsibility. (2) All government ministers must be members of the House of Commons. True or false? The judiciary (judges) The role of judges in the UK constitution is to apply the law to decide the cases brought before them in their courts. They are independent of Parliament and the government. As well as deciding which of the parties to an individual case wins, judges use their judgments (written statements of legal reasoning justifying their decision) to describe and develop the underlying law. Judges in later cases will refer back to these judgments and apply the legal reasoning to the facts in their own cases. This is known as the doctrine of judicial precedent. Judges have the power to review decisions of government ministers and other decision-makers to check that they have acted within their legal powers. This process is called judicial review. 14 UQ01 CLS 2016 Copyright CILEx Law School Limited All materials included in this CLS publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of CILEx Law School Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. CILEx Law School Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2016 by: CILEx Law School Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB British Library Cataloguing in Publication Data A catalogue record for this manual is available from the British Library. ISBN
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