How is an Act of Parliament made?

1) Proposal stage
4 main sources: The Government, Advisory Agencies, Pressure groups, MP's

2) Consultation 
GREEN PAPER- discussion document where the proposal is outlined
WHITE PAPER - 'firm proposal' produced by the Minister and forms basis of any Bill to be introduced 

3) Drafting
-proposal to be written into formal language into a BILL--> to make it clear what Parliament is discussing

a) Public Bill- affects public as a whole and could affect everybody e.g. new type of crime 

i) 2 types: Government bills--> when a new government is elected they normally have a number of new policies to introduce

• government usually has a majority of HofC and can use the 'whip system'
• underlined once- MP attendance requested
• underlined twice- necessary attendance 
• underlined three times- essential (Chief Whip's permission not to attend is required) 

ii) Private members' bill--> sponsored by an individual MP in their individual capacity rather than political party

• less likely to succeed= support for proposal cannot be guaranteed or due to lack of Parliamentary time

b) Private bills- only intended to affect one particular area or organisation

DRAFTING= bills must be clear + simple (slow process) 

4) Enactment

• Bill must be introduced into Parliament
• can start process in either House
• Personal Bills always start in HofL

STAGES 

1. First Reading
2. Second Reading
3. The Committee Stage
4. Report Stage
5. Third Reading

SAME STAGES FOR HofL

5) Royal Assent

no sovereign has refused to sign a Bill since Queen Anne in 1707

1. Letters Patent- allows the speakers of BOTH houses to announce RA
2. Commission- document which commands certain Lords to go to HofL and announce to BOTH houses that RA has been given 

Judicial Precedent

Principles to remember

stare decisis- stand by what has been decided and do not unsettle the established.
This requires a later court to use the same reasoning as an earlier court where 2 cases involved raise the same legal issues.
-gives fairness and certainty in the law
(THE ENGLISH LEGAL SYSTEM IS BASED ON THIS MAXIM)

obiter dicta- rest of the judgement (other things said)
-do not have to follow it as it is not binding

ratio decidendi- reason for deciding (forms a precedent)

Common Law Reasoning- dispute which is not covered by legislation--> judges will look at previous decisions made by judges

Binding precedent- precedent from an earlier case which must be followed (even if the judge does not agree with its legal principles)
ONLY binding if the facts of the case are similar
- judge will extract information from the 'fabric of the case law' to find principles that can be adapted


Original precedent- new legal principle, case where nothing similar has happened before (no legislation or precedent)

CASES
1) Airedale NHS v Bland (1993) issue: when do you die + issue of crime of murder
Bland- vegetative state after severe injuries during the Hillsborough Football disaster
switching off machines? - is this murder? 

2) Gillick v West Norfolk and Wisbech AHA (1985) issue: contraceptive pill given to under 16's
consent of parents was required if under 16, no previous precedents on this issue
HELD- without parent's consent if she was considered mature enough to make that decision

Persuasive precedent- judge may consider it and decide it's the correct principle --> if persuaded then he should follow it

a) courts lower in the hierarchy
R v R (1991) = House of Lords agreed and followed the same reasoning as the Court of Appeal 

b) decisions of courts in other countries
-where another country uses the same ideas of common law--> their decisions might be considered e.g. Australia, Canada

c) a dissenting judgement
-case decided by a majority e.g. 2-1 in the Court of Appeal
judge who disagreed will explain his reasons- if there is a later case and it goes to HofL (possible that HofL considers dissenting judgement

d) statements made obiter dicta

R v Howe (1987) - obiter= Lords commented that duress would not be available as a defence to someone charged with attempted murder

R v Gotts (1992)- obiter from Howe was used

e) decisions of the Judicial Committee of the Privy Council (not part of the court hierarchy)
many of it's judges are members of the House of Lords- judgements treated with respect

case of Wagon Mound (No1) (1961) 
law on remoteness of damage in the law of tort + the decision made by the Privy Council
(in later cases the courts of England and Wales followed this decision)


FLEXIBILITY

F ollow
O verrule
R everse
D istinguish

Reversing and Overruling- the higher courts can reverse (if the case goes on appeal) or overrule the decision of a lower court.

Fitzpatrick v Sterling Housing Association (1999) 
Rent Act 1977- In CofA decision from lower court was reversed (the Act did not mention same sex relationships) - taken the 'literal' approach 

Mr T appealed to House of Lords--> decision reversed again 
Mr T was not considered a 'spouse' 
HofL gave the Act meaning of 'family' 


Daris v Johnson (1978) 

- interpretation of the Domestic Violence Act 1976

Lord Denning had consulted Hansard in making his decision
- decision from Cof A was appealed to HofL (reversed) 
HofL stated that judges were not allowed to refer to hansard when interpreting statutes= decision overruled in case of Pepper v Hart (1993) - now they may refer to it

DISTINGUISHING- method can be used by a judge to avoid following a past decision which he would otherwise have to follow.
material facts of the case are sufficiently different for him to draw a distinction between the present case and previous precedent

Court of Appeal- normally bound by its previous decisions

exceptions laid out in Young v Bristol Aeroplane Co (1944) 

• where previous decision was given per incuriam
• ratio in question is one of a nu,ber of conflicting previous decisions
• the ration conflicts with a later HofL decision or statute

Criminal division: same exceptions as civil division plus

• not bound where in the previous case the law was misapplied/misunderstood which resulted in a conviction (to follow the same decision would lead to injustice) 
• judges in Criminal Division have more flexibility to go against their previous decisions (they're dealing with the liberty of individuals) 

House of Lords& Practice Statement

Up until 1966 the HofL were bound by previous decisions, this meant that the law could not develop and could lead to injustice 

PRACTICE STATEMENT

• more flexibility
• Lord Chancellor issued it announcing a change to the rule in London Street Tramways v London County Council
• HofL will depart from previous decisions when 'it is right to do so' 

Departing --> only applies to decisions made by HofL

Addie v Dumbreck (1929)- occupier of land owed no duty of care to trespassers on their land when a child was killed playing on machinery

However HofL said they do owe duty--> now laid out in Occupier's Liability Act 1984
British Rail Board v Herrington (1972)- 6 year old boy was injured on electrified tracks owned by the BRB

followed Addie v Dumbreck 


Advantages

• certainty 
• flexibility: overruling, per incuriam, distinguishing, reversing, declaring ratio is out dated (R v R)
• provides a ready answer to all disputes
• avoids awkward precedents

Disadvantages 

• retrospective
• unsystematic development of the law
• rigid and methods of change are slow 
• its use is unpredictable
• illogical distinguishing may be used ^