AS Law

Andrew Mitchell

• Publisher: Routledge-Cavendish
• Year: 2008
• ISBN:
  9781134047635
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Written for sixth form and college students, AS Law covers the content of AS Law for AQA and OCR students in a lively and reader-friendly style. Topics are broken down into manageable parts, with clear headings and are illustrated throughout with photographs, diagrams, boxes and illustrations.

Each chapter includes:

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• an introduction outlining learning objectives relating to the subject specifications
• 'developing the subject' sections explaining a particularly important or difficult point in more detail, designed to challenge more able students
• a list of useful websites enabling students to access primary law materials intended to support chapter-by-chapter reading
• 'it's a fact!' sections highlighting interesting and contemporary applications of the legal principle under discussion
• dedicated sections providing detailed examination of key cases, within the context of the chapter discussion
• hints and tips for revision topics and strategies helping students to prepare for the types of questions that are most likely to come up in exams.

The book contains a wealth of opportunities to test and apply knowledge, with revision quizzes, quick tests and sample questions and answers within each chapter and there are additional opportunities for self-testing and revision available via the Companion Website.

This third edition has been revised and updated to take into account the new 2008 AQA specifications and contains a new chapter on contract liabilities, as well as expanded material on sentencing and court procedures. It also addresses recent legal developments such as the establishment of the Ministry of Justice, changes in the legal profession and the constitution, and the reform of the House of Lords.

AS Law provides a stimulating and exciting approach to the subject, profiling famous legal figures and examining law in films, fiction, non-fiction and on the internet whilst offering comprehensive coverage of the AQA and OCR subject specifications fulfilling all syllabus requirements.

1 The British constitution, law reform and the parliamentary legislative process

This topic enables you:

• To appreciate the role of Parliament as the dominant law-making power in the British constitution.
• To identify the influences on Parliament from law reform bodies, pressure groups and campaigners.
• To understand the law-making processes within Parliament.
• To identify the powers in the British constitution.
• To recognise that there are limits to the supremacy of Parliament in law-making.
• To take account of the importance of European Community (EC) law and its impact on the English legal system (to be read in conjunction with Chapter 5).
• To appreciate the far-reaching significance of some parliamentary law, such as the Human Rights Act 1998.

Most of this chapter will concern itself with the way in which law is made by Parliament. Parliament creates written law referred to as legislation or statute law. Legislation or statutes passed by Parliament take the form of Acts of Parliament. You can see from the illustration below, and from Chapters 1–5, that there are four main sources of law in the English legal system, of which Acts of Parliament are seen as the dominant source:

In order to understand Parliament’s law-making role, it is first necessary to consider the place of Parliament within the British constitution and to describe its relationship with the other constitutional powers.

THE BRITISH CONSTITUTION AND CONSTITUTIONAL THEORY

What are people referring to when they talk about ‘the constitution’? It is easier to imagine this if the constitution is declared in some form: for example, the United States has a written (or codified) constitution, which sets out the limits of presidential government. However, the position is complicated in Britain, because the constitution is a product of historical development and has never been reduced to one written code or document. Therefore, on a simple level, the British constitution is often described as an unwritten constitution. Although many of the sources of the constitution are written and documented, the British Constitution remains uncodified.

Nevertheless, whether written or unwritten, a constitution will, in practice, define limits for Government and administration in a nation State. In short, a constitution sets out the way in which a country will be run. Three aspects are generally defined in any constitution:

• The way in which power is balanced between the institutions (or governing bodies) of the nation State.
• The limits to the powers exercised by such institutions, imposed to safeguard the rights and freedoms of individuals.
• The extent to which individual rights and freedoms within the nation State are protected.

The three institutional powers in the British constitution are, according to the ‘separation of powers’ theory, the executive (Government: the administration that runs the country); the legislature (Parliament: the institution of law-making); and the judiciary (judges: the adjudicators in disputes).

Talking point 1.1: A written constitution for the UK?

Stephen Hockman, QC, as Chairman of the Bar Council, wrote to The Times on 8 February 2006 to suggest an important target to aim for: by 2015, the 800th anniversary of the first major constitutional landmark, Magna Carta, Britain should have in place the ‘enactment of a codifying measure which would contain in a single piece of legislation all the key constitutional principles and procedures which underpin the governance of the country’. David Cameron, as leader of the Conservative Party, has proposed a British ‘Bill of Rights’ in the same spirit, though this was prompted at the time by dissatisfaction with the Human Rights Act 1998 rather than by the desire to achieve a written, or codified, constitution for the UK. More recently, Prime Minister Gordon Brown has let it be known – via a Green Paper, titled The Governance of Britain (2007) – that the Government believes it is the right time to open the debate on three linked proposals: a ‘British statement of values’; a British ‘Bill of Rights’ to amend and support the Human Rights Act 1998 and the merits of a written constitution. It is pleasing to note that the approaching anniversary may have focused minds on Britain’s unique constitutional heritage, whilst also stimulating welcome debate about future constitutional arrangements.

Of the three institutional powers, constitutional theorists have identified Parliament as being the supreme law-making body. Parliament can make, or unmake, any laws that it wants. This is the theory of parliamentary sovereignty.

An additional theory is the rule of law as developed by the 19th-century theorist Albert Venn Dicey. This places an importance on law as a check on the arbitrary exercise of power by Government; and stresses that no one individual is ‘above the law’, thus ensuring equality of treatment for all before the courts.

Table 1.1 summarises what is meant by the ‘constitution’ and the main constitutional theories.

Table 1.1 The constitution and constitutional theories

Developing the subject 1.1: Focus on the separation of powers and the rule of law

The separation of powers theory is that the constitutional powers are to some degree separate, thereby ensuring that there are checks and balances in the system, thus limiting the power of Government and enabling the judiciary to have independence in reaching legal judgments on disputes. The value of this separation of powers theory, if applied in practice, is that it avoids totalitarian government: in Nazi Germany, for example, the evils of the system occurred because there were no checks and balances, and Hitler’s regime exercised dominance over all of the powers of the State. The judiciary lacked necessary independence and the executive controlled the legislature. The practical consequences were horrendous.

The rule of law clearly places limits on the exercise of powers by the Government and protects the rights of citizens. The rule of law theory, like the separation of powers, emphasises the need for keeping the institutions and their processes within reasonable limits so as to avoid totalitarianism.

The development of the British constitution

The constitution has evolved over time, with two main strands of historical development: first, the changing relationship between the monarchy, executive and Parliament; and, second, the landmark reforms that have extended rights and liberties and delimited constitutional powers. These are summarised by Table 1.2 below and explained in ‘Developing the subject 1.2’ opposite.

Oliver Cromwell, architect of the English Civil War and Parliamentarian, commemorated at Westminster

The role of the Crown in the British constitution

The title ‘the Crown’ is given to the monarch or sovereign of the country, that is, the Royal Head of State. The British monarch is also the Head of the Church of England and Head of State for assenting countries within the Commonwealth (an association of former colonial nations). In its practical operation, the Crown represents the monarch and, more significantly, the Government of the day – the executive – that has responsibility for governing the country, and can call upon ‘royal prerogative’ powers that have been established during the historical development of the common law.

The Crown has legal significance in two main respects:

• Through exercise of the royal prerogative.
• Through Crown immunity.

Table 1.2 The development of the British constitution

The Crown and the ‘royal prerogative’

In his landmark work on the Law of the Constitution (1885), AV Dicey defined the royal prerogative in the following terms:

The prerogative is the name for the remaining portion of the Crown’s original authority, and is therefore … the name for the residue of discre-tionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King [or Queen] him[her]self or by his [her] Ministers. (emphasis added)

In simple terms, therefore, the prerogative represents that part of the Crown’s power that has survived historical reforms and can still be exercised.

In practice, common law prerogative powers are rarely exercised by the monarch; and if they are, they are exercised in appearance rather than in substance. Maitland, the great legal historian, once wrote ‘the Crown does nothing but lie in the Tower of London to be gazed at by sightseers’ – a comment that emphasises the ceremonial rather than the legal role of the Crown as reflected by the monarch in the British constitution. This is the Crown acting as the ‘Queen (or King) in Parliament’. The following examples of the royal prerogative illustrate the point.

Developing the subject 1.2: Notable events in the historical development of the British constitution

Kings and Queens tended to wield ‘absolute’ power in affairs of State prior to the seventeenth century. The turning point came with the English Civil War (1642–1648) and the battle between the Royalists (represented by the ‘Cavaliers’), who supported the monarch, King Charles I, and the Parliamentarians (represented by the ‘Roundheads’), led by Oliver Cromwell, who sought to challenge the monarch’s powers. In bringing the relationship between the powers of the monarch and Parliament to the fore, it was not long before a settlement was reached which sought to define the appropriate balance of these powers. This settlement resulted from the ‘Glorious Revolution’ of 1688, in which King William III (William of Orange) agreed to a ‘bill of rights’ for the protection of individual rights and liberties, and parliamentary dominance over the monarchy was declared. After 1688, Parliament continued to gain power at the monarch’s expense, to the extent that the monarch is today a largely ceremonial figure with very limited powers (see further discussion of the Crown in this chapter).

As for constitutional landmarks, the Magna Carta of 1215, signed by King John and the major feudal landowners, is still seen as a reference point for the protection of civil liberties. It required that every man accused of a crime should be given a fair trial and be judged by his peers, and that the legal system be free of bribery and corruption. These principles are of continuing relevance today. The right to a fair trial, for example, is now explicitly protected in law under the Human Rights Act 1998, a very recent landmark in the development of the British constitution. This Act brings many of the rights and freedoms laid down in the European Convention on Human Rights into English law.

Other notable de...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Dedication
• Topic reference table
• Table of cases
• Table of legislation
• Introduction
• 1 The British constitution, law reform and the parliamentary legislative process
• 2 Delegated legislation
• 3 Statutory interpretation
• 4 The doctrine of judicial precedent
• 5 The European Union and European Community law
• 6 The courts structure and civil and criminal processes
• 7 Alternatives to courts
• 8 Judges
• 9 Lay persons in the English legal system
• 10 The legal Profession
• 11 Access to justice
• 12 Introduction to criminal liability
• 13 Introduction to tort liability
• 14 Sanctions and remedies
• 15 Introduction to contract liability
• 16 Experiencing the law
• Bibliography