Legislation in the United Kingdom

Roles of House of Commons, House of Lords and the Monarch in Legislation

The parliament of the United Kingdom is made up of two houses, the House of Commons and the House of Lords. Both houses preside over the formation of laws of the land however; the House of Commons is usually given more power in forming legislation than the House of Lords. This is usually done through Acts of Parliament which give the House of Commons the authority to present a bill to the Queen for Royal Assent before the House of Lords debates it. These are usually bills that are related to taxation or expenditure of public funds. In addition, the house of Lord has no authority to delay a bill for more than two parliamentary sessions within a year but these limitations only apply for bills that are originating from the House of Commons. It should be noted that a bill that seeks to change the parliamentary term limit must receive approval from the House of Lords (UK Parliament, 2019). To further prove how powerful the House of Common is over the House of Lords is that the House of Lords cannot amend the bills passed by the House of Commons unless under certain conventions like the Salisbury Convention, which is usually a rare case. In short, as the command of the House of Lords is greatly lowered bureaucracies thereby resting all the power of parliaments to the House of Commons.

According to the unwritten Constitution of the United Kingdom, the Queen is the head of the monarch which automatically makes her head of state. This is usually shown when the Queen`s image is appearing in currency, her portrait in government establishments and oaths of allegiance made to the Queen and her royal successors. The monarchy plays an insignificant role in government participation but talks delegate certain responsibilities through statutes or conventions to ministers or other government officials (Grant, 2009). There are certain activities done by the monarch directly that have a mild effect on the government powers like the Queen`s speech or the official opening of the parliament by the Queen. Decisions that lead to such event are not made by the monarchy. Hence, the monarchy in the UK may sometimes be considered to be holding an honorary position rather than an actively performing position.

Despite the monarch`s non-active role in active legislation, it is responsible of appointing the Prime Minister who will then have the power to hire or fire any minister making him or her the controller of the government. When appointing a Prime Minister the monarch must appoint the individual who has already been approved by the House of Commons who also belongs to the party with the majority seats in the House of Commons (Jones, 2009). In the case there is no majority party, then, the monarch will appoint the person with the greatest influence in parliament (Davison, 2009). In the past, the monarch had the authority to dissolve parliament and call for a fresh election but that privilege was taken away when Fixed-term Parliaments Act 2011 was passed but retained the power of probation which means that the monarch still holds the to regulate the activities of parliament.

Judicial Precedent and Law Development in the United Kingdom

A precedent is an act founded on common law, and has two main aspects namely: stare desicis, and hierarchy (Grarner, 2016). Stare decisis is a Latin term that means ‘stick to or follow already decided cases' hence following precedent. According to Amaral (2018), what this means is that once a decision is arrived at then the same decision has to be followed in case a similar situation arises in the future. The set of legal guidelines further recommend that since English courts are ranked according to the type of cases they handle, therefore, decisions passed by a higher court must be followed by lower courts so long as the case(s) in question are of a similar nature (Thompson, 1999).

On the other hand, the aspect of hierarchy means that a higher court can set precedence that lower courts must follow (Siltala, 2000). This principle finds it place in the case of London Street Tramways v London County Council [1898] AC 375, where it was decided that once a decision is made in the court about a particular aspect of the law, it becomes conclusive and cannot be reargued because otherwise the court would be reversing its own decision.

However, due to the inherent evolution of the law, this principle later changed in 1966 when the ‘practice statement’ was invented. Ideally, according to Wilson et al (2016), the practice statement holds that whereas the courts hold judicial precedence with high regard because it forms a foundation upon which the facts of individual cases can be defined, a strict adherence to judicial precedence may contribute to injustice in certain cases; apart from restricting the inner development of the law. Therefore, the practice statement provided a few exceptions to the application of judicial precedence by stating that whereas the courts are bound by former decisions, they are at liberty not be bound by such cases when it appears right to do so. For instance, in the case of Young v Bristol Aeroplane Co. Ltd [1944] KB 718, it was acknowledged that whereas the court of appeal was bound by its own decisions and the decisions of a higher court (i.e. The Supreme Court) it could deviate from such decisions in cases where do decisions are in conflict, hence the necessity of choosing which one to follow, when there is a per incuriam (a decision surely made by mistake), and when the Court of Appeal’s decisions are in conflict with the Supreme Court’s Decisions.

But the application of judicial precedence is also guided by three other principles namely reversing, overruling and distinguishing of cases. Basically, according to Wilson et al (2016), a distinguished case is a case whose facts are different from the facts presented in the preceding case; therefore it can be decided without following judicial precedence. For instance, in a court of appeal’ case of Balfour V Balfour [1919] 2 KB 571, Mrs. Balfour sought to enforce an agreement they had made by Mr. Balfour that she would be receiving certain amount of money each month after she fell ill and could not return Ceylon. While explaining why she lost the case, the court stated that there was no intention to create a legally binding relationship but rather, the agreement was a family arrangement hence unenforceable by law. Balfour v Balfour set precedence for the case of Merritt v Merritt [1970] EWCA Civ 6, also decided in the court of appeal. In this case, Mr. Merrit agreed in writing to pass a property to Mrs. Merritt after leaving her for another woman, on condition that the tittle would only be transferred to her when the borrowing secured in that property had been paid off. However, when the borrowing was paid off, Mr. Merrit refised to pass the tittle. Mrs. Merritt won the case because the agreement was created after the two had separated, hence distinguishing the case from Balfour v Balfour where the agreement was made when the two were still couples.

Next, according to Garner (2016) case reversal occurs when the court of appeal fails to follow the decision made by a lower hierarchy court because but instead substituted the rule by its decision. For instance, in the case of Lawton v Fleming-Brown [2006] AII ER (D) 287 that was first heard at the Magistrates court then to the High Court, Miss Lawton sued Mr. Fleming-Brown for going against a by law that prohibited playing football on a communal garden. The Magistrate Court decided in favor of Mr. Fleming by defining football as a game played by a team of 11. When Miss Lawton appealed the decision in the High Court, the decision was reversed when the judges decided that the activity was actually football.

Lastly, an overruled case is whereby the court of appeal changes the law and therefore previous decisions become null and void because they are not within law. For instance, in the case of Donoghue v Stevenson [1932] AC 562 overruled judicial precedence.

Rules for Statutory Interpretation and why the Law has to be Interpreted

Statutory interpretation trying to understand and explain the meaning of a particular legal statement, this is usually done by judges. Interpretation of the law is vital to avoid contentious situations in courts because in the UK about 9 out of 10 cases are appealed to higher courts due to disagreements about the meaning of words. This could be avoided nonetheless through the application of the various approaches to interpreting the law mentioned earlier (Jellum, 2013). The most commonly used approaches in England are the golden rule, literal rule, and the mischief rule. Judges can decide to use any of the three forms of interpretations but the approach used by a judge will depend on the judge`s philosophy of the law.

The Literal Rule

As the name suggests this aims to decipher the ordinary meaning of the legislation. It is also known as the plain meaning rule. Under this rule, it is the responsibility of the courts to give the meaning of every word in the legal statement whether the result makes sense or not. Due to the absurdity of results of the interpretation, this rule is rarely applied by judges of the modern age. However, in the centuries that have passed judges were compelled by the constitution to pass laws as they were enacted by parliament so that the judges could not be view as taking up the roles of parliament of making laws (Eskridge, 1994). This strict adherence to the word s of the law subjected judges to what is referred to as the black letter of the law. Thus, this rule could lead to poor judgments as such should be avoided.

The Golden Rule

Also called the British Rule, is applied where the literal rule would produce results that evade the intentions of parliament in the interpretation of an Act of parliament. In a case decided over by Lord Wensleydale in 1857 in the UK said that literal rule should be first applied in interpretation but if it fails to make sense due to grammatical or absurdity issues leading to inconsistency then it must be avoided immediately. In another case in the UK where the golden rule was used as a case between one Mr. Allen and the state where he was charged for bigamy which was an offense under the persons Act of 1861 which read in part "whoever is married, marries another commits bigamy." In this case, the court did not interpret the term ‘marries' as getting into a contract because back then one could not marry the second time before dissolving the first marriage (Hutchson, 2018). Instead, the court interpreted the term ‘marries’ as undertaking a ceremony. Therefore, using the golden rule is more reliable than the literal rule because it does not lead to inconsistency or absurdity.

The mischief Rule

In this rule, the judge tries to find the intention of the lawmakers during his or her interpretation. In other words, what is wrong that the legislation intended to correct? For proper interpretation under this rule, the judge(s) must consider the law that was present before the Act of parliament (Cross, 2009). In this way, a sane interpretation can be developed which is unbiased and just. In conclusion, Acts of parliament need to be properly interpreted to prevent the wrong precedent.

Purposive Rule

Sometimes referred to as purposivism, the purposive rule is an approach to statutory and constitutional interpretation under which law courts interpret enactments such as part of statutes, statutes, or a constitutional clause within the context of the law’s purpose (Eskridge, 1994). It is fundamentally intended to replace the mischief rule, the golden rule and the plain rule. It is mostly used when the courts use extraneous materials from the pre-enactment stage of legislation including committee reports, early drafts, and white papers. Fundamentally, purposive interpretation involves the rejection of exclusionary rule (Cross, 2009). Moreover, purposive interpretation is a legal construction that combines subjective (e.g. the intention of the author of the text) and objective (e.g. the intent of the reasonable author and the fundamental values of the legal system) elements (Hutchson, 2018).

Reference List

• AMARAL, G. R. (2018). Judicial precedent and arbitration--are arbitrators bound by judicial precedent?: a comparative study of UK, US and Brazilian law and practice.
• Balfour V Balfour [1919] 2 KB 571
• CROSS, F. B. (2009). The theory and practice of statutory interpretation. Stanford, Calif, Stanford Law Books.
• Davison, C. (2009). Prorogation: A Powerful Tool Forged by History. [online] www.lawnow.org. Available at: http://www.lawnow.org/prorogation-forged-by-history/ [Accessed 1 Apr. 2019].
• ESKRIDGE, W. N. (1994). Dynamic statutory interpretation. Cambridge, MA., Harvard University Press.
• GARNER, B. A. (2016). The Law of Judicial Precedent. St. Paul, MN, Thomson Reuters.
• GRANT, M. (2009). The UK parliament. Edinburgh, Edinburgh University Press.
• HUTCHISON, C. (2018). The fundamentals of statutory interpretation. Toronto : LexisNexis Canada, [2018] ©2018.
• JELLUM, L. D. (2013). Mastering statutory interpretation. Durham, North Carolina : Carolina Academic Press.
• JONES, C. (2009). A short history of parliament: England, Great Britain, the United Kingdom, Ireland and Scotland. Woodbridge, UK, Boydell Press.
• Lawton v Fleming-Brown [2006] AII ER (D) 287
• Merritt v Merritt [1970] EWCA Civ 6
• SILTALA, R. (2000). A theory of precedent: from analytical positivism to a post-analytical philosophy of law. Oxford [England], Hart Pub.
• THOMPSON, P. K. J. (1999). Butterworths civil court precedents (formerly Butterworths county court precedents and pleadings). London, Butterworths.
• Tramways v London County Council [1898] AC 375
• UK PARLIAMENT. (2019). The two-House system. [online] Available at: https://www.parliament.uk/about/how/role/system/ [Accessed 1 Apr. 2019].
• WILSON, S., RUTHERFORD, H., STOREY, T., & WORTLEY, N. (2016). English legal system.