A Level Law: Underlying Principles and Law Making — Revision Notes

Condensed for the final weeks. For the full explanation, use the Underlying Principles study guide.

Parliamentary law making

The legislative process: Green Paper (consultation) → White Paper (firm proposals) → First Reading (formal) → Second Reading (main debate on principle) → Committee Stage (detailed scrutiny, amendments) → Report Stage → Third Reading (final vote) → the other House → Royal Assent.

Types of Bill: Public (affects the whole country), Private (affects a particular body or locality), Hybrid, and Private Members’ Bills (introduced by a backbencher, few of which become law due to lack of time and government support).

Parliamentary supremacy (Dicey): Parliament can legislate on any subject, no Parliament can bind its successors, and no other body can override an Act.

Limitations in practice — the point that raises an answer beyond recall:

• Devolution to Scotland, Wales and Northern Ireland.
• The Human Rights Act 1998, under which courts may issue a declaration of incompatibility — which does not strike down the Act but exerts real political pressure.
• International treaty obligations.
• The practical reality that a government with a majority controls the parliamentary timetable, so Parliament is in practice constrained by the executive.

Advantages: democratic, made by elected representatives, thoroughly scrutinised, can reform whole areas at once. Disadvantages: slow, dominated by government, time-limited, and drafting can be obscure.

Delegated legislation

Law made by a body other than Parliament under authority given by an enabling (parent) Act.

Type	Made by	Use
Orders in Council	King and Privy Council	Emergencies, transferring powers
Statutory instruments	Government ministers	The bulk of delegated legislation
By-laws	Local authorities, public bodies	Local matters

Why it is needed: Parliament lacks the time and technical expertise, it allows rapid response to emergencies, it can be amended without a new Act, and it permits local variation.

Control matters because the power is not democratic:

• Parliamentary control — the enabling Act’s limits, affirmative and negative resolution procedures, the Scrutiny Committee, and the Delegated Powers Committee.
• Judicial control — judicial review for ultra vires: procedural ultra vires (correct procedure not followed) and substantive ultra vires (going beyond the powers granted). Also review for unreasonableness.

The core criticism is that delegated legislation is made by unelected people, in enormous volume — thousands of statutory instruments a year — with limited scrutiny, which is precisely why the ultra vires control exists.

Statutory interpretation

Rules: literal, golden (narrow and broad), mischief (Heydon’s Case), and purposive — now dominant.

Aids: intrinsic (title, preamble, definition sections, schedules) and extrinsic (dictionaries, prior statutes, Law Commission reports, and Hansard since Pepper v Hart).

Rules of language: ejusdem generis, expressio unius est exclusio alterius, noscitur a sociis.

The trade-off: the literal rule respects parliamentary supremacy but can defeat Parliament’s obvious intention; the purposive approach delivers sensible outcomes but risks judges legislating. Every evaluation question here is a version of that tension.

Judicial precedent

Stare decisis — the ratio decidendi binds, the obiter dicta persuade only.

Avoiding precedent: distinguishing (material facts differ), overruling (a higher court declares an earlier decision wrong), reversing (a higher court changes the outcome of the same case on appeal). The Practice Statement 1966 lets the Supreme Court depart from its own decisions when it appears right to do so, used sparingly to preserve certainty.

Law reform

Bodies: the Law Commission (full-time, independent, systematic review, though many reports go unimplemented for lack of parliamentary time), Royal Commissions, public inquiries, and pressure groups.

Pressure for reform also comes from judicial decisions exposing gaps, media campaigns, and European or international obligations.

Law and morality

• Law is enforceable by the state; morality is enforced by social pressure and conscience.
• They overlap substantially — murder and theft are both illegal and immoral — but they are not the same: adultery is widely held immoral yet lawful; parking violations are unlawful but not immoral.

The Hart–Devlin debate is the standard essay:

• Devlin argued a shared morality holds society together, so the law may legitimately enforce it.
• Hart argued the law should only intervene to prevent harm to others; enforcing private morality is an unjustified restriction of liberty.

The Wolfenden Report and the subsequent decriminalisation legislation followed Hart’s position. A strong answer applies the debate to a current example rather than merely recounting it.

Justice — distributive (fair allocation of resources), corrective (putting right a wrong), procedural (fair process). Rawls’s “veil of ignorance” and Nozick’s entitlement theory are the standard contrast.

Exam traps

• Describing the legislative process without evaluating it.
• Saying Parliament is entirely unlimited without noting devolution and the HRA.
• Treating obiter dicta as binding.
• Confusing procedural with substantive ultra vires.
• Recounting Hart–Devlin without applying it.
• Omitting case names — in Law, cases are the evidence.

Self-test

1. Give the stages of a Bill in order.
2. State parliamentary supremacy and three practical limitations on it.
3. Name the three types of delegated legislation and who makes each.
4. Distinguish procedural from substantive ultra vires.
5. Summarise the Hart–Devlin debate and which position prevailed in law.

Answers: 1. Green Paper, White Paper, First Reading, Second Reading, Committee Stage, Report Stage, Third Reading, the other House, Royal Assent. 2. Parliament may legislate on anything, cannot bind its successors, and cannot be overridden; limited in practice by devolution, the Human Rights Act and declarations of incompatibility, international treaty obligations, and executive control of the timetable. 3. Orders in Council (King and Privy Council), statutory instruments (government ministers), by-laws (local authorities and public bodies). 4. Procedural means the correct procedure set out in the enabling Act was not followed; substantive means the body exceeded the powers it was actually granted. 5. Devlin held that law may enforce a shared morality that binds society; Hart held that law should only prevent harm to others. Hart’s position prevailed, reflected in the Wolfenden Report and subsequent decriminalisation.