The Law-Making Process

by Michael Zander

• ISBN13: 9780521609890
• ISBN10: 0521609895
• Edition: 6th
• Format: Paperback
• Copyright: 2005-01-10
• Publisher: Cambridge University Press

Summary

As a critical analysis of the law-making process, this book has no equal. For more than two decades it has filled a gap in the requirements of law students and others taking introductory courses on the legal system. It deals with every aspect of the law-making process: the preparation of legislation; its passage through Parliament; statutory interpretation; binding precedent; how precedent works; law reporting; the nature of the judicial role; European Union law; and the process of law reform. It presents a large number of original texts from a variety of sources--cases, official reports, articles, books, speeches and empirical research studies--laced with the author's informed commentary and reflections on the subject. This book is a mine of information dealing with both the broad sweep of the subject and with all its detailed ramifications.

Table of Contents

Preface to the sixth edition	xiii
Preface to the first edition	xiv
Acknowledgments	xv
Books, pamphlets, memoranda and articles excerpted	xvii
Table of cases	xx
Legislation -- the Whitehall stage	1	(52)
The preparation of legislation	1	(13)
The sources of legislation	2	(5)
The role of the civil servants -- the bill team	7	(1)
The consultative process	8	(1)
Green and White Papers	9	(1)
Cabinet control	10	(4)
Drafting legislation	14	(11)
The Office of Parliamentary Counsel	14	(4)
The process of drafting	18	(7)
Criticism of the quality of drafting	25	(12)
Proposals for improving the quality of the statute book	37	(2)
Response to the criticisms and proposals	39	(14)
Legislation -- the Westminster stage	53	(74)
The legislative process	53	(15)
Procedure for public bills	53	(4)
Royal Assent	57	(1)
Private bill procedure	57	(3)
Hybrid bills	60	(1)
Private Members' bills	60	(4)
Consolidation and statute law revision or repeal	64	(4)
Legislative committees	68	(5)
First Reading Committees	68	(1)
Second Reading Committees (House of Commons)	68	(1)
Special Standing Committees (both Houses)	69	(1)
Grand Committees (both Houses)	70	(1)
Select Committee on Bills	70	(1)
The role of Departmental Select Committees in legislation	71	(2)
The role of the bill team	73	(2)
Interaction between interested parties during the legislative process	75	(3)
The time taken by parliamentary debates	78	(1)
The impact on bills of the parliamentary process	79	(5)
How often does the Opposition oppose a bill?	81	(1)
Who moves and what happens to amendments?	81	(3)
The composition of the House of Lords	84	(4)
Pre-legislative scrutiny under human rights legislation	88	(1)
Publication of bills in draft form	89	(2)
Carrying over legislation from one session to another	91	(2)
Curtailing debate	93	(5)
Programme motions	94	(4)
Legislation in haste	98	(1)
When does a statute come into force?	99	(4)
Statutes on computerised database	103	(1)
The reach of legislation and devolution	104	(4)
Scotland	104	(2)
Wales	106	(1)
Northern Ireland	107	(1)
Delegated legislation	108	(3)
Scrutiny of delegated legislation	111	(9)
Parliamentary committees	111	(2)
Deregulation and regulatory reform orders	113	(3)
Remedial orders under the Human Rights Act 1998	116	(1)
Legislation for Northern Ireland	117	(2)
The Lords `merits' select committee	119	(1)
Delegated legislation -- Anglo-American comparison	120	(4)
Summary of defects in statutes	124	(2)
How to do it properly	126	(1)
Statutory interpretation	127	(88)
Interpretation is a necessary aspect of communication	127	(3)
The three basic so-called `rules' of statutory interpretation	130	(2)
The literal rule	130	(1)
The golden rule	130	(1)
The mischief rule	131	(1)
The three basic rules considered	132	(17)
The dominant rule was the literal rule	132	(15)
What of the golden rule?	147	(2)
Is the mischief rule any better?	149	(1)
Understanding the context -- statutes and judicial decisions	149	(8)
The court can read the whole statute	149	(3)
The court can read earlier statutes	152	(5)
Understanding the context -- evidence beyond statutes and judicial decisions	157	(25)
International conventions or treaties as a source	157	(1)
General historical background	158	(1)
Government publications	159	(2)
Parliamentary debates	161	(3)
Pepper v. Hart	164	(6)
The significance of Pepper v. Hart	170	(9)
Explanatory Notes	179	(3)
Presumptions and subordinate principles of interpretation as an aid to construction	182	(1)
Are the rules, principles, presumptions and other guides to interpretation binding on the courts?	183	(1)
The Human Rights Act 1998 -- a new rule of statutory interpretation	184	(5)
What (if any) is the function of general statutory rules on statutory interpretation?	189	(2)
Do statements of general principle assist?	191	(2)
What is the court's proper function in interpreting a statute?	193	(22)
To seek out the intention or purpose of Parliament?	193	(3)
To give effect to what Parliament said, rather than what it meant to say?	196	(2)
Should interpretation reflect changing times?	198	(9)
Has membership of the European Community changed the principles of statutory interpretation?	207	(4)
Is statutory interpretation a form of legislation?	211	(4)
Binding precedent -- the doctrine of stare decisis	215	(50)
The hierarchy of courts and the doctrine of binding precedent	216	(40)
The House of Lords	216	(9)
The Court of Appeal, Civil Division	225	(20)
The Court of Appeal, Criminal Division	245	(4)
Divisional Courts	249	(2)
Trial courts	251	(3)
Precedents that are not binding	254	(1)
The effect of the Human Rights Act 1998 on precedent	255	(1)
The effect of the Civil Procedure Rules on prior precedents	256	(1)
A comparison with some other countries and with the European Court of Justice	256	(7)
The European Court of Justice	262	(1)
Devolution issues	263	(2)
How precedent works	265	(41)
Professional techniques for using precedents	268	(16)
Ratio, dictum or obiter dictum	268	(7)
Is the precedent distinguishable?	275	(3)
What weight should be given to the precedent?	278	(2)
Inconvenience and injustice	280	(4)
Preparation and delivery of judgments	284	(14)
Judgments in the House of Lords	284	(4)
Oral (extempore) and written (reserved) judgments	288	(3)
The trend toward composite judgments in the Court of Appeal, Civil Division	291	(3)
The form of judgments	294	(4)
Are precedents law or only evidence of the law?	298	(4)
The values promoted by the system of precedent	302	(1)
Flexibility and stability in the common law system	303	(3)
Law reporting	306	(21)
The history of law reporting	306	(4)
Criticisms of the system	310	(8)
The advent of Lexis	318	(1)
Free access to law reports online	318	(1)
The problem of the mass of unreported decisions	319	(7)
The hierarchy of law reports	326	(1)
The form of law reports	327	(1)
Neutral citation	327	(96)
The nature of the judicial role in law-making	330	(1)
The personal element in judicial law-making	330	(8)
The background of judges	338	(15)
The appointment of judges	339	(1)
The Lord Chancellor to be replaced by a Judicial Appointments Commission	339	(10)
Diversity on the bench	349	(4)
The Constitutional Reform Bill	353	(1)
Do the judges have biases?	354	(6)
Should the judges be activist?	360	(28)
Can judges undertake their own researches into the law?	388	(1)
What the law is and what it ought to be	389	(4)
The practical effect of the retrospective impact of common law decisions	393	(4)
Prospective overruling as an aid to creative law-making	397	(6)
The trend toward written argument	403	(12)
The quality of oral argument in the English courts	414	(1)
Legal argument by non-parties	415	(6)
Interaction between the judge and the advocate	421	(2)
Other sources of law	423	(36)
European Union Law	423	(19)
The institutions of the Community	426	(7)
Community law and the United Kingdom system	433	(7)
Parliamentary scrutiny of European legislation	440	(2)
Scholarly writings	442	(6)
Custom	448	(7)
Quasi-legislation, codes of practice, circulars, etc.	455	(4)
The process of law reform	459	(53)
Historical	459	(2)
The Law Commissions	461	(13)
The White Paper	461	(3)
The Law Commission Act 1965	464	(2)
The Commission's method of working	466	(3)
General reputation	469	(1)
The Law Commission and consultation	470	(4)
The Law Commission and some problems of law reform	474	(6)
The Law Commission as an adviser to government	474	(1)
Law Commission confined to lawyers' or technical law reform	475	(2)
Judicial law-making in the light of the existence of the Law Commission	477	(3)
Implementation of law-reform proposals	480	(4)
The Law Commission and the codification project	484	(23)
Can more be done to involve the community in the process of law reform? The Australian experience	507	(5)
Consultative documents	508	(1)
Public hearings	508	(2)
Use of the media	510	(1)
Surveys and questionnaires	510	(1)
Conclusion	510	(2)
Index	512