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Essay: The law making process and the literal rule

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  • Subject area(s): Law essays
  • Reading time: 2 minutes
  • Price: Free download
  • Published: 15 February 2017*
  • File format: Text
  • Words: 554 (approx)
  • Number of pages: 3 (approx)
  • Tags: Statutory interpretation essays

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Law making process

Scrutiny is a major advantage as it is a democratic process and opens an opportunity for debate. The process involves expertise and is often a long procedure, but enables the bill to be thoroughly scrutinised. Another advantage would be Parliament makes laws made with overview in mind, not on one case, for example Fraud Act 2006 which established a simpler structure for offences.

It alleviates the problem that hard cases are to introduce bad law in Winterbottom v Wright. Moreover, the first reading allows the opposition enough time to prepare for a debate for the second reading, with the standing committee looking for errors.

Furthermore it gives a monarch the opportunity to play a role in Parliament.

The flaws regarding the law making process is that it takes a long time before an act is made law; it has particularly been frustrating to the law commission which has produced lengthy documents arguing for a specific law reform.

Some also agree that the law making process is undemocratic as the House of Lords is not an elected body and so the public is not able to have full influence, which can be seen in the Tuition Fees Bill 2010. Professor Zandler believes the first reading is a ‘pure moment of nothin’ which can appear as a waste of time. It is said that the whips system is undemocratic and accused of bully tactics, and the role of the queen is just seen as a tradition.

The literal rule

There are many ways judges can interpret legislation, one of which is the literal rule. This is when judges take words for their plain or ordinary meaning, even if it leads to an absurdity. Lord Tindal best defined the literal rule as ‘words themselves alone do best declare the intention of the law giver’. The literal rule in itself is a very old rule developed in the early nineties. If judges took everything for its plain and grammatical meaning there is no doubt things could lead to absurdity, such as the word gay which has two definitions, one meaning homosexual and the other meaning happy. Lord Esher stated words should be taken in their grammatical meaning regardless of absurd outcomes.

A prime case is in Whitely v Chapel 1968 which made it an offence to impersonate any person entitled to vote, though impersonating a dead person. The defendant argued he impersonated a dead person who technically wasn’t entitled to vote, which the courts agreed taking ‘a person entitled to vote’ in its plain and grammatical meaning.

Another case example is in Fisher v Bell 1961 where the defendant had a flick knife displayed in his shop window. The statute made it an offence to ‘offer’ flick knives for sale, though the conviction was quashed as goods on displays are not offers. The literal rule was applied. The main problem with this rule is it gives no room for judges or any prejudices the chance to interfere when an absurd outcome arises, though some believe parliament should be respected and the literal rule certainly respects parliamentary supremacy.

Another advantage is that it promotes certainty and reduces litigation whilst a disadvantage to the literal rule can create loopholes in the law as illustrated in the case Fisher v Bell 1961. Many disagreements can occur with the literal meaning of statutes.

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