‘The legislative process does not allow for a full and systematic review of the Bill in question. The process is too heavily formulaic and party politics plays too great of a role.’

Critically discuss this statement considering the structure of the parliamentary process, the individuals involved in this process and any potential reform of the system.

As an essay question, students are expected to critically engage with the subject and properly analyse the respective area of law. This question is focused in its entirety on the process that a Bill goes through before it becomes an Act of Parliament. In order to answer this question, therefore, students should have a full appreciation for the process that is taken and the potential issues present.

A point of importance in all essay-style questions is that the student essentially “picks a side”. Do you agree or disagree with the statement made? To what extent do you agree/ disagree (i.e. whole heartedly, partially, not at all etc.) For example, a student may argue that the process DOES allow for a full and systematic review (i.e. disagreeing with the statement), but then states that party politics DOES play too much of a role (i.e. agreeing with the statement). Further to this, when answering an essay question, students should be sure that they are referring back to the question using the wording of the statement to assist their answer.

A number of points could be raised by students in relation to this question:

a)  Certain Bills may only begin life in a specific House – give examples such as money bills (HC) and bills relating to the judiciary (HL). What is the problem with this? Does it have the effect that the system is so formulaic that the system is not subject to a full review? – unlikely, but a worthy argument to make nonetheless.

b)  Discuss the use of the Parliament Acts 1911 and 1949 and whether the effect of these provisions is to hinder the Parliamentary process or further it in light of the House of Lords refusal to co-operate.

c)  Discuss the process that follows where the Parliamentary session ends – the Bill either dies or is “carried over” into the next session

d)  Consider whether the Committee stage is appropriately comprised in order to effectively challenge and discuss the Bill

Frank has been charged with an offence contrary to the Offensive Weapons Act 2015 (fictitious). The offence in question is contrary to s3 of the Act which provides that ‘It is an offence, triable on indictment, for a person to have in his possession an unlawful weapon without lawful justification in a public place’. On 19 November, Frank was practising aggressive manoeuvres on a dummy in the hallway of his flat complex. In practising these manoeuvres, Frank had in his possession a machete which he was using to make a stabbing motion at the dummy. Residents of the complex were scared of Frank’s actions and he was arrested.

• The CPS argues that Frank falls within the definition of the offence.
• Frank argues that the hallway is not a ‘public place’ within the meaning of the Act as it is private property, restricted by code accessed gates accessible to only those who live there.

Advise Frank as to the likely interpretation of the Act. In advising Frank consider the rules of construction, the aids to interpretation and any relevant presumptions.

A standard answer to a problem question should follow the IRAC method of legal analysis, i.e.

I – Issue: State the relevant issue in the scenario;

R – Rule: State the relevant law that applies to these facts;

A – Apply: Apply those rules to the facts of the case you are dealing with; and

C – Conclude: Conclude by referring back to the Issue and offer your argument.

In this case, the issue is whether Frank may be liable for a criminal offence contrary to the fictitious 2015 Act. The issue turns on the meaning of the word “public”. The first point students can note is that terms, such as “public” are normally defined further sections or provisions of a statute – given that the problem question is silent as to this, we can infer that the statute does not include a definition of “public” space. As a result, students should then make it clear that the judge in question would be tasked with deciding this question through the process of statutory interpretation.

Students should start first with the literal rule. Although there is no requirement to start with the literal rule (a point that should be noted by students), it makes sense to do so.

Students should first explain what the literal rule is; explain how it applies to a situation before then applying it to this case. Students should use authorities such as Fisher v Bell to assist them in doing so. Taking the words “literally” public space would mean a space that is open and available to all and not restricted in any way. However, this interpretation is extremely narrow and can lead to a number of practical and realistic difficulties. As a result, students ought to conclude that the literal rule is likely to be ineffective and may result in an absurd outcome. Students should next consider the golden rule. As above, they should explain the term; how it applies to scenarios and then apply to the case using Adler v George. In this scenario, the golden rule may also not assist as it is not clear what the statute intended in the meaning of public space given that the hallway is technically public given it is open to all residents but is private given that it is only open to residents. With this in mind, the court may consider the mischief or purposive approaches to find the intention of Parliament through the words used. Using Smith v Hughes students will be able to make a comparison between the definition of public place there, and in this case. It is likely a court would conclude this case in favour of the prosecution given that the “public” has been intentionally used by Parliament to denote an area that is available to persons other than the individual concerned, i.e. had the offence been committed in the defendant’s personal room, that would not be private.

Although the matter may be solved through use of the mischief rule, students should also note that the court has at its discretion several other tools to assist, namely the rules of language (Ejusdem generis; Noscitur a sociis; and Expressio unius est exclusio alterius) and presumptions although none are of great assistance here. Further, the court has use of both intrinsic and extrinsic aids to assist it, for example the use of parliamentary debates in Hansard following Pepper v Hart.

Students should offer an overall conclusion on the case – likely that Frank will be liable following the mischief rule.