3 - Sources of Law

Question 1

Sources of Law

Answer 1

1 - Primary - Acts of parliament, SIs, Orders in council, Case Law
2 - Secondary - academic literature, journals, commentaries, foreigns jurisdictions, soft law (political conventions)

Question 2

Acts of Parliament

Answer 2

• supreme and take predcednece
• delegate legislation - give powers to others
• power to make SI
• statute becomes law when introduced bill to both houses and gets royal assent
• cannot be deemed invalid or unconstitutional - > Allister [2023] UKSC 5
• ‘Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.’ (at 66)

Question 3

Public law v Private Law

Answer 3

• Public = laws of the state
• private = relationship between entities and individuals

Question 4

Bill

Answer 4

• proposal fora new law for change in existing law that is presented to parliament
• introduced to HoC or HoL, if both agree presented to monarch for royal assent
• if assent given then bill becomes an act of parliament and is law

Question 5

Secondary Legislation

Answer 5

• Law created by minsters under powers given to them by an act of parliament.
• Used to fill in details of the acts (primary legislation)
• Can set the date for when provision of an act will come into effect as the law or amend existing laws.

Question 6

Statutory Instruments

Answer 6

• docs drafted my gov departments to make changes to the law
• Draft affirmative Sis laid in Parliament need to be approved by parliament before they can be made and brought into effect as law.
• Negative Sis – do not need approval by parliament, automatically law unless either house annuls them within a fixed period (40 days)

Question 7

Parliament Acts

Answer 7

• ways of dissolving disagreements between HoC and HoL
• Parliament ACT 1911 – removed HoL power to veto a bill except one to extend lifetime of parliament, HoL can delay a bill by up to 2 years, reduced max lifespan of parliament form 7 years to 5 years.
  -Parliament Act 1949 – reduced delay of HoL to 1 year.

Question 8

Precedent

Answer 8

-binding precedent - decided case which must be applies in a later case – even if considered wrongly decided, has same facts, decided, or heard in more senior court, previous decision the ration decidendi not obiter dicta.
- Persuasive precedent - may be followed by a court but there is no compulsion on the courts to do so
- ensures law is clear and predictable

Question 9

Substantive Law

Answer 9

• that which sets out the rule which must be followed. Where someone is suspected of breaching this substantive law, there has to be an investigation, prosecution, and trial.

Question 10

Procedural Law

Answer 10

• ways in which the trial and process must be administrated

Question 11

Continental v Adversarial system

Answer 11

• continental = based on primacy of written laws, codified, judges interpret laws set out but don’t make new ones
• adversarial = case is adjudicated by two competing sides presenting their evidence with a neutral judge or jury deciding which case they prefer.

Question 12

Citations

Answer 12

[2020] UKSC 8; [2020] 2 WLR 681
[year], COURT, serial no; [year] vol, series or reports, page no