Law Making Flashcards
Judicial Precedent
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What is the Doctrine of Precedent
Judicial precedent refers to the source of law where past decisions of the judges creates law for future judges to follow/case law. It is the major source of law.
Doctrine of precedent - judges following the decisions of previous cases.
What is Doctrine of Precedent based off
It’s based on the Latin maxim stare decisis et non quieta movere (stare decisis). This means stand by what has been decided and don’t unsettle the established. So precedent is following decisions in previous cases. Where the point of law in the previous and present case is the same - should follow the decision of the previous case - fair.
Precedent can only operate if the legal reasons for past decisions are known - at the end of every case there is a judgement where the judge(s) explain the principles of law they are using to come to the decision. The principles are known as Ratio decidendi - the reason for the decision - forms a precedent. Can be more than one reasoning if judges.
The ratio is the only part that forms a precedent. The rest of the judgement is obiter dicta - this isn’t binding. They may explain their decision if the facts of the case were different.
Obiter dicta - ‘other things said’. So it’s all the rest of the judgement except from the ratio. Judges in future cases don’t have to follow it.
When a court has never made a decision before it’s called an original precedent.
When there is a case similar to a previous case - what are the 4 options that may be open to the court
Follow - If the previous case is a binding precedent they must follow the previous case.
Overrule - Higher courts can overrule lower courts - say their decision was wrong. The Supreme Court can overrule its own previous decisions.
Distinguish - A court can say although their case looks similar to a previous case, there is a key difference that allows for a different outcome.
Reverse - This is a bit like overruling but it’s in the same case.
In X V Y, X wins in the High Court. On appeal the Court of Appeal reverses the decision and Y wins.
Influences on parliament
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What are the difference ways that law can be changed W3P2
Repeal - to remove a law that is considered out of date or no longer relevant.
Amend - make changes to an existing piece of legislation to bring it up to date.
Consolidate/codification - to bring together different versions of law into one place to make it clearer and easier to access.
Bring in a whole new law
There are several bodies that can influence change in the law P153, 154 and 155
The law commission - a body set up to review the law and make reconditions to parliament. Established in 1965
Political influence, public opinion/media, pressure groups and lobbyists.
What is political influence P153 and 154
Before a general election all the parties publish a list of reforms that they would carry out if they were elected (manifesto) if they get elected they have a majority so can bring about those reforms.
This is good because a majority in the HOC means that virtually every law it proposes will be passed. However, the next go may repeal the laws which could be costly and if there is a coalition the parties will have to make compromises and the coalition doesn’t reflect the view of the electorate.
What is public opinion and the media P153, 154 and 155
Where there is a strong public opinion the gov may bow to the pressure especially before elections because they want to be popular. Media is the way in which info is supplied to the public, if an issue is given high profile then more members of the public will know about it and increase public opinion.
Sometimes public opinion will be caused by an event so the law is changed and social media can cause quick change, however it could cause laws to be passed too quickly without them being thought about such as the Dangerous Dogs Act 1991 However, the media can manipulate the news.
What are lobbyists P154 and 155
Lobbyists are people who try to persuade individual members of parliament to support their cause. Public can meet MPs in the lobbies through which they go to the HOC. Normally want a question to be asked at the HOC so it gets attention. Good because it could cause debate in Parliament, publicity and a change in law. Good because there is a procedure and anyone can do it. However, professionals may be able to abuse the system and have more influence than others
Key terms parliament, legislation and reform W3P3
Parliament - the elected body that passes law. This consists of the HOC, HOL and the queen.
Legislation - law passed by parliament.
Reform - changes to the law to bring it up to date.
What are pressure groups P153 and 155
They are groups which have a particular interest and try and bring it to the attention of the public and government. There are two kinds: Sectional pressure groups exist to represent the interests of a particular section of society such as the British Medical Association which represents doctors. Cause pressure groups exist to promote a particular cause such as the environment (Green Peace).
Can have memberships that can exceed political parties so often raise important issues, however it could be argued they are seeking to impose their views even though the majority of public don’t share their view and sometimes they can have conflicting views.
Why pass new law W3P3
To improve the law - Data protection act 2018
New situations require new law - self driving cars
The views of society change - gay marriage
The process is public and over 50% of MPs have to vote for a law to be passed.
What is the law commission W3P3
Is a group of judges, barristers and professionals (top legal minds) who investigate the law and make suggestions to parliament.
Sometimes parliament need specialist advice before it passes new laws.
Can’t pass laws though cos they aren’t democratically elected - no mandate (permission from the people) to make law.
How they work and their task W3P3
Consult with the public and investigate problems with the law.
They write a report on suggested changes with reason.
They draft a new proposed law which is a starting point for parliament.
Consolidation - bring together all different statutes on one topic - The Consumers Rights Act 2015
Codification - this is when they bring together statutes and case law to make a new statute that covers everything - OLA 1984
Repeal - get rid of out of date laws - in 2015 they recommended repeal of the Treason Act 1945
