Law Making - Delegated Legislation And Judicial Precedent

Question 1

What is delegated legislation?

Answer 1

Law made by a person/body other than parliament with the authority of parliament
Parliament gives authority through a parent/enabling act which create a framework, sets limits and outlines procedures which must be followed

Question 2

What does the enabling act do?

Answer 2

Gives power to local authorities/companies/government ministers to make delegated legislation

Question 3

Examples of delegated legislation

Answer 3

Local Government Act 1972 - allows local authorities to make bylaws for their area
Emergency Powers Act 1920 - allows the pricy council to make orders in council in an emergency

Question 4

What are bylaws?

Answer 4

Made by local councils
E.g. borough councils to deal with matters that affect local areas
They can make laws about public property e.g. public transport and smoking

Question 5

What are statutory instruments?

Answer 5

Rules, regulations and orders
Made by government ministers within their area of responsibility usually to add detail to s piece of primary legislation, these affect the whole country
They are also used to bring an act of parliament into force

Question 6

What are orders in council?

Answer 6

Made by the king and privy council
The privy council consists of former politicians, senior judges and members of the royal family
These are made when parliament is not sitting, usually in emergency situations

Question 7

Criticisms of delegated legislation

Answer 7

Lack of democracy - too much delegated legislation is made by unelected people
Lack of publicity - the public is often unaware of new statutory instruments
Overuse - too much law is made through the use of delegated powers
There is inadequate parliamentary control over delegated legislation

Question 8

Advantages of delegated legislation

Answer 8

Saves parliamentary time
Local authorities can make appropriate laws to meet local needs
Detail can be added to statutes at later dates

Question 9

What is judicial precedent?

Answer 9

The system through which judges lay down rules for future judges to follow when judging future, similar cases
This is the concept of stare decisis

Question 10

What is stare decisis?

Answer 10

Stand by what has been done and do not unsettle the established
It exists to provide a certain fairness and rigidity in the law

Question 11

What is the ratio decidendi?

Answer 11

Literally the reason for deciding, this consists of the actual judgement and the legal principle upon which the decision of the court is based
The judge will explain the legal reason for the decision after listening to the legal arguments put forward
This must be followed in future cases of similar fact by the same court and all courts below it

Question 12

What is the obiter dicta?

Answer 12

Things said by the way/in passing
This is not relevant to the actual judgement itself
It can take two forms
Speculation (R v Howe)
Hypothetical situations (Donoghue v Stevenson)

Question 13

How does the obiter dicta differ from a ratio decidendi?

Answer 13

A ratio decidendi forms a binding precedent which must be followed by all courts lower in the hierarchy
An obiter dicta forms persuasive precedent. This does not have to be followed, but is is available for use should the judge agree

Question 14

What is original precedent?

Answer 14

A decision made on a brand new situation with no precedent previously established to aid the decision

Question 15

What is binding precedent?

Answer 15

When a precedent has already been formed, previous to a case and which must be followed

Question 16

What is persuasive precedent?

Answer 16

It is suggested you use it but it is not required

Question 17

Judges developing the law

Answer 17

Generally, judges ignore the concept of stare decisis as it is impossible to not unsettle what has already been done
Situations and behaviour change, and the law needs to be flexible to suit that

Question 18

Judges have to react to new and novel situations

Answer 18

Some situations were not thought of when the act was passed or did not exist
Gillick v Norfolk and Whisbech Area Health Authority

Question 19

How do judges distinguish cases?

Answer 19

They look at two similar cases and find differences which would allow you not to have to follow the precedent
Balfour v Balfour - there was nothing legally binding it was just a domestic dispute
Merritt v Merritt - there was s signed legal document to be enforced

Question 20

Advantages of judicial precedent

Answer 20

Provides certainty in the law
Aids the law to develop (through distinguishing, the practice statement)
Promotes fairness
Aids wrong decisions to be corrected
Allows controversial issues to be addressed when parliament will not
Allows quick decisions to be made
Restricts judges from allowing their personal feelings to influence their judgement

Question 21

Disadvantages of judicial precedent

Answer 21

Very rigid, not a lot of flexibility
Judges are unelected and unrepresentative
Law reports are hard to use
Media can influence a decision
If a wrong decision is made at the top of the hierarchy, it still has to be followed
Distinguishing can lead to uncertainty
Precedent doesn’t make whole scale changes to the law
Can restrict the laws/development