Law Making - Delegated Legislation And Judicial Precedent Flashcards
What is delegated legislation?
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
What does the enabling act do?
Gives power to local authorities/companies/government ministers to make delegated legislation
Examples of delegated legislation
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
What are bylaws?
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
What are statutory instruments?
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
What are orders in council?
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
Criticisms of delegated legislation
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
Advantages of delegated legislation
Saves parliamentary time
Local authorities can make appropriate laws to meet local needs
Detail can be added to statutes at later dates
What is judicial precedent?
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
What is stare decisis?
Stand by what has been done and do not unsettle the established
It exists to provide a certain fairness and rigidity in the law
What is the ratio decidendi?
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
What is the obiter dicta?
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)
How does the obiter dicta differ from a ratio decidendi?
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
What is original precedent?
A decision made on a brand new situation with no precedent previously established to aid the decision
What is binding precedent?
When a precedent has already been formed, previous to a case and which must be followed
What is persuasive precedent?
It is suggested you use it but it is not required
Judges developing the law
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
Judges have to react to new and novel situations
Some situations were not thought of when the act was passed or did not exist
Gillick v Norfolk and Whisbech Area Health Authority
How do judges distinguish cases?
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
Advantages of judicial precedent
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
Disadvantages of judicial precedent
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
