1/31
Name | Mastery | Learn | Test | Matching | Spaced |
---|
No study sessions yet.
what is delegated legislation?
parliament passes it’s power to another law making body as a form of secondary legislation. the three types are bylaws, statutory instruments and orders in council
what is a bylaw?
made my local governments/authorities to cover matters in their own area. if they’re broken, you get fined not jailed. examples include no dogs on the beach between may and september and parking restrictions
what is a statutory instrument?
rules and regulations made by government ministers under the authority of an enabling act (3000+ a year).
can be very short e.g minimum wage every year.
made in government departments e.g Department for Work and Pensions.
nade one of two ways: affirmative resolution procedure - parliament have to accept it or negative resolution procedure - automatically becomes law unless rejected within 40 days
e.g national minimum wage act and covid restrictions
what is an order in council?
the kind and the privy council have authority to make these.
it allows the government to pass laws without parliament - power comes from the Civil Contingencies Act 2004.
an enabling act must exist.
e.g in 2003, Misuse of Drugs Act 1971 - cannabis a class C. in 2008, amended to make cannabis a class B again
can change the number of judges in the supreme court
what is a private member’s bill?
tend not to become law. an MP from any house can introduce a bill. can be introduced in two ways
by ballot - 20 MPs are selected e.g David Steele introduced the Abortion Act 1967
10 minute rule - any MP can make a 10 minute speech setting out their proposal for a bill
what is a private bill?
will change the laws for specific individuals or groups rather than the general public
usually promoted by organisations e.g local authorities
only 2 on average are promotors every parliamentary session
e.g national rail could promote a bill that allows them to build more tracks
what is a public bill?
known as government bills and most acts come from public bills.
introduced by government ministers e.g the Home Secretary introduced the The Illegal Immigration Bill
drafted by government lawyers
affect everyone or a large part of the country e.g The Disability Act
what is statutory interpretation?
judges use one of four methods to interpret the meaning of a word in an Act of Parliament
the literal rule
the golden rule
the mischief rule
the purposive approach
what is the literal rule?
judges use the plain, ordinary, dictionary definition of a word in an act, even if it leads to absurdity
e.g Berriman and Cheeseman
what is the golden rule?
judges begin with the literal definition, but if it leads to absurdity, they modify the meaning of a word.
narrow approach: two meanings of a word and they choose the most sensible
wide approach: can modify the meaning if there’s an absurd outcome
e.g Allen - narrow approach and Sigsworth - wide approach
what is the mischief rule?
comes from Heydon’s case (1584) and gives judges more discretion then literal and golden. judges look beyond the words of the act
what was the common law before the act?
what was the mischief not covered?
what remedy did parliament put in place?
what was the true reason for the remedy?
judges should interpret the act so it covers the gap in the law
what is the purposive approach?
modern approach and goes beyond the mischief rule.
judges try to interpret what parliament intended when making the act.
they use extrinsic and intrinsic aids to help find parliaments intentions
e.g Ex Parte Smith and Tower Boot Company
what are the disadvantages of the mischief rule?
are judges making laws? not respecting parliaments sovereignty etc
the royal college of nursing was a 3:2 decision showing its weak and may change in the future - uncertainty
time consuming to go through all stages
how do judges know what parliament were intending?
judges are deciding what the mischief is so are they deciding the end result before choosing with rule fits?
what are the advantages of the literal rule?
judges are respecting their role by only applying the law
the law is certain as the plain and ordinary meaning is used
quick and easy - cases are short and reduces delays
judges unlikely to make an error by trying to guess what parliament intended
what are the advantages of the purposive approach?
more flexible than the other rules and it’s the only one that considers parliaments intentions
can be used to protect the public and avoid absurdities like dangerous results
modern rule that’s popular amongst judges as it allows them to develop laws with society
can lead to justice which is what the law seeks to achieve
what are the disadvantages of the purposive approach?
judges may be going beyond their role of applying the law and are straying into law making
how can judges be certain about what parliament intended?
takes along time to find parliaments intention e.g looking through the Hansard
not clear with rule judges will use which creates uncertainty - makes it much hard for lawyers to defend clients as they don’t know what to expect
what are the advantages of the golden rule?
avoids absurdity of the literal rule
provides more flexibility than the literal rule as words can be modified
rule is limited and restricted to 2 approaches meaning judges are not acting beyond their role
the rule still follows parliaments intentions as judges do not go beyond the words
what are the disadvantages of the golden rule?
the rule is limited as judges can only modify words
very rarely used - not a popular choice
judges are limited - it’s difficult to modify words to fit with modern society - doesn’t allow development of the law
do judges decide the end result and then pick the rule that fits?
what are the disadvantages of the literal rule?
can lead to absurdity and injustice
doesn’t allow judges to develop the law as society develops
assumes acts are clear from errors
an old fashioned rule that’s barely used now
what are the advantages of the mischief rule?
wider approach than the literal and golden rule as it avoids any absurdities
clear structure to follow as there’s four stages a judge has to go through. this ensures there are no errors
greater flexibility - judges avoid absurdity as they interpret the law. it respects parliaments sovereignty as they’re not changing or making laws, only interpreting them
filling gaps in the laws protects the public - sets a precedent and makes the law certain
what is ratio decidendi?
the binding part of the decision - part that sets precedent for future judges
what is stare decisis?
literally translated “stand by what has already been decided”
judicial precedent - past judges have created law for future judges to follow e.g Dica
what is obiter dicta?
“other things said” - not binding bjt its persuasive so can be used in the future, but doesn’t have to be
Gotts used the obiter from Howe
what is a binding precedent?
must be followed in the future e.g R v R 1991
what is a persuasive precedent?
not binding but can be followed (obiter) e.g Gotts
what is an original precedent?
a decision made on a point of law that’s never been decided on before - no past cases with a similar legal point e.g Dica
what are the three ways to avoid precedent?
overruling - judges decide the last decision is wrong e.g Shivpuri overruled Anderton
reversing - judges can reverse the decision from a lower court e.g K
distinguishing - judges find factual differences between cases e.g Wilson and Brown
what are Practice Directions 3 and 4?
come from the case of London Street Tramways 1898 - the HoL (the now Supreme Court) must follow its past decisions - created certainty
in 1966, Lord Chancellor issued a Practice Statement - the HoL can depart from last decision “when it appears right to do so”
what are the 3 Young Expectations and Rickards?
the previous decision was made per incurian (in error)
the SC made a decision that overrules the CA decision - the CA must then follow the SC
if there are two conflicting CA decisions, the CA can choose which one to follow
Rickards: the CA will only be justified in not following a previous decision in “rare and exceptional cases”
how can the SC avoid precedent?
Practice Directions 3 and 4 - can avoid following own past decisions
distinguishing - finding factual differences
ECHR - judges can’t set a precedent that goes against human rights
the SC can overrule the decisions of a lower court or reverse their decision
what are the advantages of precedent?
certainty - helps lawyers advise clients (predictable)
flexibility - number of ways to avoid prevent - can update outdated laws
saves time - avoids law making in parliament
precision - system is consistent, precedent is clear (rule of law)
what are the disadvantages of precedent?
undemocratic - unelected judges are making laws
takes time - appeals can take years to get leave AND delays in court (70000 cases waiting)
illogical distinctions - distinguishing may be abused e.g Wilson - how do judges know this was not abusive and harmful sexual activity?
too rigid - escape routes to avoid precedent are limited and some are very vague. no flexibility with the law and cannot be easily updated to fit with modern society