3 - Statute and case law

Give examples of primary and secondary legislation

Primary - Acts of Parliament

Secondary - Rules and regulations under authority of an Act

Role of legislatures?

Debating, amending and enacting laws to address needs of society they govern

What does Parliament do?

Enacts primary leg through Acts of Parl

Debates, scrutinises and votes on proposed laws

Role of Privy Council?

Issues Orders of Council which can serve as primary leg

Advises Monarch on exercise of prerogative powers

5 bodies entitled to create secondary leg?

Privy Council

ministers of Crown

public corps and court rule committees (eg BBC)

local gov

professional bodies

What must a statutory instrument be approved by?

Affirmative resolution (approved by both Houses of Parl)

Negative resolution procedure (without debate unless there is an objection)

How are Acts categorised?

By their application or purpose

Diff between private and public act?

Private applies to specific individuals/orgs rather than to general public

Delcaratory act?

creates new law, creating leg in response to emerging issue.

eg: first speed limit law when cars first introduced

Enabling act?

Includes an element that allows another entity (eg: gov) to fill in the detail at a later date.

eg: VAT Act 1994, allowed a lot of detail to be updated later

Codifying act?

Some law is created by ‘case law’ and Parl decides to clarify things by codifying decisions into one piece of leg to bring it together

eg: CA Act - brought together what constituted plant and machinery

What are stages of enacting an Act of Parl?

First reading

Committee stage

Royal Assent

How are acts of parliament analysed?

According to extent, application and temporal operation

Can an act operate retrospectively?

It can but very rarely

How are Acts structured?

Introduction - long title, date etc

Body - divided into sections

Schedules - provide supplementary details

What date signifies when act officially became law?

date of royal assent

Disadvantages of secondary legislation?

Increased power of unelected officials

sheer amount of laws

Potential for overreach

Who helps oversee and scrutinise legislation created?

Joint committee on SI

Judicial Review

Select Committees

Delegated leg committees

What is a statutory instrument?

Secondary leg used to fill in details or make technical adjustments to existing laws.

What is tertiary legislation

A third type of leg, purpose being to provide detailed and technical provisions to aid primary and secondary.

How does tertiary leg derive itself?

delegated power provided by Parliament

Name primary leg, secondary leg and case law in terms of EU

Primary = EU treaties

Secondary = EU regs and directives

Case Law = Court of Justice of EU

Diff between regulation and directive?

Reg - binding leg applying directly to all member states without need for national implementation

Directive - leg that set out goals all member states must achieve

What is Retained EU Law?

Under EU Act 2018 most existing EU law was retained

What is future EU law?

New EU laws passed after briexit

Do extra-statutory materials have legal authority

No - they just provide insights

In what two situations will a judge create case law?

When the issues aren’t covered by existing statute

When they have to interpret existing statute

What is stare decisis?

the doctrine of precedent

What are the 4 requirements for doctrine of precedent to function properly?

• hierarchical court structure

• consistency and stability

• binding and persuasive precedents

• accurate law reporting

Do judges in common law systems have the authority to create new laws through their rulings?

Yes

What is the hierarchical order of courts?

Supreme Court

Court of Appeal

Upper Tribunal

First-Tier Tribunal

What is the court of appeal?

Second highest court - handles civil and criminal cases, reviewing and ruling on appeals from lower courts

What does the upper tribunal review decisions in?

Reviews decisions from First-tier in Specialised areas eg tax, immigration, admin law

What does first tier tribunal do?

resolves disputes across various specialised areas