delegated legislation

(106 words)

Question 1 (5): To explain what is meant by the supremacy of European Union law?

EU institutions, such as the European Commission or the European Court of Justice, have the authority to make and enforce laws for the European Union.  This means that, despite the fact that each EU member state is an independent nation state and as such has its own laws, they also have to agree and abide by European Union law. In this way, each EU member state is required to give up some of their sovereignty and accept the supremacy of EU law, which in operation puts a ceiling on some of their national powers.  

(94 words)

Question 2: Evaluate the role of the judiciary in the law-making process (include discussion of statutory interpretation and the system of precedent).

The English legal system is known as a ‘common law’ or ‘judge-made law’ system, referring to applying the same law developed by judges, rather than the Parliament, across the whole kingdom.  We call this a system of ‘precedent’, “where the lower courts are bound to follow principles established by the higher courts in previous cases” (Slapper, 2009, p.147). Precedent then becomes the basis of common law. When the judges try cases they have to check whether a similar situation has come to court previously and whether a precedent was established around it by an equal or higher court. In this case, the judge of the current case must follow the rule of that precedent.

In this way, the doctrine of binding precedent does ensure both certainty and flexibility in the common law. It creates certainty in the sense that like cases are treated alike if the material facts are identical. This enables the planning of behaviour and the lawyers and their clients being able to predict what the likely outcome of a particular case will be, through previous judicial decisions. In prospective for plaintiff, it could exclude them to spending more money for Court costs. It also creates flexibility, as the common law can modify and adapt to the legal and social economic changing times. This is achieved by overruling, where higher courts can overrule lower courts’ decisions, by distinguishing, where lower courts can point out material differences in cases and by departing, where courts can depart from their own past decisions if appropriate.  Precedent also provides consistency, when like cases are decided on a like basis and are not apparently subject to the whim of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions taken in particular cases.

 

On the other hand, judicial precedent has its disadvantages too.  It creates uncertainty because the doctrine of stare decisis is undermined by the absolute number of cases that have been reported. This uncertainty is increased by the ability of the judiciary to select which authority to follow through use of distinguishing cases on their facts. It also creates fixity, as it is possible that the law in relation to any particular area may become rigid on the basis of an unjust precedent with the consequence that previous injustices are perpetuated. Judicial precedent also causes unconstitutionality. This fundamental question refers to the fact that the judiciary are overstepping their role by making law rather than restricting themselves to the role of simply applying it, and if this happens then it’s against the declaratory theory of law claiming that judges do not make law, but they simply interpret what the law is. Lastly, the law depends on citizens reporting cases to the courts after some accident they had, so this does not ensure consistency or certainty. On the other hand, certainty itself can slow down the development of the law by not allowing it to be more flexible and creative.

In addition, another crucial role the judiciary plays has to do with statutory interpretation. It is a frequent occurrence that the meaning of different words or phrases in statutes is not clear cut, but perhaps too broad, vague, ambiguous or inadequate.  For this reason, the courts have developed four rules to be helped with interpreting the law.

The literal rule refers to the courts looking at the literal, everyday meaning of words in a statute, exactly how the Parliament originally meant it, rather than what they may imply. In this way, this rule abides by the supremacy of the Parliament and its authority to make law. It supports accuracy in drafting, which in turn advances certainty and lessens litigation. The problem with this rule is that the English language itself is unclear and can mean different things in different contexts, so possibly resulting in meaninglessness and ambiguity to be manipulated. So this rule may overstress literal meanings of law assuming an unattainable flawlessness in draftsmanship and without considering wider contexts and language limitations.

The golden rule is there for when the above literal rule results in an absurdity so the courts look to find a different meaning of words.  The obvious advantage is that irrationality is avoided, but it does not show a way to determine or test an absurdity.

The mischief rule is about the courts researching the law before the statute was passed so as to see what gap or mischief the statute was intended to include.  On the one hand, this gives a lot of flexibility for interpretation, as the court goes beyond the statute to see the original problem.  On the other hand, it poses a limitation to using previous common law only.

The newer purposive approach is not just looking for gaps in old laws, but tries to decide what the Parliament meant to achieve.  This has been heavily criticized as taking over the legislative function while calling it ‘interpretation’.

Other rules helping the courts to decide include making presumptions, looking at other words to choose meaning, such as considering titles, headings, notes attached and the like. They can also employ extrinsic aids, such as previous Acts on similar situations, earlier case law, dictionaries or the Hansard report.

(870 words)

     

QUESTION 3:  Consider the role of pressure groups in parliamentary law making. Advantages and disadvantages of pressure groups.

Pressure groups, or otherwise known as ‘interest groups’ or ‘lobby groups’ are  structured groups that function as representatives of the interests of specific groups in society.  

Specifically in the UK pressure groups are a lot more in number than the political parties and one of their goals is to influence any given government in power to change or withdraw legislation that runs contrary to their interests. Examples of lobby groups include womens’ movement groups, the IPPR (Institute for Public Policy Research), trade unions, environmental interest groups and any group of people who share the same ideals and come together to act towards furthering their interests in order to make them part of the governments agenda.  Pressure groups are now and then capable to accumulate enough foundation to impose on the government to make changes or even to hold off completely the legislation. In a way, lobby groups then function as a forum from where the public can participate in political decision making a lot more often rather than just during elections.

There are a few advantages and disadvantages to pressure groups.  First looking at the advantages, pressure groups are seen as a way of strengthening and enriching representative democracy.  They serve as a key link between public and the decision makers. Because the majority of people’s political contribution is to vote every five years and voting does not enable them to express the strength of their feelings on any issue and make them to take any control over choices been made between elections, but by joining a pressure group people can express how strongly they feel about that issue and can take active steps to influence decisions relating to that matter. Pressure groups provide an alternative means of public involvement, in which ordinary people can become involved directly in the decision making process. Pressure group can progress the attribute and credibility of government and their policy by supply information and guidance. Pressure groups provide continuous opportunities for people to get involved in democratic processes and remain an important means by which public can take part in politics and are still seen as significant and important today.

 In a modern democratic society, where new issues and situations frequently emerge, the role of interest groups becomes very important, because they provide the government with advice and information and in this way help improve law and policy. In turn, the pressure groups involvement in the political arena actually helps that society to progress as a whole and not remain idle or inactive.

There are also some disadvantages to pressure groups, as they may not always represent or put forward their members views, wishes or interests because they do not have elected leaders or always consult their members. It is only a minority of those groups that have a system for seeking advice from their affiliates. As a consequence, the group’s associates cannot contribute to all the prospective possibilities articulated by the group’s administrator.

Another disadvantage has to do with pressure groups deciding to become quite forceful through participating in demonstrations, often of a large scale, which could result in major conflicts and clashes with the police. In cases where such threatening strategies are used by pressure groups, democracy could be in jeopardy or even destabilise.  In this manner, even though group competition or opposition can be otherwise healthy as it could help put forward diverse opinions in a democratic society, on the other hand it could delay or obstruct social changes that are much needed.

(582 words)