Introduction to Law - Contract

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Bsc Construction Management

Introduction to Law - Assignment 1

Module Code: F102LAW – 74%


Primary legislation, delegated legislation, judicial precedent and European Regulations and Directives are all forms of UK law.

  1. Explain briefly how each of these forms of law is made.
  2. Discuss the relationship of each form of law with the others.

Public, private, private members and hybrid bills are all forms of what eventually becomes primary legislation - also referred to as an Act of Parliament.  Like many proposed laws and law changes primary legislation starts life as a white paper, this is a statement of policy from the government. These white papers are often subject to scrutiny in the House of Commons before being introduced as a bill at the first reading.  Once the bill has been introduced it will pass through both the House of Commons and the House of Lords for consideration. At the second reading it is open to debate but cannot be amended.  If the bill is passed at this stage it then moves through a number of committees in the House of Commons – whole house, standing and select committee.  At these committees the bill can be debated and amended before moving onto the report and third reading stages. If approved at both of these stages the bill will then be presented to the Queen for Royal Assent. This is the final stage of law making and Royal Assent confirms the bill as an Act of Parliament and at this stage it becomes statute. Judges are required to apply primary legislation in court cases without exception, but can use their interpretation of the legislation where applicable.

Delegated legislation is a term used to describe laws and regulations made by authorised bodies or persons such as ministers or local authorities using powers bestowed on it by an Act of Parliament.  Each item of delegated legislation is usually known as a statutory instrument but the Queen by Order in Council can make some delegated legislation. This is often the case in time of emergency i.e. to impose sanctions.   Byelaws are made by delegated legislation but generally operate only in the locality of their creation.  Delegated legislations can be challenged either in court through judicial review or as part of the defence. One of the reasons to challenge may be because the legislation is deemed to be ultra vires, or beyond the powers of the body or institution that passed the legislation originally.

Judicial precedent is the process by which judges can use the decisions of previous cases as the authority for the basis of their decision, as long as there is sufficient likeness in the facts.  There are some key principles that should be followed when using judicial precedent.  All courts are bound to follow the decisions of a higher court.  This is known as stare decisis – to stand by the decided.  The binding principle of judicial precedent is ratio decidendi – the reason of the decision. This is a statement by the judge of the legal principles being applied in the case and it is only this statement that gives ratio decidendi.  If there has been no previous precedent set then a judge may declare the law and an original precedent is set. This may then be used in later cases as the precedent.

Legislation formed in the European Community comes in the form of regulations and directives made by the Council of Ministers of the EU – made up of government ministers from member states – or the Commission, which is made up of senior officials from the member states. EU Legislation focuses on a wide range of issues such as trade, agriculture, social policy, employment and the environment.  European Union legislation drawn up by a member of the European Parliament and is proposed by the Commission before being discussed and voted on by the Parliamentary committee.  Sensitive issues such as agriculture, social policy and taxation need to be agreed unanimously by the Council of Ministers in order to be passed but a system known as Quality Majority Voting is used to decide the majority of issues.  Each member state has an allocation of votes according to its size and population.  As long as at least half of the member states and at least half of the EU population are in agreement, the legislation can be passed. Issues decided by unanimity do not need to be agreed by the European Parliament but its advice can be sought and in some instances the legislation cannot be passed until the advice or opinion of the Parliament has been sought. The European Communities Act 1972 gives the UK governing party the ability to change existing legislation to reflect new European legislation.

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All of the forms of law previously mentioned are intrinsically linked in various ways. When a judge is presiding over a case in a UK court he must absolutely abide by primary legislation as this the highest form of law in the land.  Coupled with this he must consider delegated legislation but the ability to challenge is available if the legislation is considered to be outside the jurisdiction of the body or institution that created the legislation in the first place.  This is known as ultra vires.  Depending on the level of the courts hierarchy at which the case is ...

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