Sources Of Law: Essay Questions

Describe the need for delegated legislation (15)

  • There is a lack of Parliamentary time.
  • Delegated legislation can be produced quickly - 3000 SI's per year.
  • It allows technical and local area experts to produce appropriate laws.
  • It can be used in emergencies e.g. The Animal Health Act 2002 - foot and mouth outbreak.
  • lot easier to remove than Acts of Parliament.
  • It allows the law to change with future socio-economic developments.
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Describe the controls on delegated legislation (15

  • Enabling Acts.
  • Scrutiny committee and delegated powers scrutiny commitee.
  • Affirmative, Super affirmative and negative resolutions.
  • Judicial review of laws.
  • Substantive, procedural and unreasonable ultra vires. Strickland, mushroom case.
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Describe the effectiveness of the contols (15)

  • Parliament has limited powers of control.
  • The controls of parliament are affected by the parameters of the enabling act.
  • Using affirmative resolutions parliament can only approve, annul or withdraw the law.
  • Scritiny committees can only report certain technical matters to Parliament.
  • Judicial review relies on individuals starting claims.
  • Ultra vires is limited due to the breadth of most enabling acts.
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Describe the use of the practice statement (15)

  • It allows the HOL to depart from precedent when its 'Right to do so.'
  • As of London Tramways 1898 HOL was bound by past precedent.
  • It can only be used by HOL.
  • First use in Conway v rimmer - only on a technical point.
  • First proper use in Herrington to depart from addie.
  • Also used in Pepper v Hart to depart from Davis v Johnson.
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Describe the role of the law commission (15)

  • Created by the Law Commissions Act 1965.
  • Its the only full time law reform body.
  • Its job is to systematically keep English law under review.
  • To codify and consolidate areas of law e.g. the draft criminal code.
  • To receive and consider proposals for law reform and consult relevant parties.
  • To put forward proposals for reform.
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**Discuss the problems encountered by the law comm

  • Work is effected by budget and staff constraints.
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Describe the literal rule (15)

  • Literal rule gives words their original meaning.
  • It usually relies on a dictionary from the time the act was written.
  • It involves the judge applying the law even if it results in absurdity - stated by Lord Esher in R v Judge of the City of London 1892.
  • The literal is historically the first and most used rule.
  • This rule respects parliamentary supremecy.
  • Used in Whitley v Chappell, Cheeseman and Berriman.
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Describe the golden rule (15)

  • A rule used when the literal rule produces and absurdity.
  • It allows the courts to look at the literal meaning of a word or phrase but interpret it to fit the case and avoid absurditys.
  • The narrow approach chooses between two meanings of a word or phrase. The broad approach modifies the outcome to avoid absurdities.
  • Cases - Allen, Re sigsworth, Adler v George
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Discuss the advantages and disadvantages of the go

  • Can prevent injutice and absurdity produced in literal rule.
  • Puts into practice parliaments intention.
  • Provides a check on the strictness of the golden rule.
  • It still respects parliamentary supremacy.

- An absurdity can mean different things to judges.

- Its not much of an effective check on the literal rule.

- It may give judges too much discretion.

- Zander’s criticisms of the golden rule - ‘an unpredictable safety valve’.  

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Describe stare decisis

  • It means to stand by what has previously been said.
  • It requires effective law reporting.
  • Its the principle that underlines the doctrine of binding precedent.
  • Original precedent is a new precedent set in a new type of case.
  • Persuasive precedents are documents that aid the decision of a case. E.g. R v R HOL agreed with an obiter dicta statement from COA.
  • The ratio decedendi is very important in stare decisis.
  • How stare decisis works in the hierarchy.
  • Judges can avoid stare decisis using distinguishing, overrling, reversing and per incurium.
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