Law Making Flashcards

Question

Advantages of law comission

Answer 1

Research done by experts likely to be comprehensive and accurate - more likely to be free from political bias ‘unfair contract terms act 1977’

Answer 2

Most reports go unimplented - gov yet to reform non fatal offences against person Gov not legally obliged to consult law commission about new laws

Answer 3

Parliament gives powers to another body by passing an enabling act Any act of parliament that gives law making powers to another body

Answer 4

Made by locals authorities such as county councils in relation to local matters Clean neighbourhood and environment act Delegate powers to local councils to designate poop scoop areas Also made by public corporations in relations to their activities Transport act 2000 Delegates powers to strategic railway authority to make railway by-laws

Answer 5

By enabling act Employment rights act -> time off for public duties Give effect to EU law European communities act -> control of trade in endangered species regulations Used to update law National minimum wage act 2018 Respond to developments Expert control North Korea sanctions order

Answer 6

Made by Privvy council and approved by the king Under powers delegated to them by enabling act Keep up with events Misuse of drugs act 2017 Deal with emergencies Energy act 2000 Other reasons Transfer of tribunal functions order 2013

Answer 7

Saves parliamentary time Laws made by those with relevant expertise Can be implemented quickly in contrast to act of parliament

Answer 8

Undemocratic It is overused - typically 3500 stat instruments passed each year Lack of effective control - poor law making

Answer 9

About judges making sense of acts of parliament and delegated legislation and deciding what the words used in them mean

Answer 10

Can be difficult to identify parliaments intention Sometimes words are left out as they are thought to be implied Broad terms are often used Error in drafting can be made Sometimes new situations arise that were unforeseen The meaning of words can change over time

Answer 11

Literal rule Golden rule Mischief rule Purposive approach

Answer 12

Judge reads statute as a whole, puts words in context and gives them in ordinary meaning LORD ESHER if words of an act are clear you must follow them, even though they lead to a manifest absurdity. Court has nothing to do with the question of whether the legislature has created an absurdity

Answer 13

Follows parliament exact words - appropriate because parliament is supreme law making body Literal rule creates certainty in law Leads to consistent outcomes, fair and just Can lead to unjust outcomes if meanings are applied regardless of consequence Does not account for fact words have more than one meaning

Answer 14

The literal rule is to be followed unless it leads to an absurd outcome Lord Wensleydale ‘Grammatical and ordinary sense of the word is to be adhered to unless that would lead to some absurdity or inconsistency’ Narrow view - choose between two meanings R v Allen Wide view - modify meaning Sigsworth

Answer 15

Respects exact words of parliament Avoids judges making law Escape route from absurd outcomes Avoids desicions that would lead to reupgant situations Very limited in use Not always possible to predict when courts will consider outcome absurd

Answer 16

Takes view statues are enacted to cure problems with common law Or mischief and should be interpreted to achieve this Lord coke ‘For sure and true interpretation of statues for things should be considered What was law before act was passed What was problem with statue when seeking remedy What was parliaments solution True reason for parliaments solution Smith v Hughes

Answer 17

Produces more just outcomes than a literal approach - law is less predictable Promotes the aim of the law passed Flexible Leads to judicial law making - judges are unelected Impossible to know when judges will use it - uncertainty

Answer 18

Aims to give effect to purpose of legislation Lord Denning ‘We sit here to find our intention of parliament and we do this better by filling in the gaps and making sense of enactment then opening it to analysis’ Popper v Hart

Answer 19

Leads to justice More discretion to judges to aboid absurd outcomes Keeps lane up to date Difficult to find out parliaments true intentions so hard to apply statue Difficult to determine outcome of case depending on what judge thinks purpose of act was Judges may refuse to follow clear words set out in parliament

Answer 20

Judge decided facts and decides how to apply laws

Answer 21

Stand by what has been said and do not unsettle the established Once issue has been decided by court it should not be changed

Answer 22

Cases on similar facts to previous should follow desicions taken by judges in previous case Donoghue v Stevenson

Answer 23

Judge makes desicion and reasons judgement

Answer 24

Binding precedent must be followed E.g Donoghue v Stevenson Person owes dirty of care to those if reasonably forseesbcould affect his act or on mission

Answer 25

Desicions of power courts Commonwealth courts Privvy council

Answer 26

If a judge makes comments on the law which are not exactly to do with the point in dispute in that case these are obiter dicta which means other things said

Answer 27

If facts are similar enough to previous case law will be applied in same way Robinson v Chorf Constance of Yorkshire police followed desicion by Hill v Chief Constable of Yorkshire police

Answer 28

If relevant earlier desicion made by lowrr court and judge disagrees with interpretation it can be over ruled Does not change outcome of original case but will for later cases Candler v crane

Answer 29

Where appeal higher court decided lower court interpreted wrong - appeal court substitutes desicion McLoughlin V O Brian

Answer 30

When court considers material factors of the case they not bound by previous precedent Merritt v Merritt

Answer 31

Like cases are decided alike Ratio decedendi Original president Persuasive precedent Follow overrule reverse distinguish

Law Making Flashcards

(55 cards)