Parliament Has An Important Role To Play In Creation Of Legislation
it depends on the quality of the end product, the Act of Parliament Effectiveness thus means quality legislation.
Acts of Parliament should be clear, comprehensible, coherent, and consistent with existing Acts or policies; the text of the Act should correspond with its policy objectives; and it should be drafted in simple and accessible language. Unfortunately, modern legislation often does not meet these quality objectives. Acts of Parliament are often drafted in haste and their editorial quality suffers. At times they are difficult to apply, worded in obscure terms, too technical and complex and hence incomprehensible and inaccessible to citizens. Moreover, some statutes –especially social security and tax laws14 –are almost continually amended by new Acts of Parliament, thus losing their stability and creating legal uncertainty. To enhance the quality of legislation, different instruments have been developed recently.
As said before, most legislation emanates from the government. In almost all European countries, the executive dominates the legislative output: most of the bills adopted by parliament, in some countries up to 90 per cent, are the result of a government’s proposal
As such, the use of delegated legislation provides significant flexibility to keep the law current and applicable to specific circumstances
‘What a statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal’. (per Ungoed-Thomas J in Cheney v Conn (1968))
Advantages And Disadvantages Of Judicial Precedent Advantages
Certainty – It creates certainty in the law and means solicitors and barristers can advise their clients on the probable outcome of their case. Fairness – Similar cases are treated in a similar way, this is in the interests of justice and fairness.
- Time Saving – It saves court time as for most situations there is already an existing solution.
- Law Development – it allows the law to develop alongside society R v R (1991) – this case overturned a centuries old legal principle that a man could not rape his wife.
- Rigidity – The system is too rigid and does not allow the law to develop enough.
- Injustice – The strict rules of judicial precedent can create injustice in individual cases
- Slow Development – The law is slow to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.
- Confusion – Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.
- Complexity – The law is too complex with thousands of fine distinctions
There are two main principles that are involved in judicial precedent, there are ratio decidendi and the obiter dictum. Ratio decidendi is a principle of law on which the court reaches its decision. The ratio decidendi of the advantages are huge. By choosing a representative form of government, people choose political candidates that they believe will represent their interests. Thus candidates form their run based on a platform or agenda. By culling consensus amongst constituents within a certain territory, they then choose a representative who is to carry out that consensus in the process of making, repealing or amending laws that affect their lives.
The representatives when they are elected, typically point to something they call a political mandate. That is the consensus of the persons who elected them.
When the representatives form a legislature after an election, they have to work together to hammer out proposed legislation or repeal legislation, or amend it in such a way so as to pass whatever item they are seeking to accomplish. In order to do that, there is usually some sort of compromise between different representatives.
Above the parliamentary representatives you will typically find an executive who has the authority to approve legislation once it’s passed after whatever compromises are made.
In England, that would be the Queen, or King, who usually stamps the law with her or his royal seal thus giving “Royal Assent” after the law is presented by the Prime Minister.
England is largely a unicameral parliament with the House of Lords serving in a ministerial capacity but not a law-making capacity. It is also the highest appeals court in England.
Unlike the United States, however, the Queen or King of England typically does not refuse to give Royal Assent as that might be considered unconstitutional under the current government regime. The royal house is the titular executive, but the real power of the executive resides at No. 10 Downing Street, known as the Prime Minister. He would be the essential executive.
The entire process of parliamentary thinking is designed to give procedure, order and meaning to the common voter and at the same time provide a standard of governent that is the least dictatorial or authoritarian. At least that’s how its supposed to work in theory.
Parliamentary law making, however, does not work in places where free elections and tamper-free voting are non-existent.
There are advantages and disadvantages of the system of judicial precedent as it has developed in English law.
The Advantages Are As Follows:
Liberty to decide each case as you think right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter without any regard to previous decisions
However, it is necessary for any system of law to have a degree of flexibility, and to the extent that law is flexible it cannot be certain, and vice versa. The courts, particularly the House of Lords, must therefore always balance the need for certainty against the need for flexibility in any particular case.
Possibility Of Growth
The system allows for new rules to be established and old rules to be adapted to meet new circumstances and the changing needs of society. Where a precedent is considered to be particularly valuable its scope can be extended in later cases: conversely, where a precedent is felt to be defective, its scope can be restricted by the process of distinguishing mentioned above.
Wealth of detailed rules. No code of law could be devised which would provide the wealth of detail to be found in English case-law.
The rules of English case-law do not derive from a particular theory of law, and do not attempt to deal with hypothetical circumstances. They are the result of the consideration of real situations which have come before the courts.
The Disadvantages Of The System Of Judicial Precedent Are:
Once a rule has been laid down it is binding even if the decision is thought to be wrong, and altercation, other than by distinguishing, which is less than wholly satisfactory, is difficult. This disadvantage is modified to the extent that the House of Lords is not bound by its own previous decisions, but people are reluctant to bring appeals before the House of Lords because of the enormous expense involved, particularly bearing in mind that the House will not overrule its own previous decision except in the most compelling circumstances. The possibility that case-law will be abrogated or modified by legislation alleviates the disadvantage of rigidity to some degree, but in practice it is rare for the legislation to interfere with case-law.
Bulk And Complexity
There is so much law that no one can learn all of it. There is a danger that even an experienced lawyer may overlook some important rule in any given case. This is particularly so with those branches of law which have been developed mainly by case-law, as, for example, the law of torts.
Slowness Of Growth
The system depends on litigation for rules to emerge. As litigation tends to be slow and expensive the body of case-law cannot grow quickly enough to meet modern demands.
Where it is felt that a particular case has long been a precedent operates unfairly, or where the law on an important point is unclear, it is argued by some that appeals to the House of Lords should be financed at public expense, as it is inequitable that the law should be developed or clarified at the expense of private litigants. (It is worth noting, however, that many cases heard in the House of Lords are in effect financed by public funds, where the parties are either legally aided or are bodies, such as the Commissioners of Customs and Excise, who are financed entirely out of public funds).