British Parliament in Legislative System - Assignment Example

1. Legislation is one of the principal sources of English law. Legislation means enacted law, law laid down by a body constituted for the purpose, the British Parliament. Enacted laws are called statutes. Legislation may be direct or indirect. Direct legislation means laws enacted by the legislature itself, Acts of Parliament. Indirect or delegated legislation means rules or laws laid down by a body or person to whom the legislature has delegated power to make such rules, e.g. regulations laid down by a minister under power given him by an Act of Parliament. The Parliament is the supreme legislative body, hence, it can enact any law it chooses; and its enactments are absolutely binding on all. Because of this supremacy, Parliament can delegate legislative power to subordinates and the delegated or subordinate legislation laid down by such persons is also binding on the courts. Because it is sovereign, Parliament can delegate some of its legislative powers (by parent or enabling’ legislation) to Ministers of the Crown, local councils, etc. For example, the Secretary of State for Trade possesses delegated power to regulate the licensing of those involved in the consumer credit industry under the Consumer Credit Act 1974. Delegated or subordinate legislation has become increasingly important in recent years as a source of new law because of lack of Parliamentary time, technicality, urgency and elasticity. The types of delegated legislation include orders in Council, statutory instruments (affirmative and negative procedure), and by-laws of local authorities. While these are the principal sources, to elucidate a difficult point, writings of jurists are resorted to. Since 1972, laws made by the European Communities may be applicable in the UK pursuant to the European Communities Act 1972, ss. 2 and 3. Such laws may take the form of Regulations and Directives from the European Commission and Council of Ministers and decisions of the European Court of Justice, which UK courts are bound to take notice of. As a member state of the European Community, the UK has to a very limited extent subordinated its legal system to that of the EC. Nevertheless, EC law is undoubtedly a source of English law. This is particularly true of directly applicable EC law, such as Article 119 of the Treaty of Rome, which provides for equal pay for work of equal value, irrespective of sex. In a series of cases, this principle has been held to apply to the UK. Courts have been careful to construe this principle as existing over British legislation on the subject thus preserving the supremacy of the British Act concerned. In Garland v. British Rail Engineering (1982), the House of Lords (HOL) held that EC law conferred greater rights upon a woman than did English law. That did not make them incompatible and the British statute (the Equal Pay Act 1970) could be interpreted as to allow these greater rights to be granted. 2. The bulk of common law and equity has not been enacted by Parliament, but developed by the judges applying customary rules of law. The principle behind the doctrine of precedent is that in each case, the judges apply existing principles of law, following the example, or precedent, of earlier decisions. Thus, the law develops as interpreted by judges by analogy with earlier cases. When the judiciary applies to a case an existing rule of law, the decision is a declaratory precedent. Where the case is one without precedent, judges decide according to general principles of law, laying down new precedent to be followed in the future1. Some courts have greater authority than others and this affects the importance of the precedents laid down by each. The hierarchy of courts are the HOL, Court of Appeal (CA) and the High Court. In EC law matters, the ECJ is supreme and in case of conflict, EC law is supreme over domestic law2. ECJ precedents bind domestic courts. The general rule on the doctrine of stare decisis is that decisions of higher courts are followed by lower courts. The HOL binds all lower courts and it is also . Until 1966, the HOL bound by its own decisions except in material change in circumstances: Fitzleet Estates v. Cherry (1977)3. The CA is bound by the HOL and by itself subject to exceptions4. Divisional courts of the High Court are bound by the HOL, CA and their own decisions. The High Court is bound by the HOL, CA, as well decisions of its divisional courts. The Crown Court, county courts, magistrates’ courts, are bound by decisions of all superior courts, but do not lay down precedents. While courts cannot challenge the validity of an Act of Parliament, they can influence the effect of an Act by its interpretation5. There are three approaches to interpretation: the literal rule6, the golden rule7, and mischief rule8. 3. The increase of delegated legislation has been severely criticised on the ground that it gives to non-elected persons a legislative power that should rightly be restricted to the nations elected representatives. A further criticism is that Parliament exercises too little control over the issue of delegated legislation. Controls, however, do exist. Parliament retains power to rescind any delegated power. The courts can declare an exercise of delegated power ultra vires and void although this judicial safeguard can be expressly excluded by the Act delegating the power. Public inquiries are sometimes required to be held before a piece of delegated legislation becomes effective, so as to give the public an opportunity to object, but the findings of such inquiries can sometimes legally be ignored by the body to whom power is delegated. A select Committee of the House of Commons (the Scrutiny Committee) was set up to examine ministerial rules and orders and report to Parliament any such measure that seems unreasonable, excessive or unduly expensive. While delegating minor legislative functions to subordinate bodies, Parliament retains overall control by: reserving authority to debate (and, if necessary, to veto) requests for delegated legislative power; appraising delegated legislation by requiring it (where appropriate) to be put before Parliamcnt for review (after which either House may resolve on annulment); the Scrutiny Committee of the House of Commons examining all statutory instruments and deciding whether any should be brought to the attention of the House for appraisal; some statutory instruments require actual confirmation by Parliament before becoming effective; and the courts, though subordinate to Parliament and unable to question the legality of the delegation of power by Parliament nevertheless act as watchdogs to ensure that the delegated authority is properly exercised and scrutinise not the granting but the use of delegated legislative power9. The courts can declare ultra vires and void any such exercise if it offends against the following presumptions, i.e. it is presumed that the enabling Act does not give power to make unreasonable or uncertain rules; nor to allow sub-delegation; nor to levy taxes; nor infringe basic constitutional rights, such as freedom of speech and personal liberty10. Another advantage and good effect of lawmaking in England is the efficient working of the doctrine of precedent. Thus the doctrine depends largely on the existence of accurate reports of cases and decisions. To meet this need, the Incorporated Council Law Reporting was established. The Council publishes detailed reports of cases heard in the superior courts, the reports being made by specially trained barristers and sometimes revised by the judges presiding in the case. In addition, several private firms publish similar series of reports, e.g. the All England Law Reports. Reports of this kind, are from time to time, consulted by present-day lawyers and may be cited in court to support legal arguments. While the doctrine of precedent has its advantages, it also has its disadvantages as well. The advantages of the system of precedent as certainty; flexibility and aptitude for growth; greater detail than is possible in a purely enacted system of law; and practicality. Its disadvantages are rigidity, as the discretion of every judge is restricted by the rule that he must follow the decisions of his predecessors; over-subtlety, which sometimes results from the need in a particular case to find a logical excuse for not following an existing precedent where it would cause hardship to do so; and bulk and complexity, as much of English law is contained in multitudinous reports of cases dating back to the Middle Ages and these reports have to be consulted by lawyers to ascertain what rules of law arc applicable to new cases. Read More