Effectiveness of Parliamentary and Judicial Law

Compare And Contrast The Effectiveness Of Parliamentary And Judicial Law Making

Each country has its own laws. The law in England and Wales have developed gradually over the time. There are two main sources that create law; Parliamentary and Judicial. Judges are independent from Parliament and both play important part in our legal system. In this essay we will compare and contrast the effectiveness of Parliamentary and Judicial law-making.

The main distinction between these two types of bodies who make law is the way how law is created. Statute law is created by Parliament, in the form of legislation and this law is written. Parliament became more powerful in the eighteenth and nineteenth centuries. On the other hand law created by judge, also know as common law, is the older type of law and it has been developing over centuries. It is based on judges’ decisions from hearing different cases. Independence of the judiciary was secured in the Act of Settlement 1701. (Slapper, G. and Kelly, D. 2001:100)

Parliament performs a legislative function and the courts perform a judicial function by resolving disputes under the law and laying down precedents. Although statute law has significantly increased in twentieth and twenty-first centuries, the courts still are a very important source in creating law, despite the fact that there is no legislation for the courts to be law-makers. For example, murder is still a common law. There is no statute that says murder is a crime. (Darbyshire, P. 2001:9)

Common law is still as important body in our legal system as Parliamentary law. Even if statute law covers almost every aspect of the legal system, judicial decisions play important role, especially in the areas that are not covered by statutes. Judicial precedent comes from decisions made by judges which create law for later judges to follow in the future. It is based on Latin “Stare Decisis” which means let the decision stand. This means that if judge decides a case the decision has to be followed by other judges in other future cases. This supports the idea of fairness and certainty in law (however this is not always a case due to the very nature of language). If this decision is overruled by a higher court in the court hierarchy, then new law applies. For example: in case R v R (Rape: marital exemption) [1991], the House of Lords abolished altogether a husband’s 250 year old immunity from criminal liability for raping his wife. Precedent can only be effective if the reasons for past decisions are know. Reasons for decisions and the principles of law used are an important part of any judgement and are known as the ratio decidendi, which means the reason for deciding.

If not legislation exists, judge make its decision upon established common law or the judge may create precedent if none exists already. Recent example of judicial law making can be seen in Gillick v W. Norfolk Area Health Authority [1985], where the House of Lords was asked to consider whether a girl under sixteen needed her parents’ consent before she could be given contraceptive services. The House of Lords held that a girl under sixteen did not have to have parental consent if she was mature enough to make up her own mind.

Another important role played by the judiciary is that of statutory interpretation. Interpretation is necessary when case involves a statute. In order to apply legislation, judges must ascertain the meaning of the legislation. They are often faced with the difficulty of interpreting the legislation. Statutes are often criticised for they difficult language and complicated structure. Acts of Parliament should be clear, coherent and comprehensible. It should be drafted in simple and accessible language. Unfortunately, some of the laws are too complex and technical, worded in obscure terms and inaccessible to citizens. Especially tax laws are continually amended by new Acts of Parliament, thus losing their stability and creating legal uncertainty. Many cases come before the courts because there is a dispute over the meaning of a word in a statute. For example, the Dangerous Dogs Act 1991 contains the phrase ‘any dog of the type known as the pit bull terrier’ but it did not say whether ‘type’ meant the same as ‘breed’. (The Open University website)

The legislature is more democratically representative than individual judges. MP’s in Parliament are elected by public and represent their interest. The question risen here is should judges as unelected body make law in democratic society? Some critics argue that judges are too powerful. It is argued that nobody should have so much power and it should be separated in order to highlight the distinction and relationship between two elements of the constitution. (Slapper, G. and Kelly, D. 2001:10)

Statutes take priority over precedents. Parliament is the sovereign power in the land however it is argued that parliament is less effective than it was because of the loss of sovereignty associated with Britain’s membership of the European Union. European law over-rules British law in some areas. For example in Metric Martyr case the Sunderland market stall holder was successfully prosecuted for not following an EU directive over selling goods in metric as well as imperial measurements. (Muylle, K. J. 2003). It is also argued that parliamentary procedure is not suited for the needs of drafting quality legislation. Complaints about the law making role of parliament concern the slowness and lack of efficiency of the legislative procedure. Modern society lives and changes at such a pace that when state action is required, it should be done quickly. (BBC website, 2001)

Parliament can pass the power to make the law to another body. Delegated legislation is law made by another person or body, but with the authority of Parliament. It is very important piece of legislation. The types of Delegated Legislation are Statutory instrument, bylaw and Order in Council. Effectively, this type of Delegated legislation allows the Government make law without going to Parliament. (Class handout, Quazi, K. 2009)

To conclude, statute law and judicial decisions remain the main sources of law in England during the twenty-first century. Both sources play important parts in English legal system, and it is very rare for the legislation to interfere with case law and visa versa.

References

Darbyshire, P. (2001:9) Eddey & Darbyshire on the English legal system, Sweet & Maxwell

Muylle, K. J. (2003) ‘Improving the effectiveness of parliamentary legislative procedures’, Statute Law Review, 24 (169). Available at http://openlearn.open.ac.uk/file.php/2984/W100_2_Reading6.pdf [Acessed 01/12/09]

Slapper, G. and Kelly, D. ( 2001:10) The English legal system, Cavendish Publishing Limited

Slapper, G. and Kelly, D. ( 2001:100) The English legal system, Cavendish Publishing Limited

Gillick v W. Norfolk Area Health Authority [1985] 3 All ER 402

R v R (Rape: marital exemption) [1991] 4 All ER 481

http://openlearn.open.ac.uk/mod/resource/view.php?id=208880

http://www.bbc.co.uk/dna/h2g2/A543584

(Class handout, Quazi, K. 2009)

Bibliography

Adams, J. N. and Brownsword, R. (2003) Understanding La, Sweet & Maxwell

Cownie, F. and Bradney, A. (2000) English legal system in context, Butterworths, a Division of Reed Elsevier (UK)

Darbyshire, P. (2001:9) Eddey & Darbyshire on the English legal system, Sweet & Maxwell

Muylle, K. J. (2003) ‘Improving the effectiveness of parliamentary legislative procedures’, Statute Law Review, 24 (169). Available at http://openlearn.open.ac.uk/file.php/2984/W100_2_Reading6.pdf [Acessed 01/12/09]

Slapper, G. and Kelly, D. ( 2001:10) The English legal system, Cavendish Publishing Limited

Slapper, G. and Kelly, D. ( 2001:100) The English legal system, Cavendish Publishing Limited

Gillick v W. Norfolk Area Health Authority [1985] 3 All ER 402

R v R (Rape: marital exemption) [1991] 4 All ER 481

http://openlearn.open.ac.uk/mod/resource/view.php?id=208880

http://www.bbc.co.uk/dna/h2g2/A543584

(Class handout, Quazi, K. 2009)