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Essay: Delegated legislation, statutory interpretation & the common law system

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  • Subject area(s): Law essays
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  • Published: 22 February 2022*
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  • Words: 1,090 (approx)
  • Number of pages: 5 (approx)
  • Tags: Statutory interpretation essays

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Question 1)

(A) What Is Delegated Legislation?

Delegated legislation is written in an Act of Parliament, but is not made in Parliament itself. The Act of Parliament (also known as the enabling Act) delegates limited law-making powers to an individual or organisation. Delegated legislation is regarded as having the authority of Parliament as it is made under powers delegated by Parliament. Delegated legislation is comprised of two components, Statutory Instruments (SIs) and by-laws. Statutory Instruments are divided into five subcategories, Regulations, Rules, Orders in Council, Orders of Council and Orders. These all serve a different legislative purpose with Regulations being the most common (Pywell, 2013).

(B) Summarise The Two Ways Delegated Legislation Is Controlled.

Parliament exerts control through specific wording of the enabling Act and various commissions. Parliament may have it written in the Act that the Statutory Instruments will be subject to votes in the House of Lords. The courts exert their control in a similar fashion to Parliament, the specific wording of the Act. If the courts feel the Statutory Instrument does not comply with the enabling Act it can undertake a judicial review. This can render it void, however, this process is costly and difficult but acts as a deterrent for anyone wishing to challenge the validity of the Statutory Instrument.

(198 Words)

Question 2)

(A) Explain Why The Need For Statutory Interpretation Arises.

The need for statutory interpretation arises when statutes do not always have clear and concise definitions and it is important that judges maintain a consistent interpretation when applying the law to facts. This is due to the far reaching consequences that can occur if the wrong judgement is made, for example it can determine someones innocence or if they are liable to pay damages. When needing to interpret a word or phrase a judge will first look to see if there is a definition section within the statute, they can also consult other parts of the statute. However, the statute may expand the natural meaning of a word if Parliament believes an issue will arise in how a word may be interpreted at a later stage. Judges are not left to interpret the statute alone they are guided by rules and frameworks, this is to ensure consistency throughout cases.

(B) Briefly Explain Any Two Rules Of Statutory Interpretation Used In The English Courts.

One rule used the most by judges is the ‘literal rule’ in which words are given their plain meaning and the judge will look at what the word means as opposed to the possible implications. The way in which the use of the literal rule is justified is that it provides a clear and consistent approach to the interpretation of the statute, this reduces litigation and ensures the wishes of Parliament are followed. Contrary to this you have the ‘golden rule’ which allows judges to depart if the interpretation would result in an absurd, illogical or repugnant result. Guidance on its use was provided by Lord Simon in Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948. In which he stated there should be departure from the literal rule when “there is a clear and gross anomaly” and where “Parliament could not envisage nor accept its presence”

(297 Words)

Question 3)

Describe The Main Features Of The Common Law System Within England And Wales.

In 1154 the King of England Henry II began to introduce a unified system of rules due to the laws and procedures stretching back before 1066 being unworkable. This is especially true when looking at trial by ordeal in which the accused was required to undertake a task such as carrying a hot iron; their ability to do this and whether or not their wounds healed would determine their guilt. Local customs and remedies became abolished and slowly a set of legal principles began to develop, such as the development of a jury which was comprised of people local to the court. The judges who would oversee the trials were called the kings judges or circuit judges because they would travel on a circuit around the country; this aimed to ensure consistency throughout. The statements and judgements of the judges were written down and this developed a system referred to as case law or judge-made law. By the end of the 13th Century state authority was firmly established in England through common law, the principles of the common law system differ from statue law and if there is ever a conflict then statute will prevail. Some areas of criminal law are governed solely by case law, such as when no legislation is available which could replace judge made law. A commonly known crime is the crime of murder, the judiciary developed legal rules over time such as what constitutes mens rea (guilty mind) and actus reus (guilty act). Judges have defined each element within the offence, each of which must be proven beyond any reasonable doubt in order for the accused to be found guilty. Criminal law is not the only form of law to have been influenced by judge made law, civil law which resolves personal disputes has several areas that have received influence from case law. One form is the law of tort, the word tort being taken from the Norman French word meaning ‘wrong’. The tort of negligence being one in which the judiciary have established a certain standard of care which society should abide by. Failure to adhere to this duty of care can leave someone liable to prosecution under the tort of negligence.

(368 Words)

Question 4)

(A) Describe How You Managed Your Time When Preparing For This TMA.

When preparing for this TMA I managed my time somewhat loosely and could have taken more time to plan and draft before writing my initial copy. However, I have a full draft with time spare. I did not feel overwhelmed when completing this TMA due to the time spare but I feel when studying the units I could have used a more structured timetable to ensure I was not studying in such large amounts.

(B) Reflecting On The Whole Process Of Preparing For And Writing This TMA, Identify One Aspect That You Would Do Differently For TMA 02.

Looking back on the whole process of studying for and writing this TMA I feel that I would benefit from adding a better structure and study plan to my learning. This will assist in taking more effective notes so I do not feel like I am simply copying everything from the module website. It will also make the TMA drafting process much quicker.

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