There are elected every five years[4], thus, if they

There
are ample advantages and disadvantages of both the process of Parliamentary
law-making and the Doctrine of Judicial Precedent. Primarily, Parliament is
comprised of the House of Commons (HOC), the House of Lords (HOL) and the
Monarch1.

Each Parliamentary body works collectively to fulfil their specific
responsibilities. However, there are drawbacks to this systematic approach. The
purpose of the Legislature is to pass laws, while it is the judiciary’s responsibility
to implement the law2.

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In the Doctrine of Judicial Precedent, the Court’s previous decisions bind their
future verdicts in similar cases; yet, there are disadvantages when considering
judicial precedent. This essay will begin by evaluating the process of
Parliamentary law-making before moving on to discuss the advantages and
disadvantages of the Doctrine of Judicial Precedent.

When considering the Parliamentary law-making
process, it remains crucial to determine whether or not it considers public
opinion. On one hand, a chief advantage of the legislature is that it is a
democratic system; there are 650 members3
that are elected by the electorate, whom have the ability to directly challenge
the government through scrutiny. As citizens must abide by the laws, it remains
necessary that the HOC represents their constituents. These Members of
Parliament (MP’s) are elected every five years4,
thus, if they fail to satisfy their position and eventually disappoint the
public, they can be voted out of Parliament. The government also
controls the process of Parliamentary law-making, which benefits the public as
it is elected. However, most of the MP’s also sit in the HOC and can therefore
control the agenda to fit their desires; they can vote out Private Members’
Bills through a process call ‘filibustering,’ where MP’s deliberate the Bill, leaving
no time to vote, which ultimately eradicates the Bill5.

On the other hand, Parliament is
significantly undemocratic. The House of Lords is an undemocratic body of
Parliament, which consists of 800 members6
that are appointed this position or inherently receive this title. Due to their
undemocratic nature, they fail to represent the interests of the public; however,
this issue is being resolved, as the House of Lords Act 19997
solely allowed 92 hereditary peers to remain in the Lords. Though the HOL
complements the HOC’s work, they are also able to consider Bills based on their
own agenda, making it difficult for Private Members’ Bill’s to be passed. The
Hunting Act 20048 evidently
displays this, as many HOL members desired to hunt, thus opposing and delaying
the Bill for a year. Furthermore, the Parliament Acts of 1911 and 19499
reduce the HOL’s power, allowing them to postpone a law for a year instead of
two years, meaning a Bill can become law even if the HOL rejects it. The House
of Lords scrutinises and debates legislation to confirm they are clear and
relevant, providing specific expertise from their previous careers.

            Although the Monarchy is unelected, the
Queen merely holds ceremonial power, which is regarded as both a strength and a
weakness. The Queen inherits her power, which contributes to the undemocratic
aspect of Parliament where citizens’ perspectives are not voiced. Acts of
Parliament need royal assent to be passed, requiring the Queen to approve of
the proposed laws, which is revealed in the Royal Assent Act 196710.

A Bill was last refused when Queen Anne failed to approve the Scottish Militia
Bill in 170411;
thus, though Royal Assent is necessary12,
the Queen does not object proposed Acts, as it is merely ceremonial.

            The legislative process persists to
be thorough. There are numerous stages that a Bill must experience in order to
become an Act of Parliament, which provides a platform for debate. These
procedural stages ensure the removal of mistakes and allow room for amendment
where needed; thus, the Bill being passed will remain clear. There are eleven Parliamentary
stages where Bills are examined, however the most significant stage remains the
Committee Stage; in this stage, each clause is examined by the Commons to refine
the Bill13.The
entire process is efficient, as a whole area of law can be consolidated into
one Act of Parliament, as displayed in the Fraud Act 200614,
where an entire area of criminal law was listed; this allows individuals to refer
to one Act when analysing a specific area of law. Before a Bill is scrutinised,
green and white papers are drafted, which are consultative documents, proposing
to reform the law15;
these pre-legislative steps confirm the meticulousness of the procedure.

Despite
being a thorough process, it is also slow and lengthy. Changes in legislation will
not be instant, as there are numerous readings and stages involved16.

Sometimes, proposals for law reform are presented but never actually carried
out, which uncovers the inefficient process of law reform. The Law Commission suggested
modifications in the Offences Against the Person Act in 199317,
as the Act was last modified in 1861 and existed to be confusing. In 1998, a
Draft Bill was published but not presented to Parliament and still has not been
reformed, displaying the extent of the lengthy process18.

Additionally, pressure groups indirectly encourage Parliament to reform the law
by conveying public concerns, which is shown in the Dangerous Dogs Act 199119
and the Sex Offenders Act 199720;
the government felt compelled to take immediate action as public concerns were
rising and supported by the media.

Pressure groups advocate prevalent societal issues that need immediate reform;
however, that remains unreasonable as the process of law-making is incredibly
gradual.

Due to
the doctrine of Parliamentary sovereignty21,
legislature remains certain and cannot be challenged. Acts of Parliament overrule
common law, as they are deemed supreme in the Bill of Rights 168922.

However, three systems exist to ensure that Parliament does not surpass its
authority: The Human Rights Act 199823,
devolution and European Law.24
Furthermore, the process of judicial review also ensures that Parliament does
not exceed its given powers25;
an individual can attempt to bring a judicial review if they are directly concerned
with the outcome of a case and believe that the court is transgressing its
role, which also challenges Parliamentary supremacy.26

            Legislation
often contains complex legal vocabulary, which makes it difficult for the
public to comprehend laws that are passed27.

Several of the appeals in the Supreme Court deliberate the meaning of the
vocabulary in legislation; whilst considering the Disability Discrimination Act
199528,
Sedley LJ stated that citizens would be unable to understand and obey the Act without
legal advice29. Numerous
words are often outdated, deeming the Act incomprehensive. Additionally, when
amendments are involved, Acts become even more complex. When one desires to
unearth the contents of an Act, they will need to refer to two or more Acts in
order to learn about the initial law and its modification30.

Sometimes, individuals remain uninformed of the amendments and thus constitute
the pre-reformed Act, trusting that those laws are currently implemented; this will
give them an ill-informed understanding of the current legislation, resulting
in a more time-consuming procedure.

            Contrarily, the Doctrine of Judicial
Precedent is a source of law where past decisions of judges create law for
future judges to follow31; it can
be flexible and rigid, which serves as both a pro and a con. Primarily, depending
on the facts of the case, there are a variety of precedents that can be
employed and must be assessed32. Common
law is flexible, as though a case may seem similar to a previous case, subtle facts
may differ, affecting its entire verdict. As there are innumerable precedents,
the judiciary is able to decide which cases to utilise based on distinguishing case
facts33. In Pepper v Webb 196934, the
defendant was held liable, as he needed to fulfil his duties as a part of his
employment; contrarily, in Wilson v
Racher 197435, the
defendant was not liable, as his health and safety would be affected if he
followed the employer’s commands. This exhibits the weakness of judicial
precedent, as the outcome may be unpredictable depending on the judiciary’s
method of distinguishing.

Changing precedent is a difficult procedure, but is
necessary to satisfy social norms. By utilising the Practice Statement 196636, the
HOL is able to overrule cases and the Court of Appeal can avoid their previous
decisions in certain scenarios37. This
is a strength as they can disregard precedent to meet current standards but a
weakness as it can change the predictability of outcomes. Furthermore, the
Court of Appeal in Young v Bristol
Aeroplane Co Ltd 194438 also
recognised that courts can refuse to follow precedent if there are two
conflicting precedents or if the precedent was decided per incuriam (by mistake)39.

            The Doctrine of Judicial Precedent
also embodies rigidity, with Stare Decisis
et Non Quieta Movere40,
stand by your decision, as its foundation. This can cause several issues, as
precedent might be outdated and redundant; where unreasonable precedent exists,
its unfairness will be perpetuated. Furthermore, if lower courts make errors regarding
the outcome of a case, their verdicts can solely be overruled by higher courts41,
requiring money, time and permission to appeal to a higher court. Similarly, mistakes
can be made in judgments by higher courts that determine precedent42; thus,
lower courts are legally bound to follow their set precedent, regardless of its
inaccuracy, as the Judicature Acts of 1873 and 187543
establish this court hierarchy. R v R
199144 clearly
depicts that rape was not deemed illegal in marriage until recently identified
as a criminal activity due to modern mindsets, which demonstrates that an
unjust precedent was perpetuated until this case disregarded it.

Another distinct advantage remains the certainty,
justice and consistency attached to the Doctrine. Judges make rational
decisions based on like-cases rather than arbitrary ones, which prevents
inequality and prejudices45. With
consistency, there is a higher regard for the Supreme Court and judges’
decisions are perceived credible. Furthermore, cases that have comparable facts
will be unlikely to proceed to litigation, as the outcome can be anticipated. Thus,
countless case outcomes can be discerned, saving money and time.

Ratio decidendi and obiter
dictum develop the concept of judicial precedent. Chiefly, the ratio provides a reason for the decision46, ensuring
that both parties are able to comprehend the verdict and is a form of binding
precedent47.

The obiter dictum also influences
cases, where lawyers can utilise these ‘by the way’ statements48 to
persuade the judges in favour of a decision, or judges can employ them to
support their verdict as a form of persuasive precedent49. The obiter dictum from R v Howe & Bannister 198750 was
employed to persuade the decision in R v Gotts
199251,
stating that employing duress as a defence-mechanism was unavailable to
attempted murder. Also, both the ratio
and obiter dictum are not clearly
identified in case reports, resulting in ambiguity and debate52. In
addition, though a judgment may resemble a previous decision, the reason behind
the verdict may differ, displaying that judgments are often unclear.

According to Montesquieu, separation of powers53 should
exist between the judiciary, executive and legislature, to guarantee that one
body does not exceed their authority. The Constitutional Reform Act 200554 transformed
the judiciary and formally developed the concept of the distribution of powers
by creating an autonomous Supreme Court. Though steps are being taken to
establish the separation of powers, in reality, the three bodies overlap and
remain interdependent.

Parliament is supposed to be the sole legislative body55;
however, the judiciary also interprets and develops the law through statutory
interpretation56.

Primarily, there are four rules that the judiciary employs to interpret the law.

The Literal Rule is used when the judge interprets statutes literally rather
than deciphering its meaning57; in Fisher v Bell 196158, the
sale of a flick-knife was considered an invitation to treat rather than an
offer. Next, the Golden Rule is utilised when interpreting the statute
literally would result in an absurdity59. This allows
the judiciary to substitute the exact meaning with their own clarification,
which is revealed in Adler v George 196460. The
Mischief Rule is otherwise employed, where the judges attempt to supress the
mischief61,
and close the ‘gap’ in the common law as shown in Heydon’s Case 158462; now, judges
assume even more power, as they decipher the meaning of the statute and alter
the exact words based on their own interpretation, as portrayed in Corkery v Carpenter 195163. Finally,
the Purposive Approach is utilised, where both the gap in the law and Parliament’s
intention64
are examined. In lieu of solely enforcing the law, the judiciary develops it
too, infringing on Montesquieu’s separation of powers.

In conclusion, both Parliament and the judiciary
are fulfilling their roles efficiently. Though there are numerous flaws in the
Parliamentary law-making system, it continues to represent the citizens’ perspectives
and it is thorough, preventing the occurrence of mistakes. When considering
judicial precedent, power is handed to the judiciary who develop the law, employing
binding precedent to support their decisions, though this contradicts Montesquieu’s
separation of powers. Thus, though improvements can be m

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