THE ADVANTAGES AND DISADVANTAGES
OF THE DOCTRINE OF JUDICIAL PRECEDENT
Module: Business Law
Module tutor: G Arruda
Group presentation: Annette Warner, Kelley-Ann Lamey, Kevin Gyamera 12th November 2012
•What is the EU?4
•Types of EU legislation5
•Legislation of the European Union6-7
•The Supremacy of EU Law8
•Treaty of Rome – direct effect Case example9
The Judicial Precedent – Advantages & Disadvantages10
•What is the Judicial Precedent11
•Hierarchy of the courts12
The aim of this presentation is to demonstrate how the European Union Impacts the English legal system and goes on to identify the advantages and drawbacks of the Judicial Precedent.
WHAT IS THE EU?
•Formerly known as EEC the European Economic Community
•UK joined 1st January 1973
•Countries working together in partnership
•Based on the rule of law
•Ensure members act consistently in various policies
Types of EU legislation
The principal forms of
EU legislation are
Legislation of the European Union
Treaty of Rome – direct effect Case example
In this case the EC treaty Art 141 is clear, unconditional,
and is not dependent upon parliament implementation
The Supremacy of EU Law
The above reflects
supremacy of the EU Law
direct applicability and direct effect of EU Law takes precedence over UK Law and UK Law is to be changed by Parliament in the event of its incompatibility with EU Law
However the fact that UK appears still to be able to change any law by an Act of Parliament even the legislation that speaks of EU supremacy suggests that the Supremacy of the UK Parliament still exists or could exist fully again.
The Judicial Precedent
Advantages & Disadvantages
What is the Judicial Precedent
Hierarchy of the courts
•In concluding the creation of the EU and UK becoming a member resulted in new sources of law that takes priority over UK legislation •It is not strictly true to say the UK is governed by EU law or that the EU law applies in the UK •EU law only applies where UK law is in conflict with it and in such a case EU law reigns supreme •Or where UK law does not grant a specific right or duty, where EU law fills the gap •The ECJ is there as a platform for appeal cases to be reviewed •Looking at the EU from a business perspective, the creation of a wide system of laws can be seen as very beneficial in the sense that a system of laws that operates througout the EU will be beneficial to businesses that operate in many of the EU countries.
Previously they would have needed to be aware of laws of each country their business was in or commercial dealings. With the direct applicable laws applied uniformly throughtout the EU the need to understand fully the laws of each country is reduced
•Conclusion case law
The doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion. Following of precedent is easier in UK than in many other countries because England has a centralized legal system with only a small number of courts. The case law methods is sometimes said to be flexible. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament.
The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law. However this could be considered a...