Legislation often contains complex legal
vocabulary, which makes it difficult for the public to comprehend laws that are
passed1.

Several of the appeals in the Supreme Court deliberate the meaning of the
vocabulary in legislation; whilst considering the Disability Discrimination Act
19952,
Sedley LJ stated that citizens would be unable to understand and obey the Act without
legal advice3. 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words are often outdated, deeming the Act incomprehensive.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 modification4.

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 follow5; 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 assessed6. 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
facts7. In Pepper v Webb 19698, the
defendant was held liable, as he needed to fulfil his duties as a part of his
employment; contrarily, in Wilson v
Racher 19749,
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 196610, the
HOL is able to overrule cases and the Court of Appeal can avoid their previous
decisions in certain scenarios11. 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 194412 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)13.

            The Doctrine of Judicial Precedent
also embodies rigidity, with Stare Decisis
et Non Quieta Movere14,
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 courts15,
requiring money, time and permission to appeal to a higher court. Similarly, mistakes
can be made in judgments by higher courts that determine precedent16; thus,
lower courts are legally bound to follow their set precedent, regardless of its
inaccuracy, as the Judicature Acts of 1873 and 187517
establish this court hierarchy. R v R
199118 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 prejudices19. 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 decision20, ensuring
that both parties are able to comprehend the verdict and is a form of binding
precedent21.

The obiter dictum also influences
cases, where lawyers can utilise these ‘by the way’ statements22 to
persuade the judges in favour of a decision, or judges can employ them to
support their verdict as a form of persuasive precedent23. The obiter dictum from R v Howe & Bannister 198724 was
employed to persuade the decision in R v Gotts
199225,
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 debate26. 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 powers27 should
exist between the judiciary, executive and legislature, to guarantee that one
body does not exceed their authority. The Constitutional Reform Act 200528 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 body29;
however, the judiciary also interprets and develops the law through statutory
interpretation30.

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 meaning31; in Fisher v Bell 196132, 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 absurdity33. This allows
the judiciary to substitute the exact meaning with their own clarification,
which is revealed in Adler v George 196434. The
Mischief Rule is otherwise employed, where the judges attempt to supress the
mischief35,
and close the ‘gap’ in the common law as shown in Heydon’s Case 158436; 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 195137. Finally,
the Purposive Approach is utilised, where both the gap in the law and Parliament’s
intention38
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 made, both processes are
successful and vital.