Creating ‘law’ by practice direction and guidance
In ‘“Guidance” as law’ , for ICLR, I considered the status of judicially-issued ‘practice guidance’ as a form of law-making. Last month saw two instances of what practice guidance and practice directions mean in the hierarchy of what is authoritative law (ie the common law (ie judge-made law) and statutory law). These examples maintain my criticism of practice directions and practice guidance – especially practice guidance – as a means of creating forms of law.
First ‘hierarchy’: I shall assume in what follows that primary law consists of (1) the common law, which is created by High Court (and higher court) judges and can only be altered by (a) statute law or (b) a decision of an appeal court (or in the case of a Supreme Court decision, by a later Supreme Court decision); (2) statute law (ie Acts of Parliament); and (3)…
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