#17267 - English Legal System Notes - GDL English Legal System

English Legal System Notes

Case law

• Judicial precedent

  • In deciding a case, a judge must follow any decision that has been made by a higher court in a case with similar facts.

  • Judges are bound only by the part of the judgment that forms the legal principle that was the basis of the earlier decision, known as the ratio decidendi.

  • The rest of the judgment is known as obiter dicta and is not binding.

• The hierarchy of the courts

  • The Court of Justice of the European Union is the highest authority on European law, in other matters the Supreme Court is the highest court in the UK.

  • Under the 1966 Practice Direction, the Supreme Court is not bound by its previous decisions.

• How do judges really decide cases?

  • According to the traditional declaratory theory laid down by William Blackstone, judges do not make law but merely discover and declare the law that has always been.

  • Ronald Dworkin also accepts that the judges have no real discretion in making case law, but he bases this view on his concept that law is a seamless web of principles.

  • Very different views have been put forward by other academics.

  • Critical theorists argue that judicial decisions are actually influenced by social, political and personal factors and that the doctrine of judicial precedent is merely used to legitimate the judges’ decisions.

  • Griffith also thinks that judges are influenced by their personal background.

  • Waldron accepts that judges make political choices but sees no fundamental problem with this.

• When should judges make law?

  • There is no doubt that on occasion judges make law.

  • There is some debate as to when judges ought to make law.

  • When judges make law they can adapt it to social change, but Francis Bennion has highlighted the danger that if the courts are too willing to make law, they undermine the position of Parliament.

• Advantages of binding precedent, it provides:

  • certainty;

  • detailed practical rules;

  • a free market in legal ideas; and

  • flexibility.

• Disadvantages of binding precedent, its:

  • complexity and volume;

  • rigidity;

  • illogical distinctions;

  • unpredictability;

  • dependence on chance;

  • retrospective effect; and

  • undemocratic character.

Statute law

• Statute law introduction Statutes are made by Parliament, which consists of the House of Commons, the House of Lords and the Monarch.

• House of commons

  • The House of Commons is the democratically elected chamber of Parliament.

• House of lords

  • Following the House of Lords Act 1999, membership of the House of Lords is currently undergoing a major reform to remove the role of the hereditary peers.

  • The Government is considering removing the remaining 92 hereditary peers.

  • An independent Appointments Commission selects some non-party members for the upper House and vets party appointments.

• Making an act of parliament

  • All statutes begin as a Bill.

  • There are three types of Bill:

    • Public Bills

      • Public Bills deal with matters affecting the public generally and are usually introduced by a Government minister

      • Public Bills apply throughout England and Wales.

      • Most Bills are public and are introduced and supported by the Government.

    • Private Members’ Bills

      • A Private Members' Bill deals with matters affecting the public generally but is introduced by a Member of Parliament who is not a minister.

      • Private Members' Bills are a type of Public Bill and should not be confused with Private Bills.

    • Private Bills.

      • A Private Bill deals with issues which affect only a very small number of people.

      • For example, a Private Bill could deal with a matter affecting a single local authority. Private Bills are promoted by the group concerned.

  • The legislative process usually starts in the House of Commons and proceeds as follows.

    • First reading

    • Second reading

    • Committee stage – bill referred to a committee of the commons.

    • Report stage – committee reports back to the commons

    • Third reading

    • House of Lords

    • Royal Assent.

• Role of the House of lords

  • The Parliament Acts of 1911 and 1949 lay down special procedures by which proposed legislation can go for Royal Assent without the approval of the House of Lords after specified periods of time.

  • These procedures are only rarely used, because the House of Lords usually drops objections that are resisted by the Commons, though their use has increased in recent years.

Statutory interpretation

• Parliamentary intention

  • In interpreting statutes the courts are looking for the intention of Parliament, but this intention is frequently difficult to find.

• Rules of statutory interpretation

  • There are four approaches to statutory interpretation:

    • The literal rule;

      • If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.

    • The golden rule;

      • a court may depart from the ordinary meaning where that would lead to absurdity

    • The mischief rule; and

      • What was the common law before the making of the Act; What was the mischief and defect for which the common law did not provide; What remedy Parliament resolved and appointed to cure the disease; The true reason of the remedy

    • The purposive approach.

      • The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language

• Human rights act 1998

  • Under s. 3 of the 1998 Act the courts are required to read legislation in a way that is compatible with Convention rights.

• Interpreting European legislation

  • Under s. 2(4) of the European Communities Act 1972, all parliamentary legislation must be construed in accordance with European law.

• Internal aids to statutory interpretation

  • Internal aids consist of the statute itself, explanatory notes (post-1999) and rules of language.

• External aids to statutory interpretation. These include:

  • Dictionaries and textbooks;

  • Reports that preceded the legislation;

  • Treaties;

  • The Human Rights Act 1998; and

  • Hansard, following the decision of Pepper v Hart.

• How do judges really interpret statutes?

  • Different academics have put forward arguments as to how judges really interpret statutes.

    • John Willis argues that the courts use whichever rule will produce the result that they themselves believe to be just.

    • Griffith thinks that judges interpret statutes in a way that coincides with their political preferences, referring to the case of Bromley london Borough Council v Greater London Council to support his arguments.

• Reform of statutory interpretation

  • The Renton Committee on the Preparation of Legislation in 1975 recommended reforms of the procedure for making and drafting statutes, but little has changed.

Delegated legislation

• There are three main forms of delegated legislation:

  • Statutory instruments

  • Bye-laws

  • Orders in Council.

• The power to make delegated legislation

  • Usually an Act of Parliament is required giving the power to make delegated legislation to a branch of the state.

• Why is delegated legislation necessary?

  • Delegated legislation is necessary because it saves parliamentary time, constitutes a quick form of legislation, and is suited to technical subject areas or where local knowledge is needed.

• Control of delegated legislation

  • Delegated legislation is controlled through:

    • The consultation of experts;

    • Publication of the legislation;

    • Supervision by Parliament;

    • The courts with the judicial review procedure; and

    • Confirmation by a Government Minister.

  • Criticism of delegated legislation Delegated legislation has been criticised due to:

    • Lack of democratic involvement;

    • Overuse;

    • Sub-delegation; and

    • Lack of controls.

European law

• The European Union currently has 28 members.

  • It was established to create political unity within Europe and to prevent another world war.

  • In 2016 the UK voted in a referendum to leave the EU, and the withdrawal process is scheduled to be completed by 29 March 2019.

• The institutions of the European Union There are six key institutions of the European Union:

  • The Commission,

  • The Council of Ministers

  • The European Council

  • The European Parliament

  • Court of Justice of the European Union and,

  • The European Central Bank.

• The Court of Justice of the European Union has two separate functions:

  • A judicial role where it decides cases of dispute and

  • A supervisory role under Art. 267 of the Treaty on the Functioning of the European Union.

• Making European legislation

  • The Council of Ministers, the Commission and the European Parliament all play a role in making European legislation.

  • All legislation starts with a proposal from the Commission, though the Council enjoys the most power in the legislative process.

  • Increasingly, the qualified majority system of voting is being used by the Council in agreeing new legislation.

• Types of european legislation The different forms of European legislation are:

  • Treaties;

  • Regulations;

  • Directives; and

  • Decisions.

• How does EU law affect the UK?

  • Membership of the EU has had a number of effects on UK law and on our legal system.

  • Joining the original EEC created new and very important sources of law for the UK.

    • Because EU law takes precedence over domestic legislation, the role of the courts has changed as a result of membership of the Union.

    • Now judges should refuse to apply statutes which are in conflict with directly effective European law.

  • Post Brexit, however, the judiciary needs guidance from the Government on how to manage the juxtaposition of English law and EU law.

...