Revision:OCR AS Law - SOURCES OF LAW

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There are various sources of law in the English Legal System. The judgements of past cases, primary legislation, secondary legislation, European law and international treaties all contribute to our law.

Case Law

Case or Common law is the term given to law which is created in the courts rather than in Parliament. In the UK, the decisions of the courts are written in law reports and these decisions become law

Legislation

Traditionally, the majority of English law was derived from past cases. However, most law is now covered by legislation passed by Parliament. Case law has always been secondary to Parliamentary law because of the principle of Parliamentary sovereignty. Therefore Parliament is not bound by the courts or by its own past decisions. This has been modified by the role of European legislation and the Human Rights Act 1998.

The majority of legislation is secondary or delegated legislation which is passed by the executive under statutory authority. This can give the executive significant power in determining the law; often with little or no Parliamentary scrutiny.

4 types:

• Primary Acts (e.g. the HRA 1998)
• Consolidating legislation (e.g. PCC(S)A 2000)
• Codifying legislation – brings together existing law and common law
• Amending legislation

European Law

The areas were the EU is working towards common policies and practices, such as employment, are becoming increasingly important. Since the enactment of the European Communities Act 1972, European law has taken precedence over domestic law.

This can be seen in the case of R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995). In this case, the House of Lords had to consider the rights of part-time employees. Domestic law on this matter was inconsistent and ‘less generous’ than European Law. Therefore, the legislation was modified by Parliament in order to bring it into line with European legislation.

The Human Rights Act 1998 and the European Convention on Human Rights

• Undermines Parliamentary sovereignty?
• This Act incorporates the European Convention on Human Rights into domestic law
• It was not brought into force until October 2000; in order to give judges and other public bodies the time to undertake training on its provisions. £5 million was set aside by the Government for the Judicial Studies Board to run training sessions for all judges
• Before this Act, the Convention could only be enforced by British citizens in the European Court of Human Rights in Strasbourg
• Unlike decisions of the European Court of Justice, the decisions of the European Court of Human Rights are not binding in the UK. *However, in practice, domestic law is nearly always amended as is appropriate to bring it in line with the decision
• However, the English courts are obliged to take account of the case law of the European Court of Human Rights
• The Courts must also interpret legislation in a way that is compatible with the Convention ‘as far as it is possible to do so’
• ECHR
  • Article 2 – the right to life
  • Article 6 – the right to a fair trial
  • Article 7 – Prohibition on retrospective legislation
  • Article 10 – Freedom of expression
  • Article 14 – the right to enjoyment of the rights without discrimination
• The higher national courts can make a ‘declaration of incompatibility’ which means that Parliament will normally amend legislation which has been declared as conflicting with the Convention
• By the early 1990s, the UK had been held to be in breach of the Convention more times than any state other than Turkey
• S.2 of the HRA 1998 states that when courts are considering the Convention, they must ‘take into account’ decisions of the European Court of Human Rights
• S.3 of the HRA 1998 requires judges to interpret legislation ‘in so far as is possible’ with the Convention
• S.4 of the HRA 1998 states that a declaration of impartiality between domestic and European Convention does not affect the continuing validity of the legislation
• S.6 of the HRA 1998 states that it is unlawful for a public body (including the courts) to contravene a Convention right

The expansion by the higher courts of the law of judicial review during the past 40 years and the introduction of the Human Rights Act 1998 has eroded the distinction between the executive and the judiciary by giving judges more of a decision making role in politically sensitive areas.

For example, during the 1980s, the Conservative Government faced more successful challenges to its policies in the Courts than in Parliament.

The need for a stricter separation of powers between the executive and the legislature and the executive and the judiciary has become greater in recent years. The role of the Lord Chancellor and the organisation of the Appellate Committee of the House of Lords have been questioned.

The Legislative Process

• In practice, it is only proposals of the Government that will be passed
• THE WHITEHALL STAGE
  • All Acts start as a Bill which must pass through Parliament
  • Most Bills are public – they affect the whole country – and are proposed by government departments. Most are devised by Ministers and civil servants
  • A few are Private Bills – they affect only a local area or institution
  • Private Members’ Bills are Public Bills which are proposed by backbench MPs
  • Some legislation results from the findings of special commissions, official enquiries and Law Commission reports. The Government decides whether to put these proposals before Parliament
  • The first stage is usually a consultation document called a Green Paper – this sets out generally what the Government is seeking to do and asks for views
  • Once views are received, the Government will put together a White Paper – this sets out decided proposals and reasons for the legislation
    • It is increasingly common for draft Bills to be drawn up and circulated for consultation before being put by Parliament – an example is the Mental Health Bill 2002
    • Occasionally Bills are scrutinised by Parliamentary Committees before being formally introduced
  • When the department has decided on its proposals, they are passed to civil servants called Parliamentary Counsel. Here the Bill is formally drafted. It is then ready to be presented to Parliament
• THE WESTMINSTER STAGE
  • In order to be given time in Parliament, a Bill must have been approved by the Future Business Committee – a Cabinet committee
  • Most Bills start in the House of Commons
  • First Reading – the formal stage where he Bill is presented before the House – no debate on its content
  • Second Reading – the Minister sets out the policy objectives of the Bill and it is broadly debated on its merits in the Commons. Bills are rarely voted on or defeated here
  • Committee Stage – detailed scrutiny of the clauses takes place in a Standing Committee which is specially drawn up for the Bill – consisting of about 18 MPs selected by the Committee of Selection in proportion to the party makeup of the Commons – amendments will be proposed
    • The Government will almost always have a Standing Committee majority
  • Report Stage – Back in the Commons, the changes made to the Bill may be accepted or rejected. Further changes may be made
  • Third Reading – the final formal stage – the Bill is confirmed – no changes to its content can be made
• THE HOUSE OF LORDS
  • The procedure is largely the same as in the Commons, but the Committee Stage is usually carried out in the House as a whole, and changes can be made at the Third Reading stage
    • In 1999, the Lords voted against the Criminal Justice (Mode of Trial) Bill twice, which was intended to restrict trial by jury. The Government was forced to withdraw the Bill and decided not to reintroduce it in the following session
    • In the 2001-02 parliamentary session, the Lords defeated the Government 57 times
• ROYAL ASSENT
  • This is the final stage – the Queen signs the Act. It may come into force immediately or at a later time specified in the Act – such as the HRA 1998 (October 2000)

If the House of Lords refuse to pass a Bill, the Commons can reintroduce it in the next session of Parliament. The Parliament Act 1949 allows the Bill to go straight for Royal Assent without going to the Lords.

The quality of legislation may be weakened by a number of factors.

1. Large Government majorities ensure that often opposition parties do not have much impact – leaving large sections of the population under-represented in the law making process
2. Only 22% of MPs are women, and more than 97% are white
3. There may be a lack of meaningful debate and an unwillingness to regard the opinions of parties other than the Government. An example of ill-thought and rushed legislation is the Dangerous Dogs Act 1991 which was passed after several high profile incidents of dog attacks

Delegated Legislation

Power laid down by Parliament in an Enabling Act

3 types:

• statutory instruments
  • about 3000 per year
  • made by government departments
  • e.g. Access to Justice Act 1999
    • Gave power to the Lord Chancellor over legal aid
  • Disability Discrimination Act 1995
    • Gave power to the Secretary of State
• Orders in council
  • Under the Emergency Powers Act 1920
  • Made by the Monarch and the Privy Council
  • In times of emergency
  • E.g. possible over fuel crisis, September 2000
• Byelaws
  • made by local authorities, public/nationalised bodies
  • effect the local area
  • e.g. Parking restrictions, London Underground

Controlling delegated legislation

PARLIAMENTARY

• fairly limited
• the Delegated Powers Scrutiny Committee (HL) can consider appropriateness of DL
• Affirmative Resolutions – will not become law unless specifically approved by Parliament within approx 30 days
• Negative Resolutions – will become law unless rejected by *Parliament within 40 days
• Parliament may question ministers
• Joint Select Committee on S.I.s – reviews all S.I.s
  • Cannot alter, just highlights

COURT

• Challenges on the grounds it is ultra vires – goes beyond powers granted in the Enabling Act
• Judicial review
• DL can be ruled to be ultra vires and therefore becomes void
• Can be ruled ultra vires for incorrect procedure or if it conflicts with EU law
  • SUBSTANTIVE ULTRA VIRES – beyond powers of EA
  • PROCEDURAL ULTRA VIRES – beyond reasonable procedure set out in the EA
  • UNREASONABILITY

Statutory Interpretation

As legislation has increased in length and scope; the great majority of legal cases now concern some aspect of statutory interpretation. In practice, it is impossible to draft a statute which covers all eventualities and is free from conflict about its application.

In order to assist judges in determining the meaning of law, ‘rules’ of statutory interpretation have developed through the courts. It is difficult to ascertain the exact intention of Parliament at the time a particular statute was passed, and climate changes may affect this retrospectively. The process of statutory interpretation is creative – the judges themselves develop the law according to their own understanding and interpretive priorities.

1978 – Parliament passed the Interpretation Act – defines ‘he’ as ‘he and she’ etc.

Problems with the Law

• Dangerous Dogs Act 1995 – broad terms used which are not fully defined
• College of Nursing v DHSS (1981) over the Abortion Act 1967– technological developments can outdate legislation
• Cheesman v DPP (1990) – changes in language (‘passenger’)

The traditional approach is known as the literal rule. This was described by the Lord Chancellor of 1951 - Lord Simonds – as, “a duty of the court to interpret the words that the legislature has used… the power and the duty of the court to travel outside them… is strictly limited.” Therefore, the risk of undermining Parliamentary sovereignty is reduced. Zander described the literal rule as “mechanical, divorced from the realities of the use of language.”

The Literal Rule

• CHAPPELL & WHITELEY (1868) – impersonating a dead person is not impersonating a person entitled to vote
• R v HARRIS (1836) – ‘stab, cut or wound’ does not involve use of teeth
• LONDON RAILWAY Co v BERRIMAN (1946) – ‘relaying and repairing’ does not include maintenance

The literal rule may fail to express the intention of Parliament. Therefore, the golden rule developed. This states that where the application of the literal rule leads to a manifest absurdity, the judges should adapt the language of the statute in order to produce a sensible outcome. This approach caters for the need that a circumstance may arise which Parliament failed to see or expect – it is more realistic than the literal rule. However, like the literal rule, the golden rule still prioritises what Parliament said rather than what it may have meant. Very rarely do words only have one possible meaning.

The Golden Rule

• ADLER v GEORGE (1964) – ‘in the vicinity of’ can be read as ‘in’
• R v ALLEN (1872) – ‘married’ can be read as ‘having gone through a ceremony of marriage’
• Re SIGSWORTH (1935) – a son who had murdered his mother could not benefit from her will

Therefore, a third approach has developed – the mischief rule. This seeks to give expression to the full intention of Parliament – by identifying the ‘mischief’ which the legislation sought to remedy or the purpose it was intended to fulfil. This purposive approach states that, in order for judges to accurately apply the law, they must be able to understand what Parliament’s intentions were.

The Mischief Rule

• HEYDON’S CASE (1584) – established the rule
• SMITH v HUGHES 1960) – prostitutes who loitered on window balconies argued the were innocent because it wasn’t on a ‘street’ – they were found guilty
• ROYAL COLLEGE OF NURSING v DHSS (1981) – technology now allowed that nurses could be included as ‘registered medical practitioners’ and therefore could carry out abortions

In Pepper v Hart (1993), Lord Griffiths said that, “The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation”.

An example of this approach can be seen in the case of R v Smith (2001). In this case the House of Lords had to consider the Criminal Justice Act 1988 relating to the confiscation of proceeds of crime. The defendant had smuggled cigarettes that had been intercepted by Customs. The Act stated that an offence had been committed if the defendant had gained a ‘pecuniary advantage’ – and the Court of Appeal decided that because the goods had been seized no profit had been made – and therefore no advantage. The House of Lords disagreed, and said that under the purposive approach, the intention to gain an advantage was the same as actually doing it. One of the Lords stated that the function of Customs is to intercept such goods; and so it would be absurd to not punish the defendant.

The use of a purposive approach in the English Legal System has grown, as it is often the method adopted by the European Court of Justice. (College of Nursing case 1981)

Internal Aids - the statute in its entirety, the short title, the long title, marginal notes, section headings, schedules, preamble. Since 1998 Bills have been published with much fuller explanatory notes.

External Aids - Since Black-Clawson (1975) the courts have been able to consider White Papers for the purpose of identifying the mischief.

Since Pepper v Hart (1993), the courts can consider Hansard where there is ambiguity in the legislation or where it clearly indicates the mischief. The previous reluctance to consult it was based on s.9 Bill of Rights 1689, which prohibits the courts from using anything said in Parliament in order to preserve its authority and protect MPs. In 1993, the House of Lords decided by a 6 to 1 majority to reverse this rule and allow Ministerial statements to be referred to where there is ambiguity or feeling that it would explain the ‘mischief’. Lord Browne-Wilkinson said that it was wrong for the court to ‘blind’ itself to a clear indication of Parliament’s intention.

(However, in a study of 6 cases in which Hansard was referred to, the references very rarely helped to solve ambiguity).

Since 1998 Bills have been published with more explanatory notes; which explain the background to the statute, summarise its provisions and explain its context.

S.3 of the HRA 1998 requires judges to interpret legislation ‘in so far as is possible’ in a way that is compatible with the ECHR. In R v Lambert (2002), Lord Hope argued that s.3 could not allow the judiciary to interpret the law in a way which conflicts with the expressed intention of Parliament; and in Poplar Housing (2001) Lord Woolf stresses the need for the courts not to exceed their role.

Rules of Language

1. Esjudem Generis – a word takes its meaning from those around it
2. Expressio Unius – the inclusion of one term excludes others
3. Noscitur a Sociis – a word should be interpreted within context

Judicial Precedent

One of the requirements of a legal system is that its court decisions are consistent, so that litigants can predict the likely outcome of cases on the basis that like cases are treated alike. This system is known as binding precedent, which requires judges to follow the decisions of previous cases. The decisions in cases in the higher courts (High Court and above) must be followed by all lower courts – therefore the House of Lords binds all other national courts.

Where decisions of the higher courts do not constitute binding precedent, they are often said to be persuasive. Decisions of the Privy Council are not binding on other courts, but are often persuasive and followed.

In order for a case to be used as a precedent it must be recorded and published. Today there are paper and electronic reports of almost all the substantive decisions of the higher courts. The responsibility of law reporting is not the courts – the role is taken up by publishing companies, newspapers and journals. Therefore some cases, often those of importance but little media interest, can go unreported.

In deciding whether they have to follow a previous decision, the judges must first decide whether the material facts of the cases are sufficiently similar. If the facts are materially different, the court may distinguish the case from the earlier case and so apply a different rule. To decide what the material facts are, the court must look for the general principle which the earlier judges used. This combination of the rule of law and the material facts is known as the ratio decidendi.

STARE DECISIS

• let the previous decision stand
• CONSISTENT, FAIR AND PREDICTABLE

OBITER DICTA

• supporting arguments and explanations in a judgement
• Judge’s thought processes
• Judge’s explanation for the particular decision

RATIO DECIDENDI

• core of the decision
• Binds lower courts

Higher courts can OVERRULE, REVERSE or DISTINGUISH an earlier decision

Courts and their own decisions

Trial courts are not bound by their own previous decisions – so the magistrates’ courts, the county courts and the High Court are generally free to depart from their own previous rulings. The Divisional Court of the High Court, being a court of review, is generally bound by its own past decisions in the same way as the Court of Appeal.

In Young v Bristol Aeroplane Company (1946), the Court of Appeal set out the rule that it is bound by its own decisions except where:

• Earlier decisions of the Court conflict – it can choose which to follow
• Earlier decisions have been overruled by the House of Lords
• Earlier decisions have been reached in error because a binding precedent or statutory provision was overlooked (per incuriam)

Generally, these rules apply to both divisions of the Court of Appeal – criminal and civil. However, in the criminal decision there is also a rule that the Court can depart from a previous decision which is against the defendant if the interests of justice require. This is because the liberty of defendants in criminal cases is at stake, and therefore there must be a greater degree of flexibility in order to avoid miscarriages of justice.

The Human Rights Act 1998 and Precedent

If an earlier decision would, in the view of the court, breach the ECHR it is not bound to follow that decision since to do so would cause the courts to breach s6.

S.2 dictates that courts must take account of the case law of the European Court of Human Rights – it is not bound by these decisions.

S.3 dictates that courts must interpret legislation as far as it is possible to do so in line with the ECHR.

S.6 dictates that it is unlawful for public authorities, including the courts, to act in a way which is incompatible with the Convention.

The House of Lords

Until 1966 the House of Lords was bound by its own decisions unless they were in ignorance of earlier binding cases or statutory provisions. In 1966 the Lord Chancellor set out a Practice Statement, which stated that the House of Lords might normally regard itself as bound, but it may depart from a previous decision where the condition that influenced it no longer exists.

• Up to this point the House was bound by its own decisions – LONDON STREET TRAMWAYS CASE (1898)
• First major use in BRITISH RAILWAYS v BERRIMAN (1972) in which the PS was used to overrule the decision in ADDIE v DUMBRECK (1929)
• PEPPER v HART (1993) – PS used
• HALL v SIMONS (2000) – established right to sue barristers
  • Overruled Rondel v Worsley (1969)

The House of Lords has rarely departed from its own previous decisions. An example of the use of the Practice Statement was seen in Howe (1987) in which the court departed from its decision in DPP (N.I.) v Lynch (1975) by deciding that a defendant could not plead duress to a charge of murder.

What if no Precedent exists?

There are some situations where no precedents exist. An example is the separation of conjoined twins, seen in Re A (2001). This required Court of Appeal to make the highly sensitive and difficult decision over whether it would be lawful for surgeons to separate the twins which would result in the death of one of them. The judgement was forced to look beyond the law and to the underlying principles of the criminal justice system by balancing the interests of the two children. It was decided that the operation could legally proceed, although this was difficult to reconcile with existing law. This can often happen as technology develops so much more rapidly than the law.

Sometimes social changes give need to judicial law making. In R v R (1991) the court held that a husband could be guilty of raping his wife. The court went ahead and changed the common law principal that by marrying a woman consented to sex with her husband to bring it into line with current social attitudes.

The function of the Judiciary

Lord Greene, 1944: “The function of the legislature is to make the law, the function of the administration is to administer the law and the function of the judiciary is to interpret and enforce the law.”

Kate Malleson, 2003: “Judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.”

Parliamentary Sovereignty

The principle of parliamentary sovereignty, a foundation of our democratic system, dictates that law is made only by elected representatives – Parliament. Therefore, when judges change the law, they are risking undermining this vital principle.

Lord Woolf, 1997: “I see the Courts and Parliament as being partners both engaged in a common enterprise involving the upholding of the rule of law.”

Some criticise the homogenous background of the judiciary because of class, gender, age, ethnicity and education. The increasing law-making role of the judiciary has raised important questions about the appointment process.

Law Reform

• Pressure groups – e.g. altering the Disability Discrimination Act 1995
• The church
• The media
• The Cabinet
• Big business
• Trade Unions
• The general public
• Law Commission – independent body set up in 1965 by the Law Commissions Act 1965
  • Considers views of pressure groups etc
  • Carries out research and consultation
  • Formulates proposals for law reform for Parliamentary consideration
  • Focuses on areas of law which are unsatisfactory, too elaborate or outdated
  • Full time
  • Chaired by a High Court judge
  • 4 Law Commissioners and support staff, Parliamentary Draftsmen
• topics can be referred by the LC
  • Carries out its own research
  • Draws up proposals which go to Parliament
  • Initial success, waned since
• Judges can reform the law through judicial precedent
  • E.g. R v R (1991) – a man can be guilty of raping his wife
• Judge highlights the need for reform, the Law Commission reports on it, then Parliament acts upon it
• The Law Reform Committee – 1952 created, part time, considers small civil areas, referrals from the Government, sometimes consulted by the Law Commission
• The Criminal Law Revision Committee – 1957 created, part time, recommends changes to criminal law, produced 18 reports

Royal Commissions

• Independent standing bodies
• Advise the Queen, Parliament, Govt and the public on a particular issue
• Chairman
• Reports
• Members appointed by the Monarch on the PM’s advice
• Usually meet monthly
• ‘ad hoc’
• often used for non-part political issues
• average duration 3 years
• E.g. The Royal Commission on Environmental Pollution

Comments

• Suitable for: AS Level Law, OCR board
• Written by: Lauren18
• From this thread.