(C) SOURCES OF ENGLISH LAW - how is the law created?

Question 1

What are Sources of Law>

Answer 1

means the way in which the law is brought into existence

Question 2

What are the two main sources of English law

Answer 2

• judicial precedent and

- legislation.

Question 3

What is Judicial Precent

Answer 3

The common law

• This is the main source of English Law and consists of the decisions of courts made in the course of litigation.

• Decisions made in the senior courts in the country are said to be binding
§ i.e. they must be applied by all other courts in subsequent cases where the facts are largely the same

Question 4

What is the decision in a case?

Answer 4

§ When hearing a case the Judge must decide in favour of one party or another.

Question 5

What is the ratio decidendi?

Answer 5

• THE REASONS FOR THE DECISION that the judge has come to

□ All subsequent cases have got to follow
□ Creates precedent that must be followed in future cases

Question 6

What is Obiter Dicta?

Answer 6

Things said ‘by the way’ – i.e. any additional comments beyond the reasons for the decision

• not specific reasons for the decision

Question 7

Difference between Binding and Persuasive Precedents?

Answer 7

• It is only the ratio decidendi which creates a binding precedent which must be followed and even then only by certain courts.

• Judges in subsequent cases may however be persuaded to follow an argument which is not binding and the following are particularly important persuasive precedents:
○ Obiter Dicta:
○ Foreign Decisions:
○ Dissenting Judgments:

Question 8

How does ratio decidendi work in the hierarchy of courts?

Answer 8

• As a general rule all courts must follow the ratio decidendi of a case decided in a court which is higher in the hierarchy of courts than the court reaching the decision.

○ So, the county court, family court and Magistrates Courts will follow decisions of the High Court, Crown Court, Court of Appeal and Supreme Court (House of Lords)

○ whereas the Court of Appeal will only follow the decisions of the Supreme Court (House of Lords).

Question 9

What is Case Reporting?

Answer 9

• The basis of judicial precedent is the reporting of cases. Without a reliable system of reporting, it would be impossible for case law to be a source of law.

Question 10

What is Reversing the Decision

Answer 10

§ A decision is said to be REVERSED if it is altered on appeal.

□ e.g. A v B in High Court 2015:Decision in favour of B.
® A appeals to the Court of Appeal
® A v B in Court of Appeal 2016.
- Decision in favour of A so the original decision has been REVERSED and the outcome has changed

Question 11

What is the Overruling the Precedent

Answer 11

§ When a PRECEDENT is changed or removed we say it has been OVERRULED

□ e.g. A v B in Court of Appeal 2010 creates a precedent.
□ X v Y in Supreme Court 2016 changes that precedent and introduces a new one – the 2010 precedent has been overruled but the outcome of the case in A v B has not changed

Question 12

What provision has an impact on judicial precedent?

Answer 12

The Human Rights Act 1998
○ Under section 2 of this Act courts are now required to take into account any previous decision of the European Court of Human Rights.
○ This provision has an impact on the operation of judicial precedent as it effectively permits any court to overrule any decision of a previous English court which is in conflict with a decision of the ECHR, regardless of its position within the English court hierarchy.

Question 13

What Laws are made by Parliament

Answer 13

• LEGISLATION
• STATUTE
• ACT OF PARLIAMENT

Question 14

The Role of Parliament

Answer 14

§ Parliament is the sovereign body and as such has complete authority to impose new rules on society or abolish existing rules.

Once Parliament has created legislation, the role of the court is to

• interpret the rules made by Parliament,
• to decide whether they have been broken
• or not and to pass sentence or make an award of damages (compensation) if appropriate.

Question 15

What is the Law Commission

Answer 15

has the role of reviewing all aspects of the law with a view to recommending development and reform as appropriate.

§ It has a full-time staff of lawyers who consult with the legal profession, government departments and other interested parties before submitting a report and draft Bill with suggested changes to the law.

Question 16

What are the chambers or parliament?

Answer 16

House of Commons

House of Lords

Question 17

Attributes House of Commons

Answer 17

• 650 Elected MPs

- Majority of MPs = Government

Question 18

Attributes of House of Lords

Answer 18

• Non-elected ‘Lords and Ladies

- Hereditary Peers can No Longer Sit

Question 19

What is a statute?

Answer 19

begins life as a Bill and must pass through both the House of Lords and the House of Commons and receive the Royal Assent before it becomes law.

§ It is then known as an Act of Parliament and comes into operation on the date that it receives the Royal Assent unless some other date is specified in the Act.

§ Most Bills originate from government departments.

Question 20

What are Green Papers?

Answer 20

Consultation documents which set out proposals for legislation and invite comments from interested parties

Question 21

What are White Papers

Answer 21

A document which sets out the Government’s firm proposals for legislation

Question 22

Procedure of statute

Answer 22

HOUSE OF COMMONS

1. FIRST READING
2. SECOND READING
3. COMMITTEE STAGE
4. REPORT STAGE
5. THIRD READING

HOUSE OF LORDS
- The same procedure is repeated in the House of Lords and any amendments must be returned to the House of Commons for their approval

ROYAL ASSENT
- A paper exercise but essential before the Bill becomes law either immediately, or on a date specified in the Act

Question 23

What is the First Reading?

Answer 23

The Bill is formally presented to the House, giving the full title. Printed copies are available to take away

Question 24

What is the Second Reading

Answer 24

◊ A general debate on the POLICY of the whole Bill.

◊ A vote is taken and if passed by majority the Bill moves to the next stage.

Question 25

What is the committee stage?

Answer 25

A committee of 20-50 MPs discusses the detailed wording of the Bill and proposes amendments.

Question 26

What is the report stage?

Answer 26

• The proposed amendments are reported to the whole House for their consideration.
• A vote is taken and if passed by majority the Bill moves on to the Third Reading.

Question 27

What is the Third Reading?

Answer 27

• Final general debate on the Bill – only minor amendments are allowed.
• A vote is taken and if passed by majority the Bill moves over for consideration by the House of Lords.

Question 28

Who is the Supreme Law maker?

Answer 28

It should be remembered that although the courts have some power to develop law through the use of judicial precedent, Parliament is considered to be supreme (since legislation is made by people elected by the public to govern the country).

Question 29

Role of courts in interpreting Acts of Parliament

Answer 29

• Although Parliament is considered to be the supreme law maker and significant legal changes will be made by Act of Parliament,
  ○ the courts can have an important impact on the application of statutes since where a case involving the application of a statute comes before the court,
  ○ the court has the job of interpreting the words in the statute and applying them to the case that is being considered.

Question 30

What are the Common Law Rules?

Answer 30

• The Literal Rule

- The Golden Rule

Question 31

What is the Literal Rule?

Answer 31

○ Where possible the courts should always interpret the words of a statute literally

○ The ordinary meaning of words, found in an English dictionary, should be applied to the words in a statute

○ Only if a case has an act of parliament that affects the outcome

Question 32

What is the Income Tax Act 1952

Answer 32

• A person who fails to deliver a correct tax return must forfeit the sum of ‘twenty pounds plus treble the tax he ought to be charged under the Act.’

Question 33

What is the Golden Rule

Answer 33

○ If the application of the literal rule produces an absurd result the court should not give effect to it

Question 34

What is the Administration of Estates Act 1925

Answer 34

§ A person who dies without having made a will is said to die ‘INTESTATE.’

§ Under The Administration of Estates Act
□ ‘Where a person dies intestate his/her property will automatically pass to his/her next of kin.’

Question 35

What is the Street Offences Act?

Answer 35

§ Although prostitution itself is NOT illegal

§ Under this Act it is a criminal offence for a prostitute to SOLICIT IN THE STREET

§ To solicit is to try to attract customers

Question 36

What is The Mischief Rule/Purposive Approach

Answer 36

• The courts look to see what mischief Parliament was trying to remedy when interpreting the words in the statute.

○what was the PURPOSE of the legislation?
- The statute should be interpreted to try to achieve that purpose

Question 37

What are aids to statutory interpretation?

Answer 37

• Intrinsic Aids

- Extrinsic Aids

Question 38

What are Intrinsic Aids?

Answer 38

○ Found within the statute itself

○ When interpreting a particular word or clause the Judge can look to see if that word or clause has been used elsewhere in the statute which may help to clarify the most appropriate interpretation.

Question 39

what is the Ejusdem Generis rules?

Answer 39

General words must be read in the context of the words which precede them.

Question 40

What are Extrinsic Aids?

Answer 40

○ Found outside the statute
§ (external source)

• Any aid to statutory interpretation which comes from beyond the statute itself is called an extrinsic aid.

Question 41

Example of Extrinsic Aids?

Answer 41

§ If the Judge is applying the mischief rule (i.e. what was the purpose of the statute?) he will make use of extrinsic aids to try to ascertain the view of Parliament.
□ So he might look at the historical setting – the date that the statute is being introduced and the social climate at the time.
□ The Judge might also consult textbooks to gather information about the views of legal academics on the topic.

Question 42

What is the Human Rights Acts 1998?

Answer 42

§ Under section 3 of the HRA all legislation must be read, so far as possible, to give effect to the rights provided under the European Convention on Human Rights (see page 32 of this handout).

§ So whichever rules of statutory interpretation the court applies, it must ensure that the decision is in keeping with the rights provided by the ECHR.