Chapter 2: Sources of law and interpretation of statute (case law and legislation) Flashcards
Main sources of law
Case Law
Legislation
Common Law v Equity
Common law is a set of rules common to the whole country, embodied in judicial decisions. The aim of common Law is consistency.
Equity is a set of principles developed after the common law to improve the common law. The aim of equity is fairness and morality.
What are the remedies under common law and what are the remedies under Equity?
Under common law, damages are the only remedy for a civil wrong. (Financial compensation).
Equity introduced new remedies, which are available at the court’s discretion.
-Specific performance of a contract
-Injunction force an action
-Rescission puts the parties back into their pre-contractual position
-Rectification allows the alteration of an agreement to reflect the parties’ true intentions
Trust law comes from equity or common law
Equity
Judicial precedent
Courts are expected to make decisions that are consistent with those of previous judges, however long the time between cases, under the principle of ‘stare decisis, let the decision stand’
Ratio decidendi
Obiter Dicta
Ratio decidendi - statements of law pertaining to the facts of the case that have been to be followed by later judges. (If the facts of the case can be distinguished, then the earlier decision does not have to be followed)
Obiter Dicta - Passing comments ‘by the way’ that influence later judges but are not binding on them. Persuasive only.
When are judges not bound on judicial precedent?
Different facts
Earlier ratio was obscure
Earlier decisions made ‘per incuriam (wrongly) e.g it failed to follow an earlier precedent
Earlier precedent may be too wide
Adv and disadv of judicial precedent
Adv
-Certainty
-Clarity
-Flexibility
-Detail
-Practicality
Disadv
-Decision may be illogical
-Different ratio may appear to conflict with each other
-Can limit judges discretion
-Too much Detail? Too easy to distinguish on the facts?
If created by Acts of Parliament, the law is …
Primary Legislation
Can courts overrule primary legislation
NO
3 ways of introducing legislation:
The government, an MP or the House of Lords
Legislation - Bill goes through the following stages
1st Reading - introduced to house. No debate
2nd Reading - Debate general merits, vote to continue or kill the process
Committee stage - Bill examined, and amended, clause-by-clause by committee of MPs, many of whom have expertise or special interest.
Report Stage - Amended bill reported back for House to consider amendments
Third reading - Amended bill voted on by house
Bill passes to other house - same process
Royal assent - Bill becomes an act
adv and disadv or primary legislation
adv
-MPs are elected and are representatives of the people. Judges are appointed.
-Legislation can be enacted to cover any issue
-Time required to pass legislation and the convoluted process mean much more care and thought can be applied
-bad law can be repealed
disadv-
-MPs often lack expertise
-Statues are bulky
-MPs complain of a lack of time to consider in detail
-Legislation tends to be broad brush and it struggles to cover every eventuality
Delegated legisaltion
Parliament delegates powers to Ministers, local authorities, HMRC etc to create legislation. Made possible by an ‘enabling act’
Examples:
-Bye-laws (local authority)
-Statutory instruments (much of our VAT legislation)
-Orders in councils
-Not regulations issued by Ministers
Controls over delegated legislation
-Some requires positive parliamentary approval
-Most other delegated legislation has to be laid before Parliament for 40 days before they pass into law
-The courts can declare them ‘Ultra Vires’ (beyond the capacity of the enacting body) or strike them out if they do not comply with the Humans Rights Act 1998.
-Bye Laws have to be approved by a minister
