Module 2, Chapter 5 - Sources of Law

Question 1

What are the four main sources of law that currently apply in the United Kingdom?

Answer 1

1. Legislation
2. Case law
3. European Union law
4. Human rights law.

Question 2

What is the primary source of domestic law in the UK?

Answer 2

Legislation.

Question 3

What is the meaning of legislation?

Answer 3

Laws that derive from Parliament.

Question 4

There are two principal types of domestic legislation. Name them.

Answer 4

1. Acts of Parliament
2. Subordinate legislation

Question 5

What is meant by ‘primary legislation’?

Answer 5

Acts of Parliament.

Question 6

The supreme form of domestic law in the UK (which cannot be amended or overruled by the courts) is derived from?

Answer 6

Parliament.

Question 7

What is secondary legislation?

Answer 7

Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament. This is known as delegated functions.

Question 8

List the components of an Act.

Answer 8

1. Sections
2. Subsections
3. Parts
4. Chapters
5. Schedules

Question 9

What are the stages of passing Acts of Parliament?

Answer 9

1. Green Paper - this sets out broad legislative proposals for consultation.
2. White Paper - this provides more detailed final proposals.
3. A Bill is drafted.
4. The Bill is passed through the House of Commons.
5. The Bill will proceed through the House of Lords.
6. The Bill can then pass to the monarch for Royal Assent. Once Assent has been granted, the Bill will become an Act of Parliament.

Question 10

What are the three types of Bills?

Answer 10

Public Bills, Private Bills, and Hybrid Bills.

Question 11

Define ‘Public Bill’.

Answer 11

These are Bills that affect the general population. Where a Public Bill is introduced by a government
minister, it is known as a government Bill. Where a Public Bill is introduced by a non-ministerial MP, it is known as a Private Members’ Bill.

Question 12

Define ‘Private Bill’.

Answer 12

These are Bills that affect specific persons, groups, organisations or localities.

Question 13

Define ‘Hybrid Bill’.

Answer 13

Hybrid Bills are so called because they address both public and private matters.

These are Bills that affect the general population, but will have an increased effect upon specific persons, groups, organisations or localities

Question 14

What is meant by a ‘Commencement Order’?

Answer 14

When other sections of an Act are often brought into force later via the passing of a type of subordinate legislation (Commencement Order).

Question 15

What are the five Stages of a Bill?

Answer 15

1. First Reading - The title of the Bill is read out, and an order is made for the Bill to be printed. No vote takes place, and so all Bills will pass the first reading.
2. Second Reading - The MPs will debate the Bill (although no amendments can be made) and will then vote on whether the Bill should proceed. If the vote passes, it will proceed to the committee stage.
3. Committee Stage - The Bill will be passed to a committee of MPs, who will scrutinise the Bill and propose amendments.
4. Report Stage -The committee reports to the House on any amendments made to the Bill.
   The House will debate these amendments and may add new clauses or make amendments to existing clauses.
5. Third Reading - The third reading normally takes place immediately following the report stage. Here, further debate may occur, but amendments cannot be made. Following the debate, the House votes on the Bill. If the vote passes, the Bill can proceed to the House of Lords.

Question 16

The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘presumptions’ and how do the courts use this function?

Answer 16

Presumptions: The courts have created several presumptions to help them interpret legislation (e.g. it is presumed that statute will not affect cases that arose before the statute was passed, unless it states otherwise.

Question 17

The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘Intrinsic aids’ and how do the courts use this function?

Answer 17

Intrinsic aids refers to the courts using aids within the statute itself (e.g. the Preamble, the long title, headings).

Question 18

The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘Extrinsic aids’ and how do the courts use this function?

Answer 18

Extrinsic aids: The courts can use certain material outside the statute, including dictionaries, academic texts,
official reports and, in certain cases, the records of Parliamentary debates (known as ‘Hansard’). In addition,
modern Acts each come with Explanatory Notes, which can be used to interpret the accompanying Act. Finally, the Interpretation Act 1978 provides definitions of terms that commonly appear in statute.

Question 19

List the three canons of interpretation.

Answer 19

1. The literal rule
2. The golden rule
3. The mischief rule/purposive approach

Question 20

What is meant by the literal rule?

Answer 20

The literal rule provides that the words of a statute should be given their ordinary, everyday, grammatical meaning or, as Lord Esher stated ‘[i]f the words of an Act are clear, you must follow them even though they lead to a manifest absurdity’.

Question 21

What is the golden rule?

Answer 21

The golden rule was created by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61, where he stated ‘the
grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity … in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity … but no farther.’ As a result, the courts will no longer use the literal rule if its application produces an absurdity, and may instead use the golden rule.

Question 22

What is the mischief rule/purposive approach

Answer 22

The mischief rule provides that where legislation was enacted to remedy a particular mischief, the courts will interpret that legislation in a way that remedies that mischief.

The court should look beyond the literal meaning of the words and examine the purpose and intention behind the statute. The Mischief Rule allows courts to consider the historical background of the statute and evaluate its purpose and intent.

Question 23

Define the doctrine of precedent.

Answer 23

This means certain cases are decided based upon the principles derived from prior cases.

The doctrine of precedent is the custom of the courts to stand by previous decisions, so that once a point of law is decided upon by a court, then the same law must be applied to future cases with materially similar facts. The doctrine of precedent is often referred to as ‘stare decisis’.

Question 24

What are the three levels of precedent?

Answer 24

1. Binding precedent: Where a precedent is binding, then it must be followed by courts that are bound by that precedent, unless the precedent can be distinguished. For example, the general rule is that precedents established by higher courts must be followed by lower courts.
2. Persuasive authority: Certain precedents are not binding and so need not be followed, but they do constitute persuasive authority and may be followed. For example, obiter dicta provides persuasive authority.
3. No precedent: Certain cases provide no precedent value at all and need not be followed (e.g. decisions of
   magistrates’ courts and the County Court).

Question 25

Do the Magistrates’ Court and the County Court establish binding precedent?

Answer 25

No.

The magistrates’ courts and the County Court cannot establish binding precedent, nor do their decisions constitute persuasive authority. These courts are bound by the decisions of the High Court (including Divisional Courts), the Court of Appeal and the Supreme Court/House of Lords.

Question 26

Does the Crown Court establish binding precedent?

Answer 26

No.

The Crown Court cannot establish binding precedents, but its decisions do constitute persuasive authority. Like the inferior courts, the Crown Court is bound by the decisions of the High Court (including Divisional Courts), the Court of Appeal and the Supreme Court/House of Lords.

Question 27

Are decisions of the High Court binding precedent?

Answer 27

Decisions of the High Court are binding on the Crown Court, the County Court and the magistrates’ courts. The High Court cannot bind itself, but it does consider its own decisions to constitute strong persuasive authority and so departs from them rarely. The High Court is bound by decisions of its Divisional Courts, the Court of Appeal and the Supreme Court/House of Lords.

Question 28

Are decisions of the Divisional Courts binding precedent?

Answer 28

Decisions of a Divisional Court bind other Divisional Courts, the High Court, the Crown Court, the County Court and the magistrates’ courts. The Divisional Courts are bound by their own decisions, and those of the Court of Appeal and the Supreme Court/House of Lords.

Question 29

Are decisions of the Court of Appeal binding precedent?

Answer 29

Decisions of the Court of Appeal bind Divisional Courts, the High Court, the Crown Court, the County Court, and the magistrates’ courts. The Court of Appeal is bound by decisions of the Supreme Court/House of Lords, and is also generally bound by its own decisions, subject to some exceptions.

Question 30

The Court of Appeal is bound by its own decisions, subject to some exceptions set out in Young v Bristol Aeroplane Co Ltd. List the three exceptions.

Answer 30

1. If two previous Court of Appeal decisions conflict, the court must choose which one to follow and the other will be overruled.
2. The court can ignore a prior Court of Appeal decision if it cannot stand with a subsequent decision of the Supreme Court/House of Lords.
3. A Court of Appeal decision that is mistaken need not be followed by the court (the decision is said to be per incurium (‘through want of care’). The classic example of a per incurium decision is where a court decided a case without referring to a key statute or case.

Question 31

Can the Criminal Division refuse to follow a Court of Appeal decision?

Answer 31

Yes - the Criminal Division can refuse to follow a Court of Appeal decision where it feels that the prior decision ‘misapplied or misunderstood’ the law.

Question 32

Are decisions of the Supreme Court/ House of Lords binding precedent?

Answer 32

Yes! Decisions of the Supreme Court/House of Lords bind all the other courts. The Supreme Court is not bound by any other UK court and can overrule its own decisions and those of the House of Lords ‘when it appears right to do so’.

Question 33

Are decisions of the Judicial Committee of the Privy Council binding precedent?

Answer 33

No - Generally, its decisions are not binding on any court, except in relation to certain specialist courts.

Question 34

The UK’s system of precedent is based on what maxim?

Answer 34

Stare rationibus decidendis.

Question 35

What is meant by ‘stare rationibus decidendis’?

Answer 35

This maxim means ‘keep to the reasoning of what has been decided previously’. This indicates that it is the reasoning of a case that is binding upon other courts, not the actual decision itself.

Question 36

What is meant by ‘ratio decidendi’?

Answer 36

This translates to ‘The reason for deciding’. The ratio decidendi is the reason for a court’s decision and is part of the judgement delivered at the end of a case. Through analysis of the facts, the judge applies the appropriate rule or principle of law and makes ruling on the verdict of a case.

Question 37

Define ‘obiter dicta’.

Answer 37

This translates to ‘statements said by the way’. These are observations by a judge or court about a point of law which may be interesting but do not form part of the decision in the case. An obiter dictum does not have precedential value and is not binding on other courts.

Question 38

Judges can now create laws. Lord Lowry indicated that a cautious approach should be adopted by the judges when making new law. List the 5 propositions he set out.

Answer 38

1. If the solution is doubtful, the judges should beware of imposing their own remedy.
2. Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched.
3. Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems.
4. Fundamental legal doctrines should not lightly be set aside.
5. Judges should not make a change unless they can achieve finality and certainty.

Question 39

The Court of Justice of the EU consists of which two courts?

Answer 39

The Court of Justice of the EU consists of the Court of Justice and the General Court.

Question 40

There are six types of EU legislation. List them.

Answer 40

1. Treaty provisions
2. Regulations
3. Directives
4. Decisions
5. Recommendations
6. Opinions.

Question 41

Name the four EU ‘political’ institutions.

Answer 41

1. The European Council
2. The European Parliament
3. The Council of the European Union
4. The European Commission

Question 42

What is meant by ‘direct applicability’?

Answer 42

Direct applicability: EU legislation that is directly applicable is automatically incorporated into domestic law as soon as it is passed (i.e. there is no need for the Member State to implement it). However, directly applicable EU legislation can only be enforced in a Member State if the legislation has direct effect.

Question 43

What is meant by ‘direct effect’?

Answer 43

Direct effect: EU legislation that can be enforced in a domestic court is said to have direct effect, but legislation will only have direct effect if three conditions are met, namely:

(i) the obligations set out in the legislation must be clear;
(ii) the legislation must be unconditional
(iii) the legislation must not require the implementation of domestic legislation.

Question 44

What is meant by ‘vertical direct effect’?

Answer 44

A provision that has direct effect and imposes obligations upon Member States that can be enforced by persons is said to have ‘vertical direct effect’.

Question 45

What is meant by ‘Horizontal direct effect’?

Answer 45

‘Horizontal direct effect’ refers to provisions that impose obligations upon persons that can be enforced by other persons.

Question 46

True or false? EU law is no longer supreme in the UK and the UK is not obliged to implement EU law.

Answer 46

True.

Question 47

What effects would leaving the EU have upon the UK legal system?

Answer 47

1. The European Communities Act 1972 has been repealed, thereby abolishing the supremacy of EU law over UK law.
2. EU-derived UK legislation (e.g. UK law that implemented EU directives) continues to have effect.
3. All directly effective EU legislation (e.g. EU Regulations) will form part of UK law.

Question 48

True or false? Certain rights within the European Convention on Human Rights also apply to legal persons, such as companies and LLPs.

Answer 48

True.

Question 49

The courts should interpret legislation in a way that is compatible with Convention rights, but if they cannot do so, they may issue a..?

Answer 49

Declaration of incompatibility.