PL1.1 Sources of the ELS Flashcards
Intro to Public Law
1
Q
What is Law?
A
The System of rules which a particular country or community recognizes as regulating the actions of its members; and which may be enforced via penalties
2
Q
Functions of Law
A
There are many, but this includes:
- Maintaining peace and safety
- regulating relationships
- Protecting rights and liberties
- Ensuring the smooth running of economic and political activity
3
Q
Why must law evolve?
A
Law must reflect the wishes & tolerance of a broad majority of the population in order to be CREDIBLE and ENFORCEABLE.
Therefore, it must keep develop in line with societal changes
4
Q
What are the broad periods of legal development
A
1) Pre 1066 and the Norman Conquest
2) 1066 - 1485
3) 1485 - 1870
4) 1870 to present
5
Q
Pre - 1066
A
Before the Norman Conquest there was a locally based system, governed by customs of Anglo Saxon Society`
6
Q
1066 - 1485
A
The formation of common law and its imposition over and above local systems and customs.
7
Q
1485 - 1870
A
Development of equity; two separate legal
systems co-exist.
8
Q
1870s to present
A
- Joint jurisdiction for common law and equity
- Massive development in statute law
- Growth of governmental and administrative
bodies - Influence of European Union law (post-1973)
9
Q
The Monarch ad Common Law
A
After Norman invasion, it became possible to dispense more CENTRALISED justice with the KING as central figure.
10
Q
Cura Regis
A
Cura Regis - The King’s Council were an itinerant court that allowed the monarch to exercise High Justice
11
Q
Fixed Kings Court
A
The establishment of a fixed King’s Court, autonomous from the King was required by the Magna Carta in 1215.
The King’s Council gradually developed and different ‘branches’ of the court evolved to deal with different types of dispute.
12
Q
The Three Courts from the King’s Council
A
Court of Exchequer - royal finances - (appeal court later emerged but this was abolished following 1875 and transferred to Court of Appeal)
Court of Common Pleas - ownership and possession of land.
Court of King’s Bench - serious criminal
matters.
These courts remained until the Judicature Act 1873.
13
Q
Assize Courts
A
Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters. Assize Courts continued until the enactment of the Courts Act 1971.
14
Q
Expansion of the King’s Courts
A
- Ascended over local courts
- Resisted by local barons
- Recognized as supreme over local courts by the time of Edward 1 (1272 - 1307)
15
Q
Meaning of Common Law
A
- Historically - King’s Judges’ Law as opposed to customary
- Distinguish law from KC as opposed to Equity developed by Court of Chancery
- To distinguish case law from statutes
- To identify common law countries as opposed to Roman Law
16
Q
Which Court developed Equity
A
Court of Chancery
17
Q
What is a writ
A
A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court.
It contained the foundation of the complaint, different form of writ being used for each ground of complaint (or ‘forms of action’).
18
Q
Different types of Writ
A
Writ of Right
Debt
Detinue
Covenant
Account
Trespass
Case
19
Q
Writ of Right
A
First form of ‘real action’” – developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes)
Recovery of land
20
Q
Debt
A
Recovery of fixed sum
21
Q
Detinue
A
Return of Chattel
Remedy = Damages
22
Q
Covenant
A
Breach of promise
Remedy = Damages
23
Q
Account
A
Accounting for a payment
Remedy = Damages
24
Q
Trespass
A
Against persons, goods or land - jury trial
25
Case
Remedy where no current action - later influential in development of tort law
Remedy = Damages
26
Problems with the Writ System
*Complex, restrictive and fixed procedures aimed to resolve writs.
*Not a system that developed from "rights" and "wrongs".
*Only offered remedy of damages; not fulfillment of promise for instance
27
In Common Law decisions by higher courts are ...
binding on those lower down
28
What do judges do
* Consider the evidence
*Consider the applicable law
*Apply the law to the facts of the case
*Decide what remedy and make an order
29
A judgment
This is the final outcome of a court hearing.
Note that there is no central "e"
30
Do judges make law
Traditional theory is that they declare what the law has always been. Relying on precedents is therefore retrospective
31
Stare Decisis
Binding Precedent - ‘stand by what
has been decided’.
32
Precedent
As soon as a "point of law" has been decided by a superior court it establishes a precedent and is binding.
A precedent may be:
* Binding, in which case it must be followed; or
* Persuasive, in which case it will be considered by the later court and may be followed.
33
A judgement consists of
(a) A summary of the facts
(b) Statements of law, which will include the ratio decidendi and (often) obiter dicta
(c) The court’s decision on remedy, which is binding only on the parties to the case
34
Ratio Decidendi
This means the **‘reason for the decision’.** The ‘ratio’ of a judgment is the part which is binding on other courts.
The ratio is the **legal principle** or rule on which the court’s decision is based, applied to the material facts of the case
35
Material Facts
The facts on which the **decision of the court depends**.
If the material facts change, the court’s decision might also change
36
Width of a ratio
A ratio can be viewed as a **narrow** proposition of law or a **wide** *proposition of law*. If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing *an entirely new, wider principle.*
37
Obiter Dictum definition
Judge comments on an area of law, on that are **not necessary
to reach a decision** in the case.
Not regarded as binding,
May be highly persuasive and influential in subsequent cases.
38
Obiter Dictum consists of
* Statements of law **not necessary to the decision**
*Statements of the law as the judge would like it to be,
*Dissenting judgments,
39
Following the Decision
Where a court considers the **facts of a case to be so similar** to those facts in an earlier case that the law in the earlier case should be followed
40
Approving
If the court doing the ‘following’ is a higher court, then the later decision is also said to be
approving the earlier one
41
Distinguish
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the earlier case – eg by **finding a difference in the material facts** between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts.
42
Reversed
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the earlier case – eg by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts.
43
Overruled
A superior court in a later case decides the original precedent set in last case is wrong and sets a new ‘correct’ precedent instead.
The original precedent is **no longer good law**
For example, the Supreme Court may overrule a precedent from the Court of Appeal.
The word **overturn ** is also used for this.
44
Departing from own precedent
This was only formally recognised as possible from 1966
45
Practice Statement (Judicial Precedent) 1 WLR 1234.
Lord Gardiner L.C.
‘recognise[d] that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper
development of the law’.
## Footnote
1966
46
Caution regarding retrospective principles especially
the danger of disturbing retrospectively the basis on which **contracts, settlements of property and fiscal arrangements** have been entered into and also the especial need for certainty as to the criminal law’.
47
Austin v Southwark LBC [2010] UKSC 28
**Lord Hope**
The (new) Supreme Court would maintain the same **guarded but potentially flexible approach.**
This is reflected in Practice Direction 4 of the Supreme Court
48
Young v Bristol Aeroplane Co. Ltd [1944] KB 718
Lord Greene MR outlined three exceptions where could depart from its own precedent:
(a) If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
(b) If the CA’s own previous decision has been overruled expressly or impliedly by the SC or HoL it need not be followed.
(c) If the CA’s previous decision was made per incuriam.
49
Per Incuriam
Per incuriam does not simply mean that the earlier CA made an error.
It applies when the previous court was **not aware of a relevant authority** (in case or statute) which would have been binding on the court’ and that **ignorance** led to faulty reasoning by the court.
50
Rules of Precedent
**Supreme Court** All inferior courts and itself (subject to* 1966 Practice Statement)*
**Court of Appeal **All inferior courts and itself (subject to *Young v BA exceptions*)
**The High Court** All inferior courts, and itself (unless there is a powerful reason to depart)
**The Upper Tribunal** The First Tier Tribunal, inferior courts, and itself.
The First Tier Tribunal Not binding but may be persuasive
The rest are not binding
51
Ratio
The part of a judgment which establishes a principle which can be applied to other cases
52
Where did Equity laws originate
When CL was not addressing certain instances, the **King** was petitioned to do justice.
Petitions were passed to the **Chancellor**.
By the end of the 13th C petitions went to the **Court of Chancery,** presided over by the **Lord Chancellor**
53
Equity
can be defined as the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875.
Underlying rules and principles of equity are still applicable today.
54
Origin of the Law of Trust
**Crusades** and naughty men. Think Robin Hood.
The **Chancellor** intervened in equity on the ground that it would be **unconscionable** for the recipient of the estate to ignore the terms of the transfer. Sowing the seeds for modern trusts.
55
Key feature and benefit of equity
Emerging set of principles was its **greater flexibility**.
**Moral** Element derived form the **Church**.
F.W. Maitland:*** ‘a gloss on the common law’.***
56
Earl of Oxford’s Case (1615) Mich 13 Jac
1.
James I decided that, in cases of conflict, equity should prevail over common law.
57
Conflict between equity and common law
Friction developed between equity and common law in 16th and 17th C. (tension between Stuarts and Parliament)
James I decided equity should prevail over common law
58
Equity prevails over common law
Enshrined in s 25 of the **Judicature Act 1873-1875**
s 49(1) of the Senior Courts Act 1981.
Supplement the common
law and not to supplant it. **Equity follows the law.**
59
Judicature Act 1973 - 1875
Abolished the three common law courts and the Court of Chancery, and instead created a single High Court and Court of Appeal which could apply the rules and remedies of both common law and equity.
60
Equitable Maxims
[https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100141673](http://)
61
Equitable Remedies
These are still discretionary.
Specific Performance; Injunction; Declaration; Recission; Rectification
62
Specific Performance
An order by the court to compel a party to perform something they have promised to do under a contractual agreement.
(Specific performance is not available for breach of a contract for personal services (eg
employment), or for the performance of contractual obligations which would require constant supervision.)
63
Injunction
Requires a party to legal proceedings either:
* To do something (a mandatory injunction); or
* To refrain from doing something (a prohibitory injunction).
Can be interim or final; awarded unconditionally or subject to T&Cs.
64
Court's jurisdiction to grant an injunction
Originated as an **equitable remedy**
Statutory footing
Section 37 of the **Senior Courts Act 1981**, the court has jurisdiction to grant an injunction in ‘all cases in which it appears to the court to be just and convenient to do so’.
65
Declaration
A declaration is a legally binding statement by a court about:
* The legal rights of the parties
* The existence of facts
* A principle of law
Generally, a declaration is sought in addition to other types of relief.
66
Rescission
Rescission is the setting aside of a contract. It is available at common law and in equity.
* Misrepresentation – where a party has been induced to enter a contract by a false
representation of fact.
* Mistake – where the contract does not correctly reflect the intentions of one or both parties.
* Duress or undue influence – where a party to the contract was put under unlawful pressure to enter into it.
67
Rectification
Corrects a document to reflect contractual intention. Only in written contracts.
68
Primary Legislation
‘Acts of Parliament’, which are put before
Parliament as Bills (draft legislation),
debated, and passed (almost always) by
both Houses of Parliament.
Acts of Parliament receive ‘royal assent’ –
formal approval by the Monarch – before
becoming law.
69
Secondary Legislation
Subordinate legislation.
Secondary legislation is law created by ministers (or other bodies) under powers given to them by a ‘parent’ Act of Parliament.
It is used to fill in the practical details of primary legislation.
## Footnote
Includes Orders in Council, By-Laws and statutory instruments
70
Public Acts
Public (or general) Acts are Acts which relate to matters of general public concern.
71
Private Act of Parliament
An Act which relates to **particular places or people**
These Acts usually stem from a proposal by a **large organisation** such as a local authority or a large private company which wishes to acquire certain powers
72
Bills
Draft legislation, can be Private Members' Bill or Government Bills
73
The Legislative Process that Bills go through
* First Reading,
* Second Reading,
* Comittee Stage,
* Report Stage,
* Third Reading
74
Commencement of Legislation
On the **day it receives Royal Assent** - unless there is a contrary provision in the statute.
**Commencement Section may be in the Act delegating responsibility to the SoS**, they then issue a statutory instrument bringing the Act into force
75
Secondary Legislation
- Includes regulations made by statutory instruments, Orders in Council and by-laws.
- **equal statutory force to that of primary legislation.**
76
Can courts invalidate an Act of Parliament?
No, they have no power to invalidate and Act of Parliament; they can examine whether delegated legislation is made with the powers of Primary Act
77
Scrutiny of a Statutory Instrument
Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.
Parliaments role in considering an SI depends whether it is stated in the parent Act.
## Footnote
**Joint Committee on Statutory Instruments** checks that SI follows the powers given by the parent Act.
78
"Rules" of statutory interpretation
What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and arrive at a balanced conclusion taking all factors into
account for what they are worth. (Bennion on Statutory Interpretation, p.505)
79
Literal Rule
ordinary, plain and natural
meaning
- Linguistic presumptions
80
Golden Rule
To avoid the unnatural and sometimes absurd outcome that can result from the over-literal
application of the literal rule
81
River Wear Commissioners v Adamson (1877)
2 App Cas 743
take the whole of the statute together, and **construe it all together,** giving the words their **ordinary signification,** unless when so applied they produce an **inconsistency, or an absurdity or inconvenience** so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.
(Lord Blackburn)
82
Adler v George [1964] 2 QBD 7
Defendant was charged with an offence under s 3 of the **Official Secrets Act 1920 **of obstructing a member of the armed forces ‘i**n the vicinity of any prohibited place’.**
Parker LJ
He therefore held that ‘in the vicinity of’ should be read as ‘in or in the vicinity of’.
83
Mischief Rule
This examines the original purpose of the particular provision under consideration.
Defunct today - subsumed by Purposive Approach
84
Purposive Approach
Look at the purpose or intent.
85
The Contemporary Approach
Judges construing legislation .... will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process
86
Linguistic Presumptions or maxims
* **Expressio unius est exclusio alterius** (‘the expression of one thing is to the exclusion of another’)
* **Ejusdem generis** (‘of the same kind’)
* **Noscitur a sociis** (‘a word is known by its associates’)
87
Expressio unius est exclusio alterius
the expression of one thing is to the exclusion of another
Tempest v Kilner (1846) 3 CB 249,
88
Tempest v Kilner (1846) 3 CB
The Statute of Frauds 1677 required that sale of ‘goods, wares and merchandise’ over £10 in value must be evidenced in writing.
This is a **closed list**
Shares were not included.
(‘the expression of one thing is to the exclusion of another’)
| Expressio unius est exclusio alterius
89
Ejusdem generis
**of the same kind**
Powell v Kempton Park Racecourse [1899] AC 143,
90
Powell v Kempton Park Racecourse [1899] AC 143,
A person was betting in Tattersall’s Ring, and the **Betting Act 1853,** in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.
**Not breaking the law as was outside**
91
Noscitur a sociis
This maxim states that a word is known by the company it keeps.... **CONTEXT**
Inland Revenue Commissioners v Frere [1965] AC 402,
92
Inland Revenue Commissioners v Frere [1965] AC 402,
House of Lords considered the phrase "interest, annuities and *other* annual payments", contained in s 169 of the Income Tax Act 1952.
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore, the word ‘interest’ was held to mean ‘**annual** interest’.
93
What are human rights?
The idea that human beings have **rights by the virtue of being human.**
All that need be proved is humanity for the full spectrum of rights to apply.
94
Development of human rights law
**Natural Law theory** - innate canon of legal values. Superior to any national legal authority. Perceived higher code of the "rights of man"
**American Revolution** 1776
**French Revolution** 1789
These led to **statements of rights**
95
Bill of Rights
The first ten amendments to the Constitution
These are the first judicially enforceable rights document
96
United Nations
Founded in 1945
**Universal Declaration of Human Rights** completed in 1948.
Although a **"resolution"** they are not enforceable as **law**.
Some argue that the UDHR **has become binding as customary international law**.
97
Post WW2 in Europe
Council of Europe in 1949.
1950 the ECHR was adopted.
UK ratified: 4th November 1950; came into force 3rd Sept 1953
98
UK and the ECHR
In 1966 UK gave right to lodge complaints to the European Court of Human Rights if all domestic legal remedies have been exhausted,
99
Membership of the Council of Europe
47 members
850 mill under jurisdiction
Growth following the 1989 fall of Communism
Belarus is the only country in Europe not a member.
The Council also acts as a political anchor & HR watchdog for post-communist democracies
100
Categories of Rights under the ECHR
Absolute Rights
Limited Rights
Qualified Rights
But no explicit hierarchy of rights
101
Absolute Rights
Cannot be lawfully interfered with in any way by the state
Article 3: torture/inhuman/degrading
Article 4: Slavery and forced labour
Article 7: retrospective criminal offences
102
Limited Rights
Rights which can in some circumstances be **lawfully interfered** with.
Article 2: Right to life
Artice 5: Liberty and security
Article 6: Fair trial
103
Qualified Rights
Rights which can be lawfully interfered with **provided certain legal tests are met**.
Article 8: Respect for private and family life
Article 10: Freedom of expression and info
Article 11: Freedom of association and assembly.
104
Lawful interference with qualified ECHR rights.
Articles 8 - 11 are Qualified. Qualified in the second paragraph.
To qualify all three must be met:
- Interference **prescribed by/in accordance with the law**
- Pursuit of a **legitimate aim**
- Necessary in a **democratic society**, must be **proportionate**.
105
Monist
Majority of European LS are monist - treat all forms of law as belonging to **a single, binding legal system**.
International law is binding within the domestic legal system.
When two forms of law clash, monist system treats **international law as superior overriding domestic rules**.
106
Dualist
UK treats the "two" legal orders as **wholly separate**.
The UK state and government may be bound by international law, but the **court system of the UK is not bound in the same way**
107
Implications of the UK being a dualist state
International law can only be applicable in the UK in two distinct circumstances:
- UK is party to proceedings before and international court in **a jurisdiction it has agreed to submit (ECHR, ICC)**.
- UK has incorporated international legal rules into its domestic legal system through an enabling **Act of Parliament**.
108
Human Rights Act
HRA 1998 = enforcement mechanism for ECHR
ECHR directly enforceable in domestic courts.
HRA claims are **not made against the state, but against the relevant "public authority"**
109
s 6(1) HRA
Public authority bodies have a duty to act compatibly with ECHR. This includes courts and tribunals.
| But not Parliament
110
Enforcement of Rights
HRA gave power to domestic courts to enforce ECHR.
- Sec 3(1) Courts to interpret UK domestic legislation in a way that is **compatible** with ECHR Rights.
- Sec 4(2) if a court considers incompatible with ECHR right it may make a **declaration of incompatibility**.
- Sec 6(1) public authorities are required to act in a way that is compatible with the ECHR. Parliament is **not** a public authority under the Sct.
111
Courts must act compatibly with ECHR
This has an **indirect horizontal effect** led to the development of **privacy law** in the UK
112
Background of the EU
Evolved from three communities:
European Economic Community (est by 1957 Treat of Rome)
European Communities Act 1972 - incorporated into domestic law.
113
European Communities Act
1972
Ensured the **direct applicability of EU law** and meant that it became a **new source of UK law** in its own right.
114
Establishment of European Union
EU was established by the Treaty on EU (TEU) in 1992.
**Maastricht Treaty**
This renamed the EEC as the **European Community**
Culminated in the **Treaty of Lisbon**
115
Current structure of the EU is based on two treaties
Treaty on the European Union 1992
Treaty on the Functioning of the European Union (Treaty of Rome) 1957
116
Exit of the EU
UK left the EU on 31st Jan 2020
**EU (Withdrawal) Act 2018; repealed the ECA 1972**
Strategy has been to retain law introduced by the EU since 1973.
117
Sources of EU Law
**Primary:**
Treaty of EU 1992
Treaty on the Functioning of the EU 2009; originated as the Treaty of Rome 1957
**Secondary:**
Regulations, Directives and Decisions (Articles 288 and 289 of TFEU)
Case Law of the Court of Justice EU
118
EU Regulations
Directly applicable in the legal systems of Member States and have **"direct effect"** - as can rely on national courts.
119
Decisions
Legally binding **only on the parties to whom they are addressed**
May be enforced in national courts provided that certain conditions are met.
120
EU Directives
These are **binding as to the result** to be achieved but leaves to the national authorities the choice of form and methods.
MS must pass national legislation to implement them within the LS.
## Footnote
*Consumer Protection Act 1987 gave effect to Directive 85/374 on Product Liability*
121
Infringement Proceedings
If directives are not implemented, then **infringement proceedings** may be commenced against MS by the **European Commission**
122
Methods developed by the Court of Justice to enable enforcement of national courts
- Direct Effects: available if implementation date has passed
- Indirect Effect: an obligation on domestic courts to interpret domestic law compatibly with EU Law - Indirect
- State liability: a form of compensation available for a state's failure as long as sufficently serious consequences.
123
EU Case Law
Court of Justice EU provudes a secondary source of EU law by the case law.
**EU law has supremacy over conflicting domestic law**
124
Van Gend en Loos
Costa v ENEL
EU/EEC constituted "a new legal order of international law for the benefit of which the States have **limited their sovereign rights**, albeit within limited fields."
125
Article 267 TFEU
Permits national courts to be able to refer questions to the CJEU about interpretation/validity of acts of the EU Law
126
Preliminary References
Preliminary references from national courts.
No right of appeal from national courts to the CJEU.
127
The CJEU is the ultimate .... of questions of EU Law
The CJEU is the ultimate **arbiter** of questions of EU Law
128
The ECA 1972 has now been repealed by....
The ECA 1972 has now been repealed by the **European Union (Withdrawal) Act 2018**.
But significant areas of **retained EU law** are still present in English Law.
