SLS cases Flashcards
R v Chambers
pleaded on base of a superceeded law
‘profoundly unaceptable if law is not practically accessible even to courts and litigants’
this is due to lack of codified law and little statutory consolidation
Companies Act 2006
example of consolidation
Interpretation section
specify the meanings of words and prases within an act
Sunset clause
AOP are in force until repealed or ammended unless have termination date- s.27 Terrosim act 1989
Thobrn v Sunderland City Council
re meausrements of fruit. this case set precedent that implied repeal only applies to non-constitutional statutes
Destitude
act not been enforced for long time- peopel acting in contrary
direct ammedment
substitutes new provision for old
indirect ammendment
leave original text- describe how should be changed
Commencement order
statutory instrument giving the govt power to decide on commencement of an act after has been given royal assent
‘Consolidiation; A plea’- Samuals, 2005
The consolidation process has slacked recently with only 1/3 of UK bills having been consilidated. SLC had before devolution produced 20 consolidation accts.
Uk example- Income and corporation taxes acct 1988
The legislative and Regulatory reform act 2006
Allows govt ammend exisisting legislation in order to remove vaguely expressed ‘burdens’
Article 1 s.9 US constitution
blanket provision on retrospectivity- ‘no ex post facto’ law shall be passed’
ECHR art 7
no criminal legislation to be treated retrospectivly
Local government (s) act 1973
this gives the local govt authority to make bylaws- byelaws need approval by confirrming authority- stated pre-devolution
Mulloch case
Turned on scottish education act- held the act was ultra vires as outwith the enabling act
Enabling act
sets out purpose, limits, terms of delegation
SI must meet Statory Instruments act 1946
negative resolution procedure
common and applied to routine legislation- means SI approvved unless action to anull it within 40 days
affirmitive resolution procedure
SI not in force unless affirmed by parliament
henry 8th clause
constituional reform and governeance act 2010- give ministers power to envoke provision of primary leg- give borad power to unelected
enacting formula
at start of UK statutes- say what you aare now reading is law and declares source of authority
Roe v Russel
LJ Scrutton state the obscurity of statutes and drafter mean legislation often hard to understand
Schedules
appendices at end of AOP containing detailed matter to complicated for body of text
Evolvira the cow
bizarre case- never actually worked out what happened tot he cow- that evidence never given. this case proves that the evidence has to be relevent - ask would it change outcome? must also be proven under standerd of proof
‘The vast majority of statutes never come before the courts for interpretation’
Cross, statutory interpretation, 1995- staatutory interpreation is rare.
Symantic ambiguity
word has 2 or more meanings
synantic ambiguity
meaning can be derived from sentance structure
Williams v Evans
ambiguity of ‘fixed plant or machinery’- outcome for this case based on the NATURAL MEANING OF WORDS
Obson case
the statement in legislation was unccertain so took interpretation that MOST FAVOURED DEFENCE
Pepper v Hart
Did teacher have to pay tax on reduced school fees- NO based on purposive approach
Try to get parliaments intention- go for natural meaning of words.
‘It is for the courts to construe these words and it is the courts duty indoing so to give effect to the intention of parliament using these words.’
In interpreting legislation… give effect so far as language permits to intention of legislature
Zang case
‘the court must deduce the intention of parliament- may deport form the natural meaning
Holliday
‘car without gearbox on rollerskates’- is it on the road?
J.lyons
cream filled swiss rolls- used artificial cream
Cross on interpretation
where appropriate use ordinary and gramattical meaning- apply secondry meaning if neccessary.
May read words if implied
can resort to presumptions
refrain from contradictiing existting law or eu law/conventions
Must be read in line of convention rights- scotland act section 29- scotland act
Munsell and olins
Was a farm shed ‘premisis ‘for a rent act? example of PURPOSIVE approach being used in the CJEU
R v Judge of London city court
‘if the words of an act are clear you must follow them’
suppports the literal rule
Grey v Pearson
Regards to a will.
‘the grammattical and ordinary sense of the words is to be adhered to, unless that would lead to an absurdity’
supportive of golden rule
Lord blackburn on golden rule
literal meaning to be take unless it produces ‘an inconsistenty or absurdity’- in the grey v pearson case
Heydons case (english)
very old example of the mischeif rule coming into play. look at the act in order to ‘suppress the mischief and advance the remedy’
leadbutter case
supportive of mischeif rule- regards to a moterbike used for slamon poaching- look at aim of the act- mischief.
Smith v Hughes
The prostitutes were found to be liable as were visable- this was the mischeif designed to be overcome. in this sense the miscief rule is better than the literal rule.
Fisher v bell
is it an offence if the flick knife is in the window- yes- mischeif rule again.
apply wisceif rule if is ambiguit in statute
Pickstone v Freemens
House of lords case. woman said her work was equl to males whose work was equal to higher paid males.
The House of Lords decided that the literal approach would have left the United Kingdom in breach of its Treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.
Lord Clyde Fitzpatrick
‘presumption is that updating general constuction is to be applied
IRC v Hindley
All acts should be read as a whole
Nosciatr a sociis
governing of a linguistic priciple that the menaing of a term is to be governed by the common features it share with other terms in a list
expressio unius, exclusio alterius
‘if you don;t say it you don’t mean it’- presumtion sometimes applied i.e. in R v Attorney general
presumptions (4)
against unclear alteration of settled law
against absurd results
against criminalising behaviour
against retrospectivity and against injustice
Sweet v Parsley
was there an offence under the 1965 Drugs Act- if others unaware . landlord completly unaware of residents smoking in his premesis.
Lord reid ‘there has been a presumption for many years that parliament does not intend to make criminals of persons in no way blameworthy’
Anderson
preambles can be used in inact terpretatioin
Interpretation 1978
governs interpretation of standard definitions i.e. brittish summer time and gendered words. In scotland- interpretation and legislative reform scotland act 2011
Salvensen and Cameron v Cotton
when legislation chalanged, usually found to be compatible- not in these cases.
statutes found to be incompatible with human rights conventions andd thus outwith competetencceed
R v Peters
Dictionaries are not to be taken as authoritive exponents of the meanings of words
Ejusdem generis
of some kind close nature
look at general description following specific descriptions
mental health act
are neices and nephews family?
In pari materia
when sttute ambiguois meaning determiined by loooking at it in the light of other statutes on the same subject matter
Duncan v Jackson
Represenation of the people act- did ‘any house, ware house, counting shed, shop or other building’ cover a structure designed to hold a gas meter? no
Monarrch airlines case
use of paliamentary debates is not allowed unless using the test set down in pepper v hart
they also supported the use of traveaux preparatoires as an aide to satatutory interpretation
pepper v hart on debates
test- cannot use hansard unless
the act leads to absurdity
act is ambiguois or obscure
the material relied on consists of staements from ministers and the satements relied on are clear
Lord Denning (on hansard) in Davis
to ignore hansard would be ‘to grope around in the dark for the meaning of an act without actually switching on the light’ - HOL abolished this argument saying- paliamentary debates were’ not conclusive to a clear and unbiased explanation of statutory language’
L. styne in pepper v hart
‘much for of the work of the courts is now concerned with interpreation of documents i.e. statutes rather than examination of precedents’
‘the relevent exchanges sometimes take place late at night… these are not ideal conditions for the making of authoritive statements on the meaning of a clause in a bill’
L Styne in article ‘Pepper v Hart; A re-examination (2001)
it goes against art 9 bill of rights that are taking into question parlaimentary debates.
this is the governements view of what parliament want- shifting power from legislative branch to exectutive branch.
s. Vogeneour- A retreat from pepper v Hart?’
‘the scope of pepper v hart has been reduced to such an extent that the ruling has become almost meaningless’
Macwilliams
using law commission reports to aide interpretation
R v National asylum
using explanatory notes to aide interpretation
Human rights act- when
1998
President Hope in T petitioner
followed the general principles of eu law of which human rights is one of
Ghadian
HOL initially said living together as husband and wife didnt cover same sex- after 1998 act deision overturned
‘Interpreation of statutes’- j. flemming wallace
consolidation acts are- ‘acts which bring together in one act the statutory provision relating to a particular topic without any changes in law and not subject to any ammendments.
5 rules on statutory interpreation according to cross
must give effect to grammatical, ordinary meaning of words given context
if result obserd/ cotrary to purpose of statute- apply second meaning
if necessary judge can read in missing words implied by present words and ignore certain words leadin to absurditiys
can resort to materials and presumptions
must interpret statute to give full effect of eu and convention laws if directly applicable
EU interpreation
is purposive (teleological approach) treaties written in erms of general principle and are not exhausitve i.e. ARTICLE 45(1) is vague as doesn't properly define 'workers' sees itself as comunicative (community minded)
Case 9/70 (opinion on the literal approach)
‘a literal interpreation of article 4 would not correspond to the aims of the directive in question’
‘every provision of law should be placed inits context and interpreted in the light of community law as a whole
Lord Templemen on CJEU
‘the uk is under an obligation to follow the practice of the CJEU by giving purposive construction to D and R’s’
Mcbryde on common law (painting)
‘common law is a canvas on which a picture is being painted’ mcbryde on contract
powers of declartor and nobile officium
‘equitable power’ issued to court of session and HCJ to provide remedy where none exists - stair in hi sinstitutions mentions 7 examples.
LP emeslie’it may be excersised in highly special or unforseen circumsatnces’
nobile officium
used in crminal cases in ‘unforseen circumstances to which law provides no provision’ Alison
used to avoid injustice/ opression
declaratory power
declare behaviou sees as morally wrong to be a criinal offence
Kaliq- glue sniffing kits
ratio decedendi
the rule or principle of law for which a competent outsider considers the law to be priciple
no ratio stands alone and it is not verbally fixed
identify relevent facts and conditions that judges have stated or impled to relevent exclude those that are irrelevent
elaborted in england and us but not so much in scotland
to be binding ratio needs to be in point or on all fours and in relative position in court heirrchy
Donoughue v stevenson
re drinks in cans
determine the right level of generality . lord atkin- general approach. Lord macmillan- narrow.
does the ratio extend to drinks manufacturers only?
decision in this set a precedent which was followed in Australian Knitting mills and Shaw v DPP
obiter dicta
things said by the way often obsevations or hypothetical examples may still be pursuasive
R v Howe and Bannister-House of Lords held that the defence of duress was not available to murder. This was the ratio decidendi of the case. The House of Lords went on to consider whether the defnce should be available to those who attempt murder and stated obiter dicta that the defence of duress should not be available to attempted murder.
stare decesis
ratio of precedents will determine ow a case is decided by later courts
when is precedent not binding
subsequent legislation- if precedent been taken over by legislatiom- cannot be reppealed
Per Incurium- if court have not considered all relevent law and have made erranous decision as per incurium and this means is not binding - MITCHELL V MACKAY
Age and defective reporting- may render precedent unbinding- Shands Trs/ defect- morgan guarantee
Societal changes- may not be binding if cessante ratione legis… applies- ‘where reason for law ceases to exist then so does the law itself’ allows court respond to changes- Beiths Trs
Over-rule precedent
when court higher in heirarchy departs from a decision made ina lower court. the previous decision is no longer binding but not retrospctive- Rv R
can also occur in courts of same level
Reversing a precedent
this is when a higher court departs froma decision of the lower court on appeal- i.e. the gillick case
Distinguishing a precedent
this is where the facts of a case are deemed sufficently different so the previous case is no longer binding-
Balfour v Balfour
aargments pro precedent
certainty and predictibility guidance for judges and practitioners consistentcy timesaving justice- alike should be treated alike
anti precedent
ridgidity
infexibility
expense- overturning means going to a higher court
injustice- not free to decide case based on law but instead follow precedent
unconstitutional- role of courts is not to make law
Erskine, Institutions
on precedent
Precedents- decisions, though they bind the parties litigating create no obligation for judges to follow the same track if contrary to the law’ this was written when there were no law reports to be consulted just partick of judges in scotland
Alfons Luttick case
CJEU not a huge fan of precendent and can depart from previos decisions
Murphey v Brentwood
English HOL case over-ruled previous scots law case
courts reform s act 20014
change court stucture
new sheriff appeal court
summary sheriffs hear low value civil cases
introduce specialist sheriffs
sheriff principle decisions to be binding on lower sheriffs
can hear cases of up to £100,000
Elliot
courts can depart from earlier precednt if the courts feel their attention was not drawn to relvent authority
Mostyth
ratio must be consistent with actual outcome of the case
protasis
if part of decision-
apodecisis
then
Twing v Miers
Bund treasure rule
every case has pre-detremined ratio
ratio cannot be found in reading case
ratio cannot change over time
corpus juris civilis
insitutes
novels
digest
code
P P R A 'private law;
Persons
Patrimony
Rights
Acts (judical)
procedral law
rules by which court hears and determines proceeding delas with evidence, pleadings and practice and how legal rights enforced
Substantive law
is statutory or written law that defines rights and duties such as cirmes and punishments in criminal law and civil rights and responsibilities- is codiefied in legislative stautes or can be enacted thorugh initive process.
P and S law work together to ensure that in criminal an civil cases the appropriate laws are applied an proper procedures followed in order to bring a case to trial
Patrimony
the totatility of a persons assets and liailities. it is the container not the contents
2 parts- assets and liability
judical act
act tht changes atte of legal universe i.e. making contract
victim uris
‘the chain’ the idea that rights and obligations are the same things
Current codification project- Eric clive
the benefits of codification would greatly improve the style and elegance of staute law in that area
should it be heavy- BGB or light- france
lack of flexibility avoided by specially designed provisions- draft criminal code has provision enabling 3 or mmore judges in HCJ to recognise and decalare a new defence
advantage of phasing- provisde consistent terminology- acts priorities accoring to imprtance- tricky left till later
Would codification change legal culture? tke famly law act- alot of it is alreday statutory, maybe contract- this area prides iteslf in having clear defined rules for parties- yet codification and turnign cases into statutory provision would be dificult but would provide solid statutory provisions- maybe law of UE would mean getting rid of conditiones?
a well drafted code shouldnt have gaps
the nature of law has changed i.e Afults with incapacity act 1995- mixture public and private- civil code need not be just cnfined to private matters although still predominantly.
CSA couldnt be coded due to lack of competency of the scottish governement
some could be left to schedules/subordinate leg
have been talks of creating a SOG code for major sales
draft criminal code and substantive civl code already been drafted- draft stimulates thought on law and how best to organise and set out scots law- cannot rule sout possibilitys.
1st division
lord president
second divions
lord justice clerk
HCJ
lord justice general
solem proedure
has jury
summary procedure
no jury
de
decree for pursuer- undefended- decree of absense
decree for pursuer- defended- decree in foro
decree for defender- dismissal- cnat be raised again
decree for defender- decree of absolviter- can’t raise action on same thing
decree for defender- Res judicata- cannot be litigated ever again
eurpoeal coal and steel community act
1951
treaty of rome
1958
signed by 6 statesprovides for 4 freedoms- extended under internal market rules of SEA and strengthened in protocol 27 of lisbon treaty
created institutional governement structue
provides basis for devevelopment of specific common policies i.e. fishing and agriculture
since lisbon in 2009 has been repackaged and is now TFEUobligations
establishes eu governence and once signedmembers are bounds to
Maastrict treaty
signed in 1992 formally known the TEU
Art 261
4 freedoms
Exclusive competencec Art 3 TFEU
customs union
establishing of competeition rules for internal market
monetry policy
common fisheries policy- conservation of marine biological resources
common commercial policy
Shared competence Art 4 tfeu
internal market social policy agriculture and fisheries environment transport public health matters
Supporting competence/supplement actions of member states Art 6
protection and improvement of human health
industry
tourism
competency to provide arrangements within EU member states ust co-ordinate plicies Art 5
economic policiys
social policies
employment
article 13 TEU
sets out i
institutions
teu
sets out all principles/basic constitutional principles
aims and obejectives of EU
legislative competence
enhance co-operation- france applied article 47 other states to show their support and sovreignity
art 1 (3) TEU
that teu and tfeu shall have same legal value
tfeu
provisions on how objectives to be achieved
provision for 4 freedoms and eu citezenship - art 20
outlines legislative competence and powers of insitutions
article 2 teu
eu founded on values of respect for human dignity, free dome and democracy
art 3 teu
aim to promote peace and wellbeing 2- offer free movement of persons 3- establishes an internal market 4- establish monetry unnion 5- contribute to peace security and sustainability of earth 6- principle of conferral (limitation)
principle of cnferral
art 4(1) on exclusive competence- competencies not transferred remain with member states art 5(1) limits of a unions competences are governed by principle of conferral 5(2) competencies nto transferred reamian with emmebr states
art 157(3) tfeu
have to adopt measures to promote equal treatment of men and woman and equal pay- example of facct you have to find treaty article
Article 5 (1) teu
use of union competences governed by principles of s and p
art 4(2) teu
respect equality of MS and national identities respect essential state function ensure territorial integrity maintain law and order safegueard national security
subsidiarity
doctrine managing legislaiv intervention under art 5(3)
areas which do not fal under exclusive competence act only if action cannot be sufficiently achieved by MS at central, regional or local level and better achieved at union level
proportionality
art 5(4) union shall not exceed what is neccessary to achieve objectives of treaties
art 288
defines the types of eu legilation
art 50 tfeu
promotes the use of directives
art 289
ordinary legislative procedure - joint adoption by ep and council of r,d ,d on proposal from commission- co decision
protocol 2 on s and p lisbon
promotes national govts role as a watchdog
art 48 TFEU
forsees the procedure for ammedment- either ordinary or simplified
artt 18 tfeu
no discrimination
art 19 teu
cjeu includes cj, general court and specialised court (cvivil service tribunal since 2005
art 256
general court
art 252
court of justice
art 258
enforcement action
art 267
preliminary references
art 291
what to use? d,r, d ect
article 17 teu
comission are the guardian of the treaties
art 263
reviewable act
need to be legally binding and been adopted by institution
sets out applicants
2- privilaged within 2 months
3- semi- ct to rotect perogitives
4- non- adressed to them or of direct individual concern
grounds for review
lack of copetence
infingement of essentiL procedural requirement
infringement of treatty or anay rule on application
misuse of powers
les verts
relied on art 173 of eec treaty- that neither the intitutions nor the MS could avoid a review of the question weather the measures adopted by them are in conformity of the treaties
pluamann
if an act affects them by reason of certain attributes peculiar to them or by circumstances differentiated from all other persons. must belong to closed class of potential applicants- fixed memebrship when act comes into force
