Sources of Law Flashcards
What do judges do?
Judges decide cases that are brought by individuals (whether these are private individuals, or other ‘legal personalities’ such as companies) against another party. Judges in the UK do not, of their own accord, start cases or investigate legal issues.
In order to decide a case, a judge will:
* Consider the evidence brought by the parties and decide which evidence they find credible.
* Consider the applicable law. This may be case law, or statute, or a combination of both.
Although Parliament makes legislation, judges decide how it should be applied in any given case. They then give a judgment. (Note the spelling of this term, meaning the final outcome of a court hearing, is judgment, without a central ‘e’. (In contrast to the personal quality of an individual in having, for example, ‘good judgement’.))
* Apply the law to the facts of the case and reach a decision on which party should succeed.
* Decide what remedy the successful party is entitled to, eg damages, and make an order giving the successful party its remedy.
Do judges ‘make law’?
A keen area of academic debate is whether or not judges make law, in the sense of creating legal principles. The traditional theory is that they do not do so but merely declare what the law has always been.
Linked to this idea is the retrospective nature of precedent. The view is that judicial decisions are based on statements of legal principle which have always been in existence, but which are not fully expressed or delivered until an appropriate case is brought before a court.
Contrast the retrospective and reactive nature of case law with the prospective nature of statute law. Statutes (Acts of Parliament) set out the law for the future and rarely have retrospective effect.
As a result, judges are normally cautious about ‘upsetting’ long-standing precedents, particularly in the fields of criminal law and property rights. Such precedents would likely have been relied on by many people, and to hold that the law is not as it was could have serious personal or financial
consequences.
Reversing, overruling, overturning…
A judgment is reversed if a case goes to appeal, and the higher appeal court disagrees with the lower court. This does not negate a precedent; it simply means the higher court has not applied
the law in the same way.
A precedent is overruled if a superior court in a later case decides the original precedent set in a past 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.
(Note that, if a judgment is reversed, or if a precedent is overruled, but only in part, some of the elements of the former decision may be left intact.)
Departing from ‘own’ precedent
Until 1966 this was not formally recognised as being possible. However, in that year, the former Appellate Committee of the House of Lords – the ‘law lords’ – recognised that this may be necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234. In this Lord Gardiner L.C. stated that the law lords ‘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’.
In modifying the old practice, he warned that they would ‘bear in mind 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’.
In Austin v Southwark LBC [2010] UKSC 28, Lord Hope confirmed that the (new) Supreme Court would maintain the same guarded but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court.
What are the exceptions in the CA for maintaining precedent?
A similar approach is taken in the Court of Appeal (CA). The Court is generally intent on
maintaining its own precedents but three exceptions were outlined in the case below.
Key case: Young v Bristol Aeroplane Co. Ltd [1944] KB 718
Lord Greene MR outlined three exceptions where the CA 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 Supreme Court or House of Lords, it need not be followed.
(c) If the CA’s previous decision was made per incuriam. Note that per incuriam does not simply mean that the earlier CA made an error. It only 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.
What are the rules of precedent by court?
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
Family Court Not binding
County Court Not binding
Crown Court Not binding
Magistrates’ Court Not binding
What is the relationship between equity and common law?
- Equity developed from the medieval period as a response to the very strict procedural rules applying under the common law.
- The main difference between equity and the common law is that equitable remedies are discretionary.
- So-called ‘maxims of equity’ govern whether the Court will apply equitable principles and remedies in a given case.
- If there is a conflict between the common law and equity, equity prevails.
- The two types of law were administered separately until the Judicature Acts of 1873-75.
- Though the two areas of law now both fall under the joint jurisdiction of the High Court, the original conceptual differences remain.
What is the difference between and public and a private act of parliament?
Public (or general) Acts are Acts which relate to matters of general public concern. They are debated in both Houses of Parliament, and any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is
known as lobbying. Public Acts make up by far the largest part of Parliamentary legislative output.
A private (or personal) Act of Parliament is one which relates to particular places or to particular 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. For example, a local authority
might be seeking a power to build a bridge. The promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal.
What is the difference between Government bills and private members’ bills?
Primary legislation starts life as a ‘Bill’, which is draft piece of legislation.
Public Bills, intended to become Public Acts, can further be divided into Government Bills and Private Members’ Bills.
A Government Bill represents the policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department promoting the Bill wants to bring into law. It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (official government policy).
Primary legislation Secondary 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.
Also known as ‘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 details of primary
legislation. These details provide practical
measures that enable the law to be enforced and operate in daily life.
A Private Members’ Bill is a bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government. They are given far less parliamentary time and so are often not
successfully passed.
What is the difference between primary and secondary 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.
Also known as ‘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 details of primary legislation. These details provide practical measures that enable the law to be enforced and operate in daily life.
Secondary (sometimes referred to as ‘delegated’ or ‘subordinate’) legislation is law made by some person or body other than Parliament – usually a government department. Importantly, however, it is made under powers granted to it by Parliament in primary legislation (known as the ‘parent’ Act). It includes regulations made by statutory instruments, Orders in Council, and by-laws. A piece of delegated legislation made within the powers granted by Parliament in the parent Act has equal statutory force to that of the primary legislation. However, while the courts have no power to invalidate an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is not. The amount of secondary legislation in the UK is very significant. The number of laws enacted through delegated legislation greatly exceeds the number of primary Acts of Parliament.
What is rectification?
The equitable remedy of rectification corrects a document to reflect the parties’ contractual intention. Its main purpose is to correct mistakes made in recording agreements. Rectification only applies in the case of written contracts.
Rectification may be used to correct most types of mistake in the way a transaction is recorded, for example missing words, incorrect descriptions or numbers.
However, if the errors in the written contract are too fundamental or extensive, rectification is not available.
What is specific performance?
Specific performance is an order by the court to compel a party to perform something they have promised to do under a contractual agreement.
It is an equitable remedy available for breach of contract. Specific performance is a discretionary remedy and is not available as of right for every breach of contract.
As a general rule, specific performance is available only where:
* There is a valid and enforceable contract.
* Damages would not be an adequate remedy for the claimant.
(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.)
What is Royal Assent?
The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect. (Conventions will be explored later in this workbook.)
In reality, the grant of Royal Assent is a formality. This is highlighted by the Royal Assent Act 1967, which provides for how the assent can be signified.
An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary provision in the statute.
Legislation does not always come into force on the same day it was enacted. It is actually more usual for an Act to include a commencement section detailing when the Act is to come into force.
Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is concerned to issue a statutory instrument bringing the Act into force.
How is secondary legislation scrutinised?
Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation. Parliament can either approve or reject a statutory instrument (SI) but cannot amend it. Parliament’s role in considering an SI varies depending on what is stated in its parent Act. The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act. Further details of the extent of scrutiny and the differences between the negative and affirmative procedures will be provided in materials on the Institution of Parliament.
What is the literal rule in statutory interpretation?
The simplest of these traditional ‘rules’ is the literal one. This rule or approach is the one principally adopted by judges but not often referred to as such. It means that the words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. The courts will not need to
consider further what Parliament might have meant. The literal rule will require an in-depth consideration of the words and phrases of the statute and how they may fit in with neighbouring sections and the Act as a whole. The linguistic presumptions (see later in this chapter) will therefore be an important aid for this method of interpretation.
An overly literal application of words can, in some situations, lead to unintended consequences, and so an alternative rule was devised historically to avoid such problems. This was known as the golden rule.
