Sources of law interpretation of statute

Question 1

Common Law
Definition and Aim
Remedy

Answer 1

Set of rules common to the whole country, embodied in judicial decisions. The aim of Common Law is to be consistent
Remedy = damages

Question 2

Equity
Definition and Aim
Remedy
When is it used

Answer 2

Set of principles developed after the common law to improve rules and law. The aim is fairness and morality.
Remedy = performance of contract, injunctions, rectification of agreement to true intentions and rescission (putting parties back to pre-contractual position)
Used when common law proves inadequate

Question 3

Ratio decidendi

Answer 3

Statements of law pertaining to the facts of the case that have to be followed by later judges. If the facts can be distinguished then the earlier decision does not have to be followed

Question 4

Obiter dicta

Answer 4

Passing comments made “by the way” which can influence a judges decision but is not binding

Question 5

Who sets precedent

Answer 5

Supreme court - binds all lower courts but not itself
Court of appeal - binds all lower courts but not itself
High court - more than 1 judge binds all and itself - only 1 judge binds all lower courts but not itself
County court - binds no one

Question 6

Precedent adv and dis

Answer 6

Adv
Reduces risk of mistakes as consistency
Detailed law reports will show a mass of legal reasoning and considerations
Case law is based on real life events

Dis
May be illogical
Can limit judge’s discretion
Maybe too easy to distinguish facts

Question 7

Who creates Primary legislation

Answer 7

Created by Acts of Parliament

Question 8

EU v UK law on conflicts

Answer 8

EU law defeats UK law if conflict exists

Question 9

Legislation procedure

Answer 9

Legislation can be passed to either House of Commons or House of Lords.

Process:
1st reading - introduction and no debate
2nd reading - general debate and vote to continue or kill
Committee - bill examined and amended clause by clause by committee of MP’s, in certain circumstances the whole house maybe to committee
Report stage - amended bill back to the house to consider changes
3rd reading - amended bill voted by house
Bill passed to other house and same process repeated
Royal assent - bill becomes an Act

Question 10

Primary legislation - adv & dis

Answer 10

Adv
MPs elected so representatives of the people
Legislation can be created to cover any issue
Time required and process means much thought has gone into the Act
Bad laws can be repealed

Dis
MPs often lack expertise
Statues are bulky
MPs complain about lack of time to consider bills in detail
Legislation struggles to cover all eventualities

Question 11

Interpreting statues

5 rules

Answer 11

Literal rule - words have their dictionary meaning

Golden rule - avoid absurdity when applying literal rule

Purposive approach - the power of judges to look beyond the words of statue and instead for the reason for its enactment

Mischief rule - permits the court to look behind the actual wording to consider the problem the statue is rectifying

Contextual rule - construe words in the context by viewing the entire statue

Question 12

Interpretation aids

Intrinsic and Extrinsic

Answer 12

Intrinsic - Title of act, preamble, interpretation section of the act, side notes
Extrinsic - Redefining popular words (Masculine encompasses feminine), reports of law commission, parliamentary debates (known as Hansard journal), dictionary

Question 13

Human rights

Conventional rights articles 2 - 14 (exl 8,12,13)

Answer 13

All new legislation must include a “statement of compatibility” with human rights

2 - Right to life 
3 - Prohibition of torture 
4 - No slavery of forced labour 
5 - Rights to liberty and security - subject to lawful detention 
6 - Right to fair trial 
7 - No punishment without law 
9 - Freedom of thought 
10 - Freedom of expression 
11 - Freedom of assembly and association 
14 - Prohibition of discrimination