The English Legal System Flashcards
There are three main sources of English law:
A. Parliament - (Statutes)
B. The Courts - (Common Law/Case Law)
C. International law/EU law?
A. Act of Parliament (statutory law) (3)
Theory of Parliamentary sovereignty
- Direct (primary) legislation: E.g. Health and Safety at Work Act 1974
- Indirect (delegated) legislation: E.g. Management of Health and Safety at Work Regulations 1992; Lifting Operations and Lifting Equipment Regulations 1998.
Parliament is the supreme law-making power in the UK
The Courts cannot, generally, strike down as invalid an Act of Parliament.
Advantages (3) and disadvantages (2) of delegated legislation
Advantages:
- Speed
- Flexibility
- Technical/local knowledge
Disadvantages:
- Certainty in the law
- Laws passed by unelected officials/bureaucrats
Judicial rules and principles of statutory interpretation (4)
- The literal rule:
e.g. Whitely v Chappell (1868-9); London and North Eastern Railway Co v Berriman (1946); Fisher v Bell (1961) - The golden rule: (a rule of construction that interprets a provision, usually a statute, according to the ordinary sense of the words, unless it produces an illogical or inconsistent result)
e.g. R v Allen (1872); Adler v George (1964) - The mischief rule: (a rule of statutory interpretation that helps courts to identify the problem that a law seeks to remedy, and then interpret the language of the law in order to achieve the intended outcome)
e.g. Smith v Hughes (1960) - The purposive/teleological method (an approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law’s purpose)
How are statutes interpreted? – Aids to interpretation
Judges can interpret legislation but NOT fill the gaps and to help them, judges may use a number of tools:
- Intrinsic aids:
Aids to interpretation found in the statute itself.
For example, the 1963 Animal Boarding Act section 5(2) states: ‘In this Act animal means any dog or cat.’
2. External aids:
- Interpretation Act 1978
- Government Reports
- Parliamentary Reports (Hansard) - Pepper v Hart (1993)
- Official Reports
- Oxford English Dictionary and relevant legal textbooks
How are statutes interpreted? – Statutory presumptions
The Courts will assume that certain features are implied in all legislation. These presumptions include the Act of Parliament in question:
- Applies to the whole of the UK
- Does not breach any of the UK’s international agreements
- Does not alter the common law
- Does not repeal earlier Acts of parliament
- Does not interfere with a person’s liberty, private property, or other rights.
- Does not operate retrospectively, i.e. its provisions are not backdated to a date before the act was passed.
- Provides that intention to commit the action must be present for criminal liability.
- Does not intend to remove any matter from the jurisdiction of the courts.
However, if a statute makes it clear that one or more presumptions are not applicable, then the courts must follow the law set down in the statute even if the law adversely affects the rights and liberties of citizens
Sovereign (definition)
A chief ruler with supreme power
B. The Courts (Case law)
Judge-made law is based on the doctrine of binding precedent (stare decisis);
Depends on several factors:
- Court hierarchy
- Whether the facts come within the scope of the previous case
- Whether what the judge said was in the ratio decidendi or merely obiter dicta.
The routes for civil and criminal courts
How judicial precedent works
Ratio Decidendi
Ratio decidendi (a Latin phrase meaning the ‘reason for deciding’)
- Constitutes that part of the judgment that will bind future courts when deciding later cases with similar facts
- It is the ratio decidendi that forms the binding precedent E.g. The Supreme Court decides that ‘Andrew did X and its decision is Z…’ It is the legal principle of the case.
- Hence, when a similar X issue comes up in the Court of Appeal or another lower court, they must follow the decision Z of the Supreme Court unless and until the Supreme Court overrule its decision.
Obiter Dicta
Obiter dicta (a Latin phrase meaning ‘things said by the way’)
- All parts of the judgment which do not form part of the ratio decidendi.
- These are often discussion of hypothetical situations: for example a judge might say ‘Andrew did X, but if he had done Y, my decision would have been… D’.
- None of the obiter dicta forms part of the case law, although judges in later cases may be influenced by it, and it is said to be a persuasive authority.
Example of the application of judicial precedent
In Wolman v Islington LBC (2007) the Court of Appeal found that “It was an offence in Greater London to park a motorcycle on its stand on the pavement with its body and one or both of its wheels on or over the pavement.”
This is how the court interpreted Section 15 of the Greater London Council (General Powers) Act 1974 on any part of the pavement”. Motorbike driver parked his vehicle “with the front wheel of the bike resting on his own property the rear wheel is suspended slightly above the surface of the pavement…”
C. International law
Treaties
Customary International law
Treaties
Agreements between the UK and other countries/international organisations
Examples include:
- The Treaty of the Functioning of the European Union
- The European Convention on Human Rights
- The EU-UK Withdrawal Agreement
- European Union (Future Relationship) Act 2020
