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
- European Union (EU)
UK joined EEC in 1973 following passing of the European Communities Act 1972;
EU has 4 main institutions:
- The Council
- The European Commission
- The European Parliament
- The European Court of Justice (CJEU)
How does EU law affect the UK?
EU creates a new source of law (s 2(4) of the European Communities Act 1972 provides that English law should be interpreted and have effect subject to the principle that EU law is supreme (R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994).
The role of the Courts: Because EU law takes precedence over domestic legislation, the role of the courts has changed as a result of the membership.
Domestic courts (whether in the UK or in any other member state) must follow the interpretation of EU law as given by the CJEU
What about Brexit?
The EU-UK Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community) is a treaty that set the terms of the withdrawal of the UK from the EU and Euratom.
The European Union (Withdrawal Agreement) Act 2020 implemented this agreement into the UK domestic legal order.
As of the 31st of January 2020, the UK is not an EU MS anymore.
But, it still had to follow EU rules until the end of the transition period which ended in the 31st of December of 2020.
The EU and the UK reached a trade agreement EU–UK Trade and Cooperation Agreement and was implemented in the UK’s legal order by the European Union (Future Relationship) Act 2020
- European Convention on Human Rights (ECHR)
- European Convention on Human Rights (ECHR) adopted in 1950;
- This is an international source of law;
- SEPARATE from law and institutions of the EU;
- ECHR provides absolute, limited and qualified human rights;
- Human Rights Act 1998 (HRA), came into force October 2000.
- The HRA implements the Convention rights in the domestic legal order making it easier for those rights to be enforced by UK courts.
Provisions of the Human Rights Act 1998
S.2- Courts must consider decisions from ECtHR;
S.3- all UK legislation must be interpreted in line with Convention rights;
S.4- court can declare UK legislation incompatible with Convention rights (however it cannot overrule an Act of Parliament);
S.6- unlawful for public authority to act in a way incompatible with ECHR.
Alternatives to the Courts
Tribunals
ADR:
Arbitration
Conciliation
Mediation
Ombudsmen
Advantages and disadvantages of ADR
Cost ✔
Accessibility ✔
Speed ✔
Expertise ✔
Conciliation of the parties ✔
Privacy/no loss of reputation ✔
Imbalance of power between parties ❌
Enforcement may be difficult ❌
There is no system of precedent ❌
There is low take-up rate ❌
Tribunals
The Tribunals Courts and Enforcement Act 2007
First-Tier Tribunal and Upper-Tribunal
The majority of legal decisions are taken by tribunals
Specialist forum dealing with disputes between individual and government departments (e.g., Tax Chamber; Health, Education and Social Care Chamber)
An exception is the Employment Tribunals and Employment Appeal Tribunal which deal with disputes between employers and employees.
Advantages and disadvantages of Tribunals
Cost ✔
Speed ✔
Expertise ✔
Relief of congestion in the ordinary courts✔
Privacy✔
Lack of openness ❌
Unavailability of state funding ❌
