The Need:
The legislative Process:
• New laws are required to meet challenging
society as old laws become outdated.
Pre-legislative Process:
Green Paper:
• Judicial precedent can be inefficient – slow
& undemocratic.
• Is issued by the Minister with responsibility for the matter in question.
• Pressure groups on Govt to make new law.
- Consultative document – Govt view on issue put forward with proposals
for reform.
• Different Govt policies mean change in the
law.
- Parties are invited to comment and changes can be made to the
proposals.
How do we legislate?
- Followed by a White Paper which is the firm proposals for new law.
• UK Parl. makes our National Laws (approx, 6070 Acts each law).
• Parl. is supreme in developing the law as
Acts/Statutes of Parl. & cannot be ignored by
the courts.
Acts of Parliament.
Bills:
Legislation (1)
1.Government Bill:
Types:
• Most Common bill – they are public bills that are put
forward by the party in power. (Govt policies are set out in
party manifesto)
Delegated Legislation.
• Passed through Parl. easily – recognised that the party was
voted into power because of policies.
UK Parliament:
• Consists of 3 elements – all 3 must
consent for a law to be established.
1.
House of Commons (HOC)
2.
House of Lords (HOL)
3.
The Monarch.
Influences on law making:
• Govt programme (party manifesto) – Announced in
Queens speech every Nov.
• Proposals for bills for the coming year are mentioned in
the Queen’s speech every Nov. -- (E.g. Criminal Justice Act
2003.)
2.Private Members Bill:
• Also public bills that are put forward by individual
• EU Law – The UK introduce a piece of legislation as a
backbench members of Parl. (MP’s) selected by ballot [20 p/y)
response to an EU directive/regulation – E.g. Consumer
Protection Act 1987. OR because a decision of the ECJ has • Time for debate on these bills is limited so few become law
unless they have Govt support.
shown that our law is not compatible with the treaty of
Rome – E.g. Sex discrimination Act 1986.
• Important Acts passed in this way include the Abortion Act
1967 & the Computer Misuse Act 1990.
• Law reform agencies proposals – E.g. reform of
provocation recently announced.
3.Private Bills:
• Specific events – E.g. Dunblane massacre led to the
banning of private ownership of most handguns - Crime &
Security Act 2001.
• Pressure groups – E.g. reduction of age consent for
homosexual acts in private from 21 to 18 and the Civil
partnership Act 2004.
• Least Common type of bill.
• May be introduced to Parl. by large public corporations &
only affect one area/group in the community – not the general
public (Public bills affect whole country) Private bills only
affect particular sections of the community.
*Continuation of Pre-legislative Process*
• Bill: once drafted to the approval of Minister(s),
is then sent to one of the Houses – usually HOC.
First Reading:
Green, Winged,
Dragons, Fly,
Slowly, Clockwise,
Round, The, Old,
Ruin.
The bill is introduced to the HOC –
merely notifies the House of the Bill and
it’s the subject matter. No debate.
• Legislation is sovereign over other forms of law in the
ELS.
• Can overrule any custom, judicial precedent,
delegated legislation or former legislation.
• Based on the idea of democratic law making – made by
elected Parl.
• Are no limits on what Parl. can legislate on and it can
also change its own powers.
Second Reading:
The bill is explained by the Minister and
followed by a ‘political’ debate about the
principles of the bill, which is then
followed by a vote.
Parliamentary Supremacy:
• Each new Parl. should be free to make or change the
law as it wishes – not bound be law made by a previous
Parl.
Legislation (2)
• An Act of Parl. cannot be overruled or challenged by
the courts.
Committee Stage:
This follows the second reading, where
the bill is examined inclusive of the
subject area – bill is scrutinised and
amendments can be made.
Third Reading:
This coincides with the report stage and
makes a final debate about the bill in its
amended form.
Other House:
Any amendments will only be effective if
agreed by HOC – major function of HOL
is to invite HOC to reconsider. If
agreement is not reached bill can be sent
for royal assent after a year.
Royal Assent:
The Monarch gives approval of the bill.
Limitations:
• Membership of the EU: EU laws take priority over
English law even where the English law was passed after
the relevant EU law.
• Human Rights Act: All Acts of Parl. must be
compatible with the European Convention on Human
Rights. Under S.4 of the HRA the courts have the
power to declare an Act incompatible with the HRA.
What:
• Delegated legislation is a law made by
someone other than Parl. but with the
authority of Parl.
• Authority is usually laid down in a ‘Parent
Act’ known as the enabling Act – creates the
framework of the law, allowing delegated
legislation to make more detailed law in the
area.
(Control) Enabling Act:
(Control) Negative Resolution Procedure:
• States the powers of the
Minister. – Power to make D.L
• Become law unless within 40 days there is an objection &
rejected.
• Effectiveness: Gives quite
broad powers – difficult to
deem ultra vires.
• Effectiveness: No debate in the 40 days that is laid
before Parl.
(Control) Affirmative Resolution Procedure:
• Must be approved by both houses – specifically approved.
• Effectiveness: More control because Parl. have to
approve to D.L for it to become law. Then the negative
procedure but Parl. can only annul, approve but cannot
amend.
Why:
• Parl. does not have the time to debate every
detail of every Act.
• Parl. will not always have the necessary
expertise to deal with a particular issue.
(Control) Super-Affirmative Resolution Procedure:
Delegated Legislation
• Effectiveness: Even more control as the minister must consult
with various people and have regard to what the HOP
say/recommend.
• Delegated legislation can be changed easily –
allows quicker response to changing circumstances.
• Parl. can not always respond quick enough in
emergencies.
(Control) LRRA 2006:
• The procedure for makings SI’s – aimed to replace
existing law.
Types:
1.
Statutory Instruments – rules,
regulations and orders, issued by
ministers, national in effect.
2.
By Laws – issued in local authorities,
local in effect.
3.
Orders in Council – issued by the
Privy Council, generally only used in
emergencies.
1.Statutory Instruments:
• Most Common procedure – introduced by Govt
ministers.
• Will become law unless rejected by Parl. within
40 days.
• Example: Codes of practice under PACE.
• Made under Reform Act 2006 – more power.
• Effectiveness: Provides additional control where the
minister is repealing/amending a law that imposes a burden
– Minister must consult interested parties.
2.By Laws:
(Control) Negative Resolution Procedure:
• Made by local authorities to
cover local issues or by public
corporations.
• Reviews can draw Parl’s attention to problems.
• Effectiveness: Can only refer back to Parl. cannot amend.
• Involves matters of local
concern – passed under the Local
Govt Act 1972.
• Example: Local parking
regulations.
3.Orders in Council:
• Introduced by the Queen & the Privy Council – in times of emergency
under the emergency powers Act 1920.
• Only used in emergency when Parl. is not sitting
• Main function: give effect to EU directives.
• Example: The misuse of drugs act 1971 (revised 2003)
*CONTINUATION*
JUDICIAL REVIEW:
Advantages:
• Solves time – Parl. is only able to pass approx 50 acts.
• Flexible – D.L can be passed much quicker if they are not
required to go through the official legislation process –
changed in time of emergency.
• Experts – Local councils are much better equipped to
make bylaws concerning their area.
Void to Substantive Ultra Vires:
• Fire Brigade Union Case 1935 – Only
has the power to regulate about the
subject been allowed to do so.
Disadvantages:
Delegated
Legislation (2)
• Undemocratic – Civil servants make SI’s –
undemocratic for such people to have the power to
pass D.L
Void to Procedural Ultra Vires:
• Quantity – D.L is being made by people and
organisations outside of Parl.
• LRRA 2006 – Cannot repeal without
succeeding to consult all relevant bodies
before introducing new regulations – Any
procedure not followed.
• Scrutiny – The quantity makes it difficult for public
to be informed about the changes in the law.
• Overused – Volume makes it difficult to discover
what the present law is.
• Mushroom Case.
Void due to Unreasonableness:
• Example is the case of Strinctland v
Hayes. – Prohibiting or regulating a law
which is unreasonable. – Things are too
widely drawn.
• Lack of Control – Parliamentary scrutiny is limited –
limitations of judicial review.
Effectiveness:
1.
• Problems of interpretation – Can be bulky and
complex.
2.
• For judicial review to happen relies
on a individual bringing a claim.
• The Enabling Act can be wide and
counter wide powers to make D.L.
• There a certain barriers to this
including money and knowledge that
the piece of D.L has gone beyond the
power Parl. gave.
• Therefore it would be difficult to
say that the individual/body has gone
beyond the power given to them in the
enabling Act.
The Need for SI:
Mischief Rule:
• A broad term – where words are used to
cover several possibilities – E.g. Brock v DPP
(1993), Dangerous dogs case.
• The mischief rule gives judges the most flexibility when deciding
what Parl. intended to stop.
• Ambiguity – where a word has two or more
meanings.
• Looks at the gap in the previous law and interprets the words ‘to
advance the remedy’.
• A drafting error – unnoticed in scrutiny.
• Established in Heydon’s case (1564).
• As the ditty goes: ‘I’m the parliament
draftsman, I compose the country’s laws, and of
half the litigation I’m undoubtedly the cause!’
• When using this rule, a judge should consider:
• what common law was before the Act was passed.
• what the problem was with that law.
• New developments – new technology may
mean that an old Act of Parl. does not cover
present day situations – E.g. Royal college of
Nursing v DHSS (1981)
• what the remedy was that Parl. was trying to
provide.
Statutory
Interpretation (1)
• Changes in language – meanings of words can
change over the years – E.g. Cheesman v DDP
(1990)
• What was the true reason for the remedy.
CASES:
• Smith v Hughes (1960)
Literal v Purposive Approach:
• Royal College of Nursing (1981)
• The conflict: should judges examine each word
and take them literally or should it be accepted
that an Act cannot cover every situation and that
meanings of the words cannot always be exact.
Golden Rule:
• Literal – produces absurd results.
• The golden rule is an extension of the literal rule – if the literal rule gives an
absurd result, which is obviously not what Parl. intended, the judge should alter
the words in the statute in order to produce a satisfactory result.
• Purposive – goes beyond the powers of the
judiciary but is advocated and used in EU law.
• Judges may use the narrow approach (choose between different meanings of a
word) – Jones v DPP (1962): ‘if they are capable of more than one meaning then
you can choose between those meanings, but beyond this you cannot go.’ LORD
REID
Literal Rule:
• The judges take the ordinary and natural meaning
of the word and apply it, even if doing so creates an
absurd result.
• Respects Parliamentary Sovereignty.
CASES:
• Whitley v Chappell
(1868)
• OR Judges may use the broad approach (modifying words in the statute to avoid
absurdity).
• Lord Esher (1892): ‘the court has nothing to do
with the question of whether the legislature has
committed absurdity.’
• London & NE Railway
Co v Berriman (1946)
CASES:
• Fisher v Bell (1961)
• R v Allen (1872)
• Michael Zander: ‘mechanical and divorced from
the realities of the use of language.
• R v Harris (1836)
• Re Sigsworth (1935
Purposive Approach:
• Looks at the intentions/purposes behind the
passing of an Act – seeks to interpret the
words of the statute to give effect to Parl’s
intention.
Intrinsic & Extrinsic Aids:
• Examples include:
• In order to determine the meaning of a
section of an Act of Parl. the judge may wish to
look at other sections in the Act:
• definition section
• long/short title
• Preamble (purpose of the act)
• R v Registrar General ex Parte Smith (1990) –
when considering s.51 of the Adoption Act 1976
the court applied the purposive approach to
prevent a convicted murderer from being able
to discover his natural mothers identity
because Parl. could not have intended to
promote serious crime. This was despite the
fact that he had made the application in the
correct manner and was prepared to see a
counsellor – Literal view: entitled to the
information.
• OTHER CASES INCLUDE:
• Jones v Tower Boot CO (1977)
Statutory
Interpretation (2)
ADVANTAGES
Prevents cases ending in
absurdity/injustice
(LORD DENNING)
DISADVANTAGES
Relies on the use of extrinsic
aids, especially Hansard which
causes delays and adds costs
to the case.
Allows the court to take
account of changes in
language (Cheesman)
Difficult to find Parl’s intent
especially where there have
been social and technological
changes since Parl. make the
law.
Allows the court to take
account of social and
technological advances
(Quintavalle)
Trying to find intent gives a
judge too much power – may be
construed as making rather
than interpreting law (LORD
SCARMAN & LORD
SIMMONDS)
• Coltman v Bibby Tankers (1987)
• Fitzpatrick v Sterling Housing
Association.
• dictionary
• hansard
• human rights Act 1998
• legal textbooks
• interpretation Act 1978
• explanatory notes.
Rules of language:
CASES:
• R (Quintavalle) v Sec. of State for Health
(2003) – HOL used the purposive approach in
deciding that organisms created by cell nuclear
replacement came with the definition of
‘embryo’ in the Human Embryology and
Fertilisation Act 1990 even though CNR was not
possible at the time.
• previous Acts of Parl. on the same topic
• Intrinsic Aids: Sources within the Act.
• Lord Denning championed this approach in
Magnor & St Mellons v Newport Corporation
(1950) he said: ‘we sit here to find out the
intention of Parl. & carry it out, and we so this
better by filling in the gaps and making sense
of the enactment than by opening it up to
destructive analysis.’
• Opponents of the same case: Lord Simmonds
regarded the approach as a ‘naked usurpation of
the legislative function under the thin disguise
of interpretation.’
• Extrinsic Aids: Sources outside the Act.
Avoids problems with
broad terms
• Ejustdem Rule: where there is a list of words followed
by general words, then the general words are limited to
the same kind of items as the specific words. – CASE:
Powell v Kempton Park Racecourse (1899)
• Expresso Unius Exclusio Alterius: (the mention of one
thing excludes others) where there is a list of words which
is not followed by general words, then the Act applies only
to the items in the list. – CASE: Tempest v Kilner (1846)
• Noscuiter a Sociis: (a word is known by the company it
keeps) words must be looked at in context and interpreted
accordingly, it involves looking at other words in the same
sections or others of the Act. – CASE: Inland Revenue v
Frere (1965)
Presumptions:
• Presumption against a change in common law: Common
law will apply unless Parl. has expressly altered it and
made this clear in the Act (Leach v R)
• Presumption that mens rea is required: The basic
common law rule is that no-one can be convicted of a
crime unless it is shown that they have the intention to
commit it. (Sweet v Parsley)
• Presumption that the crown is not bound: By any
statute unless the statute expressly says no.
• Presumption that legislation does not apply
retrospectively: This means that no Act of Parl. will
apply to past happenings. Each Act normally only applies
from the date it comes into effect.
Key Functions of the ECJ:
LAW MAKING INSITUTIONS:
• To ensure that the law is applied
uniformly in all MS’s by carrying out 2
functions:
1. Hears cases – to decide whether MS have
failed to fulfil obligations under the treaties –
E.g. Re Tachographs where the UK failed to
implement a regulation on the use of
Tachographs in road vehicles for the carriage of
goods.
EU Parl:
Art.234:
• Based in Brussels & Strasbourg.
• There are 785 members of EU Parl. who are elected by
the citizens of the member state (MS) every 5 years.
• Main function: to discuss and comment on the proposals
put forward by the Commission, but has no direct lawmaking authority.
• Assent of Parl. is required to any international
agreements the Union wishes to enter in – E.g. admitting
new MS.
• Has some power over the Union budget.
• The court of justice shall have jurisdiction to give preliminary rulings
concerning:
a) the interpretation of treaties
b) the validity and interpretation of acts of the institutions
of the Union
c) the interpretation of the statutes of bodies established by
council, where those statutes so provide.
an act of the
European
Law (1)
• 27 commissioners who act independently of national origin.
ECJ:
• Proposes and presents drafts of legislation to the Council –
‘the commission proposes and the council disposes.’
• Function set out in Art.220 of the
Treaty of Rome ‘to ensure that in the
• ‘Guardian of the treaties’ – checks that the MS are following interpretation and application of the
the laws – has a duty to intervene and refer to ECJ.
treaty the law is observed.’
• Responsible for the administration of the Union and has
executive powers to implement the Union’s budget.
Council of Ministers:
• Made up of representatives from each national Govt. who
will attend meetings related to their national responsibility.
• Principal decision making body.
When must a referral be made?
• Where there is no appeal from the national court
within the national system – E.g. case must be
referred from the HOL’s
EU Commission:
• Initiates all new EU Laws.
2. Preliminary rulings – hears references from
national courts for preliminary rulings on points
of EU law under Art.234.
• Decides cases involving citizens of the
MS.
• Other courts are allowed to make a reference but
do not have to – E.g. the COA does not have to refer
questions.
• CASE: Torfaren Borough Council v B&Q (1990)
• The ECJ make a preliminary ruling and send the
case back to the original court for it to apply the
ruling to the facts in the case.
Discretionary Referrals:
• Sits in Luxembourg and has 27 judges
1 from each MS – appointed every 6
Bulmer v Bollinger (1974) COA set out the approach for deciding
years.
if a discretionary referral should be made:
• Full court = 11 judges (also chambers • Guidance on the point of law must be necessary to come to
of 5/6)
decision in case.
• Assisted by 9 Advocates – A-G under • No need to refer a question which has already been decided by
• The Council of Ministers is the ‘effective centre of power’. Art.223 will research all legal points
the ECJ in previous case.
involved and present the case publicly.
– the heads of State of the EU countries vote on the
• No need to refer question which is clear & free from doubt –
proposed laws. The head states have differing amounts of
CASE: Van Duyn v Home
acte clair.
voting power depending on the size of their country (qualified
Office (1974)
majority voting).
• Court must consider all circumstances of case. – refrains
whether to refer or not.
Sources of EU Law:
• EU law is supreme - Van Gend
en Loos.
• If UK legislation conflicts
with EU – UK becomes void.
Primary:
• Legal action will be taken
against a MS who fails to
implement EU law – Francovich
principle.
• Treaties, the most important of which is the Treaty
of Rome, and other agreements having similar status.
• Primary legislation is agreed by direct negotiation
between the government of MS.
*READ ADDITIONAL NOTES*
Secondary:
European
Law (2)
Treaties:
• Agreements laid down in treaties are subject to
ratification by the national Parl’s – same for the
amendments made to the treaties.
• New legal order was set out in Costa v ENEL & Van
Gend en Loos.
EU Constitution:
• The EC Treaty (the Treaty of Rome as amended) can be
seen as the basic constitution of the EU Union.
• There has been an attempt to have ratified a EU
Constitution as we have seen but Holland and France
Refused.
• Treaty of Lisbon may be the new constitution.
• Can refer points of law under Art.234 to the ECJ –
when point is unclear
*READ ADDITIONAL NOTES*
Indirect Effect:
• Where a directive has not been implemented by MS or
has been inadequately implemented an individual can take
action against another state by using ‘indirect effect.’
• Von Colson v Land Nordrhein-Westfahlen
Directives & Direct effect:
• Where a MS has not implemented a directive within
the time laid down the ECJ has developed the concept
of ‘direct effect’
• If the MS has not implemented the directive or
implemented it in a defective way – it will still be
directly enforceable by an individual against the MS.
• Founding treaties were the Treaty of Paris 1951
and the Treaty of Rome 1957.
• The Treaty of Rome created a ‘new legal order’ –
meaning that the body of law was no binding on the
institutions of MS and its citizens.
• Purposive approach gives the judiciary more power &
freedom to interpret legislation.
CASES:
• Legislation passed by the institutions of the union
under Art.234 of the Treaty of Rome.
• The Treaty of Rome (originally the EEC treaty) was
amended in 1992 by the Treaty of Maastricht and its
name was changed to the EC treaty.
Benefit of EU Membership:
Effect of EU Membership:
Vertical & Horizontal direct effect:
• ‘Vertical Direct Effect’: The Provision has
effect between citizen and state.
• ‘Horizontal Direct Effect’: The provision has
effect between citizen and citizen.
Treaty provisions can produce vertical direct
effect if, they are “clear, precise and
unconditional” leaving no discretion to MS as to
implementation.
CASES:
• Macarthys Ltd v Smith 1979
• Diocese of Hallam Trustee v Connaughton 1996
• Defrenne v SABENA (no.2) 1976
CASES:
• Marshall v Southampton 1986
• Foster v British Gas 1990
Secondary sources:
• Regulations – binding in all the MS
• Directives – binding but MS may choose
method of implementation
• Decisions – binding on those MS to whom
they are addressed.
• Recommendations – not binding
• Opinions – not binding
• Case Law – binding in all MS
What is JP & the concept of Stare Decisis:
Stare Decisis – ‘stand by what has been decided and do not
unsettle the established’.
Supports idea of fairness & provides certainty.
Where past decisions of judges creates law for future judges to
follow. Higher courts bind lower courts and in some cases
themselves.
Created by the ratio decidendi & referred to as ‘case law’.
Cases which illustrate stare decisis – Knuller v DPP and Jones v
Secretary of State for Social Services (where despite regarding an
earlier decision as wrong, refused to overrule using the practice
statement, preferring certainty)
Accurate law reporting is essential for stare decisis to operate. Stare
decisis can be avoided by distinguishing, overruling and reversing
Types: Persuasive
ADVANTAGES
DISADVANTAGES
Certainty
Rigidity
Consistency & fairness in the
law
Complexity
Precision
Illogical Distinctions
Flexibility
Slowness of Growth
Time saving
Ratio Decidendi & Obiter Dicta
Ratio Decidendi
Principles of law used to decide a case – ‘reason for
deciding’.
Sir Rupert Cross: ‘any rule expressly or impliedly
treated by the judge as a necessary step in reaching
his conclusion’.
The part of the decision that forms the precedent for
future cases to follow.
Obiter Dicta
The remainder of the judgement. ‘Other things said’.
Judge in future cases does not have to follow but may
be persuasive (Howe & Gotts)
Problems
Separating the ratio and obiter
More than one speech at the end of the case with
different reasons for decisions (ration decidendi)
Judicial Precedent
Hierarchy of the Courts
COURT
Types: Binding
Types: Original
Original
If point of law which has never been
decided forms new precedent
Judge may look at cases which are
closest in principle and use
similar rules (reasoning by
analogy)
Here, the judge has a law making role
(creating new law).
Cases: Hunter and Others v Canary
Wharf Ltd and London Docklands
Development Corporation (1995)
Persuasive
Precedent that isn’t binding on the court but
the judge may consider it and decide it is
the correct principle and is persuaded to
follow it.
Courts Lower in the Hierarchy:
R v R (1991) – the H of L agreed with and followed
the same reasoning of the C of A when deciding
that a man could be guilty of raping his wife.
Decisions of the Privy Council
since many of its judges are also members of the H
of L’s, their judgements are treated with respect any
may often be followed.
A-G for Jersey v Holley (2005) (PC) followed in R v
James; R v Karimi (2006) by the C of A instead of
following a H of L precedent.
Statements made Obiter
R v Gotts (1992) – CA followed obiter of HL in R v
Howe(1987)
A dissenting judgement
Hedley Byrne v Heller & Partners followed
dissenting judgements in Candler v Crane
Christmas & Co (1951).
Decisions made by courts in other countries:
Re A (2000) Conjoined Twins; Re S Refusal of
Medical treatment - American precedent
Binding
Precedent from an earlier case which
must be followed even id the
judge in the later case doesn’t
agree with the legal principle.
Only created where facts are
sufficiently similar and when
decision was made by a court
which is senior to (or in some
cases the same level).
COURTS BOUND BY IT
COURTS IT MUST
FOLLOW
ECJ
All courts
None
HL
All courts in the ELS
ECJ
CA
Itself
(with
some
exceptions)
DC & all other lower
courts
ECJ & HL
DC
Itself
(with
some
exceptions); HC & all
other lower courts
ECJ, HL, CA
HC
County Court; Mags
ECJ; HL; CA; DC
CC
Possibly Mags
All Higher Courts
MC
None
All Higher Courts
Avoiding Precedent: Overruling & Reversing
Overruling: The court in a later case states that the
legal rule in an earlier case is wrong. It may happen
when:
- A higher court overrules a decision made in an
earlier case by a lower court
- The ECJ overrules a past decision it has made
- The HL’s use the practice statement to overrule
a past decision of its own.
Pepper v Hart (1993) overruling Davis v Johnson (1979)
Reversing: A court higher up the hierarchy overturns the
decision of a lower court on appeal in the same case.
E.g. the CA disagrees with a ruling of the high
court/crown court and reverses their decision by coming
to a different view of the law.
The Privy Council & Precedent
The Privy Council & Precedent
Decisions not usually binding but form persuasive
precedent.
Usually follow decisions of the HL except where the
point of law has developed differently in the country
from which the appeal has come.
Unusual case = A-G for Jersey v Holley – PC
refused to follow HL’s decision in Smith (Morgan
James). CA in ELS then followed Holley rather than
Smith because the decision was made by 6 law
lords.
CA is bound by the HL and ECJ. Can depart from HL
decision in human rights cases where it is different from the
decisions of the ECHR
Lord Denning: an avid champion of the view that the CA
should not be bound by the decisions of the HL. (
Broome v Cassell & Co Ltd (1971) LD refused to follow the
HL in Rookes v Barnard (1964)
Schorsch Meier GmbH v Henning (1975) and Miliangos v
George Frank (Textiles) Ltd (1976) the CA refused to follow
HL in Havana Railways (1961) which said that damages
could only be awarded in sterling.
On appeal to the Lords they pointed out that the CA had no
right to ignore overrule decisions of the HL. However
the HL then went on to use the Practice Statement to
overrule its own decision agreeing with the reasoning of
Lord Denning.
Avoiding Precedent: Distinguishing
Distinguishing: The judge finds
that the material facts of the case
are sufficiently different for him to
make a distinction between the
case he/she is hearing and the
past one. – He is then not bound
to follow it. Balfour v Balfour
(1919) & Merritt v Merrit (1971)
Judicial
Precedent (2)
CA bound by HLs
Court of Appeal & It’s OWN precedent:
CA & Its own decisions
One division of the CA will not bind the other
Within each division, decisions are normally
binding.
Young v Bristol Aeroplane Co Ltd (1944) –
although there are limited exceptions.
conflicting decisions in past CA cases - can
choose
a decision of the HL which effectively
overrules a CA decision - CA must follow
the decision of the HL
decision was made per incuriam
Denning tried to challenge the rule in Young’s case
but in Davis v Johnson the court “expressly,
unequivocally and unanimously reaffirmed the
rule in Young”.
Justifications: there would be a risk of confusion
and doubt if the CA was not obliged to follow its
own past decisions. Although the HL’s needs
power to review as it is the last court of appeal, the
CA does not as their errors can be corrected by
the HL’s.
Per incurium case examples:
Williams v awcett (1986); Rickard v Rickard (1989)
‘rare and exceptional cases’ that the CA would
be justified in refusing to follow a previous
decision.
Criminal Division
Can also refuse to follow a past decision if the law
has been ‘misapplied or misunderstood’.
because people’s liberty is at stake, R v Spencer
(1985)
Reasons for CA being able to depart from HL
Reasons Against CA being able to depart from HL
•Cases could be decided on their own merits making
judgments more equitable;
•The law would potentially move more with changing
social conditions;
•It would be quicker to change incorrect decisions;
•It would make the law less rigid;
•Avoids costly and lengthy appeals to update the law to the
HL’s
•Very few cases reach the HL’s
•It would make the law less certain as CA could
overrule HLs;
•It would make advice given by lawyers less
precise;
•It may cause an increase in litigation;
•Courts would be confused over which precedent
to follow.