LW1A05
General Introduction to Law
LECTURE 2: English Legal System
2017
Elizabeth Conaghan
https://youtu.be/VfOau717KI4
What did we learn last week?
• What is law? A body of rules aimed at regulating
behaviour
• How did English law develop? Centralisation
began after the Norman conquest. The ‘common
law’ courts were developed, and then the ‘courts
of equity’. These courts ran in parallel for
centuries until they were merged by 1873.
• What are the key characteristics of English law?
Key Characteristics of English Law
Judges may
make law
Parliament
makes law
Continuity
Key
Characteristics
Adversarial
trial system
Uncodified
Binding
precedent
What did we learn last week?
• How are different types of law classified? Can be
classified in a number of ways such as ‘civil and
criminal’, or ‘public and private’.
• Public law is concerned with the relationship
between individuals and the state. Private law is
concerned with the rights and duties between
individuals.
Classification of Different Types of Law
Public law
Criminal law
The state has power
to prosecute
individuals who
commit criminal acts,
e.g. murder and theft.
Case must be proved
“beyond reasonable
doubt”
Constitutional
law
Laws relating to the
British Constitution,
e.g. Fixed-term
Parliament Act 2011
Administrative
law
Concerned with the
powers and duties of
government and other
public bodies and
whether they’re acting
within their legal
powers, e.g. judicial
review is threatened
over delays in the
Chilcot inquiry.
Classification of Different Types of Law
Company
and
Partnership
law
Property
Contract
Tort
Private
law
Probate
Family
These are all types of ‘civil’ law (i.e. not criminal law). In
any civil litigation, the claimant must prove his case on
“the balance of probabilities” (contrast this with
criminal law).
What did we learn last week?
• How is the English Court system organised?
There is a system of hierarchy which means that
certain courts are superior to other courts.
The English Court System: overview
Supreme Court
Court of Appeal
Crown Court
High Court
Magistrates’ Court
County Court
What did we learn last week?
• What other courts are there? The European
Court of Human Rights, and the European Court
of Justice.
• What alternatives are there to the court system?
Arbitration, mediation, conciliation, and a system
of tribunals, mainly concerned with the rights of
individuals against government departments,
apart from employment tribunals.
Lecture 2: Learning Outcomes
At the end of the session, students should be able to:
• Identify the sources of English law;
• Describe the tools that judges use to interpret
legislation;
• Explain the doctrine of binding precedent;
• List the institutions of the EU and describe their
role; and
SOURCES OF LAW
How do laws come into
existence?
Sources of English Law
• A source of law means the process by which
law comes into existence.
Legislation
Law made by
Parliament or
authorised by
Parliament
Case law
Judgemade law
Custom
Sources
of law
European
Law
Legislation
Sources of English Law
• Legislation is the main method of law making
in the UK. There are two types:
Primary Legislation
Made by Acts of
Parliament
Secondary legislation
(delegated legislation)
Made by bodies to whom
Parliament has given lawmaking powers
Legislation
Sources of English Law
Primary Legislation
• Acts of Parliament (also called statutes) are
primary legislation.
• Parliament is sovereign, which means that it is
the supreme law making body in the UK.
• Parliament consists of
the Queen, the House
of Commons and the
House of Lords.
https://www.youtube.com/watch?v=dS_SLF92e5A
Legislation
Sources of English Law
Primary Legislation
• An Act of Parliament creates new laws or
changes or repeals old laws.
• An enabling Act of Parliament is one where
Parliament gives law-making powers to
ministers, local authorities and other bodies to
make secondary (or delegated) legislation.
• An Act must pass through various stages in
Parliament before it becomes law. During this
time, it is called a ‘bill’.
Legislation
Sources of English Law
Primary Legislation
• Before a bill can become an Act it must pass
through five stages in both Houses of Parliament.
• Most bills start in the House of Commons
(although some bills can begin in the Lords).
• If the House of Lords refuses to
accept a bill passed by the
Commons, it can be passed without
their consent. This is rare, but did
happen with the Hunting Act 2004.
Legislation
Stages of a bill
House of Commons
House of Lords
First Reading
First Reading
Second Reading
Second Reading
Committee Stage
Committee Stage
Report Stage
Report Stage
Third Reading
Third Reading
Royal
Assent
Legislation
Sources of English Law
Delegated Legislation
• Parliament does not have the time to pass all the
detailed laws needed.
• Therefore, it passes enabling Acts of Parliament
which lay down the basic framework of the law
and delegate the power to create the detail to
government departments, local authorities and
other bodies.
• Types of delegated legislation include Orders in
Council, Statutory Instruments and byelaws.
Legislation
Sources of English Law
Advantages and Disadvantages of Delegated Legislation
Advantages
Disadvantages
Saves Parliamentary time
Parliament loses a degree of
control.
Better for law involving expert
technical detail
Insufficient time spent
considering all aspects
Can be enacted quickly
Excessive legislation passed: 3000
each year!
Can be amended or repealed
easily and quickly
Not publicised as much as a Bill
going though Parliament
Sources of English Law
• A source of law means the process by which
law comes into existence.
Legislation
Law made by
Parliament or
authorised by
Parliament
Case law
Judgemade law
Custom
Sources
of law
European
Law
Examples of legislation
Can you guess the piece of
legislation from the picture?
“The Single
Use Carrier
Bags Charges
(England)
Order 2015”
The Single Use Carrier Bags Charges (England)
Order 2015
• A piece of delegated legislation, drafted by
DEFRA
• An example of a statutory instrument
The Smoke-free (Private Vehicles) Regulations
2015
• Britain banned smoking in cars carrying
children on 1 October 2015
• Another example of delegated legislation
Consumer Rights Act 2015
• Massive overhaul of consumer rights
legislation, and now includes digital purchases.
• An example of primary legislation.
Case law
Judgemade law
Sources of English Law
• The law made by the courts is case law,
sometimes described as ‘common law’.
• Until the 19th century the courts were the primary
law-makers, but were superseded by Parliament.
• Today, the bulk of both civil and criminal law is
statutory, apart from the laws of contract and tort
which mainly continue to be developed by judges.
Case law
Judgemade law
Sources of English Law
It is necessary to consider two aspects of case
law:
(i) The tools that judges use for statutory
interpretation; and
(ii) The law of binding precedent.
Case law
Judgemade law
Sources of English Law
Statutory interpretation
• Since most law is now statutory, the courts are
mainly concerned with the interpretation and
application of law contained in Acts of Parliament
and delegated legislation.
• The wording of the legislation should be clear, but
it may be ambiguous, poorly drafted, outdated or
too obscure in some way. How do judges deal with
this?
Case law
Judgemade law
Sources of English Law
Statutory
Interpretation
Judicial rules of
interpretation
Intrinsic and
extrinsic aids
Judicial
presumptions
Case law
Judgemade law
Sources of English Law
Judicial Rules of Statutory interpretation
• There are a number of rules that judges may apply
in interpreting difficult legislation:
i) literal rule
ii) golden rule
iii) mischief rule
iv) contextual rule
• The more modern “purposive approach” is also
used, reflecting the way judges in the ECJ interpret
EU laws.
Case law
Judgemade law
Sources of English Law
The literal rule
• A literal rule approach requires the court to take
words at their face value where there is no
ambiguity and the meaning is clear, even if this
produces an absurd result.
• The justification for using this approach is that it is
up to Parliament, as opposed to the courts, to
correct any inappropriate parts of a statute.
Case law
Judgemade law
The literal rule
Fisher v Bell (1960)
Facts: the defendant shopkeeper
displayed a flick knife in his shop
window and was charged with
offering for sale an offensive weapon
in breach of the Restriction of
Offensive Weapons Act 1959, s1(1).
Held: he was not guilty because in
contract law a display of goods in a
shop window is not an ‘offer’. It is a
pre-offer, called an ‘invitation to treat’.
Case law
Judgemade law
Sources of English Law
The golden rule
• The golden rule allows the courts to modify the
literal meaning of the words in order to avoid
any absurdity or inconsistency that would result
from a literal approach.
Case law
Judgemade law
The golden rule
Adler v George (1964)
Facts: The defendant, a CND demonstrator was charged
under the Official Secrets Act 1920 with obstruction in
“the vicinity of a prohibited area”; she argued that she
was not guilty of the offence because she was in the
prohibited area, rather than near it.
Held: to dismiss the charge on the basis of a literal
interpretation would produce an absurd result, vicinity
must be interpreted as including the place itself.
Case law
Judgemade law
Sources of English Law
The mischief rule
• Under the mischief rule, the court examines the
law before the Act to discover the problem
(mischief) which the statute was intended to
correct.
• The rule dates from the 16th century but fell into
disfavour with the rise of the literal rule which
dominated judicial decision making for many
years.
Case law
Judgemade law
The mischief
rule
Corkery v Carpenter (1950)
Facts: The defendant was charged with being ‘drunk on
the highway in charge of a carriage’. He was in fact
wheeling a bicycle. Could the bicycle be a carriage?
Held: the court looked to see what problem the statute
was intended to prevent, i.e. people being drunk in
charge of vehicles, and decided that a ‘carriage’ could
be interpreted as including a bicycle.
Case law
Judgemade law
Sources of English Law
The contextual rule
• Under the contextual rule, any disputed words are
interpreted within the context of the statute as a
whole.
• Words that have vague or multiple meanings on their
own may become much clearer if read in context.
• E.g. if the statute referred to ‘other animals’ and the
phrase was preceded by the words ‘cats, dogs and
guinea pigs’, it would be reasonable to assume that
‘other animals’ referred to domestic pets as well.
Case law
Judgemade law
Sources of English Law
The purposeful approach
• The purposeful approach is similar to the mischief
rule, but broader in its effect.
• It has come into use since the UK’s entry into the EC.
The courts of other member states and the ECJ have
used this approach.
• The court is required to interpret the statute by
looking beyond its words to determine the general
purpose of the law.
• Extrinsic (outside) sources can be used to do this.
Case law
Judgemade law
Other tools of statutory interpretation
Intrinsic and extrinsic aids
• In addition to the rules above, judges can also use
intrinsic and extrinsic aids to help with statutory
interpretation.
• Intrinsic aids are found within the statute itself,
including interpretation clauses.
• Extrinsic aids are materials that are not part of the
statute itself.
Case law
Judgemade law
Extrinsic aids include:
• The Interpretation Act 1978. This gives guidance on terms
and phrases commonly found in legislation.
• Reports of the Law Commission as to why the legislation
is needed.
• Parliamentary reports. Until 1993 the courts refused to
admit evidence from the Hansard reports of
parliamentary proceedings relating to the passage of the
statute. Following the case of Pepper v Hart (1993),
Hansard can now be consulted in certain circumstances
where there is ambiguity.
www.socrative.com: group work
A fictional example
The No Junk Food in Schools Act 2017 has just come into
force. Section 1 states:
“School canteens are prohibited from offering for sale
packets of sweets to their students.”
The refectory at St Olaf’s continues to sell large buckets
of Maltesers to its pupils, claiming that:
- Maltesers are not classed as a ‘sweet’;
- They are sold in buckets, not packets; and
- Displaying them on the shelves is not an ‘offer’ in
contract law.
What tools of statutory interpretation might a judge use
if this matter reaches court?
Case law
Judgemade law
Sources of English Law
Statutory
Interpretation
Judicial rules of
interpretation
Intrinsic and
extrinsic aids
Judicial
presumptions
Case law
Judgemade law
Other tools of statutory interpretation
Judicial Presumptions
In the absence of clear evidence to the contrary the
courts will make a number of presumptions about a
statute, including:
(i) It applies to the whole of the UK
(ii) It does not breach any of the UK’s international
agreements.
(iii) It does not repeal earlier Acts of Parliament.
Case law
Judgemade law
Other tools of statutory interpretation
Judicial Presumptions continued:
(iv) It does not impose strict liability, (strict liability
means that it is not necessary to prove that the
accused intended to commit the offence);
(v) It does not operate retrospectively, i.e. be said to
apply to offences committed before the statute came
into force;
(vi) It does not change the common law.
Case law
Judgemade law
Judicial
presumptions
Sweet v Parsley (1969)
Facts: Miss Sweet let out a house which was raided by
police, who found cannabis in the possession of the
tenants. Miss Sweet was charged with a statutory
offence of ‘being concerned in the management of
premises’ where drugs were found.
Held: The court presumed that the statute did not intend
to impose strict liability, i.e. Miss Sweet could not be
guilty if she did not intend to commit the offence.
Case law
Judgemade law
Sources of English Law
It is necessary to consider two aspects of case
law:
(i) The tools that judges use for statutory
interpretation; and
(ii) The law of binding precedent.
Case law
Judgemade law
Sources of English Law
The law of binding precedent:
• Judges are bound by the law of binding precedent. It is
also known as ‘stare decisis’ (to stand by decisions).
• This is a distinctive feature of the English Legal System.
• In mainland European countries, judges’ decisions are
persuasive, but are not binding.
• Under English law, a judge may be bound by a decision
reached in a previous case.
Case law
Judgemade law
Sources of English Law
When is a previous decision binding?:
Two factors are crucial in determining if a previous
judicial decision is binding:
1. The position in the court hierarchy of the court
which made the previous decision in relation to
the court hearing the current case; and
2. whether the facts or point of law of the current
case come within the scope of the previous
decision, or are they sufficiently different?
SUPREME COURT
Can depart from its previous decisions but does so sparingly in order to prevent
injustice or the proper development of the law
COURT OF APPEAL
CRIMINAL DIV: bound by
decisions of the SC and
binds all criminal courts
below. May depart from its
own decisions if in the
interests of justice.
CROWN COURT bound
by decisions of higher
courts
MAGISTRATES’ bound by
decisions of higher courts
COURT OF APPEAL CIVIL DIV: bound by the
decisions of the SC and binds all the civil courts
below. May depart from its previous decisions if
those decisions in conflict with each other or a SC
decision, or if previous decision failed to consider
relevant statute or case law (Decided per incuriam).
HIGH COURT
DIVISIONAL
COURTS bound by SC
and CA decisions and
its own decisions are
binding on those
courts from which they
hear appeals.
HIGH COURT: bound
by decisions of SC, CA,
their own Divisional
Courts, but not by the
decisions of fellow
judges. High Court
decisions binding on
lower courts.
COUNTY CTS: bound by decisions of higher courts
Case law
Judgemade law
When is a previous decision
binding?:
• In addition to the court hierarchy, it is necessary to
consider whether the facts, or the point of law, in a
current case come within the scope of a previous
decision.
• If a new case can be distinguished from a previous
decision, the previous decision is not binding.
• A case can be distinguished if its facts are materially
different from an earlier case, or because a point of
law is not the same as the earlier case.
Case law
Judgemade law
Ratio Decidendi and Obiter Dicta
Ratio Decidendi
• The legal reasons vital to a judge’s decision are
know as the ‘ratio decidendi’, a Latin phrase
meaning the ‘reasons for deciding’.
• It is this part of the judgment that will bind
future courts when deciding later cases with
similar facts.
Case law
Judgemade law
Ratio Decidendi and Obiter Dicta
Obiter dicta
• A judgment may also include comments on the
law which are related, but not strictly relevant,
to the case before the judge.
• These statements are called ‘obiter dicta’, a Latin
phrase meaning ‘things said by the way’.
• Obiter dicta does not bind a judge in a later
case, but it is often persuasive.
• Some important principles of law have
originated from obiter dicta.
Case law
Judgemade law
Advantages and Disadvantages of
Precedent
Advantages
Disadvantages
Certainty – a party can be given
accurate advice about the likely
outcome.
Rigidity – certainty is preserved by
rules which may inhibit the
development of the law.
Speed – the law can be developed
without waiting for Parliament to
legislate in a new area.
Undemocratic – the development of
the law by judges, who are not
elected, can be seen to conflict with
parliamentary sovereignty.
Flexibility – judges can distinguish
cases on their facts or on points of
law. A higher court can overrule
principles of law set down in earlier
cases.
Haphazard development of the law
– a change in the law depends on a
case with relevant facts reaching the
appropriate court.
Sources of English Law
• A source of law means the process by which
law comes into existence.
Legislation
Law made by
Parliament or
authorised by
Parliament
Case law
Judgemade law
Custom
Sources
of law
European
Law
Custom
Sources of English Law
• Now a minor source of English law.
• Some customs relate to a particular area, and
others relate to a trade or commercial
practice.
• For a local custom to be legally enforceable, it
must be confined to a particular area and have
been in existence since ‘time immemorial’
which means 1189!
Custom
Sources of English Law
• E.g. New Windsor Corporation v Mellor (1974)
The local authority was prevented from building
on land as the local people could prove that
there was a custom “since time immemorial”
that local people had the right to use the land
for lawful sports.
Sources of English Law
• A source of law means the process by which
law comes into existence.
Legislation
Law made by
Parliament or
authorised by
Parliament
Case law
Judgemade law
Custom
Sources
of law
European
Law
European
Law
Sources of English Law
A brief history of the European Union
https://www.youtube.com/watch?v=XgnXwrsMBUs
European
Law
Sources of English Law
• The UK joined the EU in 1973.
• To enable EU law to become part of English law,
Parliament passed the European Communities Act 1972.
• In the event of a conflict between EU law and English
domestic law, EU law takes precedence.
• On 23rd June 2016, the UK voted to leave in the EU
following a referendum on the subject.
• ‘BREXIT’ has not happened yet, but is likely to take place
before 2020.
European
Law
Institutions of the EU
EU Institutions
European
Council
Council
of EU
European
Parliament
European
Commission
ECJ
European
Council
Institutions of the EU
• The European Council is made up of heads of
state or government (i.e. presidents and
prime ministers) of each Member State, plus
the president of the European Commission.
• Meets about 4 times a year to review and
agree overall policy.
Council
of EU
Institutions of the EU
• The Council of the EU is the main decision
making body of the EU.
• Meetings are usually held in Brussels and
attended by a minister from each Member
State.
• The Presidency of the Council of the EU is
changed every six months.
Council
of EU
Institutions of the EU
The Council of the EU has 6 key responsibilities:
1. Passing EU laws (often jointly with the
European Parliament).
2. Approving the EU’s budget (jointly with the
European Parliament).
3. Concluding international agreements between
the EU and other countries.
4. Co-ordinating economic policies of Member
States.
Council
of EU
Institutions of the EU
5. Developing the EU’s common foreign and
security policy.
6. Co-ordinating co-operation between the
national courts and police forces.
European
Parliament
Institutions of the EU
• The European Parliament is made up of 751
elected MEPs.
• Parliament sits in Strasbourg and sometimes in
Brussels.
European
Parliament
Institutions of the EU
The European Parliament has 3 key responsibilities:
1. It passes the majority of European laws (jointly
with the Council of the EU).
2. It monitors and supervises the work of other
European institutions, such as the European
Commission and the Council of the EU.
3. It approves the EU’s budget (jointly with the
Council of the EU).
European
Commission
Institutions of the EU
• The European Commission is the executive of the
EU, and is independent of national governments.
• Its role is to represent the interests of the EU as a
whole.
• There is one Commissioner from each Member
State.
• The Commission proposes legislation to the
European Parliament and the Council of the EU.
• The Commission must ensure treaty obligations
of Members are met.
European
Commission
Institutions of the EU
E.g. Commission of the European Communities v
United Kingdom 2006
• The Commission took the UK to the Court of
Justice for failing to fully implement the Working
Time Directive.
• The ECJ held that the UK had failed to fulfil its
obligations under the Directive, and the UK
changed its laws accordingly.
European
Law
Institutions of the EU
EU Institutions
European
Council
Council
of EU
European
Parliament
European
Commission
ECJ
ECJ
Institutions of the EU
• The Court of Justice (ECJ)
sits in Luxembourg.
• The ECJ has hears two types of case:
(i) Direct Actions: these are cases that commence
in the ECJ and often involve alleged breaches
of EU legal obligations. The cases are brought
by EU institutions, Member States or
individuals.
ECJ
Institutions of the EU
(ii) Preliminary rulings: the ECJ is called upon to
interpret any point of EU law referred by the courts
of Member States. It is mandatory for the highest
appeal court of any Member State to make a
referral, if the meaning of a principle of EU law is
unclear.
ECJ
Preliminary rulings
Case is before an English
Court
The hearing is continued
in the English court
using the interpretation
given by the ECJ
The English Court
requests a preliminary
ruling from the ECJ
ECJ gives its ruling to the
English Court
ECJ
Institutions of the EU
A brief tour of the ECJ:
https://www.youtube.com/watch?v=KIa47M8rSfM
Sources of EU law
There are a number of different sources of EU law:
Sources of EU law
Primary
Treaties
Secondary
Regulations
Directives
Decisions
Treaties
Sources of EU law
• The primary source of EU law is the treaties made
between Member States.
• Once a treaty is signed it does not automatically
become part of UK law, but must be incorporated
into and Act of Parliament.
• Important treaties include:
– Treaty of Rome 1957 (Set up the EU)
– Treaty of Amsterdam 1997 (defined EU citizenship
and individual’s rights in terms of justice, freedom and
security.)
– Treaty of Nice 2003 (prepared for EU enlargement)
Regulations
Sources of EU law
• Regulations are intended to impose uniformity of
law throughout the EU.
• They are binding on Member States and legally
enforceable from their creation.
• Member State do not have to pass their own
domestic laws to bring them into force.
Directives
Sources of EU law
• Directives comprise the most prolific source of EU
law.
• Directives are statements of policy that require
Member States to alter their domestic laws so
that they conform to the directive within a
specified time limit.
• E.g. the Working Time Directive.This was
implemented into UK law as the Working Time
Regulations.
Decisions
Sources of EU law
• An issue may be brought before the European
Council or Commission for consideration.
• The decisions of these institutions are binding on
the state or persons to whom they are addressed,
but are not binding on any other state or person.
LEGAL IMPLICATIONS
Sources of English Law
• A source of law means the process by which
law comes into existence.
Legislation
Law made by
Parliament or
authorised by
Parliament
Case law
Judgemade law
Custom
Sources
of law
European
Law