Corporate and Business Law (ENG)

2 Designed to give you knowledge and application of: Section A: Essential elements of the legal system A1. Court structure A2. Sources of law A3. Human rights

3 Learning Outcomes A2: Sources of law  What is case law & precedent within the context of the hierarchy of the courts.  Legislation & evaluate delegated legislation.  Illustrate rules & presumptions used by the courts in interpreting statutes.

4 What is case law & precedent within the context of the hierarchy of the courts? In law, a precedent is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts Types of precedent Binding precedent Persuasive precedent Decisions of higher courts which are binding on lower courts Decisions of lower courts which are persuasive but are not binding on higher courts  Ratio Decidendi: The principles of law applied by a court upon which a judicial decision is based & a particular case is decided which creates the precedent.  Obiter Dictum: Words said by a judge in relation to a legal point but not constituting part of the decision. Not binding on future judges and thus persuasive in nature.  Material facts: For a precedent to be binding on a judge in a later case, the material facts of the previous case and the new case must be similar.

5 1. The Supreme Court Occupies highest position in English court structure. Decisions taken are obligatory for all courts below it in the hierarchy. 2. The Court of Appeal All decisions taken by this court are mandatory on all courts except for the House of Lords. It is bound by previous decisions of the House of Lords & its own previous decisions. 3. Divisions of High Court Bound by the doctrine of stare decisis in the normal way & must follow decisions of the Supreme court & the Court of Appeal. 4. The High CourtBound by the decisions of superior courts. Decisions by individual High Court Judges are binding on courts inferior in the hierarchy. 5. Other CourtsOther Courts such as County Courts, Crown Courts and Magistrates’ Courts cannot create precedent & their decisions can never amount to more than persuasive authority. Overruling: A court higher up in the hierarchy sets aside a legal ruling established in a previous case Distinguishing: Occurs when a later court regards the facts of the case before it as significantly different from the facts of a cited precedent Nature of precedent

6 Explain legislation and evaluate delegated legislation Legislation is law which has been enacted by a legislature or other governing body. In the UK, there are two ways to pass legislation:  As Acts of Parliament  As delegated legislation Delegated legislation (DL): The law made by an executive authority acting under powers given to them by primary legislation in order to implement and administer the requirements of various Acts. Remember, unlike primary legislation, delegated legislation may be questioned by the courts An Act of Parliament may be passed  To create new law  To authorise taxation every year  To codify existing law  To consolidate existing statutes Continued …

7 Advantages of DLDisadvantages of DL DL saves time of parliament as it allows it to concentrate on board issue of policy than masses of detail. Unconstitutional key issues & regulations are prepared without sanction of person in authority. Expert knowledge allows technical matters to be determined by those competent to do so. As these laws are published in large volume there is lack of knowledge of laws & publicity. Flexibility as the ministers can respond to particular problem on ad hoc basis. Loss of accountability & control takes place when too much of power is given to un-elected individuals. Speed i.e. rapid action can be taken in case of emergency. Efficient adaptation can take place if there are any changes in regulations. Orders in council: prepared by government & approved by the privy council Types of delegated legislation Statutory instruments: rules, regulations, orders Bye-laws: prepared by local bodies & binding upon all persons in that area Rules: court rule committees have power to make rules Regulations professional body is allowed to turn its regulations governing a particular function into laws Continued …

8 Judges assign meanings to ambiguous words in the statute. This process is called interpretation of statutes Interpretation of statutes Aids to Interpretation Legislation itself can be an aid to interpretation Existing judicial Precedents Use of Oxford English Dictionary The Human Rights Acts1978 Heading and side notes Code of Practice Literal Rule Contextual Rule Rules used by the courts to interpret statutes Golden Rule Eiusdem Generis Rule Mischief Rule Expressio unius est exclusio alterius rule

9 Guilty intention must be proved for imposition of criminal liability Presumptions of statute interpretation No alteration in common law No fault no penalty Acts only apply to the UK Statue does not bind the crown No violation of international law Acts do not interfere with rights to private property Statute does not have retrospective effect Refer to Test Yourself 2 (page 24) Presumptions of statute interpretation

10 Recap  What is case law & precedent within the context of the hierarchy of the courts.  Legislation & evaluate delegated legislation.  Illustrate rules & presumptions used by the courts in interpreting statutes.

11 A3: Human rights  Concept of human rights as expressed in the Human Rights Act, [2]  The impact of human rights law on statutory interpretation. [2]  The impact of human rights law on common law. [2] Learning Outcomes

12 The concept of human rights as expressed in the Human Rights Act (HRA), 1998 Human Rights:  Are universal & inherent.  Are equal for all citizens. Cultural or economic differences, nationality and ethnicity do not affect them.  Are the inbuilt rights of every individual & include the basic & fundamental right to life. Human Rights in the UK Right to life Right to respect private & family life No punishment without law Freedom of expression Freedom of thought conscience & religion Right to a fair trial Freedom of assembly & association Right to liberty & security Prohibition on slavery & forced labour Right to marry & found a family Right on discrimination Prohibition on torture Continued …

13  The Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice.  Requires that UK judges take account of decisions of the Strasbourg court, and to interpret legislation in a way which is compatible with the Convention.  However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, judges are not allowed to override it. They can issue a declaration of incompatibility.  This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty.  The HRA may be repealed or amended at any time with a simple majority vote in the Parliament.  An individual can take his case to the Strasbourg court as the last resort. Impact of human rights law on statutory interpretation: Judges must interpret legislation as far as possible in a way that is compatible with the Convention Rights. Continued …

14 Recap  Concept of human rights as expressed in the Human Rights Act,  The impact of human rights law on statutory interpretation.  The impact of human rights law on common law.