Second-Year Law – Class 3 Sources of law (2) Second-Year Law – Class 3

This semester’s syllabus

Reminder: remedial courses Starting on Week 4, they will be held every other Tuesday at 12:30 in room 302.  L2-M1  weeks 4, 6, 8, 10 et 12 (Mrs. Perche). L2-L3  weeks 5, 7, 9, 11 et 13 (Mrs. Mendes-France). If interested, email emilie.perche@u-paris2.fr or margot.mendes-france@u-paris2.fr

The sources of English and welsh law Common Law Legislation European Union Law Custom

Custom Custom refers to “what has always been done and accepted by law.” 1189 was the beginning of the reign of Richard I, and is considered the beginning of time immemorial (ancient beyond memory or record). In law, it means that a property or benefit has been enjoyed for so long that its owner does not have to prove how they came to own it. The most common claim in recent times, is for customary rights to moor a vessel. The mooring must have been in continuous use for "Time Immemorial" which is defined by legal precedent as 12 years (or 20 years for Crown Land).

legislation We distinguish between primary legislation (statutes/acts of Parliament) and secondary/delegated legislation (detailed changes to the law made under powers from an existing act of Parliament; they are usually drafted by the legal office of the Government Department concerned, mostly through statutory instruments). Over 3,000 SIs are produced each year and on average Parliament scrutinizes about 1,200 of them. A range of factors – the expansion of the regulatory state, the wide range of social security provisions, the rapidly changing nature of technology, the growth in EU legislation – have all contributed to a significant increase in the volume, technicality and complexity of delegated legislation in recent years. Since 1950 the House of Commons has rejected just 11 instruments and the House of Lords has rejected 7. This equates to 0.01% of the total SIs considered.

From bill to law Short videos

Questions 1. A bill must pass through both the House of Commons and the Lords. TRUE 2. Only a Member of Parliament can propose a bill. FALSE 3. Detailed examination of a bill is usually undertaken by a special committee. TRUE 4. MPs and Lords get to vote once only on a bill. FALSE 5. The passage of a bill follows the same steps in the House of Commons as it does in the Lords. TRUE 6. Royal Assent is the final step before a bill becomes law. TRUE

On the brexit bill House of Commons: 494 – 122. David Davis, the Brexit Secretary, said: “We’ve seen a historic vote tonight – a big majority for getting on with negotiating our exit from the EU.” MPs rejected no fewer than nine attempted amendments, including one to guarantee the future rights of EU nationals, which means a ‘clean’ Bill will go to the upper chamber. Shadow business secretary Clive Lewis resigned from the front bench. He became the fourth shadow Cabinet member to walk out as Brexit continued to tear Labour apart. 52 Labour MPs defied their leadership and a three-line whip (instructions given to MPs by the leaders of their party telling them how to vote). The House of Lords is currently in recess; its first reading will be on February 20th. It will be harder for the unelected Lords – despite a strong Remain majority – to amend the Bill, because of a reluctance to take on elected MPs. The bill is now expected to be given royal assent on 7 March – allowing the Prime Minister to formally notify the EU that she is invoking Article 50 at an EU summit later that week.

European union law There are three main sources: primary legislation (treaties), secondary legislation (directives, regulations) and general principles (fundamental rights, subsidiarity…). Directives and regulations: both are binding on member states; regulations have a direct effect whereas directives must be implemented through national law. Decisions of the European Court of Justice: they are binding on those to whom they are addressed. Recommendations/opinions: they have persuasive force. Costa v. Enel (1964): landmark decision of the European Court of Justice; it established the supremacy of European Union law over the laws of its member states.

UK Sovereignty and the eu When the Parliament passed the European Communities Act 1972 it implicitly recognised the primacy of EU law over UK law - a principle that over the following decades was deepened and extended by the decisions of the EU’s top court, the European Court of Justice (ECJ). EU law now takes precedence unless Parliament expressly says this is not the case or British courts believe that the EU has exceeded its powers. A 2010 House of Commons Library study estimates that 14 to 17 per cent of UK law is derived from EU membership, and 50 per cent of UK legislation with “significant economic impact” originates from EU legislation.

Brexit consequences What would Brexit mean for British sovereignty? The Telegraph (Online article) Agriculture and Fisheries Justice and Home affairs European Convention on Human Rights Immigration Welfare and social Europe Trade and Investment

the European convention on human rights The European Convention on Human Rights (1953) is an international treaty to protect human rights and fundamental freedoms in Europe. All Council of Europe member states are party to the convention, which is upheld by the European Court of Human rights in Strasbourg (its decisions are binding on the states). Leaving the ECHR is a central aspect of May’s 2020 election campaign. The main criticism is that it prevents dangerous foreign criminals and terrorists being tracked and deported. 

Brexit The House of Commons on February 1st approved HC Bill 132, which empowers Prime Minister Theresa May to notify the EU of the UK's intent to withdraw. Known as the "European Union (Notification of Withdrawal) Bill," the legislation would confer power onto the prime minister to initiate Brexit pursuant to Art. 50 of the Lisbon Treaty. The bill enjoyed support from Labour as well as the Conservative government, and passed 498 to 114. While UK citizens voted to leave the EU in a June 2016 referendum, a vote before parliament was required by a Supreme Court decision in January 2017. Provided the bill progresses through the House of Lords, May will have the power to initiate the exit at the time of her choosing, though she has stated her intention to commence the process by March 31. Though many questions remain as to how Brexit will be initiated and what the cost will be to the UK economy, May's administration has remained committed to the nation's exit from the EU. May took power this summer after former prime minister David Cameron, who supported remaining in the EU, resigned. Despite calls for a second referendum and movements for independence within the constituent nations of the UK, the movement remains on track.

Comprehension of the facts – exercises 1 & 2 1. Common law is sometimes referred to as ‘judge-made’ law. 2. The decisions of judges are recorded in law reports. 3. The legal doctrine of stare decisis (or precedent) establishes that a court is bound by the legal principles laid down by higher courts. 4. The Court of Chancery created a body of law known as equity. Parliament can: 1. pass an Act. 2. enact a new statute. 3. amend existing legislation. 4. repeal obsolete law. 5. consolidate statute law, case law, and amendments into one Act.

Comprehension of the facts – exercise 3 A: How is new legislation created? B: Initially the (1) bill has to be (2) read to both houses. The draft is (3) debated several times. A committee has the job of (4) scrutinizing each element of the Bill. After the Bill has passed through the second house, it is (5) returned to the originating house. A. Who does the (6) drafting of the legislation? B. It's done by qualified barristers employed as civil servants, known as Parliamentary Counsel. A. Who can (7) introduce Bills? B. Usually it's the government, though an MP might as well.

Grammar exercise 1. The law of equity has been developed over many centuries. 2. Law reports are used by lawyers to determine what the law is. 3. The doctrine of precedent means that like cases will be decided alike. 4. When principles of law are established, they operate both retrospectively and prospectively. 5. The law legalizing cannabis use had already been repealed by Parliament. 6. Custom is not very often referred to as a source of law these days. 7. The Convention on Human Rights was incorporated into English law by the Human Rights Act 1998. 8. The Supreme Court's earlier decision was not followed as it was distinguished on its facts. 9. The two bills were debated by Ministers of the Commons. 10. An EU directive was issued requiring that prisoners in the UK be given the right to vote.

Homework for next week Britain’s uncodified constitution Read the lesson (ps. 23-25) and learn the important words by heart. Answer the Comprehension of the Facts exercises B & C (ps. 27-28). Suggested presentation topics: - Texts 1, 2 or 3 - Quotes p. 28