Sources of English Law Unit 2

Part One: Preview Source of law (fons iuris) Sources of English law Custom Common law Equity Statute law Delegated legislation European Convention of Human Rights European law

Source of law (fons iuris) Something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions A point of origin for law or legal analysis

Source of English law The law of England and Wales has developed very gradually over the centuries. Methods of developing law - referred to as sources of law. A source of law can also be defined as the origin of law, or the basis of law.

Sources of English law Historically, the most important sources of English law: customs and decisions of judges. 18th and 19th centuries, Acts of Parliament became the main source of new laws, although judicial decisions were still important as they interpreted the law passed by Parliament and filled in gaps where there was no statute law. 20th century: three new sources of law became increasingly important: delegated legislation, EU law, and the European Convention on Human Rights.  

Custom Custom - no longer an important source of law in its own right, although much of the early common law developed through the application of customs. Customs: rules of behaviour which develop in a community without being deliberately created. Two main types of custom: general customs and local customs.

General customs - important because they constituted the basis of common law. Following the Norman Conquest (1066) (as the country was gradually brought under centralised government) the judges who were appointed by the kings to travel around the country based at least some of their decisions on the common customs. General customs have long since been absorbed into legislation or case law and are no longer a creative source of law.

Local customs a situation where a person claims that they are entitled to some local right, such as a right of way or a right to use land in a particular way, because this is what has always happened locally. Such customs are an exception to the general law of the land, and will only operate in that particular area. Although customs may develop, they are not part of the law until recognised by the courts; it is the judges who decide which customs will be recognised as enforceable at law.

Common law The legal system in England and Wales could not rely only on customs. Even in Anglo-Saxon times there were local courts which decided disputes, but it was only after the Norman Conquest in 1066 that a more organised system of courts emerged. The first Norman king, William the Conqueror, set up the Curia Regis (the King's Court) and appointed his own judges. The nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.

Common law In addition to the central court (Curia Regis), the judges were sent to major towns to decide any important cases. Thus judges travelled from London all around the country. In the time of Henry II (1154-89) these tours became more regular and the King divided up the country into 'circuits' or areas for the judges to visit.

Common law Similar cases were decided in similar ways, and decisions of royal judges were held in great esteem by local judges. Lower courts gradually became bound by decisions of higher courts. This had the effect that the law became uniform or 'common' through the whole country, and it is from here that the phrase 'common law' developed.

Equity Equity was historically an important source of law and it still plays a part today. The word 'equity' means 'fairness', and this is the basis on which it operates.

Equity Equity developed because of problems in the common law. The basic principle underlying the early development of the common law was that a right only existed if there was a procedure for enforcing it (ubi remedium ibi ius), and this is why English substantive law became inextricably bound up with procedure. The law was very technical; if there was an error in the formalities the plaintiff would lose the case.

Equity Another problem was the fact that the only remedy the common law courts could give was 'damages' – an order that the defendant pay a sum of money to the plaintiff (now claimant) by way of compensation. In some cases this would not be the best method of putting matters right between the parties.

Equity People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the king's Chancellor. The Chancellor based his decisions on principles of natural justice and fairness, making a decision on what seemed 'right' in a particular case.

Equity To ensure that the decisions were 'fair' the Chancellor developed new remedies which could compensate plaintiffs more fully than the common law remedy of damages. The main equitable remedies were: injunctions, specific performance, rescission, and rectification. These are all still used today.

Equity Eventually a Court of Chancery under the control of the Chancellor came into being which administered equity. Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law.

Common law and equity The two systems of common law and equity operated separately, and this overlapping of the two systems could easily lead to conflict between them. Under the Judicature Acts 1873-75, with the establishment of the High Court of Justice to administer both common law and equity, the Court of Chancery was abolished (though much of its work is still carried out by the Chancery Division of the High Court). The Judicature Acts also provided that in cases in which there is a conflict between the rules of common law and equity, the rules of equity would prevail.

Statutory law Statutary law is law passed by Parliament. In today's world there is often a need for new laws to meet new situations. The method of judicial law-making through precedents is not suitable for major changes to the law, nor is it a sufficiently quick, efficient law-making method for a modern society. The other point to be made is that judges are not elected by the people, and in a democracy, the view is that laws should only be made by the elected representatives of society.

Statutory law The main legislative body in the United Kingdom is Parliament. Laws passed by Parliament are known as Acts of Parliament or statutes, and this source of law is referred to as statute law. About 60 to 70 Acts are passed each year.

Delegated legislation In addition to Parliament enacting law, legislative power is delegated to government ministers and their departments to make detailed rules and regulations, which supplement Acts of Parliament. These regulations are delegated legislation and are called statutory instruments. Unlike primary legislation, the validity of delegated, or secondary, legislation may be challenged in the courts if the maker has acted beyond the powers (ultra vires) given by the parent Act.

The European Convention on Human Rights UK -one of the first signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, which is usually referred to as the European Convention of Human Rights (ECHR). This Convention is a treaty of the Council of Europe.

The European Convention on Human Rights The ECHR was incorporated into English law by the Human Rights Act in 1998.   By this Act the English courts must take into account any judgment or advisory opinion of the European Court of Human Rights. The Act requires that courts seek to interpret and apply primary and delegated legislation in a way which is compatible with the Convention Rights.

European law On 1 Jan. 1973 the UK joined what was then the European Economic Community, and another source of law came into being: European law. Over the years it acquired increasing significance as a source of law. After the withdrawal from the EU in 2016 (Brexit), this source of law will cease to apply to the UK.

More about sources of English law… Common law Vs Statutory Law & Common law ... – YouTube https://www.youtube.com/watch?v=iUCepIy2UUI Common law vs. equity | TransLegal

Complete the following table : SOURCE OF LAW CHARACTERISTICS General customs   Local customs Common law Equity Statute law Delegated legislation ECHR EU law

Answer the following questions: 1. What are the main sources of English law? 2. What is the difference between local custom and general custom? 3. What is the difference between common law and customary law? 4. Why did equity develop? 5. What are the main equitable remedies? 6. Who creates precedents and who passes laws?

Answer the following questions: 7. What are statutory instruments? 8. What is the difference between primary and secondary legislation in terms of validity? 9. When and how was the European Convention of Human Rights incorporated into English law? 10. What does the Human Rights Act (1998) require? 11. When did the UK join the European Economic Community?

Match the terms with their definitions 1.circuit A Disagreement or argument between parties 2.damages B A person who starts an action against someone in the civil courts 3. delegated legislation C. A court order telling someone to stop doing something or not to do something 4.dispute D. One of six divisions of England and Wales for legal purposes 5.injunction E Legislation which has the power of an Act of Parliament but which is passed by a minister to whom Parliament has delegated its authority 6. legislation F Money awarded by a court as compensation to a plaintiff (claimant) 7. plaintiff G. The set of laws that have been passed by Parliament and are implemented by the courts

Match the terms with their definitions 8. rectification A An international agreement 9. rescission B-. A rule, order, or administrative regulation having the force of law promulgated by the crown in council, a minister, a local authority, a corporation or other body under power delegated by Parliament 10. specific performance C. In English law, the power of the courts to correct a document that has been drawn in such a way that it incorrectly reflects the intention of the parties 11. statutory instrument D. A cancellation of a contract 12. statute E.A court order to a party to carry out his or her obligations in a contract 13. treaty F. An Act of Parliament

Fill in the missing words: administration common Conquest courts customs decisions judicial royal courts Definitions of common law: 1. The part of English law based on rules developed by the _______ during the first three centuries after the Norman ________ (1066) as a system applicable to the whole country, as opposed to local _________ . The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central __________. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. Under Henry II (reigned 1154-89), to whom the development of the ___________ law is principally due, the royal representatives were sent out on a regular basis (their tours were known as circuits) and their functions began to be exclusively ___________. Known as 'travelling judges', they took over the work of the local courts. To this day High Court judges still sit in London for part of the year and then travel the country to hear cases in much the same way as they have done for centuries. 2.  Rules of law developed by the __________as opposed to those created by statute. 3. A general system of law deriving exclusively from court ________.

Part Two: Statutory Interpretation Preview Approaches to statutory interpretation Aids to interpretation Rules of interpretation Cases: Davis v. Johnson (1978) and Pepper v Hart (1992)

Statutory interpretation Approaches to judicial interpretation Many cases heard by the highest courts involve the meanings of words in a statute or delegated legislation. There is a major debate as to whether judges should interpret legislation so as to give effect to the intention or purpose of that legislation (purposive approach), or whether judges should take the words at their literal meaning (literal approach).  

Rules of interpretation The courts developed three rules of interpretation: Literal Rule uses the ordinary, literal meaning of the words (Whitely v Chappel 1868); Golden Rule is used to avoid literal approach in cases where the application of the literal rule would result in absurdity (R v. Allen 1872). Mischief Rule is used where the court takes into consideration the gap or ‘mischief’ in the law that the Act was passed to cover. It was first applied in Heydon’s case (1584).  

Literal rule Whitely v Chappel (1868) LR 4 QB 147 A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. Held: The literal rule was applied and the defendant was thus acquitted.

Golden rule R v Allen (1872) LR 1 CCR 367 The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage. Held: The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.  

Mischief rule Heydon's Case [1584] EWHC Exch J36 In an action determining the validity of a lease the court formulated the mischief rule. In applying the mischief rule the court must discern and consider: 1. What was the common law before making the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What was the remedy Parliament passed to cure the mischief? 4. What was the true reason for the remedy? The role of the judge is to suppress the mischief and advance the remedy.

Aids to interpretation Intrinsic aids to statutory interpretation are the parts of the Act which may help to clarify the meaning of a particular section. Extrinsic aids are sources outside the Act which may be consulted by the courts (e.g. dictionaries, previous Acts of Parliament, earlier case law, Hansard)

Rules of interpretation Rules that help interpret certain formats of words are: 1) Eiusdem generis: where a list of words is followed by general words, then the general words are limited to the same kind of items as those in the list. For instance: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation. 2) Expressio unius est exclusio alterius - the mention of one thing excludes another. 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. For example, if a statute refers to lions and tigers it only refers to lions and tigers and will not include leopards or any other wild animals. 3) Noscitur a sociis - a word is known by the company it keeps. Words must be looked at in their context. For example, food supermarket indicates that food supermarket in the lease means a supermarket limited to the selling of items of food.

Domestic Violence and Matrimonial Proceedings Act 1976 1976 CHAPTER 50 An Act to amend the law relating to matrimonial injunction; to provide the police with powers of arrest for the breach of injunction in cases of domestic violence; to amend section 1(2) of the Matrimonial Homes Act 1967; to make provision for varying rights of occupation where both spouses have the same rights in the matrimonial home; and for purposes connected therewith. [26th October 1976]

Read extracts from the judgment in Davis v Read extracts from the judgment in Davis v. Johnson and explain which problem related to judicial interpretation was discussed. The case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act of 1976.The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates.  At the Court of Appeal Lord Denning referred to Hansard (transcripts of Parliamentary debates) stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords restated the rule that Hansard must not be referred to. Here are some opinions of judges related to this issue:

Davis v Johnson [1978] 2 WLR 553 House of Lords Lord Kilbrandon: "It has always been a well-established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose."

Davis v Johnson [1978] 2 WLR 553 House of Lords Lord Scarman:"There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of Parliamentary and ministerial utterances can confuse by its very size. Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes."

Davis v Johnson [1978] 2 WLR 553 House of Lords Viscount Dilhorne: "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment."

Pepper v Hart [1992] 3 WLR 1032 House of Lords The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. A teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave this exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard (See Davis v Johnson).The House of Lords had to decide whether a teacher at a private school had to pay tax on the bonus he received in the form of reduced school fees.

Pepper v Hart [1992] 3 WLR 1032 House of Lords Held: The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the bonus he received.

Pepper v Hart [1992] 3 WLR 1032 House of Lords Lord Griffiths on the purposive approach: "The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted."

Pepper v Hart [1992] 3 WLR 1032 House of Lords Lord Brown Wilkinson: „My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria."

Statutory interpretation https://www.youtube.com/watch?v=J-zfYF24NRw https://www.youtube.com/watch?v=p99R57M7L4E

. Research  1. Find out more about the cases mentioned in the text. Choose one and write a summary or prepare a presentation about it. 2. Find any other case involving judicial interpretation and present it in class