Unit 7 The Sources of English Law English for Lawyers II Snježana Husinec, PhD., shusinec@pravo.hr

A brief history of the English legal system Think about the history of Britain. Do any of the following years/periods sound familiar? Would you be able to say why they are significant for the British history and the history of English law? Celtic Britain 600AD 1066 1215 1533 1651 1973

A brief history of the English legal system Celtic Britain Laws were passed by word of mouth and very cultural rather than there being any set system of law as we know it. 600AD During this time Britain is largely controlled by Rome. The laws were created by a Senate and they affected the whole Empire. 1066 Britain is conquered by the Normans who bring many new laws and customs to the country. During this time, the courts of the country and the judges travelled around and decided legal matters. 1215 The nobles of England force the King to sign the ‘Magna Carta’ or ‘Great Charter’. It took power from the King and gave some of it to the nobles and people. If the King broke the law he could be held accountable. No innocent man may be condemned without fair trial. 1533 Henry VIII forms the Church of England, dissolving the Catholic church and severing the country's ties with The Pope. This gives the King huge amounts of power and control. 1651 The English Civil War replaces the King and makes Parliament all powerful. From then on it is Parliament and not the crown which runs the country. 1973 Britain joins the EU. In doing so it surrenders Parliamentary sovereignty to Brussels. In certain areas the UK must follow the laws of the EU or leave the Union.

Sources of English law What type of legal system is the legal system of England and Wales? What are its main sources? Which of the sources of English law listed in the above table have historical importance? Which of them are still a creative/productive source of law? ANCIENT CUSTOMS JUDICIAL PRECEDENTS STATUTE LAW (Acts of Parliament) EQUITY DELEGATED LEGISLATION THE EUROPEAN CONVENTION ON HUMAN RIGHTS EUROPEAN LAW

Sources of English law Devide in groups of 7 people. Each person should study one source of English law and fill in one part of the table. Join back in groups and report on ¨your¨ source of law to the rest of the group.

Sources of English Law Source of law Characteristics CUSTOMS GENERAL CUSTOMS CUSTOMS = rules of behaviour which develop in a community without being deliberately created =those which extend over a state or kingdom; - constitute the basis of common law; - after 1066 judges based their decisions mainly on genral customs; - have been absorbed into legislation and case law; - no longer a creative source of law LOCAL CUSTOMS = local rights (eg. a right of way); - operate only in the particular area; - the judges decide which custom will be enforceable at law COMMON LAW = the part of law created by courts through decisions of judges; - emerged after the Norman Conquest; - judges started to travel around England and Wales and delivered judgements; - similar cases decided in similar ways; - lower courts gradually became boound by the decisions of higher courts uniform or ‘common’ law

Sources of English law Source of law Characteristics EQUITY = ‘fairness’- a paralel system of justice introduced to add or supplement common law in cases where they were too rigid to give justice; - based on principles of natural justice and fairness; - introduced by the king’s Chancellor; - introduced new equitable remedies; - Court of Chancery administered it; - in 19th century fused with common law; - a historically impotant source of law- not productive any more; - nowadays carried out by the Chancery Division of the High Court; - where conflict with common law – equity prevails STATUTE LAW = law passed by Parliament; - also called Acts of Parliament; - prevail over case law DELEGATED LEGISLATION = detailed rules and regulationa made by government ministers and their departments - legislative power delegated by Parliament; - supplement Acts of Parliament; - such rules are also called statutory instruments; - possiblity to challenge them in court (if made beyond power)

Sources of English law Source of law Characteristics The European Convention on Human Rights (ECHR) = a treaty enacted by the Council of Union safeguarding human rights; - incorporated into English law by the Human Rights Act in 1998; - English courts must apply judgments and advisory opinions of the European Court of Human Rights European law = the law enacted by the EU which became a new source of law when the UK joined the EU; - over years became increasingly significant; - after withrawal from the EU it won’t apply to the UK

2. STATUE LAW (Acts of Parliament) 4. COMMON LAW (judicial precedents) Hierarchy of sources EU law 2. STATUE LAW (Acts of Parliament) 3. EQUITY 4. COMMON LAW (judicial precedents)

Vocabulary practice I Do ex. IV and V on p. 55 – 56.

Vocabulary practice II Find in the text the English equivalents for the following terms and expressions. zakon koji donosi parlament = sudski presedan = podzakonski propisi = sudska praksa = precedentno pravo = pravno provedivo = pravični pravni lijek = ostvariti pravdu = naknada štete = sudska zabrana = izvršenje ugovora = delegirati zakonodavnu vlast = donijeti podzakonski akt = primarno zakonodavstvo =

Vocabulary practice II - key Find in the text the English equivalents for the following terms and expressions. zakon koji donosi parlament = ACT OF PARLIAMENT; a STATUTE sudski presedan = a JUDICIAL PRECEDENT podzakonski propisi = DELEGATED LEGISLATION sudska praksa = CASE LAW precedentno pravo = COMMON LAW pravno provedivo = ENFORCEABLE AT LAW pravični pravni lijek = EQUITABLE REMEDY ostvariti pravdu = to OBTAIN JUSTICE naknada štete = DAMAGES sudska zabrana = INJUNCTION izvršenje ugovora = SPECIFIC PERFORMANCE delegirati zakonodavnu vlast = to DELEGATE LEGISLATIVE POWER donijeti podzakonski akt = to PASS A STATUTORY INSTRUMENT primarno zakonodavstvo = PRIMARY LEGISLATION

Vocabulary practice III Complete the following passage . For each blank space choose the correct word from the list below. Use each word once only. The Importance of Legislation as a Source in English and Continental Law In many (1) continental countries much of the law is (2)__________ . For this reason there is more written, or (3)_____________ than (4) ______________ law. In contrast, there is no general code of (5)________________ law. Still,(6)___________ is common, and many areas of law, e.g. (7)___________________ are codified, but (8)______________ is the main source of the law. partnership, enacted, continental, unwritten, English, judicial precedent, legislation, codified

Statutory interpretation Do you think judges should interprete legislation? Why is it necessary? STATUTORY INTERPRETATION is the process by which courts interpret and apply legislation. Judges must interpret and understand legislation before applying. The following circumstances might lead to a need for statutory interpretation: A) Ambiguity – might be caused by an error in drafting or word may have dual meaning. B) Uncertainty – may arise where words of a statute are intended to apply to a range of factual situations and the courts must decide whether the case before them falls into any of those situations. C) There may be unforeseeable development. D) The legislation may use a broad term. Read about different approaches to judical interpretation and the rules of interpretation developed by courts and do ex. II on p. 56.

Rules to judicial interpretation LITERAL RULE This rule requires the court to give the words of a statute their plain meaning. It is for a court to interpret Parliament’s intention from what it has actually said – not from what it thinks it meant to say. Whiteley v Chappel 1868 It was a statutory offence to impersonate “any person entitled to vote” at an election. The defendant impersonated someone who was on the electoral register but who had died before the election - 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.

Rules to judicial interpretation 2. GOLDEN RULE It allows the court to depart from the literal rule where this would produce and obviously absurd result. Adler v George [1964] 2 QB 7 Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited palace. The defendant was actually in the prohibited place, rather than 'in the vicinity' of it, at the time of obstruction. Held: The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld.

Rules to judicial interpretation 3. MISCHIEF RULE According to this rule, while interpreting statutes, first the problem or mischief that the statute was designed to remedy should be identified and then a construction that suppresses the problem and advances the remedy should be adopted. Heydon's Case 1584 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, find the true intent of the makers of the Act, and advance the remedy.