SOURCES OF LAW

Principal Sources of Law in the UK I. Statute law - legislation II. Judge-made law – ‘caselaw’ III. European Union Law IV. European Convention on Human Rights V. International law

Statute Law  ‘Statute law’ is law adopted by Parliament, Government Department or other public body set out in the form of legislation  Distinction between “primary” and “secondary” legislation  Primary legislation is referred to as an ‘Act’ - adopted either by UK Parliament at Westminster or by the NI Assembly under its devolved powers  Primary legislation is subjected to the full parliamentary process

Statutes continued…  Primary legislation or ‘Acts’ serve 4 key functions: (a) Set out the overarching legislative provisions on the issue in question – secondary legislation fills in the details (b) legislation defines the parameters within which we live – Theft Act, Human Rights Act 1998; etc (c) Regulates risk, e.g., Genetically Modified Food Act, Dangerous Dogs Act (d) Models society in the light of social, moral and economic preferences etc of the governing political party – e.g., Equal Pay Act, Civil Partnerships Act 2004

Statute Law – Secondary Legislation Primary and secondary equally binding Confusion about terminology i. ‘Subordinate’ or ‘delegated’ legislation ii. Regulations, Orders in Council, Byelaws, Rules iii. Statutory Rules & Statutory Instruments

Secondary continued… Advantages of secondary legislation Problems with it? Can UK courts invalidate primary or secondary legislation?

The Northern Ireland Assembly

Statute law and Stormont  NI Assembly can enact primary legislation (which in turn enables, e.g., govt. depts to introduce secondary legislation – typically known as Statutory Rules)  But the Assembly is itself a creation of statute (the Northern Ireland (Elections) Act 1998)  Its powers are therefore “devolved” and it has only limited areas of competence: see the Northern Ireland Act 1998, section 6, and the related “transferred-reserved-excepted” demarcation of power  Acts of the Assembly can be challenged as ultra vires

Judge-made law

The common law  What is it?  Controversies surrounding judge made law  How does it arise?  Meaning of the term ‘common law’

European Union Law I. UK joined in 1972 – EC Act 1972 II. EC or EU law comprised of primary and secondary sources: III. Treaty of Rome (EC Treaty) IV. Directives, Regulations, Decisions etc.. V. EU Judge-made law VI. How does EU law impact upon life and work in the UK?

The European Convention on Human Rights What is it? What’s in it? What areas does it impact upon? Adoption of Human Rights Act 1998

International law 1. International law as a source of law 2. Types of international law 3. The need for ‘incorporation’ or ratification (the “Ponsonby Rule”)

Take a break for 20 mins …

Courts

Aims of this session I. To outline the structure of courts and tribunals II. To identify the hierarchy within the court system & link to concept of ‘precedent’ III. To introduce the issue of judicial appointments

Overview of Adjudicating Bodies 3 major branches: ‘Ordinary’ courts of law Tribunals ‘Special’ courts of law

Tribunals (Dickson, chapter 8)  Rationale for the Tribunal System  Historical intention was to ensure a system of justice that was efficient, less expensive, and driven by expertise  Informality of proceedings (evidence; representation; etc).  Leggatt Review and the Tribunals, Courts and Enforcement Act 2007  Linked to other courts through statutory appeals

Examples of tribunals  Lands Tribunal  Mental Health Review Tribunal  Fair Employment Tribunal  Industrial Tribunals  Pension Appeal Tribunals  Tribunals concerning social security and children

Hierarchy of Courts House of Lords (London) Court of Appeal (Belfast) High Court (Belfast) Crown Court (11 locations in NI) County Courts (18 towns in NI) Magistrates’ Courts (20 towns in NI)

Magistrates Courts (Dickson chpts 4, 5, & 6) i. Bulk of work is concerned with criminal matters, but also deals with some civil matters (e.g., some domestic disputes) ii. Criminal matters dealt with by magistrates are in general less serious and can be tried “summarily” – e.g., motoring offences iii. More serious criminal matters are tried on “indictment” in the Crown Court (after committal proceedings in a magistrates court): e.g., murder, rape, robbery

Crown Court i. Crown Court is a branch of the Supreme Court of Judicature of Northern Ireland ii. Jury trial, including now in (most) terrorist trials. Jury selection is governed by the Juries (NI) Order 1996 iii. Sentencing framework is that set by the Criminal Justice (NI) Order 1996 iv. Criminal law, Evidence, Criminal Process modules will address the nature of these hearings

County Courts  Have a role in respect of criminal matters on appeal from magistrates courts, but their work is essentially concerned with civil disputes (see also the role of other courts, e.g., the small claims court)  On the types of cases heard in County Courts (and the thresholds that determine whether they are the appropriate forum) see Dickson pp

The High Court 3 divisions of the High Court: Queen’s Bench Division Chancery Division Family Division

Northern Ireland Court of Appeal I. Hears criminal and civil appeals, usually in panels of three II. Lord Chief Justice and three Lords Justices of Appeal III. High Court judges can also sit on the CA in criminal cases, and can be asked in civil cases too IV. Appeals to the Court of Appeal are statutory (and usually contingent upon some form of “leave”). The type of appeal will depend on the relevant legislation and type of case (civil or criminal)

Appellate Committee of the House of Lords 1. Final court of appeal on all matters in NI 2. Appeal is again subject to leave 3. Convention to have a Law Lord from NI, who is presently Lord Carswell 4. There are 12 Lords of Appeal in Ordinary – cases normally heard by 5 Law Lords but can go up to 7-9 in v controversial/important cases 5. Judicial Committee of the Privy Council (empire; devolution disputes; etc)

Constitutional Reform Act 2005  Why was the Act introduced?  Key reforms  Judicial Appointments Commission in Northern Ireland & Criminal Justice Review

The European Court of Justice  Sits in Luxembourg and has jurisdiction in EU law matters  Can hear “direct actions”  But more important in the national context is the Article 234 EC reference procedure  Any court or tribunal may refer; and final courts of appeal must  Its decisions are binding on UK courts – see European Communities Act 1972, section 3

The European Court of Human Rights  Sits in Strasbourg and has jurisdiction in all cases concerning the interpretation and application of the ECHR  Individuals must exhaust domestic remedies, i.e. there is no referral mechanism  Decisions against UK government are binding in international law (domestic changes normally follow)  Human Rights Act 1998 controls the obligation on UK courts to take account of decisions of EctHR