1. ENGLISH LEGAL SYSTEM
20/10/2012

4. Investigate the role of the different courts in the UK
Task 1
Investigate the role of the different courts in the UK

5. Judicial Precedent
The way in which the law is made and amended through the decisions of judges. 

6. Stare Decisis
The doctrine of judicial precedent is based on the principle of stare decisis, this means that like cases should be treated alike.  The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions.

7. Original Precedent
Where there is no previous judicial decision on a point of law before the court then the decision made in that case on that point of law will be original precedent.  The way in which a judge will come to their decision in this situation is to look at cases which are similar to the one in question.  These cases are not binding on the court but they are persuasive.

8. Binding and Persuasive Precedent
A previous decision will be binding on the court if:
The legal point involved in the case is the same as the one in the previous decision
The facts of the current case are similar to the previous case (they do not have to be identical)
The earlier decision was made by a court higher in the hierarchy, or at the same level as the current court (and it is bound by its own previous decisions)

9. Task 2
Distinguish between Ratio Decendi & Obiter Dicta

10. ratio decidendi
 Only the ratio decidendi (reason for the decision) of the earlier case is binding. 

11. Persuasive
A previous decision will only be persuasive on the court where:
The dissenting judgment is a House of Lords decision
Obiter dicta statements by a court higher in the hierarchy than the current court.  For example in R v Gotts (1992) where the Court of Appeal followed an obiter dicta statement by the House of Lords in  R v Howe (1987) on the availability of the defence of duress when charged with attempted murder.

12. Ratio Decidendi & Obiter Dicta
A judgment by the court is split into three parts:
the material facts
the principle of law
the decision of the court
Only the principles of law that are relevant to the decision are the ratio decidendi of the judgment.  Any other statements of law that are not relevant to the decision are obiter dicta. 

13. Ratio Decidendi House of Lords
Investgate
Practice Statement [1966] 3 All ER 77
Addie v Dumbreck [1929] AC 358 House of Lords
British Railways Board v Herrington [1972] AC 877 House of Lords

14. [Precedent – CofA –
initial rules of binding nature of decisions of the Civil Division] This case involved compensation for a workman, under the Workmen's Compensation Acts
Held: that the Court of Appeal was bound by its own previous decisions the only exceptions to this rule are: -
the earlier court.  
Decisions of the Court of Appeal itself are binding on courts below, namely the High Court and the county courts.

15. The court is entitled and bound to decide which of two conflicting decisions of its own it will follow;
the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords;
the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of

16. The High Court
The High Court is bound by the courts above and binds the courts below it.

17. Crown Court, County Court and Magistrates’ Court
The inferior courts are not bound by their own decisions, nor do they bind other courts. This is because they do not make precedents; they just apply the precedents set by the higher courts.

18. How precedent works Follow Overrule Reverse Distinguish
House of Lords Practice Statement 1966
Court of Appeal – Young v Bristol Aeroplane (1944)

19. Follow
If the material facts of a case are significantly similar to an existing precedent, the judge should always follow the previous decision.

20. overrule
A superior court may overrule the decision of a court below it and therefore change the law.

21. Reverse
A superior court may change the outcome of a case from a lower court based on the same law, e.g. the Crown Court applies the existing law and finds the defendant guilty, whereas the Court of Appeal finds the person not guilty when applying the same law.

22. Distinguish
If the facts of a case are significantly different from the facts of an earlier case, the judge does not have to follow the precedent that is already established.

23. What are the Advantages and Disadvantages of Judicial Precedent
Task 3
What are the Advantages and Disadvantages of Judicial Precedent

24. Advantages
Certainty - It creates certainty in the law and means solicitors and barristers can advise their clients on the probable outcome of their case. Fairness - Similar cases are treated in a similar way, this is in the interests of justice and fairness.
Time Saving - It saves court time as for most situations there is already an existing solution.
Law Development - it allows the law to develop alongside society R v R (1991) - this case overturned a centuries old legal principle that a man could not rape his wife.

25. Disadvantages
Rigidity - The system is too rigid and does not allow the law to develop enough.
Injustice - The strict rules of judicial precedent can create injustice in individual cases
Slow Development - The law is slow to develop under the system of judicial precedent.  The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.
Confusion - Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.
Complexity - The law is too complex with thousands of fine distinctions

26. LEGISLATION

27. How Parliament Makes Law
Terminology
Bill    -   Before proposals become law, as they go through the stages in Parliament,  they are called a Bill
Clause  -  The individual parts of a Bill are know as clauses.
Act   -   Once a Bill is passed and becomes law it is know as an Act.
Section  -  The individual parts of an Act are known as sections.

28. Pre-Parliament Stage The Green Paper
This sets out the Government's proposals for changes to the law and invites people and interested groups to make comments on the proposals.
The White Paper
This sets out firm proposals for new law.  A draft Bill is sometimes now attached to the White Paper.

29. The Passage of a Bill Through Parliament
First Reading
This is a formal stage where the title of the proposed Bill is read out.
Second Reading
This is where the main debate on the principles of the Bill takes place.
Committee Stage
This is where the Bill is considered in detail - clause by clause.
Report Stage
This is when all amendments made at the committee stage are reported to the whole House.
Third Reading
This is the final vote on the Bill. 

30. The Other House of Parliament
If the Bill was started in the House of Commons then the above stages are repeated in the House of Lords, and vice versa.
Royal Assent

31. The House of Lords is restricted by the Parliament Acts 1911 & 1949
The Government can reintroduce a Bill which has been voted against by the House of Lords and if passed again by the House of Commons it will become law.  For the majority of Bills the Government must wait a year before it reintroduces the Bill, if the Bill is a money Bill then the delay is just one month.
The House of Commons passed the Hunting Act 2004 using the powers under the Parliament Acts 1911 & 1949.
If a Bill is started in the House of Lords and the House of Commons votes against it, it cannot be reintroduced.

32. Parliamentary Sovereignty
Parliament is the ultimate law making body in our legal system and, unlike in some other countries, no challenge can be made to an Act of Parliament in the courts.  Parliament can pass any law it wishes to.
Exceptions to this rule
Where an Act is in conflict with European Law then the law of the European Union will prevail. (Take priority)  Factortame Case No. 1 (1988) & No. 2 (1991).

33. The Human Rights Act 1998
Since the Human Rights Act 1998 came into force in 2000 there must be a written statement that the the Bill is compatible with the European Convention on Human Rights.  Where an Act of Parliament is found to be incompatible with the convention the court can make a declaration of incompatibility. This will NOT make the Act invalid, it just draws the Governemnt's attention to the fact that it is incompatible with the Convention on Human Rights.  This happened in 2004 when the House of Lords held that the Anti-Terrorism Crime and Security Act 2001 was incompatible with the Covention on Human Rights.  The Government then amended the law by passing the Prevention of Terrorism Act 2005.

34. Advantages of Statute Law over Case Law
Law can be passed with an eye on future developments in society in the hope of avoiding future problems.
Any change in the law usually only affects people in the future, i.e. it is not retrospective.
The law is known in advance and not after the decision of a judge in a case.
There is the opportunity for consulatation.
Statutes cannot usually be challenged because of the sovereignty of Parliament.  This makes the law certain.

35. Delegated Legislation
This is law made by a body other than Parliament. 
Parliament gives others the power to pass delegated legislation in a parent or enabling Act.

36. Why is Delegated Legislation Needed?
Allow detail to be added at a later date
Makes use of local knowledge, i.e. bylaws  (Local laws for local people!)
Makes use of expert technical knowledge
Easier to amend than an Act of Parliament
More time can be taken to consider secondary legislation
Lack of Parliamentary time

37. Types of Delegated Legislation
Bylaws - Made by local authorities (Town Councils) to deal with matters which affect their local area.
Statutory Instruments - Made by Government Ministers, usually to add the detail to a piece of primary legislation.
Orders in Council - Made by the Queen and Privy Council.  These are made when Parliament is not sitting, usually in emergency situations.

38. The Control of Delegated Legislation

39. Control by Parliament
The enabling (or parent) Act sets limits on the power given to bodies to pass delegated legislation
The Affirmative Resolution procedure requires some statutory instruments to be voted on by Parliament.
The Negative Resolution procedure means that most statutory instruments become law unless a debate is requested by a Member of Parliament (MP).
The Scrutiny Committee considers whether the provisions of a Bill give inappropriate law making powers to other bodies.
The Joint Select Committee on Statutory Instruments reviews all statutory instruments and brings to the attention of Parliament any points that need to be considered.
Government Ministers are accountable and can be questioned by Parliament

40. Control by the Courts
Delegated Legislation can be challenged in the courts under the doctrine of ultra vires.  (Beyond the power).
Delegated Legislation may be substantive ultra vires R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2002) or procedural ultra vires Aylesbury Mushrooms (1972).
If the court decides that a piece of delegated legislation is ultra vires the legislation can be declared void.

41. Criticisms of Delegated Legislation
Lack of democracy - Too much delegated legislation is made by unelected people i.e. civil servants.
Lack of publicity - The public are often unaware of new law which is introduced by statutory instruments.
Over use -  Too much law is made through the use of delegated powers.
There is inadequate parliamentary control over delegated legislation.

42. Arguments in Favour of Delegated Legislation
Saves Parliamentary time.
Local Authorities can make appropriate laws to meet local needs.
Detail can be added to Statutes at a later date.

43. The Interpretation of Statutes
Words are an imperfect means of communication
Words very often have more than one meaning i.e. they can be ambiguous
A broad term may be used in a statute which can give rise to confusion and uncertainty
There may be errors or omissions when the statute is drafted
New developments in society can make the words used in a statute out of date and they may no longer cover the current situation

44. Investigate staturory interpatation

45. The Literal Rule
Whiteley v Chappell (1868)  Where someone impersonated a dead person in order to vote at an election
Fisher v Bell (1960)  Where the legal meaning of the words were used to interpret a statute
R v Judge of the City of London Court (1892)  'If the words of an Act are clear, then you must follow them, even though they lead to a manifest absurdity'

46. The Golden Rule
If the use of the Literal Rule would lead to an absurdity then the Golden Rule may be used.
There are two applications of the Golden Rule
The Narrow Application
Where words are capable of having more than one meaning the meaning which is least absurd should be used   R v Allen (1872)
The Wider Application
This is used to avoid a repugnant result  Re Sigsworth (1935)

47. The Mischief Rule
This was first used in Heydon's Case (1584).  The courts looks for the mischief the statute was passed to stop  Smith v Hughes (1960)

48. The Literal-v the Purposive approaches to Statutory Interpretation
Should judges interpret statutes so as to give effect to the intention or purpose of the statute, the purposive approach, or should judges take the literal meaning of the words in a statute, the literal approach?

49. Arguments in favour of the literal approach
Judges should give words their literal meaning, their job to not to make the law but to apply it
The litreral appraoch is preferred by conservative judges

50. Arguments in favour of the purposive approach
Judges try to decide what the purpose of the statute was, what was Parliament attempting to achieve?
The purposive approach is perferred by creative judges such as Lord Denning
The Europeans prefer the purposive approach

51. The Modern Approach to Statutory Interpretation
The courts have recently integrated the traditional approaches to the interpretation of statutes.  The courts respect the actual words used but rather than stick rigidly to them, interpret them in the context in which they appear, and the underlying purpose of the statute.

52. Intrinsic (Internal) Aids to Statutory Interpretation
These are things found within the statute which help judges understand the meaning of the statute more clearly
the long and the short title
the preamble
definition sections
schedules
headings

53. Extrinsic (External) Aids to Statutory Interpretation
These are things found outside of the actual statute which may be considered by judges to help them understand the meaning of a statute more clearly
dictionaries
historical setting
previous statutes
earlier case law
Hansard   Pepper v Hart
Law Commission Reports
International Conventions

54. Ejusdem generis
ejusdem generis - Where specific words are followed by general words, then the general words are limited to things of the same kind.   Powell v Kempton Park Race Course (1899)
expressio unius est exclusio alterius - The express mention of one thing excludes others not mentioned.  Where there is a list of words which is not followed by general words then the Act will only apply to the items in the list.  R v Sedgley Inhabitants (1831)  
noscitur a sociis - A word is know by the company it keeps. Words must be read in context.   Inland Revenue Commissioners v Frere (1964

55. Presumptions
When interpreting a statute the court may make certain presumptions.  Unless expressly excluded the following presumptions may be applied to the words in a statue.
Mens rea is required for a criminal act to be committed  Sweet v Parsley (1970)
Statutes do not apply retrospectively   However see War Crimes Act 1991
The Queen is not bound by an Act of Parliament
A statute will not change the common law

56. The European Union
The main aim of the European Union is the progressive integration of Member States' economic and political systems and the establishment of a single market based on the free movement of goods, people, money and services. To this end, its Member States concede part of their sovereignty under treaties which empower the EU institutions to adopt laws.
These laws (regulations, directives and decisions) take precedence over national law and are binding on national authorities. The EU also issues non-binding instruments, such as recommendations and opinions, as well as rules governing how EU institutions and programmes work, etc.

57. The Institutions of the European Union

58. European Commission
The main functions of the European commission are to;
initiate new laws - it proposes new laws that they consider would be of a benefit to the EU
enforce the treaties - it is responsible for ensuring that EU laws are enforced
manage the budget of the EU
There are 27 Commissioners, one from each member state, who should work independently of their own individual member states, for the good of the EU as a whole.  They each have an area of responsibility e.g. transport.

59. Council of Ministers
The Council of Minister are in effect 'the centre of power' of the EU.  It decides which of the Commission's proposals should become law.  There are 27 ministers, one from each member state.  The ministers change depending on which issue is being discussed e.g. for farming matters each state would send their minister for rural affairs.

60. European Parliament
Members of the European Parliament (MEPs) are elected every five years in their member states.  The member states are allocated seats in proportion to the population of their country.  Germany have 99 seats (the maximum allowed) and Malta have 5 (the minimum).  The UK has 78 MEPs.
The Parliament is able to reject the Commission's proposed budget for the EU - it also has the power to dismiss the whole Commission, this right was exercised in 1999 for the first time.  The European Parliament has been given more power in the law making process over the years.  In the pass it was only consulted on new proposals for law now it is asked to co-operate or co-decide. 

61. The European Court of Justice (ECJ)
The ECJ is situated in Luxembourg.  The 27 judges are appointed for a period of 6 years and will have held high judicial office in their own country prior to being appointed. 
The ECJ's two main functions are to;
 A judicial role - to decide cases brought against a member state or an EU institution
A supervisory role - if a court in a member state is deciding a case in their own country which concerns a point of European Law it can refer the case to the ECJ for a decision, know as an Article 234 referral.

62. The Laws of the European Union

63. Regulations
Regulations are the most direct form of EU law - as soon as they are passed, they are binding in every Member State, on an equal footing with national laws. National governments do not have to take any action themselves to implement EU regulations.
They are different from directives, which are addressed to national authorities (Governments), who must then take action to make them part of national law, and decisions, which apply in specific cases only, involving particular authorities or individuals. Regulations are passed either jointly by the EU Council and European Parliament, or by the Commission alone.

64. Directives
EU directives lay down certain end results that must be achieved in every Member State. The Government of each member state have to adapt their laws to meet these goals, but are free to decide how to do so. Directives may concern one or more Member States, or all of them.
Each directive specifies the date by which the national laws must be adapted - giving national authorities the room for maneuver within the deadlines necessary to take account of differing national situations.
Directives are used to bring different national laws into line with each other, and are particularly common in matters affecting the operation of the single market (e.g. product safety standards).

65. Decisions
Decisions are EU laws relating to specific cases. They can come from the EU Council (sometimes jointly with the European Parliament) or the EU Commission. They can require authorities and individuals in Member States either do something or stop doing something, and can also confer rights on them. EU decisions are:
• addressed to specific parties (unlike regulations),
• fully binding on the party to which they are addressed.

66. The European Commission & Enforcement of EU Law
The Commission's role is to ensure EU law is properly applied - by individuals, national authorities and other EU institutions.
The Commission can impose sanctions on individuals or companies who break European Union law.
It can take formal action against national authorities if they are suspected of breaking EU law, asking them to remedy the situation by a certain date. This may involve taking them to the European Court of Justice (ECJ).