Transcript What is law, and where do we find it?

Sources of Law
Katarzyna Gromek Broc
York University
York Law School
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Sources of Law
Sources: ways by which the
law comes into existence
English law comes from variety
of sources although their
importance varies
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Sources
- Common Law (case law)
- Equity
- Custom
- Legislation
A) primary
B) secondary, delegated legislation
- Statutory interpretation
-International Law (Treaties, EU law)
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Who makes law?
Four principal law makers in
the UK
- the Courts
- the Parliament
- EU
-Council of Europe
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Sources of Law
General Overview
Case Law: judge-made law lay down rules to
be followed in future court decisions: a
predominant source of law
However Primary Legislation (Act of
Parliament, Statutes) prevails over common
law
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Sources Overview
Primary Legislation(Act of
Parliament) interacts and
contributes to the development
of common law: courts while
interpreting the Acts, and such
decisions lay down new
precedence
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Sources of Law
Delegated legislation is made by
administration rather than
legislation and is concerned with
the detailed rules to implement Act
of Parliament
Note: increasing importance of EU
law due to supremacy of EU Law
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Sources of law
Common Law
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Common Law
Historically primary source of law
(unwritten, then recorded)
– Common law of the King and the
nobility recorded e.g. by Bracton
– Developed into the system of precedent
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Common Law
Curia Regis (King’s Court)
travelling King’s Court,
listening to the customs of
different lands, resolving
disputes, writing down
decisions: beginning of
Common Law) 1250
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Common Law
- Establishment of the system
of collection of the decisions of
higher courts;
- Publication of reports of cases
in the higher courts.
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Defining Common Law
“common law was seen to represent a rational
ordering of the rules governing human
behaviour and it was the claim of a developing
class of lawyers to provide a seamless web of
regulation. All of these factors contributed to
the ability of the common law to withstand the
threat of codification and to provide an effective
resistance to the incursion of piecemeal
legislation” (Goodrich, Reading the Law 1986,
42).
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Common Law
When should judges make law?
-judges should adapt the law to the changing
conditions in society
-filling the gap left by statutes
-protecting individual rights
-giving meaning to parliamentary intention
(respecting the parliamentary opinion)
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Advantages of Common Law
1. Certainty: like cases will be treated alike
2. Practical: adapted to the real situations
3. Case law developing in line with the market
needs
4. Flexible adapted to changes in society
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Disadvantages of common law
1. Complexity and Volume (long cases, judges
discussion not explicit, a crux of the decision
buried in irrelevant material)
2. Rigid ( the judges need to follow even bad
decisions of higher courts)
3. Depending on chance (precedent created
only in response to those who brought the
claim)
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Disadvantages of common law
4. Illogical (the fact of the case must be
significantly different, unclear, creating the
precedence in similar cases);
5. Unsystematic progression (no
comprehensive code, ad hoc development
depending on cases)
6. Not based on scholarly findings
(research)
7. lack of accountability of the judges
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Disadvantages of common law
8. Retrospective effect ( unlike the legislation
can apply to the events before the case
reached the Court)
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Sources of Law Equity
- Equity means fairness
- Inspired by ideas of fairness
and natural justice
- emerged as response to the
rigidity of common law (now
part of it)
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Equity
Common Law only remedy: damages
Equity remedies: injunctions, specific
performance, rescissions, rectifications:
intention of the parties)
Petitions to the King (15th century delegated
to Lord High Chancellor)
Creation a separate court: court of chancery
(now Chancery Division of the High Court)
The Judicature Acts 1873-75: one system
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Equity
Although the same courts
today, the separate rules
remain
conflict between equity and
common law, equity prevails
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Equity
Equity maxims:
“Equity is equality”
“Equity will not suffer a wrong without
remedy”
Who comes to equity must come with clean
hands”
“Who seeks equity must do equity”
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Sources: Legislation
‘Queen in Parliament’ (Dicey)
– Legislation superior to common law
– Most recent enactment is the law
– Statutes superior to secondary legislation
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Legislation
Non-intervention of legislation - a law job?
– provide the legal framework as a guide for action
– recourse to the law –a last resort
– law works outside the courts but in the shadow
of the courts.
Existence of courts (even as a last resort) influences
the functioning of the law.
– How does the court process fit in with the legal
process and the court structure?
– Inter-relationship of the court ‘hierarchy’ and our
system of judicial law-making
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Legislation
who makes it?
Queen in the Parliament is the official name
for the legislature (or King).
The legislature consists of:
– the Monarch (King or Queen)
– the House of Lords (peers: Lords Spiritual,
Lords Temporal) (about 750)
– the House of Commons (elected Members
of Parliament, MPs) (646)
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UK Parliament
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UK Parliament
House of Commons
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House of Lords
Legislation
Primary legislation (Act of
Parliament)
Secondary legislation (rules
made by administration not by
legislature on implementation
of the Acts)
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Act of Parliament
Public (incl. Private Member’s Bills) or Private
The Whitehall stage (public bills)
– Consultation
– Green Paper
– White Paper
Drafting
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Parliament Act
The Westminster stage
– Parliamentary Time
– Westminster, usually House of Commons:
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First reading (formal, no debate)
Second Reading (policy & debate)
Committee - scrutiny
Report stage
Third Reading (formality, no changes)
House of Lords (n.b. Parliament Act 1911)
Royal Assent
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Act of Parliament
1. THE WHITEHALL STAGE
Once a competent department has decided
to ask Parliament to enact a Bill, the
department will start a consultation process
(Green Paper) with all the concerned parties.
To which extent and the time this process
will take, differ with the complexity,
urgency and importance of the matter.
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Act of Parliament
2. Drafting
When the department in question has
decided to pass on the process, the
provisions are sent to the civil servants
called Parliamentary Counsel. These civil
servants are lawyers who are specialized in
drafting techniques. Once the drafting stage
is ended, the bill is ready to be presented to
the Parliament (White Paper).
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Act of Parliament
3. The Westminster Stage (HOUSE OF
COMMONS)
A Bill has to be accepted by the Future Business
committee in order to be given time in Parliament.
In this cabinet committee the responsible of the
cabinet decides which Bill will be presented before
the Parliament in the next session.
It is important to point out that all the Bills must be
passed by both the House of Commons
and the House of Lords.
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Act of Parliament
3. Westminster Stage (continues)
They are able to start in either of the
Houses, but most of the Bills
start in the Commons. The process in each of
the Houses consists of the following five
stages
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Act of Parliament
4. First Reading
The first reading is a formal stage, this is
when the House orders the Bill to be printed.
In this stage, it is likely that there won’t be
any debate on the content of the Bill.
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Act of Parliament
5. Second Reading
During the second reading, there is a first possibility
to hold a debate. Less important Bills
and Bills that contain wholly uncontroversial
measures can receive their second reading ‘on
the nod’, which means devoid of any debate at all.
The minister responsible sets out the
main policy objectives. The opposing parties then
have the chance to set out their reservations.
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Act of Parliament
5. Second reading (continues)
And finally the other Members of the
Parliament (named the backbenchers)
can comment. When the debate ends, there
is a summing up by a government minister.
Most of the time, it is exceptional that the bill
is voted or defeated at this stage. In the
case where a vote takes place because of the
conflicting opinions, the Bill can go no further
if the vote is
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lost.
Act of Parliament
6. Committee Stage
The detailed analysis of a Bill takes place in a
Standing Committee.
The Committee has the task to analyze the Bill
clause by clause and they can amend it where
it seems it could be improved, so that the Bill turns
into an acceptable shape. The
This Committee is composed of the senior MP’s
.
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Act of Parliament
An alternative procedure is to inspect the Bill in a
Committee of the Whole House (also known as
keeping the Bill ‘on the floor’), with all the members
of the House that adopt the committee procedure.
This procedure is used for example for constitutional
measures. A mixture of both procedures is also
possible, for example you can consider to bring one
part of the Bill before the Committee of the Whole
House and to bring the rest to the Standing
Committee.
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Act of Parliament
7. Report Stage (CONSIDERATION
STAGE)
In this stage the Bills which have been
changed in the Committee stage, are
reported to the main House. The House has
the opportunity to, on the one hand, reject
the changes made in the Committee or, on
the other hand, make new amendments.
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Act of Parliament
7. Report Stage (continues)
The advantage of this stage is that all the
MP’s can debate on eventual amendments.
Often this is the moment at which
the government tries to introduce new
amendments. This stage is very criticized
upon because, when the government uses its
right to make significant changes to a Bill,
this is done in a late stage in the process of
enacting the Bill.
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Act of Parliament
8. Third reading
Finally, the third reading is again a more formal
stage. In this stage they bring together all
the components of the Bill. At that time the bill is
ready to be referred to the House of Lords,
and when that happens it is no longer possible to
change anything to the content of the Bill. Usually a
brief discussion takes place, where the MP’s who
have been most active during the legislativeprocess, look back on the work which they have
contributed in the Committee Stage.
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Act of Parliament
9. The process in the House of Lords
The process of law-making of a Bill can start in the
House of Lords or can start in the House
of Commons to be referred later to the House of
Lords. In the House of Lords it goes through
the same five stages as in the House of Commons
(see the procedure described above) but
in the House of Lords the Bill is kept ‘on the floor’ in
all but some exceptional cases. In addition, in the
House of Lords, changes can be made at the Third
reading stage. There is also less government control
in the House of Lords in contrast to the House of
Commons.
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Act of Parliament
10. The Royal Assent
This is the last stage of the whole process a Bill
undergoes. The Royal Assent is the stage
wherein the Queen signs the Act of Parliament. In
other words, this is a formal stage that has
to be accomplished. The Royal Assent makes the Bill
turn into an Act. There are two ways a
Bill can come into force, instantly or at a future
stage as stipulated in the Act. In practice it
usually contains a ‘commencement clause’, which
stipulates the inlet of the Act.
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Sources of Law: Delegated
legislation
Delegated (secondary
legislation) Parliament gives
power to local authority or local
government to make law.
Usually to elaborate a detailed
framework to implement an Act
of Parliament
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Sources of Law: Delegated
Legislation
Making delegated legislation
- Statutory instruments
- Byelaws
-Orders of the Council
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Sources: Delegated Legislation
Statutory Instruments:
Parliament confers the power to make
statutory instrument to a governmental
department or Minister. They will draft a
statutory instrument to implement the
requirements to enable Act
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Delegated legislation
Byelaws
Made by local authority or other public body
e.g. British Rail. They regulate a certain
behaviour under their control
E.g. Regional Council passed a byelaw to fine
people who do not clean up after their dogs.
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Delegated Legislation
Orders of Council
Differently known as Order of
the Legislative Committee of
the Privy Council: another form
of SI but reserved for the most
important pieces of secondary
legislation
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Delegated legislation:
advantages
Speed: discharging Parliament, ensure fast
and effective implementation
More adaptable to local needs: local Council
More flexible: easier changeable
Parliamentary supervision:
affirmative/negative resolution
Judicial control: subjected to judicial review
(ultra virus, exceeded power, procedural or
substantive, then void)
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Sources of Law: Statutory
Interpretation
Although Acts of Parliament are carefully drafted: Implications
of a statute are often unclear
Number of factors have been identified that could cause
uncertainty
1) some words may be left out: ‘and/or’: should the words be
automatically implied?
2) Broad terms are used (ban of vehicles in the park) The court
needs to decide of bikes, skateboards are also banned.
3) Ambiguous words used: inadequate wording because of a
printing, drafting or other error
4) the events of the case brought before the court where not
foreseen when the legislation was drafted
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Sources: Interpretation of the
Statute
The Court’s role
To guess what parliamentary intention was
The Interpretation Act 1978: some standard definitions of
common provisions
Since 1999 all Bills are subject to special explanatory notes’
This background to the legislation available to the public
explain the effects of particular provisions are intended to have
There are three methods to be used in conjunction with the
previously stated assistance
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Sources: Interpretation
The literal rule
To follow the literal meaning of the words they have used.
Under this rule, the literal meaning must be followed even if
the result is silly
Lord Esher stated in Rv City of London Court Judge[1892]
“If the words of an Act are clear you must follow them even
though they lead to a manifest absurdity. The Court has
nothing to do with the question of whether the legislative has
committed an absurdity”.
Advantage of literal rule: respect for the doctrine of
parliamentary sovereignty, restricted role for the courts,
preponderant place for the legislator
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Sources of law: statutory
interpretation
Disadvantages of the literal rule:
If use of the literal rule leads to absurd or unjust conclusion it
can hardly be said that this was the intention of Parliament.
Parliament is unlikely to have intended absurdity and injustice
Hart (1994): some terms have a core of very clear meaning
but it still maybe be unclear how far that word stretches.
Zander (The Law-making process) describes the literal
approach as’ mechanical, divorced both from the realities of the
use of languages and from the expectations and aspirations of
the human being concerned... In that sense it is irrisponsible’
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Sources: Statutory
Interpretation
The Golden Rule:
If the literal rule gives an absurd result which Parliament would
not have intended, only then the judge can substitute a
reasonable meaning in the light of the statute as a whole.
Lord Wensleydale said in Grey v Pearson, [1857]:
“The grammatical and ordinary sense of the words may be
modified so as to avoid that absurdity and inconsistency but
not further”
Advantage of the Golden Rule:
to avoid the absurdity, to endorse the intention of the Parliament
Disadvantages: lt interferes within the legislative power.
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Sources: Statutory
Interpretation
The mischief rule:
The rule established in the 16th century in Heydon’s Case.
The judge should consider 3 factors
- what the law was before the statute was passed
- what problem, or ‘mischief’ the statute was trying to
remedy
- what remedy Parliament was trying to provide
The judge then should consider these three points while
providing a solution
Smith v Hughes (1960): The Street Offences Act 1959 made it
a criminal offence for a prostitute to solicit potential customers
in a street or public place: The prostitute was at the window
and tapping to attract clients. (The Act should be interpreted to
include this activity).
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Sources of Law: Interpretation
Advantages of the mischief rule:
It helps to avoid absurdity and injustice, it promotes flexibility
Disadvantages of the mischief rule: obsolete, does not take
into account the predominant role of Parliament today and it
relies on judges who in the 16th century were drafting
legislation on behalf of the King.
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Interpretation
Other aids:
Explanatory notes
Presumptions:
-statute do not change the common law
- the legislature does not remove any matters from the
jurisdiction of the Courts
- not to interfere with existing rights
-law should be interpreted in favour of citizens where there is
an ambiguity
-legislation does not operate retrospectively
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Interpretation
Dworkin (1986) put forward that
the job of the judges is to develop a theory about how the
particular measure fits with the rest of law as a whole.
If there are two possible interpretations of a word or phrase the
judge should favour that one that sits more comfortably with
the purpose of the rest of the law and with the principles and
ideas of law and legality in general.
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Sources: Custom
Small role in modern English Law
In the past the law was created by the
decisions of judges recognising some
customs and eliminating others
Tanistry case 1608 defined custom as “such
usage as has obtained the force of law”
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Custom:
To be able to be enforceable the custom
must be
- In conformity with the statute
- Consistent with other customs
- Continuity
- Locality
- Certainty and clarity
- Reasonableness: in line with fundamental
principles
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Court Structure
Separate civil and criminal
courts
Same facts situation may give
rise to both civil and criminal
claims e.g. false descriptions of
goods, domestic violence
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Magistrates’ Courts
Usual criminal, but some civil cases eg
– Family Proceedings Court
– Licensing
Who does the judging:
– Three lay magistrates (unpaid, not professional), +
Court Clerk or
– District Judge
Appeals
– High Court
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Civil Courts
Majority of civil cases
– Small Claims Procedure (up to £5k)
– Fast-track cases (up to £15,000)
Judges
– Circuit Judges (senior judges)
– District Judges (trained, stipendiary)
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Civil Courts: county court
Circuit Judge – Court
(2)
Dress
Appeals
– From DJ to CJ
– From CJ to Court of
Appeal (Civil
Division)
Lawyers
– Solicitors
– Barristers
NB Woolf Report and
Reforms
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High Court of Justice
3 divisions since 1970:
– Queen’s Bench (or King’s Bench)
– Chancery
– Family
Hears both cases at first hearing and appeals
Decisions are precedents
Location: London, Royal Courts in the Strand, also approx 20
provincial cities
‘My Lord’
– Chancery - head is Chancellor
– QBD - President is Lord Chief Justice
– Family - head is President of the Family Division
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High Court Judge & High Court
Judge (criminal cases)
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High Court: Family Division
First Instance:
Appellate Jurisdiction:
Matrimonial and children
Appeals from
matters
Magistrates Courts in
Inherent jurisdiction of
Family matters
the High Court in
relation to minors, e.g.
commencement of
wardship proceedings.
Dissolution of civil
partnerships
Medical treatment
declarations
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High Court: Queen’s Bench
Division
Appellate Jurisdiction Court of First Instance
Divisional Court of the
Certain applications for
Queen’s Bench Division
writs of habeus corpus
Mainly criminal appeals
from the Magistrates and
Judicial review cases
Crown Courts
heard by the
Administrative Court
Also Admiralty,
Commercial, Technology
& Construction courts
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High Court: Chancery Division
First Instance
Appellate Jurisdiction Chancery Divisional
Trusts, mortgages,
Court (limited):
company law and
partnerships,
Appeals in bankruptcy
intellectual property
cases from county
matters, corporate and
courts and High Court
personal insolvency,
registrars
trade and industry
disputes, contentious
probate matters,
intellectual property,
etc.
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Court of Appeal Civil Division
Appeals from all 3 divisions of High Court &
county court
Quorum of 2, usually 3 judges sit
Most senior judge: Master of the Rolls
Judges promoted from High Court
First woman judge appointed 1988 (Butler-Sloss)
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Judicial Committee of the Privy
Council
Original function to advise the monarch
Senior Judges who are members of the Privy
Council
Appeals from Commonwealth Countries, also some
Admiralty and ecclesiastical matters
(Since 1998: appeals from Scotland, Wales and
Northern Ireland re devolution appeal now moved
to the Supreme Court 2009)
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Privy Council
History: Privy Council is descended from the
Curia Regis, made up of the king’s tenants in
chief, household officials, and other advisers.
This group performed all the functions of
government in either small groups, which
became the king’s council, or large groups,
which grew into the great council and
Parliament
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Privy Council: History
At the beginning, monarchs ruled through
the Privy Council without turning to
Parliament, and under Edward I it was
difficult to identify whether legislative acts
emanated from the King-in-Parliament or the
King-in-Council
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Privy Council: History
The Privy Council has long ceased to be an
active body, having lost most of its judicial
and political functions since the middle of the
17th century. The courts took over the
business of delivering justice, while
Parliament became the supreme legislature
of the Kingdom. As the constitution
developed into today’s constitutional
monarchy, the power moved from the
monarch to the prime minister and the
cabinet.
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Privy Council: Composition
Membership of the Privy Council is today
often a titular honour that the members
received as reward for public and political
service.
Members of the Council are called “Privy
Counsellors”
Individual Privy Counsellors are entitled to
the prefix “The Right Honourable”.
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Privy Council Composition
The sovereign, when acting on the Council’s
advice, is known as the “Queen-in-Council”.
Appointments are made by the Sovereign on
ministerial advice and generally consist only
of senior members of Parliament, the Church
and Judiciary.
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Privy Council: Composition
The Privy Counsellors are mainly politicians.
The prime minister, ministers in the cabinet, and the
leader of the Opposition must be sworn to the Privy
Council on appointment.
Membership ceases upon the dissolution of the Privy
Council, which automatically occurs 6 months after
the death of a monarch. By convention however, the
Sovereign reappoints all members of the Council
after its dissolution, so in practice, the Privy
Counsellors are members for life, but only Ministers
of the democratically elected Government of the day
participate in its policy work. The Council now
numbers about 550 members
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Privy Council: Meetings
The Privy Council meets regularly, once a month.
Meetings of the Privy Council are held by the Queen
and are attended by Ministers and the Clerk of the
Council. The Council may meet wherever the Queen
decides, although normally it will meet at
Buckingham Palace.
At each meeting the Council will seek Her
Majesty's formal approval to a number of
Orders which have already been discussed and
approved by Ministers
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Privy Council: Meetings
Meetings of the Privy Council are very brief.
Only a few privy counsellors attend these regular
meetings. The settled practice is that four Privy
Counsellors, usually the Ministers responsible for the
matters being approved, attend those meetings of
the Council.
The Orders made at each Council are in the public
domain. As Privy Council meetings are usually held
at Buckingham Palace Orders generally begin "At the
Court at Buckingham Palace", but Orders may also
be made in other places.
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Privy Council: Secrecy
There is therefore nothing at all "secret" about Privy
Council meetings. The myth that the Privy Council is
a secretive body springs from the wording of the
Privy Council Oath, which, in its current form, dates
back to Tudor times. It requires those taking it to
"keep secret all matters...treated of in Council". The
Oath is still administered, and is still binding; but it
is only in very special circumstances nowadays that
matters will come to a Privy Counsellor on "Privy
Council terms". These will mostly concern matters of
the national interest.
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Privy Council: Legislation
The Order in Council
remains a principal method of giving the force of law to acts of
the government, especially the more important executive
orders.
Decisions of the Privy Council are recorded in Orders,
which have the force of law. Such Orders come in many forms,
but the basic distinction is between Orders in Council and
Orders of Council.
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Privy Council: Legislation
Orders in Council are Orders that have been
approved at a meeting of the Privy Council
personally by The Queen. They are drafted by the
government rather than by the Sovereign, and are
secondary legislation. They fall into two broad
categories, Statutory and Prerogative.
Statutory Orders are made under any of the
numerous powers contained in Acts of Parliament,
which give Her Majesty the possibility to make
Orders.
Prerogative Orders are made under the inherent
power of the Crown to act on matters for which
Parliament has not legislated.
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Privy Council: Legislation
Orders of Council are Orders which do not require
personal approval by The Queen, but which can be
made by "The Lords of the Privy Council". Acts
giving power to the Privy Council to make an Order,
will usually specify the quorum of the Privy Council
required to exercise it.(required quorum: usually
two.)
All Orders of Council are expressed to have been
made at "The Council Chamber, Whitehall", though
in fact they are all approved in correspondence, and
no actual meeting takes place.
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Privy Council: Operation
The majority of Privy Council functions are fulfilled
by committees.
The Privy Council has a great variety of standing
committees. There are also ad-hoc committees, as
for example the committee that considers
applications by institutions for Charters and
Statutes. The Royal Charters were originally granted
to create public or private corporations (including
towns and cities), and to define their privileges and
purpose.
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Privy Council: Operation
The Privy Council also has a role in areas of higher
education, having responsibilities both under the
royal prerogative and by statute. Older (pre-1992)
universities operate under a Royal Charter, which
sets out their overall constitution and statutes. The
Charter also gives more details as to how the
university should operate in practice.
The Privy Council is responsible for advising Her
Majesty on universities’ proposals to amend their
charter.
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Privy Council: Operation
The most important committee is the Judicial Committee,
established under statute by the Judicial Committee Act 1833.
The Judicial Committee of the Privy Council originated as the
highest court of civil and criminal appeal for the British
Empire.
It also acts as the court of final appeal for the UK overseas
territories, Sovereign Base Areas, Crown dependencies and
for those Commonwealth countries that have retained the
appeal to Her Majesty in Council.
Over the years, the Judicial Committee has been asked for final
rulings and interpretations of many different kinds of law, from
Roman Dutch law in appeals from South Africa, to Muslim,
Buddhist and Hindu law from India.
The Judicial Committee also hears very occasional appeals from
a number of ancient and ecclesiastical courts.
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Privy Council: Judicial
Committee
The Judicial Committee was also the Court of final appeal for
determining ‘devolution issues’ Devolution issues are questions
of whether acts of the devolved administrations in Scotland,
Wales and Northern Ireland are fully in accordance with the
legislation which set them up under the United Kingdom
devolution statutes of 1998.
However, since October 2009, those devolution issues were
transferred from the Judicial Committee of the Privy Council to
the new “the Supreme Court”.
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Privy Council: Judicial
Committee
Five judges normally sit to hear Commonwealth
appeals and three for other matters. These judges
are usually Justices of The Supreme Court.
Until October 2009, the Judicial Committee heard
appeals in the Council Chamber in Downing
Street. Today it shares a building, and many
administrative functions, with The Supreme Court.
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Reform: a Supreme Court
Constitutional Reform Act 2005
Supreme Court:
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Highest appeal court separate from House of Lords
Removal of Lords of Appeal in Ordinary from legislature
Enhancement of independence of judiciary
Supreme not just for England & Wales: also Scotland &
Northern Ireland
– No power to overturn legislation
New Judicial Appointments Commission
http://www.justice.gov.uk/whatwedo/supremecourt.htm
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FROM
OCTOBER
2009
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Creating a new
Supreme Court
means that the most
senior judges will be
entirely separate
from the
Parliamentary
process.
Supreme Court
The Supreme Court of the United Kingdom is the
new replacement for the judicial
function of the House of Lords. The House of Lords,
an important part of the British Parliament has been
deprived of its judicial function.
The creation of the Supreme Court enhanced the
doctrine of separation of power. House of Lords is
now only a legislative body and lost its judicial
function.
The judicial independence is now preserved.
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Supreme Court
Separation of powers between legislature and the
judiciary in the constitutional arrangements is
clearer. The office of Lord Chancellor was
abolished and the Supreme Court now
has its own independent appointments system,
staff, budget and building (Middlesex Guildhall on
London's Parliament Square, close to the Houses of
Parliament and alongside Westminster Abbey and
the Treasury)
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Supreme Court: Organisation
Part 3 of the Constitutional Reform Act 2005
The Supreme Court in 2009 has assumed the jurisdiction of
the House of Lords through the Appellate Jurisdiction Acts 1876
and 1888.
To enable the Court’s jurisdiction over the entire United
Kingdom, it was necessary to amend the Scotland Act 1998,
the Northern Ireland Act 1988 and the Government of Wales
Act 2006, in light of the devolution.
The jurisdiction was eventually passed along to the Supreme
Court through the Judicial Committee of the Privy Council.
Supreme Court took the issues on devolution from the Privy
Council
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What is the Doctrine of Precedent?
Central to case law
Traditionally: the law is “a permanent set of
unchanging rules which are discovered, declared and
applied to new cases” (Goodrich, p 127).
Historically, prior decisions not originally binding in
themselves, and no coherent system.
Authoritative system of law reports dating from
1800s.
1861 House of Lords first clearly established the
doctrine of binding precedent.
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What is the doctrine of
precedence
Central to case law
Traditionally: the law is “a permanent set of unchanging rules
which are discovered, declared and applied to new cases”
(Goodrich, p 127).
Historically, prior decisions not originally binding in themselves,
and no coherent system.
Authoritative system of law reports dating from 1800s.
1861 House of Lords first clearly established the doctrine of
binding precedent.
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What is the Doctrine of Precedent?
Stare Decisis
– ratio decidendi/rationes decidendi (binding)
– obiter dicta (may be persuasive)
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What is the Doctrine of Precedent?
“our common law system consists in the applying to
new combinations of circumstances those rules which
we derive from legal principles and judicial
precedents; and for the sake of attaining uniformity,
consistency and certainty, we must apply those
rules, where they are not plainly unreasonable and
inconvenient, to all cases which arise; and we are not
at liberty to reject them, and to abandon all analogy
to them, in those to which they have not yet been
judicially applied… it appears to me to be of great
importance to keep this principle of decision steadily
in view, not merely for the determination of the
particular case, but for the interests of law as a
science” – Justice Parke, Mirehouse v Rennell [1833]
1 CL and F 527, 546
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Law and fact
Questions of fact: Not precedents
Questions of law: precedent
Questions of mixed fact and law (e.g. in criminal
cases):
– Questions of fact generally matters for the jury
– Questions of law exclusively the remit of the
judge
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The operation of precedent
Vertical precedent
Horizontal precedent
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HIERARCHY OF
PRECEDENT
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Precedent hierarchy (1)
Court of Justice of EU (CJEU)
– Binding on all English courts (supremacy of
EU Law although not erga omnes)
– Not bound by itself (no precedent in CJEU)
House of Lords/now Supreme Court
– Decisions bind lower courts
– Practice Statement [1966] 3 All ER 77
permits departure from own decisions
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Precedent hierarchy (2)
Court of Appeal
– Bound by House of Lords/ Supreme Court
– Bound by own previous decisions UNLESS
Young v Bristol Aeroplane Co [1946] AC
163 per Lord Greene MR:
– Per incuriam: case didn’t take into account
all relevant law AND major defect of
material reasoning, or
– choice between conflicting decisions, or
– earlier decision not expressly overruled by
HL but contrary to HL decision.
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Precedent hierarchy (3)
Court of Appeal continued
– N.B. Davis v Johnson: HL disapproves
CA’s disregard for precedent outwith
Young v Bristol Aeroplane situations.
Divisional Court
– Bound by superior courts
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Precedent hierarchy (4)
Trial Courts (Magistrates’
Crown Court, County Court,
High Court)
– Bound by superior courts
Privy Council
– Not technically binding, but persuasive
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PRECEDENT IN
PRACTICE
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Case
Re A (Children) (Conjoined Twins: Surgical
Separation) [2001] Fam 147 was an English Court
of Appeal decision on the separation of conjoined
twins. The case raised several legal, ethical and
religious dilemmas including whether it would be
permissible to kill one of the children to save the
other and whether it was permissible to act against
the wishes of the twins' parents.
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Case
Jodie" and "Mary" (born 8 August 2000) were
pseudonyms given to conjoined twins, Rose and
Grace Attard, who were joined at the pelvis. The
medical evidence indicated that Jodie was the
stronger sibling who was sustaining the life of Mary.
If surgically separated Jodie could live but Mary
would die. However, without separation both twins
would die.
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Case: Judgment
At first instance, Mr Justice Johnson was left to
decide the case without any direct precedents to
guide him but reasoned by analogy with Airedale
NHS Trust v Bland where it was declared acceptable
to remove life support. Johnson ruled that
separation would not be murder but a case of
"passive euthanasia" in which food and hydration
would be withdrawn.
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Judgment
The Court of Appeal rejected this analysis but the
three judges who presided over the case gave very
different legal reasoning. Lord Justice Alan Ward
invoked the concept of self-defence suggesting that
"If Jodie could speak she would surely protest,
`Stop it, Mary, you're killing me.'"Lord Justice Brown
relied upon R v Dudley and Stephens and invoked
necessity as a defence. Lord Justice Robert Walker
focused upon the intention of the surgeons in
concluding that surgery could go ahead.
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Case
The operation to separate the
twins took place on the 7th
November 2000.As expected
Jodie survived the operation
and Mary died.
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Precedent in practice: dealing with
cases
What do you do?
–
–
–
–
Apply, follow (the law is applied in the same way)
Distinguish (facts are different,)
Reverse (decision of lower court is appealed)
Overrule (by a higher court)
‘To understand case law…is to understand how it is
that particular decisions concerning particular
parties to particular cases can be used in the
construction of general rules applying to the
actions & transactions of persons at large’ MacCormick.
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Dealing with precedents (1)
3 types of cases:
– favourable
– adverse
– neutral
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Dealing with precedents (2)
Favourable cases
– similarity of facts entails same decision
– present facts fall within the scope of the precedent’s
facts
– principle of law in precedent should be applied in the
present case
Can be favourable in
– result
– reasoning
– both
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Dealing with precedents (3)
Adverse cases
Distinguish on facts
Distinguish on principle
– precedent was wrongly decided
– precedent is weak authority
– faulty interpretation of prior case
– decision given per incuriam
– since overruled or doubted
– irreconcilable with prior or subsequent decisions
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Dealing with precedents (4)
Distinguish on principle
– precedent is weak for practical reasons:
– court of low authority
– scope of decision is unclear
– weak reasoning
– influenced by special considerations
– social conditions have changed
– report is unreliable
– decision criticised by academics
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Dealing with precedents (5)
Additional weight may be
attached to a precedent by:
– the (good) reputation of the judge
– subsequent approval of the case
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Difficulties with the doctrine (1)
May be inflexible
Repetition of substantively
unjust principles
May be unpredictable
Problems with decisions
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DIFFICULTIES WITH
PRECEDENT
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Difficulties with the doctrine (2)
Problems with decisions
– facts:
– Are they ever identical?
– Which facts are analagous?
– Must similar facts be treated in the same way?
Differences can be a) different but not significant;
b) different but same principle
Rule
– What is it? Which part is the ratio decidendi and
which the obiter dicta?
– Which rule is to be followed given the various
opinions or judgments in a case?
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Precendence
Donoghue v Stevenson [1932] A.C. 562
Find out the legal problem that you think forms
the basis of the ratio decidendi.
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Precedent 2
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Donoghue v Stevenson [1932] A.C.
562
Why is this case
important?
– Foundation of the
law of negligence
– Excellent illustration
of judicial
manipulation of
precedent
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The facts
Appellant (Donoghue)
Respondent (manufacturer of ginger beer).
Donoghue drank some of the contents of a
bottle of ginger beer, bought by a friend.
Bottle was opaque.
After drinking some ginger beer, discovered
the decomposing snail.
App. suffered shock and gastro-enteritis.
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The claim
The drink was manufactured for public
consumption
The manufacturer was in fact the
respondent in the case
The opaque bottles were sealed in the
factory
The manufacturer has a duty to prevent
contamination of drinks by snails
The manufacturer has a duty to have
bottles inspected before use.
Failure re these duties caused ‘the
accident.’
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CASE
Hawkins v Smith
Oliver v Saddler &
Co
FACTS
Dock labourer &
sacks
Porter & rope slings
Supports principle of
negligence
enunciated in
Heaven & refined in
Le Lievre
Supports the
principle of
negligence & duty of
care
LORD
B’MASTER
LORD
ATKIN
LORD
M’MILLAN
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Lord Buckmaster’s statement of the
law:
Where D has contracted with A to use care &
skill in the manufacture or repair of an article,
this alone does not give B a cause of action if
he is injured by the article’s defects - Blacker v
Lake & Elliot
2 exceptions:
– The case of an article dangerous in itself
– The case of an article not dangerous by
nature but which is known by the
manufacturer to be dangerous
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Lord Atkin’s statement of the law:
In order to support an action for damages for negligence the
complainant has to show that he has been injured by the
breach of a duty owed to him in the circumstances by the
defendant to take reasonable care to avoid such injury.
The [moral] rule that you are to love your neighbour
becomes in law, you must not injure your neighbour; and
the lawyer's question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be - persons who are so
closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or
omissions which are called in question.
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Lord Atkin’s statement of the law:
I do not think so little of our jurisprudence as
to suppose that its principles are so remote
from the ordinary needs of civilized society
and the ordinary claims it makes upon its
members as to deny a legal remedy where
there is so obviously a social wrong.
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Lord Buckmaster on Donoghue’s
proposition:
In Mullen v. Barr & Co., a case indistinguishable
from the present excepting upon the ground that a
mouse is not a snail, and necessarily adopted by the
Second Division in their judgment, Lord Anderson
says this: "In a case like the present, where the
goods of the defenders are widely distributed
throughout Scotland, it would seem little short of
outrageous to make them responsible to members
of the public for the condition of the contents of
every bottle which issues from their works. It is
obvious that, if such responsibility attached to the
defenders, they might be called on to meet claims
of damages which they could not possibly
investigate or answer."
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The legal problem (1)
Does the manufacturer of an article intended for
consumption and contained in a receptacle
which prevents inspection, owe a duty to the
consumer of the article to take care that there is
no noxious element in the goods? If he neglects
this duty, is he liable for any damage caused by
such neglect?
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The legal problem (2)
The principle contended for must be this: that the
manufacturer, or indeed the repairer, of any
article, apart entirely from contract, owes a
duty to any person by whom the article is
lawfully used to see that it has been carefully
constructed. All rights in contract must be
excluded from consideration of this principle;
such contractual rights as may exist in
successive steps from the original manufacturer
down to the ultimate purchaser are ex
hypothesi immaterial. Nor can the doctrine be
confined to cases where inspection is difficult or
impossible to introduce. This conception is
simply to misapply to tort doctrine applicable to
sale and purchase. - Lord Buckmaster
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The legal problem (3)
Lord Atkin:
Whether the manufacturer of an article of drink sold
by him to a distributor, in circumstances which
prevent the distributor or the ultimate purchaser or
consumer from discovering by inspection any defect,
is under any legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is
free from defect likely to cause injury to health.
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