1.1 DEFINITION AND TYPES OF LAW

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1 1 English legal system The following topics are covered in this chapter: Definition and types of law Court system Sources of law Legislation Rules of statutory interpretation Human Rights Act DEFINITION AND TYPES OF LAW LEARNING SUMMARY After studying this section you should be able to: define law distinguish between the types of law. There are likely to be a number of Section A objective test questions on the English Legal System. Definition of law DEFINITION The principles and regulations established in a community by some authority and applicable to its people whether in the form of legislation or of custom and policies recognised and enforced by judicial decision. Types of law Common law and equity English legal system Private law and public law Criminal law and civil law 1

2 Common law and equity KEY POINT Equity was developed two to three hundred years later after common law. Common law Developed from local customs Introduced the system of precedent Only remedy is damages May be rigid and inflexible Private and public law Equity Developed as a petition by a party who felt the common law led to injustice Concerned with fairness Introduced new discretionary remedies More flexible than the common law In the event of a conflict between common law and equity, equity will prevail. KEY POINT Public law deals with matters relating to the whole country, whereas private law is concerned with the law enforced between individuals. Criminal law versus civil law Criminal law Conduct of which the State disapproves. Form of public law. Enforce particular forms of behaviour. Case brought by the State (R v defendant). Burden of proof is on the prosecution. Beyond reasonable doubt. Civil law Involves the relationship between individuals. Form of private law. Settle disputes between individuals and to provide remedies. Case brought by the claimant against the defendant. Burden of proof is on the claimant. Balance of probabilities. Regulate society by the threat of punishment. If guilty the court will sentence and fine or imprison. 1.2 THE COURT SYSTEM LEARNING SUMMARY After studying this section you should be able to: Usually financial compensation for the claimant. Court will order damages or another remedy explain the court structures for the civil and criminal legal systems distinguish between a court and tribunal. 2

3 The main English civil courts KEY POINT The term first instance refers to the court in which the case is first heard. Supreme Court (previously House of Lords) Court of Appeal (civil division) High Court of Justice 3 divisions: Queen s Bench Division Chancery Division Family Division Magistrates Court Jurisdiction is mainly criminal but does have civil jurisdiction in family matters such as contact orders, adoption and maintenance. County Court First instance civil claims in contract, tort, landlord and tenant, probate and insolvency. Note that the court of first instance in a civil case can be either the Magistrates Court, County Court or the High Court. The three-track system Small claims track Simple claims valued at no more than 10,000 Fast-track Claims between 10,000-25,000 Multitrack Claims over 25,000 and/or complex claims. KEY POINT The High Court deals with high value and/or complex claims. All other claims are dealt with by the High Court. 3

4 The main English criminal courts KEY POINT The court of first instance for a criminal case is always the Magistrates Court. Supreme Court Court of Appeal (Criminal division) Remember the Queen s Bench Division is part of the High Court. Divisional Court of the Queen s Bench Division Crown Court Case stated appeals from the Magistrates Court on questions of law go to the Queen s Bench Division. Magistrates Court Appeals from the Magistrates Court on questions of fact go to the Crown Court. Other courts The Court of Justice of the European Union European Court of Human Rights Judicial Committee of the Privy Council Deals with actions between the EU institutions and the member states. Is superior to the UK Supreme Court. The final court of appeal in relation to matters concerning the Human Rights Act 1998 (see later). The highest court of appeal for a number of Commonwealth countries, crown dependencies and UK overseas territories. There is no right of appeal from these courts. 4

5 Tribunals KEY POINT Tribunals are an alternative to using the court system to settle a dispute. Court v tribunal A relevant tribunal for F4 is the Employment Tribunal. Expertise Court May not be heard by a specialist in that area of law. Tribunal Heard by someone with expertise. Speed Slower process. Quicker process. Cost Legal aid maybe available, if not can be an expensive process. Legal aid generally not available but can be cheaper procedure. Proceedings Strict rules. Less formal. Decisions Bound by the doctrine of judicial precedent. Consistent decisions. 1.3 SOURCES OF LAW LEARNING SUMMARY After studying this section you should be able to: explain the meaning of judicial precedent, ratio decidendi and obiter dicta illustrate how the doctrine of judicial precedent works in relation to the civil courts. Overview Not bound by the doctrine of judicial precedent, therefore risk making inconsistent decisions, European law takes precedence over all other sources. Legislation takes precedence over case law. Equity prevails over common law. Doctrine of judicial precedent DEFINITION The system, adopted by the judges, of following the decisions in previous cases is called the doctrine of judicial precedent. 5

6 KEY POINT If a precedent is binding then it must be followed in a later case. KEY POINT Some precedents are persuasive which means that a judge in a later case may choose to follow it but is not bound to do so. There are three factors to consider when deciding whether a precedent is binding or persuasive: the hierarchy of the courts ratio decidendi and obiter dicta the material facts of the case. The hierarchy of the courts KEY POINT As a general rule, the precedents of higher courts bind lower courts, but not vice versa. Supreme Court binds all lower courts. From 1966 does not bind itself. Court of Appeal binds all lower courts and itself in civil cases unless earlier decision overruled or is inconsistent with European law. The 1966 Practice Statement allows the Supreme Court to depart from a previous decision if it appears right to do so. This allows the law to develop in line with changes in society. High Court not bound by its own decisions, but strong persuasive authority. Ratio decidendi and obiter dicta DEFINITION The ratio decidendi is the legal reason for the decision. KEY POINT The ratio decidendi is capable of forming the binding precedent. It is a statement of law which is carried down to later decisions. DEFINITION Obiter dicta are statements which are not part of the ratio, they are other statements made by the judges such as wider legal principles. KEY POINT Obiter dicta statements are persuasive rather than binding. They do not have to be followed in later decisions. 6

7 When is a precedent not binding? Overruled by a higher court Overruled by statute Made without proper care Can be distinguished from the earlier case Facts of the case In order for a precedent to be binding on a judge in a later case, the material facts of the two cases must be the same. If they are significantly different, the precedent will be persuasive rather than binding. Advantages and disadvantages of judicial precedent Advantages Creates consistency Allows flexibility Law is clear Based on actual events, therefore practical Disadvantages Can be hard to understand and apply Law can become rigid System is reactive rather than proactive Do you understand? 1 Criminal law is a form or private law. True or false? 2 The ratio decidendi is the legal reason for the decision made in a case. True or false? 3 One of the disadvantages of taking a case to tribunal is that it is likely to be a slower process. True or false? 1 False 2 True 3 False 7

8 1.4 LEGISLATION LEARNING SUMMARY After studying this section you should be able to: explain how legislation is made distinguish between an Act of Parliament and delegated legislation. Types of legislation Act of Parliament Legislation Delegated legislation Acts of Parliament Parliament consists of: House of Commons House of Lords Monarch In order to become an Act of Parliament, a Bill must go through the following stages in both Houses: First reading Before an Act of Parliament is passed it is referred to as a Bill. Second reading Committee stage An important Act for F4 is the Companies Act Report stage Third reading Royal assent 8

9 Doctrine of sovereignty of Parliament KEY POINT Only Parliament can make new law and it can make any law it wishes. Delegated legislation KEY POINT Parliament has delegated some of its legislative powers to other bodies. Usually, Parliament passes an enabling Act setting out the policy involved and the objectives it wishes to achieve. The Act then delegates the task of filling in the details to some other body. The following are examples of delegated legislation: statutory instruments bye-laws Advantages Disadvantages Saves Parliamentary time May benefit from technical expertise Volume and lack of publicity Maybe seen as undemocratic as not voted on by members of the House Of Commons Allows flexibility Based on actual events, therefore practical Parliamentary Joint Select Committee scrutinises all statutory instruments. Controlling delegated legislation Judicial Courts can challenge the validity though the process of judicial review. When a judicial review takes place it is on the basis that someone acted ultra vires i.e. exceeding their powers of authority. Human Rights Act 1998 Can be declared invalid by the courts if incompatible with HRA

10 1.5 RULES OF STATUTORY INTERPRETATION LEARNING SUMMARY After studying this section you should be able to: set out the rules used by the courts in interpreting statutes. Statutory interpretation DEFINITION The process by which judges assign meanings to ambiguous words or phrases in statutes. Literal rule Words must be given their ordinary dictionary meaning, even if this produces an undesirable outcome. In Fisher v Bell the court applied the fundamental principles of contract law even though this did not recognise the aim of Parliament, which was to prevent the sale of offensive weapons. Golden rule Where the literal rule gives more than one meaning or provides an absurd result, the golden rule is used to ensure that preference is given to the meaning that does not result in absurdity. Mischief rule Used to interpret a statute in a way which provides a remedy for the mischief the statute was enacted to prevent. Purposive rule Eiusdem generis This is a more modern approach. The court looks at what they felt Parliament was trying to achieve. General words mean the same kind of thing as the specific words they follow. In Gardiner v Sevenoaks RDC it was held that the purpose of an Act was to protect the safety of persons working in all places where film was stored. If film was stored in a cave, the word premises included the cave. Expressio unius exclusion alterius Where a statute seeks to establish a list of what is covered by its provisions then anything not expressly included in that list is specifically excluded. 10

11 1.6 HUMAN RIGHTS ACT 1998 (HRA 1998) LEARNING SUMMARY After studying this section you should be able to: identify basic concepts of human rights as expressed in the Human Rights Act 1998 (HRA 1998). Overview Purpose What is Convention law? How does it affect judicial interpretation? What if legislation is incompatible with the Convention? Incorporates EU Convention into UK domestic law. Convention and decisions of the European Court of Human Rights. UK Courts must take Convention law into account when deciding a question that has arisen in connection with a Convention right. If court feels that legislation is incompatible with the Convention, then it may make a declaration of incompatibility. Parliament must remedy the situation through new legislation In Bellinger v Bellinger the court had to consider whether a male to female transsexual could be treated as a female under an Act. It held it was unable to interpret the Act in such a way and issued a declaration of incompatibility. Do you understand? 1 Delegated legislation is created by Parliament. True or false? 2 Which rule of statutory interpretation asserts that word should be given their ordinary dictionary meaning? 3 If legislation is found to be incompatible with the European Convention then it must be declared void. True or false? 1 False. 2 The literal rule. 3 False. A declaration of incompatibility will be made. 11

12 Exam style questions 1 The Queen s Bench Division is a part of which of the following court? A The Court of Appeal B The Supreme Court C The High Court 2 In a case that is being heard under the civil law, which of the following is the injured party? A The prosecution B The claimant C The defendant 3 Which of the following is not an advantage of the system of judicial precedent? A The law becomes more practical as it is based on real life events B The law is more consistent as previous decisions are followed C The law is only made by our democratically elected representatives 12