Presentation on theme: "Types of Law Case Law: Bolton v Stone"— Presentation transcript:
1(1) Legislation (2) Interpretation (3) Rules of language Mark Van Hoorebeek
2Types of Law Case Law: Bolton v Stone Statute Law: Copyright, Designs and Patents Act 1988.Treaties: ECHR: HRA 1998Custom: Consuetudo est altera lex: A custom has the force of law.Conventions: Established rulesEach has a specific role to play in society
3Statute LawStatutes are Acts of Parliament (What the MP's do at Westminster)Highest form of domestic law (supremacy of Parliament)Glorious Revolution 1688 – King giving power to ParliamentStatutes override inconsistent Common Law
4TreatiesThe EU has primacy over inconsistent domestic law following ECA 1972 s.2.CustomVarious regions / industries have own customs.E.g – Baker's dozen = 13 not 12E.g – rights of fishermen to dry nets on private landThese rights have grown over many years – where there was no effective parliament or source of national law.
5ConventionsRules establishedE.g. – PM must come from the Commons not the LordsE.g. – MP's not allowed to deliberately mislead to Parliament – must resignE.g. – MP's not allowed to call another MP a liar
6LEGISLATION: What is it ? One of the main sources of lawMade by ParliamentStatute law is based on the will of parliament and subsequently interpreted by judges
7LEGISLATION: What is it ? Of increasing importanceIncreasingly delegatedSubject to EU direction and Human Rights LegislationEnables ‘quick’ changes of directionPotentially more authoritative?
8LEGISLATION: Relevance to Business? Ability to influence development via consultationAdapt to meet requirements and early identification of opportunities and threatsAvoid or Manage Risk arising from implementation throughAwareness of ambitRecognition of alternative courses of actionAbility to understand and interpret
9LEGISLATION: Why use it ? Creates new areas of lawWhere none existsWhere common law inadequate to developWhere required by EC law
10LEGISLATION: Why use it ? Rationalize or amend existing provisionAbolish common law or statutory ruleAmend or consolidate common law or statutory ruleBig Ben, houses of parliamentUploader:tomDrawn by:tomCreated: :14:14Description:A silhouette outline of the houses of parliament in the UK, tower also known as "Big Ben“
11LEGISLATION: Where do I find it ? Proposals: Contained in range of Consultation Papers and informed commentaries and responsesReports, Green papers, White papersImplementationAvailable from public/private and free/subscriptionservices providing actual text and informed commentaries
14LEGISLATION: How is it made? Preparatory formal/informal consultationParliamentary ProcessFirst Reading, Second readingCommittee StageReport stageThird readingHouse of Lords: Royal AssentNB Bill usually lost if not completed all stages before end of Parliamentary session but see recent reforms
15Legislation is one of the three main sources of law The Parliamentary process - aims?1) Speed 2) Debate 3) CheckConsultation & Notification via:Green PaperWhite PaperManifestoQueens Speech
16The Bill is then printed. THE PASSAGE OF A PUBLIC BILL (introduced by the Govt into the House of Commons)First Reading (Bills may be introduced into either House but Bills with financial implications or those deemed controversial will be introduced in the Commons by a Minister).The First Reading gives notice - no questions or debate are entertained at this stage.The Bill is then printed.
17SECOND READINGThe general principles behind the legislation will be debated and if necessary a vote will be taken.COMMITTEE STAGEAfter the second reading the Bill will be passed to a committee to consider the Bill clause by clause. The committee has wide powers to make amendments, view documents and call witnesses (i.e. ministers) if deemed appropriate.
18REPORT STAGEThe committee will report back to the House highlighting any amendments which may have been made.THIRD READINGThe Bill is considered in its revised form (if applicable). Note however that any debate is restricted to the revised contents of the Bill. The general principles are not debated again.
19OTHER HOUSE: In the other House the Bill will follow a similar procedure (some differences do exist).ROYAL ASSENT: A pure formality (see the Royal Assent Act 1967). This is reflected by the fact that Royal Assent was last refused in 1707.EFFECTIVE FROM?1) The date of Royal Assent or 2) Some specified date in the future or 3) When determined by a designated person
20LEGISLATION: Delegated Legislation Legislation made by some person or body to whom parliament has delegated its general law making powers.TypesOrders in CouncilStatutory InstrumentsBylawsCourt Rules CommitteesProfessional regulations
21LEGISLATION: Delegated Legislation AdvantagesSpeed thereby permitting?ExpertiseFlexibilityLocal KnowledgeDisadvantagesLack of media coveragePotential abuse of powerMay be deemed unconstitutionalCumbersome
22LEGISLATION: Delegated Legislation ControlsParliamentaryPower may be removedParliamentary CommitteesMinisterial responsibilityJudicialDoctrine of ultra vires
23LEGISLATION: Interpretation Rules Legislation being written is at risk of differing interpretation as generality of application achieved at expense of detailed clarityJudges charged with interpretation of the will of Parliament
24LEGISLATION: Interpretation Rules Rules of Interpretation adoptedLiteral ruleGolden RuleMischief RulePlus additional aids ofIntrinsic and extrinsic informationPresumptions
25LEGISLATION: EC Legislation Community law depending on nature and source may haveDirect effect without need for member state enactmentIndirect effect through specific enactment into internal lawFour SourcesInternal Treaties and ProtocolsInternational AgreementsSecondary LegislationDecisions of the European Court of Justice
26LEGISLATION: Human Rights Legislation The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law
27LEGISLATION: Human Rights Legislation The Convention Rights areRight to lifeProhibition of tortureProhibition of slavery and forced labourRight to liberty and securityRight to a fair trialNo punishment without lawful authorityRight to respect for private and family lifeFreedom of thought, conscience and religionFreedom of expressionFreedom of assembly and associationRight to marryProhibition against discriminationProtection of propertyRight to educationRight to free elections
29The literal rule The literal rule gives the words in question their plain, ordinary dictionary meaning.An example can be seen in the case of London and North Eastern Railway Co v Berriman (1946). This case involved a widow claiming compensation for her husband, who had died at work. He was killed while oiling points on a railway line.
30The literal ruleThe Fatal Accidents Act 1864 stated that there should be a lookout when workers were 'relaying' or 'repairing' the track. The court interpreted the words 'relaying' and 'repairing' literally and concluded that oiling was maintenance, not relaying or repairing.train roadsignUploader:ryanlerchDrawn by:ryanlerchCreated: :18:11Description:A sign depicting a train crossing ahead. Swedish Road Signs Collection on Wikicommons - URL information about why this image is in the public domain can be found there.'relaying' or 'repairing'
31AdvantagesIt results in a quick decision because the meaning can be found in a dictionary or other source.It respects parliamentary supremacy because a judge's function is to apply the words of Parliament and not to make law.It is also advantageous when the words under discussion are clear, lacking ambiguity or broadness.
32DisadvantagesIt can produce absurd outcomes, create injustice and result in outcomes that do not match parliamentary intentions.
33The golden ruleThe golden rule is a variation on the literal rule. The golden rule can be used in two ways: The narrow and the wide approach.The narrow approach occurs when a word has multiple meanings. The judge selects one meaning that best fits the situation. This approach is illustrated in the case of R v Allen (1872).
34Golden NarrowThis case involved the word 'marry'. The court noted that there were two primary meanings of this word. The first involved a legal commitment to another person and the second meant being involved in a ceremony. It was noted by the judges that the first meaning would create a loophole - since the second marriage would be void, it would be impossible to commit bigamy in a criminal sense. Therefore, the court was prepared to read 'marry' as 'to go through a ceremony of marriage'.
35Golden WideThe wide approach is adopted when the meaning of a word would result in aridiculous or repugnant outcome.
36Golden Wide: Re Sigsworth (1935). A son had murdered his mother. She had not made a will so, as the next of kin, he would inherit the estate. The wording of the Act in question was clear and if the courts applied the literal rule the son would inherit the estate. However, the courts were not prepared to allow this to happen, so the wider approach of the golden rule was adopted.JackknifeUploader:TomZDrawn by:Thomas Zastrow / TomZCreated: :17:44Description:A Jackknife
37The mischief ruleThe origins of the mischief rule can be traced back to Heydon's Case (1584). This rule looks at the law before the Act was passed and at what the Act was intended to amend. The judges interpret this Act to cover any defect.
38The mischief ruleThis situation is illustrated in Smith v Hughes (1960). This case involved the Street Offences Act 1959, which made it an offence for a prostitute to solicit or loiter in a street or public place for the purposes of prostitution.Girl silhouetteSilhouette of Stripper on a PoleUploader:momokoDrawn by:momokoCreated: :24:52Description:Tags:, media , clip_art , how_i_did_it ,public_domain , image , png , svg ,people , stripper , silhouette , woman ,people , stripper , silhouette , woman
39The mischief ruleThe court had to consider appeals by six women. They had all been charged under the Act, but they argued they were not guilty because they were not in a street.Woman Silhouette 14Uploader:nicubunuDrawn by:nicubunuCreated: :38:09Description:Black silhouette defining a female body shape.
40The mischief ruleThey were inside a house and had been attracting attention by tapping on windows or shouting out. The court used the mischief rule and it was noted that the Act was designed to clear up prostitution in the streets so people could walk along the street without being molested. Therefore, although the prostitutes were not actually in the street, the Act was interpreted to include the activity they were engaged in.
41HansardHansard is an external aid, a record of what has been said in Parliament. Whether this aid should be used has caused judicial debate. Lord Denning in Davis v Johnson (1979) discussed the benefits of using Hansard, but in this case judges in the House of Lords thought it would result in greater confusion and not give the judge a clearer insight into the Act.
42HansardIn Pepper v Hart (1993) the House of Lords overruled Davis and allowed Hansard to be used in certain situations:
43Hansardif the legislation is ambiguous or obscure or leads to anabsurdityif the material relied on consists of one or more statements by a minister or promoter of the bill, together with such other parliamentary material as is necessary to understand such statements and their effectif the statements relied on are clear
44Rules of languageRules of language have developed to help in the interpretation of statutes. They allow judges to look at other words in the Act in order to make the meaning clear.There are three rules of language:
45(1) Ejusdem generisThis rule is used when there is a list of words in the statute followed by a general word - the general word is taken to include only things of the same kind.
46Ejusdem generisThis rule was used in Powell v Kempton Park Racecourse (1889). The defendant had been operating an outside betting place. The Act stated 'house, office, room or other place of betting'. The court therefore had to define if 'other place' would cover the defendant's situation. As the terms in the list all referred to indoor places, it was decided that 'other place' also referred to an indoor place.
47(2) Expressio unius est exclusio alterius This rule is used when the express mention of one thing implies the exclusion of another. An example can be seen in Tempest v Kilner (1846). This considered the Statute of Frauds Act 1677, which noted that a contract for the sale of 'goods, wares and merchandise of £10 or more' needed to be evidenced in writing. This case concerned stocks and shares and, because they were not expressly mentioned in the list, they were excluded.
48(3) Noscitur a sociisThis rule is used by looking at the words of the relevant section or other sections of the Act. It is sometimes described as'a word is known by the company itkeeps'.
49Muir v Keay (1875) LR 10 QB 594.All houses kept open at night for “public refreshment, resort and entertainment” had to be licensed. The defendant argued that his café did not need a licence because he did not provide entertainment. The court held that “entertainment” did not mean musical entertainment but the reception and accommodation of people, so the defendant was guilty.