Presentation on theme: "(1) Legislation (2) Interpretation (3) Rules of language Mark Van Hoorebeek."— Presentation transcript:
(1) Legislation (2) Interpretation (3) Rules of language Mark Van Hoorebeek
Types of Law Case Law: Bolton v Stone Statute Law: Copyright, Designs and Patents Act Treaties: ECHR: HRA 1998 Custom: Consuetudo est altera lex: A custom has the force of law. Conventions: Established rules Each has a specific role to play in society
Statute Law Statutes 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 Parliament Statutes override inconsistent Common Law
Treaties The EU has primacy over inconsistent domestic law following ECA 1972 s.2. Custom Various regions / industries have own customs. E.g – Baker's dozen = 13 not 12 E.g – rights of fishermen to dry nets on private land These rights have grown over many years – where there was no effective parliament or source of national law.
Conventions Rules established E.g. – PM must come from the Commons not the Lords E.g. – MP's not allowed to deliberately mislead to Parliament – must resign E.g. – MP's not allowed to call another MP a liar
LEGISLATION: What is it ? One of the main sources of law Made by Parliament Statute law is based on the will of parliament and subsequently interpreted by judges
LEGISLATION: What is it ? Of increasing importance Increasingly delegated Subject to EU direction and Human Rights Legislation Enables ‘quick’ changes of direction Potentially more authoritative?
LEGISLATION: Relevance to Business? Ability to influence development via consultation Adapt to meet requirements and early identification of opportunities and threats Avoid or Manage Risk arising from implementation through –Awareness of ambit –Recognition of alternative courses of action –Ability to understand and interpret
LEGISLATION: Why use it ? Creates new areas of law –Where none exists –Where common law inadequate to develop –Where required by EC law
LEGISLATION: Why use it ? Rationalize or amend existing provision –Abolish common law or statutory rule –Amend or consolidate common law or statutory rule
LEGISLATION: Where do I find it ? Proposals: Contained in range of Consultation Papers and informed commentaries and responses Reports, Green papers, White papers Implementation Available from public/private and free/subscription services providing actual text and informed commentaries
LEGISLATION: Types Form –Public Acts –Private Acts –Enabling Legislation [delegated legislation] Function –Consolidating –Codifying –Amending
LEGISLATION: How is it made? Preparatory formal/informal consultation Parliamentary Process First Reading, Second reading Committee Stage Report stage Third reading House of Lords: Royal Assent NB Bill usually lost if not completed all stages before end of Parliamentary session but see recent reforms
Legislation is one of the three main sources of law The Parliamentary process - aims? 1) Speed 2) Debate 3) Check Consultation & Notification via: Green Paper White Paper Manifesto Queens Speech
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.
SECOND READING The general principles behind the legislation will be debated and if necessary a vote will be taken. COMMITTEE STAGE After 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.
REPORT STAGE The committee will report back to the House highlighting any amendments which may have been made. THIRD READING The 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.
OTHER 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 EFFECTIVE FROM?1) The date of Royal Assent or 2) Some specified date in the future or 3) When determined by a designated person
LEGISLATION: Delegated Legislation Legislation made by some person or body to whom parliament has delegated its general law making powers. Types –Orders in Council –Statutory Instruments –Bylaws –Court Rules Committees –Professional regulations
LEGISLATION: Delegated Legislation Advantages –Speed thereby permitting? –Expertise –Flexibility –Local Knowledge Disadvantages –Lack of media coverage –Potential abuse of power –May be deemed unconstitutional –Cumbersome
LEGISLATION: Delegated Legislation Controls –Parliamentary Power may be removed Parliamentary Committees Ministerial responsibility –Judicial Doctrine of ultra vires
LEGISLATION: Interpretation Rules Legislation being written is at risk of differing interpretation as generality of application achieved at expense of detailed clarity Judges charged with interpretation of the will of Parliament
LEGISLATION: Interpretation Rules Rules of Interpretation adopted –Literal rule –Golden Rule –Mischief Rule Plus additional aids of –Intrinsic and extrinsic information –Presumptions
LEGISLATION: EC Legislation Community law depending on nature and source may have –Direct effect without need for member state enactment –Indirect effect through specific enactment into internal law Four Sources –Internal Treaties and Protocols –International Agreements –Secondary Legislation –Decisions of the European Court of Justice
LEGISLATION: Human Rights Legislation The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law
LEGISLATION: Human Rights Legislation The Convention Rights are –Right to life –Prohibition of torture –Prohibition of slavery and forced labour –Right to liberty and security –Right to a fair trial –No punishment without lawful authority –Right to respect for private and family life –Freedom of thought, conscience and religion –Freedom of expression –Freedom of assembly and association –Right to marry –Prohibition against discrimination –Protection of property –Right to education –Right to free elections
Statutory interpretation Literal rule Golden rule Mischief rule
The 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.
The literal rule The 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. 'relaying' or 'repairing'
Advantages It 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.
Disadvantages It can produce absurd outcomes, create injustice and result in outcomes that do not match parliamentary intentions.
The golden rule The 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).
Golden Narrow This 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'.
Golden Wide The wide approach is adopted when the meaning of a word would result in a ridiculous or repugnant outcome.
Golden 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.
The mischief rule The 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.
The mischief rule This 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.
The mischief rule The 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.
The mischief rule They 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.
Hansard Hansard 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.
Hansard In Pepper v Hart (1993) the House of Lords overruled Davis and allowed Hansard to be used in certain situations:
Hansard if the legislation is ambiguous or obscure or leads to anabsurdity if 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 effect if the statements relied on are clear
Rules of language Rules 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:
(1) Ejusdem generis This 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.
Ejusdem generis This 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.
(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.
(3) Noscitur a sociis This 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 it keeps'.
Muir 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.