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Sources of Law Katarzyna Gromek Broc York University York Law School.

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1 Sources of Law Katarzyna Gromek Broc York University York Law School

2 Sources of Law Sources: ways by which the law comes into existence
English law comes from variety of sources although their importance varies

3 Sources - Common Law (case law) - Equity - Custom - Legislation
A) primary B) secondary, delegated legislation - Statutory interpretation -International Law (Treaties, EU law)

4 Who makes law? Four principal law makers in the UK - the Courts
- the Parliament - EU -Council of Europe

5 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

6 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

7 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

8 Sources of law Common Law

9 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 Henry de Bracton d. 1268, English writer on law. He was the author of De legibus et consuetudinibus Angliae [on the laws and customs of England], a broad, philosophic treatise that is often called the most important work on English law before that of Sir William Blackstone.

10 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

11 Common Law - Establishment of the system of collection of the decisions of higher courts; - Publication of reports of cases in the higher courts.

12 Institutional history: Courts
Basis in Norman Conquest of 1066 Major step was in reign Henry II with the institution of a permanent court system,C13-mid C19 Central courts (Westminster), and Assize circuits

13 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).

14 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)

15 Advantages of Common Law
Certainty: like cases will be treated alike Practical: adapted to the real situations Case law developing in line with the market needs Flexible adapted to changes in society

16 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)

17 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

18 Disadvantages of common law
8. Retrospective effect ( unlike the legislation can apply to the events before the case reached the Court)

19 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)

20 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 : one system

21 Equity Although the same courts today, the separate rules remain
conflict between equity and common law, equity prevails

22 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”

23 Sources: Legislation ‘Queen in Parliament’ (Dicey)
Legislation superior to common law Most recent enactment is the law Statutes superior to secondary legislation

24 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

25 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)

26 UK Parliament

27 UK Parliament House of Commons House of Lords

28 Legislation Primary legislation (Act of Parliament)
Secondary legislation (rules made by administration not by legislature on implementation of the Acts)

29 Act of Parliament Public (incl. Private Member’s Bills) or Private
The Whitehall stage (public bills) Consultation Green Paper White Paper Drafting

30 Parliament Act The Westminster stage Royal Assent Parliamentary Time
Westminster, usually House of Commons: 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

31 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.

32 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).

33 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.

34 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

35 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.

36 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.

37 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 lost.

38 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 .

39 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.

40 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.

41 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.

42 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 legislative-process, look back on the work which they have contributed in the Committee Stage.

43 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.

44 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.

45 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

46 Sources of Law: Delegated Legislation
Making delegated legislation - Statutory instruments - Byelaws -Orders of the Council

47 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

48 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.

49 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

50 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)

51 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

52 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

53 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

54 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’

55 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.

56 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).

57 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.

58 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

59 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.

60 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”

61 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

62 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

63 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

64 Civil Courts Majority of civil cases Judges
Small Claims Procedure (up to £5k) Fast-track cases (up to £15,000) Judges Circuit Judges (senior judges) District Judges (trained, stipendiary)

65 Civil Courts: county court (2)
Circuit Judge – Court Dress Appeals From DJ to CJ From CJ to Court of Appeal (Civil Division) Lawyers Solicitors Barristers NB Woolf Report and Reforms

66 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

67 High Court Judge & High Court Judge (criminal cases)

68 High Court: Family Division
First Instance: Matrimonial and children matters Inherent jurisdiction of the High Court in relation to minors, e.g. commencement of wardship proceedings. Dissolution of civil partnerships Medical treatment declarations Appellate Jurisdiction: Appeals from Magistrates Courts in Family matters

69 High Court: Queen’s Bench Division
Court of First Instance Certain applications for writs of habeus corpus Judicial review cases heard by the Administrative Court Also Admiralty, Commercial, Technology & Construction courts Appellate Jurisdiction - Divisional Court of the Queen’s Bench Division Mainly criminal appeals from the Magistrates and Crown Courts

70 High Court: Chancery Division
First Instance Trusts, mortgages, company law and partnerships, intellectual property matters, corporate and personal insolvency, trade and industry disputes, contentious probate matters, intellectual property, etc. Appellate Jurisdiction - Chancery Divisional Court (limited): Appeals in bankruptcy cases from county courts and High Court registrars

71 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)

72 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)

73 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

74 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

75 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.

76 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”.

77 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.

78 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

79 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

80 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.

81 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.

82 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.

83 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.

84 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.

85 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.

86 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.

87 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. 

88 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”.

89 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.

90 Reform: a Supreme Court
Constitutional Reform Act 2005 Supreme Court: 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

91 FROM OCTOBER 2009 Creating a new Supreme Court means that the most senior judges will be entirely separate from the Parliamentary process.

92 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.

93 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)

94 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

95 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.

96 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.

97 What is the Doctrine of Precedent?
Stare Decisis ratio decidendi/rationes decidendi (binding) obiter dicta (may be persuasive)

98 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

99 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

100 The operation of precedent
Vertical precedent Horizontal precedent

101 Hierarchy of precedent

102 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

103 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.

104 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

105 Precedent hierarchy (4)
Trial Courts (Magistrates’ Crown Court, County Court, High Court) Bound by superior courts Privy Council Not technically binding, but persuasive

106 Precedent in practice

107 Precedent in practice (1)
Case of the conjoined twins Re A (Children) [2001] Fam 147 Court of Appeal

108 Precedent in practice (2)
You are High Court judges, asked to decide on whether the separation of two three-year-old twins, conjoined at the head, should go ahead. It is possible that both will survive, possible but less likely that both will survive without mental impairment. Re A is a Court of Appeal case. Are you bound by CA precedents? What do you do?

109 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.

110 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.

111 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.

112 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.

113 Case The operation to separate the twins took place on the 7th November 2000.As expected Jodie survived the operation and Mary died.

114 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.

115 Dealing with precedents (1)
3 types of cases: favourable adverse neutral

116 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

117 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

118 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

119 Dealing with precedents (5)
Additional weight may be attached to a precedent by: the (good) reputation of the judge subsequent approval of the case

120 Difficulties with the doctrine (1)
May be inflexible Repetition of substantively unjust principles May be unpredictable Problems with decisions

121 Difficulties with precedent

122 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?

123 Precendence Donoghue v Stevenson [1932] A.C. 562 Find out the legal problem that you think forms the basis of the ratio decidendi.

124 Precedent 2

125 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

126 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.

127 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.’


129 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

130 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.

131 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.

132 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."

133 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?

134 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

135 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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