Chapter 1: Sources of Law Flashcards
1
Q
1.1 What is law?
A
Before considering what the sources of law are in England and Wales, the jurisdiction on which your studies will focus, it is important to consider what ‘law’ means. A working definition of law for the purposes of your introductory studies is provided below.
Law: The system of rules which a particular country or community recognises as regulating
the actions of its members, and which it may enforce by the imposition of penalties.
2
Q
1.2 Legal evolution & the function of law
A
1) It maintains the peace and safety in society
2) It regulates the relationships between individuals and other legal entities
3) It protects human rights and liberties
4) It ensures the smooth running of economic and political activities
As a body of rules designed to promote the orderly conduct of society, the law must reflect the
wishes or tolerance of the broad majority of the population, in order to be credible and thus enforceable. It must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’.
Although development looks to the future, the historical development of the English legal system is not a subject that is relevant only to historians. The law that we have today is a by-product of a long history of legal development
3
Q
1.3 Stages of legal development
The development of the law of England and Wales can be very broadly divided into the following
periods
A
Pre-1066 (Norman Conquest): Locally based systems and customs of AngloSaxon society.
1066 - 1485: The formation of common law and its imposition
over and above local systems and customs.
1485 - 1870s: Development of equity; two separate legal systems co-exist.
1870s - present:
* Joint jurisdiction for common law and equity
* Massive development in statute law
* Growth of governmental and administrative bodies
* Influence of European Union law (post-1973)
4
Q
1.4 The monarch as the source of justice
A
Today’s legal system has its origins in the King’s (and Queen’s) Courts. Following the Norman Conquest, it gradually became possible to dispense a more centralised form of justice, with the King as the central figure.
5
Q
High Justice (Most Important Cases)
A
In the Norman period, the Curia Regis – the King’s Council – played the role of an itinerant court, allowing the monarch to exercise his personal power – ‘High Justice’ – in the most important of cases. This prototype central court existed alongside the local courts (in shires and hundreds) that had been a feature of the Anglo-Saxon period.
6
Q
Role of clerics in the monarch justice system
A
The King was aided in the administration of justice by a group of semi-professional, skilled clerics
who were part of the royal entourage. These clerics eventually took on the function of deciding
disputes themselves. They became autonomous from the King and established themselves at Westminster. The establishment of a fixed King’s Court was required by the Magna Carta in 1215. The King’s Council gradually developed and different ‘branches’ of the court evolved to deal with different types of dispute.
7
Q
1.5 The three courts developed from Kings Council
A
Three courts developed from the King’s Council. The first was the Court of Exchequer, dealing with royal finances, followed by the Court of Common Pleas, dealing with the ownership and possession of land. Later, the Court of King’s Bench emerged, dealing with serious crimina matters. These courts remained until the Judicature Act 1873.
8
Q
‘Assizes‘ (or sittings) of the royal courts (for criminal matters)
A
To make provision for the administration of law outside London, royal justices were dispatched to the provinces with a royal commission to hold ‘assizes‘ (or sittings) of the royal courts. Initially the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters. Assize Courts continued until the enactment of the Courts Act 1971
9
Q
Appeal Court emerged from Court of Exchequer Chamber
A
An appeal court also emerged in the form of the Court of Exchequer Chamber. It was abolished
in 1875, when its jurisdiction was transferred to the new Court of Appeal.
10
Q
1.6 The common law
A
Over time, the King’s Courts became essential to the resolution of disputes between citizens. The law which the King’s judges applied was based upon the common customs of the country, hence the term ‘common’ law.
11
Q
Establishment of Royal Power
A
This process was most notable following the calling of the first assizes by King Henry II (1154-89),
to deal with the legacy of a lengthy civil war involving his predecessor, King Stephen. This reestablishment of royal power provided the opportunity to apply the law of the King’s Courts countrywide.
12
Q
Eventual ascendancy over the local courts.
A
The effectiveness of the new system depended upon the growth of the King’s Courts and their eventual ascendancy over the local courts. This process did not come about easily. The expansion of the King’s Courts was resisted by the local barons, who saw it as a threat to their power, which was often exercised through the local courts. Nevertheless, the growth of the new system continued. It was firmly in place and recognised as supreme over the local courts by the time of the reign of Edward I (1272-1307).
13
Q
1.6.1 Common law – meaning
A
The term ‘common law’
may be used:
* In the historical sense, to distinguish the law as applied by the King’s judges as opposed to the
law as applied by local customary courts
- To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a
system developed by the separate Court of Chancery - To distinguish case law – that is, law as developed by judges through the system of precedent
– from statute law - To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law (as, for instance, in most of mainland Europe).
14
Q
1.7 The writ system
A
The common law which was developed by the King’s Courts was a procedural system. There was
no automatic right of access to the King’s Courts. To be able to pursue a claim, the claimant had to purchase a writ from the Chancellor before an action could be brought before the courts
A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court. It contained the foundation of the complaint, with a different form of writ being used for each ground of complaint (or ‘forms of action’).
15
Q
Rigidity of the writ system prevents growth of substantive law
A
The writ system soon became rigid. The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issued. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try. The rules of procedure, which required a pre-existing form of action for a case to be heard, therefore had a stultifying effect on the growth of the substantive law.
16
Q
1.7.1 Different forms of writs
A
1) The writ of right developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes)
2) Debt which involved recovery of the fixed sum
3) Detinue which involved recovery of cattle
4) Covenant which involved a breach of promise
5) Account which involved accounting for a payment
6) Trespass which involved one against persons, goods or land –
jury trial
7) Case which involved a remedy where no current action – later influential in development of
tort law
17
Q
1.8 Procedure over substance?
A
For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed. Selection of the wrong writ or failure to follow the correct procedure would be fatal to an action. Process, rather than principles, rights and duties, was paramount, therefore
18
Q
Problem with common law: Common law used for dispute resolution for ‘right’ & ‘wrong’, binary and black & white
A
The reason for this was that the common law developed largely as a means by which a dispute could be resolved. The courts came into existence as part of the development of centralised royal power, with the aim to conclude disputes rather than necessarily to resolve them in a just way. It was not a system that developed from a concept of ‘rights’ and ‘wrongs’
19
Q
Problem with common law: Remedy of damages
A
Another problem with the emerging common law was that, in personal actions, it offered only the remedy of damages. For example, when one breached a covenant (a legally binding promise), the aggrieved party would not be able to compel the breaching party to fulfill the promise.
Such issues combined together to encourage the emergence of the law of equity. (See ‘Equity’ section below.)
20
Q
- Case law
A
The terms ‘case law’ and ‘common law’ are used interchangeably, to distinguish law that is decided by judges, from statute law that is made by Parliament – and interpreted by judges.
The ‘common law’ refers to the body of case law decided by judges. It is sometimes referred to as ‘judge made’ law.
21
Q
Common law system & rules of precedence
A
The common law system is governed by rules of precedent. This means that the decisions of judges higher up in the hierarchy of courts and tribunals are ‘binding’ on those lower down. In other words, judges in lower-level courts and tribunals have to decide cases in accordance with
the principles laid down by the higher courts.
22
Q
2.1 What do judges do?
A
Judges decide cases that are brought by individuals (whether these are private individuals, or other ‘legal personalities’ such as companies) against another party. Judges in the UK do not, of their own accord, start cases or investigate legal issues.
23
Q
How judges decide cases:
A
In order to decide a case, a judge will:
- Consider the evidence brought by the parties and decide which evidence they find credible.
- Consider the applicable law. This may be case law, or statute, or a combination of both. They then give a judgment.
- Apply the law to the facts of the case and reach a decision on which party should succeed.
- Decide what remedy the successful party is entitled to, eg damages, and make an order
giving the successful party its remedy.
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Q
2.1.1 Do judges ‘make law’?
A
A keen area of academic debate is whether or not judges make law, in the sense of creating legal principles. The traditional theory is that they do not do so but merely declare what the law has
always been.
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Retrospective Nature of Precedence
Linked to this idea is the retrospective nature of precedent. The view is that judicial decisions are
based on statements of legal principle which have always been in existence, but which are not
fully expressed or delivered until an appropriate case is brought before a court.
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Prospective nature of statutes
Contrast the retrospective and reactive nature of case law with the prospective nature of statute
law. Statutes (Acts of Parliament) set out the law for the future and rarely have retrospective effect.
As a result, judges are normally cautious about ‘upsetting’ long-standing precedents, particularly in the fields of criminal law and property rights. Such precedents would likely have been relied on by many people, and to hold that the law is not as it was could have serious personal or financial consequences.
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2.2 ‘Stare decisis’ (binding precedent) or stand by what has been decided
A distinct characteristic of the English legal system, as a common law system, is that it employs
the doctrine of stare decisis or binding precedent. Stare decisis literally means ‘stand by what
has been decided’. In essence, once a principle of law has been laid down, future cases with the same material facts must be decided in the same way
28
Contrast to civil legal systems
This is in contrast to civil legal systems, where courts concentrate on interpreting detailed written codes of the law rather than interpreting previous decisions applying those codes. Previous decisions, or precedents in civil systems are simply
examples of the application of codes.
29
Previous cases are binding in English Courts
For an English court to be compelled to follow what has been stated in an earlier case, it is necessary for it to be persuaded that:
* The earlier case was decided in a court which binds it; and
* The relevant part of the earlier case is binding, rather than merely ‘persuasive’.
30
2.3 What part of a judgment is binding? = Point of Law
As soon as a ‘point of law’ has been decided by any superior court, it establishes a precedent. A
point of law is a question about the application of the law to the case, which the court has been asked by the parties to decide. Some judgments, such as those of the Supreme Court, deal with points of law of ‘general public importance’. The lower courts also deal with points of law, but they are usually of little wider significance.
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A precedent may be:
* Binding, in which case it must be followed; or
* Persuasive, in which case it will be considered by the later court and may be followed.
Not every aspect of a judgment is binding. A judgment consists of:
(a) A summary of the facts
(b) Statements of law, which will include the ratio decidendi and (often) obiter dicta
(c) The court’s decision on remedy, which is binding only on the parties to the case
32
2.4 Ratio decidendi or reason for decision
Ratio decidendi: This means the ‘reason for the decision’. The ‘ratio’ of a judgment is the part which is binding on other courts. The ratio is the legal principle or rule on which the court’s decision is based, applied to the material facts of the case.
Material facts: The facts on which the decision of the court depends. If the material facts change, the court’s decision might also change.
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2.4.1 Identifying the ratio
May not be immediately obvious when you read the judgment of a case. This may be because the judges have given several reasons for their decision, because their reasons may not be entirely clear, or because each judge may have given a different reason, though they have
agreed on the final outcome
34
Width or level of generality that a ratio
A further problem is identifying the width or level of generality that a ratio is meant to have. A ratio can be viewed as a narrow proposition of law or a wide proposition of law. If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle
35
Confining the (earlier) case to its facts’.
The judges in the case may state what the width of the ratio should be. Judges in subsequent cases will also consider how wide the ratio of a previous case is. They might decide that the ratio is very narrow, so that the earlier case can be distinguished. This is known as ‘confining the
(earlier) case to its facts’.
36
Identifying the ratio through consultation with a law report
In practice, a useful guide to identifying the ratio of a judgment is to consult a law report. These
introduce the text of a judgment with a ‘headnote’, which gives essential information about the case including a section in which the law reporter explains what in his or her view the court has held as a matter of law, in reaching its judgment.
37
2.5 Obiter dictum (judges commenting on an area of law that is not binding)
Obiter dictum: This is where a judge comments on an area of law, on which it is not necessary to reach a decision in the case. Obiter comments are not regarded as binding, although they may be highly persuasive and influential in subsequent cases.
38
Obiter dicta consist of:
Statements of law not necessary to the decision, eg on hypothetical facts or on facts which are not material.
* Statements of the law as the judge would like it to be, but for the doctrine of precedent
* Dissenting judgments, ie the view of a judge who disagrees with the majority of the court
39
Ungoed-Thomas J noted in Re Grosvenor Hotel, London (No. 2) [1964] 2 All ER 674:
In practice, obiter comments may be very important. As Ungoed-Thomas J noted in Re Grosvenor Hotel, London (No. 2) [1964] 2 All ER 674: ‘A battery of howitzers off the target is more impressive than a pop-gun on it. Powerful obiter dicta by the House of Lords may sometimes be regarded as
so persuasive as to be practically binding.’
40
2.6 Terminology
Following the decision
Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed.
41
Approving the earlier one
If the court doing the ‘following’ is a higher court, then the later decision is also said to be approving the earlier one
42
Applying the earlier decision
Where a court in a later case considers the facts of an earlier case to have similarities to those in
the case before it and therefore applies the law in that earlier case, the later court is said to be
applying the earlier decision.
43
Distinguish the earlier case
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the earlier case – eg by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts. Finding a fact
on which to distinguish an unhelpful or unpopular precedent is part of a judge’s skillset.
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2.7 Reversing, overruling, overturning…
Judgement is reversed
A judgment is reversed if a case goes to appeal, and the higher appeal court disagrees with the
lower court. This does not negate a precedent; it simply means the higher court has not applied
the law in the same way.
45
Precedent is overruled or overturned
A precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead. The original precedent is no longer good law. For example, the Supreme Court may overrule a precedent from the Court of Appeal. The word ‘overturn‘ is also used for this
46
Some parts of former elements are left intact
(Note that, if a judgment is reversed, or if a precedent is overruled, but only in part, some of the
elements of the former decision may be left intact.)
47
Depart from its own precedent
One of the potential problems inherent in a system based on precedent is ossification of the law.
What happens at the top of the hierarchy if today’s highest appeal court (the Supreme Court)
wishes to depart from its own precedent in order to modernise or correct the law?
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2.8 Departing from ‘own’ precedent
Until 1966 this was not formally recognised as being possible. However, in that year, the former
Appellate Committee of the House of Lords – the ‘law lords’ – recognised that this may be necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234.
49
Lord Gardiner L.C.
Very Rigid Precendence leads to injustice and restricts appropriate development of law
Stated that the law lords ‘recognise[d] that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law’.
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Danger of disturbing
retrospectively
In modifying the old practice, he warned that they would ‘bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law’.
51
Austin v Southwark LBC [2010] UKSC 28
In Austin v Southwark LBC [2010] UKSC 28, Lord Hope confirmed that the (new) Supreme Court
would maintain the same guarded but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court
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2.9 Court of Appeal – departure from precedent
A similar approach is taken in the Court of Appeal (CA). The Court is generally intent on maintaining its own precedents but three exceptions were outlined in the case below
53
Key case: Young v Bristol Aeroplane Co. Ltd [1944] KB 718
Lord Greene MR outlined three exceptions where the CA could depart from its own precedent:
(a) If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
(b) If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme
Court or House of Lords, it need not be followed.
(c) If the CA’s previous decision was made per incuriam (through lack of due regard to the law or the facts)
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Per incuriam
Note that per incuriam does not simply mean that the earlier CA made an error. It only applies when the previous court was not aware of a relevant authority (in case or statute) which would have been binding on the court’ and that ignorance led to faulty reasoning by the court.
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2.10 Rules of precedent
Binding on....
1) Supreme Court: All inferior courts and itself (subject to 1966 Practice
Statement)
2) Court of Appeal (All inferior courts and itself (subject to Young v BA
exceptions)
3) The High Court: All inferior courts, and itself (unless there is a powerful
reason to depart)
4) The Upper Tribunal: The First Tier Tribunal, inferior courts, and itself
5) The First Tier Tribunal: Not binding but may be persuasive
6) Family Court: Not binding
7) County Court: Not binding
8) Crown Court: Not binding
9) Magistrate Court: Not binding
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2.11 Summary
* Judges develop the law by applying established legal principles to new situations.
* The part of a judgment which establishes a principle which can be applied to other cases is
called the ‘ratio’.
* ‘Obiter dicta’ are ‘things said by the way’ in a judgment; they may or may not be significant, depending on the facts of the case and the seniority of the tribunal.
* The rules of precedent mean that (in general) the lower courts are bound to apply the judgments of the senior courts.
* A previous judgment which might otherwise be a precedent, can be ‘distinguished’ if the facts of the case at hand are different.
* The higher appeal courts can depart from their own precedents but only in exceptional cases,
in order to prevent too much rigidity in the law.
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3 Equity
3.1 The history of equity
As a consequence of some of the problems created by the common law (outlined above in the
section ‘Sources of law’), aggrieved litigants, who felt that justice was not served in the King’s Courts, began to petition the King to do justice in particular instances.
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Equal & Right Justice in Mercy & Truth
The King, part of whose coronation oath was ‘to do equal and right justice and discretion in mercy
and truth’, was known as the ‘fount of all justice’. These petitions were passed on to the Chancellor, a cleric seen to be the ‘keeper of the King’s conscience’ for a decision.
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Equity through Formal Procedure
By the end of the 13th century, such petitions were dealt with through a more formal procedure by the Court of Chancery, presided over by the Lord Chancellor. Equity can be defined as the body of principles and rules administered by the Court of Chancery before the Judicature Acts
1873-1875.
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Rules & Principles of Equity today
Even though the court system has changed since the 19th century, it is significant that the underlying rules and principles of equity are still applicable today.
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3.2 Origin of the law of trusts
One of the examples often given to illustrate the reasons for the emergence of this area of law
relates to the crusades. When landowners went abroad to fight, they needed someone to look
after their lands, to perform feudal duties and collect rents in their absence.
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Chancellor intervention in Equity
The common law courts refused to recognise the rights of the original landowner and his family on
the basis that, having no legal title, they had no standing or interest in the King’s Courts. However, the Chancellor intervened in equity on the ground that it would be unconscionable for the recipient of the estate to ignore the terms of the transfer.
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Seeds of the modern law of trusts
The recipient would thus be compelled to hold the land for the use and benefit of the original
landowner and his family. This sowed the seeds of the modern law of trusts.
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3.3 Discretionary nature of equity
The key feature and benefit of this emerging set of principles was its greater flexibility.
The Lord Chancellor was able to act outside the strict rules of procedure developed by the common law, and to decide cases guided by his own sense of fairness. There was a strong moral element to decisions, deriving from the office’s origins in the Church.
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A gloss on the common law, equity law supplementing rather than replacing common law principles
Consequently, equitable precedents grew, and equity developed and maintained its own separate
system of rules. As a system which supplemented instead of usurping the common law, equity, as
described by the legal historian F.W. Maitland, represented ‘a gloss on the common law’.
Equitable remedies remain discretionary in modern law.
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3.4 Conflict between equity and common law
Equity should prevail over common law
James decided that, in cases of conflict, equity should prevail over common law. This rule was enshrined in s 25 of the Judicature Act 1873-1875 and is now to be found in s 49(1) of the Senior Courts Act 1981.
The judgment also stressed, however, that the function of equity was to supplement the common
law and not to supplant it. This is reflected in the equitable maxim: equity follows the law
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3.5 Two systems? = problem with the duplication of proceedings
Having two systems of law presented considerable problems for litigants. If both an equitable remedy (such as an injunction) and damages were required, two actions would have to be brought: one at common law and one in Chancery. This duplication of legal proceedings was onerous for all involved and very time-consuming. (The situation is heavily parodied by Dickens in Bleak House.)
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Judicature Acts 1873- 1875.
There was some attempt at resolution of this division in the mid-19th century. However, legal
processes remained very cumbersome, and it was not until 1873-75 that fundamental reforms
were introduced through the Judicature Acts 1873- 1875.
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Series of Acts abolished Old Divisions
This series of Acts abolished the old division between the three common law courts and the Court of Chancery, and instead created a single High Court and Court of Appeal which could apply the rules and remedies of both common law and equity.
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3.6 Continuing distinction = Equitable Maxims
Despite the formal fusion of the common law courts and the Court of Chancery in the 1870s, the conceptual distinction between common law (legal) rights and equitable (or beneficial) rights
remains crucial to the law overall. The principles of equity, consolidated in the 17th and 18th centuries and expressed in the form of ‘equitable maxims’, remain applicable today.
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Equitable remedies are still discretionary in nature
Equitable remedies = discretionary in nature
Common law damages (financial compensation = available as a right
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The equitable remedies
The equitable remedies, briefly explained on the following pages, are:
* Specific performance
* Injunction
* Declaration
* Rescission
* Rectification
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3.7 Specific performance
Specific performance is an order by the court to compel a party to perform something they have
promised to do under a contractual agreement.
It is an equitable remedy available for breach of contract. Specific performance is a discretionary
remedy and is not available as of right for every breach of contract.
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Conditions & Requirements for Specific Performance. Only applicable where....
* There is a valid and enforceable contract.
* Damages would not be an adequate remedy for the claimant.
(Specific performance is not available for breach of a contract for personal services (eg employment), or for the performance of contractual obligations which would require constant supervision.)
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3.8 Injunction
An injunction is an order that requires a party to legal proceedings either:
* To do something (a mandatory injunction); or
* To refrain from doing something (a prohibitory injunction).
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Injuctions can only be awarded where...
An injunction may be awarded only where damages would not adequately compensate the
claimant. Injunctive relief can be interim (obtained before the conclusion of legal proceedings) or
final (obtained at the conclusion of legal proceedings).
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Injuctions as a statutory footing
for 'all cases that are just & convenient to do so'
Although injunctions originated as an equitable remedy, the court’s jurisdiction to grant injunctive
relief is now on a statutory footing. Under section 37 of the Senior Courts Act 1981, the court has jurisdiction to grant an injunction in ‘all cases in which it appears to the court to be just and convenient to do so’
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Injuctions can be awarded unconditionally
An injunction can be awarded unconditionally or subject to such terms and conditions as the
court thinks fit.
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3.9 Declaration
A declaration is a legally binding statement by a court about any of the following:
* The legal rights of the parties
* The existence of facts
* A principle of law
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Claim for a declaration alone is unusual.
Courts can make a binding declaration whether or not any other remedy is claimed. However, a
claim for a declaration alone is unusual. Generally, a declaration is sought in addition to other
types of relief. For example, a party might seek a declaration about the interpretation of a statutory provision
applicable to their case.
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3.10 Rescission
Rescission is the setting aside of a contract. It is available at common law and in equity. Rescission is granted at the court’s discretion, and may be available where a contract has been concluded as a result of:
* Misrepresentation – where a party has been induced to enter a contract by a false representation of fact.
* Mistake – where the contract does not correctly reflect the intentions of one or both parties.
* Duress or undue influence – where a party to the contract was put under unlawful pressure to
enter into it.
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Recision & Pre-Contractual Position
Rescission is only available where the parties can be put back to their pre-contractual position, ie as if the contract had never been entered into. This is not always possible, especially where the contract has been partially performed, or was for the provision of a service.
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3.11 Rectification
The equitable remedy of rectification corrects a document to reflect the parties’ contractual intention. Its main purpose is to correct mistakes made in recording agreements. Rectification only applies in the case of written contracts.
Rectification may be used to correct most types of mistake in the way a transaction is recorded, for example missing words, incorrect descriptions or numbers. However, if the errors in the written contract are too fundamental or extensive, rectification is not available.
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3.12 Summary
* Equity developed from the medieval period as a response to the very strict procedural rules
applying under the common law.
* The main difference between equity and the common law is that equitable remedies are
discretionary.
* So-called ‘maxims of equity’ govern whether the Court will apply equitable principles and
remedies in a given case.
* If there is a conflict between the common law and equity, equity prevails.
* The two types of law were administered separately until the Judicature Acts of 1873-75.
* Though the two areas of law now both fall under the joint jurisdiction of the High Court, the
original conceptual differences remain.
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4 Primary and secondary legislation
4.1 What is legislation?
Legislation is the second major source of law in England and Wales. It is law made with the approval of Parliament. There are two categories of legislation: primary, and secondary
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Primary Legislation
Acts of Parliament’, which are put before Parliament as Bills (draft legislation), debated, and passed (almost always) by both Houses of Parliament. Acts of Parliament receive ‘royal assent’ – formal approval by the Monarch – before
becoming law.
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Secondary Legislation
Also known as ‘subordinate‘ legislation. Secondary legislation is law created by ministers (or other bodies) under powers given to them by a ‘parent’ Act of Parliament. It is used to fill in the details of primary legislation. These details provide practical measures that enable the law to be enforced and operate in daily life
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4.2 Public and Private Acts of Parliament
Public (or general) Acts are Acts which relate to matters of general public concern. They are debated in both Houses of Parliament, and any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is known as lobbying. Public Acts make up by far the largest part of Parliamentary legislative
output.
A private (or personal) Act of Parliament is one which relates to particular places or to particular
people. These Acts usually stem from a proposal by a large organisation such as a local authority or a large private company which wishes to acquire certain powers. For example, a local authority might be seeking a power to build a bridge. The promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal.
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4.3 Government Bills and private members’ Bills
Public & Government Bill
Public Bills, intended to become Public Acts, can further be divided into Government Bills and
Private Members’ Bills.
A Government Bill represents the policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department promoting the Bill wants to bring into law. It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (official government policy).
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Private Member's Bill
A Private Members’ Bill is a bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government. They are given far less parliamentary time and so are often not successfully passed.
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Primary Legislative Process (Each House)
1) First Reading: A formality, the Bill's title is read out and a date for the second reading is set
2) Second Reading: The main principles of the Bill are debated by MPs
3) Committee Stages: The detail of the bill is scrutinised by a legislative committee where it maybe amended
4) Report Stages: Proposed amendments are debated and there is a vote on the committee's report
5) Third Reading: Final Debate & Vote of the Bill. If passed, it goes to the other house,
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4.4 Royal Assent and commencement (not required but instead convention)
The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect. (Conventions will be explored later in this workbook.)
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Royal Assent as formality
In reality, the grant of Royal Assent is a formality. This is highlighted by the Royal Assent Act 1967, which provides for how the assent can be signified. An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary
provision in the statute.
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Legislation is not enacted the same day
An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary
provision in the statute.
Legislation does not always come into force on the same day it was enacted. It is actually more
usual for an Act to include a commencement section detailing when the Act is to come into force.
Typically, the power is delegated to the Secretary of State with responsibility for the area with
which the statute is concerned to issue a statutory instrument bringing the Act into force.
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4.5 Structure of Acts of Parliament
All Acts of Parliament begin with the short title, date and long title of the Act (the preamble’).
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4.6 Parts
Single Acts of Parliament often deal with quite varied subject matter. This subject matter is grouped into ‘Parts’, containing a number of different ‘sections’. For ease of navigation, sections are grouped together under titles. Sections are further broken
down into sub-sections.
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4.7 Secondary legislation
Secondary (sometimes referred to as ‘delegated’ or ‘subordinate’) legislation is law made by some
person or body other than Parliament – usually a government department.
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The Parent Act with equal statutory force to primary legislation
Importantly, however, it is made under powers granted to it by Parliament in primary legislation
(known as the ‘parent’ Act). It includes regulations made by statutory instruments, Orders in Council, and by-laws. A piece of delegated legislation made within the powers granted by Parliament in the parent Act has equal statutory force to that of the primary legislation.
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Quashing legislation
However, while the courts have no power to invalidate an Act of Parliament, they are empowered
to examine whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is not.
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Laws enacted through delegated legislation greatly exceeds
The amount of secondary legislation in the UK is very significant. The number of laws enacted through delegated legislation greatly exceeds the number of primary Acts of Parliament.
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4.7.1 Scrutiny of secondary legislation
Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation. Parliament can either approve or reject a statutory instrument (SI) but cannot amend it. Parliament’s role in considering an SI varies depending on what is stated in its parent Act.
The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act. Further details of the extent of scrutiny and the differences between the negative and affirmative
procedures will be provided in materials on the Institution of Parliament.
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4.8 Summary
* Primary legislation is passed by Parliament.
* Secondary legislation is made under powers granted by primary legislation – it may be put
before Parliament depending on the requirements of the primary legislation.
* Public bills are draft legislation proposed by the government. Private bills can be proposed by
Members of Parliament.
* Primary legislation starts life as a ‘bill’ in either the House of Commons or the House of Lords
(except for money bills).
* Once passed through both Houses, a bill must acquire ‘royal assent’ to become law.
* The courts can determine whether secondary legislation is made within the powers of the parent Act and may quash it if this is not the case.
* Secondary legislation is not scrutinised to the same degree as primary legislation.
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5 ‘Rules’ of statutory interpretation
What is statutory interpretation?
Statutory interpretation is the process of determining what Parliament intended when it enacted
a piece of legislation. It is primarily a task for judges. They are the ultimate interpreters of the will of Parliament.
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Court's overall and balanced view
The court does not ‘select’ any one of the guides, and then apply it to the
exclusion of the others. What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and arrive at a balanced conclusion taking all factors into account for what they are worth.
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5.2 The literal rule
The simplest of these traditional ‘rules’ is the literal one. This rule or approach is the one principally adopted by judges but not often referred to as such. It means that the words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. The courts will not need to consider further what Parliament might have meant
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Linguistic Presumptions & In-Depth Considerations
The literal rule will require an in-depth consideration of the words and phrases of the statute and
how they may fit in with neighbouring sections and the Act as a whole. The linguistic presumptions (see later in this chapter) will therefore be an important aid for this
method of interpretation.
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Downsides of literal application
An overly literal application of words can, in some situations, lead to unintended consequences,
and so an alternative rule was devised historically to avoid such problems. This was known as the
golden rule
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5.3 The golden rule
To avoid the unnatural and sometimes absurd outcome that can result from the over-literal
application of the literal rule, judges developed what became known as the ‘golden rule’. It is no
coincidence that this rule first found expression in the late nineteenth century: this was a period
of exponential growth in legislation.
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Classical Expression of the Golden Rule: River Wear Commissioners v Adamson (1877) 2 App Cas 743:
Lord Blackburn stated: The golden rule is […] that we are to take the whole of the statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce
an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.
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Application of the Golden Rule in Adler v George [1964] 2 QBD 7.
The defendant was charged with an offence under s 3 of the Official Secrets Act 1920 of obstructing a member of the armed forces ‘in the vicinity of any prohibited place’. The defendant was in an RAF station which was a prohibited place for the purposes of the Official Secrets Act.
It was argued on his behalf that ‘in the vicinity of’ meant near to, whereas the obstruction had occurred within the prohibited place and thus fell outside the Act. Parker LJ stated that ‘it would be ‘absurd’ if it were an offence for an obstruction to take place just outside the RAF station but not where the obstruction took place in the RAF station’. He therefore held that ‘in the vicinity of’ should be read as ‘in or in the vicinity of’.
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Heydon’s Case (1584) 3 Co Rep 79
Four Questions when applying the mischief rule
(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law did not provide?
(c) What remedy for the mischief had Parliament intended to provide?
(d) What was the true reason for Parliament adopting that remedy?
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5.4 The mischief rule
The oldest of the ‘rules’, which pre-dates the modern increase in legislation, is the mischief rule.
This examines the original purpose of the particular provision under consideration.
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Mischief Rule is defunct
At the time the mischief rule came into being, the purpose of the statute was always stated in the preamble, so it was easy to identify the mischief from the Act itself. However, today the mischief rule is defunct, and this method of statutory interpretation has now been completely subsumed
into the purposive approach.
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5.5 The purposive approach (the Modern approach: what judges use today)
This is the most recent ‘rule’ and most accurately reflects how modern judges approach their
interpretive task.
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In R v Secretary of State for Health ex parte Quintavalle [2003] UKHL 13, Lord Steyn observed (at
paragraph 21) that:
The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the
influence of European legal culture generally, but it has been accelerated by European ideas: […] [N]owadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context […].
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Additional powers of interpretation under the Human Rights Act 1998
You will see later in the course (and notably in Public Law II) that the courts have been given additional powers of interpretation under the Human Rights Act 1998, which allow them, where appropriate, to interpret legislation in a (purposive) way to seek compatibility with the European
Convention on Human Rights.
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5.6 The contemporary approach: The Instinctive Approach
Greenberg in Craies on Legislation (11th edition, 2016) at 18.1.2 summarises the ‘instinctive’
approach of modern judges as a combination of the literal and purposive interpretations
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Instinctively looked at both the strict & superficial meanings
Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process
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Purposive interpretation will generally prevail
It is only in the rare cases where
there is a tension between the two that the court needs to turn its mind actively to which should prevail […] it is now possible to say that the purposive interpretation will generally prevail where it provides a clear answer, but that otherwise the strict meaning will have to prevail, even if the court is uncomfortable with the result.
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Unified contextual approach
This unified, ‘contextual’ approach
involves not so much a choice between alternative “rules” as a progressive analysis in which
the judge first considers the ordinary meaning of the words in the general context of the statute […] and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result.
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5.7 Linguistic presumptions
In addition to these general ‘rules’ or approaches to statutory interpretation, the courts will also
apply certain linguistic presumptions or maxims to assist them in interpreting the meaning, and
therefore the proper application, of individual provisions in legislation.
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Three most often quoted of these maxims
The three most often quoted of these maxims are:
* Expressio unius est exclusio alterius (‘the expression of one thing is to the exclusion of another’)
* Ejusdem generis (‘of the same kind’)
* Noscitur a sociis (‘a word is known by its associates’)
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5.7.1 Expressio unius est exclusio alterius (The expression of one thing is an exclusion of the other
This phrase means that the express mention of one thing excludes its extension to others. This
presumption may be used where there is a list of items with no general words that follow. The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated.
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Tempest v Kilner (1846) 3 CB 249, the Statute of Frauds 1677
In Tempest v Kilner (1846) 3 CB 249, the Statute of Frauds 1677 required that sale of ‘goods, wares and merchandise’ over £10 in value must be evidenced in writing. The question for the court was whether stocks and shares came within this definition. As only those three types of transaction
were mentioned, the court held that only those three transactions were covered; shares were not.
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5.7.2 Ejusdem generis (of the same kind or genus)
Ejusdem generis means ‘of the same kind’ or ‘genus’. It is employed when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list.
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Key presumption
The presumption is that, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific words. So, it is necessary to look at the specific words and see what characteristics they have in common. The general words must then include only words with these characteristics.
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Powell v Kempton Park Racecourse [1899] AC 143,
In Powell v Kempton Park Racecourse [1899] AC 143, a person was betting in Tattersall’s Ring, and the Betting Act 1853, in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.
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House of Lords Judgement
The House of Lords held that the specific words, ‘house, office, room’ were all indoor spaces; and so, the general words ‘other place’ would be taken to refer only to indoor areas. As Tattersall’s Ring was an open area at Kempton Park Racecourse, the defendant did not commit an offence under the Act.
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5.7.3 Noscitur a sociis (Word is known by the company it keeps)
This maxim states that a word is known by the company it keeps. This means that words of a statute are understood in the context of the statute itself. This could be any part of the statute, not merely the provision (section) under consideration.
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Closely associated with ejusdem generis with wider potential application
This technique is closely associated with ejusdem generis but has wider potential application, as ejusdem generis only applies when general words – usually introduced by the words ‘or other […]’ – come at the end of a list.
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Inland Revenue Commissioners v Frere [1965] AC 402,
In Inland Revenue Commissioners v Frere [1965] AC 402, the House of Lords considered the phrase ‘interest, annuities and other annual payments’, contained in s 169 of the Income Tax Act 1952
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Interpreting nature of one of these categories
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities)
were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’. Noscitur a
sociis was used here because it allowed the court to interpret the nature of one of the categories of things included in the legislation.
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5.8 Summary
* It is the role of the judiciary to interpret what Parliament intended by the words in legislation.
* There are traditional ‘rules’ of statutory interpretation which are relevant to your academic
studies but seldom referenced in contemporary practice. These are effectively approaches to interpretation rather than strict rules.
* Sometimes judges will need to apply so-called ‘linguistic presumptions’ to aid their interpret of the meaning of statutory language.
* Contemporary judges will take a holistic approach to their interpretative task.
* The key interpretative principle in modern legal practice is that words in a statute should be given their ‘ordinary meaning’ but judges have increasingly considered the underlying purpose of legislation too.
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6. Introduction to human rights
6.1 What are ‘human rights’?
The idea of human rights means that human beings have rights merely by virtue of being human: no additional test need be met. Examples of other bases for claiming rights, whether these are complementary or competing claims, are citizenship of a particular state, or membership of a particular gender, ethnic, or social
group. ’Human rights’ purport to short-circuit all of this: all that need be proved is humanity for the full
spectrum of rights to apply.
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6.2 Development of human rights law (Natural Law Theory)
Natural law theory was the most significant legal product of the European Enlightenment. It
sought to explain the bases of legal obligations from an innate canon of legal values that was seen to be superior to any national legal authority. Leading thinkers included John Locke, Thomas Paine, and Jean-Jacques Rousseau.
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Radical Developments in Human Rights Law
While natural law exerted an influence on states across Europe and encouraged compliance with
a perceived higher code of ‘rights of man’, there were also two more radical developments in the emergence of human rights law: the revolutions in America (1776) and France (from 1789). Both led to statements of rights, although in the case of France the revolutionary settlement did not last for very longv
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The US Constitution & US Courts
In contrast, the US Constitution (1787) drew on the recognition of the importance of individual
human rights contained in the earlier Declaration of Independence (1776). The first ten amendments to the Constitution – the Bill of Rights – represented the first judicially enforceable rights document.
Over the years, the US courts have developed judicial principles on the
resolution of human rights disputes, and for all the imperfections and lack of equality evident in American history, these have had a significant effect as both inspiration and example throughout the rest of the world.
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6.3 20th century (League of Nations)
The ultimate failure of the League of Nations, established as part of the post First World War peace settlement, meant that attempts to create an internationalist body designed to avoid future conflict and to promote a greater degree of universal rights proved illusory in the first half of the last century. It was not until after the catastrophic human rights abuses in the Second
World War that the first comprehensive attempt to define a worldwide statement of rights and
associated enforcement mechanisms was initiated.
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20th Century (The United Nations & the Universal Declaration of Human Rights) & Customary International Law
In 1945, the United Nations (UN) was founded by the Allies to provide a mechanism for the resolution of international disputes, through both judicial and non-judicial mechanisms. Many states at the time argued that a worldwide, legally binding Bill of Rights should be included, to be
ratified by each state as they acceded to the UN.
This never occurred, due to the difficulty in getting states to agree on the content. Instead, the Universal Declaration of Human Rights (UDHR) was commissioned in 1946 and completed two years later. While receiving unanimous support, the UDHR is only a resolution of the General Assembly of the UN and as such is not ‘law’. However, it has been argued that its universal acceptance indicates that the principles
underlying the UDHR have become binding as customary international law.
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6.4 Post WWII in Europe (Establishing the Council of Europe)
In the aftermath of World War II, there was perceived to be a need for an international forum to promote democracy, the rule of law, and human rights within Europe. This led to the establishment of the Council of Europe in 1949, headquartered in Strasbourg. The UK was one of the founding member states.
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Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’ or ‘the Convention’).
Those drafting the ECHR were influenced by the Universal Declaration of Human Rights, which
had been adopted by the United Nations General Assembly in 1948. The UK was one of the earliest signatories to the ECHR, having ratified it on 4 November 1950. The Convention came into force on 3 September 1953. Subsequently, a number of Protocols have been adopted (although these are not significant for the purposes of this course)
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Right to lodge complaints under ECHR if domestic remedies are exhausted
In 1966, the UK gave individuals the right to lodge ‘complaints’ under the ECHR to the European Court of Human Rights (ECtHR) in Strasbourg, if they had exhausted all domestic legal remedies.
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6.5 The Council of Europe (completely distinct from the EU/EU Law)
Please note that the Council of Europe and the ECHR itself have nothing directly to do with the
European Union or EU Law.
The Council of Europe is a completely distinct organisation from the 27-nation European Union, though no country has ever joined the European Union without first belonging to the Council of Europe.
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Growth in Membership of the Council of Europe
Today the Council of Europe, and therefore the Convention, has 47 Members and counts over 850
million people within direct jurisdiction. There has been an enormous growth in membership since the fall of communism in Europe from 1989 onwards. The only European country which is not a
member is Belarus.
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Council of Europe acts as a human rights watchdog
In addition to its original role in overseeing the ECHR, since 1989 the Council has also been acting as a political anchor and human rights watchdog for Europe’s post-communist democracies.
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6.6 Categories of rights under the ECHR
Absolute Rights
Rights which cannot be lawfully interfered with in any way by the
state: freedom from torture and inhuman or degrading treatment
(Art 3); prohibition of slavery and forced labour (Art 4); prohibition
on retrospective criminal offences (Art 7).
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Limited Rights
Rights which can in some circumstances be lawfully interfered
with: right to life (Art 2); right to liberty and security (Art 5); right to
a fair trial (Art 6).
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Qualified Rights
Rights which can be lawfully interfered with provided certain legal
tests are met: right to respect for private and family life, home and
correspondence (Art 8); right to freedom of expression and
information (Art 10); right to freedom of association and assembly
(Art 11).
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Lawful Interference in Qualified Rights (Articles 8-11)
Articles 8–11 are known as the qualified Convention rights. The first paragraph of these articles
sets out the substantive right(s) guaranteed by the Convention.
These rights are then qualified by the second paragraph, which lists both the circumstances in which and methodology by which the rights may be lawfully interfered with by the state.
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Three circumstances apply
Generally, for the state to interfere legitimately with a qualified Convention right, it must be
shown that all three of the following circumstances apply.
* The interference was prescribed by, or in accordance with, the law.
* The interference was in pursuit of a legitimate aim.
* The interference was necessary in a democratic society. (This effectively means that the
interference must be a proportionate one.)
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European Legal Systems are monist
The majority of European legal systems are monist. Mon means ‘one’, and these systems treat all
forms of law as belonging to a single, binding legal system. That is, they treat international law as binding on their domestic legal systems, without any further enactment at the domestic level. Where the two forms of law clash, the monist system treats the international law rule as superior
and overrides the domestic rule
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6.8 The UK as a dualist state
In contrast, the UK legal system is dualist, treating the ‘two’ legal orders as wholly separate. The UK state may be bound by international law, and the UK government may be bound too in terms of its dealings with other states and governments, but the court system of the UK is not bound in the same way
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International law can be applied in two distinct contexts/circumstances
This means that international law can only be applicable in the UK in two distinct circumstances:
* Where the UK itself is a party to proceedings before an international court, to which jurisdiction it has agreed to submit (eg the European Court of Human Rights, the International Criminal Court)
* Where the UK has incorporated international legal rules into its domestic legal system
through an enabling Act of Parliament
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6.9 The Human Rights Act (HRA) 1998
As a consequence of the UK’s dualist legal system, it was necessary for an Act of Parliament to be passed in order to incorporate the ECHR into UK domestic law.
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Human Rights Acts allows for direct enforcement in UK's domestic courts
As we have also seen, UK
citizens could lodge complaints at the ECtHR in Strasbourg from 1966. However, the HRA was passed to ensure that the rights in the ECHR were directly enforceable in the domestic courts. The HRA is therefore the conduit and enforcement mechanism for the ECHR as the principal source of rights protection in the UK.
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HRA are made against public authorities
The ECHR and the HRA will be covered in greater depth in other materials. Briefly, however, it is
important at this stage to appreciate that in domestic UK law, HRA ‘claims’ are made not against the UK as a state but against the relevant ‘public authority’.
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Public Duties have the duty to act compatibly with ECHR rights
Under s 6(1) HRA such bodies have a duty to act compatibly with ECHR rights. These bodies include not just ‘core’ public authorities – such as central and local government – but also those that carry out functions of a public nature in aspects of their work. They also include courts and
tribunals.
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6.10 Enforcement of rights
The following (paraphrased) sections of the HRA gave significant new powers to the courts. These
can enable claimants, who are ‘victims’ of an allegedly unlawful breach of their ECHR rights by a
public authority, to enforce those rights in UK domestic courts
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Enforcement of Rights
* Section 3(1): The courts should, as far as it is possible to do so, interpret UK domestic legislation in a way which is compatible with ECHR rights.
* Section 4(2): If a court considers that legislation is incompatible with a Convention right, it may make a declaration of incompatibility to that effect.
* Section 6(1): Public authorities, including courts and tribunals, are required to act in a way which is compatible with Convention rights. Parliament is not a public authority for the purposes of the Act.
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Note that courts are public authorities themselves through the creation of indirect horizontal effect
Note too that, because courts are themselves ‘public authorities’, s 6 HRA, they have a duty to act
compatibly with ECHR rights. As you will see in other materials, this has led to the creation of the ‘indirect horizontal effect’ which has had a significant effect on the development of privacy law in the UK.
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6.11 Summary
* Modern human rights law is the result of historical development, particularly in response to the
atrocities committed during the World War II.
* The Council of Europe adopted the European Convention on Human Rights (ECHR).
* The Council of Europe has nothing to do with the European Union.
* The ECHR contains what we refer to in practice as ‘human rights’.
* ECHR rights are divided into absolute, limited and qualified rights.
* The Human Rights Act (HRA) brings the ECHR into force in the UK.
* Public authorities must act in accordance with ECHR rights.
* Courts must decide cases in accordance with ECHR rights.
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7. Sources of European Union law
7.1 Background to the EU (Evolution from three communities)
The European Union evolved from three ‘communities’ which were established by three international treaties in the 1950s. The most important of these was the European Economic Community (EEC) which was established by the Treaty of Rome in 1957.
The UK joined the EEC in 1973. As it a dualist state, international treaties do not have direct effect in domestic law unless they have been incorporated by legislation. The provisions of the treaties governing the EEC and the other two European communities therefore had to be incorporated
into domestic law by the European Communities Act (ECA) 1972.
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Section 2(1) ECA
Section 2(1) ECA – as originally enacted below – ensured the direct applicability of EU law and meant that it became a new source of UK law in its own right.
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Enforceable Community right
All such rights, power, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties […] as in accordance with the Treaties are without further
enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly, and the expression
‘enforceable Community right’ […] shall be read as referring to one which this subsection applies
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7.2 European Union and Brexit
The European Union was established by the Treaty on European Union (TEU) in 1992, better known as the Maastricht Treaty. This introduced a number of structural reforms and renamed the EEC as the European Community (EC).
Further reforms were introduced over subsequent years which culminated in the Treaty of Lisbon
(2007). This established the current structure which is based on two treaties: the TEU and the Treaty on the Functioning of the European Union (TFEU). The latter is an amended and renamed version of the Treaty of Rome.
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Referendum of 2016
Following a referendum in 2016, the UK left the EU on 31 January 2020. The effect of EU law is now
governed by the European Union (Withdrawal) Act 2018, which repealed the ECA 1972 on the
same day.
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Retention of EU Law
In order to withdraw from the EU with less legal impact, the strategy adopted has been to retain law that was introduced as a result of the UK’s membership of the EU/ EEC since 1973. This law can now be replaced by new UK legislation, but it remains in force until it is repealed and
replaced.
Given the historic impact of EU law, particularly in certain areas, it will continue to leave a legacy in the UK’s legal system for years to come. (The post-Brexit position will be considered in more detail in other materials.)
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7.3 Sources of EU law (Sizeable Body is retained)
As there will be a sizeable body of ‘retained EU law’ in the UK’s legal system for the foreseeable future, it is still important to be aware of the nature of EU law and, in outline, the manner in which it became enforceable in domestic UK law
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There are two main categories of EU law: primary, and secondary:
Primary Legislation:
* The Treaty on the European Union (1992), also known as the Maastricht Treaty.
* The Treaty on the Functioning of the
European Union (2009 in its current form, originated as the Treaty of Rome in 1957)
Secondary Legislation:
* Regulations, Directives and Decisions made under Articles 288 and 289 of the TFEU.
* Case law of the Court of Justice of the European Union (CJEU *)
* Note that the Court of Justice used to be known as the ECJ but is now referred to as the CJEU.
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7.4 Regulations, Decisions and Directives
Regulations are directly applicable and binding to states
Regulations are directly applicable in the legal systems of the Member States. This means that they apply in the Member States without those states having to enact any national legal measures to implement them or to give effect to them.
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Direct Effect (sufficiently clear & unconditional)
Individuals will be able to rely on these in their national courts so long as certain conditions are met – essentially that the EU law in question was sufficiently clear and unconditional in nature. This is known as ‘direct effect’.
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Decisions
Decisions are legally binding only on the parties to whom they are addressed. They may be enforced in national courts against the party to whom they are addressed, providing certain conditions are met.
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Directives
In contrast to regulations, directives are ‘binding as to the result to be achieved but leave to the
national authorities the choice of form and methods.’ This means that the Member States must pass national legislation to implement them within their legal system. An example of a directive being implemented in the UK is provided by the Consumer Protection Act 1987, which gave effect to Directive 85/374 on Product Liability.
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Directive has been implemented properly
Where a directive has been implemented properly by the Member State, an individual will be able to rely on the rights conferred by the national legislation which implemented it.
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Summary
Regulations: They are directly applicable in the legal systems of the Member States and have
direct effect.
Decisions: These are legally binding only on the parties to whom they are addressed.
Directives: These are ‘binding as to the result to be achieved but leas to the national
authorities the choice of form and methods’.
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7.5 Failure to implement a Directive lead to infringement proceedings
It is not unusual, however, for Member States to fail to implement a directive properly or on time. If
this happens, legal proceedings, known as ‘infringement proceedings’, may be started against Member States by the European Commission. They are eventually determined by the CJEU.
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Various mechanisms for Individuals
The CJEU has also developed various mechanisms for individuals to be able to rely on the directives themselves in the national courts of the relevant Member State where that Member State has failed properly to implement them by the deadline
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Three methods developed by the Court of Justice
(a) Direct effect (available if the implementation date has passed)
(b) Indirect effect (an obligation on domestic courts to interpret domestic law compatibly with EU law, where possible)
(c) State liability (a form of compensation available for a state’s failure as long as it has
sufficiently serious consequences)
(Note that these methods can be used to enforce other forms of EU law as well.)
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7.6 Jurisprudence
A further secondary source of EU law is provided by the case law of the Court of Justice (CJEU). This jurisprudence has been hugely important in developing and transforming whole areas of EU
law
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Largely been a creation of case law
For example, the principles which enable individuals to rely on and enforce their rights under EU
law in their national courts, including the courts of England and Wales, were not laid down by the founding treaties but have largely been a creation of case law instead.
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EU Law Supremacy
These have all developed from the overarching, original principle established by the Court of
Justice that EU law has supremacy over conflicting domestic law. This principle was established in the period 1963-64 in the key cases of Van Gend en Loos and Costa v ENEL. It is based on the core idea that the EEC/EU constituted ‘a new legal order of international law for the benefit of
which the States have limited their sovereign rights, albeit within limited fields […]’.
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7.7 Preliminary references to the CJEU
Much of the case law of the ECJ/ CJEU derives from preliminary references from the national courts of the Member States, including the courts of England and Wales. These are provided for by article 267 TFEU which permits national courts to be able to refer questions to the CJEU about the interpretation of EU law and the validity of the acts of the EU
institutions, including the secondary legislation produced by them.
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Preliminary Ruling following receipt of the reference
The CJEU will make a ruling on the questions which were referred to it. This is called a preliminary ruling. The ruling is passed to the national court to decide how to apply it. It should be noted that there is no right of appeal from national courts to the CJEU.
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Preliminary Reference
The only way that a case can reach the CJEU from a national court is by means of a preliminary
reference.
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7.8 Summary
* The treaties on establishment and governance of the European Union were incorporated into
UK domestic legislation by the European Communities Act 1972.
* In addition to the Treaties, there are important secondary sources of EU law, notably
Regulations and Directives.
* Regulations are directly applicable, like Treaties, but Directives are only binding as to the result
they are designed to achieve.
* Member states are responsible for implementing the objectives of directives and there are legal
means available to the individual for enforcing rights provided by them.
* The European Commission can also start ‘infringement proceedings’ against Member States
for breach of EU law.
* The CJEU is the ultimate arbiter on questions of EU Law.
* The ECA 1972 has now been repealed by the European Union (Withdrawal) Act 2018.
* Significant areas of ‘retained EU law’ are still present in English law following Brexit.
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