The English Legal System: Week One

The English Legal System: Week One Notes

Overview of the English Legal System

• This lecture series covers three main topics:

  1. The Nature of Law

  2. How The Law is Made

  3. Resolving Legal Disputes (covered in a later lecture)

The Nature of Law: Introduction

• Upon completion of this topic, you should be able to:

  • Appreciate the features of a legal rule.

  • Explain the characteristics of English law and state its purpose.

  • Distinguish between the different classifications of law.

  • Begin to use legal terms with confidence.

The Nature of Law: What is Law?

• Law is commonly defined as:

  • A body of rules.

  • Created by the state.

  • Binding within the jurisdiction.

  • Enforced with the authority of the state through the use of sanctions.

The Nature of Law: Characteristics of English Law

• Development: English law has evolved gradually over many centuries primarily through case law and legislation.

• Roman Law Influence: It is subject to less Roman law influence compared to other countries.

• Law-Making Powers:

  • Historically, judges were the primary law-makers.

  • Parliament has largely taken over these powers, but judges still retain some law-making functions.

  • Judges make law in two main ways when deciding criminal and civil cases:

    • Interpreting statutes.

    • Developing the common law.

• Doctrine of Binding Precedent: This doctrine requires judges to follow decisions of higher courts in similar cases (covered in more detail later).

• Adversarial Court System:

  • UK courts are adversarial, meaning each side presents its case to a judge who supervises proceedings and decides the winner in civil actions.

  • In contrast, an inquisitorial system involves the judge taking a more active role in investigation, including cross-examining and questioning witnesses.

• Absence of a Legal Code: English law is uncodified.

The Nature of Law: Do We Need Legal Rules?

• Yes, legal rules (laws) are essential because they:

  • Organise the way we live.

  • Make life easier and safer by ensuring everyone follows the same rules.

• Examples of Areas of Law in the UK:

  • Constitutional law: Covers government structure and operation.

  • Administrative and Revenue law: Deals with public services, tax collection, and expenditure.

  • Criminal law: Addresses public order and national security matters.

  • Civil law: Aims to protect and promote individual rights, e.g., contract law or tort law (civil wrongs).

  • Family, Property, Company, or Partnership laws: Provide legal validation to relationships or transactions.

The Nature of Law: Classification of Law

• Law can be classified in several ways:

  • Public Law and Private Law.

  • Criminal Law and Civil Law.

• Criminal Law vs. Civil Law - Key Differences:
  

  Feature	Criminal Law	Civil Law
  Purpose	Regulates behaviour; State punishes wrongdoers.	Gives rights to individuals; Individuals can enforce their rights in courts.
  Action Starter	Police; victim usually not involved in prosecution decision.	Injured party (Claimant) brings the action.
  Courts	Magistrates’ Court or Crown Court.	County Court, High Court, and certain tribunals (for specialism).
  Standard of Proof	Prosecution must prove accused is guilty beyond all reasonable doubt.	Claimant must prove defendant is liable on the balance of probabilities.
  Aim	To protect society.	To compensate the injured party.
  Remedy/Punishment	Fine or prison.	Damages or possibly an injunction.
  Civil and Criminal Courts: The distinction is fundamental, with separate courts designed for different purposes:

  • Civil Courts: Aim to compensate individuals who have suffered loss or injury due to another's wrongful acts.

  • Criminal Courts: Aim to punish individuals who have committed a criminal offence.

The Nature of Law: Terminology

• Claimant and Defendant: Used in civil actions; the Claimant sues the Defendant (e.g., Smith v Jones).

• Prosecution and Defence: Used in criminal cases; the Defence is the defendant/accused, and the Prosecution is sometimes called the Crown (as cases are brought by the State) (e.g., R v Jones).

• Appellant and Respondent: Used in both civil and criminal cases; the Appellant is appealing against a decision.

• Common Law: Normally shorthand for case law or judge-made law.

• Principles of Equity: A body of law created to correct wrongs or injustices within the common law, designed to protect the vulnerable.

How The Law is Made: Introduction

• Upon completion of this topic, you should be able to:

  • Explain where the law comes from.

  • Describe the parliamentary process.

  • Explain the rules regarding statutory interpretation.

  • Explain the doctrine of binding precedent.

How The Law is Made: Where Does the Law Come From?

• The most important sources of law are:

  1. European Law: (The UK left the EU on $31^{\text{st}}$ January $2020$).

  2. Parliament.

  3. The Courts.

• This topic focuses on the role of Parliament and the Courts.

• Source of Law: Refers to the process by which law comes into existence.

How The Law is Made: Parliament (Legislation)

• Acts of Parliament (Statutes): This is the predominant method of law-making in the UK today.

• Composition of Parliament: Consists of the House of Commons, the House of Lords, and the Monarch.

• Types of Legislation:

  • Direct Legislation (Primary Legislation): Made directly by Parliament (House of Commons + House of Lords + Royal Assent).

  • Indirect Legislation (Secondary or Delegated Legislation): Created by another body under powers granted by an Enabling Act of Parliament.

How The Law is Made: The Parliamentary Process for Bills

• A Bill must pass through five stages in both Houses of Parliament to become an Act, usually starting in the House of Commons.

• Stages in the House of Commons:

  1. First Reading: The bill's title is read out, notifying MPs who can then obtain copies.

  2. Second Reading: The government minister explains the bill, its principles are debated by the House, and a vote is taken on whether to proceed.

  3. Committee Stage: The bill is examined and discussed in detail by a House of Commons committee.

  4. Report Stage: The committee reports back to the House, and proposed amendments are debated and voted upon.

  5. Third Reading: The bill is re-presented, minor amendments may be made, and a final vote determines if it passes.

• Transfer to the House of Lords:

  • After passing the Commons, the bill transfers to the House of Lords for a similar procedure.

  • If the Lords amends the bill, it returns to the Commons for consideration and approval of amendments.

  • Bills may pass between the two Houses until agreement on the exact wording is reached.

• Royal Assent:

  • The Monarch must give consent for a bill to become law, though this is a formality under constitutional rules and cannot be refused.

  • An Act of Parliament does not necessarily come into force on the day of Royal Assent; the Act itself may specify a date or state it will come into force on a 'date to be specified'.

How The Law is Made: Delegated Legislation

• Definition: Legislation made by bodies outside Parliament.

• Main Types:

  1. Orders in Council: The Privy Council can make law in national emergencies.

  2. Statutory Instruments: The most common form (e.g., Food Safety and Hygiene (England) Regulations $2013$ (SI $2013/2996$)).

  3. Byelaws: Local rules made by local authorities or public bodies (e.g., parking restrictions by an airport authority).

• Controversy: The use of unelected bodies to create legislation is controversial.

• Advantages of Delegated Legislation (mainly practical):

  1. Saves time: Parliament has limited time.

  2. Specialist knowledge: Allows experts to draft detailed rules.

  3. Flexibility: Easier to amend or adapt to changing circumstances.

  4. Parliament does not sit all year round: Allows for continuous law-making.

  5. Amendments and repeals: Can be easily updated or removed as needed.

• Disadvantages of Delegated Legislation:

  1. Parliament is removed from the process: Reduced parliamentary scrutiny.

  2. Difficult to keep track: Large volume can be hard to monitor.

  3. Problems with highly specific, detailed or technical material: Can be complex and obscure.

  4. Excessive legislation is passed: Potential for too many rules.

How The Law is Made: The Common Law / Case Law

• Judge-Made Law: Judges develop common law principles through their decisions and interpret statutes made by Parliament.

• Development Speed: Case law develops slowly and requires relevant cases to come before the court, making it not always the most efficient law-making body.

• Judge's Role in Interpretation: Judges interpret the words of a statute, using several aids:

  1. Intrinsic aids.

  2. External aids.

  3. Judicial principles of statutory interpretation.

  4. Judicial presumptions.

How The Law is Made: Statutory Interpretation Aids

• 1. Intrinsic Aids: These are aids found within the statute itself, such as definitions (e.g., $s2$ of the Consumer Rights Act $2015$ defines 'trader', 'consumer', 'digital content').

• 2. External Aids:

  • (a) The Interpretation Act 1978.

  • (b) Reports of the Law Commission or government inquiries.

  • (c) Parliamentary reports: Such as Hansard (the record of parliamentary debates).

  • (d) Oxford English Dictionary and relevant legal textbooks.

  • (e) Explanatory Notes: Often accompany important Acts, written by the responsible government department.

• 3. Judicial Principles of Statutory Interpretation: Different approaches have evolved to guide judges:

  • (a) The Contextual Approach: Words are interpreted within the context of the statute as a whole (e.g., 'other animals' preceded by 'dog, cat, guinea pigs' suggests they are also pets).

  • (b) The Literal Rule: Words are interpreted according to their plain, literal meaning, without looking beyond the legislation for intent (e.g., Fisher v Bell (1960), a flick knife in a shop window was an 'invitation to treat' not an 'offer for sale' under contract law, thus not an 'offer for sale' for the purpose of a criminal statute related to flick knives).

  • (c) The Golden Rule: Applied if the literal rule leads to an absurdity or ambiguity, allowing the court to adopt the least ridiculous meaning to avoid such an outcome (e.g., Smith v Hughes (1960), a prostitute soliciting from an upstairs window was deemed 'soliciting in the street' because the aim of the Act was to prevent a nuisance).

  • (d) The Mischief Rule: Interprets a statute to remedy the 'mischief' or problem it was enacted to prevent (e.g., Wolman v Islington (2007), a motorcycle parked on a stand hovering above the pavement was held to be 'on the pavement' within the meaning of the Act. Also known as the rule in Heydon’s Case (1584)).

  • (e) The Purposive Approach: Similar to the mischief rule, allowing the court to look beyond the literal words to find the general purpose of the statute (e.g., Royal College of Nursing v DHSS (1981), where the House of Lords applied a purposive approach to allow nurses to perform abortions where the Act specified 'registered medical practitioner', given changes in medical practice post-Act).

• 4. Judicial Presumptions: These are assumptions applied to all statutes, though they can be rebutted:

  • A statute will not impose strict liability (meaning it does not require intention for an offence).

  • A statute will not operate retrospectively (events before the Act's passage are not offences under it).

  • A statute will not change the common law unless explicitly stated.

How The Law is Made: The Law of Binding Precedent

• Definition: Judges are required to follow decisions made in previous cases.

• Two Key Considerations:

  1. Hierarchy of Courts: Inferior courts are bound by the decisions of higher courts.

  2. Factual Scope: Whether the facts of the current case fall within the scope of the principle of law established in a previous decision.