Legal Systems, EU Law and Public Law Review

THE COURTS # 11.1.2 English and Welsh Legal System * Definition of Legal System: The body of institutions that make, execute, and resolve disputes in relation to the laws of a state. * Jurisdiction Dual Meanings: (1) A political entity or geographical location where a particular law has application. (2) A body or court having authority or power to settle disputes in respect of a specific area of law and practice. * Status of UK Jurisdictions: The UK is not a single unified legal system. It is divided into England and Wales, Scotland, and Northern Ireland. While each has distinct courts, the Supreme Court of the United Kingdom acts as the final civil court of appeal for all three. * Common Law System: The English and Welsh system is a common law system. Key features include the importance of both legislation (made in Parliament) and case law (rulings made by judges). It operates by looking at precedent (previous judicial rulings), and the law develops through the actions of the judiciary in refining what has been previously determined. * Civil Law (Roman Law): Many European countries and their former colonies use this. Law is codified (set out in legislation or codes). Judges decide cases by reference to these codes alone rather than prior rulings. Law develops through code revision. * Hybrid and Religious Systems: Scotland uses a hybrid of common and civil law. Some Middle Eastern and African countries use religious law or civil-religious hybrids. # 11.1.2.1 Sources of Law * Domestic Sources: (1) Legislation: Primary (Statutes/Acts of Parliament created directly by Parliament) and Secondary (detailed instruments/orders/regulations authorized by Parliament). Statutes take precedence over common law. (2) Case Law: Known as judge-made law, developed under the doctrine of judicial precedent. (3) Specialized Law: Ecclesiastical and military law. (4) Assimilated Law: Formerly known as retained EU law under the European Union (Withdrawal) Act 2018. Following the Retained EU Law (Revocation and Reform) Act 2023, piece of this law were revoked, and the remainder is treated as domestic legislation subject to usual interpretation rules. * International Sources: (1) EU Law: Formerly a major source, now limited post-Brexit. (2) European Convention on Human Rights (ECHR). (3) International Law: Executed under the UN and enforceable via threats of sanctions or regional condemnation. # 11.1.2.2 Common Law and Equity * Definition: Common law was administered by the King's Courts to be common to all. * Equity: Developed as an alternative to alleviate common law's inflexibility and harshness, focusing on fairness. * Fusion: Equitable and common law principles were merged in Victorian times. * Legacies of Equity: (1) Remedies: Injunctions (stop action) and Specific Performance (mandate action), which are used when damages (compensation) are insufficient. (2) The Trust: A device where one person is the equitable owner of property value while another holds the legal title. # 11.1.2.3 Classifications of Law * Public vs. Private: Public law involves duties to/by the state. Private law involves duties between individuals or corporations. * Civil vs. Criminal: Criminal law involves state sanctions for behavior against the law. Civil law covers non-criminal transactions (contracts, land, divorce, wills) and disputes (consumer/supplier, employer/employee). * Criminal Offence Classification: (1) Indictable: Serious (murder, rape), tried in Crown Court. (2) Either way: (theft, burglary), tried in magistrates’ or Crown Court. (3) Summary: Least serious (careless driving, shoplifting), tried in magistrates’ courts. * Criminal Terminology: Prosecutions are brought by the Crown Prosecution Service (CPS) as R v Defendant (R for Rex or Regina). Outcomes are guilty or not guilty, followed by sentencing. * Civil Terminology: Actions, claims, or suits brought by a claimant or applicant against a defendant. Outcomes are often found for or liable/not liable. Remedies include damages, reinstatement, or injunctions. # 11.1.2.4 Burden and Standard of Proof * Standard of Proof: Level of certainty needed. In criminal cases, it is beyond reasonable doubt (no other reasonably credible explanation). In civil cases, it is on the balance of probabilities (more likely than not). * Burden of Proof: Responsibility to meet the standard. Held by the prosecution in criminal cases and the party bringing the case in civil cases. # 11.1.3 The Judiciary * Composition: Non-elected, independent, legally qualified judges. Lay judges (justices of the peace) sit in magistrates’ and Family Courts. * Judicial Independence Principles: Impartiality protects citizens from the executive and promotes public confidence. * Security of Tenure: Senior judges hold office during good behaviour. Justices of the Supreme Court can only be removed on the address of both Houses of Parliament (CRA 2005 s 33). Judges in the Court of Appeal, High Court, and Crown Court are removed by the monarch on petitions by both Houses and advice from the Lord Chancellor (Senior Courts Act 1981 s 11). Retirement age is currently $75$. * Constitutional Reform Act 2005 (CRA): Strengthened independence by: (1) Imposing a statutory duty on ministers to uphold independence. (2) Creating the UK Supreme Court to replace the Appellate Committee of the House of Lords. (3) Making the Lord/Lady Chief Justice the head of the judiciary (formerly the Lord Chancellor). (4) Creating the Judicial Appointments Commission (JAC). * JAC Appointments: JAC has $15$ members. It administers competitive processes for Circuit, High Court, and Court of Appeal judges. Supreme Court justices are selected by a separate $5$-member commission, including the Supreme Court President and JAC equivalents from Scotland and Northern Ireland. CRA s 63 mandates selection on merit; s 64 mandates regard for diversity. # 11.1.4 Court Hierarchy * Superior vs. Inferior: Superior courts (Supreme, Appeal, High, Crown) have unlimited jurisdiction. Inferior courts (magistrates’, county) handle lower value/complexity localized cases. * Courts of Record: Supreme, Appeal, and High court rulings are reported as precedent. * Criminal Hierarchy: Starts at magistrates’ court. Appeals on fact/sentence go to Crown Court. Appeals on law (case stated) go to the Administrative Court (King’s Bench). * Civil Hierarchy: Starts at county, Family, or High Court. Appeals go to High Court, Court of Appeal, or Supreme Court. * The Supreme Court: Appellate only. Up to $12$ justices. Usually sits in panels of $5$ or $7$. In R (Miller) v Prime Minister [2020] AC 373, $11$ justices sat. * Court of Appeal: $39$ judges (Lord/Lady Justices of Appeal, [Name] LJ). Civil Division headed by Master of the Rolls. Criminal Division headed by Lord/Lady Chief Justice. * High Court: Three divisions: King’s Bench (contract/tort, Administrative Court), Chancery (land, wills, trusts, bankruptcy), and Family. Judges are [Name] J (High Court Judges/puisne). * Tribunals: Two-tier system: First-tier (7 chambers including Social Entitlement, Tax, etc.) and Upper Tribunal (Administrative Appeals, Tax and Chancery, etc.). * Courts Outside Hierarchy: (1) Judicial Committee of the Privy Council: Final appeal for territories/Crown dependencies. Persuasive precedent. (2) ECtHR: International court in Strasbourg (Council of Europe). Rulings cited post-HRA 1998. (3) CJEU: Based in Luxembourg. Since Brexit (31 Dec 2020), no longer binding except for limited oversight in Northern Ireland under the Windsor Framework 2023. # 11.1.5 Rights of Audience * Definitions: The right to appear before and address a court, including calling and examining witnesses. * Legislation: Legal Services Act 2007 (LSA) s 12 defines reserved legal activities, including rights of audience. S 13 provides that authorized (met professional regulations) or exempt persons (under LSA Sch 3) may exercise this right. * Initial Reform: Courts and Legal Services Act 1990 allowed solicitors to gain higher rights in superior courts via training. Access to Justice Act 1999 further regulated this. # 11.1.6 Doctrine of Precedent * Stare Decisis: Latin for stand by what has been decided. * Ratio Decidendi: The legal principle/proposition of law relied on for the decision. This is the binding part. * Obiter Dicta: Other statements (hypotheticals/examples) not central to the decision. Persuasive only. * R v Barton [2021] QB 685: If the Supreme Court unanimously states (obiter) that a Court of Appeal precedent should not be followed, the Court of Appeal must treat that obiter as binding and the precedent as overruled. * Horizontal Precedent Rules: (1) Supreme Court: Practice Statement [1966] 1 WLR 1234 allows departing from its own rulings when it is right to do so. (2) Court of Appeal: Young v Bristol Aeroplane Co Ltd [1944] KB 718. Bound by its own ratios unless: conflicting ratios exist, it conflicts with a later SC/HL ruling, or it was decided per incuriam (in ignorance of law). # 11.2 PRIMARY LEGISLATION * Classification: Acts of Parliament. Called Bills before being passed. * Bill Types: (1) Government Bills: Part of executive programme. (2) Private members’ Bills: Introduced by individual MPs/Lords (Ballot, 10-minute rule, Presentation). (3) Public Bills: Applicable throughout jurisdiction. (4) Private Bills: Local/specific applicability. (5) Hybrid: Elements of both. * Enactment Stages: (1) 1st Reading: Title read, ordered printed. (2) 2nd Reading: Principle debated, vote taken. (3) Committee: Scrutiny/amendments. (4) Report: Further amendments by whole House. (5) 3rd Reading: Final vote. (6) Other House: Same stages. Ping pong if Houses disagree on amendments. (7) Royal Assent: Monarch approval. * Commencement: Date of Royal Assent unless a commencement section specifies a later date or grants a minister power to introduce commencement regulations (delegated legislation). * Structure: Short title, Chapter number (e.g., 2018 c 16), Long title (description of purpose), Date of Royal Assent, Numbered sections, Schedules. # 11.2.5 Statutory Interpretation * Rules: (1) Literal: Plain, natural, or technical meaning. (2) Golden: Literal meaning unless it produces absurdity/inconsistency (River Wear Commissioners v Adamson 1876; Stock v Frank Jones 1978). (3) Mischief: Interpret to address the problem the law was meant to fix. (4) Purposive: Broader approach to give effect to the Act’s purpose. * Aids: (1) Intrinsic: Long/short titles, definition sections, side notes. (2) Extrinsic: Dictionaries, Pepper v Hart [1993] (Hansard for ministerial statements), Explanatory Notes. * Language Rules: (1) Expressio unius: List is exclusive. (2) Noscitur a sociis: Meaning derived from context. (3) Ejusdem generis: General words interpreted as specific list type. (4) In pari materia: Considering other statutes on the same subject. # 11.3 CORE INSTITUTIONS * Parliamentary Sovereignty Elements: Parliament is omnicompetent. No body can override Parliament. No Parliament can bind its successor. * Devolution Highlights: (1) Wales: Government of Wales Acts 1998/2006 created Senedd Cymru. (2) Scotland: Scotland Act 1998/2016 created Scottish Parliament/Executive. (3) NI: Northern Ireland Act 1998/Good Friday Agreement created NI Assembly. (4) Sovereignty: Westminster remains sovereign; it could revoke devolution but conventionally doesn’t legislate on devolved matters without consent (Legislative Consent Motion). * Royal Prerogative: Residual arbitrary power of the monarch. Exercised on government advice. Examples include summoning Parliament, issue of passports, signing treaties, mercy. Subject to judicial review (GCHQ case; Miller 2017/2019). Prevails over statutes? No, statutes prevail (De Keyser’s Royal Hotel Ltd [1920]). # 11.6 JUDICIAL REVIEW * Nature: Supervisory function where courts (Administrative Court/Upper Tribunal) check the process of decision-making, not the merits/correctness of the decision. * Standing: Applicant must have sufficient interest in the matter. * Time Limits: $6$ weeks for planning; otherwise promptly and within $3$ months. * Available Remedies (Discretionary): (1) Quashing Order: Void the decision. Can be suspended under Judicial Review and Courts Act 2022. (2) Mandatory Order: Compel duty. (3) Prohibiting Order: Prevent future act. (4) Declaration of law. (5) Damages (rare). (6) Declaration of Incompatibility (HRA s 4). * Grounds: (1) Illegality: Ultra vires, improper delegation, fettering discretion, irrelevancy, improper purpose. (2) Irrationality: Wednesbury unreasonableness (so unreasonable no rational body would make it). (3) Procedural Impropriety: Failure to follow statutory procedures, breach of natural justice (fair hearing, rule against bias). (4) Legitimate Expectation: Based on promise or prior practice. # 11.7 HUMAN RIGHTS ACT 1998 * Schedule 1 Rights: Art 2 (Life), Art 3 (Torture prohibition), Art 4 (Slavery prohibition), Art 5 (Liberty), Art 6 (Fair trial), Art 8 (Privacy/Family), Art 9 (Conscience/Religion), Art 10 (Expression), Art 11 (Assembly), Art 14 (Anti-discrimination). * Key Sections: (1) s 2: Courts must take into account ECtHR rulings. (2) s 3: Legislation must be interpreted as compatible so far as possible. (3) s 4: Senior courts may make a Declaration of Incompatibility if compliance is impossible. (4) s 6: Unlawful for public authorities to act incompatibly. (5) s 7: Victims (as defined by ECHR Art 34) can bring proceedings. (6) s 10: Remedial orders may be made by ministers to fix incompatible law. # 11.8 EU LAW IN THE UK CONSTITUTION * Brexit Timeline: (1) 1 Jan 1973: UK joins. (2) 31 Jan 2020: Withdrawal (Brexit Day). (3) Transition until 31 Dec 2020. (4) Retention: EUWA 2018. (5) Reform: RELRRA 2023. * EU Legislation Concepts: Direct Applicability (no domestic passage needed), Direct Effect (citizens rely on it in court). * RELRRA 2023 Changes: (1) Abolished Principle of Supremacy. (2) Renamed retained law as Assimilated Law. (3) Revoked $587$ pieces of law. (4) Terminated the capacity of courts to refer to CJEU. (5) Gave higher courts wide powers to depart from retained EU case law.