Sunday, September 13, 2009
The legal systems within the United Kingdom were based largely on judge-made law (law developed through decisions by judges necessary to decide cases brought before them - called "common law" or case-law) until around the seventeenth century. Each jurisdiction developed its own forms of common law, with Scotland being especially distinct from the rest. Since that time, new laws and law reform have increasingly been brought about through Acts of Parliament, usually inspired by policies of the Government of the day. Even so, the development of case-law still remains an important source of law. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis" - stand by what has previously been decided) on later judges depends on two main factors:
The pronouncement must be made by a court of sufficient seniority. Basically, judges at the lowest tiers of decision making (often called courts of first instance), are not allowed to issue binding precedents. Often, the cases are not fully reported anyway, so it is not clear what has been decided. In addition, these judges may not be hearing full legal arguments but are concentrating on factual findings. So, it is the higher courts which issue binding rulings and the lower courts must follow them.In these courts there has been a system of official recording and reporting since 1865 (now called the Incorporated Council of Law Reporting for England and Wales, which produces The Law Reports and The Weekly Law Reports). There are also many commercial law reports, though most again are confined to decisions of higher courts (such as the All England Law Reports). Here is an expalantion of some case citations you might come across - Lamb [1967] 2 QB 981 (this means a case reported in the Law Reports); Thabo Meli v The Queen [1954] 1 WLR 228 (this means a case reported in the Weekly Law reports); Thornton [1992] 1 All ER 339 (this means a case reported in the All England Law Reports).
The pronouncement must have formed the ratio decidendi of the case (this is Latin for the reasoning behind the decision). The reasoning must be a matter pertaining to the law rather than a factual decision. In addition, the pronouncement must not be obiter dictum - something said either about the law or the facts of the case which is "by the way", in other words, not strictly necessary for the legal basis for the decisions. Only the ratio decidendi will be binding. It will comprise the legal principles and rules which are necessary to solve the problem before the court. Obiter dicta are not binding, but they may be treated as of "persuasive authority" - later judges are entitled to read them and be influenced by them, but they are not obliged to follow these parts of judicial pronouncements.
We can summarise these rules -as the doctrine of precedent (or, to use lawyers’ language, the doctrine of stare decisis). A later judge will have to determine (i) what pronouncements from earlier decisions are binding and (ii) whether any is relevant - the later judge may say that the case before the court is "distinguishable" from the earlier case (i.e. has materially different facts so as to fall within different areas of law).
Precedent has a very important role in the common law. It ensures certainty and consistency and logical progression and development in the law. At the same time it can be rigid and also complex - what is "the law" on a subject may be very difficult to find or to state as it is spread across many cases. So, many countries (especially in Continental Europe) prefer a codified system in which laws are set out in legislation and cases which apply them may be illustrative but do not become binding. The law is also easier to find and to state and is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. For example, here is the offence of murder in US Federal Law. By contrast, the law of murder in England is contained in several cases, and even having read them there may be room for doubt. As for English law, the classic definition of murder is considered to be that given by Lord Chief Justice Coke who (writing in the early seventeenth century) said:
"Murder is when a man of sound memoryand of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought , either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc.within a year and a day of the same."
Can you put this statement in modern language?
Note that:
1 Some of these elements of the offence have since been changed. For example, what was called the year and a day rule was abolished by the Law Reform (Year and a Day Rule) Act 1996 .
Nevertheless, the common law does have advantages over codified systems - it is more flexible, it is more practical as it is derived from real life dramas played out before the courts.
Legislation or statutory laws (Acts of Parliament)
Legislation has become the commonest source of new laws or of law reform since around the Seventeenth century. So when we think of laws in modern times, we often think of sections in an Act of Parliament. Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited. Acts of Parliament which apply to everyone throughout one or more jurisdictions are called public general Acts. But Acts may also be limited to geographical locations within a jurisdiction (e.g. the W est Yorkshire Act 1980 and local bye-laws) or to specific persons or companies.
The most important legislation is Acts of Parliament (called primary legislation). This becomes valid through being approved (after debate) in the House of Commons and (with some exceptions under processes laid down by the Parliament Acts 1911-1949) the House of Lords; it then receives the Royal Assent from the Queen. (see The House of Commons within the UK Constitution; and The British Monarchy pages). Here are some examples of some statutes: Education (Student Loans) Act 1998, Education (Schools) Act 1997, Protection from Harassment Act 1997, School Inspections Act 1996, Disability Discrimination Act 1995.
A greater volume of legislation is nowadays made under the authority of primary legislation by Government Ministers, and it does not have to be approved in advance by Parliament. This is called delegated or secondary legislation. Delegated legislation is issued (often by a government minister) under a specific power in the "parent" or "enabling" Act. Such legislation is issued in the form of statutory instruments (there are about three thousand per year) and may be titled "regulations" or "orders". Here are some examples - The Jobseeker's Allowance (Amendment) Regulations 1998, The Education (Direct Grant Schools) (Revocation) Regulations 1998, The M42 Motorway (Dunton Diversion) Scheme 1998.
Reasons for the use of delegated legislation are as follows:
to save time in Parliament - the time taken to scrutinize statutory instruments is often zero or, at most, an hour or two;
to allow for expert input into their design and technical language to be used in their wording
to allow flexibility in responding to events and representations
There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation - these are called bye-laws.
Comparing legislation with common law, statutes generally have the power to change the established common law, but the common law cannot overrule or change statues. A statute can only be overrruled or amended by another, later statute. This relationship reflects the legal and political doctrine known as Parliamentary Sovereignty - the recognition and acceptance that Parliament is the supreme law-making authority in the land. However, that authority may not be absolute - it has been limited by the relationship with the European Union, and the importance of principles such as the recognition of individual freedoms, democracy and governmental accountability may place further limits on its exercise. Nevertheless, save for these possible limits in extreme circumstances, the judges must normally apply statutes, even if they are contrary to established common law. The task of the judge is to interpret and apply the statute - they cannot disregard it or declare it to be "unconstitutional". In many other jurisdictions, the judges do have this power to override statutes by declaring them to be inconsistent with the written constituion. This happens in the United States. For an example, see the cases of Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952); and Griswold v Connecticut 381 U.S. 479 (1965).
There are various theories as to how the judge should interpret statutes. This is not an easy task. The legislation will originially have been written by experts (Parliamentary draftsmen) who write in precise and technical language. But the legislation may be amended by non-experts during its passage through Parliament. And circumstances may be encountered which were not considered by the draftsmen. There are three main rules which are used by the judges in interpreting Acts of Parliament:
the literal rule - interpret the statue literally, according to its ordinary plain meaning. For an example of this rule, see Fisher v Bell [1960] 3 All ER 731
the golden rule - if the literal interpretation leads to an absurdity, then modify the interpretation to a less obvious meaning. An absurdity may arise from a literal meaning of the words. See for example Adler v George.* Alternatively, it may arise from the policy implications of a literal interpretation. See Re Sigsworth.*
the mischief rule - define the problem the Act was meant to remedy and choose the interpretation which best deals with the problem. See Smith v Hughes (1871) LR 6 QB 597. In order to determine what was the problem before the Act, the courts can look at, for example, reports from the Law Commission and also Hansard (the journal of debates in Parliament)
The literal rules might be said to be the default position. But the judges will commonly use a more purposive approach (the golden or mischief rules), especially where the legislation seeks to implement a social policy such as the outlawing of sex discrimination. see Pickstone v Freeman [1988] 2 All ER 803.
Aside from these broad appraoches, there are more specific rules of interpretation which fall into two categories:
rules of language: Examples include the "eiusdem generis" (Latin phrase which means of the same kind) rule: where general words follow a list of specific examples, the general words take their meaning from the specific words and so are not as general as they first appear. For example in the phrase houses, flats and other buildings other buildings can mean only other dwellings, and would not include, for example, a church. Another example is "expressio unius est exclusio alterius" (another Latin phrase) - if an Act mentions a specific type, it implies that other types are not included. (see for example the case of AM & S Europe Limited v Commission of the European Communities (Case 155/79), [1982] ECR 1575. "Noscitur a socciis" - words take their menaing from those around them - ambiguous words or phrases can be clarified by referring to the context in which they are used (see for example Letang v Cooper [1965] 1 QB 232).
presumptions: the judges make certain assumptions about the intentions of Parliament and require strong evidence to the contrary. These include the presumptions that Parliament does not intend to impose criminal liability (Sweet v Parsley [1969] 1 All ER 347), does not intend to take away fundamental rights (R v Lord Chancellor ex p. Whitham [1997] 2 All ER 779*) and does not intend to exclude the courts from deciding disputes, see Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208)
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