Sources of law and interpretation of statute

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  • Created by: Lucy
  • Created on: 16-07-15 22:11
Case Law
Common Law and Equity
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Legislation
Primary (by house of parliament) and secondary or delegated (e.g. HMRC)
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Case Law/Common Law/ Judge made law
Set of rules common to the whole country, embodied in judicial decisions.
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Aim of Common Law
Consistency
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Equity
Set of principles developed after common law, 13th century.
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Aim of Equity
fairness and morality
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Overriding principles of Common Law
Comprehensibility and certainty.
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Remedy for Common Law
Damages (only)
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Remedy for Equity, available at courts discretion
Specific performance of a contract, injunctions force an action or prevent it, rescission puts the parties back into their pre-contractual position and rectification allows the alteration of an agreement to reflect the parties true intentions
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Equity Recognises
Rights of beneficiaries (equitable owner) under trust
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Common Law Recognises
Rights of legal owner (the trustee) of property
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When judges apply equity
If the Common law proves inadequate.
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Judicial Precedent
Courts expected to make decisions that are consistent with those of previous judges, however long the time between case, under priniple 'stare decisis, let the decision stand'
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Stare Decisis
let the decision stand
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Ratio Decidendi Meaning
Reasons for deciding
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Ratio decidendi
if the facts of the case can be distinguished then the earlier decision don't not have to be followed.
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Obiter Dicta Meaning
Other stuff
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Obiter Dicta
passing comments that may influence later judges but are not binding on them. Persuasive only.
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Supreme Court Bind
All lower but not itself
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Court of Appeal Bind
All lower and itself
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High Court Bind
More than one judge - binds all lower and itself, one judge, all lower but not itself
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County court Bind
Blinds no-one
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What grounds can courts disregard earlier decisions
Different facts, earlier ratio was obsure, earlier decision made 'per incuriam (wrongly) or earlier precedent may be too wide
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Per incuriam
Wrongly
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Certainty Advantage of judicial precedent
Law is decided fairly and predictably. Risk of mistakes reduced
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Certainty Disadvantage of judicial precedent
Decision may be illogical
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Clarity Advantage of judicial precedent
Parties know what the aw is prior to taking legal action
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Clarity Disadvantage of judicial precendent
Different ratio may appear to conflict with each other. More than one judge, they may come up with very different reasons for deciding outcome of case
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Flexibility Advantage of judicial precedent
System adapts to reflect changes in society and technology
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Flexibility Disadvantage of judicial precedent
Can limit judge discretion
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Detail Advantage of judicial precedent
Law reports are detailed documents containing lots of legal reasoning. if important, judges should have scope to distinguish later case on the basis of different facts
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Detail Disadvantage of judicial precedent
Too much detail, too easy to distinguish on the facts
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Practicality Advantage of judicial precedent
Case law is based on real life events. Legislation sometimes based on theoretical principles that have not been tested in the real world.
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Primary Legislation
Created by Act of Parliament
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Parliament can:
Repeal earlier legislation, Overrule case law and make new law
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What is Treaty of Rome
Directs UK government to legislate
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UK obliged to apply directives
Direct to do something before it becomes law
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UK obliged to apply regulations
Automatic law
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Is Primary Legislation over ruled by courts
NO
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Who introduces legislation
Government, MP, Member of House of Lords
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Where is Legislation introduced
House of Commons or House of Lords
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If it passes through one House what happens
The procedure is repeated in the Other House
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Green Paper
Discussion Document - tend to be leaked to press to see what public think
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White Paper
Statement of policy generally precede proposed legislation
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Bill Goes through what stages
1st Reading, 2nd Reading, Committee Stage, Report Stage, 3rd Reading, Bill Passes to other House and finally Royal assent
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Advantages to Primary Legislation
MPs are elected and are representatives of people. Judges are appointed. Legislation can be enacted to cover any issue. Time requires to pass legislation and the convoluted process mean much care and thought can be applied. Bad law repealed
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Disadvantage of Primary Legislation
MPs often lack expertise, Statutes are bulky, MPs complain of lack of time to consider bills in detail, Legislation tends to be broad brush and it struggles to cover every eventuality.
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Delegated Legislation
Parliament delegate powers to Ministers, local authorities, HMRC etc to create legislation. Made possible by 'Enabling Act'
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Positive Affirmation
Delegated but want to be sure that its right therefore ask for Parliament approval
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How many days do Parliament have to decide on other delegated legislation matters
40 days before passes into law
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Ulta Vires
Beyond capacity of the enacting body
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What act do they have to comply with before courts can strike them out or declare Ulta Vires
Human Rights Act 1998
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Negative affirmation
Won't vote unless there is something they decided needs to be discussed - have 40 days if not it becomes law.
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Advantages of delegated legislation
Saves valuable Parliamentary time, Created by experts, quicker to create than primary legislation, easy to amend
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Disadvantage of delegated legislation
Creates bureaucracy, made by un-elected officials, potential for confusion as legislation made by one body may conflict with legislation created by another, too many rules for citizens to keep up with
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Main sources of Interpreting statute
Rules, Presumptions and Other Aids
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Literal Rule
Give words ordinary everyday meaning
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Case on Literal Rule - Unwin V Hanson (1981)
'Prune and lop' - means to take out branches to encourage future growth and to take out side branches. Not to take the tops off trees
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Golden Rule
Do not apply the literal rule if that leads to absurdity
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Case on Golden Rule
Offences against person act defines bigamy as whoever being married... shall marry again. Technically impossible so interpret the act to give it sense ie purports to marry again
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The Purposive approach and the mischief rule
Judge look for purpose of statute. Look at: Old Law, Mischief, Remedy intended by parliament
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Contextual Rule
Look at the whole statute if required to interpret the meaning
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Ejusdem Generis
When General words follow specific words the general words are limited by the specific words
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Case on Ejusdem Generis - Evans V Cross (1936)
Charged with ignoring a traffic sign when he crossed the white line in the road. Traffic signs defined as 'all signals warnings directions posts signs or other devices'. white lines is not a sign.
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Expressio unisest exclusion alterius
Expression of one thing is to the exclusion of the other e.g. This law applies to cats means that it does not apply to other animals.
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Intrinsic - Internal to act/statute examples
Long title of Act, Premable, interpretation section of the Act, e.g. defined in CA 2006, side notes, in margin of Act
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Extrinsic - External to act/statute
Dictionary, Hansard (official journal of Parliamentary debates), Reports of Law Commission and other official committees, The Interpretation Act 1987 defines popular words, states that masculine encompasses feminine, and singular encompasses plural
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Other cards in this set

Card 2

Front

Primary (by house of parliament) and secondary or delegated (e.g. HMRC)

Back

Legislation

Card 3

Front

Set of rules common to the whole country, embodied in judicial decisions.

Back

Preview of the back of card 3

Card 4

Front

Consistency

Back

Preview of the back of card 4

Card 5

Front

Set of principles developed after common law, 13th century.

Back

Preview of the back of card 5
View more cards

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