The English Legal System

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The English Legal System

• Sources of Law
• Rosemary Craig BA LLB LLM PGCHEP

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Learning Objectives

• To know what the English legal system consists of
• To know how the system developed
• To know the sources of law that make up the
  English legal system
• To know what is common law
• To understand equity
• To know the difference between the applications
  of common law and equity
• To understand how statutes are passed and what
  impact they have on the legal system
• To know the meaning of delegated legislation
• To understand the interpretation of statutes

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Common Law

• 12th Century King Henry 11 (1154 - 1189)
• Circuit Judges. Decisions recorded. Beginning
  of concept of precedent
• Declared by Judges on basis of fundamental legal
  principles
• Body of legal rules common to the whole country
  which is embodied in a judicial decision
• Curia Regis (Kings Court)

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Common Law Problems

• Obsession with procedural detail. A claim could
  fail because of a small mistake on the claim form
• Limited remedies available damages
• Bias
• Set time limits Limitation Acts usually six
  years
• Traditionally, the common law system was rigid
  and inflexible

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Equity

• A system of doctrines and procedures developed by
  the Courts of Chancery in its attempt to remedy
  some of the defects of the common law
• Introduced the concept of fairness.
• Flexible
• Supplements the common law
• No strict time limits but delay defeats equity
• Remedies include rescission, specific performance
  and injunction
• If there is any conflict between the common law
  and equity, equity will prevail

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The Maxims of Equity

• Equity will not suffer a wrong to be without a
  remedy
• He who comes to equity must come with clean hands
• Delay defeats equity
• Equity looks to the intent rather than the form
• Equity acts in personam (remedies are given
  against the individual)

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Legislation

• No written constitution
• Parliament is the supreme law-making body
• Acts of Parliament
• Delegated legislation

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• Acts of Parliament are legislation made by
  Parliament itself. Acts passed to-
• Create a new law
• Authorise taxation
• Codify existing law
• Consolidate existing statutes
• Acts starts out as Bills (public, private
  hybrid Bills)

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How does a Bill become an Act?

• A member introduces a Bill (into either the
  House of Commons or The House of Lords).
• First reading amounts only to a literal reading
  of the title of the Bill. After this it can be
  printed and made available to the public.
• Second reading more full debate on merits of bill
• Committee stage in depth analysis by committee of
  MPs
• Report stage committee reports back to Commons
• Third reading last chance for debate

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Delegated Legislation

• Rules of law made by subordinate bodies who have
  the statutory power to do so
• Orders in Council, statutory instruments,
  bye-laws, professional regulations
• Time saving
• Flexibility changes in society
• Expertise
• Some criticism that delegated legislation is
  unconstitutional

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Control of delegated legislation

• Withdrawal of powers from the body concerned
• Consultation of interests
• Courts have control in that the validity of a
  statutory instrument can be challenged, either
  because it was made ultra vires, or the correct
  procedures were not adhered to
• Daymond v South West Water Authority (1976)
• Raymond v Honey (1983) 1AC 1
• Boddington v British Transport Police (1998)
  (Smoking in a non smoking railway carriage)

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The doctrine of binding precedent

• Based on the view that the Judge must decide
  cases in accordance with existing rules.
  Designed to provide consistency-
• decision must be based on proposition of law, not
  a question of fact
• must form part of the ratio decidendi
• material facts must be the same
• preceding court must be superior

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Ratio v Obiter

• Ratio Decidendi
• A Latin phrase meaning the reason for a
  judicial decision.
• It is used to refer to the legal grounds upon
  which the decision of a court is based.

• Obiter Dicta
• A Latin term which means Things said by the
  way. The term refers to statements made by a
  judge on a point not directly relevant to the
  case before them. It will only be of persuasive
  authority

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Avoidance of a binding precedent

• Distinguish the facts
• Declare the ratio decidendi obscure
• Declare the previous decision per incuriam
  (through want of care)
• Declare it to be in conflict with a fundamental
  principle of law
• Declare an earlier precedent to be too wide

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Advantages and disadvantages of Precedent

• Advantages
• Consistency
• Flexibility
• Clarity
• Certainty
• Practicality

• Disadvantages
• Can force judges to distinguish cases on
  illogical grounds
• Limits courts overall discretion
• Difficulties in understanding hard to apply

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Statutory Interpretation

• Literal Rule words should be given their ordinary
  plain or literal meaning
• Golden Rule a statute should be construed to
  avoid a manifest absurdity or contradiction
  within itself
• Mischief Rule known as the purposive approach
• Contextual Rule means that a word should be
  construed in its context
• Eiusdem Generis Rule of the same kind
• Expressio Unio Est Exclusio Alterius Rule stating
  that one thing excludes others

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• Intrinsic aids contained within the
  legislation itself. Preamble and definition
  sections
• Extrinsic aids-
• Interpretation Act 1978
• Oxford English Dictionary
• Law Commission Reports
• Hansard
• EC Law
• Codes of Practice

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Development of English Law

• Continuity
• Judicial Precedent means that a judge is bound
  to apply a decision from an earlier case,
  provided among other conditions, there is no
  material difference between the cases
• Common law body of legal rules common to the
  whole country which is embodied in a judicial
  decision
• Equity introduced the concept of fairness in
  the law
• Codification this occurs when existing
  legislation and case law on a particular topic
  may be set out anew in a single statute