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Essay: The English Legal System – precedent, statutory interpretation, law making

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Published: 15 February 2017*
Last Modified: 23 July 2024
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Number of pages: 17 (approx)
Tags: Statutory interpretation essays

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Explain the application of judicial precedent in the courts (P1)

Judicial precedent is a court-made decision used in the future as a source or reference for decision making in future cases with similar facts. In Latin, this precedent is known as ‘stare decisis’, which translates to: ‘let the decision stand’. As these decisions are made by the court, they become common law – or judge made law – and are authoritative and legally binding, thus making them law. This, again, is commonly referred to as judge-made law. This is the doctrine of judicial precedent.

Within law, there is what is known as binding authority or binding precedent, which is simply a precedent of existing case law which courts are legally bound to follow, generally from a higher court. For example, if the Supreme Court makes a decision, that thus becomes common law for all of the courts beneath the Supreme Court (the Practice Statement 1966 allows for the Supreme Court to go back on its decisions). Within judicial precedent, there are several terms that need to be referred to. These are Latin: ratio decidendi, obiter dicta and stare decisis. As described before, stare decisis is to allow a decision to be upheld within common law, translated to ‘let the decision stand’, whilst obiter dicta (plural of obiter dictum) translates to ‘things said by the way’. As suggested by the translation, obiter dicta are statements uttered in court by a judge with regard to their opinion, or wrote within the judge’s written judgement. However, these are not legally binding as precedent. Ratio decidendi, finally, translates to ‘the rationale of the decision’, meaning the decision. This effectively refers to the rule of law and thus the reasoning on which the case is decided.

Persuasive precedent, however, is where a precedent is not legally binding but by law must be fully considered. One application of this is common law determined in commonwealth countries, such as Canada or Australia, where an associated nation under the same Head of State consider following the same laws passed by judges. As stated, decisions in the commonwealth are not legally binding but again must be fully considered. Alternatives form of persuasive precedent can be those such as that stated during the R v Brown case (1993) where Lord Templeman said “society is bound to protect against the cult of violence”, with reference to homophobic attacks.

The Court of Appeal can depart from its prior decisions under three circumstances. These are: 1) when the Court has made two conflicting decisions, where it must choose between these decisions. That choice would thus become binding. 2) If the Court has made a decision contrary/inconsistent with a previous decision by the Supreme Court. 3) should the Court make a decision through “per incuriam”, which translates to “through carelessness”. This refers to decisions made in ignorance which thus became binding.

To distinguish (in law) is where the court determines where a holding or legal reasoning of a precedent will not be applied due to significantly different case facts contradicting between the two cases. Overruling is to decide against a legal decision, often done by a higher court, where the court exercises its superiority to decide against a decision. This is one of the purposes of the Court of Appeal. Dissent is where one or more of the judges in the court express disagreement with the majority decision of the court, and this is written in their judgement.

Advantages of precedent include the speed entailed in the case – reference to precedent speeds up court cases massively. It also allows all parties to develop an expectancy, meaning they can predict the outcome, giving all parties a much more certain outcome to the case. The Practice Statement of 1966 was an Act handed to the House of Lords which allowed them to depart previous decisions when it is important to the general public or of great importance. The House of Lords, following its renaming as the Supreme Court, retained this power, and can still to this day depart from poorly made decisions.

Explain the process of making an Act of Parliament (P2)

When a bill is made and debated within the House of Commons, it goes through a rigorous process to carry it from being a figment of someone’s imagination to becoming an official government act, and thus, law. It must be remembered that Royal Assent is required ultimately to make an act law.

A ‘Green Paper’, simply put, is a preliminary report of government proposals, which is then published in order to incite discussion upon the idea itself. In simple terms, this is effectively a layout of what the proposed act/law would entail. They serve as consultation documents and are used to, again, provoke discussion and ultimately refinement.

A ‘White Paper’ is effectively a refined version of the Green Paper, and serves as an informative document, containing the refined version of the proposal, which was refined during the Green Paper process. This sets out the proposal in further detail than the Green Paper, and effectively serve as a draft version of the planned bill. This serves as basis for future reference and consultation, and the White Paper is further discussed within Parliament. This also allows for final refinements and alterations, following consultation with affected parties, before the proposed bill is presented to Parliament.

A ‘Hybrid bill’ is a bill combining the characteristics from both public bills and private bills, affecting the general public, but also offering a significant impact on specific groups, corporations, individuals (or effectively any other specific group). An example of this was the bill concerning construction of the Channel Tunnel between the U.K. and France. HS2 (High Speed Rail) is also a Hybrid bill. The Public Bill Offices have the responsibility of determining whether a specific bill falls into the Hybrid category, before both the House of Commons and House of Lords debate the proposed bills. They take longer to pass in Parliament than Public bills, and can be fought against with petitions from individuals or groups, allowing them to state their case to a select committee.

Public bills, simply put, are proposals affecting the public as a whole, and effectively making the bill law. They are introduced in either the House of Lords or House of Commons. This is basically a proposition of a law affecting all the land. Members of the public who want to voice their objections to Public Bills can do so by:

writing to their local MP or a Lord
writing to the government department responsible for the Bill itself
submitting evidence to the relevant and appropriate Public Bill Committee

Finance related bills, such as taxes and spending on a public level, are always introduced to the House of Commons.

Private Bills, however, only affect a specific group. They are usually used by organisations, like local authorities or private companies, to give themselves powers beyond, or in conflict with, the general law. This means specific groups can attain powers beyond that of the law for the rest of the country. Groups or individuals potentially affected by these changes can petition to Parliament against the proposed Bill and present their objections to committees of MPs and Lords.

A Bill starting requires a first reading, second reading, committee stage, report stage and a third reading, before the same process is undertaken in the other House. A Bill is initially debated in the House it is started in.

Initially, a Green Paper is writing up, discussing the idea of the Bill in itself, and are effectively notes to incite discussion of the idea. The White Paper is basically the same – designed to provoke discussion within Parliament.

Within the process of the First Reading, the title of a bill is read out and copies of it are printed but no debate takes place. However, in the Second Reading, a debate is sparked, and the Minister (or whoever else) responsible for the Bill really ensures that this goes along smoothly. This allows for the Bill to be refined and become more precise on required details.

Amendments are made, and the committee stage then refines further, consulting people affected by the proposed bill, and a line-by-line examination of the bill is done. Amendments proposed by MPs to the Bill will be published daily and reprinted as a list of amendments for each day the committee discusses the Bill. Every clause in the Bill is agreed to, changed or removed from the Bill, although this may happen without any debate.

The Report Stage is a several day period in which any final amendments can be made by any and all members of the House of Lords. It usually starts 14 days after the committee stage has concluded and is generally shorter than committee stage.

Finally, there is brief debate upon the fine details of the Bill, known as a Third Reading. This is very short, and is effectively just very fine details being determined. Amendments CANNOT be made on a Third Reading within the Commons. Finally, the House decides to approve the Bill from the Third Reading.

The Bill is then put past the Queen – known as Royal Assent. She signs that she agrees with the Bill and it is passed as law for the land. She does not usually reject a Bill; it has already been debated democratically.

Explain the uses of delegated legislation (P3)

In the English legal system, there is what is known as delegated legislation. As suggested by the name, delegated legislation is with regard to the delegation of power or responsibility, effectively meaning they hand over power to a lesser entity. However, a parent act, or framework for the law, is made by Parliament, known as an Enabling Act. This effectively highlights responsibility and applicable power offered by Parliament.

Delegated legislation is used in order to save Parliamentary time predominantly; Parliament is far too busy to discuss each and every individual law. It is also used when Parliament is unavailable – such as during Parliamentary recess over summer. In effect, this simply takes some weight off the shoulders of Parliament.

There are three different types of delegated legislation, one of which being a ‘statutory instrument’, or ‘SI’. These allow amendments and alterations to be made quickly and effectively to existing law. An example of this would be the amendment of The Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006. In effect, this was an adjustment to existing law to change the existing Road Traffic Act 1998, Road Traffic Offenders Act 1988, and The Motor Vehicles (Wearing of Seat Belts) Regulations 1993.These are provisions made, often in response to an incident. For example, if an incident occurs and there is great speculation over it, and thus is brought to the attention of Parliament, they may delegate power to the people with knowledge of such an incident, or to a minister within Parliament, in order to ensure changes are made justly, and go through smoothly.

Bye laws (or bylaws) are laws created locally by local authority, and thus, are generally working with local knowledge of local problems. The local body involved will often be, for example, the local council, or perhaps a Railway company (such as London Midlands locally). These effectively enable local authority to legally impose authority, such as railway fines. Bye laws are initially drafted by the local authority and planned out, before going through the office of the Deputy Prime Minister. Groups and individuals with power over bye laws include the Home Office and the Courts. These are known as controls, which are effectively restraints of power. Should judicial review occur, the court may sever sections of the bye law, be it unjust or unlawful. An example of a quashed bye law is a bye law that intended to illegalise the flight of gliders “in the pleasure ground”. This particular bye law was quashed for uncertainty. However, bye laws can legally only operate within a legally enabling framework, with local authorities being perceived as statutory corporations. The Secretary of State also reserves the right to amend or even revoke enactments obstructing local authoritative efforts from promoting well-being (in all aspects, be that of economic, social or environmental) within their local area.

Finally, there are what are known as Orders in Council. These are alternatively known as Ministerial Orders, and is technically the purpose of the Privy Council. By technicality, these particular orders are created by Her Majesty the Queen, or whomever the monarch may be at that particular time, validating an order to who is known as the Lord President of the Council by simply stating “agreed” to them. It is rare that the full Privy Council ever meet (only on the death and accession of monarch, following a Council-issued proclamation). More recently, in 2003, a Privy Council meeting immediately pushed through law before parliament which was immediately imposed. This was ‘banning of dealings with Osama Bin Laden, the Al-Qaeda terror group and the Taliban’. It was officially known as The Al-Qa’ida and Taliban (United Nations Measures) Order 2002. This highlights the general rarity of action within the Privy Council – only major issues are dealt with here. Parliament effectively delegates power for Orders in Council to become general law (affecting the whole nation). In effect, an Order in Council requires Royal Assent, much like a regular bill being passed.

Delegated legislation is controlled by both the Courts and Parliament. Enabling Acts lay out a framework for the law to be created, and effectively serve as a boundary, showing what the authority the power is delegated to can actually do. This prevent unfair action being justified referring to delegated legislation.

An advantage of delegated legislation could be considered to be a saviour of Parliamentary time and resource. If power is distributed to an alternative entity, it could be argued that law would not only be more precise, but also be created on an individual ground. It is also important to be able to change or amend the law during times without Parliament – such as summer recess – where delegated legislation becomes useful yet again. Delegated legislation ultimately allows local people to often make local decisions, making the laws created much more relevant to the issue at hand; local people know their area generally.

A disadvantage could be argued to simply be how Parliament is perceived in delegating legislation – people may feel abandoned by their own nation. Not only this, it could also be argued that Parliament is there to do the law-making, rather than distributing their authority for someone else to do it. It could, however, be argued that delegated legislation is unfair and undemocratic; the public don’t select who is effectively given Parliamentary power. This can understandably upset people, and makes delegated legislation slightly less sellable to the public.

Compare and contrast methods of law making (M1)

Method of Law Making

Delegated legislation
Parliament – passed through a Bill, highly complicated pipeline of procedures to make sure this law is right.
Made by judges in the court – such as a decision within the Court of Appeal becoming a benchmark for future cases, or what is known as judicial precedent.
Power issued to a separate entity from Parliament in order to carry out its work.

Similarities

Statute and Common Law are both, in effect, passed by professionals, just in a different manner, whilst Orders in Council within delegated legislation is determined by the Privy Council.
Again, professional decisions make common law correspond with the others.
Although bye laws are merely made by a local entity, Orders in Council are vital, as they are much more democratic and debate the decision briefly.

Differences

Has to go through all procedures to become an Act, such as the White Paper, Green Paper all the way up to the last page.
Common law is completely undemocratic, however, as it is made primarily by judges during the case then and again.
Finally, delegated legislation is different to statute due to its lack of democracy.

Describe the influences on Parliament (P2) and analyse the influences on Parliament (M2)

Parliament is a vital part of the law making system and, with the exception of legally binding decisions, are the primary force through which laws are developed and passed in Britain, from being a simple idea at the White Paper stage all the way through to being general law for the nation.

One influence on Parliament is the media, such as the BBC or newspapers like The Sun. Despite a level of censorship on media, Parliament is still greatly influenced by the media as an industry. Being the biggest industry in the country, it definitely cannot be taken lightly, and has the power to taint names very easily. This often scares Parliament into taking the favour of the media. It could be argued, however, that this forces biased actions on behalf of Parliament. For example, during the time surrounding the exit of the European Union (or Brexit ) referendum, heavy media influence not only influenced parliament (initially to kick off the referendum) and also influenced the voters. The media also was a major force behind the Dangerous Dogs Act, following the death of several small children attacked by dogs, the formation of the sex offenders register, following the tragic death of a child at the hands of a paedophile and the ban on smoking in public places. Within the creation of law, a great influence on parliament is that of The Law Commission. The Law Commission is tasked with constantly reviewing and assisting to reform law by effectively preparing reports for parliament, telling them what needs to be changed. This obviously influences parliament as it is the Law Commission’s role to do so. The Law Commission most famously pushed through the Unfair Contract Terms Act 1977, the Occupiers Liability Act 1984 and the Supply of Goods and Services Act 1982. As Parliament, if they are told by a dedicated legislative body like the Law Commission that a law needs changing, it would be advisable to change it, especially due to an increased amount of pressure the Commission could apply. However, they are unlikely to go to the media about Parliament being difficult towards the Commission.

Pressure groups can prove a hugely pivotal section of the groups that have influence on Parliament in legal proceedings. Many laws we live with now are as a result of pressure groups, be that suffragettes in the early 20th century (a pressure group fighting for the right for women to vote) or even the initial EU Out group as recently as 2015 – they, led by influential MPs such as Boris Johnson, influenced the rest of Parliament, in order to take the idea of Britain leaving the EU from an idea, to dividing Parliament, and ultimately into reality. They are highly effective often due to very ambitious and committed members,

A Royal Commission is a group appointed by the crown to lead an inquest into a particular thing – such as a gap in current law or a needed amendment. They meet, serve part-time, and then disband. However, this short time can have great Parliamentary influence, especially due to its appointment from the crown. What the monarch says generally goes, and Parliament is more likely to be swayed by a group like a Royal Commission more easily.

Comparatively, it could be seen that the Law Commission is potentially less influential than pressure groups generally as pressure groups convey the ideas and thoughts of the general public and are regular people trying to make a change.

Overall, it could be argued that Pressure Groups as a general term have the finest track record of triggering change as they are groups from the general public who push what they believe in until it becomes reality.

Outline the rules for statutory interpretation (P5), explain the importance of statutory interpretation (M3) and evaluate the role of the judiciary in the formulation and interpretation of legal rules (D1)

Unit 2 – Understanding Law Making, Formative Task 5, Statutory Interpretation

Statutory interpretation itself is the idea of judges applying a particular definition of the law or statute appropriate for that particular situation. For example, in a case where there is any ambiguity related to the law itself, left to the discretion of the judge due to when, in 1978, Parliament passed the Interpretation Act to set out general rules for judges to interpret statute.

Within statutory interpretation, there are four rules of interpretation. These are known as: the literal rule, the golden rule, the mischief rule and finally, purposive approach. These are all drastically different and serve multiple different purposes.

The literal rule , as suggested in the name, is application of the statute in its most literal form, and simply going by the current definitions of the terminology involved, irrelevant of intention at the time the act was passed. Despite this, the literal rule does have the negativity of a liability to lead to an absurd result. In the case of Whiteley v Chappell (1868) the literal rule was applied and formulated into an absurd result. In the case the defendant was accused of having breached an act making it an “offence to impersonate any person entitled to vote”, but the ‘victim’ was actually dead so effectively he wasn’t a person, thus meaning the defendant was found not guilty. Famously, there was the case of Fisher v Bell (1960) where the defendant was found not guilty of offering a knife for sale by having it in the window of his shop with a price tag. Due to the literal meaning of the terminology related to the act illegalising the sale of a switchblade, the term ‘to offer’ meant the defendant was not guilty as the price tag was an “invitation to treat”, thus meaning it was not an offering.

The golden rule is a refined form of the literal rule, where the terms are applied using their original meaning unless that would therefore lead to an “absurd result”. This would effectively prevent absurd cases – like that of Whiteley v Chappell (1868). There is both a narrow and wide approach to this particular rule, contrasting in application, the wide application being applied in the case of R v Sigsworth (1935) where a son had murdered his mother. Generally, the law made it so that the next of kin would inherit the dead person’s estate, stated in the statute. However, the court, using the golden rule, conceived the idea of how absurd this would be – to give the killer the estate. The judge would not allow for a murderer to benefit from his crime so he applied the golden rule and decided the next of kin would not inherit the estate “where they had killed the deceased”. By definition, the wide approach effectively makes it so that the court can modify words to avoid problems, whilst the narrow approach only allows for determining between two different words that could be disputable.

The mischief law is effectively where the judge will apply the law as intended by parliament, where possible, to suppress the mischief parliament intended to suppress through the act in the first place. In the case of Smith V Hughes (1960), Ms Smith acted contrary to the Streets Offences Act 1959 by soliciting in a street “for the purpose of prostitution”. Ms Smith argued that she was not breaking the law as she was using her own premises (a window) to attract attention and not physically standing in the street. The judge considered the actual intention of the law and decided that it was the intention of the law to prevent prostitutes from pestering innocent people – the mischief parliament intended to stop. The law was thus applied in that way.

The Purposive Approach is a rule, for the most part, used in the European Courts of Justice as there are several languages in play. Lord Simon, in Maunsell v Olins (1975), laid out the idea of a two tier test with regard to statutory interpretation. He was quoted to have said: ‘The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language’, with regard to what constitutes a building on which requires rent to be paid.

Statutory interpretation is important due to the way words change over time due to social structure and how perception has developed – people are more educated in the modern day and there are several meanings to individual words, especially in modern English. Technology has also developed over the years, meaning laws must be adjusted and adapted in order to incorporate technological developments and advancements. Although not law, an example of this is rules for exams within educational establishments, as previously, smartwatches were unknown and hadn’t been made, so students could bypass the rules regarding using electronics in exams – until the exam bodies changed their rules to incorporate this alongside technological advancement.

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