Courts Hierarchy

                                                                  SUPREME COURT

CRIMINAL                                                                                                     CIVIL                                                                                

COURT OF APPEAL                                                                           COURT OF APPEAL

CROWN COURT                                                                            HIGH COURT OF JUSTICE

MAGISTRATES COURT                                                                     COUNTY COURTS

ADR Evaluation

Intro:
Court action is not always the most appropriate means of resolving a dispute, due to the following reasons:

• Complexity of legal procedures
• The cost of court action
• Intimidating atmosphere of the courts
• The delay in resolution
• The public nature of court action
• the adversarial nature of court action which will result in a deterioration of the relationship between the parties

ADR is encouraged by Part 1 Civil Procedure Rules 1998 - there is an "overriding objective" on judges to encourage ADR where appropriate

Arbitration:

• Commonly used in commercial and contract cases, and most notably high profile sports cases
• Definition - the parties agree to let an independent arbitrator make a binding decision. Many contracts include a Scott v Avery clause to agree pre-contractually to arbitrate in the event of a dispute
• Legal Authority - s1 Arbitration Act 1996, s5 Arbitration Act 1996, Institute of Arbitrators 

Advantages:

• The parties have discretion as to the choice of arbitrator with the existence of the Institute of Arbitrators
• The hearing procedure is left to the discretion of the parties; they can choose the venue, date, number of witnesses etc
• There is rarely any publicity
• The award is binding and can be enforced by the courts
• The arbitrator is an expert in the field

Disadvantages:

• Public funding is not available, so one party may have an advantage from the offset
• Appeals are restricted in the arbitration process
• Parties may feel that they do not get their 'day in court'
• If a legal point arises, there is not always a legal professional in the hearing

Mediation:

• Commonly used in family disputes or any area where a relationship needs to be maintained
• Definition - The parties are encouraged to come to their own settlement with the help of a third party neutral mediator who acts as a 'referee'
• Legal Authority - Dunnett v Railtrack, Halsey v Milton Keynes NHS Trust, s13 Family Law Act 1996, MIAMS (introduced in 2011)

Advantages:

• It is a private and confidential process
• The parties enter into mediation voluntarily
• It is quick, cost-effective and accessible
• There is a good chance that the parties can maintain a relationship

Disadvantages:

• The dispute may end up going to court anyway if mediation fails, resulting in greater costs
• Increasingly being seen as a compulsory step in the process
• Where parties are 'forced' into mediation, there is a half-hearted commitment , decreasing the chances of success

Conciliation:

• Commonly used in industrial disputes
• Definition - The third party plays an active role in the proceedings in order to push the parties in the direction of a settlement
• Legal Authority - ACAS

Advantages:

• Cheaper than litigation
• A private and confidential process
• ACAS adopts a prevention rather than cure approach to dispute resolution
• It identifies and clarifies the main issues in the dispute

Disadvantages:

• Heavily relies on the skills of the conciliator
• The dispute may end up going to court anyway if conciliation fails, resulting in greater costs

Negotiation:

• Used in most cases at the beginning of the dispute
• Definition - resolving the dispute between the parties themselves; can involve solicitors. At its most basic, involves returning faulty goods to a shop; its most complex involves solicitors and settlement offers being exchanged

Advantages:

• Completely private
• Quick resolution, maintaining relationships
• Relatively informal method of resolution

Disadvantages:

• Involving solicitors can make the process costly
• Offers are often exchanged and are not agreed until the day of court; wasting time and money
• People see it as a "halfway" house and think that they are not receiving as much as if they had gone to court

Tribunals:

• Used in specialist areas of law; e.g Social Security, Immigration, Employment etc
• Definition - "specialist courts" dealing with different areas of the law. They are inferior to the courts
• Legal Authority - Peach Grey Co v Sommer, Leggatt Report 2001, Franks Committee 1957

Advantages:

• Cheaper and quicker than the courts; many cases dealt with in a day with no legal representation
• Procedure is simple, much more informal than a court and most cases are private
• Experts are involved in decision making; more flexible because they are not bound by precedent
• Avoids congestion of ordinary civil courts

Disadvantages:

• Public funding is not available
• Tribunals do not give reasons for their decision, which makes it difficult to appeal
• Lack of adherence to precedent makes it difficult to predict the outcome of cases
• Lack of publicity means that issues of general public importance could be missed

Advantages and Disadvantages of ADR

Mediation Advantages:

• Good alternative to long and expensive court proceedings and will hopefully reduce the number of divorces dealt with by the courts.
• Average mediation costs = £535 when the average for court = £2,823
• Mediator is independent and is chosen by the parties
• Provides people with quicker, cheaper, and more harmonious ways of dealing with disputes
• The new scheme will not apply to victims of domestic violence, protecting the victim and avoiding acrimonious meetings between the parties
• All discussions are confidential and held in private - usually on neutral ground
• The agreement is legally binding - it can be enforced by the courts
• There is evidence to suggest that some matters are resolved better through mediation
• There is an objective ref

Mediation Disadvantages:

• It is not compulsory to commit after the initial assessment so some people choose to go to court anyway
• Successful mediation takes about 3-5 days - whereas courts can reach a solution in a day
• Lots of mediators tend to be lawyers, but it is not a requirement so there may be no legal expertise available and a legal point may arise
• Many take legal advice alongside mediation, so actually these people save very little money
• Some are worried about being in the same room as an ex and so this can cause stress and anxiety
• If no agreement is reached, the parties have to start again
• The parties are not allowed to use the content of sessions as evidence in legal proceedings

Negotiation:

• It's quick and easy
• Involves a private contract
• Cheaper than going to court
• Informal/unofficial/unwritten

Conciliation:

• Conciliator takes an active part
• Allows for non-legal common sense solutions
• Achievable solutions likely
• Possibly still a risk of court
• Cheap, quick and convenient

Arbitration Advantages:

• The parties can choose their own arbitrator
• Expertise available
• The hearing time and place can be arranged to suit the parties
• The actual procedure is flexible and can be partially chosen by the parties
• The matter is dealt with in private
• The dispute will be resolved more quickly than through a court hearing
• Arbitration tends to be cheaper than going to court
• The award is final and can be enforced by the courts

Arbitration Disadvantages:

• The rights of appeal are limited
• An unexpected legal point may arise which is not suitable for decision by a non-lawyer arbitrator
• If a professional arbitrator is used, their fees could be high
• It will also be expensive if the parties opt for a formal hearing

The Arbitration Act 1996

s1 Arbitration Act 1996 states.
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.

• An agreement to arbitrate will usually be in writing; the Arbitration Act 1996 applies only to written arbitration agreements. The precise way in which the arbitration is carried out is left almost entirely to the parties' agreement.
• s15 Arbitration Act states that the parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may be a sole arbitrator. If the parties cannot agree on a number then the Act provides that only one arbitrator should be appointed
• The Act also says that the parties are free to agree on the procedure for appointing an arbitrator. Most agreements will either name an arbitrator or provide a method of choosing one. It is often provided that the president of the appropriate trade union will appoint the arbitrator
• The Institute of Arbitrators provides trained arbitrators for major disputes. In many cases, the arbitrator will be someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law the parties may decide to appoint a lawyer
• If there is no agreement on whom or how to appoint, then, as a last result, the court can be asked to appoint an appropriate arbitrator

The actual process is left to the agreement of the parties in each case, so there are many forms of hearing:

• Paper hearing - this is where the two sides put all the points they wish to raise into writing and submit this, along with any relevant documents, to the arbitrator. They will then read all the documents, and make a decision
• Oral hearing - Once the arbitrator has all of the documents, both parties will attend a hearing at which they make oral submissions to the arbitrator to support their case

The decision made by the arbitrator is called an award and is binding on the parties. It can even be enforced through the courts if necessary. The decision is usually final, though it can be challenged on the grounds of serious irregularity in the proceedings on a point of law

Civil Courts: Civil Process: Alternate Dispute Resolution

Alternative Dispute Resolution (ADR) is the means of resolving a dispute without going through court.

• ADR is encouraged by the Civil Procedure Rules. Part 1 contains an overriding objective that judges have to deal with cases justly and fairly
• There are four main types of ADR: negotiation, mediation, conciliation and arbitration

Negotiation:

• Involves solving the dispute with the parties directly
• Could involve solicitors that result in a settlement before the court date
• "Modern" methods of negotiation - DIY, on-line
• Biggest method of ADR - completely private, easy, minimum cost

Mediation:

• Involves having a third party acting as a 'referee'
• Particularly popular in family cases - Family Law Act 1996
• "Modern" methods - online mediation, mediation centres
• The mediator cannot suggest ways to compromise, the parties must be encouraged to reach their own decision
• It is becoming seen as compulsory- Dunnet v Railtrack - where an adverse costs order was given to parties who refused to mediate
• 2011 - Introduction of Mediation Information Meetings (MIAMs) -compulsory initial meetings for all divorcing couples. The meeting costs around £140 and will assess whether the case is suitable for resolution through mediation or whether court would be more appropriate
• There are mediation services away from the conventional solicitor's office - DMS (dispute mediation services), CEDR, The Mediation Room, West Kent Mediation

Conciliation:

• Involves a third party taking a more active role (they are allowed to suggest compromises)
• Common in industrial disputes - ACAS is the biggest conciliatory body
• Is a prevention rather than cure approach
• Used in access to services for the disabled
• Can be used to avoid industrial strikes

Arbitration:

• Governed by the Arbitration Act 1996
• Common in commercial contracts and sporting disputes
• The result is binding on the parties
• A flexible procedure (e.g number of witnesses, where, when etc)
• One can choose a specialist in the field or a legal professional as the arbitrator
• Must be carried out in a judicial manner in line with natural justice
• Scott v Avery clause - agreement to arbitrate before contract

Disadvantages of Precedent

• Judges are drawn from a narrow social spectrum (old white men), therefore their views are less likely to be representative of the general public
• The system is rigid, as lower courts have to follow the decisions of higher courts
• Judgments can be long and unclear, and so finding the ratio decidendi can be difficult
• In seeking to avoid a precedent, judges may make distinctions which seem neither logical nor in line with the general rules that have been developed
• Case law is not designed for coherent legal development - the law develops in an incremental fashion and the directions of such change are not predictable
• Only the Supreme Court can give an ultimate ruling on an issue before the courts - it is extremely expensive and time consuming to get a case this far
• The system of precedent cannot initiate legal change since it has to wait for and appropriate case to come before the courts
• Some judges have been frustrated by the restrictions imposed by the precedent system, believing them, at times, to create injustice
• Judicial precedent leads to complex and imprecise bodies of law, thus encouraging speculative litigation

Advantages of Precedent

Certainty:

• The precedent system encourages consistency, as like cases are decided alike (stare decisis). This means that the system is predictable, which means that people can plan ahead with reasonable confidence that they are not breaking the law

Flexibility:

• Judges can distinguish cases based on their facts
• The Practice Statement allows the law to develop and adapt, thus keeping up with modern times
• The precedent system has enabled entire areas of law to grow e.g contract and tort law
• Objectivity - the system of precedent prevents judges from exercising personal prejudice, therefore making the courts' decisions more transparent

Legal Growth:

• New laws can be created to deal with difficult and new legal dilemmas e.g in Airedale NHS Trust v Bland (1993) where the question was whether a life support machine should be switched off if a person is in a persistent vegetative state and Re A (2000) where the question was whether or not Siamese twins should be separated in an operation which is recommended by the hospital, but has been clearly opposed by the patient.

Judicial Precedent: Avoidance Techniques

There are ways of avoiding precedent that are used by courts to depart from a previous decision depending on the factors

Overruling:

• This is where a court that is higher in the hierarchy departs from a decision that has been made in a lower court
• A good example is BRB v Herrington (1972) , which overruled Addie v Dumbreck (1929) and set a new precedent that a duty of care is owed to a trespasser (whereas before it had been the opposite)

Reversing:

• This is where a higher court departs from the decision made by a lower court on appeal
• A good example is Re Pinochet (1999)
• Pinochet was a Chilean dictator who was convicted for his crimes
• The outcome of the case was reversed because the original judge was a director of amnesty international and so deemed to be biased
• Pinochet was set free because of this

Distinguishing:

• This is where the facts of the case are deemed different enough that the previous case is no longer binding
• Merritt v Merritt (1970) was distinguished from Balfour v Balfour (1919)
• Both cases were about the husbands paying maintenance to their wives
• In BvB, the husband said that he would pay maintenance to his wife. This was held to be unenforceable because it was an oral agreement
• In MvM, there was a written agreement for the husband to maintain the wife. Because it was written down, it was held to be legally enforceable

Cases Involving Original Precedent

R v R (1991):

• The defendant was charged with the attempted rape of his wife
• At the time of the offence the couple had separated informally, but neither of them had partitioned for divorce
• The House of Lords (now Supreme Court) overturned the matrimonial exception to rape and the husband was convicted
• This set an original binding precedent which is followed in similar cases

Donoghue v Stevenson (1932):

• Donoghue's friend had bought her a bottle of ginger beer
• The bottle contained the decomposing remains of a snail
• Because of this Donoghue suffered from nervous shock and gastroenteritis
• Donoghue attempted to claim against the manufacturer of the ginger beer - claiming that he owed her a duty of care
• The case held, setting an original precedent which means that manufacturers do in fact owe a duty of care to the ultimate consumer of their product

Cases Involving Practice Statements

Herrington v BRB (1972):

• The first significant use of the Practice Statement
• In this case the issue was whether or not a duty of care is owed to a trespasser. In this case it was a child (and it was determined that a duty of care was owed)
• There was precedent from Addie v Dumbreck (1929) where it was decided that the landowner didn't owe a duty of care to a trespasser and would only be at fault if the harm that came to the trespasser was intentional or a result of recklessness
• The Supreme Court used the Practice Statement to overrule this precedent and replace it with the result from Herrington v BRB

Jones v Secretary of State for Social Services (1972):

• This case illustrated the reluctance in the House of Lords to use the Practice Statement
• The case involved interpreting the National Insurance Act 1946
• Four of the seven judges regarded the earlier decision in Re Dowling (1967) as being wrong
• Despite this, the Lords refused to overrule the earlier case , preferring to keep to the idea that certainty was the most important feature of precedent

Miliangos:

• It was decided that compensation should be awarded to the claimant in a currency of their choosing

Pepper v Hart:

• The previous ban on the use of Hansard in statutory interpretation was overruled

R v Shivpuri (1986):

• Shivpuri was persuaded to act as a drugs courier. He thought that he was attempting to smuggle heroin, but it turned out to be snuff, which is legal. The defendant claimed that he couldn't be found guilty because the substance was not a drug
• Ovrruled Anderton v Ryan - where attempting the impossible was seen to not be a criminal offence (in Anderton, a woman sold TVs that she thought were stolen but turned out to be wrong)
• The case held and Shivpuri was prosecuted

Judicial Precedent: Overview

Useful terms:

• Stare decisis - to stand by what has been decided
• Ratio decidendi - the legal reason for the decision
• Obiter dicta - other things said
• Binding precedent - a precedent which must be followed
• Original precedent - law that is created through the outcome of a case which becomes binding precedent to all future cases
• Persuasive precedent - Judgments which do not have to be followed, but can be considered if the judge wishes it. e.g - decisions by courts lower in the hierarchy, decisions of the privy council, statements made obiter dicta, a dissenting judgment and decisions of other common law juridictions

The Court Hierarchy:

The Supreme Court:

• The highest court in the English legal system
• Final appeal court in the UK
• Bound by its own decisions until the 1966 Practice Statement 
• The Practice Statement allows the court to change their mind on the outcome of a case, rather than just following the precedent

The Court of Appeal:

• Directly below the Supreme Court
• Bound by the decisions of the Supreme Court and its own decisions
• Has no Practice Statement but there are exceptions (Young v Bristol Aeroplane Co.)
• The decisions of the Civil Division bind all lower civil courts
• The decisions of the Criminal Division bind all lower criminal courts
• Only the Supreme Court can overrule this

When can the Court of Appeal avoid following precedent?

• Outlined by the Young v Bristol Aeroplane case
• When a previous decision conflicts with later Supreme Court decision the Supreme Court precedes
• When there are two conflicting Court of Appeal decisions, the judge can choose which to follow
• When the decision is made per incuriam (wrong)

Finding Parliament's Intention

• If a statute is unclear in its wording, or there is a new situation facing the courts, then it's up to the court, and ultimately the judge, to decide which approach is best used to reach the best outcome
• To help them decide which approach is best, they use aids to interpretation

Aids to Interpretation:

Internal/Intrinsic Aids:

• Long title of the Act
• Short title of the Act
• Preamble (modern statutes don't seem to have it. It's at the beginning of the statute and is almost like a short summary) - In the Theft Act 1968, it says in the preamble that it is an 'Act to modernise the law of theft)
• Headings
• Schedules
• Explanatory notes
• Rules of language: Ejusdem generis - words of the same kind, Expressio unius est exclusio alterius - express mention of one thing implies the exclusion of another, Noscitur a sociis - a word draws its meaning from those around it

Presumptions:

1. Statutes do not change the common law
2. Legislation does not operate retrospectively
3. Laws which create crimes should be interpreted in favour of the defendant

External/Extrinsic Aids:

• Previous Acts
• The historical setting
• Earlier case law
• Dictionaries and textbooks of the time
• Hansard
• Law commission reports
• International conventions, regulations or directives
• Treaties
• The Human Rights Act 1998 - The Act incorporates into UK law the European Convention on Human Rights. Section 3 requires that: "So far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights"

• Hansard - David v Johnson (1978)
• Pepper v Hart (1993) - the dissenting judgment of Lord Mackay
• Three Rivers District Council v Bank of England (1996)
• R v Secretary of State for the Environment, Transport, and the Regions, ex parte Spath Hilme Ltd (2001)
• Wilson v Secretary of State for Trade and Industry (2003)

European Legislation:

Under Article 267 of the Treaty on the Functioning of the European Union, the Court of Justice of the European Union is the supreme court for the interpretation of EU law

Lord Denning in Bulmer v Bollinger (1974) said that when interpreting EU law the courts should take the same approach as the European Court

"No longer must they examine the words in meticulous detail... they must look to the purpose or intent. To quote the words of the European Court in DaCosta they must divine the spirit of the Treaty and gain inspiration from in. If they find a gap they must fill it... So must we do the same"

Effect of EU Membership on Statutory Interpretation: 
Growth of a more purposive approach and effect of S2(4) European Communities Act 1972 - all parliamentary legislation must be construed and applied in accordance with Union law:
R v Secretary of State for Transport, ex parte Factortame (1990)

Statutory Interpretation and Case Law:

• Once the courts have interpreted a statute, that interpretation becomes part of case law in the same way as any other judicial decision, and is therefore subject to the rules of precedent

The Purposive Approach

• Goes beyond the mischief rule - instead of simply looking at the gap in the law, judges look at what Parliament was trying to achieve with the law
• In 1952 (during Magor and St Melons Rural District Council v Newport Corporation), Lord Denning said:

"We do not sit here to pull the language of Parliament to pieces and make nonsense of it... we sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis"

Below are some examples cases where the Purposive Approach has been used:
R v Registrar-General, ex parte Smith (1990):

•  This case concerns the interpretation of the Adoption Act 1976, which allowed an adopted person aged 18 or over to obtain a record of their birth, provided that they had undertaken counselling
• The applicant Charles Smith clearly met this criteria that was set out by Parliament, and so was legally entitled to his birth certificate.
• The problem was that he had been convicted of two murders and was detained in Broadmoor for psychiatric illness
• The courts decided that it would not be right to allow him access to his birth certificate as this could have put his birth-mother at risk
• If they had used any other approach, he would have been given his birth certificate. The Purposive Approach allowed them to avoid this

R (Quintavalle) v Secretary of State (2003)

• The House of Lords had to decide whether organisms created by cell nuclear replacement (CNR) came within the definition of 'embryo' in the Human Fertilisation and Embryology Act 1990
• The Act stated that 'embryo means a live human embryo where fertilisation is complete'
• The problem was that in 1990, when the Act was passed, there was only artificial insemination. By 2003, CNR was available and used cloning
• The House of Lords used the Purposive Approach, believing that Parliament's purpose would not have been to distinguish between embryos depending on how they were made

Advantages of the Purposive Approach:

• Allows for more situations to be covered than the literal rule
• Leads to justice in many individual cases
• It is useful where technology or scientific advancement is made for otherwise Parliament would have to legislate
• Gives judges more discretion to avoid an absurd situation

Disadvantages of the Purposive Approach:

• Judges refuse to follow Parliament's clear words (it gives too much power to judges)
• Difficult to discover what Parliament's intentions were
• Unelected judges are making law
• Leads to uncertainty in the law and it is unclear when it will be used, difficult for lawyers to advise clients

The Mischief Rule

The Mischief Rule:

• Gives more discretion to judges
• Originated from Heydon's case (1584)
• Means that the court has to consider three questions when making a decision:

1. What was the common law (i.e case law) before the Act?
2. What was the 'mischief' that common law hadn't fixed?
3. What remedy was Parliament trying to provide?

Below are some example cases of when the Mischief Rule has been used:

Smith v Hughes (1960):

• Six women were charged under the Street Offences Act 1959 - "for it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution"
• However, the women were not 'in a street', but on the balcony, attracting the attention of passersby 
• Under the literal rule, the prostitutes would have been found not guilty
• To avoid this 'mischief', the court found them guilty, as they interpreted the Act as being passed to clean up the streets from common prostitutes

Royal College of Nursing v DHSS (1981):

• The law under the Abortion Act 1967 only allowed a doctor (or "registered medical practitioner") to undertake an abortion procedure
• Advances in medicine now meant that nurses could perform part of the procedure instead
• However, they were not "registered medical practitioners"
• The court had to decide if this new procedure was 'lawful'
• The HoL found that it was lawful

Advantages of the Mischief Rule:

• Promotes the purpose of the law
• Fills any gaps in the law, usually producing a 'just' result
• Judges try to interpret the law as Parliament meant it to work
• The Law Commission prefers the Mischief Rule

Disadvantages of the Mischief Rule:

• There's a risk of judicial law-making
• Judges are filling the gap in the law with their own views and not all agree
• Can lead to uncertainty and make it difficult for lawyer to advise clients as to law
• Not as wide as the purposive approach as it is limited to looking at the gap in the old law
• Outdated, approach may be less appropriate now that the legislative process is different to Heydon's case (1584)

The Golden Rule

The Golden Rule:

• Start by looking at the Literal Rule, but to avoid an interpretation that would be 'absurd', the judge can substitute reasonable meaning in the light of the statute as a whole
• The Golden Rule can be applied through narrow or wider application

Below are some example cases of when the Golden Rule has been used:

Narrow application of the Golden Rule:

Adler v George (1964):

• The Official Secrets Act 1920 made it an offence to obstruct Her Majesty's Forces 'in the vicinity' of a prohibited place
• The defendants obstructed HM Forces in a prohibited area, but they argued that they were not guilty as the literal wording used in the Act did not apply to them, for 'in the vicinity' means 'outside but close to it' whereas they were in the prohibited area itself
• The court found them guilty to avoid an absurd result, stating it should be read as 'in or in the vicinity of'the prohibited place

Wider application of the Golden Rule:

Re Sigsworth (1935):

• The defendant murdered his mother. As she had no will, he stood to inherit all of her estate as her next of kin, under the Administration of Justice Act (1925)
• It was deemed by the judge that letting the defendant inherit his mother's money would be absurd, as Parliament could have never intended or forseen that a murderer could financially benefit from their crime
• The defendant did not inherit his mother's estate due to the use of the Golden rule

Advantages of the Golden Rule:

• Provides an escape route from absurd literal meanings
• Allows the judge to choose the most sensible meaning of words
• Can avoid a repugnant situation

Disadvantages of the Golden Rule:

• Limited in its use and used rarely
• Not possible to predict when the court will use it
• The rule provides no clear meaning of what is an absurd result

The Literal Rule

The Literal Rule:

• This rule gives all the words in a statute their ordinary and natural meaning. Under this rule, the literal meaning must be followed, even if the result is absurd.
• Lord Esher stated in R v City of London Court Judge (1892)

"If the words in an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislative has committed an absurdity"

Below are some example cases for when the literal rule has been used:

Whitley v Chappell (1868):

• The defendant was charged under a statute where it was an offence to impersonate 'any person entitled to vote'
• The defendant had pretended to be a person whose name was on the voter's list, but had died
• The defendant was found not guilty since technically speaking they did not break the law, as a dead person is not 'entitled to vote'

London & North Eastern Railway Co v Berriman (1946):

• A railway worker was killed doing maintenance work, oiling points along a railway line
• His widow sought compensation under the Fatal Accidents Act for the failure to provide a lookout for her husband
• Her claim failed because the Act stated that a lookout must be provided by the railway company for men working on or near the railway line 'for the purposes of relaying or repairing it

R v Basset (2008)

• In this case, a peeping Tom drilled a hole in a changing room wall to spy on men. He was prosecuted under the 2003 Sexual Offences Act. 
• He was found guilty but was then let off when he appealed because the Act was interpreted to mean only women's breasts. As he was looking at the torsos of men, this did not count as an offence

Advantages of the Literal Rule:

• It prevents non elected judges from making law (gives them a more restricted role)
• It makes the law more certain and easier to understand

Disadvantages of the Literal Rule:

• Not every Act is perfectly drafted
• Not every Act covers every situation
• Words may have more than one meaning and the Act may be unclear
• Can lead to an absurd, unfair or unjust decision

Statutory Interpretation

There are three organs of government:

• The Legislative (Parliament)
• The Executive (Cabinet)
• The Judges (Judicial)

Montesquieu's Theory of Chaos:

When one branch of the government interferes with the workings of another there will be chaos

• 75% of Supreme Court Cases now deal with Statutory Interpretation

There are four rules of interpretation:

• The Literal Rule
• The Golden Rule
• The Mischief Rule
• The Purposive Approach

These rules exist because of the ambiguity of law and the various ways it can be interpreted. This could be because the words used in the original legislation are no longer used or now have a different meaning to when the law was drafted, or because Parliament did not forsee circumstances that have arisen due to new developments or technology

The Legislative and Regulatory Reform Act 2006

• Under this Act, Parliament can make a Statutory Instrument to repeal a law if the Act imposes a burden
• A burden refers to:
• A financial cost
• An administrative inconvenience
• An obstacle to efficiency, productivity or profitability
• A sanction (e.g criminal) which affects lawful activity

Any minister making a Statutory Instrument under this Act MUST consult multiple people

Delegated Legislation Cases

R v Home Secretary, ex parte Fire Brigade's Union (1995)

• Changes made by the Home Secretary to the Criminal Injuries Compensation scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1998

Strickland v Hayes Borough Council (1896)

• A by-law prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was held to be unreasonable and so was ultra vires

Aylebury Mushroom Case (1972)

• The Minister of Labour had to consult any organisation representative of substantial numbers of employers engaging in the activity concerned
• His failure to consult the Mushroom Growers' Association (which represented about 88% of all mushroom growers) meant that his order establishing a training board was substantive ultra vires, therefore it was invalid

R v Secretary of State for Education and Employment ex parte National Union of Teachers (2000)

• A high court judge ruled that a statutory instrument setting conditions for appraisal and access to higher rates of pay for teachers was beyond the powers given under the Education Act 1996
• In addition, the procedure used was unfair as only four days had been allowed for consultation

Controlling Delegated Legislation

Delegated legislation results from transferring law-making powers from the legislature to the executive, therefore delegated legislation must be subject to effective checks and controls to ensure accountability and prevent misuse

Parliamentary Oversight:
This may seem to conflict with the need to save Parliament time, however, a responsible Parliament must monitor the use of powers it has delegated.
There are two main forms of oversight:

Affirmation Process:

• Most SIs have to be affirmed before coming into force
• Positive affirmation - only comes into force after positive affirmation from Parliament
• Negative affirmation - comes into force unless annulled by a negative resolution in Parliament
• Negative affirmation is more common, but reliance on this may mean that draft instruments receive inadequate policy scrutiny

Scrutiny Committee:

• Reviews technical merit of all draft Statutory Instruments
• Refers to Parliament those giving cause for concern (e.g unusual or unexpected use of the power)
• The committee acts as a filter, so that Parliament only needs to consider the small number of instruments referred
• Reports its findings to the House of Lords before the committee stage of the Bill

Judicial Review:

• The limited nature of delegated powers means that courts can annul delegated legislation where it is ultra vires (acting outside of its own power)
• Substantive ultra vires - when the subject matter is outside the scope of power (A-G v Fulham Corp [1921])
• Procedural ultra vires - subject matter intra vires, but serious failure to comply with a mandatory procedural requirement - e.g failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])

Joint Select Committee on Statutory Instruments:

• Evaluates all delegated legislation on a technical level
• It can flag up a problem on technical grounds where: the delegated legislation: tries to impose a tax, has an unintended effect, is ultra vires, makes unintended use of powers to make the delegated legislation or is badly drafted

Reasons, Advantages and Disadvantages of Delegated Legislation

Reasons/Advantages:

• To save Parliament time
• To deal with complex and technical issues (e.g health and safety regulations)
• Quicker and easier to amend and update than primary legislation
• Able to respond quickly to emergencies
• Allows for local variation to meet local need

Disadvantages:

• Undemocratic: giving power to individuals, takes the decisions away from the democratic process
• Risk of sub-delegation: legislation is made by people other than those who have been given the power to do so
• Lack of Publicity: Although published, they tend not to be under the same public scrutiny
• Large volume: Keeping track can be difficult, and delegated legislation outnumbers Acts of Parliament by five to one

Types of Delegated Legislation

Statutory Instruments:
Statutory instruments are rules, regulations and orders, issued by ministers and national in effect.
They can be introduced by one of two ways:

• Negative resolution - The most common procedure. There is no debate on the issue and the SI will become law unless it is rejected by Parliament within 40 days
• Affirmative resolution - Less common than the negative procedure, but offers more control, as the SI is debated and it needs Parliament's approval before being enacted
• The relevant Parent Act will specify whether negative or affirmative resolution is needed to take place before a Statutory Instrument can become law

Statutory instruments can be declared void if they conflict with EU legislation

Orders in Council:

• Introduced by the Queen or the Privy Council in times of emergency under the Emergency Powers Act (1920)
• Only used in times of emergency, when Parliament is not sitting (the Privy Council is a board of Senior Ministers past and present, that meet with the Monarch)

By-laws:

• Introduced by local authorities, or large bodies authorised to do so (such as the Rail Authority, Railtrack)
• Only involve matters of local concern
• Generally passed under the Local Government Act (1972)
• An example could be the ban on smoking on the London underground

Delegated Legislation

• Stemming from the Local Government Act (1972), delegated legislation is a law made by someone, other than Parliament, but with the authority of Parliament, which is given to them by a "Parent Act", known as an Enabling Act, which creates the framework of the law, allowing delegated legislation to make a more detailed law in the area.
• An example of an Enabling Act could be the Disability Discrimination Act (1995), which gave the Secretary of State powers to make regulations, both on the provision of services and discrimination in employment

Why do we use Delegated Legislation?

• Parliament does not have the time to debate every detail of every Act
• Parliament will not always have the necessary expertise to deal with a particular issue
• Delegated Legislation can be changed more easily, which allows quicker response to changing circumstances
• Parliament can not always respond quickly enough in emergencies

Making European Legislation

• Council, Commission and Parliament all have a role in making EU law
• All legislation starts with a proposal from the Commission
• Parliament has an increased role - but still limited
• Increasingly, the passing of EU legislation requires the approval of the European Parliament as well as the Council, through the ordinary legislative procedure (previously known as the co-decision process)
• Ordinary legislative procedure gives the same weight to the European Parliament and the Council of the European Union on a wide range of areas (for example: economic governance, immigration, energy, transport, the environment and consumer protection). The vast majority of European Laws are adopted jointly by the European Parliament and the Council.

Cases involving the Institutions of the EU (unfinished)

Re Tachographs: EC Commission v UK (1979)

• There was a regulation that required all heavy goods vehicles to be fitted with a tachograph machine to limit the number of hours a driver is allowed on the road without a break
• Regulations are primary legislation, meaning that they are directly applicable
• The case held as the UK didn't bring this law into effect and so breached the Treaty
• The ECJ forced the UK to implement the law

Institutions of the European Union

History of the EU

• Started as the European Coal and Steel community in 1951 with 6 members: Belgium, the Netherlands, Luxembourg, West Germany, France and Italy.
• It was later joined by the European Economic Community and the European Atomic Energy Community
• The European Union was formed in 1993. The UK joined in 1973

What is it made of?

The Commission:

• Main executive body
• Headed by Commissioners (28 of them) who are appointed by member states (subject to the approval of Parliament) for 5 years
• Commissioners are independent. Their role is to represent the interests of the EU (although in reality they represent their own governments)
• Proposes and drafts EU legislation. negotiates trade agreements and draws up annual budget
• Ensures that member states uphold EU law

The Council:

• Main decision making and legislative body
• Represents the interests of individual member states
• Most powerful of the institutions
• No permanent membership
• Adopts union legislation based on proposals from the Commission and after consulting the Parliament - puts forward finished ideas for laws

European Parliament:

• Has mainly consultative and advisory role
• Members elected in their own countries (MEPS) every five years
• Exercises a supervisory role over the Commission
• Can veto the appointment of the Commission and dismiss the whole Commission
• Reports on the Council three times a year

The Court of Justice of the European Union:

• Supervises the application of EU law
• Sits in Luxembourg - 28 judges appointed for six years
• Constitutional court, provides definitive interpretations of EU law
• Judicial and supervisory:

Judicial Role:

• Hears disputes against member states and cases against European institutions e.g: Re Tachographs: EC Commission v UK (1979)

Supervisory Role:

• Article 267 Treaty on the Functioning of the European Union - any court can refer a question on EU law to the ECJ
• Mandatory references - compulsory
• Discretionary references - optional
• The referral system ensures that the law is interpreted the same throughout the EU
• Reference MUST be made if the national court is the final appeal court

Bulmer v Bollinger guidelines:

• In deciding whether a referral is necessary, English courts use these guidelines. A referral is not necessary where:
• ECJ has previously ruled on the same point
• The point is reasonably clear and free from doubt (acte clair)
• The facts of the case had not yet been decided
• It would not be conclusive of the case

The European Court of First Instance:

• Established in 1988
• Its aim is to reduce the workload of the ECJ
• Limited jurisdiction
• Deals with mainly internal litigation

How does EU Law affect the UK?

• Because the EU can introduce legislation that automatically forms part of English law, and that creates individual rights which the English courts must enforce
• This raises the issue of sovereignty - which law, English or EU, will prevail where there is conflict? How will Brexit effect this?
• If the EU is to work, EU law must prevail over inconsistent national law (Costa v ENEL [1964])
• Member states have made a transfer of some of their rights to the EU (Costa)
• In cases of conflict, national courts must give priority to EU law and disapply inconsistent national law (Minister of Finance v Simmenthal [1978])
• The European Communities Act 1972 incorporates EU law into English law. It states that all UK legislation takes effect subject to EU law with the exception of the 1972 Act itself
• If the EU passes a law that opposes the national law of a member state, the member state must repeal their law

R v Secretary of State for Transport, ex parte Factortame (1990)

• New British legislation required that to register a ship in Britain, most of the ship's owners were to be of British nationality. Subsequently, a group of fishermen from Spain requested a judicial review of this law, asserting that it breached EC laws. The Merchant Shipping Act 1894 allowed them to fish in the UK and sell their catch in Spain. The Merchant Shipping Act 1988 is what to prevent this.
• The Act was in breach of the Treaty of Rome 1972, as it was discriminating on the basis of nationality.
• The case held and confirmed the UK's subordination to EU law

Cases for Directives, Direct Effect and Direct Applicability

Van Gend en Loos (1963)

• A postal and transportation company who imported urea formaldehyde from West Germany to the Netherlands. The authorities charged a tariff on the import
• Van Gend en Loos objected, stating that it was a clear violation of Article 12 of the Treaty of Rome (now replaced by Article 30 TFEU) which stated:

"Member states shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which already apply in their trade with each other"

• The Tarief Commissie argued that the treaty doesn't apply to corporate entities
• The case held because Article 12 was capable of creating personal rights for Van Gend en Loos, even though this was not expressly stated

Macarthys Ltd v Smith (1979)

• Mrs Wendy Smith worked for Macarthys Ltd in their factory. She was paid £50 a week when a former male employee had been paid £60 a week for the same job
• The claimant said that this was unlawful according to either the Equal Pay Act 1970 or the Treaty of the European Community Article 119
• Macarthys argued that she had no claim because the UK's Equal Pay Act 1970 did not allow comparisons with former colleagues.
• Smith argued that, if this was true under UK law, then European Community law did allow for such a comparison and it would override the UK statute as it is from a treaty, making it directly applicable
• The case held because the treaty does override UK law, so Mrs Smith was right in her claim

Marshall v Southampton Area Health Authority (1986)

• Helen Marshall, a senior dietitian, was dismissed from her job working for an Area Health Authority, despite expressing a willingness to continue in employment until the age of 65. She was dismissed solely because she had 'passed the retirement age' - The AHA's policy was to make women compulsorily retire at 60, but men at 65
• She claimed that her dismissal violated the Equal Treatment Directive 1976. Section 27 and 28 of the Social Security Act 1975 provided that state pensions were to be granted to men at age 65 and women at 60, though did not impose any obligations to retire at that age
• The case held, as she suffered financial loss and the satisfaction from working as a result of the government failing to implement the directive. She was able to sue the government by means of vertical direct effect

Van Duyn v the Home Office (1975)

• Van Duyn was a Dutch national who was associated with Scientology. She was refused entry to the UK because of this association
• The case held because the freedom of movement for workers between Member States can only be restricted due to public policy, public security, public health or overriding reasons of public interest (as created by the Court of Justice). Van Duyn could have been refused entry on the basis of one of the aforementioned restrictions (if applicable), but as she was denied entry on the basis of religion, it was unlawful to prevent her entry
• This case proved that a directive can have vertical direct effect if unimplemented or implemented incorrectly in order to prevent negative effects on individuals

Sources of Union law

The Treaties:

• Primary sources of Union law
• Treaties establish Union's aims, institutions and legislative procedures
• Treaties can be seen as the Union's constitution
• Treaties can have both horizontal and vertical direct effect provided that provision is clear , precise and unconditional (aka the treaty has been breached)
• (Van Gend en Loos [1963]) also look at Macarthys Ltd v Smith (1979)

Regulations:

• A regulation is a binding, primary piece of legislation
• Regulations are directly applicable
• Article 288 of TFEU allows the EU the right to create regulations
• Regulations are binding in their entirety on each member state
• They can have both horizontal and vertical direct effect provided that the 'Van Gend' requirements are met (Leonosio v Italy [1973])

Directives:

• Not directly applicable
• Less precisely worded than regulations
• Is binding, but leaves form and method of implementation to each member state
• Can have vertical direct effect (unless the Francovich principles apply, then can have horizontal direct effect)

Decisions:

• Not directly applicable
• A decision may be addressed to a member state, a company or a person. For example: granting export licenses to companies outside of the EU
• Can have vertical direct effect only, and only when addressed to a member state

Direct Applicability and Direct Effect

Direct applicability:

•  A provision of EU law is directly applicable when it immediately becomes part of the law of each member state.
• National Parliaments cannot reject it, nor do they have to do anything to incorporate it. It is applicable in the exact way it was drafted by the E.U (automatic)
• Direct applicability applies to primary legislation (treaties and regulations)

Direct effect:

•  If something is directly effective, it still applies to E.U countries. However, they have discretion in creating the most appropriate laws in their own legal systems to bring the relevant E.U law into effect.
• A provision of E.U law has direct effect when it creates individual rights that are enforceable in national courts. There are two main forms of direct effect: horizontal and vertical
• Direct effect applies to secondary legislation (directives)

Horizontal direct effect:

• If the EU passes a directive (a secondary piece of legislation), it usually involves creating a 'right' for people e.g non-discrimination
• If the government fails to adopt this directive, they can be sued. This becomes difficult when it comes to those working for a private company and not the state as the government is not responsible for those working for a private company
• Anyone who doesn't get the benefit of a 'right' given under a directive cannot really sue the government if they work for a private company
• The government can only be sued through horizontal direct effect if the accuser can show three things: the proof that the directive did confer a 'right', that the directive was clear about said right and they have suffered financial loss as a direct result. These are known as the Francovich Principles
• Horizontal direct effect means that a person can use EU legislation against an individual - NOT THE STATE

Vertical direct effect:

• Creates individual rights against the government
• When a person is denied a right laid out by a directive, they can sue the government (if the government is responsible)
• A good example of the use of vertical direct effect is the Foster v British Gas case
• Basically, if the government has failed to adopt a directive into national law and one has suffered a loss of the right established by the directive , they can sue the government

Indirect effect:

• Indirect effect is where national courts have to interpret national law in line with an unimplemented or badly implemented directive of the European Union. Indirect effect comes from the failure of a member state to implement a directive, but direct effect cannot apply because the party against whom the directive is sought to be enforced is a private entity (or fails to meet the conditions that would give it direct effect)
• "National courts are under a duty to interpret national law consistently with EU Law, so far as it is possible to do so, whether or not the Directive has direct effect" - Article 4(3) TEU

E.U Law

There are two main types of E.U law: primary and secondary.

• Primary law mainly includes the Treaties; the most important of which was originally the Treaty of Rome itself
• Secondary law is legislation passed by the institutions of the Union under Article 288 (Treaty on the functioning of the European Union)
• This secondary legislation consists of 3 types: regulations, directives and decisions
• Case law of the CJEU can also be considered a source of law

Making an Act of Parliament

An Act is known by many different names, including primary legislation, a parent Act or a Statute
There are many stages involved in making an Act of Parliament:

• First, the Act starts out as part of a Manifesto, or from sources like the media, pressure groups and public opinion
• It then becomes a rough set of ideas written on a piece of green paper. This 'Green Paper' is the first draft of the Act
• Once the Green Paper has been discussed and debated, the ideas are refined and written on a piece of white paper. This 'White Paper' is the next step taken before the Act can be passed
• Once the Bill has been written in its entirety, it moves through the Houses of Parliament

There is a lengthy process getting the Bill/proposed Act through the Houses of Parliament and it goes as follows:

1. The Bill is finished
2. First Reading - the title of the Bill is read to the House of Commons
3. Second Reading - the proposals are fully debated - the MPs vote whether to proceed
4. Committee Stage - a detailed examination of the Bill - amendments can be made
5. Report Stage - the Committee reports back to the House and a vote is taken after experts in the subject of the Act are consulted
6. Third Reading - the Bill is represented to the House and a vote is taken
7. The House of Lords (or the House of Commons if the Bill started in the Lords) - the Bill goes through a similar process in the Lords. Any amendments must go back to the Commons for consideration. The House of Lords checks Bills and improves them. It can delay some laws for up to a year but they CANNOT block legislation
8. Royal Assent (confirmation from the Queen) - The Parliament Acts of 1911 and 1949 allow Royal Assent to be given without the approval of the Lords. Examples of when this happened are:

• The War Crimes Act 1991
• European Parliamentary Elections Act 1999
• Sexual Offences (Amendment) Act 2000
• The Hunting Act 2004

In theory the Queen must give her consent to all legislation before it can become law:

• In practice consent is never refused
• The Bill then becomes an Act of Parliament and the law

Acts of Parliament contain the following statement, and now because of the HRA 1998, must state whether they are compatible or incompatible with human rights:

"Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows."

All statutes begin as a Bill. There are 3 different types of Bill:

• Public Bills - Bills that affect everyone
• Private Members' Bill - brought forward by a private member of Parliament e.g - The Marriage Act
• Private Bills - only affect a local area e.g The Whitehaven Harbour Bill

An Introduction to Parliament

Parliament is made up of the House of Commons, the House of Lords and the Monarch.

Parliament has the power to:

• Make laws
• Raise taxes

In Britain, Parliament has complete power. In law there are no limits on what it can do.

In reality, there are lots of limits, such as EU membership and the Effect of the HRA 1998

The House of Commons:

• The House of Commons has about 650 members of Parliament made up of all the various political parties and the Government of the day
• The House of Commons is the most powerful part of Parliament. It can force laws through even though the Lords may disagree

The House of Lords:

House of Lords Act 1999

• The House of Lords is made up of hereditary peers who inherited their titles - 92 of them (soon to lose their right to sit in the Lords), life peers and some bishops and judges
• There is an argument over who should sit in the House of Lords and whether some or all Lords should be elected

The Monarch:

• Queen Elizabeth II is head of state
• The Queen is a figurehead - her powers are limited by laws and customs of Britain

The Queen is the head of:

• The armed forces 
• The Church of England
• The legal system

The country is governed in her name