Legal Systems and Methods DOC-20181117-WA0000
Legal Systems and Methods DOC-20181117-WA0000
method
Hazel Genn
This subject guide was prepared for the University of London International
Programmes by:
The author is grateful to Professor Gary Slapper for his helpful comments on an earlier
draft of the guide. Professor Slapper’s comments have been incorporated.
uu Mary McLaughlin LLM (QUB), MA (QUB), LLB (UU), PGCE (OU), PGCHET (QUB),
BA (Reading), DipTrans IoLET, FHEA, Teaching Fellow, University of London.
This is one of a series of subject guides published by the University. We regret that
owing to pressure of work the author is unable to enter into any correspondence
relating to, or arising from, the guide. If you have any comments on this subject guide,
favourable or unfavourable, please use the form at the back of this guide.
This module was previously called Common law reasoning and institutions.
Figure 2.1 contains public sector information licensed under the Open Government
Licence v3.0.
www.londoninternational.ac.uk
The University of London asserts copyright over all material in this subject guide
except where otherwise indicated. All rights reserved. No part of this work may
be reproduced in any form, or by any means, without permission in writing from
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Legal system and method page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Introduction to Legal system and method . . . . . . . . . . . . . . . . . . . . . . 5
Purpose and content of the subject guide . . . . . . . . . . . . . . . . . . . . . . 5
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Textbook and other reading material . . . . . . . . . . . . . . . . . . . . . . . . 6
Relevant websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Essential information for the new law student . . . . . . . . . . . . . . . . . . . . 7
Citation of legal cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Law Reports series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Glossary of key judicial offices in the English legal system . . . . . . . . . . . . . 11
4 Statutory interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 67
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.2 Why is the interpretation of statutes so difficult? . . . . . . . . . . . . . . 69
4.3 Why does interpretation matter so much? . . . . . . . . . . . . . . . . . 69
4.4 The basic approaches to interpretation . . . . . . . . . . . . . . . . . . . 70
4.5 Aids to interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
4.6 European influence on statutory interpretation . . . . . . . . . . . . . . . 75
4.7 The impact of the Human Rights Act 1998 on statutory interpretation . . . 77
4.8 Human rights: interpretation or legislation? . . . . . . . . . . . . . . . . 81
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5 The judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.2 Independence and constitutional change . . . . . . . . . . . . . . . . . . 85
5.3 Changes introduced by the Constitutional Reform Act 2005 . . . . . . . . . 85
5.4 The judicial hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.5 Measures supporting the independence of the judiciary . . . . . . . . . . 88
5.6 Personal independence . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.7 The legitimacy and authority of the judiciary . . . . . . . . . . . . . . . . 92
5.8 Judicial appointments prior to the Constitutional Reform Act 2005 . . . . . 94
5.9 Judicial selection process after the Constitutional Reform Act 2005 . . . . . 97
5.10 Increasing judicial diversity . . . . . . . . . . . . . . . . . . . . . . . . 100
5.11 Judicial power and relations with the executive and legislature . . . . . . 107
5.12 Judicial power and the protection of human rights . . . . . . . . . . . . 109
5.13 Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Module descriptor
MODULE PURPOSE AND OVERVIEW
Legal system and method is a compulsory part of the LLB and CertHE Common Law
and students must select it on first registration. The module is an introduction to the
English legal system and describes the distinctiveness of the common law approach as
a legal methodology. The module is vital in initiating students into the process of legal
research and the understanding of legal reasoning.
MODULE AIM
To achieve an overview of the central institutions and processes of the English Legal
System and to introduce students to techniques of legal interpretation and legal
research.
1. Understand the structure and operation of the central institutions and processes
of the English legal system;
2. Explain the purpose and basic structure of the civil justice system and the place
and value of alternative methods of dispute resolution;
3. Explain the purpose and basic structure of the criminal justice system and the
tension between the objectives of crime control and protection of civil liberties
and human rights;
4. Describe the role and constitutional position of judges and in particular the Law
Lords and the Supreme Court;
6. Understand the essential ingredients of the rule of law, and the importance to
fairness and justice in social and legal systems.
8. Identify key issues in a case and summarise points clearly and accurately;
9. Conduct basic legal research tasks using primary and secondary sources;
10. Respond coherently to straightforward questions about the law using legal
referencing appropriately;
ASSESSMENT
There are self-assessment questions at the end of each section of the Subject Guide
designed to test knowledge and understanding. There are additional interactive online
activities in the form of multiple choice questions and other on-line tasks, which
test skills outcomes 7-13. These activities prepare students to demonstrate learning
outcomes that are formally tested in the summative assessment.
2. A three hour and fifteen minutes unseen examination paper divided into three
parts:
Permitted materials
None. The statute relating to Part C is provided as part of the examination paper.
Introduction
Contents
Introduction to Legal system and method . . . . . . . . . . . . . . . . 5
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Relevant websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Notes
Legal system and method Introduction page 5
Module aim
The aim of the module is to achieve an overview of the central institutions and
processes of the English legal system and to introduce students to techniques of legal
reasoning and interpretation.
Learning outcomes
On successful completion of the module you should be able to:
1.1 Understand the structure and operation of the central institutions and processes
of the English legal system and to have a basic facility with techniques of legal
interpretation
1.4 Describe the role of judges; in particular the Law Lords and the Supreme Court
1.6 Understand the role of due Process and the importance of Article 6 (ECHR) in Civil
and Criminal Justice
Assessment
Formative assessment is conducted through interactive online activities. Summative
assessment is through a three-hour unseen examination.
Essential reading
¢¢ Holland, J. and J. Webb Learning legal rules. (Oxford: Oxford University Press,
2016) ninth edition [ISBN 9780198728436].
Further reading
Introductory texts which give a concise overview of this subject.
¢¢ Rivlin, G. First steps in the law. (Oxford: Oxford University Press, 2015) seventh
edition [ISBN 9780198735892].
¢¢ Slapper, G. How the law works. (Oxford: Routledge, 2016) fourth edition
[ISBN 9781138914971].
¢¢ Wacks, R. Law: a very short introduction. (Oxford: Oxford University Press, 2015)
second edition [ISBN 9780198745624].
¢¢ Cownie, F., A. Bradney and M. Burton English legal system in context. (Oxford:
Oxford University Press, 2013) sixth edition [ISBN 9780199656561].
¢¢ Slapper, G. and D. Kelly The English legal system 2016–2017. (Oxford: Routledge,
2016) [ISBN 9780198758808].
¢¢ Slorach, S., J. Embley, P. Goodchild and C. Shephard Legal systems and skills.
(Oxford: Oxford University Press, 2015) second edition [ISBN 9780198727453].
¢¢ Stychin, C.F. and L. Mulcahy Legal methods and systems: text and materials.
(London: Sweet & Maxwell, 2010) fourth edition [ISBN 9780414041837].
Relevant websites
Website of the judiciary of England and Wales
This is a very useful site for accessing recent speeches by the senior judiciary, for
information about courts and the judiciary and for news about important changes to
procedure.
www.judiciary.gov.uk
Legal system and method Introduction page 7
Website of the Ministry of Justice
Useful for research publications, for information about government policy on the
courts and judiciary.
www.justice.gov.uk
Useful for accessing legislation, reports of committees, and Hansard – the official
record of debates in Parliament.
www.parliament.uk
Useful for developments on legal aid and access to justice. Also may have information
about the judiciary and important new cases.
www.lawsociety.org.uk
Bar Council
Useful for developments on legal aid and access to justice, judiciary and leading cases.
www.barcouncil.org.uk
This section introduces you to some important information that will help you to
understand how legal cases and statutes are referred to or ‘cited’ in legal documents
and texts. This is information that you can keep coming back to as you progress with
your studies and find different styles of referencing cases.
http://ox.libguides.com/c.php?g=422832&p=2887383 or
https://ilrb.cf.ac.uk/citingreferences/oscola/tutorial/index.html
Citation is the accepted way of referring to the ‘primary’ sources of law, cases,
legislation and also books and journal articles. It follows a standard format which
makes it possible for anyone to find the cited item. This is essential information for
being able to locate relevant legal material and for being able accurately to refer to
legal cases or cite them in writing or in legal argument.
page 8 University of London International Programmes
Civil cases
Davis v Johnson [1979] 2 WLR 553 (pronounced Davis ‘and’ Johnson, not Davis ‘v’ Johnson
or Davis ‘versus’ Johnson).
‘Davis’ is the name of the person bringing the claim (the claimant). ‘Johnson’ is the
name of the person defending the claim (the defendant). [1979] is the year in which
the case was printed in the law reports. ‘2’ is the volume number of the reports in
which the case appears. ‘WLR’ stands for Weekly Law Reports, which is the law report
series containing all formally reported legal cases. ‘553’ is the page number of volume
2 of the Weekly Law Reports in 1979 where you will find the reported case of Davis v
Johnson.
Criminal cases
Criminal case citations usually take one of the following three forms:
R v Smith [1959] 2 QB 35 (R stands for Regina or Rex) (i.e. ‘the Crown and/against Smith’).
AG v Punch [2002] UKHL 50, [2003] 1 All ER 289, [2003] 1 AC 1046, [2003] 2 WLR 49
(‘Attorney General and/against Punch’).
DPP v Camplin [1978] AC 705, [1978] UKHL 2 (‘Director of Public Prosecutions and/against
Camplin’)
Other formulations
Public family case: Re B (Refusal to Grant Interim Care Order) [2012] EWCA Civ 1275.
Judicial review: R v Lord Chancellor ex parte John Witham [1997] EWHC Admin 237, [1998]
QB 575.
Since the growth of electronic sources unreported transcripts are also available on all
the major legal databases. Since 2002 ‘neutral citations’ have been used. These
citations give each case an individual number so that it can be identified. The neutral
citations comprise the year, the court abbreviation (for example ‘EWCA Civ’) and then
the case number. These look like normal law report citations but they are not. If all
that you have is a neutral citation you will need to access the case through an
electronic database in order to find the full law report citation. You can do this using
Westlaw or Lexis Library, accessible through the VLE, although one of the quickest ways
to access a case is to use BAILII, which is a free site on the internet.
R v James
The basic formulation is to give the year of the case, the court in which it was decided
and the case number. EW stands for England and Wales, UK for United Kingdom.
[2005] EWCA Civ 101 (this is the 101st case of 2005 in the Court of Appeal Civil Division).
[2006] EWHC 101 (Admin) (101st case of 2006 in the High Court Administrative
Division).
[2003] UKHL 5 (5th case of 2003 in the House of Lords (now the Supreme Court)).
Privy Council cases: Kelly and others v Fraser [2012] UKPC 25.
AC Appeal Cases
Ch Law Reports, Chancery Division
QB Law Reports, Queen’s Bench Division
KB Law Reports, King’s Bench Division
Fam Law Reports, Family Division
P Law Reports, Probate Division
Other commercial series
All ER All England Reports
Cr App R Criminal Appeal Reports
Cr App R (S) Criminal Appeal Reports Sentencing
LLoyd’s LR Lloyd’s Law Reports
WLR Weekly Law Reports
EHRR European Human Rights Reports
Statutes
To cite an Act of Parliament use its short title and date. For example, Human Rights
Act 1998. To refer to a particular section or sections in the Act, use s or ss (section or
sections), Pt (Part) or Sch and para (Schedule and paragraph within a schedule).
Abbreviation Subsection
for section
Section number
President of the United Kingdom Supreme Court (PSC) – Head of the final court of
appeal in the United Kingdom.
Lord Chief Justice (CJ) – Head of the judiciary and President of the Courts of England
and Wales. Head of the Criminal Division of the Court of Appeal. Responsible for
training, guidance and deployment of judges. Represents the views of judiciary to
Ministers.
Master of the Rolls (MR) – Head of the Civil Division of the Court of Appeal and Head of
Civil Justice.
Heads of Divisions
The Chancellor – Head of the Chancery Division of the High Court.
President of the Queen’s Bench Division (PQBD) – Head of Queen’s Bench Division of
the High Court.
President of the Family Division and Head of Family Justice – Head of the Family
Division of the High Court.
Lord Chancellor – Prior to the Constitutional Reform Act 2005 the Lord Chancellor was
both the head of the judiciary and a member of the government. Since 2005 the Lord
Chancellor is the Minister for Justice in the Ministry of Justice. He has no judicial role
and his previous powers have been transferred to the Lord Chief Justice who is now the
head of the judiciary. The Lord Chancellor retains power over judicial appointments,
although the selection of judges is made by the independent Judicial Appointments
Commission.
The Attorney General (AG) – This is a political appointment. The Attorney General is
the legal adviser to the government. He appears in court for the Crown in important
cases. The AG has power to refer points of law to the Court of Appeal in relation to
acquittals in criminal cases and against unduly lenient sentences.
Self-assessment questions
1. What does ‘R’ stand for in the case of R v Smith?
3. What does the Master of the Rolls do? In which court does he sit?
5. What change did the Constitutional Reform Act 2005 make to the head of the
judiciary of England and Wales?
page 12 University of London International Programmes
Notes
1 Introduction to law and the legal system
Contents
1.1 What is law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
uu describe the characteristics of law
uu outline the broad social purposes of law
uu identify sources of law and law-making processes
uu distinguish different types of legal system
uu outline the fundamental principles of the constitution
uu explain the essential requirements of the rule of law
uu distinguish between procedural and substantive law and adversarial and
inquisitorial procedures.
Legal system and method 1 Introduction to law and the legal system page 15
Essential reading
¢¢ Wacks, Chapter 1 ‘Law’s roots’ (in the Legal system and method study pack).
Further reading
¢¢ Rivlin, Chapter 2 ‘The law and its importance’.
You might think this is an easy question to answer, but although our lives and
behaviour are regulated by a complicated system of rules, norms, and conventions,
only some of these are defined as ‘law’.
Our first introduction to rules comes from our parents – don’t talk with your mouth
full, don’t run up and down the stairs, don’t shout; and then at school – don’t speak in
class, don’t eat in class, do your homework on time and so on. Other rules are ‘social
norms’ or conventions – turn taking in conversation, covering your mouth when you
cough.
But the rules that we are concerned with in the study of law are those that can
be enforced by the state. Some rules have the force of law while other rules or
conventions will simply lead to social disapproval. If you break the rule ‘don’t take
someone else’s property’ you may be liable to pay a penalty that will be imposed
by the state. If you drive carelessly and injure someone you may be required to pay
them compensation. On the other hand, if you push to the front of a queue in the
supermarket in England you are likely to be subject to serious social disapproval, but
no formal penalty will be applied. There are significant differences between societies
when it comes to which kinds of behaviour will lead to disapproval and which kinds of
behaviour will lead to a formal penalty being imposed by the state. For example, while
adultery is disapproved of in England and Wales it will not lead to formal punishment
although it may be grounds for divorce. By contrast, in Islamic law adultery will lead to
a criminal penalty being imposed.
There is considerable philosophical debate about the nature of law and why some
rules are enforced by the state and others are not, but for present purposes a practical
answer to the question ‘what is law’ could be given as ‘the rules by which societies
agree to live, which are enforceable by the coercive power of the state’.
Essential reading
¢¢ Partington, Chapter 2 ‘Law and society: the purposes and functions of law’ (in
the Legal system and method study pack).
Law performs critical social functions. It has a broad important role in helping to
maintain order in society. When we talk of ‘society’ we are referring to humans living
together in relatively peaceful harmony and law is central to the notion of ‘social
order’. Partington argues that the broad or ‘macro’ functions of law are to maintain
public, political, social, economic, international and moral order (Partington, pp.8–18).
So, for example, laws relating to ownership of property, or laws relating to business
transactions support economic activity by ensuring that commercial transactions are
carried out in an orderly way and that rights and duties are respected and enforceable.
Law in this context can also protect weaker parties involved in commercial
transactions to ensure that bargains are fair.
Partington goes on to argue that the ‘micro’ functions of law are to achieve more
specific social objectives. So, for example, one of the micro functions of law is to define
the limits of acceptable behaviour by specifying action that is so morally reprehensible
that it will attract a criminal penalty – like murder or theft of property. This can be
contrasted with behaviour that is deemed morally wrong but not criminally wrong,
page 16 University of London International Programmes
such as careless driving that causes damage, and which will attract a civil penalty
rather than a criminal penalty. Another important micro function of law is to ensure
that those in public office do not abuse their power.
Partington points out that one of the problems of the many functions of law is that
sometimes functions can be in conflict. So, for example, the objective of preserving social
order may conflict with the protection of civil liberties or the right to expression. This
conflict occurs when citizens want to take to the streets to demonstrate to express their
dissatisfaction about some issue and the police are concerned that such a demonstration
might lead to violent disorder. Which objective should prevail? Freedom of expression or
social order? Similarly, when governments are facing terrorist threats they must balance
the desire to protect society through enlarging the power of the police and courts
against the danger to civil liberties and infringement of human rights.
Essential reading
¢¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Further reading
¢¢ Partington, Chapter 3 ‘Law-making: authority and process’.
In studying the operation of the legal system, we need to be able to recognise which
rules are regarded as ‘law’ and how important any particular rule is in relation to other
rules. In the English legal tradition the source of a rule is relevant in determining both
its significance and whether it might take precedence over a rule that comes from
another source. In the English common law system, there are four principal sources of
law:
2. Law decided in the courts – referred to as ‘common law’ or ‘case law’. Decisions
of judges in particular cases applied by other judges in later cases through the
process of precedent (combined common law and equity).
3. European Union law – referred to as ‘EU law’ comprising law emanating from the
European Commission, Council of Ministers and Court of Justice of the European
Union.
As we will see later in the chapter, the body of court decisions that comprises the
English common law has developed over many years, dating back to its origins in the
12th century. In the 18th century, a famous judge and legal commentator, Sir William
Blackstone, explained the source of English common law as follows:
The Common Law is to be found in the records of our several courts of justice in books
of reports and judicial decisions, and in treatises of learned sages of the profession,
prescribed and handed down to us from the times of ancient antiquity. They are the laws
which gave rise and origin to that collection of maxims and customs which is now known
by the name of common law.
We will look at the development of English common law later in the chapter. In the
meantime, it is important to note that the term ‘common law’ may also be used in
two other contexts. This can be confusing for students new to law, but gradually the
meaning in different contexts will become very familiar and cause no difficulty.
As well as the contrast between common law and statute law, the term ‘common
law’ is also used to distinguish law emanating from common law courts from law
emanating from courts of ‘equity’ (this is discussed in detail later in this chapter).
The third context in which the term common law is used is to distinguish ‘common
law’ legal systems or jurisdictions such as England and Wales, Canada, USA and Australia
from ‘civil law’ legal systems or jurisdictions such as Germany or France where the law is
almost entirely ‘codified’ (i.e. contained within written codes). The differences between
common law and civil law jurisdictions are discussed later in this chapter.
One of the EU’s main goals is to promote human rights. Since the Treaty of Lisbon
in 2009, the EU’s Charter of Fundamental Rights has placed all these rights in a
single document. The EU’s institutions are legally bound to uphold them, as are EU
governments whenever they apply EU law.
Since the UK joined the EU in 1973, law emanating from the European Parliament,
European Council and European Commission governs certain activities and practices
in the UK. Since the enactment of the European Communities Act 1972, European Law
takes precedence over domestic law. If there is a conflict between English domestic
law and European law, for example in the field of equal pay, the English courts must
apply European law. Matters concerning the interpretation and implementation of
European law are dealt with by the Court of Justice of the European Union (CJEU) which
sits in Luxembourg (see Chapter 2). Section 2(4) of the European Communities Act 1972
provides that English law is to be interpreted and have effect subject to the principle
that European law takes precedence over all sources of domestic law.
The ECHR was a reaction to the experience of the horrors of the Second World War
and reflected the hope and belief that if nations joined together to agree to protect
human rights, the likelihood of a recurrence would be reduced. The ECHR provides for
individuals to bring proceedings in the European Court of Human Rights in Strasbourg,
France, if they believe that a government is in breach of its obligations under the ECHR.
Certain fundamental rights and freedoms have been protected in English common
law since the signing of the Magna Carta (‘Great Charter’) by King John of England in
Legal system and method 1 Introduction to law and the legal system page 19
1215. The Magna Carta sets out many rights that are now referred to as ‘human rights’
or fundamental principles of good government. For example, it established principles
of due process and equality before the law. It contained provisions forbidding bribery
and official misconduct. Despite the provisions of Magna Carta and other rights
protected under English common law, since the passing of the Human Rights Act
1998 a wide range of fundamental rights and freedoms are now positively protected
by the Act and the jurisprudence of the European Court of Human Rights has had a
significant impact on English substantive law and on legal process. The protection
of human rights is now regarded as fundamental to the rule of law (discussed later
in this chapter). For this reason we will deal with the ECHR in some detail here and
throughout this subject guide we will refer to the influence of human rights legislation
on the institutions and processes of the English legal system, as well as on some areas
of substantive law.
uu right to a fair trial (Article 6) (‘everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by
law’)
The ECHR rights incorporated into English law under the Human Rights Act 1998 appear
as a Schedule to the Act. See www.legislation.gov.uk/ukpga/1998/42/schedule/1
‘Derogation’
These fundamental rights and freedoms are not all seen in the same way. Some are
absolute and inalienable and cannot be interfered with by the state. Others are
merely contingent and are subject to ‘derogation’. That means that a signatory
state can opt out of them in particular circumstances. The absolute rights are
those provided for in Articles 2, 3, 4, 7 and 14. All the others are subject to potential
limitations.
page 20 University of London International Programmes
Margin of appreciation
Essential reading
¢¢ The Open Society Brief 2012
www.opensocietyfoundations.org/sites/default/files/echr-reform-margin-of-
appreciation.pdf
One of the difficulties in ensuring compliance with the ECHR by the 47 member states
of the Council of Europe is the diverse cultural and legal traditions of the various states.
To accommodate this, the European Court of Human Rights (ECtHR) has developed
the doctrine of a ‘margin of appreciation’ when considering whether a member state
has breached the Convention. It means that a member state is permitted a degree of
discretion, subject to Strasbourg supervision, when it takes legislative, administrative
or judicial action in the area of a Convention right. The doctrine allows the Court
to take into account the fact that the Convention will be interpreted differently in
different member states, given their divergent legal and cultural traditions. The
margin of appreciation gives the ECtHR the necessary flexibility to balance the
sovereignty of member states with their obligations under the Convention. In some
circumstances – for example national emergency or security issues – member states
may be permitted a ‘wide’ margin of appreciation by the ECtHR. In other cases, for
example in relation to discrimination, the court will permit only the narrowest margin
of appreciation.
A case dealing with the margin of appreciation and one that received much publicity
is the case of Lautsi v Italy (Application no. 30814/06) (http://eclj.org/resources/lautsi/)
heard by the Grand Chamber of the ECtHR in 2011. The applicant (an Italian citizen
of Finnish origin) brought a complaint against Italy on behalf of her two children.
She alleged that the display of the crucifix in classrooms of public schools interfered
with her children’s freedom of belief as well as their right to education and teaching
consistent with her philosophical convictions under Article 9 (protection of freedom
of religion and belief). The ECtHR ruled that the presence of crucifixes in Italian public
schools does not infringe states’ obligations in relation to Article 9. Highlighting
the importance of the margin of appreciation principles, the Court confirmed that
religious matters fall within the sovereignty of member states in order to respect the
culture and traditions of each particular country.
Proportionality
Essential reading
¢¢ R v A [2001] UKHL 25, [2001] 3 All ER 1 (www.bailii.org/uk/cases/UKHL/2001/25.html).
¢¢ Lord Justice Laws ‘The common law and Europe’ Hamlyn Lectures 2013
www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/
… every intrusion by the State upon the freedom of the individual stands in need of
justification. Accordingly, any interference which is greater than required for the State’s
Legal system and method 1 Introduction to law and the legal system page 21
proper purpose cannot be justified. This is at the core of proportionality; it articulates the
discipline which proportionality imposes on decision makers.
ii. the measures designed to meet the legislative objective are rationally connected
to it, and
iii. the means used to impair the right or freedom are no more than is necessary to
accomplish the objective.
Summary
uu Laws are enforceable by the state while norms and social conventions are enforced
informally.
uu Law has both broad ‘macro’ functions and more specific ‘micro’ functions.
uu The main sources of law are statutes (primary and secondary legislation), common
law, European Union law and the European Convention on Human Rights.
uu The Human Rights Act 1998 incorporates the ECHR into English law.
uu The rights and freedoms protected by the Human Rights Act 1998 include those
that are absolute and those from which states may derogate if necessary.
Self-assessment questions
1. What are the different functions of law?
2. How does Partington distinguish between ‘macro’ and ‘micro’ functions of law?
Do you think these cover all of the functions we can identify for law?
4. Think of some important rules of behaviour that are not ‘laws’ as we have
defined them. How are they enforced? How important do you think those non-
legal rules are to social order?
7. When was the ECHR concluded, and what was its objective?
8. What is the difference between fundamental rights and absolute rights in the
ECHR?
Further reading
¢¢ Slorach, Chapter 2 ‘Sources of law in England & Wales’.
The legal system comprises the law – produced by law-making bodies (legislatures
and judiciary) – and the institutions, processes and personnel that contribute to
the operation and enforcement of those laws. So for example we can say that the
English legal system comprises: legislation and common law; courts; judiciary; legal
professionals; police; prosecutors; juries; and mechanisms for providing access to
justice. In effect, the legal ‘system’ describes the law and the machinery provided for
adjudication and implementation.
uu codified system of law (e.g. civil code, codes covering corporate law, administrative
law, tax law)
uu little scope for judge-made law, although judges generally follow precedent
uu constitutional courts that can nullify laws and the decisions of which are binding.
Other countries have a ‘mixed system’ that include some elements of the common law
as well as some elements of civil law – for example parts of Africa, India and parts of
the Far East.
uu judicial decisions are binding and decisions of the highest court can only be
overturned by the same court or through legislation
William, as King of England, laid the foundations of the legal system. He understood
that in order to exercise real power over citizens he needed a central system of justice
over which the king had control and had laws that would be obeyed. He did this by
creating what was called the Curia Regis – King’s Court. It was a court of law but also a
royal household comprising the King and his advisers who were a mixture of powerful
militarised landowners and learned clerics (religious men in holy orders). The King and
his court travelled around the country and citizens would bring their grievances to
be considered by the King and his advisers after which judgment would be given. This
activity was the beginning of the common law system.
Probably the most important contributor to the development of the common law
was Henry II who came to the throne in 1154 after a long period of disruption and
civil war. Henry took the throne wanting to regain stability, reform land law and
deal with rampant crime. He focused on creating a single system of justice for the
entire country that would be under the control of the king. At this time there were
only 18 judges available to dispense justice. In 1166 Henry ordered five to remain in
Westminster in London to deal with the cases that he would previously have decided,
and the remaining judges were sent out to travel to different parts of the country.
Their responsibility was to decide grievances, complaints and accusations applying the
laws that had been developed by judges in Westminster. In this way, local laws were
replaced by new national laws. Laws that were common to all – in other words, the
common law.
In time the decisions of the judges were written down. As the decisions of these courts
came to be recorded and published, so the practice developed where past decisions
(precedents) would be cited in argument before the courts and would be regarded as
being ‘authority’ for the application of pre-existing legal principles.
Common law courts grew up gradually as offshoots of the authority of the King and, as the
very word ‘court’ indicates, these courts of justice were originally a part of the Royal Court.
They were not created by law in order to administer pre-existing laws. They were created,
or grew up, in order to solve pressing practical questions – to dispose of arguments, to
solve disputes, and to suppress violence and theft. As they developed into what we would
today recognize as courts of law, they actually created the law as they went along.
page 24 University of London International Programmes
Eventually their decisions began to fall into regular and predictable patterns, people began
to take notes of what the judges were deciding, and in due module there emerged the
modern ‘law reports’.
(P.S. Atiyah, Law and modern society. (Oxford: Oxford University Press, 1995))
The contribution of common law to social order: the tranquillity of the state
The content of most of the law at the time that the foundations of the common
law were being laid was directed at preventing bloodshed by recognising rights
to property and personal freedom. Until the 12th century, the vendetta had been
an integral part of English life. But the ending of bloody feuds in England roughly
coincided with the establishment of the King’s Courts in the 12th Century. The courts
not only punished criminals, but provided a peaceful means of resolving disputes over
land and other property. The courts offered a service to the public. Instead of solving
disputes by violence, a judge would rule on rights and wrongs and offer a remedy.
In the resolution of disputes over land, contracts and debts, as well as dealing with
criminal offences, the courts were supporting social order and the tranquillity of the
state. The ability to ‘resort’ to law is preferable to the ability to ‘resort to violence’
and this is part of the critical social function of law. As we will see in Chapter 5 and
the discussion about the need for access to justice, some will argue that if citizens
are denied access to the courts they will ‘take the law into their own hands’. Those
concerns are similar to the concerns of Henry II some 800 years ago.
By the 15th century the procedures of the common law courts had become slow,
expensive and very technical. Interestingly, these are problems that people complain
of today as will be discussed in Chapter 5. Despite the development of common law
courts between the 12th and 15th centuries, the King himself continued to be a source
of English law. Citizens petitioned the King to ‘redress their grievances’ which meant
pleading with him directly to hear complaints and provide a remedy. For a time the
King dealt with these petitions himself, but as the work increased he passed them
to his senior legal adviser, the Chancellor (who was always a cleric), as the ‘Keeper of
the King’s Conscience’. The King, through his Chancellor, eventually set up a special
court, the Court of Chancery, to deal with these petitions. The Chancellor dealt with
these petitions on the basis of what was morally right. The Chancellor would give or
withhold relief, not according to any precedent, but according to the effect produced
upon his own individual sense of right and wrong by the merits of the particular case
before him. In 1474 the Chancellor issued the first decree in his own name, which
began the independence of the Court of Chancery from the King’s Council and the
development of a system of legal principles known as ‘equity’ which was different
from the common law.
Equity created new rights, for example by recognising trusts (somebody holding legal
title on behalf of another ‘beneficiary’) and giving beneficiaries rights against trustees.
The common law did not recognise such a device and regarded the trustees as owners.
Equity also created new remedies. If the Chancellor was convinced that a person had
suffered a wrong, the court would grant a remedy (i.e. they would devise some way
to ensure that something was done to put right the wrong that had been done to
the person). In this way, equity created new remedies that were not available in the
common law courts. At common law, the main remedy that a person could obtain
was the remedy of money compensation or damages. However, in equity more
flexible remedies were developed such as specific performance, which is an order
telling a party to perform their part of a contract, or injunction, usually an order to
stop a person doing a particular act, like acting in breach of contract (a prohibitory
injunction).
Legal system and method 1 Introduction to law and the legal system page 25
In time, however, the procedures of the Court of Chancery became expensive and it
took a long time for cases to be dealt with by a judge and for a decision to be given. By
the 19th century the court was the subject of considerable criticism. It was around this
time that the famous English author Charles Dickens wrote his novel Bleak house which
was deeply critical of the procedures of the Court of Chancery.
This is the Court of Chancery, which has its decaying houses and its blighted lands in every
shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard,
which has its ruined suitor with his slipshod heels and threadbare dress borrowing and
begging through the round of every man’s acquaintance, which gives to monied might
the means abundantly of wearying out the right, which so exhausts finances, patience,
courage, hope, so overthrows the brain and breaks the heart, that there is not an
honourable man among its practitioners who would not give – who does not often give –
the warning, ‘Suffer any wrong that can be done you rather than come here!’
Self-assessment questions
1. Name three civil law and three common law jurisdictions.
3. What are the most important points of difference between civil and common
law jurisdictions?
4. In what way did the development of the common law support social order?
5. How did the development of equity mitigate some of the problems that had
developed in the common law?
Essential reading
¢¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Further reading
¢¢ Slorach, Chapter 2 ‘Sources of law in England & Wales’.
Lawyers have generally classified the law into several broad areas, although this is
complicated by the fact that some of the basic terminology has different meanings
depending on the context.
Common law and equity: in the previous section we described how equity developed
as a body of law reflecting principles of ‘conscience’ and designed to do justice in
situations where the common law was not able to do so. Even though the courts of
equity were combined with the common law courts in the 19th century, there are still
page 26 University of London International Programmes
two distinct bodies of case law – common law and equity. Modern courts will refer
to certain principles or remedies as equitable, contrasting them with common law
principles and remedies.
Common law and civil law: in this context, the distinction being drawn is between
the English legal system and the family of common law jurisdictions with civil law
jurisdictions whose systems are derived from Roman law – such as Germany, France
and Japan. Interestingly, while England and Wales is a common law jurisdiction, the
legal system of Scotland is based largely on civil law.
Standard of proof: in the English common law system, an important distinction between
civil and criminal law is in the ‘standard of proof’ required for different types of case.
The standard of proof relates to the requirement for the facts of cases to be proved by
evidence. How sure is the court that the evidence proves the facts? In criminal cases the
prosecution is required to prove the case in court ‘beyond reasonable doubt’. This is a
demanding standard justified by the fact that the accused is facing the possibility of a
criminal penalty being imposed if found guilty. In civil cases the standard of proof is on
‘a balance of probabilities’, a less challenging requirement which means that the court
merely has to be of the view that it is more likely than not that the defendant is liable.
Law of tort: a tort is a civil wrong which causes another person to suffer damage or
loss. The law of tort covers a body of civil obligations, rights and remedies. Where
a person has suffered some sort of personal or financial damage as a result of the
Legal system and method 1 Introduction to law and the legal system page 27
wrongful actions of another person they may be liable under the law of tort to claim
financial compensation. Key areas of court action relate to negligence (careless
behaviour) and defamation (writing or speaking a false statement about someone
which damages their reputation).
Family law: family law deals with matters relating to family and domestic
relationships. Issues dealt with in family courts include distribution of property on the
breakdown of relationships, arrangements relating to children and child support.
Land law: land law is the set of rules that govern the land and anything attached to
it, such as trees or buildings, or anything in it, for example treasure or oil. Key areas of
court action relate to disputes over rights to land, rights across land, rights in relation
to the use of land and boundaries between neighbouring land.
Self-assessment questions
1. Explain the difference between civil and criminal law.
uu ‘England and Australia are common law countries but Japan and China are not.’
uu ‘At common law even an unfair contract term would be enforced, but under
the Unfair Contract Terms Act such terms may not be enforced.’
uu ‘At common law the only remedy was damages, but equity has specific
remedies such as the injunction.’
3. What is the standard of proof in civil and criminal cases? Why do you think the
standard is different?
Further reading
¢¢ Slapper and Kelly, Chapter 2 ‘The rule of law and human rights’.
The unwritten constitution in the UK has developed over many hundreds of years and
the rules relating to governance can be found in statutes, common law, custom and
what are known as constitutional conventions, which are longstanding practises
that are so widely recognised that they have become essentially unwritten rules. So
when it is said that the UK does not have a written constitution, it is perhaps more
accurate to say that the UK constitution is partly written (in statutes and common law
precedents), but that it is largely ‘uncodified’.
page 28 University of London International Programmes
Essential reading
¢¢ Parliamentary briefing on separation of powers (2011)
www.parliament.uk/briefing-papers/sn06053.pdf
Within the modern state there are three main centres of power:
a. the legislature – which is responsible for making new laws (in the UK this is
Parliament)
b. the executive – which is responsible for implementing the law and running the
country
c. the judiciary - which is responsible for determining legal disputes and interpreting
legislation passed by the legislature.
The separation of powers between the three branches of the state rests on the idea
that a division of power prevents the accumulation of too much power in the hands of
one body or person and provides a system of ‘checks and balances’. One of the earliest
statements of the separation of powers was given by the French political thinker
Montesquieu in 1748:
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty ... there is no liberty if the powers of judging is
not separated from the legislative and executive ... there would be an end to everything, if
the same man or the same body ... were to exercise those three powers.
Thus, for example, the judiciary have responsibility for checking that the executive
governs according to law – that it does not exceed its lawful powers.
The legislature has responsibility for creating new laws, but the judiciary are
responsible for the interpretation of that law. The judiciary are independent of the
legislature and executive and are not subject to interference by the Government.
Recent changes to the English constitution under the Constitutional Reform Act 2005
(CRA 2005) have been introduced to strengthen the formal separation of powers. The
Act created a separate Supreme Court and the Lord Chief Justice replaced the Lord
Chancellor as head of the judiciary in England and Wales. It placed a statutory duty on
ministers to uphold judicial independence and made provision for the establishment
of an independent Judicial Appointments Commission.
Essential reading
¢¢ United Nations Basic Principles on the Independence of the Judiciary
http://apps.americanbar.org/rol/docs/judicial_reform_un_principles_
independence_judiciary_english.pdf
As will become clear in later chapters of this subject guide, the constitutional position
of the judiciary in relation to both the legislature and executive is a live and often
controversial issue. There is considerable scholarly debate about the question of the
extent to which the role of the judiciary in interpreting legislation and developing the
common law overlaps with the responsibility of the legislature. There is also debate
about the extent to which, in exercising their judgment in relation to the Human
Rights Act 1998, the judiciary, and in particular the UK Supreme Court, is involving itself
in what are essentially political rather than legal issues. This raises the question of the
extent to which the judiciary should be accountable as well as independent. These
issues are discussed in detail in Chapters 3 and 6 of the subject guide. In recent years
the role of the judiciary in disputes between the citizen and the state has increased
alongside the growth in governmental functions. The responsibility of the judiciary to
protect citizens against unlawful acts of government has thus increased, and with it
the need for the judiciary to be independent of government. As Lord Phillips, the first
President of the UK Supreme Court noted in 2011:
The citizen must be able to challenge the legitimacy of executive action before an
independent judiciary. Because it is the executive that exercises the power of the State
and because it is the executive, in one form or another, that is the most frequent litigator
in the courts, it is from executive pressure or influence that the judiciary are particularly to
be protected.
The Lord Chancellor, other ministers of the Crown, and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
Particular duties imposed under s.3 of CRA 2005 to ensure judicial independence
include:
uu the Lord Chancellor and other ministers of the Crown must not seek to influence
particular judicial decisions through any special access to the judiciary
uu the Lord Chancellor must have regard to the need to defend judicial independence
and the need for the judiciary to have the support necessary to enable them to
exercise their functions.
Essential reading
¢¢ Parliament website explanation of Parliamentary sovereignty
www.parliament.uk/about/how/sovereignty/
Essential reading
¢¢ Lord Bingham ‘The rule of law’ 6th Sir David Williams Lecture, November 2006
www.cpl.law.cam.ac.uk/sir-david-williams-lectures/rt-hon-lord-bingham-
cornhill-kg-rule-law
The rule of law is a critical constitutional concept which is used to describe the
factors necessary for a well-functioning or healthy state and, in particular, to constrain
the exercise of arbitrary power. At its most basic, the rule of law dictates (a) that a
citizen should only be punished if it is proved in court that they breached a law, so
that people cannot be punished arbitrarily; and (b) that no person is above the law,
and everyone is equal before the law. This means that the law applies to everyone
regardless of social, economic or political status or, indeed, wealth.
The idea of the rule of law was known to philosophers such as Aristotle, writing around
300 years BC, but the British constitutional theorist Albert Venn Dicey, writing in the
19th century, popularised the concept of the rule of law. One of the most influential
contemporary formulations of the rule of law was offered in 2006 by Lord Bingham, a
famous English judge. Lord Bingham’s articulation of the fundamental principle of the
rule of law is that:
… all persons and authorities within the state, whether public or private, should be bound
by and entitled to the benefit of laws publicly made, taking effect (generally) in the future
and publicly administered in the courts.
Lord Bingham then set out eight essential ‘ingredients’ of the rule of law.
2. Questions of legal right and liability should normally be resolved by the application
of law rather than the exercise of discretion.
3. The laws of the land should apply equally to all, except where objective differences
justify differentiation.
5. Some means should be provided for the resolution of civil disputes that do not
involve excessive cost or delay.
6. Ministers and public officers must exercise their powers reasonably, in good faith,
for the purpose for which the powers were conferred and without exceeding the
limits of such powers.
Essential reading
¢¢ ‘Commentary on the Bangalore Principles of Judicial Conduct’ United Nations
Office on Drugs and Crime, 2007
www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf
An essential element in the rule of law, which is implicit in Lord Bingham’s eight
principles but not spelled out explicitly, is the centrality of the concept of judicial
independence to the rule of law. The Bangalore Principles of Judicial Conduct (adopted
in 2002) set out a code of judicial conduct which has been accepted widely around the
world. The first of the Bangalore Principles states:
Legal system and method 1 Introduction to law and the legal system page 31
In its commentary on the Bangalore Principles, the United Nations Office on Drugs and
Crime notes that judicial independence is a responsibility imposed on each judge to
enable him or her to adjudicate a dispute honestly and impartially on the basis of the
law and evidence, without external pressure or influence and without fear of
interference.
The core of the principle of judicial independence is the complete liberty of the judge to
hear and decide the cases that come before the court; no outsider – be it government,
pressure group, individual or even another judge – should interfere, or attempt to
interfere, with the way in which a judge conducts a case and makes a decision.
Essential reading
¢¢ World Justice Project http://worldjusticeproject.org/what-rule-law
¢¢ Tamanaha, B.Z. ‘The history and elements of the rule of law’ Washington
University in St. Louis, Legal Studies Research Paper No. 12-02-07.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012845
The World Justice Project (WJP) assesses the extent to which different states around
the world meet the requirements of the rule of law. The WJP argues that the rule of law
matters because:
… it is the underlying framework of rules and rights that make prosperous and fair
societies possible. The rule of law is a system in which no one, including government, is
above the law; where laws protect fundamental rights; and where justice is accessible
to all … Where the rule of law is weak, medicines fail to reach health facilities, criminal
violence goes unchecked, laws are applied unequally across societies, and foreign
investments are held back. Effective rule of law helps reduce corruption, improve public
health, enhance education, alleviate poverty, and protect people from injustices and
dangers large and small. Strengthening the rule of law is a major goal of governments,
donors, businesses, and civil society organizations around the world.
According to the WJP, rule of law systems are those in which four universal principles
are upheld:
(1) The government and its officials and agents as well as individuals and private entities
are accountable under the law.
(2) The laws are clear, publicized, stable, and just; are applied evenly; and protect
fundamental rights, including the security of persons and property.
(3) The process by which the laws are enacted, administered, and enforced is accessible,
fair, and efficient.
(http://worldjusticeproject.org/what-rule-law)
The WJP goes on to elaborate essential rule of law ‘factors’ which should be evident in
healthy societies. These factors are as follows:
page 32 University of London International Programmes
uu Limited government powers: in a society governed by the rule of law, the
government and its officials and agents are subject to and held accountable under
the law.
uu Order and security: human security is one of the defining aspects of any rule of
law society. Protecting human security, mainly assuring the security of persons and
property, is a fundamental function of the state.
uu Fundamental rights: under the rule of law, fundamental rights must be effectively
guaranteed. A system of positive law that fails to respect core human rights
established under international law is at best ‘rule by law’.
uu Civil justice: in a rule of law society, ordinary people should be able to resolve
their grievances and obtain remedies in conformity with fundamental rights
through formal institutions of justice in a peaceful and effective manner, rather
than resorting to violence or self-help. Civil justice requires that the system be
accessible, affordable, effective, impartial and culturally competent. Accessibility
includes general awareness of available remedies, availability and affordability of
legal advice and representation, and absence of excessive or unreasonable fees
and hurdles. Impartiality includes absence of arbitrary distinctions, such as social
and economic status, as well as decisions that are free of improper influence by
public officials or private interests. Effective civil justice also implies that court
proceedings are conducted in a timely manner and judgments are enforced
without unreasonable delay. Finally, in a rule of law society, it is essential that
alternative dispute mechanisms provide effective access to justice, while refraining
from binding persons who have not consented to be bound by the mechanism.
uu Criminal justice: an effective criminal justice system is a key aspect of the rule
of law, as it constitutes the natural mechanism to redress grievances and bring
action against individuals for offences against society. An effective criminal justice
system is capable of investigating and adjudicating criminal offences effectively,
impartially and without improper influence, while ensuring that the rights of
suspects and victims are protected.
It is arguable that in the absence of these rule of law protections, societies may be
vulnerable to the use of arbitrary power, totalitarianism and corruption.
On the other hand, some modern legal scholars have argued that the concept of the
rule of law has become so vague and all-encompassing that it has lost any real
meaning. As Brian Tamanaha (2012) has commented:
The requirements for the rule of law, as set out by the WJP, are demanding and
wide ranging. In addition to constitutional principles, the WJP argues the need for
well-functioning civil and criminal justice systems and alternative forms of dispute
resolution, which are regarded as evidence of a well-developed legal culture
underpinned by rule of law values.
In Chapters 6 and 7 we examine the English civil and criminal justice systems in light of
the rule of law standards set out by the WJP. Throughout the study of this module, it is
Legal system and method 1 Introduction to law and the legal system page 33
important to consider the extent to which the institutions and processes of the English
legal system, and indeed the institutions and processes of other jurisdictions, meet
the rule of law requirements set out by Lord Bingham and the WJP. For many societies
and justice systems, these requirements are aspirational. But although a society may
not yet meet all of the requirements, striving to achieve rule of law objectives and to
embed rule of law values is likely to guard against arbitrary government and defective
justice systems. As Lord Bingham said in the Epilogue to his book The rule of law:
The concept of the rule of law is not fixed for all time. Some countries do not subscribe to
it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it
difficult to apply all its precepts quite all the time. But in a world divided by differences
of nationality, race, colour, religion and wealth it is one of the greatest unifying factors,
perhaps the greatest, the nearest we are likely to approach to a universal secular religion.
It remains an ideal, but an ideal worth striving for, in the interests of good government and
peace, at home and in the world at large.
Summary
uu The constitution comprises the rules for governance of society and distribution of
power.
uu The English constitution is uncodified and found in common law, statute and
constitutional conventions.
uu Rule of law principles evident in fair societies include accessible and intelligible
laws, accountable government, fair legal processes and protection of fundamental
rights.
Self-assessment questions
1. How would you distinguish between ‘rule of men’ and ‘rule of law’?
Essential reading
¢¢ Holland and Webb, Chapter 5 ‘Law, fact, and language’.
Further reading
¢¢ Genn, H. Judging civil justice (The Hamlyn Lectures). (Cambridge: Cambridge
University Press, 2009) [ISBN 9780521134392] Chapter 1 ‘Introduction: what is
civil justice for?’ (in the Legal system and method study pack).
In dealing with legal cases and reaching a legal determination of the case the courts
will follow certain rules about what evidence of the facts needs to be provided, how
and when the evidence should be provided.
Procedural justice
Procedure is also important to litigants – the parties involved in legal cases – and their
perceptions of fairness. Those involved in legal proceedings want an opportunity to
put their case, the opportunity to influence the judge, a judge who is impartial and
even-handed, and to be treated with courtesy and respect. So procedural justice is not
only important in leading to correct legal decisions or substantive justice, but it is an
important influence on citizens’ perceptions of the fairness of legal processes.
Essential reading
¢¢ Kessler, A.D. ‘Our inquisitorial tradition: equity procedure, due process, and the
search for an alternative to the adversarial’ (2005) 90 Cornell L Rev 1181
http://cornelllawreview.org/files/2013/03/Kesslerfinal.pdf
One of the differences between common law and civil law jurisdictions is in
their approach to legal proceedings. Although the differences can sometimes be
overstated, common law court proceedings are generally based on ‘adversarial’
procedures in which the parties are responsible for preparing their case and collecting
their evidence. At the trial of the case in court the parties’ advocates will present their
clients’ respective arguments in a sort of contest before a judge (or judge and jury).
Witnesses will be called to give evidence and then cross-examined on their evidence.
The role of the judge is to remain relatively passive during proceedings, ensure that
procedures are followed and at the end of the hearing or trial give the decision
based on a view of the legal merits of the parties in relation to the facts presented.
Adversarial processes work best when there is a rough equality between the parties in
terms of representation and resources.
By contrast, in civil law jurisdictions, legal cases are determined on the basis of
‘inquisitorial’ procedures. In inquisitorial proceedings the judge plays a more active
role in the investigation of a case. The judge will decide which witnesses should be
called and will take responsibility for uncovering the facts of the case. In serious
criminal cases in France, judges may be involved as part of the investigation as
examining magistrates. At the trial the judge assumes a direct role, conducting the
examination of witnesses, often basing his or her questions on the material in the pre-
trial dossier. Neither the prosecution nor the defence has the right to cross-examine.
The use of juries in civil law jurisdictions is rare although lay assessors frequently sit
alongside judges in serious criminal cases. The adversarial and inquisitorial models are
distinguished primarily by whether the parties or the court control three key aspects
of the litigation: initiating the action, gathering the evidence and determining the
sequence and nature of the proceedings (Kessler, 2005).
Self-assessment questions
1. What is the difference between procedural and substantive justice?
5. What are some of the key differences between adversarial and inquisitorial
procedures?
page 36 University of London International Programmes
Notes
2 The courts and their work
Contents
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Essential reading
¢¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Further reading
¢¢ Slorach, Chapter 3 ‘The court system of England & Wales’.
¢¢ Cownie, Bradney and Burton, Chapter 3 ‘Courts in “the English legal system”’.
Legal system and method 2 The courts and their work page 39
2.1 Introduction
This chapter introduces you to the names and work of the main courts in the justice
system. A basic understanding of the hierarchical relationship of the courts and of the
kinds of cases with which different court deal is necessary before moving on to the
discussion of precedent and statutory interpretation in Chapters 3 and 4. Although
some of the terms used at this stage will be unfamiliar, as you progress through your
reading, and as you begin to read some cases, the terminology will become more
familiar. If you are not sure of the meaning of a term as you read through the chapter
you should check the meaning by researching it on the VLE or internet.
Criminal courts exist in order to hear and determine cases in which people are accused
of breaking the criminal law. The case will be brought by the ‘prosecution’ against an
‘accused’ or ‘defendant’. If the defendant is found guilty, the criminal court has the
power to inflict punishment in the form of a fine or imprisonment. The vast majority of
prosecutions are brought by the Crown Prosecution Service or other state agencies.
UK Supreme Court
Appeal only, on points of law.
Employment Appeal Tribunal
Appeals from the Employment
Tribunals.
Court of Appeal
Appeal only, on points of law to either the Employment Tribunal (England
Criminal or Civil Divisions. & Wales; Scotland)
Claims about matters to do
with employment.
High Court
Chancery, Queen’s Bench and Family Divisions.
Upper Tribunal
All three divisions hear appeals from other courts,
Appeals from the First-tier Tribunal.
as well as “first instance” cases.
Crown Court
Jury trial for all indictable and some either-way criminal First-tier Tribunal
offences. Appeals against conviction and sentence from Appeals from executive
the magistrates’ court. agency decisions.
Essential reading
¢¢ Department for Constitutional Affairs ‘Constitutional reform: a Supreme Court
for the United Kingdom’ Consultation Paper, 2003
http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/consult/
supremecourt/supreme.pdf
The UK Supreme Court was established by Part 3 of the Constitutional Reform Act 2005
and officially came into being on 1 October 2009. It replaced the Appellate Committee
Legal system and method 2 The courts and their work page 41
of the House of Lords (referred to simply as the House of Lords) in its judicial capacity
and assumed the jurisdiction of the House of Lords. The Supreme Court is, with a few
exceptions, the final court of appeal in the United Kingdom, although not for criminal
cases from Scotland. Most of its work involves hearing appeals on points of law of
public importance from the Court of Appeal but it may occasionally hear an appeal
directly from the High Court (‘leapfrog’ procedure). The UKSC comprises the President
who is the Head of the Court (currently Lord Neuberger), a Deputy President (currently
Lady Hale) and 10 other Justices of the Supreme Court. It is a superior court and a court
of record. Its hearings are filmed, its decisions are regularly reported and all decisions
are posted on the Supreme Court website (www.supremecourt.uk/decided-cases/). It
hears about 70 cases a year.
The creation of a Supreme Court was a major change both to the justice system of
England and Wales and to the constitution. At the time that the change was proposed
in 2003, the 12 judges of the Appellate Committee of the House of Lords (known as the
Law Lords) sat as the final court of appeal and heard cases within a committee room
that was located within Parliament. Although separate from the legislative function of
the House of Lords as the upper chamber of Parliament the co-location of both
legislative and judicial activity was capable of causing confusion in the mind of the
public. The Government’s intention in creating the Supreme Court was to make
absolutely clear the separation of the judiciary and executive, especially since the
passing of the Human Rights Act 1998. The Government Consultation Paper published
by the Department for Constitutional Affairs in 2003, which preceded the creation of
the new Supreme Court, states that the purpose of the change was to make clearer the
independence of the judiciary:
The intention is that the new Court will put the relationship between the executive,
the legislature and the judiciary on a modern footing, which takes account of people’s
expectations about the independence and transparency of the judicial system … [the
functions of the Court] raise questions about whether there is any longer sufficient
transparency of independence from the executive and the legislature to give people
the assurance to which they are entitled about the independence of the Judiciary. The
considerable growth of judicial review in recent years has inevitably brought the judges
more into the political eye. It is essential that our systems do all that they can to minimise
the danger that judges’ decisions could be perceived to be politically motivated. The
Human Rights Act 1998, itself the product of a changing climate of opinion, has made
people more sensitive to the issues and more aware of the anomaly of the position
whereby the highest court of appeal is situated within one of the chambers of Parliament.
In April 2014 the Civil Procedure (Amendment) Rules 2014 (SI 2014 / 407) implemented
the single County Court, which indicates a move towards the unification of the
courts and a practical attempt to make the civil justice system more effective and
less costly. The County Court is a single model in that it is a central system which is
served nationwide by business units and the geographically dispersed physical court
buildings are only one aspect of the single model system. The single County Court
has the new operational features of two business centres, the Northampton Bulk
Centre and the County Court Money Claims Centre at Salford, and a Contact Centre for
administering telephone calls to the County Court system. The Bulk Centre relies as far
as possible on a ‘judge free’ approach and electronic, digitalised solutions which are
designed for the paperless resolution of particular types of disputes, such as Money
Claims On Line (MCOL) and Direction Questionnaires, for example in the resolution
of small claims (under £10,000). The Salford Centre carries out similar work but as
a paper exercise. Supporting the work of the business centres is the Loughborough
Contact Centre which filters incoming enquiries as a first point of access for incoming
telephone calls to the County Court system. These new features support the
overarching aim of a more efficient and less costly civil justice system by alleviating
individual courthouses from the burden of the types of claims they perform.
The traditional county courts are incorporated into the single County Court model
as the County Court Hearing Centres. The immediate impact of the introduction
of this new model has been an initial reduction of the original 170 to 145. Further
closures are expected as the improvements which the single model should deliver will
theoretically continue to reduce the workload of the Hearing Centres.
2.3.9 Tribunals
Tribunals are decision-making bodies established by the state, mostly to deal with
disputes between citizens and the state. There are around 70 different tribunals
dealing with a wide range of subject-matter ranging across, for example, immigration,
welfare benefits, education, tax and parking. Unlike general courts, most tribunals
have a relatively restricted jurisdiction. Typically, tribunal panels comprise a legally
qualified tribunal judge who will sit together with two non-legally qualified panel
members. Tribunals tend to have less complex procedures than ordinary courts and
are intended to be accessible and user-friendly so that those challenging decisions of
public bodies in tribunals can proceed without legal representation.
2.3.10 Coroners
Coroners’ courts are inferior courts, the decisions of which are not reported. Their
main function is to inquire into the cause of sudden deaths. Coroners may be lawyers
or medical practitioners and they may sit with a jury of between 7 and 11 members if
that is considered necessary. Unlike courts, the process adopted in coroners’ courts is
inquisitorial.
The CJEU was established in 1954. It consists of one judge from each member state,
together with eight Advocates General, who makes submissions to the court on the
relevant law to assist the court. The CJEU sits in Luxembourg and is usually referred
to as the European Court, but should not be confused with the European Court of
Human Rights which sits in Strasbourg. The CJEU normally sits in chambers of three
or five judges, but may sit in a grand Chamber of 13 judges. An important point of
procedural difference between this court and UK courts is that the CJEU always
delivers a judgment of the court, without the possibility of dissenting judgments.
The CJEU deals with breaches of obligations under European Treaties and the uniform
judicial interpretation of European Law by member states of the European Union.
Cases are not appealed to the CJEU but instead ‘referred’ to the CJEU under Article 267
of the Treaty on the Functioning of the European Union. It is thus a ‘Court of Reference’.
The Court makes the final judgment on the interpretation of EU law. The relationship
between the CJEU and the UKSC is important and is discussed in Chapter 3.
Summary
uu The structure of the English court system is hierarchical and courts lower down the
court hierarchy are bound to follow decisions of courts higher up the hierarchy.
uu A major distinction is between courts of first instance and those with appellate
jurisdiction.
uu There is no rigid line of demarcation between civil and criminal courts since almost
all the courts exercise both types of jurisdiction (except county courts).
uu While not formally part of the English court hierarchy the CJEU in Luxembourg is a
Court of Reference and stands above the UK Supreme Court in relation to issues of
European Union Law.
uu The European Court of Human Rights (ECtHR) in Strasbourg, France, deals with
breaches of the European Convention on Human Rights.
uu Since the Human Rights Act 1998, English courts can deal directly with alleged
breaches of human rights, but their decisions are heavily influenced by the
jurisprudence of the ECtHR.
Self-assessment questions
1. Name the superior courts in the English court hierarchy.
4. What kind of cases does the Chancery Division of the High Court deal with?
5. What is a tribunal?
6. Which is the final court of appeal for matters concerning European Law?
7. What does the Grand Chamber of the European Court of Human Rights do?
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Notes
3 The doctrine of judicial precedent
Contents
3.1 What is the doctrine of judicial precedent? . . . . . . . . . . . . . . . . 49
3.7 Citation of the Law Reports and the Weekly Law Reports . . . . . . . . . 66
page 48 University of London International Programmes
Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
uu understand what is meant by the doctrine of judicial precedent and why it is
important in the common law
uu recognise and distinguish between ratio decidendi and obiter dicta
uu explain and apply the rules of binding precedent in relation to each court
uu explain how the Human Rights Act 1998 affects the operation of binding
precedent
uu explain the extent to which judges can make law within the system of precedent.
Essential reading
¢¢ Holland and Webb, Chapters 6 ‘The doctrine of judicial precendent’ and 7 ‘How
precedent operates: ratio decidendi and obiter dictum’.
¢¢ Lord Dyson MR ‘Are the judges too powerful?’ Bentham Presidential Address,
UCL, 12 March 2014
www.judiciary.gov.uk/announcements/mor-speech-are-judges-too-powerful/
¢¢ Lord Justice Laws ‘The common law and Europe’ Hamlyn Lecture 2013, Lecture III
www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/
Further reading
¢¢ Slapper and Kelly, Chapter 4 ‘Sources of law: case law’.
Legal system and method 3 The doctrine of judicial precedent page 49
A precedent is persuasive where it is not binding, but will still be taken into account
by a court. The judge will feel that they are under some obligation to explain why they
are not going to follow a persuasive precedent. All serious statements made by judges
of the higher courts are treated with respect and may be cited in any court. However,
certain classes of especially persuasive precedent may be identified:
uu High Court Judges treat the decisions of other High Court Judges as very persuasive,
especially where the decision was reserved (i.e. given after time for reflection). See
further discussion below.
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Vertical precedent – refers to the extent to which a court lower down the hierarchy is
bound to follow a decision of a court higher up the hierarchy. For example, is the Court
of Appeal bound to follow the decisions of the UK Supreme Court?
Horizontal precedent – refers to the extent to which a court at the same level is
bound to follow its own earlier decisions. For example, is the Court of Appeal bound to
follow its own earlier decisions?
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge
as a necessary step in reaching his conclusion, having regard to the line of reasoning
adopted by him ...
The ability to read a reported case and to identify its ratio decidendi is an essential
skill of the lawyer. It is a skill that must be developed in order to make sense of the
common law, to understand judicial reasoning and, ultimately, to be in a position to
provide advice on legal disputes and problems.
Material facts
The ‘material’ facts of a case are the facts that are important to the decision. Not all
facts in a case will be relevant to the decision and the judge will generally make fairly
clear which facts are relevant. So, for example, in the famous case of Donoghue v
Stevenson [1932] AC 562 the court dealt with the question of whether a manufacturer
of a food product could be liable for causing injury to the ultimate consumer of the
product as a result of negligent manufacture. In this case Mrs Stevenson was made
ill as a result of consuming ginger beer poured from a brown bottle which contained
a dead snail. The fact that the bottle was brown – and thus the contents could not
be examined – was a material fact, while the fact that the content of the bottle was
ginger beer was not material. The bottle could have contained lemonade or any
other drink. The point was that the contents could not be examined. For an excellent
account of the background to this famous case read Martin R. Taylor, QC, ‘Donoghue v
Stevenson: the legal world’s first glimpse of the most famous litigant of all time’
(www.scottishlawreports.org.uk/resources/dvs/most-famous-litigant.html).
Distinguishing
The doctrine of binding precedent requires that a judge follows the decisions of
earlier cases unless a similar earlier precedent can be ‘distinguished’. Cases can
be distinguished on their material facts or on the point of law involved. This is a
device sometimes resorted to by judges in order to avoid the consequences of an
inconvenient decision which is, in strict practice, binding on them.
Legal system and method 3 The doctrine of judicial precedent page 51
ii. Reversal: a case is reversed when the loser appeals and the appeal court agrees
with them. Sometimes cases are reversed only on some issue of fact. Where this
happens the ratio does not lose its binding force.
iii. Overruling: a case is overruled when a higher court, dealing with indistinguishable
material facts, either expressly overrules the earlier case, or produces a ratio which
is inconsistent with that of the earlier case.
Self-assessment questions
1. Explain the difference between a binding and a persuasive precedent.
4. In reading a case, how can you distinguish between the ratio decidendi and
obiter dicta?
Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore
our first duty which is to administer justice according to law, the law which is established
for us by an Act of Parliament or the binding authority of precedent.
However, there is ample judicial writing and scholarly discussion to conclude that
in the English common law system the judiciary do perform a limited law-making
function in incrementally developing the common law to ensure that it keeps pace
with changes in social and economic conditions and remains sufficiently flexible to
accommodate new situations.
In his memoirs in 1972 after retiring from the House of Lords (what is now the UK
Supreme Court) Lord Reid indicated his view in the title of his book The judge as law
maker. He famously said:
We do not believe in fairy tales any more. So we must accept the fact that for better or
worse judges do make law – and tackle the question how do they approach their task and
how they should approach it.
More recently a number of judges have reflected on their role in developing the
common law. When he was Chairman of the Law Commission of England, Lord Justice
Etherton argued that public law and human rights developments have intensified and
highlighted the law making role of the judge (July 2009, Institute of Advanced Legal
Studies lecture).
In the case of National Westminster Bank v Spectrum Plus [2005] 2 AC 680, Lord Nicholls
said at para.32:
The common law is judge-made law. For centuries judges have been charged with the
responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this
fashion is an integral part of the constitutional function of the judiciary. Had the judges
not discharged this responsibility, the common law would be the same now as it was in
the reign of King Henry II. It is because of this that the common law is a living instrument
of law, reacting to new events and new ideas, and so capable of providing the citizens of
this country with a system of practical justice relevant to the times in which they live.
However, in his essay The judge as lawmaker (1997), Lord Bingham identified some
situations where judges would or should be reluctant to make new law. For example:
where citizens have organised their affairs on the basis of their understanding of the
law; where a defective legal rule requires detailed amendments, qualifications and
exceptions; where the issue involves a matter of social policy on which there is no
consensus; or where the issue is in a field outside of ordinary judicial experience.
The extent to which any judge is prepared to innovate will depend on their view of the
balance to be achieved between competing requirements of the common law. These are:
As Lord Dyson concluded in his 2014 speech on the power of the judiciary:
... in deciding whether to develop the common law or to leave any change to Parliament,
the courts do not apply some overarching principle … some judges are more cautious
than their colleagues; others are more adventurous. But despite these differences, the
common law continues to evolve. What is clear is that the judges have great power in
shaping the common law and, therefore, influencing the lives of all of us. The existence
of this power is, of course, always subject to Parliament. If Parliament wishes to change
the common law, it can do so. But, despite some notable exceptions … Parliament rarely
shows any appetite to change the common law. So far as I am aware, the manner in which
the judges develop the common law has not excited much political comment or given
rise to a demand to clip the wings of the judges. I would like to think that this is because,
Legal system and method 3 The doctrine of judicial precedent page 53
on the whole, the judges have done a good job in this area and no-one has suggested a
fundamentally different way of doing things that would command popular support.
Self-assessment questions
1. What is the ‘declaratory theory’?
3. What approach does Lord Dyson think judges should take to the development of
the common law?
Essential reading
¢¢ Lord Justice Laws ‘Our lady of the common law’ ICLR Lecture, 1 March 2012
www.judiciary.gov.uk/announcements/lj-laws-speech-iclr-lecture-01032012/
¢¢ Lee, J. ‘The doctrine of precedent and the Supreme Court’ Inner Temple
Academic Fellow’s Lecture
www.innertemple.org.uk/downloads/education/lectures/lecture_james_lee.pdf
¢¢ Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28
(extract in the Legal system and method study pack).
Vertical precedent
The UK Supreme Court binds all of the courts below it in the court hierarchy. There
have been some occasions in the past when the Court of Appeal has challenged this
principle (see next section).
Horizontal precedent
Until the mid-19th century the House of Lords took the view that it was not bound by
its own decisions, but in 1898 in the case of London Street Tramways Ltd v London County
Council [1898] AC 375 the House confirmed that they would in future be bound by their
own decisions. The reason for this was to bring finality to cases and legal issues so that
they would not be continually re-argued. However, in the period that followed the
London Tramways decision it was felt that the effect of the decision was to constrain
the development of the common law and that rather than ensuring predictability and
certainty in the law, the effect was rather the opposite.
As a result, in 1966, all of the judges in the House of Lords joined together to issue
a Practice Statement (a statement by the court of a procedure that it intends to
introduce) providing that in future the House would no longer regard itself as bound
by its own earlier decisions. The statement was carefully worded to communicate that
this new power to depart from decisions would be used sparingly to avoid creating
uncertainty in the law.
Their Lordships recognise ... that too rigid adherence to precedent may lead to injustice in
a particular case and also unduly restrict the proper development of the law. They propose
therefore to modify their present practice and, while treating former decisions ... as
normally binding, to depart from a previous decision when it appears right to do so.
page 54 University of London International Programmes
Together with the Practice Statement, the House of Lords published a press release
which gave more explanation about the new practice. The key points that emerged
from the Practice Statement and press release were that:
uu the court would be most likely to use the new freedom in situations where
there had been significant social change so that a precedent was outdated or
inappropriate to modern social conditions, values and practices
uu the court would be likely to depart from an earlier decision if there was a need to
keep English common law in step with law of other jurisdictions
uu there was a special need for certainty in criminal law and as a result the court
would be very reluctant to depart from an earlier decision in a criminal case.
The Supreme Court has not thought it necessary to re-issue the Practice Statement as
a fresh statement of practice in the Court’s own name. This is because it has as much
effect in this Court as it did before the Appellate Committee in the House of Lords. It was
part of the established jurisprudence relating to the conduct of appeals in the House of
Lords which was transferred to this Court by section 40 of the Constitutional Reform Act
2005. So the question which we must consider is not whether the Court has power to
depart from the previous decisions of the House of Lords which have been referred to, but
whether in the circumstances of this case it would be right for it to do so.
The use of the Practice Statement in the House of Lords/UK Supreme Court
The Practice Statement and accompanying press release provide a good example of
how, within the system of binding precedent, the judiciary have developed sufficient
scope for the law to remain flexible and responsive to social change. The freedom of
the House of Lords/UK Supreme Court to be less rigidly bound by precedent is a critical
feature of the English system of precedent. So long as the power is used cautiously,
it provides flexibility while broadly maintaining consistency and predictability in the
common law. However, the power to depart from an earlier decision and, effectively,
transform the law overnight raises issues about the line between a desirable level of
judicial creativity and flexibility on the one hand and crossing a line which trespasses
on the role of Parliament as the legislator within the English constitution on the other.
R v Shivpuri [1986] 2 All ER 334 The first time that the House of Lords overturned one of
its own decisions in criminal law was in the case of Shivpuri in 1986 – some 20 years after
the court issued its Practice Statement of 1966. In the case of Shivpuri the House was
invited to overturn its decision in the case of Anderton v Ryan [1985] 2 All ER 355, perhaps
surprising since Anderton v Ryan had only been decided one year earlier. Ryan had
dishonestly handled a video recorder that she believed was stolen. In fact, it was not
stolen. The House of Lords held that Ryan could not be guilty of attempting to steal the
goods under s.1 of the Criminal Attempts Act 1981. It was impossible because the goods
were not stolen goods. The court’s decision was criticised for having misinterpreted s.1
of the Criminal Attempts Act 1981. In the case of R v Shivpuri [1986] 2 All ER 334, the
defendant believed that he was dealing with a controlled drug when it was in fact
harmless and on the question of liability the House was invited to overturn Anderton v
Ryan. It did so. This was the first time that the House of Lords overruled its own decision
in a criminal case and it was regarded as a spectacular decision. In Shivpuri Lord Bridge
acknowledged that the earlier decision of the House of Lords had been wrong, that
there was no valid ground on which it could be distinguished and that it should be
overruled notwithstanding the need for certainty in the criminal law. He said:
If a serious error, embodied in a decision of this House has distorted the law, the sooner it
is corrected the better.
Another example involving criminal law in which the House of Lords overturned an
earlier decision is that of R v Howe [1987] 1 All ER 771 concerning duress as a defence to
murder. In Howe the House of Lords overturned its decision in DPP for Northern Ireland v
Lynch [1975] AC 653 and held that duress is never a defence to murder.
British Railways Board v Herrington [1972] AC 877 This case involved the duty of care
owed by an occupier of land to people trespassing on the land. The House of Lords
in Herrington overturned the much earlier case of Addie v Dumbreck [1929] AC 358. In
Addie v Dumbreck the House of Lords had held that an occupier of land would only be
liable for harm caused to a trespasser if the harm was caused intentionally. The House
of Lords in Herrington held that social attitudes had changed in the intervening 50
years and occupiers of land, as a matter of common humanity, should take reasonable
steps to deter people from trespassing where they are likely to be injured. The Addie v
Dumbreck case had impeded the proper development of the common law and should
be overruled.
Murphy v Brentwood District Council [1990] 2 All ER 908 This is a decision of major
importance to the tort of negligence. The House of Lords overruled its own decision in
Anns v Merton London Borough [1977] 2 All ER 492. The decision in Anns had been
severely criticised at the time that it was decided and in Murphy the House of Lords
departed from all of the propositions in Anns. Lord Keith of Kinkel said:
I think it must now be recognised that [Anns] did not proceed on any basis of principle at
all, but constituted a remarkable example of judicial legislation. It has engendered a vast
spate of litigation, and each of the cases in the field which have reached this House has
been distinguished … There can be no doubt that to depart from the decision would re-
establish a degree of certainty in this field which it has done a remarkable amount to upset.
Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28
This recent case demonstrates first, that the 1966 Practice Statement applies to the
Supreme Court; and second, that the UKSC will be cautious about overturning an
earlier decision on statutory interpretation unless there are very strong reasons for
doing so. The case concerned the interpretation of s.82(2) of the Housing Act 1985
page 56 University of London International Programmes
which had been dealt with by the House of Lords in Knowsley Housing Trust v White
[2009] 1 AC 636. Lord Hope in Austin v Southwark felt that s.82(2) was capable of being
interpreted in different ways, but said that the question was whether it would be
‘right’ for the Supreme Court to depart from a previous decision of the House of Lords.
Lord Hope held that he was not persuaded that the Supreme Court should depart
from the decision of the House in Knowsley since the effect of reversing such a decision
which had stood for so long was incalculable in the circumstances.
Self-assessment questions
1. Why did the House of Lords issue the Practice Statement in 1966?
2. What were the circumstances in which the House of Lords envisaged being
prepared to overrule earlier decisions?
3. Why has the House of Lords been cautious in using the power to overrule?
It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to
ignore decisions of the House of Lords … The fact is, and I hope it will never be necessary
to say so again, that in the hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers.
Thus the position on vertical precedent is that the Court of Appeal is bound by
decisions of the House of Lords/UKSC whether or not the Court of Appeal approves of
those decisions. Decisions of the Court of Appeal bind courts lower down the court
hierarchy.
Essential reading
¢¢ Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 ALL ER 1132 (HL).
The issue of horizontal precedent below the level of the Supreme Court is very
important. The Court of Appeal and the courts below in the hierarchy hear thousands
of cases each year. There will be many courts sitting in the Court of Appeal at the same
time. That means a large number of reported judgments and if the Court of Appeal was
not to follow its own earlier decisions this would inevitably lead to confusion and a
degree of uncertainty in the law.
Legal system and method 3 The doctrine of judicial precedent page 57
The basic principle of precedent in the Civil Division of the Court of Appeal is that it
is bound by its own previous decisions. There are, however, several exceptions to
this rule. The exceptions were set out by Lord Green MR in the case of Young v Bristol
Aeroplane Co Ltd [1944] 2 All ER 293 and are as follows:
i. Conflicting decisions: where the material facts of two Court of Appeal cases are
similar but the decisions conflict, then a later Court can choose which case to
follow. Although in practice the Court will often follow the later case, it is not
bound to do so. Although conflicting decisions in this sense ought to not arise if
the system of precedent is observed by judges, in fact there are cases where it has
happened. An example of the use of this rule is National Westminster Bank v Powney
[1990] 2 All ER 416 where the Court was faced with two irreconcilable decisions
both decided in 1948: Lamb v Rider and Lough v Donovan. The Court in Powney
followed Lamb v Rider. See also Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209,
where the Court of Appeal refused to follow Law v Jones [1973] 2 All ER 437.
iii. Decisions ‘per incuriam’: where a previous decision of the Court of Appeal was
given per incuriam, which means, ‘in ignorance’ or ‘without sufficient care’, a later
court is not bound to follow the decision. A decision of the Court of Appeal will lose
its binding force where it was made in ignorance of some rule of law binding upon
the Court and which would have affected its decision. The per incuriam rule was
explained by Sir Raymond Evershed MR in the case of Morelle v Wakeling [1955] 2 QB
379, 406 as follows:
A further possible exception? Conflict with an earlier decision of the House of Lords/
UKSC: a further complication arises when a Court of Appeal decision conflicts with
an earlier decision of the House of Lords/UKSC. This ought not to occur, but there are
instances when it has. The question then for the Court of Appeal is whether to follow
its own decision or that of the House of Lords. This situation arose in the case of
Miliangos v George Frank (Textiles) Ltd [1976] AC 443 where the Court of Appeal was faced
with a conflict between its own previous decision in Schorsch Meier GmbH v Hennin
[1975] QB 416 and an earlier (1960) House of Lords decision in Havanah which held that
judgments in UK courts could only be given in sterling. In Schorsch Lord Denning held
that he was not bound to follow that decision because when the reason for a legal rule
had gone, the law itself should go (‘cessante ratione cessat ipsa lex’). In Miliangos, the
conflict between Havanah and Schorsch was considered. At first instance the judge, Mr
Justice Bristow, held that he was obliged to follow the House of Lords in the Havanah
case and not the Court of Appeal in Schorsch. He said that the Havanah rule could only
be changed by statute or by the House of Lords. Miliangos then appealed to the Court
of Appeal and Lord Denning held that Schorsch was binding on the courts beneath the
Court of Appeal and on the Court of Appeal itself, because the exceptions to Young v
Bristol Aeroplane [1946] 1 AC 163 were confined to inconsistent subsequent decisions
of the House of Lords. The case was finally appealed to the House of Lords in 1976. The
House of Lords held first, that the Court of Appeal had acted incorrectly in Schorsch
when it failed to follow Havanah; but second, that Havanah should be overruled. Lord
Cross said that both Bristow J and the Court of Appeal should follow the House of Lords
decision, not the later Court of Appeal decision.
Should the Court of Appeal be free to depart from its own earlier decisions?
After the House of Lords Practice Statement in 1966, Lord Denning conducted a
campaign to free the Court of Appeal from having to follow its own earlier decisions.
He argued in the case of Gallie v Lee [1969] 1 All ER 1062 that the Court of Appeal need
not be absolutely bound by its own prior decisions. He said that this was a limitation
self-imposed by the judiciary and that if the House of Lords could free itself from this
constraint there was no principled reason why the Court of Appeal could not do the
same thing. Lord Denning’s main concern was that if the Court of Appeal had made an
error in a case, the rule in Young v Bristol Aeroplane would mean that the Court would
be bound to continue to apply a bad precedent unless and until an opportunity arose
for the precedent to be overruled in the House of Lords. He repeated this view in the
case of Tiverton Estates v Wearwell [1975] Ch 146, but was unable to persuade all of the
Court of Appeal judges to agree with him.
The debate over horizontal precedent in the Court of Appeal was finally settled in the
important case of Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 All ER 1132 (HL). The
case concerned the interpretation of s.1 of the then recently passed Domestic Violence
and Matrimonial Proceedings Act 1976. Davis and Johnson lived together with their
baby daughter in a council flat of which they were joint tenants. Johnson was violent
and Davis ran away with her child to a refuge for battered wives. She applied to the
court for an order to reinstall her in the flat and have Johnson excluded from the flat.
The Court of Appeal had considered the same question on two occasions only a few
months earlier in B v B [1978] Fam 26 and Cantliff v Jenkins [1978] Fam 47. They held that
the 1976 Act did not protect a female cohabitee where the parties were joint tenants
or joint owners but only where she was the sole tenant or sole owner of the property.
In Davis v Johnson, Lord Denning called together a ‘full’ court of five judges, describing
it as ‘a court of all the talents’. The court held by a majority of three that the 1976 Act
does protect a female cohabitee even where she is not a tenant at all or only a joint
tenant. They declared B v B and Cantliff v Jenkins wrong and did not follow them. They
granted an injunction to order the man out and reinstall the woman.
Lord Denning was well aware that in doing this he was failing to follow horizontal
precedent. He said however:
On principle, it seems to me that, while this court should regard itself as normally bound
by a previous decision of the court, nevertheless it should be at liberty to depart from
it if it is convinced that the previous decision was wrong. What is the argument to the
contrary? It is said that if an error has been made, this court has no option but to continue
the error and leave it to be corrected by the House of Lords. The answer is this: the
House of Lords may never have an opportunity to correct the error; and thus it may be
perpetuated indefinitely, perhaps forever.
The case was eventually appealed to the House of Lords. The decision of the House of
Lords was that B v B and Cantliff v Jenkins should be overruled. However, it took the
opportunity to make an unequivocal statement about stare decisis in the Court of
Appeal. Lord Diplock said:
The rule as it has been laid down in the Bristol Aeroplane case had never been questioned
thereafter until … Lord Denning conducted what may be described ... as a one-man
crusade with the object of freeing the Court of Appeal from the shackles which the
doctrine of stare decisis imposed upon its liberty … In my opinion, this House should take
this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down
in the Bristol Aeroplane case is still binding on the Court of Appeal.
This was a very explicit disapproval of Lord Denning’s approach. In his memoirs after
retirement Lord Denning referred to Davis v Johnson as his most ‘humiliating defeat’
and a ‘crushing rebuff’.
Vertical precedent Divisional Courts of the High Court are bound by decisions of the
Supreme Court, previous decisions of the House of Lords and the Court of Appeal.
Decisions of the Divisional Courts are binding on inferior courts.
Horizontal precedent The Divisional Courts are normally bound by their own previous
decisions subject to the exceptions in Young v Bristol Aeroplane. When the courts are
not exercising appellate powers they are in the same position as the High Court.
The High Court The High Court is bound by the Supreme Court, previous decisions
of the House of Lords, the Court of Appeal and Divisional Courts. Its decisions bind all
inferior courts and tribunals. However, the High Court does not regard itself as bound
by its own previous decisions, although they are regarded as highly persuasive.
Crown Court The Crown Court is bound by decisions of the superior courts and its own
decisions are binding on the courts below it in the hierarchy. Decisions on points of
law are persuasive but not binding precedents, although inconsistent decisions can
lead to uncertainty. An obvious example is the issue of marital rape. Before the case of
R v R was finally decided in the House of Lords in 1991, cases dealing with marital rape
had come before the Crown Court sitting in different parts of England. The courts had
reached different decisions. The question for the courts was whether a man could be
criminally liable for raping his wife. The law until this point was based on an historic
principle set out in Hale’s History of the pleas of the Crown (1736) that on marriage a
woman gave irrevocable consent to sexual intercourse with her husband. In the case
of R v R [1991] 1 All ER 747 the Crown Court sitting in Leicester accepted that consent
to intercourse was implied from the fact of marriage. Some three months later in the
case of R v C [1991] 1 All ER 755 the Crown Court sitting in Sheffield declined to follow
that decision and held that a husband could be guilty of raping his wife. In a third case
in the same year R v J [1991] 1 All ER 759 the Crown Court sitting in Teesside refused to
follow R v C.
The case of R v R was appealed to the House of Lords [1991] 2 All ER 481 (www.bailii.org/
uk/cases/UKHL/1991/12.html) where the House of Lords held that it was unlawful for
a man to have sexual intercourse with any woman without her consent. The original
proposition no longer reflected the status of wives in modern society where marriage
was viewed as a partnership of equals. This case is an interesting example of the
judiciary appearing to legislate. (See the discussion of this case in Lord Dyson’s 2014
speech on the power of the judiciary.)
This unusual case is an example of the flexibility that is built into the English system of
binding precedent. Where necessary, the courts will take a pragmatic approach that
achieves a necessary objective without disturbing the general principle.
Self-assessment questions
1. How many exceptions are there to the rule in Young v Bristol Aeroplane?
2. Why did Lord Denning think that the Court of Appeal should be allowed to
overrule its own earlier decisions?
Essential reading
¢¢ Lord Irvine of Lairg ‘A British interpretation of Convention rights’ speech
December 2011
www.ucl.ac.uk/laws/judicial-institute/files/British_Interpretation_of_
Convention_Rights_-_Irvine.pdf
¢¢ Lord Sumption ‘The limits of law’ 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
November 2013
www.supremecourt.uk/docs/speech-131120.pdf
The ECtHR is an international court sitting in Strasbourg and does not fit neatly into
the system of precedent. The relationship between the ECtHR and the House of Lords/
Supreme Court has been the subject of some debate in England in recent years and the
subject of a number of judicial speeches. In several Supreme Court cases the judiciary
have commented on the extent to which the UK Supreme Court is, or is not, bound by
decisions of the ECtHR.
The basic relationship between the English courts and the ECtHR is set out in s.2
of the Human Rights Act (HRA) 1998. Section 2(1) provides that a court or tribunal
determining a question which has arisen in connection with a convention right must
‘take into account’ any judgment, decision, declaration or advisory opinion of the
ECtHR. This suggests that the decisions of the ECtHR are not completely binding on UK
courts. It is clear, however, that there are different views among commentators and
the senior judiciary as to the extent to which English courts are bound to follow the
jurisprudence of the ECtHR. While some feel that to ‘take into account’ requires due
consideration of ECtHR jurisprudence, rather than being bound by it, other judges feel
Legal system and method 3 The doctrine of judicial precedent page 61
that it would require very exceptional circumstances for the English courts to depart
from a ECtHR decision. In a lecture in December 2011 Lord Irvine, the Lord Chancellor
responsible for introducing the HRA 1998, argued that Supreme Court judges have a
‘constitutional duty’ to reject ECtHR decisions they consider flawed and ‘should not
abstain from deciding the case for themselves’.
Some recent cases provide examples of different standpoints. In R (on the application
of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the
Regions [2001] UKHL 23, the House of Lords held that in the absence of some special
circumstances ‘the court should follow any clear and constant jurisprudence of the
European Court of Human Rights’. This decision was followed in Ullah [2004] UKHL 26
in which Lord Bingham said that the duty of national courts is ‘to keep pace with the
Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.
A rather different approach was taken by the UKSC in the leading case of R v Horncastle
[2009] UKSC 14 in which the question was whether the English common law rule on
the use of hearsay evidence in criminal trials breached Article 6 of the ECHR (right to
a fair trial). In this case the court declined to follow a decision of the Grand Chamber
in the case of Al-Khawaja v UK [2009] 49 EHRR 1 which held that Article 6 requires as an
absolute rule that no conviction can be based solely or to a decisive extent on hearsay
evidence. Lord Phillips said that a domestic court would normally apply the principles
established by the ECtHR, but where there was a failure of the Strasbourg court to
appreciate and accommodate ‘our domestic process’, then the UKSC could decline to
follow a ruling of the ECtHR. Interestingly, following the Horncastle decision, the ECtHR
reconsidered the case of Al Khawaja v UK (2011). They made some concession to the
reasoning of the UKSC and accepted that hearsay evidence could be relied upon under
certain circumstances. The ECtHR held that the use of hearsay was not inevitably a
breach of Article 6. This is an example of the way in which there can be a constructive
dialogue between the ECtHR and domestic courts. It suggests that there is some
flexibility in the approach to precedent between the UKSC and ECtHR although the
UKSC continues to hold to the view that it normally follows the ECtHR unless there is a
very strong reason for departing from a Strasbourg decision.
This flexible approach was again articulated in the case of Manchester City Council v
Pinnock [2010] 3 WLR 1441. Lord Neuberger said that:
This court is not bound to follow every decision of the European court. Not only would
it be impractical to do so: it would sometimes be inappropriate, as it would destroy the
ability of the court to engage in the constructive dialogue with the European court which
is of value to the development of Convention law … Of course, we should usually follow a
clear and constant line of decisions by the European court (Ullah) ... But we are not actually
bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord
Mance pointed out in Doherty … section 2 of the 1998 Act requires our courts to ‘take
into account’ European court decisions, not necessarily to follow them. Where, however,
there is a clear and constant line of decisions whose effect is not inconsistent with some
fundamental substantive or procedural aspect of our law, and whose reasoning does not
appear to overlook or misunderstand some argument or point of principle, we consider
that it would be wrong for this court not to follow that line.
More recently, in the controversial case of Chester [2013] UKSC 63 the UK Supreme
Court was faced with a decision of the Grand Chamber of the ECtHR that UK domestic
legislation which provided for an automatic ban on convicted prisoners’ voting in UK
elections was incompatible with Article 3 of Protocol 1 of the ECHR which guarantees ‘free
elections … under conditions which will ensure the free expression of the opinion of the
people in the choice of the legislature’. Prisoners serving a custodial sentence in the UK
do not have the right to vote. This ban was enshrined in s.3 of the Representation of the
People Act 1983 as amended by the Representation of the People Act 1985.
In 2004 the ECtHR gave a ruling in the case of Hirst v UK on the question of whether this
legislation was in breach of the ECHR. Seven judges at the ECtHR ruled that the UK’s ban
on prisoners’ voting breached Article 3 of Protocol 1 of the ECHR. The UK Government
subsequently appealed the decision and in October 2005 the Grand Chamber of the
page 62 University of London International Programmes
ECtHR held, by a majority of 12 to five, that the UK ban on prisoners’ voting rights was
a violation of Article 3 Protocol 1 (right to free elections) – Hirst v UK (No 2) Application
no. 74025/01 [2005] ECHR 681 (www.bailii.org/eu/cases/ECHR/2005/681.html) The
decision in Hirst was followed by Greens v UK and Scoppola v Italy in which the ECtHR
confirmed its decision that a blanket prohibition of this nature is an indiscriminate
restriction on a vitally important right and, as such, incompatible with Article 3 of
Protocol 1. This issue was politically very controversial and the Government undertook
two consultations in order to consider how it might modify legislation to ensure that
the UK was not in breach of the ECHR. The Government has prepared legislation to
modify the automatic ban in the Draft Voting Eligibility (Prisoners) Bill 2012.
When the issue was raised again before the Supreme Court in Chester in 2013 the Court
held that the HRA 1998 requires the Court to ‘take into account’ decisions of the ECtHR,
not necessarily to follow them. This enables the national courts to engage in a
constructive dialogue with the ECtHR. However, the UKSC held that the prohibition on
prisoner voting in the UK had twice been considered by the Grand Chamber of the
ECtHR and each time it was found to be incompatible with the ECHR. Lord Mance held
that in these circumstances:
It would have then to involve some truly fundamental principle of our law or some most
egregious oversight or misunderstanding before it could be appropriate for this Court
to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber
level.
In the same case Lord Sumption seemed to echo Lord Mance’s view saying that:
A decision of the European Court of Human Rights ... is an adjudication by the tribunal
which the United Kingdom has by treaty agreed should give definitive rulings on the
subject. The courts are therefore bound to treat them as the authoritative expositions of
the Convention ...
The case of Chester confirms that the current dominant approach of the UKSC is that it
normally expects to follow the jurisprudence of the ECtHR unless the matter in issue
involves some fundamental principle of English law.
This brief document stated that if re-elected the Conservative Party proposed to break
the formal link between British courts and the ECtHR and that in future Britain’s courts
would no longer be required to take into account rulings from the Court in Strasbourg:
‘The UK Courts, not Strasbourg, will have the final say in interpreting Convention
Rights, as clarified by Parliament.’ They also proposed to change the effect of a
declaration of incompatibility (see Chapter 4) so that such a ruling by the UK Supreme
Court would be advisory only. It is also suggested that the Government might leave the
ECHR if it is not possible to achieve a ‘looser’ relationship with Strasbourg.
Self-assessment questions
1. To what extent is the UK Supreme Court bound by the jurisprudence of the
ECtHR under the provisions of the HRA 1998?
2. How does Lord Irvine’s view of the meaning of s.2 of the HRA 1998 differ from
the view of Lord Slynn as expressed in the Alconbury case and Lord Bingham as
expressed in the Ullah case?
4. What view did Lord Mance and Lord Sumption take in the Chester case to the
question of following the jurisprudence of the ECtHR?
Essential reading
¢¢ McLeod, I. Legal method. (Basingstoke: Palgrave Macmillan, 2013) ninth edition
[ISBN 9781137027689] Chapter 14 ‘Arguments for and against judicial law-making’
(in the Legal system and method study pack).
Further reading
¢¢ Slorach, S. et al., Chapter 5 ‘Case law’.
As we have seen, the principle of stare decisis or binding precedent serves the
objectives of predictability, consistency and fairness within a common law system.
Without binding precedent, there is a risk of conflicting decisions and uncertainty.
On the other hand, too rigid adherence to precedent can lead to rigidity in the
law. The English common law approach to precedent provides a balance between
predictability and flexibility. While most judges see themselves constrained by
binding precedent, there is scope within the rules for the development of common
law principles, for correction of errors and for the making of new law – albeit in a
measured and incremental way (Etherton, 2010; Dyson, 2014). The UK Supreme Court,
while largely free from the constraint of precedent, nonetheless adopts a cautious
approach to the making of new law. The Supreme Court does not have the democratic
legitimacy to introduce major changes to English law and it is mindful of its proper
constitutional position and relationship with the legislature.
The main argument in favour of some degree of judicial law-making (called judicial
‘activism’ in the USA) is that of speed. Courts can rapidly develop or change the law
(by overruling) if it is necessary. Parliamentary processes are lengthy and with a heavy
legislative agenda Parliament may not give priority to dealing with areas of law that
require updating or correction. Thus within the constraints of precedent the judiciary
are able rapidly to correct mistakes or to keep the law up to date.
The principal argument against the judiciary making new law is that of the ‘democratic
deficit’. The judiciary are appointed not elected. Thus in a Parliamentary democracy
under the rule of law, it is not for the judiciary to legislate but for Parliament. In his
speech on law making by the ECtHR Lord Sumption argues that the HRA gives the
judiciary power to make new law in politically controversial areas and that this is
essentially undemocratic. He argues that ‘law made in Europe by unelected judges is
changing the law in the UK in a way that is democratically unaccountable’.
page 64 University of London International Programmes
The case law provides examples of the House of Lords/Supreme Court being willing to
develop or change the law and also refraining from making decisions where there was
a need for Parliament to legislate.
A case in which the House of Lords was prepared to introduce a major change to the
law was that of R v R (Marital Exemption) [1992] 1 AC 599 discussed earlier in this
chapter. The House of Lords justified the abolition of a 250-year-old rule that a man
could not be criminally liable for raping his wife on the ground that it was not creating
a new offence. It was, instead, removing an assumption that was no longer acceptable
in current social conditions (i.e. that on marriage a woman irrevocably consents to
intercourse). As Lord Dyson commented in a speech in March 2014, this was a change
to the law that the judiciary felt confident in making:
This change did not require any difficult policy choices to be made. It was uncontroversial,
widely welcomed and long overdue ... It is and was inconceivable that Parliament
would reverse this decision. Parliament had had plenty of opportunity to legislate for
an amendment of the law. It seems that the political call for change was not sufficiently
compelling. The judges were surely right to step in.
Another case where the House of Lords appeared to create new law was the case of R
v Brown [1993] 2 All ER 75. Here the House held that homosexual sado-masochists who
inflicted harm on others with their consent could be convicted of assault occasioning
actual bodily harm contrary to the Offences Against the Person Act 1861, despite the
fact that this sort of situation had not previously come before the courts.
However, there have been other recent cases where the judiciary have refused to step
in, even though they perceived the argument for a change in the law. An important
example is that concerning the legal ban on voluntary euthanasia in the case of
Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961 (www.bailii.org/ew/cases/
EWCA/Civ/2013/961.html). The appellants, both suffering from permanent and
catastrophic disabilities, wanted to be helped to die at a time of their choosing.
Neither was physically capable of ending their own lives without help and both argued
that as a matter of common law and the ECHR anyone helping them to end their life
should not be subject to criminal consequences. However, the current law is that
those providing such assistance will be committing the offence of assisted suicide
contrary to s.2(1) of the Suicide Act 1961 (‘the 1961 Act’) if they merely assist a person to
take their own life, and murder if they actually terminate life themselves. The case was
heard in the Court of Appeal by the Lord Chief Justice, the Master of the Rolls and Elias
LJ. The Court declined to rule in the appellants’ favour. The Lord Chief Justice made
clear that he felt this was an issue on which the courts should not be legislating.
The short answer must be, and always has been, that the law relating to assisting
suicide cannot be changed by judicial decision. The repeated mantra that, if the law
is to be changed, it must be changed by Parliament, does not demonstrate judicial
abnegation of our responsibilities, but rather highlights fundamental constitutional
principles … The circumstances in which life may be deliberately ended before it has
completed its natural course, and if so in what circumstances, and by whom, raises
profoundly sensitive questions about the nature of our society, and its values and
standards, on which passionate but contradictory opinions are held … For these purposes
Parliament represents the conscience of the nation. Judges, however eminent, do not:
our responsibility is to discover the relevant legal principles, and apply the law as we
find it. We cannot suspend or dispense with primary legislation. In our constitutional
arrangements such powers do not exist.
(paras 154–55)
This case has recently been considered by the Supreme Court in Nicklinson [2014]
UKSC 38. The UKSC unanimously held that the question whether the current law on
assisted suicide is incompatible with Article 8 of the ECHR lies within the UK’s margin
of appreciation. The majority held that the UKSC has the constitutional authority to
make a declaration that the general prohibition in s.2 is incompatible with Article 8.
But four Justices held that the question whether the current law on assisting suicide
Legal system and method 3 The doctrine of judicial precedent page 65
is compatible with Article 8 involves a consideration of issues which Parliament
is inherently better qualified than the courts to assess, and that under present
circumstances the courts should respect Parliament’s assessment.
The case clearly demonstrates differing views among the most senior judiciary about
whether and when to intervene in an area that requires a significant change in the law.
Self-assessment questions
1. In the English common law system is it inevitable that judges will be making
law?
3. Are there areas of law where they are especially cautious about changing the
law?
5. Does Lord Dyson believe that judges should always refrain from creating new
law?
1. The Year Books These were the first available law reports compiled during the 13th
century. Year Book reports were not intended for use by the judges as precedents,
but were probably simply notes compiled by students and junior advocates for use
by advocates.
2. The Private Reports The compilation of Year Books ceased in about 1535 after
which private sets of reports were produced, printed and published under the
name of the law reporter (e.g. Coke’s Reports (Co Rep) which are so well known
that they are sometimes cited merely as ‘reports’ (Rep)). Published between 1600
and 1658.
The private reports are cited by the name of the reporter (usually abbreviated)
and a volume and page number. The date of the report is not part of the reference
but is usually inserted in ordinary round (not square) brackets. Ashford v Thornton
(1818) 1 B&Ald 405 (i.e. volume 1 of Barnewall and Alderson’s Reports at page 405);
Pillans v Van Mierop (1765) 3 Burr 1664 (i.e. the third volume of Burrow’s Reports at
page 1664).
In practice most law libraries have the reports of the private reporters in the
reprinted edition known as ‘the English Reports’ (ER or Eng Rep). These are
published in 176 volumes and contain all the available reports of the private
reporters. With the English Reports is published a reference chart showing in which
volume the reports of any individual reporter are contained
3. The Law Reports This is the current system of published law reports which began
towards the end of the 19th century. In 1865 private reporting ended. A Council was
established to publish reports of decisions of senior courts. The Council was under
professional control with a representative from the Bar and the Law Society. In 1870
it became the Incorporated Council of Law Reporting for England and Wales. The
Council produces the Law Reports, the Weekly Law Reports (WLR), the Industrial
Cases Reports (IC) and the Law Reports Statutes.
The Weekly Law Reports include a report of every decision which will appear in
the Law Reports and others which are not intended to be included later in the Law
Reports. The cases are reported in full. Volume 1 of the Weekly Law Reports contains
cases not intended to be included in the Law Reports. Volumes 2 and 3 of the Weekly
Law Reports contain cases which will eventually be included in the Law Reports.
page 66 University of London International Programmes
3.7 Citation of the Law Reports and the Weekly Law Reports
Prior to 1875
Irving v Askew (1870) LR 5 QB 208
Fifth volume of Reports of cases in the Court of Queen’s Bench at page 208 (the date is
not part of the reference).
1875–90
Symons v Rees (1876) 1 Ex D 416.
Citation by abbreviation of the division of the High Court (e.g. Ch D, QBD or App Cas for
an appeal case). Date still not part of the reference and prefix LR was dropped.
1891
Date made part of the reference and letter D for division dropped. Date now included
in square brackets. Separate volume of Reports for each division of the High Court (QB,
Ch, Fam) and a separate volume for House of Lords and Privy Council cases (AC).
Court of Appeal decisions are reported in the volume for the division of the High Court
from which the appeal came. There is thus nothing in the reference to show that a
case is an appeal case.
The All England Law Reports are commercially published law reports published weekly
and abbreviated as All ER.
4 Statutory interpretation
Contents
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.7 The impact of the Human Rights Act 1998 on statutory interpretation . . 77
Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
uu understand why statutory interpretation presents challenges to the judiciary
uu understand the constitutional responsibility of the judiciary in relation to
statutory interpretation
uu understand the difficulty of determining the ‘legislative intent’ of Parliament
uu explain historic and modern judicial ‘approaches’ to statutory interpretation
uu understand how different approaches may lead to different outcomes
uu appreciate the influence of EU law and the Human Rights Act 1998 on statutory
interpretation.
Essential reading
¢¢ Holland and Webb, Chapters 8 ‘Making sense of statutes’, 9 ‘Interpreting
statutes’ and 10 ‘“Bringing rights home”: legal method and Convention rights’.
¢¢ Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 ALL ER 1132 (HL).
Further reading
¢¢ McLeod, I. Legal method. (Basingstoke: Palgrave Macmillan, 2013) ninth edition
[ISBN 9781137027689] Chapter 18 ‘Plain meanings, mischiefs, purposes and
legislative intentions’.
4.1 Introduction
Once Parliament has passed legislation it is for the judiciary to make sense of the
provisions in statutes – to interpret or construe the meaning of the words used. The
interpretation of statutes is, in fact, a critical function of the judiciary. Despite England
and Wales being a common law jurisdiction, in the modern legal system there is a
large and growing volume of legislation as government seeks greater regulation of
social and economic activity.
As we saw in Chapter 1, the role of the judiciary in relation to the legislature is to ‘give
effect’ to Parliament’s intention. This means that in dealing with statutory provisions
the judiciary must interpret or construe the meaning of words in a statute in a way
that is consistent with what Parliament intended. As Tindal CJ in the Sussex Peerage
Claim (1844) expressed the approach:
The only rule for the construction of Acts of Parliament is that they should be construed
according to the intent of the Parliament which passed the Act.
However, there are two fundamental complexities in this simple statement. First, the
natural limitations of language mean that interpreting the meaning of words can
sometimes be fraught. Words may have several different meanings depending on the
context, and the meaning of words changes over time. Different judges in the same
case may interpret words differently and it is necessary to understand the approach
that the judiciary take to this difficult task.
The second challenge for the judiciary in giving effect to Parliament’s intention is that
it is not always clear precisely what Parliament did intend when they used a particular
word or phrase in an Act of Parliament.
uu Ellipsis – when the draftsperson refrains from using certain words that they regard
as implied automatically.
uu Use of broad terms (wide meaning), for example ‘vehicle’ clearly includes motor
cars, buses – but what else does it include? Also the meaning of broad terms may
change over time, for example does the word ‘family’ include a common-law
spouse?
Statutes themselves, though manifestly the work of Parliament, often receive more than
half their meaning from judicial decisions.
(Lectures on the relation between law and public opinion in England during the nineteenth
century. (1905, 2001 edn) p.486)
page 70 University of London International Programmes
Some of the cases included in this chapter demonstrate clearly the practical impact of
differing judicial interpretations of statutory provisions.
There is a clear conceptual difference between grammatical meaning apart from legal
considerations and the overall meaning taking those considerations into account. While
it may sometimes be difficult to draw in practice, this distinction is basic in statutory
interpretation.
If the words of 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 whether the legislature has
committed an absurdity.
An ancient example of the use of the literal rule is the case of R v Harris (1836) 7 Car &
P 446, 173 ER 198 which involved interpreting an offence to ‘unlawfully and maliciously
stab, cut or wound any person’. The court decided that a defendant who bit off the
end of the victim’s nose had not committed the offence. The court held that the words
in the statute indicated that for the offence to be committed some form of instrument
had to be used.
A more modern case demonstrates how different judges in the same case can
interpret the meaning of a single word differently, thus leading to different outcomes.
The case of R v Maginnis [1987] 1 All ER 907 (HL) concerned the interpretation of s.5(3) of
the Misuse of Drugs Act 1971 which provides that:
It is an offence for a person to have a controlled drug in his possession, whether lawfully or
not, with intent to supply it to another …
The police found a package of cannabis resin in the defendant’s car. The defendant said
that the package did not belong to him, but that it had been left in his car by a friend
for collection later. The defendant was convicted at first instance and appealed against
conviction on the ground that an intention to return the drug to its owner did not
amount to an intention to ‘supply’ the drug within the meaning of the statute. In the
House of Lords the majority, adopting a ‘literal’ approach, held that a person left with
drugs intending to return them did have the necessary intent to ‘supply’. However, a
dissenting judgment was given by Lord Goff. He held that the offence was aimed at
drug pushers. The defendant was not a pusher and should have been charged with a
lesser offence of unlawful possession.
… I do not feel able to say that either the delivery of goods by a depositor to a depositee,
or the redelivery of goods by a depositee to a depositor, can sensibly be described as an
act of supplying goods to another. I certainly cannot conceive of myself using the word
‘supply’ in this context in ordinary speech. In ordinary language the cloakroom attendant,
the left luggage officer, the warehouseman and the shoe mender do not ‘supply’ to their
customers the articles which those customers have left with them.
Legal system and method 4 Statutory interpretation page 71
Another case which led to a difference of view between judges on the interpretation
of the statute is that of R v Brown [1996] 1 All ER 545 (HL). This case concerned s.5(2)(b)
of the Data Protection Act 1984 which provides that:
It is an offence knowingly or recklessly to use personal data other than for the purpose
described in the relevant entry in the register of data users …
A police officer twice used the police national computer to check the registration
numbers of vehicles owned by debtors of clients of his friend’s debt collection
company. There was no evidence that he passed on the data to his friend, merely
that he had accessed the data. A majority of the House of Lords, adopting a literal
approach held that the offence was not committed by a person who merely accesses
information. Data are only ‘used’, and the offence committed if the defendant goes
on to make unauthorised use of it, for example by passing it on to someone else. The
court held that they had reached this conclusion by giving the word ‘use’ its ordinary
meaning. However, the dissenting minority adopting a more ‘purposive’ approach (i.e.
looking behind the words to the intention of the legislation) held that the word ‘use’
should be given a broad construction in order to achieve the purpose of Act, which
was the protection of citizens against invasions of privacy.
... the grammatical and ordinary sense of words is to be adhered to, unless that would lead
to some absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified so as to
avoid the absurdity and inconsistency, but no further.
An example of the use of the rule is the case of Adler v George [1964] 2 QB 7. Under s.3
of the Official Secrets Act 1920, it was an offence to obstruct Her Majesty’s Forces in
the vicinity of a prohibited place. Adler was arrested for obstructing forces within a
prohibited place. He argued that he was not in the vicinity of a prohibited place since
he was actually in a prohibited place (an air base). The court applied the golden rule
to extend the literal wording of the statute to cover the action committed by the
defendant. Had the literal rule had been applied, it would have produced absurdity, since
someone protesting near the base would be committing an offence whereas someone
protesting in the base would not. See also the case of Re Sigsworth [1935] Ch 89.
(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public
place for the purposes of prostitution.
The accused was in a house, tapping on the window to attract the attention of passers-
by. She argued that she was not ‘in the street’. Instead of adopting a literal approach, the
court considered what ‘mischief’ the Act was aimed at. Lord Parker CJ said:
page 72 University of London International Programmes
For my part I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that it was an Act intended to clean up the streets, to enable people to
walk along the streets without being molested by common prostitutes.
Lord Parker found a secondary meaning in the words. It was the ‘solicitation’ which
must take place in the street, not the person who does the soliciting.
This view was somewhat ahead of the interpretive curve and the approach of Denning
LJ was severely criticised when the case was appealed to the House of Lords on the
ground that Lord Denning had gone beyond the proper role of the judge. The concern
is that the further judges move away from the language of the Act, the more likely
they are to be engaging in a legislative or quasi-legislative function. As Lord Simonds
commented in the Magor case in the House of Lords, ‘[Denning LJ’s views are] a naked
usurpation of the legislative function.’
Self-assessment questions
1. Why is it necessary to interpret statutes?
Examples of presumptions
Statutes do not have retrospective effect Statutes are presumed to be prospective
(i.e. to operate only in relation to events which take place after the act comes into
force). This presumption is especially strong in the area of criminal law. An exception
to this presumption is s.58(8) of the Criminal Justice Act 2003 which allows the
prosecution in a criminal case to appeal against acquittal.
Changes to basic rules of common law must be clear If Parliament means to alter
some principle which the common law considers to be important, it must make its
intention to do so clear, or else the common law principle will survive. An example is
the case of Leach v R [1912] AC 305.
Many cases exist on the question of what occupations are ejusdem generis with the list.
Parliament cannot have intended all occupations to be covered by the Act, because it
would have been easier to say, ‘No person whatsoever shall work on a Sunday.’ This is
the justification for the ejusdem generis rule.
For purely practical reasons we do not permit debates in either House to be cited. It
would add greatly to the time and expense involved in preparing cases ... moreover, in a
very large proportion of cases [Hansard] would throw no light on the question before the
court.
Despite the prohibition on the use of Hansard, in the case of Davis v Johnson [1978] 1 All
ER 841 (CA) Lord Denning confessed that he had reached his view on the interpretation
of the relevant statute by reading what had been said in Parliament when the Act was
being debated.
However, in the case of Pepper v Hart [1993] 1 All ER 42, the House of Lords ruled that
having regard to the purposive approach to construction of legislation the courts
had adopted in order to give effect to the true intention of the legislature, the rule
prohibiting courts from referring to parliamentary material as an aid to statutory
construction should be relaxed so as to permit reference to parliamentary materials
where:
1. the legislation was ambiguous or obscure or the literal meaning led to an absurdity
Other materials
The court may look at international treaties, and other Acts of Parliament. Judges also
regularly refer to dictionaries to establish the ordinary meanings of English words,
either at the present day or at the time when the Act was passed.
Self-assessment questions
1. Why might reports of debates in Parliament (Hansard) be useful to judges in
interpreting statutes?
3. Why did Lord Denning look at Hansard in the case of Davis v Johnson?
Essential reading
¢¢ Holland and Webb, Chapters 9 ‘Interpreting statutes’ and 11 ‘European legal
method’.
In Chapter 1 we discussed some of the differences between common law systems and
civil law systems. One of the key differences is in the way that legislation is drafted
and the role of the judiciary in the different systems in giving effect to that legislation.
Within the continental legal tradition there are often different constitutional structures
involving written constitutions and constitutional courts. The substantive law is to be
found in comprehensive written codes and the role of the judiciary in these systems is
‘quasi-legislative’ in interpreting codes that are drafted in broad general language. By
comparison, English statutes tend to be detailed and relatively precise in their language.
Moreover, because judges in states with written constitutions are regarded as guardians
of the constitutions they generally feel relatively free to depart from the wording of
the code to ensure that it accords with constitutional principles. Judges in civil law
jurisdictions are used to ‘filling in gaps’ in the codes or elaborating on the use of general
words. They tend to adopt an approach to interpretation that focuses on the underlying
objectives of provisions rather than seeking the meaning of particular words.
The CJEU draws on a different legal tradition from the common law. Judges within the
continental tradition tend to use what is referred to as the ‘teleological’ approach.
This involves the court attempting to give a legislative provision an interpretation that
fits in with the general scheme of the legislation rather than seeking to establish the
subjective intention of the drafters of the text.
Essential reading
¢¢ Fennelly, N. ‘Legal interpretation at the European Court of Justice’ (1996) 20(3)
Fordham International Law Journal
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1526&context=ilj
As we saw in Chapter 1, s.2(4) of the European Communities Act 1972 provides that
English law should be interpreted and have effect subject to the principle that
European law is supreme. Where an English statute cannot be interpreted in a way that
is consistent with EU law, the inconsistent law should not be applied (R v Secretary of
State for Transport, ex p Factortame (No 2) [1991] 1 All ER 70, HL/ECJ).
The CJEU has shown that in its approach to legislative interpretation, it is more likely
to be influenced by the context and purposes of a legislative provision than its precise
wording. In the case of Van Gend en Loos [1963] the CJEU stated:
The object of all interpretation lies in the true intention of the lawmakers, whether they
be framers of a constitution or a treaty, legislators, or drafters of secondary legislation. Its
pursuit at the Court [CJEU] demands of the common lawyer a readiness to set sail from the
secure anchorage and protected haven of ‘plain words’ and to explore the wider seas of
purpose and context.
page 76 University of London International Programmes
Lord Denning signalled this change in the case of H P Bulmer Ltd v J Bollinger SA [1974]
Ch 401 (CA). The case involved an action which had been brought over use of the word
‘champagne’ in champagne cider and champagne perry. There was a request for the
case to be transferred to the European Court for a ruling as to whether such use of the
word infringed Community regulations. The court refused to make a reference and this
point was then appealed. In the course of refusing the appeal, Lord Denning spoke of
the nature of Community law:
uu All courts must attempt to interpret EC law in the same way and all apply the same
principles.
uu English statutes are drafted quite precisely and the courts have been used to giving
a literal interpretation to the words.
uu The EC Treaty is very different. It lays down general principles and expresses its aims
and purposes. However, it lacks precision and uses words and phrases without
defining what they mean. There are numerous gaps which have to be filled in by
the judges.
uu Given these differences, when English courts are faced with a problem of
interpretation they must follow the European pattern and look for the purpose or
intent rather than examining the words in meticulous detail. They must deduce
from the wording and the spirit of the Treaty the meaning of the Community rules.
If they find a gap they must fill it as best they can.
In a case a few years later, Lord Denning provided further explanations of the
differences between English and European approaches to interpretation. In Buchanan
and Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 2 WLR 107 (CA) Lord Denning
argued that it was necessary to move away from traditional rules of interpretation that
stress the literal meaning of words and adopt the European method (i.e. look for the
design or purpose that lies behind the words). He said that when European judges
come upon a situation which is to their minds within the spirit, but not the letter, of
the legislation, they solve the problem by looking at the design and purpose of the
legislature – at the effect which it sought to achieve. They then interpret the legislation
so as to produce the desired effect. This means that they fill in gaps, quite
unashamedly, without hesitation. They are giving effect to what the legislature
intended, or may be presumed to have intended.
I see nothing wrong in this. Quite the contrary. It is a method of interpretation which I
advocated long ago ...
Lord Denning’s view, while ahead of its time in the 1970s, has largely been accepted by
the English judiciary in interpreting European legislation.
Although some suggest that the approach of the CJEU is completely different from
the English common law approaches to interpretation, it is clear that the more
modern ‘purposive’ approach adopted by English courts has much in common with
the European approach. Moreover, it has been argued that the influence of the EU
has begun to affect the way that judges interpret domestic legislation. It is arguable
that the greater willingness of the English judiciary to adopt a purposive approach,
for example in cases like Pepper v Hart, is a manifestation of greater experience of
interpreting EU legislation.
Self-assessment questions
1. In what ways is the continental approach to the interpretation of legislation
different from that in England?
Essential reading
¢¢ Holland and Webb, Chapters 9 ‘Interpreting statutes’ and 11 ‘European legal
method’.
4.7.1 Background
As discussed in Chapter 1, English common law has provided protection for human
rights since the 12th century, although the approach has been one of negative rather
than positive protection. This is what is referred to as the ‘negative theory of rights’
which says that citizens can do whatever they like unless it is specifically prohibited by
non-retrospective laws which are clear and accessible to the governed. The common
law also constrained the power of government, ensuring that it acted according to law
and not in excess of its powers. An example of protection of human rights prior to the
implementation of the HRA 1998 is the case of R v Lord Chancellor ex p Witham [1998] QB
575. In this case the Lord Chancellor had significantly increased the fees that litigants
were required to pay in order to issue proceedings in the civil courts to have a dispute
decided by a judge. Previously, there had been an exemption for people on low
incomes to ensure that all people would be able to have access to the courts. The new
rules issued by the Lord Chancellor removed this exemption for people suffering
financial hardship and on an action for judicial review brought by Mr Witham the High
Court granted a declaration that the Lord Chancellor had exceeded his statutory
powers, because the effect of the increase would be to exclude many people from
access to the courts. In his decision Laws J said that the right of access to the courts is a
‘constitutional right’ that cannot be displaced except by Parliament:
It seems to me, from all the authorities to which I have referred, that the common law
has clearly given special weight to the citizen’s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In
this whole argument, nothing to my mind has been shown to displace the proposition
that the executive cannot in law abrogate the right of access to justice, unless it is
specifically so permitted by Parliament; and this is the meaning of the constitutional right.
Essential reading
¢¢ Holland and Webb, Chapter 10 ‘“Bringing rights home”: legal method and
Convention rights’.
¢¢ Rights Brought Home: The Human Rights Bill, October 1997 www.gov.uk/
government/uploads/system/uploads/attachment_data/file/263526/rights.pdf
¢¢ Feldman, D. The impact of the Human Rights Act 1998 on English Public Law (2005)
http://resources.law.cam.ac.uk/documents/the_impact_of_the_human_rights_
act_david_feldman.pdf
When the Government introduced the HRA 1998 it intended that both Acts of
Parliament and secondary legislation should be interpreted, so far as possible, to be
compatible with the Convention. Previously, the English courts were merely required
to take the Convention into account in resolving any ambiguity in a legislative
provision. Under the HRA 1998 the English courts must interpret legislation so as to
uphold the Convention rights unless the legislation itself is so clearly incompatible
with the Convention that it is impossible to do so. This ‘rule of construction’ applies to
past as well as to future legislation. To the extent that it affects the meaning of a
page 78 University of London International Programmes
legislative provision, the courts are not bound by previous interpretations. This
approach to interpretation is contained within s.3(1) of the HRA 1998 (known as the
interpretive obligation) which provides that:
Section 3(2) provides that s.3(1) does not affect the validity, continuing operation or
enforcement of any incompatible primary or delegated legislation.
Two strong promoters of the HRA, Lord Lester and Lord Pannick, writing about the
responsibility of the courts under s.3, have said that:
the role of the court is not (as in traditional statutory interpretation) to find the true
meaning of the provision, but to find (if possible) the meaning which best accords with
Convention rights.
If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility.
In a recent case, Re Northern Ireland Human Rights Commission’s Application for Judicial
Review [2015] NIQB 102, the court considered arguments as related to the law on
abortion. As a devolved government and in contrast to the England and Wales, the
Abortion Act 1967 does not extend to Northern Ireland. Abortion falls within the
devolved matter of Criminal Justice and Policing and is only permitted under very
strict guidelines. It is governed under the Offences against the Persons Act 1861.
The applicant Commission applied for a declaration that the law on termination of
pregnancy in Northern Ireland was incompatible with the ECHR, with particular regard
to the criminalisation of abortion in the circumstances of serious malformation of the
foetus, including fatal foetal abnormality, and the termination of pregnancies which
have resulted as the consequence of serious sexual crime, and the failure to provide
exceptions to the law in such circumstances.
Following consideration of the interpretative obligation of s.3 HRA 1998 and the
discussions in Ghaidan (2004), Anderson (2002) and Bellinger (2003), Horner J at [5]
concluded that ‘there is near unanimity among the parties in this judicial review,
and that includes the Commission, that for this court to try and read the impugned
provisions in a Convention-compliant way would be a step too far.’ A declaration of
inompatibility was granted.
The provisions of the HRA 1998 on the interpretation of statutes show that when
Parliament incorporated the ECHR into UK domestic law, it did so in a way that
preserved Parliamentary sovereignty. It was agreed that the courts should not be able
to strike down primary legislation passed by Parliament because that would give the
judiciary a power over legislation which under UK constitutional arrangements they
did not possess and which would not be acceptable.
On this issue, when the Human Rights Bill was introduced to Parliament in 1997 the
Government made clear its intentions:
Legal system and method 4 Statutory interpretation page 79
The Government has considered very carefully whether it would be right for the Bill
to go further, and give to courts in the United Kingdom the power to set aside an Act
of Parliament which they believe is incompatible with the Convention rights … The
Government has reached the conclusion that courts should not have the power to
set aside primary legislation, past or future, on the ground of incompatibility with the
Convention. This conclusion arises from the importance which the Government attaches
to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that
Parliament is competent to make any law on any matter of its choosing and no court
may question the validity of any Act that it passes. In enacting legislation, Parliament
is making decisions about important matters of public policy. The authority to make
those decisions derives from a democratic mandate. Members of Parliament in the
House of Commons possess such a mandate because they are elected, accountable and
representative. To make provision in the Bill for the courts to set aside Acts of Parliament
would confer on the judiciary a general power over the decisions of Parliament which
under our present constitutional arrangements they do not possess, and would be likely
on occasions to draw the judiciary into serious conflict with Parliament. There is no
evidence to suggest that they desire this power, nor that the public wish them to have it.
Certainly, this Government has no mandate for any such change.
uu Reading out allows the court to remove or refuse to enforce provisions which
would otherwise make the legislation incompatible.
[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies
even if there is no ambiguity in the language in the sense of the language being capable
of two different meanings … Section 3 places a duty on the court to strive to find a
possible interpretation compatible with Convention rights. Under ordinary methods of
interpretation a court may depart from the language of the statute to avoid absurd
page 80 University of London International Programmes
consequences: section 3 goes much further … In accordance with the will of Parliament
as reflected in section 3 it will sometimes be necessary to adopt an interpretation which
linguistically may appear strained. The techniques to be used will not only involve the
reading down of express language in a statute but also the implication of provisions. A
declaration of incompatibility is a measure of last resort. It must be avoided unless it is
plainly impossible to do so … In my view section 3 requires the court to subordinate the
niceties of the language of section 41(3)(c), and in particular the touchstone of coincidence,
to broader considerations of relevance judged by logical and common sense criteria of time
and circumstances. After all, it is realistic to proceed on the basis that the legislature would
not, if alerted to the problem, have wished to deny the right to an accused to put forward
a full and complete defence by advancing truly probative material. It is therefore possible
under section 3 to read section 41, and in particular section 41(3)(c) as subject to the implied
provision that evidence or questioning which is required to ensure a fair trial under article
6 of the Convention should not be treated as inadmissible. The result of such a reading
would be that sometimes logically relevant sexual experiences between a complainant and
an accused may be admitted under section 41(3)(c). On the other hand, there will be cases
where previous sexual experience between a complainant and an accused will be irrelevant,
e.g. an isolated episode distant in time and circumstances. Where the line is to be drawn
must be left to the judgment of trial judges. On this basis a declaration of incompatibility
can be avoided. If this approach is adopted, section 41 will have achieved a major part of its
objective but its excessive reach will have been attenuated in accordance with the will of
Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.
In Ghaidan v Mendoza [2004] UKHL 30, [2004] 3 All ER 41 the House of Lords was faced
with the issue of whether a surviving homosexual partner could be the spouse of
a deceased tenant, for the purposes of succeeding to a statutory tenancy under
the provisions of the Rent Act 1977. In Fitzpatrick v Sterling Housing Association Ltd
[2001] 1 AC 27 the House of Lords had recognised the rights of such individuals to
inherit an assured tenancy by including them within the deceased person’s family. But
it declined to allow them to inherit statutory tenancies on the grounds that they could
not be considered to be the wife or husband of the deceased as the Act required.
When the Ghaidan case was heard in the Court of Appeal the court held that the Rent
Act, as it had been construed by the House of Lords in Fitzpatrick, was incompatible
with Article 14 of the ECHR on the grounds of its discriminatory treatment of surviving
same-sex partners. The House of Lords in Ghaidan held that it was possible to ‘read
down’ the 1977 Rent Act under the HRA 1998 s.3 so that it was compliant with the rights
in the Convention. The court decided that the failing could be remedied by reading
the words ‘as his or her wife or husband’ in the Act as meaning ‘as if they were his or
her wife or husband’. Given that there was no objective and reasonable justification for
the discrimination, the relevant passages in the Rent Act 1977 should be construed (in
accordance with the HRA 1998) so as to give equal succession rights to a homosexual
couple living ‘as if’ they were husband and wife.
Essential reading
¢¢ Ministry of Justice ‘Responding to human rights judgment: Report to the Joint
Committee on Human Rights on the Government response to human rights
judgments 2011–12’
www.gov.uk/government/uploads/system/uploads/attachment_data/file/217308/
responding-human-rights-judgments.pdf
Where the courts are unable to interpret domestic legislation in a way that is compatible
with the ECHR, the senior courts may make a declaration that the legislation in question
is not compatible with the rights provided by the ECHR. Since the HRA 1998 came into
force on 2 October 2000, there have been 27 declarations of incompatibility of which
19 have become final (in whole or in part). As previously mentioned, a declaration of
incompatibility neither affects the continuing operation or enforcement of the Act
it relates to, nor binds the parties to the case in which the declaration is made. This
respects the supremacy of Parliament in the making of the law.
Legal system and method 4 Statutory interpretation page 81
Although there is no legal obligation on the Government to take remedial action
following a declaration of incompatibility, or upon Parliament to accept any remedial
measures the Government may propose, such a declaration creates pressure for action
to be taken. In most cases where there has been a declaration of incompatibility, the
Government has brought forward amending legislation by way of a remedial order
under s.10 of the HRA 1998 or through ordinary legislation.
The first declaration of incompatibility was issued in R v (1) Mental Health Review
Tribunal, North & East London Region (2) Secretary of State for Health ex p H in March
2001. In that case, the Court of Appeal held that ss.72 and 73 of the Mental Health Act
1983 were incompatible with Articles 5(1) and (4) of the ECHR because they reversed
the normal burden of proof, by requiring a detained person to show that they should
not be detained rather than the authorities to show that they should be detained.
The legislation was amended by the Mental Health Act 1983 (Remedial) Order 2001 (SI
2001/3712), which came into force on 26 November 2001.
The leading case of A v Secretary of State for the Home Department [2004] UKHL 56
(discussed in detail in Chapter 5) concerned the detention under the Anti-terrorism,
Crime and Security Act 2001 of foreign nationals who had been certified by the
Secretary of State as suspected international terrorists, and who could not be
deported without breaching Article 3. They were detained without charge or trial
in accordance with a derogation from Article 5(1) provided by the HRA 1998. The
Derogation Order was quashed because it was not a proportionate means of achieving
the aim sought and could not therefore fall within Article 15. Section 23 of the Anti-
terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and
14, as it was disproportionate and permitted the detention of suspected international
terrorists in a way that discriminated on the ground of nationality or immigration
status. The provisions were repealed by the Prevention of Terrorism Act 2005, which
put in place a new regime of control orders; it came into force on 11 March 2005.
Essential reading
¢¢ Kavanagh, A. ‘The elusive divide between interpretation and legislation under
the Human Rights Act 1998’ (2004) 24(2) Oxford J Legal Studies 259–85 (available
in LexisNexis through the Online Library).
It appears from the decided cases that the courts will strain to achieve compatibility
with the ECHR using s.3 of the HRA 1998. There is, however, a fine line between
straining to achieve compatibility and crossing the line between interpretation and
legislation. It is arguable that in reading down, in and out, the judiciary are taken very
close to that line. While it is now commonly accepted that the judiciary are involved in
a limited law-making function in operating the doctrine of precedent and developing
common law principles, there is, perhaps, another question about the extent to which
they are involved in law-making when interpreting statutes. As Kavanagh (2004)
argues, interpretation is regarded as an activity that goes beyond the mechanical task
of discovering and then declaring legal meaning. It is a limited, but important, form of
law-making.
page 82 University of London International Programmes
Self-assessment questions
1. What is the effect of s.3 of the HRA 1998 on the approach of English judges to the
interpretation of English law?
4. What is the effect of a declaration of incompatibility under s.4 of the HRA 1998
on the immediate case and on the legislation?
2. How does the Human Rights Act 1998 affect these approaches to the interpretation
of statutes?
Describe the approach taken by the judiciary to s.3 and s.4 using examples.