AS Level Law (9084): English Legal System

Chapter 1.1: Principles and Sources of English Law

Welcome to the foundation of your Law course! This chapter is crucial because it answers the fundamental questions: What is English Law? Where does it come from? And how is it made and understood? Think of this chapter as learning the rules and tools before you start building. Master these principles, and the rest of the course (like Contract or Criminal Law) will make much more sense!

1.1.1 The English Legal System and its Context

To understand the law of England and Wales, we first need to see how it compares globally and what core values underpin it.

A. Legal Systems Around the World

Legal systems primarily fall into two categories:

  • Civil Law (Codified): This system relies on a detailed, comprehensive set of written rules or codes. Judges primarily apply the code; they do not create law. (Think of a detailed instruction manual.) Most of Europe uses this.
  • Common Law: This system, used in England and Wales, relies heavily on judicial decisions (precedents). Judges interpret laws and, in doing so, create law. Statutes (Acts of Parliament) exist, but case law is vital.
  • Other Systems:
    Customary Law: Based on long-established practices.
    Religious Law: Based on religious texts (e.g., Sharia Law).
    Mixed Legal Systems: A combination of two or more systems (e.g., Scotland).

B. Adversarial vs. Inquisitorial Systems

This explains how court cases are run:

  • Adversarial System (Used in England and Wales):
    • Two opposing sides (the prosecution/claimant and the defence/defendant) battle it out.
    • The judge acts as a neutral referee, ensuring fair play.
    • The judge or jury decides who wins based on the evidence presented by the parties.
    • Analogy: A boxing match, with the judge ensuring both fighters follow the rules.
  • Inquisitorial System (Common in Civil Law countries):
    • The judge (or panel of judges) plays an active role in investigating the case, questioning witnesses, and gathering evidence.
    • It is more about finding the truth than a 'battle' between two parties.

C. Key Principles of Law

1. The Rule of Law

The Rule of Law is a fundamental principle in English law, often associated with A.V. Dicey. It means everyone, including the government, is subject to and accountable under the law.

  • No one is above the law: Everyone is equal before the law.
  • Law must be predictable: People must be able to plan their lives knowing what the legal rules are.
  • Decisions must be made according to law: Discretion should be limited.

2. Civil Law vs. Criminal Law

This is a crucial distinction that students sometimes confuse. Focus on the purpose and the parties involved.

  • Criminal Law: Deals with actions that are seen as damaging to society.
    • Purpose: Punishment and deterrence.
    • Parties: The State (Crown Prosecution Service) vs. the Defendant.
    • Outcome: Guilty or Not Guilty.
    • Burden of Proof: The prosecution must prove guilt beyond reasonable doubt.
  • Civil Law: Deals with disputes between individuals or organisations.
    • Purpose: Compensation (remedies) for the injured party.
    • Parties: Claimant vs. Defendant.
    • Outcome: Liable or Not Liable.
    • Burden of Proof: The claimant must prove liability on the balance of probabilities.

Did you know? The same action can lead to both civil and criminal cases (e.g., dangerous driving leading to criminal prosecution, and a civil claim for negligence for injuries caused).

3. Law, Morality, and Justice

  • Morality: A set of beliefs, values, and principles about what is right and wrong.
  • Relationship with Law: Law often reflects society's core morals (e.g., murder is illegal because it is morally wrong). However, law can also enforce morally neutral rules (e.g., driving on the left). Law changes as morality changes (e.g., laws on same-sex marriage).
  • Justice: Fairness, equality, and the proper administration of law. While law aims for justice, sometimes legal outcomes feel unjust.

4. Importance of Fault

In both civil and criminal law, the concept of fault determines liability:

  • Criminal Law: Requires Actus Reus (the guilty act) and Mens Rea (the guilty mind/fault). Without fault, there is usually no crime (except for strict liability offences).
  • Civil Law: Requires fault, often in the form of negligence (failure to take reasonable care) or intention (as in battery).

Key Takeaway (1.1.1)

The English system is a Common Law system, which operates adversarially, upheld by the Rule of Law, and separates societal wrongs (Criminal Law) from private disputes (Civil Law), generally requiring a degree of fault.

1.1.2 Parliamentary Law Making (Legislation)

Parliament is the most important source of new law in England and Wales. Laws made by Parliament are called Statutes or Acts of Parliament.

A. Parliamentary Supremacy

Parliamentary Supremacy means that Parliament has the ultimate authority to make or unmake any law, and no court can question the validity of an Act of Parliament (A.V. Dicey). This makes Acts of Parliament the highest source of law.

B. The Legislative Process: How a Bill Becomes an Act

A proposed law is called a Bill. It must pass through several stages in both Houses of Parliament before becoming law.

Step 1: Consultation

  • Green Paper: A tentative consultation document seeking feedback on policy proposals.
  • White Paper: A firm statement of government policy, outlining exactly what the Bill intends to achieve.

Step 2: Parliamentary Stages

  1. First Reading: The Bill’s title is formally announced. No debate or vote takes place.
  2. Second Reading: The main principles and aims of the Bill are debated in the chamber (e.g., the House of Commons). A vote is taken.
  3. Committee Stage: A smaller, specialized committee (often Public Bill Committees) scrutinizes the Bill clause by clause and suggests amendments.
  4. Report Stage: The Committee reports back to the full House, which debates and votes on the amendments.
  5. Third Reading: A final review of the Bill (usually a formality).

Step 3: The Lords Stage

  • The Bill goes through the same readings and committee stage in the House of Lords.
  • The Lords can suggest amendments, which are sent back to the Commons for approval ('ping-pong').
  • Crucially, the Lords cannot stop a Bill passed by the Commons, only delay it (due to the Parliament Acts).

Step 4: Royal Assent

  • The Monarch formally approves the Bill, and it officially becomes an Act of Parliament (a Statute). This is usually a formality.

C. Influences on Parliament

Parliament doesn't make laws in a vacuum. It is heavily influenced by:

  • Political Pressure: Manifesto commitments from the ruling party.
  • Public Opinion: Large-scale events or public outcry (often via media coverage).
  • Pressure Groups: Organisations lobbying for specific causes (e.g., environmental groups, industry bodies).
  • Media: Newspapers, TV, and social media can shape public opinion, forcing Parliament to address certain issues quickly.

D. The Law Commission

The Law Commission is a permanent, independent body established by the Law Commissions Act 1965.

  • Role: To keep the law of England and Wales under review and recommend reform where the law is complex, unfair, or outdated.
  • Process: They research, consult experts, and produce reports that recommend new legislation.
  • Composition: A Chair and four Commissioners (all experienced lawyers, judges, or academics).

Don't worry if the process seems tricky at first! Remember the flow: Draft (Green/White) → Commons → Lords → King/Queen. The key detail for the exam is knowing what happens at the Committee Stage (detailed scrutiny).

Key Takeaway (1.1.2)

Parliamentary law is the supreme source. Bills follow a set path through Parliament (readings, committees) before Royal Assent. The Law Commission provides essential, non-political recommendations for reform.

1.1.3 Delegated Legislation (DL)

Delegated legislation is law made by a body other than Parliament, but with the authority given to them by an Act of Parliament (the ‘Parent Act’).

A. Types of Delegated Legislation

  1. Orders in Council: Made by the Privy Council (senior politicians) in the name of the Monarch. Used for emergencies (e.g., shifting ministerial responsibility) or giving effect to European directives.
  2. Statutory Instruments (SIs): The most common form. Made by government ministers. These add fine, technical detail to Acts of Parliament (e.g., specifying the exact date an Act comes into force or setting the specific levels of fines).
  3. Bylaws: Made by local authorities or public corporations (e.g., County Councils setting parking restrictions, or Rail Companies regulating conduct on trains).

Legislative and Regulatory Reform Act 2006 (LRRA 2006)

This Act simplifies the process of making Statutory Instruments and gives Ministers wider power to amend existing Acts of Parliament, aiming to remove burdens and modernize the law quickly.

B. Controls Over Delegated Legislation

DL is necessary because Parliament lacks time and expertise for detail, but it risks democratic accountability. Therefore, strict controls are needed.

1. Parliamentary Controls

  • Pre-Drafting Consultation: Ministers are expected to consult relevant experts or affected parties before drafting DL.
  • Affirmative Resolution: The DL must be actively approved by Parliament within 28 or 40 days before it can become law. (Used for important, controversial DL).
  • Negative Resolution: The DL becomes law automatically unless either House votes to reject it within 40 days. (Most common procedure).
  • Scrutiny Committees: The Joint Committee on Statutory Instruments reviews all SIs to ensure they comply with the Parent Act, but they cannot question the policy merits.

2. Court Controls (Judicial Review)

Individuals affected by DL can challenge its validity in court via judicial review. The court determines if the DL is ultra vires (Latin for 'beyond powers').

  • Locus Standi: The claimant must have sufficient interest in the matter to bring a claim.
  • Procedural Ultra Vires: The body failed to follow the correct procedure laid out in the Parent Act (e.g., failing to consult when consultation was mandatory). (Case Example: Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms (1972) - the Minister failed to consult the relevant body.)
  • Substantive Ultra Vires: The content of the DL goes beyond the powers granted by the Parent Act.
  • Unreasonableness: The DL is so unreasonable that no reasonable body would have made it (often called 'Wednesbury unreasonableness'). (Case Example: Associated Provincial Picture Houses v Wednesbury Corporation (1948)).

Key Takeaway (1.1.3)

DL (Orders in Council, SIs, Bylaws) saves Parliament time, but must be controlled. Controls are exerted by Parliament (resolutions, scrutiny) and the Courts (Judicial Review, checking for ultra vires).

1.1.4 Statutory Interpretation (SI)

Statutory Interpretation is the process by which judges give meaning to the words used in Acts of Parliament. This is necessary because Acts can be badly drafted, complex, or the language may be ambiguous.

A. The Four Common Law Rules of Interpretation

  1. Literal Rule:
    • Principle: Judges must use the plain, ordinary, dictionary meaning of the words, even if the result is unfair or absurd.
    • Advantage: Respects Parliamentary supremacy.
    • Disadvantage: Can lead to injustice. (Case Example: Fisher v Bell (1961) – displaying a flick-knife was ruled not to be ‘offering for sale’ under the literal meaning.)
  2. Golden Rule:
    • Principle: A modification of the Literal Rule. If the literal interpretation leads to an absurd or repugnant result, the judge can choose a different meaning to avoid that absurdity.
    • Advantage: Prevents injustice while respecting the words used.
    • Disadvantage: Allows judges to interfere slightly with Parliament’s intentions. (Case Example: Re Sigsworth (1935) – a murderer could not inherit his victim’s property, despite the literal wording of the Act.)
  3. Mischief Rule:
    • Principle: Judges look back at the law before the Act was passed to identify the ‘mischief’ (the problem/defect) that Parliament intended to remedy. The Act is then interpreted to suppress that mischief.
    • Advantage: Highly effective in giving effect to Parliament's true intent.
    • Disadvantage: Requires looking outside the Act itself. (Case Example: Smith v Hughes (1960) – prostitution legislation applied to women tapping on windows, as the 'mischief' was soliciting in public.)
  4. Purposive Approach:
    • Principle: The modern, preferred approach. Judges look at the overall general purpose of the Act, not just specific words. This is a broader version of the Mischief Rule.
    • Used especially when interpreting EU law or law affected by human rights.

B. Rules of Language (Latin Maxims)

Judges use these tools when interpreting ambiguous lists of words:

  • Ejusdem Generis (Of the same kind): Where a list of specific words is followed by general words, the general words are limited to the same kind as the specific words. (Example: If an Act bans "cats, dogs, and other animals," "other animals" would mean other domestic pets, not lions or whales.)
  • Expressio Unius Exclusio Alterius (The express mention of one excludes others): If specific items are listed without general words, it is assumed that Parliament intended only those items to be covered. (Example: If an Act refers only to "cars and motorcycles," it intentionally excludes bicycles.)
  • Noscitur a Sociis (A word is known by the company it keeps): The meaning of a word is clarified by the words surrounding it in the statute.

C. Aids to Interpretation

  • Intrinsic Aids (Inside the Act): Preamble, long and short titles, headings, schedules, and marginal notes.
  • Extrinsic Aids (Outside the Act):
    • Hansard: Official records of Parliamentary debates (Judges can use this to discover Parliament’s intent, following *Pepper v Hart*).
    • Previous Acts on the same topic, earlier case law, dictionaries of the time, and reports of law reform bodies (like the Law Commission).
    • International Treaties.

D. Impact of Modern Legislation

The Human Rights Act 1998 (HRA 1998) requires judges to interpret all legislation, as far as possible, in a way that is compatible with the European Convention on Human Rights (ECHR). This strongly pushes judges towards the Purposive Approach.

Key Takeaway (1.1.4)

Judges use four main rules (Literal, Golden, Mischief, Purposive) and Latin maxims to interpret statutes. Modern approaches, driven by the HRA 1998, favour finding the underlying purpose rather than strict literal meaning.

1.1.5 Judicial Precedent (Case Law)

The third major source of law is case law, made by judges, known as judicial precedent.

A. The Doctrine of Judicial Precedent (*Stare Decisis*)

The doctrine is based on the principle of Stare Decisis (To stand by things decided). This means that once a point of law has been decided in a case, it must be followed in future cases where the material facts are the same. This promotes certainty, fairness, and predictability.

B. Structure of a Judgment

A judicial decision contains two main parts:

  1. Ratio Decidendi (The reason for deciding): This is the binding part of the judgment—the statement of law applied to the material facts. Future courts must follow this.
  2. Obiter Dicta (Other things said): Everything else. This includes hypothetical statements, general comments on the law, or statements of principle not directly relevant to the decision. This is not binding but can be persuasive.

Law Reporting: Case judgments are recorded and published in law reports, making the precedents easily accessible to judges and lawyers.

C. Types of Precedent

  • Binding Precedent: Must be followed by future courts. This is the ratio decidendi set by a court superior or equal to the court hearing the current case.
  • Original Precedent: Created when the facts of a case are completely new and no existing law covers them. The judge must create a new rule, which then becomes a binding precedent for lower courts.
  • Persuasive Precedent: A precedent that a judge is not required to follow but may be persuaded to, due to its importance or logic (e.g., *obiter dicta* statements, decisions from lower courts, or decisions from courts in other Commonwealth countries).

D. The Hierarchy of the Courts

The general rule is that higher courts bind lower courts.

  1. Supreme Court (SC): The highest court. Binds all lower courts.
  2. Court of Appeal (CA): Binds all courts below it.
  3. High Court (HC): Binds courts below it (County and Magistrates’). High Court judges are generally bound by other HC decisions, though there are exceptions.

Supreme Court and the Practice Statement (1966)

Before 1966, the House of Lords (predecessor to the SC) was bound by its own previous decisions. The 1966 Practice Statement allowed the House of Lords (and now the SC) to depart from its own previous decisions when it appears right to do so. This promotes flexibility, allowing the law to adapt to social change, though it is used rarely to maintain certainty.

The Court of Appeal (CA) and *Young v Bristol Aeroplane Co (1944)*

The CA is generally bound by its own previous decisions, providing certainty. However, there are three key exceptions where the CA can ignore (or circumvent) its own past rulings:

  1. Where there are two conflicting decisions of the CA, it can choose which one to follow.
  2. Where a previous decision of the CA has been overruled (either expressly or implicitly) by the Supreme Court.
  3. Where a previous decision of the CA was made per incuriam (through carelessness or mistake), meaning a relevant statute or precedent was not considered.

E. Avoidance Techniques

Judges have techniques to avoid following an unwanted precedent:

  • Overruling: A higher court declares a legal rule established by an earlier case in a lower court is wrong. (E.g., SC overrules a CA decision). This changes the law for the future.
  • Reversing: A higher court in the same case overturns the decision of a lower court on appeal (e.g., the CA disagrees with the High Court verdict in the same case). This changes the decision for the parties involved.
  • Distinguishing: The judge finds that the material facts of the current case are sufficiently different from the facts of the binding precedent, allowing the court to ignore the precedent and create a new rule. This is the most common and powerful tool for judicial law-making.

Key Takeaway (1.1.5)

Precedent operates through stare decisis, making the *ratio decidendi* of superior courts binding. While the hierarchy is rigid, the Supreme Court can depart from its own rulings (Practice Statement), and all courts use distinguishing to allow the law to evolve without waiting for Parliament.

Quick Review: Sources of English Law

Legislative Source: Parliament (Statutes/Acts). Highest source (Supremacy).
Delegated Source: Ministers/Local Authorities (Statutory Instruments, Bylaws). Controlled by Courts (*ultra vires*).
Judicial Source: Courts (Precedent/Case Law). Requires application of stare decisis and identifying the ratio decidendi.