Public law
The English legal system
The doctrine of binding precedent - ‘stare decisis’
- Basic rule = superior courts (down to the High Court level) bind lower courts and ‘themselves’ in relation to
ratio (the legal principle applied to material facts)
- Note that special rules apply to prevent law from ossifying (freezing in time):
Court of appeal can depart from its own decisions (Young v Bristol Aeroplane) if: The CA came to previously
conflicting decisions, if it has been overruled by the HL / UKSC in the interim or if the CA’s previous decision
was made ‘per incuriam’ (flawed in some way... maybe the old court’s decision was not aware of some
statutory provision or caselaw that could have impacted the decision)
UKSC can depart (1966 Practice Statement) - but danger of disturbing rules retrospectively in areas of law
with significant commercial applications (e.g. contract, land) - need for certainty and clarity in criminal law.
Statutory law:
Primary legislation: i.e. an Act of Parliament
- Superior status to common law – can override common law
- Cannot be invalidated by the courts – the doctrine of parliamentary sovereignty
- They have short, basic titles e.g. ‘The Housing Act’, and a long title that outlines the purpose. Divided into
headings (thematic), and into sections and schedules.
Secondary (can be called delegated) legislation:
- This is made by the executive – on the basis of an authority given to it by parliament in a ‘Parent act’
- Usually takes the form of a statutory instrument or regulation. At a local level, by-laws can be made in this
manner.
- It is ‘quashable’ if a court deems that it falls outside this authority (ultra vires) given to the minister in the
parent act.
Statutory interpretation:
Main rules / approaches
- Literal – ordinary, plain and natural meaning; use of extrinsic aids such as the dictionary.
- Golden – interpreting a word in a way to avoid unnatural or absurd outcomes if it was read literally.
- Mischief – archaic – now subsumed with:
- Purposive – to achieve the underlying purpose of the legislation; can involve intrinsic aids, for example the
long title of an Act.
Linguistic presumptions:
- Closed list – only things within the list in the statute are considered Expressio Unius
- Non-exhaustive list – the same kind of objects/items can be interpreted to be part of the list. Ejusdem
generis
- Word is known by the company it keeps – look to the context of the statute to understand the meaning of
the words. Noscitur a sociis
Court structure: The senior courts (SCA 1981)
- Supreme Court (UKSC) - pre-Oct 2009 this was the House of Lords (Appellate Committee)
- Court of Appeal – Civil and Criminal divisions
- High Court (Civil) - 3 divisions and newer specialist courts
o King’s Bench
o Chancery
o Family
, - Crown court (Criminal) - Same level as High Court, but just the criminal side.
Statutory judicial bodies and tribunals:
Tribunals = specialist judicial bodies dealing with administrative and regulatory cases. They do not have any criminal
jurisdiction. There are two tribunal levels:
- The upper tribunal
o Has four chambers – these hear appeals from the first tier tribunals.
- The first tier tribunal
o Decisions in this tribunal can be appealed and go to the upper tribunal.
o Has 7 ‘chambers’ which allow citizens to appeal against decisions made by government departments
or agencies.
Rights of Audience:
Solicitors – can carry out advocacy in the Magistrates court; County Court and the ‘First-Tier’ Tribunals. Not generally
authorised to carry out advocacy in the higher courts, i.e. the senior courts and high court (Civil). If they wish to do
this, they need to obtain their higher rights of audience (pass exams and undertake training in advocacy).
Equity:
- Based on what is fair, avoiding unconscionability.
o e.g., the law of trusts arose out of the crusades when land owners would transfer legal title to a
friend to manage whilst they were away. Where the new owners refused to do this and used for
their own benefit, the courts stepped in to ensure they kept to the terms of the transfer.
- Equitable remedies remain discretionary. However, it remains true that where there is a conflict of common
law and equity, equity will prevail.
- As equity is discretionary (does not have to be imposed at all), and common law remedies, such as damages
are a right, where common law remedies (such as damages) would be adequate then equity will not step in.
Equitable remedies:
- Specific performance
o Compels a party to perform something they have promised to do under a contractual agreement.
This is available for breach of contract.
o Generally, available only where
There is a valid and enforceable contract
Damages would not be an adequate remedy for the claimant.
o NOT AVAILABLE for breach of contract for personal services (i.e. employment) or for the
performance of contractual obligations which would require constant supervision.
- Injunction:
o An order that requires a party to proceedings to do something (mandatory injunction) or to refrain
from doing something (a prohibitory injunction)
Only awarded where damages are not adequate.
Now is on a statutory footing.
- Declaration:
o This is a legally binding statement by the court about:
The legal rights of the parties
The existence of facts
A principle of law.
o Generally sought in conjunction with other remedies.
- Rescission:
o The setting aside of a contract. Available in common law and equity. May be available where a
contract has been concluded as a result of:
Misrepresentation
, Mistake
Duress or undue influence
o Only available where the parties can be put back into their pre-contract position.
- Rectification:
o Corrects a document to reflect the parties’ contractual intention. Only applies for written contracts.
Role of the judiciary:
- They interpret the law in statutes to uphold the rule of law.
- Should not go ‘beyond’ their powers – judicial activism
o This would be when a judge ‘creates’ law that is not enshrined in statute or has precedents to go off
of.
- Opposite of judicial activism – judicial deference
o i.e. judges being steadfast in their inability to create new laws, even when it may be appropriate.
- The common law should ‘keep pace with the times’ i.e. should evolve and as such judges should understand
where the ‘creation’ of new law or where departing from old common law is appropriate – R v R, HL held
that the previous common law principle that a woman automatically consents to sexual intercourse with her
husband was held to not exist.
- Judicial immunity:
o Judges are immune from legal proceedings for actions that would otherwise be tortious (e.g.
defamation) as long as the action is done in a judicial capacity in a court of justice. E.g., they would
not be immune when commenting to the media.
o Judges can be immune from liability in civil actions if the act complained of were done in their
capacity as a judge, in good faith – even is they did something by mistake.
- The ability of the judiciary to scrutinise primary legislation is limited to two exceptions
o Where an act was inconsistent with EU law or is with retained EU law
o If the act is incompatible with the EU convention on Human rights, the court may make a declaration
to that effect under the HRA 1998.
o In contrast, secondary legislation can be regularly scrutinised in the courts. This is JR. JR is not
concerned with the merits of decisions, but whether or not they have been lawfully arrived at.
o Court will generally not trespass into matters of government policy, particularly on national security.
- Ministers can be subject to injunctions, even when acting in an official capacity.
The executive:
- They carry out the residue governmental functions that are left over after you remove the duties of the
judiciary and the legislature.
- Significant degree of overlap between the legislature and the executive.
o Senior gov’t ministers are, by convention, also MPs.
o Parliament, through the enactment of primary legislation, confers power on the gov’t.
- Legislative functions of the executive
o Acts of Parliament (primary legislation) will usually contain provisions giving the executive the power
to make secondary legislation in specific areas.
o The secondary legislation created are ‘statutory instruments’ - the secretary of state will create
further rules on the specific area identified in the ‘parent’ act.
o The power conferred on the SoS will be granted with the caveat of one of three levels of scrutiny:
No scrutiny – the delegated power will receive no scrutiny
Negative instruments – these can become law without a debate or vote. They can be
opposed and in theory rejected by parliament, but not amended.
Affirmative instruments – the most important delegations of power are subject to
affirmative resolution; they cannot come into effect until both Houses have approved a draft
SI in a vote.
The English legal system
The doctrine of binding precedent - ‘stare decisis’
- Basic rule = superior courts (down to the High Court level) bind lower courts and ‘themselves’ in relation to
ratio (the legal principle applied to material facts)
- Note that special rules apply to prevent law from ossifying (freezing in time):
Court of appeal can depart from its own decisions (Young v Bristol Aeroplane) if: The CA came to previously
conflicting decisions, if it has been overruled by the HL / UKSC in the interim or if the CA’s previous decision
was made ‘per incuriam’ (flawed in some way... maybe the old court’s decision was not aware of some
statutory provision or caselaw that could have impacted the decision)
UKSC can depart (1966 Practice Statement) - but danger of disturbing rules retrospectively in areas of law
with significant commercial applications (e.g. contract, land) - need for certainty and clarity in criminal law.
Statutory law:
Primary legislation: i.e. an Act of Parliament
- Superior status to common law – can override common law
- Cannot be invalidated by the courts – the doctrine of parliamentary sovereignty
- They have short, basic titles e.g. ‘The Housing Act’, and a long title that outlines the purpose. Divided into
headings (thematic), and into sections and schedules.
Secondary (can be called delegated) legislation:
- This is made by the executive – on the basis of an authority given to it by parliament in a ‘Parent act’
- Usually takes the form of a statutory instrument or regulation. At a local level, by-laws can be made in this
manner.
- It is ‘quashable’ if a court deems that it falls outside this authority (ultra vires) given to the minister in the
parent act.
Statutory interpretation:
Main rules / approaches
- Literal – ordinary, plain and natural meaning; use of extrinsic aids such as the dictionary.
- Golden – interpreting a word in a way to avoid unnatural or absurd outcomes if it was read literally.
- Mischief – archaic – now subsumed with:
- Purposive – to achieve the underlying purpose of the legislation; can involve intrinsic aids, for example the
long title of an Act.
Linguistic presumptions:
- Closed list – only things within the list in the statute are considered Expressio Unius
- Non-exhaustive list – the same kind of objects/items can be interpreted to be part of the list. Ejusdem
generis
- Word is known by the company it keeps – look to the context of the statute to understand the meaning of
the words. Noscitur a sociis
Court structure: The senior courts (SCA 1981)
- Supreme Court (UKSC) - pre-Oct 2009 this was the House of Lords (Appellate Committee)
- Court of Appeal – Civil and Criminal divisions
- High Court (Civil) - 3 divisions and newer specialist courts
o King’s Bench
o Chancery
o Family
, - Crown court (Criminal) - Same level as High Court, but just the criminal side.
Statutory judicial bodies and tribunals:
Tribunals = specialist judicial bodies dealing with administrative and regulatory cases. They do not have any criminal
jurisdiction. There are two tribunal levels:
- The upper tribunal
o Has four chambers – these hear appeals from the first tier tribunals.
- The first tier tribunal
o Decisions in this tribunal can be appealed and go to the upper tribunal.
o Has 7 ‘chambers’ which allow citizens to appeal against decisions made by government departments
or agencies.
Rights of Audience:
Solicitors – can carry out advocacy in the Magistrates court; County Court and the ‘First-Tier’ Tribunals. Not generally
authorised to carry out advocacy in the higher courts, i.e. the senior courts and high court (Civil). If they wish to do
this, they need to obtain their higher rights of audience (pass exams and undertake training in advocacy).
Equity:
- Based on what is fair, avoiding unconscionability.
o e.g., the law of trusts arose out of the crusades when land owners would transfer legal title to a
friend to manage whilst they were away. Where the new owners refused to do this and used for
their own benefit, the courts stepped in to ensure they kept to the terms of the transfer.
- Equitable remedies remain discretionary. However, it remains true that where there is a conflict of common
law and equity, equity will prevail.
- As equity is discretionary (does not have to be imposed at all), and common law remedies, such as damages
are a right, where common law remedies (such as damages) would be adequate then equity will not step in.
Equitable remedies:
- Specific performance
o Compels a party to perform something they have promised to do under a contractual agreement.
This is available for breach of contract.
o Generally, available only where
There is a valid and enforceable contract
Damages would not be an adequate remedy for the claimant.
o NOT AVAILABLE for breach of contract for personal services (i.e. employment) or for the
performance of contractual obligations which would require constant supervision.
- Injunction:
o An order that requires a party to proceedings to do something (mandatory injunction) or to refrain
from doing something (a prohibitory injunction)
Only awarded where damages are not adequate.
Now is on a statutory footing.
- Declaration:
o This is a legally binding statement by the court about:
The legal rights of the parties
The existence of facts
A principle of law.
o Generally sought in conjunction with other remedies.
- Rescission:
o The setting aside of a contract. Available in common law and equity. May be available where a
contract has been concluded as a result of:
Misrepresentation
, Mistake
Duress or undue influence
o Only available where the parties can be put back into their pre-contract position.
- Rectification:
o Corrects a document to reflect the parties’ contractual intention. Only applies for written contracts.
Role of the judiciary:
- They interpret the law in statutes to uphold the rule of law.
- Should not go ‘beyond’ their powers – judicial activism
o This would be when a judge ‘creates’ law that is not enshrined in statute or has precedents to go off
of.
- Opposite of judicial activism – judicial deference
o i.e. judges being steadfast in their inability to create new laws, even when it may be appropriate.
- The common law should ‘keep pace with the times’ i.e. should evolve and as such judges should understand
where the ‘creation’ of new law or where departing from old common law is appropriate – R v R, HL held
that the previous common law principle that a woman automatically consents to sexual intercourse with her
husband was held to not exist.
- Judicial immunity:
o Judges are immune from legal proceedings for actions that would otherwise be tortious (e.g.
defamation) as long as the action is done in a judicial capacity in a court of justice. E.g., they would
not be immune when commenting to the media.
o Judges can be immune from liability in civil actions if the act complained of were done in their
capacity as a judge, in good faith – even is they did something by mistake.
- The ability of the judiciary to scrutinise primary legislation is limited to two exceptions
o Where an act was inconsistent with EU law or is with retained EU law
o If the act is incompatible with the EU convention on Human rights, the court may make a declaration
to that effect under the HRA 1998.
o In contrast, secondary legislation can be regularly scrutinised in the courts. This is JR. JR is not
concerned with the merits of decisions, but whether or not they have been lawfully arrived at.
o Court will generally not trespass into matters of government policy, particularly on national security.
- Ministers can be subject to injunctions, even when acting in an official capacity.
The executive:
- They carry out the residue governmental functions that are left over after you remove the duties of the
judiciary and the legislature.
- Significant degree of overlap between the legislature and the executive.
o Senior gov’t ministers are, by convention, also MPs.
o Parliament, through the enactment of primary legislation, confers power on the gov’t.
- Legislative functions of the executive
o Acts of Parliament (primary legislation) will usually contain provisions giving the executive the power
to make secondary legislation in specific areas.
o The secondary legislation created are ‘statutory instruments’ - the secretary of state will create
further rules on the specific area identified in the ‘parent’ act.
o The power conferred on the SoS will be granted with the caveat of one of three levels of scrutiny:
No scrutiny – the delegated power will receive no scrutiny
Negative instruments – these can become law without a debate or vote. They can be
opposed and in theory rejected by parliament, but not amended.
Affirmative instruments – the most important delegations of power are subject to
affirmative resolution; they cannot come into effect until both Houses have approved a draft
SI in a vote.
