GDL Law Notes GDL English Legal System Notes
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English Legal System Notes
Case law
Judicial precedent
In deciding a case, a judge must follow any decision that has been made by a higher court in a case with similar facts.
Judges are bound only by the part of the judgment that forms the legal principle that was the basis of the earlier decision, known as the ratio decidendi.
The rest of the judgment is known as obiter dicta and is not binding.
The hierarchy of the courts
The Court of Justice of the European Union is the highest authority on European law, in other matters the Supreme Court is the highest court in the UK.
Under the 1966 Practice Direction, the Supreme Court is not bound by its previous decisions.
How do judges really decide cases?
According to the traditional declaratory theory laid down by William Blackstone, judges do not make law but merely discover and declare the law that has always been.
Ronald Dworkin also accepts that the judges have no real discretion in making case law, but he bases this view on his concept that law is a seamless web of principles.
Very different views have been put forward by other academics.
Critical theorists argue that judicial decisions are actually influenced by social, political and personal factors and that the doctrine of judicial precedent is merely used to legitimate the judges’ decisions.
Griffith also thinks that judges are influenced by their personal background.
Waldron accepts that judges make political choices but sees no fundamental problem with this.
When should judges make law?
There is no doubt that on occasion judges make law.
There is some debate as to when judges ought to make law.
When judges make law they can adapt it to social change, but Francis Bennion has highlighted the danger that if the courts are too willing to make law, they undermine the position of Parliament.
Advantages of binding precedent, it provides:
certainty;
detailed practical rules;
a free market in legal ideas; and
flexibility.
Disadvantages of binding precedent, its:
complexity and volume;
rigidity;
illogical distinctions;
unpredictability;
dependence on chance;
retrospective effect; and
undemocratic character.
Statute law
Statute law introduction Statutes are made by Parliament, which consists of the House of Commons, the House of Lords and the Monarch.
House of commons
The House of Commons is the democratically elected chamber of Parliament.
House of lords
Following the House of Lords Act 1999, membership of the House of Lords is currently undergoing a major reform to remove the role of the hereditary peers.
The Government is considering removing the remaining 92 hereditary peers.
An independent Appointments Commission selects some non-party members for the upper House and vets party appointments.
Making an act of parliament
All statutes begin as a Bill.
There are three types of Bill:
Public Bills
Public Bills deal with matters affecting the public generally and are usually introduced by a Government minister
Public Bills apply throughout England and Wales.
Most Bills are public and are introduced and supported by the Government.
Private Members’ Bills
A Private Members' Bill deals with matters affecting the public generally but is introduced by a Member of Parliament who is not a minister.
Private Members' Bills are a type of Public Bill and should not be confused with Private Bills.
Private Bills.
A Private Bill deals with issues which affect only a very small number of people.
For example, a Private Bill could deal with a matter affecting a single local authority. Private Bills are promoted by the group concerned.
The legislative process usually starts in the House of Commons and proceeds as follows.
First reading
Second reading
Committee stage – bill referred to a committee of the commons.
Report stage – committee reports back to the commons
Third reading
House of Lords
Royal Assent.
Role of the House of lords
The Parliament Acts of 1911 and 1949 lay down special procedures by which proposed legislation can go for Royal Assent without the approval of the House of Lords after specified periods of time.
These procedures are only rarely used, because the House of Lords usually drops objections that are resisted by the Commons, though their use has increased in recent years.
Statutory interpretation
Parliamentary intention
In interpreting statutes the courts are looking for the intention of Parliament, but this intention is frequently difficult to find.
Rules of statutory interpretation
There are four approaches to statutory interpretation:
The literal rule;
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
The golden rule;
a court may depart from the ordinary meaning where that would lead to absurdity
The mischief rule; and
What was the common law before the making of the Act; What was the mischief and defect for which the common law did not provide; What remedy Parliament resolved and appointed to cure the disease; The true reason of the remedy
The purposive approach.
The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language
Human rights act 1998
Under s. 3 of the 1998 Act the courts are required to read legislation in a way that is compatible with Convention rights.
Interpreting European legislation
Under s. 2(4) of the European Communities Act 1972, all parliamentary legislation must be construed in accordance with European law.
Internal aids to statutory interpretation
Internal aids consist of the statute itself, explanatory notes (post-1999) and rules of language.
External aids to statutory interpretation. These include:
Dictionaries and textbooks;
Reports that...
Buy the full version of these notes or essay plans and more in our GDL English Legal System Notes.
A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year....
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