SOURCES OF ENGLISH LAW
.
BOUND BY | DECISIONS BINDING ON
which may arise.
Introduction
Continuing with our study of the English Legal system, we now look at
sources
of law
and how law is interpreted by the courts.
You will discover that the main law making bodies are the
Courts (who develop
the 'common law') and
Parliament which produces statutes and delegated
legislation.
EU law
is another source of law for the UK. Its detail is outside the scope of
your syllabus but you must be aware of it as a source of law.
The rules on
statutory interpretation are used by Judges when deciding cases
that involve statutes which are open to several different meanings.
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Exam guide
You could be asked to describe the operation of case law and precedent or how legislation is passed by
government and interpreted by the courts.
1 Case law and precedent 6/08, 12/08
The first legal source of law, consisting of decisions made in the courts, is
case law, which is judge-made
law based on the underlying principle of consistency. Once a legal principle is decided by an appropriate
court it is a
judicial precedent.
1.1 Common law and equity
The earliest element of the legal system to develop was the
common law, a system incorporating rigid
rules applied by royal courts, often with harsh consequences.
Equity was developed, two or three hundred
years later, as a system of law applied by the Lord Chancellor in situations where justice did not appear to
be done under common law principles.
Common law
is the body of legal rules common to the whole country which is embodied in judicial decisions.
Equity
is a term which applies to a specific set of legal principles which were developed by the Court of
Chancery to supplement (but not replace) the common law. It is based on fair dealings between the
parties. It added to and improved on the common law by introducing the concept of fairness.
The
interaction of equity and common law produced three major changes.
(a)
New rights. Equity recognised and protected rights for which the common law gave no safeguards.
(b)
Better procedure. Equity may be more effective than common law in resolving a disputed matter.
(c)
Better remedies. The standard common law remedy for the successful claimant was the award of
damages for his loss. The Chancellor developed remedies not available in other courts. Equity was
able to make the following orders.
(i) That the defendant must do what he had agreed to do (
specific performance)
(ii) That the defendant must abstain from wrongdoing (
injunction)
(iii) Alteration of a document to reflect the parties' true intentions (
rectification)
(iv) Restoration of the pre-contract status quo (
rescission)
Where equitable rules
conflict with common law rules then equitable rules will prevail: Earl of Oxford's
case 1615
.
Case law
incorporates decisions made by judges under both historic legal systems and the expression
'common law' is often used to describe all case law whatever its historic origin.
A court's decision is
expected to be
consistent with previous decisions and to provide an opinion which can be used to direct
future relationships. This is the basis of the system of
judicial precedent.
FAST FORWARD
1.2 Doctrine of judicial precedent 6/09
The system of judicial precedent is based on a fundamental feature of English law which is that
principles
of English law do not become inoperative through the lapse of time
.
The doctrine of consistency, following precedent, is expressed in the maxim
stare decisis which means
'to stand by a decision'. In any later case to which a legal principle is relevant the same principle should
(subject to certain exceptions) be applied.
A
precedent is a previous court decision which another court is bound to follow by deciding a subsequent
case in the same way.
The doctrine of
judicial precedent means that a judge is bound to apply a decision from an earlier case to
the facts of the case before him, provided, among other conditions, that there is no material difference
between the cases and the previous case created a 'binding' precedent.
Judicial precedent
is based on three elements.
•
Reports. There must be adequate and reliable reports of earlier decisions.
•
Rules. There must be rules for extracting a legal principle from a previous set of facts and applying
it to current facts.
•
Classification. Precedents must be classified into those that are binding and those which are
merely
persuasive.
1.3 Law reports
There are several major series of
law reports bound as annual volumes. In addition, there are several
electronic databases which include cases reported in the paper reports and other cases.
Every case has a title, usually (in a civil case) in the form
Carlill v Carbolic Smoke Ball Co. This denotes
Carlill (claimant) versus Carbolic Smoke Ball Co (defendant). In the event of an appeal, the
claimant's
name is still shown first, whether he is the
appellant or the respondent. All judgements of the superior
courts are given a 'uniform citation' to facilitate publication on the Internet.
Some cases are cited by reference to the
subject matter. Thus case names have included Re Barrow
Haematite Steel Co
(a company case), Re Adams and Kensington Vestry (a trust case) and in shipping
cases the name of the ship, for example,
The Wagon Mound.
Some older cases may be referred to by a
single name, for example Pinnel's case. In a full citation the title
of the case is followed by abbreviated particulars of the volume of the law reports in which the case is
reported, for example,
Best v Samuel Fox & Co Ltd 1952 2 All ER 394 (the report is at p 394 of Vol. 2 of
the All England Reports for 1952).
As regards content a
full law report includes details of the following.
•
Names of the parties • Facts
•
Court in which the case was decided • Names of counsel and their arguments
•
Judge or judges • Verbatim text of the judgement
•
Date of the hearing • Order of the court
•
Points of law established • Whether leave to appeal was granted
•
Earlier cases cited • Solicitors
•
Previous history of the litigation • Reporting barrister
It is only decisions of the
higher courts in important cases (the High Court, the Court of Appeal and theSupreme Court for the United Kingdom) which are included in the general law reports.
Students are often perplexed as to how much they are expected to memorise of cases referred to in
textbooks. By far the most important aspect of a case for examination purposes is what it was about; that
is,
the point of law which it illustrates or establishes. This is the knowledge that you must apply when
answering exam questions.
It is not generally necessary to recite the exact details of the events behind a case. However, knowing the
facts of cases is helpful, not least because exam questions may well include scenarios in which the facts
are based on a well-known case.
The doctrine of
judicial precedent is designed to provide consistency in the law. Four things must be
considered when examining a precedent before it can be applied to a case.
(a) A decision must be based on a
proposition of law before it can be considered as a precedent. It
may
not be a decision on a question of fact.
(b) It must form part of the
ratio decidendi of the case.
(c) The
material facts of each case must be the same or comparable.
(d) The preceding court must have had a
superior (or in some cases, equal) status to the later court,
such that its decisions are binding on the later court.
1.4 Ratio decidendi 6/09
Statements made by judges can be classified as
ratio decidendi or obiter dicta.
A judgement will start with a description of the facts of the case and probably a review of earlier
precedents. The judge will then make
statements of law applicable to the legal problems raised by the
material facts which,
if used as the basis for the decision, are known as the ratio decidendi of the case.
This is the
vital element that binds future judges.
'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, or a necessary part
of his direction to the jury.' (Cross:
Precedent in English Law.)
Statements made by a judge are either classed as
ratio decidendi or obiter dicta. There are two types of
obiter dicta
, (which means something said 'by the way').
•
A judge's statements of legal principle that do not form the basis of the decision.
•
A judge's statements that are not based on the material facts, but on hypothetical facts.
Obiter dicta
are words in a judgement which are said 'by the way'.
They
do not form part of the ratio decidendi and are not binding on future cases but merely persuasive.
It is not always easy to identify the
ratio decidendi. In decisions of appeal courts, where there are three or
even five separate judgements, the members of the court may reach the same conclusion but give
different reasons. Many judges indicate in their speeches which comments are 'ratio' and which are
'obiter'.
1.5 Distinguishing the facts
Although there may arguably be a finite number of
legal principles to consider when deciding a case,
there is an infinite variety of facts which may be presented.
It is necessary to consider how far the facts of the previous and the latest case are similar. If the
differences appear significant the court may
distinguish the earlier case on the facts and thereby avoidfollowing it as a precedent.
1.6 Status of the court
Not every decision made in every court is binding as a judicial precedent
. The court's status has a
significant effect on whether its decisions are binding, persuasive or disregarded.
by Decisions binding onBOUND BY | DECISIONS BINDING ON
Magistrates' Court
• High Court
•
The Court of Appeal
•
Supreme Court
•
European Court of Justice
•
No one
•
Not even itself
County Court
• High Court
•
The Court of Appeal
•
Supreme Court
•
European Court of Justice
•
No one
•
Not even itself
Crown Court
• High Court (QBD)
•
The Court of Appeal
•
Supreme Court
•
European Court of Justice
•
No one
•
However, its decisions are
reported more widely and are
more authoritative
The High Court
consists of divisions:
•
Queen's Bench
•
Chancery
•
Family
•
Judge sitting alone
– The Divisional Court
– The Court of Appeal
– Supreme Court
– European Court of Justice
•
Judge sitting alone
– Magistrates' Court
– County Court
– Crown Court
•
Judges sitting together
– Any Divisional Court
– The Court of Appeal
– Supreme Court
– European Court of Justice
•
Judges sitting together
– Magistrates' Court
– County Court
– Crown Court
– Divisional Courts
The Court of Appeal
• Own decisions
•
Supreme Court (subject to an
exception below)
•
European Court of Justice
•
All inferior English courts
•
Itself (subject to the exception)
Supreme Court for the
United Kingdom
•
Itself (except in exceptional cases)
•
European Court of Justice
•
All English Courts
•
Itself (except in exceptional cases)
The European Court of
Justice
•
No one
•
Not even itself
•
All English Courts
1.7 Court of Appeal exception
In
Young v Bristol Aeroplane Co 1944, it was decided that the civil division of the Court of Appeal is
usually bound by its own decisions and those of what was the House of Lords, and which is now the
Supreme Court for the United Kingdom, unless:
•
Two of its previous decisions conflict, when it must decide which to follow
•
The previous decision conflicts with a subsequent Supreme Court for the United Kingdom decision
•
The previous decision was made with a lack of care (per incuriam)
It is particularly important that you know the position of the Court of Appeal and the Supreme Court for
the United Kingdom in this hierarchy.
Question
Case law
What do you think are the advantages of case law as a source of law?
Answer
The law is decided fairly and
predictably, so that businessmen and individuals can regulate their conduct
by reference to the law. The
risk of mistakes in individual cases is reduced by the use of precedents. Case
law can
adapt to changing circumstances in society, since it arises directly out of the actions of society.
Case law, having been developed in
practical situations, is suitable for use in other practical situations.
1.8 Persuasive precedents 6/09
Apart from binding precedents, reported conclusions of any court may be treated as
persuasive
precedents
. Persuasive precedents may be, but need not be, followed in a later case.
A court of higher status is not only free to disregard the verdict of a court of lower status, it may also
deprive it of authority and expressly
overrule it. Remember that this does not reverse the previous
decision. Overruling a judgement does not affect its outcome.
Where an earlier decision was made by a lower court, the judges can
overrule that earlier verdict if they
disagree with the lower court's statement of the law.
The outcome of the earlier judgement remains the
same, but will not be followed in future
.
If the decision of a lower court is appealed to a higher one, the higher court may
reverse the result if they
feel the lower court has wrongly interpreted the law
. When a decision is reversed through appeal, the
higher court is usually also overruling the lower court's statement of the law
.
Question
Decisions
The following definitions are types of court decision.
Match each of them to the correct term below.
(a) A court higher up in the hierarchy overturns the verdict of a lower court in the same case.
(b) A principle laid down by a lower court is overturned by a higher court in a different, later case.
(c) A judge states that the material facts of the case before him are sufficiently different from those of
an earlier case as to enable the application of a different rule of law.
(1) Distinguishing
(2) Overruling
(3) Reversing
Answer
(a) (3) (b) (2) (c) (1)
Reversing decisions occur when a case is appealed. Overruling occurs when a previous legal precedent is
overturned.
If, in a case before the Supreme Court for the United Kingdom, there is a
dispute about a point of
European Union law
it must be referred to the European Court for a ruling. The European court does not
create or follow precedents as such, and the provisions of EU directives should not be used to interpret UK
legislation.
1.9 Avoidance of a binding precedent
Even if a precedent appears to be binding, there are
a number of grounds on which a court may decline
to follow it
.
(a) It may be able to
distinguish the facts.
(b) It may
declare the ratio decidendi obscure, particularly when a Court of Appeal decision by three
or five judges gives as many reasons for the decision.
(c) It may
declare the previous decision made per incuriam: without taking account of some
essential point of law, such as an important precedent.
(d) It may
declare it to be in conflict with a fundamental principle of law; for example where a court
has failed to apply the doctrine of privity of contract:
Beswick v Beswick 1968.
(e) It may
declare an earlier precedent to be too wide. For example, the duty of care to third parties,
created by
Donoghue v Stevenson 1932, has since been considerably refined.
Question
Binding precedent
Fill in the following table, then check your answer to the table containing the status of the courts above.
Name of court Bound by Binds
Magistrates' Court
County Court
Crown Court
High Court (single judge)
High Court (judges sitting
together)
Court of Appeal
Supreme Court for the United
Kingdom
European Court of Justice
1.10 The advantages and disadvantages of precedent
Many of the strengths of judicial precedent as the cornerstone of English law also indicate some of its
weaknesses.
Factor Advantage Disadvantage
Certainty
The law is decided fairly and predictably
Guidance given to judges and risk of
mistake reduced.
Judges may sometimes be forced to make
illogical distinctions to avoid an unfair
result.
Clarity
Following the reasoning of ratio decidendi
should lead to statements of general legal
principles
Sometimes, judgements may appear to be
inconsistent with each other or legal
principles followed.
Factor Advantage Disadvantage
Flexibility
The system is able to change with
changing circumstances
The system can limit judges' discretion.
Detail
Precedent states how the law applies to
facts and should be flexible enough to
allow for details to be different.
The detail produces a vast body of reports
to take into account.
Judges often distinguish on the facts to
avoid a precedent.
Practicality
Case law is based on experience of actual
cases brought before the courts. This is
an advantage over legislation which can
be found wanting when tested.
Unfair precedents may be created that
allow wrongdoing to be perpetrated.
2 Legislation 6/08, 12/08
The second major source of law is
legislation. This is also known as statute law and may take the form of
Acts of Parliament
or delegated legislation under the Acts.
Statute law is made by
Parliament (or in exercise of law-making powers delegated by Parliament). Until the
United Kingdom entered the European Community (now the EU) in 1973 the UK Parliament was completely
sovereign
.
In recent years however, UK membership of the European Union has restricted the previously unfettered
power of Parliament. There is an
obligation, imposed by the Treaty of Rome, to bring UK law into line
with the Treaty itself and with directives
. Regulations, having the force of law in every member state,
may be made under provisions of the Treaty of Rome.
PER 1 requires you to monitor compliance with relevant legislation, standards and regulations and raise
any concerns with the appropriate person. Therefore you should maintain your awareness of any
legislation identified in the Study Text which affects your role.
2.1 Parliamentary sovereignty
Parliamentary sovereignty
gives rise to a number of consequences. Parliament may
•
Repeal earlier statutes
•
Overrule or modify case law developed in the courts
•
Make new law on subjects which have not been regulated by law before
In practice, Parliament usually follows certain
conventions which limit its freedom.
•
No Parliament can legislate so as to prevent a future Parliament changing the law.
•
Judges have to interpret statute law and they may find a meaning in it which those who promoted
the statute did not intend.
•
The validity of an Act of Parliament cannot be questioned. However, judges may declare an Act to
be
'incompatible' with the European Convention on Human Rights.
Cheney v Conn 1968
The facts:
The claimant objected to his tax assessment under the Finance Act 1964 because some of the
tax collected was used to fund the manufacture of nuclear weapons. He alleged that this was contrary to
the Geneva Conventions Act 1957 and in conflict with international law.
Decision: The 1964 Act gave clear authority to collect the taxes.
2.2 Types of legislation
In addition to making new law and altering existing law, Parliament may make the law clearer by passing a
codifying
statute putting case law on a statutory basis (such as the Sale of Goods Act 1979). It may also
pass
consolidating statutes that incorporate an original statute and its successive amendments into a
single piece of legislation (such as the Employment Rights Act 1996 or the Companies Act 2006).
Legislation can also be
categorised in the following ways:
•
Public Acts; legislation that affects the general public
•
Private Acts; legislation that affects specific individuals and groups
•
Enabling legislation that empowers a specific individual or body to produce the detail required
by a parent Act.
2.3 Parliamentary procedure
A proposal for legislation can be brought by the government, a backbench MP, or a peer. A government
bill may be aired in public in a
Government Green or White Paper. A government bill may be introduced
into either the House of Commons or the House of Lords. When it has passed through one House it must
then go through the same stages in the other House. In each House the successive stages of dealing with
the Bill are as follows.
Stage 1
First reading. Publication and introduction into the agenda. No debate.
Stage 2
Second reading. Debate on the general merits of the Bill. No amendments at this stage.
Stage 3
Committee stage. The Bill is examined by a Standing Committee of about 20 members,
representing the main parties and including some members at least who specialise in the
relevant subject. If the Bill is very important, all or part of the Committee Stage may be
taken by the House as a whole sitting as a committee.
Stage 4
Report stage. The Bill as amended in committee is reported to the full House for approval.
Stage 5
Third reading. This is the final approval stage.
When it has passed through both Houses it is submitted for the
Royal Assent which is given on the
Queen's behalf by a committee of the Lord Chancellor and two other peers. It then becomes an Act of
Parliament (statute) but it does not come into operation until a commencement date is notified by
statutory instrument.
2.4 Advantages and disadvantages of statute law
Statute law
has the following advantages and disadvantages:
(a)
Advantages
(i) The House of Commons is elected at intervals of not more than five years. Hence the law
making process is theoretically
responsive to public opinion.
(ii) Statute law can in theory deal with
any problem.
(iii) Statutes are
carefully constructed codes of law.
(iv) A
new problem in society or some unwelcome development in case law can be dealt with
by passing an Act of Parliament.
(b)
Disadvantages
(i) Statutes are
bulky.
(ii)
Parliament often lacks time to consider draft legislation in sufficient detail.
(iii) A substantial statute can take up a lot of
Parliamentary time.
(iv) Statute law is a statement of general rules.
Those who draft it cannot anticipate everyindividual case which may arise.
2.5 Delegated legislation
To save time in Parliament, Acts usually contain a section by which power is given to a minister, or public
body such as a local authority, to make
subordinate or delegated legislation.
Delegated legislation
means rules of law, often of a detailed nature, made by subordinate bodies to
whom the power to do so has been given by statute.
Delegated legislation
appears in various forms.
•
Ministerial powers are exercised by statutory instruments. Statutory instruments are the most
common form of delegated legislation.
•
Local authorities are given statutory powers to make bye-laws.
•
Rules of Court may be made by the judiciary to control court procedure.
•
Professional Regulations concerning certain occupations (such as law) can be delegated to
authorised bodies (such as the Law Society).
•
Orders in council in certain circumstances, the government may resort to introducing legislation
through the Privy Council as it circumvents the need to go through the full Parliamentary process.
However this may reduce the popularity of the government and is likely to be used only in
instances of national emergency.
2.5.1 Control over delegated legislation
Parliament
exercises some control over delegated legislation by keeping the production of new delegated
legislation under review.
•
Some statutory instruments do not take effect until approved by affirmative resolution of
Parliament.
•
Most other statutory instruments must be laid before Parliament for 40 days before they take
effect.
There are standing
Scrutiny Committees of both Houses whose duty it is to examine statutory
instruments from a technical point of view and may raise objections if necessary. However they have no
authority to object to an instrument's nature or content.
A statutory instrument may be
challenged in the courts on the grounds that Parliament exceeded its
authority to delegate and has acted
ultra vires or that the legislation has been made without due
compliance with the correct procedure.
The
Human Rights Act (HRA) does not give courts power to strike out primary legislation which is
contrary to the HRA. However, as
secondary legislation, delegated legislation is not affected and courts
are permitted
to strike out any delegated legislation that runs contrary to the HRA.
Both statutes and delegated legislation made under it are expressed in
general terms. It is not possible to
provide in the Act for each eventuality which falls within its remit. It therefore often falls to judges to
interpret Acts.
2.5.2 Advantages and disadvantages
Delegated legislation has the following
advantages:
•
It saves time as Parliament does not have to examine matters of detail.
•
Much of the content of delegated legislation is technical and is better worked out in consultation
with professional, commercial or industrial groups outside Parliament.
•
If new or altered regulations are required later, they can be issued without referring back to
Parliament.
• The system allows the law to be enacted quickly.
The
disadvantages of the system are as follows.
•
There are concerns over the accountability of Parliament. Individual MPs and their civil service
staff effectively become the source of law rather than Parliament whose actions are open to
questioning and public scrutiny.
•
The system is unrepresentative in that some power is given to civil servants who are not
democratically elected.
•
Because delegated legislation can be produced in large volumes, ordinary MPs and the public find
it difficult to keep up to date with developments.
•
The different sorts of delegated legislation which may be produced by virtue of one statute can
greatly
confuse users.
You could be asked general or specific questions on sources of law, as in December and June 2008.
3 Statutory interpretation
Legislation must be
interpreted correctly before judges can apply it fairly. The literal, golden and
mischief rules
of interpretation developed over time. Nowadays a purposive approach is taken.
Judges are faced with task of
applying legislation to the particular case heard before them. To apply the
legislation they must first
interpret and understand it. Problems occur when the judge has difficulty
interpreting the statute.
There are a number of
situations which might lead to a need for statutory interpretation.
(a)
Ambiguity might be caused by an error in drafting or words may have a dual meaning.
(b)
Uncertainty may arise where the words of a statute are intended to apply to a range of factual
situations and the courts must decide whether the case before them falls into any of these situations.
(c) There may be
unforeseeable developments.
(d) The draft may use a
broad term. Thus, the word 'vehicle' may need to be considered in relation to
the use of skateboards or bicycles.
There are a number of
different sources of assistance for a judge in his task of statutory interpretation.
•
Rules
•
Presumptions
•
Other aids (intrinsic or extrinsic)
3.1 Rules of statutory interpretation 12/09
In
interpreting the words of a statute, courts have developed a number of well-established general rules.
3.1.1 The literal rule and golden rule
The
literal rule means that words in the Act should be given their literal and grammatical meaning rather
than what the judge thinks they mean. It is extended by the
golden rule which states that word should be
given their plain, ordinary or literal meaning unless this would give rise to manifest absurdity or
inconsistency with the rest of the statute.
Normally a word should be construed in the
same literal sense wherever it appears in the statute.
Illustration
In
Whitely v Chapell 1868 a statute aimed at preventing electoral malpractice made it an offence to
impersonate 'any person entitled to vote' at an election. The accused was acquitted because he
impersonated a dead person, who was clearly not entitled to vote.
3.1.2 The mischief rule
Under the
mischief rule a judge considers what mischief the Act was intended to prevent. Where a statute
is designed to remedy a weakness in the law, the correct interpretation is the one which achieves it.
In
Corkery v Carpenter 1950 the court held that a bicycle was a ‘carriage’ for the purpose of the Licensing
Act 1872 where a defendant was charged with cycling whilst intoxicated. The purpose of the Act was to
prevent people who are in a state of intoxication from operating any form of transport on public roads.
The 'golden' and 'mischief' rules were used until relatively recently. The
Law Commissioners
recommended that judges interpret statute using the
general purposes behind it and the intentions of
Parliament. This is known as
purposive interpretation.
3.1.3 The purposive approach
Under the
purposive approach to statutory interpretation, the words of a statute are interpreted not only in
their
ordinary, literal and grammatical sense, but also with reference to the context and purpose of the
legislation, ie what is the legislation trying to achieve?
Gardiner v Sevenoaks RDC 1950
The facts:
The purpose of an Act was to provide for the safe storage of film wherever it might be stored on
'premises'. The claimant argued that 'premises' did not include a cave and so the Act had no application to
his case.
Decision:
The purpose of the Act was to protect the safety of persons working in all places where film was
stored. If film was stored in a cave, the word 'premises' included the cave.
The key to the purposive approach is that the judge construes the statute in such a way as to
be
consistent with the purpose of the statute
as he understands it, even if the wording of the statute could
be applied literally without leading to manifest absurdity.
The December 2009 exam required students to explain the literal and golden rules for five marks and the
purposive approach and mischief rule for a further five marks.
3.1.4 The contextual rule
The
contextual rule means that a word should be construed in its context: it is permissible to look at the
statute as a whole to discover the meaning of a word in it.
A more
purposive approach is also being taken because so many international and EU regulations come
to be interpreted by the courts.
3.2 General rules of interpretation
The following
general rules of interpretation have also been developed by the courts.
3.2.1 The eiusdem generis rule
Statutes often list a number of
specific things and end the list with more general words. In that case the
general words are to be limited in their meaning to other things of the same kind as the specific items
which precede them. In
Powell v Kempton Park Racecourse 1899 it was held that a clause referring to a‘house, office, room or other place’ excluded a ring at a racecourse.
Evans v Cross 1938
The facts:
E was charged with driving his car in such a way as to 'ignore a traffic sign', having crossed to
the wrong side of a white line. 'Traffic sign' was defined in the Act as 'all signals, warning signposts,
direction posts, signs or other devices'.
Decision:
'Other device' must be limited in its meaning to a category of such signs. A painted line was
quite different from that category.
3.2.2 Expressio unius est exclusio alterius
To express one thing is by implication to
exclude anything else.
3.2.3 Noscitur a socis
It is presumed that words draw meaning from the
other words around them. If a statute mentioned
'children's books, children's toys and clothes', it would be reasonable to assume that 'clothes' meant
children's clothes.
3.2.4 In pari materia
If the statute forms part of a series which deals with
similar subject matter, the court may look to the
interpretation of previous statutes on the assumption that Parliament intended the same thing.
3.3 Presumptions of statutory interpretation
Unless the statute contains express words to the contrary it is assumed that the following
presumptions
of statutory interpretation apply, each of which may be rebutted by contrary evidence.
•
A statute does not alter the existing common law. If a statute is capable of two interpretations,
one involving alteration of the common law and the other one not, the latter interpretation is to be
preferred.
•
If a statute deprives a person of his property, say by nationalisation, he is to be compensated for
its value.
•
A statute is not intended to deprive a person of his liberty. If it does so, clear words must be
used. This is relevant in legislation covering, for example, mental health and immigration.
•
A statute does not have retrospective effect to a date earlier than its becoming law.
•
A statute does not bind the Crown. In certain areas, the Crown's potential liability is great and this
is therefore an extremely important presumption.
•
A statute generally has effect only in the UK. However a statute does not run counter to
international law and should be interpreted so as to give effect to international obligations.
•
A statute cannot impose criminal liability without proof of guilty intention. Many modern statutes
rebut this presumption by imposing strict liability, say for dangerous driving under the Road Traffic
Act.
•
A statute does not repeal other statutes. Any point on which the statute leaves a gap or omission
is outside the scope of the statute.
3.4 Other assistance in interpretation
Intrinsic aids
are those words contained in the Queen's Printer's copy of the statute. Extrinsic aids arethose found elsewhere.
3.4.1 The Interpretation Act 1987
The
Interpretation Act 1987 defines certain terms frequently found in legislation. The Act also states that,
unless a specific intention to the contrary exists, the use in a statute of masculine gender terminology also
includes the feminine, and vice versa. Similarly, words in the singular include plurals, and vice versa.
3.4.2 Intrinsic aids
Intrinsic aids
to statutory interpretation consist of the following.
•
The long title of an Act, which may give guidance as to the Act's general objective.
•
The preamble of an Act often directs the judge as to its intentions and objects.
•
Interpretation sections to Acts. Particularly long, complicated and wide-ranging Acts often contain
self-explanations.
•
Side notes. Statutes often have summary notes in the margin.
3.4.3 Extrinsic aids
Extrinsic aids
include the following.
(a)
Reports of the Law Commission, Royal Commissions, the Law Reform Committee and other
official committees
.
(b)
Hansard, the official journal of UK Parliamentary debates. This follows a decision of the then House
of Lords in
Pepper v Hart 1992 where it was decided that it is acceptable to look at the original
speech which first introduced a bill to ascertain its meaning, but only if the statute is ambiguous or
obscure or its literal meaning would lead to absurdity.
Chapter Roundup
•
The first legal source of law, consisting of decisions made in the courts, is case law, which is judge-made
law based on the underlying principle of consistency. Once a legal principle is decided by an appropriate
court it is a
judicial precedent.
•
Statements made by judges can be classified as ratio decidendi or obiter dicta.
•
The second major source of law is legislation. This is also known as statute law and may take the form of
Acts of Parliament
or delegated legislation under the Acts.
•
Legislation must be interpreted correctly before judges can apply it fairly. The literal, golden andmischief rules of interpretation developed over time. Nowadays a purposive approach is taken.
Quick Quiz
1
Fill in the blanks in the statements below, using the words in the box.
In order that (1) ………………. provides (2) ………………. in the law, a precedent must be carefully
examined before it can be applied to a particular (3) ……………….. It must be a statement of (4)
……………….. . The (5) ……………….. must be identified. The (6) ……………….. must be the same.
The (7) ……………….. of the court which set the precedent must be such as to (8) ………………. the
present court.
•
bind • judicial precedent
•
case • status
•
ratio decidendi • law
•
material facts • consistency
2 What is the final step in the life of a Bill (before Royal Assent)?
3 Obiter dicta form part of the ratio decidendi.
True
False
4 Which of these decisions bind the Crown Court?
Decisions of the County Court
Decisions of the High Court
Decisions of the Court of Appeal
Decisions of the Supreme Court for the United Kingdom
5 In 2010, Mr Justice Jeffries, a High Court judge sitting alone, is deciding a case which has similar material
facts to one decided by the Court of Appeal in 1910. He can decline to be bound by this decision by
showing that
A The status of the previous court cannot bind him
B The decision was taken too long ago to be of any relevance
C The decision does not accord with the rules of a statute passed in 1975
D The obiter dicta are obscure
6 Overruling a decision of a lower court affects the outcome of that earlier decision.
True
False
7
Fill in the blank in the statement below.
The rule that a statute should be construed to give effect to the intended outcome of the legislation is
known as the ........................................ rule.
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