Sources of the English Legal System and the Relationship between Legislation and Judicial precedent.

by mssmot (student)

FC012 T2258212Khanum, F.

Introduction.

The present legal system of England and Wales has expanded over many centuries and has also changed regularly during this period. Modern difficulties and needs have led to widespread changes in the court system they include the coordination of the legal profession and the process followed by the courts (Ward and Akhtar, 2008).

The English law consists of eight sources that include the Interpretation of Statues, Act of Parliament, Judicial precedent, Treaties, Equity, Custom, European law, and Delegated legislation. However, this essay will be discussing three sources of law, they include: Judicial precedent, Statutory Interpretation and Legislation . This essay will also discuss the relationship between the legislation and judicial precedent and the rules of the statutory interpretation.

Sources of English Legal System.

Firstly, the judicial precedent is also known as case law, common law or judge-made law. The judicial precedent also known as case law originates from the decisions made by judges in the cases before them (Elliott and Quinn, 2011). In making a decision concerning a case, there are two basic steps. The first step is verifying the facts (what happened) and secondly, how the applies to those facts. There are three requirements needed for judicial precedent. They include; the court hierarchy, law reporting, and judgement (ratio decidendi).

Court Hierarchy: This refers to the situation whereby the adjudication of a higher court will be binding on a lower court that is in that hierarchy. This simply means that when judges try cases, they will inquire to see if any similar situation has come before the court already. If the precedent was set by a court of higher or equal standard to the court deciding the present case should follow the rule of law entrenched in the previous case.

However if the precedent is from a lower court in the hierarch, the judge in the recent case may follow but will consider it (Kelly and Slapper, 2010). An example of a case used is R v Kansal (No 2) (2001) and R v Lambert (2001).

Law Reporting: These reports are produced by the council. They contain exclusive summaries of counsels’ arguments and are subject to revision by the judges in the case before they are published. Law reports are the most authoritative reports. Law reports include the following; General sets like weekly law reports (WLR), Specialists reports and CD Roms & Internet facilities (Slapper & Kelly, 2010).

Judgement: This is also known as “ratio decidendi” which originated from a Latin word which means “the reason for deciding”. According to Elliott and Quinn 2011, the judges listen to the attestation and the legal argument and prepare a written decision as to which party wins depending on what they believe and the facts and how the law administers them.

Secondly, another source of law is the Legislation which is also known as “The Act of Parliament”. The legislation describes the way by which all the laws are made by the United Kingdom parliament. According to Wilson et al 2009, The UK parliament is made up of three bodies which include; Queen in Parliament, House of Lords, and the House of Commons. A Royal Assent is needed by the Queen before a proposed bill becomes a law.

Thirdly, another source of law is the Statutory Interpretation. This is referred to the way judges interpret statutes and laws in the court of law. In the process of interpretation, it is when the term used was unclear, or it was left out by the draftsman thinking it would be applied automatically, or where the word is ambiguous, or even when the case before the court was not predicted as at the time when the legislation was enacted (Elliott and Quinn, 2011).

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Relationship between the Legislation and Judicial Precedent.

There is a relationship between the legislation and the judicial precedent in various ways. The legislation which is also known as the “Act of Parliament” makes the laws. However, the judicial precedent is also known as judge-made laws that are decisions made by judges in cases before them (Elliott & Quinn, 2011). They are related in various ways.

Firstly, they are related through separation of powers that is the division of powers between the legislative, executive and the judiciary this to prevent the concentration of power by one body. The legislature make laws while the judiciary interprets the legislation so as to develop judge-made law. However, the judges have no power to question the validity of the Acts of Parliament.

Secondly, there is a relation through ambiguity which means “vague/unclear”. In this case, the judges also change the law if there is ambiguity and there is a need for interpretation. Usually, the precedents do not make certain decisions obligatory. Whenever precedents do not state out what should be done in a case before them, judges have to make a decision due to the fact that they cannot refer it back to the parliament (Elliott & Quinn, 2011).

Thirdly, the supremacy of parliament also known as parliamentary sovereignty, is when a law is passed according to the rules of the parliamentary method, it must be applied in the courts and the legislations made have to be obeyed strictly without partiality (Elliott & Quinn, 2011).

Furthermore, there is a relation through the accepted rules for statutory interpretation. The rules of interpretation are; literal, golden and mischief rule. These rules are applied due to reasons as ambiguity, unforeseen situations, and even carelessness of the draftsman. Therefore, judges are supposed to interpret how the parliament intended to apply the law (Elliott & Quinn, 2011).

Judicial Rules of Statutory Interpretation.

Statutory interpretation involves the interpretation of laws in court. This interpretation involves certain rules in order for interpretation to be carried out. The parliament passed the “Interpretation Act 1978” which provides some general rules for interpretation. There are two contrary views with the way judges determine the meaning of a statute. They include; Literal and Purposive approach (Slapper & Kelly, 2010).

The literal approach is dominant in the English legal system. This view of judicial interpretation is concerned about judges looking primarily to the words of the legislation so as to find out its meaning. They are not allowed to look beyond or behind the legislation in search of the meaning of the statute. On the other hand, the purposive approach tends to avoid restrictions of the judges’ search for the meaning to a literal arrangement of words of the legislation itself. It suggests judges should be able to look outside the words of the statutes in search of the reason for its enactment and that meaning should be interpreted for the purpose so it can be effective (Slapper& Kelly, 2010). The three rules of interpretation are; Literal, Golden and Mischief rule.

Firstly, the literal rule simply means courts giving their apparent, clear and ordinary meaning even if the significance is not meaningful (Huxley-Binns and Martin, 2008). This idea was expressed by Lord Esther in R v Judge of the city of London Court (1892) 1 QB 273. An example of a case that made use of the literal rule is Whiteley v Chappell (1868) 4 LR QB 147: The defendant in this case was accused under a section of which made it an offence to impersonate “any person entitled to vote”. The defendant impersonated a dead person whose name was on the voters list. The court concluded that the defendant was not guilty since a dead person is not, in the literal meaning of the words “entitled to vote”. Another similar case is London and North Eastern Railway Co v Berriman (1946). In this case, the worker was killed while maintaining the rail tracks. The related statues states “relaying and repairing” which would provide compensation. However, the man was applying “maintenance and oiling” which the court stated did not correlate with the meaning of “relaying and repairing” (Elliott & Quinn, 2011).

Secondly is the golden rule which is an improvement of the literal rule. The golden rule looks at the literal meaning at first, but the court is allowed to avoid an interpretation which would lead to an absurd significance. It was first used in Mattison v Hart (1854) 14 CB 357 (Huxley-Binns & Martin, 2008). An example of a case is Re Sigsworth (1935) Ch 89. In this case, a son murdered his mother and her next of kin was supposed to inherit according to the set rules enacted in the Administration of Justice Act 1925. Although there was no ambiguity in the words of the act, but the court was no willing to let the criminal gain from his crime therefore, it was agreed that the literal rule should not be applied. The court therefore wrote in the Act that the “issue” would not inherit her wealth because he had killed the deceased (Huxley-Binns & Binns, 2008). Another case is Maddox v Storer (1963), Under the Road Traffic Act 1960 it was an offence to drive 30mph in a vehicle “adapted to carry more than seven passengers”. The vehicle in this case was a minibus that carried 11 passengers therefore the court held that “adapted to” could mean “suitable for”. The golden rule allows the court to alter words of a statute when it is needed so as to avoid absurdity or repugnant situation (Haxley-Binn & Martin, 2008).

Thirdly is the mischief rule which was first established in a very old case called Heydon’s case (1584). Also it ensures that judges follow three factors: what the law was before the act, what was the mischief that needed to be remedied, and what was the remedy the parliament wanted to provide (Boylan-Kemp, 2008). Consequently, the mischief rule goes further than either of the other rules. The mischief rule allows for better analysis into the position of the statute in relation to the law taken as a whole and provides the court with more latitude in their creation of the statute. The court’s focuses more on the purpose of the statute and the intention of the legislature than the words before them. An example of a case that made use of the mischief rule is Elliott v Grey (1960), The Road Traffic Act 1930 stated it is a crime for an uninsured car to “used on the road”. This car was on the road, but it was jacked up and the battery was removed.

The court held that it was nevertheless a hazard of the type of statute was proposed to prevent, it was covered by the phrase “used on the road” (Elliott & Quinn, 2011).

Furthermore, in the interpretation of statues there are aids of interpretation which are internal and external aids. The internal aids apply to both the literal and golden rule. The internal aids can be found within the piece of legislation itself, or in some rules of language usually applied in statutory texts. On the other hand, others outside the legislation are external aids which include Historical setting, Dictionaries & textbooks, Reports, Treaties, Previous practice and Hansard ( Elliott & Quinn, 2011).

Hansard is a documentary record of the regular debates that happen in the parliament. This method of aid of interpretation was banned because it caused by confusion and dispute than clarity and was an unreliable method. Fortunately, it was allowed officially in the Pepper v Hart case. (Boylan-Kemp, 2008). An example of a case that used in Hansard is Pepper (Inspector of Taxes) v Hart (1993) AC 593. This case was between teachers at a fee paying school and the Inland Revenue concerned about the tax employees should pay on perks. However, the reason for consulting parliamentary debates came up during the passing of Finance Act 1976 which set up the tax rules. The principle of Hansard when interpreting a statute is what a minister has said about a piece of legislation so as to decide what the parliament has planned ( Elliott & Quinn 2011).

Conclusion.

This report has thoroughly discussed the relationship between the legislation and judicial precedent. It discussed parliamentary supremacy, separation of powers, rules of statutory interpretation and ambiguity of the language. It further discussed the rules of statutory interpretation and the two views which are literal and purposive approach. The rules are literal, golden and mischief rule. Finally, it discussed the aids of interpretation which includes Hansard (document of parliamentary debates).

It was held in the House of Lords.

If the words of an act are clear then you must abide by 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.

Jervis said “We must therefore, in this case have recourse to what is called the golden rule of construction, as applied to Acts of Parliament, viz, to give words used by the legislature their plan meaning useless it is seen from the common perspective and the purpose of the statute, injustice, and the result of absurdity.”

It was used in the case David v Johnson (1979).

It was settled in the House of Lords.

Benefit gotten from a job.