Sources of United Kingdom law

Appendix 1

Study and research guide

Throughout this book you have been presented with legal and linguistic skills prac-

tice, including in reading, writing, drafting and advocacy. Such practice should

assist in developing your competence in using legal English both in legal study and

in legal practice. The purpose of this section of the book is to provide you with a

further appreciation of the sources of law and their relative importance. Certain fea-

tures of the text of law and where to locate it will also be considered.

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Directives: a Directive imposes a binding duty on member states to implement the provisions contained within the Directive. A Directive is not however directly imposed. Instead, the member state is responsible for determining the form and method by which to implement the provisions of the Directive into its domestic law. A Directive is said to have ‘vertical effect’ since it ‘directs’ a member state to incorporate the Directive into its own law.

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Decisions: these are binding and include decisions from:

(a) The Commission (based in Brussels, consisting of ‘commissioners’ and which represents the EU as a whole)

(b) Decisions of the European Court of Justice (ECJ) based in Luxembourg (e.g.

decisions in competition law cases)

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Recommendations and Opinions: issued by the Commission or the Council (con- sisting of Ministers from member states and which adopts legislation proposed by the Commission). Such Recommendations and Opinions are persuasive in nature rather than binding. (The ECJ adjudicates on disputes between member states relating to alleged violations of treaties as well as making rulings on the correct interpretation of EU legislation.)

English (UK) law

UK legislation is created by the UK Parliament (Parliament). This legislation is in the form of ‘statutes’, also known as ‘Acts of Parliament’. There is in addition a sub- ordinate source of law which is drawn-up under powers specifically delegated by particular statutes. (For instance ‘statutory instruments’ are a main source of this

‘secondary’ legislation, often containing the ‘small-print’ of a statute). There is no written constitution in England whereby a Supreme Court is empowered to declare a blatantly unfair Act of Parliament invalid (such as exists in the USA). (Also note that in the US each state has its own law-making powers and justice system. There is however an over-riding system of ‘Federal law’ as well as a more centralised ap- peal court system consisting of an Appeals Court and ultimately the Supreme Court.)

Case-law

There is a general principle in English law that courts must interpret the wording of legislation literally (i.e. by attributing the literal meaning to each word, regard- less of how perverse an interpretation that may lead to). Courts are provided with some assistance in interpreting the meaning and intended purpose of legis- lation. E.g.

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The statute may provide definitions of words or clauses used within the statute

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The Interpretation Act 1978 (which provides definitions for a range of standard words and phrases commonly used in statutes)

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English dictionaries

English courts are required to interpret legislation in accordance with the Human Rights Act 1998. They are also required to interpret statutes in accordance with European Union law. This means that UK courts are now adopting the European approach to interpretation (i.e. by interpreting legislation in light of the intended purpose of the legislation as opposed to purely on a literal interpretation).

There are many instances however in which the intended purpose or specific meaning of legislation is in doubt and has to be further interpreted. Similarly, the law often has to be interpreted in relation to specific circumstances. It is the courts which then interpret the law. In doing so, an English court adheres to the doctrine of

binding precedent. This is a concept whereby a Judge is bound to rule consistently

with previous decisions by a higher court on similar points of law and circum- stances when making a finding in a particular case. It is very unusual however for two cases to be exactly the same in terms of facts and circumstances and lawyers will often try therefore to distinguish a previous court decision which is adverse to their particular case. If satisfied that the present can be distinguished from an earlier case (i.e. a precedent) then the precedent need not be binding on the present case in regard to determining its decision.

Areas of law

In broad terms, English law can be classified into civil law and criminal law.

Civil law

Civil law is concerned with the legal rights and obligations of individuals and organisations in relation to each other and includes a wide range of law including:

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tort law (e.g. the car crash case in Chapter 8)

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contract (e.g. the case in Chapter 7)

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employment law (Chapter 10)

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land law

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company and commercial law.

Thus the remedy in civil law usually involves monetary compensation, i.e. damages and/or some other remedy such as an injunction.

Criminal law

Criminal law addresses law enforcement in the sense of the state or police au- thority

prosecuting

individuals or organizations for having committed crimes.

Crimes can involve violence, for instance grievious bodily harm (GBH) and mur- der. A crime can also be committed in the course of commercial activity however, such as by committing fraud. In criminal law a Defendant is charged with a crime and

prosecuted. The prosecution

is brought by a prosecutor. The Defendant will

plead guilty

or

not guilty. He or she will then be found guilty

or

not guilty

by the court, being convicted if found guilty and acquitted if found not guilty. Rather than damages being awarded the Defendant will then be sentenced by way of punish-

ment. (Although the court may also make a compensation order, requiring the

convicted person to pay some monetary compensation to his victim.)

Appendix 1

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Study and research guide

The court system Civil courts The High Court

The High Court of England and Wales consists of three divisions, namely:

Chancery (Ch) Division; Family Division; Queen’s Bench (QB) Division.

The Chancery Division hears actions such as bankruptcy, copyright and mortgage cases. The Family Division deals with matrimonial cases, i.e. divorce etc. The Queen’s Bench Division deals with higher value and more complex civil cases (such as tort cases for personal injury worth over £50,000) and breach of contract cases (such as the case of Travelgraph v Matrix Printers in Chapter 7).

The County Court

There are approximately 250 County Courts throughout England and Wales. They generally handle lesser value civil claims (e.g. personal injury cases worth under

£50,000 and breach of contract claims up to £15,000).

Tribunals

There are a range of tribunals for various matters such as immigration, rent reviews and employment law cases. The latter are known as Employment Tribunals (you considered an Employment Tribunal case in Chapter 10).

Court of Appeal (civil division)

Hears appeals from the lower courts, i.e. County and High Courts.

House of Lords

Ultimate UK appeal court. Appeals to the House of Lords (HL) are only possible on a point of law. A HL case is usually heard by five ‘Lords of Appeal in ordinary’

(more commonly referred to as ‘Law Lords’).

European Court of Justice

A court or tribunal may refer a case to the European Court of Justice (ECJ) for clari- fication of any aspect of EU law if necessary in order to deliver its judgment.

Criminal courts Magistrates’ Courts

Generally hear less serious criminal cases

Crown Courts

Crown Court cases are heard in front of a Judge and jury, the Judge adjudicating

and directing on the law and a jury deciding on the facts of the case. Crown Courts

also hear appeals from Magistrates’ Courts.

Appendix 1

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Study and research guide