Introduction to Law 5-8 PDF

INTRODUCTION TO LAW LAW1064 KOLEJ MARA KUALA NERANG KEDAH DARUL AMAN  INTRODUCTION TO LAW – LAW1064 CHAPTER 5 Introduction to English legal system One of the major European legal systems – Roman law being th...

INTRODUCTION TO LAW LAW1064 KOLEJ MARA KUALA NERANG KEDAH DARUL AMAN  INTRODUCTION TO LAW – LAW1064 CHAPTER 5 Introduction to English legal system One of the major European legal systems – Roman law being the other – English law has spread to many other countries, including former English colonies such as Canada, Australia, and New Zealand. English law has an evolving history dating from the local customs of the Anglo-Saxons, traces of which survived until 1925. After the Norman Conquest, they grew up side by side with the Saxon shire courts, the feudal courts of the barons and the ecclesiastical (church) courts. From the King’s council developed the royal courts, presided over by professional judges, which gradually absorbed the jurisdictions (legal powers) of the baronial and ecclesiastical courts. By 1250, the royal judges had amalgamated the various local customs into the system of common law – that is, law common to the whole country. A second system known as equity developed in the Court of Chancery, in which the Lord Chancellor considered petitions. In the 17th and 18th centuries, common law absorbed the Law Merchant, the international code of mercantile customs. During the 19th century, virtually the whole of English law was reformed by legislation; the number of offences punishable by death, for example, was greatly reduced. Through this chapter, it examines the legal system of England and Wales, looking at how our law is made and applied. To understand the legal system, however, you first need to know something about the context in which this legal system is operating: the constitution. A constitution is a set of rules which details a country’s system of government; in most cases it will be a written document, but in some countries, including Britain, the constitution cannot be found written down in one document, and is known as an unwritten constitution. Constitutions essentially set out broad principles concerning who makes law and how and allocate power between the main institutions of the state – Government, Parliament and the judiciary. They may also indicate the basic values on which the country should expect to be governed, such as the idea that citizens should not be punished unless 61  INTRODUCTION TO LAW – LAW1064 they have broken the law, or that certain rights and freedoms should be guaranteed, and the state prevented from overriding them. The unwritten constitution Britain is very unusual in not having a written constitution – every other Western democracy has one. In many cases, the document was written after a major political change, such as a revolution or securing independence from a colonial power. The fact that the British constitution is not to be found in a specific document does not mean that we do not have a constitution. If a country has rules about who holds the power to govern, what they can and cannot do with that power, and how that power is to be passed on or transferred, it has a constitution, even though there is no single constitutional document. In our constitution, for example, it is established that the Government is formed by the political party which wins a general election, and that power is transferred from that party when they lose an election. Three basic principles underlying the British constitution are the separation of powers, the supremacy of Parliament and the rule of law. The separation of powers One of the fundamental principles underlying our constitution is that of the separation of powers. According to this principle, developed by the eighteenth-century French philosopher, Montesquieu (1989), all state power can be divided into three types: executive, legislative, and judicial. The executive represents what we would call the Government and its servants, such as the police and civil servants; the legislative power is Parliament; and judicial authority is exercised by the judges. The basis of Montesquieu’s theory was that these three types of power should not be concentrated in the hands of one person or group, since this would give them absolute control, with no one to check that the power was exercised for the good of the country. Instead, Montesquieu argued, each type of power should be exercised by a different 62  INTRODUCTION TO LAW – LAW1064 body, so that they can each keep an eye on the activities of the other and make sure that they do not behave unacceptably. Montesquieu believed that England, at the time when he was writing, was an excellent example of this principle being applied in practice. Whether that was true even then is debatable, and there are certainly areas of weakness now, as we shall see in later chapters. The supremacy of Parliament A second fundamental principle of our constitution has traditionally been the supremacy of Parliament (also called parliamentary sovereignty). This means that Parliament is the highest source of English law; so long as a law has been passed according to the rules of parliamentary procedure, it must be applied by the courts. The legal philosopher, Dicey (1982), famously explained that according to the principle of parliamentary sovereignty Parliament has ‘under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’. So if, for example, Parliament had passed a law stating that all newborn boys had to be killed, or that all dog owners had to keep a cat as well, there might well be an enormous public outcry, but the laws would still be valid and the courts would, in theory at least, be obliged to uphold them. The reasoning behind this approach is that Parliament, unlike the judiciary, is democratically elected, and therefore ought to have the upper hand when making the laws that every citizen has to live by. This approach is unusual in democratic countries. Most comparable nations have what is known as a Bill of Rights. This is a statement of the basic rights which citizens can expect to have protected from state interference; it may form part of a written constitution or be a separate document. In many countries, the job of a Bill of Rights is done by incorporating into national law the European Convention on Human Rights, an international Treaty which was agreed after the Second World War and seeks to protect basic human rights such as freedom of expression, of religion and of movement. A Bill of Rights takes precedence over other laws and the courts are able to refuse to apply legislation which infringes any of the rights protected by it. 63  INTRODUCTION TO LAW – LAW1064 Although Britain is one of the original signatories of the European Convention on Human Rights, for many years it was not incorporated into English law. Parliament has now passed the Human Rights Act 1998, which came into force in October 2000. This Act at last incorporates the Convention into domestic law, but it does not give the Convention superiority over English law. It requires that, wherever possible, legislation should be interpreted in line with the principles of the Convention, but it does not allow the courts to override statutes that are incompatible with it, nor does it prevent Parliament from making laws that are in conflict with it. Section 19 of the Act requires that when new legislation is made, a government minister must make a statement before the second reading of the Bill in Parliament, saying either that in their view the provisions of the Bill are compatible with the Convention or that, even if they are not, the Government wishes to proceed with the Bill anyway. Although the implication is obviously that, in most cases, Ministers will be able to say that a Bill conforms with the Convention, the Act’s provision for the alternative statement confirms that parliamentary supremacy is not intended to be overridden. The Act does make one impact on parliamentary supremacy, though a small one: s. 10 allows a Minister of the Crown to amend by order any Act which has been found by the courts to be incompatible with the Convention, whereas normally an Act of Parliament could only be changed by another Act. However, there is no obligation to do this and a piece of legislation which has been found to be incompatible with the Convention would remain valid if the Government chose not to amend it. By contrast, a definite erosion of parliamentary supremacy has been brought about by Britain’s membership of the European Union (EU). The EU can only make laws concerning particular subject areas, but in those areas, its law must take precedence over laws made by Parliament, and in this respect, Parliament is no longer, strictly speaking, the supreme source of law in the UK. In areas of law not covered by the EU, however, Parliament remains supreme. The European Union Act 2011 seeks to make it clear that ultimate authority remains with Parliament. An interesting and unusual view of the present constitutional position has been put forward by John Laws (1998), writing in the academic journal Public Law. He suggests that, even without a Bill of Rights, it can be argued that Parliament is not quite so all- powerful as traditional constitutional doctrine would suggest. His point is that Parliament draws its power from the fact that it is democratically elected: we accept its authority to 64  INTRODUCTION TO LAW – LAW1064 make law because we all have a say in who makes up Parliament. Therefore, says Laws J, it must follow that Parliament’s power is restricted to making laws which are consistent with democracy, and with the idea that if we are all entitled to a vote, we must also be entitled to a certain minimum level of treatment. That would mean that our example of a law that all newborn boys had to be killed, which would clearly conflict with this entitlement, might actually be beyond Parliament’s law-making powers and, according to Laws J, the courts, therefore, would be constitutionally entitled to refuse to uphold it. This view has not been tested by the courts, but it certainly provides an interesting contribution to the debate. In 1998, some important constitutional changes were made which passed some of the powers of the Westminster Parliament to new bodies in Scotland and Northern Ireland. The new Scottish Parliament, created by the Scotland Act 1998, can make laws affecting Scotland only, on many important areas, including health, education, local government, criminal justice, food standards and agriculture, though legislation on foreign affairs, defence, national security, trade and industry and a number of other areas will still be made for the whole of the UK by the Westminster Parliament. In September 2014 a referendum was held in Scotland, asking its populace whether they would want to remain part of the UK or declare independence. Following a vote to remain part of the UK, further powers were promised to the Scottish Parliament, including full control over taxation. The Northern Ireland Act 1998 similarly gives the Northern Ireland Assembly power to make legislation for Northern Ireland in some areas, though again, foreign policy, defense and certain other areas are still to be covered by Westminster. In the same year, the Government of Wales Act established a new body for Wales, the Welsh Assembly but, unlike the other two bodies, the Welsh Assembly has only limited powers to make primary legislation; legislation made in Westminster will continue to cover Wales. However, the Welsh Assembly is able to make what is called delegated legislation. 65  INTRODUCTION TO LAW – LAW1064 The rule of law The third basic principle of our constitution is known as the rule of law. It is developed from the writings of the nineteenth-century writer Dicey. According to Dicey, the rule of law had three elements. First, that there should be no sanction without breach, meaning that nobody should be punished by the state unless they had broken a law. Secondly, that one law should govern everyone, including both ordinary citizens and state officials. Thirdly, that the rights of the individual were not secured by a written constitution, but by the decisions of judges in ordinary law. The real importance of the rule of law today lies in the basic idea underlying all three of Dicey points (but especially the first) that the state should use its power according to agreed rules, and not arbitrarily. The issue has arisen frequently in the context of the state’s response to terrorism. For example, opposition to an alleged shoot to kill policy by the armed forces in Northern Ireland against suspected terrorists was based on the principle that suspected criminals should be fairly tried, according to the law, and punished only if convicted. The pressure group JUSTICE issued a manifesto for the rule of law in 2007. This suggests that the rule of law can be broken down into a set of values that governments should accept as matters of constitutional principle which should not be breached. Thus, JUSTICE suggests that under the rule of law, governments should: i. adhere to international standards of human rights. ii. uphold the independence of judges and the legal profession iii. protect the right to a fair trial and due process iv. champion equality before the law v. ensure access to justice vi. accept rigorous powers of scrutiny by the legislature vii. ensure that greater cooperation between governments within Europe is matched by increased rights for citizens. A practice that has recently come to light which appears to breach the rule of law is that of ‘extraordinary rendition’. This describes the kidnapping of people by state representatives and their subsequent detention, without recourse to established legal procedures (such as a formal request for the extradition of a suspect). The US 66  INTRODUCTION TO LAW – LAW1064 intelligence service has kidnapped a large number of foreign nationals suspected of involvement with the terrorist organisation, Al Qaeda, from around the world and removed them to secret locations without following any established legal procedures. It has been alleged that the UK has provided the US with some assistance in this practice through, in particular, the provision of information about suspects and the use of UK airports. The Constitutional Reform Act 2005 introduced some major reforms to the British constitution. This Act expressly states in its first section that it ‘does not adversely affect the existing constitutional principle of the rule of law’. Sources of law The word ‘source’ can mean several different things with regard to law, but for our purposes it primarily describes the means by which the law comes into existence. English law stems from eight main sources, though these vary a great deal in importance: The basis of our law today is case law, a mass of judge-made decisions which lay down rules to be followed in future court cases. For many centuries case law was the main form of law and it is still very important today. However, Acts of Parliament (also known as statutes) are the most important source of law, in the sense that they prevail over 67  INTRODUCTION TO LAW – LAW1064 most of the other sources. As well as being a source of law in their own right, Acts of Parliament contribute to case law, since the courts occasionally have to interpret the Acts, and such decisions lay down new precedents. Delegated legislation is made by the administration rather than the legislature and lays down detailed rules to implement the broader provisions of Acts of Parliament. An increasingly important source of law is the legislation of the European Union, which is the only type of law that can take precedence over Acts of Parliament in the UK. Finally, custom, equity and international treaties are minor sources of law. Case law Historical background of case law Before the Norman conquest, different areas of England were governed by different systems of law, often adapted from those of the various invaders who had settled there; roughly speaking, Dane law applied in the north, Mercian law around the midlands, and Wessex law in the south and west. Each was based largely on local custom and, even within the larger areas, these customs, and hence the law, varied from place to place. The king had little control over the country as a whole, and there was no effective central government. When William the Conqueror gained the English throne in 1066, he established a strong central government and began, among other things, to standardize the law. Representatives of the king were sent out to the countryside to check local administration and were given the job of adjudicating in local disputes, according to local law. When these ‘itinerant justices’ returned to Westminster, they were able to discuss the various customs of different parts of the country and, by a process of sifting, reject unreasonable ones and accept those that seemed rational, to form a consistent body of rules. During this process – which went on for around two centuries – the principle of stare decisis (‘let the decision stand’) grew up. Whenever a new problem of law came to be decided, the decision formed a rule to be followed in all similar cases, making the law more predictable. 68  INTRODUCTION TO LAW – LAW1064 The result of all this was that by about 1250, a ‘common law’ had been produced, that ruled the whole country, would be applied consistently and could be used to predict what the courts might decide in a particular case. It contained many of what are now basic points of English law – the fact that murder is a crime, for example. The principles behind this ‘common law’ are still used today in creating case law (which is in fact often known as common law). From the basic idea of stare decisis, a hierarchy of precedent grew up, in line with the hierarchy of the modern court system, so that, in general, a judge must follow decisions made in courts which are higher up the hierarchy than his or her own (the detailed rules on precedent are discussed later in this section). This process was made easier by the establishment of a regular system of publication of reports of cases in the higher courts. The body of decisions made by the higher courts, which the lower ones must respect, is known as case law. The English common law system was exported around the world wherever British influence dominated during the colonial period. These countries, including the US and many Commonwealth countries, are described as having common law systems. They are often contrasted with civil law systems, which can be found in Continental Europe and countries over which European countries have had influence. The best-known civil law system is the French legal system, whose civil code has been highly influential. Judicial Precedent Case law comes from the decisions made by judges in the cases before them (the decisions of juries do not make case law). In deciding a case, there are two basic tasks: first, establishing what the facts are, meaning what actually happened; and, secondly, how the law applies to those facts. It is the second task that can make case law, and the idea is that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way, following the principle of stare decisis described above. This is obviously fairer than allowing each judge to interpret the law differently, and also provides predictability, which makes it easier for people to live within the law. The judges listen to the evidence and the legal argument and then prepare a written decision as to which party wins, based on what they believe the facts were, and how 69  INTRODUCTION TO LAW – LAW1064 the law applies to them. This decision is known as the judgment, and is usually long, containing quite a lot of comment which is not strictly relevant to the case, as well as an explanation of the legal principles on which the judge has made a decision. The explanation of the legal principles on which the decision is made is called the ratio decidendi – Latin for the ‘reason for deciding’. It is this part of the judgment, known as binding precedent, which forms case law. All the parts of the judgment which do not form part of the ratio decidendi of the case are called obiter dicta – which is Latin for ‘things said by the way’. These are often discussions of hypothetical situations: for example, the judge might say ‘Jones did this, but if she had done that, my decision would have been…’ None of the obiter dicta forms part of the case law, though judges in later cases may be influenced by it, and it is said to be a persuasive 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. The rules concerning which courts are bound by which are known as the rules of judicial precedent, or stare decisis. As well as being bound by the decisions of courts above them, some courts must also follow their own previous decisions, they are said to be bound by themselves. When faced with a case on which there appears to be a relevant earlier decision, the judges can do any of the following: Follow: If the facts are sufficiently similar, the precedent set by the earlier case is followed, and the law applied in the same way to produce a decision. Distinguish: Where the facts of the case before the judge are significantly different from those of the earlier one, then the judge distinguishes the two cases and need not follow the earlier one. Overrule: Where the earlier decision was made in a lower court, the judges can overrule that earlier decision if they disagree with the lower court’s statement of the law. The outcome of the earlier decision remains the same but will not be followed. The power to overrule cases is only used sparingly because it weakens the authority and respect of the lower courts. 70  INTRODUCTION TO LAW – LAW1064 Reverse: If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law. Clearly when a decision is reversed, the higher court is usually also overruling the lower court’s statement of the law. In practice, the process is rather more complicated than this, since decisions are not always made based on only one previous case; there are usually several different cases offered in support of each side’s view of the question. Numerous cases are published in law reports, legal databases and online. In R v Erskine (2009) the Court of Appeal said lawyers needed to carefully select the cases they referred to in court or the justice system would be ‘suffocated’. Only cases which established the principle of law under consideration should be cited. Authorities that merely illustrated the principle, or restated it, should not be cited. The court was thereby seeking to ensure that the doctrine of precedent is not overwhelmed by the sheer number of published judgments. How do judges really decide cases? The independence of the judiciary was ensured by the Act of Settlement 1700, which transferred the power to sack judges from the Crown to Parliament. Consequently, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The eighteenth-century legal commentator, William Blackstone, introduced the declaratory theory of law, stating that judges do not make law, but merely, by the rules of precedent, discover and declare the law that has always been: ‘[the judge] being sworn to determine, not according to his private sentiments not according this private judgment, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain and expound the old one’. Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was ‘not law’, in other words that it was the wrong answer. 71  INTRODUCTION TO LAW – LAW1064 His view presupposes that there is always one right answer, to be deduced from an objective study of precedent. Today, however, this position is considered somewhat unrealistic. If the operation of precedent is the precise science Blackstone suggests, a large majority of cases in the higher courts would never come to court at all. The lawyers concerned could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose not to bother bringing or fighting the case. In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend a case that they had no chance of winning. Therefore, where such a case is contested, it can be assumed that, unless one of the lawyers has made a mistake, it could go either way, and still be in accordance with the law. Further evidence of this is provided by the fact that one can read a judgment of the Court of Appeal, argued as though it were the only possible decision in the light of the cases that had gone before, and then discover that this apparently inevitable decision has promptly been reversed by the House of Lords. In practice, then, judges’ decisions may not be as neutral as Blackstone’s declaratory theory suggests they have to make choices which are by no means spelled out by precedents. Yet rather than openly stating that they are choosing between two or more equally relevant precedents, the courts find ways to avoid awkward ones, which give the impression that the precedents they do choose to follow are the only ones that could possibly apply. In theory, only the Supreme Court, which can overrule its own decisions as well as those of other courts, can depart from precedent: all the other courts must follow the precedent that applies in a particular case, however much they dislike it. In fact, there are a number of ways in which judges may avoid awkward precedents that at first sight might appear binding: By distinguishing the awkward precedent on its facts – arguing that the facts of the case under consideration are different in some important way from those of the previous case, and therefore the rule laid down does not apply to them. Since the facts are unlikely to be identical, this is the simplest way to avoid an awkward precedent, and the courts have made some extremely narrow distinctions in this way. a. By distinguishing the point of law – arguing that the legal question answered by the precedent is not the same as that asked in the present case. 72  INTRODUCTION TO LAW – LAW1064 b. By stating that the precedent has been superseded by more recent decisions and is therefore outdated. c. By giving the precedent a very narrow ratio decidendi. The only part of a decision that forms binding precedent is the ratio, the legal principle on which the decision is based. Since judges never state, ‘this is the ratio decidendi’, it is possible to argue at some length about which bits of the judgment actually form the ratio and therefore bind courts in later cases. Judges wishing to avoid an awkward precedent may reason that those parts of the judgment which seem to apply to their case are not part of the ratio, and are only obiter dicta, which they are not obliged to follow. d. By arguing that the precedent has no clear ratio decidendi. There are usually three judges sitting in Court of Appeal cases, and five in the Supreme Court. Where each judge in the former case has given a different reason for coming to the same decision, or where, for example, two judges of the Supreme Court take one view, two more another, and the fifth agrees with none of them, it can be argued that there is no one clear ratio decidendi for the decision. e. By claiming that the precedent is inconsistent with a later decision of a higher court and has been overruled by implication. f. By stating that the previous decision was made per incuriam, meaning that the court failed to consider some relevant statute or precedent. This method is used only rarely since it clearly undermines the status of the court below. g. By arguing that the precedent is outdated, and no longer in step with modern thinking. Do judges make law? Although judges have traditionally seen themselves as declaring or finding rather than creating law, and frequently state that making law is the prerogative of Parliament, there are several areas in which they clearly do make law. In the first place, historically, a great deal of our law is and always has been case law, made by judicial decisions. Contract and tort law are still largely judge-made, and many of the most important developments – for example, the development of negligence as a tort – have had profound effects. Even though statutes have later been passed on these subjects, and 73  INTRODUCTION TO LAW – LAW1064 occasionally Parliament has attempted to embody whole areas of common law in statutory form, these still embody the original principles created by the judges. Secondly, the application of law, whether case law or statute, to a particular case is not usually an automatic matter. Terminology may be vague or ambiguous, new developments in social life have to be accommodated, and the procedure requires interpretation as well as application. As we have suggested, judicial precedent does not always make a particular decision obvious and obligatory – there may be conflicting precedents, their implications may be unclear, and there are ways of getting round a precedent that would otherwise produce an undesirable decision. If it is accepted that Blackstone’s declaratory theory does not apply in practice, then clearly the judges do make law, rather than explaining the law that is already there. The theories advanced by Kairys, Griffith and Waldron all accept that judges do have discretion, and therefore they do to some extent make law. Where precedents do not spell out what should be done in a case before them, judges nevertheless have to make a decision. They cannot simply say that the law is not clear and refer it back to Parliament, even though in some cases they point out that the decision before them would be more appropriately decided by those who have been elected to make decisions on changes in the law. This was the case in Airedale NHS Trust v Bland (1993), where the House of Lords considered the fate of Tony Bland, the football supporter left in a coma after the Hillsborough stadium disaster. The court had to decide whether it was lawful to stop supplying the drugs and artificial feeding that were keeping Mr. Bland alive, even though it was known that doing so would mean his death soon afterwards. Several Law Lords made it plain that they felt that cases raising ‘wholly new moral and social issues’ should be decided by Parliament, the judges’ role being to ‘apply the principles which society, through the democratic process, adopts, not to impose their standards on society’. Nevertheless, the court had no option but to make a decision one way or the other, and the judges decided the action was lawful in the circumstances, because it was in the patient’s best interests. Thirdly, our judges have been left to define their own role, and the role of the courts generally in the political system, more or less as they please. They have, for example, given themselves the power to review decisions of any public body, even when Parliament has said those decisions are not to be reviewed. And despite their frequent pronouncements that it is not for them to interfere in Parliament’s law-making role, the 74  INTRODUCTION TO LAW – LAW1064 judges have made it plain that they will not, unless forced by very explicit wording, interpret statutes as encroaching on common law rights or judge-made law (see p. 65). They also control the operation of case law without reference to Parliament: an obvious example is that the 1966 Practice Direction announcing that the House of Lords would no longer be bound by its own decisions, which made case law more flexible and thereby gave the judges more power, was made on the court’s own authority, without needing permission from Parliament. The House of Lords has explained its approach to judicial law-making (which is the same for the Supreme Court) in the case of C (A Minor) v DPP (1995) which raised the issue of children’s liability for crime. The common law defense of doli incapax provided that a defendant aged between 10 and 14 could be liable for a crime only if the prosecution could prove that the child knew that what he or she did was seriously wrong. On appeal from the magistrates’ court, the Divisional Court held that the defense was outdated and should no longer exist in law. An appeal was brought before the House of Lords, arguing that the Divisional Court was bound by precedent and not able to change the law in this way. The House of Lords agreed and went on to consider whether it should change the law itself (as the 1966 Practice Direction clearly allowed it to do) but decided that this was not an appropriate case for judicial law-making. Explaining this decision, Lord Lowry suggested five factors were important: Where the solution to a dilemma was doubtful, judges should be wary of imposing their own answer. Judges should be cautious about addressing areas where Parliament had rejected opportunities of clearing up a known difficulty or had passed legislation without doing so. Areas of social policy over which there was dispute were least likely to be suitable for judicial law-making. Fundamental legal doctrines should not be lightly set aside. Judges should not change the law unless they can be sure that doing so is likely to achieve finality and certainty on the issue. This guidance suggests that the judges should take quite a cautious approach to changing the law. In practice, however, the judges do not always seem to be following these guidelines. For example, in an important criminal case of R v Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence (1888) and held that criminal 75  INTRODUCTION TO LAW – LAW1064 liability could be imposed on a defendant for recklessly infecting another person with HIV. This change in the law was made despite the fact that the Home Office had earlier decided that legislation should not be introduced which would have imposed liability in this situation (Violence: Reforming the Offences Against the Person Act 1861 (1998)). The Home Office had observed that ‘this issue had ramifications going beyond the criminal law into wider considerations of social and public health policy’. Some commentators feel that the judiciary’s current approach is tending to go too far and straying outside its constitutional place. Writing in the New Law Journal in 1999, Francis Bennion, a former parliamentary counsel, criticized what he called the ‘growing appetite of some judges for changing the law themselves, rather than waiting for Parliament to do it’. Bennion cites two cases as examples of this. The first, Kleinwort Benson Ltd v Lincoln City Council (1998), concerns contract law, and in particular, a long-standing rule, originating from case law, that where someone made a payment as a result of a mistake about the law, they did not have the right to get the money back. The rule had existed for nearly two centuries and been much criticized in recent years so much so that a previous Lord Chancellor had asked the Law Commission to consider whether it should be amended by legislation, and they had concluded that it should. This would normally be taken by the courts as a signal that they should leave the issue alone and wait for Parliament to act, but in this case the Lords decided to change the rule. In doing so, Lord Keith expressed the view that ‘a robust view of judicial development of the law’ was desirable. Bennion argues that, in making this decision, the Lords were usurping the authority which constitutionally belongs to Parliament. He also points out that judicial, rather than parliamentary, change of the law in this kind of area causes practical difficulties, because it has retrospective effect; a large number of transactions which were thought to be settled under the previous rule can now be reopened. This would not usually be the case if Parliament changed the law. The second case Bennion criticizes is DPP v Jones (1999), which concerned a demonstration on the road near Stonehenge. In that case the Lords looked at another long-held rule, that the public have a right to use the highway for ‘passing and repassing’ (in other words, walking along the road), and for uses which are related to that, but that there is no right to use the highway in other ways, such as demonstrating or picketing. In Jones, the House of Lords stated that this rule placed unrealistic and unwarranted restrictions on everyday activities, and that the highway is a public place that the public 76  INTRODUCTION TO LAW – LAW1064 has a right to enjoy for any reasonable purpose. This decision clearly has major implications for the powers of the police to break up demonstrations and pickets. Bennion argues that, in making decisions like these, the judiciary are taking powers to which they are not constitutionally entitled, and that they should not extend their law- making role into such controversial areas. Advantages of case law a. Certainty Judicial precedent means litigants can assume that like cases will be treated alike, rather than judges making their own random decisions, which nobody could predict. This helps people plan their affairs. b. Detailed practical rules Case law is a response to real situations, as opposed to statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and thus gives more information than statute. c. Free market in legal ideas The right-wing philosopher Hayek (1982) has argued that there should be as little legislation as possible, with case law becoming the main source of law. He sees case law as developing in line with market forces: if the ratio of a case is seen not to work, it will be abandoned; if it works, it will be followed. In this way the law can develop in response to demand. Hayek sees statute law as imposed by social planners, forcing their views on society whether they like it or not, and threatening the liberty of the individual. d. Flexibility Law needs to be flexible to meet the needs of a changing society, and case law can make changes far more quickly than Parliament. The most obvious signs of this are the radical changes the House of Lords made in the field of criminal law, following announcing in 1966 that its judges would no longer be bound by their own decisions. 77  INTRODUCTION TO LAW – LAW1064 Disadvantages of case law a. Complexity and volume There are hundreds of thousands of decided cases, comprising several thousand volumes of law reports, and more are added all the time. With the development of the internet, almost every decided case is available online or in legal databases. Judgments themselves are long, with many judges making no attempt at readability, and the ratio decidendi of a case may be buried in a sea of irrelevant material. This can make it very difficult to pinpoint appropriate principles. A possible solution to these difficulties would be to follow the example of some European systems, where courts hand down a single concise judgment with no dissenting judgments. However, some of these decisions can become so concise that lawyers are required to do considerable research around the specific words used to discover the legal impact of the case, because no detailed explanation is provided by the judges. b. Rigid The rules of judicial precedent mean that judges should follow a binding precedent even where they think it is bad law, or inappropriate. This can mean that bad judicial decisions are perpetuated for a long time before they come before a court high enough to have the power to overrule them. c. Illogical distinctions The fact that binding precedents must be followed unless the facts of the case are significantly different can lead to judges making minute distinctions between the facts of a previous case and the case before them, so that they can distinguish a precedent which they consider inappropriate. This in turn leads to a mass of cases all establishing different precedents in very similar circumstances, and further complicates the law. d. Unpredictable The advantages of certainty can be lost if too many of the kind of illogical distinctions referred to above are made, and it may be impossible to work out which precedents will be applied to a new case. 78  INTRODUCTION TO LAW – LAW1064 e. Dependence on chance Case law changes only in response to those cases brought before it, so important changes may not be made unless someone has the money and determination to push a case far enough through the appeal system to allow a new precedent to be created. f. Unsystematic progression Case law develops according to the facts of each case and so does not provide a comprehensive code. A whole series of rules can be built on one case, and if this is overruled the whole structure can collapse. g. Lack of research When making case law the judges are only presented with the facts of the case and the legal arguments, and their task is to decide on the outcome of that particular dispute. Technically, they are not concerned with the social and economic implications of their decisions, and so they cannot commission research or consult experts as to these implications, as Parliament can when changing the law. Increasingly, the senior courts have been willing to allow interveners to make representations in the public interest during court proceedings. Such an intervener might be, for example, a charitable body, such as Liberty or JUSTICE, and it will present to the court arguments about the broader impact of the case on society, provide comparisons with practice abroad and refer to socioeconomic research in the field. In the House of Lords’ last year of operation, it allowed third-party interveners to make representations in almost a third of its cases. h. Retrospective effect Changes made by case law apply to events which happened before the case came to court, unlike legislation, which usually only applies to events after it comes into force. This may be considered unfair, since if a case changes the law, the parties concerned in that case could not have known what the law was before they acted. US courts sometimes get round the problems by deciding the case before them according to the old law, while declaring that in future the new law 79  INTRODUCTION TO LAW – LAW1064 will prevail, or they may determine with what degree of retroactivity a new rule is to be enforced. Legislation Introduction Statutes are made by Parliament, which consists of the House of Commons, the House of Lords, and the Monarch. Another term for a statute is an Act of Parliament. In Britain, Parliament is sovereign, which has traditionally meant that the law it makes takes precedence over law originating from any other source though, as we shall see, membership of the European Union (EU) has compromised this principle. EU law aside, Parliament can make or cancel any law it chooses, and the courts must enforce it. In other countries, such as the United States of America, the courts can declare such legislation unconstitutional, but our courts are not allowed to do that. House of Commons The House of Commons is the democratically elected chamber of Parliament. Every four to five years Members of Parliament (MPs) are elected in a general election. There are 646 MPs who discuss the big political issues of the day and proposals for new laws. House of Lords The House of Lords acts as a revising chamber for legislation and its work complements the business of the Commons. Members of the House of Lords are not elected by the general public, instead the majority are appointed by the Queen on the recommendation of the House of Lords Appointments Commission. The House of Lords currently has over 800 members, divided into four different types: life peers. retired judges of the former House of Lords’ judicial committee. 80  INTRODUCTION TO LAW – LAW1064 bishops elected hereditary peers. Life peers are appointed for their lifetime only, so the right to sit in the House of Lords is not passed on to their children. Making an Act of Parliament Policy development Before the parliamentary legislative process begins, usually a policy objective will have been identified by the Government of the day. This policy objective may have been set out in an election manifesto or included in an official consultation document, known as a Green Paper. The latter document puts forward tentative proposals, which interested parties may consider and give their views on. The Green Paper will be followed by a White Paper, which contains the specific reform plans. The Government’s legislative plans for a parliamentary session are outlined in the Queen’s Speech in May. Bills All statutes begin as a Bill, which is a proposal for a piece of legislation. There are three types of Bills: a. Public Bills These are written by parliamentary counsel who specialize in drafting legislation. They are presented to Parliament by Government ministers and change the general law of the whole country. b. Private Members’ Bills These are prepared by an individual backbench MP (someone who is not a member of the Cabinet). MPs wanting to put forward a Bill have to enter a ballot to win the right to do so, and then persuade the Government to allow enough parliamentary time for the Bill to go through. Consequently, very few such Bills become Acts, and they tend to function more as a way of drawing attention to particular issues. Some, however, have made important contributions to legislation, an example being the Abortion Act 1967 which stemmed from a Private Member’s Bill put forward by David Steel. 81  INTRODUCTION TO LAW – LAW1064 c. Private Bills These are usually proposed by a local authority, public corporation or large public company, and usually only affect that sponsor. An example might be a local authority seeking the right to build a bridge or road. The actual preparation of Bills is done by expert draftsmen known as parliamentary counsel. First Second Bills Reading Reading Committee Report Third Stage Stage Reading House of Royal Lords Assent Making an Act of Parliament First reading The title of the prepared Bill is read to the House of Commons. This is called the first reading, and acts as a notification of the proposed measure. Second reading At the second reading, the proposals are debated fully, and may be amended, and members vote on whether the legislation should proceed. In practice, the whip system (party officials whose job is to make sure MPs vote with their party) means that a government with a reasonable majority can almost always get its legislation through at this and subsequent stages. Committee stage The Bill is then referred to a committee of the House of Commons for detailed examination, bearing in mind the points made during the debate. At this point further amendments to the Bill may be made. 82  INTRODUCTION TO LAW – LAW1064 Report stage The committee then reports back to the House, and any proposed amendments are debated and voted upon. Third reading The Bill is re-presented to the House. There may be a short debate, and a vote on whether to accept or reject the legislation as it stands. House of Lords The Bill then goes to the House of Lords, where it goes through a similar process of three readings. If the House of Lords alters anything, the Bill returns to the Commons for further consideration. The Commons then responds with agreement, reasons for disagreement, or proposals for alternative changes. At one time legislation could not be passed without the agreement of both Houses, which meant that the unelected House of Lords could block legislation put forward by the elected House of Commons. 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. Four Acts of Parliament have been passed to date relying on the Parliament Act 1949: War Crimes Act 1991. European Parliamentary Elections Act 1999. Sexual Offences (Amendment) Act 2000. Hunting Act 2004. Royal Assent In the vast majority of cases, agreement between the Lords and Commons is reached, and the Bill is then presented for Royal Assent. Technically, the Queen must give her consent to all legislation before it can become law, but in practice that consent is never refused. 83  INTRODUCTION TO LAW – LAW1064 The Bill is then an Act of Parliament, and becomes law, though most do not take effect from the moment the Queen gives her consent, but on a specified date in the near future or when a commencement order has been issued by a government minister. Delegated legislation Introduction In many cases the statutes passed by Parliament lay down a basic framework of the law, with creation of the detailed rules delegated to others. There are three main forms of delegated legislation: statutory instruments, bye-laws and Orders in Council. Statutory instruments Statutory instruments were created by the Statutory Instruments Act 1946. There are four forms of statutory instrument (Pywell, 2013): a. Regulations. These are used to make substantive law. b. Orders of Council. These are made by the Privy Council and usually involve rubberstamping the detailed rules regulating the professions. c. Orders. These are usually made by Government Ministers and serve a narrow purpose, such as commencement orders (stating when a statutory provision will come into force) and legislative reform orders. d. Rules. These are procedural rules which lay down how things should be done, rather than what should be done, such as the Civil Procedure Rules. 84  INTRODUCTION TO LAW – LAW1064 Bye-laws Bye-laws are made by local authorities, public and nationalized bodies, and deal with matters within their limited jurisdiction. Bye-laws have to be approved by central Government. Orders in Council Orders in Council are approved by the Privy Council and signed by the Queen. They are used when an ordinary statutory instrument made by a Minister would be inappropriate, such as in times of emergency or where the order involves the transfer of ministerial power. For example, under the Civil Service (Amendment) Order in Council 1997, Tony Blair gave himself the power to appoint up to three people to the Prime Minister’s Office outside the normal Civil Service recruitment procedure. He used this power to appoint his two most trusted political advisers: Alastair Campbell and Jonathan Powell. The involvement of the monarch is necessary because of the potentially far-reaching consequences of Orders in Council. The power to make delegated legislation Ordinary members of the public cannot decide on a whim to make delegated legislation. Instead, usually an Act of Parliament is required, known as an enabling Act, which gives this power to a branch of the state. The Act can be quite specific, giving a limited power to make legislation on a very narrow issue, or it can be quite general and allow for a wide range of delegated legislation to be made. An example of such a general provision is the European Communities Act 1972, s. 2, which allows the executive to make delegated legislation to bring into force in the UK relevant European legislation. Local authorities have been given a general power to make bye-laws under s. 235 of the Local Government Act 1972. Recent years have seen a move towards centralized government and therefore a reduced role for bye-laws. The Labor Government, however, favored the use of local bye-laws to strengthen community involvement in regulating behavior in their local areas. To facilitate the use of bye-laws the Local Government and Public Involvement in Health Act 2007 was passed containing provisions for a faster legislative process for some bye-laws. 85  INTRODUCTION TO LAW – LAW1064 Why is delegated legislation necessary? Delegated legislation is necessary for several reasons: a. Insufficient parliamentary time Parliament does not have the time to debate every detailed rule necessary for efficient government. b. Speed It allows rules to be made more quickly than they could by Parliament. Parliament does not sit all the time, and its procedure is slow and cumbersome; delegated legislation often has to be made in response to emergencies and urgent problems. c. Technicality of the subject matter Modern legislation often needs to include detailed, technical provisions – those in building regulations or safety at work rules for example. MPs do not usually have the technical knowledge required, whereas delegated legislation can use experts who are familiar with the relevant areas. d. Need for local knowledge Local bye-laws in particular can only be made effectively with awareness of the locality. Recognition of the importance of local knowledge can be found with the devolved assemblies for Scotland, Wales, and Northern Ireland. These democratic bodies have important powers to make delegated legislation. e. Flexibility Statutes require cumbersome procedures for enactment and can only be revoked or amended by another statute. Delegated legislation, however, can be put into action quickly, and easily revoked if it proves problematic. f. Future needs Parliament cannot hope to foresee every problem that might arise as a result of a statute, especially concerning areas such as health provision or welfare benefits. Delegated legislation can be put in place as and when such problems arise. 86  INTRODUCTION TO LAW – LAW1064 Control of delegated legislation Because it is not directly made by elected representatives, delegated legislation is subject to the following range of controls, designed to ensure that the power delegated is not abused. a. Consultation Those who make delegated legislation often consult experts within the relevant field, and those bodies which are likely to be affected by it. In the case of road traffic regulations, for example, Ministers are likely to seek the advice of police, motoring organizations, vehicle manufacturers and local authorities before making the rules. Often the relevant statute makes such consultation obligatory and names the bodies which should be consulted. Under the National Insurance Act 1946, for example, draft regulations must be submitted to the National Insurance Advisory Committee. In other cases, there may be a general statutory requirement for ‘such consultation as the minister thinks appropriate with such organizations as appear to him to represent the interest concerned’. Statutory instruments made under the Legislative and Regulatory Reform Act 2006 can only be made after interested parties have been consulted. b. Publication All delegated legislation is published, and therefore available for public scrutiny. Alongside the statutory instrument, the Government now publishes an explanatory memorandum detailing the statutory instrument’s policy objective and legislative context. The importance of publishing legislation was emphasized in a European case in 2009. A man had been prevented from getting on a plane with a tennis racket as hand luggage. The airline had pointed to some European regulations that prohibited certain articles from being taken on board the plane for security reasons. The relevant items were listed in an appendix which had been published but when the appendix was amended the amended version was not published. The passenger claimed that the amended regulations could not be enforced against him because they had never been published. This argument was accepted by the court because governments should not be allowed to pass secret legislation; the public should be able to ascertain the scope of their rights and obligations under the law. 87  INTRODUCTION TO LAW – LAW1064 c. Supervision by Parliament There are a number of ways in which Parliament can oversee delegated legislation. d. Revocation Parliamentary sovereignty means that Parliament can at any time revoke a piece of delegated legislation itself or pass legislation on the same subject as the delegated legislation. e. The negative resolution procedure Much delegated legislation is put before Parliament for MPs under the negative resolution procedure. Within a specified time (usually 40 days), any member may put down a motion to annul it. An annulment motion put down by a backbencher is not guaranteed to be dealt with, but one put down by the Official Opposition (the party with the second largest number of MPs) usually will be. If, after debate, either House passes an annulment motion, the delegated legislation is cancelled. Criticism of delegated legislation a. Lack of democratic involvement This argument is put forward because delegated legislation is usually made by civil servants, rather than elected politicians. This is not seen as a particular problem where the delegated legislation takes the form of detailed administrative rules, since these would clearly take up impossible amounts of parliamentary time otherwise. However, in the latter years of the last Conservative Government there was increasing concern that delegated legislation was being used to implement important policies. The power to overturn an Act of Parliament by ministerial order is known as a Henry VIII power because Henry VIII legislated to give his declarations the same legal status as Acts of Parliament. Henry VIII clauses in legislation amount to an attack on parliamentary supremacy. While ordinary delegated powers create a mechanism for the executive to supplement parliamentary statutes, Henry VIII clauses allow the executive to amend or repeal such statutes. The executive should not be able to overrule primary legislation because this undermines Parliament’s power. The Public Bodies Act 2011 88  INTRODUCTION TO LAW – LAW1064 contains a list of public bodies (called quangos) which the Government is entitled to abolish by delegated legislation – the media has called this the ‘bonfire of the quangos’. This power amounts to a Henry VIII power because it allows Ministers by order to amend or abolish bodies that were established by primary legislation. The role of the Privy Council in passing delegated legislation is particularly sensitive because it is not a democratic body. The civil rights group, JUSTICE, published a report in 2009 pointing out that Orders in Council made by the Privy Council had been used to abolish the right of trade union membership for some civil servants and to force residents of the Chagos Islands to leave their homes and prevent them from returning. b. Overuse Critics argue that there is too much delegated legislation; this is linked to the point above, as there would be little problem with increasing amounts of delegated legislation if its purpose was merely to flesh out technical detail. c. Sub-delegation Delegated legislation is sometimes made by people other than those who were given the original power to do so. d. Lack of control Despite the above list of controls over delegated legislation, the reality is that effective supervision is difficult. First, publication has only limited benefits, given that the general public are frequently unaware of the existence of delegated legislation, let alone on what grounds it can be challenged and how to go about doing so. This in turn has an effect on the ability of the courts to control delegated legislation, since judicial review relies on individual challenges being brought before the courts. This may not happen until years after a provision is enacted, when it finally affects someone who is prepared and able to challenge it. The obvious result is that legislation which largely affects a class of individuals who are not given to questioning official rules, are unaware of their rights, or who lack the financial resources to go to court, will rarely be challenged. A further problem is that some enabling Acts confer extremely wide discretionary powers on Ministers; a phrase such as ‘the Minister may make such regulations as he sees 89  INTRODUCTION TO LAW – LAW1064 fit for the purpose of bringing the Act into operation’ would not be unusual. This means that there is very little room for anything to be considered ultra vires, so judicial review is effectively frustrated. The main method of control over delegated legislation is therefore parliamentary, but this too has its drawbacks. Although the affirmative resolution procedure usually ensures that parliamentary attention is drawn to important delegated legislation, it is rarely possible to prevent such legislation being passed. The Select Committee on the Scrutiny of Delegated Powers makes an important contribution and has been able to secure changes to a number of important pieces of legislation. However, it too lacks real power, as it is unable to consider the merits of delegated legislation (as opposed to whether the delegated powers have been correctly used) and its reports have no binding effect. 90  INTRODUCTION TO LAW – LAW1064 Organization of courts The hierarchy of the courts a. Court of Justice of the European Union Decisions of the Court of Justice of the European Union on European law are binding on all English courts (European Communities Act 1972, s. 3(1)). Although the European Court tends to follow its own previous decisions, it is not bound to do so. b. Supreme Court Apart from cases concerning European law, the Supreme Court is the highest appeal court on civil and criminal matters, and all other English courts are bound by it. The Supreme Court replaced the long-established House of Lords in 2009 and the rules of precedent are expected to be exactly the same for the Supreme Court as they were for the House of Lords before it. The House of Lords was 91  INTRODUCTION TO LAW – LAW1064 traditionally bound by its own decisions, but in 1966 the Lord Chancellor issued a Practice Statement saying that the House of Lords was no longer bound by its previous decisions. In practice, the House of Lords only rarely overruled one of its earlier decisions, and this reluctance is illustrated by the case of R v Kansal (No. 2) (2001). – refers to the textbook. c. Privy Council The Privy Council was established by the Judicial Committee Act 1833. It is the final appeal court for outlying British or formerly British territories, such as Jamaica, Gibraltar, and the Isle of Man. The judges of the Supreme Court sit in the Privy Council. It is based in the new buildings of the Supreme Court but remains a separate entity. In 2014, it heard 43 appeals. Under the traditional rules of precedent, the decisions of the Privy Council do not bind English courts but have strong persuasive authority because of the seniority of the judges who sit in the Privy Council (de Lasala v de Lasala (1980)). This well-established rule of precedent has been thrown into doubt by the recent Court of Appeal judgment of R v James and Karimi (2006). The Court of Appeal held that, in exceptional circumstances, a Privy Council judgment can bind the English courts and effectively overrule an earlier House of Lords judgment. This conflicts with the traditional approach to such judgments (and the expected approach to judgments of the Supreme Court), confirmed by the House of Lords in Miliangos v George Frank (Textiles) Ltd (1976) that ‘the only judicial means by which decisions of this House can be reviewed is by this House itself’. d. Court of Appeal This is split into Civil and Criminal Divisions; they do not bind each other. Both are bound by decisions of the old House of Lords, and the new Supreme Court. In the Criminal Division, the results of cases heard may decide whether or not an individual goes to prison, so the Criminal Division takes a more flexible approach to its previous decisions and does not follow them were doing so could cause injustice. In R v Simpson (2003) the Court of Appeal stated that it had a degree of discretion to decide whether one of its earlier decisions should be treated as binding on itself when there were grounds for saying the earlier decision was wrong. This dicta was narrowly interpreted in R v Magro (2010), where the Court 92  INTRODUCTION TO LAW – LAW1064 of Appeal held that its earlier decision in R v Clarke (2009) was wrong, but it was still not able to overrule it because the earlier decision had benefited from full argument of the relevant legislation and case law and the judges closely analyzed the point. Thus, R v Simpson was interpreted as simply referring to the per incuriam rule that an earlier case would not be binding if it was made in ignorance of a relevant law (at least when the earlier case benefits the defendant). e. High Court This court is divided between the Divisional Courts and the ordinary High Court. All are bound by the Court of Appeal, the old House of Lords, and the new Supreme Court. The Divisional Courts are the Queen’s Bench Division, which deals with criminal appeals and judicial review, the Chancery Division, and the Family Division, which both deal with civil appeals. The two civil Divisional Courts are bound by their previous decisions, but the Divisional Court of the Queen’s Bench is more flexible about this, for the same reason as the Criminal Division of the Court of Appeal. The Divisional Courts bind the ordinary High Court. The ordinary High Court is not bound by its own previous decisions. It can produce precedents for courts below it, but these are of a lower status than those produced by the Court of Appeal, the old House of Lords, or the new Supreme Court. f. Crown Court The Crown Court is bound by all the courts above it. Its decisions do not form binding precedents, though when High Court judges sit in the Crown Court, their judgments form persuasive precedents, which must be given serious consideration in successive cases, though it is not obligatory to follow them. When a circuit or district judge is sitting no precedents are formed. Since the Crown Court cannot form binding precedents, it is obviously not bound by its own decisions. g. Magistrates’ courts The magistrates’ courts hear mainly summary criminal cases. They are bound by the High Court, the Court of Appeal, and the Supreme Court. Their own decisions 93  INTRODUCTION TO LAW – LAW1064 are not reported, and cannot produce binding precedents, or even persuasive ones. Like the Crown Court, they are therefore not bound by their own decisions. h. County Court The County Court hears low-value civil cases. It is a court of record so it can set precedents for itself, but not for higher courts. It is bound by the High Court, the Court of Appeal, and the Supreme Court. i. European Court of Human Rights The European Court of Human Rights (ECtHR) is an international court based in Strasbourg. It hears cases alleging that there has been a breach of the European Convention on Human Rights. This court does not fit neatly within the hierarchy of the courts. Under s. 2 of the Human Rights Act 1998, an English court ‘must take account of’ the cases decided by the ECtHR. This would suggest that the decisions of the ECtHR are not completely binding on UK courts. Usually the jurisprudence of the ECtHR, having been taken into account, would be followed, but the domestic courts are not bound to do so. There is considerable debate about how s. 2 should be interpreted which is linked to a broader debate about how much influence the ECtHR should have in the United Kingdom. Under what has become known as the ‘mirror principle’, it has been suggested that the domestic courts should seek to mirror the interpretation of Convention rights to the interpretation given by the ECtHR. 94  INTRODUCTION TO LAW – LAW1064 CHAPTER 6 Introduction to Malaysian legal system INTRODUCTION Malaysia’s legal system reflects its social and political history. Local and foreign influences like the English, Dutch, Portuguese, Indians, Chinese, Arabs and many others have affected our legal system. Our legal system consists of the various sources of law, the forms of law and also components such as the courts and the legal personnel involved. SOURCES OF MALAYSIAN LAW The main sources of Malaysian law are as follows: 95  INTRODUCTION TO LAW – LAW1064 Malaysian law is made up of written and unwritten sources of law: Written Sources Written sources of the law refer to laws found in the Federal and state Constitutions, statutes or acts made by the Parliament and delegated or subsidiary legislation. Details about written sources of Malaysian law can be found in table below. 96  INTRODUCTION TO LAW – LAW1064 Unwritten Sources This is the part of Malaysian law which is unwritten in that it is not found in any legislation made by the Parliament or the State Assemblies or in the Federal and State constitutions. Unwritten law comes from the following sources: a. English Common Law and Rules of Equity Common law refers to law which resulted from the decisions of judges and legal rules and principles of law which were applied in common throughout the United Kingdom. Common law includes Rules of Equity which are rules developed to counter the harshness of the law. Rules of Equity are based on principles of fairness and justice to overcome the rigid application of the law. This type of law was received and applied in the Malaysian legal system because of the application of the Civil Law Act 1956 (Revised 1972). Section 3 (1) Civil Law Act 1956 states that in Peninsular Malaysia, the court shall apply the Common Law of England and Rules of Equity as applied in England until 7 April 1956. As a result of the Civil Law Act, English Common Law and Rules of Equity continue to apply in Malaysia. However, there are three limitations to the applicability of English Common Law and Rules of Equity in Malaysia. English Law will apply only where: a. There is no local law governing the matter. b. It is suitable to local circumstances. c. Judicial decisions of the higher courts, i.e., the High Court, Court of Appeal and the Federal Court. Decisions of judges sitting in higher courts can make an impact on the law. Important or landmark decisions will be followed by other judges in similar cases, and this is why it becomes a precedent/judge-made law. Under the doctrine of binding, judicial precedent, which is applied in Malaysia, decisions of higher courts must be followed by judges in lower courts in similar cases. 97  INTRODUCTION TO LAW – LAW1064 The reason for the importance of judicial precedent is that it ensures a fair and uniformed application of the law. Besides that, judges also make the law when they interpret statutes to give meaning to words used in a statute whose meaning is not clear. b. Customs/Adat The customary practices and law of local inhabitants of Malaysia are another source of law. Today, customs relating to marriage, divorce and inheritance are being given legal force by the courts of Malaysia. Many of the customs relating to family matters have been incorporated into local laws such as that of the Malays, Chinese, Hindu and the native customary laws of Sabah and Sarawak. c. Syariah/Islamic Law Syariah law applies only to Muslims and is administered separately under the Syariah legal system. Syariah Law is under the State Constitutions and is therefore administered at state level by a separate system of courts called Syariah courts. Examples of offences that can be tried in Syariah courts are khalwat (close proximity), zina (adultery), failure to fast in the fasting month, consumption of alcohol and many more. The federal constitution As we have seen, the Federal Constitution is the legal framework of the country which tells us what type of government we have, its powers and the rights of the citizens. The Federal Constitution has the following features: e. It lays down the powers of the Federal and State Governments. For example: It divides power between them. f. The Federal Constitution follows the principles of the separation of power. For example: i. The legislature - makes the law. ii. The executive - administers the country and enforces the law. iii. The judiciary - settles any legal disputes. 98  INTRODUCTION TO LAW – LAW1064 Thus, the Constitution outlines the differences between them by detailing the rights and powers of each body. g. It outlines the fundamental rights of citizens. These rights are also called the fundamental liberties or the human rights or freedom of people. For example, they include the right to equality under Article 8 and the right to life under Article 5. As the Federal Constitution is really the backbone of our legal system, it cannot be easily changed or amended. This is why in order to change or amend the Federal Constitution, a two-third majority of the members of the Parliament must agree to it. Acts or statutes, however, can be amended by a simple majority. The Federal Constitution is divided into different parts and each part of the Federal Constitution contains articles, which provide for various rights, which are also called fundamental rights or guarantees for citizens of Malaysia. Each state has its own constitution regulating the government of that State. The provisions of the State Constitution have been clearly outlined and enumerated in the Eighth Schedule to the Federal Constitution. Some of the matters, which State Constitutions deal with, concern the Ruler, the Executive Council, the Legislature, the Legislative Assembly, financial provisions and the amendment of the Constitution. If any provision is missing in a State Constitution, or if it is inconsistent with the Federal Constitution, then only the Parliament can remove this inconsistency. Until this happens, the dispute will be decided by the Federal Court. LEGISLATION AND JUDGE-MADE LAW In the following sections you will learn about laws made by the Parliament and judge- made laws. Laws Made by Parliament Federal Law in Malaysia is made by, or with the authority of, the Parliament. This legislation is called direct legislation. Subsidiary delegated or indirect legislation is created by a body which has been given the power to make it under a parent or enabling Act. 99  INTRODUCTION TO LAW – LAW1064 There are stages in the legislative process. An Act of Parliament begins its life as a Bill. To become law, the Bill must be passed by both the lower house/house of representatives or as in Malaysia, Dewan Rakyat and then, the upper house/the senate, or as in Malaysia, the Dewan Negara. After that, the Bill needs approval from the Yang DiPertuan Agong and finally, it must be published in the Government Gazette before it can be enforced. State laws follow the same procedures as Federal laws. The assent is given by the Ruler or the Governor of the state. Then, it is required to be published in the Gazette of that state. Laws Made by Judges Judge-made law can also be termed as case law/common law. We have already seen how law can be made by the Parliament, i.e., statutory law or Acts of Parliament and by the executive, i.e., delegated legislation. Judges make laws through: a. The process of adjudication i.e., the judge’s decision In our courts, we follow the adversarial system, i.e., two opposing parties (for example, one party is accusing, and the other party is defending) present their arguments before a judge. After listening to these opposing parties, the judge will 100  INTRODUCTION TO LAW – LAW1064 make his decision. This decision is an important source of Malaysian law. When arriving at his decision, the judge will apply legal principles to the facts of the case and even come up with new principles if there were none before. These legal principles of the judge will then form a guide called precedence which can be used in future when another judge has to deal with a similar case. b. The process of judicial precedent Judicial precedent happens when judges of the higher courts make a decision, which may be so important that judges in the lower courts will follow the higher court’s decision. Usually, cases which are of public interest and importance will be followed by other judges in similar cases and this is why it becomes a precedent. Under the doctrine of binding judicial precedent, decisions of higher courts must be followed by the judges in lower courts involving similar cases. In this way, judicial precedent allows the law to be applied the same way for the same type of cases. c. Statutory interpretation Statutory interpretation is the process of interpreting or giving meaning to words in a statute or act. In many cases, parties come to court arguing on the meaning of certain words in a statute. The judge must give meaning to the words used. By this process of interpreting the words, the judge is said to be creating law. In order to carry out the interpretation of statutes, rules and approaches have been developed over the years to assist the judges. These are as follows: i. The Literal Rule ii. The Golden Rule iii. The Mischief Rule iv. The Language Rules and Presumptions v. External and internal aids of construction. Although these rules were developed over the years by English courts, Malaysian courts accept them, and judges apply them in interpreting statutes. We will now look at the explanation for each rule. 101  INTRODUCTION TO LAW – LAW1064 The Literal Rule The judges give a word or phrase its literal/ordinary dictionary meaning. Thus, the meaning of the words must be given according to their natural and ordinary use. Today, many judges favour this rule but unfortunately, it may be contrary to the intention of the Parliament. In the case of Fisher v Bell, a shopkeeper was charged under the Restriction of Offensive Weapons Act 1959 for offering for sale certain weapons including flick knives. When he displayed this knife in the shop window, the court held that the display was not an offer for sale but merely an invitation to treat or an invitation to make an offer. The court applied the literal rule. The shopkeeper was held not guilty. The Golden Rule Under this rule, the grammatical and ordinary meaning of words must be followed unless it leads to an absurdity or repugnancy or inconsistency in the law. To prevent such a thing from happening, the grammatical and ordinary meaning must be avoided. The Mischief Rule This rule allows the court to interpret the word in phrases in the light of a statute as a whole. The court would inquire into the mischief (or the wrong) behind the statute and look into the intention of the Parliament in creating the act. The court would then consider the matters outlined in Hendon’s Case (1584) which are as follows: - The common law before the Act. - The mischief and defect for which the common law did not provide. - The remedy Parliament intended to cure the mischief. - The true reason for the remedy. Here, the duty of the court in interpreting a statute is to suppress the mischief and promote the remedy according to the intention of Parliament. 102  INTRODUCTION TO LAW – LAW1064 The Purposive Approach This approach takes into consideration the effect of Section 17A of the Interpretation Acts 1948 and 1967 which require courts to promote the purpose or object underlying the Act to be interpreted. This is unlike the mischief rule which requires the court to, among other things, identify the purpose of the act in question to cure the mischief. Language Rules, Presumptions and Aids to Interpretation Generally, words or phrases in an act must be construed as a whole by the courts. That is to say, each section must be read with the other sections of the act, and words and phrases in sections according to the section as a whole. One good example is the Edjusdem Generis Rule which states that where particular words are followed by general words, the particular words are said to create a class or genus which then limits the general words to the same class or genus. For example, in the case of Powel v Kempton Racing Co AC 143, the court had to consider whether a racecourse came under the Betting Act 1853 which prohibited betting in any “house, office, room or other place”. The court held that as these were all indoor places, the general words “or other place” applied only to indoor places and thus, a racecourse was not included as it was outdoors. Presumptions are values or principles which are important. They apply when a statute is silent unless they are clearly excluded. Some common presumptions in interpreting statutes are: a. The presumption that the law will not apply retrospectively or backwards in time. b. The law will not allow property to be confiscated without compensation. 103  INTRODUCTION TO LAW – LAW1064 There are two types of aids, which are as follows: Internal aid: This refers to those parts of a statute which assist the judge in interpreting the statute. For example, the short title of the act, the preamble, schedule, marginal notes and even punctuation used. External aid: This is any material the court may use other than the Act itself. This will include dictionaries, interpretation statutes, judicial decisions, and even parliamentary reports on the statute in question. Delegated Legislation Sometimes, we may find ourselves dealing with rules and regulations made by certain government bodies or agencies. Take your local town council as an example. It comes up with many regulations and by-laws. These rules and regulations are called subsidiary legislation as they are considered subsidiary to the law passed by the Parliament or State Assembly. Such legislation developed over time because it was difficult to deal with every matter affecting people in everyday life. Thus, subsidiary legislation deals with matters for which the legislature does not have the time or technical knowledge to make laws. The Parliament may lay down a parent or enabling act in broad terms, leaving the details to be filled in by the local government or some other organization. This is how legislative power is delegated to bodies other than Parliament and State Assemblies. 104  INTRODUCTION TO LAW – LAW1064 Table 2.2 shows several advantages and disadvantages of subsidiary legislation. Reception of English law in Malaysia The British Colony was established in 1786 in Penang, the spread to Singapore and Melaka. This was known as the Straits Settlement. Foreign influence in Malaysia can be seen way as far back as 1511. Portuguese occupied Malacca from 1511-1641. The Sultan of Malacca fled first to Pahang and then to Johor and the Riau Archipelago. One of his sons became the first sultan of Perak. The attack on both Johor and Aceh in Sumatra was unsuccessful therefore, attacks were made on Malacca. Aceh and Johor also fought each other. The main issue in these struggles was control of trade through 105  INTRODUCTION TO LAW – LAW1064 the Strait of Malacca. Kedah, Kelantan, Terengganu and north of Malacca, became nominal subjects of Siam. Strait Settlements Acts The first territory to be acquired by the British was Penang. This was in 1786. It is however, unclear how the British acquired Penang. There are various theories on this matter. Therefore, it is important to determine the law of the territory. The origins of the Malaysian Legal System can be traced back to England. As early as 1608, the principle was established that English settlers took English law with them when they entered a ‘new’ territory. This was known as the Doctrine of Reception (or the doctrine of terra nullius) and it has a history that can be traced back to the time of the Roman Empire for it was the Romans they who with them the law they knew and understood, rather than using the laws of the countries they conquered. It is worth looking at the explanation of the late Sir John Latham (formerly Chief Justice of Australia). He explained the operation of the Doctrine of Reception in the following words, and at the same time provided an insight into an eminent jurist’s perception of current thinking of Aboriginal society at the time: In other words, if Malaysia had been gained by conquest or ceded by treaty, the existing laws in force in Malaysia at that time would have applied until superseded by the laws of England. However, as Malaysia was not considered by constitutional theory at the time to be owned by any group or state and no recognized legal system was seen to exist, the common law of England that was applicable to the conditions of colonization applied from the moment of colonization. Francis Light reported that Penang was uninhabited when he landed. 106  INTRODUCTION TO LAW – LAW1064 This was further re-enforced in the cases like (R v Williams) and (Fatimah v Logan). The Privy Council in the case of (Ong Cheng Neo v Yeap Cheah Neo) stated: “It is really immaterial to consider whether Prince of Wales Island, or as it is called Penang, should be regarded as ceded or newly settled territory, for there is no trace of any laws having been established there before it was acquired by the East Indian company. In either view the Law of England must be taken to be the governing law so far as it is applicable to the circumstances of the place and modified in its application by these circumstances”. J.W. N. Kyshe in his article “A Judicial History of the Straits Settlements, 1786-1890, Mal LR, 11 (1969)” said that the early records of Penang showed no official body of law existed for the first twenty odd years of British occupation. Sir Francis Light was given the task of maintaining order. He was the Superintendent, whereby the magistrate and second assistant assisted him on this matter. This clearly implies that there was no separation of powers between the judiciary and the executive. Since the British subjects were not under the jurisdiction of the Superintendent, those arrested were sent to Bengal for trial. This proved to be unfeasible as the evidence and the witnesses were located in Penang. It was not until before his death in 1794, Francis Light received some written regulations from Governor General, Lord Teighmouth. As explained above, the Straits Settlements was the unification of a joint administration for certain former British colonies in Southeast Asia. In 1826, the three British East India Company territories (Singapore, Penang, and Malacca) were given a unified administration. This was known as the Straits Settlements. In 1826, a new charter was introduced called the Second Charter of Justice. This charter generally introduced English Law into the Strait settlements. However, there are controversies as to the 107  INTRODUCTION TO LAW – LAW1064 extent of English Law received. Sir Edward Rice, the first recorder of Penang was of the view that the Charter of Justice still allowed the locals to freely exercise their: Religions. Customs. Usages. habits. Sir Ralph Rice the then third recorder of Penang was also of the view that English law was only applicable in criminal matters. In civil matters however, they were governed by their own laws and customs. In the case of Choa Choon Neoh v Spottiswoode, however, Maxwell CJ expressed a contrary view: A Third Charter of Justice was introduced into the Straits Settlements in 1855; this was to remedy the deficiencies in the system. This charter repealed the former charter in order to reorganize the Court of Judicature (explained below). There were two divisions, one for Penang and the other for Melaka and Singapore. However, in 1858, the company was dissolved. Thus, the Indian Office had jurisdiction over the territories. The Straits Settlements administered by the Colonial Office in England became a crown colony in 1867. Ordinance V that was passed in 1868 by the Legislative council abolished the court and replaced it with the Supreme Court of the Straits Settlements. The new court had three jurisdictions which were later reduced to two in 1873. In the same year the Supreme Court was accorded an appellate jurisdiction. The Court of Appeal had a composition of not less than three judges when it sat as a Full Court. The divisional court had two judges in a sitting. After the reconstitution of the Supreme Court, the divisions of the court were impliedly abolished by reducing the number of judges to three. It was not only through the Charter that English Law was introduced but also through legislation. They were as shown in Figure 3.2. 108  INTRODUCTION TO LAW – LAW1064 As mentioned above in 1867, after the transfer of settlement to the colonial office, the legislative council of the strait’s settlement was formed. This council was given the authority to enact legislations for the settlements with effect from 4th February 1867. In 1912 Labuan was made a dependency of Singapore and was constituted a fourth Settlement. In 1930, the Strait Settlements administration as a Presidency was found to be far more expensive to have a separate administration and was downgraded to a status of a Residency. This meant it was under the control of the Governor of Bengal. In 1946 The Straits Settlement crown colony was dissolved. In the same year Singapore with its dependencies became a separate crown colony. Penang and Malacca were included in the Malayan Union. In 1948 the Federation of Malaya was formed. The Malay States During nineteenth century, the Malay states consisted of Perak, Selangor, Pahang and Negeri Sembilan. Before the intervention of British, the Malay states had its own law. This was called the Malay Customary (adat) law which was modified by the principles of Syariah law. The villages applied Islamic law and customary law. 109  INTRODUCTION TO LAW – LAW1064 The process of an Islamised Malay Adat law was arrested when British came. In 1895 the four Malay states were formed as the Federated Malay States. The other five states which were made up of Johor, Kelantan, Terengganu, Kedah, and Perlis did not join the federation and was called the ‘Unfederated Malay States’. The Malay states were not a colony like the Straits Settlements. These states were in many ways independent and ruled by their sovereigns. The acceptance of this can be seen in cases such as (Mighell v Sultan of Johor) and (Duff Development Co v Government of Kelantan). The reason for the above was because these states were not British territories; therefore, English law could not be imposed through the doctrine of reception, but through voluntary treaties. The Statutory introduction of English law to the Federated Malay States was in 1937 and the Unfederated Malay states in 1951. In the case of (Ong Cheng Neo v Yap Kwan Seng), the judicial commissioner stated his opinion on the reception of English law. 110