Public Law Notes PDF

**[Public Law]** **[Prepare:]** During this workshop you will engage with the following parts of the apprenticeship standards:  **Paralegal**  1. Ethics, professionalism and judgement: Maintain sufficient competence and legal knowledge to work effectively - relevant law, research.   2....

**[Public Law]** **[Prepare:]** During this workshop you will engage with the following parts of the apprenticeship standards:  **Paralegal**  1. Ethics, professionalism and judgement: Maintain sufficient competence and legal knowledge to work effectively - relevant law, research.   2. Technical Legal Practice: Undertake legal and factual research and present the findings accurately and clearly.  Origins of the common law: What is law? The system of rules which a particular country or community recognises as regulating the actions of it's members, and which it may enforce by the imposition of penalties. Legal Evolution: Law maintains the peace and safety in society; it regulates the relationships between individuals and other legal entities; it protects human rights and liberties; and it ensures the smooth running of economic and political activities. designed to promote the orderly conduct of society, the law must reflect the wishes or tolerance of the broad majority of the population, in order to be credible and thus enforceable. It must develop in line with societal changes in order to remain relevant to those living under the 'rule of law'. Stages of legal development: Legal system today following it's origins in the kings courts. Following the Norman Conquest, it gradually became possible to dispense a more centralised form of justice, with the King as the central figure. In the Norman period, the Curia Regis -- the King's Council -- played the role of an itinerant court, allowing the monarch to exercise his personal power -- \'High Justice' -- in the most important of cases. This prototype central court existed alongside the local courts (in shires and hundreds) that had been a feature of the Anglo-Saxon period. Three courts development from King's council- all of which remained until the judicature act 1873 1. Court of Exchequer for royal finances 2. Court of common pleas for ownership and possession of land 3. Court of Kings bench for serious criminal matters Appeal court emerged in the form of Court of Exchequer chamber, abolished in 1875 when it was transferred to court of appeal. **The common Law** Kings courts becomes essential to the resolution of disputes between citizens. The law which the kings judges applied was based upon the common customs of the country. New system was resisted by local barons whoever the growth of the new system continued and in place and recognised as supreme over the local courts in the right on Edward 1 (1272-1307) **Meaning of Common Law** It is important to be aware of the different meanings of the term \'common law\' and to identify which meaning the term bears in the particular context in which it is used. The term \'common law\' may be used: - In the historical sense, to distinguish the law as applied by the King\'s judges as opposed to the law as applied by local customary courts - To distinguish the law as applied by the King\'s Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery - To distinguish case law -- that is, law as developed by judges through the system of precedent -- from statute law - To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law (as, for instance, in most of mainland Europe). **The Writ System** To be able to pursue a claim the claimant had to purchase a writ from the chancellor before an action could be brought to the courts. A document with a royal seal that constituted a royal demand for the defendant to appear before the court. Had the foundation of the complaint. The process became rigid and writs became fixed and only parliament could allow a new type of writ. The rule of procedure which required a pre-existing form of action for a case to be heard, therefore had a stultifying effect on the growth of the substantive law.  **Procedure over substance?** The writ system exemplifies how the common law became hidebound by complex and restrictive procedures. For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed. Selection of the wrong writ or failure to follow the correct procedure would be fatal to an action. Process, rather than principles, rights and duties, was paramount, therefore. The reason for this was that the common law developed largely as a means by which a dispute could be resolved. The courts came into existence as part of the development of centralised royal power, with the aim to conclude disputes rather than necessarily to resolve them in a just way. It was not a system that developed from a concept of \'rights\' and \'wrongs'. Another problem with the emerging common law was that, in personal actions, it offered only the remedy of damages. For example, when one breached a covenant (a legally binding promise), the aggrieved party would not be able to compel the breaching party to fulfil the promise. **[Summary]** - The current legal system of England and Wales is the result of many centuries of evolution and development. - The common law emerged as part of the centralising influence of the monarchy in the medieval period - The common law gradually supplanted locally based and administered customary law - Legal remedies now available, such as damages, have evolved from earlier forms of relief. - The rigidity of common law processes caused problems which contributed to the emergence of the law of equity **CASE LAW** Terms 'case law' and 'common law' are used interchangeable to distinguish law that is decided by judges, from statue law that is made by parliament and interpreted by judge. The common law refers to the body of case law decided by judges it is sometimes referred to as 'judge made law' Common law system is governed by rules of precedent. The decisions of judges higher up in the hierarchy of courts and tribunals are binding on those lower down. Judges in lower-level courts and tribunals have to decide cases in accordance with the principles laid down by the higher courts **What do judges do?** Decide cases that are brought against another party. Judges in the UK do not of their own accord start cases or investigate legal matters In order to decide a case, a judge will: Consider the evidence brought by the parties and decide which evidence they find credible. Consider the applicable law. This may be case law, or statute, or a combination of both. Although Parliament makes legislation, judges decide how it should be applied in any given case. They then give a judgment. \* Apply the law to the facts of the case and reach a decision on which party should succeed. Decide what remedy the successful party is entitled to, e.g. damages, and make an order giving the successful party its remedy. Traditional theory if judges make law is that they do not do so but declare what the law has always been. Retrospective nature of precedent -- view that judicial decisions are based on statements of legal principle which have always been in existence but are not fully delivered until an appropriate case if brought before a court. Prospective nature of statue law -- judges are cautious about upsetting long standing precedents particularly in criminal law and property rights Statues (acts of parliament) set out the law for the future and rarely have retrospective effect. Stare Decisis- also known as binding precedent. Means stand by what has been decided. Once a principle of law has been laid down future cases with the same material facts must be decided in the same way. In contrast to civil legal systems where courts concentrate on interpreting detailed written codes of the law rather than interpreting previous decisions. For a court to be compelled to follow what has been stated in an earlier case it is necessary for it to be persuaded that: - Earlier case was decided in a court which binds it - Relevant part of the earlier case is blinding **What part of a judgement is binding?** As soon as a 'point of law' has been decided by any superior court it established a precedent. Point of law is a question about application of the law which the court has been asked by the parties to decide. Supreme court will deal with points of law of general public importance. Lower courts also deal with points of law with wider significance. Precents may be: - Binding- in which as case must be followed - Persuasive- in which it will be considered. Judgement consists of: a. Summary of the facts b. Statements of the law including ratio decidendi (rationale/reason for the decision) and obiter dicta (observations made by judge but do not form decision in the case) Material facts- those on which decidesion of the court depends. If the material facts change the courts decision may change also Obiter Dictum consist of statements of law not necessary to the decision, Statements of law as the judge would like to be to, Dissenting judgements (the view of a judge who disagrees with majority of the court) **Reversing, overruling and overturning** Judgement is reversed if a case goes to appeal and the higher court disagrees with the lower court. Precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new correct precedent. Overturn can also be used for this. **Departing from 'own' precedent** In 1966 appellate committee of house of lords completed the practice statements (judicial precedent) 1WLR 1234 **Court of appeal departure from precedent- Young v Bristol Aeroplane Co. Ltd 1944** Per Incuriam- Lack of due regard to the law or the facts Summary: - Judges develop the law by applying established legal principles to new situations. - The part of a judgment which establishes a principle which can be applied to other cases is called the \'ratio\'. - \'Obiter dicta\' are \'things said by the way\' in a judgment; they may or may not be significant, depending on the facts of the case and the seniority of the tribunal. - The rules of precedent mean that (in general) the lower courts are bound to apply the judgments of the senior courts. - A previous judgment which might otherwise be a precedent, can be \'distinguished\' if the facts of the case at hand are different. - The higher appeal courts can depart from their own precedents but only in exceptional cases, in order to prevent too much rigidity in the law. Stare Decisis- Legal principle of determining points in litigation according to precedent. **EQUITY** Put into place due to aggrieved litigant who felt justice was not served in kings courts. Defined as the body of principles and rules administered by the court of chancery before the judicature action 1873- 1975. Although court system has changed since 19^th^ century underlying rules and principles in equity are still applicable today. **Origins of the law of trusts** When landowners went aboard to fight they needed someone to look after their land. They would transfer the legal title to the estate however instances arose where those given land to look after would attempt to exercise his status as legal owner for his own benefit. Chancellor intervened in equity on the ground which led to modern law of trusts. This resulted in a greater flexibility outside of the strict rules of procedure developed by the common law. **Conflict between equity and common law** Most conflict between 16^th^ and 17^th^ Century when it became the main sources of tension between monarchy and parliament. (earl of oxford cases 1615) It was decided that in cases of conflict equity should prevail over common law. The judgement also stressed that the function of equity was the supplement the common law not to supplant (replace) it. This is reflected in the equitable maxim- equity follows the law. Prevail- more superior In 19^th^ Century court of chancery applied equity exclusively- instead a high court and court of appeals were created which could apply the rules and remedies of both common law and equity. The conceptual distinction between common law rights and equitable rights remains crucial to the law overall. The principles of equity, consolidated in the 17^th^ and 18^th^ Century and expressed in the form of equitable maxims remain applicable today. **Specific performance** an order by the court to compel a party to perform something they have promised to do under a contractual agreement. It is a discretionary remedy and not available as of right for every breach of contract. General rule, SP is available where, there is a valid and enforceable contract. Or damages would not be adequate remedy for the claimant. SP is not available for breach contract for personal services. **Injunction** an order that requires a party to legal proceedings to either do something (a mandatory injunction) or to refrain from doing something ( a prohibitory injunction). Can be awarded only where damages would not adequately compensate the claimant. Can be awarded unconditionally or subject to such terms and conditions as the court thinks fit. **Declaration** A legally binding statements by a court about the legal rights of the parties, the existence of facts or a principle of law. Generally sought in addition to other types of relief not alone. **Rescission** the setting aside of contract, it is available at common law and equity. Granted at the courts discretion and may be available where a contract has been concluded as a result of, Misrepresentation (party has been induced to enter a contract by a false representation of fact), mistake (does not reflect the intentions) or duress and undue influence (a party was put under unlawful pressure to enter into it.) Rescission is only available where the parties can be put back to their pre-contractual position. **Rectification** corrects a document to reflect the parties contractual intention. To correct mistake made in recording agreements. Only applies in case of written contracts. Summary - Equity developed from the medieval period as a response to the very strict procedural rules applying under the common law. - The main difference between equity and the common law is that equitable remedies are discretionary. - So-called \'maxims of equity\' govern whether the Court will apply equitable principles and remedies in a given case. - If there is a conflict between the common law and equity, equity prevails - The two types of law were administered separately until the Judicature Acts of 1873-75. - Though the two areas of law now both fall under the joint jurisdiction of the High Court, the original conceptual differences remain. **LEGISLATION** Is the second major source of law in England and wales. It is law made with the approval of parliament. Spilt into 2 categories:  **Public and private acts of parliament** Public (or general acts)- relate to matters of general public concerns. Debated in houses of parliament. Public acts make up by far the largest part of parliamentary legislative output Private (or personal acts) related to particular places or people. Usually stem from a propose by a large organisation such as local authority. **Government bills and private member bills** Primary legislation states life as a bill which is draft piece of legislation Public bills- intended to become public actions and can be divided into government bills and private members bills Government bill- represented the policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department promoting the bill wants to bring into law. Private members bill- a bill promoted by a particular member of parliament, normally though a ballot system. **Royal Assent and commencement --** Final state of a bill becoming an act. No legal rule requiring the monarch to assent to any act passed by parliament. However a convention to that effect. The rota assent is a formality and highlighted by the royal assent act 1967. Power is delegated to the secretary of state with responsibility for the area which the statue is concerned to issues a statutory instrument bring the act into force.  PARTS- single acts of parliament often deal with varied subject matter. And will be grouped into parts contained number of different sections. **SECONDARY LEGISLATION** is law made by someone or body other tan parliament- usually a government department. Made under powers granted by parliament in primary legislation (known as the parent act) Has equal statutory force to that of the primary legislation. However the courts have no power to invalidate an act of parliament they are empowered to examine whether delegated legislation is made within the powers of the parent act and 'quash it, if it is not. Secondary legislation is not subject to the parliamentary scrutiny in the same way as primary legislation. Parliament can either approve or reject a statutory instrument but cannot amend it. Summary -- - Primary legislation is passed by Parliament. - Secondary legislation is made under powers granted by primary legislation -- it may be put before Parliament depending on the requirements of the primary legislation. - Public bills are draft legislation proposed by the government. Private bills can be proposed by Members of Parliament. - Primary legislation starts life as a \'bill\' in either the House of Commons or the House of Lords (except for money bills). - Once passed through both Houses, a bill must acquire \'royal assent\' to become law. - The courts can determine whether secondary legislation is made within the powers of the parent Act and may quash it if this is not the case. - Secondary legislation is not scrutinised to the same degree as primary legislation. **Rules of statutory interpretation** The process of determining what parliament intended where it enacted a piece of legislation. It is primarily a task for judges. They are the ultimate interpreters of the will of parliament. \'If (which is doubtful) there ever were, there certainly are not now, just three \'rules\' of statutory interpretation... the court does not \'select\' any one of the guides, and then apply it to the exclusion of the others. What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and arrive at a balanced conclusion taking all factors into account for what they are worth.' **THE LITERAL RULE-** Principally adopted by judges but not often referred to as such. The words used in a statute are to be given their ordinary, plan and natural meaning, assisted, if necessary by such extrinsic aids as a dictionary. The courts will not need to consider further what parliament might have mean. Requires an in-depth consideration of the words and phrases of the statue and how they may fit in with neighbouring sections and the act as a whole. An overly literal application of ward can lead to unintended consequences and so an alternative rule was devised historically to avoid such problems. This is know as a the golden rule. **GOLDEN RULE** to avoid the unnatural and sometime absurd outcome that can result from the overliteral application of the literal rule. Example of golden rule in Adler V George 1964, **MISCHIEF RULE -** oldest rule- examines the original purpose of the provision under consideration. Court must consider 4 questions when applying the mischief rule: 1. What was the common law before the making of the act? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy for the mischief had parliament intended to provide? 4. What was the true reason for parliament adopting that remedy? **PURPOSIVE APPROACH --** most recent rule and accurately reflects how modern judges approach their interpretive task. **CONTEMPORARY APPROACH - \"**Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process. It is only in the rare cases where there is a tension between the two that the court needs to turn its mind actively to which should prevail... it is now possible to say that the purposive interpretation will generally prevail where it provides a clear answer, but that otherwise the strict meaning will have to prevail, even if the court is uncomfortable with the result. This unified, \'contextual\' approach involves not so much a choice between alternative \"rules\" as a progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the statute... and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result.\" **LINGUSTIC PRESUMPTIONS-** assist judges in interpreting the meaning and proper application of individual provisions in legislation. Most quoted maims are: - Expression unius (expression of one things is to the exclusion or another) - Ejusdem generis (the same kind) when a statue included a generic but non-exhaustive list of items. - Noscitur a sociis (a word known by it's associates) Summary: - It is the role of the judiciary to interpret what Parliament intended by the words in legislation. - There are traditional \'rules\' of statutory interpretation which are relevant to your academic studies but seldom referenced in contemporary practice. These are effectively approaches to interpretation rather than strict rules - Sometimes judges will need to apply so-called \'linguistic presumptions\' to aid their interpret of the meaning of statutory language. - Contemporary judges will take a holistic approach to their interpretative task. - The key interpretative principle in modern legal practice is that words in a statute should be given their \'ordinary meaning' but judges have increasingly considered the underlying purpose of legislation too. **HUMAN RIGHTS-** Human beings have rights merely by virtue of being human: no additional test needs to be met. Human rights purport to short-circuit all of this: all that need to be provided is humanity for the full spectrum of rights to apply. Natural law theory sought to explain the bases of legal obligations from legal values that was seen to be superior to any national legal authority. 20th century The ultimate failure of the League of Nations, established as part of the post First World War peace settlement, meant that attempts to create an internationalist body designed to avoid future conflict and to promote a greater degree of universal rights proved illusory in the first half of the last century. It was not until after the catastrophic human rights abuses in the Second World War that the first comprehensive attempt to define a worldwide statement of rights and associated enforcement mechanisms was initiated. In 1945, the United Nations (UN) was founded by the Allies to provide a mechanism for the resolution of international disputes, through both judicial and non-judicial mechanisms. Many states at the time argued that a worldwide, legally binding Bill of Rights should be included, to be ratified by each state as they acceded to the UN. This never occurred, due to the difficulty in getting states to agree on the content. Instead, the Universal Declaration of Human Rights (UDHR) was commissioned in 1946 and completed two years later. While receiving unanimous support, the UDHR is only a resolution of the General Assembly of the UN and as such is not \'law\'. However, it has been argued that its universal acceptance indicates that the principles underlying the UDHR have become binding as customary international law. **LAWFUL INTERFERENCE WITH QUALIFIED RIGHTS-** articles 8-11 are known as the qualified convention rights. 1^st^ paragraph sets out substantive rights guaranteed by the convention then the second paragraph lists circumstances in which and methodology by which the rights may be lawfully interfered with by the state. For the state to interfere legitimately with qualified convention right, it must be shown that all three of the following circumstances: - The interferences was prescribed by, or in accordance with the law - The interference was in pursuit of a legitimate aim - The interference was necessary in a democratic society **UK AS A DUALIST STATE-** UK legal system is dualist, treating the two legal orders a separate. UK state is bound by international law and the UK government is bound too however the court system is not bound I the same way. This mean that international law can only be applicable in the UK in two distinct circumstances: - Where the UK itself is a party to proceedings before an international court to which jurisdiction it has agreed to submit - Where the UK has incorporated international legal rules into domestic legal system through an enabling act of parliament. **HUMAN RIGHTS ACT 1998 -** passed in order to incorporate the ECHR into UK domestic law. Pssed to ensure that the rights in the ECHR were directly enforceable into the domestic courts. The HRA is therefore the conduit and enforcement mechanism for the ECHR as the principle source of rights of protection in the UK. Claims are not made against the UK as a state but against the relevant public authority. **ENFORCEMENT OF RIGHTS** -- HRA gave significant new powers to the courts. They enable claimants who are victims of an allegedly unlawful breach of the ECHR rights by a public authority to ensure those rights in UK domestic courts. Section 3(1): The courts should, as far as it is possible to do so, interpret UK domestic legislation in a way which is compatible with ECHR rights. Section 4(2): If a court considers that legislation is incompatible with a Convention right, it may make a declaration of incompatibility to that effect. Section 6(1): Public authorities, including courts and tribunals, are required to act in a way which is compatible with Convention rights. Parliament is not a public authority for the purposes of the Act. Note too that, because courts are themselves 'public authorities', s. 6 HRA, they have a duty to act compatibly with ECHR rights. As you will see in later materials, this has led to the creation of the 'indirect horizontal effect' which has had a significant effect on the development of privacy law in the UK. Summary - Modern human rights law is the result of historical development, particularly in response to the atrocities committed during the World War Two. - The Council of Europe adopted the European Convention on Human Rights (\'ECHR\'). - The Council of Europe has nothing to do with the European Union. - The ECHR contains what we refer to in practice as \'human rights'. - ECHR rights are divided into absolute, limited and qualified rights. - The Human Rights Act (HRA) brings the ECHR into force in the UK. - Public authorities must act in accordance with ECHR rights. - Courts must decide cases in accordance with ECHR rights. **EU LAW** **BACKGROUND-** evolved from three communities which were established by 3 internation treaties in the 1950s. Uk joined the EEC in 1973 as it is a dualist state international treaties do not have direct effect in domestic law unless they have been incorporated by legislation. **BREXIT-** Following a referendum in 2016, the UK left the EU on 31 January 2020. The effect of EU law is now governed by the European Union (Withdrawal) Act 2018, which repealed the ECA 1972 on the same day. In order to withdraw from the EU with less legal impact, the strategy adopted has been to retain law that was introduced as a result of the UK's membership of the EU/ EEC since 1973. This law can now be replaced by new UK legislation, but it remains in force until it is repealed and replaced. Given the historic impact of EU law, particularly in certain areas, it will continue to leave a legacy in the UK's legal system for years to come. (The post-Brexit position will be considered in more detail in your later materials.) **SOURCES OF EU LAW -- established by the maastrichrt Treaty**  **REGULATIONS-** directly applicable in the legal systems of the member states. They apply in the member states without those states having to enact any national legal measures to implement them or to give effect to them. **DECISIONS-** legally binding only on the parties to whom they are addressed they may be enforced in national courts against the party to whom they are addressed. Providing certain conditions are met. **DIRECTIVES-** binding as to the result to be achieved but leave to the national authorities the choice of form and methods. Member state must pass national legislation to implement them within their legal system. Where a directive has been implemented properly by the member state, an individual will be able to rely on the rights conferred by the national legislation which implemented it. **FAILURE TO IMPLEMENT A DIRECTIVE --** if this happens it's known as infringement proceedings. May be started against member stated by the European commission. They are eventually determined by the CJEU. CJEU has also developed various mechanisms for individuals to be able to rely on the directives themselves in the national courts of the relevant member states where that member state has failed properly to implement them by the deadline. **JURISPRUDENCE-** secondary source of EU law is provided by the case law of court of justice Jurisprudence has bene hugely important in developing and transforming whole areas of EU law. **SUMMARY-** - The treaties on establishment and governance of the European Union were incorporated into UK domestic legislation by the European Communities Act 1972. - In addition to the Treaties, there are important secondary sources of EU law, notably Regulations and Directives. - Regulations are directly applicable, like Treaties, but Directives are only binding as to the result they are designed to achieve - Member states are responsible for implementing the objectives of directives and there are legal means available to the individual for enforcing rights provided by them. - The European Commission can also start \'infringement proceedings\' against Member States for breach of EU law. - The CJEU is the ultimate arbiter on questions of EU Law. - The ECA 1972 has now been repealed by the European Union (Withdrawal) Act 2018. - Significant areas of 'retained EU law' are still present in English law following 'Brexit'