Sources of Law; Domestic Legislation PDF

3. Sources of Law I: Domestic Legislation English Legal System Concentrate: Law Revision and Study Guide (2nd edn) Mark Thomas and Claire McGourlay p. 50 3. Sources of Law I: Domestic Legislation Mark Thomas, Senior Lecturer, Nottingham Trent University, and Claire McGourlay, Professor of Law, the University of Manchester https://doi.org/10.1093/he/9780198855026.003.0003 Published in print: 06 August 2020 Published online: September 2020 Abstract Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter examines domestic legislation. Domestic legislation is created by Parliament, which consists of the House of Commons, the House of Lords, and the Monarch. It is divided into primary legislation and secondary legislation. Primary legislation takes the form of ‘Acts of Parliament’, commonly referred to as ‘statutes’. Statutes can cover a vast variety of laws including criminal law, land law, contract law, and many others. Meanwhile, secondary legislation—also known as delegated legislation or subordinate legislation—is the most common instrument for implementing change within the UK. Parliament has neither the time, the resources, nor the expertise to deal with certain matters. It is for these reasons that the majority of legislation is made outside of Parliament. Accordingly, Parliament may delegate such powers, through an Act of Parliament to other bodies and institutions to implement. Such bodies often include the Privy Council, government ministers, local authorities, and other regulatory agencies. Keywords: domestic legislation, Parliament, primary legislation, secondary legislation, Acts of Parliament, statutes, delegated legislation Key facts Legislation is the most authoritative source of law and for the most part cannot be challenged by the courts. The courts do, however, have the power to interpret legislation that is unclear or ambiguous. Legislation can be divided into primary and secondary legislation. Primary sources of legislation are known as Acts of Parliament whilst secondary legislation can consist of statutory instruments and byelaws, for example. Page 1 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Domestic legislation is created by Parliament, which consists of the House of Commons, the House of Lords, and the Monarch. A bypass procedure exists where the House of Commons can pass legislation without approval of the House of Lords. The European Communities Act 1972 and the Human Rights Act 1998 have had a significant impact on domestic legislation since their introduction. The effect of these sources of law may be questioned in light of Brexit. p. 51 Chapter overview Legislation in England and Wales Pre-eminence of legislation Although England and Wales can be described as a common law system, the majority of laws in the jurisdiction are now covered by legislation passed by Parliament. Traditionally, the common law, i.e. case law, was the most important source of law, given that almost all laws were found in previous judgments. There are now few laws that are contained in the common law, the most prominent being the offence of murder, which remains a common law offence. Despite its former dominance, case law has for centuries been, and remains, subordinate to legislation. Where there is a conflict between the common law and statute, the latter prevails. This is as a result of the principle of parliamentary supremacy (see later in this chapter). Domestic legislation is helpfully divided into: primary legislation; and secondary legislation. Page 2 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation There are certain sources of law that fall outside the definition of ‘legislation’. These are customs and conventions which, although of no legal force, are to be observed in the UK. It thus makes sense to deal with them in this chapter. Prerogative power held by the Monarch shall also be considered. The remainder of this chapter will focus on the various types of legislation and the inherent interpretation required for these forms of legislation. p. 52 Primary legislation Primary legislation takes the form of ‘Acts of Parliament’, commonly referred to as ‘statutes’. The word ‘primary’ is used to designate the significance of the law as the highest form of UK law. Revision tip It is important to remember that we focus on the law of England and Wales; in that regard, we are concerned with Acts of the UK Parliament. However, for the other devolved constituents of the UK, primary legislation refers to the main laws passed by the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly. Statutes can cover a vast variety of laws, including criminal law (e.g. Offences Against the Person Act 1861 —covering offences such as assault occasioning actual bodily harm (ABH) and grievous bodily harm (GBH)), land law (e.g. Land Registration Act 1925), contract law (Unfair Contract Terms Act 1977), and many others. Revision tip Acts of Parliament and statutes are synonymous and are interchangeable; however, do not mix statutes and legislation. Legislation is a much broader term and can include both statutes and other forms of ‘secondary’ legislation, for example, statutory instruments. Although statutes are ‘typical’ in the sense that they contain a title, introductory text etc., statutes are not standardized, as they can come in many lengths. For example, the Theft Act 1978 contains a mere seven sections, whilst the Companies Act 2006 contains an overwhelming 1,300 sections. Statutes that remain either in force or partially in force, dating back to 1801, are available on www.legislation.gov.uk for free. Page 3 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Revision tip Do not rely too much upon the government’s website: www.legislation.gov.uk. It has been known to be out of date for many different pieces of legislation. You may wish to consult other legal search engines which are available to you as a law student. Types of legislation Primary legislation can come in many different forms and may come about in many different ways. Table p. 54 53 3.1 details the most important distinctions. ↵ ↵ Table 3.1 Forms of primary legislation Public vs private vs hybrid legislation Public Private Hybrid These are Bills introduced to These are Bills submitted to As the name suggests, these are a mix of Parliament by Members of Parliament by a person or body who public and private Bills. Can be best Parliament (MPs) and concern requires parliamentary authority to described as a public Bill that affects a matters affecting the public as a carry out a certain activity or work. private individual. whole. Most government Bills are This form of legislation is used less High Speed Rail (London - West public Bills. often due to the use of statutory Midlands) Act 2017. instruments. European Communities Act 1972. Transport for London Act 2016. Consolidating vs codifying legislation Consolidating Codifying Consolidation is best described as when a single statute re-enacts the law as it Codification is best described as when a was contained in numerous different statutes. single statute places the law, formerly There is a presumption that such re-enactment does not materially change found in the common law, onto a earlier legislation, but rather brings together the legislation in a ‘more statutory footing. Codification can also convenient, lucid and economical form’ (Farrell v Alexander (1977) (Lord take a much broader exercise in Simon)). codifying law that was previously both statute and common law based. Equality Act 2010, which consolidated Acts such as the Equal Pay Act As opposed to consolidating legislation, 1970, the Sex Discrimination Act 1975, and the Race Relations Act codifying legislation may change the law 1965. as it previously stood. Page 4 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Public vs private vs hybrid legislation Sexual Offences Act 2003, which combined the previous legislation and the common law into one statute. The definition of consent was previously one of common law basis, but is now contained in s74 2003 Act. UK vs devolved legislation (See Chapter 1 for more detail) UK Devolved There is a presumption that all primary forms of legislation will apply solely to As a result of the Government of Wales England and Wales unless the statute is express as to its application in Act 1998, the Scotland Act 1998, and Scotland or Northern Ireland also. the Northern Ireland Act 1998, each jurisdiction within the UK has a limited power to pass legislation exclusive to its own jurisdiction. The limited competency of each jurisdiction includes legislating on such matters as health and education. Parliamentary supremacy Parliamentary supremacy, also known as parliamentary sovereignty, is a term used to describe Parliament as the supreme law-making body in the UK. As a result of the Bill of Rights 1689, power to create laws was removed from the Monarch acting alone and now is firmly within the remit of a full Parliament. Albert Dicey in Introduction to the Study of the Law of the Constitution (Blackwells 1885) stated that: The Principle of Parliamentary Sovereignty means neither more nor less than this: namely, that 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 … as having the right to override or set aside the legislation of Parliament. Table 3.2 explains what Dicey meant in his conception. Whether Dicey’s conception remains accurate is hotly debated, given the UK’s present membership in the European Union (EU) and the European Convention on Human Rights (ECHR). For a more in-depth discussion of Dicey and the concept of parliamentary sovereignty, see Colin Faragher, Public Law p. 55 Concentrate (6th edn, Oxford University Press 2019). ↵ Page 5 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Table 3.2 Dicey’s conception Principle Explanation Positive limb Parliament can create, amend, or remove any piece of legislation it desires. Negative limb Parliament cannot be questioned by any individual or body, most specifically the courts. Continuing sovereignty Parliament is not bound by its predecessors and cannot bind its successors. Looking for extra marks? Parliamentary sovereignty is a matter you will no doubt be assessed on during your Constitutional Law module. However, it is still essential that you understand the importance of parliamentary supremacy when answering questions on legislation. More specifically, although Parliament is supreme, the courts have the power and ability to interpret legislation. One should question the extent to which the courts can and should intervene in the interpretation of legislation. Effect of the EU on parliamentary sovereignty As a result of the introduction of the European Communities Act (ECA) 1972, the UK formally joined the EU and became subject to the laws of the EU. In particular, s2(1) ECA 1972 requires all laws of the UK to be subject to EU law. Parliament would appear, therefore, no longer supreme when the matter before it is one of EU law. For more on this, and the UK’s withdrawal from the EU, see Chapter 5. Effect of the Human Rights Act on parliamentary sovereignty Upon enacting the Human Rights Act (HRA) 1998, the UK government transposed the ECHR into our domestic law. According to s3 HRA 1998, both primary and subordinate legislation ‘so far as it is possible to do so’ must be read and given effect to in a way which is compatible with Convention rights. Further, s19 requires a government minister to declare before a Parliamentary Bill is given its second reading that it is compatible with the HRA. Compared with EU law, which has a great effect on our parliamentary supremacy, the HRA does not appear to have such a great effect. This is because the courts do not have the power to strike down legislation (except secondary legislation), but simply have the power to declare legislation ‘incompatible’. For more on this, see Chapter 5. Page 6 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Judicial review Dicey’s conception is particularly called into question in relation to judicial review proceedings. Whilst primary legislation is not subject to judicial review and cannot be challenged, secondary legislation is, and can be effectively challenged by the courts. Judicial review has been described by Hilaire Barnett, in Constitutional and Administrative Law (11th edn, Routledge 2015), as representing ‘the means by which the courts control the exercise of governmental power’. The most common challenge to delegated legislation is on the grounds that the legislation is ultra vires. Ultra vires can be defined as ‘acting beyond and exceeding legal powers’ (ex parte Leech (1993)). Often, this is where the delegated body has then sub-delegated their role to another individual or body. Unless such sub-delegation is permitted by the parent Act, this action will be considered ultra vires. For a more in- depth discussion of judicial review, see Colin Faragher’s Public Law Concentrate. The general principle that Acts of Parliament cannot be challenged by the courts was provided in British Railways Board v Pickin (1974). As a result of the ex parte Factortame (No. 2) (1991) judgment, however, there remains one exception to this rule, namely, where a statute is inconsistent with EU law. Factortame (No. 2) will be discussed in greater detail in Chapter 5. Legislative process Before a piece of law becomes an ‘Act of Parliament’, it must first go through a specific and detailed legislative procedure (see Figure 3.1). The legislative programme of Parliament will be set out in the p. 56 Queen’s Speech at the opening of Parliament. Prior to receiving royal assent, ↵ such laws (i.e. draft Acts) are known as ‘Bills’. The life of any Bill that has proceeded or is proceeding through Parliament can be found at www.parliament.uk/business/bills-and-legislation. Page 7 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Figure 3.1 Legislative procedure The introduction of Bills into Parliament can be divided into government Bills and private members’ Bills: Page 8 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation government Bills: these are introduced by the government as part of their legislative programme. They are introduced by the relevant minister for that Bill; for example in 2018 the Justice Secretary p. 57 introduced the Civil Liability Bill, which aimed to lower car insurance premiums. If the government has a majority in Parliament, these Bills will be passed with relative ease. private members’ Bills: these are non-governmental Bills introduced by individual MPs (specifically a backbench MP). The time for this kind of Bill is rather restricted; the majority of which do not become law unless they have the backing of the government. One example of a successful private members’ Bill is the Abortion Act 1967, which was introduced by backbench MP, David Steel. The Bill had the support of the government and became law. Below is a brief overview of the stages in the life of a Bill before it becomes an Act of Parliament. White and Green Papers and drafting the Bill Before a Bill is introduced into Parliament, it may be preceded by a White Paper or a Green Paper. The differences between the two types of Papers are detailed in Table 3.3. Table 3.3 White and Green Papers Description White Paper Green Paper Definition Policy documents produced by the government Consultation documents produced by the government that set out their proposals for future legislation. that set out proposals for discussion without any Often accompanied by a draft Bill annexed to the guarantee of legislative action or consideration of the Paper legislative detail Aim To provide a basis for further consultation and To allow feedback on the government’s policy or discussion with interested or affected groups legislative proposals to be given by people in and outside of Parliament The Bill will then be drafted by the parliamentary draughtsman (or more modernly ‘draftsman’), officially known as Parliamentary Counsel. According to the Office of the Parliamentary Counsel, their role is to ‘work closely with departments to translate policy into clear, effective and readable law’. The government department responsible for the Bill will work closely with the draughtsman. Introduction of the Bill Figure 3.1 details the procedure for legislation as though the Bill was introduced in the House of Commons. This is because most Bills begin their life in the House of Commons. Please note, however, that a government Bill can be introduced into either the House of Commons or the House of Lords. On the occasion that the Bill begins in the House of Lords, simply switch the headings in Figure 3.1. Page 9 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation You can tell where a Bill was first introduced by the letters that follow the Bill’s name, i.e. (HC) and (HL). There are a few exceptions to the general rule that Bills may start in either House; these exceptions are p. 58 detailed in Figure 3.2. ↵ Figure 3.2 Where to introduce Bills First Reading The First Reading is simply a formality. The title of the Bill is read by the Clerk of the House, a date is fixed for the Second Reading, and the Bill is ordered to be printed. There is no debate of the content of the Bill at this stage (the purpose of the First Reading is to merely note the existence of the Bill). Conventionally, the Second Reading does not normally take place before two weekends have passed. Second Reading The Second Reading involves the main debate on the principles of the Bill. The responsible minister opens the Reading and sets out the policy objectives of the Bill, before the debate which then ensues. A vote is generally taken on the Bill at the end of the Reading as to whether the Bill ought to proceed. If so, the Bill will then move to a Standing Committee. Committee Stage Once a Bill has passed through the Second Reading, it will then proceed to the Standing Committee. The Committee is not responsible for considering the desirability of the Bill in principle, as that has already been approved by the House during the Second Reading. Their role is to examine the provisions of the Bill, in particular its wording, and comment on their workability. Votes are taken on each clause in the Bill and p. 59 any amendments moved upon. ↵ Page 10 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Looking for extra marks? Examiners like detail. It shows that you understand the concept and that you are comfortable with the area of law. When discussing the legislative procedure a Bill may take, you could discuss the composition of a committee. The Committee is composed of not less than 16 and not more than 50 members chosen by the ‘Committee of Selection’. The members are chosen according to their particular interest or expertise in the subject matter of the Bill. The Chair of each Standing Committee is selected by the Speaker of the House of Commons from a panel of chairmen. Each committee will be given a name in accordance with the Bill. For example, if a Bill is entitled the Musical Theatre Bill, the committee will be named the Musical Theatre Committee. Report Stage (also known as ‘Consideration in the Commons’) Once the Committee has agreed a draft Bill, including any amendments made, it returns it to the House in the form of a report. Only amendments made are tabled for discussion (if there are no amendments, this is merely a formality stage). The government may reject the changes made at Committee stage and may make further changes. The amended Bill will be reprinted and voted upon by the House. Third Reading This is the final vote on the Bill. The Bill may be debated (albeit briefly) one final time during the Third Reading. No amendments are made at this stage; it being a general formality before the Bill is formally handed over to the other House. Once the Third Reading is complete, the Bill is then fastened with a green ribbon and taken to the House of Lords by the Clerk of the House of Commons with a message requesting the Lords to agree with its content. House of Lords The Bill is then sent to the second House for its consideration (for our purposes, given that we started in the House of Commons, this second House is the House of Lords). The procedure in the House of Lords mirrors that of the House of Commons and can be described as virtually identical. As with the House of Commons, the Bill will begin with a First Reading and is followed with a debate in the Second Reading. The Bill will then proceed to the Committee stage. Please note that unlike the House of Commons, the Committee stage is generally one involving the whole House. The House will then debate the matter one final time during the Third Reading. At the end of the Third Reading there is a formal motion ‘that this Bill do now pass’. If the Bill began in the Commons, it is sent back after Third Reading for consideration of the Lords’ amendments, or, if there have been no amendments in the Lords, is sent to the Monarch for royal assent. Page 11 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Looking for extra marks? There have been numerous calls over the years for the abolition of the House of Lords, replacing it with a second elected House (akin to the Senate in the USA). Recently, in January 2020, Rebecca Long-Bailey, the Shadow Business Secretary, as part of her campaign to be voted in as the Labour Leader, announced that she would abolish the House of Lords. Such abolishment has been called due to the fact that the House of Lords is an entirely unelected body, the peers who sit in the House remain there until their death, there is a lack of representation for certain ethnic groups, and a gender imbalance. What do you think? Do you think the House of Lords should be abolished? If so, what should it be replaced with? Consideration of amendments If amendments are made, the Bill must then return to the House it began in for consideration of the proposed amendments. This process is best described as the ‘ping pong’ stage, with both Houses p. 60 attempting to resolve any differences they may have on a ↵ particular Bill. It is at this stage that the majority of amendments to the Bill are made. In practice, the House of Lords generally accepts the second proposal from the House of Commons and the Bill proceeds to royal assent; however, if there is a stalemate on a particular clause or the Bill overall, there are three possible consequences of such a stalemate: 1. The Bill dies—this means that the Bill has been rejected by the House of Lords and the House of Commons does not attempt to ‘save’ the Bill. An example of this is the Fraud (Trials without a Jury) Bill, rejected on 20 March 2007. 2. The parliamentary session expires—this means that the time allowance granted to that Bill has ended. This means that the Bill must die or be started up again in the next parliamentary session; for example, the Prisons and Courts Bill, which was abandoned in 2017 as a result of the call for a general election. 3. The House of Commons proceeds without approval of the House of Lords via the Parliament Acts 1911 and 1949. Looking for extra marks? Although the first two of these consequences are self-explanatory, don’t simply leave your answer with a full stop after ‘the Bill dies’. Take your answer that one step further. What does it mean for a Bill to die? Can the Bill be revamped? What exactly does it mean for a parliamentary session to expire? Answers to these questions will provide the greater level of detail required for those top marks. Page 12 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation English Votes for English Laws (EVEL) On 22 October 2015, the House of Commons approved changes to the Standing Orders to introduce a new legislative procedure for enacting Bills that apply only to English law, or English and Welsh law. This procedure is known as ‘English votes for English laws’ (EVEL). This process affects all government Bills, with a number of exceptions, such as consolidation Bills and private members’ Bills. This change was justified in response to the so-called, ‘West Lothian Question’: the situation where English MPs were unable to vote on matters which have been devolved from Westminster, but Scottish, Welsh, and Northern Ireland MPs were still able to vote on matters relating only to England. The process for EVEL can be demonstrated through Figure 3.3. Figure 3.3 The EVEL process Page 13 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Parliament Acts 1911 and 1949 These Acts provide a process by which the House of Commons can bypass the approval of the House of Lords and present a Bill to the Monarch for royal assent. The 1911 Act provided that the House of Lords may only delay a money Bill for one month and that after this has elapsed the Bill may receive royal assent without the authority of the House of Lords (s1), and where a Bill had failed to gain parliamentary support in at least two successive parliamentary sessions (years) and then after its rejection for the third time, the p. 61 Bill could receive royal assent without the approval of the House of Lords (s2). ↵ The 1949 Act amended the 1911 Act to the extent that the threshold in s2 was reduced to one year from two. This means that a Bill, since 1949, must simply fail after it has been entered in two consecutive Parliaments and would now be passed, without House of Lords approval, after the second, rather than third, defeat. The 1911 and 1949 Acts apply generally to all Bills before Parliament except for: Bills which intend to prolong the length of a Parliament beyond five years; private Bills; Bills sent to the Lords less than a month before the end of the parliamentary session; and Bills which are introduced in the Lords. For a discussion on the validity of the Parliament Act 1949 and the decision of the House of Lords in Jackson v HM Attorney General (2005), see Colin Faragher’s Public Law Concentrate. Table 3.4 details the use of the Parliament Acts throughout their existence. Table 3.4 Use of the Parliament Acts 1911 and 1949 Parliament Act 1911 (Original Act) Parliament Act 1911 (as amended by the Parliament Act 1949) Welsh Church Act 1914 War Crimes Act 1991 Government of Ireland Act 1914 European Parliamentary Elections Act 1999 Parliament Act 1949 Sexual Offences (Amendment) Act 2000 – Hunting Act 2004 Royal assent All legislation requires royal assent to become law. In theory, the Monarch has the power to refuse royal assent; however, this has not been done since Queen Anne refused to assent to the 1707 Scottish Militia Bill, and looks extremely unlikely to happen again in modern Britain. Rather, the Monarch, by Page 14 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation constitutional convention, will assent to the Act whilst acting on ministerial advice. However, please note that it is not necessary for the Monarch to personally give royal assent. Rather, it is common for assent to be given by the Speaker of the House. Commencement p. 62 Table 3.5 details the commencement dates of Acts of Parliament. ↵ Table 3.5 Commencement dates Statutory provision Commencement No express provision Deemed to come into force on the day (which includes the whole day) that it receives royal assent (Tomlinson v Bullock (1879)) Specified date Deemed to come into force on a date specified within the Act itself ‘With effect from a date Deemed as ‘not yet in force’ until the Act, or a particular section of the Act, has been enacted to be appointed’ via a statutory instrument Criticism exists for use of ‘appointed date’ sections in an Act; there is often difficulty in identifying whether a particular section is in force or not. There are numerous examples of statutes that come into p. 63 force later, often much later, than the date upon which royal ↵ assent was given. There are also sections that have never been brought into force or only partially so. For example: Youth Justice and Criminal Evidence Act 1999, s28—royal assent was given in July 1999; s28, in particular, is still not fully in force; Human Rights Act 1998—royal assent was given in November 1998 but only came into force via statutory instrument in October 2000. Layout of a statute All Acts of Parliament, and the majority of statutory instruments, take the same format and layout. The list below demonstrates the standard layout of an Act of Parliament. We shall use the Sale of Goods Act (SGA) 1979 as an example throughout: 1. Royal Coat of Arms: all statutes must receive royal assent. Thus, when any legislation is passed the Royal Coat of Arms is affixed to the statute to act as a seal for the legislation. 2. Short title: most statutes will be referred to by their short title; however, there must be an express statutory provision stating what the short title is. In the SGA 1979, the short title is contained within the final section of the Act (s69(1)). 3. Page 15 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Chapter number/citation: modern statutes are governed by the Parliament Numbering and Citation Act 1962, which provides that each statute will be cited according to the number enacted during that parliamentary session (i.e. statutes are numbered chronologically within the year they are enacted; numbering re-starting each year). The SGA 1979 (C.54)—this means that the SGA was the 54th statute to be created in the year 1979 (the ‘C’ stands for ‘Chapter’). 4. Long title: this serves as a description of the Act of Parliament and is contained towards the start of the Act. The long title for the SGA 1979 is ‘An Act to consolidate the law relating to the sale of goods’. 5. Date of royal assent: the date of royal assent shall be affixed to each copy of the Act. Royal assent was given to the SGA 1979 on 6 December 1979. 6. Enacting ‘formula’: this is an extremely formal way of stating how the Act is to come into force. The general formula is as follows: BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows—. 7. Main body: the main body of the Act is divided into sections, sub-sections, paragraphs, and sub- paragraphs. It provides the substantive law that the Act sets out to achieve. Dependent on their length, many statutes will be divided into chapters, parts, and headings. 8. Commencement: the commencement date will feature within the Act also. Generally, this is placed p. 64 towards the end of the Act; however, some Acts may include the commencement towards the start. In the SGA 1979, the commencement is situated in the last section (s64(2)), which states, ‘This Act comes into force on 1 January 1980.’ 9. Schedules: many statutes have one or more Schedules at the end. These Schedules often contains matters such as definitions, further provisions outside the main body, detailed and minor amendments to other pieces of legislation, and repeals of pre-existing legislation. 10. Explanatory Notes: post-1999, most Acts include Explanatory Notes. According to the Office of Public Sector Information: The purpose of these Explanatory Notes is to make the Act of Parliament accessible to readers who are not legally qualified and who have no specialised knowledge of the matters dealt with. They are intended to allow the reader to grasp what the Act sets out to achieve and place its effect in context. For statutory instruments, such notes are known as ‘Explanatory Memorandums’. Page 16 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Reading legislation As a hopeful lawyer, practising or not, you need to be aware of what exactly each part of a statute means. As an example, s90 Companies Act 2006 concerns the re-registration of a private company as a public p. 65 company. Section 90 is divided into several parts, as shown in Table 3.6. ↵ Table 3.6 How to read legislation How written How spoken 90 Section (1) Sub-section (c) Paragraph (i) Sub-paragraph s90(1)(c)(i) = Section ninety, sub-section one, paragraph c, sub-paragraph one. Revision tip Avoid careless mistakes when referring to certain sources of law. The most common mistakes by students, which can annoy examiners, are the following: Act of Parliament—Whenever you refer to an Act in the context of legislation, it always has a capital A. Likewise, a Bill of Parliament has a capital B in the context of legislation. When referring to Parliament as the branch of government, ensure you spell it with a capital P. Secondary legislation Also known as delegated legislation, or subordinate legislation, this source of law is the most common instrument for implementing change within the UK. Parliament has neither the time, the resources, nor the expertise to deal with certain matters. It is for these reasons that the majority of legislation is made outside of Parliament. Page 17 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Revision tip When reading this section of the text, consider the advantages that secondary legislation has over primary legislation, and likewise, consider the disadvantages to using secondary legislation. ADVANTAGES: It saves time. It is produced with specialist knowledge. Control is exercised by Parliament. DISADVANTAGES: There is lack of oversight. There is lack of publicity. It is undemocratic. There is a risk of sub-delegation. Looking for extra marks? In an essay-style question, consider the use of the term ‘subordinate legislation’. This term is used to denote that the courts can challenge the legislation and set it aside (something they cannot do with primary legislation). However, given that the majority of legislation passed in England and Wales is secondary, is it still correct to refer to such legislation as ‘subordinate’? Accordingly, Parliament may delegate such powers, through an Act of Parliament (known as the ‘parent’ or ‘enabling’ Act) to other bodies and institutions to implement. Such bodies often include the Privy Council, government ministers, local authorities, and other regulatory agencies. The three main types of secondary legislation are statutory instruments, statutory rules, and byelaws. Statutory instruments Statutory instruments (SIs) are regulated by the Statutory Instruments Act 1946, which lays down the procedural requirements necessary for their making. Statutory instruments are now the most common form of legislation in the UK. Table 3.7 details the number of SIs when compared with Acts of Parliament as of the end of 2019. The figure is provided by p. 66 www.legislation.gov.uk. ↵ Page 18 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Table 3.7 Number of SIs compared with statutes Year Acts of Parliament (public and private) Statutory instruments 2019 31 1408 2018 37 1387 2017 37 1289 2016 24 1243 2015 37 2058 2014 32 3480 2013 40 3290 2012 25 3327 2011 25 3131 2010 46 2967 As is obvious from Table 3.7, the majority of legislation passed during a parliamentary session is done by SI. Like Acts of Parliament, SIs are set titles and SI numbers (also known as reference or ‘running’ numbers). You can spot an SI by the following example: Criminal Justice Act 2003 (Categories of Offences) Order 2004, SI 2004/3346 The SI number ‘2004/3346’ means that this SI is the 3,346th statutory instrument in the year 2004. Statutory rules The Rule Committees have delegated power to make procedural rules for the courts. As with Orders in Council (see below, under its own heading), although such rules do take the form of SIs, it is useful to separate them out due to the different institutions responsible for their creation. These rules state the procedure that must be followed when commencing a case in a particular court, the presentation of p. 67 evidence at trial, and the routes for appeal. ↵ Page 19 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Table 3.8 Procedural rules and their committees Rule committees Procedural rules Civil Procedure Rule Committee Civil Procedure Rules (CPR) Criminal Procedure Rule Committee Criminal Procedure Rules (CrimPR) Family Procedure Rule Committee Family Procedure Rules (FPR) Table 3.8 details the committees and their relevant procedural rules. Each of the procedural rules is accompanied by relevant Practice Directions (PDs), which offer further guidance and assistance on particular rules, an example being r52 CPR 1998, which concerns civil appeals. The rule provides a general procedure for appeals but is accompanied by five PDs, including Practice Direction C, which concerns specifically ‘Appeals to the Court of Appeal’. Byelaws Byelaws (often seen written as ‘by-laws’) are a form of delegated legislation that allow local authorities to exercise power for the regulation, administration, and management of their local affairs. Byelaws are generally only created when there is no legislation dealing with particular matters of concern to local people. Byelaws are created under the Local Government Act 1972; however, they can only come into force once they have been affirmed by the relevant/appropriate minister. Common byelaws include matters such as waste collection, public car parking, littering offences, and many others. Looking for extra marks? Give plenty of examples when making a particular statement. For example, local councils may make byelaws regulating: public bathing (s231 Public Health Act 1936); Hackney carriages (Black Cabs) (s68 Town Police Clauses Act 1847); local nature reserves (ss20, 21, and 106 National Parks and Access to the Countryside Act 1949). Orders in Council The Privy Council may make an Order in Council. Such Orders are issued by and with the advice of the Privy p. 68 Council and are approved in person by the Monarch. ↵ Page 20 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Revision tip Do not confuse Orders in Council with Orders of Council. The latter are decisions of the Privy Council, which have the force of law. Unlike Orders in Council, Orders of Council do not require personal approval by the Monarch and can be made by the ‘Lords of the Privy Council’ (i.e. government ministers). Orders in Council are divided into two broad categories, statutory and prerogative. According to the website of the Privy Council: Statutory Orders are made under any of the numerous powers contained in Acts of Parliament which give Her Majesty a power to make Orders; Prerogative Orders are made under the inherent power of the Crown to act on matters for which Parliament has not legislated. This distinction is essential, as it will determine whether the Order is a form of primary or secondary legislation. As a result of s1(1) Statutory Instruments Act 1946, every power to make a Statutory Order in Council conferred by an Act of Parliament passed after 1 January 1948 shall be known as an SI. This means that Statutory Orders in Council are a form of secondary legislation and can be challenged by the courts. Examples of Statutory Orders in Council include: the Burial Act 1853, which provides that Her Majesty in Council may restrain the opening of new burial grounds, and order discontinuance of burials in specified places; the Naval and Marine Pay and Pensions Act 1865, which provides Her Majesty in Council the ability to determine the pay of the Navy, subject to such restrictions, conditions, and provision as directed by the Council. A Prerogative Order in Council, however, has been declared by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2008) as primary legislation, similar to an Act of Parliament, ‘in the sense that the legislative power of the Crown is original and not subordinate’. This does not mean, however, that Prerogative Orders are not reviewable by the courts. Rather, Lord Hoffmann at of the judgment makes clear that such Orders remain reviewable by the courts despite their status as a form of primary legislation as it is an act of executive power alone which does not ‘offend’ the principle of parliamentary sovereignty. As a summary of this rather confusing matter, see Table 3.9. Table 3.9 Orders in Council Statutory orders Prerogative orders Primary legislation ✗ ✔ Secondary legislation ✔ ✗ Page 21 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Statutory orders Prerogative orders Reviewable by the courts ✔ ✔ Made under powers conferred through Acts of Parliament ✔ ✗ Made under inherent powers ✗ ✔ These prerogative acts were formerly taken by the monarch in person; however, in more modern times, these are now taken by relevant ministers. In essence, the use of prerogative powers are now political decisions. The nature of prerogative powers has recently been reviewed by the Supreme Court, following the decision of Prime Minister Boris Johnson to prorogue Parliament. Prorogation of Parliament is an act which brings the current parliamentary session to an end and prepares for a Queen’s Speech to formally open the new parliamentary session. Each parliamentary session lasts for around one year, meaning that p. 69 ↵ prorogation is a common occurrence. In 2019, however, the government was successfully challenged over its decision to prorogue Parliament in R (Miller) v The Prime Minister (2019). The Supreme Court declared that the advice given by the Prime Minister was justiciable (i.e. capable of being reviewed by the courts) and was also unlawful. The effect of this decision was that Parliament was not lawfully prorogued. This was a significant decision, which has caused much controversy on both sides, most notably from the Conservative Party, which indicated an intention to review the powers of the senior courts. See ‘Key cases’ below for a more in-depth discussion of R (Miller) v The Prime Minister. Customs and conventions Customs and conventions are unknown to many, given their historic use outside of the more modern era. To this day, both customs and conventions still operate in the UK, and although they are not legally binding or enforceable, provide for a specific manner of operation in a given circumstance. Table 3.10 will assist in understanding these two sources of law. Table 3.10 Customs and conventions Type Meaning Examples Customs A custom is an understanding of a long-standing Fishermen may dry their nets on private land. practice in a particular locality or region. Villagers may hold a fair in a certain place It was defined in the Tanistry Case (1608) as (Wyld v Silver (1963)). ‘such usage as has obtained the force of law’. Constitutional A convention is an unwritten understanding The Prime Minister must be a member of the conventions about how something should be done. House of Commons and not the Lords. Although not legally enforceable, conventions are The Monarch must invite the party with the generally observed. largest number of seats in Parliament to form the government. Page 22 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Type Meaning Examples The Monarch must give assent to legislation passed through Parliament. p. 70 Prerogative power Also referred to as the Royal Prerogative, this historic power is officially vested in the Monarch. Dicey (1885) defined this power as: nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown’s original authority … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative. Table 3.11 details the most important prerogative powers and divides these powers into domestic and foreign powers. Table 3.11 Prerogative powers Domestic powers Foreign powers The appointment and dismissal of ministers Declaration of war The dissolution of Parliament Making of treaties Importantly, the dissolution of Parliament must be distinguished from prorogation of Parliament, previously discussed under ‘Orders in Council’. The former brings the parliamentary session to an end, resulting in members of the House of Commons ceasing to be MPs and the holding of a general election. Prorogation, however, brings that current parliamentary session to an end, to allow for the Queen’s Speech, before the next parliamentary session begins. Prior to 2011, the dissolution of Parliament and calling of elections would have been contained within the domestic powers section (see Table 3.11 above); however Parliament enacted the Fixed-term Parliaments Act 2011, which set a fixed period of five years before the next general election is to be called unless a p. 71 motion is passed under s2 by at least two-thirds ↵ of the House of Commons requesting an early election. On 29 October 2019, the Prime Minister, Boris Johnson, succeeded in his fourth attempt to call an early general election for 12 December 2019, with a majority vote of 438 votes to 20. The Conservative Party won 365 of the available seats, scoring a majority of 80 seats. In the Queen’s Speech on 19 December 2019, it was read that the government would work to ‘repeal the Fixed-term Parliaments Act’; no work has yet been done on this promise. Page 23 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Looking for extra marks? The majority of students can identify which sources of law are characterized as ‘secondary legislation’. They can often list the advantages and disadvantages of such secondary sources; however, they may fail to comprehend the control of secondary legislation. Control of legislation comes in two forms: parliamentary control; and judicial control. Parliamentary control requires resolutions before the Houses of Parliament before the legislation can come into force. Parliament may control delegated legislation through the asking of questions, the requirement of publication of delegated legislation, and the removal of power from delegated bodies, should Parliament need to. Judicial control allows the judiciary to declare secondary legislation invalid through judicial review, which allows the courts to challenge delegated legislation on substantive and procedural grounds, as well as grounds of unreasonableness. Statutory interpretation and rules of language The courts in their distinct role are responsible for the application of the law, as implemented by the executive and legislature. Sometimes, however, such application is not possible, given the particular wording or language used within the statute. The language may be unclear, ambiguous, or just nonsensical. Bennion, in his seminal work Bennion on Statute Law (3rd edn, Longman 1990), listed certain factors which can cause ambiguity and difficulty in the meaning of statute. In our opinion, the three most prominent of these factors are: ellipsis (…): used when the draughtsman considers the words implied. Whether readers of the text understand what is implied, their own inference may be incorrect; unforeseen developments: where words bear little or no meaning in modern understanding of the language, it can often create problems in situations where the older use of the language does not accord with its modern usage; broad terms: the use of broad, vague, or generic terms may cause difficulties without further explanation or definition (especially words which may have multiple meanings); for example, the meaning of a ‘house’ or ‘public place’ (see later). Other factors include political uncertainty, omissions, and other drafting errors. Page 24 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation p. 72 ↵ As a result, the courts then take on their secondary function, which is to ‘interpret’ the law. The phrase often adopted is that the courts aim to find the ‘intention or will of Parliament’. However, according to Lord Reid in Black-Clawson Ltd v Papierwerke AG (1975), such a statement is ‘not quite accurate’. His Lordship goes on to explain that the court is ‘seeking the meaning of words, which Parliament used … not what Parliament meant but the true meaning of what they said’. What this means is that the courts are concerned with the interpretation of the words in front of them, as opposed to the thought process behind the use of the words. For example, if a particular piece of statute used the words ‘public place’, the court would be concerned with interpreting those words and not the will of Parliament in using those words. It is for this reason that Fiona Cownie et al., The English Legal System in Context (6th edn, Oxford University Press 2013) argue that courts are not trying to find the true intention of Parliament’s words, but rather, are ‘selecting what they decide is the true meaning of Parliament’s words’ (emphasis added). The judiciary interpret the law by use of certain ‘workman tools’ to assist them. These tools are: rules of construction/interpretation; rules of language; presumptions; aids to interpretation. Revision tip Statutory interpretation is one of the most popular topics to be examined, as it lends itself to both essay and problem-style questions. Be sure you understand each rule of interpretation and the aids to such construction. Do not ignore or discount a rule without explaining why you are discounting it. Examiners cannot read minds and if you fail to write why the literal rule is inappropriate (even if it is obvious), you could lose a substantial number of marks. We shall now consider each of these tools in detail. Rules of construction Although they are referred to as ‘rules’ of construction/interpretation, such rules are more tools or apparatuses that lawyers and judges can use to interpret a particular statutory provision. Indeed, according to Smith, Bailey, and Gunn (2007) (see ‘Key debates’ at the end of the chapter), ‘to call them “rules” is misleading: it is better to think of them as general approaches’. The courts are generally free to choose the means they think is most appropriate to interpret the legislation. Although there is no strict priority or hierarchy between the rules, the courts are likely to p. 73 follow the structure adopted in Figure 3.4 ↵ Page 25 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Figure 3.4 Process of the rules You may question the legitimacy of the power to use any tool of interpretation that the judge considers appropriate in the case. Indeed, Jacqueline Martin, The English Legal System (8th edn, Hodder 2016) argues that ‘since any rules or approaches can be used, it can be suggested that judges simply use the rule that will give them the result they want in the case’. Literal rule The court will always look first at the literal rule. The literal rule requires courts to apply the ‘natural and ordinary meaning’ of the word (Pinner v Everett (1969), Lord Reid). In Duport Steels Ltd v Sirs (1980), Lord Diplock explained that ‘[w]here the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning’. The use of a dictionary will assist the court in finding the ‘ordinary’ meaning. Assistance has also been provided in this matter through use of the Interpretation Act 1978, which enables judges to seek definitions of words beyond the Oxford English Dictionary. See the section ‘Aids to interpretation’ below for more detail on these. Often the use of the literal rule leads to harsh and absurd results; however, this is generally irrelevant if it p. 74 can be made clear that such is the intention of Parliament. ↵ Whiteley v Chappell (1868) LR 4 QB 147 (DC) FACTS: The defendant had impersonated a dead person and voted in an election in his name. A statute provided that it was an offence to impersonate ‘any person entitled to vote’ at an election. HELD: Since the person impersonated was dead, he was not ‘entitled to vote’, and thus the defendant was not guilty. (In this case, the rule interestingly went against Parliament’s intention.) Page 26 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Fisher v Bell 1 QB 394 (DC) FACTS: The defendant advertised a flick-knife in his shop window with a price tag attached to it. The defendant was charged with ‘offering for sale’ a flick-knife, contrary to s1(1) Restriction of Offensive Weapons Act 1959. HELD: The Divisional Court quashed the defendant’s conviction on the basis that goods displayed in a shop window are not considered to be ‘offers’ according to the law of contract. Rather, they are to be considered ‘invitations to treat’. The Divisional Court applied the literal interpretation of the words ‘offering for sale’ and found no liability could exist against the defendant. Interestingly, Parliament overruled the decision in Fisher v Bell in the same year by enacting the Restriction of Offensive Weapons Act 1961, which amended the offence in the 1959 Act to include the words: ‘exposes or has in his possession for the purpose of sale or hire’. A point that is often missed by students is that the application of the literal rule can also lead to certain sensible judgments. For example, in Day v Hosebay (2012) the Supreme Court ruled that a building used entirely for commercial activities, as opposed to residential purposes, could not be considered a ‘house’ for the purpose of an enfranchisement claim under the Leasehold Reform Act 1967. That sounds pretty sensible to us, as we would not consider a ‘house’ to be a building that is not lived in. What do you think? Golden rule The literal rule, however, may give rise to ambiguity in interpretation. The golden rule therefore provides that words must be given their plain, ordinary, and literal meaning as far as possible, but only to the extent that they do not: produce absurdity; or result in a repugnant situation. Zander (2015) (see ‘Key debates’ at the end of the chapter) has described the golden rule as ‘an unpredictable safety-valve to permit the courts to escape from some of the more unpalatable effects of the literal rule’. Despite this, James Marson and Katy Ferris, Business Law (6th edn, Oxford University Press 2020) argue that the golden rule is rarely used so as not to compromise the principle of parliamentary p. 75 supremacy by having to ‘reinterpret what Parliament has already created’. ↵ Page 27 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Adler v George 2 QB 7 (DC) FACTS: The defendant was obstructing a member of Her Majesty’s forces engaged in security detail at a Royal Air Force station. It was an offence under s3 Official Secrets Act 1920 to obstruct the actions of the armed forces ‘in the vicinity of’ a prohibited place. HELD: The offence took place ‘in’ a prohibited place rather than ‘in the vicinity’. As a literal interpretation would be absurd (as it would have resulted in the defendant being discharged), the golden rule was used to give the true effect to the Act so that it read ‘in or in the vicinity of’. Re Sigsworth 1 Ch 98 (DC) FACTS: This case involved a beneficiary of a dead person’s estate. The beneficiary was the son of the benefactor, his mother. The son had murdered his mother in order to inherit her estate. HELD: Use of the literal rule would give the murderer the right to claim the estate, but such a result would have been against public policy, as it would allow a murderer to profit from his crime. The court thus interpreted the statute by use of the golden rule to avoid the repugnant situation. Mischief rule The mischief rule, often known as the rule in Heydon’s Case (1584), is a tool where the court seeks to find the ‘mischief’ or the gap that the Act was enacted to deal with or cover. According to Heydon’s Case, four questions need to be asked in order to ascertain the mischief of a particular statute: 1. What the common law was before the making of the Act, 2. What the mischief and defect was for which the common law did not provide, 3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4. The true reason of the remedy. Smith v Hughes 1 WLR 830 (HC) FACTS: The Street Offences Act 1959 was passed to stop prostitution in the ‘street or public place’. A prostitute solicited from inside her house in an attempt to circumvent the law. Page 28 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation HELD: Under the literal rule, the defendant was not in a ‘street or public place’, nor was there any absurdity or a situation that was a situation that would be against public policy, though this point is debatable. The courts, therefore, considered the mischief that the Act intended to avoid, namely the mischief of prostitution. The Court, therefore, interpreted that ‘street or public place’ could include the defendant’s home. Attorney General v Associated Newspapers Ltd 2 AC 238 (HL) FACTS: A journalist published a newspaper article citing the reasons as to how a verdict was reached by a jury in a high-profile criminal trial. The information was passed on to the journalist by a third party who had obtained the information from a juror. The newspaper submitted that the Contempt of Court Act 1981 applied only to ‘direct contact by or with the jury’. HELD: Lord Lowry, in the House of Lords, sought to identify the mischief which the Act was designed to remedy. Attention was given to two sources reaffirming the idea that the Act was designed to protect jury secrecy. On that basis, the argument raised by the newspaper was rejected. Purposive approach Based upon, but much wider than, the mischief rule, this approach looks beyond the words of the Act and interprets the legislation in line with the purpose of the Act, not just as a gap that the legislation wished to fill. A useful definition of the purposive approach was provided by Lord Simon in Maunsell v Olins (1975), where his Lordship stated that: The first task of a court of construction is to put itself in the shoes of the draftsman—to consider what knowledge he had and, importantly, what statutory objective he had … being thus placed … the court proceeds to ascertain the meaning of the statutory language. p. 76 ↵ Under this approach, even if the result is to depart from the words used, judges will look at the reasons why the statute was passed and its purpose for enactment. This approach is used by the European courts when interpreting EU law, given the often broad and general expressions used by the draughtsman. This approach has more recently found favour with many judges dealing with the interpretation of domestic law. Indeed, in R (Quintavalle) v Secretary of State for Health (2003), Lord Steyn in the House of Lords said: The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas. Page 29 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Pepper v Hart 1 All ER 42 (HL) FACTS: Mr Hart was a teacher at Malvern College, a public school. As a benefit of the job, his own children could attend the school at a discounted rate (one-fifth of the regular fees). The Inland Revenue wished to tax this benefit and Mr Hart claimed that no tax was payable given the statement made by a minister in Hansard. HELD: The House of Lords referred to the statements of the Financial Secretary in Hansard. These statements revealed that the intention of Parliament was to tax employees on the basis of the additional cost to the employer of providing the concession. Jones v Tower Boot Co. Ltd IRLR 168 (CA) FACTS: The complainant, a 16-year-old of mixed ethnic parentage, worked in a shoe factory and during his employment was subjected to both physical and verbal racial abuse from his work colleagues. He sued the company for damages under s32 Race Relations Act 1976, which said that the employer shall be held liable for racial discrimination of its employees ‘in the course of employment’. HELD: The company was liable even though it had never authorized the racial abuse and the abuse had nothing to do with the abusers’ job, which the company argued meant they were not liable. The court thus gave a broad interpretation of ‘in the course of employment’ and awarded damages. Revision tip The mischief rule and purposive approach are similar in many respects; indeed, it is often said that the purposive approach is merely a more modern version of the mischief rule. Despite this, some subtle differences can be noted. In particular, the purposive approach is wider than the mischief rule in that it does not presuppose that statutes are passed for the purpose of overcoming a particular mischief in the law. The purposive approach looks past the mischief and looks towards parliamentary intention more generally. Page 30 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Rules of language In addition to the rules of construction, there are also rules of language which the courts may use. As p. 77 above, these are tools to help the courts resolve any ambiguity. Steve Wilson et al., ↵ The English Legal System (4th edn, Oxford University Press 2020) comment that they are ‘rules of grammar’ as opposed to ‘rules of law’. They are known as: ejusdem generis; noscitur a sociis; expressio unius est exclusio alterius. Table 3.12 explains these terms further. Table 3.12 Rules of language Language tool Literal meaning Explanation Ejusdem ‘Of the same type’ If a word with general meaning follows a list of particular words, then the general generis word applies exclusively to things of the same type, also known as genus, as the particular words. Powell v Kempton Park Racecourse (1899) Noscitur a sociis ‘Known by the Words in a statute derive meaning from the words surrounding them. Words in a company it keeps’ list have related meanings and are to be interpreted in context with the rest of the matters within the list. Muir v Keay (1875) Expressio unius ‘To express one To list a number of specific things within a specified class may be interpreted as est exclusio thing is to exclude impliedly excluding others of the same class. alterius others’ R v Inhabitants of Sedgley (1831) Powell v Kempton Park Racecourse AC 143 (HL) FACTS: The defendant was operating an outdoor betting ring. It was an offence to use a ‘house, office, room or other place for betting’. HELD: The words ‘house, room, office or other place …’ was held to refer to a class of indoor places. A racecourse fell outside this class and the defendant was not guilty. Page 31 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Muir v Keay (1875) LR 10 QB 594 (HC) FACTS: All houses open at night for ‘public refreshment, resort and entertainment’ required a licence. The defendant ran a café and argued that his café did not need a licence because he did not provide ‘entertainment’. HELD: Entertainment was interpreted as meaning the reception and accommodation of people, as opposed to musical entertainment. The defendant was required to have a licence by law. R v Inhabitants of Sedgley (1831) 2 B & Ad 65 (CKB) FACTS: A poor rate was levied on owners of ‘lands, houses, tithes and coal mines’. HELD: Those words impliedly excluded all other types of mines, specifically limestone mines, in this case by the specific mention of ‘coal’. Therefore, the rate could not be levied on owners of limestone mines. p. 78 Presumptions Further tools that the courts may use to aid their interpretation of a particular statute are the numerous presumptions that exist as a result of the common law. These presumptions assist in finding the intention of Parliament; however, they can often be rebuttable. The most prominent of these presumptions are listed in Table 3.13. Table 3.13 Presumptions Presumption Explanation and example against … Altering the Parliament is empowered to change the existing common law; however, such an intention cannot common law be implied (Beswick v Beswick (1968)). Binding the Crown Parliament is presumed not to bind the Crown unless it does so expressly or impliedly (e.g. Equality by an Act Act 2010). Criminal liability For statutory criminal offences, Parliament is presumed to have intended no liability without proof without fault of mens rea unless express words or implication can rebut the presumption and establish a strict liability or state-of-affairs case (Sweet v Parsley (1970)). Page 32 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Presumption Explanation and example against … Retrospective Statutes do not operate retrospectively, e.g. an individual cannot be liable for an offence that was statutes legal at the time that the act was carried out. This presumption can be rebutted by the use of express words by Parliament (e.g. War Crimes Act 1991, which allows the prosecution of those suspected of committing acts of ‘atrocity’ during the Second World War). Deprivation of Clear words must be used if Parliament intends to deprive a person of their liberty. There is a liberty presumption against such deprivation; however, any clear words to the contrary will be construed so as to interfere with the individual’s liberty as little as possible (R (H) v London North and East Region Mental Health Review Tribunal (2001)). Aids to interpretation The final tools available to the judiciary to assist in the undertaking of statutory interpretation are what have become known as the ‘aids’ to interpretation. Such aids can be intrinsic (i.e. within the statute) and extrinsic (i.e. outside of the statute) in nature. p. 79 Intrinsic The statute itself is the primary source of information. As a result, therefore, the statute must be read as a whole—with every word being considered—before looking outside of the statute. This intrinsic exercise will ensure the judiciary are as close to the intention of Parliament as possible before considering exterior factors. The most common intrinsic aids are listed in Table 3.14. Table 3.14 Intrinsic aids Intrinsic aid Explanation and example Short title This is of little use due to its descriptive nature; however, some value may be gained from the short title to demonstrate the overall intention of Parliament in relation to the purpose of the statute. Long title This gives an indication of the purpose of an Act. In R v Bates (1952), Donovan J held that upon reading the words of a section, should ambiguity or doubt arise, the long title may be considered in the hope of resolving the ambiguity. Preamble Preambles are rarely seen in modern statutes, since the inclusion of an ‘introductory text’. However, they were much more common in older statutes, where they set out the reasons for the passing of the statute. Marginal A side note may be used to consider what the purpose of the section is. In R v Montila (2004), the House of notes Lords stated that as side notes are not debated in Parliament, but rather, are included for ease of reference, they may be used to assist in interpretation but are to be conferred less weight. Page 33 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Intrinsic aid Explanation and example Punctuation Lord Reid in DPP v Schildkamp (1971) held that punctuation is to be considered like any other part of a statute and may be used as an aid to interpretation. Examples Statutes may provide examples to illustrate how the Act might work or how terminology within it might be used. Schedules The majority of statutes contain a schedule which often includes definitions of terms used in the Act. Extrinsic On many occasions, the statute itself is not entirely helpful. As a result, one must turn to the extrinsic aids. These are aids that feature outside of the statue itself but may be used nonetheless to assist in interpreting any ambiguities. Table 3.15 details the most prominent extrinsic aids. Please note that such aids are not p. 81 80 exhaustive. In fact, the list could no doubt form its own book. ↵ ↵ Table 3.15 Extrinsic aids Extrinsic aid Explanation and example Interpretation The IA 1978 is useful for the more common words that are found within statutes but that is the limit Act (IA) 1978 of its helpfulness. One particular use is s6, which provides that unless stated otherwise (i) where words used in an Act refer to the masculine gender they also include the feminine gender; and (ii) vice versa; and (iii) words appearing in the singular include the plural and words in the plural include the singular. The best example demonstrating an express statement to the contrary of the IA 1978 is the offence of rape, which can only be committed by a man, given the requirement in s1 Sexual Offences Act 2003 of penile penetration. Dictionaries It is permissible to consult a dictionary if the meaning of a word used in a statute is unclear; however, such uses are considered with caution (Customs and Excise Comrs v Top Ten Promotions Ltd (1969)). Explanatory These are guidance notes on the majority of statutes passed since 1999 prepared by the Government Notes Legal Service. The intention is to make the Act accessible to laypersons; however, they can also be very useful in finding the intention of Parliament. Hansard Hansard is the official report of what was debated in the Houses of Parliament. The report is updated daily. Under previous law, the courts were not permitted to refer to records of parliamentary debate; however, the rule was relaxed in Pepper v Hart (1993). Academic writing Academic writing, both in textbooks and journal articles, is more commonly cited in courts nowadays, for example, David Ormerod in matters relating to criminal law. Recently, in R (Purdy) v DPP (2010), the House of Lords required counsel to supply written submissions on whether the points contained within an article written by Professor Hirst were correct. Also, in R v Dooley (2005), the court referred quite often to Smith and Hogan’s Criminal Law. Page 34 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Revision tip Pepper v Hart is a key case. Many examination questions, both problem and essay-style, are based on a Pepper v Hart scenario. Often essay questions will focus on whether the rule in Pepper v Hart ought to be upheld, whilst problem questions will ask whether certain parliamentary debates may be used in a given scenario. For the latter of the two, it is essential that you remember that the rule in Pepper v Hart only applies in certain cases (see below under ‘Key cases’). Impact of the Human Rights Act 1998 Since the introduction of the Human Rights Act (HRA) 1998, in October 2000, the courts have been provided with an additional power when interpreting a statute. This power also entails an obligation on the courts to interpret legislation in accordance with the ECHR. In particular, s3(1) HRA 1998 provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. If the courts are unable to find a compatible interpretation, then they may make a ‘declaration of incompatibility’ under s4 HRA 1998. One of the most controversial uses of s3 can be seen in the criminal evidence case of R v A (Complainant’s Sexual History) (2002). R v A (Complainant’s Sexual History) 1 AC 45 FACTS: This case concerned the admissibility of a complainant’s sexual history evidence in a sexual offence case. Under s41(1) Youth Justice and Criminal Evidence Act 1999, there is a general restriction on the use of a complainant’s sexual history within a criminal trial. This restriction is subject to a number of exceptions detailed in s41(3)(a)–(c). The relevant section concerned was s41(3)(c), which provided that evidence of the complainant’s sexual history may be admissible if the evidence is ‘so similar that it cannot be explained by coincidence’. HELD: The question for the House of Lords was whether the defendant was guaranteed a fair trial, under Article 6 ECHR, where potentially relevant evidence to his defence was restricted by the operation of s41. The Court held, by a majority, that the defendant could not be afforded a right to a fair trial in the given circumstances and used their power in s3 to ‘read down’ the legislation to create a brand new exception to the general restriction, namely where the evidence is ‘so relevant that it ought to be admitted’. Page 35 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation The decision in R v A remains controversial given the quasi-legislative role taken on by the House of Lords. As a result of R v A, the majority of applications to adduce sexual history evidence are now admitted under the ‘so relevant’ gateway. See also the case of footballer Ched Evans (R v Evans (No. 2) (2016)). An example of the operation of s4 can be found in the case of Bellinger v Bellinger (2003). Bellinger v Bellinger 2 AC 467 FACTS: This case concerned the recognition of a gender status after the individual had undergone gender reassignment surgery. According to the law, Bellinger remained male and thus could not marry a man. HELD: The House of Lords declared the non-recognition of gender reassignment for the purpose of marriage as incompatible with Articles 8 and 12 ECHR. This forced the government’s hand which, as a result, introduced the Gender Recognition Act 2004. Looking for extra marks? When revising the impact of the HRA 1998, don’t forget to look for the most up to date and authoritative examples. Often these examples are also controversial. Here are two to get you started: prisoner voting rights (Hirst v the United Kingdom (No. 2) (2005)); mandatory life sentences (Vinter and Others v UK (2013); AG’s Reference (No. 69 of 2013) (2014)). These decisions show the extent of the effect that ss3 and 4 HRA 1998 have had in the field of statutory interpretation. In conjunction with the growing influence of EU law in the domestic courts, this impact has had the result that courts are now adopting a much less literal and formalistic approach to interpretation. The HRA 1998 and the rights guaranteed under that statute are considered further in Chapter 5. Page 36 of 39 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 3. Sources of Law I: Domestic Legislation Key cases p. 82 ↵ Case Facts Principles R (Miller) v The Supreme Court was tasked with 1. The advice given by the Prime Minister was The Prime determining whether the Pri

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