LAW 1020

14/10/2019

Case Law

What is ‘law’?:

 A system of rules laid down by a body or person with the power and authority to make law
 What legislators, judges and lawyers ‘do’
 A tool of oppression used by ruling class to advance its own interests
 A system of rules grounded on fundamental principles of morality

Holland and Webb, Learning the Rules, p 1

What is a ‘source’ of law?:

 A document or practice which lawyers use when arguing that the law says X not Y
 How you can convince a neutral arbiter (judge) to believe your argument
 You need to support your argument with some legal device or document that’s recognised in
the legal system as authoritative – whether it’s recognised will depend on:
o When it was issued
 Sources of law in England and Northern Ireland:
 There are two major sources of case law:
o Legislation
o D

UK Parliament:

 Legislation derives directly or indirectly from Parliament; i.e. it may be primary or secondary
 May be public (affecting general public) or private (affecting a particular locality or company)
 Later legislation ‘repeals’ earlier inconsistent legislation (expressly or impliedly); hence the
doctrine of implied repeal – any law that becomes legislated after any other takes precedent
over the previous one, or a prior one that contradicts it. Do not use a ‘stale’ legislation –
judge will tend to follow more recent ones.
 Primary legislations = statutes = Acts of Parliament

Parliament is Sovereign:

 Any piece of legislation that comes through the Lords of parliaments is supreme, sovereign
and can’t be questioned. Even the procedure and method by which the law is made cannot
be questioned
 Is Parliament truly sovereign in every aspect?
 The UK has no single document called the ‘Constitution’, but it still has constitutional law
 We are ruled by public law
 Any law that comes from Parliament is considered to have supreme authority, or sovereign
 Any subsequent Act repeals former Acts and the courts cannot invalidate Acts of Parliament,
unless that is required by EU law
 Some Acts of Parliament, sometimes referred to as ‘Constitutional Acts’, are not subject to
the doctrine of implied repeal. E.g. Magna Carta 1215, Bill of Rights 1689, European
Communities Act 1972, Human Rights Act 1998, Northern Ireland Act 1998.
 Bills of Rights, 1689, Article 9…
  Blackstone (1765): Parliament’s power is ‘despotic’
o Shouldn’t there be any limit to the types of law that Parliament should be allowed to
make?
 Alan Turing was prosecuted for acts of homosexuality, which was a crime in
the UK at the time, regardless of the fact that he contributed immeasurably
to helping the allies succeed in the World War.
o Society puts in place MPs who will advocate the beliefs and wishes of the people
 R (Jackson) v Attorney General [2005] UKHL 56 – Bills must pass through both the House of
Commons and House of Lords to become Acts. This Bill was passed through only the House
of Commons – the House of Lords rejected it twice, yet it was still passed and became an Act
with Royal Assent
 Hunting Act 2004
 Parliament Acts 1911 and 1949

The Significance of EU Law…for now:

UK became part of the European Communities (now EU) on 1/01/1973. Member States are bound
by EU Law, with some EU law having direct applicability while some having direct effect.

Factortame Ltd v Secretary of State for Transport [1991] 1 AC 603

Merchant Shipping Act 1988

UK courts must disapply legislation, even an Act of Parliament, if it contravenes EU law. I.e.
EU law takes precedence over Acts of Parliament.

Types of Legislation:

Primary Legislation:

 Acts of the UK Parliament (statutes)

Secondary Legislation:

 Orders in Council (important for NI)

Prerogative Legislation:

EU Legislation:

 Treaties

Secondary Legislation:

Regulations: directly applicable

Directives: need to be implemented

Decisions: binding only addresses

European Convention of Human Rights (ECHR):

The UK has a dualist system of law – treating or international agreements do not become part of
domestic law until incorporated by an Act of Parliament.
The ECHR is an international Treaty created separately from the EU – they’re two distinct bodies and
cannot be used interchangeably.

The ECHR was ratified by the UK in 1951 and the Convention came into force on 3 September 1953

Only after the enactment of the Human Rights Act of 1998 that the rights contained…

Case Law:
How were disputes resolved before our current judiciary system was in place?

Common Law – the rules of law which have been formed through court cases. It’s a legal system
derived from Anglo-Saxon traditions.

It has is roots in the Monarchy where it was believed that the king/queen was chosen by God – the
Diving Right of Kings. Therefore, the king was seen as the ultimate enforcer of law, acting as God’s
representative on earth.

In the 12th century, Henry II appointed a group of advisors to hear petitions which became the Court
of the KING’S Bench (now Queen’s Bench Division)

Judges used to travel around the realm and hear cases. Upon their return, they would discuss these
cases and soon a body of law developed, with rules written from the 13 th century.

There was also previously the Court of Equity which was separate from common law courts, with its
own body of rules and principles

Law equity was under the direction of the Lord Chancellor

Case law derives only from higher courts – never cite a case in a higher court from a lower court.

Only a small proportion of court decisions are reported

Not all decisions of higher courts ‘make’ law: they may simply apply it.

Decisions of higher courts are binding upon lower courts. E.g. decisions of the High Court are binding
on decisions made by

Sources of Case Law:

 UK Supreme court etc…

Referring to Case Law:

Donoghue v Stevenson [1932] AC 562 – AC = Court of Appeals

R v Bournce [1939] 1 KB 687 (Macnaghten J) = King’s Bench

UKHL

EHRR

Supreme Court is binding on all courts.

Navigating Caselaw:
 Important features to note:
 o For the sake of your argument, you need the most recent case law. Take the care to
ensure you get the most recent caselaw possible for any matter you’re considering –
that shows a good lawyer.
o When was the case decided?
o What level of court decided the case? Supreme Court has absolute authority.
o Which judge(s) gave judgements in the case? Particularly, what statements did they
make?
o Was the decision a unanimous one? A unanimous judgement almost gives an extra
layer of authority on a case.
o Did the decision affirm or reverse a lower court’s decision? You must make
reference to whether or not the decision did this.
o Did the case follow, distinguish or overrule any previous case?
 Any case you look at needs to consider all these above issues.
 The ratio decidendi (reason for deciding) and obiter dicta (things said by the way). Spoke
about it a bit in seminar last week

Reading Tips:
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