Source Du Droit Anglo-Saxon

SourceduDroitanglosaxon
CHEYRithy&SergeBASSET
UniversitRoyaledeDroitetdesSciencesconomiques UniversitLumireLyon2 FilireSpcialede Droit
COMMONLAW
SourceduDroitAnglosaxon
Enseignant:M.RithyCHEY EncollaborationavecM.SergeBASSET
20112012
SOURCE DU DROIT ANGLO-SAXON

Elments de la Bibliographie Ouvrages, manuels, Raymond Legeais, Les grands systmes de droit contemporains, une approche comparative, Litec (Manuel) 2008, 494 pages. Michel Fromont, Grands systmes de droit trangers, Mmentos Dalloz, 4e dition 2005, 197 pages. Michel L. Wells, Introduction to American Law, University of Georgia Law School, Cours, indit. Alain V. Levasseur, Le droit amricain, DallozConnaissance du droit, 2004, 162 pages. Rn David, Camille JauffretSpinosi, Les grands systmes de droit contemporains, Dalloz Prcis, 11e dition 2002, 553 pages. Roland Sroussi, Introduction au droit anglais et amricain, Dunod 3e dition 2003, 200 pages. Roland Sroussi, Introduction au droit compar, Dunod 2e dition 2003, 208 pages. Francis Lefebvre, RoyaumeUni (Juridique, fiscal, social, comptable), Dossiers Internationaux dition Francis Lefebvre 2003, 535 pages. Slapper Gary & Kelly David, The English Legal System 20092010, 10th Revised Edition, Routledge Cavendish, 2009, Holland James & Webb Julian, Learning Legal Rules, 6th Edition, Oxford University Press, 2006, James Philip S, Introduction To English Law, 12th Edition, Butterworths, 1989, Osborns Concise Law Dictionary, 10th Edition, Edited By Mick Woodley, Thomson & Sweet&Maxwell, 2005, Harraps Dictionnaire Juridique/Law Dictionary, FranaisAnglais/EnglishFrench, Dalloz, 2004. Sites dinternet - Journal Officiel de lUnion Europenne, http://eur lex.europa.eu/JOIndex.do?ihmlang=en - Journal Officiel des RoyaumesUnis, http://www.legislation.gov.uk/ - Journal Officiel des EtatsUnis, http://www.gpoaccess.gov/legislative.html - Journal Officiel de lAustralie, http://australia.gov.au/publications/australian governmentgazettes - Journal Officiel de Canada, http://canadagazette.gc.ca/ - Journal Officiel du Qubec, http://www3.publicationsduquebec.gouv.qc.ca/gazetteofficielle.fr.html - Journal Officiel de la France, http://www.journalofficiel.gouv.fr/ - Journal Officiel de la Chine, http://english.gov.cn/documents/gazettes/previous/index.htm - Journal Officiel de la Confdration suisse, http://www.admin.ch/ch/f/ff/index.html - Site dun Professeur canadien, Vincent Gautrais, www.gautrais.com
PLAN DU COURS
Chap 1: What is law and where does it originate? General overview Part one: legislation Part two: the courts Chap 2: the new U.K. Supreme Court Chap 3: the Rule of Law (theoretical approach) Chap 4: legislation and statutory interpretation Chap 5: the making of legislation Chap 6: the doctrine of judicial precedent Chap 7: Stare decisis, ratio decidendi and obiter dictum What is binding and nonbinding in a court decision? Chap 8: Equity: a brief history; equity today Chap 9: the personnel of the law: judges, barristers and solicitors Chap 10: the effects of European Law on the drafting and interpretation of UK legislation
THESOURCESOFANGLOSAXONLAW
CHAPTER ONE: WHAT IS LAW AND WHERE DOES IT COME FROM? GENERALOVERVIEW
Much has been said about the differences between the common law, which is a major source of AngloSaxon law, and continental law, that is GermanoRoman law, which prevails in continental Europe. Practice, however, and the evolution of legal systems the world over, contradicts that clich of systems that are poles apart. Constitutionally speaking, British membership of the Union (then the European Community) since Jan 1st, 1973, has eroded the sacrosanct doctrine of Parliamentary sovereignty that stood supreme since the Glorious Revolution (a.k.a. the Bloodless Revolution) of 168889. The same doctrine of Parliamentary sovereignty was later further undermined by the incorporationofECHR(theEuropeanConventiononHumanRights)underthefirstBlairgovernment in1998intoEnglishlaw. Also, academics and legal writers, like Gary Slapper in the article written for The London Times that you will find in the appendix to Part One, often emphasise the orality of Great British law and the fact that English law is not codified. As you will see in Chapters 5 and 6, however, even though English law is still caselaw (that is judgemade law, a.k.a. unwritten law), the balance is more and more tilted towards written law, that is, the law made by Parliament, under the combined influence of European law and the everspreading welfare state. There may not be codification per se, but an exponentional rise of written law, especially by the use (or abuse?) of delegated legislation by governmentofficialsanddepartments. Lastly, I would like to say a few words about the wording of the title to the course, the sources of AngloSaxon law. As you will quickly realise, the main, if not single focus, will be on English law, which means the law as it applies and England and Wales. This is due to the fact that English law is themotherofallothersystemsusedinAngloSaxoncountries.
PARTONE:INTRODUCTIONANDLEGISLATION
1.WHATISLAW?
What is law? This is a question that has caused philosophers and legal theorists to write volumes in tryingtoanswer. Someoftheiranswerswere,reducedtotheirmostbasicform: Each of these answers tells us something useful about the nature of law and how it works. In this chapter, we shall take the question What is law? in two stages. First, we shall briefly distinguishlawfromotherrules;thenweshallexplainwhatwemeanbyaninstitutionalsource,and howithelpsustounderstandthelaw. 1.1 Legalrulesandsocialrules Lawis definableasasystemofrules.Muchofourdaily lifeisguidedanddirectedbylegalrulesfrom shoppingtoourrelationshipwiththeState. Of course, any society is governed by a mass of other rules which are not laws in the formal sense, but merely social conventions. In actual fact, these are also means of controlling social conduct. Why some rules should be given the force of law and others not is another of those philosophical questions to whichwe do nothave a full answer.Law is indeednotthesame everywhere. Take laws governing adultery for example; in modern English law, a person who has a sexual relationship with anothers spouse will incur no legal penalty, even if he or she may end up being taken to court in a divorce case. In Islamic law, the Quran prohibits adultery by making it a crime, and subjects the parties to the punishment of flogging or stoning; in ancient Greece, to give a historical example, a manwhoseducedanothermanswifecouldfaceaclaimforcompensation,sincehehadviolatedthe propertyrightsofhislovershusband. Law is asystemofruleslaiddown byan organisationor apersonvestedwiththe powerand authoritytomakelaw; Lawiswhatlegislators,judges,andlawyersdoormake; Lawisatoolofoppressionusedbytherulingclasstopromoteitsowninterests; Lawisasystemofrulesbasedonfundamentalprinciplesofmorality.
Thus, the different laws on adultery could be said to exist as a reflection of different religious or moral standpoints taken by the law; perhaps, they also reflect diverse views of human sexuality, or the status of men and women in a society. This cultural dimension of law is important in developing our understanding of why particular legal rules have developed or why different legal traditions have evolved in different countries. The cultural dimension has become increasingly important in legaleducationoverthepastthirtyyearsorso. 1.2 Theinstitutionalsourcesoflaw Generally, laws can be identified by the fact that they take a form which distinguishes them from social conventions. Their form tells us that they are derived from an institutional source that is sociallyrecognisedashavingthepowertocreatelaw.Onlylawscreatedinthiswaycanbesaidtobe legallybindingupontheindividual,orevenupontheStateitself. In English law, there are four main institutional sources which we shall consider: Parliament, the courts,theEuropeanCommunityandtheEuropeanConventiononHumanRights.Totheseprimary sources should be added secondary sources, which are literary sources (legal encyclopaedias, for instance)forthemostpart.
2.PARLIAMENT
Parliament is significant for three reasons. Firstly, it is from Parliament that the probably most important source of law originates that is, statute law. In the second place, through its legislative powers, Parliament is able to give lawmaking powers to other bodies, such as local councils and Government departments. This results in a form of law that is called delegated or secondary legislation. Thirdly, Parliaments delegatory powers are being increasingly used to create sets of informalruleswhichoperatewithintheframeworkofformalrulescreatedbystatute. 2.1StatuteLaw A statute is a document which contains laws made by Parliament. Statutes are also referred to as Acts of Parliament. Each statute usually deals with a separate topic such as, for instance, the Theft Act 1968 or the Sales of Goods Act 1979. Statutes are now found in virtually all fields of law and regulateallsortsofactivities.
SourceduDroitanglosaxon CHEYRithy&SergeBASSET Statutes are created directly by Parliament, following procedures laid down in both the House of Commons and the House of Lords that will be studied later on in this course in the chapter devoted tothemakingoflegislation.A statutebecomeslawonlyafterithasbeenintroducedintoParliament asaBill,beenapprovedbyParliamentandhassatisfiedtheformalityofobtainingtheRoyalAssent. Once an Act has been passed it cannot be impeached. As Lord Campbell put it in Edinburgh & DalkeithRailwayvWauchope(1842)8Cl&F710: No Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into whatwasdoneprevioustoitsintroduction,orwhatpassedinParliamentduringitsprogress. Lord Campbells statement still rings broadly true today. There is no single United Kingdom court with the power equivalent to, for example, the Supreme Court of the USA to declare domestic legislation unconstitutional and therefore invalid. This absence of constitutional review reflects a principle called the Sovereignty of Parliament, which means that Parliament is the supreme law maker and that there is no form of law that is superior to an Act of Parliament. The supremacy of ParliamentisimportantforLegalMethod,sinceitcreatesadivisionbetweenlawmakingandjudicial functions in the State. As a result, the English judge is careful not to tread on the legislators toes. This does not mean however that there are no circumstances in which a court can challenge the legality or general application of primary legislation. Indeed, there are at least three avenues wherebythevalidityoflegislationmaybechallengedincourt. Firstly, even Parliament must abide by the law. Consequently, in theory at least, if Parliament itself broke the law, the courts could declare that any resulting legislation was not a valid Act of Parliament. A good and recent example of an Act being challenged is the Hunting Act 2004, which banned foxhunting with dogs. The original Hunting Bill had been strongly opposed in the House of Lords and was passed only by the House of Commons invoking a special procedure, created by the ParliamentActsof1911and1949,whichallowsBillspassedbytheCommonstobecomelawwithout the consent of the Lords. Opponents of the Hunting Act challenged its legality by arguing a kind of domino effect. The Hunting Act, they claimed, was invalid because it was deemed to be passed accordingtoatime limitestablishedbytheParliamentAct1949.ButtheParliamentAct1949,which amended the time limit contained in the Parliament Act 1911, was, the critics argued, itself invalid becauseitwasonlypassedasaconsequenceofthespecialproceduresintheParliamentAct1911.In short, in the critics view, the 1911 Act could not be used to authorise its own amendment in this way. Although the argument failed at every stage of the legal process, it went all the way up to the House of Lords as a Court of Justice, the highest court in the realm see R (Jackson and others) v Attorney General [2005] WLR (D) 129. There, a panel of nine Law Lords finally and unanimously rejected the prohunting lobbys claims on the basis that, on a proper interpretation, the 1911 Act did not precludetheuse ofitsownprocedurestoamend itself,andconsequentlyboth the1949 and 2004Actswerevalid. Secondly, the United Kingdoms membership of the European Union has also had an impact on the relationship between the courts and Parliament, to the extent that the superior courts may override
SourceduDroitanglosaxon CHEYRithy&SergeBASSET or disapply an Act of Parliament that conflicts with directly enforceable European law as we shall laterseeinthiscourse. Thirdly, under the Human Rights Act 1998, the courts also have the power to declare legislation incompatible with the fundamental rights contained in the European Convention on Human Rights (ECHR),whichwillbediscussedindetaillatertoo. The growth of legislation has been a prominent feature of the English legal system over the last 100 or so years. It reflects the extent to which government has extended its control over our activities. ThisisparticularlytruesincetheemergenceoftheWelfareStateinthe1940s. As a result, many important fields, such as employment, child care and social security law, owe their existenceessentiallytostatute. Thevolumeoflegislationhasgrownexponentially:forinstance,thenumberofActspassedincreased by an annual 20 percent between 1964 and 1974; or, seen from another angle, the volume of legislationrosesteadilyfrom745pagespersessioninthe1950sto1,525pagesinthe1980s. 2.2Delegatedlegislation Acts of Parliament provide a legitimate means whereby Parliament can pass on, or delegate, its law makingpowerstoanotherbodyorperson. Most delegated legislation is published as statutory instruments; these are also sometimes referred to as Regulations. The volume of statutory instruments is considerable: almost 28,000 instruments were made between 1987 and 1997. Statutory instruments are not just quantitatively important. In practice, whole areas of law, such as social security or immigration, are dependent on Regulations, which will be of greater daily significance than statute. Delegation always requires the express authorityofanActofParliament,which,willbereferredtoastheparentAct.TheparentActwillnot only give authority to the process of delegation, but also will set the parameters of the delegated power. Practically, the ability to delegate carries great advantages, as delegated legislation can take effect more quickly, and deal more easily with technical detail, than statute law; this said, Parliament exercises little control over delegated legislation, so there is concern that these advantages are boughtatsomecosttotheConstitution.
SourceduDroitanglosaxon 2.3Informalrules
Informalrulesaremostlycreatedbyministerialpowersgrantedundertheauthorityofstatute. They are given many a name like Directions, Guidance, Circulars and Codes of Practice. They are informalbecausethey canbecontrasted with theformalitiesnecessary to create anAct orstatutory instrument,andbecausetheirstructureandoperationarealsooftenlessformalised. Informal does not mean that those rules are unimportant. Many play a significant part in the regulation of quite a few public organisations. Most of those rules regulate official discretion, which, according to Professor Gilligan, is the extent to which officials make decisions in the absence of previouslyfixed,relativelyclear,andbindinglegalstandards. Indeed, in the daily running of business, officials must often resort to their own judgement in deciding whether a rule applies. Informal rules help said officials to use their discretion effectively and can impose restrictions upon it. At the same time, however, there is concern that the increasing useofsuchrulesreducestheabilityofParliamentandthecourtstomaintainacheckontheactivities ofstatebureaucracies. To an even greater extent than delegated legislation, informal rules are a modern development in theEnglishlegalsystem.Theyareoftensaidtofallintothreecategories: Interpretative guides, which are official statements of departmental policy expressions of criteriatobefollowed,standardstobeenforcedorconsiderationstobetakenintoaccount, according to Baldwin & Houghton, and which may be made available to the public to inform themoftheirrights,etc. Procedural rules, by which we mean that many public organisations lay down procedures for outsiderstofollow;forinstance,procedurestoclaimsomesocialsecuritybenefit.
Instructions to officials, that resemble interpretative guides, are often merely intended to give guidance to officials, not to citizens, but not always. For example, the Adjudication OfficersGuideusedbysocialsecurityofficialispublishedandthusseemstofallbetweenour twocategories.
Informalrulesdo notapplytothepublicatlarge. Some are not published,whileothers are available publicly. In form, such rules will also vary considerably. A particularly interesting example of the types ofinformal rule that existwas providedbytheSocialFund Manual,nowreplacedbytheSocial FundGuideandtheDecisionMakersGuide.
SourceduDroitanglosaxon CHEYRithy&SergeBASSET The manual contained a twotiered system of informal rules which were provided to officers of the Department of Social Security to assist in determining applications made by social security claimants for grants or loans for special needs. The distinction was made between Directions and Guidance inthescheme.Theformerhadtobestrictlyappliedbyofficers,whilethelatterwasmeantonlytobe indicative,leavingtheofficerfreetoexercisediscretioninthecaseconcerned.WhentheSecretaryof State published Guidance that used the mandatory language of the Directions, the court found him to be acting in excess of his statutory powers ( R v Social Fund Inspector and Secretary of State for Social Security ex parte Roberts, the Times, Feb. 23rd, 1990). To put it simply, guidance which directs officialstodosomethingisnolongerguidance. Although legislation is crucial, it cannot operate in isolation. Legislation requires implementation. In thisprocess,questionsmayberaisedabouttheeffectofaparticularpieceoflegislation.Oftenthese willinvolvetechnicalquestionsofinterpretation.Thatprocessofinterpretationisusuallyundertaken bythecourts.
APPENDIX
1. Im sorry, would you mind repeating that?

GarySlapper,inTheTimes,March13,2007 Withoutadvocacythere couldbe nolegaljustice.Itisessentialthatwhatadvocatessayin courtisclearly audibleandunderstoodbyallconcerned.Thatiswhyseniorjudgeshaveexpressedapreferencethatthe fullIslamicveilshouldnotbewornincourt.ItalsoaccountsforwhytheCourtofAppealrecentlyordered the retrial of an East Timorian man who had been convicted in proceedings that he did not fully understandasanappropriatetranslatorhadnotbeenusedatthetrial. From ancient Celtic times, law in Britain has had a history of forensic orality. It was the illiteracy of that time, and the AngloSaxon era, that begat the oral legal tradition. Repetition and tautology became techniques in advocacy because the ear cannot backtrack to check on a spoken word as the eye can on the page. Sometimes, though, counsel today can be uncomfortably prolix. Seeing the judge look at his watchanadvocateonceasked:AmItakingtoolong,Inoticedyourlordshipwaslookingatthetime?,to which the reply was: I wasnt looking at the time, I was looking at the date. Frequently hearing long winded arguments can provoke judicial impatience. In 1970 in Sheffield, Mr Justice Howard sentenced a boyto14yearsbeforethecourthadbeentoldthefactsofthecase. The serenest response to an aural fault was that of a Vancouver judge who told a convict he could speak before being sentenced, and asked: What would you like to say? F**k all, was the curt reply. What did he say? inquired the judge cupping his ear. He said f**k all , the court clerk answered. Thats strange,thejudgedeclared,Imsurehesaidsomething. Eric Hoekstra, a Dutch philosopher, is planning to live for a week in a barrel in honour of Diogenes the Cynic who, in Ancient Greece, resided for some time in a large earthenware jar. Hoekstra wants to demonstrate that man does not need much to be happy. Regrettably, Diogenes had a jaundiced opinion of the legal profession. He once went to look for an honest lawyer. Hows it going? someone inquired after a while. Not too bad, he responded, I still have my lantern. He did, though, influence the outcome of one modern American case. In 1977, in Connecticut, Justice Parskey ruled that a schoolboy who had given the finger from the rear window of a bus to a state trooper was not guilty of making an
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obscene gesture. The court held that, as used by Diogenes as a semiotic insult to the orator Demosthenes, the digitus impudicus was a phallic symbol, but both then and when directed at a police officerinAmerica,itwascalculatedtoarouseangerratherthansexualdesiresowasnotobscene. The Work at Height Regulations 2005 are sensible rules. The year before they became law, 4,000 people suffered major injuries and 67 died from falls at work. What recently seemed less sensible to many Humberside firefighters was that the rules should be applied to stop them from using ladders to work at heights above 6ft when fitting fire alarms to the houses of local residents. To avoid a high risk of peril, however, even lawyers have been warned away from work commonly seen as within their core competencies. Justice Collins proclaimed, in the 1892 case of Soren Steffenson, that lawyers in court should remember the practice of reading from the law books is an exceedingly dangerous one, and shouldnotbeindulgedin.(591words) TheauthorisProfessorofLaw,andDirectoroftheCentreforLaw,TheOpenUniversity gary.slapper@thetimes.co.uk
PARTTWO:THECOURTS
IntheEnglishlegalsystem,thecourtsaretherecognisedinterpretersoflegislation.Theyarealsothe secondmajorsourceofEnglishlawastheydevelopwhatisknownastheCommonLaw.
1. THEMEANINGOFCOMMONLAW
Thetermisusedintwodifferentways: a) todistinguishCommonLawfromstatute: CommonLawmeansthenallthoserulesthathaveevolvedthroughcourtcasessincetheemergence of a common legal system in the 12th century, in the wake of the Norman takeover. Even though statute law stands supreme now, the way of thinking about legal problems in England (and more generally in AngloSaxon countries) is still very much influenced by the categories developed within theframeworkofthecommonlawcourts,theformsofactionastheyusedtobecalled. b) todistinguishCommonLawfromothersystems: In the Western world, there are two dominant traditions, which we call Civil and Common law. Common law countries have a legal system that is derived from the English one. The Common Law worldisawiderangingone:itencompassesthefederallawsoftheUSAandmostexistingorformer membersoftheNewBritishCommonwealth. This doesnotmeanthatthosecountries have a standardised approach tolegal problems. There,the Common Law has had to respond to the different needs and conditions of each jurisdiction, which hasoftenmeantdepartingfromestablishedEnglishrules.ManyEnglishlawyersseethisasaproofof the strength and vitality of English law and its remarkable capacity for adaptation to local contexts. For instance, in India, the English tradition coexists with elements of local customary law or even withotherlegaltraditions,suchasHinduLaworIslamicLaw.
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2. THECONTRASTWITHCIVILLAW
The term Civil Law describes those systems that have developed out of the RomanoGerman legal tradition of continental Europe. It is also known as continental law. This Civil Law tradition prevails withintheEuropeanCommunity.Asof2006,onlytwoofthe25memberstates,namelytheRepublic ofIrelandandtheUnitedKingdom,belongedtotheCommonLawworld. There is a rather different way of thinking about law within each tradition. In Civilian systems, there isahigherlevelofconceptualisation,whichreflectsinatheoreticallycomplexinstitutionalbasis.Itis sometimes argued that this creates a more scientific or rational legal system than the highly pragmatictraditionofCommonLaw.Thishasanumberofpracticalimplications: a) First,itcan besaid that theEnglishsystems dependenceupon descriptive factual categories (theformsofactioncitedpreviously)mayrestrainnewdevelopmentsinEnglishlaw,because Englishjuristsdonothavetheconceptualarsenaltoincorporatechangeeasily. b) In the second place, the modern Civil tradition is mainly based on principles of codified law. ThisprocessofcodificationincontinentalEuropeowesalottotheRomans,andespeciallyto the Corpus Iuris Civilis (Latin for the body of civil law) that has been handed down to us by Emperor Justinian, that ruled from 527 to 565 AD. The assumption governing a codified system is that it is possible to create a set of texts containing an authoritative statement of thelaw,habituallyintheformofCivilandCriminalCodes.EventhoughEnglishlawyersalso talkaboutcodifyinglegislation,theyusetheterminaradicallydifferentway. In the Common Law, a codifying Act is a piece of legislation which brings together all the existing law on a topic, both statute and caselaw, and turns it into a single entity the codifying Act. By contrast with the continent, codification in England has been used as a limited means of imposing legislative coherence on a particularly problematic area of law. English codifications have never effected a complete restatement of the entirety of, for example,CommercialLaw,inastatutoryform.Yetitispreciselythelatterapproachthathas been adopted by the majority of civilian systems. To conclude on that point, for the English, codification has never been a key instrument to organise and conceptualise the rules of law thatmakeupalegalsystem. c) Thirdly, in theory, codification reduces the role of the Civil Law courts to simply interpreting and applying the law of the Code. English lawyers have often argued that Civilian judges did not act in a dual capacity as the Common Law counterparts do; that is as being both the interpretersof legislation andthe guardiansofa distinct bodyofcase law.Inactual fact,this is not true, since most European countries have their own systems of precedent and furthermore the way Codes are designed leaves European judges far greater discretion in interpretationthanEnglishlawyersmightthink.
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3. THECOURTSTRUCTURE
The chart above shows a simplified version of the English court system. The Appellate Committee of the House of Lords was the final court of appeal for civil and criminal cases from England and Wales untilOctober2009,when theSupremeCourt replaced itas thehighestcourtintheUnitedKingdom. Source:http://www.law.duke.edu/lib/researchguides/english.html ConcerningEnglishcourtsasasourceoflaw,twodistinctionsmustbedrawn: a) Oneisthedistinctionbetweentrialcourtsandappellatecourts;and b) Theotheristhatbetweencivilcourtsandcriminalcourts. The function of trial courts is to hear cases at first instance, that is to say to make a ruling on the issuesoffactandlawthatariseinthecase.Asforappellatecourts,theirpurposeistoreconsiderthe application of legal principles to a case that has already been heard by a lower court. Trial and appellatefunctionsareoftencombinedwithinonecourt. Civil and criminal law are quite different in their aims and employ different legal procedures. The termcivillawasopposedtotheCivilLawexaminedpreviouslyisusedtodescribeallthoseareas oflawthatgoverntherelationshipbetweenlegalpersons,thatistosayindividualsandcorporations, suchasemploymentorcontract.Criminallaw,bycontrast,describesthosewrongswhichareserious enough for society to outlaw them as crimes and to impose penalties on the wrongdoers, for example fines or prison sentences. Generally speaking, there is a fairly clear distinction between the courts that have civil law responsibilities called jurisdiction by lawyers and those that have criminal lawones. Beforeconsideringtheroleofeachcourt,mentionshouldbemadeoftheConstitutionalReformAct 2005. This Act modifies the office of the Lord Chancellor and makes changes to the way in which some of the functions vested in that office are to be exercised. The Act also creates the Supreme CourtoftheUnitedKingdomandabolishestheappellatejurisdictionoftheHouseofLords.Itcreates the Judicial Appointments Commission to select people for judicial appointments in England and Wales, and provides for judicial discipline in England and Wales. The Act modifies the jurisdiction of the Judicial Committee of the Privy Council and removes the right of the Lord President of the Counciltositjudicially.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET 3.1.THEHOUSEOFLORDS/THENEWU.K.SUPREMECOURT TheHouseofLordsusedtotopthelegalpyramidofEnglishcourts.Itdealtonlywith appeals,mainly fromtheCourtofAppeal,andsometimesdirectfromtheHighCourtthereforebypassingtheCourt ofAppealthankstoaspecialprocedurecalledleapfroggingortheleapfrogprocedure. Cases were normally heard by five judges or, exceptionally, by as many as seven or nine, if the cases were felt to raise issues of extreme importance. These judges were known as Lords of Appeal in Ordinary,butthecommonpeopleandjournalistscalledthemLawLords. The Lords had final jurisdiction over both civil and criminal appeals and hear relatively few cases annually, no more than one hundred on average. Two reasons accounted for that state of fact. Firstly,theHouseofLordsonlyallowedappealsinrespectofcasesthatraisepointsoflawofgeneral public importance. Such cases are usually few and far between. Secondly, the cost of taking a case up to the House of Lords was astronomical, and this used to deter people from exercising the rights ofappealthattheyenjoy,unlesstheirclaimwasfinanciallyassistedbytheState. The office of Lord Chancellor has historically carried the status of head of the judiciary (i.e. Minister of Justice) and has included the right to sit as a judge in the House of Lords, though most Lord Chancellorsinrecentyearshaveexercisedthatrightquitesparingly.Inlinewiththemoodforreform of Prime Minister Blair and his will to modernise the institutions of the country, Lord Falconer, who wasmadeLordChancellorandSecretaryofStateforConstitutionalAffairsin2003,refusedtositasa judge. The Constitutional Reform Act 2005 formalised this practice into a constitutional principle, and transferred the judicial functions of the Lord Chancellor to the Lord Chief Justice who, as a result, became President of the Courts of England and Wales. The Lord Chief Justice however has not inheritedtherighttositasajudgeintheLords.ThesameActprovidedforthereplacementofafinal court of appeal that was more clearly separated from the legislative arm of the government. The existingLawLordsweretobecomethefirstmembersoftheSupremeCourtbyvirtueofsection23of the Act and, by section 24, the senior Law Lord was to become President of the Supreme Court. The judges were no longer to be known as Lords of Appeal in Ordinary, but were to be styled Justices of theSupremeCourt. ThesecondchapterinthepresentcourseisdedicatedtotheindepthstudyofthenewU.K.Supreme Court. 3.2.THECOURTOFAPPEAL TheCourtofAppealfallsintotwoDivisions,CivilandCriminal. The Civil Division will hear appeals from the High Court and county courts. Cases are heard by a minimumoftwo,butnormallythree,judgescalledLordsJusticesofAppeal.Aseniorjudgeknownas the Master of the Rolls heads this Division. Since October 1st, 2005, the incumbent has been Sir AnthonyClarkeM.R. The Criminal Division will hear appeals against either conviction or sentence from the Crown Court. Criminal cases will be heard by either two or three judges drawn from among the Lord Chief Justice (currently Lord Phillips of Worth Matravers), the Lords Justices of Appeal, and Judges of the High Court.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET 3.3.THEHIGHCOURT The Court is subdivided into three divisions, each of which has a separate jurisdiction to hear cases atfirstinstance(i.e.trials).Thedivisionsare: a) The Queens Bench, which deals with the main areas of common law, such as contract and tort; b) The Family division, which deals with matrimonial cases and the wardship and adoption of children;and c) TheChanceryDivision,whichdealswithcertainproperty,corporateandtaxmatters. This seems a straightforward organization, but it is not that simple. Because commercial law itself andthedemandsofcourtusershavebecomeincreasinglycomplexandspecialized,therehasbeena growing need for specialization within the two divisions that have significant commercial law jurisdiction, namely Queens Bench and Chancery. As a result, a number of specialist, commercial, trial courts have been created within either of those two divisions, with specialist judges being assignedspecificallytothosecourts. Each Division has its judicial head. The head of the Chancery Division is called the ViceChancellor and a President leads the Family Division. Historically, the head of the Queens Bench Division was the Lord Chief Justice, but the Constitutional Reform Act 2005 has relieved him of this role by creating a new post of President. The first President of the QBD, since October 1st, 2005, has been LordJustice(SirIgor)Judge. In addition to these first instance jurisdictions, each Division has appellate functions performed by a Divisional Court, which will be presided over by two or three judges. The Divisional courts of the Chancery and Family Divisions have jurisdiction over certain appeals from county and magistrates courts. The main function of the Divisional Court of the QBD has been to exercise what is called the supervisory jurisdiction of the High Court; that is to say the power to oversee the quality and legalityofdecisionmakingininferiorcourtsandtribunals. It also occasionally hears appeals by way of case stated on points of law from the magistrates courts and Crown Court. In October 2000, the Divisional Court of the QBD was renamed the AdministrativeCourt.Itnowalsohas itsownnominatedlead judgewhois inchargeof overseeing its work. Currently, this is Mr. Justice Collins. At first instance, cases are heard by usually a single Puisne(pronouncedpuny)Judge. 3.4.THECOUNTYCOURT County courts, which were created in the 19th century, have got two types of judges: Circuit Judges (the more senior) and District Judges. An appeal from the decision of a District Judge will go to a Circuit Judge. An appeal from the decision of a Circuit Judge goes to the Court of Appeal. The High Court and the county court deal with the same sort of legal issues. The difference is that the High courtdealsgenerallywiththemorelegallycomplexand/orhighermonetaryvalueclaims. 3.5.THECROWNCOURT This court deals essentially with criminal trials and appeals. Most of its caseload involves the trial at first instance of the more serious criminal offences, such as homicides, serious physical and sexual assaults, and property offences involving loss or damage of a high value. The Crown Court is the only court in the English system in which a judge sits with a jury. The function of this judge is to advise the jury on the law; the jury, however, remains the sole tribunal of fact, and it is for the jury
15
SourceduDroitanglosaxon CHEYRithy&SergeBASSET alone to decide whether an accused is guilty or innocent as charged. The Crown Court has an appellatejurisdiction:ithearsappealsfromthemagistratescourtsonissuesoffactorlaw. 3.6.THEMAGISTRATESCOURTS Magistrates courts are purely courts of first instance. They are mainly in charge of trying the less serious criminal offences. Actually, magistrates try over ninety per cent of all criminal cases. They also have a civil jurisdiction over liquor licensing, tax arrears, and some matrimonial matters. The magistratescourtisuniqueinthatthegreatmajorityofcasesareheardbeforeJusticesofthePeace lay persons with little formalised legal training, though they are advised on the legal issues by a legally qualified Justices clerk. Legally qualified magistrates may sit alone to hear cases; they were formerlycalledStipendiaryJudgesbutnowtheyhavethetitleofDistrictJudge(Criminal). 3.7.ADMINISTRATIVETRIBUNALSANDOTHERCOURTS Inadditiontotheformalcourts,therearemanyadministrativetribunals,mostofwhichwerecreated after the Second World War. They control a vast range of activities from the issuing of passenger licences to airlines, to the award of social security entitlement. Most of these tribunals have their ownrulesofprocedure andareregulatedby specificstatutory controls. None hasever been created by the Common Law and most have little contact with thetraditional courts, though rights of appeal from some important tribunals exist, either to the High Court or to the Court of Appeal. Perhaps the bestknownaretheEmploymentTribunals,whichusedtobecalledIndustrialTribunalsuntil1998. Shouldalsobelistedinthatpanoramaofcourtsthreeothercourtswhich, formallyspeaking,arenot part of the English court system though they are of significant importance to it. These courts are the CourtofJusticeoftheEuropeanCommunities,theEuropeanCourtofHumanRights,andtheJudicial Committee of the Privy Council. The last mentioned will be studied in some detail in Chapter Two of thepresentcourse(thenewU.K.SupremeCourt).
16
THESOURCESOFANGLOSAXONLAW
CHAPTER TWO: THE NEW U.K. SUPREME COURT
Introduction
The Supreme Court of the United Kingdom is the highest Court in the United Kingdom and acts as a finalcourtofappealincasesofmajorpublicimportance. It was established by the Constitutional Reform Act 2005 and started work on 1 October 2009. After its creation, the Supreme Court assumed the work of the Lords of Appeal in Ordinary (Law Lords) whowereresponsibleforthejudicialfunctionsoftheHouseofLords,viaitsAppellateCommittee. As members of the House of Lords, the previous judges sat as Law Lords in Parliament. On the contrary, the new Supreme Court is independent of Parliament because its judges, called justices, moved out of the House of Lords, located in the Houses of Parliament in Westminster and into Middlesex Guildhall, a Heritage building close to Parliament but separate from it, that was entirely refurbishedtohostthestayofthenewcourt.
I.
AnewCourtfortheUnitedKingdom
A. EstablishmentoftheSupremeCourt TheideaofanewSupremeCourtoriginatedintheDepartmentofConstitutionalAffairs(DCA)which, initsJuly2003ConsultationPaper,observedthatthetimehadcometosplitthejudicialfunctionsof theJudicialCommitteeoftheHouseofLordsfromthelegislativefunctionsoftheHouseofLords.1 It was argued that the public did not always understand that the decisions of the House of Lords were only taken by its Appellate Committee and not by nonjudicial members as well. A new
1
http://www.dca.gov.uk/consult/supremecourt/#ch1
17
SourceduDroitanglosaxon CHEYRithy&SergeBASSET Supreme Court would enhance the judges impartiality and independence, the Consultation Paper claimed.ThatiswhythenewpresidentoftheSupremeCourt,LordPhillips,acknowledgedthatthere wouldbeanexplicitseparationofpowersforthefirsttimeeverintheUnitedKingdom.2 The United Kingdom Supreme Court was established by the Constitutional Reform Act 2005, which canbedividedintothreeparts.ThefirstconcernsthereformoftheofficeoftheLordChancellor,the secondisaboutthenewSupremeCourt,andthethirdregulatestheappointmentofjudges. The longtitleofthe ActisAnActtomakeprovision formodifyingthe officeofLordChancellor,and tomakeprovision relating to thefunctionsof that office;toestablish aSupreme CourtoftheUnited Kingdom,andtoabolishtheappellatejurisdictionoftheHouseofLords;tomakeprovisionaboutthe jurisdiction of the Judicial Committee of the Privy Council and the judicial functions of the President oftheCouncil;tomakeotherprovisionaboutthejudiciary,theirappointmentanddiscipline;andfor connectedpurposes. The Bill was originally introduced on 24 February 2004 and envisaged certain changes, the main of which were the abolition of the office of "Lord High Chancellor of Great Britain", generally known as theLordChancellor,thesettingupofaSupremeCourtoftheUnitedKingdomandmovingtheLaw Lords out of the House of Lords to this new court and measures relating to the judiciary, including changestothepositionoftheLordChiefJusticeandchangestothePrivyCouncil. After some amendments by the Lords, the Act kept the post of Lord Chancellor, even if its role was reduced and the office holder was no longer automatically Speaker of the House of Lords. The ChancellorcannowbefromeithertheHouseofLordsortheHouseofCommons. There is also the new position of Secretary of State for Constitutional Affairs scheduled by the Bill to replace the Lord Chancellors office. In 2007 the holder of this Cabinet post was renamed Secretary of State for Justice. He also holds the office of Lord Chancellor. This office was reformed to remove theabilityoftheLordChancellortoactasbothagovernmentministerandajudge.Thisdecisionwas also influenced by the European Convention on Human Rights. A judicial officer, who also has
http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6251272/NewSupremeCourtopens withmediabarred.html
2
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET legislative or executive powers, cannot be in conformity with the requirements of Article 6 (Paragraph 1) which provides for the right to a fair trial. Both Houses approved the Bill on 21 March 2005,whichreceivedRoyalAssenton24March. B. TheorganisationoftheSupremeCourt The United Kingdom Supreme Court consists of twelve permanent Justices. One of them is the President of the United Kingdom Supreme Court, another one is its Deputy President. Like all British judges,SupremeCourtjusticesareforcedtoretireatage70iffirstappointedtoajudicialofficeafter 31March1995oratage75otherwise.Ten LordsofAppeal in Ordinary(Law Lords) holdingofficeon 1 October 2009 became the first justices of the 12member Supreme Court. The 11th place on the Supreme Court was filled by Lord Clarke (formerly Master of the Rolls), who was the first Justice to beappointeddirectly totheSupreme Court.. Sir JohnDysonbecame the12thand finaljusticeof the SupremeCourton13April2010. The Senior Law Lord on 1 October 2009, Lord Phillips, became the Supreme Court's first President, and the Second Senior Law Lord, Lord Hope of Craighead, became the first Deputy President., On 30 September2010,LordSavilleofNewdigatebecamethefirstJusticetoretire,followedbyLordCollins of Maspebury on 7 May 2011, although the latter remained as acting justice until July 2011. In June 2011,LordRodgerbecamethefirstJusticetodieinoffice,afterashortillness. 1.1. 1. Act ing judges In addition to the twelve permanent Justices, the President may request other senior judges, drawn fromtwogroups,tositas"actingjudges"oftheSupremeCourt.
The first group is those judges who hold 'office as a senior territorial judge': judges of the CourtofAppealofEnglandandWales,judgesoftheCourtofAppealofNorthernIrelandand judgesoftheFirstorSecondDivisionoftheInnerHouseoftheCourtofSessioninScotland. The second group is known as the 'supplementary panel'. The President may approve in writingretiredseniorjudges'membershipofthispaneliftheyareunder75yearsofage.
1.1. 2.
Appointment s process The Constitutional Reform Act 2005 makes provision for a new appointments process for Justices of the Supreme Court. A selection commission will be formed when vacancies arise. This will be composedofthePresidentandDeputyPresidentoftheSupremeCourtandamemberoftheJudicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. In October 2007, the Ministry of Justice announced that this appointments process would be adopted on a voluntary basis for appointments ofLordsofAppealinOrdinary.NewjudgesappointedtotheSupremeCourtafteritscreationwillnot necessarily receive peerages, however they are given the courtesy title of Lord and Lady upon appointment.ThePresidentandDeputyPresidentareappointedtothoserolesratherthanbeingthe mostseniorbytenureinoffice.
1.1. 3.
Current Justices
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Therearecurrently10Justicesandtwovacancies.Asof9August2011,theJustices,inorderof seniority,areasfollows: Name Born Almamater Swornin Mandatory Priorseniorjudicialroles retirement SeniorLordofAppealin Ordinary(20082009) LordChiefJusticeof EnglandandWales (20052008) MasteroftheRolls (20002005) LordofAppealin Ordinary(19992000)
LordPhillips 21January 1938 (age73) (President)
KingsCollege, 1October 2009 Cambridge
21January 2013
LordHope (Deputy President)
27June 1938 (age73)
SecondSeniorLordof AppealinOrdinary(2009) StJohn'sCollege, LordofAppealin Cambridge 1October 27June2013 Ordinary(19962009) Universityof 2009 LordPresidentofthe Edinburgh CourtofSession(1989 1996) TrinityCollege, 1October 17March2013 2009 Cambridge
17March 1938 LordWalker (age73)
LordofAppealin Ordinary(20022009) LordJusticeofAppeal (19972002) LordofAppealin Ordinary(20042009) LordJusticeofAppeal (19992003) LordofAppealin Ordinary(20042009) LordJusticeofAppeal (19922004) LordofAppealin Ordinary(20052009) LordJusticeofAppeal (19992005) LordofAppealin Ordinary(2009) LordChiefJusticeof NorthernIreland(2004 2009) MasteroftheRolls (20052009) LordJusticeofAppeal (19982005)
LadyHale
31January GirtonCollege, 1October 1945 2009 Cambridge (age66)
31January 2020
LordBrown
9April 1937 (age74) 6June 1943 (age68)
Worcester 1October College,Oxford 2009
9April2012
LordMance
University 1October 2009 College,Oxford
6June2018
LordKerr
22 1October February Queen's 2009 UniversityBelfast 1948 (age63)
22February 2023
LordClarke
13May 1943 (age68)
King'sCollege, 1October 13May2018 2009 Cambridge
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SourceduDroitanglosaxon LordDyson
CHEYRithy&SergeBASSET DeputyHeadofCivil Justice(20032006) LordJusticeofAppeal (20012010) LordJusticeofAppeal (20052011)
31July WadhamCollege, 13April 1943 2010 Oxford (age68)
31July2018
LordWilson
9May1945 Worcester (age66) College,Oxford
26May 2011
9May2020
OnenewJusticeisyettobeappointedtotheSupremeCourtandhavehiscourtesytitleannounced: Name Jonathan SumptionQC Source:http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_Kingdom Whenvacanciesarise,theQueenappointsasuccessorwhoisatfirstproposedbythePrimeMinister. This proposalis madeby theLordChancellor incollaborationwith a selection commissioncomposed of the President and Deputy President of the Supreme Court and a member of the Judicial Appointments Commission of England and Wales, a representative of the Judicial Appointments BoardforScotlandandonefortheNorthernIrishJudicialAppointmentsCommission. The permanent Justices are appointed for life and must retire at the age of 70. The President of the Supreme Court is also able to summon other senior judges in addition to the 12 permanent Justices. TheysitasactingjudgesoftheSupremeCourtandaredrawnfromtwogroups. The first group is judges who are senior territorial judges of the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland or of the First or Second Division of the Inner House oftheCourtofSessioninScotland. The second group iscalledthesupplementarypanel.ThePresidentcanchoose retired seniorjudges membership of this panel if they are under 75 years of age. The Supreme Court also consists of a ChiefExecutiveandaRegistrar. 21 Born 9December 1948 (age62) Almamater Magdalen College, Oxford
Takingoffice Atadatetobeagreed withthePresidentofthe SupremeCourt
Mandatory Priorsenior Retirement judicialroles 9December 2018 None
II.
JurisdictionoftheSupremeCourt
A. Cases The United Kingdom Supreme Court is responsible for the hearing of appeals from courts in the United Kingdoms three legal systems, i.e. England and Wales, Scotland and Northern Ireland. The Supreme Court is the highest court for civil appeals for the Court of Session in Scotland but not for criminallawthatisstillheardinScotland. Concerning the permission to appeal the Supreme Court of the United Kingdom, cases that are first heardattheCourtofSessiondontrequirepermission.AnycasecanproceedtotheSupremeCourtif twoAdvocatescertifythatanappealissuitable. In England and Wales and North Ireland, the Court of Appeal or a Justice from the Supreme Court itself have to give the leave to appeal. This is due to the fact that the Supreme Courts focus is on casesthatraisepointsoflawofgeneralpublicimportance. Other cases that are determined by the Supreme Court are socalled devolution issues. They concern the powers of the three devolved administrations, the Northern Ireland Executive and Northern Ireland Assembly, the Scottish Government and the Scottish Parliament, and the Welsh AssemblyGovernmentandtheNationalAssemblyforWales. Most of these cases concern the compliance with rights under the European Convention on Human Rightswhichhavebeenincorporatedintonationallawsince1998. B. TheOfficeofFairTradingvAbbeyNationalplc&Others:anoverview One of the first cases heard by the new Supreme Court was the legal battle between the Office of FairTrading(OFT)andBritainsbankingsector. The Office of Fair Trading is a nonministerial government department of the United Kingdom which enforces consumer protection and competition law. The OFT ambitions to make markets work well forthecustomersandtoensureactivecompetitionbetweenfairdealingbusinesses.
22
SourceduDroitanglosaxon CHEYRithy&SergeBASSET OFT v Abbey National and others is about bank charges in the United Kingdom. It concerns the situation where a bank account holder goes into unauthorised overdraft. When a bank customer makes a payment request the bank normally makes the payment as requested and then takes chargeswhichaccumulateaslongastheunauthorisedoverdraftexists. According to the OFT, the fees that the banks take from their clients violated the Unfair Terms in ConsumerContractsRegulations1999,whichimplementstheEuropeanUnionUnfairContractTerms Directive.TheOFTalsoarguedthatthefeeswereapenaltyforbreachofcontract. Before the High Court, the banks could successfully claim that the contractual terms in the contracts with their clients were not penal. Anyway the High Court decided that the charges fell within the sphere of activities of the legislation and that their fairness could be assessed by the OFT. After this decisionthebanksappealed. The Court of Appeal affirmed the decision of the High Court and decided that the OFT had the jurisdiction to assess the fairness of the banks' unplanned overdraft fees. In addition, the Court of Appeal denied leave to appeal to the House of Lords. After this decision the banks petitioned the HouseofLords(nowtheSupremeCourt)forpermissiontoappeal. TheHouseofLordsacceptedandthebanksenteredtheirAppealPetitionon6thApril2009. The newly established Supreme Court handed down its judgment on 25th November 2009 and unanimouslyfoundinfavourofthebanks. The Supreme Court argued that the charges of a bank are a core term of the contracts for bank accounts and that these charges are part of the banks remuneration. Therefore, the Supreme Court decided that under the OFTs authority to assess the terms of fairness under the Unfair Terms in Consumer Contracts Regulations 1999, the unplanned overdrafts of a bank account could not be assessed.
23
SourceduDroitanglosaxon CHEYRithy&SergeBASSET TheSupreme Courtargued that its powersweregivento thembythe legislationand that theycould do nothing even if one considered the terms unfair. According to the Supreme Court, it was the role of Parliament to construe the European Directive more broadly to allow bank clients or the OFT tochallengeallegedlyunfaircharges. That decision reflects the view that the United Kingdoms new highest court has of itself. The Justices opinion that they cannot decide under the power vested to them by Parliament and the argumentthatlegislativepowerhastodecideoverabroaderenforcementoftheEuropeanDirective clearly shows that the Court sees itself as a body that is fully independent of Parliament and willing toseverthebondsbetweenthelegislativeandthejudiciary. Itdemonstratesthattheconcernofsomepeoplethattherewasnoeffectiveseparationofpowersin theUnitedKingdom(seeabove)wastakenseriouslyandthatthereisanewwayofmakingdecisions which shows that the United Kingdoms Supreme Court is no longer influenced by the Lords that keeptheirpostsintheHouseofLordsandwhoarenonjudicialmembersofParliament.
C. OFTv.AbbeyNational:theTimeslawreport
2. OFT cannot review banks charges on unauthorised current account overdrafts SupremeCourt PublishedNovember26,2009 OfficeofFairTradingvAbbeyNationalplcandOthers
BeforeLordPhillipsofWorthMatravers,President,LordWalkerofGestingthorpe,BaronessHaleofRichmond, LordManceandLordNeubergerofAbbotsbury JudgmentNovember25,2009
Charges levied by banks on personal current account customers in respect of unauthorised overdrafts were part of a package of consideration for the package of banking services provided and accordingly their fairness was exempt from review by the Office of Fair Trading. The Supreme Court allowed an appeal by Abbey National plc and other banks from the dismissalbytheCourtofAppeal(SirAnthonyClarke,MasteroftheRolls,LordJusticeWaller, VicePresident, and Lord Justice Lloyd) (The Times March 3, 2009; [2009] 2 WLR 1286) of their appeal from Mr Justice Andrew Smith (The Times April 29, 2008; [2008] 2 All ER (Comm)625)whohaddeclared,onaclaimbytheOFT,thatanassessmentofthefairnessof
24
the charges was not prohibited by regulation 6(2)(b) of the Unfair Terms in Consumer ContractsRegulations(SI1999No2083).
Mr Jonathan Sumption, QC and Mr Andrew Mitchell for Barclays Bank plc; Mr Geoffrey Vos, QC and Miss SoniaTolaneyforNationwideBuildingSociety;MrRichardBrentforAbbeyNationalplc;MrRichardSalter,QC and Mr John Odgers for Clydesdale Bank plc; Mr Robin Dicker, QC for HBOS plc; Mr Mark Hoskins, QC, Mr DanielToledano,QCandMrPatrickGoodallforHSBCBankplc;MrBankimThanki,QCandMrJamesDuffyfor LloydsTSBBankplc;MrLaurenceRabinowitz,QCandMrDavidBlayneyforTheRoyalBankofScotlandGroup plc;MrJonathanCrow,QC,MrRichardColeman,MissJemimaStratfordandMissSarahLovefortheOfficeof FairTrading. LORD WALKER said that the banks accepted that the system of freeifincredit banking prevalent in this country involved a massive crosssubsidy, amounting to about 30 per cent of the banks total revenue stream fromcurrentaccountcustomers,providedbythosecustomerswhoregularlyincurredchargesforunauthorised overdrafts, about 12 million people, to those customers, about 42 million, who never or very rarely incurred suchcharges.Somewouldregardthatsystemasbeing,insomesenseatleast,obviouslyunfair.Thatdepended partly on whether one regarded the average customer who incurred unauthorised overdraft charges as spendthriftandimprovidentorasdisadvantagedandfindingithardtomakebothendsmeet. The Court had been told that there had been many thousands of individual claims in the county court, all or virtually all of which had been stayed to await the outcome of the present proceedings. The volume of litigation spoke for itself as to the dissatisfaction felt by many thousands of customers affected by the challengedcharges. But whether the system was fair was not the question for the Court. That was whether as a matter of law its fairnesscouldbechallengedbytheOFTasexcessiveinrelationtotheservicessuppliedtothecustomers. That depended on the correct interpretation, in its European context, and application of regulation 6(2) of the 1999Regulations,whichprovided: In sofarasit is in plain intelligiblelanguage, the assessmentoffairness of atermshallnotrelate (a)tothe definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as againstthegoodsorservicessuppliedinexchange. The context required adequacy to be read in the sense of appropriateness: see per Lord Rodger of Earlsferry in Director General of Fair Trading v First National Bank plc (The Times November 1, 2001; [2002] 1 AC481,paragraph64). The 1999 Regulations had been made to transpose into national law Council Directive 93/13/EEC of April 5, 1993 on unfairtermsin consumercontracts(OJ1993 L95/29). Regulation6(2) followedcloselythe English text ofarticle4(2)oftheDirective.TheLawLordshadalreadyconsideredarticle4(2)intheFirstNationalBankcase. Therewasnosignificantdifferencebetweenarticle4(2)andregulation6(2). The general thrust of Mr Sumptions submissions was that the judge and the Court of Appeal had adopted an overcomplicated approach to an issue that, however important, was ultimately quite a short point of construction. Article 4(2) was expressed in fairly simple and nontechnical language, as was appropriate for a Communitymeasurethathadtobeappliedacrossavarietyofnationalsystemsofcontractlaw.Itrepresented acompromisebetweenconsumerprotectionandfreedomofcontract.HisLordshipsawforceinMrSumptions criticisms. A supply of services might be simple, or it might be composite, as when one stayed at a hotel offering a wide variety of services. There was no principled basis on which the court could decide that some services were more essential to the contract than others. The main subject matter had to be described in general terms: hotel services. The services that banks offered to their current account customers were a comparable package ofservices,whichincludedthecollectionandpaymentofcheques,othermoneytransmissionservices,facilities forcashdistributionandtheprovisionofstatements.
25
Whenoneturnedtotheotherpartofthequidproquoofaconsumercontract,thepriceorremuneration,the difficulty of deciding which prices were essential was the same, and regulation 6(2)(b) contained no indication thatonlyanessentialpriceorremunerationwasrelevant. Any monetary price or remuneration payable under the contract would naturally fall within the language of paragraph (b). Just as banking services to current account customers could aptly be described as a package, so could the consideration that moved from the customer to the bank. An important part of that package for customers whosecurrentaccounts were in credit was the interestforgoneby themsincethey would receive a very low rate; overdraft interest and charges were the most important element for those who were not in credit. TherelevanttermintheFirstNationalBankcasehadbeenadefaultprovision,andtradersoughtnottobeable to outflank consumers by drafting themselves into a position where they could take advantage of a default provision, but in his Lordships view the terms and charges in question in the present case fell squarely within regulation6(2)(b). As to the application of regulation 6(2), properly construed, to the facts, charges for unauthorised overdrafts were monetary consideration for the package of banking services supplied to personal current account customers. They were an important part of the banks charging structure. The facts that they were contingent and that the majority of customers did not incur them were irrelevant. The fairness of the charges would be exemptfromreview in point ofappropriatenesseven if fewer customerspaid them andthey formed asmaller partofthebanksrevenuestream. Lord Phillips delivered a judgment agreeing with Lord Walker; Lord Mance delivered a concurring judgment; LadyHale,inashortjudgment,andLordNeubergeragreedwithLordWalkerandLordMance. Solicitors: Simmons & Simmons; Slaughter & May; Ashurst LLP; Addleshaw Goddard LLP; Allen & Overy LLP; FreshfieldsBruckhausDeringerLLP;LovellsLLP;LinklatersLLP;MsWinnieChing.
D. QuestionsandanswersontheU.K.SupremeCourt
UKSupremeCourt:Q&A
ByDominicCasciani,BBCNewshomeaffairs
WhatistheUKSupremeCourt? It is the new highest court in the United Kingdom, acting as a final court of appeal in cases of major public importance. What that means in practice is that its 12 justices will be the "final arbiters" between citizens and theState,theultimatecheckandbalancethatlawiscorrectly,andfairly,applied. Isthisanentirelynewconcept? In the words of Lord Phillips, the first president of the Supreme Court, this is a case of changing the form rather than substance. The casework that will be dealt with by the Supreme Court is exactly the same as that which came before the justices when they sat as Law Lords in Parliament. But these senior judges have now left the House of Lords and are therefore independent of Parliament. This separation brings the United Kingdominto line withmany comparablemodern states. ItmeanstheSupremeCourt becomes the final pillar intheconstitution:Parliamentcreateslaws,thegovernmentandpublicbodiesusethoselawsandthecourts monitortheirapplication. ArethejusticesstillLords?
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No. While they retain the title that came with their peerage, they will now be known as the Justices of the SupremeCourt.ThosewhoretiremaybeabletoreturntotheHouseofLords. Whatkindsofcaseswilltheyhear? The Supreme Court will give the final verdict in all types of cases in the United Kingdom, other than criminal matters in Scotland. The justices will also offer opinions on major points of law and play a part in the developmentoflawaroundtheworld.ThejusticeswillhearsomecasesfromtheCommonwealth.Thejustices will also resolve any legal disputes caused by devolution to Scotland, Wales and Northern Ireland. The court will deal only with cases that the justices consider to be the most important. Their rulings will be limited, as now,toasmallnumberofcasestheyknowwillhavefarreachingimplications. Whathasitruledoninthepast? In 2004, Laws Lords ruled that the government could not hold foreign terrorist suspects without charge indefinitely a major blow to government security policy. The following year, the Law Lords upheld a ban on hunting with dogs, legislation that had divided Parliament. In 1993, the Law Lords gave doctors permission to withdrawlifesupportingmedicationfromTony Bland,afootball supporterwhohad suffered irreversible brain damage during the Hillsborough disaster. The last case heard by the Law Lords was that of Debbie Purdy, the MSpatient,whowonhercallforgreaterlegalclarityonassistedsuicide. HowdoesthecourtrelatetoEurope? The court has a role in interpreting law passed in the name of the European Union and, separately, ensuring that the British courts take into account rulings from the European Court of Human Rights. Some people whose cases are rejected by the Supreme Court will be able to ask the European Court to intervene where thereneedstobemoreclarityonspecificareasofhumanrights. Howdothejusticesmaketheirrulings? There isalwaysan oddnumber of justicesso that there canbeaclearmajority onewayortheother.Justices have each to reach their own conclusions and then write their legal opinion. Cases will typically be heard by fivejustices,andthemostimportantcaseswillinvolvenine. HowdothejusticescomparewiththeirUSnamesakes? The US Supreme Court can strike down a law as unconstitutional but the UK has no codified, written constitution. If the British justices say that a law is wrong, then the government knows it must eventually bring the matter before MPs for reform. But that doesn't mean the disputed law is torn up before Parliament has had time to think it through. The most important recent example of this constitutional arrangement was the Law Lords' 2004 decision on indefinite detention of terrorist suspects without charge. The suspects remained in prison while Parliament pushed through legislation to change the system and allow their release andmonitoringinthecommunity. SoisthereanypracticaldifferencebetweentheLordsandthejustices? Although the constitutional differences are subtle, the new justices hope they will now play a greater public role in the life of the nation. Their court sits in Westminster opposite the Houses of Parliament and is open to the public. It has a cafe and education suite. The Law Lords' judgements were televised, because they were delivered in the House of Lords. But all of the Supreme Court's hearings will be open to the public and, for the firsttimeinBritishlegalhistory,televisioncameraswillbepermanentlyincourt. Howwillthejusticesbeappointed? To become a Supreme Court justice you must have been a senior judge for at least two years or a qualified lawyerforatleast15years.Whenthereisavacancy,thejusticesecretary,alsoknownastheLordChancellor,
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willsetupaselectioncommission.Itwillconsultseniorjudgeswhoarenotputtingthemselvesforwardforthe court, along with the justice secretary and key figures in Scotland, Wales and Northern Ireland. The justice secretary can accept or reject a nomination. The prime minister then makes a final recommendation to the Queen,whomakestheappointment. Doesthatmeantherewillbealotofcourtroomdrama? TheSupremeCourtjobistoexaminethefinerpartsofthelawanditsapplication.Itisnotthekindofthingthat lends itself to dramatic courtroom flourishes. That doesn't mean the cases will not be dramatic in their own ways. Their first case in October concerns how the government freezes the assets of terrorism suspects. A futurecaseinvolvesaformerMI5officerwhowantstopublishhismemoirs. HowmuchdoestheSupremeCourtcost? Therehasbeena59mprogrammetorenovatetheMiddlesexGuildhallandturnitintotheSupremeCourt.A further18mhasbeenspentonnewcourtsforthecriminalcasesmovedfromthebuildingtoanotherlocation. TheMinistryofJusticesaystheSupremeCourtwillcostabout13.5mayeartorun. StoryfromBBCNEWS:Published:2009/09/3023:09:57GMT http://news.bbc.co.uk/go/pr/fr//2/hi/uk_news/8283967.stm
E)TheJudicialCommitteeofthePrivyCouncil
Mention must be made of that Court in connection with the Supreme Court since it is housed in the same building as the Supreme Court Court 3 in Middlesex Guildhall is the normal location for Privy Council hearings and Supreme Court justicesarecalledontositonthePrivyCouncilaswell. PrivyCouncil Established Jurisdiction Location 1833 CertainmembersoftheCommonwealthofNations MiddlesexGuildhall,London
Authorizedby HMGovernmentviatheJudicialCommitteeAct1833 Website www.jcpc.gov.uk
The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United Kingdom. Established by the JudicialCommitteeAct1833tohearappealsformerlyheardbytheKinginCouncil(s.3),itisthehighestcourtofappealfor several independent Commonwealth countries, as well as for the United Kingdom's overseas territories, and the British Crown Dependencies. It is often referred to as the Privy Council, as in most cases appeals are made to "Her Majesty in Council" (i.e. the British monarch as formally advised by her Privy Counsellors), who then refers the case to the Judicial Committee for "advice"; the "report" of the Judicial Committee is always accepted by the Queen in Council as judgment. Thepanelofjudges(typicallyfiveinnumber)hearingaparticularcaseisknownas"theBoard". In Commonwealth republics retaining the JCPC as their final court of appeal, appeals are made directly to the Judicial Committee itself. In the case of Brunei, appeals are made to the Sultan of Brunei, who then refers the case to the Judicial Committeeforadvice.
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Formerly the Judicial Committee gave a unanimous report, but since the 1960s dissenting opinions have been allowed. In July 2007, the Judicial Committee held that it had the power to depart from precedent if it concluded that one of its own previousdecisionswasincorrect. The Judicial Committee's permanent home is in London, in the United Kingdom. On 1 October 2009, it moved from the Privy Council Chamber, in Downing Street, to the former Middlesex Guildhall building, which had been refurbished in 2007 toprovideahomeforboththeJCPCandthenewlycreatedSupremeCourtoftheUnitedKingdom. The judicial system of the United Kingdom is unusual in having no single highest national court; the Judicial Committee is thehighestcourtofappealinsomecases,whileinmostothersthehighestcourtofappealistheUKSupremeCourt. In Scotland the highest court in criminal cases is the High Court of Justiciary; the UK Supreme Court is the highest court in civil cases and matters arising from Scottish devolution, the latter previously having been dealt with by the Judicial Committee. JudgmentsoftheJudicialCommitteearenotgenerallybindingoncourtswithintheUnitedKingdom,havingonlypersuasive authority,butarebindingonallcourtswithinanyotherCommonwealthcountryfromwhichanappealisheard.
FromWikipedia,thefreeencyclopedia
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SOURCES OF ANGLO-SAXON LAW : CHAPTER THREE THE RULE OF LAW

Introduction
IntheirPrinciplesoftheEnglishLegalSystem(3rdedition,1997),GarySlapperandDavidKellyclaim(p.11): The Rule of Law represents a symbolic ideal against which proponents of widely divergent political persuasions measure or criticise the shortcomings of contemporary State practice. Theyinsistonthelackofprecisioninthedefinitionoftheconcept,whichhaschangedovertimeandaccording tothesocietalandpoliticalviewsofthosetacklingthesubject.Theyalsoclaimthat It is undeniable that the form and content of law and legal procedure have changed substantially in the course of the 20th century. () As the State increasingly took over the regulation of many areas of social activity, it delegated wideranging discretionary powers to various people and bodies in an attempt to ensure the successfulimplementationofitspolicies.TheassumptionanddelegationofsuchpoweronthepartoftheState brought it into potential conflict with previous understanding of the Rule of Law which had entailed a strictly limitedambitofStateactivity.(p.11) Today,itiscommonlyadmittedthattheRuleofLawisthefundamentaldoctrinethatallmenareequalbefore the law regardless of appointment or official status. Inherent the meaning of the rule of law is that there is no arbitraryjusticeorexerciseofarbitrarypower.(Reference:www.gilhams.com/dictionary/314.cfm) DefinitionsofruleoflawontheWeb(Googlesearch): astateoforderinwhicheventsconformtothelaw wordnetweb.princeton.edu/perl/webwn thedoctrinethatnoindividualisabovethelawandthateveryonemustanswertoit en.wiktionary.org/wiki/rule_of_law Theprinciplethateverymemberofasociety,evenaruler,mustfollowthelaw. instech.tusd.k12.az.us/Core/glossary/ssglossary.doc Allgovernmentofficialsandallprivatecitizensmustfollowthelawsofthenationandmustbetreated equallyunderthelaw.Thegovernmentiscreatedbyandforthepeopleandisanswerabletothe people. cooscurrycourts.org/glossaryofterms/index.htm Oneofthecornerstonesofdemocraticsociety,meaningthateveryoneissubjecttothelaw.Itisnot justtherulethateveryoneiscoveredbytheCriminalCodeandmustbechargedandconvictedif appropriate.... bitbucket.icaap.org/dict.pl anotherphraseforlawandorder;theprinciplesthatrequirethatthepowersofthestatebederived fromandlimitedeitherbylegislation... www.manitobacourts.mb.ca/definitions.html
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Alegalsysteminwhichrulesareclear,wellunderstood,andfairlyenforced,includingpropertyrights andenforcementofcontracts. wwwpersonal.umich.edu/~alandear/glossary/r.html Predominanceoflawoverthediscretionaryauthorityofpublicofficials. www.csa.com/discoveryguides/terror/gloss.php theextenttowhichagentshaveconfidenceinandabidebytherulesofsociety,andinparticularthe qualityofcontractenforcement,thepolice... www.peacebuildinginitiative.org/index.cfm
There is a wide array of opinions concerning the meaning of the Rule of law, as said previously and as can be seen from the definitions above.We shallstudy someof the prominent views of the concept, starting withthe classicists, that is to say AV Dicey and Friedrich von Hayek, then we shall review more contemporary and/or progressive opinions about the Rule of Law and we shall round up the chapter by focusing on Max Webers pointofviewonthesubject. 2.1 2.1.1 Theclassicistsviews
AVDicey
According to Albert Venn Dicey (18351922), who wrote The Law of the Constitution in 1885, the Rule of Law wasoneofthekeycharacteristicsthatdistinguishedtheEnglishconstitutionfromitscontinentalcounterparts. From Diceys standpoint, the Englishman enjoyed the protection of the Rule of Law while other Europeans werestillsubjecttoarbitrarypower. AccordingtoDicey,threeingredientswereneededfortheRuleofLawtoexist: An absence of arbitrary power on the part of the State. The extent of the States power and the way in which it exercises such power are limited and controlled by law. Such control is aimed at preventing the State from acquiring and using wide discretionary powers, because the problem with discretion is that it can be exercised in an arbitrary fashion, and that above all is to be feared, accordingtoDicey.
Equality before the law. The fact that no person is above the law, irrespective of class or rank. This was linked with the fact that those serving the State, the civil servants, are subject to the same law andlegalproceduresasordinaryprivatecitizens.
Supremacy of ordinary law. This related to the fact that the English constitution was the product of theordinarylawofthelandandwasbasedontheprovisionofremediesbythecourtsratherthanon thedeclarationofrightsintheformofawrittenconstitution.
Diceywaswritingfromaparticularpoliticalperspectivethatconsideredthemaintenanceofindividualproperty and individual freedom a top priority. He was opposed to any increase in State activity in the pursuit of collectiveinterests.DiceysversionoftheRuleofLawveneratedformalequalityattheexpenseofsubstantive equality.Saiddifferently,hethoughtthatthelawandtheStateshouldbeblindtotherealconcretedifferences
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that exist between people, in terms of wealth or power or connection, and should treat them equally, as possessorsofabstractrightsandduties. In Diceys work, the Rule of Law was only one of two fundamental elements of the English system of government: the other was parliamentary sovereignty. Therefore, if the government controls the legislative process, by commanding a strong majority in both chambers, the sovereignty of Parliament is reduced to the undisputedsupremacyofcentralgovernment.Atensionstemsfromthefactthat,whereastheRuleofLawwas aimed at controlling arbitrary power, Parliament could, within this constitutional structure, pave the way for such arbitrary power by passing appropriate legislation. Such a situation is specific to the British version of liberalgovernment. 2.1.2 FriedrichvonHayek
Hayek followed in Diceys footsteps in considering the crucial component of the Rule of Law as being the absenceofarbitrarypowerinthehandsoftheState.Hayek,whowasaharshcriticoftheinterventionistState, devotedthewholeofthesixthchapterofTheRoadtoSerfdom(RoutledgeClassics,London&NewYork,2001), hismasterpiece,tothedetailedexaminationoftheconcept. According to Hayek, the presence or absence of the Rule of Law is the main criterion by which to tell a free countryfromonethatisnot.AcountryenjoyingthebenefitoftheRuleofLawisoneinwhichthegovernment inallitsactionsisboundbyrulesfixedandannouncedbeforehandruleswhichmakeitpossibletoforesee... howtheauthoritywilluseitscoercivepowersingivencircumstances,andtoplanonesindividualaffairsonthe basisofthisknowledge.(pp.756) Under the Rule of Law, the individual enjoys the freedom to pursue his personal ends and desires without fearing government interference to frustrate his efforts. In the economic field, we may find two types of societies: the one in which, within a global and stable framework, individuals will decide for themselves, the otherwhereeconomicactivitywillbeguidedbyacentralauthority. Inthelattertype,thegovernmentdirectstheuseofthemeansofproductiontoparticularends.Intheformer one, formalrules...are intendedtobemerelyinstrumentalinthepursuitof peoplesvarious individualends. (p.76)Inthecollectivistsystem,theplanningauthoritycannottieitselfdowninadvancetogeneralandformal rules which prevent arbitrariness. It must provide for the actual needs of the people as they arise and then choosedeliberatelybetweenthem.(p.77) Ifthegovernmenthastodecidehowmanypigsaretoberaisedorhowmanybusesshouldrun,suchdecisions are bound to depend on the circumstances of the moment and not deduced from general principles. Furthermore, such decisionmaking entails comparing the various interests of various persons and groups and, eventually,someonewillhavetosaywhoseinterestsprevail.
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Therefore, a new distinction of rank will emerge. The distinction between formal law or justice and substantive rules is vital. It is the same as that between laying down a Rule of the Road, as in the Highway Code, and ordering people where to go. Hayek contends that formal rules are superior to others in the sense thattheydonotinvolveachoicebetweenparticularendsorparticularpeople.(p.78) Therearetwoargumentsinfavourofformalrules.Theformeriseconomic.Ifindividualsaretomakeinformed, rationalchoices,theactionsoftheStatemustbepredictable,mustbedeterminedbyrulesfixedindependently of the concrete circumstances which can neither be foreseen nor taken into account beforehand. If, conversely, the State controlled peoples actions, its actions would have to be decided on the basis of the full circumstancesofthemomentandwouldthereforebeunpredictable. (p.79) Thelatterargument,ofamoralandpoliticalnature,isyetrelevanttothedemonstration.Generalrules,Hayek argues, must be intended to operate in largely unpredictable circumstances. Therefore, their effect on particular ends or particular people cannot be known in advance and In a world where everything was preciselyforeseen,thestatecouldhardlydoanythingandremainimpartial.(p.80) A counterargument might be that the economic planner need not and should not be guided by his individual prejudices,butcouldrelyonthegeneralconvictionofwhatisfairandreasonable.However,Hayekclaims,the more planning there is, the more it is necessary to qualify legal provisions ... by reference to what is fair or reasonable i.e. leave the decision of the concrete case ... to the discretion of the judge or authority in question. One could write a history of the decline of the Rule of Law... in terms of the progressive introduction of these vague formulae into legislation and jurisdiction, and of the increasing arbitrariness and uncertainty of, and the consequentdisrespectfor,thelawandthejudicature.(p.81) In short, planning necessarily involves deliberate discrimination between particular needs or different people. It means in effect a return to the rule of status, a reversal of the movement of progressive societies which has hithertobeenamovementfromstatustocontract.(p.82) LiberalismandtheRuleofLaw Thenotionoflaissezfaire,Hayeksays,hasbeenmisunderstoodasmeaningthattheState shouldnotactatall,whichisnotthecase.Everystatemustact,butnotalways:
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...thestatecontrollingweightsandmeasures...iscertainlyacting,whilethestatepermittingtheuseofviolence, for example, by strike pickets, is inactive. Yet, it is in the first case that the state observes liberal principles and inthesecondthatitdoesnot.(p.84) The Rule of Law was evolved during the liberal age, that is the 18th century, and may be one of its greatest achievements: Manisfreeifheneedstoobeynopersonbutsolelythelaws.ImmanuelKant(17241804) (Hayekp.85) Governmentalactionmaybelegal,butnotnecessarilyinagreementwiththeRuleofLaw: It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule ofLawstillprevailsinGermany?(p.85) The most arbitrary rule can be made legal if the government is given unlimited powers and in this way a democracymaysetupthemostcompletedespotismimaginable.(p.86)TheRuleofLawthusimplieslimitsto the scope of legislation.(p. 87) The limitations of the powers of legislation imply the recognition of the inalienable right of the individual, inviolable rights of man. (p.88)
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2.2OthertheoriesoftheRuleofLaw 2.2.1EPThomson Unlike Dicey and Hayek, Thomson is not a conservative, in the traditional political sense. Indeed, he is a Marxist historian, but, like Dicey and Hayek, he sees the Rule of law as a protection against the encroaching powerofthemodernState. ThomsonsharesHayeksfearoftheeverexpandingStateandthewaytheWelfareStatehasintervenedinthe dailylivesofitscitizens.FromThomsonsperspective, however,theproblemstemsnotsomuchfromthefact that the State is undermining the free operation of the market economy, but from the way in which the State has used its control over the legislative process to undermine civil liberties in the pursuit of its own vision of thepublicgood. In WhigsandHunters(1975), the subjectofwhichisthe manipulation oflaw by the landed classes in the 18th century,Thomson concludes that theRule ofLaw is not justanecessary meansoflimiting the potential abuse ofpowerbutthat: The Rule of Law, itself, the imposing of effective inhibitions upon power and the defence of the citizen from powersallintrusiveclaims,seemstomeanunqualifiedhumangood. Such a conclusion clearly shows that Thomson concurs with Hayek s view that the Rule of Law goes beyond themererequirementthatthelawshouldbemadethroughtheappropriatelegalinstitutions. 2.2.2 JosephRaz
Some legal philosophers have recognised the need for State intervention in contemporary society and have provided waysofunderstandingthe Ruleof Lawas a means of controllingdiscretion(i.e. discretionary power) withoutattemptingtoeradicateitcompletely.JosephRaz,inanarticleentitledTheRuleofLawanditsVirtue (1972) in the Law Quarterly Review n93, for instance, claims that the pursuit of social goals may require the enactment of particular as well as general laws. He suggests that it would be practically impossible for law to consistonlyofgeneralrules.
Raz even criticises Hayek for disguising a political argument as a legal one in order to attack policies which he did not approve of. Yet, at the same time, Raz also sees the Rule of Law as essentially a negative value, acting tominimisethedangerthatcanfollowtheexerciseofdiscretionarypowerinanarbitraryway.Inthatrespect, byseekingtocontroltheexerciseofdiscretion,hesharescommongroundwithDicey,HayekandThomson. Raz argues that the basic requirement from which the wider idea of the Rule of Law emerges is the requirement that the law must be capable of guiding the individuals behaviour. According to him, some importantprinciplesmaybederivedfromthisgeneralidea: Laws should be prospective rather than retroactive. People cannot be guided by or expected to obey lawswhichhavenotasyetbeenintroduced.Lawsshouldbedraftedinaclearwaytoenablecitizens tounderstandthemandguidetheiractionsaccordingly.
According toRaz, thereis the Rule of Lawif the proceduralrulesof lawmaking arecomplied withsubject to a number of safeguards. Moreover, by seeing the courts as having an essential part to play in his version of the RuleofLaw,Razmaybeclassifiedasanadvocateofthenotionofjudicialreview. 2.2.3 Thediscretionofthecrimepreventingagenciesshouldnotbeallowedtopervertthelaw. The courts should be easily accessible as they remain at the heart of the idea of making discretion subjecttolegalcontrol. The courts should have the power to review the way in which the other principles are implemented toensuretheyarebeingoperatedasdemandedbytheRuleofLaw. Theprinciplesofnaturaljusticeshouldbeobserved,requiringanopenandfairhearingtobegivento allpartiestoproceedings. Theindependenceofthejudiciaryhastobeguaranteedtomakesurejudgesarefreetodecide cases inlinewiththelawandnotinresponsetoanyexternalpressure. Thereshouldbeclearrulesandproceduresinordertomakelaws. Laws should not be changed too frequently as this might lead to confusion as to what was actually coveredbythelaw.
RobertoUnger
In Law and Modern Society (1976), the American legal theorist Roberto Unger sets out a typology of social order, one category of which is the Rule of Law system. Unger distinguishes this form of social order from othersonthebasisoftwoparticularanduniquecharacteristics.
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The formeris autonomy, i.e. thefactthatthelaw hasits ownsphereofauthority and operatesindependently withinthatspherewithoutreferencetoanyexternalcontrollingfactor.Ungeridentifiesfourdistinctaspectsof legalautonomy,namely: Substantive autonomy. This refers to the fact that law is not explainable in other, nonlegal terms. In brief, thelawis the law.Thelawis selfreferential, it cannot be reducedtothelevelofamere means toanend;itisanendinitself.
Occupational autonomy. Access to the law is not immediate but is gained through the legal professions who act as gatekeepers and who exercise a large degree of independent control of the legalsystem. Institutional autonomy. By this, Unger means that legal institutions such as the courts are separate fromotherStatebodies.Thisishighlightedinthefundamentalprincipleofjudicialindependence. Methodological autonomy. This refers to the fact that law has its own distinct form of reasoning and justificationsforitsdecisions.
Thelattercharacteristicoflegalorder,accordingtoUnger,isitsgenerality:thefactthatitappliestoallpeople withoutpersonalorclassfavouritism.Everyoneisequalunderthelawandistreatedinthesamemanner. In putting forward this typology of social order, Unger recognises the advantages inherent in a Rule of Law system over a system that operates on the basis of arbitrary power. But he is ultimately sceptical as to the reality of the equality that such a system is alleged to guarantee. The main point of interest in Ungers book maybethewayinwhicheachofthefourdistinctareasofsupposedautonomyisincreasinglybeingchallenged andundermined. 2.2.4 MaxWeber
Unger sees the development of the Rule of Law as a product of Western capitalist society and, by focusing on the distinct nature of the form of law under that system, he may be regarded as a follower of the German sociologistMaxWeber(18641920). WebersgeneralgoalwastoexamineandexplainthestructureanddevelopmentofWesterncapitalistsociety. In so doing, he came to highlight the specific features of that society, which distinguished it from other societies.Oneofthoseidiosyncrasieswastheformoflawwhichhecharacterisedasaformallyrationalsystem thatprefiguredUngersnotionoflegalautonomy. Webers autonomous legal system was accompanied by a State which limited itself to establishing a clear frameworkofsocialorderandleftindividualsfreetodeterminetheirowndestiniesinafreemarketsystem.In thecourseofthe20thcentury,withtheshiftfromafreemarkettoaplannedeconomy,amajorchangeinboth theformandfunctionoflawwasbroughtabout.
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Conclusion
While the State remained apart from civil society, its functions could be restricted within a limited sphere of activity circumscribed by the doctrine of the Rule of Law. However, as the State became increasingly involved inregulatingeconomicactivity, the form of lawwasbound to change.Thusemerged the tensionbetweenthe Rule of Law and the requirements of regulating social activity that Hayek saw as a significant change for the worseinoursociety. Regarding the effect of this change on laws previous autonomy, there is general agreement among academic writers that there has been a major alteration in the nature of law. Today, legislation tends to grant wide discretionarypowerstoparticularcivilservants,thusreducingthepowerofthecourtstocontrolsuchactivity. Thegrowthofdelegatedlegislation,inwhichParliamentsimplypassesenablingActsempoweringministersof State to make regulations as they think fit is a prime example of that process. Moreover, once drafted, such regulationstendnottobegeneralbuthighlyparticular,eventechnocratic,intheirdetail. Legislation also increasingly pursues substantive justice rather than simply limiting itself to the provision of formal justice as required under the Rule of Law. A good case in point of this could be consumer law. In the UnfairContractTermsAct1977,itisstatedthattermsaretobeevaluatedonthebasisofreasonableness;and under the Consumer Credit Act 1974 agreements can be rejected because they are extortionate or unconscionable. Such assumptions actually override the market assumptions as to formal equality in an attempttoprovideameasureofsubstantivejustice. Theseinstancesexemplifythepassingfromasocietywherelawisanendinitselftoonewherelawisameans to an end. In Weberian terms, this change in law represents a change from formal rationality, in which law determined solutions to problems stated in the form of legal terms through the application of abstract legal concepts and principles, to a system of substantive rationality where law is simply a mechanism to achieve a goalsetoutsidethelaw. In other words, law is no longer seen as completely autonomous as it once was. Increasingly, it is seen as merely instrumental in the achievement of some wider purpose which the State, as the incarnation of the generalinterest,sets.
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SOURCES OF ANGLO-SAXON LAW: CHAPTER FOUR

______________________________________________________ LEGISLATION AND STATUTORY INTERPRETATION
The courts prime duty is to interpret the law. As a result, the sources of law are the sources to which the courts turn so as to determine what it is. With regards to their sources, laws are traditionally divided into two main categories: they may be written or unwritten. Such terms are misleading, since the expression written law means any law that is formally enacted, and the expression unwritten means all unenacted law. For instance, judicial decisions are often reduced to writing in the form of law reports, but because they are not formalenactmentstheyareunwrittenlaw. SincethetrendsetbytheCodeNapolon,codificationhasprevailedinmanycontinentalcountries,whetherit be for their private or public law. On the Continent, therefore, the volume of written law far exceeds that of unwritten law. In England, however, unwritten law is especially important, because more of the law derives from judicial precedents rather than from legislative enactments. To quote Sir Leslie Scarman in his IntroductiontoEnglishLawTheNewDimension(Stevens&sons,London,1974,p.3): Notwithstanding the great volume in modern times of statute law (e.g. in 1971 there were 81 Public General Acts covering 2110 pages: the current size of the Statute Book is something like 43,000 pages), the common law survives as the basis of the English legal system. In short, although Parliament imposes an evergrowing number of statutes upon the English, England has not adoptedthesystemofallinclusivecodificationprevailingontheContinent. There are two main and two secondary sources of English Law. The main sources are Legislation and Judicial Precedent;thesecondaryonesareCustomandBooksofAuthority A)THEMAINSOURCES
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SourceduDroitanglosaxon 1. LEGISLATION
Legislation is enacted law. In England, Parliament has been the ultimate lawmaker since 1688. Parliament is sovereigninthelegislativefield.
3 . T he Doctrin e of Par liament ar y Sov er e ign ty: its Me an ing ParliamentarySovereigntymeanstwothings: a) b) There is no legal limit to the power of Parliament. Parliament may, by Act, delegate its lawmaking powers to other bodies and even to individuals. But it may, also by Act, remove these powers as simplyasit has conferred them.Furthermore, Parliamentary enactmentsarenotsubject to question, since the English Constitution knows no entrenched rights similar to the fundamental liberties guaranteedbytheU.S.ConstitutionandsafeguardedbythefederalSupremeCourt. 3 . 1 . Two rem arks a) b) The Queen is no longer the supreme lawgiver. As a result, when the English speak of Her Majesty as Sovereign, they use the word in a different, symbolic sense: Queen Elizabeth II is sovereign in the affectionofherPeopleastheembodimentofnationalunity. The problem of statutory interpretation EvenifParliamentissovereign,thisdoesnotmeanthatthecourtshavenoinfluenceuponthedevelopmentof enactedlaw.Tobeapplied(=enforced),everyenactment(orstatute)hastobeinterpreted(orconstrued)and thecourtsaretherecognisedinterpretersofthelaw. TheinterpretationofParliamentaryActsconsistsmainlyoftryingtoestablish(orascertain)theintentionofthe legislatorandofapplyingtheenactmentinlinewiththatintention. Thisintentionmaybediscoveredintheoryinthreeways: Regardingconstitutionallaw,theeffectsofEuropeanLawonthedoctrinewillhavetobefactoredin; All legislative power within the realm is vested in Parliament, which has no rival in the legislative sphere;
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a)
In case of doubt, the legislator himself may be consulted. This way should be ruled out, i.e. excluded, however, because it is both impracticable and undesirable. Impracticable since modern legislatures cannot be easily consulted and are too busy to give advice or guidance on the laws they churn out. Undesirableforifthemakerofaruleoflawisallowedtoapplyittoparticularcases,hewillbecomea judge in his own cause and may bend the rule to suit his inclination. Legislation Reference, as this methodhasbeencalled,was,nevertheless,theoriginalabortiveplanoftheCodeNapolon(1800).
b) In the second place, the interpreter may examine the words of the enactment and consider their meaningbroadlyinthecontextoftheirpromulgationinordertodiscoverthegeneralintentionofthe lawmaker(theratiolegis)whichliesbehindthewordsandgivesthemeffect. c) Inthethirdplace,thewordsandphrasesoftheenactmentmaybeclosely examined,presumingthatthelegislatorhasgivenperfectexpressiontohiswill. Thesecondofthesemethodsistheapproachofcontinentalcourts,whereasthethirdoneisthatofEnglish courts. The traditional interpretation Thismethodconcentratesonthewordingofthestatuteandconstruesitnarrowly. Theadvantagesofthismethodarethefollowing: a) ittendstoeliminatetheriskthatthejudiciarywillmakenewlawundercoverofinterpretation;
b) itmakesitnecessaryforthelegislaturetomakeitsintentionexplicitsothatthelawsitpassesmaybe clear. Some rules have been designed to ensure that this form of interpretation is maintained (or preserved).Beforestudyingthem,letusnoteinterpretationingeneralisguidedbytheInterpretation Act 1978, which contains some basic definitions of standard words and phrases (like : the male includesthefemalegender)andlaysdowncertainrulesaboutinterpretation. Theeightclassicrulesofinterpretationareasfollows: 1. The cardinal rule is that the words of an enactment must be interpreted in their ordinary, literal or grammaticalsense. Aslong as this does notgive rise to someabsurdity, incoherence orambiguitythecourt is notentitledtoconstruethembroadlyorfancifully,evenifastrictconstruction(orinterpretation)appearstoit toleadtoawrongresult. Theliteralrule
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ToquoteSirLeslieScarmanagain(samereferenceandsamepageasabove):
3 . 2 . T h e m oder n En g l is h j u dg e s t i l l s ees e n ac te d la w as a n exc epti on t o , a g ra f t upon , o r a c o rre c ti o n o f , t h e c us to ma ry law i n h is han d s : h e g iv es uns w e rvi n g l o ya lty t o t he e nac ted wo rd o f Pa r li am e nt, bu t h e co nst r u e s i t s t r ic tl y, in its s ta tu tor y c o nte x t , a n d a l w a ys upo n t h e pr e m is e , us u a ll y un s po k e n , t h a t P a r lia me n t le g is la te s ag a i ns t t h e b a ck g ro u nd o f a n a l l -e m b r ac in g cu s to m a r y l aw . 2 . T h e g old e n r ul e 3.3. 3 . 4 . H e r e w e m ay c i te L o r d W e n s le y d ale in G re y v P e ars o n (18 5 7 ) 6 HL C as 6 1 a t 10 6 : Inconstruingstatutes,thegrammaticalandordinarysenseofthewordsistobeadheredto. In other words, the literal rule is to be applied. But Lord Wensleydale went on to say that if this approach proves unsatisfactory because it leads to some absurdity, or some inconsistency with the rest of the statute then the grammatical and ordinary sense of words may be modified so as to avoid that absurdity or inconsistency,butnotfurther. ThisisthesocalledGoldenRule:bestrictininterpretation,butmodifytheconstructionwhereessentialto avoidabsurdityorinconsistency,i.e.incoherence.How,then,issuchmodificationtobeapproached? 3. IftheuseoftheGoldenRuleleadstotheconclusionthatthewordsunderconsiderationproduceabsurdity, repetitiveness,inconsistencyorredundancythenextthingalawyermustdoislookatthewholeofthe enactmentinquestion,becausewhatseemsabsurdorredundantasitstandsmaymakesenseinthelightof thewholecontext. 4. The word history is used here in a double sense. In the first sense it means the genesis of the enactment itself: its progress through Parliament and the debates and discussions which produced it. Though travaux prparatoires are very often referred to in European courts, the rule in England is that the history in this sensemaynotbereferredto.Hansardisthereforenottobecited. Asecondsenseofthewordhistoryinthiscontextisthebackgroundagainstwhichthestatuteispassed.This may include a previous series of enactments in the same field as the Act to be interpreted or such matters as the general social, political and legal background prevailing at the time of the passing of the Act. It is permissibleandgenerallydesirableforthecourttoconsiderthehistoryinthesesenses. Thehistoryoftheenactment Considerthewholeenactment
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5.
TheruleinHeydonscaseorMischiefRule
Fortheinterpretationofallstatutestobesureandtrue,i.e.reliable,fourthingshavetobeconsidered: a) b) whatwasthemischief(orwrongdoing)forwhichthecommonlawdidnotprovide; c) d) thetruereasonfortheremedy. (HeydonsCase(1584),3CoRep7a) 6. (Latinfor:Letthethingstandratherthanfall) Itmustbepresumedthatthedraftsmanintendseverywordtobearameaning,tobesomethingthatstands, whichisneitherrepetitiousnorredundant.Andifaclauseappearstobeeitherrepetitiousorredundant,then thecourtmustseektogiveitameaningwhichavoidssuchaconclusion. 7. (Ifsomethingisexpressed,thereisnoroomforimplication) This rule is sometimes formulated as Expressio unius, exclusio alterius (If something is expressed it must be takentoexcludesomethingelse). Forinstance,ifanActimposedrates(=taxesfoncires)onhousesandbuildingsbutexpresslyexemptedland itwasheldthatland,whichinnormallegalterminologywouldincludehousesandbuildings,mustheremean landalone,unencumberedbyhousesandbuildings. 8. (Ofthesamegenus)rule. Theejusdemgeneris Expressumfacitcessaretacitum Utresmagisvaleatquampereat whatremedytheParliamenthasdesignedtocurethedisease; whatwasthecommonlawbeforetheAct;
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Frequently, enactments refer to a class of things (genus) to which their provisions are to apply, and after the classtherefollowsomegeneralwordswhichimplythatothersimilarthingsareintendedtobeincluded.Then the question may arise in the course of litigation whether something which is not one of the specified genus falls within the general words. The issue then becomes whether the thing in question is or is not ejusdem generiswiththeclassspecified. ThesearesomeoftheruleswhichgoverntheexerciseofthetraditionalEnglishapproachtointerpretation.
2. JUDICIALPRECEDENT
In any legal system, there must be a minimum predictability in decisionmaking. Case law and law reporting aretheretomakesurethatpredictabilityisavailable. Case Law In all countries, at all times, courts decisions have been treated with respect and they tend to be regarded as precedents which other courts will follow when they are asked to render a decision concerning problems of thesamenature. The main characteristic of the English system is the doctrine of the binding case. Under it, the court which is inferior in authoritytoanother isobliged to followthecourt of superior authorityif itis required to decideon factssimilartothosealreadytriedbythesuperiorcourt. Forthesystemtowork,astricthierarchyofcourts isneeded.Forexample,anydecisionoftheHouse ofLords is absolutely binding on all other courts. Court of Appeal decisions bind the courts inferior to it and also the CourtofAppealitself. Until recently, the House of Lords treated its own previous decisions as binding upon itself. But in 1966, the AustralianHighCourtdisagreedwiththeHouseofLords,andtheirLordships,whenreviewingthecase,saidto themselves that their previous decision was wrong . Therefore, Lord Gardiner, the thenLord Chancellor declared on July 26th, 1966, in the Practice Statement, that, even if normally the House should continue to follow its own rulings, it should yet, for the future, permit itself to depart from a previous decision when it appearsrighttodoso. Thisbeingsaid,onemustnotimaginethatthedutyofajudgeconsistsonlyinfindingtheadequateprecedent. Indeed,factsareinfinitelyvariousandnotallcasesarecoveredbypreviousauthority.Therefore,thecourts havefreedomofchoiceindecidingwhichauthoritytofollow,evenifthejudgesdonotactinanarbitraryway.
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Theyresttheirjudgementsongeneralprinciplesofcaselaw,whichrequiresthereportingandpublicationof allthemostimportantdecisions. Law Reporting There has been law reporting since the thirteenth century. The modern period began when the General Council of Law Reporting was set up in 1865. It is a commercial firm whose purpose is to issue a series of law reports which are authorised, which means that the judges who decide the cases noted by the reporters examineand,wherenecessary,amendthereportspriortotheirpublication. Thereisnomonopolyinthefieldoflawreporting.Otherreportsarepublishedbyothercommercialfirms,like theAllEnglandLawReports,foundedin1936. B)THESECONDARYSOURCES CUSTOM Customs are social habits, patterns of behaviour, which every society evolves without express formulation or consciouscreation. Originally,muchofthelawwasbasedoncustom.Moreover,customisnotonlyasourceoflawbutitdevelops rules of its own. For example, many of the fundamental rules governing the Constitution are conventional or customary rather than legal. A good case in point is the rule that the monarch must invite the leader of the partywhichhasamajorityintheHouseofCommonstoformanewgovernment. In modern times, most customs have either become obsolete or been absorbed in the rule of law. However, some customs prevailing among particular groups of people living in specific localities are sometimes recognisedbythecourtsascapableofcreatingaspeciallawforthelocalityinquestion. For instance, in a wellknown case, the fishermen of Walmer were granted by the court a special right to dry theirnetsonaparticularbeachbyreasonofalocalcustom. Buttherecognitionofsuchspecialrightsdependsonthefulfilmentofthreeconditions: a) thecustomwhichpeopletrytoestablishasarulemustnotbeunreasonable;
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b) itmustbecertain,whichmeansthattherightclaimedmustbeassertedbyadefinedgroupofpeople; c) BOOKSOFAUTHORITY Contrary to the Continent, England has, in the past, treated the writings of legal authors with relatively little respect. There have been a few exceptions, however. There are certain books which may be not only cited by wayofevidencebutwhichalsocarryaweightofauthorityalmostequaltothatofprecedent,e.g.Blackstones Commentaries,publishedin1765. Lately, however, the tradition seems to have been breaking down, since many textbooks are now constantly citedincourt.ThemainreasonistheincreasingpopularityofthestudyofEnglishLawinallmajoruniversities, whichhasdonemuchtoimprovethequalityoflegalwritingandalsotoincreasethevolumeoflegalliterature (e.g.SalmonsLawoftortsorSmith&HogansCriminalLaw). thecustommusthaveexistedsincetimeimmemorial.
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SOURCES OF ANGLO-SAXON LAW: CHAPTER FIVE
THE MAKING OF LEGISLATION
Under United Kingdom constitutional law, the sovereign power to make laws lies with the Westminster Parliament, as was seen and said previously, notably in Chapter Three. Parliament has the power to enact, revoke or alter (=modify/ amend) any law as it sees fit. The only limitation imposed on that supreme power is to be found in the convention that no Parliament can bind its successors. In this way, the absolute legislative powerofeachParliamentispreserved. Even if the English legal system is still regarded as a common law one and despite the prominent part played by the courts in the interpretation of enacted law (see Chapter Three), legislation has been the predominant method of lawmaking in contemporary times. That is why it is important to understand how the legislative processworks.
1. Thepreparliamentaryprocess
Alotoflawcreationandreformmaybeseenastheimplementationofpartypoliticalpolicies.Therearemany examples: the reforms of trade union law and of the financing of local services under the Thatcher governmentsofthe1980s,orthevariousconstitutionalreforms(oftheHouseofLords,devolutionofpowerto the Welsh Assembly and the Scottish Parliament, limitation of the Lord Chancellors powers, etc) initiated by NewLaboursinceitregainedofficein1997. As,byconvention,thegovernmentisdrawnfromthepartycontrollingamajorityintheHouseofCommons,it can effectively decide what policies it wishes to implement and trust its majority to ensure that its proposals become law. Governments that command a substantial majority in the Commons are often accused of operating without taking account of the views of either opposition parties or even those of their own party members. It is argued that their control over the daily procedure of the House combined with their majority voting power actually reduces the role of Parliament to that of merely rubberstamping their proposals. It is true that governments with a slim majority in Parliament tend to show more consideration to the views of potentialrebelsintheirownranksorthoseofminoritypartieswhichmighthelpthemstayinoffice.
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The government generates most of the legislation that finds its way into the statute book but individual MembersofParliament(=MPs)mayalsoproposelegislationthroughprivatemembersbills.Privatemembers propose legislation mostly through the ballot procedure by which 20 backbench members (a.k.a back benchers)gettherighttoproposelegislationonthe10orsoFridaysineachparliamentarysessionsspecifically set aside to consider such proposals. Sometimes, the procedure is used by the government, in an underhand fashion, to push legislation regarding a controversial issue through Parliament. For instance, the Abortion Act 1967wasintroducedasaprivatemembersbill,becausetheissuewasahotpoliticalpotato. The decision as to which bills are placed on the Parliament agenda in any session is made by two cabinet committees: The Future Legislation Committee determines which bills will be presented to Parliament in the followingparliamentarysession; The Legislation Committee is responsible for the legislative programme conducted in the immediate parliamentary session. It is the responsibility of this committee to draw up the legislative programme announcedintheQueensSpeechdeliveredattheopeningoftheparliamentarysession.
Green Papers are consultation documents produced by the government which set out and invite comments frominterestedpartiesonparticularproposalsforlegislation.Afterconsideringanyresponse,thegovernment may publish a second document in the form of a White Paper in which it sets out its firm proposals for legislation.
2. Thelegislativeprocess
Parliament consists of three distinct elements: the House of Lords, the House of Commons and the Monarch. For a bill to become an Act of Parliament, it must proceed though and be approved by both Houses of Parliament and must receive the Royal Assent. The ultimate location of power, however, is the House of Commons,whichhastheauthorityofbeingademocraticallyelectedinstitution. A bill must be given three readings in both the House of Commons and the House of Lords before it can be presentedfor theRoyalAssent.ItispossibletostarttheprocedureineitherHousealthoughmoney billsmust begintheirparliamentaryjourneyintheCommons. WhenabillisintroducedintheCommons,itundergoesfivedistinctprocedures: First reading. This is purely a formal procedure in which its title is read and a date set for its second reading.
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Second reading. At this stage, the general principles of the bill are subject to extensive debate. The secondreadingisthecriticalpointintheprocessofabill.Attheendavotemaybetakenonitsmerits and,ifitisapproved,itstandsareasonablechanceoffindingaplaceinthestatutebook. Committee stage. After its second reading the bill is passed to a standing committee whose job is to consider the provisions of a bill in detail, clause by clause. The committee has the power to amend it insuchawayastoensurethatitconformswiththegeneralapprovalgivenbytheHouseatitssecond reading. Report stage. At this point the standing committee reports the bill back to the House for considerationofanyamendmentsmadeduringthecommitteestage. Third reading. Further debate may take place during this stage but matters relating to the general principlesofthebillcannotberaised.
Whenabillhaspassedallthesestages,itispassedtotheHouseofLordsforconsideration.Afterconsideration by the Lords, the bill is passed back to the Commons which must then consider any amendments to the bill thatmighthavebeenintroducedbytheLords.WhenoneHouserefusestoagreetotheamendmentsmadeby theother,billscanberepeatedlypassedbetweenthembut,asbillsmustcompletetheirprocesswithinthelife ofaparliamentarysession,afailuretoreachanagreementwithinthatperiodmightleadtothelossofthebill. Since the Parliament Acts of 1911 and 1949, the blocking power of the House of Lords has been restricted as follows: The Royal Assent is required before any bill can become law. There is no constitutional rule requiring the monarch to assenttoanyAct passed byParliament. There is, however, aconvention to that effect andrefusal to grant the Royal Assent to legislation passed by Parliament would place the constitutional position of the monarchyinjeopardy.TheproceduralnatureoftheRoyalAssentwashighlightedbytheRoyalAssentAct1967 which reduced the process of acquiring the Assent to a formal reading out of the short title of any Act in both HousesofParliament. A money bill, i.e. one containing only financial provisions, can be enacted without the approval of theHouseofLordsafteradelayofonemonth; AnyotherbillcanbedelayedbyoneyearbytheHouseofLords.
3. Thedraftingoflegislation
The actual drafting of legislation is the work of parliamentary counsel to the Treasury who specialise in this task. The first duty of the drafters must be to give effect to the intention of the department instructing them, and do so in as clear and precise a fashion as is possible. These aims, however, have to be achieved under pressure,andsometimesextremepressure,oftime. Aformerparliamentarydraftsman,Francis Bannion, hassupplieduswithasharpinsightintothedifficultiesof that task. In an article entitled Statute Law Obscurity and Drafting Parameters and published in the British Journal of Law Society (issue 235, 1978), Bannion listed nine specific parameters that the drafter of legislation hadtotakeintoaccount.Theyare: Legal effectiveness. This is the need for the drafters to translate the political wishes of those instructingthemintoappropriatelegallanguageandform.
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Procedural legitimacy. This refers to the fact that the legislation must conform with certain formal requirements if it is to be enacted. For example, it is a requirement that Acts be divided into clauses andbillsnotassumingthisformwouldnotbeconsideredbyParliament. Timeliness. This refers to the requirement for legislation to be drawn up within particularly pressing timeconstraints.Theeffectofsuchpressurecanbepoorlydraftedanddefectiveprovisions. Certainty. Thelaw mustbe clearly setdown sothatindividualscan knowitsscopeand effect andcan guide their actions within its provisions. The very nature of language, however, tends to act against this desire for certainty. In pursuit of certainty, the temptation is for the person drafting the legislation to produce extremely long and complex sentences, consisting of a series of limiting and refining subclauses. This process in turn, however, tends merely to increase the obscurity of meaning. Comprehensibility. Ideally, legislation should be comprehensible to the lay person, i.e. someone deprived of expertise in the field of lawmaking and drafting, but, given the complex nature of the situation that the legislature is dealing with, such an ideal is probably beyond reach in practice. Nonetheless, legislativeprovisions certainlyshouldbe understandable by the Members of Parliament whoareaskedtovoteonitandtheyshouldnotbebeyondthecomprehensionofthelegalprofession whohavetoconstrueitfortheirclients.Unfortunately,somelegislationfailsonboththesecounts. Acceptability. Legislation is expected to be couched (=written down) in clear language and using a traditionalprosestyle. Brevity. Legislative provisions should be as short as is compatible with the attainment of the legislativepurpose.Thequestofbrevitycanruncountertothewishforcertaintyin,andacceptability of,thelanguageused. Debatability. Legislation is supposed to be structured in such a way as to permit it and the policies thatliebehindittobedebatedinParliament. Legal compatibility. Any new provision must fit in with already existing provisions. Where the new provision alters or repeals existing provisions, it is expected that such effect should be clearly indicated.
A consideration of these various desired characteristics shows that they are not necessarily compatible, and indeed some of them, such as the desire for clarity and brevity, may be at loggerheads. Of course, all those parameters should be borne in mind by the drafters of legislation, but prominent among these is surely the needforclarityofexpressionandmeaning.
4. Typesoflegislation
Legislation can be classified in different ways. For example, a distinction can be drawn between public Acts, which relate to matters affecting the general public and may be further subdivided into governments bills or private members bills, and private Acts, which relate to the powers and interests of particular individuals or institutions, although the provision of statutory powers to particular institutions, can have a major effect on the general public. For example, companies may be given the power to appropriate private property through compulsorypurchaseorders. Acts of Parliament can also be distinguished on the basis of the function they are designed to carry out. Some breaknewgroundandcovernewareasofactivitypreviouslynotgovernedbylaw,butotherActsareaimedat rationalisingoramendingexistinglegislativeprovisions. Consolidating legislation is designed to bring together provisions previously contained in different Acts, without actually altering them. The Companies Act of 1985 is a good case in point of a consolidated Act. It
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brought together provisions contained in numerous amending Acts which had been introduced since the previousConsolidationActof1948. Codifying legislation seeks not just to bring existing statutory provisions under one Act but also looks to give statutoryexpressiontocommonlawrules.AclassicexampleofsuchlegislationistheSalesofGoodsAct1893, now1979. Amendinglegislationisdesignedtoaltersomeexistinglegislationandcantaketwoforms: A textual amendment is one where the new provision substitutes new words for existing ones in a legislative text or introduces completely new words into that text. Altering legislation by means of textualamendmenthasonemajordrawbackinthatthenewprovisionsmakeverylittlesenseontheir ownwithoutthecontextualreferenceoftheoriginalprovisionitisdesignedtoalter; Nontextual amendments do not alter the wording of the existing text but alter the operation or effect of those words. Nontextual amendments may have more immediate meaning than textual alterationsbuttheytoosufferfromtheproblemthatbecausetheydonotaltertheoriginalprovisions thetwoprovisionshavetobereadtogethertoestablishthelegislativeintention. Neithermethodofamendmentiscompletelysatisfactorybuttheformerisoftenfavouredoverthelatter. Thissaid,however,themostcommonformtakenbylegislationisdelegatedlegislation,whichwillnowbe studiedindetail.
5. Delegatedlegislation
5.1 Whatisdelegatedlegislation?
Delegated legislation is the law made by some person or body to whom Parliament has delegated its general lawmakingpower.ApieceofdelegatedlegislationhasthesamelegalforceandeffectastheActofParliament underwhichitisenacted,butitseffectislimitedbytheActauthorisingit. TheDeregulationandContractingOutAct(DCOA)1994isanexampleofthewiderangingpowerthatenabling legislation can extend to ministers. The Act grants ministers the authority to amend legislation by means of statutory instruments, where they consider such legislation to impose unnecessary burdens on any trade, business, or profession. Although the DCOA 1994 imposes the requirement that ministers should consult with the parties interested in any proposed alteration, it however gives them wide powers to alter primary legislation without the necessity of having to follow the same procedure as was required to enact that legislationinthefirstplace. The volume of delegated legislation in any year far outstrips that of Acts of Parliament. For instance, in 1996, somesixtygeneralpublicActswerepassed,whilenofewerthan3,200statutoryinstrumentsweremade,that istosayaratioofonetofiftythree.Inquantitativetermsatleast,itcanbearguedthatdelegatedlegislationis indeedmoresignificantthanprimaryActsofParliament.
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Delegatedlegislationfallsintofivecategories:
Orders in Council: they allow the government, through the Privy Council, to make law.Nominally, the Privy Council is made up of eminent parliamentarians, but in actual fact it is simply a means through which the government, in the form of a committee of ministers, can introduce legislation without havingtogothroughthefullparliamentaryprocedure.ManyActsarebroughtintooperationthrough OrdersinCouncil. Statutory Instruments: they are the means through which government ministers introduce particular regulationsunderpowersdelegatedtothembyParliamentinenablinglegislation(seethecaseofthe DCOA1994mentionedpreviously). Byelaws: they are used by local authorities and other public bodies to make legally binding rules. Byelaws may be made by local authorities under such enabling legislation as the Local Government Act1972. Court Rule Committees are empowered to make the rules which govern procedure in the particular courtsoverwhichtheyhavedelegatedauthorityundersuchActsastheSupremeCourtAct1981,the CountyCourtsAct1984andtheMagistratesCourtsAct1980. Professional regulations governing particular occupations may be given the force of law under provisions delegating legislative authority to certain professional bodies that are empowered to regulatetheconductoftheirmembers.Forexample,thepowergrantedtotheLawSocietyunderthe SolicitorsAct1974tocontroltheconductofpractisingsolicitors.
5.2. Advantagesintheuseofdelegatedlegislation
Delegatedlegislationhasthreeadvantages: It can be introduced quickly and permits rules to be changed in response to emergencies or unforeseen problems. It also saves parliamentary time. Given the highly detailed nature of typical delegated legislation, not to mention its sheer volume, Parliament would not have time to consider each individual piece of law enacted in the form of delegated legislation. It is considered of greater benefit for Parliament to focus its attention on the principles of the enabling Act, leaving the appropriate minister or body to establish the workingdetailunderitsauthority. Related to the first advantage is the fact that the majority of MPs simply do not have sufficient expertise to consider such provisions effectively. Given the highly specialised and extremely technical nature of many of theregulationsintroducedthroughdelegatedlegislation,itisnecessarythatthoseauthorisedtointroducethe legislation should have access to the necessary external expertise required to formulate such regulations. Regarding byelaws, it is obvious that local and specialist knowledge will produce more appropriate rules than relianceonthegeneralenactmentsofParliament. Flexibility Accesstoparticularexpertise Itsavestime
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The use of delegated legislation permits ministers to respond on an ad hoc basis to particular problems when theyariseandprovidesmoreflexibilityintheregulationofactivitysubjecttotheministerssupervision.
5.3. Drawbacksintheuseofdelegatedlegislation
Delegatedlegislationhasthreedisadvantages: Amajorproblemgeneratedbytheuseofdelegatedlegislationconcernsthequestionofaccountabilityandthe erosionoftheconstitutionalroleofParliament. Parliamentispresumedtobethesourceoflegislationbut,withrespecttodelegatedlegislation,theindividual members are not the source of law. Some people, notably government ministers and the civil servants who work under them to produce the detailed provisions of delegated legislation, are the real source of such regulations. Even allowing for the fact that they are in effect operating on powers delegated to them by Parliament, one may wonder whether this procedure does not give them more power than might be thought appropriate or indeed constitutionally correct while at the same time it strips Parliament of its power and discreditsitasabody. Thequestionofaccountabilityraisestheneedforeffectivescrutiny, but theveryformofdelegatedlegislation makes it extremely difficult for ordinary MPs to fully understand what is being enacted and to monitor it effectively. This problem of comprehension and control is compounded by the fact that regulations appear outsidethecontextoftheirenablinglegislationbutonlyhaveanyrealmeaninginthatcontext. The problems faced by ordinary MPs in effectively keeping in touch with delegated legislation is further increased by the large volume of such legislation. If parliamentarians cannot keep up with the flow of delegatedlegislationhowcanthemaninthestreetbeexpectedtodoso? These difficulties and potential shortcomings (=dfauts) in the use of delegated legislation are, at least partly, mitigatedbythefactthatspecificcontrolshavebeenputinplacetooverseeit. Volume Scrutiny Theproblemofaccountability
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SourceduDroitanglosaxon 5.4. Thecontrolsoverdelegatedlegislation
Therearetwotypesofcontrol,theonebyParliament,theotherbythecourts: The power to make delegated legislation is ultimately dependent on the authority of Parliament and Parliamentretainsgeneralcontrolovertheprocedureforenactingsuchlaw. NewregulationsintheformofdelegatedlegislationarerequiredtobelaidbeforeParliament. SomeregulationsrequireapositiveresolutionofoneorbothoftheHousesofParliamentbeforetheybecome law. Most Acts, however, simply require that regulations made under their auspices be placed before Parliament. They automatically become law after a period of 40 days unless a resolution to annul them is passed. Since 1973, there has been a Joint Select Committee on Statutory Instruments whose function it is to examine Statutory Instruments. This committee scrutinises Statutory Instruments from a technical point of view as regards drafting and has no power to question the substantive contents or the policy implications of the regulation. Its effectiveness as a general control is therefore limited. European Community legislation is overseen by a specific committee, and byelaws are usually subject to the approval of the Department of the Environment. It is possible for delegated legislation to be challenged (=conteste), through the procedure of judicial review, onthegroundthatthepersonorbodytowhomParliamenthasdelegateditsauthorityhasactedinawaythat exceedsthelimitedpowersdelegatedtothem.Anyprovisionoutsidethisauthorityisultravires(=enexcsde pouvoir)andisvoid(=nulle). Moreover, any power delegated by Parliament should be used in a reasonable manner and the courts may sometimesholdparticulardelegatedlegislationtobevoidonthegroundthatitisunreasonable.Aninteresting exampleof thisprocedure may illustrate the point. InJanuary1997, thethenLord Chancellor,Lord Mackayof Clashfern, raised court fees and at the same time restricted the circumstances in which a litigant can be exempted from paying such fees. In March, a Mr John Witham, who previously would have been exempted from paying court fees, successfully challenged the Lord Chancellors action. In a judicial review of the provisions initiated by the Lord Chancellor, it was held that Lord Mackay had exceeded the statutory powers given to him by Parliament. One of the judges, Rose LJ, stated that there was nothing to suggest that Parliament had ever intended a power for the Lord Chancellor to prescribe fees so as to preclude (=empcher)thepoorfromaccesstothecourts. Judicialcontroloverdelegatedlegislation Parliamentarycontroloverdelegatedlegislation
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THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SIX _____________________________________ ___________________

THEDOCTRINEOFJUDICIALPRECEDENT
Studying and practising the law, we seek to analyse legal principles and the principles in English law stemfrompurecaselaworfromcaselawdealingwithstatutes. ItiswidelybelievedthatastrengthofEnglishlawincontrastwithitsEuropeancounterpartisthat it is built upon the concrete examples of case law rather than hypothetical models. In 1937, Lord MacMillanobserved: Unlike the Civil Law lawyer, the Englishman has found that life is uncomfortable to any fixed theory and that principles always fail because they never seem to fit the case in hand, and so prefers to leavetheoryandprinciplealone.(inLawandOtherThings,p.81,CambridgeUniversityPress) aroughandreadytranslationofwhichcouldbe: Contrairement au juriste continental, lAnglais en est arriv la conclusion que la vie saccommode mal de thories intangibles et que les principes sont sources dinsatisfaction car ils ne semblent jamais adapts au cas despce et il prfre donc ne pas sembarrasser de thories et de principes. The doctrine of judicial precedent is concerned with the importance of case law in the English legal system. Judicial precedent is lawyers English for legal experience. In daily life, we are prone to repeat things weve done before; law is not foreign to repetition either. If one case has decided a pointoflawthenitis logicalforthatsolutiontobelookedatinfuture.AsOliverWendellHolmesJr, the Federal Supreme Court Justice, once stated, the life of the Law has not been logic; it has been experience.
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Butifjudicialprecedentisonlyexperienceinlegaljargon,whydoesitdeserveourattention?Whyis it that lawyers need to have a clear understanding of the intricacies (=complexities) of precedent? Theansweristhatexperienceisatermthatgivesavagueideaofthesituation. First, even when the layman uses the term precedent, there is an implication that what was done before should be done again, that if you have a problem to solve youd better see what examples existwherethisorsimilarproblemshavebeentackledpreviously.Theexampletheprecedentisat least a good guide and will probably be followed. This achieves consistency, if nothing else. Furthermore, people making decisions are often afraid of doing something in case it creates a precedent.AsMacCormicknotes: To understand case lawis to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of person at large. (in Why Cases have rationes and What These Are, extracted from L. Goldstein (ed) Precedent in Law, Clarendon Press, Oxford, 1987, at page 155) In other words, combining the remarks of Lord MacMillan and MacCormick, we could claim that the principles of English law stem from observing the development of a line of particular cases on a particular topic. This is a key factor in English law. Since lawyers are so obsessed by case law, principles do not develop unless plaintiffs bring cases. Academics and practitioners may speculate on the development of legal principles, but it takes real-life cases to settle them. And the judges in each case, to a greater or lesser extent, draw upon the principles established in those earlier cases in reaching their decision.
STARE DECISIS
An essential and distinctive element of English law is that the reasoning and decisions found in preceding cases are not simply considered with respect or as a good guide, but can be BINDING on later courts. This is know as the principle of stare rationibus decidendis, usually referred to as stare decisis (Latin for Let the decision stand). Stare rationibus decidendis is the more accurate formulation because it is the reasoning (rationibus) that is the vital binding element in judicial precedent. Nobody actually refers to it in this way however. What stare decisis means practically is that when a court makes a decision in a case, then any courts which are of equal or lower status to it must follow that previous decision if the case before them is similar to that earlier case. So, once a court has decided a matter, other courts are bound to follow that decision. Legal reasoning is not simply a matter of matching one case against another; it is not merely a question of drawing analogies. There will always be differences in the facts of two cases. The point is to know how significant those differences are. The doctrine of judicial precedent is therefore not a mere mechanical process of matching similarities and differences. It embodies the art of interpretation, the art of propounding the principle to be derived from each case. It also involves the lifeblood of a lawyer (i.e. what makes a lawyer tick) : argument.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET To simplify the demonstration we shall concentrate on the position where the facts are sufficiently similar that the cases are alike. How will the doctrine of stare decisis affect our analysis? To provide a documented answer to that question, we should focus on the mechanical side of precedent. The courts stand in a defined hierarchy: which are bound to follow the decisions of which other courts? To really understand how stare decisis works, it is necessary to have a good knowledge of the court structure. Likewise, an efficient system of precedent depends on reliable law reporting. The mechanics of stare decisis The basic principle is that the precedents created by superior courts bind lower courts and courts of equal status. Another important idea is that not all precedents are binding. The precedents that are not binding are called persuasive precedents. There are five main categories of persuasive precedents: a) decisions of lower courts may be persuasive; b) decisions of the High Court at first instance are persuasive authority for later cases in the same court; c) decisions of the Judicial Committee of the Privy Council; d) decisions of the Scottish and Northern Irish courts; e) decisions of other courts in the Common Law world; for instance, the use of the Australian case of Sutherland Shire Council v Heyman (1985) in Murphy v Brentwood DC (1990).
The House of Lords (now the UK Supreme Court) The decisions of the House of Lords/ Supreme Court are binding on all lower courts. The question of knowing whether decisions of the House should bind a future one has long been debated. For hundreds of years, the Law Lords considered themselves bound. This was changed by the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 where it was said that, though the doctrine of being bound had many commendable points, too strict adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. Thus their Lordships can depart from their own previous decisions, but they do so very sparingly (=rarely). So far, in the forty years that have passed since 1966, they have departed from previous decisions in about twenty cases only. The reason is that, the House of Lords being the highest court in the realm, its pronouncements (about one hundred per year) must be seen as creating an air of certainty in business dealings, criminal law, land law and so on. As a result, changing its mind may do justice to a particular case, but at a cost. Despite those reservations, the Lords sometimes change their minds. For example, in R v Shivpuri [1986], a case that concerned the law regarding criminal attempts, the House changed its mind on whether it was possible to try to do the impossible, because it had been widely criticised the year before owing to its decision in Anderton v Ryan [1985]. This is an exceptional example of the House overturning its own decision simply because it felt the earlier decision was wrong. Usually, the Lords look for wider policy considerations. In Food Corp. Of India v Antclizo Shipping Co. [1988], Lord Goff (on behalf of the court) stated that their Lordships would not depart from a previous House of Lords decision unless: a) it felt free to depart from both the reasoning and decision of the earlier case; and b) such a review would affect the resolution of the actual case before them and not be of mere academic interest.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET At first sight, this is an extremely limiting declaration. Point (b) means that the Lords will not be prepared to overrule one of their previous decisions, even if they think it is wrong, unless, by doing so, this would affect the case before them. It is not their job to write textbooks on law, but to decide real cases. Their Lordships will, in these circumstances, refuse to overrule because that point is only of academic interest. This is what happened in Antclizo, and is in line with the spirit of the Practice Statement of 1966. However, in Shivpuri the overruling took place even though some of the judges thought the cases under review could be distinguished on their facts. Point (a) involves the court in a detailed scrutiny of the earlier case in question. What the Lords appear to be saying is that not only must the decision be judged to be incorrect but so must the reasoning. The problem here is that Lord Goff seems to be saying that if the Lords found the decision to be wrong but the reasoning correct they will not interfere with the case, which means they will be agreeing with a case where the final conclusion does not match the analysis. It is as if a math test where an answer, 2+2=5, were marked correct because the reasoning (though not clearly the result) was sound, which is puzzling.
The Court of Appeal This is an important court for two reasons: a) because of its place in the hierarchy (just below the House of Lords); and b) because of its heavy workload : this court hears many more cases than the House of Lords does. This is the reason why Lord Denning, after having been promoted to the House of Lords, asked to return to the Court of Appeal. Being a legal activist, Denning could influence the Law more from the bench of the Court of Appeal than from that of the House of Lords. There are three essential questions concerning the Court of Appeal and stare decisis. Question 1: To what extent is the Court of Appeal bound to follow decisions of the House of Lords? The orthodox answer is always. But there have been two campaigns in the Court of Appeal to change that. Both were spearheaded by Lord Denning MR. His departure seems to have brought about the end of the conflict between the two highest courts. The per incuriam campaign In this attack, Lord Denning claimed that if a House of Lords decision had been made per incuriam it need not be followed. Per incuriam means that a court failed to take account of all the relevant and vital statutes or case authorities and that this had a major effect on the decision. Per incuriam means there was a significant oversight on the courts part. Not only must there have been a failure to take relevant authority into account, but that fault must have been such a major defect that it seriously affected the reasoning of the case. Lord Denning tried this form of reasoning in Broome v Cassell [1971]. Denning persuaded the other members of the Court of Appeal to reach a decision which was contrary to that of an earlier House of Lords decision, Rookes v Barnard [1964]. Lord Denning pointed out that Rookes was a decision made per incuriam because it had failed to consider even earlier House of Lords authorities. However, when Broome went to the House of Lords, the Law Lords rebuked (=criticised) Denning for adopting such a rule because they believed he had plainly looked for an excuse not to adhere to stare decisis. Lord Hailsham, the then Lord Chancellor, declared: I am driven to the conclusion that when the Court of Appeal described the decision in Rookes V Barnard as decided per incuriam or unworkable they really only meant that they did not agree
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET with it In the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. [1972] AC 1027, 1054. The lapsed rule campaign Let us say that the House of Lords reached a decision some years ago based upon a particular rule or set of facts, e.g., that damages in English courts can only be given in sterling because of the stability of the currency and established forms of procedure. Now let us say that the reason for the rule has disappeared: the forms have changed and sterling has lost its stability. Should the precedent created by the Lords be followed even though the whole basis of this precedent has disappeared? This was the question raised by Lord Denning in Schorsch Meier GmbH v Hennin [1975] QB 416, [1975] All ER 152. This case did not go on appeal to the House of Lords. However, the Lords soon had an opportunity to comment on the issue in a case named Miliangos v George Frank (Textiles) Ltd; and they yet again disapproved of Lord Dennings attempts to vary the notion of stare decisis. To conclude on Question One, the campaigns backfired. It is for the House of Lords to change their minds, not for the Court of Appeal to decide for them. Question Two: To what extent is the Court of Appeal bound by its own decisions? The basic rule is that it is bound. Some exceptions were given in Young v Bristol Aeroplane Co. Ltd [1944] KB 718, 723 by Lord Greene MR. As a result, the Court can choose between its own conflicting decisions. Such a conflict may arise because the Court does not hear one case at a time; different Lords Justices may be sitting hearing different cases at the same time. It is also possible that some cases might not have been reported. What Lord Greene MR did not explore is which of the conflicting decisions should be followed and neither academic nor judicial debate has resolved this finally. The court is probably free to decide which authority to follow, with the result that the one not chosen is overruled. The Court is not bound by its own previous decisions found to have been made per incuriam. It should be remembered that the mere fact that the case being examined had weaknesses in argument, or in the judgement, does not make the decision per incuriam. Thus in Morelle v Wakeling [1955] Lord Evershed MR limited the use of the per incuriam to cases where a) there was ignorance of authority which would have been binding on the court; and b) that ignorance led to faulty reasoning. To this the Court of Appeal has added that the rule can only be applied where, if the court had reviewed these authorities, the court would (not just might) have reached a different decision. In the case of Rakhit v Carty [1990] 2 All ER 202, the Court was faced with the situation where a Court of Appeal decision (decision 1) was plainly per incuriam as it had missed some vital statutory provisions. Decision 1 had been followed blindly in another Court of Appeal case (decision 2). Could the present Court of Appeal still declare decision 1 per incuriam and therefore decision 2 of no binding effect? Lord Donaldson MR stated, at page 208 : If, therefore, that court (in decision 2), having all the relevant authorities before it, had concluded that (decision 1) was rightly decided, I would have felt bound to follow it, leaving it to the House of Lords to rectify the error. Since this was not the case, the Court of Appeal in Rakhit declared decision 1 to have been reached per incuriam, thereby invalidating both decision 1 and decision 2 as precedents.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Question Three: Does every case have to be heard by the Court of Appeal before it can proceed to the House of Lords? The answer is no. If the Court of Appeal is bound by the House of Lords and itself then a system which demanded it should hear every case anyway would be ridiculous. Thus a civil case may be allowed to bypass the Court of Appeal and go direct from the High Court to the House of Lords. This is known as the leap-frog or leap-frogging procedure. However, if the case began life in the county court then an appeal from that court lies to the Court of Appeal, not the High Court; thus leapfrogging would be irrelevant.
To conclude, it is only fair to say that there will always be some uncertainty and some cases that simply break the rules. For one thing, we have yet to consider in depth how one case can be distinguished from another so that the precedent in question, and therefore the application of stare decisis, is sidestepped (=avoided). For another, judges occasionally surprise everyone with an admission that they were wrong in an earlier case. This is what Lord Denning did in Dixon v BBC [1979], discussing his earlier judgement on the same issue in BBC v Ioannou (1975]. This is reassuring when considered in the context of human frailty, but likely to make a practising lawyer mad and is little consolation to the party in the overruled case who originally lost (and probably paid costs). For a clear and detailed discussion of the doctrine of judicial precedent turn to Learning Legal Rules by James A Holland & Julian S Webb, Blackstone Press, London, sixth edition, 2006, Chapter 5, p.128 et al. The present document owes those two authors a lot.
Appendix
The Denning story

The attack was on two fronts Lord Denning MR carried on a one-man campaign to secure a change of practice in the Court of Appeal. Firstly He asserted that the House of Lords decisions no longer bound the Court of Appeal. Secondly He claimed that the Court of Appeal was no longer bound to follow its own decisions as a general rule and not just in the exceptional circumstances laid down in Young v Bristol Aeroplane Co. Ltd [1944]. Lord Denning understood (or misunderstood) the last words of the Practice Statement to mean: "We are only considering the doctrine of precedent in the Lords. We are not considering its use elsewhere." Conway v Rimmer [1967] CA Lord Denning said, "[M]y brethren today feel that we are still bound by the observations of the House of Lords in Duncan v Cammell, Laird & Co. Ltd.... I do not agree. The recent statement of Lord Gardiner LC has transformed the doctrine of precedent. This is the very case in which to throw off the fetters." When Conway v Rimmer reached the House of Lords [1968] they reconsidered Duncan's case and overruled it, but it was made clear that Duncan's case had been binding on the Court of Appeal all along.
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Broome v Cassell & co. Ltd [1971] CA C of A refused to follow the decision of the House of Lords in Rookes v Barnard [1964], on the principles for the award of exemplary damages in tort. They based the refusal on the ground that Rookes v Barnard was wrong and decided per incuriam, in ignorance of two previous decisions of the House. When Broome v Cassell & co. Ltd reached the House of Lords, the Law Lords castigated the Court of Appeal for its disloyalty. Lord Hailsham said "[I]t is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable .... The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." Denning repentant? Denning, in one of his books, expressed regret for the approach he adopted in Broome v Cassell & co. Ltd because the court ordered Commander Broome to pay part of the costs of the hearing in the Court of Appeal. Denning follows up his attack Schorsch Meier GmbH v Hennin [1975] He held he could award damages for breach of contract in a foreign currency that was the currency of the contract. this was not the precedent of the lords in Re United Railways of the Havana & Regla Warehouses Ltd [1961] that laid down that damages could be awarded only in sterling. The Schorsch Meier case did not go to the Lords Miliangos v George Frank (Textiles) Ltd [1976] HL Overruled United Railways and again put Denning in his place on stare decisis. Lord Cross "In the Schorsch Meier case, Lord Denning MR . . . took it on himself to say that the decision in the Havana case that our courts cannot give judgment for payment of a sum of foreign currencythough right in 1961ought not to be followed in 1974 because the 'reasons for the rule have now ceased to exist'.... [T]he Master of the Rolls was not entitled to take such a course. It is not for any inferior courtbe it a county court or a division of the Court of Appeal presided over by Lord Denning to review decisions of this House. Such a review can only be undertaken by this House itself under the declaration of 1966." The second front of Lord Denning's attack Was to assert that the Court of Appeal was no longer bound rigidly to follow its own previous decisions. Gallie v Lee [1969] "I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound. We are not fettered as it was once thought. It was a self-imposed limitation: and we who imposed it can also remove it. The House of Lords have done it. So why should not we do likewise?" Not all his brother judges agreed with him. Tiverton Estates Ltd v Wearwell Ltd [1975] Denning repeated the view he had expressed in Gallie v Lee, but added "I have not been able, however, yet to persuade my brethrenor, at any rate, not all of themto agree with this view." Scarman LJ "The Court of Appeal occupies a central, but . . . an intermediate position in our legal system. To a large extent, the consistency and certainty of the law depend upon it. It sits almost always in divisions of three: more judges can sit to hear a case, but their decision enjoys no greater authority than a court composed of three. If, therefore, throwing aside the restraints of Young v Bristol Aeroplane co. Ltd. one division of the court should refuse to follow another because it believed the other's decision to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords, where the decision will at least have the merit of being final and bindingsubject only to the
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House's power to review its own decisions. The House of Lords, as the court of last resort, needs this power of review: it does not follow that an intermediate appellate court needs it." Had Denning learnt his lesson? He capitulated and accepted the orthodox view in Miliangos v George Frank (Textiles) Ltd [1975] "I have myself often said that this court is not absolutely bound by its own decisions and may depart from them just as the House of Lords from theirs; but my colleagues have not gone so far. So that I am in duty bound to defer to their view." Davis v Johnson [1979] On domestic violence and Matrimonial Proceedings Act 1976. The parties, not married to each other, lived together with their baby daughter in a council flat of which the parties were joint tenants. There was violence by the man. The woman fled with the child to a battered wives' refuge. She applied to the court to reinstall her and have the man excluded from the flat. The Court of Appeal had considered the same question on two occasions only a few months earlier in B v B [1978] and Cantliff v Jenkins [1978]. They held that the 1976 Act did not protect a female cohabitee where the parties were joint tenants or joint owners but only where she was the sole tenant or sole owner of the property. In Davis v Johnson, Denning called together a 'full' court of five judges, describing it as 'a court of all the talents'. The court held by a majority of three that the 1976 Act does protect a female cohabitee even where she is not a tenant at all or only a joint tenant. They declared B v B and Cantliff v Jenkins wrong did not follow them. They granted an injunction to order the man out and reinstall the woman. On the question of stare decisis in the Court of Appeal Denning had this to say; "On principle, it seems to me that, while this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. What is the argument to the contrary? It is said that if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps forever." Later in his judgment, Denning was more specific: "To my mind, this court should apply similar guidelines to those adopted by the House of Lords in 1966. Whenever it appears to this court that a previous decision was wrong, we should be at liberty to depart from it if we think it right to do so.... Alternatively, in my opinion, we should extend the exceptions in Young v Bristol Aeroplane co. Ltd when it appears to be a proper case to do so." Sir George Baker was even more inventive and precise He said that Young's case was binding on the Court of Appeal but he would like to see a further limited exception to it: "I would attempt to define the exception thus: 'The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent statute passed to remedy a serious mischief or abuse, and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others." On a further appeal, the decision of the majority in the Court of Appeal was upheld and the House of Lords overruled B v B and Cantliff v Jenkins However, their Lordships rejected most of what the Court of Appeal had said about stare decisis. Lord Diplock, said: "[T]he rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following upon the announcement by Lord Gardiner LC in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning MR conducted what may be described, l hope without offence, as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision. In my opinion, this House should take this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal." Denning has described this decision as his 'most humiliating defeat' and a 'crushing rebuff'
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But after Davis v Johnson it is beyond doubt that the true position concerning stare decisis in the Court of Appeal is that, First, the Court of Appeal is bound by decisions of the House of Lords even if they are wrong, and, Secondly, the Court of Appeal is bound by its own decisions subject only to the exceptions laid down in Young v Bristol Aeroplane co. Ltd [1944]. From:http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/09_precedent_denning.htm
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THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SEVEN _____________________________________ ___________________
STAREDECISIS,RATIODECIDENDIandOBITERDICTUM Whatisbindingandnonbindinginacourtsdecision?
Staredecisis(=standingbythingsthathavebeendecided),ratiodecidendi(=thereasonforthe decision)andobiterdictum/dicta(=thingssaidbytheway,inpassing)maybethetrickiestnotions tograspwhendealingwithAngloSaxonlaw. Theconceptofstaredecisistellsusthat,undercaselaw,acourtmustfollowthedecisionofa superiorcourtwhendealingwithlike(=similar)cases.Butitdoesnottelluswhentwocasesare similarenoughforthedoctrinetoapply. Thetrouble withcasesisthattheirfactskeepchanging.Therefore,whatwemustbetryingtoprove is that two (or more) cases are sufficiently similar to illustrate the same principle and that the doctrine of precedent applies. A comparison of facts is then necessary; but more importantly we musttrytoseeifthereasoninginthe earliercasecanbeappliedtothenewsetoffactsinourcase. If lawyers cite cases in court hearings, it is to give credibility and authority totheir line of argument. The first question raised is therefore: what is the principle of law for which this case is authority? Question two: How does that relate to the case in hand? Or, to put it differently: is there a case whichisauthorityforthepointIwishtomake? ThepointIamdrivingatislegalanalysisisnotsimplyamatterofcomparingfacts. Definingandspottingratiodecidendi This is a tall order. One complication is that a judgement may cover from two to fifty pages, and nowherewillyoufindasentencetellingyou:Hereistheratioofthecase.Anotherdifficultyisthat
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET a later judge may perceive the principle to be derived from the earlier case as something different fromwhatthatwhichtheoriginaljudgeintended. How do you spot a ratio? Most informed observers and practitioners of the English legal system will tellyouittakesyearsofreadingcasesbeforeoneinstinctivelyformulatesanopiniononwhatacase means. Rupert Cross, in Precedent in English Law, Oxford, 1977, said it was impossible to devise formulaefordeterminingtheratioofacase,andheadded,p.72:
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.
TwiningandMiers,as forthem,claimthatfindingtheratiodecidendiofacaseinvolvesan element ofchoicefromarangeofpossibilities. Perceptionandratio Thewayajudgementmaybeperceivedbylaterjudgesisofparticularinterest. Toputeverythingintherightperspective,hereareafewguidelines,providedbyHolland andWebb inLearningLegalRules,Blackstones,2006,atp.166: a) Manycasesdonotgiverisetomuchargumentastowhattheymean,whattheratiowas. b) Everycaseis,however,opentosomeinterpretation. c) The earlier cases will have dealt with specific facts. Later cases will deal with different specificfacts. d) The need to interpret the ratio of these earlier cases arises when you try to apply that case tothenewsetoffactsinfrontofyou. e) Thejudgesformulationoftheratioinanyparticularcaseisnotalwaysclear. f) Whether it is clear or not, later judges have the right to interpret these words, to add an emphasis which the earlier judge would have intended had he or she been faced with the newsetoffactsinquestion. g) Everytimeacaseisdecidedinaparticularareaitmay: apply confirm extend reinterpret
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SourceduDroitanglosaxon distinguish criticise narrow modify limit weaken obliterate ignore
theprinciplesestablishedbytheearliercases.
4. Obiter dictum
The ratio of a case strictly relates to the material facts of a case but is often expressed in broader terms. So one might wonder whether changing a material fact would make a significant difference and therefore would prevent the original ratio from applying. Before dealingwiththeproblemofmaterialfacts,itmustbenotedthatnoteverythingthatajudge says when giving judgement can constitute a precedent. The ratio can only relate to pronouncements of law, not the facts of the case; furthermore, only the pronouncements that he considers necessary for his decision are said to be part of the ratio. Anything else said in the case that does not relate to the material facts is called obiter dictum (plural: obiterdicta).Obiterdictastatementsarenotbindingonotherlaterjudges. Obiterpronouncementscanbemadeinmostlyfoursituations: a) Where a judge makes a hypothetical statement, like : If the facts had been different (in somerespect)thenmydecisionwouldhavebeen;or b) The judge might say what he would have decided had he not been bound by stare decisis;or c) The statement by the judge might be completely relevant to the material facts, but his judgementwasintheminority.Aminorityjudgementhasitsownratio,butitcannotbe theratioofthecasesincethatjudgesviewdidnotprevail. d) The judge may make a number of general comments on the topic of law under discussion.InDonoghuevStevenson[1932]AC562,forexample,LordAtkinmadea few observations about liability for negligent acts. One such observation was that one owed adutyofcarenottoinjureonesneighbour,definedasapersonsocloselyaffectedby
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET myactsthatImusttakereasonablecarenottoinjurethem.Thisisanobiterdeclaration becauseitisnotdirectlyrelatedtothefacts. Mostobiterdictawere never intendedbythejudgetobe anything else. However,a latercourt may decide that what was said by a judge in the previous case was unnecessary to the decision and therefore no part of the ratio. This reassessment is one of the tricks used to overcome the binding elementofprecedent. A judge can refuse to follow anything that is not the ratio. This is why the classification matters. Obiterdictum,however,shouldnotbeignoredoroverlooked,fortwomainreasons: a) if the ratio of a case is an arguable point no comment should be discarded too fast as obiter dictum,foronemansobitermaybethenextmansratiotoacase;and b) obiter comments may turn out to be much more influential than the actual ratio. To return to Lord Atkins neighbour principle, it was used in later cases as the cornerstone upon whichthelawofnegligencewastodevelop.
4.1.
Material facts
Themainquestionhereistoknowwhichpartsofthepreviouscasesareconsideredvitalto thedecision.Inotherwords,ifthefactsofeachcaseareinevitablydifferenttosomeextent, whichfactsdoweconsidervitalenoughtosay:Thatcasewasdecidedinaparticularway andthisoneissufficientlysimilartoitthatitshouldbedecidedinthesameway?

The facts of a case are revealed in the documents, statements, affidavits (= dclarations par crit et sousserment),andevidenceproduced.Allthesearerelevanttothecase,whichdoesnotmeanthat theyareallrelevanttotheratioofthatcase. Askingourselvestwobasicquestionsmayhelpusdecidewhethercertainfactsarematerialornot: a) Whatisthecaseabout?And b) Whatisthelegalpointatissue(=atstake)? Also, one point to be aware of is that facts can be viewed as narrow or general. This depends on the level of abstraction with which one views the facts of a case; whether one takes only the literal
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET facts as being relevant or one observes the facts as merely representing something wider. For example, is a statement about the meaning of giving someone a red rose limited to red roses, indicativeofallroses,allflowers,orrepresentativeofsymbolsofaffection? Itisnoteasytoassesswhetherfactsarematerialornot.Thereisnoreadymade,universalformula because it depends upon how narrowly or widely you view each fact. The Donoghue case is about dead snails, gingerbeer and a Scottish widow, but if that was all it stood for as an authority we would havetowaitforages before such factsresurface in a new case (narrowinterpretation).But if anEnglishlawyerhasaclientwhoasksforadviceandsheisaWelshwidow,thedrinkSevenUpand the remnants of a dead mouse have emerged from the bottle, then he or she would surely see the linkwithDonoghueandusethatcasetobackhisorhersubmission. An efficient method to determine the importance of facts consists in removing them from the description of the case to be studied and ask whether this would have made a difference to the decision.Ifthereasoningismodifiedandthedecisioncouldhavebeendifferentasaresult,itseems likely that something hinged on the now missing fact. Hence the removed fact would appear to be essentialtotheformulationoftheratio.
4.2.
What can happen to a case?
Asacathasninelives,casesmayundergosevendifferentfutures:
a) thecasemaybefollowedinitsstrictestform,orapplied,inlatercases. b) Sometimes the later court may be of superior status to the earlier one. If it follows the reasoning of the inferior court it is said to have approved the earlier case. It might also disapprove of or overrule (=casser, rejeter) the earlier case. Disapproval may diminish the statusoftheearliercase.Inthecaseofoverruling,theearliercaseceasestobeanauthority of any sort (unless an even more superior court reinstate [=rtablir] it later). Overruling is rare,atleastwhentheprinciplehasbeenestablishedforsometime;butitmayhappen.For instance, in Polkey v Dayton [1987] AC 344, the House of Lords overruled a decades worth ofCourtofAppealdecisionsonthequestionofdeterminingfairnessinanunfairdismissal. c) The term overruling tends to be applied when a court reviews prior precedents. However, if a courts decision is subject to an appeal the higher court obviously has to allow or dismiss theappeal. Ifthehighercourtreaches adifferent decision it is said tooverturnorreverse (= infirmer, annuler, casser) the decision of the lower court. The higher court might not overturntheactualresultofthelowercourt(i.e.Xstillwins)butmayreformulatethelawor approveofonlypartofthedecisionofthelowercourt. d) When the facts are found to be dissimilar the later court is said to distinguish the earlier case. The art of distinguishing cases is a major weapon used by lawyers; especially when confronted with the problem of stare decisis. The attack aims mainly to show that there is a differenceinthematerialfactsofthetwocases. e) The later case may decide that the previous decision was reached per incuriam(=par erreur ouparomission). 68
SourceduDroitanglosaxon CHEYRithy&SergeBASSET f) AnActofParliamentmaychangethelaw. g) Thelatercasemaystatethattheearliercasehasnoclearratioand isthereforenotbinding, aswasthecaseinEssovCommissionersofCustomsandExcise[1976]1WLR1,[1976]1AllER 117. Conclusion One of the most complicated tasks facing an AngloSaxon lawyer is undoubtedly trying to discover the ratio of a case and to predict how that ratio will be interpreted and applied in the future. This canbeachievedonlythroughexperience. On reading a case, there is no clear, obvious signpost to the ratio decidendi. Finding it is a matter of interpretation,andthisappliestopersuasive(ornonbinding)precedentsaswellasbindingones.
Appendix
5. Donoghue v. Stevenson
http://www.centipedia.com/articles/Donoghue_v._Stevenson(reworkedbyS.Basset) Donoghuev.Stevenson,[1932]A.C.532,[1932]All ER Rep1,isa famousHouseofLordscase inthe area of the common law of tort. It is perhaps most well known for the statement of Lord Atkin regarding the existence of a duty of care in English law. Although Donoghue v. Stevenson was a Scottish case, it was undisputed by the parties that the Scots law based on the civil law and not the common law and the English law were identical on this issue. Consequently, the reasoning in thiscasehastakenrootinmanycountries.
5.1. 5.2.
5.3. The appellant, May Dohoghue, claimed that on August 26 1928 she drank some of the contents of a bottle of ginger-beer, manufactured by the responde nt, David Steve nson, which a fr iend had bought for her at a cafe in Paisley, Scotland. Whe n her friend poured the remainder of the bottl e's
The Facts
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET contents into Mrs Donoghue's tumbler, "a snail, which was in a state of decomposition, floated out of the bottle ". The bottle being opaque, the snail could not have been detected until the greater part of the contents of the bottle had been poured. As a result Mrs Donoghue alleged that she suffered from nervous shock and severe gastro-enteritis. Given that her friend had bought the drink there was no contract between Mrs Donoghue and the retailer, while the friend who did have a contract with the retailer was unaffected by the event and could not seek damages on her behalf (because Mrs Donoghue was not privy to the contract). Donoghue accordingly sued the manufacturer of the ginger-beer. Lord Justice MacKinnon said in a speech in 1942 that when the facts came to be tried, it was found that there was no snail in the bottle. The statement seems to have been based on information given to MacKinnon by David Stevensons counsel, later Lord Normand. In fact there was no trial of the facts as the case was settled (for 200) by Mr Stevenson's executors following his death. Other uncertainties are whether the bottle did indeed contain ginger beer ("ginger" being the Scottish word for a carbonated drink); and the identity of Mrs Donoghue's friend.
5.4.
Lord Atkin's statement
Lord Atkin's statement about the foreseeability of the effects of one's acts on one's neighbours is central to the existence of a duty of care in the law of tort, especially on the then new tort of negligence. In this judgement he formulates what is commonly known as the "neighbour principle". There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ... The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question:Whoismyneighbour?receivesarestrictedreply.Youmusttakereasonablecare to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.Who,then,inlaw,ismyneighbour?Theanswerseemstobepersonswhoare so closely and directly affected by my act that I ought reasonably to have them in contemplation as long as so affected when I am directing my mind to the acts or omissions thatarecalledinquestion. fromthejudgement(atp.580) NetworkedKnowledgeContractLawCasenotes
Esso Petroleum Co. Ltd v Commissioners of Customs and Excise [1976] 1 All ER 117; 1 WLR. 1, House of Lords
[This version of the judgment has been edited by Dr Robert N Moles. Underlining where it occurs is for editorial emphasis] Esso produced "World Cup Coins" which they offered as "free gifts" to purchasers of their petrol. The issue was whether these coins were "produced ... for sale" under the Purchase Tax Act 1963 (UK), in which case Esso would be liable to pay some tax on them. The coins were of insignificant intrinsic value, but millions had been produced and the tax bill would be hundreds of thousands of pounds. Held
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Viscount Dilhorne: Esso are engaged in business, and are supplying these coins in order to promote the sale of their petrol. But it does not necessarily follow that there was any intention on their part they should enter legally binding contracts with respect to the coins. Nor is there any reason to impute to the motorist an intention to enter into a legally binding contract for the supply of a coin. If it were found that Esso, the dealer, and the customer intended to create a contract, it would seem to preclude the possibility of any dealer ever offering a free gift, however negligible the value. A common intention to enter legal relations would be found more easily if the item were something of value to the purchaser. But here the coins were of little intrinsic value. If there were any contract relating to the coins, the consideration for it would be not the payment of money, but the entry into a contract to buy petrol. Lord Simon of Glaisdale: In the clearly commercial context in which the offer of the coins was made, it cannot be accepted that Esso did not intend to create legal relations. It is undesirable to allow commercial operators in such situations to say that their offer was a mere puff. While the coins may have little intrinsic value, Esso clearly anticipated that they would have value to their customers, otherwise the promotion would not be worthwhile. What sort of transaction was entered? It appears to be a collateral contract, the consideration for which was entering the contract for the purchase of the petrol. Lord Wilberforce agreed with Lord Simon of Glaisdale. Lord Fraser of Tullybelton (dissenting): The matter of decisive importance is the form of the promotional posters. They correlate one coin with the purchase of every four gallons of petrol. When a customer purchases four gallons of petrol they are also entitled to receive a coin. Just as if a baker offers an additional bun with each dozen purchased, the customer is actually purchasing the extra bun, and in this case, the coin. The factors arguing against this conclusion are the use of words such as "free" and "gift", and the intrinsically negligible value of the coins. Nevertheless, it cannot be said that once a customer purchases petrol that Esso could say that they have no right to the coin. Lord Russell of Killowen: Considered that in this case, in view of the intrinsically minimal value of the coins, there was no intention to create legal relations. This does not give carte blanche to other to renege on "free offers" where the items are of any value. Supposing that there was a contractual obligation for the dealer to give the customer a coin, the further question arises whether this arises out of a contract of sale for money. Ignoring words such as "gift" and "free" the posters are saying "if you buy four gallons of petrol you will be entitled to a coin". This is not a sale of the coins for money. From: http://netk.net.au/Contract/Esso.asp The materials on this site are the copyright of Networked Knowledge.
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THE SOURCES OF ANGLO-SAXON LAW: CHAPTER EIGHT
THE JUDICIARY
1. THECONSTITUTIONALROLEOFTHEJUDICIARY A key idea in the concept of the Rule of Law is that people should be governed by laws and not by other people. Judges play a significant part in that respect. Ideally, they are expected to deliver judgment in a completely impartial manner through a strict application of the law, without allowing their personal preference, or fear or favour of any of the parties to the action, to affect their decisioninanyway. This desire for impartiality is reflected in the constitutional position of the judges. In line with Montesquieus classical exposition of the separation of powers, the judiciary is detached from the executiveandlegislativearmsoftheStateandoperatesindependentlyofthem. Before the English Revolution of the 17th century that pitted Parliament against the Monarch, judges held office at the Kings pleasure. This meant that they could be dismissed whenever the Monarch deemed it convenient. It also highlighted the lack of independence of the law from the Stateintheform,andperson,oftheMonarch. With the victory of Parliament in 168889 and the establishment of a State based on popular sovereignty and limited in its powers, the independence of the judges was confirmed by the Act of Settlement of 1701. The centrality of the independence of judges and the legal system from direct controlorinterferencefromtheStatewasunderlinedinthewritingsoftheEnglishphilosopherJohn Locke, who saw it as one of the essential reasons for, and justifications of, the Social Contract on whichsocietyoughttobebased. Soastobuttresstheindependenceofthejudiciaryandremovethejudgesfromthedangerofbeing subjectedtopoliticalpressure,ithasbeenmadeparticularlyhardtoremoveseniorjudgesoncethey have been appointed. Their independence of thought and opinion is also protected by the doctrine ofjudicialimmunity.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET It should be noted that, until the Constitutional Reform Act of 2005, the Lord Chancellor held an anomalous position regarding the principle of separation of powers in the contemporary State. Indeed, he used to play a key role in each of the three branches of the State. The Lord Chancellor was the most senior judge in the English court structure, sitting as he did in the House of Lords as a courtofjustice.Atthesametime,theLCwasapoliticalappointee,whosepoliticalfatewaslinkedto that of the Prime Minister of the day: he was a Cabinet minister in charge of the Ministry of Justice. Furthermore, the Lord Chancellor was also the Speaker of the House of Lords as the upper chamber of Parliament. A last thing singled the Lord Chancellor out: he could be dismissed, or talked into resigning,bythePrimeMinisterandmightceasetoholdofficeontheelectionofanewgovernment, as happened to Lord Mackay, who had been appointed by John Major, the Conservative Prime Ministerbetween1990and1997,andlosthisofficetoLordIrvine,TonyBlairschoiceinthewakeof the New Labour victory of June 1997. The anomaly concerning the Lord Chancellors position has been partly rectified after the passing of the Constitutional Reform Act, which we shall now study briefly. TheConstitutionalReformActof2005 As the 21st century was dawning, the Chancellors combination of executive, legislative and judicial functions began to be viewed as untenable and also inconsistent with the requirements of the EuropeanConventiononHumanRights(=ECHR)incorporatedintoEnglishlawin1998. At the same time, the proposal made by the Blair government to purely abolish the office, was forcefully opposed by those who considered that it was necessary for the judiciary to have a spokesmaninCabinetandthosethatcouldnotacceptsuchasuddenandbrutalabolitionofsuchan ancientoffice. In 2003, Tony Blair appointed a longtime friend, Charles Falconer (Falconer became a flatmate of Tony Blair when they were both young barristers in London in the early 1970s and was made a life peer as Baron Falconer of Thoroton on Blair's recommendation in 1997), to be LC and Secretary of State for Constitutional Affairs. The Prime Minister also announced his intention to put the Lord Chancellorshiponthescrapheapandtomakeothersweepingconstitutionalchanges. The government introduced the Constitutional Reform Bill in the House of Lords in February 2004. Its main provisions were the abolition of the office of LC and the transfer of his functions to other officials: the legislative functions to a Speaker of the House of Lords, the executive ones to the Secretary of State for Constitutional Affairs, and the judicial functions to the Lord Chief justice, i.e. thePresidentoftheCriminalDivisionoftheCourtofAppeal.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET On July 13, 2004, after a protracted battle that lasted for months, the House of Lords amended the Constitutional Reform Bill so that the title of Lord Chancellor would be retained, but the Governments other proposed reforms were not changed. In November 2004, the government introduced an amendment in the Lords, whereby the offices of Secretary of State and LC were merged. The Constitutional Reform Act received royal assent on March 24th, 2005 and the major transfers of the Lord Chancellors historical functions to others (such as the Lord Chief Justice and LordSpeaker)wasdulycompletedbymid2006. ThenewSupremecourtfortheUnitedKingdom The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom. There have, in recent years, been mounting calls for the creation of a new freestanding Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. At present the most senior judges, the Lords of Appeal in Ordinary, or Law Lords, as they are often called, sit in the House of Lords. There are twelve of them. The House is the highest court in the land - the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below. As members of the House of Lords, this means that they not only sit judicially, but are also able to become involved in the debate and subsequent enactment of Government legislation (although, in practice, they rarely do so). Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process. It is important to be aware that the new Supreme Court will be a United Kingdom body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales. The new Supreme Court is scheduled to be open for business in October 2009. 2. JUDICIALOFFICES To begin with, let us just insist on the fact that the Lord Chancellor, or formally the Lord High Chancellor of Great Britain, is no longer the highest judge in the realm since the passing of the ConstitutionalReformActof2005. Themostseniorjudgesintherealmandthecourtsinwhichtheyoperateareasfollows: The holder of this position has become the highestranking judge in the U.K. since the enactment of the 2005 law. The Lord Chief Justice is the President of the Criminal Division of the Court of Appeal LordChiefJustice.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET and is formally the senior judge in the Queens Bench Division of the High Court. The present incumbenthasbeen,sinceOctober1st,2008,LordJudge.HeisreferredtoasLordJudgeCJ. TheholderofthisofficeisPresidentoftheCivilDivisionoftheCourtofAppeal.Atpresent,theoffice holderisSirAnthonyClarke,whotookoverfromLordPhillipsinOctober2005. President of the Queen's Bench Division of the High Court MasteroftheRolls.
The current President is Sir Anthony May. Until 2005, the Lord Chief Justice was also the President of the Queen's Bench, but the roles were separated under the provisions of the Constitutional Reform Act 2005. This person is the most senior judge in the Family Division and is responsible for organising its operation.ThecurrentPresidenthasbeenSirMarkPottersinceApril2005. Before the Constitutional Reform Act 2005, the office was known as that of the ViceChancellor. He is theheadof theChancery Divisionof theHigh Courtandinchargeof organisingitsoperation.The currentincumbenthasbeenRobertAndrewMorrittsinceJuly2000. TheCourtsandLegalServicesAct(CLSA)1990recognisedtheexistingsystemandrequiredthateach ofthe sixseparateCrown Courtcircuits(circuit judgesvisited 58 towns andcities as of 2006) should operate under the administration of two Presiding Judges appointed from the High Court. In addition,aSeniorPresidingJudgeisappointedfromtheLordsJusticesofAppeal. 3. JUDICIALHIERARCHY In addition to the specific judicial offices we have just surveyed, the various judges operating at the variouslevelsofthejudicialhierarchyarereferredtointhefollowingway: SeniorPresidingJudgeforEnglandandWales. ChancelloroftheHighCourt. PresidentoftheFamilyDivisionoftheHighCourt.
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LordsofAppealinOrdinary/SupremeCourtJustices
These are the people who are normally referred to as the Law Lords for the mere reason that they sit in the House of Lords as a court of justice and they are ennobled when they are appointed to their positions. There can be between seven and twelve Law Lords, although the maximum number may be changed by Order in Council. In 2004, Brenda Hale became the first woman to have been madeaLawLordasBaronessHaleofRichmond,afterhavingsatforfiveyearsintheCourtofAppeal asLadyJusticeHale. Those 38 judges (as of October 2008) make up the majority of the judges in the Court of Appeal, although the other specific officeholders considered previously may also sit in that court, as may HighCourtjudgeswhenrequestedtodoso. Senior judgeships having been a male preserve for long, High Court judges all used to be known as Lords Justices, even if they were women, because the Supreme Court Act 1981 had not considered the possibility of a woman holding such a high judicial office. So Elizabeth ButlerSloss, the first womantositonthatcourthadtoarguehercasesothattherulesbechangedandshebereferredto asLadyJusticeButlerSloss. Since ButlerSloss LJ was appointed, in 1988, four other women have followed suit, namely: Brenda Hale (1999), Mary Arden 2000), Janet Smith (2002) and Heather Hallett (2005). On appointment, each of them was made Dame Commander of the order of the British Empire (DEB) and is referred toasDamesoandso.Forinstance,LadyJusticeArdenisalsoknownasDameMaryArdenandstyled RtHon.(ShortforRightHonourable)LadyJusticeArden. These judges are sometimes referred to as puisne (pronounced pewnee) judges, in reference to theirjuniorstatusinrelationtothoseofsuperiorstatusintheSupremeCourt,intheoldsenseofthe term. In 2008, there were 110 puisne judges appointed to one of the three divisions of the Court as follows: 18intheChanceryDivision, 73intheQueensBenchDivisionand HighCourtJudges. LordsJusticesofAppeal.
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SourceduDroitanglosaxon 19intheFamilyDivision.
(Statistics can be consulted on one of the governments websites, namely www.judiciary.gov.uk/keyfacts/statistics/monthly.htm). Judges are appointed to one of the three divisions depending on the amount of work needing to be done by that division, although they may be required to hear cases in different divisions and may be transferred from one of the division to another by the LC. Others, such as former High Court and Court of Appeal judges, or former circuit court judges, or recorders may be requested to sit as judges in the High Court. Moreover, it is possible for the Lord Chancellor to appoint temporary deputy judges to assist the flow of cases in theHighCourt,asrequiredbypressureofbusiness.HighCourtjudgesarereferredtobytheirnames followedbytheinitialJ. Even if there is only one Crown Court, it is divided into six distinct circuits (namely: South Eastern, Midland, North Eastern, Western, Northern, and Wales) which are serviced by some 653 judges (as of April 2008) who also sit as county court judges to hear civil cases. Such judges are addressed as YourHonour. of whom there are about twice as many as circuit judges (1305 in April 2008), are parttimers who assist circuit judges in hearing both civil and criminal cases. Over ninety per cent of them (1196 out of1305)arebarristersandtheremaining109aresolicitors. There is no real translation of the office into French; the Harraps/Dallozs Law Dictionary renders thetermbyavocatnommlafunctiondejugetempspartiel. Those 438 judges (as of April 2008), previously called registrars (= jugeadjoint ou greffier), are appointedonaparttimebasistohearcivilcasesinthecountycourt. Magistrates.Theirsituationwillbestudiedlaterinthesamechapter. Districtjudges. Recorders, Circuitjudges.
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SourceduDroitanglosaxon 4. LEGALOFFICES
Inadditiontothesejudicialpositions,twolegalofficesshouldbenoted: like the Lord Chancellor, is a political appointee whose role is to act as the legal adviser to the government. The AttorneyGeneral alone has the power to prosecute in certain circumstances and appears for the Crown in important cases. The Attorney General has supervisory powers over the prosecution of criminal offences, but is not personally involved with prosecutions; criminal prosecutions are the responsibility of the Crown Prosecution Service, headed by the Director of Public Prosecutions. The Attorney General may appeal cases to the higher courts where, although the particular case is settled, there may be a point of law of public importance at issue. The current incumbent is Dominic Grieve QC MP, appointed by Prime Minister David Cameron on May 12th, 2010. is the head of the national independent Crown Prosecution Service established under the Prosecution of Offences Act 1985 to oversee the prosecution of criminal offences. Keir Starmer, QC, is a barrister. He became the fourteenth Director of Public Prosecutions and the sixth head of the Crown Prosecution Service on 1 November 2008. TheDirectorofPublicProsecutions TheAttorneyGeneral,
5. THE APPOINTMENT OF JUDGES

In the first of his Hamlyn lectures of 1993, the then Lord Chancellor, Lord Mackay, declared that the mostimportantqualitiesrequiredtobemadeajudgeare: good sound judgement based upon knowledge of the law, a willingness to study all sides of an argument with an acceptable degree of openness, and an ability to reach a firm conclusion and to articulateclearlythereasonsfortheconclusion. Though the main qualification for judicial office was experience of advocacy, Lord Mackay recognised that some people who have not practised advocacy may well have these necessary qualities, as was reflected in the appointment of academic and member of the Law Commission, Professor Brenda Hoggett, to the High Court in December 1993. Prof. Hoggett, who sat as Mrs Justice Hale, was the first High Court judge not to have had a career as a practising barrister, althoughshequalifiedasabarristerin1969andwasmadeaQCin1989.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET The CLSA 1990 introduced major changes into the qualifications required for filling the positions of judges. Judicial appointment is still essentially dependent upon the rights of audience in the higher courts.However,atthesametimeastheCLSA1990actuallydemolishedthemonopolyoftheBarto rights of audience in such courts, it opened up the possibility of achieving judicial office to legal practitionersotherthanbarristers. Qualifications Themainqualificationsforappointmentareasfollows: theholdingofhighjudicialoffice(likethepositionsmentionedpreviouslyinPartTwo)fortwoyears; possessionofa15yearSupremecourtqualificationundertheCLSA1990. theholdingofapostasHighCourtjudge; possessionofa10yearHighCourtqualificationundertheCLSA1990. theholdingofapostasacircuitcourtjudgefortwoyears; possessionofa10yearHighCourtqualificationundertheCLSA1990. theholdingofapostasrecorder; possession of either a 10year Crown Court qualification or a 10year county court qualification undertheCLSA1990; the holding of certain offices, such as district judge, Social Security Commissioner, chairman of an employmenttribunal,stipendiarymagistrateforthreeyears. Circuitjudge HighCourtjudge LordJusticeofAppeal LordofAppealinOrdinary
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SourceduDroitanglosaxon Recorders.
Candidatesmustpossessa10yearCrownCourtorcountycourtqualificationundertheCLSA1990. ApplicantsmusthaveasevenyeargeneralqualificationundertheCLSA1990. Theselectionofjudges We have so far concentrated on the specific requirements for those wishing to be judges. However, a more general question remains to be seen; that of the general process whereby people are consideredsuitableandselectedforjudicialoffice. In theory, all judicial appointments remain the Crowns preserve. The Crown, however, is guided, if not actually dictated to, regarding the appointments it makes, by the government of the day. Thus, as has been seen previously, the Lord Chancellor and the AttorneyGeneral are direct political appointments. The Prime Minister also advises the Crown on the appointment of senior judicial officeholders, the Law Lords and Appeal Court judges. Such apparent scope for patronage in the handsofthePMhasbeencastigated. Likewise, judges at High Court and Circuit Bench levels are appointed by the Crown on the advice of the Lord Chancellor and the Lord Chancellor personally appoints District judges, lay magistrates and the members of some tribunals. This system has also been the butt of criticism, the question being raisedastohowtheChancelloractuallyreacheshisdecisiontorecommendorappointindividualsto judicial positions. It is accepted that the LCs recommendations are made on the basis of the opinionsoftheexistingjudiciaryconcerningthesuitabilityofthepotentialcandidates. Although the Lord Chancellors department publishes a guidance booklet entitled Judicial Appointments, the problem, or at least the suspicion, shared by both the Bar and the Law Society, with the system is reflected in the widespread belief that it is oversecretive and leads to a highly conservative appointment policy, with judges, perhaps not unnaturally, favouring those candidates who have not been troublesome in their previous cases and who have shown themselves to share theviewsandapproachesoftheexistingofficeholders. Districtjudges.
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Onemustnotethatprogresshasbeen made,overthepastdecade,toaddressthematterofgender and race imbalance among the judicial body. For instance, in Principles of the English Legal System (3rdedition,CavendishPublishingLtd,1997),SlapperandKellyclaimed: Currently,of512circuitjudges,29arewomen,threeareAsian,andnoneareblack.(p.128) Ten years later, the number of circuit judges has risen to 641, according to the statistics supplied by Her Majestys government on www.judiciary.gov.uk/keyfacts/statistics, and there are now 73 women judges on the circuit, i.e. 11.39 per cent of the staffers (compared with 5.66% in 1997). The number of Asian judges has doubled (six are in post today) and there are now three Black or Black Britishjudges(tousetheadministrativecategorisation)whentherewerenonebackin1997. 6. THETRAININGOFTHEJUDICIARY The training of judges in the United Kingdom is almost minimal, especially when considered in the light of the continental practice where being a judge, rather than practising as an advocate, is a specificandearlycareerchoicewhichleadstospecialistandextensivetraining. Assistantrecordersarerequiredtoattendseminarsonprocedureandsentencingbeforetheycansit on their own in the Crown Court. Later training takes the form of further, intermittent seminars focusingmostlyonsentencing. The topic of judicial training raises the related question of the general competence of judges to decide particular cases when they may have been appointed to courts having jurisdictions in areas wheretheyhavehadnopreviouspracticalexperienceandverylittleknowledge.Suchappointments are quite common, but the practice has a deleterious effect, which was highlighted by P.J. Richardson in the Preface to the 1995 edition of Archbold, the leading work on criminal procedure, inwhichRichardsonclaimed: Someofthosewhosithearingcriminalappealshavelittleornopracticalexperienceofcriminallaw. [Consequently] the judgements get longer; authorities of apparent relevance are not cited or are overlooked. Whatisneeded,Richardsongoeson,is
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET a nucleus of judges with experience of practice in the criminal courts and a common understanding of the principles of criminal liability, the rules of procedure and evidence and the considerations relevanttosentencingdiscretion. 7. THEREMOVALOFJUDGES JudgesoftheHouseofLords,theCourtofAppealandtheHighCourtholdtheirofficeduring good behaviour, subject to the proviso that they can be removed by the Crown on the presentation of an addressbyboth Housesof parliament.Actually,this procedurehas neverbeen usedregarding anEnglishjudge,althoughitwasonceusedin1830toremoveanIrishjudgewhowasfoundguiltyof misappropriatingfunds. Judges belowtheleveloftheHigh Courtdonotsharethe samedegreeofjob security astheir more senior colleagues, and can be removed, on grounds of misbehaviour or incapacity, by the action of the Lord Chancellor who does not require the sanction of the Parliament. As yet, the only judge to have been removed for misbehaviour remains the circuit judge who, in 1983, was found guilty of smugglingcigarettesandalcohol. Stipendiary magistrates are subject to removal by the Crown on the recommendation of the LC and lay magistrates are subject to removal by the LC without cause or explanation. The statutory retirementageforjudgesis70. 8. JUDICIALIMMUNITYFROMSUIT A fundamental measure to ensure the independence of the judiciary is the rule that they cannot be suedinrelationtothingssaidanddoneintheirjudicialcapacityingoodfaith. The effect of this may be seen in Sirros v Moore (1975), in which a judge wrongly ordered someones detention. It was subsequently held by the Court of Appeal that although the detention had been unlawful, no action could be taken against the judge as he had acted in good faith in his judicialcapacity. Although some judges may occasionally be accused of abusing this privilege, it is nonetheless essential if judges are to operate as independent representatives of the law, for it is unlikely that judges would be able to express their honest opinions of the law and the situations in which it is beingapplied,iftheyweresubjecttolawsuitsfromdisgruntled(=resentful)parties. 82
Before 1991, magistrates could be liable for damages for actions done in excess of their actual authority,buttheCLSA1990extendedtheexistingimmunityfromthesuperiorcourtstotheinferior courts.Therefore,magistratesnowenjoythesameimmunityasotherjudges. It should also be stated that this immunity during court proceedings also extends as far as lawyers andwitnesses,andofcoursejurors;althoughthecontrolofperjury(=fauxtmoignage,parjure)and contempt of court (=outrage magistrat) are still available to control what is said and done in the courseofproceedings. Related to, although distinct from, the principle of immunity from suit is the convention that individual judges should not be subject to criticism in parliamentary debates, unless subject to an addressfortheirremoval:legalprinciplesandthelawingeneralcanbecriticisedbutnotjudges. 9. MAGISTRATES We have so far focused our attention on the professional and legally qualified judges. There are, however, some 30,000 unpaid parttime lay magistrates (29,419 as of April 2008) operating within some 700 magistrates courts in England and Wales. These magistrates are empowered to hear and decideawiderangeoflegalmattersandtheamountandimportanceoftheworktheydoshouldnot beunderestimated:97%ofallcriminalcasesaredealtwithbythemagistratescourts. Powers Magistrates courts have wideranging powers in relation to criminal procedure and civil procedure aswell. Criminallaw Magistratesareempoweredtotrysummarycases,thatiscaseswhicharetriablewithoutajury(voc: summary trial=procs sommaire; procs sans recourir la formation dun jury, Dahls Law Dictionary,p.811).Additionally,however,theymaydealwithcasestriableeitherway,thatiscases which can either be tried summarily by the magistrates, or which can be tried on indictment (= inculpation)beforeajuryintheCrownCourt.
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In relation to summary offences, the maximum prison sentence magistrates can impose is six months, even in the case of multiple offences (Magistrates Courts Act, 1980). The maximum fine that can be imposed for a summary offence is 1,000 under the Criminal Justice Act (CJA) 1991. Magistrates can also impose alternative sentences, such as community service orders or probation orders(=ordonnancede miselpreuve).Theycanalsodischargeoffenderseitherconditionallyor absolutely. Regarding offences triable either way, magistrates courts have increased sentencing powers. In thesecircumstances, although themaximumprisonsentencethatcanbe awarded is still sixmonths per single offence, they may, in cases where more than one offence is involved, impose consecutive prisonsentencesuptoamaximumof12months.Theymayalsoimposeamaximumfineof5,000. In addition to the foregoing sentences, magistrates can issue compensation orders. Such orders are not used as a means of punishing the offender but as a way of compensating the victims without them having to sue the offender in the civil courts. Compensation orders can, however, be issued without the imposition of any other sentence. The maximum payment under such an order is 5,000. Civillaw On the civil side, magistrates mostly deal with family law cases, especially under the Children Act 1989 and the Domestic Proceedings and Magistrates Courts Act 1978. In such cases, they sit as a familyproceedingcourt. They also are vested with the power to collect such civil debts as water, gas, electricity charges and the council tax, that is the replacement of the former community charge, aka the poll tax. They also sitasalicensingcourtandconsiderapplicationsfortheprovisionofliquorlicences. Stipendiarymagistrates Stipendiary magistrates are legally qualified, being required, under the Justices of the Peace Act (JPA) 1979, to be barristers or solicitors of at least seven years standing. There are about 140 stipendiary magistrates sitting in London and other urban centres. The advantage of the stipendiary magistrates over the lay ones, apart from the obvious fact that they are legally qualified, is they are fulltimers and they sit alone. This allows for a greater volume of cases being heard. But some claim that the downside is the corresponding professionalisation of the judicial process and the loss in
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET terms of the democratising effect of the lay magistracy. However, given the apparent lack of confidence that exists in the lay magistracy, perhaps increased professionalisation would not be a badthing,exceptfinanciallyspeakingofcourse. Qualifications Thereisnorequirementforlaymagistratestohaveanylegalqualification.Onbeingacceptedonthe bench, however, magistrates undertake a yearlong training/induction course to prepare them for, and in, the proper exercise of the duties of their office. This training course is designed to give new magistratesanunderstandingofthefunctionsandpowersofthebenchgenerally,andtolocatethat understanding within the context of national practice, particularly regarding sentencing. Thereafter, magistrates have to attend training courses every three years. The training does not aim to provide themagistratewithacompletegraspofsubstantivelawandlegalpractice.Actually,toexpectsucha thing would be to misunderstand both the role of the magistrate and the division of responsibility within the magistrates courts. Every bench of magistrates has a legally qualified justices clerk whosedutyitistoadvisethebenchonquestionsoflaw,practiceandprocedure,leavingmagistrates thedutytodecideuponmattersoffact. Appointment Under the JPA 1979 magistrates are appointed, and indeed removed from office, by the Lord ChancelloronbehalfoftheQueenafterconsultationwithlocaladvisorycommittees. In the previously quoted Hamlyn lecture of 1993, Lord Mackay claimed that magistrates should possess qualities of fairness, a judicial temperament and a willingness to hear both sides of a cases andheaddedthat,inpursuitofthosequalities,hetriedto do [his] best to secure people from all walks of life and from a broad mix of political affiliation, representativeinageneralwayofthecommunitywithinwhichtheyarecalledtodispensejustice. The Employment Protection (Consolidation) Act 1978 provided that employers would be obliged to release their employees for such time as is reasonable, to permit them to serve as magistrates. In the event of an employer refusing to sanction absence from work to perform magistrates duties, the employee can take the matter before an employment tribunal. Understandably, there is no statutory requirement for the employers to pay their employees in their absence, but magistrates areentitledtoclaimexpensesforlossofearningsintheexerciseoftheiroffice.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Proposals for office tend to be generated by local interest groups such as political parties, trade unions, chambers of commerce and such like bodies and this limited constituency may give rise to the view that the magistracy only represents the attitudes of a limited section of society. In todays society, it is essential that the magistrates courts should reflect the composition of the wider society. Thatgoalisnolongerelusivetoday;as at30thOctober,2003,thegenderdistributionofthe24,703 magistrates was as follows: 12,462 male judges (50.45%) and 12,241 female judges (49.55%).Therefore, gender equality has almost been achieved on the magistrates bench. Of those 24,703 magistrates, 1524 were ethnic minority judges, that is to say 6.2 per cent of the total. The remaining 93.8% were white. This racial distribution highlights the underrepresentation of non whites, but it also underscores the progress that has been made in recent years in the U.K., regardingthepromotionofethnicminorities.
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THESOURCESOFANGLOSAXONLAW Chapter9:EQUITY
5.5. I. The Early History of Equity

By Bill Long 12/10/04
This essay will not do justice to equity, but will indicate a few features of its early history in order to sharpen issues for future consideration. I will only take equity until about 1615 because separate essays will treat the quarrels between law and equity in 1615-1616. Basic Principles For most of the history of the common law, there were two "sets" of courts: the courts of law and of equity. These were merged in the 19th century, but equity had a vigorous separate existence for nearly 500 years. Before about 1400, however, the functions of equity (to dispense "mercy," or to soften the rigors of law by applying principles of "fairness" to a case) were incorporated into the three common law courts: King's Bench, Common Pleas and Exchequer. The Chancellor, who would later be the "judge" in the court of equity, was the King's secretary, and he ran the administrative apparatus of the state. Chancery was the office from which the common law writs were issued. When we mention writs, we are at the essence of the common law. Instead of law as we conceive of it in 2004, where substance and procedure are separable and substance is seen to be the more "substantial" part of law, the common law tradition at first did not distinguish the two. As prominent a scholar as Maine (writing in the 1860s) could say that for the common law "substance is secreted in the interstices of procedure." FW Maitland, the most significant historian of the common law of a century ago, gave a series of lectures on the common law forms of action, and his point was similar, that the common law was generated by the forms of action, and that forms of action combined substance and procedure. A writ, obtained from chancery, structured according to a fixed form, initiated a cause of action. The Rigidity of the Common Law As the writs developed during the 13th and 14th centuries, then, most scholars talk about the developing rigidity in the common law courts. In other words, if your cause of action didn't fit specifically into one of the approved writs, you had no remedy for a wrong. In addition, if you by chance secured the improper writ for the facts of your case, you could be nonsuited. Cubbyhole justice, you could call it, but during the reigns of Edward I (1272-1307) and his successors this was apparently the order of the day. I will need to examine this further in other essays. It was as a response to the limited sphere of the common law courts that the Statute of Westminster II in 1285 developed a broader concept of the writ. That statute authorized the office of Chancery to issue writs if they were "in consimili casu" or "in like case" to the forms of action already existing. The text of the statute reads: "And whensoever from henceforth it shall fortune in the Chancery, that in one Case a Writ is found, and in like case falling under like Law, and requiring like Remedy, is found none, the
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Clerks of the Chancery shall agree in making the Writ; or adjourn the Plaintiffs until the next Parliament..." As with everything in life, however, statutes are a "matter of interpretation," and this "in like case" phrase of Westminster II was narrowly construed by Parliament, thus preventing the common law judges from easily expanding the catalogue of remedies. In short, the complaint around 1400 was that the common law was terribly rigid and limited, and that another and separate venue was needed to enforce "mercy" or the "conscience of the King." Hence, a separate equity court developed. Fast Forward until 1600 For most of its first 200 years of separate existence, the court of equity flourished independently of the common law courts. "Justice" could be dispensed in Chancery. The most powerful device available to the court of equity was the injunction--to forbid, or command, someone to do something or refrain from doing something. This power exceeded that of the common law courts, which were only set up to award damages for wrongs already perpetrated. Thus, a kind of complementarity developed between the courts of law and of equity in the 15th and 16th centuries. As legal historian Daniel Coquillette points out, there were four critical differences between law and equity. First, the equitable petition was in the form of a "bill," a rather simple statement of one's problem, rather than in a more formally drafted complaint, to which the other side might demur or reply. Second, the Chancellor had the authority to issue a subpoena to the individual defendant, which commenced an in personam action (in contrast to the in rem character of law). Third, no jury was available in equity. Finally, the Chancellor put the parties under oath and extracted testimony from them (unlike the courts of law, where parties could not testify). The later requirements of interrogatories and answers was the outgrowth of the Chancellor's power to examine parties and witnesses. Troubles Develop Under the Chancellorship of the illustrious Thomas More in the mid-16th century, the cordial relationship between law and equity was at its acme. Yet after his death, a major cause of friction between the two, which had raised its head intermittently before, now broke into the open: Chancery's ability to issue injunctions. It wasn't, however, the ability to issue injunctions in the abstract that angered the law courts; it was Chancery's increasing desire to enjoin actions at law either while they were going or or, especially, before execution on a judgment. Because the Chancellor was supposed to act "on the conscience," he had authority to cancel or enjoin "unconscionable" actions or "sharp practice." A case from 1482, described by Professor David Raack in an article on the history of the injunction before 1700, illustrates this tension. In Russell's Case, the defendant committed a trespass of the plaintiff's goods. Damages were set at 20 pounds, and judgment was awarded to the plaintiff. Before execution on judgment, defendant went to Chancery and got an injunction forbidding execution. After a while, one of the judge's in King's Bench, where the case was heard and adjudged, asked the plaintiff's attorney if he wanted to pray for a judgment, but the attorney was hesitant to do so because he might be imprisoned for disobeying a Chancellor's injunction. The King's Bench judge then said that even if this was the case, the law courts had the authority to release him by habeas corpus. Thus, a judicial ping-pong match, with potentially dramatic and acrimonious consequences, was set up with the rival jurisdictions and courts. Conclusion Hostility broke out sharply between the law and equity courts in 1615-16.
Copyright 2004-2008 William R.Long
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II.THENATUREANDHISTORYOFEQUITY
ThisisanextractfromLawbookCompany'sNutshell:EquitybyTinaCockburn&MelindaShirley (Sydney:LBC,2001). Introduction Thebodyoflawcalledequityisfoundedupontheprinciplesoffairnessandconscience.Its piecemealdevelopmenttookplaceovermanyyearsasadirectresultoftheinjusticesoftencaused byastrictapplicationofthecommonlaw.Asaresult,equitableprincipleshavealsodevelopedina piecemealandresponsiveway. Theprinciplesofequityarefoundedontheconceptof'unconscionability'thatis,whereanactor omissionisconsideredtobecontrarytogoodconscience.Inthosecircumstancesequitywilloften stepinandgrantrelieftoapartywhosetrusthasbeenbreachedorwhosedisadvantagehasbeen usedtotheadvantageofanother. Equitableremediesarebothflexibleandspecifictothecircumstancesofeachcaseandthegranting ofequitablereliefisalwaysdiscretionary.Anunderstandingofthehistoryanddevelopmentof equityisfundamentaltoanunderstandingofthisareaofthelaw. Medievalperiod Inthemedievalperiod,thedoctrineofprecedentrequiredthecommonlawtobeappliedstrictly anduniformly.Commonlawproceedingswerecommencedbythewritwhichwasonlyavailablefor specifiedcausesofaction,sothatifaplaintiffcouldnotbringhisorheractionwithinthose categories,thecommonlawcourtscouldnotdealwithit.Duetocorruptionwithinthecourtsystem andthenatureofthecommonlaw,manydecisionsofthecommonlawcourtswereconsideredto beharshandunjust. DissatisfiedlitigantsbeganpetitioningtheKingforreliefandleniency.Asthenumberofpetitions grew,theKingdelegatedthatreviewfunctiontotheLordChancelloranditwasfromthatfunction thattheCourtofChancerywasestablished. Thefirstchancellorswereecclesiasticswithnoformallegaltrainingwhosedecisionswerelargely shapedbyquestionsofconscienceandfairness.ThedecisionsissuedbytheCourtofChanceryinits formativestageswereframedaccordingtochurchlaw,ratherthanthecommonlawandasaresult thisareaofthelawwasnotdevelopeduponanycleardoctrinalfoundations. Duringthe16thcenturythecharacteroftheCourtofChancerychangedwiththeappointmentofa lawyer,SirThomasMooreasChancellor.Fromthatpointintimeallfuturechancellorswerelawyers, reportsofproceedingswerekeptandequitabledoctrinesbegantodevelop.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Conflictbetweencommonlawandequity Thetwocourtsystemsweresooninconflictandtherearemanyexamplesofthisconflictasthetwo bodiesoflawwrestledwiththeissueofsupremacy. Thecommoninjunction DissatisfiedlitigantsfromthecommonlawsystemwouldseekrelieffromtheCourtofChancery. Equitywouldthenoftengivereliefbywayofthecommoninjunctionwhichwouldeitherrestrainthe plaintifffromcontinuingwithhisorhercommonlawactionorrestrainthemfromenforcinga commonlawjudgment.Thepenaltyfordisobeyingthecommoninjunctionwasimprisonment. Theresponseofthecommonlawyerstothecommoninjunctionwastoissuewritsofhabeus corpuswhichorderedthereleaseofpeoplewhohadbeenimprisonedfordisobeyingChancery decrees. Theuse Theusewasanembryonicformoftrust.Itwasacreationofequitythatenabledthedivisionofthe legalandbeneficialinterestsinlandandtooktheform:"ToAtotheuseofB".Insuchaconveyance A(thefeoffee)heldthelegaltitleandwastheonlyownerrecognisedbythecommonlaw.B(the cestuiqueuse)hadnorecognisedlegalinterest,butwasrecognisedbyequityashavingtherightto thebenefitofthelandwhichbecameknownasthebeneficialinterest. Theusebecameaneffectivetoolfortheavoidanceoffeudaltaxesandin1535theStatuteofUses waspassedinanattempttonegateit.ThatActexecutedorabolishedtheuseanddeemedthe beneficialownertoholdthelegalinterest. Inresponse,equitylawyerscreatedtheuseuponausewhichtooktheform:"ToAtotheuseofBto theuseofC".TheStatuteofUsesonlyexecutedthefirstusewhichleftBwiththelegaltitle.Equity thenrecognisedtheobligationonBtoholdthepropertytotheuseofCandsothelegaland beneficialinterestswereagainsuccessfullyseparated. TheEarlofOxford'scase ThegrowingtensionbetweenthetwobodiesoflawculminatedintheEarlofOxford'scasein1615. Inthatcase,CokeCJgavejudgmentinacommonlawactionwhichwasallegedtohavebeen obtainedbyfraud.TheLordChancellor,LordEllesmere,thenissuedacommoninjunctionfromthe CourtofChancery,preventingproceedingstoenforcethecommonlawjudgment. AsthetwocourtsweredeadlockedthematterwasreferredtotheAttorneyGeneral,SirFrancis Bacon,whoupheldtheuseofthecommoninjunctionanddeterminedthatwhenevertherewas conflictbetweenthecommonlawandequity,thatequitywouldprevail. TheJudicatureAct1873 Duringthe17thto19thcenturiesthefundamentalprinciplesofequityweredevelopedandfollowed 93
SourceduDroitanglosaxon CHEYRithy&SergeBASSET inthecourtofchancerybywayofprecedent.Howeverthecommonlawandequitycontinuedtobe administeredbyseparatecourtsandlitigantswhohadcommencedtheirclaiminthewrong jurisdictionwereforcedtostartagainintheother.Thecostandtimeimplicationsofthisdualityled totheenactmentoftheJudicatureAct1873whichfusedtheadministrationofthecommonlawand equity. ThisActabolishedtheoldcourtsystemandreplaceditwithanewHighCourtofJusticewhichwas vestedwithallofthejurisdictionpreviouslyexercisedbytheseparatecourts.Therewasonecodeof procedureforallclaimsandtheascendancyofequityinanysituationofconflictwiththecommon lawwasspecificallypreservedins25. Thefusionfallacy Section25oftheJudicatureActclearlycontemplatedthecontinuedexistenceofseparatebodiesof rulesforthecommonlawandequityalthoughtheiradministrationhadbeenfused.Nevertheless,a seriesofcasesarearguedtobeevidenceofthepropositionthatthebodiesoflawthemselveshad beencombinedsothataftertheJudicatureAct,decisionsthatwouldhavebeenimpossibleunder theseparatesystemsoflawwerenowpossible.Thisisreferredtobyacademicsasthefusionfallacy, andaseriesofcasesisusedasexamplesofthecourtsimplementingthisfallacyandcombining equitableandcommonlawrightsinappropriately:RedgravevHurd(1881)20Ch;SeagervCopydex Ltd[1967]2AllER;WalshvLonsdalenbsp;(1882)21Ch. Manyacademicsarguethatthedevelopmentofthefusionfallacyhasharmedequity,however,the modernrealityisthatthedualadministrationhasledtoaconvergenceofthetwobodiesoflawin relationtoanumberofdoctrines(see:Meagher,GummowandLehane,Equity:Doctrinesand Remedies,3rded,Butt,1992,para259). TinaCockburn BComLLB(Hons),LLM(QUT) LecturerinLaw QueenslandUniversityofTechnology MelindaShirley BALLB(Hons),LLM(Bond) LecturerinLaw QueenslandUniversityofTechnology 2001
http://www.findlaw.com.au/articles/default.asp?task=read&id=568&site=GN
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APPENDIX ONE
THE COURT OF EQUITY IN THE STATE OF DELAWARE

Chancery or equity cases were tried by justices of the law courts, in Delaware's early colonial period. Under the Duke of York, the town or county courts were responsible for equity cases. Some cases tried by common law were appealed and tried again in equity by the same court and justices. Under the Duke of York, the governor of New York also exercised equitable power by overturning excessively harsh judgements.1 The judicial system established by William Penn made every court a court of equity. The Provincial Court took appeals and heard all cases in equity not determinable by the county courts.2 In 1701 it was required in equity cases that "the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts, and proper in these parts; with power also to the same justices to force obedience to their decrees in equity by imprisonment or sequestration of lands, as the case may require."3 "An act for the establishing courts of law and equity within this government" (1726-36) set up a Court of Equity which was held by the justices of the Court of Common Pleas. Court met four times a year at the same times and places as Common Pleas. The prothonotary acted as the register or clerk of the Court of Equity in each county. Any three justices had the power "to hear and decree all such matters and causes of equity as shall come before them." Any matters determinable by common law or matters of fact were not to be tried by the Court of Equity.4 The court had the power to issue subpoenas and other processes needed to force defendants to answer suits; issue "commissions for taking answers and examining witnesses;" and "grant injunctions for staying suits in law, and stopping wastes. . . observing as near as may be, the rules and practice of the High Court of Chancery in Great Britain." The Court of Equity also had the power to serve defendants who had moved out of the county with subpoenas or other processes to bring them back for trial. It could also grant commissions for taking defendants' answers and for examinations of witnesses. Appeals of the Court of Equity decisions were made to the Supreme Court.5 Although the terms Court of Equity and Court of Chancery were used interchangeably in court documents as early as 1702, it was not until 1752-53 that the court was referred to as the Court of Chancery in the Delaware Laws.6 By the law appearing at this time (1752-53), landowners could petition the court to appoint three commissioners to examine witnesses who could verify land boundaries. Depositions that resulted from the examination were returned to the court to be recorded.7 Registers in chancery, the clerks of the Court of Equity, were first mentioned in 1770 in "An Act for regulating and establishing fees."8 Under the 1776 constitution, the justices of the Courts of Common Pleas were given the same power of holding "Inferior Courts of Chancery" as they had previously exercised. The President and Privy Council appointed the registers in chancery. The register could not be a justice of the court but was given the authority to sign all writs issued by the judges and to take recognizances of bail.9 The 1792 constitution introduced major changes in the state's judicial system. The equity jurisdiction that had previously been exercised by the common pleas judges was "separated from the common law
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET jurisdiction and vested in a chancellor" who presided over the new Court of Chancery.10 The Courts of Equity that had been previously exercising chancery jurisdiction remained in operation until October 1793 when the new Court of Chancery began functioning.11 From:http://archives.delaware.gov/collections/aghist/2816.shtml
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THESOURCESOFANGLOSAXONLAW: CHAPTERTEN
TheSourcesofECLaw&theMajorInstitutionsoftheEU
For Britain, membership of what is now called the European Union dates back to 1973. This has significantly affected the English legal system, because EC law, also called Community Law, takes precedenceovernationallawandcaneventakeprecedenceoverhomemadelegislation.Notonlyis some of the law affecting Britons created by European institutions of the European Community, but italsoinvolvesBritishpeopleinadifferentwayofthinking. Thefocusofthischapterwillbetwofold: a) asurveyofthesourcesofCommunityLaw;and b) astudyofEUinstitutionsandtheirgrowinginfluenceonlawmakinginGB.
ThesourcesofCommunityLaw
TheingredientsofEClaware: theoriginatingandamendingTreatiesoftheCommunity, theActsofthevariousCommunityInstitutions,and thejudgementsoftheCourtofJustice.
1.TheTreaties
The six countries that had created the European Coal and Steel Community in 1951, i.e. France, Germany, Italy, Belgium, the Netherlands and Luxembourg, joined forces again in 1957 and signed theTreatyofRome,whichmarksthebirthoftheEEC(EuropeanEconomicCommunity).
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Thenamewasmisleadinganyway,sincewhatthesignatorieshadinmindwasnotonlyaneconomic guild, but a political entity as well. The Court of Justice of the European Communities (ECJ for short) and the Assembly (now rebranded the Parliament) were the only institutions the Six shared until 1965. TreatiesarenotautomaticallypartofEnglishlaw:theyrequiredanActtobepassedbeforetheyare incorporated. For example, in order for Britain to join Europe in 1973, the Westminster Parliament had to pass an Act in 1972, the European Communities Act. This Act incorporated the Treaty provisions(includingfutureones)intoU.K.lawasfromJanuary1st,1973. Section2oftheActstates: (1)Allsuchrights,powers,liabilitiesobligationsandrestrictionsfromtimetotimecreatedorarising byorundertheTreaties,andallsuchremediesandproceduresfromtimetotimeprovidedforbyor under the Treaties, as in accordance with the Treaties are without further enactment to be given legaleffect However,the1972Actalsomakesitclearthatcertain matterscannotautomaticallybecomepartof our law without a specific Act being passed in the U.K., such as provisions that impose taxation and the creation of new criminal offences. In 1986, the MemberStates signed the Single European Act, whosepurposewastoremovetradebarriersby1992andtoprovideaframeworkforpoliticalunity. ThisActwasincorporatedintoU.K.lawbytheEuropeanCommunities(Amendment)Act1986. In the course of time, various Community Treaties have introduced new developments. To quote threelandmarkdatesanddocuments: The Treaty on the European Union (Maastricht 1992) changed the name of the EEC to the EuropeanCommunity,nowtheE.U.(forEuropeanUnion); TheTreatyofAmsterdam(1997)amendedandrenumberedtheEUandECTreaties. TheTreatyofNice(2001)dealtmostly withreformingtheinstitutionsandvotingsystemsso that the Union could function efficiently after its enlargement to 25 MemberStates. It also proclaimed the Charter of Fundamental Rights of the EU. This is based on the fundamental rights established in the European Convention for Human Rights (ECHR) but goes wider in settingoutthecivil,political,economicandsocialrightsofEuropeancitizens.
The Treaty of Nice, the Treaty on the EU and the Treaty of the EC have now been merged into one consolidatedversion,referredtoastheECTreaty.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET Since Maastricht, however, there has been a continuing divergence of aims amongst Member States. On the one hand, there are those who favour a more federal Europe, on the other there are thosewhoseeEuropeasatradezoneheldtogetherbysovereignMemberStates. The aims set out in the original Treaty and its modifying Treaties are usually expressed in general terms and broad principles. Each section of the Treaties is referred to as an Article. For example, under Article 249, the Institutions of the Community have powers to create law under the Treaties; officiallycalledActsoftheInstitutions.TheEUwebsitecontainsdetailsofthehistory,membership, lawsandtreaties(http://europa.eu.int/index_en.htm.).
2.TheActsoftheInstitutions
The power to make law on a daily basis rests with two bodies, called The Council of Ministers of the UnionandTheCommission. Communitylegislationmaytakeoneofthreeforms: Regulationsanddirectivesaresometimesreferredtoassecondarysourcesoflegislation,whichmay be another misconception since the Acts of the institutions are too broad and fundamental to be regardedassecondary.WiththeTreaties,theyformCommunityLegislation. Whatsthedifferencebetweenaregulation,adirectiveandadecision? Aregulationhasageneralapplication.Itappliestoallmemberstatesandindividuals,andisbinding withoutfurtheractionbythememberstates.RegulationsarepublishedintheOfficialJournalofthe Community. A directive also has general application and is binding on memberstates as to the result to be achieved. But each memberstate enjoys discretion regarding the form and method of implementation.Memberstatesareinvariablygiveatimelimitforimplementationandthedirective Regulations, Directives,and Decisions.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET has no effect until it is implemented by the state (unless the time limit for implementation has passed), and the method of implementation may vary from state to state. The general aim must, however,bemetandpublished. A decision is not something of judicial origin in that case, but a binding order issued by an institutionoftheCommunityandaddressedtoanindividualorastate.Manysuchdecisionsconcern competitionlawcases,sincetheCommissionveryoftendeterminesthelegalityofagreements.
3.TheCourtofJusticeoftheEuropeanCommunities(ECJ)
The Court is the supreme authority on the law relating to the European Community. It deals only withtheinterpretationandvalidityofCommunitygeneratedlaw. TheEUsownwebsitesaysofthisbody: ThejoboftheCourtofJusticeistomakesurethatEUlawisinterpretedandappliedinthesameway in all EU countries, thereby ensuring that the law is equal for everyone. It ensures, for example, that national courts do not give different rulings on the same issue. The Court also makes sure that EU memberstates and institutions do what the law requires them to do. The Court is located in Luxembourgandhasonejudgefromeachmembercountry. A key point to note is that it is the national courts and tribunals in each MemberState which apply the interpretations handed down by the Court of Justice. The ECJ does not determine the cases themselves, i.e. makes no finding of fact, nor does it apply the law to the facts; it makes rulings on interpretation, not decisions on who wins or loses the case. As a result, the court is, on most issues, onlyacourtofreference,notacourtofappeal. TheCourtexerciseswidejurisdictionundertheTreaties.Namely: a) itexercisesjudicialcontrolovertheinstitutionsoftheCommunitysuchastheCommission; b) it exercises powers of judicial review on the validity of Community legislation such as RegulationsandDirectives; c) it hears cases brought by Memberstates or Community institutions against other Member StatesregardingviolationsoftheTreaties;
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET d) itdecideswhetherinternationalagreementsenteredintobytheCommunityarecompatible withtheprovisionsoftheTreaties;and e) it gives preliminary rulings under Article 234 when asked to do so by a court of a member stateconcerningtheinterpretationofCommunitylegislation. Since 1989, the ECJ has also acted as an appeal court to a new court, the Court of First Instance, whichdealswith,amongstotherthings,casesrelatingtothestaffoftheCommunity.
TheInstitutions
TherearefivemajorinstitutionsoftheEU: Today, we shall focus on the first four of those institutions and skip a detailed study of the Court of Auditors. TheCounciloftheUnion(composedofthegovernmentsofthememberstates); TheEuropeanCommission(whichisthedrivingforceandexecutivebody); TheCourtofJustice(whichensurescompliancewithEClaw); TheEuropeanParliament(thebodyelectedbythepeoplesoftheMemberStates); The Court of Auditors (which oversees the sound and lawful management of the EU budget).
1. TheCounciloftheUnion
Article 202 of the Treaty states that the Council will ensure that the objectives set out in the Treaty areattained. The Council, which used to be called the Council of Ministers, is based in Brussels and is a political body which has the final say on nearly all legislative matters. The parliaments of memberstates do not create Community legislation; nor is Community legislation subject to approval by the national parliaments. The responsibility of the national parliaments is merely to implement the Regulations, DirectivesandDecisionsoftheCommunity.
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SourceduDroitanglosaxon CHEYRithy&SergeBASSET The Council is effectively the sovereign body of the Community and is made up of one ministerial representative appointed by each memberstate. The representative sent by each state varies according to the issue at stake: for instance, economic issues will draw the Chancellors (=finance ministers) At the highest level, the Heads of State will meet up to four times a year, a minimum of two annual meetings being compulsory. When this takes place, the Council is referred to as the European Council,ormoreinformallyasasummit. The Council does not itself generate legislation. That functions rests with the Commission. The importanceof theCouncil,however, isthat itdecideswhetherproposalsfromthe Commissionshall takeeffect.
2. TheCommission
Based in Brussels, the Commission is the driving force in the legislative process. The head of the CommissioniscalledthePresident.TheCommissionconsistsofnationalsdrawnfromeachMember State one member per state. Commissioners are supposed to act independently of their national governmentsandeachisallocatedaspecifictask.TheCommissionplaysavitalroleinthelegislative processoftheCommunity.Ithasthreeresponsibilities: a) toactasinitiatoroflegislation; b) tosafeguardtheobjectivesoftheTreaty;and c) toactastheCommunitysexecutive.
TheCommissionasinitiatoroflegislation
TheCouncilmayhavethefinalsayonnearlyallmattersoflegislation,butitistheCommissionwhich formulates and proposes that legislation. The Commission is designed to act with the separate and distinctinterestoftheCommunityinmind,regardlessofpettynationalinterests. Originally, the Commissions proposals took effect only if the Council unanimously agreed to them. Since the Single European Act 1986, this is no longer necessary on all issues, a point which indeed reinforcestheCommissionspower.
112
TheCommissionaswatchdog
Under Article 226 of the Treaty, the commission has the power to investigate and take proceedings in the Court of Justice against MemberStates infringing Community law. The Commission will first issue an opinion on the failure by the state. Only if the state does not comply with the opinion will actionbetaken.However,eveniftheactionprovessuccessfulnopunitivemeasureswillbeleviedby the Court of Justice, though it is rare for a state not to comply at this stage. The Commission itself canalsotakeactionagainstindividualsinrelationtobreachesofCommunitycompetitionlaw.
TheCommissionasexecutivearmoftheCommunity
The Commission is largely subject to the political control of the Council. However, the detail of legislationistheworkoftheCommission,andcertainmatterssuchascompetitionlawandtherules governingagricultureareevolvedbytheCommission.
3. TheParliament
Thisbody,adebatingforumindeed,sitsinStrasbourg,thoughmanyofitsactivitiesarecarriedoutin Luxembourg (its administration) and Brussels (its committees), the multilocation nature of the arrangementgeneratinghighrunningcosts. It was originally called the Assembly and its members were drawn from national parliaments. It was not a directly elected body until 1979. It has never been a fullyfledged parliament in the ordinary sense of the term. Instead, it exists mainly to advise and supervise, despite its greater democratic legitimacyduethedirectelectionprocesssince1979. The Council must consult the Parliament on important issues. Failure to consult by the Council can render legislation ineffective. The actions of both the Council and the Commission may be checked by the Parliament in other ways. Furthermore, the Commission must report to the Parliament, and thisincludesansweringquestions. The Parliament may also dismiss the Commission collectively or force individual members of the Commission to resign. This has never happened, though the Parliament did effectively force a mass resignationfollowingthecorruptionscandalof19989.
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Finally, the Parliament can bring an action in the Court of Justice against the Council or Commission forfailuretoactunderArticle232.
4. ThecourtofJusticeoftheEuropeanCommunities
It sits in Luxembourg and predates the Economic Community, since it was created when the European Coal and Steel Community was founded under the Treaty of Paris 1951. The Court is usuallyreferredtoastheEuropeanCourtofJustice,or,asinthe1972Act,astheEuropeanCourt. The Court deals with Community law only; it is not some supreme European court of appeal. It consists of 25 judges and eight characters that have no equivalent in the common law system: the AdvocatesGeneral. The role of the Advocate General is to act as a filter in a case, assisting the Court by delivering independent opinions on cases for the judges to consider. The court may sit as a full court of 25 judges in very exceptional circumstances, or as a Grand Chamber of 13 judges (when a member state or Community institution is involved and so requests, or in a complex case) or in chambers of threeorfivejudges.
HowdoesacasecomebeforetheECJ?
The most common way that a case will come before the ECJ is where a reference is made to the courtbyanationalcourtforapreliminaryrulingunderArticle234oftheECTreaty. ItisthedutyofeachcourtinmemberStatestoapplyCommunitylaw,which,asyoumayremember, takes precedence over national law. The interpretation of EC law, like that of any other law, may be problematicand thenthepowerto produceauthoritative interpretationlieswith theECJ.Whenthe problem of interpretation has been solved by the ECJ, then the domestic court or tribunal will implementthedecision. Thus, a national court or tribunal may ask the ECJ for an authoritative interpretation of a Treaty Article or a Community Directive. It does so by posing questions in the abstract; it does not ask for thesolutiontotheparticularcase.
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AreferencetotheECJis,inthisprocedure,astepintheactionbeforethenationalcourt;itisnotan appeal becausethecaseinthenationalcourthassimplybeenadjournedpendingtheopinionofthe Court of Justice. Thus, although we call it a preliminary ruling this is a little misleading, since the reference to the ECJ is made during the case before the national court, not before the case has started. InterpretativereferencebeforetheECJisaprocedurewhichtakeswelloverayeartobecompleted, before the case is taken up again by the national court. The approach at the Court is different from thecommonlawone. The English system concentrates on the adversarial approach and depends greatly on oral argument.Thecontinentalapproachisfarmoreinquisitorialanddependsonwrittenargument. Indeed, if the case is concerned with a preliminary ruling there are, stricto sensu, no parties involved:thenationalcourtwouldlikeanopinion,notafight.Significantly,notesissuedbytheCourt of Justice ask counsel, if making any oral statement, not to exceed thirty minutes, a time ordinarily spentbymanylawyersinEnglishcourtsjusttointroducetheirargument! AnothersignificantdifferenceisthepresenceoftheAdvocateGeneral,whoisinchargeofproducing a reasoned opinion in each case. The Court is then free to follow that opinion or derogate from it in any way it thinks fit. Sometimes, the ECJ will simply adopt the Advocate Generals opinion unquestioningly. There is only one judgement given by the Court; no dissenting voices are heard. Moreover, that judgement is short and without detailed reasons. One can find the presentation of reasoning which resembles that of an English judge in the opinion delivered by the Advocate General, whether that opinionisacceptedorrejectedbytheCourt.
WhenwillacasegototheECJ?
Article234statesthatwhereaquestionofinterpretationoftheTreaties
115
SourceduDroitanglosaxon CHEYRithy&SergeBASSET israisedbeforeanycourtortribunaloftheMemberState,thatcourtortribunalmay,ifitconsiders that a decision on the question is necessary to enable it to give judgment, request the Court of justicetogivearulingthereon.[theemphasisinboldlettersismine] The range of topics that can be covered by the Court is very extensive and getting wider and wider. Amongthehighprofilecases,wecouldquotetheBosmancaseof1995[caseC415/93UnionRoyale BelgedesSocitsdeFootballAssociation(ASBL)vBosman]. OnmostEClawmatters,anycourtortribunalmayreferacasetotheECJ;thecourtdoesnotrequire permissionfromanyhighercourt.UnderArticle68(introducedbytheAmsterdamTreaty),however, only the final court of appeal (usually that will mean the House of Lords in the English system) may makeareferencetotheECJasregardscertainmatterssuchasthemaintenanceoflawand orderor internal security. Linked with this is the idea that, if a court is dealing with any question of EC law and that court is the final court of appeal, it must refer the point to the ECJ. Therefore, the Lords shouldbeboundtoreferallcaseswhichinvolveaproblemofCommunitylawtotheECJ. There is noclearECJ ruling onwhathappenswhen a litiganteffectively reaches theend oftheroad, for instance when they are refused leave to appeal. If, for example, the Court of Appeal rules on a point concerning EC law and then refuses one of the litigants leave to appeal to the House of Lords, has that Court of Appeal become the final court in the process? In theory, it is not the final court of appeal since the House of Lords stands above it; but the litigant has been refused to gothere. Thus, istheCourtofAppealnowboundtoreferanyquestionontheCommunitylawtotheECJ? TheHouseofLordsandotherfinalappealcourtsdonot,however,referallrelevantcasestotheECJ. ThekeywordinArticle234,appliedtoboththediscretionaryreferencerelatingtoallcourtsandthe mandatory(=compulsory)reference,isnecessary.
Whatdoesnecessarymean?
Article 234 states that the national court need make a reference only where it considers that such a referenceisnecessarytoenableittopassjudgement.Ifthesamequestionwasdecideduponbythe ECJlastweek,forinstance,thenmakingareferencewouldseemuseless. A major point to establish, then, is that the decision to refer lies with the national court alone. This was decided early in the Courts life in Case 6/64 Costa v ENEL [1964] ECR 585. It cannot be restricted by any national system of precedent, nordoes it matter whether the parties request such areferencetobemade.
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InCase283/81CILFITSrlvMinistrodellaSanit[1982]ECR3415,theECJruledthatareferenceisnot necessaryif: a) thequestionofCommunitylawisirrelevant;or b) theprovisionhasalreadybeeninterpretedbythecourtofjustice;or c) thecorrectapplicationisobvious. This is reminiscent of the French Administrative Law doctrine of acte clair, in which there can be no question of needing to interpret a provision if the meaning is clear. The limitation of that doctrine, however,isthatwhatiscleartoonepersonisnotnecessarilycleartoanother.
TheCourtofFirstInstance
It is a specialist court, introduced to alleviate the burden of the ECJ. Its main task is to hear and determineatfirstinstancemostdirectactionsbroughtbyindividualsandtheMemberStates. Thelistofdirectactionsisdefinedas:
Actionsforannulment(againstActsoftheCommunityinstitutions); Actionsforfailuretoact(againstinactionbyECinstitutions); Actionsfordamages(torepairthedamagecausedbyanInstitution); Actions based on an arbitration clause (disputes concerning contracts in public or private lawenteredintobytheCommunitycontainingsuchaclause); Actionsconcerningthecivilservice(disputesbetweentheCommunityanditsemployees).
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SourceduDroitanglosaxon

UniversitRoyaledeDroitetdesSciencesconomiques UniversitLumireLyon2 FilireSpcialede Droit

SOURCE DU DROIT ANGLO-SAXON

1. Im sorry, would you mind repeating that?

LordPhillips 21January 1938 (age73) (President)

KingsCollege, 1October 2009 Cambridge

LordHope (Deputy President)

27June 1938 (age73)

17March 1938 LordWalker (age73)

31January GirtonCollege, 1October 1945 2009 Cambridge (age66)

9April 1937 (age74) 6June 1943 (age68)

Worcester 1October College,Oxford 2009

University 1October 2009 College,Oxford

22 1October February Queen's 2009 UniversityBelfast 1948 (age63)

13May 1943 (age68)

King'sCollege, 1October 13May2018 2009 Cambridge

CHEYRithy&SergeBASSET DeputyHeadofCivil Justice(20032006) LordJusticeofAppeal (20012010) LordJusticeofAppeal (20052011)

31July WadhamCollege, 13April 1943 2010 Oxford (age68)

9May1945 Worcester (age66) College,Oxford

Takingoffice Atadatetobeagreed withthePresidentofthe SupremeCourt

Mandatory Priorsenior Retirement judicialroles 9December 2018 None

Authorizedby HMGovernmentviatheJudicialCommitteeAct1833 Website www.jcpc.gov.uk

SOURCES OF ANGLO-SAXON LAW : CHAPTER THREE THE RULE OF LAW

SOURCES OF ANGLO-SAXON LAW: CHAPTER FOUR

SOURCES OF ANGLO-SAXON LAW: CHAPTER FIVE

THE MAKING OF LEGISLATION

SourceduDroitanglosaxon 5.4. Thecontrolsoverdelegatedlegislation

THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SIX _____________________________________ ___________________

The Denning story

THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SEVEN _____________________________________ ___________________

SourceduDroitanglosaxon distinguish criticise narrow modify limit weaken obliterate ignore

What can happen to a case?

Lord Atkin's statement

THE SOURCES OF ANGLO-SAXON LAW: CHAPTER EIGHT

5. THE APPOINTMENT OF JUDGES

5.5. I. The Early History of Equity

THE COURT OF EQUITY IN THE STATE OF DELAWARE

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THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SIX ___________________ _

THE SOURCES OF ANGLO-SAXON LAW: CHAPTER SEVEN ___________________ _