Sei sulla pagina 1di 49

UNIT 1

1. Courts and Tribunals in the UK

1.1. The Courts System

The Courts System has simply grown, quite often to meet specific needs. Although there
are civil and criminal courts, some courts exercise both criminal jurisdiction and civil
jurisdiction. When studying the courts, we should seek to identify:
• the courts where cases commence;
• the courts in which appeals are heard; and
• the courts that exercise both first instance and appellate jurisdiction.

1.1.1. Civil Courts


Both criminal and civil courts in England and Wales primarily hear evidence and aim to
determine what exactly happened in a case. The lower courts decide matter of fact and
the upper courts normally deal with points of law. In England, simple civil actions, for
example undefended divorce, are normally heard in either the Magistrates’ Courts or the
County Courts.

Judges have different titles depending on their experience, training and level. A single
stipendiary magistrate or three lay magistrates sit in the Magistrates’ Court. There is no
jury in a Magistrates’ Court. Family cases may go on appeal from the Magistrates’ Court
to the County Courts. The County Court Also hears first instance civil cases, such as
contract disputes, compensation claims, consumer complaints about faulty goods or
services, and bankruptcy cases. Claimants, or plaintiffs, may seek a legal remedy for
some harm or injury they have suffered. There are circuit judges or recorders who sit in
the County Courts, usually without a jury. Juries are now rare in civil actions, so normally
the judge considers both law and fact.

More complex civil cases, such as the administration of estates and actions for the
recovery of land, are heard in the High Court of Justice, which is divided into three
divisions: Family, Chancery and Queen’s Bench. The Court has both original, that is,
first instance, and appellate jurisdiction. From the High Court cases may go on appeal to
the civil division of the Court of Appeal, which can reverse or uphold a decision of the
lower courts. Its decisions bind all the lower civil courts. Civil cases may leapfrog from
the High Court to the House of Lords, bypassing the Court of Appeal, when points of
law of general public importance are involved. Appellants must, however, apply for leave
to appeal. Decisions of the House of Lords are binding on all other courts but not
necessarily on itself. The Court of the House of Lords consists of twelve life peers
appointed from judges and barristers. The quorum, or minimum number, of law lords for
an appeal hearing is normally three, but generally there is a sitting of five judges.

1.1.2. Criminal Courts


In England and Wales criminal cases are tried in the Magistrates’ Courts, which deal with
petty crimes, that is, less serious ones. In certain circumstances, the court may commit an
accused person to the Crown Court for more severe punishment, either by way of a fine
or imprisonment .Except in cases of homicide, children under fourteen and young persons
– that is minors between 14 and 17 years of age – must always be tried summarily,
meaning without a jury, by a Youth Court. A Youth Court is a branch of the Magistrates’
Court.
Indictable offences, that is, more serious ones such as theft, assault, drug dealing, and
murder, are reserved for trial in the Crown Court. In almost all criminal cases, the State,
in the name of the Crown, prosecutes a person alleged to have committed a crime. In
England and Wales, a jury of twelve people decides whether the defendant is guilty of the
crime she or he is charged with. The Crown Court may hear cases in circuit areas. From
the Crown Court, appeal against conviction or sentence lies to the Criminal Division of
the Court of Appeal. If leave to appeal is granted by that court, cases may go on appeal
to the House of Lords.

The membership of the Judicial Committee of the Privy Council is made up mainly of
Lords of Appeal in ordinary and others who have held high judicial office, sometimes
from Commonwealth countries. The Judicial Committee of the Privy Council acts as a
court of appeal from Commonwealth countries. Decisions of the Judicial Committee
while not binding on the English courts are persuasive and can have an important impact
upon the development of English Law.
The Court of Justice of the European Communities, known as the European Court of
Justice (ECJ), is composed of one judge from each of the Member States, together with
a number of advocates general. While the judges decide cases brought before the court,
the advocates general have an advisory role, assisting the court by providing a non-
binding opinion on cases.
The European Court of Human Rights is a completely separate court to the ECJ and it
has jurisdiction over all cases involving the interpretation or application of the
Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The
composition of the Court is currently 46 judges with a judge from each Contracting State.
Judges are independent and are not appointed in a representative capacity. The
jurisdiction of the court covers ‘all matters relating to the interpretation and application of
the Convention and the protocols’.

1.2. Tribunals

In the English judicial system two different types of institutions have been set up to
resolve legal problems: courts and tribunals. The distinction between the two is difficult
to make because there is no precise definition of these terms. The word “tribunal”
meaning any judicial assembly is widely used. This use of the word would include the
courts.
There is a narrower use of the word, however, which is of greater interest to the law
students. These institutions fall into two, large categories:
Domestic tribunals – are non – state organizations set up as part of the disciplinary
procedures of professional or sporting organizations;
Administrative tribunals – are bodies set up by the state in order to perform judicial
functions as part of the administration of some government scheme.

A Council on Tribunals was initiated as a consultative and advisory body. Its main task
is to advise government departments in setting up administrative tribunals and to review
the construction and working of these institutions. The Council has at present almost fifty
tribunals under its jurisdiction:
- the Rent Tribunals which settle disputes between landlords and tenants;
- the Education Appeals Committees which hear appeals against the allocation of
school places by local education authorities;
- the Industrial Tribunals which settle the problems which may arise between employer
and employee, such as redundancy payment disputes, questions of unfair dismissal and
the problem of equal pay.

The thorny question is whether these tribunals have only an administrative role or if they
also have an adjudicative role. However government departments have a general
influence over decision making, so administrative tribunals may not be regarded as pure
court substitutes. Another question is whether the tribunals should make law. The answer
is no, only the decisions of the courts of law may be regarded as binding law. In practice,
tribunals have a strong tendency to follow their previous decisions and these decisions
are regularly reported.
Essentially, the tribunals have been set up to relieve the over-burdened court system of
work which may be dealt with in a less formal way by experts in the particular field.
Solicitors and barristers are being appointed as chairmen of the tribunals and their work is
growing as the public becomes more aware of them. In this way tribunals provide a
speedier and more expert alternative to the court system.

Tribunals are set up by Acts of Parliament and they are bodies whose functions, like
those of courts of law, are essentially judicial. Independently of The executive, they
decide the rights and obligations of private citizens towards each other and towards a
government department or public authority. The growth in number and importance of
tribunals is closely related to the development of an increasingly active welfare state with
legislation covering areas previously considered private: Employment Tribunal, Lands
Tribunal, Mental Health Review Tribunal, Social Security Appeal Tribunal, etc. Some
tribunals have a significant effect in the areas of law involved. Yet, they are nonetheless
inferior to the courts and their decisions are subject to judicial review –examination by a
higher court of the decision –making process in a lower court.
2. The Legal Professions

2.1. Lawyers

The past twenty-five years have seen major change to legal practice and the legal
profession. Some changes have been brought about by the profession, some by Acts of
Parliament and others by factors such as the growth in the amount and complexity of law
and the advent of the Internet. A strong, independent profession is required with high
ethical standards and a high level of expertise, the price being that there must be
restrictions and the cost may be high. The opposing view is that public interest requires
competition to improve efficiency and that control by independent regulation is
preferable to self-regulation.

2.1.1. Solicitors
They traditionally undertook a broad range of work and this is still the case with smaller
firms (‘high street’ firms), for example legal work connected with divorce and other
family matters, buying and selling land and property, drawing up wills, advising on
business and commercial matters, and civil and criminal litigation.
Most large firms of solicitors (‘commercial firms’) have a number of specialist
departments, such as company/commercial, property, and litigation. Solicitors working
for these firms will specialize in one of these areas. Thus, smaller groups of solicitors will
often work in specialist units, e.g. intellectual property, pensions, banking and finance,
and insolvency.

2.1.1.1. Solicitors’ Areas of Work


Certain areas of work were once reserved to the solicitors’ profession, that is certain types
of legal work could only be undertaken on a commercial basis by qualified solicitors.
Solicitors undertake work such as conveyancing, and drawing up contracts and wills.
Barristers spend more time in court and have a right of audience in the higher courts.
Solicitors normally form partnerships with other solicitors and work in offices with
support staff.

2.1.2. Barristers
Barristers give clients specialist legal advice and appear in court on their behalf as
advocates. Their training focuses and reflects the skills they are required to have to
practice. Most barristers operate as self-employed individuals, however they work in sets
of chambers – essentially a group of barristers sharing premises and administrative
facilities.
A barrister’s main work is to provide representation in the courts, where they are
referred to as counsel, to draft documents associated with court procedure, and to give
opinions, that is, specialist legal advice. They are normally instructed by solicitors or
other professionals, such as patent agents or Legal Advice Centres, on behalf of lay
clients. As the law has become more complex, barristers progressively specialise in
particular areas, e.g. personal injury, crime, family or commercial law. A number of
Specialist Bar Associations, also known as SBAs, support and represent members.
2.1.3. The Inns of Court
Barristers are governed by the General Council of the Bar, known as the Bar Council,
and the Inns of Court. There are four Inns of Court: Gray’s, Lincoln’s, Middle Temple,
and Inner Temple. Their chief function is to call men and women to the Bar. To become a
barrister a person must be called to the Bar by one of the four Inns of Court. The
prospective barrister attends a ‘Call Night’ at his Inn and is formally ‘Called to the Bar’ in
a ceremony watched by friends and family.

2.2. Judges

Of the public roles played by members of the legal profession, that of judge is the most
visible, but the status of judge and the mode of entry into this branch vary considerably
from country to country. The traditional independence, prestige and creativity of the
Anglo-American judge contrasts with the rather ordinary civil servant status of most
continental judges.
Judges are state officials with power to adjudicate on disputes and other matters brought
before the court for decision. In English Law all judges are appointed by the Monarch,
on the advice of the Lord Chancellor in the case of circuit judges and High Court
Judges, and on the advice of the Prime Minister in the case of judges of the Court of
Appeal and the Lords of Appeal in Ordinary (Law Lords).

The English judiciary consists of judges of the High Court and appellate courts and
comprises the Lord Chancellor, the lord Chief Justice, the Master of the Rolls, 11 Lords
of Appeal, 18 Lords justices of appeal, the Vice-Chancellor, the President of the Family
Division of the High Court and 80 other judges of the High Court. The circuit judges try
criminal cases in the Crown Courts and civil cases in the County Courts and they are
less than 400.
By contrast, the American judiciary is enormous: the federal judiciary (over 700), District
judges, who are trial judges (over 545), and the judges of the state court systems
exceeding 7, 500 though many of these may have limited jurisdiction. Besides, American
judges operate in a far less centralized system. Not only does each state have its own
judicial system within its own borders, distinct from the federal system which covers the
whole country, but even the federal system itself is decentralized to a significant degree.

An Act of Parliament lays down the mandatory requirements for most judicial offices.
Candidates must have practised as a lawyer or judge for a specified time and must meet
other statutory requirements for specific posts. The hierarchical structure of the courts
informs the process of selection to the Judiciary. Experience gained as a judge in a lower
court is one of the qualifications for appointment to a higher court. Senior appointments
to the Court of Appeal and the High Court are made by the Queen following the
recommendation of the Prime Minister, currently on the advice of the Lord Chancellor –
a senior member of the government and head of the judicial system.

Judges in civil courts can fine, commit to imprisonment (normally between 28 days
and six months) or give a suspended sentence where imprisonment does not take place
unless the offender commits another offence. An applicant can seek an injunction - an
order – against a respondent. The court may grant an interim injunction, that is a
temporary one, to stop the defendant from doing something before the hearing of the
application. The judge can grant or refuse an injunction against a legal person to do or
not do specified acts. The judge can, alternatively, require an undertaking, or promise,
from the relevant party at the hearing proceedings.

3. Legal Personnel and Bodies

3.1. Government and the English Legal System – The Ministry of


Justice

Responsibility for aspects of the legal system has vested in various government
departments in the recent past. The Lord Chancellor’s Department became in 2003 the
Department of Constitutional Affairs, which in 2007 assumed certain responsibilities
from the Home Office to become the Ministry of Justice. The Ministry of Justice has
responsibility for the following areas:

• policy in relation to the criminal, civil, family, and administrative justice system,
including the Law Commission;
• sentencing policy, probation, and prisons;
• the courts and tribunals;
• support for the judiciary;
• legal aid;
• constitutional reform.

3.1.1. Lord Chancellor


For centuries the Lord Chancellor has played a pivotal role in the English legal system.
The role of the Lord Chancellor encompassed membership of the government as a
Cabinet minister, a law-making role as a member of the second legislative chamber the
House of Lords and as head of the judiciary, including sitting as a judge in the House of
Lords. Additionally, the Lord Chancellor either appointed Judges or recommended judges
for appointment. The potential conflicts in the functions of the Lord Chancellor clearly
ran counter to any concept of a separation of powers. In consequence, the role of the Lord
Chancellor has been greatly altered by the Constitutional Reform Act 2005.

3.1.2. The Attorney General


The Attorney General is a member of the government who advises the government on
matters of law. The Attorney General and a deputy, the Solicitor General, are termed the
Law Officers. In relation to criminal offences the Attorney General may prosecute, or
take over the prosecution, in very important cases. By statute, the consent of the Attorney
General is required for the prosecution of certain offences.
The role of the Attorney General was identified in the White Paper on The Governance of
Britain (2007, CM 7170) as one to be renewed to ensure public confidence. Critics have
claimed that there is a conflict of interest in the Attorney General being a member of the
Government and also providing legal advice. The proposal to give the Attorney General
power to block prosecutions in the national interest has attracted much critical comment.

3.1.3. The Director of Public Prosecutions


The Director of Public Prosecutions is head of the Crown Prosecution Service. The
duties of the director, carried out through the Crown Prosecution Service, include: the
taking over of all criminal proceedings (except for specified proceedings) instituted on
behalf of a police force; the commencement and conduct of criminal proceedings in any
case which ‘appears to him to be of importance or difficulty’ or ‘it is otherwise
appropriate for proceedings to be instituted by him’; and to take over a prosecution which
has already commenced (including private prosecutions undertaken, for example by a
member of the public).

3.1.4. Crown Prosecution Service (CPS)


Prior to 1986 prosecutions were instituted by the police force investigating a crime. This
situation led to a divergence in approaches to prosecution and a lack of objectivity in the
decision to prosecute. It was decided that to promote consistency and to separate the
investigative process from the decision to prosecute that a national Crown Prosecution
Service should be created. The Crown Prosecution Service (CPS) was created by the
Prosecution of Offences Act 1985.

3.1.5. The Lord Chief Justice


The Lord Chief Justice under the Constitutional Reform Act 2005 has approximately 400
statutory duties. These include being the President of the courts of England and Wales,
the head of the Judiciary of England and Wales, and President of the Court of Appeal
(Criminal Division).

3.1.6. Legal Services Commission


The issue of access to justice is vital to the fair operation of a legal system. Rights may be
established, but if unknown or unenforced then they become meaningless.
How disputes are resolved depends upon having access to advice and the mechanisms for
dispute resolution. The access to Justice Act 1999 established the Legal Services
Commission which was given functions relating to:
• The Community Legal Service; and
• The Criminal Defence Service

3.1.6.1. Community Legal Service


The Community Legal Service purpose is :
First, the promotion of the availability to individuals of legal services, such as providing
general information about law and legal services, gaining legal advice, assistance in
preventing or resolving disputes, and providing help in relation to legal proceedings not
relating to disputes.
Second, ‘in particular, for securing that individuals have access to services that
effectively meet their needs’, s.4 of Access to Justice Act 1999. This service deals with
the civil legal aid programme.

3.1.6.2. Criminal Defence Service


The purpose of the Criminal Defence Service is to secure ‘that individuals involved in
criminal investigations or criminal proceedings have access to such advice, assistance and
representation as the interests of justice require’. Criminal legal aid is delivered through
the Criminal Defence Service.

3.1.7. Law Reform


The law is dynamic, with new cases clarifying points of law and Parliament amending
laws every year. The latter is the main method of law reform, with Parliament passing
amending, consolidating, codifying, or repealing legislation.
The drivers of law reform are many. It has been seen that the judges may indicate the
need for Parliament to pass legislation to resolve a problem in the common law. Pressure
groups may campaign for a change to the law. Events may compel Parliament to legislate,
for example, the successful appeals following miscarriages of justice in criminal trials in
the 1990s led to the passing of the Criminal Appeal Act 1995. Two kinds of law reform
agencies may be employed either to investigate or instigate changes in the law. First,
there are ad hoc bodies, such as royal commissions and departmental committees.
Second, there are permanent bodies, such as the Law Commissions established by the
Law Commissions Act 1965.

3.1.8. Lawyers
In England and Wales, lawyers are divided into two professions: solicitors and
barristers. Lawyers are involved in the provision of legal services, for example, advice,
conveyancing, and representation before the courts, but they are not the only source of
legal services. Indeed, the story of lawyers and the provision of legal services since the
late 1980s has been one of increasing choice and because of competition lower costs, but
at the same time one of the protection of the quality of service.
UNIT 2

1. The Classifications of English Law


A definition of law has proved elusive and much academic comment as concerns the
problems of devising a complete definition. There are some features associated with law
that have been identified to highlight some of the characteristics of law in a practical
sense:
• a basis for recognising what is law, as opposed to, the rules of a game or a moral code;
• a defined area where the law applies, such as in a state or other defined geographical
area, and when law comes into operation;
• the content of the law in terms of rules, principles, and doctrines.

1.1. The Possible Meanings of Common Law

The phrase common law may be contrasted with statute law, equity and civil law. We
will consider each of these contrasts in turn.

1.1.1. Common Law and Statute Law


The term common law gives rise to difficulty as it has several meanings, so any meaning
depends upon the context the term is used.
• common law may mean the law created by the common law courts in contrast to the law
created by the Court of Chancery, which was called equity.
• Common law may mean all the law created by the courts, including the law of equity, as
opposed to the law created by Parliament, that is legislation. In this sense, common law
may be also termed ‘judge-made’ law.
• Common law may refer to a legal tradition which defines the English legal system and
other derivative legal systems as opposed to the civilian legal tradition exemplified by the
systems of mainland Europe. Apart from England and Wales other examples of a
common law tradition are to be found in the legal systems of the states of the United
States (with the exception of Louisiana), Canada and Australia. Common law in this
sense refers to forms of law-making, particularly judge-made law which is governed by
the doctrine of judicial precedent.

The explanation of the use of the word ‘common law’ is historical. In the centuries after
the Norman Conquest, the King’s judges travelled round the country deciding cases in
various places. This meant that the judges built up an overall picture of the law in various
areas, and by extending the area of operation of sensible principles, they were able to
unify the law of the entire country.
1.1.2. Common Law and Equity
In Anglo-American law, the custom of courts outside the common law is called equity.
Initially equity provided remedies in situations in which precedent or statutory law might
not apply or be equitable. By the end of the 13 th century the English king’s common-law
courts had largely limited the relief available in civil cases to the payment of damages
and to the recovery of the possession of property.
The disappointed litigants petitioned the king, who was the ‘fountain of justice’. The
king, through his Chancellor, eventually set up a special court to deal with these petitions.
The rules applied by the Court of Chancery hardened into law and became a regular part
of the law of the land. The most important branch of equity is the law of trusts, but
equitable remedies such as specific performance and injunction are also much used. In
case of ‘conflict’ or ‘variance’ between the rules of common law and equity, equity
comes to prevail.

Equity thus worked ‘behind the scenes’ of the common law action. The common law
principles were left intact, but they were superseded by equitable rules in all cases.
This system went on until 1875 when the old courts of common law and the Court of
Chancery were abolished, and in their place was established a single Supreme Court of
Judicature, each branch of which had full power to administer both law and equity.
When one says that a particular rule of modern law is a rule of ‘equity’, one means that
it has to be read in the light of a whole complex of rules developed by the Chancellors.
One of them was (and is) to the effect that “he who comes to equity must come with
clean hands”. This rule will apply whenever the plaintiff(claimant) is relying upon an
equitable right, but not necessarily when he is relying on a common law right. To say
that a particular right is an equitable right means that all the subsidiary rules of equity
apply to it. On the other hand, a particular right is to be interpreted in a common law
atmosphere, leaving out of account such equitable rules as applying only to equitable
rights.

Although the rule is that when law and equity conflict, equity prevails, there is always the
possibility that a litigant who relies on an equitable rule may for some reason find himself
outside the limits of that equitable rule, and when this happens, the contradictory
common law rule, which may generally seem to be a dead letter, becomes very much
alive.
Courts of equity also developed early in the United States, but in the late 19 th and early
20th centuries most U.S. courts similarly abolished the distinctions between actions at law
and suits in equity and fused their administration in one procedural system, with but one
civil action, in the same court. Modern equity has been much assisted by legislation. The
old notion that equity protects only property rights has been virtually abandoned. Now an
employee, for example, can be barred from competing with his employer after discharge
or resignation. An injunction may now be hard, where other factors of appropriateness
permit, against threatened injury to interests of personality, such as civil liberties, privacy,
reputation and domestic relations.
1.1.3. Common Law and Civil Law
Another way in which the phrase common law is used is by way of contrast to civil law.
In this context, the distinction which is being drawn is basically between the English
legal system (together with those countries whose legal systems are derived from it, such
as Australia, New Zealand and the USA) on the one hand and the legal systems of most
of the states of Western Europe on the other.
The historical origin of this distinction is that continental Europe was heavily influenced
by Roman law, and the modern European systems still show this heritage to a marked
degree. In England, on the other hand, Roman law and its concepts have had no lasting
impact. One of the most important aspects of the distinction is that the basic principles of
law in a civil law country will be found in an enactment, or a series of enactments, called
a code, whereas in the common law countries the basic principles have evolved through
the decisions of the courts.

As the rate of social change has accelerated from the time of the Industrial Revolution
onwards, legislation has overtaken the common law as the main vehicle of legal change
even in common law countries, but the historical perspective continues to influence the
way in which lawyers from different traditions approach what are basically similar
problems. An unfortunate terminological confusion also arises when dealing with
codification, because even in the English legal system some comprehensive pieces of
legislation are referred to as being codes, but when they are enacted, they contained all
the English law on the topic concerned.
The fundamental point remains that much of the basis of English law emerged piecemeal
over the centuries as and when suitable cases came before the courts, rather than being
formulated as a coherent whole.

1.2. The Possible Meanings of Civil Law

Quite apart from its use in contradistinction to common law, the phrase civil law has a
variety of distinct and proper usages even within the English legal system. Here the
alternatives to civil law are variously criminal law, ecclesiastical (or canon law) and
military law. Only the distinction between civil law and criminal law need be considered
here, since the legal affairs of neither the church nor the armed forces are likely to
concern most law students.

1.2.1. Civil Law and Criminal Law


The essence of the distinction between civil law and criminal law is that in civil law
(which involves matters such as breach of contract and torts such as trespass, libel,
slander, negligence and many others) the focus is on compensating and / or protecting the
victim, whereas in criminal law (which involves matters such as theft, murder, motoring
offences, and so on) the focus is on punishing the offender.

One of the most immediately apparent practical distinctions between civil law and
criminal law lies in the basic terminology. A typical civil case will be concerned with
proof of liability, and will be called an action, although there are other terminological
possibilities, including an application and a petition. A criminal case will be concerned
with proof of guilt, and will be called a prosecution.
The legal descriptions of the parties also vary. In a typical civil case a claimant (who was
called a plaintiff before the Woolf reforms of civil procedure came into effect in April
1999) will sue a defendant. In a criminal case a prosecutor will prosecute the other
party, who may be called either the defendant or the accused. The only context in which
it is proper to use the term prosecution in a civil context is where the plaintiff has started,
but failed to pursue, proceedings, in which case the defendant may apply to the court to
have the case ‘struck out for want of prosecution’ .
The standard of proof is often said to differ between civil and criminal cases, with facts
necessary to establish civil liability needing to be proved only on the balance of
probabilities, and facts establishing guilt in criminal cases needing to be established
beyond reasonable doubt.
Finally, there are various other distinctions between civil and criminal cases, including
detailed matters of procedure and evidence, liability as to costs and the availability of
legal aid.

1.3. Public Law and Private Law

In many legal systems the distinction between public law and private law is regarded as
fundamental, but in the English legal system the distinction did not come to prominence
until 1980s. This was largely as a result of the House of Lords’ interpretation of certain
technical changes to the procedure by which cases (which were then called applications
for judicial review, and are now called claims for judicial review) were brought before
the court. Briefly, in O’Reilly v Mackman [1982] 3 All ER1124, the House of Lords held
that judicial review was, generally, the only way in which challenges could be brought
before the court in cases involving public law. Clearly, this made it essential to be able to
draw the line between public and private law. Unfortunately, even now the distinction
remains less than totally clear-cut, but a useful perspective can be derived from the fact
that some areas of law involve public bodies or public officials doing things which, by
their nature, could not be done by private individuals. It seems that these cases, at least,
involve matters of public law.
For example, if a local authority trespasses on land owned by someone else, the
landowner can sue the local authority, in the same way as any other landowner can sue
any other trespasser. However, the position is different if, for example, a local authority
refuses to issue a licence for some activity in respect of which it is a statutory licensing
authority. In this case, the local authority has power to make the decision only because it
is a local authority: no private individual could have made it. In other words, the trespass
example falls within the sphere of private law, and the licensing example falls within the
sphere of public law.

Wherever the courts draw the line between public and private law, it is possible to make
two general points arising from the distinction.
First, a court which is hearing a claim for judicial review in respect of a public law matter
will, being mindful of the doctrine of the separation of powers, be conscious that its role
is to supervise the way in which the decision was made, rather than imposing its own
view as to what the decision itself should have been. In other words, the court
acknowledges that some kinds of decision – such as whether a local authority wishes to
grant or withhold a licence – remain at all times within the discretion of the decision-
makers to whom Parliament has allocated the decision-making function.
Secondly, certain aspects of procedure apply only to public law cases. These are thought
to be necessary to protect public decision-makers from the constant risk of petty and
vexatious challenges made by people wanting to use the judicial process as a means of
making political points. One of the most important of these safeguards is that no private
individual has the right to challenge a matter of public law without first making a
preliminary application to the court, asking for permission to make the full application.

1.4. Substantive Law and Procedural Law

Some rules of law deal with substantive rights and duties, while others deal with the
procedural aspects of enforcing the substantive rules.
Procedural law is sometimes known by the alternative name of adjectival law. Judges
who distinguish between matters of substance and matters of procedure will usually say
why, in the context in question, the distinction is relevant. Time limits are often, though
not always, procedural. The case of Kammins Ballrooms Co Ltd v Zenith Investments Ltd
[1970] 2 All ER 871 illustrates the significance of classifying a time limit as procedural.
Firearms Act 1968, under which it is an offence to possess firearms or ammunition within
five years of release from a custodial sentence of between three months and three years,
involves a substantive time limit, since the period of five years is part of the definition of
the offence.

2. Sources of the English Law


In contrast to the civil law jurisdictions found in European countries, the common law
system in England and Wales has not been set down in written codes. Instead, the law is
drawn from a variety of different sources. The judgments of past cases, primary
legislation, secondary legislation, European law, and international treaties all make up the
different sources of law in England and Wales.

2.1. Case Law

The term common law gives rise to difficulty as it can be used in three different senses.
First, it can be applied in contrast to the term local law to describe the law which is
common to all the country rather than being applicable only in one area. This distinction
is really only of historical interest now since local law has little relevance today
Common law may also mean the law created by common law courts in contrast to the law
created by the Courts of Chancery, which was called equity. These courts developed rules
which were intended to bring greater fairness to the strict application of the common law.
For instance, under the common law, if a person gave property to another person to look
after on behalf of someone else (such as a child), that property belonged completely to
the recipient. The child had no rights to it and could not seek the help of the courts if the
recipient kept it for himself. The law of trusts developed through the courts of equity to
fill this obvious gap in the law and allow property to be held by trustees on behalf of
others who had legal rights to it. Today the distinction between common law and equity is
mostly of historical relevance and only occasionally for practical purposes.
The third, and most important, use of the term common law is to refer to the law which is
created in the courts as opposed to legislation created by Parliament. This is the primary
meaning of common law today. In this sense common law could include equity and local
law. It is this aspect of the system that is markedly different from the civil law countries.
In the UK, decisions are written down in law reports and these decisions themselves
become law.
Judges must also operate within the doctrine of binding precedent, which means that like
cases must be decided alike. Courts are arranged hierarchically and a judge in a lower
court must follow the law laid down by higher courts. This system promotes certainty and
allows lawyers to consult case law in the knowledge that, for example, principles stated
in the House of Lords must be applied by the lower courts, such as the Court of Appeal or
the High Court. Under this system, when a principle of law is established it operates both
retrospectively and prospectively, in the sense of applying to the future.

2.2. Legislation

Although England and Wales are described as a common law system, this description is
in one sense misleading because it gives the impression that case law is the most
important source of law. Quantitatively this was indeed once the case. Traditionally,
almost all the law was found in past cases. However, as the years have gone by, most law
is now covered by legislation passed by the Parliament. Murder, for example, is now one
of the relatively few serious offences not set out in statute.
Case law has always been secondary to legislation in the sense that where statute and
case law conflict, the former takes precedence. This is because of the principle of
parliamentary sovereignty which demands that the Parliament can make or repeal any law
it chooses. Therefore the Parliament cannot be bound by the decisions of the courts nor
by any of its own earlier decisions. The application of this principle has been modified by
the role of European legislation, and, to a lesser extent, by the Human Rights Act 1998.
Legislation is a very broad term describing all the law made by, or under powers granted
by, the UK Parliament. Legislation made by Parliament itself, in the form of Acts of
Parliament, is described as primary legislation because it is the highest form of the UK
law. Legislation made by other bodies under powers granted to them by Parliament is
known as secondary or delegated legislation.
Primary legislation may be either, public, private, or hybrid. Public legislation affects the
general law of the land, while private legislation is of a local or personal nature. The
Human Rights Act 1998, The House of Lords Act 1999, and Constitutional Reform Act
2005 are all examples of public Acts of Parliament from recent years. Private legislation
is designed to confer particular powers or benefits on any person in excess of, or in
conflict with, the general law. The promoters of such legislation are often local
authorities, but private companies and occasionally individuals, can also put forward
proposals for such legislation, seeking special powers not available in the general law.
Hybrid legislation refers to public legislation which affects a private person or interest in
a particular way. The Channel Tunnel Act 1987 is a case in point. It was public legislation
in that, by allowing for the construction of a railway tunnel between the UK and France,
it potentially affected everyone in the UK. However, it was also private as certain parts of
the Act had very specific application.
Although we think of legislation as statutes passed by Parliament, (i. e., primary
legislation), in fact the majority of legislation is secondary or delegated legislation which
is passed by the executive under authority set out in statutes. That authority can give the
executive wide discretionary powers to determine what the law should be, and this may
require little or no scrutiny by Parliament. The increasing quantitative and qualitative
importance of secondary legislation is often cited as an example of the growing power of
the executive and the corresponding weakening in the law-making process.
With regard to the growing legislative power of the Executive, it is important to note that
under the devolution legislation of 1998, the Scottish Parliament and Northern Parliament
Assembly have been given law-making powers in certain areas of policy such as
education. The Welsh Assembly currently has less power, only being entitled to pass
secondary legislation under authority from Westminster. Yet, the Government of Wales
Act 2006 allows greater legislative power to be devolved in the future following a
referendum. These changes have transferred some law-making power from Westminster
to the regions.
At the same time, as its role is being eroded from below, the UK Parliament is also under
pressure from above, at the international level.

2.3. European Law

European law passed by the European Parliament in Brussels and applied by the
European Court of Justice in Luxembourg is increasingly important in those areas in
which the European Union is working towards common policies and practices, such as
employment law. Since the enactment of the European Communities Act 1972, European
law takes precedence over domestic law.
Accordingly, if the courts are faced with a conflict between a Westminster statutory
provision and a statute passed by the European Parliament, they must prefer the latter.
This has happened on a number of occasions since 1972. One example concerned the
statutory provisions for part-time employees which were held by the House of Lords in R
(Seymour-Smith) v Secretary of State for Employment ex parte Equal Opportunities
Commission (1995) to be inconsistent with European legislation which was more
generous to part-timers. Thus, the domestic statute was, effectively, struck down by the
courts and was then modified by Parliament to bring it into line with European law.
Most European law comes into force in the UK through delegated legislation which is
scrutinized by a committee in Parliament. Such law must then be interpreted and applied
by domestic courts in the same way as any other secondary legislation. At the time the
ECA 1972 was passed there was strong criticism, particularly from the political right, that
this law undermined the sovereignty of Parliament by allowing the statute of an external
assembly to take precedence over legislation passed by Westminster. The counter-
argument put forward by the Act’s supporters was that the provision was a simple Act of
Parliament which could be repealed like any other by a future Parliament on a majority.
In Thoburn v Sunderland City Council (2002) Lord Justice Laws suggested that the 1972
Act was a “constitutional statute” and as such it could not be impliedly repealed.
Although the Act can be expressly repealed, in practice this is very unlikely to happen in
the foreseeable future and therefore can be seen as a reduction, if not removal, of
parliamentary sovereignty. In practice, the strong opposition to the Act’s provisions has
become less vocal in the last twenty years as a result of the relative rarity with which
provisions of Parliament have been held to be in conflict with European law. Moreover,
more pressing European issues such as monetary and political union have emerged to
occupy those who fear the loss of national sovereignty to Europe.

2.4. The Human Rights Act 1998

In 1998 the Human Rights Act was passed, incorporating the European Convention on
Human Rights into domestic law. It was introduced by the Labour Government as part of
a wider programme of constitutional reform covering devolution and reform of the House
of Lords. The ECHR is quite separate from the European law system. It was created by
the Council of Europe which was set up by the leading European countries after the
Second World War. Its aim was to help prevent the atrocities of the war ever happening
again by committing each country to the provisions of a Bill of Rights.
The UK was one of the states that played a leading role in drafting the ECHR and was
also one of the first countries to ratify it. In contrast to the European Court of Justice, the
decisions of the ECHR are not binding in the UK so that victory in Strasbourg does not
guarantee that the wrong will be put right in the UK. In practice, when there has been an
adverse finding in Strasbourg against the UK Government, it has been willing to
introduce the necessary legislative changes to ensure that domestic law falls into line with
the decision. If it refused to do so it could, ultimately, be expelled from the Council of
Europe.
There are provisions under the HRA 1998 which give the Convention a greater role than
would normally be given to international treaties in the UK courts. First, the courts in the
UK are obliged to take ECHR case law into account. Though they are not bound by the
decisions of that court, they must therefore allow litigants to refer to relevant decisions
reached in Strasbourg.
The courts must also interpret legislation in a way which is compatible with the
convention “in so far as it is possible to do so”. If they cannot do so, i.e. if the law is
simply too clearly in breach of the Convention to be interpreted in such a way as to come
into line, the higher courts can make a “declaration of incompatibility.” This does not
affect the continuing validity of the law, so that parliamentary sovereignty is retained, but
it is expected that parliament will normally amend legislation which has been declared by
the courts to be incompatible with the convention.
Through these provisions the HRA 1998 was designed to achieve the difficult task of
enhancing the status of an external legal document in the UK, while retaining the right of
Parliament to make and unmake the law. Supporters and critics of the Act disagree on
whether or not the right balance has been struck between the promotion of human rights
and the principle of parliamentary sovereignty, but they generally admit that the Human
Rights Act 1998 represents a significant constitutional change which is likely to have
long-term effects on the legal system.
The Human Rights Act has undoubtedly created a new legal regime in England and Wales
and has contributed to the development of a more constitutionalized political system. The
expanded role of the judiciary in scrutinizing legislation and reviewing official decision-
making clearly changes the nature of the relationship between the branches of
government.

2.5. Other International Treaties

In addition to the ECHR, the UK is a signatory to many different international


conventions and, although their provisions do not have force of law in the domestic
courts the way statutes or case law do, they are increasingly recognized as forming a
body of international law which should be taken into account by courts in England and
Wales. Furthermore, many of the provisions have been incorporated into domestic law
and have therefore become binding.
A good example of the changing role of international law was the Pinochet case (2000)
The former dictator of Chile, General Pinochet, was arrested while visiting the UK for
medical treatment. His extradition was sought by Spain so that he could stand trial there
for war crimes allegedly committed against Spanish citizens in Chile in the 1970s. The
key question concerned the interpretation of the Extradition Act 1989 which had
incorporated the provisions of the International Convention against Torture. The Law
Lords decided that he could be extradited for crimes allegedly committed after the Act
came into force in December 1988. Yet, in the end the Home Secretary determined that
General Pinochet was too ill to be sent back to trial and exercised his discretion under the
Extradition Act to allow him to return to Chile.
Although the Pinochet case did not change the role of international treaties in general, the
hearing of such a case which attracted international attention signalled the increasingly
global perspective of the legal system. Traditional national borders which in the past
strictly divided legal actions have become less and less meaningful throughout the world,
and we can expect to see many more cases whose outcome will be decided by drawing on
international law in the courts of England and Wales.
It is known that international treaties must be laid before Parliament for 28 days before
being ratified by the executive. In an important change, which enhances the ability of
Parliament to control the executive, the Constitutional Reform and Governance Bill will
turn this into a legal obligation.
UNIT 3

1.The European Union Institutions


1.1.The European Union (EU)

The European Union is governed by seven institutions. Article 13 of the Treaty on


European Union lists them in the following order: the European Parliament, the
European Council, the Council of the European Union (simply called “Council), the
European Commission, the Court of Justice of the European Union, the European
Central Bank and the Court of Auditors.

1.1.1.History

Most EU institutions were created with the establishment of the European Coal and Steel
Community (ECSC) in the 1950s. Much change since then has been in the context the
shifting of the power balance away from the Council and towards the Parliament. The
role of the Commission has often been to mediate between the two or tip the balance .
However the Commission is becoming more accountable to the Parliament: in 1999 it
forced the resignation of the Santer Commission and forced a reshuffle of the proposed
Barroso Commission in 2004. The development of the institutions, with incremental
changes from treaties and agreements, is testament to the evolution of the Union's
structures without one clear "master plan". Washington Post said of the institutions that
"nobody would have deliberately designed a government as complex and as redundant as
the EU".

1.1.2. Establishment

The first institutions were created at the start of the 1950s with the creation of the ECSC,
based on the Schuman declaration, between six states. The ECSC was designed to bring
the markets of coal and steel, the materials needed to wage war, under the control of a
supranational authority with the aim of encouraging peace and economic development. It
established the first institutions. At its core was an independent executive called the
"High Authority" with supranational powers over the Community. The laws made by the
Authority would be observed by a Court of Justice in order to ensure they were upheld
and to arbitrate.

During the negotiations, two supervisory institutions were put forward to counterbalance
the power of the High Authority. The "Common Assembly" proposed by Jean Monnet to
act as a monitor, counterweight and to add democratic legitimacy was composed of 78
national parliamentarians. The second was the Council of Ministers, pushed by the
smaller states also to add an intergovernmental element and harmonize national polices
with those of the authority.

1.1.3. Changes

In 1957 the Treaties of Rome established two, similar, communities creating a common
market (European Economic Community) and promoting atomic energy co-operation
(Euratom). The three institutions shared the Court of Justice and the Parliament, however
they had a separate Council and High Authority, which was called the Commission in
these Communities. The reason for this is the different relationship between the
Commission and Council. At the time the French government was suspicious of the
supranationalism and wanted to limit the powers of the High Authority in the new
Communities, giving the Council a greater role in checking the executive.

The three communities were later merged in 1967, by the Merger Treaty, into the
European Communities. The institutions were carried over from the European Economic
Community (making the Commission of that community the direct ancestor of the current
Commission) Under the Treaties of Rome, the Common Assembly (which renamed itself
the Parliamentary Assembly, and then the European Parliament) was supposed to become
elected. However this was delayed by the Council until 1979. Since then it gained more
powers via successive treaties .The Maastricht Treaty also gave further powers to the
Council by giving it a key role in the two new pillars of the EU which were based on
intergovernmental principles

The 2009 Lisbon Treaty brought nearly all policy areas (including the budget) under the
codecision procedure (renamed "ordinary legislative procedure"), hence increasing the
power of the Parliament. The rules for the distribution of seats in the parliament were also
changed to a formula system.The High Representative merged with the European
Commissioner for External Relations and joined the Commission. The appointment of the
Commission President became dependent upon the last EU elections. The Council of
Ministers adopted more qualified majority voting and the European Council was made a
distinct institution with a permanent president. The Court of Justice had some minor
renaming and adjustments. In addition, the central bank became a full institution.

2. Political institutions
There are three political institutions which hold the executive and legislative power of
the Union. The Council represents governments, the Parliament represents citizens and
the Commission represents the European interest. Essentially, the Council, Parliament or
another party place a request for legislation to the Commission. The Commission then
drafts this and presents it to the Parliament and Council, where in most cases both must
give their assent. Although the exact nature of this depends upon the legislative procedure
in use, once it is approved and signed by both bodies it becomes law.
2.1. Parliament

The European Parliament shares the legislative and budgetary authority of the Union
with the Council. The Parliament's President (its speaker) is Antonio Tajani (Italy), who
was elected from the Parliament's members in 2017. Its 736 members are elected every
five years by universal suffrage and sit according to political allegiance. They represent
nearly 500 million citizens (the world's second largest democratic electorate) and form
the only directly elected body in the Union. Despite forming one of the two legislative
chambers of the Union, it has weaker powers than the Council in some sensitive areas,
and does not have legislative initiative. It does, however, have powers over the
Commission which the Council does not. It has been said that its democratic nature and
growing powers have made it one of the most powerful legislatures in the world.

2.2. The European Council

The European Council provides political direction at head of state or government level
to the Union.
The European Council is the group of heads of state or government of the EU member
states. It meets four times a year to define the Union's policy agenda and give impetus to
integration. The President of the European Council, Donald Tusk (Polish origin), is the
person responsible for chairing and driving forward the work of the institution, which has
been described as the highest political body of the European Union.

2.3. Council

The Council of the European Union (informally known as the Council of Ministers or
just the Council) is a body holding legislative and some limited executive powers and it
is thus the main decision making body of the Union. Its Presidency rotates between the
states every six months, but every three Presidencies now cooperate on a common
programme. This body is separate from the European Council, which is a similar body,
but is composed of national leaders.

The Council is composed of twenty-seven national ministers (one per state). However the
Council meets in various forms depending upon the topic. For example, if agriculture is
being discussed, the Council will be composed of each national minister for agriculture.
They represent their governments and are accountable to their national political systems.
Votes are taken either by majority or unanimity with votes allocated according to
population. In these various forms they share the legislative and budgetary power of the
Parliament, and also lead the Common Foreign and Security Policy.
2.4. The European Commission

The European Commission is the executive arm of the Union. It is a body composed of
one appointee from each state, currently twenty-seven, but is designed to be independent
of national interests. The body is responsible for drafting all law of the European Union
and has a monopoly over legislative initiative. It also deals with the day-to-day running
of the Union and has a duty to uphold the law and treaties (in this role it is known as the
"Guardian of the Treaties").

The Commission is led by a President who is nominated by the Council (in practice the
European Council) and approved by Parliament. The remaining 26 Commissioners are
nominated by member-states, in consultation with the President, and have their portfolios
assigned by the President. The Council then adopts this list of nominee-Commissioners.
The Council’s adoption of the Commission is not an area which requires the decision to
be unanimous, their acceptance is arrived at according to the rules for qualified majority
voting. The European Parliament then interviews and casts its vote upon the
Commissioners. The interviews of individual nominees are conducted separately, in
contrast to Parliament’s vote of approval which must be cast on the Commission as a
whole without the ability to accept or reject individual Commissioners. Once approval
has been obtained from the Parliament the Commissioners can take office. The current
President is Jean-Claude Juncker (Luxembourg).

2.5. Acts and procedures

European Union legislative procedure

The codecision procedure is most common, and means the Council and Parliament jointly
consider law proposals from the Commission.There are a number of types of legislation
which can be passed. The strongest is a regulation, an act or law which is directly
applicable in its entirety. Then there are directives which bind members to certain goals
which they must achieve. They do this through their own laws and hence have room to
manoeuvre in deciding upon them. A decision is an instrument which is focused at a
particular person/group and is directly applicable. Institutions may also issue
recommendations and opinions which are merely non-binding declarations.

The ordinary legislative procedure is used in nearly all policy areas and provides an equal
footing between the two bodies. Under the procedure, the Commission presents a
proposal to Parliament and the Council. They then send amendments to the Council
which can either adopt the text with those amendments or send back a "common
position". That proposal may either be approved or further amendments may be tabled by
the Parliament. If the Council does not approve those, then a "Conciliation Committee" is
formed. The Committee is composed of the Council members plus an equal number of
MEPs who seek to agree a common position. Once a position is agreed, it has to be
approved by Parliament again by an absolute majority. There are other special procedures
used in sensitive areas which reduce the power of Parliament.

3. Non-political institutions
3.1. Court of Justice of the European Union

The Court of Justice of the European Union is the EU' s judicial branch based in
Luxembourgh. It is responsible for interpreting EU law and treaties. It comprises the
main chamber Court of Justice, the General Court and the Civil Service Tribunal.

The court of Justice of the European Union ensures uniformity of interpretation of


European Law and has the power to decide legal disputes between EU member states, EU
institutions, businesses and individuals. Its president is Koen Lenaerts from Belgium.

3.2. European Central Bank


The European Central Bank is the central bank for the eurozone (the states which have
adopted the Euro), based in Frankfurt. Thus, it controls monetary policy in that area with
an agenda to maintain price stability. It is at the centre of the European System of Central
Banks which comprises all EU national banks. The bank is governed by a board of
national bank governors and a President, currently Mario Draghi.

3.3. Court of Auditors

The premises of the Court of Auditors in Luxembourg

The final institution is the European Court of Auditors, which despite its name has no
judicial powers. Instead, it ensures that taxpayer funds from the budget of the European
Union have been correctly spent. The court provides an audit report for each financial
year to the Council and Parliament. The Parliament uses this to decide whether to
approve the Commission's handling of the budget. The Court also gives opinions and
proposals on financial legislation and anti-fraud actions.

The Court of Auditors was set up in 1975. It was created as an independent institution
due to the sensitivity of the issue of fraud in the Union (the anti-fraud agency, OLAF, is
also built on its independence). It is composed of one member from each state appointed
by the Council every six years. Every three years one of them is elected to be the
president of the court, who is currently Didier Migaud.

Comparisons

The EU's institution bears a resemblance to the Swiss government


While the EU's system of governance is largely unique, elements can be compared to
other models. One general observation on the nature of the distribution of powers would
be that the EU resembles the federalism of Germany. There, powers are predominantly
shared (states can exercise federal powers where the federation has not already exercised
them) between the levels of government, and the states participate strongly with decision
making at the federal level. This is in contrast with other federations, for example the
United States, where powers are clearly divided between the levels of government, and
the states have little say in federal decision making.

The EU's institutional set up is also somewhat similar to the government of Switzerland
(which is not a member state). The Swiss consensus-driven system is seen as successfully
uniting a state divided by language and religion, although the EU was not directly
modelled on the Swiss system despite bearing a number of similarities. The European
Commission has similarities to the Swiss Federal Council in that both have all-party
representation and are appointed on the basis of nationality rather than popularity. The
President of the Federal Council rotates between its members each year, in a fashion
similar to that of the EU's Council Presidency. Due to this system of presidency Swiss
leaders, like those of the EU, are relatively unknown with national politics viewed as
somewhat technocratic resulting in low voter turnout, in a similar fashion to that of the
European Parliament. Other parallels include the jealously guarded powers of states, the
considerable level of translation and the choice of a lesser city as the capital.

The European Parliament is better compared with the U. S. House of Representatives


than with the national parliaments.

Furthermore, executive power in the EU isn't concentrated in a single institution. It


becomes clearer under the Lisbon Treaty with the division of the European Council as a
distinct institution with a fixed President. This arrangement has been compared to the
dual executive system found in the French republic where there is a President (the
Council President) and Prime Minister (the Commission President). However, unlike the
French model, the Council President does not hold formal powers such as the ability to
directly appoint and sack the other, or the ability to dissolve Parliament. Hence while the
Council President may have prestige, it would lack power and while the Commission
President would have power, it would lack the prestige of the former.

The nature of the European Parliament is better compared with the United States House
of Representatives than with the national parliaments of the European Union. This is
notable in terms of the committees being of greater size and power, political parties being
very decentralised and it being separated from the executive branch (most national
governments operate a parliamentary system). A difference from all other parliaments is
the absence of a Parliamentary legislative initiative. However, given that in most national
parliaments initiatives not backed by the executive rarely succeed the value of this
difference is in question. Equally, its independence and power means that the European
Parliament has an unusually high success rate for its amendments in comparison to
national parliaments; 80% average and 30% for controversial proposals.

The Council and the German Bundesrat, are both composed by representatives of the
states governments.

The composition of the council can only be compared with the quite unique and unusual
composition of the German upper house, the Bundesrat. Membership of the Bundesrat is
limited to members of the governments of the states of Germany and can be recalled by
those governments in the same manner as the EU's Council. They retain their state role
while sitting in the Bundesrat and if their term ends when they are recalled by their state
governments (who are solely responsible for their appointment) or they cease to sit in
their state government. Hence they also are not elected at the same time and the body as a
whole cannot be dissolved like most parliaments. As government representatives,
members do not vote as individual members but in state blocks, rather than political
alignment, to their state governments' agreed line. Each state has unequal voting powers
based on population, with an absolute majority required for decisions. Likewise, the
presidency rotates equally between members, though each year rather than every six
months like in the EU Council. However, unlike the EU's Council, the Bundesrat does not
vary its composition depending on the topic being discussed. They both bear similar
criticisms, because of the interference, of executives in the legislative process.

Locations

The institutions are not concentrated in a single capital city: they are instead based across
three cities, Brussels, Luxembourg and Strasbourg. The current arrangement was agreed
in 1992 and attached to the Treaty of Amsterdam.The treaty states that the Commission
and Council would be based in Brussels, the Courts in Luxembourg and the Parliament in
Strasbourg. However some departments of the Commission and meetings of the Council
take place in Luxembourg, while the Parliament has its committees and some sessions in
Brussels and its secretariat in Luxembourg. Of the new institutions, the Central Bank is
based in Frankfurt while the European Council is based in Brussels (but has some
extraordinary meetings elsewhere).

Brussels' hosting of institutions has made it a major centre for the EU. Together with
NATO it has attracted more journalists and ambassadors than Washington D.C. However
the three-city agreement has come under some criticism, notably in regards to the
Parliament due to the large number of people that move between the cities. The European
Green Party estimated that the arrangement costs 200 million euro and 20,268 tonnes of
carbon dioxide. Brussels is preferred by some due to the presence of other institutions
and other groups while Strasbourg is supported due to its historical importance to
European unity.

UNIT 4
1. European Community Law and Institutions
There are two European Communities, namely the European Atomic Energy
Community (known as Euratom) and the European Community. A third community,
the European Coal and Steel Community (ECSC), which came into being in 1953
under the Treaty of Paris (1951), was created for a fixed term of 50 years. Accordingly,
this Community ceased to exist in 2003, when its functions were transferred to the
European Community.

1.1.The two European Communities

The European Atomic Energy Community, whose objects are to develop nuclear
energy, to distribute it throughout the Community and to sell the surplus to the outside
world, was created by the Treaty of Rome 1957. secondly, the European Economic
Community was established by another Treaty of Rome, also dated in 1957, the purpose
of which was, to lay the foundations of an ever closer union among the peoples of
Europe.
We may refer to the European Economic Community as the European Community (or
EC).The potential for confusion caused by the two Treaties of Rome being signed in the
same year is resolved in practice by referring to either the Euratom Treaty or the EC
Treaty, as appropriate.
The citation of articles in the EC Treaty was complicated by the Treaty of Amsterdam
1997 (ToA), which incorporated some new material, as a result of which the vast majority
of the original articles in the EC Treaty had to be renumbered. The Community has
adopted the practice of citing the new article number first, followed by its predecessor.
(e.g. ‘art. 234 [ex 177] EC’). The remaining two communities are subject to the same
general principles of law.
Finally, with the admission of Romania and Bulgaria at the beginning of 2007,
membership of the Communities has expanded from the six original member states to 27.

1.2. The European Union and the European Community

The Union lacks legal personality, being essentially a composite of the three
Communities, together with a Common Foreign and Security Policy (CFSP) and Police
and Judicial Co-operation in Criminal Matters (PJCCM). These three elements are
commonly known as the ‘three pillars’ of the Union. However, the fact that the CFSP and
PJCCM operate only at the political level of intergovernmental co-operation means that
the European Court of Justice has no jurisdiction in respect of them.

The essential difference, therefore, between the Union and the Community is that the
former is a political entity, while the latter is a legal entity.
1.3. The Principal EC Institutions

Under the EC Treaty, the principal Community institutions are the European
Commission, the Council of the European Union, the European Parliament, the
Court of Justice of the European Communities and the Court of First Instance.
Additionally, a body known as the European Council may usefully be mentioned.

1.3.1. The European Commission


Members of the European Commission are politicians, appointed by the common accord
of the member states, on the grounds of their general competence. Despite the national
and party-political character of the Commission’s membership, it is a fundamental
principle that Commissioners shall be completely independent in the performance of their
duties, being guided only by the ‘general interest of the Community’ (art. 213(2) [ex
157(2)] EC).
The Commission’s main function is to formulate policies, which must, of course, be
consistent with the framework of the Treaty. The President of the Commission is
appointed from among the Commissioners, by the common accord of the member states
acting with the consent of the European Parliament. The President holds office for two
years.

1.3.2. The Council of the European Union


Policies formulated by the Commission are submitted to the Council of the European
Union, which is the Community’s principal legislative body. Before the TEU (1992), the
Council was technically known as the Council of Ministers, but in practice it was and is
commonly known as the Council. Unlike the Commission, the Council’s membership is
constantly fluctuating, because the Council’s composition at any particular meeting will
depend entirely on the subject-matter under discussion. For example, if the business of
the day involves agricultural policy, there will be a meeting of the ‘Agricultural Council’,
attended by the Agriculture Minister from each member state.
The office of President of the Council rotates round the member states at six-monthly
intervals. The Council’s secretariat is known as COREPER, which is an acronym based
on the French title of the Committee of Permanent Representatives. It consists of officials
having ambassadorial rank, and in practice it undertakes much of the routine work of the
Council.

1.3.3. The European Parliament


A body, which was originally known as the European Assembly, became known as the
European Parliament in 1962. Until 1979 its members were appointed by the Parliaments
of member states, but they are now directly elected. Members of the European Parliament
(MEPs) serve for five years.
The Parliament, which began as a discussion chamber, has a supervisory role, which
includes approving the appointment of Commissioners and the President of the
Commission, as well as receiving and debating an annual General Report from the
Commission. It can pass a motion of censure on the Commission, and if such a motion
was carried by a two-thirds majority, the Commission would be required to resign.
Additionally, the Parliament is slowly evolving towards becoming a fully-fledged part of
the legislative process. Particularly, the Commission and the Council may consult the
Parliament when formulating policy or framing legislation respectively, and in some
cases it may even veto proposed legislation. The Parliament elects one of its members to
be its President.

1.3.4. The Court of Justice of the European Communities


The Court of Justice of the European Communities, commonly called the European
Court of Justice (ECJ), or simply the Court, consists of one judge from each member
state, together with eight Advocates-General. Both Judges and Advocates-General, who
are appointed by common accord of the Governments of the member states for six years,
must be ‘persons whose independence is beyond doubt and who possess the
qualifications required for appointment to the highest judicial offices in their respective
countries or who are jurisconsults of recognized competence’. (art. 223 [ex 167]EC). The
judges elect one of their number to be President of the Court, for a period of three years.

The office of Advocate-General is based on that of the French Commissaire du


Gouvernement in the Conseil d’Etat (the French constitutional court), and is sometimes
described as being the ‘disembodied conscience of the court’. (art.222 [ex 166] EC)
In accordance with continental legal tradition, the Court always delivers a judgment of
the Court, with no possibility of dissenting judgments. However, when the Court
disagrees with the Advocate-General’s opinion, the latter may have persuasive authority
in later cases and may therefore be regarded as something akin to a dissenting judgment.
For many years the Court of justice was the Communities’ only judicial body, but the
Single European Act 1986 relieved the pressure on the Court by providing for the
creation of the Court of First Instance (CFI).
The Court hears appeals on points of law from the Court of First Instance, but is not itself
subject to appeal.

1.3.5. The Court of First Instance


Judges of the Court of first Instance (CFI) are, like judges of the Court of Justice,
appointed by common accord of the governments of the member states for six years, but
the criteria for appointment are less rigorous. More particularly, appointment is open to
‘persons whose independence is beyond doubt and who possess the ability required for
appointment to judicial office’(art. 225(3) [ex 168a (3)] EC). There are no Advocates-
General in the Court of First Instance, but the Judges may agree that one of their number
shall perform that role in a particular case if they so wish.

1.3.6. The European Council


The European Council originated as an unofficial body consisting of the heads of
government of the member states. The Single European Act 1986 formally recognized its
existence, as well as requiring it to meet at least twice a year and giving it special
responsibility for encouraging European political co-operation.
Article 13 [ex J.13TEU] provides that the European Council shall provide general
guidelines within which the Council of the European Union shall decide whether a matter
should be the subject of joint action, which will commit the member states, as part of the
Common Foreign and Security Policy.
It is important not to confuse the European Council with either the Council of the
European Union or the Council of Europe. More particularly, the Council of Europe is
a totally distinct legal entity from the European Communities, although there is
overlapping membership. Its responsibilities include the European Court of Human
Rights, which sits in Strasbourg and must be clearly distinguished from the European
Court of Justice, which sits in Luxembourg.

2. The Enforceability of European Community Law


We are to examine the extent to which Community law enters into the legal systems of
member states and becomes enforceable in their courts. The English perspective will be
taken as the primary focus, but the system of Community law is an integrated whole, and
therefore some cases involving other member states will also be relevant. Since treaties
are the basic sources of Community law, the status of treaties in English law provides a
useful starting point.

2.1. The Status of Treaties in English Law

Because treaties and other international agreements are entered into by the government,
which is technically exercising the royal prerogative on behalf of the Crown, one
consequence of the legislative supremacy of Parliament is that they operate only at the
international level , unless and until they are incorporated into English law by statute. In
relation to the United Kingdom’s accession to the EC Treaty, incorporation was effected
by the European Communities Act 1972, s. 2(1) of which provides:
‘All …rights, powers, liabilities and restrictions from time to time created or arising by or
under the Treaties, and all such remedies and procedures from time to time provided for
by or under the treaties, as in accordance with the Treaties are without further enactment
to be given legal effect or used in the United Kingdom shall be recognized and available
in law, and be enforced, allowed and followed accordingly.’
Community obligations may generally be implemented by delegated legislation, but the
second schedule to the 1972 Act lists four types of provision where nothing short of
primary legislation will suffice. There are provisions which impose or increase taxation,
which give retrospective effect to any provision, which confer power to make delegated
legislation (other than rules of procedure for courts and tribunals) and which create new
criminal offences punishable beyond certain specified limits.
Discussion of the enforceability of Community law requires an analysis of the various
forms of law, namely the Treaty provisions themselves, Regulations, Directives and
Decisions. We must consider the distinction between the concepts of the direct
applicability and the direct effect of Community law within the legal systems of the
member states, together with the liability of member states under the Francovich doctrine.
2.2. Direct Applicability and Direct Effect of Community Law

2.2.1. The distinction between Direct Applicability and Direct Effect


The distinction between direct applicability and direct effect is essentially
straightforward, though an element of confusion arises from time to time because some
courts, including the European Court of Justice itself, have been known to use both terms
loosely, and even interchangeably.
The essence of the distinction is that a provision of the Community law will be directly
applicable if it becomes part of the law of a member state automatically. There is no need
for member states to do anything to incorporate directly applicable provisions into their
legal systems, but also there is no possibility of member states countermanding such
provisions. On the other hand, a provision of Community law will be directly effective
if, and only if, it creates rights which are enforceable by the courts of a member state at
the instance of people who are aggrieved by breaches of the provision. In other words,
the concept of direct applicability is concerned solely with the reception of the
Community law into the legal system of a member state, while the concept of direct
effect deals with the more essentially practical question of the enforceability of
community law once reception has occurred.

2.2.2. ‘Vertical’ and ‘Horizontal’ Direct Effect


Where a provision of Community law is enforceable against a member state in its own
courts, the direct effect is said to be vertical, because a state is politically superior to its
subjects. Where a provision of Community law is enforceable by one person against
another people in the courts of a member state, the direct effect is said to be horizontal,
because, politically, all the subjects of a state are on the same level as each other.

2.3. Direct Applicability and Direct Effect of Different Types of


Community Legislation and the Francovich Doctrine

2.3.1. Treaty Articles


The position in relation to treaty articles has been clear since the early days of the
Community. In the leading case of van Gend en Loos v Nederlandse Administratie der
Belastingen [1963] ECR 1, a Dutch company was aggrieved by a contravention of art.12
of the EEC Treaty, which prohibited member states from ‘introducing between
themselves any new custom duties’. The question was whether the company could bring
an action in the Dutch courts, in order to enforce art.12 against the Dutch customs
authorities. The European court of Justice said:
‘The wording of art.12 contains a clear and unconditional prohibition which is not a
positive but a negative obligation. This obligation is not qualified by any reservation on
the part of states which would make its implementation conditional upon a positive
legislative measure enacted under national law. The very nature of this prohibition makes
it ideally adapted to produce direct effects in the legal relationship between the member
states and their subjects…’
‘It follows…that…art.12 must be interpreted as producing direct effects and creating
individual rights which national courts must protect.’
In van Gend en Loos the direct effect was vertical, but the decision of the Court in
Defrenne v Sabena (No 2) [1976] 2 CMLR 98 established that treaty provisions may also
have horizontal direct effect.
Defrenne arose from the Belgian airline’s practice of paying female flight attendants less
than their mail colleagues, despite the fact that both were doing identical jobs. Article 119
of the EEC Treaty required member states to ensure ‘the application of the principle that
men and women should receive equal pay for work of equal value’. There could be cases
where it would be very difficult to establish whether different types of work were
nevertheless of equal value, and in these cases it may be that art. 119 would lack
sufficient precision to enable national courts to enforce it. In Defrenne, it was obvious –
that the work was identical and that the sex of the employees was the only reason for the
differential rates of pay. Furthermore, the Court of Justice saw no reason why the
inability of other employees to rely on the direct effect of art. 119 in more complicated
cases should be used as a ground for denying Defrenne the right to do so.

2.3.2. Regulations
Article 249 [ex 189] EC expressly provides that a Regulation ‘shall have general
application [and]…shall be binding in its entirety and directly applicable in all member
states’. In practice, subject to satisfying the criteria for direct effect, Regulations will be
both vertically and horizontally directly effective.

2.3.3. Directives
Article 249 [ex 189] EC makes it plain that Directives are generically different from
Regulations. A Directive is ‘binding, as to the result to be achieved, upon each member
state to which it is addressed, but shall leave to the national authorities the choice of form
and methods’. It is obvious that the drafter of the Treaty envisaged Directives as being
catalysts which would produce changes in the national legal systems of the member
states, rather than being themselves the vehicles of such changes.
The article does not make Directives directly applicable. As Directives are not directly
applicable, it would appear that they lack the necessary precondition for direct effect.
However, the European Court of Justice has approached this aspect of Directives in a
creative way.

2.3.4. The Francovich Doctrine


In Francovich v Italian State [1991]IRLR 84, Italy had failed to implement a Directive
which would have ensured that employees received any arrears of wages which were due
if their employers became insolvent. In the absence of horizontal direct effect for
Directives, and bearing in mind that the employers were insolvent anyway, the employees
who were aggrieved in this case might appear to have had no effective remedy. However
the Court turned to the duty of member states, under art. 5EC, to ‘take all appropriate
measures’ to ensure compliance with their Community obligations. The Court took the
view that it was inherent in the scheme of the Treaty that member states should pay
compensation when they had failed to implement a Directive. However, was obligation
was said to be subject to three conditions being satisfied: the Directive must confer rights
on individuals, the content of those rights must be identifiable from the Directive, and
there must be a causal link between the member state’s failure and the claimant’s loss.
The Court has subsequently developed the Francovich doctrine so that it applies to any
breach of Community law, but has added the proviso that the breach must be ‘sufficiently
serious’.

2.3.5. Decisions
For completeness, it is necessary to note that art. 249 [ex 189] EC provides that a
Decision is ‘binding in its entirety upon those to whom it is addressed, who may be either
individuals or member states’. Although the article does not make Decisions directly
applicable, the Court of Justice held in the Grad case that they were nevertheless capable
of direct effect.

3. Indirect Effect of Community Law


Even where community law lacks direct effect, it may still have an indirect effect
through its impact on the interpretation of the laws of member states. In von Colson v
Land Nordrhein-Westfalen [1986] 2 CMLR 702, in which the European Court of Justice
said that where national legislation has been enacted in order to implement a Directive,
national courts must interpret that legislation, wherever it is possible to do so, ‘in the light
of the wording and the purpose of the Directive in order to achieve the result referred to
in the Treaty. Subsequently, in Marleasing SA v La Comercial Internacional de
Alimentaciόn SA [1992] 1 CMLR 305, the Court extended the von Colson principle, so
that national courts must interpret all national law in accordance with Community law,
wherever it is possible to do so, even if the national legislation in question was not
enacted specifically to comply with Community law.

4. European Community Law and National Sovereignty

4.1. The Community Law view of National Sovereignty

From the point of view of the Community, there can be no doubt that Community law
does prevail over national law. In the seminal case of van Gend en Loos, the Court said:
‘The Community constitutes a new legal order …for whose benefit the states have
limited their sovereign rights.’ Additionally, it is clear from International Handels
gesellschaft mbH [1974] 2 CMLR 540 that Community law prevails even in the face of
the most fundamental constitutional doctrines of the member states. The facts were that a
German Company challenged the validity of a Community Regulation on the basis that it
infringed the principle of proportionality, which was a fundamental principle of the
German Constitution. There was nothing in the Constitution to give primacy to
Community law. On the merits of the case, the European Court of Justice decided that
there had been no breach of the principle of proportionality, but the significance of the
case lies in the force with which the Court of Justice stated that the validity of
Community law cannot be judged by reference to national law: ‘The law born from the
Treaty [cannot] have the courts opposing to it rules of national law of any nature
whatsoever … the validity of a Community instrument or its effect within a member state
cannot be affected by allegations that it strikes at either the fundamental rights as
formulated in that state’s constitution or the principles of a national constitutional
structure.’

4.2. The English View of Sovereignty in the Community Context

From the point of view of English law, the question can be very precisely stated. Has the
enactment of the European Communities Act 1972 disabled Parliament from passing
subsequent statutes which would conflict with Community law? The answer to this
question lies in a series of cases which arose from a conflict between, on the one hand,
certain provisions of the EC Treaty (which prohibited discrimination on the grounds of
nationality) and, on the other hand, Part 2 of the Merchant Shipping Act 1998 (which
provided that fishing boats which were registered in the United Kingdom, and which
were fishing for quotas which the EC had allocated to the United Kingdom, must also be
owned and managed by United Kingdom citizens).
UNIT 5

1.Human Rights and Fundamental Freedoms

1.2. The English Legal System and the Protection of Human Rights
before the Human Rights Act 1998

The common law is undoubtedly capable of protecting human rights. For example, in R v
Lord Chancellor ex parte Witham [1997]2 All ER 779, the Lord Chancellor, relying on
powers conferred on him by the Supreme Court Act 1981, made certain rules which
substantially increased court fees and removed an exemption for people on income
support. Even though the new rules contained a power for the Lord Chancellor to reduce
or remit the fees in individual cases of undue financial hardship, the High Court granted
a declaration that he had exceeded his statutory powers, because the effect of the
increases would be to exclude many people from access to the Courts.
Unfortunately, the common law cannot always be relied upon to exercise its undoubted
power to protect human rights. In Malone v Metropolitan Police Commissioner (No 2)
[1979] 2 All ER 620, a man who had been convicted of handling stolen goods
complained that the police had tapped his telephone during the investigation which led to
his prosecution. Sir Robert Megarry held that, in the absence of any lawful restriction on
the activities of the police in this field, the telephone tap had been lawful, and was
unwilling to find the existence of a right, merely in order to say that the police had
infringed it.
Even where the courts are prepared to countenance ‘the extension of the existing laws
and principles’, there will commonly remain the linked problems of delay and
uncertainty:
‘No doubt the common law will develop, as the common law does, case by case. It is not
entirely satisfactory that this should be so, not least because experience suggests that in
the absence of a prior principle irreconcilable or inconsistent decisions will emerge. But
from the tenor of the decisions principles will come, and if the common law’s
pragmatism has a virtue, it is that these principles are likely to be robust’. (R v Higher
Education Funding Council ex parte Institute of Dental Surgery [1994] 1 All ER 651.)
The courts are not the only institutions which develop the law. In fact, various statutes
dealing with matters such as discrimination on the grounds of race, sex and disability
demonstrate that Parliament can and does intervene in order to protect human rights. In
practice, such statutory activity is also less than wholly consistent, often resulting from
nothing more structured or principled than perceived political need.
1.3. The European Convention for the Protection of Human Rights and
Fundamental Freedoms

The European Convention for the Protection of Human Rights and Fundamental
Freedoms (the ECHR) was agreed in 1950 by the states of Western Europe, and came
into force on 3 September 1953. Even if the UK was one of the first parties to ratify the
ECHR, Parliament has never enacted any legislation to incorporate it into English law.
Before considering the ECHR more closely, it is essential to note that it is a product of
the Council of Europe and not the European Community. The judicial institution of the
Council of Europe is the European Court of Human Rights, which sits at Strasbourg.
Judges of the Court are full-time, and are elected for periods of six years by the
Parliamentary Assembly of the Council of Europe from lists of candidates submitted by
the contracting parties, with the possibility of re-election (art. 23, ECHR). Candidates
must be either eligible for ‘appointment to high judicial office, or jurisconsults of
recognized competence’ (art. 24(1), ECHR). Judges sit as individuals, rather than as
national representatives, and while in office ‘shall not hold any position which is
incompatible with their independence and impartiality as members of the Court’ (art.
21(3), ECHR).

1.3.1. Interpretation
A well-established principle of international law, contained in art. 31 of the Vienna
Convention on the Law of Treaties 1969, requires that a treaty ‘shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose’. In accordance with art. 33(4) of
the Vienna Convention, the authentic texts (which in the case of the ECHR are in English
and French) must be construed in such a way as to ‘reconcile them as far as possible’, but
where this is impossible, the decision in Wemhoff v Federal Republic of Germany (1979-
80) 1 EHRR 55 shows that the ‘object and purpose’ will be decisive.
By way of illustration of this purposive approach to interpretation, in Artico v Italy
(1980) 3 EHRR 1, the Court found a breach of the right to legal assistance under art. 6(3)
(c) where a lawyer nominated to represent someone under a legal aid scheme never
actually did so, because of ill-health and other professional commitments. The court held
that the right could be satisfied only by effective legal assistance.

1.3.2. Precedent
In accordance with the civil law tradition of continental legal systems, the Court does not
follow the doctrine of binding precedent. However, in practice ‘it usually follows and
applies its own precedents, such a course being in the interests of legal certainty and the
olderly development of the Convention case-law’, while being ready to depart where they
are ‘cogent reasons’ for doing so, including the need to ‘ensure that the interpretation of
the Convention reflects societal changes and remains in line with present-day conditions’.
(Cossey v United Kingdom (1990) 13 EHRR 622).
Article 30 ECHR provides additional evidence of the Court’s normal tendency to follow
its own decisions.
Although the abolition of the Commission naturally means that there will be no more
rulings from that body, its past rulings will continue to be an important part of case-law
under the ECHR.

1.3.3. Some Convention Case-law and Some English Responses


With the exception of the prohibition of torture or inhuman or degrading treatment or
punishment by art. 3., the rights and freedoms are all subject to some kind of limitation or
qualification. Of particular interest in this respect are arts. 8 to 11, which may all be
restricted by law to such extent as it is ‘necessary in a democratic society’ for the reasons
set out in each of the articles.
In Dudgeon v United Kingdom (1982) 4 EHRR 149, where homosexual relationships
were said to fall within the category of private life (rather than family life), the court
identified ‘tolerance and broad-mindedness’ as two of the ‘hallmarks’ of a democratic
society.
What may ‘be necessary in a democratic society’ will , of course, be o question for the
court in each case, but some indication of its scope can nevertheless be given.
In Olson v Sweden (1998) 11 EHRR 259, while finding that there was no basis in the
current state of Swedish law for the practice of social workers of restricting parental
access to children who were in the care of public authorities, the court said:
‘According to the court’s established case-law, the notion of necessity implies that an
interference corresponds with a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued.’
In practice, both the doctrine of proportionality and the doctrine of the margin of
appreciation are to be applied. The doctrine of proportionality is not only common place
in the domestic legal systems of continental Europe, but is also one of the principles of
Community law, and therefore it is hardly surprising that it has been incorporated into
Convention law as well. At its simplest, the doctrine merely requires that the means
which are used must be proportionate to the ends which are to be achieved.
The European court of Human Rights recognizes the existence of an area of discretion
which it leaves entirely to national legal systems. Therefore the court may be said to be
exercising a supervisory jurisdiction, similar to that exercised by the English courts in
judicial review.

1.3.4. Procedure
Originally, there was an institution of the Council of Europe known as the European
Commission on Human Rights. The Commission gave initial consideration to allegations
of breaches of the ECHR, and in some cases referred the matter to the Court. However,
the Eleventh Protocol to the ECHR, which came into force in November 1998, abolished
the Commission and introduced a two-stage procedure, beginning with a preliminary
scrutiny by a committee of three judges, whose function is to decide whether a complaint
is admissible and whether a friendly settlement is possible. A case which survives this
filtering process will then proceed to a Chamber of seven judges, who will determine it
(art.27(2) ECHR). Exceptionally, and provided the parties agree, a seven-judge Chamber
may refer a case to a Grand Chamber of seventeen judges, provided that either it raises a
serious question affecting the interpretation of the Convention or its protocols, or there is
the prospect of the decision deviating from a previous decision of the Court (art. 30,
ECHR).

1.3.5. Remedies
The principal remedy is merely a declaratory judgment that a breach of the Convention
has occurred, but the Court may also award compensation. Although by article 46(1)
ECHR the contracting parties have undertaken to abide by the judgments of the Court to
which they are parties, there is no enforcement mechanism. The Human Rights Act 1998
does not give art. 46 any status in English law, and therefore compliance with the
judgments of the Court will continue to be strictly voluntary, although there will almost
always be good political reasons for complying promptly and with good grace.

2. The Human Rights Act 1998

2.1. The Aims of the Act

According to the White Paper which accompanied the Bill which became the Human
Rights Act 1998, the aims of the Act are four-fold. First, United Kingdom citizens should
be able to have their rights under the ECHR protected in the United Kingdom courts by
UK judges. Secondly, by eliminating the need to go to Strasbourg, the protection of rights
under the ECHR should become both quicker and cheaper. Thirdly, UK judges should be
able (according to the White Paper) to ‘make a distinctively British contribution to the
development of human rights in Europe’. Finally, there should be closer scrutiny of the
human rights implications of new legislation and policies.

2.2. How the Act Achieves its Aims

The first point which must be made is that, in the words of Lord Clyde, ‘the Act did not
incorporate the rights set out in the Convention into the domestic laws of the United
Kingdom’. (R v Lambert [2001] 3 WLR 206 ) Instead it adopts a much more subtle and
sophisticated approach, as a result of which the content of the ECHR is very largely
enforceable in the English courts, while the constitutional principle of the legislative
supremacy of Parliament remains intact.

2.2.1.The Concept of ‘Convention rights’


The scheme of the Act depends on the core concept of ‘Convention rights’, which s.1(1)
of the Act defines as meaning:
‘the rights and fundamental freedoms set out in –
(a) articles 2 to 12 and 14 of the Convention, and
(b) articles 1 to 3 of the First Protocol, and
(c) articles 1 and 2 of the Sixth Protocol,
as read with articles 16 to 18 of the Convention.’
The relevant articles and protocols are set out in full, as Appendix 3 (at pages 351-6) but
may be summarized as follows:
art.2 the right to life;
art.3 prohibition of torture or inhuman or degrading treatment or punishment;
art.4 prohibition of slavery and forced labour;
art.5 the right to liberty and security of the person;
art.6 the right to a fair trial;
art.7 freedom from the imposition of retrospective criminal liability and
punishment;
art.8 the right to respect for private and family life;
art.9 freedom of religion;
art.10 freedom of expression;
art.11 freedom of assembly and association;
art.12 the right to marry and found a family;
art.14 prohibition of discrimination in enjoyment of rights under the Convention.

First Protocol
art.1 the right to property;
art.2 the right to education;
art.3 the right to free elections.

Sixth Protocol
arts1&2 prohibition of the death penalty.

We have to notice that both art.1(which requires the contracting states to ‘secure to
everyone within their jurisdiction the [substantive] rights and freedoms’ guaranteed by
the Convention) and art.13 (which requires the provision of ‘an effective remedy before a
national authority’) were omitted on the ground that their inclusion would have been
superfluous, it must be said that s. 1(2) makes the operation of these articles subject to
derogations and reservations. Schedule 3 to the Act contains derogations, notified to the
Council of Europe in 1988 and 1989, and a reservation, notified in 1952. The
Derogations permit the UK to fail to comply in certain detailed respects with the
Convention where non-compliance is considered to be justified by terrorist activity
connected with the affairs of Northern Ireland, while the reservation is that the UK
accepts the principle of respect for the right of parents to ensure that their children are
educated in conformity with their own religious and philosophical convictions.

2.2.2. The Judicial Duty to take Case-law under the Convention into Account
Section 2 of the Act provides that any court or tribunal which has to determine any
question in relation to a Convention right ‘must take into account’ the case law which has
developed under the Convention. In R v Secretary of State for the Environment,
Transport and the Regions [2001] 2 WLR 1389, Lord Slynn, while acknowledging that
decisions of the European Court of Human Rights were not binding on English Courts,
nevertheless said:
‘In the absence of some special circumstances it seems to me that the court should follow
any clear and constant jurisprudence of the European Court of Human Rights. If it does
not do so, there is at least a possibility that the case will go to the court, which is likely in
the ordinary case to follow its own constant jurisprudence’.

2.2.3. Interpretation and Validity of Legislation


Section 3(1) imposes what has come to be known as ‘the interpretative obligation’,
namely that:
‘so far as it is possible to do so, primary and subordinate legislation must be read and
given effect in a way which is compatible with the Convention rights.’
Section 3(2) provides that s. 3(1) applies to all legislation enacted at any time, and the
provision is, therefore, retrospective to the extent that it does not apply merely to post-
Act legislation. S.3(2) also provides that s.3(1) does not affect the validity of any
primary legislation, nor of delegated legislation made under a parent Act containing a
provision to that effect. In practice, primary legislation almost always means Acts of
Parliament, though it may also mean certain exercises of the royal prerogative.

2.2.4. Declarations of Incompatibility


Although the Act contains nothing to diminish the legislative supremacy of Parliament,
s.4 does give a court at the level of the High Court the power to make declarations of
incompatibility where primary legislation conflicts with Convention rights.
Declarations of incompatibility have no effect on the cases in which they are made, nor
on the continuing validity and operation of the statute in respect of which they are made.
However, under s.10 of the Act, they may result in the provisions being amended or
repealed by remedial orders. The section also provides that remedial orders may be
made where the incompatibility of English law is identified by the European Court of
Human Rights.

2.2.5. The Duty Imposed on Public Authorities


Section 6 of the Act makes it unlawful for a public authority (which is defined as
excluding both Houses of Parliament but as including courts and tribunals, as well as
‘any person certain of whose functions are functions of a public nature’) to act in a way
which is incompatible with Convention rights. The effect of s.7 of the Act is that a person
who wishes to establish that there has been a breach of the duty under s.6, may do so
proactively by claiming judicial review, or reactively by way of defence to proceedings
brought by, or at the instigation of, the public authority.

2.2.6. Statements of Compatibility


Under s.19 of the Act, which came into force on 24 November 1999 (almost a year before
the bulk of the Act came into force), Ministers who are in charge of Bills in either House
of Parliament must, before the Second Reading of the Bill, state either that in their view
there is no incompatibility with convention rights, or that they wish the House to proceed
in the absence of such a statement. The latter alternative is unlikely to arise, although it
may do so. While the courts may refer to a Ministerial statement of compatibility when
interpreting a statute, they will do so only with caution. As Lord Hope said, in R v A,
having commented approvingly, on counsel’s decision not to rely on a statement of
compatibility:
‘These statements may serve a useful purpose in Parliament. They may also be seen as
part of the Parliamentary history, indicating that it was not Parliament’s intention to cut
across a Convention right…No doubt they are based on the best advice that is available.
But they are no more than expressions of opinion by the Minister. They are not binding
on the court, nor do they have any persuasive authority.’

2.3.Is the Act Retrospective as to Matters of Fact?

Although s.3(2) of the Act clearly provides that the interpretative obligation imposed by
s.3(1) applies to pre-Act statutes, the Act makes only one express provision relating to its
own retrospectivity as to matters of fact. More particularly, the combined effect of s.7(1)
(b) and s.22(4) is that where a public authority acted in breach of a convention right
before the Act came into force, and legal proceedings are subsequently brought by, or at
the instigation of, that authority, the defence may rely on the breach of the Convention
right even though the breach of the Convention right occurred before the 1998 Act came
into force.
A particular problem in relation to retrospectivity arose in R v Lambert [2001] 3 WLR
206. A majority in the House of Lords held that where both the facts and the hearing of
any case arising from those facts, occurred before the Act came into force, any
subsequent appeal against that decision which is heard now the Act is in force, must be
determined in accordance with the pre-Act position. Although this conclusion may be
thought to be no more than an application of the presumption against retrospectivity in
statutory interpretation, Lord Steyn dissented on the basis that public authorities
(including the courts) are under a duty to act compatibly with Convention rights, and
therefore the appellate court must do so.

2.4.The Vertical and Horizontal Effect of the Act

The fact that the Human Rights Act places a duty on public authorities to act in a way
which is compatible with Convention rights, without imposing a similar duty on anyone
else, might seem to make the Act enforceable only against the state and its emanations, or
to use the terminology which has developed in relation to Community law vertically but
not horizontally. Furthermore, this view might appear to be supported by a contribution
which the Lord Chancellor made to the Committee stage in the House of Lords, when he
said that:
‘the convention had its origins in a desire to protect people from the misuse of power by
the state, rather than from the actions of individuals and therefore s.6 of the Act does not
impose a liability on organizations which have no public functions at all.’(HL Deb,
November 13, 1997, cols 1231-1232.)
However, some eleven days later, he produced a more refined version:
‘We…believe that it is right as a matter of principle for the courts to have the duty of
acting compatibly with the Convention not only in cases involving other public
authorities but also in developing the common law in deciding cases between
individuals.’ ( HL Deb, November 24, 1997, col 783.)
Reading these two statements carefully, it is clear that the Lord Chancellor’s view was
that there is nothing in the Act to create any new causes of action against private
individuals and organizations and, therefore, borrowing the terminology of Community
law again, the Act has no horizontal direct effect. On the other hand, the status of the
courts as public authorities means that they have a duty to develop existing causes of
action in the light of Convention rights. In other words, the intention was that in cases
brought against private individuals and organizations, any relevant Convention rights
would (borrowing the terminology of Community law yet again ) have horizontal
indirect effect. Furthermore, the courts have agreed that this was not only the intention of
the Act but also its effect.
As time goes by, some judges may acquire a taste for the kind of creativity which the Act
already requires them to exercise, and may decide that their power to develop the
common law does, after all, extend to the creation of new causes of action. In other
words, the Act may still be held to have horizontal direct effect.
UNIT 6

1. The Doctrine of Judicial Precedent

1.1. An Introduction to the doctrine of Binding Precedent

The doctrine of binding precedent states that all courts bind all lower courts, and
some courts, at least to some extent, also bind themselves. The hierarchy of the courts
clearly becomes relevant in the present context.

1.2. Bindingness, Flexibility and the Rule of Law

First, it is worth commenting that a proper understanding of the doctrine of precedent


will lead us to the conclusion that in many cases the bindingness, which is alleged to
be the basis of the doctrine, is more apparent than real. In the words of Carleton
Kemp Allen:
‘Whatever merits precedent may possess (and they are many) certainty is the very last
quality which can be attributed to it…Nobody knows, until a case has come to trial,
what will emerge from all the “authorities”… Every lawyer is aware of points on
which the authorities are conflicting ad obscure, and as precedents multiply, so do the
conflicts and obscurities.’ (Case Law: An Unwarrantable Intervention (1935) 51 LQR
333.)
Secondly, it follows that a central task facing any discussion of the doctrine of
binding precedent is to identify as precisely as possible the extent of the discretion
available to the judges in cases. It will be apparent that there is a constant tension
between the separation of powers, which allows judges sufficient independent
discretion to interpret and apply the law on a case-by-case basis, and the rule of law,
which requires that people should be able to predict the legal consequences of their
conduct with some degree of certainty.
Thirdly, we have to consider the practice of the European Court of Justice with
regard to precedent not only as a necessary foundation, but also because a
comparative perspective may prompt lawyers in any jurisdiction to question their own
system when they see how others tackle the same problems.

1.3. A Wide View of Precedent

The idea of precedent may be formulated by saying that similar cases should be
decided in a similar manner. This view of precedent is based partly on the proposition
that consistency is an important element of justice, partly on the fact that the practice
of the following previous decisions result in improved efficiency, because points of
law which has once been decided can simply be applied subsequently, without being
subject to repeated re-argument, and partly on judicial comity (Judicial comity
means the mutual respect which judges have for their colleagues.)
The idea of precedent may also develop in the rather narrower sense, with the result
that courts may regard themselves as being actually bound to follow earlier
decisions. The use of precedent in this narrow sense is largely peculiar to English law,
although it is also evident to some extent in the other common law jurisdictions which
derive from English law.

1.4. A Narrow View of Precedent: the Doctrine of stare decisis

The Latin tag of stare decisis is sometimes attached to the doctrine of binding
precedent as the doctrine stare decisis, but since this phrase translates as ‘to stand by
decisions’, it adds nothing to an understanding of the concept.
The doctrine of binding precedent states that all courts bind all lower courts, and
some courts may also bind themselves.The two halves of this proposition may
respectively be labelled the vertical and horizontal dimensions of the precedent.

1.5. Binding Precedent and res judicata

The practical administration of justice in any legal system requires that once a case
has been decided the parties should be bound by the decision, because endless re-
opening of cases is wasteful of resources. The point at which finality will be imposed
will depend on the detail of any appeal system, which may be available, but at some
stage the appeals must run out and finality must be imposed. This requirement of
finality is provided by the doctrine of res judicata. There is no convenient English
equivalent for this phrase, but it may be translated as ‘the matter has been decided’.
The conceptual difference between binding precedent and res judicata is simply that
the former deals with matters of law, which may be binding in future cases, while
the latter deals with disputes between the courts in individual cases, and the
bindingness of the outcomes of those cases as between the parties.
The relationship between the two doctrines is well illustrated by a short series of
cases decided during, and shortly after, the Second World War. In order to understand
these cases, it is necessary to understand something of the law relating to the taxation
of certain kinds of legacies.
It is common for testators, when drawing up their wills, to make provision for
beneficiaries to receive annual incomes out of the estate. Furthermore, testators may
decide that such annuities should be ‘free of tax’, thus ensuring that the beneficiaries
will continue to receive the same income even if the rate of income tax changes. Of
course, testators have no legal power to exempt people from income tax.
In Re Waring, Westminster Bank v Awdrey and Others [1942] 1 Ch 425 the will had
been made before 3 September 1939, but the death did not occur until after that date.
There were two annuitants, but only one of them was able to be a party to the case,
the other one being in German-occupied Belgium.The Court of Appeal held that 1941
Act applied, and that therefore the annuities were subject to the top slice of income
tax. Another case, involving the same point of law but arising out of a totally separate
set of acts, came before the courts in Berkeley v Berkeley [1946] AC 555. The House
of Lords held that the 1941 Act did not apply, on the basis that provision was not
made until the death occurred. In other words, the annuitant was protected and the
rest of the estate had to bear the whole of the income tax liability.
This decision led to the case of Re Waring, Westminster Bank v Burton-Butler [1948]
1 Ch 221, which involved the same will as the previous Re Waring case, but this time,
the war having ended, both the annuitants were parties. The court held that the
annuitant who had been a party to the earlier case was not entitled to the benefit of the
House of Lords’ decision in Berkeley, because the matter was res judicata as a result
of the earlier case. However, the position of the other annuitant was different because
she had not been involved in the earlier case. As far as she was concerned, therefore,
the doctrine of binding precedent operated in the ordinary way, so she was entitled to
the benefit of the decision in Berkeley. Accordingly, she received the annuity
completely free of tax.

1.6. Retrospectivity and Prospectivity in the Operation of Binding


Precedent

1.6.1. Introduction
Whenever the law is changed, an issue arises as to the date on which the change takes
effect.
Statutes which change the law may, of course, contain express provision as to the
effective date of the changes which they introduce, and they commonly do so.
However, in the absence of such express provision, the courts will begin with a very
strong presumption that Parliament intends the changes to apply only to future
transactions and events – or in other words, that the changes shall only be
prospective and not retrospective.
On the other hand, where the courts change the law through the doctrine of binding
precedent, they have no such constitutional qualms, and retrospectivity is the order
of the day. Thus, in the Waring – Berkeley – Waring saga, the Berkeley decision
affected the outcome of the second Waring case – at least as far as one of the
beneficiary was concerned – even though all the facts of the case had occurred before
the Berkeley decision was made. Therefore, when the courts declare what the law is,
they are also declaring what it was at the time of the transactions or events giving rise
to the litigation in question. It follows that the law, as it is now declared to be, will
affect all previous fact-situations, including those which have no connection
whatsoever with the case in which the overruling occurs. In practice, of course, the
doctrine of res judicata (as illustrated in the Waring – Berkeley – Waring sequence of
cases) may make it impossible to enforce the new law, as may the application of the
time limits within which proceedings must be commenced and appeals must be
brought.

1.6.2. The idea of prospective overruling


With the exception of certain cases arising from the devolution legislation affecting
Scotland, Wales and Northern Ireland, no kind of prospective law-making by judicial
decision forms any part of the practice of any courts within the United Kingdom.
In the case of prospective overruling, it is up to the courts to formulate their own
answers. One possibility is that the court which overrules a decision may apply the
old law to the instant case, while going on to say that the new law shall be applied in
the future cases arising from transactions and events occurring after the date of the
instant case. Alternatively, the court may take this approach to the prospective
operation of the new law, while following the prospective operation of the new law,
while following the retrospective tradition to the extent of applying the new law to the
instant case. Another possibility is that the court which overrules a decision may
apply the old law to the instant case, while specifying a future date on which the new
law will come into effect. The purpose of this delay is to give the government an
opportunity to make remedial delegated legislation, or secure the passing of remedial
primary legislation, which will, in either case, replace the new law which the court
has just formulated.(Whether the government will wish to nullify the effect of the
new law will, of course, depend on all the circumstances.)

2. Ratio Decidendi and Obiter Dictum

2.1.Introduction

Although the doctrine of binding precedent states that all courts bind all lower courts
and some courts, at least to some extent, also bind themselves, it would be wrong to
conclude that everything contained in a decision is of equal weight. The traditional
view holds that there is a crucial distinction between the ratio decidendi (commonly
reduced to ratio) of a judgment, which will be the binding part, and the obiter dicta
(commonly reduced to dicta, or, in the singular, dictum) which will be the non-
binding part.

2.2.The concept of ratio decidendi

The phrase ratio decidendi may be translated as the reason for the decision.
When speaking of the ratio decidendi of a case it is tempting to think in terms of a
fixed and single entity with an objective and continuing existence, which merely
needs to be located and identified. Formulating the ratio of a case is a creative
enterprise. One of the most influential commentators on the concept of ratio was
Goodhart, whose essay The Ratio Decidendi of a Case first appeared in (1930) 40
Yale LJ 161, and was reprinted in 1931 in Essays in Jurisprudence and the Common
Law, p.1.
The essence of Goodhart’s argument is that the ratio can be discovered by taking into
account the material facts and the decision based on those facts. Furthermore, facts as
to person, time, place, kind and amount are all presumed to be not material unless
there is good reason to the contrary. Identifying the ratio by reference to the material
facts is explicable on the basis that it is reasonable to suppose that both the judge and
the advocates were concentrating on the law as it related to those facts, and therefore
the quality of those parts of the judgment which relate to the material facts is likely to
be higher than the quality of anything else which the judge says.

2.3. Descriptive and Prescriptive Ratios

In its descriptive sense, the phrase ratio decidendi is used to describe the way in
which the earlier judge reached the decision. Therefore, in this context a later judge
must acknowledge the materiality of the facts which the earlier judge treated as being
material. The crucial question arising from the doctrine of binding precedent in
practice is the extent to which later courts are bound by earlier ones. Therefore, the
essential question is not how did the earlier judge come to the decision? But what is
it in the earlier case which is binding on the later judge?
The answer to this question lies in identifying the prescriptive ratio of the earlier case
or, in other words, the statement of law derived from the earlier case which that case
prescribes as being the law for later courts to follow. Julius Stone’s version of the
distinction is as succinct as any:
‘Should we not…try scrupulously to respect the distinction between the use of the
term ratio decidendi which describes the process of reasoning by which a decision
was reached (the “descriptive” ratio decidendi), and that identifies and delimits the
reasoning which a later court is bound to follow (the “prescriptive” or “binding” ratio
decidendi)?’ (The Ratio of the Ratio Decidendi (1959) 22 MLR 597.)

2.4. Techniques used in handling ratios

A number of terms have acquired relatively well-defined meanings in the context of


describing the way courts handle ratios.

2.4.1. Following, Approving and Applying


An earlier decision is said to be followed in a later case where the facts of the two
cases are sufficiently similar for he judge in the later case to be persuaded that the
same principle of law should be used. Any court may follow a decision of any other
court, but where the later court is higher than the earlier one, the principle may be
said not simply to have been followed but to have been approved. If a later court
finds an earlier decision attractive, and the facts of the cases fall short of being
substantially the same but can be said to be not dissimilar, the later court may apply
the earlier decision.

2.4.2. Not Following, Doubting, Disapproving and Overruling


An earlier case may not seem attractive to a later court, even though the facts of both
cases are substantially the same. Where this happens, and the hierarchical relationship
of the courts concerned is such that the later court is not bound by the earlier decision,
the later court may not follow it. Not following may result in the earlier case being
said to have been doubted or even disapproved. If the later court is hierarchically
superior to the earlier one, and is satisfied not only that the earlier decision is wrong,
but also that it should no longer be followed, the later court may overrule the earlier
decision, thus depriving it of any power to bind any court in the future.
2.4.3. Distinguishing
In practical terms, perhaps the most significant technique of all is distinguishing.
This takes us back to the idea of material facts. If the material facts of the earlier case,
having been formulated at the appropriate level of generality, are not the same as the
material facts of the later one, the later court may simply distinguish the earlier one.
For example, in Bridges v Hawkesworth (1851) LJ 21 QB 75, a customer was held to
be entitled to keep money which he had found on the floor of a shop. By way of
contrast, in South Staffordshire Water Company v Sharwood [1896] 2 QB 44, the
finder of two gold rings in the mud at the bottom of a reservoir was held to be not
entitled to retain them, because the site of the finding had not been open to the public.
Distinguishing an earlier case is simply a way of saying that it is irrelevant to the later
case. Therefore distinguishing does not usually imply any criticism of the correctness
of the earlier decision in relation to its own facts, nor does it undermine that
decision’s bindingness in other cases. However, it is worth noticing that there is one
special form of distinguishing which may be taken as implying doubt as to the
correctness of the earlier decision. This arises where the later court expresses the view
that the earlier decision should be confined to its own facts.

2.4.4. The per incuriam Doctrine


A literal translation of per incuriam is simply ‘through lack of care’ but the way the
doctrine works shows that rather more than mere carelessness is required.
Unfortunately, the courts have not always agreed with each other as to the precise
content of the doctrine. In Duke v Reliance Systems Ltd [1987] 2 All ER 858, Sir John
Donaldson MR stated what may be called the strong version of the doctrine:
‘I have always understood that the doctrine of per incuriam only applies where a
court has reached a decision in the absence of knowledge of a decision binding on it
or a statute, and that in either case it has to be shown that, had the court had, it must
have reached a contrary decision…
I do not understand the doctrine to extend to a case where, if different arguments had
been placed before it, it might have reached a different conclusion’.
More recently, in R v Simpson [2003] EWCA Crim 1499, [2003] 3 All ER 531, Lord
Woolf CJ, pressing over a five member Court of Appeal, stated a weaker version,
saying that the court agreed with Bennion that
‘the basis of the per incuriam doctrine is that a decision given in the absence of
relevant information cannot safely be relied upon. This applies whenever it is at least
probable that if the information had been known the decision would have been
affected by it’. (Statutory Interpretation, 4th ed, 2002.)

2.5. The Concept of obiter dictum

The starting point is that the concept of obiter dictum is defined negatively, in the
sense that it embraces all those parts of a judgment which are capable of being
statements of law which do not fall within the definition of ratio decidendi. The
functional distinction, as opposed to the definitional one, is that obiter dicta are not
binding. Although dicta are not binding, it does not follow that they are worthless in
terms of the doctrine of precedent. It is obvious that dicta may be persuasive, and
that their degree of persuasiveness will vary from virtually nothing to something
which in practice is indistinguishable from ratio.
In Hedley Byrne Co Ltd v Heller Partners Ltd [1963] 2 All ER 575, the facts were
that A gave B a banker’s reference about C. The reference was stated to have been
given “without responsibility”, but B nevertheless relied on it and extended credit to
C. the reference was inaccurate and B suffered financial loss as a result. The House of
Lords decided that there could be liability in negligence for a misstatement resulting
in financial loss. However, on the present facts, all the House of Lords needed to do
was to say that, even if liability existed in principle, the disclaimer would be effective
to prevent B from succeeding against A. Therefore, on the material facts of the case,
there was no need to decide whether the liability did actually exist in principle, and it
follows that the statement to this effect could be regarded as an obiter dictum.