The Working Court System of England and Wales

House of Lords - (The Supreme Court)

European Courts of Justice
European Human Rights
European Union – Convention

Court of Appeal

Civil Division Criminal Division

Crown Court High Court

County Court Magistrates Court

(Youth)

Tribunals
(County Court)

Ever one of the Court rooms which is apart of the Court System of England
and Wales are based upon and use this structure.

This is shown in the above flow diagram.

The House of Lords, soon to be The Supreme Court is the highest level of the
system, the Court of Appeal is where all appealed cases from lower courts will
take place, and then there is a divide in the flow chart representing the Civil
and Criminal Divisions and their courts.

Crime (Conviction = Beyond Reasonable Doubt): An act or omission by a

person(s) which is punishable by the courts and legal systems in place.

Civil (Conviction = Balance): Rights and obligations between individuals.

UNIT ONE – LAW MAKING AND THE LEGAL SYSTEM
Separation of Powers
- Executive (Front Bench Ministers) – Puts laws into effect
- Legislature (Government) – Makes and writes the new laws
- Judiciary (Magistrates + Judges) – Interprets the laws in court

Each one of these sections should be kept separate so each branch doesn’t
have too much power in the making and decisions of law.

If the Front Benches (Executives) have too much power, resulting in them
being able to tell the Legislature what laws to make and write then it will
undermine the Legislatures.

If the Front Benches (Executives) have too much power resulting in them
being able to tell the Judiciary how to put the laws into affect then the justice
system will be a democracy as there will be no giving or taking on sentencing
as the Executive will tell the Judiciary what decisions to make.

Influences on Parliament
Different political parties have their own ideas, ‘Party Manifestos’. If they are elected
as the leaders of the country then they will enforce their ideas that will be stated in
the manifesto.
Possible party ideas may be as follows:
- Taxes
- School leaving age
- NHS
- Immigration

Pressure Groups
A pressure group is a group of people who will fight for something they feel
strongly about and want a change in.

The following could be main pressure groups to Parliament:

European Union – This group may want changes in, Employment, Taxation,
Discrimination (Statute Law UK) including Sex, Age, Racial and Disability

CBI – Employers’ Organisation – This group may want Parliament to lower

the Minimum Wage, Corporation Tax and for it to be easier to fire employees.
(Opposition Trade Union – More job security)

OAP’s – This group may want Parliament to give them Higher State Pension,
more Free Travel (travel times for their bus pass) and more Fuel Allowance.

More Pressure Groups may include …

Local Council, Political Manifesto, Emergencies (Financial, Energy, Negative
Equity) Flooding, Media/Public Pressure.
Media and TV Pressure
The newspapers are particularly bias towards different political parties, which
means trouble for Government.

A good quotation that shows what trouble the media can do is,
‘The Press/Media have the power, without the responsibility’.

This shows that the media can make the Public so irritated and angry at the
current Government by reporting on subjects such as;
- Immigrants
- Taxes
- Dangerous Dogs
- Muggings
- Hand Guns
- Knife Crime
- Gang Crime

The newspapers can sensationalise headings and blow subjects completely

out of context, which they know will bring campaigns and such, from the
public wanting a change in the law. As the newspapers are only one sided
most people don’t take the time to read another side of the story and believe
whatever the newspapers report. This results in Parliament having to act
swiftly to change the law to keep the public happy and to not spark anger
towards Government.

The Government will have to act quickly to answer the public needs, but when
the Government does act, it isn’t always the best way. An example of this is
the Dangerous Dogs Act.

An issue that has caused many problems is Fox Hunting. The media
continuously reported on Fox Hunting to be banned. Along with the media
many members of the public campaigned for fox hunting to be illegal. The law
was made fairly quickly, but as a result of it being a fast change in law there
are floors in the Law. The chasing and killing of the fox is illegal, so now fox
hunters chase the fox but no longer kill it.

Codification and Consolation

Codification
Law related to a specific area (Manslaughter) is broken down into simple laws
instead of having many to one area. Then the simplified laws will be made Statute.

Consolidation
This doesn’t change any laws but brings certain laws together to make into one
Statute, this also means they’re easier to find.
The Law Commission
Who are the Law Commissioners
The Commission is made up of 5 full-time Commissioners, these are;
- The Chairman (High Court Judge)
- 4 Commissioners (People of the Court [Barristers and Solicitors] and
teachers of the Law)
- These people are appointed by The Ministry of Justice
- The Commissioners are supported by the Chief Executive oh the
Commission and another 20 members of staff who do background
research (Government Civil Servants) and the Parliamentary Council
- The Lord Chancellor decides on what the Civil Research Team will
research and on what the criteria is. He will take views from Judges,
Lawyers, Government Departments and the Public to decide what is
best and what needs to be done.

About the Law Commission

The Commission focus on many different aspects, some are:
- The Law Commissions aim to make the law modern, fair and simple
- They conduct research and consultations, and pass the information
they gather onto parliament which helps with change to the law
- They codify the law to reduce the number of Statutes in the UK
- The commission doesn’t give legal advice with individual cases or on
the law itself
- The Commission doesn’t investigate complaints about the law or
lawyers
- The Law Commission covers many areas, including;
Commercial/Common Law, Property, Family or Trust Law, Criminal
and Civil Law

How A Bill is Made

How the Bill Flow Chart (To Become an Act)
E.g. Public Bill – Criminal Justice Act 2003
E.g. Private Bill – Whitehaven Harbour Act 2007

1. A Bill is drafted
2. First reading in The House of Commons
3. Second reading in The House of Commons
4. Committee Stage
5. Report Stage
6. Third reading in The House of Commons
7. Same procedures in The House of Lords
8. Royal Assent

Parliamentary Councel
This is made up from 2 Lawyers who physically write the law – along with
Parliament.

Judicial Independence
Judicial Independence is defined as where the Judicial Brach are separated
from the executive and legislative departments. This means that judges can
reach their own decisions, taking into the facts of the case and the law itself.

Judicial Review
This is the process of taking a case to a High Court to see if it was the right
decision – Legally. An example could be an application to the local council to
build something somewhere and it was rejected. The person hoping to build
the object would take the local council to a High Court to appeal the decision.

Judges’ Salaries
Judges’ salaries are held in the Treasury – Bank of England, so the
parliament cannot pressure the Judges’ into making a decision and using their
salaries into making a decision.

Separation of Powers
The separation of Powers keeps the Executive, Legislative and Judicial
branches separate from each other and ensuring they don’t become
dependent upon each other.
Reasons
The reasons behind the Separation of Powers is so one branch does not
become too powerful, resulting in one becoming a dictatorship.

What happens if Executives receive too much power?

If the branch of Executives (Prime Minister and front bench ministers) become
too powerful and were in a position to tell the Judiciary what to do, there
would be no justice as the judge would have no choice in what decision to
make. This would result into a democracy.

Decisional (Importance) Independence

Decisional independence is important for the following reasons;
- To maintain public confidence in the Legal System
- To uphold the ‘rule of the law’
- To protect individual rights and liberties

How the EU affects the UK Law

- All UK laws must reflect and take into account EU laws
- EU law is dominate over UK law

Pre-Legislative Processes
Green Paper
It doesn’t particularly matter if Government loose the vote for this new Act as it
is in its premature stage.
- Green Cover
- An early draft
- An early discussion document

E.g. Legal Drinking Age

People affected by this change would be:
- Youth Groups
- Parents
- Schools
- Insurance Companies
- Police
- Churches (Moral Decisions)

White Paper
If the Government lost the vote for this new Act to be taken to the next stage,
it would look bad on Government
- A formal draft of what the Act will look like
- A formal discussion stage
- Draft of the law to be

Legislative Programme
- Finalising the idea of the Bill to be passed through Parliament

The Queens Speech is announced

The Formal Legislative Law Making Process

Most laws are not made in Parliament, but in fact by Government Departments
and Civil Servants.

Formal Law Making Process

1st Reading of the Bill/Clauses
- Debate/Vote (To The Next Stage)
2nd Reading
- Debate/Vote (Main Debate) – (At this stage the media will report on the
new Bill.
E.g. Lowering the age of homosexual acts to the act of 16
- Main principle debate

Standing Committee Stage (MPs from all Parties)

- Up to 50 MPs – Deep depth discussion and debate
- Suggests amendments and changed to the Bill

Report Stage
Amendments voted for/not for on the suggested amendments

3rd Reading
- Minor amendments

*Process repeated in the House of Lords

(Then …)
- Sent to the House of Commons/House of Lords ‘Ping-Pong Stage’
- House of Commons make the change and then sends back to the
House of Lords (Ping-Pong Stage, taking place)
- Agreement made

Royal Assent – (Minister/Queen Signs + Queens Speech)

The Bill and Clauses become an Act of Parliament and different sections – The
different sections come into affect when Parliament chooses too.

Delegated Legislation
Primary Legislation – An act of Parliament, E.g. Theft Act
Secondary Legislation – Delegated legislation/Powers given by Government
- By-Laws – Laws made by the county/district council, these could include
No-Drinking Zones, No-Parking Zones etc.

- Statutory Instruments - Secondary laws made to make the ‘Parent Acts’

work. Statutory Instruments can be anything such as where First Aid boxes
should be placed, Window sizes, Heavy object courses, (1000’s) passed by
different departments, such as the Department of Industry.

- Order-in-Council – This will generally be used only in emergencies. Order-

in-Council is where the Queen and her Privy (The Ministers [Prime Minister])
will set out an Act. The act will pass Parliament at a later date as the Act will
only be made in an emergence there wouldn’t necessarily be any time for the
proposed Act to pass all the Parliamentary Stages in time.

Parent Acts
Other people bar Senior Ministers can make Delegate Legislation. These
people can include the Prime Minister and the Queen, however, on the advice
of the Privy Council. Others may include Councils, NHS, National Trust, BMA,
Air-Ports and Train Companies. In more detail;
- Air-Ports/National Trust – Where members of the Public can go
- Rail Operators – Throwing objects over a bridge
- NHS – Car parking fees
- BMA (British Medical Association) - What doctors restrictions are

Why is Delegated Legislation used?

Some reasons why delegated legislation is used are;
- It saves Parliament time
Parliament does not have to consider the debates or votes and complex
Regulations

- Technical Expertise
The relevant bodies in Parliament may not have necessary knowledge of the
certain areas they are dealing with and making new acts for. Delegated
Legislation allows people with a brilliant knowledge of a certain department to
help make the new acts. The reason why they have such a good knowledge is
because they are working in that specific department.

- Law-Making and Amendments are a lot quicker

The process to make a law in Parliament is a very time consuming procedure.
In emergencies Delegated Legislation is especially helpful with the Order-in-
Councel, as they can create quick laws and will pass them at a later date.

Reviewing and Monitoring Legislation – What Powers are needed?

Delegated Powers and Regulatory Reform Committee Primary Legislation
Merits Committee Secondary Legislation
Negative and Affirmative Instruments
Negative: There are around 1,100 Negative Instruments made a year. This
means these acts become a law without passing through Parliament. They
can be opposed or rejected, but not amended. Is the Negative Instrument will
be rejected it will be within 40 days.

Affirmative: There are around 200 Affirmative Instruments made a year. The
most important delegated legislations are subject to Affirmative. Both houses
must approve the Draft S.I in a vote. (To be approved by parliament).

Delegated Legislation – Control by the Courts

Courts (mainly High Courts) can challenge Delegated Legislation on a number
of grounds that it is ultra vires. This means that it goes beyond the powers
that Parliament granted to do so in the enabling act. This can be challenged
through the Judicial Review (these are the people who will decide if a case is
ultra vires) or through a claim between two parties.

If any Delegated Legislation is deemed as ultra vires then it becomes void and
is not effective. An example of this was in R v Home Secretary ex parte Fire
Brigades Union (1955). This is where changes from the Home Sectary to the
Criminal Injuries Compensations Scheme had gone beyond the powers which
were given to him in the Criminal Justice Act 1988. This means a barrister
representing the Crown with a lawyer representing the Home Secretary on
matters which concerns Fire Brigades.

‘ex parte’ – A case about someone who isn’t actually giving evidence in court,
but are being represented.

As well as R v Home Secretary ex parte Fire Brigades Union, other cases

which represents this are the;
- Ministry of Labour – Aylesbury Mushroom’ (1972)
- Strickland v Hayes Borough Council (1896)

In the Aylesbury Mushroom’s case the Ministry of Labour failed to consult the
Mushroom’s Growers Association who represents around 85% of mushroom
growers. This resulted in part of his Training Board was invalid as he did not
follow the procedure correctly.

In the Strickland v Hayes Borough Council case of 1896 a by-law was

introduced resulting of the prohibiting of the singing or reciting of any obscene
song or ballad and the use of obscene language generally. This was
considered ultra vires as it was do widely drawn as it covers acts done in
private as well as in public.

Advantages and Disadvantages of Delegates Legislation

Advantages
Knowledge and Expertise
Technical knowledge of the subject

Saving Parliamentary Time

Saves debates and votes in Parliament, also it saves Parliament from
entering complex rules and regulations

Allows Consultation
Ministers can have a consultation before regulations are drawn up – this is
important for technical matters; to ensure it is workable

Can be made quickly

Acts of Parliament are very time consuming – Delegated Legislation allows for
quick laws and are invaluable in emergencies

Can be amended Quickly

Law is kept up to date and can be revoked easily

Disadvantages
Undemocratic
Delegated Legislation is made now further from the HOC. It allows non-
elected bodies make the law. Parliament has little control over this.

Less Public and Discussion Stages

In Statute laws there are many public stages. (Papers, Report Stages, Media,
HOCL) Delegated Legislation is done in Government departments and usually
by Civil Servants.

Large Volume
The large volume of Delegated Legislation makes it difficult to discover the
present law. This is because of the lack of publicity.

Sub-Delegation
This means that the law making authority is handed down to another level.
This causes criticism such as ‘our law is made my civil servants and merle
stamped by a minister’.

Statutory Instruments
Statutory Instruments are rules and regulations made by Government
Ministers. Different Government departments are given the authority to create
these Statutory Instruments for their departments. Statutory Instruments are
largely used for law making. With around 3000 bought into effect each year.
An example of a statutory Instrument is the Police and Criminal Evidence Act
1984. This gave powers to the Minister of the Home Office to produce codes
of practice to the police to use powers such as police arrest.

Literal Rule
RELATED CASES:
Whiteley v Chappell (1868) or LNER v Berriman (1946)
Description of the Literal Rule
This rule is where the Judge will simply read the statue and judge the case by
what Parliament wrote on the statue. However sometimes the outcome of this
can sometimes become unjustified, as was seen in Whiteley v Chappell and
LNER v Berriman (1946).

Whiteley v Chappell (1868)

Where the defendant used someone’s name when he voted for a political
party, however the man had died but his name was still on the voters list. The
statute states that it is an offence to ‘Impersonate anyone who is entitled to
vote’. The judge found the defendant not guilty as the person he
impersonated was not entitled to vote as he had died.

LNER v Berriman (1846)

This is where Mr Berriman was working on a railway track maintaining oil
posts, while doing this there was no one on the lookout post and Mr Berriman
was killed. His widow tried to claim compensation as the Fatal Incidents Act
stated that there should have been a look-out for men working on or near a
railway line. However the act went on to say that a look-out should only be
provided if meant are ‘relaying or repairing the track’. The judge to this section
of the act which was ‘for the purposes of relaying or repairing the track’, which
Mr Berriman wasn’t – he was in fact maintaining oil points on the track, which
meant that Mrs Berriman did not get any compensation. (At that time, since
then Mrs Berriman has appealed this decision and received compensation).

Advantages of the Literal Rule

- Leaves law making to the elected party as the judge simply interprets
their words in the Statute
- Makes law more certain as judges follow the statute which will be the
same for all the cases involved unless the state is repelled or
amended.

Disadvantages of the Literal Rule

- This assumes every Act is perfectly drafted where as not all Acts are,
some have large gaps which the judge will have to fill themselves
- Words are used in broad terms in Acts
- The Act may lead to an absurd result, this was seen in ‘Re Sigsworth’
- This can also lead to unjust decisions being ruled

Golden Rule
RELATED CASES:
R v Allen (1872) or Re Sigsworth (1935)
Description of the Golden Rule
This rule is a follow on from the Literal Rule. The judge will use the Literal
Rule, but of the outcome of the ruling is absurd then the judge will follow the
Golden Rule. Cases that show and use this rule are R v Allen and Re
Sigsworth:

R v Allen (1872)
This case is a case involving bigamy. The Offences Against the Person Act
1861 under section 57 made it an offence to ‘’marry’ whiles ones original
spouse was still alive’ (with no divorce). However the word ‘marry’ can mean
to become legally married to someone or it can mean the person ‘goes
through a ceremony of marriage’. The courts then had to decide to use the
second meaning also as the outcome if they didn’t would result in no one
being able to commit bigamy as they could still go through a ceremony of
marriage but not legally marry them if this broad term was not included.

Re Sigsworth (1935)
This case shows that Sigsworth murdered his mother to inherit her estate and
possessions. This is an absurd result as the person has committed murder of
his mother to receive her possessions. The judge ruled that Sigsworth would
be imprisoned for his crime. He would not receive the estate and possessions
of his mother as no one should be rewarded for their crimes.

Advantages of the Golden Rule

- Respects the words of Parliament as the judges are still using their
exact words
- Only used in a limited amount of cases
- Avoids the worst problems of the Literal Rule

Disadvantages of the Golden Rule

- Can only be used in a limited amount of situations
- A parachute to cover the mistakes and floors in the Literal Rule, Zander

Mischief Rule
RELATED CASES:
Smith v Hughes (1960)

Description of the Mischief Rule

This rule allows judges to look at gaps and floors in the law and then they will
fill them. This gives judges the opportunity to make more decisions. The judge
will look into what the statute is trying to remove – its mischief. This will
promote the purpose of the Act.

Smith v Hughes (1960)

In this case the relevant statute read, ‘it shall be an offence for a common
prostitute to loiter or solicit in a street or public place for the purpose of
prostitution’. Six different women had been taken to court under this case and
in each case none of the women were in the ‘street or public place’. The place
in which they solicited was in windows or on balconies. In this case the
defendant was in the window whistling and calling out at people to offer her
‘services’. Therefore she was not in a public place put in a private place.
However the judge used this rule and to remove the mischief and therefore
sent the defendant to prison as he said that the Act was made to ‘clean the
streets’ and to ‘enable people to walk along the street without being molested
or solicited by common prostitutes’.

Advantages of the Golden Rule

- Fills the gaps and floors in the law
- Promotes the purpose of the Act
- Produces ‘just’ results

Disadvantages of the Golden Rule

- Judicial Law-Making – Non-Elected bodies
- Not as wide as the purposive approach (below)
- Limited to looking back at the law or prior to the Act
- Makes laws uncertain in different cases

Purposive Approach
RELATED CASES:
R v Registrar General ex parte Smith (1990)

Description
This approach goes beyond the Mischief Rule, as it court does not look to see
what the gaps in the law are. Judges will simply decide what they think
Parliament want to achieve.

R v Registrar General ex parte Smith (1990)

In this case the court has to consider Section 51 of the Adoption Act 1976.
Subsection 4 of the Act stated that before supplying information to the
applicant they had to inform them about counselling services available. Before
1975 the Registrar-General could not give out any information unless the
applicant attended an interview with a counsellor.

This case involved an application by Charles Smith for information to enable

him to obtain his birth certificate. Mr Smith when through all the correct
directions and was prepared to see a counsellor. However his record showed
he had been convicted of 2 murders and he had be detained in Broadmoor as
he suffered from recurring psychotic illness, and psychiatrists thought he may
be hostile towards his natural mother.

The Court of Appeal took into account that even though the words of the Act
is clearly written, Parliament could not have wanted to provoke serious crime
so it was rules by using the Purposive approach that the Registrar-General
did not have supply this information.

Advantages of the Purposive Approach

- Leads to justice in individual cases
- Broad approach leading it being able to be used in more situations
- Allows for new technology

Disadvantages of the Purposive Approach

- Leads to Judicial Law-Making
- Can make certain laws uncertain to different cases
- Difficult to discover the intention of Parliament

Internal and External Aids

Internal Aids
- Explanatory Notes – Outlines the Act (Location – Beginning)
Seen in the Health Act 2002
- Long and Short Titles (Location – Short Top of the Act, Long in the
context of the Act)
 - Punctuation
- Margin Notes
- Section/Sub Headings
- Interpretation Section – Interprets and defines broad words, and how
the Act may be used (In certain acts, including Consumer Credit Act)

External Aids
- Hansard
- Parliamentary Documents (Green and White Papers)
- Law Commissioners Reports
- Dictionaries
- Related Statutes - Pari Material
- Academic Research
- Human Rights Act

Hansard
Hansard is the day to day minutes of the House of Commons and the House
of Lords. It is published daily.

Judges can use Hansard if the Statute they are using is unclear, ambiguous
or obscure. Hansard will help clarify the meaning of the Statute. They can only
use the words of a minister or MP who are in favour of the Bill; they can note
use someone who is opposing the Bill.

At one point judges were unclear of when they could use Hansard, and did so
unofficially. However now it has been cleared and judges can use Hansard
officially as long as they follow the requirements above. (Someone speaking
in favour of the Bill)

An example of when Hansard can be used was in Davis v Johnson 1979.

Parliamentary Supremacy – Parliamentary Sovereignty

Sovereignty – To make your own decisions)
In the nineteenth century Dicey said that there were three main points to
Parliamentary Supremacy and that these were:
1. Parliament can Legislate on subject matter
 2. No Parliament can be bound by any previous Parliament. Nor can a
Parliament pass any act which will bind a later Parliament
3. No other body has the right to override or set aside an Act of
Parliament

No one can tell Parliament what to do and what laws to make. However if a
court sees that a decision is unjust then the court can challenge the decision,
based on the Act but not Parliament itself. As Parliament is at the highest
level their Acts can not be questioned but their decisions can be.

Legislating on any Subject Matter

There are no limits on what Parliament can make or legislate on (bar point two
and three). An example of this was hare to the throne when King James ll’s
children were not allowed to have hair to the throne, in 1700.

Cannot Bind Successors to Parliament

- Each Parliament should be able to make any laws it wishes and on and
subject matter. They can NOT however pass an Act if it will later bind a
later Parliament.
- They can repeal any Acts of Parliament (however there are some
certain restrictions such as the Act of Settlement 1700 – after 300
years it is unlikely and unrealistic to repeal this Act)

Cannot be Overruled by Others

No challenge can be made to an Act of Parliament. A case that shows this is
the British Railways Board v Pickin (1974). Pickin alleged fraud had taken
place which resulting in Parliament passing an Act which deprived Pickin of
this land of Proprietary Rights. Even though fraud had taken place the case
was struck out as no Court is entitled to go behind an Act of Parliament.

Limitations of Parliamentary Supremacy

The following have an effect on Parliamentary Supremacy:
- Membership of the European Union
- Human Rights Act of 1998
Limitations involving the Membership of the European Union
- The UK joined the EU in 1973
- Joining the EU means that the EU is dominate over the UK
- EU Law overrides UK law is there is conflict between them
- English law is passed after the relevant EU laws

Limitations involving the Human Rights Act 1998

- All Acts of Parliament must be compatible with the European
Convention on Human Rights
- It is possible to challenge an Act if it is no compatible with this
- Under Section 4 of the Human Rights Act courts are allowed to declare
an Act incompatible with the convention
An example of where a Court declared this was in the case of H v Mental
Health Review Tribunal 2001

H v Mental Health Review Tribunal 2001

This case saw that a patient had made an application to be released. The
Mental Health Act 1983 showed that before a patient is released there needs
to be proof that the patient is ready and well to be released. However the
Human Rights said it was up to the State to justify whether the patient should
continue with the treatment or whether they are allowed release. Therefore
the courts ruled that this law was incompatible with the Human Rights Act.
Following this ruling Parliament changed the law.

However the declaration of incompatibility does not mean Parliament

have to change laws.
Also if Parliament wants to pass a new Act which contravenes the
European Union on Human Rights they can do so.