Introduction to English Common Law

English Legal System Overview

What is English Common Law? 🤔
English law is primarily a common law system. This means that judicial decisions hold
significant weight in shaping the law. Decisions from higher courts are binding on lower courts
in subsequent cases. This is known as the principle of precedent.

Common law: A legal system where judicial decisions are of central importance in making the
law, with past decisions of higher courts being binding on future cases.

In addition to judicial decisions, other sources of law include:

 Acts of Parliament (statutes): Laws passed by the legislature.

 European Union Law (where applicable): Regulations and directives from the EU
(though its influence is diminishing post-Brexit).
 European Convention on Human Rights: Guarantees fundamental human rights.

The Unwritten Constitution 📜

Unlike many countries, England does not have a single codified constitution. Instead,
constitutional principles underpin the legal system. A key principle is parliamentary
sovereignty, meaning Parliament can enact and repeal any law, and courts cannot overrule
parliamentary legislation.

The Origins of Common Law 👑

 William the Conqueror (1066): Established the King's Court, centralizing the justice
system. Before this, local courts applied local customs.
 King Henry II (1154): Further developed the system by creating a more unified national
system of justice. He established travelling justices to apply the law consistently
throughout the country.
 Recorded Decisions: The written recording of judicial decisions led to the development
of precedent.
 Magna Carta (1215): A landmark document symbolizing liberty and human rights.

Common Law and Equity⚖️

By the 15th century, common law procedures were criticized for being slow, expensive, and
overly technical. This led to the development of equity, an independent system of justice
designed to supplement the common law.

What is Law? 🤔
Law is commonly defined as a set of rules made by the state or government, backed by
consequences for non-compliance. Its main purpose is maintaining societal order (public,
political, social, economic, moral).

Law's Purpose: Maintaining order in society through rules enforced by the state.

Examples of how laws maintain order:

 Criminal Law: Prohibits and punishes harmful acts (e.g., murder).

 Economic Law: Regulates property ownership and contracts.

Law and Morality 🤔

The relationship between law and morality is complex. Two main viewpoints are:

1. Law must be moral to be valid.

2. Law can exist independently of morality, with immoral laws still being considered
legitimate.

Many laws reflect moral consensus (e.g., laws against murder). However, there is often less
consensus on other legal issues (e.g., drug laws).

English Legal History and Systems ✍️

The Development of Equity ⚖️
The English legal system has evolved significantly over time. Initially, individuals could petition
the king for remedies. As petitions increased, the king delegated this responsibility to the
chancellor, eventually establishing the Court of Chancery. A crucial aspect of this court was its
focus on moral rightness. Unlike common law courts relying on precedent, the chancellor based
decisions on individual perceptions of right and wrong within each case. This led to the
development of equity, a system of legal principles distinct from common law, creating new
rights and remedies.

Equity: A system of legal principles based on fairness and justice, supplementing common law.

At common law, the primary remedy was monetary compensation, or damages. Equity,
however, introduced more flexible remedies such as:
  Specific performance: An order compelling a party to fulfill their contractual
obligations.
 Injunction: A court order restraining a person from performing a specific act.

Damages: Monetary compensation awarded to a party for losses suffered due to a breach of
contract or other legal wrong.

The Court of Chancery's procedures eventually became slow and expensive, leading to the
Judicature Act of 1873. This act merged common law courts and courts of equity, resulting in
all courts now handling both common law and equitable principles. Equity's continued relevance
is seen in equitable maxims, guidelines reflecting equitable principles. Two key maxims are:

 "He who comes to equity must come with clean hands": Claimants must demonstrate
proper conduct to receive equitable remedies.
 "Equity follows the law": Equitable claims must not contradict common law principles.

Recent Legal History 📜

The 19th century didn't mark the end of English common law's development. Significant
developments include:

 European Communities Act 1972: Incorporated European law into the common law
system.
 Human Rights Act 1998: Increased the influence of the European Convention on
Human Rights.
 Brexit (European Union (Withdrawal) Act 2018): Addressed the UK's withdrawal
from the European Union, with long-term implications for the legal system still
unfolding.

Common Law vs. Civil Law Systems

The English legal system is a common law system, characterized by:

 Judge-made law: Legal principles derived from judicial decisions in individual cases.
 Binding precedent: Judges must follow previous decisions in similar cases ("stare
decisis").
 Absence of comprehensive legal codes: The system isn't based on a single written legal
code.
 Everything is permitted unless explicitly prohibited.

In contrast, civil law systems, originating in Roman law, feature:

 Codified law: Comprehensive legal codes specifying all matters, procedures, and
punishments.
  Judge's role in applying the code: Judges focus on establishing facts and applying the
code; judicial decisions have less influence in shaping the law itself.
 Written constitutions

Common Law System: A legal system where laws are developed through judicial decisions and
precedents, rather than through comprehensive written codes.

Civil Law System: A legal system characterized by codified laws and judicial decisions that are
less influential in shaping the law itself.

Other systems exist, including mixed systems (combining elements of common and civil law)
and religious legal systems like Sharia, Canon, and Halakha law.

Types of Law 📚
English law encompasses diverse areas, including:

 Property law
 Employment law
 Criminal law
 Family law
 Administrative law
 Contract law
 Human rights law

A key classification distinguishes between civil law (resolving disputes between individuals or
businesses, focusing on remedies) and criminal law (the state prosecuting individuals for
behavior deemed morally wrong, emphasizing punishment). Contract and property law are
examples of civil law.

Lecture Notes: Classifications and Themes in

Law
⚖️Classifying Legal Cases: Public vs. Private Law
 Private Law: Governs relationships between individuals without direct state
involvement. Examples include contract enforcement and property ownership.
 Public Law: Governs the relationship between individuals and the state. Examples
include cases where an individual believes their human rights have been violated by the
state. This includes constitutional, administrative, and criminal law.

Judicial Review: A procedure in public law cases where citizens can challenge decisions,
actions, or inaction by public bodies (e.g., government departments, local authorities).
⚖️Themes in Common Law: Fairness and Due Process
A core theme in common law is fairness, or due process. This concept has evolved across time
and locations. Key aspects include:

 Unbiased Judge: The judge must be a neutral party.

 Adequate Time and Resources: Parties should have sufficient time and resources to
address presented evidence.
 Audi Alteram Partem: Latin for "hear the other side"—both sides must be heard before
judgment.

The concept of due process is not static; its meaning changes over time.

📜 Historical Context of Due Process

 Magna Carta (1215): Chapter 39 contains early ideas related to due process, stating that
individuals shouldn't be arrested, imprisoned, or have property seized without proper
legal procedure.
 Sir Edward Coke's Institutes of the Laws of England (1628-1644): This commentary
further emphasizes the principle of due process.

Conceptions of due process have varied historically and may not apply consistently across all
citizens or time periods.

⚖️Modern Conceptions of Due Process

Modern understanding of due process is influenced by events such as the American and French
Revolutions. These perspectives differ from those of Sir Edward Coke or Magna Carta.

⚖️Fairness and Human Rights

The modern understanding of fairness is intertwined with human rights, emerging significantly
after World War II with the creation of the Universal Declaration of Human Rights. The
concept of equality before the law also holds a distinct, evolving meaning throughout legal
history.

British Constitution Study Guide

What is a Constitution? 🤔
The term "constitution" often brings to mind a single, formal document like the U.S.
Constitution. However, the British Constitution is unique. It's not codified in a single document.
A narrow interpretation might suggest that Britain lacks a constitution because there's no single
document designated as such. However, this is inaccurate.

The British Constitution exists, but it's uncodified. This means its rules and principles aren't
compiled into one source.

A broader definition, from the House of Lords Constitution Committee, describes a constitution
as a set of laws, rules, and practices establishing the state's institutions, their powers, and their
relationships with each other and citizens.

Sources of the British Constitution 📜

While not a single document, the British Constitution's sources are largely written. These
include:

 Statutes or Acts of Parliament: Laws passed by Parliament (discussed further in Week

4).
 Judicial Decisions or Common Law: Found in law reports (discussed in Week 1).
 European and International Law: (Note: Post-Brexit, EU law is no longer a source).
 Royal Prerogative: A specific type of common law.
 Constitutional Conventions and Principles: Unwritten but binding rules of
constitutional behavior. Many are now documented (e.g., Ministerial Code, Cabinet
Manual).

Constitutional conventions are like the "flesh which clothes the dry bones of the law,"
supplementing legal rules. For example, while the monarch could refuse Royal Assent to a bill,
convention dictates they won't if it's passed by both Houses of Parliament.

Important Constitutional Statutes and Cases ⚖️

Not all statutes are constitutionally significant. Those of importance govern:

 Relationships between government branches.

 Relationships between the state and citizens.
 Protection of rights and liberties.

Thoburn v Sunderland established a distinction between ordinary statutes and those deemed
"constitutional statutes" by Justice Laws.

A key case demonstrating constitutional importance regarding the rule of law and individual
rights is Entick v Carrington.

In this case, the government's attempt to justify a warrantless search and seizure was rejected by
the court due to a lack of lawful authority.
Constitutional Conventions and Principles 📜
Constitutional conventions are often described as "unwritten maxims" or "non-legal but
nonetheless binding rules of constitutional behavior".

Examples include the convention that the monarch will never refuse Royal Assent to a bill
passed by both Houses of Parliament. The last time Royal Assent was withheld was over 300
years ago.

Important constitutional principles include Parliamentary Sovereignty and the Rule of Law,
along with a partial separation of powers.

Impact of Brexit 🇪🇺
Brexit significantly altered the British Constitution. European Union law is no longer a source of
English law.

Constitutional Sources: Order of Importance 🤔

Listing the constitutional sources in order of importance requires careful consideration and
justification, which is beyond the scope of these notes. Further discussion is needed to determine
the appropriate order.

Parliamentary Sovereignty 👑
Parliamentary Sovereignty, or legislative supremacy, is a fundamental principle of the British
Constitution. Dicey described it as a cornerstone, alongside the Rule of Law.

This principle means primary legislation passed by Parliament is the highest law. This differs
from systems with codified constitutions where the constitution itself is supreme.

According to Dicey's traditional view:

1. Parliament can create or repeal any law.

2. No other body can override Parliament's enactments.
3. No Parliament can bind its successors or be bound by predecessors.

While there are no legal limitations on Parliament's legislative power, there are practical ones
which would require further exploration.

British Constitution: Key Principles

Parliamentary Sovereignty 👑
Parliamentary sovereignty is a fundamental principle of the British constitution. It dictates that
Parliament holds supreme legal authority. However, this sovereignty is not absolute; it is subject
to practical and political limitations.

Example: Jennings' hypothetical law banning smoking in Paris illustrates that while Parliament
could technically pass such a law, its enforcement would be impractical. Similarly, while legally
possible, repealing the legislation granting independence to former dominions would be
politically infeasible.

The impact of European Union membership and the Human Rights Act 1998 on parliamentary
sovereignty will be discussed in week six.

The Rule of Law ⚖️

The rule of law, alongside parliamentary sovereignty, forms another cornerstone of the British
constitution. It's a multifaceted concept, interpreted diversely, yet internationally recognized.

The core principle is limited government: government actions must be subject to constraints to
prevent power abuse. An independent judiciary is vital to uphold this principle.

A.V. Dicey's Three Elements:

Element Description
Regular law supersedes absolute power; no punishment without law
Supremacy of Law
violation.
Equality Before Law Equality before the law, at least formally.
Civil Liberties Civil liberties/human rights are best protected by ordinary law.

Lord Bingham's Eight Sub-Rules:

These expand the rule of law to include substantive components. Details will be covered in this
week's module activities.

1. Law must be accessible, intelligible, clear, and predictable.

2. Legal rights/liabilities should be resolved by applying the law, not discretion.
3. Laws apply equally to all, except where objective differences justify differentiation.
4. Ministers and public officers must exercise powers reasonably, in good faith, fairly, and
within limits.
5. Law must adequately protect fundamental human rights.
6. Means must exist to resolve civil disputes without prohibitive cost or delay.
7. State-provided adjudicative procedures should be fair.
8. The state must comply with its national and international law obligations.

Entick v Carrington and the Principle of Legality

Entick v Carrington is a landmark case showcasing the principle of legality: state actions
impacting individuals require a clear legal basis. Interference with individual rights (like
property in Entick) demands lawful authority, be it statutory or common law.

Separation of Powers ⚖️
This ancient principle, popularized by Montesquieu, divides government into three functions:

 Legislature (Parliament): Makes laws.

 Executive (Government): Executes laws.
 Judiciary (Judges): Adjudicates and enforces laws.

The aim is to diffuse power and prevent tyranny. While many states have a clear separation, the
British system exhibits a partial separation. The judiciary is independent, but the executive and
legislative branches significantly overlap.

Constitutional Reform Act 2005:

This act enhanced separation of powers by:

 Creating a Supreme Court (replacing the House of Lords' Appellate Committee).

 Reforming the Lord Chancellor's role, separating the head of the judiciary (Lord Chief
Justice) from the cabinet minister role.

Despite this reform, the Parliamentary Executive model (where ministers are also MPs or
Lords) persists, leading to differing views on its effectiveness in holding the executive
accountable.

The Rule of Law ⚖️

What is the Rule of Law? 🤔

The rule of law has three main aspects:

1. System of Laws and Rules: We live under a system of laws, rules, and principles, not
chaos or anarchy. This means everyone, including government officials and police, is
subject to the law. Disputes are resolved legally, not violently.
2. Qualities of Law: The law should be:
o Reasonably Certain and Predictable: While we may not know every detail, the
law should be generally predictable and not change constantly.
o Equally Enforced: Rich or poor, powerful or marginalized, everyone should be
treated equally under the law. There's a deep sense of equality inherent in the rule
of law.
3. Access to Justice: People must be able to challenge decisions made against them. This
access usually involves courts where fair trials are held, and judges must be independent
 from the government. A judge shouldn't automatically favor the government or police in
a case against them.

Fairness and the Rule of Law ⚖️

Fairness is tied to the rule of law in two key ways:

1. Challenging Decisions: If accused of a crime or stopped and searched, you have the
right to challenge the decision if you believe it's unfair. This access to justice is crucial.
2. Fair Trials: A fair trial assumes your innocence until proven guilty. This includes:
o Legal representation
o Presentation of evidence by both sides
o An impartial judge deciding the outcome based on the evidence.

Equality and the Rule of Law ⚖️

Equality under the law means:

 Equal Enforcement: The wealthy and powerful shouldn't be exempt from the law.
Everyone, regardless of status, deserves equal treatment.
 Non-Discriminatory Laws: Laws shouldn't discriminate against people based on race,
color, nationality, appearance, or skin color, unless there's a legitimate reason (like
different treatment of adults and children).
 Proportionate Enforcement: Penalties should match the severity of the offense.
Authorities shouldn't abuse their power or use it oppressively. In the UK, it's assumed
that people can do anything unless a law explicitly prohibits it.

The Rule of Law in Daily Life 📚

The rule of law impacts our daily lives constantly:

 Everyday Transactions: Buying something involves a contract governed by law.

 School: If accused of cheating, you should be able to explain your side of the story.
 Interactions with Authority: If stopped by police, you should be treated fairly, and the
reason for the stop shouldn't be discriminatory.

The rule of law is about knowing your rights, understanding how to challenge unfair treatment,
and ensuring everyone is treated with equal human dignity. This applies to everyone, not just
adults.
THE COURT SYSTEM
Structure of the Courts
Court Hierarchy ⚖️
The court system is complex due to its historical development. A key concept is the hierarchy of
courts: some courts are superior to others.

Hierarchy: The ranking of courts, where higher courts have authority over lower courts.

 Supreme Court: At the apex of the hierarchy.

 Lower courts must follow decisions (binding precedents) made by higher courts. This is
a characteristic of common law systems, unlike civil law systems.
 Examples of lower courts bound by higher courts: Magistrate's courts and County courts
are bound by the High Court, Court of Appeal, and Supreme Court. A more detailed
discussion will occur in Week 5.

Types of Courts
Two important distinctions in court structure are:
 1. Appellate Courts vs. Trial Courts:
o Appellate Courts: Hear appeals from lower courts, reconsidering the application
of the law.
o Trial Courts (Courts of First Instance): Hear cases initially, ruling on fact and
law.
o Some courts can function as both trial and appellate courts.
2. Civil Courts vs. Criminal Courts:
o Some courts have both civil and criminal jurisdictions.
o This reflects the historical evolution of common law institutions.
o (Recap from Week 1): Civil cases involve infringement of rights, while criminal
cases involve prosecution for alleged crimes.

Civil Courts 🧑‍⚖️

 Primarily handled by the County Court (less complex cases) and the High Court (more
substantial cases).
 Jurisdiction spans from small claims (damaged goods, debt recovery) to large claims
between corporations.
 Remedy: Usually financial compensation (damages), not imprisonment. The amount of
damages depends on the claim's circumstances.

Criminal Courts 👮
 Cases arise after a decision to prosecute (usually by the Crown Prosecution Service).
 Magistrates' Court: Most cases are heard here by magistrates who decide guilt or
innocence.
 More serious cases: Heard by District Judges (Magistrates' Court) or Circuit Judges
(Crown Court), often involving a jury trial in the Crown Court.

The Supreme Court 👑

 High-profile court, often in the media, sometimes controversial.
 Examples of cases: Right to die, deportation of foreign criminals, ban on heterosexual
civil partnerships, abortion law in Northern Ireland, and Brexit legality (R (Miller) v
Secretary of State for Exiting the European Union). The latter case led to some justices
being labeled "enemies of the people."
 Highest court for UK civil cases and criminal cases from England, Wales, and Northern
Ireland (excluding Scotland).
 Focuses on cases of significant public and constitutional importance.
 Judges are called Supreme Court Justices.
 Relatively few cases are heard (e.g., 61 appeals in 2020-21).
 Appeals come from: Court of Appeal (Civil & Criminal Divisions), and in limited cases,
directly from the High Court (leapfrog appeals).
 Established October 1, 2009, replacing the Appellate Committee of the House of Lords.
This change aimed to enhance judicial independence.
  The Judicial Committee of the Privy Council, which hears appeals from several
Commonwealth countries, shares the building with the Supreme Court. The judges of the
Privy Council are usually also Supreme Court Justices.

Civil Courts Hierarchy

 Supreme Court: Highest court.
 Court of Appeal (Civil Division): Primarily an appellate court; hears appeals from lower
courts. Most important civil appeals go here.
 High Court: Below the Court of Appeal. Judges travel to different cities. Divided into
three divisions, including the King's Bench Division (formerly Queen's Bench Division).

The English Legal System: Courts and

Dispute Resolution
The High Court
The High Court is divided into three divisions:

 Queen's Bench Division: The largest division, dealing with a wide variety of cases at
first instance and appeals. Caseload includes legal claims, contract, and tort.
 Chancery Division: Deals with bankruptcy, land ownership, trusts, and disputed wills.
Includes a specialist Patents Court.
 Family Division: Handles complex family law cases and appeals from the family court.

The County Court 🧑‍⚖️

The County Court is at the bottom of the hierarchy but plays a crucial role in resolving
everyday legal disputes. It handles cases like businesses recovering owed money and individuals
seeking compensation for injuries. Branches are located throughout England and Wales.

The Family Court 👨‍👩‍👧‍👦

Established in 2011, the Family Court streamlines the system by handling most family cases
previously dealt with in the High Court, County Court, and Magistrate's Courts.

Criminal Courts 🚨
The hierarchy of criminal courts mirrors the civil courts, with the Supreme Court at the top.

 Court of Appeal (Criminal Division): Hears appeals from the Crown Court.
 High Court: Also has an appellate role in some criminal cases.
  Magistrates' Courts: Handle over 95% of criminal cases, mostly minor offenses (e.g.,
traffic offenses). Judges are usually part-time, unpaid, and assisted by legally qualified
clerks. They also deal with some civil cases (e.g., anti-social behavior).
 Crown Court: Deals with more serious cases (e.g., murder, manslaughter, robbery),
including appeals from Magistrates' Courts. Trials are heard by a judge and jury (12
randomly chosen citizens). There are approximately 77 Crown Court centers in England
and Wales.
 The Old Bailey: The well-known Central Criminal Court in London, operating since
around 1673.

Tribunals ⚖️
Tribunals are decision-making bodies established by the state, separate from the courts. They
handle disputes, mostly between citizens and the state, in areas such as employment,
immigration, asylum, criminal injuries compensation, mental health, property, social security,
and tax. Tribunals are often less formal than courts; some allow self-representation. Since 2008,
tribunals are organized under a First-Tier Tribunal and an Upper Tribunal.

Alternative Dispute Resolution (ADR) 🤝

ADR encompasses various methods of resolving disputes outside of courts, including:

 Mediation: A popular method used in various legal disputes. In many family law cases, a
Mandatory Information Assessment Meeting (MIAM) is required before court
application, requiring consideration of mediation.
 Conciliation
 Expert determination
 Arbitration
 Ombudsman

ADR is promoted to reduce costs and time compared to court proceedings. Reports by Lord
Woolf (1996) and Lord Justice Jackson (2010) emphasized its importance. Courts often support
ADR and may impose penalties for non-engagement.

Advantages of ADR: Lower cost, quicker resolution, confidentiality, flexibility, informality.

Disadvantages of ADR: Increased expense/delay if unsuccessful, lack of public/binding

judgment.

Online Courts and Technology in Justice 💻

 Online divorce applications and money claims (up to £10,000) are now possible.
 Proposals for a fully online court have been made, aiming for user-friendly access with
minimal lawyer assistance. However, concerns exist about potential second-class justice,
exclusion of those lacking technology, and reduced transparency.
  Pilot projects using video links for hearings are underway in tribunals and courts. Video
evidence is already used for vulnerable witnesses and remote appearances by defendants.
 The Supreme Court streams hearings live and on-demand. Filming of Court of Appeal
and Crown Court hearings is also being trialled.

Statutes ⚖️
Primary and Secondary Legislation 📜
 Primary Legislation: Statutes or Acts of Parliament. These are laws passed by
Parliament after a lengthy process involving both the House of Commons and the House
of Lords, followed by Royal Assent.
 Secondary Legislation: Also known as delegated legislation, this is law made under the
authority of a statute. It's faster to create than primary legislation and undergoes less
scrutiny. A common form is the statutory instrument. The main reasons for using
secondary legislation include the time-consuming nature of creating primary legislation
and its more rigorous parliamentary scrutiny.

The Process of Making Statutes ⚙️

The UK Parliament creates statutes. It consists of two houses:

 House of Commons: Members are elected.

 House of Lords: Members are appointed, not elected.

A Bill, or legislative proposal, must pass through both houses and receive Royal Assent to
become an Act of Parliament.

Problems of Language in Statutes

Statutes, while aiming to set out legal rules clearly, often present problems of language:

 Ambiguity: Words can have multiple meanings, leading to misinterpretations. The

Derek Bentley case illustrates this, where the phrase "Let him have it" had two
interpretations.
 Vagueness: The precise scope of a rule might be unclear. HLA Hart’s example of a rule
banning "vehicles" in a park highlights this ambiguity (cars, bicycles, roller skates,
wheelchairs, strollers).

Statutory Interpretation: Traditional Approaches ⚖️

Judges interpret statutes. Three traditional approaches exist:
 Approach Description Example Case
Judges apply the ordinary English meaning of words, even if
Literal Rule R v Harris (1836)
the outcome is unjust or absurd.
Adler v George
Golden Rule Modifies the literal rule to avoid absurd results.
(1964)
Mischief Judges consider the problem Parliament intended to solve when Smith v Hughes
Rule passing the statute. (1960)

The literal rule emphasizes the exact wording of the law, prioritizing the will of Parliament,
while the golden rule allows some flexibility to prevent absurd outcomes. The mischief rule
takes a broader view, focusing on the law's purpose.

Statutory Interpretation: Modern Approaches ⚖️

Modern approaches are more purposive:

 Purposive Interpretation: Focuses on the legislation's true purpose. This approach has
risen due to influences like EU law.
 Use of Hansard: Pepper v Hart (1992) allowed courts to refer to parliamentary debates
(Hansard) under specific circumstances (ambiguity, ministerial statements).
 EU Law Influence: EU law's less detailed and more abstract style encourages purposive
interpretation. The need for translation into multiple languages further discourages literal
interpretation.

Statutory Interpretation under the Human Rights Act 1998

🧑‍⚖️
 Section 3: Courts must interpret legislation compatibly with the European Convention on
Human Rights as far as possible.
 Section 4: If incompatibility exists, courts issue a "declaration of incompatibility," but
they cannot invalidate the legislation. Parliamentary sovereignty remains.
 Example: Ghaidan v Godin-Mendoza: The House of Lords interpreted the Rent Act 1977
to include homosexual partners under Section 3 of the Human Rights Act, ensuring
compatibility with the European Convention on Human Rights. This shows a potential
divergence from traditional interpretative methods.

The Human Rights Act 1998 significantly impacts statutory interpretation, pushing courts to
prioritize human rights compatibility but preserving parliamentary sovereignty.

Making Statutes Simpler 📝

 Complexity in statutes hinders public understanding and access to the law.
 While detail and precision are important, the lack of incentive to avoid complexity is
problematic. Good law requires managing this complexity.
  The Office of the Parliamentary Counsel (OPC) aims for legislation that is necessary,
clear, coherent, effective, and accessible. They are working on various initiatives to
improve clarity and accessibility, including better online publication, plain English
drafting, and collaboration with stakeholders.

Case Law and Judicial Precedent 👨‍⚖️

What is Case Law? 🤔
Case law is the creation and development of law through judicial decisions in courts. Despite the
rise of legislation, English law heavily relies on case law as a source of legal rules and principles.

A criminal case begins with an arrest and charge, prosecuted by the Crown Prosecution Service.

A civil case arises when an individual or organization sues another. For example, a breach of
contract claim.

Important Note: Not all courts create binding case law. Generally, only higher courts (Supreme
Court, Court of Appeal, High Court) can. The crucial aspect isn't the outcome, but the legal
principles analyzed and developed by the judges.

Judicial Precedent ⚖️
The doctrine of judicial precedent is central to case law and the English legal system. It dictates
that like cases should be treated alike.

Binding Judicial Precedent: Judges must follow earlier court decisions from higher courts in
the hierarchy. This is sometimes called stare decisis ("let the decision stand").

 The Supreme Court binds all other courts.

 The Court of Appeal generally binds itself.
 Lower courts (Magistrates' Courts, County Court) cannot create binding precedents but
can be persuasive.

Visualizing Precedent: Think of a pyramid. Higher courts at the top bind lower courts below.
Lower courts cannot set precedents.

How Precedent Works 🔎

Judges follow the legal rules, not just the outcome, of previous cases. Judgments are complex, so
we need to distinguish between:

 Ratio decidendi: The reason for deciding; the statement of law upon which a decision is
based. This is binding.
  Obiter dicta: Things said by the way; statements of law not essential to the decision.
This is not binding.

Identifying Ratio Decidendi: This isn't explicitly labeled and requires practice.

Advantages and Disadvantages of Precedent 👍👎

Advantages:

 Consistency: Predictable law helps people regulate their lives and avoid disputes, saving
time and money.
 Formal Rules: Provides a structured system instead of subjective judicial decisions.

Disadvantages:

 Rigidity: May not adapt to changing social conditions, leading to unsatisfactory

decisions.
 Reduced Flexibility: The law might not change quickly enough.

Overruling and Distinguishing Precedents 🔄

Judges can avoid unwanted precedents through:

 Distinguishing: Showing that the facts of the current case are materially different from
the precedent.
 Overruling: Higher courts can overturn precedents set by lower courts.

The Supreme Court and Precedent: Initially bound by its own decisions ( London Street
Tramways case, 1898), it later adopted a more flexible approach (Practice Statement, 1966),
allowing overruling in cases of significant social change.

Judges and the Law 🤔

The separation of powers suggests that judges interpret, not make, law. The declaratory theory
argues that judges merely declare existing law.

However, judges do:

 Make incremental changes to common law.

 Occasionally make major changes, as in R v R (abolishing the marital rape exemption).
 Interpret laws to comply with the Human Rights Act 1998 (e.g., Ghaidan v Godin-
Mendoza, Bell Marsh case).

Note: Even with the Human Rights Act, courts don't always change the law. (e.g., Nicklinson v
Ministry of Justice on assisted suicide).
Reading Case Law 📖
Case reports have a standard structure. Knowing this helps understanding.

Case Citations
Citations identify past court decisions:

 Party Names: e.g., A v Secretary of State for the Home Department

 Law Report Citation: e.g., [2004] UKHL 56 (Weekly Law Reports)
 Neutral Citation: Indicates the court and year.

Not all cases are reported. Only those laying down new principles or changing existing law are
included in law reports. The official Law Reports are the most authoritative.

Top Tips for Reading Cases

 Read several times carefully.
 Skim read first, then focus on important parts.
 Use headings to identify key information.
 Make notes and diagrams.
 Don't get discouraged; practice makes perfect.

When reading a case, note:

Item Description
Case Name The name of the case
Citation How the case is referenced
Court The court that decided the case
Legal Issue The question of law the court had to answer
Decision The judge's ruling
Reasoning How the judge arrived at his decision

Background of the European Union 🌍

The Genesis of the EU 🌱
The European Union (EU), a prominent international organization, often faces
misunderstandings. Its creation stemmed from post-World War II efforts toward a more unified
Europe. This pursuit manifested in two key areas: human rights protection and economic
integration.
The core idea was that increased trade fosters economic interdependence, thus reducing the
likelihood of conflict.

This concept laid the foundation for the EU, now comprising 28 member states, 508 million
citizens, and 24 official languages.

Early Stages of Integration 🇪🇺

The journey began with the European Coal and Steel Community (ECSC) in 1951, involving
six original members: West Germany, France, Italy, Belgium, The Netherlands, and
Luxembourg. Its goal was a common market for coal and steel. Following the ECSC came the
European Atomic Energy Community (EURATOM) and the European Economic
Community (EEC), also with the same six members.

The EEC, aiming for broader economic integration, eventually evolved into the EU we know
today. The Treaty of Rome (1957), the founding treaty of the EEC, marked a significant step
toward closer European Union.

 1973: The UK, Ireland, and Denmark joined the EEC. The European Communities Act
1972 enabled UK membership.
 1992: The Maastricht Treaty transformed the EEC into the European Union (EU),
expanding its scope beyond economics to include environmental policies, external
relations, and migration.

The EU's Unique Legal Order ⚖️

The EU is constitutionally unique: it's neither a state nor a federation but a supranational
organization. It has its own institutions and law-making powers. Member states, upon joining,
are automatically bound by EU law.

The EU's powers aren't inherent; they're conferred by member states through treaties. This is
known as conferred powers.

Institutions of the European Union

The EU's treaties establish several institutions to create, execute, and adjudicate EU law. These
institutions work in a balanced, rather than separated, system of power. Article 13 of the Treaty
on the European Union lists seven key institutions:

Institution Role Representation

European Parliament Represents EU citizens; co-legislator EU Citizens
Defines the EU's overall political Member States' Heads of State
European Council
direction and priorities or Government
Council of the Co-legislator; represents member state Member State Governments
 Institution Role Representation
European Union governments
Proposes legislation; represents the
European Commission EU as a whole
EU's interests as a whole
Court of Justice of the Interprets EU law; ensures its
EU Law
EU application
European Central Manages the euro and maintains price
Eurozone
Bank stability
Court of Auditors Audits the EU's finances EU Finances

This structure differs from the traditional three-branch (legislative, executive, judicial)
government model. Roles are shared, not strictly divided. For example, the Parliament and
Council of Ministers are co-legislators.

Citizen Participation and Sources of Law

Individuals can directly participate in the EU through:

 Voting in European Parliament elections (every five years).

 European Citizens' Initiatives (ECIs) to influence law-making and policy.

Sources of EU law:

 Primary law: Treaties (Treaty on the EU and Treaty on the Functioning of the EU).
 Secondary law: Regulations, Directives, Decisions, Recommendations, and Opinions
(Regulations are directly applicable). Also, case law from the Court of Justice, general
principles declared by the Court, and international agreements.

Supremacy of EU Law ⚖️
The supremacy of EU law, established in the 1960s ( Costa v. ENEL and Van Gend en Loos),
means that EU law takes precedence over conflicting national laws, even if the national law is
constitutionally important or enacted after the EU law.

Impact of EU Law on English Law 🇬🇧

The UK's parliamentary sovereignty, where Parliament's legislation is supreme, was impacted
by EU membership. The European Communities Act 1972 incorporated EU law into UK law.
However, this limitation on sovereignty was deemed voluntary and ended with Brexit.

Brexit 🇬🇧➡️🇪🇺
The 2016 Brexit referendum resulted in a 51.9% vote to leave the EU. Article 50 of the Treaty
on European Union, triggered in 2017, initiated the UK's formal withdrawal. Brexit ended the
supremacy of EU law in the UK.

Overview of the ECHR and the HRA ⚖️

The European Convention on Human Rights (ECHR) and the EU are separate entities with
different memberships, remits, and enforcement mechanisms.

Think of them as "two Europes". The Council of Europe, established in 1949, focuses on human
rights, while the EU initially concentrated on economic matters.

The Council of Europe now has 46 member states (following Russia's expulsion in 2022),
including the 27 EU member states. The ECHR, which came into force in 1953, operates
through international law and is enforced by the European Court of Human Rights
(Strasbourg Court).

Individuals can petition the Strasbourg Court against a state for human rights violations. States
can also bring cases against each other.

Human Rights: Definitions and Types 🤔

Human rights are fundamental rights and freedoms belonging to everyone, from birth to death,
regardless of background or beliefs. They're based on values like dignity, fairness, equality,
respect, and independence.

Some Convention rights are absolute (e.g., the right to not be tortured), while others are
qualified or limited, meaning they can be restricted under certain circumstances specified in the
ECHR.

Qualified rights (Articles 8-11: private life, belief, expression, assembly) can be restricted only
if:

 The restriction is prescribed by law.

 It serves a legitimate aim (e.g., protecting others' rights).
 It's necessary in a democratic society.

Human Rights Act 1998 📜

The Human Rights Act 1998 (in force since 2000) incorporated ECHR rights into UK law. This
allowed UK citizens to raise human rights concerns in British courts, instead of needing to go to
Strasbourg.

The Act balances parliamentary sovereignty with rights protection. Public authorities must act
compatibly with Convention rights unless primary legislation dictates otherwise. Courts can
interpret laws to comply with Convention rights or issue declarations of incompatibility if that's
not possible. Declarations of incompatibility, while politically significant, don't legally obligate
Parliament to change the law.

📝 European Citizens' Initiative (ECI) Explained

This section details the European Citizens' Initiative (ECI), its process, and some examples.

🇪🇺 What is the European Citizens' Initiative?

The European Citizens' Initiative (ECI) is a way for citizens to directly propose new laws to
the European Union. It's a mechanism designed to enhance citizen participation in EU
policymaking.

The ECI Process: A Step-by-Step Guide

The process involves several key stages:

1. Signature Collection: A minimum of one million signatures from at least seven EU

member states is needed. Each member state has a minimum signature requirement
(74,000 in the largest, 4,500 in the smallest). Signatures can be collected both online and
on the streets.
2. Verification: All signatures are verified by the relevant national authorities.
3. Submission to the Commission: Once verified, the initiative is submitted to the
European Commission.
4. Commission Assessment: The Commission assesses whether the initiative is admissible.
The initiative must fall within the EU's legislative competence (e.g., environment,
agriculture, transport, public health) and cannot require changes to EU treaties.
5. Commission Response: The Commission informs the organizers of its decision—
acceptance or rejection, along with reasons if rejected.
6. Public Hearing (if accepted): If accepted, there's a public hearing in the European
Parliament.

💡 Examples of ECI Topics

 Environmental protection
 Agriculture
 Transport
 Public health
 Anti-discrimination measures

⚠️Important Considerations
 The ECI is currently on a test run.
  A first review is scheduled for 2015 (according to the lecture transcript).
 Inconsistent application of regulations across member states poses a challenge.

🤔 Obstacles and Challenges

The lecture mentioned inconsistencies in how member states apply regulations, particularly
regarding data collection. This highlights the challenges in achieving uniform standards across
the EU. The specific areas of concern weren't fully detailed in the transcript.