(p. 1) 1. Understanding the Law
Law is everywhere. It governs our work, the products we buy and sell, our relationships, and even helps shape the physical environment in which we live. This first chapter sets out to introduce some fundamentals that will underpin your understanding of law and ‘legal method’—that is, those core principles and techniques that underpin the process of legal reasoning. We do this by, first, introducing you to the idea of ‘law’ and some of the major functions of law, and then by looking at the main sources of law that you will become familiar with as you work through this book: primarily legislation as well as other less ‘formal’ categories of legal rules, and case law as it is developed by the courts. We will also look at the institutions responsible for making and shaping those laws—chiefly Parliament and the courts—and consider the impact of Europe on English (and UK) law. So, let’s start at the very beginning.
1.2 What is law?
At first glance this seems a very simple, if not a rather strange, question to ask. After all, as the poet W.H. Auden said, ‘The law is The Law’ and we tend to know it when we see it. But it is also a question that philosophers and legal theorists have expended many pages in trying to answer. Why do you think that is? And what answers do you think they might have come up with?
Some of the philosophers’ answers, reduced to their most basic form, are:
• law is a system of rules laid down by a body or person with the power and authority to make law;
• law is what legislators, judges, and lawyers ‘do’;
• law is a tool of oppression used by the ruling class to advance its own interests; and
• law is a system of rules grounded on fundamental principles of morality.
Each of these characterisations has the capacity to tell us something useful about the nature of ‘law’ and how it operates—at least within Western legal systems; whether each (or any of them) offers ‘the truth’ about law is a different question, and not one that we intend to dwell on here. We think ‘what is law’ is a useful question for at least three reasons.
(p. 2) First, at its simplest, understanding law presupposes the ability to find and read the law. This in turn assumes that we know how to identify it in the first place, which leads us back, in a sense, to that fundamental question: ‘What is law?’
Secondly, even asking the question obliges us to think about how we conceptualise complex phenomena like ‘law’. Being able to conceptualise something and describe it in language is a crucial step on the path to understanding that thing and the ideas and beliefs which shape and are shaped by it.
Our third reason for asking the question also flows from this: namely, that understanding in turn helps us to determine how we should make sensible or reasoned choices about what constitutes law in any given situation. This too can be a complex issue for legal theory, but it is also of real significance, for example, in assessing the perennial problem of whether and how we can determine if a law is ‘good’ or ‘bad’; and if it is bad, what we can (or should) do about it. We will touch on some basic issues of conceptualisation in Chapters 3 and 5, entitled ‘Reading the Law’ and ‘Understanding Legal Reasoning’, respectively. But for the moment we will focus on something a little more concrete.
1.3 A sample legal problem
A friend who is a shopkeeper has recently received a consignment of camping and other knives, including a small number of flick knives. She is concerned that the police may take action if she were to display and sell these flick knives to the public, and asks you for advice. In considering this problem, we are going to ask you two questions:
1. Why might the sale of flick knives be a matter for law in the first place?
2. How can you find out if she would be breaking the law?
These look like very different kinds of question. Asking why something might be a matter for law requires us to think about the role and purposes of law—what it ought to do. It might also imply that there are some things law should not do, or activities it ought not interfere with. We will look at this question first, under the heading the ‘functions of law’. Our second question seems much more mechanical: how do we find the law? But that in turn assumes certain knowledge and skills: sufficient knowledge to identify, first, the different kinds of rules that are recognised as ‘law’ in the relevant legal system; secondly, the appropriate search skills to find the rules and principles you need; and, thirdly, enough understanding of what the rules actually mean (and how they are likely to be applied) to advise. As we shall see over the course of this book, finding and understanding the law is not quite as straightforward as it sounds, but a good starting point is to be aware of the range of rules that are developed by the important institutional sources we have already mentioned. We will come back to this in sections 1.6, 1.7, and 1.10.
1.4 The functions of law
Thinking functionally about law is an important part of studying because it helps us to focus beyond what law is, to what law does and why it may be an appropriate tool of social policy. Learning law is not just a rote exercise; it is not just about learning the (p. 3) rules (despite the title of this book!). In learning law, we need also to pay attention to the bigger picture of what law in general is for. This is one of the things that can make understanding the law both exciting and important. Moreover, it is not just a social policy question, it can take us into some quite deeply philosophical territory—if you take a module in legal theory or philosophy of law, you will certainly look at some of those larger issues, though these philosophical questions can be raised in virtually any substantive subject too.
For our present purposes it is enough to note that a functional perspective emphasises the extent to which law performs a range of ‘coercive’, ‘protective’, and ‘facilitative’ roles. The coercive function of law is the one with which we are most familiar, where law acts as a power over our conduct, notably in criminal law matters, though the coercive force of law can also be much more subtle than fining someone or throwing them in prison! The flip side of such coercion is that law also serves to protect and defend the rights and interests of legal persons, and to stabilise social conduct and expectations (e.g. by blocking conflict, or diverting it into an acceptable—i.e. institutionalised—form). Law—and lawyers—also perform an important enabling (facilitating) role in society. Law in this latter sense makes a whole range of interpersonal, business, and even interstate transactions possible: from getting married, to selling a house, buying products for a business, liquidating a company, through to constructing a bilateral or multilateral trade agreement between states.
Linked to this is the rather obvious point that specific laws also tend to be made for a particular purpose. Such purposes may well be significant considerations in interpreting and applying the law. To that extent the functional question, ‘What is this law for?’, can be of real practical importance. This is a theme to which we will return at a number of points in this book.
1.4.1 Maintenance of public order and safety
The law is often regarded as a critical part of the ‘glue’ that holds the fabric of society together, and protects us from the risks of social disorder and anarchy. The criminal law, in particular, is important in this respect, since it defines those behaviours which are regarded as sufficiently antisocial or potentially damaging to the public good to be outlawed and punishable by the state. At the same time, there is a real risk that the state itself can use the law to legitimate its rule and to suppress dissent by force. This abuse of law can be seen in many repressive regimes, and it is therefore considered important that political and legal authority in the state are kept reasonably separate and subject to a range of checks and balances, for example, by ensuring that lawyers, the police, and courts are independent of executive government.
1.4.2 The protection of individual rights and liberties
An important function of law in liberal democratic societies is that it should curb the capacity of the state and other powerful social actors to infringe the rights and liberties of individual citizens. This is often encapsulated in notions like the ‘rule of law’, which requires that no person or organisation be above the law, and ‘freedom under the law’, which implies that individual autonomy can only be constrained by a legitimate exercise of law. The protection of fundamental rights and liberties such as the right to a fair trial, the freedom of speech, and of lawful protest are important in constraining potential (p. 4) abuses of state power. Increasingly, in the context of the international and national human rights movements, the language of (negative) civil liberties and freedoms is being superseded by a language of positive, enforceable, rights such as the right not to be discriminated against because of one’s sex, race, age, sexual orientation, or disability.
This dimension of the law presents the courts with many of their most complex and politically and/or morally challenging problems. One such example is the case of the conjoined twins, referred to pseudonymously in proceedings as ‘Jodie’ and ‘Mary’: see In re A (Children) (Conjoined Twins: Surgical Separation)  EWCA Civ 254;  Fam 147. Shortly after their birth, it became clear that both babies would die within a matter of months if not separated. If they were separated it was equally certain that Mary would die during or very shortly following the procedure, while Jodie had a very strong chance of survival and, subsequently, of a reasonable quality of life. While doctors were willing to undertake the surgery, the parents felt, on religious grounds, unable to consent to an operation that would actively take the life of one of their children. The medical team also needed to know that they would not be prosecuted for murder if the operation went ahead.
The case was without legal precedent, and raised fundamental questions of human rights, family law, and criminal law that all had to be considered by the court. In a unanimous judgment the Court of Appeal allowed the operation to go ahead, but the complexities of the issues were such that the three judges came to that conclusion by quite different routes.
1.4.3 The organisation and control of the political sphere
Although we often think of law and politics as necessarily distinct systems, the reality is more complex, as law performs an important part in preserving the political structure and processes, and politics plays an increasing role in shaping the law, not least through the extensive annual legislative programme of Parliament.
In many countries the relationship between law and state is defined primarily by a written constitution. The United Kingdom, by contrast, is distinctive in retaining an unwritten constitution, but this does not mean that there is no constitutional law, nor that the courts lack any authority over the political and legislative process. Moreover, major legislative reforms such as the European Communities Act 1972, the Human Rights Act 1998, the various devolution Acts, and the Constitutional Reform Act 2005 all point to ways in which our constitutional arrangements are becoming increasingly embedded in written—statute—law. We will touch on a number of these developments in the course of this chapter, and later in the book.
1.4.4 The regulation of economic activity
Within the dominant ethos of market capitalism, law plays an important function in facilitating and encouraging national and international trade in goods and services. It does this by creating legal frameworks and conditions for facilitating trade, and by establishing principles of risk allocation and dispute resolution for when things go wrong. At the same time, the law also plays a role in restricting the activities of economic entities, and protecting citizens, states, and the environment itself—for example, from unsafe labour practices, abuses by an entity of a dominant market position, and other forms of unfair exploitation. Achieving a balance between these aims is often (p. 5) extremely difficult, and, as the recent banking crisis has shown, regulatory failure can have massive economic and social impact.
1.4.5 The regulation of human relationships
The law serves to legitimate and control various aspects of personal relationships. This includes laws on marriage and civil partnership; setting principles governing the distribution of family property on relationship dissolution or death; regulating parent–child relationships, and those situations where the state and the courts may take measures to protect the welfare of a child, even against the rights of the parent. The law may also play some part in regulating our most intimate relationships, by setting limits to what constitutes lawful sexual activity, and regulating both abortion and assisted reproduction.
1.4.6 The preservation of a moral order
Closely related to the law’s role in regulating both public order and human relationships is another idea: that the law plays an important role in the reproduction and enforcement of certain moral principles and values. Both laws and moral principles share a characteristic that legal philosophers describe as ‘normativity’—that is, they describe behavioural ‘norms’, or statements of what we ought to do. However, laws become distinct from purely moral norms by virtue of acquiring a particular material form (as statute or case law) developed within and legitimated by the institutional framework of a ‘legal system’. This does not mean that laws have no moral content, or that law necessarily lacks moral functions and values. There are, of course, many specific areas of law which try to reflect a current moral consensus within society—for example, laws protecting freedom of religion, and others which attempt to control certain ‘immoral’ behaviours, such as the public display of pornography or racist ‘hate speech’. Beyond these sorts of specifics, however, some would also argue that the law itself is grounded upon certain core moral values—a commitment, for example, to ideals of order, justice, and individual freedom (Stein and Shand, 1974). We consider some of the implications of the (contested) interplay between law and moral norms in relation to models of legal reasoning in Chapter 5. The rise of ‘human rights’ (Chapter 10) similarly can be regarded as a predominantly moral discourse that has sought to embed notions of human dignity and fundamental rights within national legal systems.
1.4.7 The regulation of international relations
International relations are governed primarily by a form of law called public international law. This creates rules, for example, for the recognition of states as legal entities, the setting of their territorial boundaries, and the conduct of diplomacy between them. Wars and armed conflict are also governed by international legal rules; principles of international humanitarian law exist to protect those caught up in conflict, and, increasingly, those accused of war crimes and other crimes against humanity are liable to be judged before international tribunals according to standards set by international criminal law. At the interstate level, international trade is also increasingly regulated, chiefly by the World Trade Organization in Geneva, but also by regional trade systems such as the European Union (which is the most closely harmonised, and most like a regional legal system of all the trading blocs), the US–Mexico–Canada Agreement (p. 6) (USMCA), and the Association of South East Asian Nations (ASEAN) Free Trade Area. These bodies exist as negotiating fora, and offer systems of dispute resolution for trade disputes between states within their jurisdiction.
1.4.8 Why thinking functionally matters
A good academic, and often a good practising lawyer too, needs to be able to think critically about the law—about what it can, and also what it ought to do. Examining its social, political, economic, or moral role and consequences opens up a whole range of arguments and issues that we might not consider if our thinking stopped at just a technical analysis of the rules themselves. As we shall see later, particularly in Chapters 9, 10, and 11, thinking about law in this kind of ‘purposive’ way is also something judges do when they are making a decision, or interpreting legislation. But for now, we return to the question of what law is, by looking at how it differs from other forms of regulation and what we can call ‘social rules’.
1.5 Regulation: legal rules and social rules
One of the words that kept cropping up in section 1.4 was ‘regulation’. Law is commonly used to regulate aspects of individual and institutional behaviour; indeed, legislation in particular is sometimes seen as a paradigm form of regulation. But law is not the only means of regulating.
The term regulation can be seen as encompassing ‘all forms of social control, whether intentional or not, and whether imposed by the state or other social institutions’ (Morgan and Yeung, 2007: 3–4). If we think about it, law does not operate in isolation from other forms of regulation. Any society is governed by a mass of other rules which are not laws in the formal sense, but merely private rules or more general social conventions—perceptions of ‘proper’ behaviour. These are also a means of regulating social conduct, but the focus on regulation reminds us that societies have a choice about what and how they regulate. Thus, while most of us would accept that anyone stealing the possessions of another, or possibly someone selling flick knives, should be liable to a penalty under the criminal law, we might be surprised to see someone in court for eating peas off their knife! Regulating table manners is not really so important to our society as to require the force of law.
Thinking about law as one of a number of possible ways of regulating helps us understand what is distinctive about law, and the way it relates to other social rules, thus:
(i) Laws tend to perform the important regulatory functions that often could not be performed (at all or as well) by other kinds of rule.
(ii) Law may be particularly important because of its formal character and the specialist sanctions or remedies that are not available to other forms of regulation.
(iii) The choice of formal or less formal mechanisms employed may well reflect different priorities, or different social values, regarding the behaviour in question.
(iv) The use of law and legal sanction is also symbolic: it sends out a powerful message about what society does value.
(p. 7) Decisions about regulatory tools and approaches may also reflect judgements about the effectiveness of different forms of regulation. In some contexts, regulation may be much more effective if it makes little or no use of law. Economic policy may thus be used to regulate market behaviour; or design principles may be applied in such a way as to regulate the ways in which buildings or roads, etc. are used. Consider, for example, how traffic-calming measures, or putting pedestrians and car users into a shared space, may control drivers’ speed more effectively than (just) a speed limit. Governments and regulators are becoming more aware of how different kinds of rules, together with a variety of other regulatory tools, can be used purposefully, recognising that, in some settings, it may be sufficient to guide or steer conduct, rather than deploy the full force of traditional legal regulation.
Generally, laws are identifiable by the fact that they take a form which distinguishes them from other social rules and conventions. Their form tells us that they are derived from an ‘institutional’ source that is socially recognised (and some would say accepted) as having the power to create law. Only rules so created can be said to be legally binding upon the individual, or even upon the state itself. Thus, our first step in finding the law governing the sale of flick knives would be to discover whether any of the legal institutions have had anything to say on the matter. In sections 1.6–1.10 we turn our attention more specifically to the forms and sources of English law.
In English law there are currently four main institutional sources which we shall consider: Parliament, the courts, the European Union, and the European Convention on Human Rights (ECHR). By taking them as our starting point, we are defining legal material by concentrating on the ‘law-makers’. This is a rather narrow basis, but it does emphasise the importance of what are often called the ‘primary’ sources, and distinguishes them from ‘secondary’ or literary sources of law that provide only a commentary on or analysis of the rules (see Chapter 2).
1.6 Parliament and legislation
Parliament is significant for three reasons. First, it is the originator of what is probably the single most important modern source of law—that is, statute law. Secondly, through its legislative powers, Parliament is able to give law-making powers to other bodies, such as local councils, government departments, and other agencies. This results in a form of law that is called subordinate or delegated legislation. Thirdly, Parliament’s delegatory powers are being widely used to create less formalised regulatory systems which operate within a framework of formal rules created by statute.
1.6.1 The importance of legislation
It is critical that you understand what legislation is and how it operates. Legislation matters because statutes are constitutionally the highest form of law in the UK legal systems, and, practically speaking, because most new laws over the past 100 or so years have had their basis in legislation. Against this background you should not be surprised to find quite a lot of legislation governing the display and sale of flick knives, for example.
The growth in legislation has been a key feature of the modern English legal system. It reflects the extent to which social life has become more complex, and government has (p. 8) extended its control over our activities, both in the areas of business and commerce and in the social sphere, where many important fields, such as employment, child care, and social security law, owe their modern existence almost exclusively to statute.
This has meant that over the past fifty to sixty years the amount of legislation in force has grown significantly. This reflects two processes: first, a tendency of law to accumulate, because ‘old’ laws are not necessarily removed at the same rate that new ones are created, and, secondly, a higher level of legislative activity by Parliament than in the past. If we look at the nature of that legislative activity, however, it is not simply that we are seeing more Acts of Parliament every year. In fact, the number of Acts being passed per parliamentary session actually peaked in the 1970s (see Miers, 1986; cf. Cracknell and Clements, 2012). So, what is happening to make the statute book continue to expand?
(i) The amount of statute law judged by the number of pages of legislation passed has still tended to grow decade on decade. Miers (1989) has thus shown that the volume of primary legislation rose steadily from an average of 745 pages per session in the 1950s to 1,525 pages in the 1980s. By the end of the 2000s, that average had increased to 3,224 (our figure, based on data in Cracknell and Clements, 2012).
(ii) This has also been accompanied by a growth in the amount and length of secondary legislation. We return to this in section 1.6.3.
So, what this tells us is not that there is simply more legislation, but that the way in which legislation is being designed and used is changing. Acts are becoming longer and perhaps therefore more complex, and, at the same time, more and more law-making is being channelled through delegated legislation.
1.6.2 Statute law
A statute is a document which contains laws made by Parliament. Statutes are also referred to as Acts of Parliament. You will learn more about their design in Chapter 3.
Statutes are now found in virtually all fields of law and govern all sorts of activities. Many statutes affect our lives without us even knowing about them. For instance, how is the date of Easter calculated? For the answer to that one has to turn to a strange Act of 1750—the Calendar (New Style) Act. This Act determined many calendar calculations, including leap years and Easter. The strangest provision, however, came with the calendar itself. In 1750 Britain used the old Julian calendar. Many other countries had switched to the more accurate Gregorian calendar. There was a difference of eleven days between these calendars. When it was the end of September here, it was October elsewhere. A change had to be made. The question was: how? The Act provided the answer by stating that 2 September 1752 was to be followed by 14 September 1752. Eleven days were thus simply deemed not to exist! This clearly illustrates the power and authority that legislation has. Unfortunately, in this case, it also led to riots in the streets; not least because some people were not getting birthdays in September 1752, and everyone was suddenly eleven days older!
Statutes are created directly by Parliament, following procedures laid down in both the House of Commons and the House of Lords. A statute becomes law only after it has been introduced into Parliament as a ‘Bill’, been approved by both Houses of Parliament, and has satisfied the formality of obtaining the Royal Assent. Once an Act has been passed it is unimpeachable, so far as English law is concerned. As Lord Campbell put it (p. 9) in Edinburgh & Dalkeith Railway v Wauchope (1842) 8 Cl & F 710: ‘no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress’.
Lord Campbell’s statement still rings broadly true today. There is no single UK court with the power equivalent to, say, the American Supreme Court to declare domestic legislation unconstitutional and therefore invalid. This absence of constitutional review reflects a principle called parliamentary sovereignty, or sometimes ‘supremacy’. This is the idea that Parliament is the primary law-maker, and that an Act of Parliament is the supreme form of English law. The supremacy of Parliament is important for legal method, both because it creates a division between law-making and judicial functions in the state and because it raises questions about the proper boundaries between rule-making and the subject matter of this book—rule interpretation and application. According to the conventional view, the role of judges is to interpret the law, not to make it; however, as we shall see over the course of this book, the reality is rather more complicated than this simple idea suggests.
This is because the boundary line is being tested in the context of the UK’s adoption of laws that voluntarily set limits on what Parliament can do. These are primarily the small category of so-called ‘constitutional statutes’, including the Act of Union 1707, the European Communities Act 1972 (currently under threat of repeal), the Human Rights Act 1998, and the Scottish and Welsh Devolution Acts. These Acts involve important self-constraints on Parliamentary sovereignty to legislate, for example, inconsistently with European Law, or international human rights norms, or to legislate over matters within the exclusive authority of the devolved governments. Cases which raise questions under these Acts therefore have the potential to challenge boundaries between the courts’ established powers merely to ‘apply’ the law, or legitimately to challenge Parliament’s competence to legislate in certain ways inconsistent with its obligations, and its capacity to challenge the very validity of legislation. For judicial discussion of where some of these boundaries lie, see, for example, Ahmed v HM Treasury  2 AC 534; R (Jackson and Others) v Attorney-General  UKHL 56; H v Lord Advocate  UKSC 24.
It is at least of note that in two of these cases—Jackson and H—the possibility of a judicially constrained sovereignty is openly considered by members of the highest court in the United Kingdom. This in itself signals a perceptible shift in judicial thinking about the relationship between the courts and Parliament in the twenty-first century.
1.6.3 Delegated legislation
Acts of Parliament are not only a major source of law in their own right; they also provide a legitimate means whereby Parliament can pass on, or delegate, its law-making powers to another body or person. Parliament’s power of delegation has in fact been widely used for many years, but because its exercise is much less visible than the act of legislating, it is easy to lose sight of the importance of delegated legislation. The volume of secondary legislation is in fact considerable: 11,888 UK statutory instruments were made in 2009 alone (Cracknell and Clements, 2012). Statutory instruments are not just quantitatively important. It is worth remembering that, in practice, the operation of whole areas of law, such as social security and immigration, is dependent upon a network of regulations, which will be of greater day-to-day significance than much of the (p. 10) statute law. As most of this book focuses on primary legislation and case law, we will look at delegated legislation in some detail here.
Delegated legislation takes primarily one of two forms, called secondary or tertiary legislation. Be aware, however, that terminology in this area is not entirely consistent. You may also come across the concept quasi-legislation, which seems to cover a broad spectrum of rules (what we will here refer to as tertiary legislation and ‘soft law’) that are not directly enforceable by the courts.
The most important secondary legislation is published as a statutory instrument (SI) (individual instruments may also be called Regulations). The term SI derives from the Statutory Instruments Act 1946, s. 1, which provides:
(1) Where by this Act or any Act passed after the commencement of this Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then, if the power is expressed—
(a) in the case of a power conferred on His Majesty, to be exercisable by Order in Council;
(b) in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instrument,
any document by which that power is exercised shall be known as a ‘statutory instrument’ ….
Most secondary legislation is published in the form of an ordinary SI. However, there are a number of specialised forms of secondary legislation of which it is useful to be aware. These are:
• Orders in Council, which are orders issued under statutory authority by the Crown on the advice of the Privy Council. They can be used for a wide variety of functions, but tend to be used for administrative and governance matters for which SIs are not deemed appropriate. For example, the transfer of specific ministerial powers from the UK government to ministers of the devolved governments in Wales and Scotland was completed by Orders in Council.
• Legislative Reform Orders (LROs), which were created by the Legislative and Regulatory Reform Act 2006 and enable ministers, subject to certain safeguards, to amend primary legislation by SI. The intention is that LROs are used to reduce regulatory burdens without having to resort to amending legislation.
• Remedial Orders: where a UK court or the European Court of Human Rights has found a specific UK statutory provision to be incompatible with a Convention right, a minister may, where this is possible, amend or repeal the offending provision by remedial order.
The Statutory Instruments Act 1946 also lays down a number of clear rules about the form or style that SIs must adopt, and SIs, in theory at least, are subject to parliamentary oversight. In practice, however, many are not actually ‘laid before Parliament’—a technical term, meaning that copies are given to Parliament to scrutinise—as the level of scrutiny depends on the enabling legislation.
Delegation always requires the express authority of an Act of Parliament, which, in respect of any delegated legislation created under its authority, will be referred to as (p. 11) the parent or enabling Act. The parent Act will not only give authority to the process of delegation, but also will set the parameters of the delegated power.
Where a public body attempts to act outside the authority of the powers delegated to it by Parliament, or fails to follow proper or prescribed procedures in the exercise of its power, then the courts may intervene and declare such actions unlawful because they are ultra vires, meaning ‘beyond the powers’.
Statutes can also delegate law-making authority to a wide range of government ministers, public agencies, and even private organisations or corporations. The rules made by such bodies are now commonly referred to as ‘tertiary legislation’. The word ‘tertiary’ is somewhat confusing, because it seems to suggest that this type of law is at a level below secondary legislation. It isn’t. It is still a direct delegation from Parliament, and so at the same ‘level’ as secondary legislation, but the style of the regulation is different, and there is no expectation of parliamentary scrutiny. These two points represent the key distinctions between statutory instruments and tertiary legislation, though in practice, as we have noted, the actual level of scrutiny of SIs and tertiary legislation may often not be very different.
A good example of tertiary legislation is Code of Practice ‘C’ governing the detention and questioning of persons held at a police station. Codes of Practice governing the conduct of police are made by the Home Office under powers contained in the Police and Criminal Evidence Act 1984 (PACE). Code of Practice ‘C’ is not directly enforceable in the courts, by virtue of PACE, s. 67. This means that breaches of the Code are not themselves breaches of law; however, the Act does allow them to be used by a court to justify excluding any item of evidence that has been improperly obtained by the police (see, e.g., R v Samuel  QB 615;  2 All ER 135).
The term tertiary legislation is also used in the context of European Union Law, where it has a very specific but different meaning from that used here—see further section 1.10.
1.6.4 ‘Soft law’
Legislation may also enable other bodies to issue a variety of ‘soft law’. This term is used to describe a range of measures that are less formal than tertiary legislation and often non-binding in their effect. Such measures tend to be administrative in character, providing guidance to officials or sometimes advice and information to citizens. Despite its relatively informal character, soft law is recognised as an important source of rights and duties, and such policy statements may be sufficiently clear or ‘hard-edged’ to be justiciable in the sense that they are open to interpretation by the courts, even if not enforceable as ‘hard law’. As Lord Steyn put it in Re McFarland  UKHL 17;  1 WLR 1289 at :
… in respect of the many kinds of ‘soft laws’ with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a Minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy …. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular minister may have had in mind.
(p. 12) The distinction between soft law and more formal regulation is not always straightforward. Neither the stated intention of the rule-maker nor the name of the measure will be determinative. Codes of practice, circulars, guidance, etc., may be either tertiary legislation or soft law. Their legal nature and effect can only be determined by examining the material in question within its whole context (including the legal powers under which it was made), to assess whether or not it has the character of a rule or is just information, advice, or guidance as to how the requirements of a rule might be met: R (on the application of Alvi) v Secretary of State for the Home Department  UKSC 33.
In summary, then, we have seen how both statute and, with it, delegated legislation have expanded over the past thirty to forty years. This creates a challenge for those seeking to know and use the law: there is quite simply a lot more of it, and it is more widely distributed across a range of legal instruments. Consequently, in advising our friend about her business, we need to look not just for statute law, but whether Parliament has delegated relevant authority to make regulations about flick knives, and then exercised that power to make regulations, and/or authorised any other bodies (such as local councils) to issue guidelines or other controls.
Practically, the ability to delegate carries great advantages to the government, and sometimes to the legal system, for example in times of emergency, or whenever we need to be able to change the law quickly and easily. Soft law and informal rules similarly are adaptable and can provide a flexible way of providing authoritative advice and guidance to citizens and officials. They can be instrumental in guiding officials in the use of their discretion, and can actually impose significant restraints upon it. The risk of soft law, however, lies in the extent to which public power is thus being exercised from within less public places: (semi-)autonomous government agencies and the private sector, and according to rules found in guides and manuals rather than statute books and published regulations. These are not necessarily beyond the reach of the supervisory powers of Parliament and the courts, but the scope for judicial oversight and intervention tends, by definition, to be less.
1.7 The courts
Although legislation is extremely important, it cannot operate in isolation. Legislation requires implementation. On a day-to-day basis that is the function of a wide variety of officials, whose job is either itself to carry out Parliament’s commands or else to make sure that other organisations or private individuals are doing so. In this process, questions may be raised about the effect of a particular piece of legislation. Often these will involve technical questions of interpretation. Officials are constantly engaged in (p. 13) interpreting both primary and secondary legislation, but sometimes we require a more authoritative statement of what the law means. That authoritative process of interpretation is usually undertaken by the courts.
The courts, moreover, are not only important as interpreters of legislation, but they are also the second major source of English law in their own right, through the development of the common law, a term which we first need to define.
1.7.1 The meaning of ‘common law’
This term is used in two ways:
(i) to distinguish common law from statute: ‘common law’ is used to describe all those rules of law that have evolved through court cases (as opposed to those which have emerged from Parliament) over the past 800 years. Despite the growth of statute, English law is still generally understood in common law terms. By this we mean that the way in which we think about law, and categorise laws, is still heavily influenced by the old common law forms of action which determine what types of problem we now call ‘contract’, ‘tort’, etc.
(ii) to distinguish common law from other legal systems: comparative lawyers have long used the term ‘legal families’ to group together legal systems which share certain common features. More recently, the term ‘legal tradition’ has become more popular as a way of thinking comparatively about different legal systems and cultures (see, e.g., Glenn, 2010).
Tradition in this setting emphasises both the influence of (legal) history—the continuing presence of the past in shaping the law—and the complex, dynamic nature of legal culture. The philosopher Alasdair MacIntyre (1988) summarises this idea of a ‘living tradition’ as ‘an historically extended, socially embodied argument, and an argument precisely about the goods that constitute that tradition’. In other words, ‘tradition’ becomes a way of understanding and explaining the norms and values that make up a particular conception of the legal world, and the ways in which that legal world embraces both continuity and change. Tradition as an idea of both historical continuity and a reinterpreting of the past through the present (and vice versa) is quite fundamental to our understanding of law, where the past constitutes a continuing source of reference, authority, and value-conformity.
In the Western world, there are two dominant ‘traditions’ which we call civil and common law, though there are a number of legal systems, such as the Scottish, which reflect elements of both traditions. The term ‘common law’ is thus used as a means of defining all those legal systems in the world whose laws are derived from the English system. We use the term ‘English’ rather than ‘British’ with good cause. For reasons of history, not only Scotland, but also Northern Ireland, and even the Isle of Man and Channel Islands, have evolved as separate legal systems from England and Wales (the Channel Islands, for instance, are part of Great Britain but not part of the United Kingdom or the European Union). Although much of the legislation passed by the Westminster Parliament now governs the whole of the United Kingdom, there remain substantial differences in law and the legal processes that apply in the different jurisdictions that make up the British Isles; indeed, with devolution of powers to Scotland and Wales, the differences are increasing.
(p. 14) The common law world remains extensive; it includes the federal laws of the United States, and most existing or former members of the British Commonwealth, such as Australia, Canada, India, New Zealand, and Singapore, though in many such systems the English influence may coexist with elements of local customary law or even with other legal traditions, such as Islamic law or Hindu law (see, e.g., Glenn, 2010). This does not mean that these countries have all developed uniform responses to particular legal problems. To survive transplanting, the common law has had to respond to the different needs and conditions of each jurisdiction. This has often meant departing from the established (English) rules. Such variation is generally seen not so much as a dilution of the common law, but rather as a sign of its capacity to adapt (see, e.g., per Lord Diplock in Cassell v Broome  AC 1027 at 1127;  1 All ER 801 at 871; per Lord Lloyd in the New Zealand case of Invercargill City Council v Hamlin  1 All ER 756, at 764–5). Courts, legislators, and lawyers in the common law world still share a more or less common approach to legal reasoning, and, as Lord Lloyd put it in Invercargill, a willingness to learn from each other. For example, it is not that uncommon, particularly in areas where the law is uncertain, for judges to refer to decisions from several common law jurisdictions, thereby enabling them to analyse a range of potential solutions to the problem.
1.7.2 The contrast with ‘civil law’
The term civil law describes those systems which have developed out of the Romano-Germanic legal tradition of continental Europe. It is the civil law tradition which dominates within the present European Union. Only two Member States—the Republic of Ireland and the United Kingdom, subject to the caveat regarding Scotland—belong to the common law world as such. (One other Member State, Cyprus, shares some of the common law tradition, but is best seen as a mixed system, rather like Scotland.) As large sections of this book are concerned with comparative issues between English and ‘European’ law, we will come back to the differences between the common law and civil law traditions at various points, but for now we return to the other meaning of common law as a source of judge-made English law.
1.7.3 The court structure
To understand how the common law works, we need to understand the English court structure and its role in making precedent. We begin with two basic distinctions: one is the difference between trial and appellate courts; the other is between civil and criminal courts.
The function of trial courts, such as the county court, is to hear cases ‘at first instance’: that is, to make a ruling on the issues of fact and law (this is a distinction that we shall discuss in detail in Chapters 3 and 5) that arise in the case. This distinguishes them from appellate courts, whose function it is to reconsider the application of legal principles to a case that has already been heard by a lower court. Some appeal courts also have jurisdiction to reconsider disputed issues of fact—i.e. disputes about the events leading to the legal action. Thus, any one case may well be heard by more than one court before the issues are finally resolved. Rights of appeal can be a complex subject in their own right, governed by a whole set of procedural rules; the detail of these falls outside the scope of this book, and we shall only outline the general principles that apply.
(p. 15) Trial and appellate functions are often combined within one court; the system is not simple enough for us to say that court X is solely a trial court, while court Y is purely appellate.
Civil and criminal law are significantly different in their aims, and employ different legal procedures. This latter point is particularly true of rules of evidence, for example. ‘Evidence’ describes the legal rules which control what facts may be proved, and the manner of their proving, before the courts. If you were to study the law of evidence, you would soon be struck by the greater evidential restrictions governing criminal as opposed to civil cases.
Criminal law describes those wrongs—offences—which are sufficiently important for society, usually through the intervention of the state, to outlaw as crimes, and to impose special penalties on the wrongdoer (such as a fine or term of imprisonment). If you haven’t studied law before, this is probably what you most immediately think of when you think about ‘law’, whereas, in reality, the criminal law is a relatively small part of the totality of English law.
The term civil law (as opposed to ‘civil (romano-germanic) law’ as considered in section 1.7.2) is also used to describe all those areas of law which are not criminal. Areas that govern the relationship between legal persons—i.e. individuals and corporations—such as contract, employment, or tort (itself an umbrella term used to describe a whole variety of specific wrongs, not ‘offences’, which is a term reserved for criminal matters) and areas such as negligence, libel, and trespass are all classed as civil law. In civil law matters the injured party will, if they succeed, be entitled to a ‘remedy’. This will most commonly be in the form of financial compensation for the harm suffered, and where that compensation is awarded by the court it is called ‘damages’.
By and large there is a fairly clear distinction between those courts having civil law and those having criminal law responsibilities (what lawyers call jurisdiction). Figures 1.1 and 1.2 provide a basic guide to the structure of the English civil and criminal court systems.
With the exception of the lay magistracy, and some specialist tribunals, the English judiciary is overwhelmingly drawn from legal practice. Unlike many civil law countries, where there is an established career judiciary which functions, usually as a branch of the civil service, judicial appointments in England and Wales are made generally on the basis of private practice experience, with most judges commencing their judicial careers after around ten or more years as practitioners. This means that English judges tend to have a substantial body of legal experience already behind them, but, on the downside, it means that the lack of diversity apparent in the more senior levels of the legal profession tend to be amplified in appointments to the judiciary. Thus, in 2017, 93 per cent of court judges identified as white, and 70 per cent as male (as compared with a European average of 49 per cent male). Around two-thirds of all judicial appointments are still made from the Bar, which represents some 10 per cent of the practising profession. (All statistics cited are drawn from the Judicial Diversity Statistics 2017 published at www.judiciary.uk.)
The Supreme Court of the United Kingdom
The Supreme Court is at the top of the hierarchy of English courts. It is the final court of appeal in civil and criminal matters in England, Wales, and Northern Ireland, and for civil appeals from Scotland. The Court was created by the Constitutional Reform Act 2005 to replace the Appellate Committee of the House of Lords. It commenced work (p. 16) on 1 October 2009. The Court comprises twelve judges in total, called Justices of the Supreme Court (JSC). Only eleven Justices were appointed by the time it commenced sitting. Ten of these were already sitting as judges in the House of Lords, including the first President of the Supreme Court, Lord Phillips of Worth Matravers.
The current President of the Court is Lady Brenda Hale (Baroness Hale of Richmond), who took up the role in September 2017. Lord Reed took over from Lady Hale as Deputy President of the Court on her appointment. Lady Hale is the first woman to lead the UK’s highest court, having also been the first woman to be appointed to its predecessor, (p. 17) the House of Lords, in 2007. She was joined in 2018 by two further female Justices: Lady Arden and Lady Black. In an historic moment for the Court, the case of Re D, in October 2018, became the first case to be heard by a panel on which women Justices were the majority.
The majority of appeals to the Supreme Court come from the Court of Appeal in England and Wales. Although it may also hear appeals direct from the High Court by a special procedure (called ‘leapfrog’), such cases are rare.
Cases in the Supreme Court are normally heard by five judges, or, exceptionally, by as many as seven or nine judges if the case is felt to raise issues of special importance or difficulty. HM Treasury v A and Others, the very first case to be heard before the Supreme Court on 5 October 2009, was one of three joined appeals listed to be heard by a bench of seven Justices. For earlier examples, see Pepper v Hart  3 WLR 1032;  1 All ER 42 and R v Bow Street Metropolitan Magistrate, ex parte Pinochet Ugarte (No. 3)  2 All ER 97.
(p. 18) The Supreme Court only hears appeals in respect of cases which raise points of law of ‘general public importance’—that means that there must be some significant area of doubt regarding the operation of a rule of law before the Court will hear the case. Such cases are relatively few; it tends to hear only around eighty or so full appeals in a year. However, this does not represent the whole work of the Court and its Justices, since the Justices must also sit to hear over 200 applications for permission to appeal to the Supreme Court, and also undertake most of the judicial work of the Privy Council (discussed later in the section).
Procedure in the Supreme Court is governed by a set of regulations called the Supreme Court Rules 2009, and by ‘Practice Directions’ set down by the Court itself. These can all be accessed from the Supreme Court website (at www.supremecourt.uk).
Historically the office of Lord Chancellor carried the status of head of the judiciary, and included the right to sit as a judge in the House of Lords. Following the passing of the Constitutional Reform Act 2005 the judicial functions of the Lord Chancellor were transferred to the Lord Chief Justice, who is now the senior judicial figure in England and Wales and also Head of Criminal Justice (but does not sit in the Supreme Court). The present incumbent, Lord Burnett of Maldon, was appointed in October 2017, having previously sat in the Court of Appeal.
The Court of Appeal
The Court of Appeal, together with the High Court, constitute what are called the Senior Courts of England and Wales. The Court of Appeal itself is split into two Divisions, Civil and Criminal. The Civil Division will hear appeals from the High Court and county courts. Cases are heard by a minimum of two, but normally three, judges called Lords Justices of Appeal. For some years the first woman to be appointed (Dame Elizabeth Butler-Sloss, now retired) was also referred to as ‘Lord Justice’, but she (and all female judges subsequently appointed to the Court) are referred to now as ‘Lady Justice’. Female judges will tell you, however, that they are often referred to in all manner of ways. Thus, female District Judges should be called ‘Ma’am’, but ‘Sir’, ‘Your Worshipfulness’, ‘Madam’, and even ‘Lovey’, all betray various confusions or prejudices. The title Lord or Lady Justice is written as ‘LJ’ following the judge’s name—hence ‘Smith LJ’.
The Court’s Civil Division is headed by a senior judge known as the Master of the Rolls, who is also Head of Civil Justice in England and Wales. He (as yet there has never been a female Master of the Rolls) is referred to by whatever title is appropriate with the suffix ‘MR’. The present incumbent is Sir Terence Etherton MR, who was also, in 2008, the first openly gay man to be appointed to the Court of Appeal.
The Criminal Division will hear criminal appeals against either conviction or sentence from the Crown Court. Criminal cases will normally be heard by at least two or three judges drawn from among the Lord Chief Justice, the Lords Justices of Appeal, and the Judges of the High Court.
Sir Rabinder Singh (appointed July 2017) is the only Court of Appeal judge with black or Asian ethnic origins. In 2017, nine (24 per cent) of the thirty-eight Lords Justices of Appeal, were women. This compares with eight (21 per cent) in 2015.
The High Court
This is the most complex of the courts to understand. The best way to grasp how it operates is to consider the trial functions of the various elements.
(p. 19) You can see in Figure 1.1 that the Court is subdivided into three divisions, each of which has a separate jurisdiction to hear cases at first instance (i.e. trials). These divisions are the Queen’s Bench, which deals with the main areas of common law, such as contract and tort, and some criminal and public law matters; Family, which deals with matrimonial cases and the wardship and adoption of children; and the Chancery Division, which deals chiefly with certain property, corporate, and tax matters. That seems simple enough, but now it begins to get more complicated. The English courts have long been important in the development and adjudication of both ‘local’ and international commercial disputes, not least because of Britain’s (and particularly London’s) historical importance as a centre of international trade and commerce. Because commercial law itself and the demands of court users have become increasingly complex and specialised, there has been a growing need for specialisation within the two divisions, which have significant commercial law jurisdictions: Queen’s Bench and Chancery. As a consequence, a number of specialist, commercial, trial courts have been created within each of those divisions, with judges being assigned specifically to those courts. The oldest of these is the Admiralty Court, which existed originally as a separate common law court in its own right, but was, in the late nineteenth century, amalgamated into a rather curious hybrid, the Probate, Divorce, and Admiralty (PDA) Division. The functions of the old PDA division were dispersed across all three divisions when the present system was created. The other specialist courts are of relatively recent creation. Their location and jurisdictional responsibilities are represented in Table 1.1.
Table 1.1 Specialist courts of the High Court
Queen’s Bench Division
Bankruptcy and Companies Court
Personal actions for bankruptcy. Compulsory liquidation of companies and other matters arising under Insolvency and Companies Acts.
Deals principally with the legal consequences of collisions at sea, salvage, and damage to cargoes.
Deals with a range of intellectual property matters, not just patents. Hears appeals from decisions of the Comptroller General of Patents, Designs and Trade Marks.
Wide jurisdiction over banking, international credit, and international trade matters, including shipping contracts that are not within the Admiralty Court’s jurisdiction. Judges of the Commercial Court also have jurisdiction to arbitrate commercial disputes.
Intellectual Property Enterprise Court (IPEC)
Replaces the Patents County Court in dealing with intellectual property matters (copyright, patent, and trade mark infringements and breach of confidence) where damages recoverable are below £500,000. Higher-value claims continue to go to the specialist Patents Court.
Technology and Construction Court
Specialist jurisdiction over building and engineering disputes, and computer litigation. Cases may be heard in London or at a number of regional court centres.
(p. 20) Each division has its judicial ‘head’, normally appointed from among the Lords Justices of Appeal. The head of the Chancery Division is now called the Chancellor of the High Court. The present incumbent is Sir Geoffrey Vos. The Family Division is led by a President, currently Sir Andrew McFarlane. The head of the Queen’s Bench Division was, historically, the Lord Chief Justice; however, the Constitutional Reform Act relieved him of that role by creating a new post of President, currently occupied by Sir Brian Leveson.
In addition to these first instance jurisdictions, each division has appellate functions performed by a ‘Divisional Court’. A Divisional Court will normally be presided over by two or three judges. The Divisional Courts of the Chancery and Family Divisions have jurisdiction over certain appeals from the county and magistrates’ courts. The main function of the Divisional Court of the Queen’s Bench Division has been to exercise what is called the ‘supervisory jurisdiction’ of the High Court; that is, the power to oversee the quality and legality of decision-making in inferior courts and tribunals. It also (occasionally) hears criminal appeals ‘by way of case stated’ on points of law from the magistrates’ courts and Crown Court. Following recommendations in the Bowman Review of the judicial review process, the Divisional Court of the Queen’s Bench Division was renamed the ‘Administrative Court’ in October 2000.
At first instance cases are heard usually by a single puisne (pronounced ‘puny’) judge, referred to as ‘Mr Justice … ‘ and written as, for example, ‘Brown J.’ (plural—‘JJ.’). As of July 2015, there were only three High Court judges who declared themselves to be from a black or minority ethnic background (representing 3 per cent of the total (and down from 4.5 per cent in 2012)). Twenty-one judges (20 per cent) out of the total of 106 sitting in the High Court were women. They have conventionally been called ‘Mrs Justice’, regardless of marital status; however, Dame Alison Russell on her appointment in 2014 became the first British High Court judge to be permitted to adopt the style ‘Ms Justice’.
The county court
Whereas the High Court can trace its ancestry back to Norman times, the county courts are essentially nineteenth-century creations. Two types of judges sit in the county courts: Circuit Judges (the more senior) and District Judges. Work is divided among these judges on a set of procedural rules which are outside the ambit of this book. An appeal from the decision of a District Judge (the right to appeal is based on limited grounds) will go to a Circuit Judge. An appeal from the decision of a Circuit Judge goes to the Court of Appeal.
The High Court and the county court deal with the same sort of legal issues. The difference is that the High Court deals generally with the more legally complex and/or higher monetary value claims. Major changes to the procedure of the High Court and the county courts were introduced on 26 April 1999, following recommendations in Access to Justice (1996)—often referred to as the ‘Woolf Report’, after its author, the then Master of the Rolls, Lord Woolf. While much of the detailed application of these rules goes beyond the scope of this book, we will briefly consider some of the consequences in section 1.8.
The Crown Court
This court deals almost exclusively with criminal trials and appeals. Most of its case load involves the trial at first instance of the more serious criminal offences, such as (p. 21) homicides, serious physical and sexual assaults, and property offences involving loss or damage of a ‘high value’. It is in this context that the Crown Court remains the only court in the English system in which a judge regularly sits with a jury. The function of the judge is to advise the jury on the law; the jury, however, remains the sole tribunal of fact, and it is for the jury alone to decide whether an accused is guilty or innocent as charged. The Crown Court has an appellate function whereby it also hears appeals (without a jury) from the magistrates’ courts on issues of fact or law.
The magistrates’ courts
Magistrates’ courts are purely courts of first instance. The bulk of their case load involves the trial of less serious criminal offences (in fact over 90 per cent of all criminal cases are tried by magistrates), though the courts also have a civil jurisdiction over some licensing, tax arrears, and matrimonial matters. The magistrates’ court is unique in that the great majority of cases are heard before Justices of the Peace—lay persons with little formalised legal training, though they are advised on the legal issues by a legally qualified Justices’ Clerk. Legally qualified magistrates may sit alone to hear cases: they were formerly called stipendiaries but now have the title of District Judge (Criminal).
Administrative tribunals and other courts
In addition to the formal courts, there is a plethora of administrative tribunals, many of which have been created only since the Second World War (though some, like the Commissioners of the Inland Revenue, are far older). They control a vast range of activities from the issuing of passenger licences to airlines, through employment disputes, to adjudicating on parking fines or the award of social security entitlement. The tribunal system has been significantly restructured and rationalised by the Tribunals, Courts and Enforcement Act 2007, bringing many individual tribunals within the structure of a standardised ‘First-Tier Tribunal’ with rights of appeal to an ‘Upper Tribunal’, which has taken over the appellate jurisdiction of the Administrative Court in respect of a large number of tribunals. One very important set of tribunals still sits outside this structure. These are the Employment Tribunals (until 1998 known as ‘Industrial Tribunals’). Appeals from these tribunals go to a specialist appeal forum known as the Employment Appeal Tribunal, and from there any appeal goes to the Court of Appeal.
In England and Wales there are a number of other local or special courts in existence, which are rather too specialised to merit discussion here. However, you should be aware of three other courts which, formally speaking, are not a regular part of the English court system, but are still of considerable importance to it. These courts are the Court of Justice of the European Union, the European Court of Human Rights, and the Privy Council.
The Court of Justice of the European Union (CJEU) is the final authority on points of interpretation of European Union law. The Court actually comprises three courts: the Court of Justice, the ‘General Court’, and the EU Civil Service Tribunal. For our purposes the Court of Justice has been the most important court in the CJEU structure. It exercises a range of judicial oversight powers over EU institutions and legislation, and courts in the EU Member States can refer points of European law to it for clarification and ruling (see further section 1.10 and Figure 1.1), though note that the CJEU’s importance in relation to the UK is likely to be greatly diminished in the context of Brexit.
(p. 22) The European Court of Human Rights is the international court created by, and with power to adjudicate cases involving the application of, the European Convention on Human Rights. It is a wholly separate institution from the CJEU, and the two should not be confused. Again, we discuss the nature and role of this court more fully later, this time in Chapter 10.
The Judicial Committee of the Privy Council (normally abbreviated to just ‘Privy Council’) acts as the final court of appeal for a number of UK dependent territories and independent Commonwealth states, though its jurisdiction has been steadily eroded by continuing UK and international reforms. Today it tends to hear anywhere between thirty and fifty cases a year, mostly from the Commonwealth Caribbean and the Channel Islands. It has a number of rather esoteric functions in the English legal system, relating to matters such as Admiralty cases and appeals from the disciplinary decisions of the General Medical Council. Its jurisdiction was extended in 1998 to include adjudicating on the ‘legislative competence’ of the devolved governments of Scotland, Wales, and Northern Ireland, though these powers have now been transferred to the UK Supreme Court.
Cases before the Privy Council are normally heard by the Justices of the Supreme Court. Senior judges from other Commonwealth states are entitled to sit, but that right is not always exercised. Given the status of the judges, Privy Council decisions may carry some considerable weight within the English legal system (see the discussion in Chapter 6), as well as being binding in the jurisdictions for which it remains the final court of appeal.
1.7.4 Precedent and the common law
The common law has not, as a system of rules, evolved from the totality of case law. It would be physically impossible to maintain records of and develop principles from every decision of every court that has ever heard a case. Rather, the origins of the common law can be traced back to the practice which developed in medieval England, whereby records of arguments used in the Royal courts were kept and circulated, at first unofficially, among the judges, student advocates, and practitioners. This practice gradually hardened into an officially sanctioned system of precedent, whereby important cases were recorded and subsequently used as authority for specific rules of law. As a reflection of that original practice, precedent is still created only by the superior courts—the High Court, the Court of Appeal, and the Supreme Court. Some of the major tribunals have separately created their own internal systems of precedent, and where rights of appeal to the courts exist, they will also be bound to follow the precedents set by those courts. Precedent is, in theory, binding on all inferior courts (and tribunals). These include, chiefly, the Crown Court, magistrates’ courts, and county courts; the details of our system of precedent will be discussed at much greater length in Chapters 6 and 7.
So, in advising our friend we would almost certainly have to take some account of case law, either because the legal rules concerned are actually a creation of the common law, or because the courts have considered the operation and effect of some relevant statutory provision. In advising her, we would not only have to know what cases (if any) existed, but also, by reference to the doctrine of precedent, assess what impact those cases might have on any future proceedings against her, which leads us onto our next point: what might those proceedings involve?
(p. 23) 1.8 The importance of procedural law
When someone goes to court, there are two kinds of law that need to be taken into account in managing their case. The first is what we call the substantive law, that is, the specific rules which tell us what the law of contract or crime says about selling flick knives (to continue with our example). The second is the procedural law, which lays down the process by which a case is brought before the court, and how it is tried. Thus, the procedural law will prescribe the process by which a claim is made or criminal action commenced, and the pre-trial steps required (under judicial supervision) to bring it to trial. Procedural and evidential rules also set some parameters on the conduct of trials and on what evidence may be admitted.
The procedural law tends to operate differently in civil disputes and criminal prosecutions. Generally procedural and evidential rules tend to be rather more restrictive in criminal cases, not least because an individual’s liberty is often at stake.
The details of procedural law are not widely taught in English law schools before the stage of professional training, but a basic knowledge of how cases come to court, and the systemic assumptions underpinning that process, is useful in understanding how and why cases get to court (and sometimes into the law reports) in the way they do. Moreover, because the continuing development of the common law system depends to a significant extent on cases getting into the superior courts, the processes by which cases get before those courts are important for legal method, because they will also help determine the future shape of the common law, and the pace of change.
1.8.1 The adversarial process
One thing procedurally that virtually all common law civil and criminal courts (it is much less true of tribunals) have in common is the assumption of what is commonly called an adversarial process. This was described by Justice (1974: 18) as:
a fight, a pitting of strengths and wits against each other, a display of aggression mitigated only by the ritual of a complex set of rules and conventions.
This notion of ‘trial by battle’ is deeply embedded, both historically and psychologically, within the common law tradition. It has created a system in which, traditionally, it is the parties themselves who make the running in any case. It is they, not the judge, who select the facts and the legal issues upon which a case is to be fought. This is reflected in both the role of the judge and the ethical obligations borne by the advocates.
Traditionally, the role of the judge is thus, in theory, restricted to passive umpire, overseeing proceedings and ensuring that the trial is pursued according to the rules of the legal game. Judicial neutrality is, of course, a fundamental principle. Judges are expected to remove themselves (or risk being removed) from hearing cases in which they have a personal interest, or where, viewed objectively, they have acted in a manner that demonstrates actual or apprehended bias or prejudice. Of course, this does not mean that the judge is a silent bystander; he is quite at liberty to interject, for example, to direct a witness to answer questions, to test the quality of the legal arguments being put forward, to seek clarification of some point of fact or law, or to prevent an improper (p. 24) line of questioning. And judges can legitimately be quite robust or forthright in their language without that of itself leading to a finding of bias.
Unlike the judge, the advocate’s role in common law systems is, it follows, essentially partisan. Their job is to represent their client, though this too is subject to certain ethical limitations: most notably, the lawyer’s partisanship is qualified and balanced by duties to the court and, to a lesser extent, third parties and the profession at large. Professional codes of conduct in the UK thus make it a disciplinary matter actively to mislead the court or other parties to the proceedings, though the boundaries of such obligations may themselves be a matter of some debate (see generally Herring, 2017: ch. 4).
Even so, it is sometimes said that the system is of limited efficacy. The promise of adversarialism is a pragmatic commitment to procedural fairness, which may in practice be significantly undermined by resources and other inequalities between parties. Defenders of the system nonetheless argue that the law is doing the best it can. In Air Canada v Secretary of State for Trade (No. 2)  1 All ER 910, Lord Wilberforce put it in these terms (at 919):
In a contest purely between one litigant and another, such as the present, the task of the court is to do … justice between the parties … There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not and is known not to be, the whole truth of the matter; yet if the decision has been in accordance with the available evidence, and with the law, justice will have been fairly done.
This traditional adversarial approach differs somewhat from the inquisitorial procedure in the majority of civil law systems, though those differences are often overstated. The inquisitorial process is typified by a far more pro-active judicial role than we would expect to find in a true adversarial system.
There is not an assumption in civilian systems that the court’s function is to vindicate the winner, to establish that one party has a legal right. Rather there is a more open and free-ranging search for ‘truth’. This difference in perception affects the substantive procedures used. Because there is no perceived battle between two sides, there is less requirement to control inquisitorial proceedings by restrictive procedural and evidential rules. Whether it is more effective at finding the truth is debatable. While it is common to draw quite a stark contrast between these two types of process, in reality that is rather artificial. There have always been legal institutions in common law countries (including England) which adopt a form of inquisitorial process. Equally, there are civilian legal systems (such as Italy) where adversarial procedure is more in evidence. Moreover, trends towards greater judicial control and ‘case management’ of proceedings in England and Wales also potentially narrow the gap (see, e.g., Partington, 2018: ch 8).
1.8.2 Legal method and the limits of the trial
Most infringements of the law never get before a court, either because they are never identified as such, or never pursued, or resolved by less formal means. Moreover, contrary to common belief that societies are becoming more litigious, long-term studies of trends in both England and the United States indicate that there is actually proportionately less civil litigation than fifty or sixty years ago (Kritzer, 2004; Genn, 2009), Procedural changes in England and Wales since the late 1990s have, in the words of one (p. 25) leading commentator, converted the trial and rendering of judgment in the civil courts into a ‘solution of last resort’ (Roberts, 2009: 458). This has been achieved, for example, by front-loading the costs of going to trial, reframing the objective of pre-trial proceedings as being to promote settlement, and actively diverting cases to mediation.
In criminal matters, the trial has not been de-centred from the legal process to anything like the same degree, but it should be borne in mind that the great majority—around 98 per cent—of criminal cases are dealt with at the lowest level of the system, by magistrates’ courts, and most proceed no further. Moreover, many matters in the criminal justice system are resolved by the decision to plead guilty, or by ‘plea bargains’: agreements (or a kind of ‘settlement’) between prosecution and defence that also result in a guilty plea, and thus obviate the need for a full trial (see, e.g., Sanders et al., 2010).
Trials are thus only the tip of a (potential) disputes iceberg; and appeal cases, which shape the rules discussed in this book, are in turn only a fraction of a fraction of that total activity. Why is this rather self-evident fact important for legal method?
First, the growth in a settlement culture, whilst in many respects a good thing, does involve a substitution of private for public forms of dispute resolution. Negotiated and mediated settlements are usually confidential to the parties and, by definition, there is no adjudication of a claim. Some commentators have raised concerns about the wider implications of this shift from public to private ordering. In the United States, for example, Professor Owen Fiss (1984) has argued that more private resolution of disputes reduces the power of law to articulate public values, to bring, in Fiss’s words, ‘a recalcitrant reality closer to our chosen ideals’. It might even be argued that too great a reliance on private and alternative forms of dispute settlement potentially reduces the opportunity for courts to establish points of principle through the public deciding of cases and the development of precedent.
Secondly, if we think about the cases that get to the higher courts, we cannot avoid seeing case-law development as other than a relatively ad hoc and possibly even inefficient process (though that latter assertion is difficult to confirm empirically). The evolution of legal rules through court decisions depends on a number of variables, not least:
• the ‘right’ legal claims arising. Common law development can be seen as a bit of a lottery. The way the law evolves depends on the factual matrices and ‘strength’ of the cases coming to court. However, we have no idea when or whether the ‘right’ cases will emerge from the primordial soup of human (mis)conduct. Unless the issue is serious enough to justify legislation, the (lower) courts may consequently be stuck with ‘bad’ law for a considerable period, until either the right case comes along, or Parliament considers it important enough to legislate change.
• the resources of the parties. Even if we do have a potential case with the appropriate facts, that case will only become a precedent if the parties have the power, resources, and willingness to pursue the issues through the appellate courts.
• the prevailing ‘judicial practice’. As we shall see (in Chapters 5 and 6), precedent is not simply a matter of courts blindly following a set of concrete rules or principles. Rather, it is best understood as a ‘judicial practice’ (see, e.g., Geary et al., 2013: ch. 6); that is, an activity that is shaped by the interplay of rules and principles in the context of a particular judicial culture. Though judicial cultures tend to be relatively stable, they will vary not just over time but possibly between courts in the hierarchy, and even between cases, as regards, for example, the extent of judicial activism or creativity that is permissible and appropriate.
(p. 26) Thirdly, it also reminds us that, while the rules and principles explained in this book are incredibly important for understanding how the higher reaches of ‘the law’ work, and how the law itself evolves according to its own logic, this is only part of the story. Much of the legal process operates at ‘street level’, below the radar of the higher courts. You do need to be aware that the law in books and the law in action can be surprisingly different creatures, and that you will be seeing only a part of the picture from a doctrinal analysis of law.
Before we close this chapter, there are two areas of European law which have had a significant impact on the English legal system and legal method, which we need also to consider.
1.9 English law and the European Convention on Human Rights
The European Convention on Human Rights (ECHR) is an international treaty which was created in the aftermath of the Second World War. It has been signed by most European governments, including the United Kingdom, as a statement of their commitment to the protection of certain fundamental human rights, such as freedom from torture and slavery, freedom of religion, freedom of expression, and the right to a fair trial. The ECHR is not one of the EU treaties and is not part of EU law; consequently, the UK’s legal relationship with the ECHR is not affected by Brexit. Nor is the ECHR controlled by EU institutions. The political governing body with oversight of the Convention is an organisation called the Council of Europe. Although there is a separate EU Charter of Fundamental Rights (based on the ECHR), this was introduced only because the EU institutions were not bound by the ECHR (see Opinion 2/94 of the Court of Justice: Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms  ECR I–1759) and does not significantly change the relationship of EU Member States to the ECHR itself.
Whether or not individuals can enforce their rights under the ECHR within their own legal systems depends on the rules and structures of each legal system. Many, though not all, Western European legal systems are framed so that treaty obligations entered into by their governments are automatically incorporated into domestic (i.e. national) law. In that situation, a citizen could pursue a Convention right through the domestic courts. The legal position in Britain is different. Here, international legal rights can be directly enforced only where the treaty has been expressly incorporated into law. This normally requires an Act of Parliament. Although the courts and Parliament sometimes made reference to the ECHR in defining the scope of rights and duties under English law, there had been, prior to 1998, no express incorporation. Consequently, British citizens seeking redress under the ECHR had to rely exclusively on an international institution called the European Court of Human Rights at Strasbourg. There have been a significant number of such cases on a variety of issues, including the freedom of the press; the rights of transsexuals to have public documents such as passports and birth certificates changed to record their ‘reassigned’ rather than ‘genetic’ sex; the detention and trial of ‘political’ prisoners in Northern Ireland; and the use of corporal punishment in schools. Indeed, (p. 27) the British government had a relatively poor track record before the Court, having been found in violation of the ECHR in a total of fifty cases (see Greer, 1999: 5); this has been one of the key reasons why the political pressure for incorporation of the ECHR into English law steadily increased, though for many years neither Labour nor Conservative governments had supported the move to incorporation as part of government policy.
That changed in 1996 when the Labour Party published an influential policy paper called Bringing Rights Home, proposing measures for the incorporation of the ECHR. This policy came to be reflected in Labour’s 1997 election manifesto and its first legislative programme after that election. Consequently, after a sometimes rather bumpy ride through Parliament, the Human Rights Bill received the Royal Assent in November 1998. In addition, the original legislation devolving powers to the new Scottish and Welsh assemblies also contained provisions requiring those bodies to legislate consistently with the rights contained in the ECHR. The Human Rights Act 1998 (HRA) came into force in England on 2 October 2000. We shall explore the role of the Act in greater detail in Chapter 10.
Politically and legally the passing of the HRA has been a landmark moment in English law, fundamentally reshaping legal discourse and the legal accountability of the state to maintain human rights standards. Anyone following media debates about human rights will be aware that the HRA generates strong opinions both for and against. This is not new. Lord McCluskey, in his 2000 Reith lecture, for example, warned that ‘we are going to have to struggle to avoid being buried in new claims of right’ (Guardian, 8 May 2000). In fact, the feared deluge of claims has not really materialised, with debates focusing far more on the kinds of claims being allowed than the volume. Nevertheless, as we shall see further in Chapter 10, there have been growing calls for reform of the HRA, with members of both the last coalition and present Conservative government pushing for the Act’s replacement by a ‘British Bill of Rights’ more independent of the ECHR. When, or indeed whether, such legislation will be introduced is, at the time of writing, uncertain. For us, as lawyers, the HRA has created a whole new set of concepts and rights which must be understood and developed through practice in courts and tribunals. As we will see, the Act has had a notable impact on that part of legal culture we call ‘legal method’. At the same time, there are things that the HRA will not do, partly because of the internal limits and restrictions built into the Act (see further Chapter 10), and partly because there is much that the ECHR itself does not do. Human rights remain a developing area of law, and many of our conceptions of fundamental rights have evolved and changed since the Convention was drafted nearly fifty years ago. There are newer forms of human rights, some of which are not yet fully recognised or understood, and about which the ECHR is largely silent (see Rainey et al., 2014: 7; Macklem, 2015). These include:
• the group rights of minority peoples;
• economic rights (so our seller of flick knives could not use the HRA to argue that laws restricting trade in particular goods are an unwarranted restriction of her right to engage in a particular business) and cultural rights; and
• so-called ‘third-generation’ rights, which include the recognition of individual and community rights over the environment.
Nevertheless, as we shall see in Chapter 10, just as the influence of EU law has gradually overtaken this book (as we predicted it would in the first edition), so too issues of human rights have taken on an increasingly pervasive role in shaping British law.
(p. 28) 1.10 English law and the European Union
The European Union is a political and legal organisation of twenty-seven Member States (not including the UK, on the assumption that some form of Brexit will happen). It was founded as the European Economic Community (EEC) by the original six members (France, Germany, Italy, and the Benelux countries—Belgium, the Netherlands, and Luxembourg), and given international legal status by the Treaty of Rome in 1957. The European Union grew out of the EEC, and was formally established by the Treaty of Maastricht on 1 November 1993.
Following the passing of the European Communities Act 1972—an Act of the Westminster Parliament—the United Kingdom became a member of the European Community/Union on 1 January 1973. The European Communities Act made the EU treaties and legislation emanating from the EU institutions enforceable as part of UK law. Under s. 2 of the Act, UK courts were required to interpret domestic law consistently with our European law obligations. UK courts were also empowered to refer questions on the interpretation of European Law to the EU’s court, the Court of Justice of the European Union (CJEU). This did not (as it has sometimes been represented), make the CJEU a court of final appeal (since questions remitted to the CJEU were always remitted to the English courts to make a decision on the actual facts of the case), but it did mean that the CJEU operated as the final, authoritative interpreter of EU law in the UK legal systems.
As a consequence of EU membership, there has been a gradual but substantial mingling of European and English concepts within the legal system for the past forty-five years.
However, in the wake of the 2016 Brexit referendum, Britain’s membership of the EU potentially comes to an end in March 2019, following the repeal of the European Communities Act by the European Union (Withdrawal) Act 2018. Extraordinarily, however, at the time of writing this edition, it is still unclear, whether, let alone on what terms the UK will leave.
Membership of the EU was never designed on the assumption that members might one day want to leave the club. It is an extremely complicated process, not just in negotiating the terms of withdrawal, but because so many of the UK’s obligations under international trade law are subsumed within its EU membership, and these relationships, and the UK’s future relationship with the EU itself, require substantial (re)negotiation. Moreover, while the Withdrawal Act, may signal our departure from the European Union, it does not mark the end of EU law’s influence. Unless the UK crashes out in a so-called ‘no-deal Brexit’ there is also likely to be a transition period in which EU law will continue to apply.
Even after any transition period has ended, the Withdrawal Act maintains EU law influence in two ways. First, it automatically converts existing EU-derived law into English law. Though much of this will likely require amendment, or may face repeal, to accommodate the new relationship between the United Kingdom and the European Union, this will not happen overnight. Secondly, the 2018 Act also establishes, for the sake of legal certainty and continuity, that UK courts below the Supreme Court will continue to be bound by the jurisprudence of the CJEU in respect of law and decisions in force pre-Brexit. The extent of divergence will thus depend significantly on the approach taken by the Supreme Court In short, EU law will not be quickly or easily consigned to the history books.
For these reasons we continue to discuss EU law, though in rather less detail than before, both in specific contexts throughout the book, and more substantially in Chapter 11.
(p. 29) Conclusion
In this chapter we have explored the functions of law, the variety of forms that law takes, and have glimpsed some of the ways in which English law has been shaped by external influences. In solving any legal problem, including the one set at the beginning of this chapter, we need to be aware of these many dimensions of English law. Any advice we give must take into account the kind of issue with which we are dealing. Is it a question of criminal or civil law? Have we considered all relevant Acts (if any), and checked on the existence of any subordinate legislation? What about case law? Are there any human rights implications? Have the courts said anything about the matter, either in interpreting a relevant statute or in applying rules of common law? It is only by appreciating this context that we can, ultimately, find the relevant law to solve our problem. In practice, of course, you quickly overcome the need to run through the kind of checklist we have just presented. Your knowledge and understanding of substantive areas of law will help to make the job of researching legal issues much simpler. Even so, no one can retain sufficient detailed knowledge to make legal research redundant. Chapter 2 is intended to help you develop the basic research skills necessary to find the law on any basic legal problem.
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Test your knowledge by trying the self-test questions that accompany this chapter.