INTRODUCTION TO COMMON LA

Preliminary words

Aim of the course

- Overview of the central institutions of Common Law, mainly in the UK context. Constitutional
background of the English legal system
- Understandings of the techniques of legal reasoning such as precedent and statutory interpretation

English common law is a very old legal institution. In France, the Civil Code has been passed in 1804, in
Germany, at the beginning of the 19th century. In the English system, it is not uncommon that jugements
refers to old decisions from the 18th century.

What are the roots of common law

Term originally used in the 12th century during the reign of Henri the IInd. The concept is the result of the
development of a unitary system under the control of the centralized power of the king by contrast of what
happens before the arrival of the norms

What was the situation before the Norman Conquest of 1066 ?

There was no unitary legal system : society was divided into an important number of kingdom -> so the law
changed from one kingdom to another.
Rules were essentially oral based on traditions.
=> After the Norman Conquest (1066), as consequences of it :
• Medieval kings began to consolidate their power. New institutions tried to express the royal authority and
justice. New orders set up :
- Secular tribunals : with the aim to establish a uni ed legal system when they delivered a decision.
- King’s judges : within this tribunals, judges were appointed by the king, they were King’s judges
respected the decisions of one another. Judges travelled round the country (King’s Peace) -> judges
were asserting the authority of the central State. Before 1066, judges were very local.
• New forms of legal action : writs (= royal orders which are permissions given by the King) -> each of them
provided a speci c remedy for a speci c wrong.
- The law was common to the whole country
- Common law is the law that relates to everyone.
In the Middle Ages in England, common law coexisted with other systems of law. Alongside the tribunal,
there was also church courts, rural and urban courts
During the 17th century, common law triumph over the other laws. Parliament achieve to get a permanent
check of the key and get the right to de ne the law. What was written by Parliament was superior to what
was written by other laws.

The legal system bene ts from an important stability of constitutional monarchy. To create a legislative
power, you have to reach a relative stability.
- Historical continuity and development from the Restoration of 1660 (Charles II returned to the throne
after the Civil War) to the present day. During the 17th century, the UK faced 2 civil wars and after those
wars, the country faced very important dif culties. Then, the revolution took place
- Centralized and unitary state (≈13-14th century)
- Constitutional settlement = Bill of rights of 1688 -> at this stage it’s important to keep in mind that it
constitute a constitutional settlement, pass at the end of the civil war -> it states what are the powers of
the king and what are the powers of the parliament. It is a sacred text as it states what are the different
bodies : the King, the Parliament. The king had to compromise and conceive some favors to Parliament
at the end of the war. This high degree of political stability favors the continuity of legal institutions.

What are the main differences between CM and civil Law

Civil law systems :

- Codi ed system -> comprehensive and updated code (french civil code = written codes).
-> Easily accessible to the people

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 -> May take a while to effect necessary amendments -> take time to adapt the code to current situations.
- Sets out general and clair legal principles
- Consequences related to the power of the judge : judges have limited discretion power. The judge has to
follow the code, the judge has to apply what has been decided by the parliament whereas in the UK,
judges have to follow the precedent decisions.

Common law systems :

- Based on decision taken by the judge (piecemeal)-> this is the main source of common law, not law pass
by parliament. This means that the decisions made by the judge are essential
- Unmodi ed systems : no written code.
- Largely based on precedents which are maintained over time -> judge’s interpretation is very important.
Concept of precedent (while the Cour de cassation writes decisions of 1 or 2 pages VS in the UK, it can be
20 or 30 pages long). In France you don’t know what was the individual position of the Cour de cassation
judges whereas in the UK, each judge explains his judgment / point of view. The interpretation of the
judge can change.
- No comprehensive compilation of legal rules and statues (unlike does the Civil code) nevertheless :
- Law and case reports (=jurisprudence), late 19th century : essentially written by private companies.
- Importance of legislation = very recent evolution in the UK that was essentially based on decision by
the judge.

=> Common law can refer to 3 things :

• The body of law formed through court decisions = case law
• A common law system is also a system of jurisprudence that is based on the doctrine of judicial
precedent : the principle under which the lower courts must follow the decisions of the higher courts
rather than on statutory law
• It is used to distinguish the legal system that prevails in England and Wales, the USA and former
colonies of the British Empire like India or Australia.
By contrats the term civil law refers to those other jurisdictions that have adopted the European continental
system of law derived essentially from ancient Roman law.

‣ Rmq 1. The term ‘English’ is more accurate than the term ‘British’.
‣ Rmq 2. All lawyers in the common law world share a common approach to legal reasoning

Common Law in the word

With the spread of British colonization, the

common law system extended over various parts
of the globe. In British colonies English law was
applicable by settlement or by imperial statute.
Even if there was a previous legal system : the
CM prevails on the previous legal system.

Primacy of English common law in British colonies by means of

- the Judicial Committee of the Privy Council as a nal imperial court of appeal. Aim : help the
sovereignty of the England -> way to achieve legal system over colonies.
- the courts and judges : in the early decades of British colonies -> English barristers; judges were
appointed from the king.
- the lawyers brought English legal culture (Canada : Law Sociey in 1797)

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The different British colonies, over time, were independent and in the new independent state, the English
legal system remained in place. This was achieved through what is call the reception statutes = were passed
in the former American colonies : the new nation ‘received’ pre-independence English law

Adoption of the common law in the newly-independent nation was not a foregone conclusion ->
Jeffersionans in the USA : opposed to the application of the English laws in the US. Once again the
application of the English common law in Australia, New Zélande or India is the result of history. There is s
huge links between history and current situation.

Common Law and equity

⚠ Equity can not be translate as “équité” in French as in French the judges have not the right to make
decision based on equity whereas English judges can choose what is the relevant law that has to been applied
: they are free to apply either the common law or equity. If we had to explain this concept

In the 14th century, the common law became more rigid:

• The system of writs became too highly formalized (‘no writ, no remedy’ - Provisions of Oxford 1258);
-> Writ = the order by the king, the permission to go in front of the court > it was not possible to present
• Institutional sclerosis of the common law courts (Courts of Exchequer, Common Pleas and King’s Bench)
-> Institutional sclerosis in relation to this new courts -> They refused to deal with matters which did not
fall within the particular parameters of procedural and formal constraints. The jurys can be corrupt.
• Other faults with the common law courts (juries ; the common law had only one remedy : damages). In
contract law -> it can happened that damages are not very signi cant for the plaintif, it can happened that
he just want the contrat to be executed.

Litigants developed the practice of petitioning the King himself ("Fountain of Justice”). The King delegated
the task of making decisions to an important gure which is the Lord Chancellor (who was one of the King’s
principal advisers / concilier). The Lord Chancellor was an expert in common law, a lawyer. People directly
ask the questions in front of the Lord. Finally, litigants present petition directly to the Lord Chancellor.

By the end of the 15th century : Court of Chancery (1474) = created by the Lord, he has his own Court
dedicated. His decisions were based on equity, as distinct from common law -> meaning that he had to
give ‘equitable’ and ‘fair’ decisions
- Equity was a response to the perceived weaknesses in the common law system.
- Equity began as a court a conscience.
- Exceptional jurisdiction

The Court of Chancery existed alongside the courts of common law -> possibility of tensions between
common law courts and the courts of the lord, equity courts. In order to nd a solution, there has been a
compromise and it was admit that equity should emport in case of con it between both. This solution has
never been written

Judicature Acts 1873-1875 : decided to create a unique court, not a CM court, not an equity court but
Supreme Court of Judicature. The Acts merged the systems of common law and equity : the Supreme Court
of Judicature -> the same courts applied both systems. Lord Cairns in Pugh v Heath (1882), explained what
was its aim : the court "is now not a Court of Law or a Court of Equity, it is a Court of complete
jurisdiction”. The jurisdiction is free to apply wether the CM wether the equity law.
⚠ 2 sense of jurisdiction : juridiction et compétence !

Nevertheless : the two systems are different :

-> “The two streams have met and still run in the same channel, but their waters do not mix" (Maitland
1850-1906). “The two streams of jurisdiction, though they run in the same channel, run side by side and do
not mingle their waters” Ashburner’s Principles of Equity

Why is it important to distinguish them ?

The supreme courts has 2 tools, 2 ways to resolve a con it. At the end of the 19th century, the same judge
will apply common law rules and equity rules but in fact, both these rules are subject to different conditions,
even if the same judge will apply common rules or equitable rules.
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 • Common law remedies are available of right -> meaning that within common law, the court has no
discretion to refuse a common law remedy when the conditions of this remedy are met by the litigant, the
judge has to apply the common law.
• In contrast, as to equitable remedies, the court is free not to award an equitable remedy. This mean that
such an equitable remedy is awarded at the will of the court. The court will consider the behavior of the
claimant. The court is free not to award an equitable remedy if it consider that the claimant does not
deserve it > idea appears with the maxim : the “clean hands maxim” : he, who comes to equity, must come
with clean hands. This is an important distinction between CM remedy and equity remedy.

Illustration : What are remedies for breach of contract?

We can consider the importance of the distinction between both if we consider what happens when there is a
breach of contrat. In this situation the judge will have to apply the common law remedy that is damages =
basic way of compensation for the claimant. We can not distinguish between history and Law. For instance,
the rules that damages are the basic way of getting a compensation is old so that we can nd this rule in a
case which has been judged at the end of the 19th century -> the basic principle is called the compensation
principle ; Livingston v Raywards Coal Co (1880) : “Damages should as nearly as possible (...) put the party
who has suffered in the same position as he would have been in if he had not sustained the wrong for which
he is (...) getting (...) compensation.”

Speci c performance is the equitable remedy -> order of the court which compels the defendant to perform
the contract rather than paying damages. Much more valuable remedy than having compensation. (kind of
the French “execution forcée” but there is no exact translation of the idea). The court will give an order to
the defendant to perform the contrat : the defendant will have to do what he promised he will do.
- ex : you have nd your dream house and his owner agrees to send it to you -> then he changes his mind.
You will put forward your claim to the court. The seulement possibility for the judge will be to award you
a some of money (damages) but this is not what you want : you don’t want money to buy a house, you want
your dream house -> personal … -> the only way to get your dream house it to get speci c performance.
- ex : a neighbour erects a garden shed partly on my garden. He commits the tort of trespass. Are damages
a fair compensation, adequate remedy ? No because at the end, the shed will remain in his garden. In
contrast, an injunction is an equitable remedy = court order to forbid from doing a particular act -> the
court can decide that the person who have built the shed will have to remove it.

=> Equity is also used in the American common law. As in England, equity is used to produce fair results
when the common law is not adequate.

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 PART. I - STRUCTURE OF COMMON LAW

CHAPTER 1. The Parliamentary Structure
-> To what extend is Parliament really sovereign ?
-> What is the constitutional context of Parliament ?

-> Rebellion of MP party’s members (restriction to liberty in relation to Covid)

Statute law = law created by Parliament in the form of legislation -> important part of the UKs common law.
It would be a mistake to consider that the decision by the judge is be the unique source of common law. On
history bases, the décision by the judges were the main sources of the court but for 50 years : signi cant
increase of statute law. The law created by parliament could be the major source of law in England and
Whales. This situation can be explained by the fact that the State took on increasing responsibility for
economic management and social regulation -> as a result of the general lockdown in England, the law
created by parliament has increased. It doesn’t mean that the law of the judge decrease -> we have to nd a
balance between the Parliament law (elected body) and the judge’s law.

THE PUTNEY DEBATES (1647)

Putney is a political landmark for the development of British democracy. Putney was a small town very close
from London. The putney debates were organized at the end of the rst British civil war (1642–1651). At this
time, the King was defaulting and soldiers and of ciers took this opportunity to imagine what would be the
future of England. This debates were stage as a result of the in uence of a political movement : the Levellers
(level -> idea : everybody should be on the same level), important political movement during the rst civil
war. As the king was defaulting, they considered that the situation allowed to discus certain topics : it was
the moment to speak about the sovereignty of people
- The king shouldn’t be the unique source of power
- The right to vote shouldn’t be limited to the people who have goods but extended to the whole population.
- Issue of equality before the law
- Question of religion : religious tolerance
=> This debates were inconclusive because the second civil war began quickly after the rst one. But what is
important is that this putney debates allowed to beginning of discussions. It is thanks to these debates that
some rights were granted by the king at the end of the second war = they paved the way for civil liberties.

I. What is Parliament?

A. The parliamentary system

-> 2 houses :

• Lower House of Parliament : House of Commons

- Elected body consisting of 650 members (MPs);
- Each MP represents an area of the country called a constituency : MP has the task to explain to
Parliament what are the claims of constituants (people who elected the MP
- General elections usually take place every 5 years. But the period of 5 years is not always applied, the
Prime minister is free to organize snap election : in 2017 and 2019 for exemple
- The opposition has an important constitutional role : it check the activity of the government

• Upper House of Parliament : House of lords

- There is the throne of the monarch in front of the chamber, The lord speaker has a more limited role)
(currently 795 sitting Lords)
- Members of the House of Lords are not elected and they have not the same importance :
✴ Lords Temporal appointed life peers (the majority + are the more important) or hereditary peers
(reduced to 92 under the HLA 1999). The most part are appointed peers : there title is not transmitted
to there children.
✴ Lords Spiritual (26) members of the established church of England : ecclesiastical function.
- Until 2009, the House of Lords was also a court : the last court of appeal in England and Whales so that
the House had a legislative function and a jurisdiction function.
- The powers of the House of Lords are limited, reduced over time by 2 Parliament Acts :

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 - Until the 20th century it was the case that both Houses of Parliament were equally powerful, they
enjoyed equal powers. By the passing of the Parliament Acts of 1911 and 1949, the House of
Commons became the more powerful of the two Houses.
✴ Context : in 1909 the House of Lords blocked Prime minister Lloyd George’s budget (called
People’s Budget) -> general elections. The aim of this people budget was to create unprecedented
taxes on the wealthiest of the UK -> constitutional crises : new general elections to break the
deadlock. As a result of these general election, the Prime minister gained in maturity and the
People budget was eventually passed. The parliament act of 1909 was also passed at the same
time, as a reaction against the position to the House of law in relation to the people budget.
✴ Result : restricted the powers of the House of Lords to delay and block legislation -> the veto
power of the House was replaced with the power to delay passage of a bill by 2 years : they can
not anymore block a legislation, the House can only delay a legislation.
✴ The 1949 Parliament Act reduced this delaying power to one year. The House can not block
anymore the passing of an act. The House of Lords is not involved in the passing of money bills

The powers of the House of Lords are also limited by conventions

For example : Under the Salisbury Convention (not a written text but a rule which has been agreed by the
chamber by contrast to the parliament acts which are written text) which emerged from the Labour
Government of 1945-51, the Lords do not vote down a Government Bill mentioned in an election manifesto.
(= before elections, text in which a anti explains his will and main political orientation = programme
politique). The House can not block a bill that is the result of this election manifesto -> to make sure that the
government will pass his major texts even if he does not have the majority = ensures that major
Government Bills can get through the Lords when the Government of the day has no majority in the Lords

B. The separation of powers

In France : strict separation of power VS some links between the different powers in the UK. What is
important is the link between Parliament and judiciary (House of lords was a court few years ago).

Constitutional principle : the 3 key functions of government should, in theory, be separate from each other
(functions determined by Montesquieu) :
- to make laws (Legislative Function);
- to run the country (Executive Function)
- to adjudicate disputes (Judicial Function)
-> Such a strict separation of powers is intending to :
- Prevent tyranny as one person won’t enjoy too many powers
- Safeguard individual liberty
- Make sure that laws are elaborated in the interests of everyone.

In the UK :
- Executive = Government + Crown.
- Legislature = Parliament + Crown.
- Judiciary = judges in the courts of law (senior judicial appointments are made by the Crown)

Key idea : the unwritten constitution of the UK has never incorporated a strict separation of powers (result
of practice over time) -> there was a lot of overlap of these functions.

Between executive and legislature : legislature and executive are far from separate powers
• The executive power is present in Parliament as the Prime minister and a majority of his/her ministers are
MPs. Before being appointed at ministers, they have been elected as constituency.
• The president of the USA can be elected at the head of the country without having been elected in the
Parliament VS in England, it is not conceivable. The UK’s integration of executive and legislature is said
to provide stability and ef ciency in the operation of government
• Parliament may also delegate law-making powers to the Government = delegated / secondary legislation
(same reality in France through the “Ordonnance du gouvernement habilité par le parlement” -> but more
important in England than in France). This situation is not considered as bizarre. You have to think with the
rule applied in the UK. The delegated legislation is an important source of the UK common law. This can
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 be a help for parliament which don’t always has enough time to right the legislation -> allows better
primary legislations quality.

Between legislature and judiciary : some rules guarantees the reality of the separation of theses 2 functions
• Judges are prohibited from standing for election to Parliament (House of Commons (Disquali cation) Act
1975) : you cannot be a judge and a member of parliament.
• Important debate about the question of the extent to which the role of the judiciary in interpreting
legislation and developing the Common Law overlaps with the responsibility of the legislature. What is the
power of the judge in interpreting legislation ? Some people will worry that the judge who interprets
legislation could in the same time control what has been made by the parliament. The judge will have
the possibility to interpret statute law = unresolved question.
• Position of the House of Lords : important legislative function until 2009, the House was also part of the
judiciary -> highest court of appeal in the UK -> Lords who sat as judges (Law Lords) did not always or
often take part in the legislative functions of the House of Lords. This distinction was intended to
guarantee the independence of these Law Lords in relation to the legislative function of the house.
- In 1998, the UK passed a new Act called the Human Rights Act of 1998 which aim was to incorporate
in the UKs common law the European convention of Human rights -> this convention says that in a
state, there must be a strict separation of powers. As a result of this act, the position of the house of lord
couldn’t be maintain : clear breach of the ECHR. The question was giver a new importance.
- The next step after the HRA was the passing of the constitutional reform act in 2005. Under the
Constitutional Reform Act 2005 important changes have been introduced to strengthen the formal
separation of powers -> the CRA 2005 reformed some of the areas where, in the UK, the “powers” had
been least separated. But “We want to ensure that we clearly de ne the separation of powers, where it is
appropriate, but that is not incompatible with having a partnership between the different branches of
the State” . Christopher Leslie (who was the then minister responsible for the Bill in the Commons) ->
no will of a strict separation of power : only when it is appropriate. This quotation reveals that the
government had no other choice than to change the position of the House of Lords but this change was
very limited. The CRA 2005 provided statutory protection for judicial independence
✴ The Lord Chancellor and other Ministers of the Crown must not seek to in uence particular judicial
decisions through any special access to the judiciary;
✴ The Lord Chancellor must have regard to the need for the judiciary to have the support necessary to
enable them to exercise their functions
- The CRA 2005 decided to move the judicial function from the House of Lords to the new Supreme
Court. Section 23 : ‘There is to be a Supreme Court of the UK. ‘The Court consists of 12 judges
appointed by Her Majesty’ = creation of a supreme court which is really independent from the
legislation power. Began to operate seulement 4 years later as the government had to nd a bill. Now
the Supreme Court has its own building, its own, staff and its own budget with no relation to the
Government or the Parliament.

C. Primary legislation and secondary legislation

Primary legislation = législation made by parliament VS secondary legislation is a piece of legislation

written by the government on delegation from Parliament -> the Parliament has the task to control what does
the Government.

Primary legislation
-> Refers to the passage of a Bill : process by which a text passes from bill to act. 2 different types of Bill :
- Public Bills (or Government bill) are introduced by the government in either House. The government can
choose to introduce this bill before one of the parliament.
- Private Members' Bills are Bills introduced by MPs and Lords who are not government ministers

Before that, the work at parliament is the same : 7 steps to pass a bill. A bill will become an act once he has
been an agreement between both chambers in the same terms. A Bill can start in the Commons or the Lords.
But it must be approved in the same form by both Houses before becoming an Act (law).

• First Reading -> goal : inform the house that the bill will be discussed = 1st stage . It is usually a
formality. It takes place without debate. The short title of the Bill is read out. It is followed by an order for
the Bill to be printed
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 • Second reading gives opportunities to MBs or Lords to discuss the bill

- First opportunity for MPs (or Lords in the HL) to debate the general principles and themes of the Bill.
Not the time to discuss the details.
- Debate ( rst, government; then, opposition).
- At the end of the debate -> the House decides whether the Bill should be given its second reading by
voting, meaning it can proceed to the next stage

• Committee Stage : 1st opportunity to discuss in detail what is written in the bill
- Detailed scrutiny, examination of the Bill -> each clause and any amendments (proposals for change) to
the Bill may be debated.
- Amendments for discussion are selected by the chairman of the committee -> the discussion will only
concerne amendments which have been selected by the chairman of the committee. The clause can be
agreed on changed.
- Only members of the committee has the right to discuss at committee stage and only them can vote on
amendments during Committee Stage.
- Once Committee Stage is nished, the Bill returns to the oor of the House

• Report Stage : opportunity to consider further amendments. (occur before the full house
- All MPs can suggest amendments to the Bill / All MPs may speak and vote.
- Report stage is normally followed immediately by debate on the Bill's third reading. It can be very
lengthy and take a fe days to discuss. (committee and report stage are very important in the
parliamentary proceeding).

• Third Reading : nal chance for the House to debate the contents of a Bill.
- Amendments cannot be made to a Bill at third reading. No more amendments can be introduce, the
members of the house can only discuss the main ideas. It is mainly a political stage because if the
opposition disagrees with the bill, it can share their point of view and criticize the bill but they can’t
propose new amendments.
- At the end of the debate, the House decides (votes on) whether to approve the third reading of the Bill
- THEN the Bill goes to the other House for its rst reading. The bill will only become an act of
parliament when it will be approved in the same words by the 2 chambers.

• Consideration of Amendments = ‘Ping Pong’ : the different houses have to scrutiny the amendments
proposed buy the other house.
- When a Bill has passed through third reading in both Houses it is returned to the rst House for the
second House's amendments to be considered.
- Both Houses must agree on the exact wording of the Bill.
- A Bill may go back and forth between each House (‘Ping Pong’) until both Houses reach agreement. It
can happen (exceptionally) that the 2 houses of parliament do not reach an agreement -> in this
situation, the bill will fall. Most of the time, an agreement is found.

• The Royal Assent : once the Commons and Lords agree on the nal version of the Bill, it can receive
Royal Assent = Monarch's agreement to make the Bill an Act.
- Symbolic role (last Bill that was refused the Royal Assent: under Queen Ann, in 1707). There is no set
time for the monarch to give the royal asset, but in real life, the royal assent is a symbolic role of the
monarch -> it is not uncommon for the monarch to refuse royal assent
- The legislation within the Bill may commence immediately or only after a commencement order by a
Government minister. But the act will generally commence at later day, once that minister can right an
commencement order (décret d’application).

Delegated, secondary, subordinate legislation

What is secondary legislation ?

- Parliament can delegate, pass its lawmaking powers to another body or person. This power can be given to
a body or an individual = délégation by parliamen.
- Important volume of this kind of legislation. It is more important than primary legislation, it is a
signi cant part of the current English legislation.
- It encompasses whole areas of law which are of greater day-to-day signi cance (social security or
immigration) than much of statute law
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- Delegation always requires the express authority of an Act of Parliament -> the ‘Parent / Enabling Act’ ->
the parliament explains what are the aims of the delegation and the rules of procedure to right this
delegated legislation and parameters of the delegated power. At the begging of the process, the parliament
gives an authorization

-> Different forms of delegated legislation:

- The most important delegated legislation is Statutory Instrument (SI) (kind of pouvoir règlementaire) ->
delegated legislation is exercised by a government Minister of the Crown. The minister is acting on the
bases of the parent act : he will right a SI as the right has been given to him by parliament.
-> ex : Section 10 of the HRA 1998 -> power has been given to crown ministers to change / amend
primary legislation by way of statutory instrument where a court has issued a declaration that the
legislation in point is incompatible with the rights provided under the ECHR (between the UK legislation
and the European Convention of Human Rights. This rule reduced the parliament sovereignty. When the
court decides that there is an incompatibly between the 2 textes, the government is free to change this
piece of legislation => SI can be very important.
- Orders in Council as the fact that the queen will be advised by private council = orders issued by the
Crown on the advice of the Privy Council.
- Byelaws -> rule of laws made by local authorities or certain other bodies (public transport, public parks)

At the begging of delegated delegation, there is an authorization by parliament. But once SI has been
delivered, this SI are under stretched control.

-> Controls over delegated legislation :

• Judicial control -> judicial review -> procedure whereby courts supervise the exercice of power (often by a
public body). Judical review is a kind of court proceeding in which a judge reviews the lawfulness of a
decision made by a public body -> challenge to the way in which a decision has been made rather than the
rights or wrongs of the conclusion reached -> the court will not substitute what it thinks is the ‘correct’
decision. A judge has the right to examine / scrutinize the procedure which has been used by a minister
when he has written the SI. But this is a limited power as the judge will only access the lawfulness of the
SI, he has not the right to consider the political aspects which underlies the SI -> the idea is to control
weather the government has acted within the power delegated by parliament.
• Parliamentary control : The parliament has not the right to substitute its ideas to the government ones. R v
Prime Minister [2019] UKSC 41: Lady Hale PSC : “Ministers are accountable to Parliament (…) through
Parliamentary scrutiny of the delegated legislation which ministers make”. There are 2 kinds of
parliamentary control -> delegated legislation made by SIs may :
- either need to be approved by a vote of each House of Parliament before it is made (the af rmative
resolution procedure)
- or be subject to a veto by either House within a certain period of time after it is made (the negative
resolution procedure = once SI has been delivered by government, parliament can decide to oppose
this SI through a right of veto -> within each house, there is a special committee whose task is to
control SI -> control of SI is an important part of parliamentary business)

II. What is parliamentary sovereignty?

There is no written constitution in the UK but instead of it, a history constitution. The question of
parliamentary sovereignty is linked to this history. At the heart of the British constitution lies the doctrine of
Parliamentary Sovereignty. It is the most important part of the UK constitution -> this would mean that
Parliament is the supreme legal authority in the UK. But is that really the case ?

R (on the application of Miller) v The Prime Minister – 24 September 2019 Lady Hale : “Time and again, in
a series of cases. Since the 17th century, the courts have protected Parliamentary sovereignty from threats
posed to it by the use of prerogative powers [by the executive] (...) and in doing so have demonstrated that
prerogative powers are limited by the principle of Parliamentary sovereignty.” (...) The sovereignty of
Parliament would be undermined as the foundational principle of our constitution if the executive could,
through the use of the prerogative [power], prevent Parliament from exercising its legislative authority for as
long as it pleased. (…) An unlimited power of prorogation would (...) be incompatible with the legal
principle of Parliamentary sovereignty”
-> At the beginning of the sentence, 3 powers are mentioned and at the end only legislative and executive
power are. Boris Johnson decided that parliament would be suspended -> an unlimited power of suspending
parliament would be unconstitutional. This question is still discuss in the UK as this decision has been given
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 in 2019. What is very interested in this quotation is the idea of protecting the parliament from government,
there is no mention of protection from judges.
Prerogative powers = powers of government

A. How parliamentary sovereignty is justi ed?

-> 3 justi cation : history, political and democratic.

An outcome of history : this situation can be explained on historical bases.

Instead of a Constitution the British have histor
Common law cannot be studied in a vacuum

Origins of parliamentary government : the Battle of Lewes (1264) : occurred between Henri the IIIrd and the
barons whose leader was Simon. A falling out between King Henry III and Simon de Montfort and the
Barons. Simon de Montfort won the Battle of Lewes. As a consequence of winning the Battle of Lewes ->
Simon de Montfort was able to impose a form of Parliamentary government on the King. The king won’t
make the law alone anymore after this battle

1688 : departure of the King James II has to leave the UK > after his departure, break in the legitimacy of
constitutional power. William of Orange and his wife Mary were invited to occupy the vacant throne -> the
offer was conditional. But this was a quali ed offer : there was conditions to it : William was allowed to sit
on the throne in exchange to give up one of the most important power exercised by the king. William and
Mary had to accept the terms of a document which is called the Declaration of Rights (1688) -> they agreed.
The Convention passed the Crown and Parliament Act (1689) + the Bill of Rights (1689). This piece of
legislation explained what were the powers of the king and the powers of Parliament
The drafters of the Declaration of Rights had a central aim
- Curtailing the powers of the Crown AN
- Establishing the doctrine of the legislative supremacy of Parliament
William and Mary accepted that their role was subordinate to that of Parliament. It was considered that laws
should emanate from Parliament and not just from the King

A political concept :
A signi ant book was written by Thomas Hobbes : Leviathan (1651) written during the English Civil War
(chaotic situation). He explains main ideas referring to the Parliament power. Main ideas
- necessity of a strong central authority to avoid the evil of discord and civil war. Hobbes was in position to
experiment what could happened in such period
- for the maintenance of peace in the political community -> single source of power that makes law. This
source can only be parliamentary body as the king was defeated at this date. Parliament is a key body to
get a peaceful society. (The convention, a kind of parliament, took the place of the king : it is a small
assembly)

A democratic reality
The sovereignty of Parliament is justi ed on democratic principles
- Parliament is elected on a democratic franchis
- the lawmaking power of Parliament is supposed to re ect the will of the people

B. The powers of Parliament

-> What is the reality of parliament sovereignty ? Comparaison between what has been written in the
19th century and what occurs at the end of the 20th century. The sovereignty of parliament is
discussed today

The classic approac

Albert Venn Dicey (1835-1922) in An Introduction to the Study of the Law and the Constitution (1885)
“The principle of Parliamentary sovereignty means (...) that Parliament (...) has, under the English
constitution, the right to make or unmake any law whatever and, further, that no person or body is
recognised by the law of England as having a right to override or set aside the legislation of Parliament.
Nobody has the right to change what has been made by parliament. In this situation parliament is really
sovereign -> 3 ideas in this quotation.

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 1st Dicey’s rule : Parliament is the supreme law-making body

Parliament can make laws concerning anything
• Parliament can change the succession to the throne
• Parliament can change its own processes for statutes creation
• Parliament can legislate with retrospective effect

- ex : Has Parliament the right to ban any kind of ownership for example ? Yes in theory. Why would
parliament decide it ? Parliament which will decide to abolish private ownership would be in a tricky
situation for the next general elections. It would be a political suicide as the Mps have to account to there
constituents => Need to distinguish legal sovereignty and political one.

This is why the 1st Dicey’s law can be discuss : Parliament can make but Parliament will not make ->
realities of politics distinction between legal and political sovereignty. As it is an elected body, Mps has to
account for their pieces of legislation. Difference between legal and political reality.

2nd Dicey’s rule : No parliament may be bound by a predecessor or bind a successo

Every Parliament must be supreme -> continuing theory of parliamentary sovereignty. Parliament has an
uncon ned legislative power which is created irrespective of what previous parliaments have enacted
Legally -> Parliament at any point in future could reverse legislation approved by referendum
Whether or not politically the governing would want to do that is of course another question
- ex : an act has passed through a referendum -> would subsequent parliament change this act of direct
democracy ? This situation would be dif cult politically.

3rd Dicey’s rule : No one, including a court of law, may question the validity of parliament’s enactments
According to Dicey, a judge has not the right to discuss a parliament act. No British court has the power to
strike down an Act of Parliament. Although there is a Supreme Court in the UK, it is not in a sense suprem
because Parliament is supreme. At the end of the discussion, the fact is that we have 2 supreme law-making
body.

The modern reality : Are this 3 rules still available in the Curren UK law ?
Over the years, Parliament itself has passed laws that limit the application of parliamentary sovereignty
- the devolution of power to bodies like the Scottish Parliament and Welsh Assembly
- the decision to establish a UK Supreme Court. Constitutional reform act. Before that act, Parliament was
the highest court of England and Welsh.
=> In order to understand the contemporary reality of parliamentary sovereignty, we need to turn our
attention to two very important Acts -> both this act can show that parliament is not so sovereign : (by acts
we mean acts of parliament -> ECA and HRA haven’t been imposed to UK parliament, it enacted them).

• The European Communities Act 1972 : Parliament recognized that EU law was supreme -> The law of the
EU impacts the sovereignty of Parliament
-> Decision explain what was the parliament position on this act : R v Secretary of State for Transport ex
parte Factortame Ltd [1990], HL. Lord Bridge : “If the supremacy within the European Community of
Community law over the national law of member states was not always inherent in the E.E.C. Treaty it
was certainly well established in the jurisprudence of the European Court of Justice long before the
United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted
when it enacted the European Communities Act 1972 was entirely voluntary.” It is a voluntary
surrender. Lord Bridge interpreted the ECA 1972 to mean that UK statute would not apply where it
con icted with European law -> it is a signi cant departure from the principle of Parliamentary
sovereignty. BUT Lord Bridge refers to the voluntary surrender of sovereignty when the United Kingdom
joined the European Union -> EU law overrides inconsistent provisions of national law because
Parliament has said so. EU law has been a voluntary limitation of the sovereignty of Parliament in the
areas where the EU has supremacy. Parliament remain sovereign but the EU law prevails on the UK law.

• the Human Rights Act 1998 : the current Johnson government wants to abolish it because it is to
destructive to the UK Common law according to them. Government’s 1997 White Paper : ‘Our aim is a
straightforward one. It is to make more directly accessible the rights which the British people already
enjoy under the Convention. In other words, to bring those rights home’ -> Human rights come home =
bring these rights to the UK. If we want to understand this quotation, we have to consider the Uk history.

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 -> Magna Carta - 1215 : Peace treaty between the King John and the rebel barons (which were in con it)
-> For the rst time, it was conceded that nobody was above the law (including the king, he has to obey the
law). It provided a new framework for the relationships between the King and his subjects. Until 1998,
British citizens could not make use of the rights of the European Convention in the domestic courts of the
UK. The idea to bring Human Rights home means that those rights are made part of domestic law. The
HRA 1998 has given domestic judges 2 signi cant powers
- the duty to interpret legislation, so far as possible, consistently with Convention rights. It could mean
that parliament is not so sovereign as the judge can interpret what has been made by parliament.
- the power to declare laws incompatible with Convention rights where consistency cannot be achieved.
The UK parliament is in breach of the EU convention or Human Rights.
The Human Rights Act did not aim to challenge the parliament legislation, it preserves parliamentary
sovereignty -> the Act does not give a British court the power to strike down an Act of Parliament. The
reality is slightly more complicated. Iven if parliament remains sovereign, the Tony Blair government
considered that parliament was too sovereign so the HRA is a political attempt to change the checks and
balances in the British Constitution. The labor government (with Tony Blair) had understood that
Parliament has become too powerful
-> What can the courts do with the Human Rights Act
The judge can say that a parliament act is not compatible with the UE convention -> in this situation the
judge will deliver a declaration of incompatibility. We have to be careful about the meaning of this
incompatibly. The Human Rights Act has, for the rst time, given the courts clear power to declare the UK
Parliament’s legislation provision contrary to essential human rights -> declaration of incompatibility =
only an invitation to change the law. The judge has the right to change the law, he is not forced to do it. A
declaration of incompatibility does not strike down legislation In the United States, the Supreme Court
can declare that legislation is not valid law because it is unconstitutional : it has the duty to change it. In
the UK, it is not the business of the law. In the UK, the ultimate decision remains with Parliament and not
the judiciary. The judiciary applies its constitutional function of interpreting and applying the law enacted
by Parliament. The task of the judge is to interpret and check the compatibility of the law, that’s it.
Nevertheless, the 1998 Act gives the judges more powers of interpretation -> the Act allows the judges to
issue declarations of incompatibility which invite a minister to consider the fact that an Act of Parliament
is in breach of human rights obligations => parliament is still sovereign

CHAPTER II. The Courts Structure

I. What are the Courts

The supreme court is an independent court that does not take part of the Senior Court. Distinction between
the High and the county count will be about the nature of the case. Both are rst case courts. Supreme Court
is an independent court, this is not a third court after the appellate court like the French Cour de cassation.
The magistrate court will examine cases that are less important than crown court.

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 A. The hierarchy of the Courts

In 1852, Charles Dickens published Bleak House : he wrote a book explaining the organisation of the UK
justice. It is hard to understand this organization. At the center of Bleak House is a long-running legal case,
Jarndyce and Jarndyce. Dickens used this case to satirize the English judicial system.This novel helped
support a judicial reform movement. He wanted to mock, satires the English judicial system that is not easy
to understand, even for the English people because it is the outcome of history.

Basic toolkit of ideas -> hierarchy of the courts with relation to the kind of work that each court does
• Key distinction between trial courts and appellate courts:
- The trial courts -> these courts will try to adjudicate the con its nd an outcome for the ght between the
appelant and the defendant = courts of rst instance.
- The appellate courts -> aim to control precedents of inferior judges = courts that hear appeals. There is a
single Court of appel (we can not draw a comparaison with the French judicial system). But what is
strange is that the Court of appeal is not the unique appellate court : the High Court is also an appellate
court. This is why it is very important to distinguish the Court of appeal and the appellate court.
• Division of labor between the Civil Courts and the Criminal Courts
In France the main distinction is between civil and administrative courts, but in the UK this is not the case.
The administrative cases will be hear by the High Court (there is an administrative court within it).
- Civil court cases arise when an individual or a business believes their rights have been infringed (when an
individual is concerned by the case = civil)
- Criminal court cases come to court after a decision has been made usually by the crown prosecution
service = independent rolling by the minister of justice. The discussion is between the crown prosecution
service and the police (not with the « parquet » like in France). The prosecution service can decide to hear
the case even if the police thinks that there is enough evidence. It aims at prosecuting somebody for an
alleged crime

A same jurisdiction can be civil and criminal at the same time.

⚠ 2 meanings of « jurisdiction » : in this part, we will use the terme as a technical word which relates to the
kind of case that a court can hear (= compétence)

1. Civil courts

The County Courts : at the bottom of the civil courts

Introduced in 1846 -> provide local and accessible judge for the adjudication of relatively small-scale
litigation. 173 County Courts. The County Court will hear small contractual and tort claims which are not
very dif cult to solve such as :
- Businesses trying to recover money they are owed;
- Individuals seeking compensation for injuries;
- Landowners seeking orders that will prevent trespass
The county court jurisdiction is a rst instance jurisdiction and has some limited powers to hear appeals
from local authorities (housing law).

The High Court of Justice

Created in 1873, the High Court has both civil and criminal jurisdiction; the High Court’s jurisdiction is
exercisable both at rst instance and on appeal : not very easy position
High Court Judges sit mainly in the Royal Courts of Justice in the Strand, London
There are 3 parts in this court :
- The Family division
- The Chancellery division
- The Queen’s Bench Division (before it was the King’s bench but today it is the Queen’s bench).

The Queen’s Bench Division of the High Court of Justic

• First instance jurisdiction -> the QBD is the main common law court. (county court is the court of every
day civil cases and when the cases are a bit more dif cult, the QBD is competent). 3 dimensions :
- actions relating to contract -> failure to pay for goods and service ; breach of contract (not an easy
issue because the judge will have to chose between the common law remedy or an equitable remedy
- actions relating to tort -> wrongs against the person (libel and slander), wrongs against property
(trespass).
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 - actions relating to matters that involve both contract and tort -> personal injury cases which show
negligence and breach of a contractual duty of care -> a contract that says that one of the parties to the
contract has a duty of care to the other party

• Appellate functions of the QBD = ‘divisional court’ of the Queen’s Bench : appeals from the High Court
in civil matters are made to the Court of Appeal (Civil Division

The Chancery Division of the High Court of Justic

18 judges. The major part of the case-law involves business or property disputes of one kind or another
- disputes relating to business, property or land
- competition claims
- commercial disputes (domestic and international)
- intellectual property issues

The Family Division of the High Court of Justic

Family matters are dealt with by district judges in County Courts -> and in the Family Division of the High
Court (difference between the family courts and the family division of the HC)

From 2014 (Crime and Courts Act 2013) there is ONE Single Family Court (it will be a family section in
every county court but seulement one family court) -> all family proceeding except those which have been
exclusively reserved for the High Court (that will deal with more treaty issues). Family Court will hear
about marriage, divorce decrees, cohabitation, some types of domestic violence, dispute between parents
over the upbringing of their children, nancial support for children upon divorce and separation, adoption,
local authority intervention where children may need to be protected from abuse or neglect.

The Family Court will normally hear all cases about family issues, but the Court may transfer some cases to
the Family Division of the High Court if complex issues are involved. The Family Division of the High
Court is exclusive jurisdiction in wardship -> court order which gives custody of a minor child to the court,
with day-to-day care carried out by an individual or local authority. They handle cases of international child
abduction (kidnapping). The Family Division hear also cases about forced marriage and applications for
nancial relief where a divorce has taken place outside England and Wales => Need to provide a local justice
: more proximate justice for everyday issues.

Court of Appea
- The Court of Appel was established by the Judicature Act 1873
- It is divided into 2 Divisions (Civil Division and Criminal Division)
- The Court is constituted of the Heads of Division and 38 Lord and Lady Justices of Appeal. There is no
competitive test in the UK like in France (ENM). Only those who gains at least 10 years as barrister
experience can ask to begin judges of the Court of appeal. This is what explain that
- The Lord Chief Justice is the President of the Criminal Division : he is the chief of the judges expect for
the judges of the Supreme Court. He is the most important judge of the High Court and Court of appeal.
- The Master of the Rolls is the President of the Civil Division. He is the number 2.
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 Before the Act of 1873, judges were appointed by the minister but now, there are appointed by an
independent commission

The Civil Division of the Court of Appeal is exclusively an appellate court. It hears appeals from the three
divisions of the High Court of Justice and their specialist courts, from the County Courts across England and
Wales and from the Family Court. Usually, a 3 judges panel will sit to hear an appeal. But for very important
cases ve judges may sit

2. Criminal courts

Magistrates’ Court
The majority of criminal cases are completed in this court (same resentment as between county and high
court). Magistrates deal with 2 kinds of cases
- Summary offences : less serious cases (motoring offences, minor assaults…)
- Either-Way offences (theft, handling stolen goods...) -> can be dealt with either by magistrates or before a
judge and jury at the Crown Court. More serious than a summary offence but it is a quick procedure
-> A defendant can insist on his right to trial in the Crown Court (because in front of the magistrate court,
he won’t be able to explain his position, what he did). The defendant can chose to be put before a
magistrate or a crown judge, this is why the procedure is called «  Either-way offeces  ». In the Crown
court, the procedure is longer.
-> Magistrates can also decide that a case is so serious that it should be dealt with in the Crown Court.
Most magistrates are lay (not professional) : they do not require formal legal quali cations, but will have
undertaken a training programme

Crown Cour
It is a single court which sits in 77 court centres across England and Wales. The Crown Court deals with
more serious criminal cases. Offences tried in the Crown Court are divided into 3 classes of seriousness
- Class 1 offences are the most serious (treason and murder)
- Class 2 offences include rape
- Class 3 includes all other offences (kidnapping, burglary, grievous bodily harm and robbery)

The Crown Court has an appellate jurisdiction over decisions of the Magistrates Court relating to matters of
conviction or sentence
-> appeal against conviction > full re-hearing/ witnesses are called again
-> appeal against sentence > the witnesses are not called again

A Crown Court
- has a jury -> decide on wether the defendant is guilty or no
- has a judge -> decide what sentence he deserve

Criminal Division of the Court go Appeal

- The appellate jurisdiction of the Court of Appeal (Criminal Division) relates to appeals against conviction,
sentence or both from the Crown Court. It hears also appeals against con scation orders imposed by the
Crown Court
- The Attorney General can also refer to the Division Criminal cases where there is concern that the
sentence given by the Crown Court may have been too lenient

The Supreme Court :

Lord Reed President of the Supreme Court (PSC

The Supreme Court was created to achieve a complete separation between the UK’s senior judges and the
Upper House of Parliament -> Lord Falconer “The key objective is to achieve a full and transparent
separation between the judiciary and the legislature. [...] the Supreme Court will be administered as a
distinct constitutional entity” = independent court. The UK Supreme Court is an independent body of 12
judges known as Justices of the Supreme Court
The UK Supreme Court is the nal court of appeal for all UK civil cases and criminal cases from England,
Wales and Northern Ireland. (Scotland enjoyed speci c rules regarding to appeals for criminal cases). It
became the highest court of appeal in October 2009

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 The Supreme Court is merely supreme among courts -> no overall supremacy among the organs of State.
Its creation has not affected the doctrine of the legislative supremacy of Parliament. It has not the right to
change a bill. Parliament is still souverain. The UK Supreme Court is not a constitutional court -> no power
to squash statutes/ to strike down legislation

The Supreme Court hears appeals on arguable points of law of general public importance -> concentrates on
cases of the greatest public and constitutional importance
The Supreme Court normally sits in panel of 5 when the case is not very dif cult there is an usual 5 members
panel). Enlarged panels of 7 or 9 members are possible (ex : Jugement given on 24 September 2019)
- where the court is asked to depart, or may decide to depart, from a previous decision
- if a case involves a matter of ‘high constitutional importance’

The Judicial Committee of the Privy Counci

It is not a court strictly speaking. The JPC was created in 1833. The constitutional function of the Privy
Council is to advise the Crown. Theoretically at least, its Judicial Committee does not actually determine
cases but merely offers advice. However, in practice, the advice is always accepted -> that’s why it is not
uncommon to speak about « decisions » of the Privy Council : decisions are very in uential in English courts
because they are pronounced by Supreme Court Justices. This advice are very important.
Technically, these decisions are of persuasive precedent, although they are likely to be followed by English
courts = persuasive value of these advices
The Judicial Committee of the Privy Council hears civil and criminal appeals from commonwealth countries
and territories. The reality is that there are few and far commonwealth countries which recognize the
jurisdiction of the judicial Committee. It is very common in a judgment to refer to what has been decided
by the Committee

2 different European courts (not domestic courts) :

• The European Court of Justice (ECJ) : highest court in the European Union. It outranks national supreme
courts (the EU is supranational) BUT only in those areas of law which are relevant to the European Union
• The European Court of Human Rights (Strasbourg) : international court of human rights. The European
Convention of HR = ECHR is part of the domestic law in the UK -> Human Rights Act 1998. It means that
it is not necessary to go in front of the European Court of HR to denounce a breach of human rights, each
citizen can go in front of a domestic court to do that. But because the UK is a signatory to the Convention
on HR -> the UK as a country can be taken to the ECHR if the UK is in breach of its human rights

B. The importance of procedural law

1. Distinction between substantive and procedural laws

Substantive law -> the speci c rule which tell us what the law says about the facts : it will tell what is the
solution to the case in relation to the facts.
Procedural law -> lays down the process by which a case is brought before the court, and how it is tried. It
explain how the case will be tried by the judge, in order to enforce the substantive law. Procedure law :
- is thought to guarantee fairness in legal proceedings
- is designed to increase the chance that judges will make an accurate decision on the basis of the facts
and the law. That’s why, procedural law is more relevant in the UK that in France.

Its importance is re ected by a book written by Jeremy Bentham : saw the rules of procedures as being
doğruluk
central to the machinery of justice = ‘rectitude’ of decisions. Procedure rules are also important to litigants ->
Procedural justice has an important in uence on citizens’ perceptions of the fairness of legal processes

2. Inquisitorial and adversarial procedur

çekişmeli
In civil law jurisdictions ->‘inquisitorial’ procedures : the judge plays a more active role in the investigation
of the case
- He will decide which witnesses should be calle
- He will take responsibility for uncovering the facts of the cas
- At the trial the judge assumes a direct role
Whether the parties or the court control three key aspects of the litigation -> initiating the action / gathering
the evidence / determining the sequence of the proceedings
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 Common law courts proceedings are based on ‘adversarial’ procedure : ’trial by battle’
• The parties themselves make the running of the case. They exercice the main role. At the trial in court the
parties’ attorney present their clients’ respective arguments in a sort of contest before the judge
• The role of the judge is to remain relatively passive during proceedings (judicial neutrality) But the judge
is not a silent bystander
- The judge ensures that procedures are followe
- The judge is at liberty to prevent an improper line of questioning, to seek clari cation of some point of
fact or law

=> Impropriate to exaggerate the distinction between both but it is important to distinguish them.

II. What is the Judiciary ?

The rule of law :

It dates to Aristote. The rule of law is an essential constitutional concept. It represents a symbolic ideal. But it
is not seulement a philosophical concept but also a legal concept -> in fact, the rule of law was enshrined in
legislation for the rst time by the CRA >“this Act does not adversely affect the existing constitutional
principle of the rule of law ( CRA 2005). But the Act does not de ne what is meant by the rule of law ->
there is a lack of precision in the actual meaning of the concept. Many authors tried to explained it. Generally
speaking, the principle of the rule of law means that the law applies to everyone regardless of social,
economic or political status or wealth. Nobody is above the law, even the prime minister and the monarch are
under the rule of law. The rule dictates
- that a citizen should only be punished if it is proved in court that they breached a law, so that people
cannot be punished arbitrarily
- that no person is above the law, and everyone is equal before the law

Lord Bingham (2006) formulated one of the most in uential contemporary formulations of the rule. ‘All
persons and authorities within the State, whether public or private, should be bound by and entitled to the
bene t of laws publicly and prospectively promulgated and publicly administrated in the courts’
Lord Bingham set out 8 ‘ingredients’ of this rule
• The law must be accessible, intelligible, clear and predictable
• Questions of legal right and liability should normally be resolved by the application of law rather than the
exercise of discretion -> the law intend to rule out any arbitrary element
• The laws of the land should apply equally to all, except where objective differences justify differentiatio
• The law must give adequate protection of fundamental human rights (HRA 1998)
• Means should be provided for the resolution of civil disputes which the parties themselves are unable to
resolve without excessive cost or inordinate delay
• Ministers and public of cers must exercise their powers reasonably, in good faith, for the purpose for
which the powers were conferred and without exceeding the limits of such powers : if the government does
not exercice his power in good faith, the judge will have the power to control = judicial review.
Underpinning tension between the judge and other powers.
• The adjudicative procedures provided the State should be fair
• The State must comply with its obligations in international law

A. The constitutional position of the Judiciary

-> Importance of the Constitutional Reform Act 2005 : it has radically altered the constitutional
position of the Lord Chancellor and the House of Lords. Things are more clear now

1. The Of ce of the Lord Chancellor

The Lord Chancellor’s of ce is one of the oldest in the United Kingdom : Thomas More (1478-1535) or
Francis Bacon (1561-1626) have served as lord chancellor
The Lord Chancellor has always had an anomalous constitutional role in respect of the separation of powers
• most senior judge in the English court structure -> he was part of the judicial power.
• member of the executive (leading member of the cabinet
• part of the legislative body (as speaker of the House of Lords)
The administrative responsibilities for the court system increased signi cantly as a result of the reforms
introduced by the Courts Act 1971 which transferred responsibility for many courts from cities and local
authorities to central government and the Lord Chancellor. Major reform intended to change the LC’s power
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 This situation was contrary to the European Convention on Human Rights

- The CRA 2005 removed the judicial functions of the Lord Chancellor : Head of the judiciary -> the Lord
Chief Justice of England and Wales (President of the Criminal Division of the Court of Appeal)
- The CRA2005 removed the legislative functions of the Lord Chancellor -> The speaker of the House of
Lords is elected by the Lords : Lord Speaker
- The Lord Chancellor has retained his executive functions : Robert Buckland MP was appointed Lord
Chancellor and Secretary of State for Justice in July 2019

2. The Supreme Court

The CRA Act 2005 has replaced the House of Lords as the highest court in the UK by a new independent
Supreme Court -> the Court has independent body : its own independent appointments system, its own staff,
its own building and its own budget. The Court consists of 12 judges (called Justices of the SC

3. The appointment of the judiciar

Education > appointment requires legal quali cation (degree in law) + experience for a minimum period (at
least a 10 years experience, better if it is a 15 or 20 years experience) (dependent on the role sought - Lord
Justice of Appeal, High Court Judges...) [Courts and Legal Services Act (CLSA) 1990

Constitutional Reform Act 2015 created a new independent Judicial Appointments Commission (JAC). The
composition of the Commission is determined by the Judicial Appointments Commission regulations 2013. It
is responsible for the process of selecting judges in England and Whales. It is made up of 40 members,
including judges, they are represented on the Commission, but do not hold a majority. The Chairman of the
Commission is a lay member (the then Chairman is Professor Lord Ajay Kakkar. He is Professor of Surgery,
University College London)
- The Commission makes recommendation to the Lord Chancello
- The Lord Chancellor has a very limited power of veto. He has not the power to refuse judges selected by
the commission. He has the right to reject a candidate once and the commission will have to reconsider the
case but can maintain its recommandation so that the LC must accept its choice.

The 2005 Act made reference to the independence of the judiciary > fundamental principle
- duty on government ministers to uphold the independence of the judiciary
- the Lord Chancellor also has a speci c statutory duty to defend the judiciary’s independence

4. Judicial immunity

Judicial immunity : judges cannot be sued for actions done or words said in the course of their judicial
function. This immunity is stronger in relation to higher judges :
- judges in the higher courts have life tenure = they cannot be removed (Supreme Court or Court of Appeal)
- a resolution of both Houses is needed to remove a High Court judge from of ce
- judges at the lower levels can only be removed after disciplinary proceedings

B. The relationship between Parliament and judge

Parliamentary privilege = the conduct of Parliamentary business cannot be subject to judicial challenge :
Parliamentary member cannot be petitioned for what has been said by the house of common of lord. It cannot
lead to legal -> Art. 9 of the Bill of Rights 1689 : it intended to warrantee the freedom of speech and debate.
Right enjoyed by all members of parliament who are immune from legal proceeding, even if what they say is
a breach of a piece of legislation.

Sub-judice rule (latin for 'under judgment’) : there is a convention that MPs will not criticise judicial
decisions (not a written rule). The sub-judice rule guards against Parliamentary interference in cases
currently before the courts. The sub-judice rule is intended to defend the rule of law and citizens’ right to
fair trial

1. Judges are beginning to think about the idea of what is parliamentary sovereignty

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Jackson v Attorney General, House of Lords, 2005 (after the human right act) :
Lord Steyn, member of the House of Lord wrote : ‘We do not in the UK have an uncontrolled constitution.
(...) The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the
European Convention on Human Rights as incorporated into our law by the HRA 1998, created a new legal
order. One must not assimilate the European Convention on Human Rights with multilateral treaties of the
traditional type. Instead it is a legal order in which the UK assumes obligations to protect fundamental
rights, not in relation to other States, but towards all individuals within its jurisdiction. The classic account
given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen
to be out of place in the modern UK. Nevertheless, the supremacy of Parliament is still the general principle
of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is
not unthinkable that circumstances could arise where the courts may have to qualify a principle established
on a different hypothesis of constitutionalism’ => Parliament is still sovereign but not so sovereign than when
Dicey said that this doctrine was pure and absolute. A pure and absolute supremacy or Parliament is obsolete.
This principle is a result of the common law and of the work made by the judge. ‘principle established on a
different hypothesis of constitutionalism’ : not very clear but hat is to remember is the fact that judges begin
to discuss the parliament supremacy and that this supremacy has been created by the judges -> so that they
would have the right to change what they created.

According to Lord Steyn the judges have created the principle of parliamentary sovereignty. So if the judges
created the principle of parliamentary sovereignty, the judges could remove it. Lord Steyn is not discussing
the fact that Parliament is sovereign, but only its extend. The judges could change the principle and bring
parliamentary sovereignty to an end. Lord Steyn formulated the idea that parliamentary sovereignty is not the
only way of thinking about a constitution. A doctrine like the rule of law may be equally relevant
‘In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the
courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider
whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a
complaisant House of Commons cannot abolish. It is not necessary to explore the rami cations of this
question in this opinion. No such issues arise on the present appeal’

Does the doctrine of the rule of allow to limit parliamentary sovereignty in exceptional circumstances where
there is an attempt to abolish judicial review, or the ordinary role of the courts
-> Another passage from Jackson v Attorney General, by Lord Hope (b.1938) :‘In a democracy the need of
the elected members to maintain [the trust of the electorate] is a vitally important safeguard. The principle of
parliamentary sovereignty which in the absence of higher authority, has been created by the common law is
built upon the assumption that Parliament represents the people whom it exists to serve.
Lord Hope said that the principle of Parliamentary sovereignty created by the common law is built upon the
assumption that Parliament represents the people
- the principle of Parliamentary sovereignty is limited by a democratic mandate by the fact that the real
sovereignty is exercised by the people during the election
- people can vote out Parliament

2. Are judges making law

Constitutionally, judges are subordinate to Parliament and may not challenge the validity of Acts of
Parliament. Bothe make the law but judges are subordinate to Parliament. The task of the court is to imply
what has been passed by parliament and has not the right to conteste the validity of a statute -> British
Railways Board v Pickin - House of 1974 : ‘Held (...) that the function of the court was to consider and apply
the enactments of Parliament, and accordingly, in the course of litigation, it was not lawful to impugn the
validity of a statute by seeking to establish that Parliament, in passing it, was misled by fraud or otherwise,
nor might a litigant seek to establish a claim in equity by showing that the other party, by fraudulently
misleading Parliament had in icted damage on him. Any investigation into the manner in which Parliament
had exercised its function would or might result in an adjudication by the courts, bringing about a con ict
with Parliament’
However, there remains some leeway for judges to interpret statute. This raises the question of whether the
judges are able to ‘make law’? Comparaison between 2 decisions :

• Magor & St. Mellons Rural District Council v Newport Corporation (1952) : the House of Lords rejected
the approach of Lord Denning (1899-1999, president of its civil division of the Court of Appeal) said :
‘We (judges) sit here to nd out the intention of Parliament and of Ministers and carry it out, and we do
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 this better by lling in the gaps and making sense of the enactment than by opening it up to destructive
analysis’. According to him, the judges power of interpretation would be to le the gap left by Parliament.
Lord Simond expressed the disagreement of the House of Lords by commenting this statement : ‘This
proposition (...) cannot be supported. It appears to me to be a naked usurpation of the legislative function
under the thin disguise of interpretation. (...) If a gap is disclosed, the remedy lies in an amending Act’.

• McLoughlin v O'Brian - House of Lords - (1982) Lord Scarman (1911-2004) : ‘The objective of the
judges is the formulation of principle. And, if principle inexorably requires a decision which entails a
degree of policy risk, the court's function is to adjudicate according to principle, leaving policy curtailment
to the judgment of Parliament. Here lies the true role of the two law-making institutions in our C°. By
concentrating on principle the judges can keep the common law alive, exible and consistent, and can keep
the legal system clear of policy problems which neither they, nor the forensic process which it is their duty
to operate, are equipped to resolve. If principle leads to results which are thought to be socially
unacceptable, Parliament can legislate to draw a line or map out a new path. The real risk to the common
law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by
a conservative judicial approach. If that should happen (...) there would be a danger of the law becoming
irrelevant to the consideration, and inept in its treatment, of modem social problems. Justice would be
defeated. The common law has, however, avoided this catastrophe by the exibility given it by generations
of judges.’ The task of the judge is to keep the common law alive so to achieve this goal, he has the right to
interpret the law -> the judge has the right to create new principles to keep the common law alive. If the
parliament disagrees, he has the right to change what the judge said.

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 PART II - METHODS OF COMMON LAW

In part 1, we saw that in England, the judge has the right to create the law # in France. Now in part 2, we are
going to focus on the different ways that judges create the law.
Importance of the rule of precedent in the UK leads to the importance of the judge and the fact that there is
no written code -> so if you want to achieve consistency, the judge has to apply precedent. In the UK
common law, the precedent is binding = key element. In chapter 2, we will speak about the link between
parliament and judges. The important of the act of parliament is recent. It can happen that the judge will
interpret what has been passed by parliament. There is a border between what the judge can do and what he
cannot because it is the tas of the parliament = red line.

CHAPTER I. Case-law and Preceden

The common law has been created by the judge through different judgments, through case law. The
importance of case law leads to the importance of precedent -> they cannot be distinguished.

I. What is Precedent?

Part 1 is more theoretical whereas part 2 is more practical, this is really a question of practice. It is more a
question of practice so we will have to read decisions to understand what is really precedent.
Precedent refers to the main rule which is played by case law in the creation of common law
- The Doctrine of Precedent is concerned with the importance of case law in the UK common law
- The reality of the Doctrine of Precedent is about reading and understanding Judicial reasoning

The doctrine of precedent relates to the idea that if we have a precedent case, then when a court hears a later
case which is similar in law and in fact at that precedent case, that later case will be bound by the earlier case
-> cases that are considered alike are decided in the same way. The later court will have to follow what has
been decided by the previous judge -> there is a chronological dimension in the application of the doctrine
of the precedent = theoretical explanation, very brie y speaking

In fact, it is very dif cult to establish that one case is similar to another. If the instant case is considered
suf ciently alike in law and in fact to an earlier ruling in a precedent case, then the instant case is bound by
the ruling in the precedent case. There will be a discussion about the similarity, « suf ciently » is the key
word here.

Precedent is the idea that all legal cases are to re ect previous decisions of similar circumstances ->
consistency (= cohérence). As there is no written codes, you have to apply the rule of the precedent in a
strictly way in order to reach consistency. This is why precedent is so important. Otherwise, you won’t get a
consistent legal system, it would lead to chaos, to an arbitrary system.

A. The distinction between ratio decidendi and obiter dictum

It would be wrong to conclude that everything contained in a decision is of equal weight -> crucial
distinction between the ratio decidendi (which is the binding part) and the obiter dictum (the legal,
judicial comment which are not necessary in order to nd a solution) of the judgment

1. The ration decidendi

What is ratio decidendi

The ratio decidendi / statement is the judge’s personal reason for coming to the decision. It is the way the
judge will arrive to his conclusion. Ratio means reasoning. When you read a judgment, you have to ask
yourself what leads the judge to his decision = the ‘because’ test / ‘why’ question.

Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, Yale Law Journal (1930) considers that
there are 2 elements is the ratio of the case = material facts (facts which are relevant) + the decision based on
those facts. This is not only the law, the legal element, the concept of ratio also encompasses the material
facts. Not all the facts have a legal importance, only the most portent ones (suf ciently)
-> The more similar the facts of the new case are to existing precedents, the easier it is for the judge to decide
that the law found in these precedents applies to the new case

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 Where is the ratio of a case? It is not an easy task to identify the ratio in a case
- decisions of English courts can be long (15-20 pages
- judges do not state clearly that a particular part of the decision is the ratio
In Actavis UK Ltd v Merck & Co. Inc [2008], Lord Justice Jacob said : ‘As every law student will know, it is
not always easy to nd what the ratio of a decision is. As for an individual judgment, although we suppose
every judge who writes his or her own decision tries to articulate a ratio it would be an article of faith and
contrary to reality to say that every judge has succeeded or that a ratio can readily be distilled from every
judgment’. In the UK you don’t have to right a ‘commentaire d’arrêt’ as the judge do it himself when giving
a decision

The doctrine of judicial precedent is described as an art of interpretation

A judge may base his decision on more than one reasoning -> in this situation Devlin J in Berhens v
Bertram Mills Circus Ltd [1957] explained that all this ratios / reasoning are binding. A later judge has not
the right to choose one of them : 'if a judge gives two reasons for his decision, both are binding. It is not
permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it
matter for this purpose which comes rst and which comes second.

It is not very commun to give a decision in a one judge panel, most of the time the decision is delivered by
several judges, a panel of judges. Where there is more than one judge in the court -> each judge delivers his
own speech because each wants you to agree with his reasoning. They do so even is they disagree with the
majority. It can even happen that a dissenting judgment is considered by a later court to be the correct
judgment. It does not undermine the legal decision, it only prove that there is a dynamic legal debate
Judges from the common law tradition do not welcome the idea of a single judgment on a compulsory basis
- Each judge in a common law judgment is to give out their own opinion
- What was yesterday a dissenting judgment may turn out to be tomorrow the majority judgment

In Saunders v Anglia Building Society [1970], Lord Reid : ‘The true ratio of a decision generally appears
more clearly from a comparison of two or more statements in different words which are intended to
supplement each other.

When the judgment is given by a panel of judges, there are different situations :

• The position is easier when there is a leading judgment, the others are simply statements of concurrence.
How can we identify this leading judgment ?
- It can happen that it is the rst judgment
- It can be longer
- The only judges will only say that they agree / concur.

• But by contrast, each judge may use his own reasoning so that the judgment rests on different reasonings
which arrive to the same solution. In this situation, you have to read the different reasonings and it means
that the solution is made by different reasoning.

• If there is a majority agreement as to the reasoning -> you can guess that it should be the ratio of the case.
But you have to be careful because it is a question of interpretation : in a suit, another lawyer can consider
that other elements are also part of the ratio.

• If the various rationes are simply different and there is no majority -> it would seem logical to apply the
Behrens principle = all the reasonings are binding, a judge decides that his judgment is based on different
points that are part from the ratio. Then the later judge will have to use this points.

In fact, if the matter remains less than clear-cut -> later judges can ‘downgrade’ one of the statements to mere
obiter dictum. This is a question of interpretation. If a judge know that a previous decision is wrong, he
won’t maintain it

2. The obiter dictu

-> It is not binding however an obiter statement can become later a ratio decidendi.

Obiter dictum is something written in the case that does not relate to the material facts -> ‘a thing said by the
way’, incidentally. This comment is not necessary to reach the decision so it is not binding. A judge can
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 make a statement of opinion, a hypothetical statement (‘if the facts had been different then my decision
would have been…’) -> hypothetical statement :
- A judge can say what he would have decided had he not been bound by the rule of binding precedent
- A judge can make a number of general comments on the law under discussion

Devlin, in Berhens v Bertram Mills Circus Ltd [1957] : ‘a judge may often give additional reasons for his
decision without wishing to make them part of the ratio decidendi’
Strictly speaking an obiter dictum statement is not binding on a later judge
But one cannot cast aside too promptly statements -> obiter may be so obiter dictum strongly persuasive
that they are practically binding

An obiter must be powerfully persuasive because

- it is generally the product of much thought by the judge, it is very relevant
- it may be based on extensive argument on the point in question by the judge

A later court may decide that what was said by the previous judge as an obiter was really part of the ratio
Lord Cains said in Anderson (WB) & Sons Ltd v Rhodes [1967] : ‘When ve members of the House of Lords
have all said after close examination of the authorities that a certain type of torts exists, I think that a judge
of rst instance should proceed on the basis that it does exist, without pausing to embark on an investigation
whether what was said was necessary to the ultimate decision’

B. The binding precedent

- In civil law -> precedents tend to be illustrative and not binding because the code is binding
- In common law -> precedents are themselves binding

That is known as the principle of stare decisis = it translates easily as ‘Let the decision stand’. It means that
when a court make decisions in a case, then any other courts which are of equal or lower statues must follow
what has been decided in the previous decision if the current case is similar to the earlier case.
Lord Justice Jacob said in Howard de Walden Estates Ltd v Aggio [2007] : ‘This principle serves the
interests of legal certainty. The needs of litigants and their advisers to know where they stand is not served if
a lower court is free to create a con ict of authority by declining to follow the relevant decision of a higher
court’ -> it refers to the idea of reaching a consistent legal system, it ensures legal certainty

The hierarchy of the domestic courts is a fundamental feature of the doctrine of precedent. The rule of
thumb -> the court superior in the hierarchy binds the courts inferior to them in the hierarchy. This Eans that
the Precedent is determined by the most superior courts. This hierarchy of courts can be seen in the
terminology used by different judges
- The earlier case may be followed even though the later judge disagrees with it.
- If the following court is superior to the earlier court, the decision may be said not simply to have been
followed but to have been approved.
- If the higher court reaches a different decision, it is said to overrule the decision of the lower court

The doctrine of precedent and the hierarchy of courts make judicial-law making as far as possible coherent
and consistent.The decisions that judges are making must be seen as coherent with the decisions judges have
made in the past. Not all precedents are binding. Some precedents are called persuasive
- decisions of the County Court
- decisions of the High Court at rst instance (1st instance and appellate court at the same time)

Decisions of the Judicial Committee of the Privy Council -> in principle the Judicial Committee of the Privy
Council does not bind any English Court. But this view has been challenged by recent decisions
Practically speaking, as the judges are made up from the Justices of the Supreme court sitting in a
different guise, any decision of the JCPC is treated as highly persuasive.
- ex : R v James 2006 a 5 member Court of Appeal preferred a decision by the Privy Council (Attorney-
General for Jersey v Holley 2005) to a decision by the House of Lords (R v Smith 2004). Lord Philipps
explained the exceptional features in this case which justify the Court’s unconventional approach
- All 9 of the judges sitting in Holley agreed that the result reached by the majority clari ed de nitively
English law on the issue in question.
- The Privy Council’s decision was taken by a majority of 6:3 -> 9- member sitting of the Judicial
Committee of the Privy Council is very rare. The usual number is ve.
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 - In the circumstances, the result of any appeal on the issue to the House of Lords was a foregone
conclusion

To what extent is the precedent binding ?

Lord Justice Robert Goff said in Elliott v C [1983] : ‘Although the courts of this country are bound by the
doctrine of precedent, sensibly interpreted, nevertheless it would be irresponsible for judges to act as
automata, rigidly applying authorities without regard to consequences. Where, therefore, it appears at rst
sight that authority compels a judge to reach a conclusion which he senses to be unjust or inappropriate, he
is (...) under a positive duty to examine the relevant authorities with scrupulous care to ascertain whether he
can, within the limits imposed by the doctrine of precedent (...), legitimately interpret or qualify the
principle expressed in the authorities to achieve the result which he perceives to be just or appropriate in the
particular case’=> Tension between a coherent system and justice of each case (sensibly interpreted). If the
binding precedent could lead to injustice so the judge can discard it

2 ways to discard binding precedent :

• Technic of distinction : as a rule a later inferior court must apply the principle of law pronounced in the
earlier case BUT there is an alternative by distinguishing the case. It means that the later judge will seek
to show a signi cant difference in the material facts in the two cases such that the later court should not
feel obliged to follow the earlier court. Distinction refers to the facts of different cases. If the facts of the
case 1 are suf ciently different from those of the case 2, the judge can discard the precedent of case 1. This
is a technic that is very used by avocate in courts. But this technic does not imply any criticism on the
correctness of the previous decision : the binding decision still apply generally speaking but in one case,
one judge has the right to decide that it won’t apply.

• The per incuriam doctrine = an earlier case missed some vital authorities bases -> the judge considers that
there is a fault in the previous decision, the decision is ot. That omission would have made a difference to
the decision. It is more dif cult to apply. This rule does not simply mean that the Court made a mistake,
that mistake must have seriously affected the reasoning in the cause and the outcome. In Morelles v
Wakeling [1955] Lord Eversheld limited the use of the per incuriam rule to cases where was :
- Ignorance on authority which would have been binding or the court an
- That ignorance led to faulty reasoning.

II. How is Precedent implemented?

The hierarchy of the courts provides the fundamental institutional structure for the practice of precedent.
The vertical dimension of precedent raises relatively few dif culties in practice -> higher courts will bind
lower ones. But there is another aspect :
- Some courts bind themselves
- Horizontal dimension of the doctrine of precedent
=> Tensions have developed within the system of hierarchy of courts over years

A. The issue of exibility

This rule in the only way to achieve a coherent legal system. If superior courts Strat departing from their own
previous ruling :
- The law will develop inconstantly
- The inferior courts will not know how to develop legal principles

But, what happens if the law contains a load of erroneous / incorrect decision ? Is the binding precedent still
in application by the Supreme Court ?
It is not inconceivable that to do justice in an individual / exceptional case, it might be necessary to depart
from previous rules. Very tricky question -> the extent to which a superior court can depart from a previous
decision relates to the development of the exibility of the common law. Is the CL a exible legal system ?
-> London Street Tramways v London city Council [1898] HL : Lord Halsbury exposed a particular vision
of how the house of lord should work : « a decision of this house once giver a point of law is conclusive upon
this house afterwards, and that it is impossible to raise that question again. Of course I do not deny that
cases of individual hardship may arise, and there may be a current of opinion in the profession that such and
such a judgment was erroneous. But what is that occasional interference with what is perhaps abstract
justice as compared with the inconvenience - the disastrous inconvenience - of having this question subject to
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 being reargued doubtful by reason of different decisions, so that in truth and in fact there would be a real
nal court of appeal ?».
=> It illustrates the position of the House of Lords at the end of the 19th : it is important not to depart from
its previous decisions. Even if there is an opinion that the previous decision was incorrect. Coherent system
is the most important aim. In this jugement Lord Halsbury said that it does not really matter that the law is
made up of Wong decisions provided that we have a nal court making rulings. The rigidity of this rule was
increasingly criticized throughout the 20th.

B. The modern practice by the higher courts

1. Modern practice of the House of Lords (HL

The house of lords has changed its mind. Practice statement of 1966 -> fundamental document for the
modern practice of precedent. Statement by the Lord chancellor (Lord Gardiner) and the lords of appeal in
ordinary before judgments freer given in the house of lords : the house of lords gave guidance on how it
would treat an invitation to depart from a proviso decision of the house : ‘Their lordships regard the use of
precedent as an indispensable denudation upon which to decide what is the law and is application to
individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct
of their affairs, as well as a basis for orderly development of legal rules. Their lordships nevertheless
recognize that too rigid adherence to precedence may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose therefore to modify their present practice and while
trading former decisions of this house as normally binding, to depart from a previous decision where it
appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the
basis upon which contracts, settlements of property and scal arrangements have been entered into and also
the special need for certainty in the criminal law. This statement is not intended to affect the use of precedent
elsewhere than is this house’ -> The practice statement does not want to undermine the precedent. It does not
clearly explain in what circumstances where it would be right to depart from binding precedent. It will be
only apply by the house of lords.

Practice statement -> principled approach :

- Precedent is still an indispensable foundation of the CL : ‘it provides at least some certainty - not
absolute certainty’
- Too rigid adherence to precedent may lead to injustice in a particular case # lord Halsbury was saying that
the justice in a particular case is not important.
- Need for certainty in certain areas of law -> there is a danger in disturbing the basis on which contract,
settlements of property and scal arrangements, and criminal law have been enter into

=> Today, In rather limited circumstances, it is entirely legitimate for the house of lords and supreme court
to depart from its previous rulings. However the House of Lords has been very reluctant before using the
practice statement as it is really aware of the importance of the binding precedent.

Miliangos v George France LTD [1976] HL : contexte : the previous ruling in this case was united railways
of Havana and Regla warehouse LTD [1961] HL -> it concerned the ‘sterling damages rule’ = damages
given by the judge would be paid in starling (UK money). In this case, Lord Wilberforce was trying to
justify why it is acceptable in exceptional circumstance to depart from sterling damages rule : ‘the law in this
topic is judge-made : it has been built up over the years from case to case and it is entirely within this houses
duty in the course of administering justice, to give the law a new direction in a particular case where, on
principle and in reason, it appears right to do so. I cannot accept the suggestion that, because the rule is
long established, only legislation can change it - that may be so when the rule is so deeply entrenched that it
has infected the whole legal system or the choice of a new rule involves more far-reaching research than
courts can carry out’.
• The sterling damages rule was created by the judge : it is within the house’s duty to give the law a new
direction (as he creates it). Lord Wilberforce is arguing against the idea that the courts should wait an
intervention by parliament.
• This ability of judges is not unlimited. There is a quali cation -> parliament may change the law when
- The rule is deeply entrenched
- The choice of a new rule would be a dif cult task at it would involved more far-reaching research than
what the court can carry out.

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 Lord Reid in R v Knuller [1973] : ‘our change of practice in no longer regarding previous decisions of this
house as absolutely binding. That not mean that whenever we think that a previous decision is wrong, we
should reverse it. In general interest of certainty in the law, we must be sure that there is some very good
reason before we so act’. This illustrate that the house of law is very reluctant before using the practice
statement, it examine whether it is really relavent to reverse the binding precedent. It actually aware of the
need for certainty.

2. Moderne practice of the Court of Appeal (CA

a) Relationships between the HL and the CA

Tensions have developed between the CA and the HL -> Schorsch GMBH v. Hennin [1975] CA : lord
Denning argued that circumstances had changed so much since the house of lords ruling in Havana
Raylways. Denning sais that the CA would have the right not to apply the sterling damages rule which was
created by the HL. Dif culty : the SDR was created by the HL so the CA had to apply it. ‘why have we in
England insisted on a judgement in sterling and nothing else. It is I think because of our faith in sterling. It
was a stable currency which hd no equal. Things are different now (…) those reasons for the rule have now
ceased to exist. Seeing that reasons no longer exist, we are at liberty to discard the rule itself. Cessante
ration legis cassat ipsa lex’.
This explanation is a good one -> this obviously goes against the doctrine of the hierarchy of Courts. But the
HL disagrees. In the Milliangos case Lord Simon rejects his idea : ‘the CA is absolutely bound by a decision
of the HL’. His argument was too creative for the HL. Important point related to the issue of exibility : if
the CA decides that a decision of the HL is wrong, it has the duty to apply it after all. (the practice statement
does not apply to the CA, it is only available to the HL or the SC.

b) Can the court of appeal depart from its own previous decisions ?

Young v. Bristol airplane CO LTD [1944] CA : Lord Greene said ‘this court is bound to follow previous
decisions of its own. The only exceptions to this rule are those (…) we here summarize :
- The court is entitled and bound to decide which of con icting decisions of its own it will follow
- The court is bound to refuse to follow a decision of its own which, though not express overruled, cannot,
in its opinion stand with a decision of HL,
- The court is bound to refuse to follow a decision of its own if it is satis ed that the decision was given per
incuriam’. But it is rare and very hard because the CA will have to explain why it is wrong.
=> Very limited circumstances.

The circumstances of this affair were not mentioned in the Young v. Bristol aeroplane’s case. In Davis and
Johnson [1978] CA, Lord Denning attempted to add new rules and liberalize the law. The CA was
considering the case of a victim of domestic violence : the issue was whether an injunction could be granted
under the Domestic violence and matrimonial proceedings Act 1976, where the effect would be to exclude
someone from property in which they have a proprietary interest. In 2 earlier cases, the court of appeal had
said that injunction was not available in such cases. BUT in the instant case, a majority refused to follow
previous cases. Lord Denning said : ‘on principle, it seems to me that, while this court should regard itself as
normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it
is convinced that the previous decision was wrong. To my mind, this court should apply similar guidelines to
those adopted by the HL in 1966. Whenever it appears to this court that a previous decision was wrong, we
should be at liberty to depart from it if we think it right to do so. In my opinion, we should extend the
exception in Young v. Bristol aeroplane 1944 when it appears to be a proper case to do so’ -> He wanted to
introduce the practice statement to the CA.
• This case did not fall within one of the categories de ned by Bristol Aeroplane.
• Lord Denning was trying to make an argument that the requirement of justice would justify the AC
departing from its previous rulings in order to provide the woman with an injunction
• In normal circumstances the CA was bound by previous decisions but the consequences of this rule would
be very important :
- The HL may never have an opportunity to correct the error : and thus it may be perpetuated inde nitely
perhaps for ever.
- Even today a person of moderate means may be outside the legal aid scheme, and not be able to take his
case higher.
- Event if there is an appeal to the HL, it usually takes 12 months or more for it to reach a decision.
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 => In order to avoid all the delay and the injustice consequent upon it - ‘it seems to me that this court
being convinced that the 2 previous decisions were wrong, should have the power to correct them and give
these women the protection which parliament intended they should have’.

BUT the HL did not agree : rejection of Lord Denning’s argument : Lord Diplock said that ‘the CA occupies
a central, but an intermediate position in our legal system. The appropriate forum for the correction of the
CA’s errors is the HL, where the decision will at least have the merit of being nal and binding’.
-> Davis v Johnson CA was an unsuccessfully tempos to change the way in which the hierarchy of the
courts operated. The CA has the right to change its mind in the circumstances which were explained in
Bristol Aeroplane and has not the right to introduce others circumstances. When decision of a CA is wrong,
the only possibility to change it is a decision of HL under the principle of hierarchy of Courts.

CHAPTER II. Statutory interpretation

I. How judges interpret laws?

What are the means used by the judge in his task of interpretation ? There is not a unique mean, a unique
approach so it is not very easy to discuss it.

A. Why judges must interpret laws?

-> Would it mean that acts of parliament are not clear enough ?

In his relevant book The Concept f Law , Herbert L. A. Hart wrote ‘no vehicles in the park’ :
Certain interpretations of this written rule are fairly straightforward
- a car is a vehicl
- a bicycle ridden into the park may count as a vehicle
It is a very easy sentence but in relation to it, there is some discussion regarding the ‘penumbral cases’: there
are some circumstances when the application of this sentence is not obvious -> what about somebody on
roller-skates, or a child in a push- chair, or a disabled person in a wheelchair
-> we are confronted with this issue of the interpretation of written rules

R (Quintavalle) v Secretary of State for Health [2003] HL Lord Bingham

‘Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which
is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which
reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing
about the effect of a statutory provision, it is usually because the provision is, or is said to be, capable of
bearing two or more different meanings, or to be of doubtful application to the particular case which has
now arisen, perhaps because the statutory language is said to be inapt to apply to it, sometimes because the
situation which has arisen is one which the draftsman could not have foreseen and for which he has
accordingly made no express provision ’ = For the most part Lord Bingham is saying that Acts of Parliament
are expressed in language which is clear and unambiguous and give rise to no serious controversy.
However, he draws our attention to the reasons why certain statutory provisions may indeed be problematic
- Parties’ lawyers are trying to exploit ambiguities in a statutory provision
- Certain statutory provisions may indeed be capable of bearing two or more different meanings

Lord Binghman went on by pointing to a particular situation which is old legislation

‘There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when
Parliament used it and the rule that a statute is always speaking. The meaning of "cruel and unusual
punishments" has not changed over the years since 1689, but many punishments which were not then thought
to fall within that category would now be held to do so. The courts have frequently had to grapple with the
question whether a modern invention or activity falls within old statutory language. A revealing example is
found in Grant v Southwestern and County Properties Ltd [1975], where Walton J had to decide whether a
tape recording fell within the expression "document" in the Rules of the Supreme Court. Pointing out that the
furnishing of information had been treated as one of the main functions of a document, the judge concluded
that the tape recording was a document’ -> It can be challenging for the courts to apply old laws to our
modern reality. This is not the main task of the judge

B. The alleged methods of interpretation

-> Rules have grown up over time
- the literal rule
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 - the golden rule

- the mischief rule
BUT these rules are of largely historical importanc
-> It is discussed whether they really capture the way in which statutory interpretation takes place

Francis Bennion, Statutory Interpretation, 1st ed, 1984. He explained that in fact, there is not such a magic
single rule of interpretation. The central problem with the interpretation of statutes is that one ‘principle’ of
construction often produces a result contrary to another which seems equally applicable so it’s hard to
consider that this rules (golden or mischief ones) really exist : ‘The natural and reasonable desire that
statutes should be easily understood is doomed to disappointment. (...) If statutes must be obscure, let us at
least have simple devices to elucidate them. A golden rule would be best to unlock all mysteries. Alas, as this
book demonstrates, there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cure-
all rule of thumb. Instead there are a thousand and one interpretative criteria. Fortunately, not all of these
present themselves in any one case. (...) If striving could do it, a true golden rule would here be presented to
the reader. It can’t. Licking the wounds, let us face the truth. Acts of Parliament are prepared unscienti cally
and in haste. They seek to regulate a future which is certain only of constant surprise. Some embody a Civil
Service response to the lessons of practical administration. Others are the product of partisan politics, and
liable to swift reversal. Others again spring from shifting moralities, or embattled religions, or other fancied
certainties in an always uncertain world. Furthermore society is a coalition; and compromise invests almost
all of these well-intentioned measures. Here and there deals have been done. The drafter has then striven to
paper over the cracks’ = Bennion is suggesting that one can come across fairly quickly the different practices
the way that judges approach the interpretation of statute -> Some of these can be abstracted. But to say that
there are the so-called rules is misleading

It is essential to make a basic distinction between literal and purposive interpretation. We can create other
rules but the reality is that when the judge interprets acts of parliament, the main distinction is this one
-> An American case refers to it : Cabell v Markham (1945) : Justice Hand -> ‘Of course it is true that the
words used, even in their literal sense, are the primary and ordinarily the most reliable source of interpreting
the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a
mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes
always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.’ Literal interpretation : basic interpretation VS purposive interpretation : more
elaborate, complexe one. What is the method used by the UK judges ? To answer we have to consider the
link between judges and parliament : the judge has not the right to rewrite what parliament did.

To understand the distinction -> we need to think about the constitutional context of statuary interpretatio
-> the issue of judicial law making. In a traditional, ‘mythical’ way
- Parliament is meant to be the sovereign law-making body
- Judges are meant neither to create law, nor to involve themselves in politics or policy

Problem with the purposive interpretation -> it involves a judge asking himself questions about the purpose
of an Act -> This can involve a political element to judicial interpretation : this would be criticized. So any
trespassing into lawmaking through interpretation would be illegitimate. So that’s why historically, the judge
has resolved the question of interpretation by using the literal interpretation as this is the way to preserve the
distinction between his real business and the task of parliament. The assertion that the judiciary is apolitical
has led to the development of the practice of literal interpretation. Traditionally literal interpretation meant
that the judge had to limit their interpretive efforts to the four corners of the Act

When using this literal interpretation, there are certain presumptions that have grown up around how a statute
is to be interpreted
- presumption against the alteration of the common law
- presumption that the mens rea (mental element of the criminal rule) should be a part of a criminal offense
- presumption against the retrospective application of a statute
- presumption against the deprivation of an individual liberty, property, or rights
- presumption that legislation doesn't apply towards the Crown
- presumption against breach of international law
- presumption that words take their meaning from their context. The literal interpretation begins with words,
so they have to be understood in relation to their context. The word ‘context’ is very important -> what is
the meaning of the word ’context’, is it a large or limited one ? These presumptions will be used in the
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 event of ambiguity in a statutory provision. An important rule of literal interpretation is that words take
their meaning from their context. But it is important to know the extent of this context. Are debates in
Parliament (Hansard = of cial records of debates in parliament) part of this context? Can the judge use
what has been say during parliamentary debates to interpret the law ? Very hard question because if the
judge has the right to use it, there would be a kind of judgment of what was said during parliamentary
debates, it could been considered as an infringement in the area of parliament.

-> Pepper v Hart [1992] HL : Prior to this case, the courts had not been able to look at Hansard debates as
an aid to interpreting statute -> the exclusionary rule. This rule said that the courts can’t use Hansard
when interpreting the statute. The situation have changed after Pepper v Hard. The fundamental idea in the
exclusionary rule was that once we say that the courts can make use of records of what was said in
Parliament it would obviously involve looking outside of the four corners of the Act, moving away from
literal interpretation. In Pepper v Hart, the House of Lords took the opportunity to consider whether a
judge should or should not be allowed to use Hansard as evidence when he was trying to interpret an Act.
Lord Browne-Wilkinson (leading speech) began by reviewing the arguments as to why references to
Hansard should still be prohibited : ‘the reasons put forward for [the exclusionary rule] are rst, that it
preserves the constitutional proprieties leaving Parliament to legislate in words and the courts (...) to
construe the meaning of the words nally enacted; second, the practical dif culty of the expense of
researching Parliamentary material which would arise if the material could be looked at ; third, the need
for the citizen to have access to a known de ned text which regulates his legal rights; fourth, the
improbability of nding helpful guidance from Hansard’. Pepper v Hart went on to narrowly de ne the
occasions when a court could make reference to Hansard -> ‘My Lords, I have come to the conclusion
that, as a matter of law, there are sound reasons for making a limited modi cation to the existing rule
(subject to strict safeguards) (....) The exclusionary rule should be relaxed so as to permit reference to
Parliamentary materials where :
- a) legislation is ambiguous or obscure, or leads to an absurdity,
- b) the material relied upon consists of one or more statements by a Minister or other promoter of the
Bill together if necessary with such other Parliamentary material as is necessary to understand such
statements and their effect
- c) the statements relied upon are clear
-> Pepper v Hart moves away from the literal approach : Lord Browne-Wilkinson referred to ‘the
purposive approach to construction now adopted by the courts in order to give effect to the true intentions
of the legislature’. The Courts have departed from the old literal approach of statutory construction -> the
Courts were construing the legislation so as to give effect to the intention of Parliament. Where the words
used in the Act by Parliament are obscure or ambiguous, the parliamentary material in Hansard may throw
considerable light not only on the mischief that the Act was designed to remedy, but also on the purpose of
the legislation, and its expected effects. Lord Wilkinson’s argument also stressed that there is a historical
shift in judicial interpretation -> this is due to the impact of purposes styles of European interpretation.
Pepper v Hart is a symptom of change : old practice of literal interpretation has broken down. Move from
the literal interpretation to the purposive interpretation. This is another illustration that parliament is not so
sovereign as it was in the 19th century.

II. The impact of European methods of interpretation

There has been a change of direction in the interpretation of statutes. Judges have to be acknowledged as
lawmakers -> Judges can add words into a statute. It was a constitutional ction that judges merely
interpret the law or discover what the common law has always been. The judge has the right to introduce
some elements in the acts of parliament. We have to consider the modern practice of judicial interpretation
Judges have taken on a much more active role in interpretation. They are much more willing to use
purposive methods of interpretation -> this can be linked to recent developments such as the impact of
European law and the impact of European human rights law

Bulmer v Bollinger SA [1974] CA : early case about intellectual property as European Community law
provided regulations on the labelling of wine. Lord Denning : ‘What are the English courts to do when they
are faced with a problem of interpretation? They must follow the European pattern. No longer must they
examine the words in meticulous detail. No longer must they argue about the precise grammatical sense.
They must look to the purpose or intent. To quote the words of the European court in the Da Costa case
[1963], they must deduce "from the wording and the spirit of the Treaty the meaning of the Community rules.
They must divine the spirit of the Treaty and gain inspiration from it. If they nd a gap, they must ll it as
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 best they can. They must do what the framers of the instrument would have done if they had thought about it.
So we must do the same. Those are the principles, as I understand it, on which the European court acts’. The
judge must divine, guess what was the intention of the author of the act
-> The judge is being asked to imagine that he is a framer of the relevant Community rule
-> This is a long way from literal interpretation which doesn't involve any questions of the ultimate purpose
of the legislation
= Complete change of direction in how statute is to be interpreted -> the judge has to use his understanding
to ll the gaps and to resolve the ambiguities that are present within the ambiguous rules

McCarthys Ltd v Smith [1980] CA, Lord Denning -> “It is important now to declare - and it must be made
plain - that the provisions of article 119 of the E.E.C. Treaty take priority over anything in our English
statute on equal pay which is inconsistent with article 119. That priority is given by our own law. It is given
by the European Communities Act 1972 itself. Community law is now part of our law: and, whenever there
is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law
which overrides any other part which is inconsistent with it’
-> Art. 119 of the Treaty of Rome takes priority over inconsistent provisions in British statute
-> This priority of European law over British law is given by the law of the UK itself : ECA of 1972

How interpretation works now

• Pickstone v Freemans [1989] HL : the House of Lords had to interpret Section 1.2 of the Equal Pay Act of
1970 (= a domestic act). The key question that the House had to resolve in this case was whether the
amendment of the British Act actually did give effect to the obligations under art. 119 of the Treaty of
Rome. Lord Nichols determined that the purpose of art. 119 was
- to insure consistency in the legal systems of the member states across the Community
- to improve working conditions
The House should have to read the UK Act broadly in order to make it consistent with the European law,
but this was dif cult given the wording in the Act itself. Lord Keith : ‘The words must be construed
purposively in order to give effect to the manifest broad intention of (...) Parliament’ = It is now open to
the Court to give a wide departure from the literal meaning of the Act in order to make it consistent with
the terms of EU law

• In Lister v Forth Dry Dock Engineering [1989] : the House of Lords went even further than in Pickstone
-> purposive interpretation to a statutory instrument = a piece of secondary legislation. The House implied
words into the terms of the regulation so as to make it compatible with obligations under European law.
- Lord Templeman : ‘the courts of the UK are under a duty to follow the practice of the European Court
of Justice (ECJ) by giving a purposive construction to Regulations issued for the purpose of complying
with Directives’.
- Lord Oliver : ‘if the legislation can reasonably be construed so as to conform with those obligations –
obligations which are to be ascertained not only from the wording of the relevant Directive but from the
interpretation placed upon it by the ECJ at Luxembourg - such a purposive construction will be applied
even though, perhaps, it may involve some departure from the strict and literal application of the words
which the legislature has elected to use. Pickstone v Freemans Plc has established that the greater
exibility available to the court in applying a purposive construction to legislation designed to give
effect to the United Kingdom's Treaty obligations to the Community enables the court, where necessary,
to supply by implication words appropriate to comply with those obligations’ -> The court can depart
from the literal meaning of the words used in the UK statute and can add/imply words to make it
consistent with EU law.

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Sur le fond : il ne serait pas raisonnable de se limiter à une
simple récitation de cours. Cela ne présenterait aucun intérêt
pour vous en L3. Il faudrait essayer de proposer une
problématique qui montre que vous avez ré échi sur les
différents sujets. Vous pouvez décloisonner les cours et utiliser
des compétences acquises dans d'autres enseignements
Sur la forme : il n'est pas du tout attendu d'utiliser le plan
français... puisque nous sommes dans un contexte
anglophone. Il faut, évidemment, une brève introduction.
Ensuite, chacun est libre d'utiliser un plan en deux ou trois
parties. Chacun est libre de faire comme il le souhaite
Le plan apparent est loin d'être utile.
Il n'y a pas d'attentes particulières quant au nombre de mots
ou de lignes. Chacun doit organiser sa préparation en tenant
compte de la contrainte de la durée de l'épreuve qui est une
heure.

The following issues are to be prepared for the final test:

- The Judicial Committee of the Privy Council
- The binding precedent and the Court of Appeal
- The obiter dictum statement of a case
- Primary and secondary legislations
- The purposive interpretation of statutes

QCM années antérieures

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