Aids to construction

In attempting to decide upon the precise meaning of any statute, judges use well established rules of interpretation, of which there are three primary ones, together witha variety of other secondary aids to construction

 The rules of statutory interpretation are as follows:

• Intrinsic assistance

This is help which is actually derived from the statute which is the object of interpretation. The judge uses the full statute to understand the meaning of a particular part of it. Assistance may be found from various parts of the statute, such as: the title, long or short; any preamble, which is a statement preceding the actual provisions of the Act; and schedules, which appear as detailed additions at the end of the Act. Section headings or marginal notes may also be considered, where they exist.

• Extrinsic assistance

Sources outside of the Act itself may, on occasion, be resorted to in determining the meaning of legislation. For example, judges have always been entitled to refer to dictionaries in order to find the meaning of non-legal words. The Interpretation Act 1978 is also available for consultation with regard to the meaning of particular words generally used in statutes. Judges are also allowed to use extrinsic sources to determine the mischief at which particular legislation is aimed. For example, they are able to examine earlier statutes and they have been entitled for some time to look at Law Commission reports, Royal Commission reports and the reports of other official commissions.  Until fairly recently, Hansard, the verbatim report of parliamentary debate, literally remained a closed book to the courts. In Pepper v Hart however, the House of Lords decided to overturn the previous rule. In a majority decision, it was held that, where the precise meaning of legislation was uncertain or ambiguous, or where the literal meaning of an Act would lead to a manifest absurdity, the courts could refer to Hansard’s Reports of Parliamentary Debates and Proceedings as an aid to construing the meaning of the legislation.  The operation of the principle in Pepper v Hart was extended in Three Rivers DC v Bank of England to cover situations where the legislation under question was not in itself ambiguous but might be ineffective in its intention to give effect to some particular EC directive. Applying the wider powers of interpretation open to it in such circumstances, the court held that it was permissible to refer to Hansard in order to determine the actual purpose of the statute.  The Pepper v Hart principle only applies to statements made by ministers at the time of the passage of legislation, and the courts have declined to extend it to cover situations where ministers subsequently make some statement as to what they consider the effect of a particular Act to be  v BMI

Books of authority

In the very unusual situation of a court being unable to locate a precise or analogous precedent, it may refer to legal textbooks for guidance. Such books are subdivided, depending on when they were written. In strict terms, only certain works are actually treated as authoritative sources of law. Legal works produced after Blackstone’s Commentaries of 1765 are considered to be of recent origin and, although they cannot be treated as authoritative sources, the courts may consider what the most eminent works by accepted experts in particular fields have said in order to help determine what the law is or should be.

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Advantages of the use of delegated legislation

The advantages of using delegated legislation are as follows:

• Timesaving

Delegated legislation can be introduced quickly where necessary in particular cases and permits rules to be changed in response to emergencies or unforeseen problems.  The use of delegated legislation, however, also saves parliamentary time generally. Given the pressure on debating time in Parliament and the highly detailed nature of typical delegated legislation, not to mention its sheer volume, Parliament would not have time to consider each individual piece of law that is enacted in the form of delegated legislation.

• Access to particular expertise

Related to the first advantage is the fact that the majority of Members of Parliament simply do not have sufficient expertise to consider such provisions effectively. Given the highly specialised and extremely technical nature of many of the regulations that are introduced through delegated legislation, it is necessary that those who are authorised to introduce the legislation should have access to the external expertise required to formulate such regulations. With regard to bylaws, it practically goes without saying that local and specialist knowledge should give rise to more appropriate rules than reliance on the general enactments of Parliament.

• Flexibility

The use of delegated legislation permits ministers to respond on an ad hoc basis to particular problems as and when they arise, and provides greater flexibility in the regulation of activity which is subject to the ministers’ overview.

CASE LAW

The foregoing has highlighted the increased importance of legislation in today’s society but, even allowing for this and the fact that case law can be overturned by legislation, the UK is still a common law system, and the importance and effectiveness of judicial creativity and common law principles and practices cannot be discounted. ‘Case law’ is the name given to the creation and refinement of law in the course of judicial decisions

Evaluation

The foregoing has set out the doctrine of binding precedent as it operates, in theory, to control the ambit of judicial discretion. It has to be recognised, however, that the doctrine does not operate as stringently as it appears to at first sight, and there are particular shortcomings in the system that must be addressed in weighing up the undoubted advantages with the equally undoubted disadvantages.

Disadvantages of case law

It should be noted that the advantage of flexibility at least potentially contradicts the alternative advantage of certainty, but there are other disadvantages in the doctrine which have to be considered. Amongst these are the following:

• Uncertainty

This refers to the fact that the degree of certainty provided by the doctrine of stare decisisis undermined by the absolute number of cases that have been reported and can be cited as authorities. This uncertainty is compounded by the ability of the judiciary to select which authority to follow, through use of the mechanism of distinguishing cases on their facts.

• Fixity

This refers to the possibility that the law, in relation to any particular area, may become ossified on the basis of an unjust precedent, with the consequence that previous injustices are perpetuated. An example of this was the long delay in the recognition of the possibility of rape within marriage, which was only recognised a decade ago

• Unconstitutionality

This is a fundamental question that refers to the fact that the judiciary are in fact overstepping their theoretical constitutional role by actually making law, rather than restricting themselves to the role of simply applying it. It is now probably a commonplace of legal theory that judges do make law. Due to their position in the constitution, however, judges have to be circumspect in the way in which, and the extent to which, they use their powers to create law and impose values. To overtly assert or exercise the power would be to challenge the power of the legislature. For an unelected body to challenge a politically supreme Parliament would be unwise, to say the least

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The legislative process

As an outcome of various historical political struggles, Parliament, and in particular the House of Commons, has asserted its authority as the ultimate source of law making in the UK. Parliament’s prerogative to make law is encapsulated in the notion of the supremacy of Parliament.  Parliament consists of three distinct elements: the House of Commons, the House of Lords and the Monarch. Before any legislative proposal, known at that stage as a Bill, can become an Act of Parliament, it must proceed through and be approved by both Houses of Parliament and must receive the royal assent.  Before the formal law making procedure is started, the Government of the day, which in practice decides and controls what actually becomes law, may enter into a process of consultation with concerned individuals or organisations.  Green Papers are consultation documents issued by the Government which set out and invite comments from interested parties on particular proposals for legislation.   After considering any response, the Government may publish a second document in the form of a White Paper, in which it sets out its firm proposals for legislation

Delegated legislation

In contemporary practice, the full scale procedure detailed above is usually only undergone in relation to enabling Acts. These Acts set out general principles and establish a framework within which certain individuals or organisations are given power to make particular rules designed to give practical effect to the enabling Act. The law produced through this procedure is referred to as ‘delegated legislation’.

As has been stated, delegated legislation is law made by some person or body to whom Parliament has delegated its general law making power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted; equally, however, it only has effect to the extent that its enabling Act authorises it. Any action taken in excess of the powers granted is said to be ultra vires and the legality of such legislation can be challenged in the courts, as considered below

The Deregulation and Contracting Out Act 1994 is an example of the wide-ranging power that enabling legislation can extend to ministers. The Act gives ministers the authority to amend legislation by means of statutory instruments, where they consider such legislation to impose unnecessary burdens on any trade, business, or profession. Although the DCOA 1994 imposes the requirement that ministers should consult with interested parties to any proposed alteration, it nonetheless gives them extremely wide powers to alter primary legislation without the necessity of following the same procedure as was required to enact that legislation in the first place. An example of the effect of the DCOA 1994 may be seen in the Deregulation Order 1996 which simplifies the procedures that private companies have to comply with in passing resolutions. The effect of this statutory instrument was to introduce new sections into the Companies Act 1985 which relax the previous provisions in the area in question. A second example is the Deregulation Order 1996 which sets out a model structure for appeals against enforcement actions in business disputes.

The powers under the DCOA 1994 were extended in the Regulatory Reform Act 2001. It should also be remembered that s 10 of the HRA allows ministers to amend primary legislation by way of statutory instrument where a court has issued a declaration of incompatibility 

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Private law and public law

At one level, the division relates specifically to actions of the State and itsfunctionaries vis à vis the individual citizen, and the legal  manner in which, and form of law through which, such relationships are regulated; that is, public law. In the 19^th century, it was at least possible to claim, as Dicey did, that there was no such thing as public law in this distinct administrative sense, and that the power of the State with regard to individuals was governed by the ordinary law of the land, operating through the normal courts. Whether such a claim was accurate when it was made, which is unlikely, there certainly can be no doubt now that public law constitutes a distinct and growing area of law in its own right. The growth of public law, in this sense, has mirrored the growth and increased activity of the contemporary State, and has seen its role as seeking to regulate such activity. The crucial role of judicial review in relation to public law will be considered in some detail below, at 1.5.6. There is, however, a second aspect to the division between private and public law. One corollary of the divide is that matters located within the private sphere are seen as purely a matter for individuals themselves to regulate, without the interference of the State, whose role is limited to the provision of the forum for deciding contentious issues and mechanisms for the enforcement of such decisions. Matters within the public sphere, however, are seen as issues relating to the interest of the State and general public and are, as such, to be protected and prosecuted by the State. It can be seen, therefore, that the category to which any dispute is allocated is of crucial importance to how it is dealt with. Contract may be thought of as the classic example of private law, but the extent to which this purely private legal area has been subjected to the regulation of public law in such areas as consumer protection should not be underestimated. Equally, the most obvious example of public law in this context would be criminal law. Feminists have argued, however, that the allocation of domestic matters to the sphere of private law has led to a denial of a general interest in the treatment and protection of women. By defining domestic matters as private, the State and its functionaries have denied women access to its power to protect themselves from abuse. In doing so, it is suggested that, in fact, such categorisation has reflected and maintained the social domination of men over women.

SOURCES OF LAW

This section examines the various ways in which law comes into existence. Although it is possible to distinguish domestic and European sources of law, it is necessary to locate the former firmly within its wider European context; in line with that requirement, this section begins with an outline of that context.

LEGISLATION

If the institutions of the EC are sovereign within its boundaries then, within the more limited boundaries of the UK, the sovereign power to make law lies with Parliament. Under UK constitutional law, it is recognised that Parliament has the power to enact, revoke or alter such, and any, law as it sees fit. Coupled to this wide power is the convention that no one Parliament can bind its successors in such a way as to limit their absolute legislative powers. Although we still refer to our legal system as a common law system, and although the courts still have an important role to play in the interpretation of statutes, it has to be recognised that legislation is the predominant method of law making in contemporary society. It is necessary, therefore, to have a knowledge of the workings of the legislative procedure through which law is made.

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CATEGORIES OF LAW

There are various ways of categorising law, which initially tends to confuse the nonlawyer and the new student of law. What follows will set out these categorisations in their usual dual form whilst, at the same time, trying to overcome the confusion inherent in such duality. It is impossible to avoid the confusing repetition of the same terms to mean different things and, indeed, the purpose of this section is to make sure that students are aware of the fact that the same words can have different meanings, depending upon the context in which they are used

Common law and civil law

In this particular juxtaposition, these terms are used to distinguish two distinct legal systems and approaches to law. The use of the term common law’ in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the US, but many other Commonwealth and former Commonwealth countries retain a common law system. The term ‘civil law’ refers to those other jurisdictions which have adopted the European continental system of law, which is derived essentially from ancient Roman law but owes much to the Germanic tradition.  The usual distinction to be made between the two systems is that the former, the common law system, tends to be case centred and, hence, judge centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts, whereas the latter, the civil law system, tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both of these views are extremes, with the former overemphasising the extent to which the common law judge can impose his discretion and the latter underestimating the extent to which continental judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the European Court of Justice which was established, in theory, on civil law principles, is in practice increasingly recognising the benefits of establishing a body of case law. It has to be recognised, and indeed the English courts do so, that although the ECJ is not bound by the operation of the doctrine of stare decisis it still does not decide individual cases on an ad hoc basis and, therefore, in the light of a perfectly clear decision of the ECJ, national courts will be reluctant to refer similar cases to its jurisdiction. Thus, after the ECJ decided in Grant v South West Trains Ltd that Community law did not cover discrimination on grounds of sexual orientation, the High Court withdrew a similar reference in R v Secretary of State for Defence ex p Perkins

Common law and statute law

This particular conjunction follows on from the immediately preceding section, in that common law’ here refers to the substantive law and procedural rules that have been created by the judiciary, through their decisions in the cases they have heard. Statute law, on the other hand, refers to law that has been created by Parliament in the form of legislation. Although there was a significant increase in statute law in the 20th century, the courts still have an important role to play in creating and operating law generally, and in determining the operation of legislation in particular. 

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THE NATURE OF LAW

To a great extent, business activity across the world is carried on within a capitalist, market-based system. With regard to such a system, law provides and maintains an essential framework within which such business activity can take place, and without which it could not operate. In maintaining this framework, law establishes the rules and procedures for what is to be considered legitimate business activity and, as a corollary, what is not legitimate. It is essential, therefore, for the businessperson to be aware of the nature of the legal framework within which they have to operate. Even if they employ legal experts to deal with their legal problems, they will still need to be sufficiently knowledgeable to be able to recognise when to refer matters to those experts. It is the intention of this textbook to provide business students with an understanding of the most important aspects of law as they impinge on various aspects of business activity. One of the most obvious and most central characteristics of all societies is that they must possess some degree of order, in order to permit their members to interact over a sustained period of time. Different societies, however, have different forms of order. Some societies are highly regimented with strictly enforced social rules, whereas others continue to function in what outsiders might consider a very unstructured manner, with apparently few strict rules being enforced.Order is, therefore, necessary, but the form through which order is maintained is certainly not universal, as many anthropological studies have show  In our society, law plays an important part in the creation and maintenance of social order. We must be aware, however, that law as we know it is not the only means of creating order. Even in our society, order is not solely dependent on law, but also involves questions of a more general moral and political character. This book is not concerned with providing a general explanation of the form of order. It is concerned, more particularly, with describing and explaining the key institutional aspects of that particular form of order that is legal order.  The most obvious way in which law contributes to the maintenance of social order is the way in which it deals with disorder or conflict. This book, therefore, is particularly concerned with the institutions and procedures, both civil and criminal, through which law operates to ensure a particular form of social order by dealing with various conflicts when they arise. Law is a formal mechanism of social control and, as such, it is essential that the student of law is fully aware of the nature of that formal structure. There are, however, other aspects to law that are less immediately apparent but of no less importance, such as the inescapably political nature of law. Some textbooks focus more on this particular aspect of law than others and these differences become evident in the particular approach adopted by the authors. The approach favoured by the authors of this book is to recognise that studying English law is not just about learning legal rules; it is also about considering a social institution of fundamental importance.

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