Session 2 Law Making. Fundamentals of law NEU

Fundamentals of Law

1. THE LAW MAKING

2. LEGISLATION/ STATUTES Made By Parliament Sources of English law EUROPEAN LAW Is no more a main source of English law after BREXIT. Some of EU Laws still remain though CASE LAW/ PRECEDENTS Made by courts 2 Source of law is external format of the law (document that contains legal provisions). Do you know that England belongs to Common Law tradition/family, while Vietnam belongs to Civil Law tradition/family?

3. European law 3

4. EU principal institutions 4 🐟 COUNCIL OF THE EU Consist of Ministers in the field of discussion EUROPEAN COUNCIL Head of state or government Provide political guidelines for development EUROPEAN COMMISSION One rep from each state Excutive body EUROPEAN PARLIAMENT 751 members, elected by people in state EUROPEAN COURT OF JUSTICE 28 judges, 6 year-term

5. EU laws 5 TREATIES Agreements of EU members Most important are Rome 1957, Maastricht 1992 revised by Lisbon 2009 REGULATIONS Impose uniformity of law throughout EU DIRECTIVES Tool for harmonization of law between members Set aim, silent on methods DECISIONS Affect only particular individual or company Empower it to do smt or prevent from doing smt

6. List of Retained EU Law 6 🐟

7. Legislation 7

8. 8 English Parliament STRUCTURE House of Lords 26 Lords Spiritual (archbishops and bishops); 765 Lords Temporal, proposed by the Appointments Commission, selected by PM and appointed by the King House of Commons 650 representatives elected by the people, on 5 years term POWER TO MAKE LAW Direct legislation Parliament passes Act Indirect/delegated legislation Parliament authorizes government or local authority to regulate some matters by passing enabling Act PROCEDURE Bill may be proposed by Government Minister or Private member Do you know the Lord ranking? Duke, Marques, Earl, Viscount, Baron

9. Steps to bring a Bill to Parliament Government issues Green Paper which sets out legislative discussions After consultation with interest groups, White Paper issued, adding the intention of Bill Government minister or private Parliament member propose a Bill to Parliament 9

10. English Parliamentary Procedure 2 nd reading Committee stage 3 rd reading 2005 Bill Bill Bill Publication of bill only No debate Debate on general merit No amendments to the bill Amended bill out to the House for further discussions, amendments and approval Final approval at House At Common, only superficial changes may be made The procedure described hereunder is applied in each of the Houses. Most Bill (draft of law) are initially processed in the House of Commons, and then go through the same procedures in the House of Lords Report stage Bill 1 st reading Bill Bill examined by standing committee, section by section and could be amended House may act as committee

11. English Parliamentary Procedure 2 CONSIDERATION STAGE Each House considers & agrees amendments of other House ROYAL ASSENT J ust a formal step 11

12. 12 Delegated legislation Parliament can exercise different controls over delegated legislation. Make law, delegate power Make statutory instruments or by-laws as delegated Parliament Government or local authorities

13. Order in Council Emergency Powers Acts 1939 and 1984 give law-making powers to Privy Council in case of emergency. Statutory instruments Made by Government departments to execute general principles of policy in Enabling Act. About 3000 instruments are created annually. By-laws Made by local authorities or other body with statutory powers, to regulate the facilities which they provide. 13 Types of delegated legislation

14. 14 + & - of delegated legislation ADVANTAGES DISADVANTAGES Saving of parliamentary time Loss of Parliamentary control Specialist knowledge Flexibility Bulk and frequent changes Legislation can take place when Parliament is not sitting

15. 15 Tools for legislative interpretation 1. INTRINSIC AIDS 3. JUDICIAL PRINCIPLES (developed by the courts) 2. EXTERNAL AIDS 4. JUDICIAL PRESUMPTION

16. 16 Terms def. Side notes Preamble Title Interpretation Act 1978 Commission Report INTRINSIC AIDS EXTERNAL AIDS Intrinsic and External Aids Hansard v

17. 17 Judicial principles of statutory interpretation The act is interpreted in accordance with its purpose (similar, but broader than Mischief Rule) Meaning suitable to the purpose No internal contradiction Ordinary meaning of words E.g.: Fisher v Bell “a flick knife cannot be manufactured, sold, hired, offered for sale or hire, lent or given to another person” - Restriction of Offensive Weapons Act 1959 -> ROWA 1961 added “expose” Words are understood in their context. E.g.: dogs, cats, and other animals are allowed to be kept inside household

18. Interpretation presumptions Presumptions No alteration of common law No repeal of other statutes Proper compensation Clear words on liberty No retrospective effect Gaps as it No Crown binding Unless the Statute contains express words to the contrary . Criminal charge with proof Only UK

19. Case law / Precedent 19

20. Courts and case law

21. General co urt hierarchy Trial courts Lowest court in the system Where disputing parties bring their case to Courts decide case for the first time Disagreeing party may appeal decision to the higher court Court of Appeal Hear appealed decisions of trial courts Decision of CA is final and can not be reviewed on request of party Supreme Court Conduct judicial review: hear cases of greatest public or constitutional importance affecting the whole population Ensure the safety uniformity in the adjudication work 21

22. 22 UK Courts (simplified) SUPREME COURT OF THE UNITED KINGDOM COURT OF APPEAL HIGH COURT OF JUSTICE Criminal Division Civil Division Crown Court Queen’s Bench Division Family Division Chancery Division Magistrates’ Court County Court Highest Court of UK, established in 2009 Decisions bind all other UK courts Can depart from its own previous decision Decisions of Criminal Division bind all criminal courts below Decisions of Civil Division bind all civil courts below Decisions bind Crown courts, Magistrates’ courts and County courts Decisions do not bind any UK courts

23. Binding precedent BINDING PRECEDENTS: Decisions of higher courts bind (should be followed by) the lower courts within the same system PERSUASIVE DECISIONS: Decisions of courts do not bind (must not be followed, but may be followed by) the courts of other system. 23 Key parts of a Court Decision Facts Obiter Dicta Ratio Decidend i Decision Rationales for Decision This is the binding part of decision

24. Reverse and Overrule decisions Court of Appeal may, in reviewing judgment of lower court, decide to overturn decision of lower court It mean that decision of lower court is reversed (winner now become loser and vise-versa) Ground for such decision: case was incorrectly decided in the light of current law To reverse a case does not affect validity of any precedents Court, in applying a previous precedent, may decide that such precedent is no longer represent the law By so doing, court overrule a precedent 24 Court also may decide not to accept/follow a precedent by distinguishing facts of cases In this situation, precedent is still valid and could be accepted by other courts There are some other technics to disregard a precedent

25. 25 Case name and citation Fisher v Bell [1960] 3 WLR 919 QBD Name of Plaintiff (person who brought case to court) or Appellant (person who appeal the lower court decision) Abbreviated Latin word versus , means against Name of Defendant (in civil cases) or the Accused (in criminal cases) Year, when decision rendered by the court Case number Volume number of Law Report Abbreviated name of Law Report: Weekly Law Report Name of court: Queen’s Bench Division Law Report is printed collection of all decisions of certain court

26. 26 + & - of binding precedent ADVANTAGES DISADVANTAGES Certainty Uncertainty Flexibility Rigidity Practical nature Retrieval problems Speed Haphazard/unpredicted development Undemocratic

27. Thank you! Welcome all questions, comments and discussions! 27

28. 28 Imagine in your jurisdiction , it is an offence ‘to bring any concealed notes, sketches, books or aids relevant to the examination into an examination room’. The Education Minister said in parliamentary debate that this Article was intended to give examination monitors stronger powers to prevent cheating. Apply the approriate j udicial principles (could be one or more) of statutory interpretation to solve the following scenarios: a. Tobey is caught in an exam room receiving instructions over a mini radio hidden in his shirt. b. Chrisia accidentally leaves notes in her pocket when she enters the exam room. Thirty minutes later she realises what she has done and hands them to the exam monitor. c. Demi writes down some notes during an exam. She finishes early and leaves the notes on her desk. Loy, another exam candidate, is caught reading them.