Common Law is Developed by Judges

What Is The ‘Common Law’ And Where Can It Be Found?

Common law is developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statues or executive branch action. A “common law system” is a legal system that gives great precedented weight to common law1, on the principle that it is unfair to treat similar facts differently on different occasions2. The body of precedent is called “common law” and future decisions are bound by it. In future cases, when parties disagree on what the law is, an idealized common law court looks to past presidential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stara desics). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating precedent3. Thereafter, the new decision becomes precedent, and will bind future courts. However, the development of the common law doctrine in many cases is now of historical interest only. Although the basic principle is preserved, statutory changes have been made which modify the effects of many land mark cases.

How Does Judicial Precedent Work?

It evolved to the extent that it is hard to imagine that The English or any other system for that matter without any form of precedence. The current status is that it is very much in its traditional belief that an English judge ought to decide like cases from the existing law.

The idea of Case law is based on two points:

a] Binding Precedent – this simply means that the decision of the court will hold water and must be followed by the court lower than it. A decision of the court has two parts

I.e. a Ratio Decedendi and Obiter Dicta.

b] Ratio Decendendi means the crux of the decision or the main result in itself whilst Obiter Dicta simply mean anything said in the process and is often only persuasive authority.

This ties in with the hierarchy of the courts. Simply put the higher the court the more effect it has on precedent. Only the House of Lords can depart from it’s own decision and can certainly not follow any court decision below it. The centralised nature of the United Kingdom legal system puts it difficult for the non-adoption of the Precedent doctrine.

From a jurisprudential point of view, the positivists believe that the law must be seen to be progressing naturally based on the idea of separation of laws and morals. For example Professor Hart believes that Precedents are a source of secondary power conferring rules emanating from the judiciary to govern legal relationships. This lies inherently with precedents close links with history. In this respect both these concepts are so interrelated. In the United Kingdom, laws are derived from various sources like legislation, conventions, customs and other rules. Since justice is a concept closely associated with the Judiciary it was important throughout history a comprehensive collection of laws be made.

How Are Statutes And Secondary Legislation Passed And Where Can They Be Found?

Secondary legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of secondary legislation but it can also include Rules or Codes of Practice. Secondary legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act (also known as primary legislation) would have provisions that allow for future secondary legislation to alter the law to differing degrees. These changes range from the technical, like altering the level of a fine, to fleshing out Acts with greater detail; often an Act contains only a broad framework of its purpose and more complex content is added through secondary legislation.

Statutory instruments (SIs) are a type of secondary legislation. Approximately 3000 SIs are issued each year, making up the bulk of secondary legislation. About two-thirds of SIs are not actively considered before Parliament and simply become law on a specified date in the future. SIs are normally drafted by the legal office of the relevant government department. Consultations often take place with interested bodies and parties. The Delegated Powers Scrutiny Committee (established in 1992) keeps under constant review the extent to which legislative powers are secondary by Parliament to government ministers, and examines all Bills with delegating powers which allow SIs to be made before they begin their passage through the House. 
There is an informal understanding in the Lords that, when the secondary Powers Committee has approved provisions in a Bill for secondary powers, the form of those powers should not normally be the subject of debate during the Bill’s subsequent passage. The House of Commons has no equivalent committee.

What Rules Of Statutory Interpretation Are Employed By The Judiciary?

Judges are called upon to ‘interpret’ statutes where their meaning is unclear. This can be due to ellipsis where the drafter does not use words he considers are necessarily implied. The draftsman may use broad terms allowing the judge to apply the term to the specific context in hand. This may be unintentional eg ‘vehicle’, or intentional if an issue is politically contentious. Unexpected applications may arise that the draftsman could not have predicted eg Telegraph Act 1869 was passed before the invention of the telephone. There may be draftsman’s error eg an erroneous reference to another statute. Judges cannot ‘re-write’ statutes, but they can and do ‘interpret’ their meaning.

There have historically been a number of methods used for interpreting statutes, today there is no strict construction but a purposive approach is taken ie affecting the true purpose of the legislation. This does not intend to discover what parliament intended but what the meaning is of the words they chose. In practice, this meaning will differ from person to person, over time and in response to differing circumstances.

Aids to interpretation – 1. The statute must be read as a whole, i.e. words must be considered in the context of the whole statute, 2. The ‘long title’ of the statute, 3. Preamble, but cannot prevail over clear enacting words, 4. Headings, but cannot prevail over clear enacting words, 5. Side-notes, but cannot prevail over clear enacting words, 6. Punctuation, but cannot prevail over clear enacting words.

External aids to interpretation – 1. Historical setting, i.e. the general context in which the statute was enacted, 2. Dictionaries, 3. Practice, e.g. commercial usage of a term, 4. Related statutes, 5. Legislative antecedents, ie where the provision has been re-enacted in a similar form should only be used if ambiguous, 6. Statutory instruments, only where subordinate legislation has the power to amend the Act or if ambiguous where the regulation is clear, 7. Official reports, where the report has detailed the ‘mischief’, 8. Treaties are not part of English law unless incorporated, but there is an assumption Acts do not breach international law, 9. Parliamentary materials, are not supposed to be used but Hansard is often referred to and the rule has recently been relaxed.

The Effect Of The Human Rights Act 1998

The new Act will take precedence over existing rules of common law and equity and over delegated legislation. As it’s consequences will be far reaching, it is proposed to use as an example, the way in which it may effect criminal proceedings.

By Clause 6 (1) it will be “unlawful for any public authority to act in a way which is incompatible with one or more Convention Rights”. Clause 6 (3) (a) makes it clear that courts and tribunals at all levels are within the definition of “public authority” for this purpose. Clause 2 (1) provides that in determining any question which has arisen under the Act in connection with a Convention rights, all courts and tribunals must take into account any relevant judgment of the European Court of Human Rights, opinion of the European Court of Human Rights, or decision of the Committee of Ministers of the Council of Europe.

So what powers will the courts have to protect Convention Rights? Clause 8 (1) enables courts to grant any remedy which is within their normal powers and which they consider “just and appropriate”. In the context of criminal trials, the court will have powers inter alia to stay a prosecution as an abuse of process, to recognise new defences, to quash an indictment, to direct a jury that they should not draw adverse inferences from a defendant’s silence, to exclude evidence, or to allow a submission of no case to answer. And the Court of Appeal will of course have the power to quash a conviction where the prosecution involves a violation of Convention rights, or where there has been a breach of the right to a fair trial in Article 6 as interpreted by the European Court of Human Rights.

Under the new legislation, it will be the first duty of the court to avoid inconsistency by “reading down” overboard legislation or implying necessary safeguards into the Act. There is already an established body of authority in the Community law context which illustrates how far it is possible for courts to go in interpreting statutory provisions so as to bring them into conformity with E. C. law. And, the Privy Council has held that provisions of constitutional human rights legislation “call for a generous interpretation, avoiding what has been called the “austerity of tabulated legalism” suitable to give individuals the full measure of the fundamental rights and freedoms referred to”1.