ABE Principles of Business Law 2008-1
.pdf
Common Law, Equity and Statute Law 45
K. APPRAISAL OF STATUTE LAW
Advantages
We can set these out as follows:
Statute law can both make new law and abolish obsolete or bad law.
As it originates from a legislating body, separate as such from the judicature and superior to it, law making in this way provides for an advantageous division of labour.
The law is known before it is enforced. (This is not entirely true, for some statutes were "ex post facto", i.e. penalise past acts, or validate past breaches of the law.)
It is not dependent on the accident of litigation, but can come into force at any time to repair a defect in the legal system, without waiting for a case to arise on it.
Statute law is, theoretically, clear and easily accessible, ready for immediate use, and embodied in an authoritative formula.
It is less bulky than case law or precedents.
It can systematise, by intelligible codification, the complex rules of case law.
Disadvantages
These are as follows:
Very often, in an effort to formulate a comprehensive statute, the resulting enactment is diffuse and vague. This means that the judges, in their task of enforcing the law, are compelled to exercise great pains and ingenuity in interpreting the words of the statute.
The advantages of certainty and definiteness may be outweighed by conservatism or archaism. In other words, a statute is apt to lag behind public opinion in the face of changing circumstances of the age and society. Moreover, many statutes are not always the result of practical difficulties met with, but are the embodiment of academic speculation, and party predilections.
There is less wealth of detail in a statute, but more formality. It may be logically incomplete.
A statute may do injustice if it applies to a case in a way not foreseen by Parliament.
L. DELEGATED LEGISLATION
Definition
Delegated legislation refers to the exercise of a legislative power, granted ultimately by Parliament, by a subordinate body such as a local authority, a public corporation, the Supreme Court, or a university.
Many modern statutes confer authority upon persons and bodies to issue regulations which are legally binding and which, if disobeyed, may involve those disregarding them in some penalty. A characteristic of such delegated legislation, however, is that it is only exercised by consent of Parliament, and the powers may be repealed or withdrawn at any time.
Moreover, the exercise of delegated legislation is very strictly interpreted by the courts, which have power to declare regulations so made as "ultra vires" (beyond the powers granted) if they do not fall within the statute granting them.
©ABE and RRC
46 Common Law, Equity and Statute Law
Types
(a)Orders in Council
Although the royal prerogative exercised by the Norman kings of promulgating laws in the Great Council has fallen into disuse, many modern statutes delegate to the Queen- in-Council the power to issue Orders in Council, particularly in times of national emergency.
(b)Ministerial Orders and Departmental Legislation
These consist of the issue of orders and regulations by Ministers or by government departments under powers conferred on them by statute. This type of legislation takes a number of forms of which the following are examples:
Many statutes merely lay down their purpose in general terms. The details are filled in by orders issued by the Minister.
In other cases, the Minister is given power to make orders with regard to the subject-matter of the statute or to vary or even repeal the expressed provisions of the Act.
A typical example is the Road Traffic Act 1972 (as amended) which grants the appropriate Secretary of State power to make regulations generally as to the use of motor vehicles on roads, their construction and equipment, and the conditions under which they should be used. In fact, Sections 40 to 50 define the Secretary of State's powers carefully and minutely, specifying the matters on which regulations can be made, provisions for exemption from the rules, testing regulations and so on. The principal regulations made under the Act are the Motor Vehicles (Construction and Use) Regulations 1978 cited as SI 1978/1017. These contain detailed regulations on brake linings, silencers and construction of petrol tanks, to name but a few elements.
Most of these orders, however, must be laid before Parliament and must either be approved or annulled before coming into operation. Other orders which are not laid before Parliament must be published and notice given of where they may be obtained. A considerable number of these statutory powers are governed by the Statutory Instruments Act 1946. Statutory Instruments are the most important form of delegated legislation and include all Orders in Council and all those orders which have to be laid before Parliament.
There is often a statutory duty to consult other bodies (e.g. trade unions and trade associations) and civil servants often seek the advice of outside experts regarding the implementation of Statutory Instruments.
(c)Bylaws of Local Authorities and Other Public Bodies
Local authorities have general power to make bylaws, which affect the activities of people living within their geographical area. Public bodies have similar authority within their spheres of operation.
Advantages
Parliament does not have the time to give to minute details of legislation.
Technical or scientific matters are often better dealt with by experts employed by the government departments than by Members of Parliament.
Greater flexibility is provided for unseen contingencies and such legislation is of great value in an emergency, such as the outbreak of war.
It affords an opportunity for experiment. If a Minister issues an order and it is found unsatisfactory, it can be withdrawn at once.
©ABE and RRC
Common Law, Equity and Statute Law 47
Disadvantages
The executive tends to get beyond the control of the legislature.
It intensifies the tendency towards bureaucracy.
There is a tendency towards undue interference with the liberty of the subject.
Delegated legislation is attacked as weakening one of the principles of the rule of law. The law-making function is removed from Parliament, which is directly answerable to the electorate, and placed in the hands of unaccountable officials.
Control over Delegated Legislation
The volume and complexity of Statutory Instruments – there are about 2,000 Statutory Instruments made annually – raise complex issues of public awareness and democratic control. Control is exercised through two bodies – Parliament and the courts.
At the beginning of each session, Parliament appoints a joint Select Committee to scrutinise all new Instruments and report on any requiring special attention, perhaps through having retrospective effect or raising wider issues, such as compulsory helmets for motor cyclists.
Most parent Acts stipulate that Statutory Instruments made under them shall be laid before Parliament. They may further stipulate that Parliament may block the Instrument before it comes into operation by one of two procedures. Affirmative resolution procedure normally means that unless there is a resolution of both Houses approving the Instrument within a certain time – frequently 28 days – of it being laid before Parliament, it will not come into force. The more common practice is to proceed by way of negative resolution procedure. Unless a motion to annul the Instrument is passed within 40 days, the Statutory Instrument will come into force.
All delegated legislation must be published by HMSO under the Statutory Instruments Act 1946.
Under the doctrine of parliamentary sovereignty, the validity of an Act of Parliament cannot be challenged in the courts. This restriction does not apply to delegated legislation. The grounds under which the courts can review subordinate legislation are ultra vires (i.e. that the scope of the Instrument exceeds the terms of reference laid down in the parent Act) or that procedural requirements laid down in the parent Act have not been complied with.
In some cases the parent Act requires that interested parties shall be consulted before a Statutory Instrument may be issued. Bylaws can be challenged on the ground that they are excessively uncertain, repugnant to the general law or manifestly unreasonable.
©ABE and RRC
48 Common Law, Equity and Statute Law
©ABE and RRC
|
|
|
49 |
|
|
Study Unit 3 |
|
|
|
|
The Administration of Justice |
|
|
|
|
Contents |
Page |
||
|
|
|
|
|
|
A. Organisation of the Courts |
50 |
|
|
|
|
The House of Lords |
51 |
|
|
|
The Court of Appeal |
51 |
|
|
|
The High Court of Justice |
52 |
|
|
|
The Crown Court |
54 |
|
|
|
County Courts |
55 |
|
|
|
Magistrates' Courts |
58 |
|
|
|
Other Courts |
59 |
|
|
|
|
|
|
|
B. |
Administrative Justice |
61 |
|
|
|
Types of Tribunal |
61 |
|
|
|
Advantages and Disadvantages of the Tribunal System |
62 |
|
|
|
Appeals |
63 |
|
|
|
The Parliamentary Commissioner for Administration |
63 |
|
|
|
|
|
|
|
C. |
Public International Law |
64 |
|
|
|
Protection of Human Rights |
64 |
|
|
|
European Union Law |
64 |
|
|
|
|
|
|
|
D. |
Judges and Juries |
65 |
|
|
|
The Status of Judges |
65 |
|
|
|
The Jury System |
65 |
|
|
|
|
|
|
|
E. Organisation and Role of the Legal Profession |
67 |
|
|
|
|
Barristers at Law |
67 |
|
|
|
Solicitors |
69 |
|
|
|
Relationship between Barristers and Solicitors |
70 |
|
|
|
Courts and Legal Services Act 1990 |
71 |
|
|
|
Miscellaneous Law Officers |
71 |
|
|
|
|
|
|
©ABE and RRC
50 The Administration of Justice
A. ORGANISATION OF THE COURTS
The structure of the court system has been laid down by various Acts of Parliament, the key ones being as follows.
Judicature Acts 1873–75
These Acts established the basis of the modern judicial system in England. We have already mentioned them in our discussion of equity, and saw then that one of their provisions was the merging of the administration of equity and the common law. However, their main purpose was to rationalise the system of courts which, owing to their historical developments, had a number of separate jurisdictions. The Courts of Exchequer, Common Pleas, Queen's Bench, Chancery, Admiralty, Divorce, Probate, Assizes, etc. were all merged into the High Court, with appeal to the Court of Appeal, and finally to the Lords.
Courts Act 1971 (as amended by the Courts Act 2003)
This Act ranks in importance with the Judicature Acts of the last century. It altered radically the organisation of the English courts and laid down the structure of a unified national court service, with the object of making justice readily available throughout the country. Under the Act, the High Court and the Crown Court may sit at any place in England and Wales. The Lord Chancellor is empowered to determine and announce from time to time where such sittings shall take place. He is also empowered to set up High Court and Crown Court centres. The largest ones are visited by High Court judges where civil and more serious criminal cases are tried. At the other centres, only criminal cases are heard.
Courts and Legal Services Act 1990
This Act made changes in the administration of justice which affected Magistrates' Courts, Crown Courts, administrative and employment tribunals and the provision of legal services, as supplemented by the Access to Justice Act 1999.
The judicial system comprises, as a result of these Acts, the following courts. They are given in hierarchical order – the highest court first – and we shall then go on to examine each in more detail.
(a)House of Lords
This is the highest court in the land, where civil and criminal appeals are heard.
(b)Court of Appeal (Civil and Criminal Divisions)
Again, this court hears civil and criminal appeals.
(c)Divisional Courts
Two or more High Court judges may convene to hear appeals from inferior courts in cases where points of law are referred from the Magistrates' Court, Crown Court or County Court.
(d)High Court of Justice
This consists of the Queen's Bench Division (including the Admiralty Court and Commercial Court); the Chancery Division; and the Family Division.
The court sits primarily in the Law Courts in London, but may sit anywhere. Civil work, formerly handled at Assizes, is tried by the High Court sitting locally.
©ABE and RRC
The Administration of Justice 51
(e)Crown Court
This court, sitting anywhere, has unlimited criminal jurisdiction, taken over from the old Courts of Assize and Quarter Sessions. It also hears appeals from the Magistrates' Courts, by way of a rehearing, and committals for sentence from the magistrates. In addition it acts as a youth appeals court.
(f)County Courts
These courts deal exclusively with civil cases involving smaller claims of less legal complexity.
(g)Magistrates' Courts
These courts have limited first instance criminal jurisdiction and are also where miscellaneous petty civil jurisdiction takes place.
The House of Lords
This is the highest appeal tribunal of both the criminal and civil court systems. The position of the House of Lords as a judicial body is peculiar and shared by no other second chamber. It is a relic of the days when the House of Lords was the King's Great Council and, as such, acted as both an advisory and a judicial body. The Judicature Act 1873 bestowed the title "Supreme Court of Judicature" on the Court of Appeal and the High Court, and they are still so described, although the title is clearly a misnomer in view of the continuing supremacy of the Lords.
In the rare criminal cases where the legal interpretation of the evidence is open to considerable doubt, an appeal may lie from the Criminal Division of the Court of Appeal to the House of Lords, but before such an appeal can be made, the Court of Appeal or the House of Lords gives "leave to appeal" on the grounds that a point of law of general public importance is involved. In civil cases, appeals to the House of Lords may be made in certain circumstances from the Court of Appeal and also directly from the High Court (Administration of Justice Act 1969).
In strict law, all members of the House of Lords are eligible to sit when the Lords acts as a court, but by constitutional convention only the Appellate Committee sits as the supreme Court of Appeal. When it acts in this capacity, attendance is restricted to the Lords of Appeal in Ordinary (who are awarded life peerages). Appointments of Lords of Appeal in Ordinary are made on the advice of the Prime Minister, in consultation with the Lord Chancellor, and their number tends to increase with the growing complexity of the law.
In normal circumstances, a court of five Law Lords will sit to hear appeals.
Decisions are by a majority of those in attendance and the Lords are generally bound by their own decisions, unless they have a good reason for wishing to decide contrary to precedent.
The Court of Appeal
(a)Criminal Division
Appeals from convictions and from sentences given by the Crown Court are made to the Criminal Division of the Court of Appeal in London. Appeals are heard by the Lord Chief Justice and several judges of the High Court of Justice (Queen's Bench Division). The grounds of appeal are usually that the sentence is too heavy; that the verdict is contrary to the weight of the evidence; that the judge has not correctly interpreted the law; or that the verdict of the jury is felt to be "unsafe or unsatisfactory". Appeals on questions of fact can only take place with leave. The Criminal Division sits without a jury and decisions are by a majority. Only the accused (i.e. not the Crown) may appeal to the court, which has power to order a retrial in appropriate cases.
©ABE and RRC
52The Administration of Justice
Under the Criminal Appeal Act 1995 the Court of Appeal can order investigations to be carried out by the Criminal Cases Review Commission which will report its findings to the court.
(b)Civil Division
Appeals from the High Court of Justice and the County Courts are heard by the Civil Division of the Court of Appeal.
The Supreme Court Act 1981, which came into force in January 1982, made a number of changes in the organisation of the Civil Division of the Court of Appeal. There is now a Registrar of Civil Appeals who must have a ten-year "general" qualification (i.e. a right of audience in relation to any class of proceedings in any part of the Supreme Court or all proceedings in County Courts or Magistrates' Courts). The Act enables the making of rules of court to provide for the exercise of jurisdiction in interlocutory matters (i.e. any order which does not finally determine the issues between the parties) by either the Registrar of Civil Appeals or a single judge of the Court of Appeal.
While the Act reaffirms the position that a court (of the Court of Appeal) shall be duly constituted if it consists of an uneven number of judges, not being less than three, it says that a court shall be duly constituted if it consists of two judges for the following purposes:
Deciding appeals against interlocutory orders.
Deciding appeals against decisions of a single judge.
Deciding appeals where parties have consented to the appeal being heard by two judges.
Continuing an appeal commenced before three judges where one judge is unable to continue, provided the parties consent to the appeal being continued.
Hearing any appeal not covered by the four purposes above of a class prescribed by an order made by the Master of the Rolls.
If an appeal is heard before an even number of judges who are equally divided, any party to the appeal may ask for the case to be re-argued before a court of an uneven number of judges of no fewer than three, before any appeal to the House of Lords.
A single judge, from whose decision there will be no appeal, may hear an application for leave to appeal to the Civil Division of the Court of Appeal. Finally, the Act substituted a new section in the County Courts Act 1959, now consolidated in Section 77, County Courts Act 1984. The effect of the change is that the Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal from a County Court to the Court of Appeal without the leave of either the judge in the County Court or of the Court of Appeal. No longer, therefore, is the amount of money at stake in a County Court the sole criterion of whether or on what conditions there is to be a right of appeal.
The High Court of Justice
As we have already noted, the High Court of Justice consists of three Divisions:
(a)Queen's Bench Division (including the Admiralty Court and Commercial Court)
This Division deals with actions for damages arising out of every type of common law civil action. It inherited the jurisdiction of the old (pre-Judicature Acts) common law courts.
The judges of the Queen's Bench Division also deal with criminal cases at Crown Court centres when they go on circuit, at the Central Criminal Court in London, and in the Criminal Division of the Court of Appeal.
©ABE and RRC
The Administration of Justice 53
In appropriate cases, the judge sits with a jury.
The Admiralty Court deals with maritime cases, and senior Masters of Trinity House sometimes sit as assessors in the court.
The Commercial Court has jurisdiction over commercial cases, e.g. insurance matters. Under the Administration of Justice Act 1970, a judge of the court is empowered to act as an arbitrator or umpire under an arbitration agreement, if the dispute is of a commercial nature. The Lord Chief Justice must agree before any judge makes him-/herself available to act as an arbitrator. The Commercial Court keeps a list of bodies that offer alternative dispute resolutions (ADR), mediation and conciliation in commercial cases.
The Divisional Court of the Queen's Bench Division also has the power to issue prerogative orders, which are important mainly in the field of administrative law. They are:
Quashing Orders (formerly Mandamus)
An order to command a public body or official to carry out some legal duty.
Mandatory Orders (formerly Certiorari)
An order to remove proceedings from an inferior court or tribunal to the High Court where it is alleged that the inferior court has exceeded its authority or acted improperly.
Prohibition Orders (formerly Prohibition)
An order to quash a decision of an inferior court.
Habeas Corpus
An order to secure the release and/or trial of a person.
The Divisional Court of the Queen's Bench Division hears appeals by way of "case stated" from decisions of the Magistrates' Courts in their summary criminal jurisdiction, or from the decisions of the Crown Court acting as an appeal court from the magistrates. "Case stated" means that the particular point in the dispute, the decision reached and the reasons for so deciding are presented in writing to the Divisional Court as a case for consideration. In the light of the Divisional Court's opinion, the lower court's decision may be affirmed, amended or reversed. If this sort of appeal is adopted directly from the magistrates, the right to appeal in the form of a rehearing before the Crown Court is lost.
(b)Chancery Division
The Court of Chancery was originally the Lord Chancellor's Court. Today, the Chancery Division deals with the law relating to companies; patents; bankruptcy; taxation; partnerships; and all matters relating to estates and trusteeships, inheriting the jurisdiction of the former Court of Chancery or Equity. Contentious probate matters, such as proof of relationship and "lost" wills, also fall within its jurisdiction.
This Court has three subdivisions:
Bankruptcy Division
This sits in London and deals with all bankruptcy matters in the London area and bankruptcy appeals from County Courts.
Companies Court
This also sits in London and deals with company law matters such as liquidation proceedings and company law appeals from County Courts.
©ABE and RRC
54The Administration of Justice
Court of Protection
This deals with the legal affairs of persons who lack capacity, such as the appointment and supervision of receivers to hold and manage their property.
(c)Family Division
This Division was created by the Administration of Justice Act 1970. It deals not only with matrimonial matters (formerly handled by the old Probate, Divorce and Admiralty Division) but also with all jurisdiction of a family kind, e.g. wardship, adoption and guardianship.
The main jurisdiction of the Family Division includes:
Defended or complicated divorce and matrimonial cases.
Applications concerning legitimacy, validity of marriage, presumption of death, adoption, guardianship, wardship, custody of minors and consent to marriage of a minor, and title to property in a dispute between husband and wife.
Grant of legal title (probate or letters of administration) to authorise executors or administrators to wind up a deceased person's estate.
All High Court business under the Child Support Act 1991 (as amended).
Appeals from the civil decisions in domestic proceedings before the magistrates lie to the Divisional Court of the Family Division of the High Court.
Appeals from the High Court
An appeal from the decision of a judge sitting in any one of the three Divisions of the High Court will go to the Court of Appeal (Civil Division). The one exception to this rule, introduced by the Administration of Justice Act 1969, is that it is possible for an appeal to "leapfrog" the Court of Appeal and go direct to the House of Lords, provided:
The trial judge is prepared to grant a certificate.
The parties agree to this course.
A point of law of general public importance is involved, which relates wholly or mainly to the construction of a statute or Statutory Instrument; or the judge was bound by a previous decision of the Court of Appeal or the House of Lords.
The House of Lords has granted leave.
In view of these stringent conditions, not many successful applications are made. One example of a leapfrog appeal is National Carriers Ltd v. Panalpina (Northern) Ltd (1981) which was concerned with the doctrine of frustration applying to a lease of land. The High Court judge found himself bound by a 1943 decision of the Court of Appeal (see above).
The Supreme Court Act 1981 changed the system of appeals in the Civil Division in order to prevent a backlog of appeal cases and established the office of Registrar of Civil Appeals.
The Crown Court
The importance of the Crown Court is that all proceedings on indictment must be brought in it. An indictment is the written charge giving particulars of the alleged crime which is presented to the jury, and before it is drawn up the accused has normally to appear before a magistrate for a preliminary hearing (called committal proceedings) to see whether there is a prima facie case for trial.
When the Crown Court sits in the City of London, it is known as the Central Criminal Court, and the privileges of the Lord Mayor and Aldermen of the City to sit as judges are thus preserved.
©ABE and RRC