ACCA-F4第二章.doc

Corporate and Business Law Chapter 2Sources of English lawOverview SOURCESCase lawStatuteEurope Common Law Equity Primary Secondary Primary Secondary 1Sources of law(a)Common law(b)Equity(c)Statute (legislation) including delegated legislation(d)European Union Law2Common law and equity2.1This is a system of law based upon decided cases. Legal rules (initially created by judges when hearing cases) are followed by judges in subsequent like cases.It developed after the Norman Conquest.2.2Initially only common law rules were derived from cases. The aim of common law was certainty. However various problems within the common law system resulted in the development of another kind of case law called equity. Equity sought to address some of the problems contained in the common law system. Its aim is fairness.2.3Amongst the common law problems were inadequate remedies, a failure to recognise trusts and a reluctance to allow new causes of action to develop.2.4At first common law and equity operated as two distinct systems of law with their own independent court and judges. Given that equity is based on fairness however it was eventually decided that in the event of conflict between the two systems equity should prevail.2.5The two systems have now been merged together. In practice therefore, if you seek a remedy in the courts today, the court will look first to the common law. If the common law can deal with your problem adequately there will be no recourse to equity. If the common law is unable to deal adequately with the problem the court will look to equity.2.6Equity is therefore referred to as to a supplement to the common law.2.7The operation of equity is entirely discretionary whereas common law applies automatically. 2.8Maxims:He who comes to equity must come with clean hands.Equity does not suffer a wrong to be without a remedy.3Statute (primary law)3.1Acts of Parliament:Created by parliament. All new statutes should be compatible with HRA 98. Courts cannot strike out an Act of Parliament.Procedure:Green paper: Discussion documentWhite paper: Statement of policy(a)First readingNo debate - Bill is introduced to the timetable of the house.(b)Second readingGeneral debate and vote.(c)Committee stageBill is scrutinized and amendments suggested.(d)Report stageAmendments reported back to the House.(e)Third readingBrief debate and vote.(f)Same procedure in other House(House of Lords has power to amend and delay passage of Bill: Parliament Acts 1911-1949).(g)Royal assentStudy point: Ensure you know what happens at each stage.Overview DELEGATED LEGISLATION Delegated Bodies Types Controls Advantages Disadvantages3.2Delegated Legislation: (Secondary law)Created by persons/bodies to whom parliament has delegated powers e.g. government ministers, local authorities, Inland Revenue and Customs and Excise. Delegation made possible by an Enabling Act.(a)Types:- Orders in Council- Bye laws- Statutory instruments- Acts of devolved assemblies(b)Controls:Parliamentary: House of Commons committee on statutory instruments- Statutory instruments must be laid before parliament prior to enactment although some require positive parliamentary approval- Judicial: Courts may declare them ultra vires (beyond capacity) (unlike Primary Acts). They must be compatible with HRA 98.- Ministerial: bye-laws must be approved by a minister(c)Advantages:- saves time- technical and local expertise- allows for swift alterations in the law to keep pace with changing social and historical conditions(d)Disadvantages:- lack of democratic accountability- attack on concept of parliamentary sovereignty- concentrates power in the hands of civil servants- complexity and bulk- can be attacked in courts which may lead to uncertainty.Study point: Revisit this area having noted the impact of HRA 98 in Chapter 4.4European community law Overview European community Law Institutions Legislation4.1Forms part of UK law by virtue of European Communities Act 1972Institutions of the Union:(a)European Court of JusticeECJ is the final authority on community law.(b)Council of MinistersThe Council is made up of ministers from Members States.The Council together with the Parliament is responsible for the adoption of legislation proposed by the commission.(c)The CommissionMade up of commissioners from Member States. They propose draft legislation. Also ensure treaty obligations observed can refer cases to ECJ. (d)The European ParliamentMade up of directly elected members. It is an advisory and debating body which with the Council of Ministers bring law into effect. Study point: Ensure you can succinctly describe the function of each institution.4.2Direct applicability and direct effectCommunity law which is directly applicable in member states comes into force without any act of implementation by members states.Law has direct effect if it confers rights and obligations directly on individuals.4.3Types of European LawPrimary Law: that contained in the Treaties.Secondary Law:(a)Regulations (directly applicable)These are binding and enforceable from the time of their creation. Seek to give effect to Treaty aims. Take effect uniformly through out the EU.Failure to implement a directive within the specified time period, or failure to implement it completely may allow individuals to rely on the directive even though it is not implemented through national legislation. Such action can only be taken against the state or emanation of the state.(b)Directives (not directly applicable)Statements of principles which seek to harmonise EU laws, but left to member states to alter national law so as to achieve these aims within a specified period.(c)Decisions (binding only on recipient states and individuals to whom they are addressed). These are decisions relating to the operation of E.U. laws and policies.4.4Impact on Parliamentary Sovereignty?(a)Parliamentary sovereignty (i) Parliament is the prime law maker. It can overrule all other sources of law including previous statutes. (ii) Parliament cannot restrict a future parliaments ability to change the law. (iii) The courts must apply statute even if they think the law operates unfairly.(b)Conflict between Parliamentary Sovereignty and membership of the EU(i)A directive may require Parliament to change the law.(ii)A regulation may be passed which conflicts with an existing Act of Parliament.(c)Points to bear in mind(i)The UK is fully represented in all the EUs institutions.(ii)UK ministers sit on all council meetings and vote on all proposed law.(iii)Ultimately, Parliament could repeal the ECA 1972.Legal reasoningOverview JUDICIAL PRECEDENTRules Other pointsRatioObiterHierarchy of Precedent ceasesdecidendidictathe courtsto be binding1Doctrine of judicial precedent1.1Common law and equity are a body of judgemade laws contained in decisions of the courts called judgements.1.2Judge made law or case law is whereby judges follow the decisions of other judges. The doctrine of precedent is sometimes referred to as stare decisis: let the decision stand. 1.3For case law to be workable as a source of law it needs to achieve consistency. Various rules have therefore developed to achieve this aim.1.4Rules: 1.4.1Only statements of law made by judges can form precedent. In turn these statements must be divided up into ratio decidendi (the reason for the decision) and obiter dicta (other comments).Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case and hence are not binding.1.4.2As the ratio decidendi of a case stems from specific facts if a precedent is to be followed in a subsequent case the facts of that case must be sufficiently similar.1.4.3The precedent must have been set by a court capable of creating precedent and not have been overruled.1.5 Hierarchy of the courts: (a)House of Lordsbinds all lower courts but not itself (exceptional cases)(b)Court of Appealbinds all lower courts and itself(c)High CourtJudge sitting alone binds all lower courts not divisional courtsJudges sitting together binds all lower courts and divisional courts(d)CrownMagistrates bind no-one at all County1.6A precedent ceases to be binding if:(i)It has been overruled by statute or EU law or by a higher court.(ii)It can be distinguished on the facts i.e. if the material facts are not the same.1.7Advantages:(i)Detail.(ii)Flexibility.(iii)Consistency.(iv)Fairness.1.8Disadvantages:(i)Bulk.(ii)Restricts judicial discretion.(iii)reactive system.(iv)Lack of democratic accountability.1.9Persuasive authority:These are decisions (e.g. those of commonwealth countries, inferior courts and obiter dicta) which are not binding but may influence the decisions of judges in future cases. 2Interpretation of statutesOverview STATUTE INTERPRETATIONStatutory aidsExtrinsic aidsPresumptions2.1Interpretation:Statutory aids:(a)Interpretation Acts(b)Interpretation sections of individual statutes(c)Preambles Extrinsic aids:(a)Dictionary(b)Hansard Pepper v Hart(c)Reports of committees2.2Presumptions:(a)Act applies to the whole of the UK but not elsewhere(b)Act wont be contrary to existing EU or international law(c)Act wont bind the Crown(d)Act wont have retrospective effect(e)Act does not alter the existing law nor repe