Law (4)

JUDGE MADE LAW

Precedent, briefly. Britain, unlike the USA and the European Union countries, not having a Written Constitution, Codes of Law enacted by the representatives of the people, English Law is based on Common Law -judge-made law ~judges interpret and (also in those criminal cases where that it is increasingly considered by the government that should not sit juries) apply the law.

Where 'Written Law' -an Act of Parliament, does exists, they do so under Rules formulated by the English Courts, such as:-

The Literal Rule -where the Court does not consider the written law to require judicial interpretation, literally taking the words of the Statute…

The Golden Rule -if they consider the literary meaning to be, e.g., absurd of any Written Law, interpreting it as they would consider not perverse.

The Mischief Rule -if the Court considers it must interpret the purpose of the written law -the Intentions of Parliament, which they do under the Interpretations Act 1889 -barring reference to the Hansard (the official transcript of all words spoken in the Parliament -placed in its library).

These Rules are sometimes confusingly stated, and in relation to appeals, e.g. from cases under the Sex Discrimination Act 1975, its is stated that "no issue of law arises if the Tribunal simply misunderstood or misapplied the facts" -following reference to precedent that an issue of law arises if a decision is "inconsistent with the evidence".

A Decision, in English Law, consists of two parts,

the 'Ratio Decidendi', and the 'Obiter Dicta'

-the former being Precedent, the binding part, which sets out what the Principle is ~the latter being things said by the way -which are not binding but may be persuasive.

Until the late 1990's English courts and tribunals did not have to give reasons for their decisions, including in civil cases in which juries do not normally sit in Britain -European Law now requires them to do so, often if within a specific period of time ask to do so.

The Principle, unless 'distinguished' becomes 'Precedent' binding on all lower courts, and in the case of the Court of Appeal also on itself.

Precedent are reported by the Incorporated Council of Law Reporting in the Weekly Law Reports (WLR) officially, and privately in e.g., the All England Law Reports (AELR).

Precedent, to all intents and purposes, is Law until it is reversed by a higher national Court or by the European Court, or becomes obsolete by an Act of Parliament, or by European Union Law.
Judge-made Law is regarded mainly to have the advantage of being not rigid and enabling for changes more quickly than it may take parliament to make them -its disadvantage is considered to be that unlike as in the case of Codes it is law which is not by elected representatives of people.

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PARLIAMENTARY SUPREMACY

The Presumption of the Supremacy of the British Parliament in respect of English Law is, briefly, based on the Monarch no longer refusing to give assent to a Bill passed by the Parliament, coupled with that of Precedent being in line with the Intentions of Parliament.

The Inconsistency of that presumption has been proposed on the fact of the European Law (including the decisions of the European Court and of its 'national branches' which are empowered to declare any law made by the British Parliament 'not law' and of no legal effect where it is the view of Europe that Britain ought not to have such a law -e.g., for the reason that it contravenes the Articles of the European Convention on Human Rights) being binding on the United Kingdom Government and on its Courts -as on all other member states of it.

Laws in the European Union states continue increasingly and rapidly to change in the course of commonization of various laws, and in Britain, within a short time of a Department of Constitutional Affairs being created in addition to the Lord Chancellor’s Department, also a Ministry of Justice was added –it is wise when it may otherwise be of consequence to always ascertain what current laws are.