1. 3.1.4 Sources of English Law<br />TOC '1-3' <br />Parliamentary supremacy, including the impact of European Union membership and the significance of the operation of judicial precedent. <br />See REF BRANCH_2 MERGEFORMAT Judicial Precedent<br />Parliamentary Supremacy<br />Parliament can make any law it chooses so is supreme<br />Cheney Vs Conn 1968<br />Claimant objected to paying some of his taxes quoting the Geneva Convention which was accepted by Parliament in 1957. The Courts applied the Finance Act 1964 to make him pay as the later Act (created by Parliament) prevails. <br />Impact of EU law<br />Factortame Ltd Vs Secretary of State for Transport. (see P49 for full details). The UK Government passed a shipping Act 1988 the Spanish complained it contravened the Treaty of Rome. The European Court of Justice ruled EU law takes precedent over UK law. <br />Factortame<br />EU Law<br />As a result of the European Communities Act 1972 all English courts are bound to recognise and apply European law. <br />Regulations<br />Immediately binding on all member states without Parliament doing anything. i.e. Tachographs EU Commission V UK 1979. The UK Government did not implement the REGULATION regarding these. The European Court of Justice ruled that the UK must apply it immediately.<br />Follow immediately<br />Directives<br />Action needs to be taken to put into force by Statutory Instrument (a law made by a government minister with the approval of Parliament).<br />Need further action to follow<br />Understand the importance of law reports, ratio Decidendi and obiter dicta; binding and persuasive precedents. <br />Law reports<br />Cases heard in superior courts are reported in various publications i.e. All England Law Reports, Weekly Law Reports and newspapers such as The Times, The Telegraph, The Guardian and on databases such as Nextel. These include the BINDING and PERSUASIVE PRECEDENTS to follow in later cases and are therefore key legal documents. <br />Ratio Decidendi/Obiter dicta<br />Ration decidendi - The Judge's reason for the decision. These are the basis of BINDING PRECEDENTS. Once a judge has made a ruling that INTERPRETS law he gives his reason in the RATIO DECIDENDI. This can be referred to later as CASE LAW and they set a JUDICIAL PRECEDENT. See notes on Judicial Precedent and Courts Hierarchy. This creates CASE LAW and is one of the main ways that common law is made in England.<br />Obiter dicta - Other comments made by the judge to help with interpreting why or how he/she came to a decision. Form PERSUASIVE PRECEDENTS.<br />Judicial Precedent<br />Each case lays down rules of law which MAY or MUST be followed in later cases involving the same point of law irrespective of the facts. Also known as stare decisis <br />Advantages of Judicial Precedent - Certainty, Possibility for growth, It is a practical method, Detail - it gives detail and reasons.<br />Disadvantages of Judicial Precedent - Can be inflexible, Illogical distinction (A judge may not follow it properly causing confusion and appeals), Bulk and Complexity - There are over 1,000 volumes of law reports to know.<br />Binding precedent<br />A binding precedent MUST be followed. The judge must follow the ratio decidendi <br />Persuasive precedent<br />Often come from the obiter dicta A Judge does not have to follow but may choose to. They can also come from Privacy Council or The Judicial Committee. <br />Be aware how judicial precedent works in the courts hierarchy <br />See notes on Judicial Precedent<br />If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it. The doctrine of precedent. Decisions of the highest courts are binding on lower courts. <br />Decisions of higher courts are binding on lower courts<br />Understand what GREEN and WHITE papers are <br />Green paper-Statement of Government Intent<br />White Paper - Firm proposals<br />Understand the process of a bill passing through Parliament <br />Ideas and Discussions<br />Bills come from the government, MPs, Reform agencies.<br />Green Paper - A statement of government intent inviting discussion and comments.<br />White Paper - Firm government proposals<br />Drafting - Parliamentary Counsel (Barristers) draw up the draft bill<br />First Reading - Formal presentation of the bill to the House of Commons. Second Reading - 2 weeks later. Debated in the Commons then a VOTE. Committee Stage - About 18 MPs discuss in detail and make amendments. Third Reading (Report Stage) - final debate in The House and final vote. <br />House of Lords - Process repeated in the Upper House. Royal Assent - The Queen signs it to make it an ACT OF PARLIAMENT. The Published.<br />3 ways Laws are made<br />Case Law<br />Case Law<br />Following the interpretations of previous cases (Ratio decidendi, Obiter dicta)<br />Ration decidendi - the Judge's reason for the decision. Once a judge has made a ruling that INTERPRETS law he gives his reason in the RATIO DECIDENDI. This can be referred to later as CASE LAW and they set a JUDICIAL PRECEDENT. See notes on Judicial Precedent and Courts Hierarchy.<br />Obiter dicta - Other comments made by the judge to help with interpreting why or how he/she came to a decision.<br />Legislation<br />Acts of Parliament<br />See notes for passing a bill through Parliament.<br />EU Law<br />Human Rights Act 1988<br />New Acts MUST contain statement of compliance/ Non compliance<br />