A Level Law: The English Legal System — Revision Notes

Condensed for the final weeks. For the full explanation, use the English Legal System study guide.

Sources of law

Source	Made by
Statute (Act of Parliament)	Parliament — the supreme source
Delegated legislation	Bodies given power by an enabling Act
Case law (common law)	Judges, through precedent
Equity	Historically the Court of Chancery
Custom	Very rare in modern law

Parliamentary sovereignty means Parliament can make or unmake any law, no Parliament can bind its successors, and no other body can override an Act. Where statute and case law conflict, statute prevails.

The legislative process

First Reading    name and aims read; no debate
Second Reading   main debate on principles; vote
Committee Stage  clause-by-clause, 16-50 MPs
Report Stage     amendments reported back
Third Reading    final vote
Other House      whole process repeats
Royal Assent     becomes an Act

The Lords may delay but not permanently block; the Parliament Acts allow a Bill to proceed without them.

Delegated legislation is made under authority granted by Parliament, not by Parliament itself, and is subject to two controls: parliamentary (affirmative or negative resolution, and scrutiny committees) and judicial (judicial review, where a court may strike it down as ultra vires or unreasonable).

Judicial precedent

Based on stare decisis — stand by what has been decided. It provides certainty, consistency and predictability.

• Ratio decidendi — the legal reason for the decision. This alone is binding.
• Obiter dicta — everything said “by the way”. Persuasive only.

That distinction is the most examined point in the topic, and the reason is that only the reasoning necessary to the outcome carries authority.

The hierarchy: Supreme Court binds all courts below; Court of Appeal binds itself (subject to the exceptions in Young v Bristol Aeroplane) and all lower courts; High Court binds lower courts.

The Practice Statement 1966 allows the Supreme Court to depart from its own previous decisions “when it appears right to do so” — used sparingly, to preserve certainty.

Avoiding precedent:

• Distinguishing — the material facts differ, so the earlier decision does not apply.
• Overruling — a higher court declares an earlier decision wrong.
• Reversing — a higher court changes the outcome of the same case on appeal.

Distinguishing is the everyday technique; the other two are comparatively rare.

Evaluation: certainty, consistency, flexibility to develop the law, and detail from real cases — but rigidity, complexity from the volume of reported cases, retrospective effect (the parties could not have known the law), and the undemocratic quality of judicial law-making.

Statutory interpretation

Rule	Approach
Literal	Words given their plain, ordinary meaning, even if absurd
Golden	Literal, unless it produces an absurdity, then modify — narrow or broad application
Mischief	What mischief was the Act passed to remedy? (Heydon’s Case)
Purposive	What was Parliament’s purpose? Now dominant, reinforced by EU and human rights influence

Aids to interpretation:

• Intrinsic — within the Act: long and short title, preamble, definition sections, headings, schedules.
• Extrinsic — outside: dictionaries, previous statutes, Law Commission reports, and Hansard (permitted since Pepper v Hart, within limits).

Rules of language: ejusdem generis (general words following a list are limited to that class — e.g. a ban on “cars, vans, lorries and other vehicles” arguably excludes a bicycle, since “other vehicles” takes its meaning from the motorised examples listed), expressio unius est exclusio alterius (expressing one excludes others), noscitur a sociis (a word is known by the company it keeps).

The trade-off: the literal rule respects parliamentary sovereignty but can defeat Parliament’s evident intention; the purposive approach achieves justice but risks judges legislating.

Court structure

Criminal: Magistrates’ Court → Crown Court → Court of Appeal (Criminal Division) → Supreme Court. Civil: County Court / High Court → Court of Appeal (Civil Division) → Supreme Court.

The High Court has three divisions: King’s Bench, Chancery, Family.

Criminal offence classification: summary (magistrates only), either-way (defendant may elect Crown Court trial), indictable (Crown Court only).

Legal personnel

• Solicitors — general practice, direct client contact, increasingly with rights of audience.
• Barristers — advocacy specialists; the cab-rank rule requires them to accept any case within their competence.
• Legal executives — specialists in one area, qualified through CILEX.
• Judges — superior and inferior; appointed by the Judicial Appointments Commission; security of tenure protects independence.

Judicial independence matters because judges must be able to rule against the government without fear. It is secured by security of tenure, protected salaries, immunity from suit, and the separation of powers.

Lay magistrates — unpaid volunteers, sitting in threes, advised by a legally qualified clerk. They bring local knowledge and cost very little, but are criticised as unrepresentative and inconsistent between benches.

Juries — 12 people in Crown Court trials, deciding fact not law, deliberating in secret. Defended for public participation and fairness; criticised for the risk of bias, the absence of reasons, and inability to test whether verdicts were properly reached.

Exam traps

• Treating obiter dicta as binding.
• Confusing overruling with reversing.
• Naming a rule of interpretation without applying it to the facts given.
• Saying judges “make law” without acknowledging the constitutional objection.
• Omitting evaluation when the question asks for it.
• Not citing case names — in Law, cases are the evidence.
• Saying delegated legislation is made by Parliament rather than under authority granted by Parliament.

Self-test

1. Distinguish ratio decidendi from obiter dicta.
2. What does the Practice Statement 1966 permit, and why is it used sparingly?
3. Distinguish distinguishing, overruling and reversing.
4. Give the four rules of statutory interpretation and the current dominant approach.
5. What secures judicial independence?
6. Name the two controls on delegated legislation.

Answers: 1. The ratio is the legal reason for the decision and is binding on lower courts; obiter dicta are statements made by the way and are only persuasive. 2. It allows the Supreme Court to depart from its own earlier decisions when it appears right to do so; it is used sparingly to preserve certainty in the law. 3. Distinguishing avoids a precedent because the material facts differ; overruling is a higher court declaring an earlier decision in a different case wrong; reversing is a higher court changing the outcome of the same case on appeal. 4. Literal, golden, mischief and purposive; the purposive approach is now dominant. 5. Security of tenure, protected salaries, immunity from being sued for judicial acts, and the separation of powers. 6. Parliamentary control (affirmative/negative resolution, scrutiny committees) and judicial control (judicial review for ultra vires or unreasonableness).