AQA A Level Law: The Nature of Law and the English Legal System — Revision Notes

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

Parliamentary law making

Green Paper → White Paper → First Reading → Second Reading → Committee → Report → Third Reading → other House → Royal Assent.

Parliamentary supremacy (Dicey): Parliament may legislate on anything, cannot bind its successors, and cannot be overridden.

Its practical limits are where the evaluation marks sit: devolution, the Human Rights Act and declarations of incompatibility, treaty obligations, and — most significantly in practice — a government with a majority controlling the parliamentary timetable, so Parliament is constrained by the executive.

Delegated legislation: Orders in Council, statutory instruments, by-laws. Justified by lack of parliamentary time and expertise, the need for speed in emergencies, and local variation. Controlled by affirmative and negative resolution, the Scrutiny Committee, and judicial review for ultra vires — procedural (wrong procedure) or substantive (beyond the powers granted).

The criticism is that thousands of statutory instruments a year are made by unelected people with limited scrutiny, which is precisely why the ultra vires control exists.

Judicial precedent

Stare decisis. The ratio decidendi binds; obiter dicta persuade only. That distinction is the most examined point in the topic, and the reason is that only reasoning necessary to the outcome carries authority.

Hierarchy: Supreme Court binds all below; Court of Appeal binds itself (subject to Young v Bristol Aeroplane) and all lower courts.

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

Operation of precedent — this specification’s three: following (applying a binding decision on sufficiently similar material facts), distinguishing (material facts differ — the everyday way of avoiding a precedent), overruling (a higher court declares an earlier decision in a different case wrong). Reversing — a higher court changing the outcome of the same case on appeal — is not on this specification’s list, so do not offer it as a way of avoiding a precedent.

Evaluation: certainty, consistency, flexibility, and detailed real-case rules — against rigidity, complexity from volume, retrospective effect (the parties could not have known the law), and the democratic objection to judicial law-making.

Statutory interpretation

Rule	Approach
Literal	Plain ordinary meaning, even if absurd
Golden	Literal unless absurd, then modify — narrow or broad
Mischief	What defect was the Act passed to remedy? (Heydon’s Case)
Purposive	What was Parliament’s purpose? Now dominant

Aids: intrinsic (title, preamble, definitions, schedules) and extrinsic (dictionaries, prior statutes, Law Commission reports, Hansard since Pepper v Hart).

Rules of language: ejusdem generis, expressio unius est exclusio alterius, noscitur a sociis.

Two named influences: EU law — courts had to read domestic law, as far as possible, to give effect to EU law, pushing them towards the purposive approach (Pickstone v Freemans); largely historical since withdrawal. Human Rights Act 1998 s 3 — read legislation compatibly with Convention rights “so far as it is possible to do so” (Ghaidan v Godin-Mendoza); if impossible, a s 4 declaration of incompatibility (Bellinger v Bellinger), and the Act stays in force.

Every evaluation question is a version of one tension: the literal rule respects parliamentary supremacy but can defeat Parliament’s evident intention; the purposive approach achieves justice but risks judges legislating.

The courts and personnel

Criminal: Magistrates’ → Crown → Court of Appeal (Criminal) → Supreme Court. Civil: County/High Court → Court of Appeal (Civil) → Supreme Court. High Court divisions: King’s Bench, Chancery, Family.

Offence classification: summary, either-way, indictable.

Personnel: solicitors (general practice, growing rights of audience), barristers (advocacy, cab-rank rule), legal executives (CILEX, specialised), judges (appointed by the Judicial Appointments Commission).

Judicial independence is secured by security of tenure, protected salaries, immunity from suit, and the separation of powers — and it matters because judges must be able to rule against the government.

Lay magistrates: unpaid volunteers, sitting in threes, advised by a legally qualified clerk. Cheap and locally knowledgeable, but criticised as unrepresentative and inconsistent between benches.

Juries: 12 people, decide fact not law, deliberate in secret. Defended for public participation and fairness; criticised for bias risk, the absence of reasons, and the impossibility of checking whether the verdict was properly reached.

Access to justice

Legal aid, conditional fee agreements, Citizens Advice, law centres, trade unions, insurance. LASPO 2012 substantially reduced civil legal aid, and the standard essay is whether access to justice remains adequate — argue the cost-saving case against the access case, then judge.

Law and society, and fault

Role of law: order and social control, protecting people and property, regulating relationships, resolving disputes peacefully. It creates enforceable rights and must balance competing interests, e.g. public against private (liberty against public safety; a landowner against a neighbour in nuisance).

Fault: criminal — mens rea alongside actus reus, and degree of fault shapes offence and sentence (murder versus manslaughter); strict liability is the exception. Civil — negligence requires falling below the reasonable person standard; contributory negligence reduces damages; vicarious liability imposes liability without personal fault. Evaluate: fault links liability to blame, but no-fault liability can be justified to protect the public or compensate victims.

Law and morality

Law is enforced by the state; morality by conscience and social pressure. They overlap but are not identical — adultery is widely regarded as immoral yet lawful; parking offences are unlawful but not immoral.

Hart–Devlin: Devlin argued a shared morality binds society, so law may enforce it; Hart argued law should intervene only to prevent harm to others. Hart’s position prevailed, reflected in the Wolfenden Report and subsequent decriminalisation.

A strong answer applies the debate to a current example rather than recounting it.

Justice: distributive, corrective, procedural. Rawls’s veil of ignorance against Nozick’s entitlement theory is the standard contrast.

Exam traps

• Treating obiter dicta as binding.
• Stating parliamentary supremacy without its practical limits.
• Confusing overruling with reversing, or listing reversing as a way of avoiding precedent — this specification names following, overruling and distinguishing.
• Naming an interpretation rule without applying it to the facts.
• Recounting Hart–Devlin rather than applying it.
• Omitting case names — cases are the evidence in Law.

Self-test

1. Distinguish ratio decidendi from obiter dicta, and say why only one binds.
2. Give three practical limits on parliamentary supremacy.
3. Distinguish procedural from substantive ultra vires.
4. State the central tension in statutory interpretation.
5. What secures judicial independence, and why does it matter?

Answers: 1. The ratio is the legal reasoning necessary to the decision and binds lower courts; obiter dicta are remarks made by the way and are only persuasive, because only reasoning essential to the outcome carries authority. 2. Devolution, the Human Rights Act and declarations of incompatibility, international treaty obligations, and executive control of the parliamentary timetable — any three. 3. Procedural means the procedure required by the enabling Act was not followed; substantive means the body acted beyond the powers granted to it. 4. The literal rule respects parliamentary supremacy but can defeat Parliament’s evident intention, while the purposive approach delivers just outcomes but risks judges legislating. 5. Security of tenure, protected salaries, immunity from being sued for judicial acts, and the separation of powers; it matters because judges must be free to rule against the government without fear.