Introduction to UK Law

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Britain and the concept of law

The socioeconomic, political, historical, environmental, geographical, cultural environment impacts
law

I. Geography and history

A -A specific geography
1 -The British Isles = les îles Britanniques = a geographical term
An archipelago of over 6,000 islands

The Channel Islands (îles Anglo-normandes) are not part of the archipelago (much closer to France
geographically): the Isle of Man and, by tradition, the Bailiwick of Jersey and the Bailiwick of
Guernsey are British Crown Dependencies, that are not part of the UK but rather considered as a
remnant of the Duchy of Normandy. They are self-governing entities with their own courts and legal
system at the head of which is the Queen referred to as “our Duke” (in reference to the Duke of
Normandy).

The Channel Islands have a special status, not part of UK, not part of EU

The English Channel protects the island, insular country, they think they are very different from the
countries of the continent.

2 - Great Britain
GB = a geographical term = the largest of the British Isles.

Includes three territories: England (capital: London), Wales (capital: Cardiff) and Scotland (capital:
Edinburgh) approximately, 60 million in population.

Great Britain refers to the main island of the archipelago, it’s not a political term

3 - The United Kingdom of Great Britain and Northern Ireland

The UK = a political term = 4 nations England, Wales, Scotland and Northern Ireland

[Great Britain (=England, Wales, and Scotland)] + Northern Ireland = the UK

Is a slow union of four countries/nation= England, Wales, Scotland, Northern Ireland, it’s a voluntary
union between the 4 nations
Huge conflict between Ireland and Northern Ireland due to the religion: catholic/protestant

Northern Ireland wanted to be independent, the conflict between Ireland stopped thanks to EU

Ther were no control at the border, so terrorist can put bombs at the check point.

Brexit: June 23, 2016:

-Scotland and Northern Ireland refused to exit Europe

- England (53,4%), Wales (52,5%) wanted to leave the EU

Without the EU, the UK is weak because they do not have the support of EU, and don’t have the
support of USA neither

B. Johnson didn’t want the Brexit but promoted it, he had nothing against EU, his father work for EU,
but he wanted to be prime minister and he needed to the support of the conservative parti, on the
right side. The Brexit is just petty feuds (querelles) between his rival David Cameron and him. BJ
wanted to be prime minister instead of David Cameron so he decides to promise that he will make a
referendum about the Brexit (eurosceptics in favor). Some people didn’t think of the impact.

Today we are witnesses the repercussions of Brexit

- The territory

The full name is The United Kingdom of Great Britain and Northern Ireland

UK = political concept, people are British they have the same passport

The Union Jack is the superposition of the England, Scotland, Wales, and Northern Ireland flag

Scotland join the Kingdom of England in 1707= Act of Union, Ireland have its independence in 1922.

Centralization around England, London as dominant institutional, political, economic, and cultural
center. A heavily centralized country= attraction to the center vs the periphery
Since the 1970s, contrary movement= more autonomy given to the periphery = DEVOLUTION

English law is jurisprudential law = based on court decisions that have been made in concrete cases
that have taken place. So there are gaps in the law if there have been no concrete cases, there are no
laws.

So before 1707, Scotland didn't have the same corpus of court decisions as England because it's
based on past decisions. So when we talk about common law, it's just England and Wales.

Pas confondre Common law and Commonwealth

England was always the dominant actor

In 1707, the two parliaments merged, the Scottish one has been dissolved
In 2014 there was a Scottish referendum to be independent, but they didn’t know about the Brexit
project, so they voted in favour of UK

Commonwealth= 56 countries

Britain was once an empire, it included Canada, many countries in Africa, Australia, India, USA at one
point etc. Once they were all independent, they found the British commonwealth that promote
education, env, dev, economy…
Two countries weren’t in the British empire so they ask for join the commonwealth= Rwanda et
Mozambique

Very often laws passed in parliament contains specific procedure, ex: Habeas Corpus Act in 1679,
protection of civil liberties in England, voted before Scotland was united to England in 1707. But
Scottish law also guarantees civil liberties

I. Demographics
Britain seems to be a ‘closed’ country, but in fact it has always been a country of immigration: Celts,
Romans, Angles, Saxons, Jutes, Vikings, Normans, French Huguenots, Jews.

Even their current royal family is German (House of Windsor was originally Saxe-Coburg and Gotha).
There were of course exchanges between the four nations, many people coming from Ireland in the
19th c. In the 1990s and 2000s, Eastern Europeans (Poles = les Polonais), French...

Rappel: More recently extra European emigration has developed. Caribbean people, Africans, Asians
came after WWII, a « new immigration » coming from the Empire and the Commonwealth. For the
first time, a large part of the immigrants was not white and not Christian. Many of these people are
second or third generation born in the UK and see themselves alternatively as part British, part
foreign or entirely British or entirely foreign.

Each type of immigrant brought new conceptions of the law and forced the law to adapt. Romans
and Normans had the deepest influence. The more recent influx of a large non-Christian, especially
Muslim, population has led to interrogation about British identity and ‘Britishness’. British society can
be described as multi-faith but also as secularised. Yet as a concession to Islam, sharia is now being
used by solicitors (notaires) to interpret succession rules (wills) of Muslims.

II - Law in English/Law in England & Wales

The term « law » has various meanings.

In many languages, there is a distinction between written laws (lois in modern French) and law as a
concept.

The institutional landscape: a constitutional monarchy and a parliamentary

democracy
I - The constitution: the nature of the British political regime
A - Britain is

- 1) A parliamentary monarchy: the head of state is the monarch.

Monarchy: ‘government of one’: type of political system where the political authority resides in one
person. Common def.: political system where the Head of State is a hereditary king or queen.

However, in Western Europe, monarchs like Elizabeth II have little power left: “residual powers» or
privileges, which are mainly symbolical.

∆ ‘The Queen reigns but does not rule.’: to declare war, make treaties, take possession of, or give up
territories, issue orders to armed forces, control and manage the civil service. She can dissolve
parliament, appoints Prime Minister, opens and closes parliamentary sessions, signs laws (royal
assent), head of the Anglican Church, appoints archbishops and bishops (on proposition by PM),
appoints ambassadors, awards honors and titles (list given by PM). The Queen has a power of
consultation and advice for government. The Queen signs the law

The Queen represents national unity and the UK, she reads the speech when the session
parliamentarian open, it contains the political agenda. The speech is written by the PM

- 2) A constitutional monarchy

It is also a constitutional regime. There is a myth that “the United Kingdom has no constitution.” This
is wrong. The UK has a constitution, but it is not written in the form of a single document (one of few
countries in the world). The distribution of powers is defined. They are codified through written
sources which, put together, form a flexible constitutional system. Without such rules, there would
be no state anyway.

All the decision taken in the parliament, is part of the constitution as also habits, conventions

- 3) A representative / parliamentary democracy

In a representative democracy, the people elect representatives to a Parliament or national

assembly. In Britain, it is the House of Commons to which MPs (Members of Parliament) are elected.
Universal suffrage guarantees the legitimacy of this parliament to vote the laws. Citizens cannot
influence legislation directly, but in return for being elected, the representatives are accountable to
the people they represent, they must defend their interests, and stick to what they promised they
would do. If they don’t, they may not be re-elected later => a contract.

- 4) A liberal democracy

In a liberal democracy, political authority is based on popular consent = vote.

- Civil liberties (speech in particular…) must be protected at all costs by the rule of law (l’Etat de
droit). In Britain, individual freedoms are guaranteed by the law and by the courts

- 5) A capitalist democracy

Limited intervention of the state in all matters.

Economy: the market is the dominant force, state interference must be limited

Before Margret Thatcher, everything was nationalized (hospitals, trains, buses, education), after THE
WWII there was the welfare state (Etat de providence), ex: free education for all.

With the discover of oil, everyone lived better, ex: medical care is flued thanks to petrol.

But oil is not very good for the env, it is a condense timelapse, it contains 6million years of time. If we
use all the oil, we cannot wait 6m years. It is a very important issue

B - Law in English/Law in England & Wales

Common law means:

The law of the whole land (commune ley) ≠ local law

The law of the ‘common man’, not the law made by Parliament ≠ statute law.
Common law is the basis of our law today: it is unwritten law that developed from customs and
judicial decisions. The phrase “common law” is still used to distinguish laws that have been
developed by judicial decisions from laws that have been created by statute or other legislation

Common law is also used to distinguish between rules that were developed by the common law
courts (the King’s Court) and the rules of equity which were developed by the Lord Chancellor and
the Chancery courts. Can also have a different meaning, it can refer to the opposition between
common law and equity

In countries with a common law system, decisions by the judges are considered law and have the
same force of law as statutes.

≠ any foreign system of law.

≠ case law which includes common law and equity

Common law is when we propose to the civil law side, financial compensation and equity is a court
order, not financial compensation (to someone who enters your garden every day, you want him to
stop)

II – THE PURPOSES AND FUNCTIONS OF LAW, LEGAL CATEGORIES

A. The purposes of law

Law is meant to maintain order and related to resolve problem which are caused by social life.

There are connections between law and ethic and an analogy with moral principles.

Law aims to governing the individual behaviours in a specific society according to specific habits,
belief, tradition, ideals…

Law is a shifting, it’s not very fair sometime ex: husband can kill his wife

1) public order

Law allows the preservation of the public order (murders are not tolerable behavior), you need to
impose rules on population but also ensure fundamentals freedoms ex: freedom of speech, freedom
of faith…

2) political order
Human rights act
Article 8 – Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety, or the economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and freedoms of others.

Dualism= this theory says that international and national legal order are equally but completely
independent and separate, which coexist in parallel, there was no relation of subordination between
the two systems.

Monism= considers that the rule of national law is the same sphere with that international, existing a
report of supra/subordination, depending on the variant adopted. This theory considers that
national law is derived from international law

3) Social order
To different citizen, people with disabilities, law tried to levy those differences by giving equal
identity but ofc it is an ideal.

Law is meant to fight discrimination based on gender, ethnicity… ex : equal opportunity act

All the litigation, dispute between private people must be solved. To preserve the social order, laws
will be established.

4) Economic order

In all country, the law recognizes the right of property, lease (bail), trustee is given the responsibility
to transfer property to someone else who will benefit

There is two ways, to regulate the economy: when it is a market failure, the market needs
regulation. The problem is that the state only intervenes when it’s too late, so the economy failed.
The state can intervene in housing with property owners = Corporate criminal law.

5) International order
There is a growing need for a regulation of world trade, regulation of the use of the sea and space.
Unfortunately, those institutions that are in charge of making sure that countries respect
international treaties don’t have the power they should have (ex: war in Ukraine, people know what
it’s going on but can’t do much)

Art 7 of the Treaty on European Union

It was created as an emergency procedure to safeguard basic protections for democracy and civil
liberties. It can only be used if a country is seriously and systematically breaking the rules that keep a
modern democracy working properly. Things like free and independent media, independent courts
with power to stop the government abusing its powers, and rules protecting minorities and basic
freedoms.

6) Moral order
Important treaty: Geneva convention in 1949: in case of conflict, civilians are protected, refuges
have rights, the sick, the old are helped and have attention, treatment of prisoners, use of chemical
weapons.

Gaz was used during WW1 and WW2, during Syria war but the moral order protects women and
children, so they try to do not destroy the territory.

B. Legal categories
1. Roman law, codified law vs. Common law as case law

Common Law refers to case law as opposed to codified law.

The role of the binding precedent: « In simple terms, the doctrine of judicial precedent, also known
as the doctrine of stare diseases (let the decision stand) means that when a judge comes today to try
a case he must proceed by analogy and always looks back to see how previous judges have dealt
with previous cases (known as precedents), which have involved similar facts in that branch of the
law. The judge has to find these principles known as authority in point directly relevant to the case
at stake. He will therefore seek to make a decision which is consistent (être cohérent) with the
existing principles in that branch of the law, and he may, in his turn develop those principles a stage
further. »

2. Statute law vs common law, judge made law

Statute law= law voted in parliament

Judge-made law= court decisions that have the force of law

A statute= a law enacted by the legislative power through a formal procedure.

Common law is the codification of customs and traditional conceptions of justice. It follows
standard or common practice and is validated by judges who follow the rules of natural law by using
common sense and equity.

- Common law is made by the judiciary power (= judges who create precedents)
- Statute law is made by the legislative power (= Parliament who votes Acts)

3. Equity + Common law = case law

The second major historical source of English Law

Equity was the body of rule there to mitigate the severity of the rules of common law, to alleviate
the technical injustices of the latter (de cette dernière) and remedy its defects, offer remedies other
than damages likes injunctions, prohibitory injunctions, temporary injunction, orders of specific
performance
Ex: public injuries, we can ask for apologies but no financial compensation
An injunction is an order to one of the people involved in the case to do something or not do
something.
mandatory injunction= the court orders one of the parties to do something
prohibitory injunction= the order is to refrain from doing something
Historically, litigants who could not obtain justice would seek the Chancellor’s aid (in the Court of
Chancery where equity was administered) opposite the 3 common law courts in Westminster

4. Public and Private (civil) law

Public Law=
- International Law (is concerned with disputes between nations; much of this law comes from
treaties which have been agreed by the government of the country)
- Administrative Law (controls how ministers of state and public bodies should operate (local
councils) the right of judicial review on certain decision);
- Constitutional Law (controls the method of the government and any disputes about election,
what is allowed to become a MP);
- Criminal Law (set out the types of behaviour which are forbidden at risk of punishment);

Private Law=
- Contract Law
- Tort Law (even through there is no contract between them, one person owes a legal
responsibility of some kind to another person and there has been a breach of that
responsibility, ex: a child passage is injured in a car accident = tort of negligence);
- Family Law (marriage, divorce, care of any children of the family);
- Employment Law (covers from the original formation of a contract of employment to
situations of redundancy or unfair dismissal)
- Wills and succession (regulating who inherits property when a person dies without making a
valid will, what the rule are for making a valid will)

Public Law = the state is a party in the litigation

Private Law= litigation between private people

5. Criminal law vs. tort/civil law

Tort/Civil law = litigation between individuals

Criminal law = litigation between the state and individuals with a crime

The cases take place in different courts:

- criminal cases will be tried in either the Magistrates’ Court or the Crown Court
- civil cases are heard in the High Court or the County Court
the person starting the case is given a different name:
- in criminal cases they are referred to as the prosecutor, and states agencies conduct the
case
- civil cases are started by the person (or business), called a claimant, who is making the claim

the terminology used is different:

- a defendant in a criminal case is found guilty or not guilty
- a defendant in a civil case is found liable or not liable

The standard of proof (norme de preuve) is different:

-criminal cases must be proved ‘beyond reasonable doubt.’ This is a very high standard of
proof and is necessary since a conviction could result in a defendant serving a long prison
sentence.
- civil cases have only to be proved “on the balance of probabilities”, a lower standard in
which the judge decides who is the most likely to be right.

Emphasis should be laid on the fact that most crimes can be torts as well and vice versa; it is the
procedure proper that enables to distinguish between civil and criminal offences, rather than the act
itself. Ex: assault and battery (tort) can cause death and be considered as homicide (crime)

6. Substantive law vs. Procedural law

Substantive= actual rules and duties citizens must abide by.

Procedure= the set of rules must follow when deciding a case

7. Matter of fact vs matter of law

Parties to a litigation agree on the facts

The courts may take judicial notice of the obvious

Parties disagree, facts need to be proven:

-beyond reasonable doubt (criminal)

-on the balance of probabilities (tort)

Facts refer to the actual events of a case and may be decided by lay people and a jury

Law refers to the legal rules that may or may not apply to these facts and are determined by judges
Ex: facts= assault and battery but the way the fact may be dealt with legally may have to do with
both criminal law and tort (the legal issue proper and what principles may apply to the facts)

fact = context and specific facts of dispute, specific facts into the dispute need to be taken in a
consideration

Law= refers to the type of action (you obtain a damage or injection)

The sentence
The sentence should reflect the public's revulsion triggered by the crime. It should be proportionate
to the crime committed with respect to its gravity compared to other more serious and
less serious crimes. Moreover, the sentencing is meant to act as both an adequate retribution for the
offence committed as well as a deterrent from committing other crimes. When considering the
sentence, courts must assess the gravity of the crime not only through moral fault but also through
the degree of harm caused.

They should also consider the personality and circumstances of the defendant. Theoretically, i.e in
law, the sentence should be the same whether the mens rea has led to actus reus. Yet, in practice,
courts will be more lenient when the intention did not lead to completion of the crime and therefore
did not cause the same amount of harm.

A deterrent (outil de dissuasion), a deterrent penalty

Proper retribution: "an eye for an eye…”, (loi du talion)

ex: death penalty is seen as a deterrent or proper retribution

Crimes (délits):
A crime= is a wrongful act that the state or federal government has identified as a crime. A criminal
case is a criminal proceeding.
The accused is also called a « defendant ». The victim is the person who has been hurt or the state of
Georgia or other governmental entity. The charges are brought by the government. If the defendant
loses, the defendant must serve a sentence. A fine is paid to the government and there is possible
restitution to the victim.
To conclude: if someone kills someone, the state identifies as a crime so it can lodge a complaint for
crime against society. And the family of the plaintiff can also lodge a complaint and receive damages
if the win the trial.

“As a matter of analysis we can think of a crime as being made up of three ingredients, actus reus,
mens rea (negative element), absence of a valid defence” (D.J Lanham)

- Assault and battery (coups et blessures)

- Assault causing bodily harm
- Rape
- Forgery (contrefacon)
- Arson (incendie criminel)
- Manslaughter
- Homicide etc.
- Conspiracy (but also in civil law)

Tort:
Tort law covers situations in which a party, injured as a result of another party’s wrongdoing, is
entitled to a legal remedy.

4 elements to take in consideration:

- Duty
- Breach of duty
- Causation
- Injury

The claimant sues the defendant, tort=wrong

Ex: duty of care has been breached= tort of negligence

Remedy= financial compensation, damages and/or injunction (specific performance, not to do

something, etc.)

Various torts or wrong suffered:

- Negligence
- Defamation, libel, slander
- Assault, battery

- Intentional infliction of emotional distress

- Trespass (intrusion)
- Fraud
- Deceit (tromperie, dupery)
- Negligence (car accident, etc.)

Custodial sentences (peine de prison (ferme)), referring to sentences of imprisonment

Community sentences (travaux d’interêt general) are sentences of community orders (i.e. curfew
orders, attendance sentence orders, community service orders, probation orders)

STATUTE LAW
I – PARLIAMENT AND PRIMARY LEGISLATION
A – The rise of Parliament
The council could vote statutes= laws imposed by the king to everyone

Between 6-11th centuries (until 1066), the Anglo-Saxon kings organised the Witenagemot (=
“assembly of wise men”) with the most important noblemen and churchmen. Its powers are not well
known, but they probably acted as some form of parliament, discussing certain laws and issues.

After the Norman invasion (1066), it was replaced by the king's council: made of nobles
(landowners), his closest advisers, ministers, in charge of daily administration of the kingdom and of
voting the taxes.

Until 19th century, there were very few statutes that were voted in Parliament, most of the law based
on decisions and traditional case law, the statues law depended on the king, when the king wanted
to levy taxes, he had to gather the barons. The king will vote the status with his council, one of the
first statutes is the Constitution of Clarendon (1164)

- The Constitutions of Clarendon (1164) are sometimes seen as the first statute (law governing trial
of ecclesiastics). But traditionally, it is considered that written law has existed since 1225, when the
Great Charter (Magna Carta 1215) was reformulated under Henry III. The Great Charter was
imposed on king John Lackland by his barons (brother of Richard the Lionheart). At the time, there
was no real parliament. The King had two councils to help him govern.

Magna Carta (1215): imposed to king John by his barons, who obtained rights and freedoms: king
not above the law

B. The emergence of Parliament

Simon de Montfort, who rebelled against Henry III, was the first to summon a ‘Parliament’ in 1265.
Summoned about 400 people:

- all the nobles, bishops and archbishops, abbots, members of the lower clergy, 2 knights for each
shire/county (= comté).

- and two burgesses from each city, known as the commoners. These citizens were brought in
because they represented the rich emerging “bourgeoisie” (merchants, traders, artisans etc.) = the
emerging gentry = new = not only the nobles and church were consulted.

Montfort wanted to consolidate his legitimacy by including people who did not support the king as
much as the clergy and the nobles. => the king’s council became more representative of the country,
as if the king needed the approval of the “people”. It did not replace the King's Council, it was just an
additional institution.

In 1295, King Edward I, in need of money for war in Scotland (cf. Braveheart), decided to summon a
parliament. A way to consolidate his authority and avoid the rebellion his father had faced.

Edward’s Parliament was called the “Model Parliament” because future Parliament imitated its
composition. Parliament then was summoned more regularly though not every year.

= representativeness

I. Historical development of Parliament

Each assembly also started to discuss separately, but quickly; their interests started to clash. Under
Edward III (100 Years’ War), consent of Parliament became essential as the king was in need of
money for war. At the beginning, it was the king who presented legislation, but slowly, Parliament
took the initiative of laws to be voted.

- 1341: first time the Commons met separately

- “Lower Chamber” became known as the House of Commons = lower aristocracy + rich urban
people
- “Upper Chamber”, nobility and clergy, became known as the House of Lords from 1544
onward
- Collectively known as the Houses of Parliament

Parliament was summoned irregularly by the king. But Parliament became more autonomous and
started proposing its own “bills” to the king
Taxation was the main work of Parliament. Tension appeared with the Commons because
Parliament wanted to be consulted and the king sometimes refused.

In the 16th and 17th century, the modern procedure was adopted: presentation, 3 readings of bill,
adoption by House of Commons and House of Lords, King’s signature (royal assent). Legislation
became the deliberate adoption of specific proposals embodied in specific texts proposed by the
Crown or its officers.

A king beheaded:
Parliament was the main counter power to monarchy until the late 17th century.

The tension between the crown and Parliament increased in the 16th and 17th centuries because
the kings (and Queen Elizabeth I) still held important powers (foreign affairs, emergency measure for
defence, regulation of trade, religion…) but they had to obtain the support of Parliament for most
things.

Parliament was not regularly summoned. In the 16th century, it was summoned every 2 or 3 years.
The tension reached a peak under king Charles I who refused the control of parliament and did not
summon the Commons for 11 years (1629-1640). This ended in a revolution, the king was beheaded
(1649) and Oliver Cromwell imposed a Republic (the Commonwealth). Monarchy was restored in
1660, but it was weakened.

1649-1653: the Commonwealth of England

1653-1659: the Protectorate

C – From king's power to Parliament's power: the Glorious Revolution

1688: King James Il, Catholic with absolutist tendencies. Conflict appeared. Parliament rejected him
(Anglican Church official), and king fled to France.
Parliament asked a Protestant prince, William of Orange (Holland), to take the throne. William was
married to Mary, daughter of James.

The glorious revolution:

In exchange, William must accept the Bill of Rights (1689), a list of rights and duties for king and
Parliament, which gave legislative power to Parliament

1. The king was no longer allowed to hold exceptional powers (suspension of a law, exceptional
justice, taxation…).

2. MPs were allowed to speak freely inside Parliament. Commons allowed to meet regularly. = The
Commons were now the dominant institution in the country.

The royal prerogative still exists but in a very limited number of cases. Officially, for instance, it is the
Queen who summons Parliament every year, announces the government's program for the year
(Queen's Speech), declares war, signs treaties etc. but it is at the initiative of the Prime Minister =
Parliament is technically “the Queen in Parliament”. Ministers are “her Majesty’s Ministers” etc.

D – From private interests to public good

Most acts of Parliament: local and/or private (ex: land ownership, building of roads, canals,
divorces…)
Few public Acts: taxation and trade essentially

In the second half of the 19th century, private legislation became a minor preoccupation while
public general legislation increased. The number of acts grew to follow the pace of the industrial
expansion, i.e. the Industrial Revolution, and the related demographic expansion: urban dvt became
an issue. => more and more acts were passed as the state took more and more responsibilities to
support public policies at a national level to limit the nasty consequences of the Industrial
revolution.

An emblem was the Public Health Act of 1838 which created a Central Board of Health (national
central authority) obliged municipalities to organise drainage (sewers = égoûts), water supplies and
street cleaning to avoid epidemics (cholera eg).

- In the 20th century, legislation reflected the devt of social policies and exploded literally: health,
education, direction of the economy, administrative reform. Ex: expansion of right of vote = universal
suffrage: - 1918 for all men ≥ 21 + married women ≥ 30 ;1928: all women ≥ 21

The creation of the Welfare State in 1945= massive state intervention in social and economic matters
became common, accepted, and desired by the people. Legislation became part of the political
game. The "general interest" was now essential.

Parliament today:
Bases of constitution in democracy: the separation of powers

A constitution is not entire in a single doc, there are miscellaneous sources, diff text, conventions,
international treaties, and European laws of the European union

It doesn’t say anywhere how it works, it doesn’t say that it should have a Prime Minister, that the
Queen has symbolical powers

Sources of the Constitution

A – Sources
4 essentially:

1) Parliamentary laws: Magna Carta, 1215, Habeas Corpus Acts 1640 & 1679, Bill of Rights 1689,
Reform Act 1832, European Communities Act 1972, Human Rights Act 1998 etc.

2) The Common Law. Legal decisions which have become legal rules established by the higher courts
(= tribunaux supérieurs) like the Court of Appeal, the House of Lords until 2009 and now the
Supreme Court supposed to embody the values of the national community.

3) Conventions= Rules that are accepted by everyone but were never voted and cannot be enforced
by a court of law. A convention is a practice which, through custom, is the appropriate behavior or
procedure to follow in given circumstances. For example, the rules of the monarchy are essentially
conventional: Royal Assent.
Pragmatism= Nothing written, but imposed over time, sanctification of usage, of something that
works. These conventions can be considered as antidemocratic because they were never voted.

4) International treaties and laws of the European Union: these acts are considered as if they had
been passed by the British Parliament. By joining the EEC in 1973, the UK accepted to follow the laws
of the European Parliament and the decisions of the European Court of Justice.
B - The three powers
‘Real’ power is exercised by the legislative, the executive and the judiciary powers, through
institutions: i.e., Parliament, government/ Cabinet and courts of law. Powers is exercised in the
name of the monarch, but the monarch doesn’t intervene directly.

1- the legislative branch/ the legislative: the process of making laws. In the UK, Parliament,
made of the monarch, the House of Commons and the House of Lords.
2- the executive branch: the implementation of the law. All agents of government, especially
the Cabinet (20 main ministers around the Prime Minister), local government, civil
servants…. Civil service doesn’t change, there is always the same people, only the PM
changes
3- The judicial branch/ the judiciary: the enforcement of law, i.e., making sure that the law is
respected and redressing injustices. Courts and police

C - Main constitutional issues

Three essential principles must be respected in a democratic constitution:

1) The rule of law (± « État de droit »). Laws apply to all citizens and to the state (or the agents of the
state). ‘No one is above the law.’ This principle was already applied in Magna Carta (king must
summon parliament to levy taxes)

2) Parliamentary sovereignty means that Parliament is the supreme lawmaker in the country, any
important decisions taken by the executive need to be discussed and voted in the Parliament. Only
Parliament can unmake a law that it voted.

3) Separation of powers requires that the three powers do not overlap as much as is possible. They
must be balanced so that not one of them dominates the other two excessively.

What typifies the UK is that it is a monarchy, ruled by a monarch who has only symbolic powers, the
Queen is at the head of:

- The judiciary
- The executive
- The armed forces etc.
- The Church

The Queen: “to advise, guide and warn the government”

Symbolic powers:
To declare war, make treaties, take possession of, or give up territories, issue orders to armed
forces, control and manage the civil service

Prorogues parliament, appoints PM, opens, and closes parliamentary sessions, sign laws (royal
assent), head of the Anglican Church, appoints archbishops and bishops (on proposition by PM),
appoints ambassadors, awards honours, and titles (list given by PM)

Real power: to warn, to encourage & to be consulted

The queen has a power of consultation and advice for government

The queen represents national unity (geography) and continuity in time (history), a source of
stability
She meets the PM every week, (on a weekly basis) for a private audience

She always remains neutral and is not allowed to vote.

B – Democracy at work – reminder on the FPTP system (general election in the UK)
The general election
Many different elections in Britain:

- General election (en anglaise au singulier : les élections législatives)

- Local/ mayoral
- Regional
- European?
- Referendums: since the 1970s

= an active democracy where citizens are regularly asked to choose their politicians

The general election sends MPs (député) to the House of Commons (law is made in Parliament)

B. A quick reminder: the British electoral system

Britain is a representative democracy: citizens choose people to represent them in an assembly
where they discuss and vote the laws of the country.

Conditions:

- Universal suffrage: the whole adult population must vote.

- Free and fair elections

- Several parties: competition for power with a real choice for voters.

- Free media to make programmes of all parties public.

- An opposition is allowed in Parliament to defend other points of view.

- Separation of powers

- the MPs are accountable to their electors and supposed to act in a way that satisfies them. Regular
elections are another condition of representative democracy, as is universal suffrage.

- geographical representation: each MP is elected by people living in a given area, a constituency

(circonscription)

The British electoral system

The “first-past-the-post system” (FPTP) (scrutin uninominal majoritaire à un tour)

The first-past-the-post system is a ‘simple majority’ system, similar to a horserace: on election day
the candidate with the most votes win.

Advantages of FPTP:
• Easy to understand voting procedure transparent, clear political choice. No bargaining
(négociations) between parties before the election.
- strong government. Almost always produces a clear majority in the Commons
= no need for a coalition, no interference from other parties.
• Stability of political institutions.
• Strong links between MPs and constituents (= voters) exist. People know their MP and can contact
him/her easily to express their grievances. An MP represents all the people living in his/her
constituency, not just those who voted for him.
- It works. Since 1884. 67 other countries use

Drawbacks
FPTP not really representative. MPs belong to social and educational elite, do not reflect
aspirations and needs of the mass of the population.

Since the 1990s, increasing demands for a reform of a system seen as undemocratic as it looks and
unfair: proportional representation

It is a minority's choice, not a majority's choice.

Winning party gets an absolute majority in seats (except in Feb-Oct 1974, in 1977-79 and since 2010)
but never an absolute majority in votes (i.e. > 50% of votes) since 1935.

Country ruled by a party not supported by a majority of people = party with the largest minority
wins.
2001 general election; Labour won
- 62% of the seats in the House of Commons.
- with 44.4% of voters
- and only 25% of the total electorate (i,e. registered voters)

System doesn't encourage women and ethnic minority candidates.

- Only 127 women elected in 2005 (<20% of the total), 144 in 2010 (22.2%),
- In 2015: an increase in the number of female MPs, to 191

Smaller parties stand no chance as electors know it is useless to vote for them, because they will
never get a majority in Parliament to govern the country or even to enter into a coalition. Liberal
Democrats hate the system: they often come second (many votes) but don’t win
Ex: In Oct. 1974, Labour got 24 times more seats than the Liberals with only twice as many votes

Strongholds (=bastions): a large proportion of the population vote for the same party= “safe seats”
because one party sure to win a large majority of the vote

The Conservatives are still the biggest party in the House of Commons, and they have now agreed a
deal with Northern Ireland party the Democratic Unionist Party (DUP), to have its support in key
votes.

The Conservatives' 318 MPs and the 10 DUP MPs together make up more than half the MPs in the
House of Commons.
• So, are the Conservatives and the DUP in coalition?

No. A coalition= normally means different parties agreeing on a joint programme and
ministers coming from both parties. The Conservatives and the DUP have agreed what is
called a "confidence and supply" agreement. This is where the DUP agree to back the
Conservatives in key votes - such as a Budget and a confidence motion - but are not tied
into supporting them on other measures

C – Her Majesty’s Parliament:

Structure of Parliament
Parliament consists of the House of Commons and the House of Lords. Under the normal procedure
both Houses must vote in favour of a Bill before it can become a new Act of Parliament.

House of Lords = Upper House

House of Commons = Lower House

Bicameral system: two chambers= House of Lords + House of Commons

House of Commons:

The people who sit in the House of Commons are referred to as MPs. These members are elected by
the public, with the country being divided into constituencies and each of these returning on MP.
There are 650 MPs

• House of Commons elected = more legitimate than H. of Lords?

• Parliamentary session normally in November with the State Opening of Parliament, in which the
monarch delivers the Speech from the Throne in the House of Lords.
• Only occasion when MPs are allowed inside the House of Lords.
• The Queen doesn't have the right to address the Commons.

Royal Prerogatives
By virtue of prerogative, the Sovereign summons and prorogues Parliament, usually at the request
of Prime Minister.

Fixed-term Parliaments Act 2011= parliament must last 5 years (no early dissolution possible as
before, unless there is a 2/3 majority vote in Parliament or a vote of no confidence)

-Each new Parliament session is opened by a speech form the Throne given in the House of Lords
(written by the Prime Minister), outlining the programme of Her Majesty's Government

Before a bill becomes a law, it must receive Royal Assent by the Sovereign in Letters Patent duly
declared to both houses by their respective Speakers (le Président de la Chambre)

Civil Contingencies Act 2004

• In case of emergency, it allows the government to suspend primary legislation (i.e., laws
voted in Parliament)
• Former PM John Major argues that it could be a way to circumvent the Benn act (to
bypass/no to comply with it)
• Also order in council/order of council
• Orders in council= a specific type of legislation made by the Monarch with the advice of
PM and GVT or the Privy Council, linked to royal prerogatives, ex. Appointing representatives of the
Church of England (need Royal Assent)
• Orders of Council (no need for Royal Assent)

Conclusion:

Common law and statutes are complementary.

The number of statutes law has become considerable, but even if the whole of Statute law was
completely abolished, common law would still be enough to cover most of the cases. There would
still be a body of law to regulate life in society.

But if statute law was the only one to remain, justice wouldn't be able to function properly.

The functions of Parliament

1)Law-making

Laws define rights and duties (= fonctions) of the citizens and of the state
90% of laws come from the government.
Government is formed by the party that has won the general election
-> laws reflect the program of the winning party

2) Taxation

Cf.history : kings summoned Parliament to obtain financial ressources (for war especially)
Money bills (= factures d’argent) = the budget is providing the government with money to spend

3) Representation

MPs elected by the people in the country = they hold the power given by the voters and represent
them and their interests.

4) Scrutiny and influence

Parliament overlooks and controls Government: policy proposals, executive actions, and
expenditure (public money) by looking at accounts and asking questions to the Cabinet members,
including the PM.

5) Deliberation

Parliament is a place of free debate

Parliamentary privilege = complete freedom of speech inside parliament, legal immunity. Police
cannot enter.

The House of Lords

- Unelected members: hereditary or appointed (life peers) (= « undemocratic »)

- The ‘Lords Spiritual’: the 26 highest Anglican churchmen of the kingdom (the Archbishops of
Canterbury and York as well as Britain’s 24 bishops)

- The ‘Lords Temporal’: all the other Lords who were either hereditary or life peers.

They included:
The hereditary peers, the aristocrats, who passed their titles from male heir to male heir.
Technically, all the princes of royal blood (ex : Prince Charles) could sit but in fact never did to
respect their neutral position in public life. (92 hereditary peers)
Aristocrats could not be elected to the Commons unless they choose to renounce their title

I. Primary legislation

A) different types

Several types of bills. Important distinctions

a bill = A formal document prepared by juries, to be presented at Parliament and to be voted. (=
projets de loi)

Private bills vs Public bills

Public bills= deal with matters of public importance. They are intended to change the general law of
the whole country. Generally introduced by the government. Ex: The Legal Services Act 2007

Private bills= follow a very complicated procedure to be presented to Parliament and voted
Ex: University College London Act 1996

Local bills vs Personal bills

- Local bills= deal with land planning (aménagement de territoire), bridges, canals, roads
Ex: The University of Wales, Cardiff Act 2004
They also deal the powers of the local authorities, and the rights of corporate bodies (ex: BBC) -

-Personal bills deal with personal matters, esp citizenship, name changing, divorce, estate, property
Ex : new Southgate Cemetery Act 2017

Money bills vs Non-money bills

- Money bills = deal with budget, i-e expenditure of public money. Remember that by convention,
that the House of Lords, cannot defeat a finance bill (government budget), automatically passed after
a month.

- Non money bill= with other matters.

Government bills vs Private Members’ bills

- Government Bill= Most legislation is introduced by members of the government.

Reminder: a government bill part of the election manifesto is never defeated at a second hearing
(but may be later on)

- Private Members’s Bill= (Publics bills attention) introduced by individual members, generally
backbenchers.
Many MPs apply but a draw (= tirage au sort) is held to choose 20 of them at the beginning of each
parliamentary session - ballot bills (= bulletin de vote)

Various ways of being introduced:

- Friday afternoon is reserved for Private Members’s Bills

- The “ten minute rule”: MPs have 10 min to defend their bill, then another MP may also take 10 min
to opposite it. Then the House divides to accept or reject the bill. On Tuesdays and Wednesdays
around 12:45pm.

- A third solution is to introduce it after Question Time (every day 2:45pm to 3: 30pm)

Other bill and acts...

  - Consolidation Bills, statute law revision bills= put together several existing acts and statutory
instruments into one to simplify research. The law is not changed = Consolidation Acts; ex: The
Children Act 1989

- Codification Bills (simplify a situation). Statutes which regroup common law decisions and statute
laws, to clarify and simplify the situation, Codifying Acts

- Revision Bills= are bills they are meant to modify or adapt law because of the evolution of society

- hybrid bills: combine element of private and public bill

II. From Bill to act: the law making-process, the procedure

5 stages in the Commons:

1) First reading. The title of the bill is just read out to the Commons

2) During the second reading, the bill is debated « on the floor » of the House.
The minister responsible for the bill defends it, the opposition gives its opinion as well, can
attack the bill. The debate usually focuses on the main principles rather than the smaller details.
Then the speaker asks supporters to shout ‘Aye’ and opponents to shout ‘No’
If the outcome is unclear, he asks for a vote (‘Division. Clear the lobby’). Simple majority. The bill
can be rejected.
An ‘aye’ vote means that the bill can move on to the committee stage: « the ‘ayes have it ».

- The committee stage: a detailed examination of each clause of the Bill is undertaken by a
committee of between 16 and 50 MPs. The members of Parliament nominated for each
Standing Committee (Committee specially chosen for the bill) will usually be those with a
special interest in, or knowledge of, the subject of the Bill which is being considered.
Sometimes there is a committee for bills with political incidence, emergency, and bills who
are extremely important

- Report stage. The Committee reports what happened during the discussions
- Third reading. The Bill is presented in its final form. Only very minor changes. Different levels
of obligation: 3 line whip=must be there at all costs.

House of Lords:

- Often the second House examine the Bill table amendments, so the bill
returns to the House where it originated from who will agree or not agree to
them, in which case it will be sent back: ping-pong
 - Until:
- They agree
- The bill is lost for lack of parliamentary time
- The Parliament Act is invoked
ex: the Hunting Act 2004 blocked by Lords

The Royal Assent "La Reyne le Veult"

The monarch then signs the bill (the Royal Assent) which becomes officially an Act of Parliament.
A Royal Commission may sign the bill instead of the Queen.
The day of promulgation is the day of the signature, the first day of implementation of the new Act.
- Exceptions: Human Rights Act, signed Nov. 9, 1998, came into force on Oct. 2, 2000, to allow
lawyers some time to be familiar with the new law.

The final stage is still in the hands of the monarch - but is it a real power, since he cannot refuse to
sign?
The last time a monarch refused to do so was in 1708 when Queen Anne refuse her assent for a
Militia Bill In Scotland.
Acts are then published individually by the royal printer (HIMSO) and included in a yearly
publication; they can also be found on the LEXIS database as well as on the Internet on the
Parliament site.

How to accelerate or slow down the debates ?

1) The Closure Motion (proposition faite à l’Assemblée) : the vote takes place (si le speaker voit
que ça dure trop longtemps il procède à un vote à l’oral (« aye/no »)

2) The Guillotine: the period of time is fix in advance to discuss, the debate stops immediately

3) The Kangaroo: the speaker chooses which parties are going to debated, you skip parts of the
law which is not essential

4) Parliamentary filibustering (obstruction parlementaire) = MPs can talk endlessly, the vote
never take place

C. Anatomy of an act
- Short title ex: Human Rights Act c. 42 (42e loi de 1998)

- Citation

- Longer title (summary of the purpose of the bill)

- Date of royal assent

- Enacting formula= a fixe expression: BE IT ENACTED by the Queen/King’s most Excellent Majesty,
by and with the advice and consent of the Commons in this present Parliament assembled, and by
the authority of the same, as follows... »

- A preamble: arguments why the law is needed

- Clauses of the bill (articles) = the provisions (les dispositions).

- Schedules (attendus) with details, which laws are affected or repealed by the new bill...

- Explanatory memorandum: contents of the bill in plain non-technical language.

- Clauses are organised in sections, subjections (articles), paragraphs (alinéa)

First important distinction not to confuse:

Primary sources of law are authoritative sources of law which means that they are statement of
what the law is whereas secondary sources are more akin to interpretations of the law: to help
understanding the law.

- Primary sources = Acts of parliament, Statutory Instruments, Orders in Council, decisions of

superior courts

- Secondary sources = Books of authority, peer-refereed articles in law journals, leading textbooks
in the field, non-referred articles in key law journals.

Minor sources of law (pas besoin d’apprendre)

- Local custom: old customs which have remained (usage continu qui a acquis la force de loi). Almost
not used anymore, such as the right for a fisherman to dry his nets on private land.

- Law Merchant: droit commercial. Disputes between merchants, incl. foreigners and maritime law.
Common law refused to be involved at the beginning.

- Canon law: religious laws (droit canon, ecclésiastique). Include also marriage, divorce, heritage until
1857. Many rules came from Roman Law.

Books of authority, legal treaties (grands traités juridiques faisant autorité)

- William Blackstone (1723-1780) An Analysis of the Laws of England (1756) ; A Discourse on the
Study of the Law (1758)
- Walter Cageot (1826-1877) The English Constitution

- Edmund Burke (1729-1797) Sublime et le Beau

- Albert Venn Dicey (1835-1922) Introduction to the Study of the Law of the Constitution

Second important distinct not to confuse:

Primary legislation: acts of parliament

Secondary legislation: statutory instruments

Distinction between delegated legislation and subordinate legislation

Delegated legislation= statutory rules or instrument, Order in Council, By-laws

Delegated legislation is usually created by an Act of Parliament. It can also be made under the Royal
Prerogative (generally PM) in which case it would be more appropriate to refer to it as ‘subordinate
legislation’, since delegated legislation can only be created by delegated (statutory) authority by
Parliament

The Central Government Departments, the professional or administrative part, with their
staff of permanent officials known as civil servants (fonctionnaires), responsible for implementing
(mettre en application) government policy.

Each Ministry or Department is traditionally headed by two people:

The Minister who is the political head accountable to parliament

The Permanent Secretary, a senior civil servant who is the administrative head (irrespective of his
own personal opinions).

Contrary to the French or American systems, changes in Government do not involve changes in
personal at the top of the civil service.

The Private office is a body of selected members who remain under the general control of the
Permanent Secretary but whose main function is to assist the Minister personally.

Civil servant:

- They are prohibited from standing for Parliament

- Those with communist for fascist sympathies are usually excluded from recruitment
- They remain anonymous
- The minister alone is responsible for the actions of his department

Statutory instruments

Statutory instruments= refers to rules and regulations made by government ministers.

Ex: The Minister for Transport is able to deal with necessary road traffic regulations

The scope: technical aspects (dates on which provision of an act come into force) or changing the
level of fines and penalties.
Sometimes broader powers (pouvoirs élargis): filling out the provision in acts
Provide the necessary details, too complex to be included in the body of the act
Can also be used to amend, update, or enforce primary legislation, rules drafted by government
departments
Dictated to the administration and civil servants under the authority of a law (décrets administrés,
arrêtés d’application)
Ex: an act lay give power to Jobs center to make their own specific rules concerning the jobseekers

Some statutory instruments are simply laid before parliament for information others are subject to
parliamentary proceedings of 3 kinds:

1) affirmative resolution procedure: 10 percent of SI, need positive parliament’s approval

2) negative resolution procedure: 2/3 of all SI, the statutory instrument takes effect unless it is
disapproved within 40 days by a vote of either house of parliament
3) « other procedure » : 2/5 of SI require no parliament

D. Orders in Council/ Orders of Council

Orders in Council (ordonnance royale délibérée en Conseil privé) / Orders of

Council: The Queen is physically present, she acts on the advice of the Privy Council (i-e the Prime
Minister)

2 orders of what have been personally approved by the Monarch, at a Privy Council meeting:

- Statutory orders most = SI (delegated powers given by parliament)

- Prerogative orders: inherent powers of the Crown on matters Parliament has not yet legislated
upon, ex: appointments to the civil service.
- Their substance controlled by the government

E. By laws

Laws drawn up by local authorities, public corporations, municipal and public utility undertakings in
order to fulfill their responsibilities.

Waste collection= When no general legislation deals with particular matters of concern for local
people
Ex: Public Park opening hours
.
Come into force one month after being affirmed by the relevant Minister

Advantages of delegated legislation:

It saves Parliamentary time, since the civil service makes the detailed rules.
It is quick: rules and orders can be published very quickly (ex: in case of way)
It is flexible:
It can remedy problems were not anticipated by the legislation which arise, when the law is applied
It can be withdrawn or modified easily
Technical experts can influence the application of the law at that level and solve problems
    
Disadvantages of delegated legislation:
Parliamentary control is limited, even if Parliament can be informed of these rules officially can
repeal them... the Joint Committee on Statutory Instruments is there to check them, but it cannot
oversee all of them.

The Joint Committee on Statutory instrument comprises 7 members from each House + a Chairman
drawn from the Opposition Benches in the House of Commons: is concerned with the scrutiny of
statutory instruments on technical grounds (i-e legal, constitutional and procedural matters and not
with the merits of a policy)

Control of delegated legislation

A priori : Ultra vires (excès de pouvoir, dépassement de l’objet social d’une société, i-e beyond the
powers of Parliament)

A posteriori: Judicial review= committee that examines whether or not a statutory instrument is in
conformity with the law

Acts of parliament can never be ultra vires because parliament has supreme, unlimited power, and
authority of a statute can never be questioned in a Court
The court may nevertheless be asked to consider whether delegated legislation is ultra vires the
enabling act, i-e whether the body exercising the statutory power has not gone outside the limits of
the relevant statute = judicial review

Substantive ultra vires vs Procedural ultra vires

- Substantive ultra vires: statutory instruments are substantively ultra vires if they impose a tax,
interfere with the basic rights of subject (freedom of speech), or allow sub-delegation of powers,
without express statutory authority.

- Procedural ultra vires: (= vice de procédure) instruments will be held to be ultra vires if a mandatory
procedural requirement has not been followed but will not be if the procedure is only directory.

The duty to consult is mandatory (providing the statute started that there must be consultation -
there is no requirement otherwise). However, there is no requirement to do any more than ask for
consulted parties’ views - they can be ignored.

The duty to lay before Parliament is directory

The duty to publish is directory

2. A posteriori control: grounds for “judicial review”

A) Illegality

- Such a decision is called ultra vires

- Illegal decision which is outside their powers
- Misinterpretation of the law
- An error on fact
- Abuse their discretion or they exercise retention of discretion
 B) Irrationality

- If the decision is irrational and unreasonable it will give rise to application for a judicial review. The
decision must be so unreasonable that no normal person would have made it. It is very difficult to
prove this ground. The courts often quash the decision if it infringes on a person’s fundamental
rights and if the decision is unreasonable.

- The public body also must be proportional when deciding all decisions. By proportional it is meant
that the body acts in a way which will fulfill all legitimate objectives. There must be a careful
consideration whether such way requires unnecessary infringements, and such an infringement
must be as little as possible

C) Impropriety

- Procedural requirements have not been followed

- Common law rules of natural justice have not been followed (ex: the right to be heard or the
rules on impartiality)

D) Remedies

- The court may award

- Damages
- Injunctions
- Quashing order (which quashes the decision)
- Prohibiting order (which will prevent the public body from acting ultra vires again)
- Mandatory order (which will impose an obligation upon the public body to perform it’s legal
obligations)

III - EUROPEAN LEGISLATION :

A) The Maastricht Treaty established the 3 « pillars » of the EU :

- The European communities, the EC (related to social and environmental policies)

- Common foreign and security policy CFSP
- Police and judicial co-operation in criminal matters
- a push towards monetary and economic union: single currency (European central bank, the ECB)

B) Treaty of Lisbon, December 1, 2009

Creation of a president of the European council

Elimination of the pillar system
The division of the European policy into 3 categories
More qualified majority voting in the Council of ministers
More involvement of the European Parliament in the legislative process
The charter fundamental rights = legally binding instrument

C) The institutions of the European Union

- The European Commission
- The Council of Ministers/European council
- The European Parliament
- The Court of Justice of the European Union
- The General Court
- The European Central Bank
- The Court of Auditors

A. A short history of the EU: from the ESCE to the EU

" The European Communities Act” 1972= Britain's entered the EEC (European Economic Community)
on January 1, 1973

The original union started with the Treaty of Rome 1957 (Benelux, France, West Germany, Italy),
with the European Coal and Steel Community (CECA/ECSC)

1) Treaty of Rome (1957)

This marks the birth of the European Union

2) The Single European Act (1986) – the SEA

- Defined the internal market, free from all constraints

- Harmonize certain laws with respect to safety

- A new goal; the EU should not just focus only on economic considerations; establishes a framework
for a common foreign policy

- Some decisions need not be unanimous, they can be accepted with a sole majority vote of the
Council of Ministers

- It created two purposes for European parliament: directives and regulations

3. The Maastricht Treaty= Treaty on the European Union TEU + modifying the European
Community 1993

- created the European UNION (not Community)

- the EU consisted of 3 pillars:

- the European communities TFEU
- A common foreign and security policy TUE
- police and judicial cooperation in criminal matters (Justice and foreign affairs cooperation)
initially TUE but now FEU because of supranational competence

- establishment of the single European currency + a European Central Bank (ECP)

- The European Parliament became more powerful, and the other institutions were more
accountable, even though the accent was always on the economic / financial aspect of the
EU
- The Maastricht Treaty became the major legislative Instrument after the Treaty of Rome and
before the Treaty of Lisbon.
-Each member cannot exceed 60% of their NGP (national gross product) and budget deficit cannot
go over 3%

4) Treaty of Amsterdam 1997

established a limited number of EU MPs (at the moment there are 751 MEPs)

Makes explicit reference to the European Convention on Human Rights (created by the Council of
Europe); it allowed a member of the Council to suspend a decision by member states if it breaches
the ECHR

BEWARE: the ECHR has nothing to do with the EU inasmuch as it is not a European Union
institution!!!

Affirmed the European principles upon which the EU is founded (in the Treaty of Lisbon 'Values as
listed in Article 2 of TEU)

5) Treaty of Nice (2000)

Parts of the treaty dealt with foreign policy; common defense plans and the European Arrest
Warrant which is today extremely important in criminal law (mandat d'arrêt européen).

6) Treaty of Lisbon= the Treaty on the Functioning of the European Union (TFEU) + a
consolidated version of the TEU containing the basic principles

- On the same footing as the treaty on the European union, the TFEU (treaty of Lisbon) issued a
consolidated version of the TEU + the TFEU (Treaty of Lisbon)

- Since there is no formal European constitution, the TEU has become regarded as containing the
constitutional principles for the EU.

Article 4 of the Treaty of Lisbon (consolidated TEU) conferral principle

Art 4 of the TFEU states that anything that is not within the competences of the EU remains with the
member states.
Therefore, the consolidated TFEU makes clear what the sovereignty of the EU is.

Remember

For the UK to leave the EU, it had to invoke article 50 of the Lisbon Treaty which gives the two side,
2 years to agree the terms of the split.
PM Theresa May triggered this process, meaning the UK was scheduled to leave on Friday, 29 March
2019. It could be extended if all 28 EU members agree.

B - The institutions of the European Union

1) The European commission

- New legislation to the European Parliament, and the Council of the European union
- EU law is applied by EU members
- One commissioner/member state (28)
- 5-year mandate
- Brussels
Functions:
- it puts forward proposals for new laws to be adopted by the Parliament and the Council
- it is the “guardian” of the treaties and ensures that treaty provisions and other measures adopted
by the Union are properly implanted.
- it is responsible for the administration of the Union and has executive powers to implement the
Union’s budget and supervise how the money is spent

2) The European Council (Brussels)

-Overall political and economic orientation

3) The Council of Ministers/ the Council of the EU

- Other name = the Concilium

- Rotating presidency, every 6 months: Petr Fiala Czech Republic PM
- Composed of a representative of each member state according to the field
ex. a debate on foreign policy = all foreign ministers = the council of ministers

- it shares legislative power with the EU Parliament: ordinary legislation must be passed by both
institutions (Council of the EU and European Parliament)

Voting system in the Council of the EU

- each member state has been granted a weighted vote (vote coefficienté)
- Luxembourg has 4 votes
- Germany, France, UK, Italy have 29 votes.
- a vote is passed if there are at least 255 weighted votes = two-thirds of the member states
- So the biggest countries can decide on certain policies

4) The European Parliament (Strasbourg)

Main EU law making institution with the council of the EU, MEPs directly elected by the people
every 5 years in proportion to the population

The Parliament also:

-decides on international agreements
-decides on whether to admit new member State
- reviews the Commission’s work program and asks it to propose legislation

5) The Court of Justice of the European Union

- The CJEU sits in Luxembourg

- Comprises one judge from each EU member state
- 6-year term
- A single judgment (no concurring or dissenting opinion)
- Upholds (confime) the rule of EU law by ensuring consistency of application between EU countries
- Settling disputes between EU governments and institutions
- Decisions are binding on EU institutions and member states.
4 types of EU law :

1° Regulations (=reglements)

- most important and binding (contraignantes) forms of legislation

- Initiated by the European Commission, passed at the European level
- Have « general application and are binding in their entirety and directly application”
- make sure that laws are uniform across all the Member States

Ex: Bendy banana regulation. These rules may sound petty, but they have their advantages:
consumers will only see fresh fruit in their supermarkets.

 2° Directives:

- bind all member states to an overall objective

- Left to national legislation’s discretion (appreciation) as to the way they are enforced
- The UK tends to implement them to the letter (called « gold plating »)
- Other countries may have differing interpretations of both the objective and how to achieve it.

3° Decisions:

These can be addressed to a country, company, or even an individual are binding upon them.

4° Recommendations and opinions:

not legally binding

F. EU vs UK

In cases of conflict between the UK and EU legislation, EU law takes precedence.

Yet, European Union legislation contains no specific provision stating that European Community law
overrides or is subordinate to national laws.

Still, the principle of the primacy of European Union law over national law was pronounced by the
European Court of Justice in the case Flaminio Costa v. ENEL 1964.

Spiny issues

1. The divorce bill

2. The rights of migrants
3. Trade and tarifs (= tarifs douaniers/droit de douane)
4. Securing key industries: manufacturing, airlines, financial services + agriculture
5. Border controls: Irish hard border and the backstop
 Case law

A) Common law, historical meaning: a law for all land

The law of the common people.

A law for all the realm (= royaume).

Until the Norman conquest of England in 1066 (battle of Hastings), England was divided into small
kingdoms (Anglo-Saxons and Vikings). There was no unitary state and no « national » legal system.

Based on customary rules (procedures and laws) which Vikings or Anglo-Saxon kings applies in their
regions. Some rules were common to several parts of the country, but not always. Anglo- Saxons and
Vikings shared some legal principles.

Historically, William I started a process of centralization of the law.

Trials by ordeal:
Ex: - Ordeal of fire (« je met ma main au feu »)
- Ordeal by boiling water

A clever way of absorbing what was already present: unification via law not arms
- William did not want to change the local laws, he just wanted to make them uniform.
- The emergence of the common law represents the assertion and affirmation of a central
sovereign power.
- Essential in the creation of the nation = unified legal system + king’s power over the land

-The custom must have been excised peaceably, openly, and as of right
-The custom must be defined as to locality, nature and scope
-The custom must be reasonable
-The custom must be clear and certain
-The custom must be uninterrupted

Today is very unusual for a new custom to be considered, but there are exceptions

Common law; essentially a way of solving disputes between people.

Judges wanted to find a way to settle disputes (résoudre les litiges) but not really to find an equitable
solution for instance if someone: in the case of trespass (intrusion sans autorisation sur un domaine
privé), no way of forcing someone not to trespass over someone's land

A – The failing of common law

1) Inadequate, wrong goal

There was a specific writ for each complaint.

(Ranulf de Glanvill made a list of 80 writs.) Not enough!

Writ: assignation ou bref

The writ contained the allegation of the wrong (le tort causé) for which relief (demande de
réparation) was required.
It was essential to choose the correct writ, or the plaintiff would be nonsuited (débouté).
= Wong writ = no case= no action

Not all forms of action were covered = a common law right existed only if a writ was available. If
there was no writ where the clamant could fit his claim, he could get not justice, he had no case.
ex: If smoke from a fire made by someone on his land, invaded your land, there was nothing you
could do

Writs were expensive. Sometimes more expensive than the damage = it was useless to sue.

Judges could be corrupt.

It was possible to delay (= retarder) justice by arguing that you were sick or that you could not come
to court for natural reasons (bad weather, road cut off, bridge destroyed by a storm...).

Generally, justice favored the rich and powerful.

5) Inappropriate remedies: money only

To award: to give (accorder)

Damages: financial compensation (dommages intérêts)

The only remedy (réparation) the common law courts could give was damages: if the defendant was
found liable (responsable), he had to pay a sum of money to the plaintiff (= claimant) to compensate
him. But often, money is not what people wanted

6 – Disproportionate Verdicts

Verdicts were often hard, disproportionate= considered as unfair.

The poorer people were often incapable of paying the penalties imposed on them, because they
exceeded what they owned.

B- Equity a new approach: ideals of fairness & justice

Common law was just a way of solving problems between people. Its goal was not necessarily to
make a fair/just decision.

More and more people condemned by common law judges started to petition the King directly to
obtain a more equitable decision (= EQUITY)

to petition = adresser une pétition, formuler une requête auprès de

A Right of petition: fundamental right in England.

A) The King

-The King had the powers to rule on judicial matters with his Council. He often sat as a judge.

- The King was considered as fountain of justice: he could not tolerate injustice in his kingdom.
- The King could not refuse to examine these demands after they were rejected by other courts=
ultimate solution = reinforced royal authority.

B) The Chancellor

- By the 15th c, people petitioned the Chancellor directly.

- Chancellor= head of the Chancery Office (the royal secretariat), where all official documents were
prepared. Known as the Court of Chancery when it dealt with legal cases.

-The Chancellor studied civil law (Roman law) and canon law (religious law)
- The Chancellor was in charge of issuing the writs: he knew what the problems were.

- To issue a writ : délivrer une assignation ou un bref.

- As an ecclesiastic, the Chancellor put moral considerations above all. He was generally a bishop,
who was generally good and lenient (indulgent) to the poor, with a reputation of fairness.

- Started to administer a parallel system of civil law which emphasized “equity” over strict
application of the law.

The Chancellor became the keeper of the King’s conscience.

He made decisions on what seemed “right” rather than on the strict application of precedents and
procedures.

3) A simpler procedure

- Proceedings did not start by a writ but by a simple bill or petition filed (déposée) by the plaintiff.

no writ= the plaintiff just had to send a letter (=petition) explaining his case, in his own words, giving
names and details. There was no particular requirement (exigence).

Equitable remedies= No one can dictate what the Chancellor can do.

- Then, the Chancellor sent the defendant a copy of the petition with a writ of subpoena (assignation
à comparaître) ordering the defendant to come before (devant) him in court.

-Hearings (audiences) sometimes take place at the home of the Chancellor himself.

-Attendance was compulsory (obligatory). If a witness refused to come to court, it was considered as
a contempt of court (outrage à la Cour) punished by a fine (amende) or prison.

- Disobeying a direct order by the Chancellor was a crime.

4. The “maxims of equity”

The discretionary nature of equitable relief has been at the origin if the maxims of equity

maxims of equity= set of general principles which are said to govern the way in which equity
operates.
• Equity will not suffer a wrong to be without a remedy

• Equity follows the law

• Equity looks to the intention and not the form

• He who seeks equity must do equity the ones who come for equity have to accept the equitable
decision

• He who come to equity must come with clean hands. One who seeks must not have a twisted in
the back of his mind

• Delay defeats equity

2. Equitable remedies

Equitable remedies are only granted (accordés) when the common law is inadequate, and they are
left to the discretion of the court, the court could refuse equitable relief if it would cause undue
hardship to the defendant, or if the plaintiff himself had shown conduct incompatible with the
maxims of equity.

Decree of specific performance = order of the court compelling the defendant to perform his
obligations in accordance with the terms of the contract he has entered into.

Only granted when the subject matter is unique (a piece of land, sale of something of rare and
personal nature, NOT an ordinary article of commerce).

This remedy is not granted for certain specified contracts: Personal services (employment), etc.

III) Common law and Equity today

A) Common law damages

Common law remedies= damages are the primary common law remedy and may be claimed by the
injured party as a right: the payment of a sum of money (known as “pecuniary relief” intended to
compensate the injured party for loss suffered due to a breach of contract or a tort

Tort= extra-contractual harmful act (acte dommageable extra-contractuel; quasi-délit), or a breach of

statutory duty (devoir légal) committed by another person.

Breach= violation; rupture

- breach of the law= violation de la loi; breach of contract= inexécution du contrat.

• Liquidated damages= for a breach of contract when the parties involved had agreed in the contract
on a pre-estimate of the loss if the contract failed.

• Unliquidated damages= assessed by the courts.

• General damages (also “damages at large”) = damages that the law will presume to be a necessary
result of the harm alleged therefore not needed to be set out in the plaintiff’s pleadings because they
can’t be calculated in advance (loss of an eye, suffering)

• Special damages= awarded solely for financial loss which can be calculated and provided in
court, therefore, they must be specifically assessed in the statement of claim (medical expenses, car
repairs...)

5 kinds of damages

Nominal= small amount of money when no actual material damage or loss was suffered.

Substantial= compensates the loss actually suffered, be it physical or non-physical.

Contemptuous= very small amount (one half-pence usually), when a plaintiff proved his case in
court, but the court considers that the plaintiff should have never brought the action in the first
place.

General rules of damages= they are compensatory.

Only two types of damages where the amount may exceed the amount strictly necessary to make
good the harm suffered:

Aggravated= damages larger than those which the act complained of would normally justify. This is
to compensate a plaintiff who has sustained injury which has been aggravated by the motives or
conduct of the defendant, or by the circumstances in which the wrong was committed (slapping
someone in the face in public).

exemplary= not merely to compensate the plaintiff, but to punish the defendant.

--------------------------------------------------------------------------------------------------------------------------------------

Right of rescission= right of a party to a contract to have it set aside and to be restored to his former
position. Usually in case of misrepresentation or fraud, or under the influence of a mistake which
the Contract Law does not consider as “operative” (ie fundamental).

Rectification= remedy which corrects an instrument/act, recording a contract which does not accord
with the initial intentions of the parties.

Injunctions = an order to a party to do or refrain from doing a particular act.

Failure to comply= fine or imprisonment for contempt of court.

→ Several types of injunctions:

Prohibitory (to restrain the commission of a tort like trespass, nuisance, etc.) or mandatory (usually
restorative ex: order an act to be undone; or used to enforce negative stipulations, ex not to work
for a competitor).

Perpetual (lasts for an unlimited period of time), interlocutory (until the day of the trial) or interim
(until a specified date).

Ex parte (injunction delivered in the absence of the defendant until the case is heard by the court)
Quia timet: (“because he fears”: prevent an infringement of the plaintiff’s rights which is threatened
but has not yet occurred.)

B. Current applications of equity

- Law of probate / Probate matters (droit des successions): When someone dies, administration of his
private property.

- Execution of trusts (legal relationship based on trust, in which a person holds title to the property
for the benefit of another person. Ex: husband/wife, parents/children)

C- The “Doctrine of the precedent”

In simple terms the doctrine of judicial precedent, also known as the doctrine of “stare decisis” (“let
the decision stand”) means that when a judge comes today to try a case he must proceed by analogy
and always look back to see how previous cases (known as “precedents”) which have involved
similar facts in that branch of the law.

The judge has to find these principles known as “authority in point” directly relevant to the case at
stake. He will therefore seek to decide which is consistent (être cohérent) with the existing principles
in that branch of the law, and he/she may, in his turn develop those principles a stage further.

Donoghue vs. Stevenson 1932

The law of negligence in the law of tort (tout ce qui a trait à la responsabilité civile) has been develop
by judicial decisions; a starting point in this area being the case Donoghue v. Stevenson (1932);
which set the principle of the duty of care. It is the origin of the modern law of torts in English and
Welsh law.

Sometimes the judge has no option but to follow the ruling contained in the previous judicial
decision or “leading case”: he will be confronted with “binding precedent”: a firm basis on which
law may develop: it fulfils the same function as an article in a legal code.
Not all of a decision is a precedent and not all previous decisions are precedents. Distinction to be
made between:
→ Ratio decidendi
→ Obiter dictum
→ The nature of the precedent itself either: binding or persuasive.

1- Ratio decidendi and obiter dictum

Every decision handed down by a court of law comprises three basic elements:

- a statement of the material facts

- the account of the process of legal reasoning followed by the judge (including a review of
precedents, the statement of legal principle).
- the decision inter partes: the decision in the case in hand (en question) stating which party
has “won” or “lost” the action

2- Terminology

Various terms used to describe the effect that a later case has on an earlier case. Some refer to the
case itself and others to the precedent under consideration, all are normally employed at appellate
level (cour d’appel).

A decision is said to be reversed (set aside) when a high court, on an appeal, comes to the opposite
conclusion to the court whose ruling (décision) is the subject of the appeal ie, the court refuses to
accept the ratio or point of law which decided the matter in the court below and thus gives its
decision in favor of a different party.

When it accepts the decision of the court below it affirms or upholds it.

When an appeal court is considering a precedent, it may follow or approve the principle of law
established in the case. On the contrary it may decide the matter on the basis of a different principle
in which case, it is said to overrule the principle of law established by a previous precedent.

The process of overruling may not be confused with that of reversing a decision

Reversing a decision on appeal only affects the decision in the case, whereas overruling a precedent
only affects the rule of law upon which the decision is based.

In the event of overruling by a higher court, the ratio decidendi (decision rendue) of the higher court
must be followed. This is what is known as: the declaratory theory of common law: the common law
is never changed; it is merely restated correctly.

A court of appeal may also without actually overruling an earlier case, disapprove the precedent.

Cases are distinguished on their facts.

The major drawback of the system is the very wealth of details in which it contains: 1000’s of books
of law reports, high complexity.
Rigidity engendered by the hierarchy of binding principle + process of distinguishing which leads to
over-fine distinctions known as “hair splitting” + uneven development with the emphasis laid on
areas of law which involve financial commitment.
Vocabulary summary

• distinguishing: a method of avoiding a previous decision because facts in the present case are
different.
• Overruling: a decision which states that a legal rule in an earlier case is wrong.
• Reversing: where a higher court in the same case overturns the decision of the lower court.

4. Statutory interpretation, why?

Refers to the fact the judges will be clarifying the wording of an act. Legislative implementation often
raises spiny issues:
  
- Ambiguity: a word has to or more meanings
- Vagueness
- Semantic scope prone to

By interpreting the law, judges also create law

Judges may adopt:

• The literal approach or plain-meaning approach: normally stick to the literal meaning of
the words can lead to an absurd judgement

• The purposive approach: looking beyond the words of a statute into the intention of Parliament
when making the act

Rules of statutory interpretation

•The literal rule or plain-meaning rule: under this rule courts will give words their plain, ordinary, or
literal meaning, even if the result is not very sensible
• The Golden rule: the rule is a modification of the literal rule. This rule starts by looking at the literal
meaning, but the courts is then allowed to avoid an interpretation which could lead to an absurd
result.
• The Mischief rule: the court should look to see what the law was before the Act was passed in
order to discover what gap the Act was intended to cover