THE LAW MAKING

Cao Xuân Phong

 Sources of English law
Source of law is external format of the law (document that contains
legal provisions).

EUROPEAN LEGISLATION/
CASE LAW/
LAW STATUTES
PRECEDENTS
Is no more a
source of English Made By
Made by courts
law after BREXIT Parliament

Do you know that England belongs to Common Law tradition/family, while Vietnam belongs to Civil
Law tradition/family?
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 European law

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 EU principal institutions
🐟 1. COUNCIL OF THE EU
Consist of Ministers in the field of discussion
2. EUROPEAN COUNCIL
Head of state or government
Provide political guidelines for development
3. EUROPEAN COMMISSION
One rep from each state
Excutive body
4. EUROPEAN PARLIAMENT
751 members, elected by people in state
5. EUROPEAN COURT OF JUSTICE
28 judges, 6 year-term

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 EU laws
TREATIES REGULATIONS
Agreements of EU
Impose uniformity of law
members
throughout EU
Most important are Rome
1957, Maastricht 1992
revised by Lisbon 2009

DIRECTIVES
Tool for harmonization of law
between members
Set aim, silent on methods
DECISIONS
Affect only particular
individual or company
Empower it to do smt or
prevent from doing smt

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 Legislation

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 English Parliament
POWER TO MAKE LAW
STRUCTURE
Direct legislation
Parliament passes Act
House of Lords
Indirect/delegated legislation
26 Lords Spiritual
Parliament authorizes
(archbishops and bishops);
government or local authority to
765 Lords Temporal,
regulate some matters by
selected by PM and
passing enabling Act
appointed by Country Head
House of Commons
650 representatives
PROCEDURE
elected by the people, on 5
Bill may be proposed by
years term
Government Minister or Private
member of Parliament

Do you know the Lord ranking? Duke, Marques, Earl, Viscount, Baron
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 Steps to bring a Bill to Parliament

After consultation
Government issues Government
with interest groups,
Green Paper which minister or private
Government issues
sets out legislative P member propose
White Paper, adding
discussions a Bill to P
the intention of Bill

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 English Parliamentary Procedure
• The procedure described hereunder is applied in each of the Houses.
• Most Bill (draft of law) are initially processed in the House of Commons, and
then go through the same procedures in the House of Lords

1st reading 2nd reading Committee Report

3rd reading
stage stage

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Bill Bill Bill Bill Bill
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• Publication • Debate on • Bill examined by • Amended bill • Final
of bill only general merit standing out to the approval at
committee, House for House
• No debate • No
section by further • At Common,
amendments discussions,
section and could only
to the bill amendments
be amended superficial
and approval changes may
• House may act
as committee • be made
 English Parliamentary Procedure 2

CONSIDERATION
STAGE
ROYAL ASSENT
Each House considers &
Just a formal step
agrees amendments of
other House

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 Delegated legislation

Parliament

Make law, delegate power

Government or local authorities Parliament can exercise

different controls over
Make statutory instruments delegated legislation.
or by-laws as delegated

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 Types of delegated legislation
 Order in Council
Emergency Powers Acts 1939 and 1984 give law-making powers to
Privy Council in case of emergency.

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 Statutory instruments
Made by Government departments to execute general
principles of policy in Enabling Act.
About 3000 instruments are created annually.
 By-laws
Made by local authorities or other body with statutory powers, to
regulate the facilities which they provide.

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 + & - of delegated legislation
ADVANTAGES DISADVANTAGES

Saving of parliamentary time Loss of Parliamentary control

“ Specialist knowledge

Flexibility

Legislation can take place

when Parliament is not sitting
Bulk and frequent changes

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 Tools for legislative interpretation
1. INTRINSIC AIDS

2. EXTERNAL AIDS

3. JUDICIAL PRINCIPLES
(developed by the courts)

4. JUDICIAL PRESUMPTION

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 Intrinsic and External Aids

Interpretation Act
Title
v 1978

EXTERNAL AIDS
INTRINSIC AIDS
Commission
Preamble Report

Terms def.
Hansard
(Legislatie history)

Side notes

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 Judicial principles of statutory
interpretation
Contextual Words are understood in
Approach their context

The act is interpreted in

accordance with its Purposive Literal Ordinary meaning of
purpose Approach Rule words
(similar, but broader than
Mischief Rule)

Meaning suitable to the Mischief Golden No internal contradiction

purpose Rule Rule
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 Interpretation presumptions
Unless the Statute contains express words
to the contrary.
No repeal of other statutes

Only UK
No alteration of common law

Gaps as it
Presumptions
Proper compensation

No Crown binding

Clear words on liberty

Criminal charge with proof

No retrospective effect
 Case law / Precedent

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Courts and case law
COURTS IN ENGLAND MAKE
CASE LAW
Before 19 century, case law
was key source of law in
England
LEGISLATION v. CASE LAW
Parliament acts are faster developed
source of law, with high level of
codification, more suitable to industrial
society
CASE LAW FEATURES
Slow development (only when a case
is brought before the court)
Narrow law (deal only with facts of
case)
Develop only with regard to something
already happend
COURTS AND CASE LAW
NOWADAY
Only higher courts retain limited law-
making powers, mostly in contract and
torts
Courts now have interpretative power
 General court hierarchy
◇ Trial courts
◇ Lowest court in the system
◇ Where disputing parties bring their case to
◇ Courts decide case for the first time
◇ Disagreeing party may appeal decision to the higher court

◇ Court of Appeal
◇ Hear appealed decisions of trial courts
◇ Decision of CA is final and can not be reviewed on request of party

◇ Supreme Court
◇ Conduct judicial review: hear cases of greatest public or constitutional importance
affecting the whole population
◇ Ensure the safety uniformity in the adjudication work

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 UK Courts (simplified)
• Highest Court of UK, established in 2009
SUPREME COURT • Decisions bind all other UK courts
OF THE UNITED KINGDOM • Can depart from its own previous decision

• Decisions of Criminal Division bind all criminal

COURT OF APPEAL courts below
Criminal Civil • Decisions of Civil Division bind all civil courts
Division Division below

• Decisions bind Crown courts, Magistrates’ courts and

HIGH COURT OF JUSTICE
County courts
Queen’s
Family Chancery
Bench
Division Division
Division

• Decisions do not bind any UK courts

Crown Court

Magistrates’
County Court
Court
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 Binding precedent

PERSUASIVE DECISIONS:
BINDING PRECEDENTS:
Decisions of higher courts
Decisions of courts do not
bind (should be followed by)
bind (must not be followed,
the lower courts within the
but may be followed by) the
same system
courts of other system.

Key parts of a Court Decision

• Facts
• Obiter Dicta Rationales for Decision
• Ratio Decidendi This is the binding part
• Decision of decision

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 Reverse and Overrule decisions
Distinguise facts
Court of Appeal may, in reviewing
judgment of lower court, decide to
overturn decision of lower court
- It mean that decision of lower
court is reversed (winner now
become loser and vise-versa)
- Ground for such decision: case
was incorrectly decided in the
light of current law
- To reverse a case does not affect
validity of any precedents
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Court, in applying a previous
precedent, may decide that such
precedent is no longer represent the
law
- By so doing, court overrule a
precedent
Court also may decide not to
accept/follow a precedent by
distinguishing facts of cases
- In this situation, precedent is still
valid and could be accepted by other
courts
- There are some other technics to
disregard a precedent
 Case name and citation
Abbreviated Latin Year, when
Volume number
word versus, decision rendered Case number
of Law Report
means against by the court

Fisher v Bell [1960] 3 WLR 919 QBD

Name of Plaintiff Name of court:
Name of (Queen’s Bench
(person who brought
Defendant (in Abbreviated name of Division)
case to court) or
civil cases) or Law Report:
Appellant (person
the Accused (in (Weekly Law Report)
who appeal the
criminal cases)
lower court decision)

Law Report is a printed collection of all decisions of certain court

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 + & - of binding precedent
ADVANTAGES DISADVANTAGES

Certainty Uncertainty

“
Flexibility Rigidity

Practical nature Retrieval problems

Speed Haphazard/unpredicted
development
Undemocratic

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 Thank you!
Welcome all questions, comments and
discussions!

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