Block 1

W100 Rules, Rights and Justice: An Introduction to Law
Block 1
Rules and rule making

CONTENTS
Introduction to Block 1 7
Unit 1 Thinking about rules Unit 2 Making, interpreting and applying

rules Unit 3 Making law: (1) Parliament Unit 4 Making law: (2) common law Unit 5 Making law: (3) Europe
Acknowledgements
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41
87
139
199
236
The W100 team

Carol Howells (W100 Team Chair and W100 Author)
Grant Miller (W100 Manager)
Alvaro Roberts (W100 Manager)
Nikki Taylor (W100 Team Assistant)
Jane Goodey (W100 Author)
Marc Cornock (W100 Author)
Amanda Zambellas (W100 Author)
Alison Miller (Law Regional Manager)
Jane Hardwick (Law Regional Manager)
Liz Hardie (Law Regional Manager)
Sam Cooper (Programme Coordinator)
Jo Storey (Programme Coordinator)
Rachel Innes (Programme Coordinator)
Geri Smith (Library)
Chris Bollom David Attenborough Dita Drazilova Emma McEvoy Jane Nicholls Jill Lawrence Simon Hanks
Other contributors
Gary Slapper (Author and Director, Centre for Law)
Ben Fitzpatrick (Author, Centre for Law)
Aurora Voiculescu (Author, Centre for Law)
Heather Montgomery (Author, FELS)
Moira Wilson (Law Regional Manager and Critical Reader)
Julian Webb (Law Regional Manager)
Carey Stephens (Law Regional Manager)
Tim Wales (Library)
Barbara Wright (W100 Manager)
Iris Widdows (W100 Manager)
Alison Pereira (W100 Team Assistant)
Raymond Arthur (Author)
Chris Williams (Author, Arts)
Paul Lawrence (Author, Arts)
Matthew Weait (Author)
Leslie Cuthbert (Author)
Debbie Legge (Author)
John Hatchard (Author and Visiting Professor)
Andrew Sanders (University of Manchester)
Alexis Longshaw (College of Law)
Doreen Burton (College of Law)
Jane Maharry (Programme Coordinator)
External assessor
Professor Melanie Williams, Swansea University
External examiner
Professor Gavin Drewry, Royal Holloway, University of London.
W100 production
Beccy Dresden (Project Manager, LTS)
Emma Sadera (Editor, LTS)
Emily Yossarian (Editor, LTS)
Johanna Breen (Editor, LTS)
Katie Meade (Rights)
Deana Plummer (Picture Researcher)
Jonathan Davies (Graphic Designer)
Emir Forken (OUBS Project Officer, Media)
Martin Chiverton (A/V Producer)
Jenny Edwards (OUBS Production and Quality)
Diane Hopwood (Compositor)
Jon Owen (Graphic Artist)
Jenny Gray (Interactive Media Developer)
David Massey (Technical Testing, LTS)
John Sinton (Sound and Vision, LTS)
Holly Clements (Media Assistant)
DVD production
Gail Block (Producer)
Phil Gauron (Producer)
David Poyser (Location Director)
Simon Deeley (Associate Producer, video)
Gwen Singleton (Associate Producer, audio)
Marion OMeara (Production Manager)
Andrij Evans (Video Editor)
Ian Cozier (Video and Audio Editor)
Alan Marlow (Audio Editor)
Elena Petiaeva (Slide Designer)
Matthew Gammage (Location Cameraman)
James Kenning (Location Soundman)
Critical readers
Jeremy Roche (SHSW) Chris Dillon (Technology) Elizabeth Harris
Developmental testers
Adrienne Hunt Brian Mead
Published by The Open University, Walton Hall, Milton Keynes MK7 6AA First published 2005. Sixth edition 2010.
c Copyright O 2005, 2006, 2007, 2008, 2009, 2010 The Open University
All rights reserved. No part of this work may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without either the prior written permission of the publishers or a licence permitting restricted copying issued by the Copyright Licensing Agency Ltd, Saffron House, 6-10 Kirby Street, London EC1N 8TS. This book may not be lent, resold, hired out or otherwise disposed of by way of trade in any form of binding or cover other than that in which it is published, without the prior consent of the publishers. Edited and designed by The Open University Typeset in India by Alden Prepress Services, Chennai Printed in the United Kingdom by Hobbs the Printers Limited, Brunel Road, Totton, Hampshire SO40 3WX ISBN 978 1 8487 3563 7 Further information on Open University modules can be obtained from the Student Registration and Enquiry Service, The Open University, PO Box 197, Milton Keynes, MK7 6BJ, United Kingdom: tel. + 44 (0)870 333 4340, email general-enquiries@open.ac.uk For materials available for purchase through OU Worldwide, visit the webshop at www.ouw.co.uk 6.1
BLOCK 1 RULES AND RULE MAKING
W100 Legislation list for Block 1

Statutes
Act of Settlement 1701 Administration of Justice Act 1925 Adoption Act 1976 Animal Boarding Establishments Act 1963 Animal Health Act 2002 Anti-Terrorism, Crime and Security Act 2001 Bills of Sale Act 1854 Children Act 1989 Children Act 2004 Cremation Act 1902 Civil Contingencies Act 2004 Constitutional Reform Act 2005 Consumer Protection Act 1987 Copyright, Designs and Patents Act 1988 Coroners and Justice Act 2009 County Courts Act 1984 Courts Act 2003 Courts and Legal Services Act 1990 Crime and Disorder Act 1998 Crime and Punishment (Scotland) Act 1997 Crime (Sentences) Act 1997 Criminal Appeal Act 1995 Criminal Justice Act 2003 Dangerous Dogs Act 1991 Education Act 1996 Emergency Powers Act 1920 European Communities Act 1972 Fireworks Act 2003 Government of Wales Act 1998 Greater London Authority Act 1999 Home Energy Conservation Act 1995 Homicide Act 1957 Human Reproductive Cloning Act 2001 Human Rights Act 1998 Hunting Act 2004 Interpretation Act 1978 Law Reform (Year and a Day Rule) Act 1996 Legislative and Regulatory Reform Act 2006 Licensing Act 1872 Magistrates Courts Act 1980 Marriage Act 1994 Medical Act 1983 Northern Ireland Act 1998 Official Secrets Act 1920 Powers of Criminal Courts Act 1973 Ragwort Control Act 2003 Restriction of Offensive Weapons Act 1959 Road Traffic Act 1961 Scotland Act 1998 Unit 5 Unit 4 Unit 4 Unit 4 Unit 3 Unit 3 Unit 3 Unit 3 Unit 3 Unit 3 Unit 3 Unit 4 Unit 5 Unit 4 Unit 2 Unit 3 Unit 3 Unit 4 Units 3 & 4 Unit 3 Unit 3 Unit 3 Unit 3 Unit 4 Unit 3 Unit 3 Units 3, 4 & 5 Unit 3 Unit 3 Unit 3 Unit 3 Unit 4 Unit 3 Unit 4 & 5 Unit 3 Unit 4 Unit 3 Unit 3 Unit 4 Unit 3 Unit 3 Unit 3 Unit 3 Unit 4 Unit 3 Unit 3 Unit 4 Unit 3 Unit 3
W100 BLOCK 1 RULES AND RULE MAKING
Sex Discrimination Act 1975 Single European Act 1986 Solicitors Act 1974 Statute of Gloucester 1278 Suicide Act 1961 Supreme Court Act 1981 The Taking of Apprentices for Worsteads in the County of Norfolk Act 1497 War Crimes Act 1991 War Damage Act 1965 Weights and Measures Act 1985
Unit Unit Unit Unit Unit Unit
5 5 3 4 2 3
Unit 3 Unit 4 Unit 4 Unit 5
Delegated legislation
Family Procedure (Adoption) Rules 2005 (SI 2005/2795) Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) Supreme Court Fees Order 2009 (SI 2009/2131) The Cremation (Amendment) Regulations 2006 (SI 2006/92) The Misuse of Drugs Act 1971 (Modification) (No. 2) Order 2003 (SI 2003/3201) The Trafalgar Square and Parliament Square Garden (Amendment No. 1) Byelaws 2002 The Working Time Regulations 1998 (SI 1998/1833) Trafalgar Square and Parliament Square Garden Byelaws 2000 Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) Unit 3 Unit 5 Unit 4 Unit 3 Unit 3 Unit 3 Unit 5 Unit 3 Unit 5
European Union Legislation

Equal Treatment Directive (76/207/EEC) Units of Measurement Directive 1980 (80/181/EEC) Working Time Directive 1993 (93/104/EC) Unit 5 Unit 5 Unit 5
Republic of Ireland Legislation

Copyright and Related Rights (Amendment) Act, 2004 Organisation of Working Time Act, 1997 Public Health (Tobacco) Act 2002 Tobacco Smoking (Prohibition) Regulations 2003 (SI 481/2003) Unit 3 Unit 2 Unit 2 Unit 2
Treaties and Conventions

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) 1950 Universal Declaration of Human Rights 1948 Unit 5 Unit 5
W100 Case list for Block 1
A v Essex County Council [2003] EWCA Civ 1848 Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280 Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 Adler v George [1964] 1 All ER 628 Brock v DPP [1993] 4 All ER 491 Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 Conway v Rimmer [1968] AC 910 Corkery v Carpenter [1951] 1 KB 102 Curry v Director of Public Prosecutions (1994) 144 NLJ 498 Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 Fisher v Bell [1960] 3 All ER 731 Grey v Pearson (1857) HL Cas 61 Heydons Case (1584) 3 Co Rep 7a H. P. Bulmer Ltd v J. Bollinger SA [1974] EWCA Civ 14 International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 London and North Eastern Railway Company v Berriman [1946] 1 All ER 255 Magor and St. Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 Muir v Keay (1875) LR 10 QB 594 P v S and Cornwall County Council [1996] All ER 387 Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 583 Pickstone v Freemans plc [1989] AC 66 Powell v Kempton Park Racecourse [1899] AC 143 R v Inhabitants of Sedgley (1831) 2 B & Ad 65 R v R [1992] 1 AC 599 R v Secretary of State for Education and Employment, ex parte National Union of Teachers [2000] All ER (D) 991 Re Sigsworth [1935] Ch 89 Stanley v International Harvester Co. of Great Britain Ltd (1983) The Times 7 February Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293 Unit 4 Unit 3 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 5 Unit 4 Unit 4 Unit 4 Unit 4 Unit 5 Unit 4 Unit 4 Unit 4 Unit 4 Unit 4 Unit 3 Unit 4 Unit 4 Unit 4
European cases
Laurent Piau v European Commission (Case T194/02) Re Tachographs: Commission v United Kingdom (1979) (Case 128/78) Unit 5 Unit 5
INTRODUCTION TO BLOCK 1
This block is the first in a series of seven produced for W100 Rules, Rights and Justice: An Introduction to Law. It is designed as an introduction to the academic study of these concepts and in particular of rules (law being an example of a rule), but will also serve as an introduction to a variety of different writing styles that are used in the academic world. It has two aims: first, to get you thinking about rules (law being a particular type of rule), understanding both their philosophical underpinnings and the processes by which rules come about; second, to introduce you to some of the key institutions that shape the laws that govern our daily lives. Block 1 reflects these two aims in its structure. The first two units encourage you to think about how everyday rules are made, what causes new rules to come into existence (or old ones to be discarded), why the wording of rules has to be so carefully done, and why there is often room for interpretation. Units 1 and 2 will challenge you to think about why some statements are rules and some are not, and what it is that distinguishes rules from habits and customs. Unit 1 will explore these issues in depth, looking at different types of rules and their relative status -- asking, for example, why some rules are more important than others and why there are some rules which must be obeyed and others which can be ignored without detrimental consequences. It will also examine why some groups of people have different rules from others and why these different rules may come into conflict with each other. It will focus in particular on unwritten rules, those that people follow without always knowing why. Unit 2 looks at more formal rules and how such rules are applied and enforced. Rules shape our lives because they set out what we may and may not do, and what the consequences of breaking such rules might be. Unit 2 also discusses how rules have to be written clearly and concisely in order to make sense and examines the structures that exist to ensure that rules are respected, enforced and understood. Unit 2 concludes by exploring some of the challenges faced when making, applying and interpreting a law. Throughout Units 1 and 2 you will be asked to undertake activities that involve reading articles or thinking through a problem. These activities are designed to help you develop your own thinking and to teach you to read critically. Often there are no right or wrong answers, but the thought processes you go through to arrive at your conclusions are extremely important. You will learn that law is not an exact science and when it comes to designing, applying and breaking rules, there is a lot of room for interpretation. Units 1 and 2 encourage you to learn to interpret rules and to analyse arguments in a critical way. Having considered the ideas of rules, why they develop and their impact, Units 3, 4 and 5 look in depth at a particular type of rule; law .These units take a different approach to the earlier units. They are designed to introduce you to some of the institutions that make laws and that consequently have a bearing on our lives. These three units will introduce you to how laws are made. At a national level, there is the Westminster Parliament, situated at Westminster, London, which is the supreme
law-making body in the land but which is influenced by a wide variety of sources. This is discussed in Unit 3. Unit 4 will then examine the role of judges in making law. Finally, Unit 5 will analyse the role of European institutions in law making in England and Wales. These units may appear more factually based than the first two, asking you to take in a large amount of information rather than thinking your way through the issues, as in Units 1 and 2. They deal with complex subjects and sometimes the language of the documents that these institutions produce can be hard to understand at first. However, as these major law-making bodies shape our lives, it is important to understand early on how laws are made. Units 3, 4 and 5 are also designed to introduce you to certain study skills that you will return to many times during your studies, such as reading legal cases, reading and understanding Acts of Parliament, using the W100 Website, taking notes, creating study diagrams and summarising ideas. This may seem a daunting task at first, but these are skills you will learn gradually in W100 and which will be built up throughout it. They are essential to your studies. If you dont immediately understand all the language, or the complexities of the various institutions and organisations, dont worry too much. The idea is to give a general overview and for you to understand the relationships between these organisations and the laws that you live with every day. The block draws on a wide variety of source materials. Some of these, such as newspapers, will be very familiar to you; others, such as Acts of Parliament, case law or excerpts from academic textbooks may be less so. W100 will not simply teach you about laws but will examine the ways in which laws are made, the disputes that take place while such laws are made or changed, and the multiple levels on which such laws affect our lives. While there may be a great many facts and some unfamiliar legal language, the aim of this first block is to start you thinking not only about rules, and laws in particular, but about the societies in which they exist. The blocks that follow will draw upon the insights and study skills you have gained from Block 1. All the units will use a mixture of ideas and sources, all designed to make you think about laws in their broadest sense and help you understand the key concepts of rules, rights and justice. Remember, each unit is a weeks worth of study. You should now turn to Unit 1 where you will explore the concept of rules. At the beginning of the unit are the learning outcomes. These were discussed in the Introduction to W100. Learning outcomes are statements of what the unit will cover. They are statements of things you should be able to do and understand by the end of the unit. At the end of the unit you will be provided with an opportunity to review these. Throughout the unit you will be asked to undertake a number of activities. The purpose of activities, as part of your learning process, is also mentioned in the Introduction to W100. They have been specifically designed to assist and further your learning and skills development and it is important that you attempt them.
W100 Block 1
Unit 1
Thinking about rules

Prepared for the W100 team by Matthew Weait
CONTENTS
Unit 1 learning outcomes Introduction 10
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Part A What is a rule? Part B Other influences on our behaviour Part C Rules and values
Review of Unit 1 learning outcomes References
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31
38
39
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UNIT 1 LEARNING OUTCOMES
After studying Unit 1 you should be able to: understand what is meant by a rule identify a rule explain the difference between a descriptive rule and a prescriptive rule understand how social rules develop and why rules of different social groups may conflict explain the meaning of, and distinguish between, rules, habits, customs and roles understand the meaning and function of etiquette identify values and explain the relationship between values and rules understand the role of values in decision making apply your own values and reasoning skills to make a decision about how to act given conflicting rules. You should also have started to develop skills in reading texts and taking notes effectively.
UNIT 1 THINKING ABOUT RULES
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Introduction
The aim of Unit 1 is to introduce you to the meaning and function of rules. The society in which we live is one in which rules, rights and justice play a very important part. Gaining a better understanding of the part that these play should help you to think more critically and effectively about that society. You will consider what makes a rule, why rules develop, what types of rule exist, how decisions are made using rules and why society places great value on rules. Rules govern everything that we do because rules provide a means by which we as human beings can live together in a society. Law is one particular type of rule, So, not all rules are law. Think about the following rules:
.
A school may have a rule about not running in the corridor. This is a rule exercised by the school to ensure that students and teachers can move safely around the school. Individual sports have their own rules which must be obeyed by all those participating to ensure that the sport is played fairly and safely. In sport in general the rules of each sport are the responsibility of the governing body for the sport. For example, in football, Federation Internationale de Football Association, commonly known as FIFA is responsible for the rules of the game of football. A group of seven students in a shared house may have a rule that says that each student is responsible for keeping their own bedroom tidy, and must take their turn in tidying the shared rooms according to the agreed rota. This hopefully means that the seven students can live together with a certain degree of harmony. A driver on the public highway must obey the rule about stopping at a red traffic light. The absence of such a rule would lead to chaos on the roads and would be very dangerous.
The difference between the first three rules and the fourth rule about the red traffic light is that this rule is a law that was made by the Westminster Parliament and is enforced by the courts of law. If a driver breaks the law by driving through a red traffic light they may find themselves being punished by a court of law. As you progress through W100 it is law as a particular type of rule that you will learn about and explore. You will be considering the relationship between laws, rights and justice. However, as laws are rules it is valuable to explore further the nature of rules in general to provide a foundation on which to build your understanding of law.
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Part A What is a rule?
Part A introduces you to a fundamental aspect of legal thought -- the rule - by exploring different ways in which we use that term in everyday life. It considers rules that enable us to describe the world as it is, and rules that provide guidance as to the way in which we should, or should not, behave. Despite its apparent simplicity, the question What is a rule? is one that has caused endless headaches for lawyers, sociologists, theologians and philosophers. This may strike you as odd. For example, we would probably all recognise the statement:
Talking is not allowed in the library reading rooms

This is a form of rule. It identifies a certain kind of activity (talking) and a location (the library reading rooms) and specifies that we must not engage in that activity in that location. The same would be true of the statement:
Tax returns must be submitted by the end of the financial year
It specifies that a certain activity (the submission of tax returns) has to take place by a certain time (the end of the financial year). Even though the statements differ, in that the first prohibits something from being done and the second requires something positive to be done, both of them express an obligation which must be complied with by those to whom the statements are addressed. So why have I suggested that it is difficult to decide what we mean by a rule? There are a number of reasons. Suppose, for example, that the statement about talking in the library was made not by a librarian, or in written form on a notice, but instead was uttered by a fellow library user. Would you then be so certain that it was a rule? Possibly not. Your assumption that the statement expresses a rule depends in part not just on the language in which it is expressed, but on the identity of the person who expresses it or on the form that it takes. The language may be identical but that is not in itself conclusive. Similarly, if the statement about talking in the library was in the form:
Talking in the library reading rooms is disturbing to other users

we would recognise that it was expressing a truth, that it was dealing with the same problem as the statement Talking is not allowed in the library reading rooms, and that it might be indicating that we should not talk; but we are unlikely to think of it as a rule, because it lacks the obvious element of obligation that the former statement possesses. The purpose of the first activity is to provide you with an opportunity to think about what you understand by the term rule.
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SKILLS
Box 1 How to do the activities The Comment sections after activities provide the suggested answers to the questions you have been asked. They also provide commentary and explanation as to why the questions have been answered in a particular way. They are very important and you should read them carefully. However, these are suggested answers. You may have thought of different ways of answering a question -- you should not be too concerned about this! When this happens make a note of why you answered as you did. Then compare your reasons with those given in the Comments. Often there will be no single right answer, so dont worry if your answer doesnt match the comment exactly. What is important is that you understand the reasons why your answer was different.
ACTIVITY 1 Understanding the term rule (allow 20 minutes)..............................................
Using your own everyday understanding of the term rule, please consider statements A to F in the list below and decide which of them definitely express a rule, and which do not. Use Table 1 to set out your answers. So, if you think that statement A definitely expresses a rule, you should put a tick in the first column next to A. If you are unsure, put it in the second. I would also like you to decide whether you think the statement is descriptive or prescriptive. By descriptive in this context I mean: Does the statement describe the way things are? An example would be When water freezes it expands. By prescriptive I mean: Does the statement provide guidance to the reader, or the person to whom it is addressed? An example would be Motorists must obey a Give Way sign. A B C D E F A number added to another number equals the sum of those numbers (e.g. 2 + 2 = 4). A police officer may use reasonable force when making an arrest. No skateboarding is allowed in the park. Lying is wrong. A person born under the astrological sign of Virgo is typically critical of others. Jam sandwiches are delicious.
Table 1 Definitely expresses a rule A B C D E F Does not definitely express a rule Descriptive Prescriptive
How did you get on with this exercise? My guess is that your completed table will look like Table 2. (Dont worry if it doesnt -- I will explain why I have filled in the table as I have, and we will consider the reasons why you may have filled in yours differently.)
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Table 2 Definitely expresses a rule A B C D E F 4 4 4 4 4 4 4 4 Does not definitely express a rule Descriptive 4 4 4 4 Prescriptive
Comment
Here are my reasons for filling in Table 2 as I have: Definitely expresses a rule A A number added to another number equals the sum of those numbers (e.g. 2 + 2 = 4). Addition is a rule of arithmetic. We call the rules of arithmetic, and those of other sciences, rules because they are mechanisms for ordering or organising our thinking about the physical world. They are rules because they are general (universally applied and agreed upon), and verifiable (they produce the same results each time). Rules such as these are descriptive because they describe the way the physical world works. Other examples would be The speed of light is 300,000 kilometres per second and Water boils at 100 degrees Celsius at sea level. B A police officer may use reasonable force when making an arrest. This is a rule of law. It too has an ordering function, in that it regulates the degree of force which a police officer may use when making an arrest. However, the rule cannot be said to be descriptive (like the rules of science or grammar). Rather, it is prescriptive because it provides guidance as to how a police officer may act when making an arrest. C No skateboarding is allowed in the park. This is the kind of rule we frequently see posted outside parks. It too is prescriptive, because it says not what may be done (as with the police officer), but what must not be done. It provides guidance to those who want to know whether they may skateboard in the park. Does not definitely express a rule D Lying is wrong. This is more complicated. The statement has the qualities of a rule, and you may have included it in the first column. If you did think it was definitely a rule, did you think so because it was in your mind equivalent to Talking is not allowed in the library reading rooms, or No skateboarding is allowed in the park? Or did you think so because of your own moral or religious beliefs? You may have thought that the statement has a social ordering function. If you included it in the second column, you may have thought that it is
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better characterised as a statement of moral value or principle rather than as a rule because it does not have such a clear and definite ordering or organising function. You may also have decided that the statement was descriptive rather than prescriptive. If you thought it was descriptive, it is presumably because you considered it to state a truth much like a scientific fact. If, on the other hand, you thought it provides guidance, this will presumably be because you understood the statement to mean You should not lie. E A person born under the astrological sign of Virgo is typically critical of others. This is not a rule as we are using the term because it neither describes a verifiable truth (unlike scientific rules) nor does it have an ordering or regulating function. It simply expresses an astrological/superstitious belief. The statement is certainly not prescriptive, because it provides no guidance. F Jam sandwiches are delicious. This is not a rule either, because it simply expresses an opinion. Nor does the statement express any obvious guidance (unless it were uttered in answer to the question Which of these sandwiches is delicious, jam or toad?!), so it is basically descriptive. There are a number of lessons that we can learn from this activity. First, it is not always possible to determine whether a statement expresses a rule simply from the form of the statement. No skateboarding is allowed in the park and Jam sandwiches are delicious both have the same basic grammatical form. You have to think carefully about the content of the statement and ask yourself: Does it describe a verifiable truth? Does it provide guidance of some kind? Second, the fact that a statement provides guidance does not necessarily make it a rule, and the fact that a statement is a rule does not necessarily mean that it provides guidance. Third, as we saw with the statement Lying is wrong, there is legitimate room for disagreement about what can properly be said to be a rule. Although it is true to say that arithmetic and grammar have rules as I have described them, the rules we will be concentrating on are those which provide guidance. A good description of this kind of rule is provided by Twining and Miers in their book How to Do Things with Rules published in 1999:
Rule is used here to mean a general norm mandating or guiding conduct or action in a given type of situation. A typical rule in this sense prescribes that in circumstances X, behaviour of type Y ought, or ought not to be, or may be, engaged in by persons of class Z. Particular attention needs to be paid to four aspects of this formulation: (a) A rule is normative or prescriptive, that is to say it is concerned with ought (not), may (not) or can (not), in relation to behaviour, rather than with a factual description of behaviour. (b) A rule is general in that it is concerned with types of behaviour in types of situation or circumstances; a prescription governing a unique event is not a rule.
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(c) Rules both guide and serve as standards for behaviour, that is to say activities, acts or omissions. In the present context we are concerned solely with human behaviour. (d) Rules provide one kind of justifying reason for decision or action. When asked, Why did you do this?, the actor may justify the action by reference to a rule, for example, Because I was required/permitted/empowered to do so under Regulation . . .
(Twining and Miers, 1999, pp. 123--4)
There are many kinds of rule which fit this description, including law. However, before we go on to consider those, we will look in Part B at some of the rules and influences that guide our everyday lives.
SUMMARY OF PART A
After studying Part A you should be able to: explain what is meant by a rule identify a rule explain what is meant by a descriptive rule explain what is meant by a prescriptive rule.
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Part B Other influences on our behaviour
In this part we consider some of the influences that guide our everyday lives in the form of social rules, customs, roles and habits. These influences operate alongside rules (and the law) in guiding our everyday lives. It is important to recognise the role played by these influences. This will help you to understand rules (and in particular law) do not operate in a vacuum, but operate alongside these other influences.
Social rules
Among the commonest kinds of rule, ones that we encounter every day, are those we may call social rules. These rules are ones which guide the way we relate to each other in social situations and within our communities. They are ones we tend to learn through experience, from our family, carers and friends, in childhood, and as we enter into the world of adult and work relationships. In this way they are more like the rules of our native language, which we learn through listening and repetition, than the rules of mathematics which most of us learn in dedicated lessons given by expert teachers. However, the fact that the rules of social life are not written down for us does not mean that we cannot recognise them, especially when they are broken! The purpose of the next activity is to provide you with an opportunity to think about social rules, and how we recognise if they have been broken or not.
ACTIVITY 2 Breaking social rules (allow 15 minutes) ................................................................
The following is a list of events, and I would like you to think about which of them represent the breaking of a social rule, and why. 1 Delia meets her friend Erica for lunch. They kiss each other on the cheek. 2 Frank meets George, a new business contact, for the first time. He kisses him on the cheek. 3 Harry is invited to dinner with Ian and Jane at their house. He tells them that the food they have prepared is inedible. 4 Kay is a trainee chef. Larry, her trainer, tells her that the food she has prepared is inedible. 5 Oliver offers to give up his seat on the bus for Patricia, because she is a woman. 6 Patricia refuses the offer of a seat from Oliver, and tells him that he is a male chauvinist pig.
Comment
1 It is not uncommon in European societies for female friends to kiss each other on the cheek when they meet, and so no social rule is broken here. 2 In contrast, most of us would agree that (in many, but not all cultures) a social rule has been broken here. Although it is increasingly common for male friends to show their affection by kissing as female friends do, men (and women for that matter)
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dont generally kiss new business contacts. The context of work, and the fact that the person is a stranger, make kissing an inappropriately intimate greeting. 3 A social rule has certainly been broken here! If we are invited to dinner, and we do not like the food we have been given to eat, we generally eat it anyway or find less rude or aggressive ways of explaining why we cannot eat it. 4 The action is identical here, but we are probably far less likely to say that a social rule has been broken. The fact that Larry is training Kay gives him something of a right to be critical. His role as a teacher, and his authority in this context, makes his behaviour less surprising. 5 Your response to this may vary depending on your age, whether you are a man or a woman, and your politics. For some, a man who offers up his seat to a woman because she is a woman is complying with a social rule of good manners; to others, the fact that the person to whom the seat is offered is a woman is not a good enough reason (though it might be thought so if the woman was pregnant, was carrying heavy shopping or had a disability which made it difficult to stand). 6 I suspect there will be no general consensus as to whether Patricia has broken a social rule by refusing the seat offered to her -- though many of us might think that her way of refusing does break such a rule. Most of us recognise that in such situations the social rule requires us to refuse politely. These events illustrate just a few of the social rules we tend to take for granted. You can probably think of many more. What you may have noticed is that where a social rule does seem to have been broken, it is because the person breaking it has acted contrary to our shared expectations. In particular, he or she has ignored the social boundaries we maintain, and has not taken account of the context in which they are acting. Our social life is characterised by, and organised through, observing these boundaries and contexts, and it is when they are ignored that we tend to think that a rule has been broken.
The development of social rules

The social rules we have looked at so far are those which, I suggest, are recognised as such by the majority of the population in the UK (though they may not be so in other countries or cultures). They have developed over centuries of social interaction. The process by which social rules govern or guide a community was explored by an American sociologist, Howard Becker. In a book called Outsiders: Studies in the Sociology of Deviance published in 1963 he attempted to explain the social life of marijuana users. Those drug users, because they were doing something unacceptable according to the rules and values of the dominant non-user society, he labelled outsiders.
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You will be reading an extract from this book; but before you read it, I would like you to think about the way that you read, and the way that you take notes about what you read. This may seem an odd thing to suggest, but during this unit and the rest of W100 you will frequently be referred to the W100 Readers to read, and take notes on, extracts from books by other writers, and to answer questions about them. You will also be asked to read and answer questions about extracts reproduced in the units. It is therefore very important that you read and take notes effectively and know what is expected of you (see Boxes 1 and 2). Box 2 Effective reading We read for different reasons, and in different ways. If we are reading fiction for pleasure, for example, we tend to take our time, wallowing in the story and the style in which it is written. If we are going to be asked questions about it, these will generally be from people who want to know whether we thought it was a good book, whether we would recommend it, or what the basic story was. If, however, we are reading something for a specific piece of information a newspaper, or a report, for example -- then we tend to be much more focused. We may skim read, or scan, the text to get the general idea and to identify exactly what we need to know. Lastly, if we are reading in order to gain a full understanding of something technical or complex, we tend to take our time. We may read the text through once quickly, to get the general idea, and then go back over it more carefully. We may take notes of the things we find difficult to understand, which we think are important, which we need to clarify later, or which we disagree with. It is this last kind of reading that will be most helpful to you in your studies. I would like you to adopt, if you do not already, a reading strategy known as SQ3R. This strange mnemonic stands for: Survey -- You should first survey the text (the extract) to get a general impression of what it is about. Question -- You should then look at the question(s) you have been asked about the text (these will be in the activities). Think about these questions. These may, for example, ask you to provide factual information, to express an opinion about something the author has said, or to explain something the author has said in your own words. Read -- You should then go back to the text and read it through more carefully. If it is a long or complicated passage, you may find it easier to break it down into paragraphs, or other manageable chunks. Think only about questions you have been asked about the text as you read it. Recall -- After you have read the text again, put it down and think about the questions. See which of them you can answer without going back to the text. This will be easier when the question is a general one. If the question is asking for specific information, you may have to go back and check. Review -- This stage involves checking your answers against the text. Reading like this takes practice! However, it is a good way of ensuring that you read with a purpose. (The SQ3R Technique was developed by Francis P. Robinson in Effective Study (1946). My account is based on a slightly modified version taken from Derek Rowntrees book Learn How to Study (1988).)
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Box 3 Effective note taking When you read for the purpose of getting information from a newspaper or a book, you probably do not make notes unless you have a particular reason for doing so. However, when you are reading for the purpose of study -- as you are required to do during W100 -- it is very useful, and good practice, to make notes. This is not so necessary when you are reading a very short piece of writing and/or one that is very straightforward or simple; but when you are reading a text that is lengthy, complicated, or which deals with a subject with which you are unfamiliar, it is helpful to do so. When you make notes on a text for academic purposes, the most important questions you need to ask yourself are Why am I reading this? or Why have I been asked to read this? Sometimes the answer to these questions will be obvious (for example, where you are asked a series of questions on the text). Sometimes it will be less obvious (for example, where you are given a passage to read simply to determine what a particular author thinks or says about a particular subject more generally). In W100, you will generally be asked to read so that you are prepared to answer more or less directed questions on the text. You may therefore find it helpful to write out the questions on a separate piece of paper as headings, and to make notes under each heading as you read the text. An example may help. Suppose you had the following text to read: Matthew, who was born in London, decided to study law at university because it was a subject that he had not studied at school. He had studied music, geography, French, history and a lot of other subjects. He had always been interested in government and politics, and thought that law would allow him to explore the way in which peoples behaviour can be regulated. He was also very good at English, and enjoyed the challenge of saying exactly what he meant to say using good grammar and the right words. His family -- his mother, brother and sisters - thought he was setting himself a very difficult goal because there was a lot of competition, both to get into university and to get into the legal profession. They also worried that Matthew would become even more pedantic than he already was -- he was always correcting their spelling and use of language. Matthew was not put off by his familys concerns and worked hard for his A levels (English, French and Politics), even though this meant that he was not able spend so much time socialising with his friends as he would have liked, at the cinema, parties and ice skating. Fortunately for him, the work he put in paid off, and he was offered a place to study law. This is quite a simple passage, but it will serve to illustrate the way you might make notes. Suppose you had the following questions on the passage: 1 Why did Matthew decide to study law at university? 2 Did his family support his decision? 3 Did Matthew find studying for his A levels easy? You could make notes under these questions as follows: Why did Matthew decide to study law at university?
. . . .
It was a subject he had not studied at school. He had always been interested in government and politics. He was interested in the way peoples behaviour can be regulated. He was good at English and enjoyed using language correctly.
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Did his family support his decision?

. .
This is not obvious from the text -- they were worried about how difficult it was to get a place to study law and to become a lawyer. They were also worried that he might become even more pedantic than he already was in his criticism of the way they used it (Note: check meaning of pedantic). He worked hard (which isnt to say that he found studying easy). It meant that he spent less time socialising with his friends than he would have liked.
Did Matthew find studying for his A levels easy?

. .
What this basic exercise should show you is that it is helpful to break down a text using the questions, because it helps you identify the essential information and exclude irrelevant detail (such as the other subjects Matthew had studied, the make-up of his family and the places where his friends socialised). This means that if you need to return to your notes, you will have extracted what you need and no more. It also enables you to pinpoint terms you dont understand (here I have noted pedantic -- you may be familiar with this word; I have simply used it as an example). Having thought about the way I would like you to read and make notes, please study Reading 1 in your Reader and answer the questions that follow in Activity 3. I have broken down the passage into sections, lettered A, B, C, etc. Each question relates to the section indicated by the corresponding letter. Use only the information in that section to answer the question. The purpose of this activity is to give you the opportunity to read a more extended piece of writing by an academic author, and to use the text as the basis for answering questions. It is important to recognise that the passage comes from a book that was published more than 40 years ago, and so the attitudes expressed in it may appear dated to you. (Prohibition refers to the period between 1920 and 1933 when the manufacture and sale of alcohol was outlawed by the 18th Amendment to the US Constitution.) It is important that you base your answers on what Becker himself says, rather than on what you think he should have said!
ACTIVITY 3 Rule making (allow 1 hour) .............................................................................................
Please read Reading 1: Whose rules? in Reader 1 and then answer the questions that follow. As you will have seen from the Introduction to W100, you can use the answer space beneath each question to make notes, but if you need more space you should use extra paper or a notepad. Questions 1 What reasons does Becker give to explain why social groups within a society develop different social rules? (Section A)
What examples of different social groups does he give? (Section B)
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3 What do you understand by the phrase empirical research? (Section C)
4 Can you think of an example from your own knowledge and experience of a formal rule enforced by a specially constituted group? (Section C)
5 In your own words, explain whether Becker believes that people in a particular social group necessarily accept the rules applied to them by those in other groups, and why. (Section C)
6 Becker identifies two kinds of case in which people attempt to force their rules on others who do not concur with them. Think of another example of the first kind of case that he identifies. (Section D)
7 What factors does Becker identify as being the ones which enable one social group to enforce their rules in another social group? (Section E)
8 What does the fact that Becker uses the term negro to describe a black person tell us about the relationship between social rules and language? (Section F)
9 From your commonsense understanding, do you think that Beckers arguments in Sections F, G and H are (a) legal ones, (b) political ones, (c) sociological ones?
Comment
1 Becker explains that social groups are differentiated by factors such as social class, ethnicity, occupation and culture. Those groups develop different rules because of the problems they face dealing with their environment, history and traditions. 2 He gives the example of Italian immigrants during Prohibition in the USA, of medical patients and lower-class delinquents. 3 Empirical research means research carried out by investigating what actually happens in the world. Surveys, questionnaires and interviews are all methods used in empirical research. 4 Examples would be any kind of legal rule enforced by, for example, traffic wardens, the police or environmental health inspectors. Or you may have thought of school rules being enforced by teachers (in their disciplinary capacity). There are many other examples. 5 You may have said something like this: Becker does not believe that people in one social group necessarily accept the rules applied to them by other social groups, because the attitudes and values
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(what Becker calls perspectives) of one social group may differ from those of the other groups. People in one group may object to the application of rules by another because they have not participated in making them, and may therefore not comply with those rules. You will have used a different form of words. This does not matter so long as the sense is the same as this. 6 One example would be monks living in a monastery who observe a vow of silence. It is only they who would think that someone speaking had broken a rule; other people would think speaking is quite normal. Think about whether your example was similar to this. 7 Becker identifies political and economic power as factors which enable one social group to force their rules on another. He also gives the example of adults able to impose their rules on the young because it is generally thought that adults know what is best. 8 Becker was writing more than 40 years ago in the USA. At that time, the term negro was in common use, and was not necessarily meant to be disparaging or offensive (though it may have been experienced as such by those people to whom it referred). As the result of political and social struggle, negroes came to be known instead as black or, even more commonly today in the USA, as African Americans. The term negro is not one most people would use nowadays because it would be thought of as racially offensive or discriminatory. This demonstrates the way in which one form of social rule (what it is acceptable to call each other) can change over time. In a way, it is a good demonstration of Beckers own argument -- that social rules are the product of conflict between majority and minority groups, and that as minority groups become more politically powerful, their ability to change the rules is greater. 9 (a) It is not a legal argument, in the sense that it is not an argument about the law as such. It could be said to be about law, in that Becker is saying that some (legal) rules reflect differential power relationships in society. It is certainly a political argument because Becker talks about power, class, ethnicity and gender -- all of which are key concepts in the political domain. He also states explicitly that rules are the object of conflict and part of the political process. It is also a sociological argument because he is making claims about the way society operates. The concepts of power, class, ethnicity, age and gender can all be analysed sociologically as well as politically.
(b)
(c)
From reading this passage, you will have seen that social rules are, in some sense, about law, about politics and about the way society functions. Becker provides us with an insight into the fact that the social rules of the dominant group in society may not be those of minority groups. Not all events in our everyday lives have the qualities we generally ascribe to rules. We will now explore some of the other influences which guide our everyday behaviour. These influences may cover regular, routine or organised behaviour, such as the behaviour we may expect to see in a work environment or the behaviour we may expect from friends and acquaintances. We will start with a definition of a rule.
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Rules
A rule is something which prescribes what a person must/must not do, may/may not do, can/cannot do. It is generally possible to go to a text (such as an Act of Parliament, a contract, the written decision of a court, or the holy book of a particular religion) which specifies what the rule is. The authority of a rule is generally accepted and observed by those to whom it applies. Formal sanctions, such as punishment or the payment of compensation, may be applied if the rule is broken.
Customs
A custom is a practice which people in a particular community (social, business and so forth) observe, and which is practised by all members of that community. There is a mutual expectation that a custom will be observed. As with a rule, there may be sanctions for non-observance but, unlike a rule, such sanctions are typically informal and sometimes there are none. We will now explore a particular form of custom as an example of a social rule. The custom we are going to be considering comes from the world of etiquette. Etiquette is a French word now used in many languages to describe how one should behave in polite society. In other words, it is a term meaning good manners. We have seen that customs tend not to be written down. This is certainly the case with manners, which we generally learn by example. There are, however, exceptions to this. In the next activity you will be asked to read a passage from a book by Emily Post on etiquette and to answer some questions about it (I suggest in no more than a sentence or two). Read the piece through in full first, and then read it again more carefully to answer the questions. The purpose of this activity is to provide you with an opportunity to read another passage and to use the text to answer some questions. You are also provided with an opportunity to use the text as the basis for answering questions which are not dealt with specifically in it, but are suggested by it.
ACTIVITY 4 A gentleman removes his hat (allow 1 hour) ........................................................
Box 4 A gentleman takes off his hat and holds it in his hand when a lady enters the elevator in an apartment house or hotel -- any building which can be classified as a dwelling. He puts it on again in the corridor. A public corridor is like the street, but an elevator in a hotel or apartment house is rated as a room in a house and a gentleman does not keep his hat on in the presence of ladies -- ever! But in public buildings, such as offices or stores or buildings which contain neither apartments nor assembly rooms, the elevator is considered as public a place as an omnibus or a trolley car. What is more, the elevators in such business structures are usually so crowded that the only room for a mans hat is on his head!
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1 Do you think this passage was written: (a) in the past five years (b) in the past 25 years (c) in the past 50 years (d) in the past 100 years (e) More than 100 years ago? 2 Does the passage strike you as being old-fashioned or ridiculous? If so, why?
3 Would you say that the guidance is specific or general?
4 Would you say that the guidance was intended for all men, or only certain men? Why?
5 What do you think the consequence(s) of breaking these social rules would be?
6 What kind of social values do you think the passage illustrates?
7 Think carefully about the way Emily Post defines public and private spaces. Do you think that she would expect a gentleman to take off his hat in the presence of a lady: (a) on the staircase of a hotel (b) in the compartment of a train (rather than an ordinary train carriage)quest
Give reasons for your answers.
8 The passage provides clear advice about when a gentleman should remove his hat. Other parts of the book provide equally clear advice about how to behave in other social situations. What hidden social functions do you think a book like this might have?
Comment
1 The passage is taken from the 1937 edition of a book first published in 1922, so the answer is (d). Note that the convention is to give a reference alongside a quotation, however, in this case this was not done because the reference would have supplied you with an answer. The full reference for this article is (Post, 1937, p.20). 2 I suspect that you may think it either old-fashioned and/or ridiculous. It is old-fashioned partly because it is about when a gentleman (a term we use less often today) should take off his hat (which few men wear now). It also seems old-fashioned because it assumes that there are fixed ways in which men and women should relate to each other, whereas today (at least in most Western
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cultures) there is far greater tolerance, flexibility and equality in such relationships. Whether or not you think it is ridiculous will, of course, depend on your own personal view of how men and women should behave towards each other, and whether you think it is still valuable to maintain such standards. 3 The guidance is very specific. It identifies what a gentleman should do, where and when. It distinguishes between how a gentleman wearing a hat should behave in public and in private and identifies what is meant by those terms. It leaves very little room for discretion! 4 The guidance is intended for gentlemen only, when they find themselves in the presence of ladies. In other words it is aimed at men who either consider themselves to be gentlemen, or would like to be so considered. In other words, the passage is saying If you are a gentleman, this is what you must do; and if you would like to be considered a gentleman, this is how you ought to behave. There is no sense that the passage is trying to explain how men in general should behave towards women in general. 5 A man who did not behave as suggested would not be thought a gentleman. So, if being thought a gentleman were important, there would be a loss of social status for the man breaking the rule. (Of course, the rule would only be seen to be broken by those who shared the expectations identified in the passage.) 6 You will probably have thought of a number of social values. From one perspective, the values expressed in the passage include those of chivalry, courtesy, and deference towards women (insofar as they may be thought ladies); from another, they express the expectation that women are to be treated differently from men simply because they are women (or ladies), which many people now think is outmoded and patronising. 7 This question asks you to do something which lawyers and judges are frequently required to do -- that is, to decide whether something is sufficiently like something else in order to decide whether the rule applies, or sufficiently different so that it does not, even though the answer is not self-evident in the information you are given. When lawyers argue that something is like something else, they are said to be drawing an analogy, and when they argue that something is different from something else, they are said to be drawing a distinction. (a) Here you should have realised that because we are in a hotel, we are in a dwelling. That much is straightforward. The real question is whether a staircase is more like an elevator (a lift) or more like a corridor. If you wanted to conclude that a gentleman should take off his hat, you would have to argue that a staircase is more like an elevator because it is another means of going up and down in a hotel; in other words, you would have to draw a convincing analogy between the two. You might also point out that one of the reasons the author gives for a gentleman keeping his hat on in an elevator is the lack of space to do otherwise, a reason which does not apply on an open staircase. If, however, you wanted to reach the opposite conclusion, you would have to argue that a staircase is more
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like a corridor, in that it is also a place where people pass each other; in other words, you would have to draw a distinction between the two. This latter conclusion is, I would suggest, more convincing because a corridor is more public than an elevator, and this seems to be the more important factor. Put another way, a staircase is simply a corridor at an angle! (b) A train is, I would suggest, like a bus or tram, and would therefore be thought of as a public space. However, you might want to argue that a train compartment (which is more of an enclosed space than an ordinary train carriage) is more like an elevator. To conclude that a gentleman should take off his hat in a train compartment you would therefore have to draw an analogy between an elevator and a train compartment (on the basis, for example, that it is more private than public). If you wanted to argue the opposite, you would have to draw a distinction between the two (on the basis, for example, that although a train is a public space, it has what might be thought of as private spaces within it). You might also want to argue that the answer would depend on whether there was enough space to take off a hat! 8 Books on etiquette and good manners, besides offering specific advice, reflect the culture in which they are written. Books such as this one might be said to have the hidden function of reinforcing traditional class and gender roles and attitudes (in this case the role which men of higher social status in 1920s North America should adopt in relation to women of similar status). Having read this short passage and answered the questions, you should have a fairly clear idea about what we mean by social rules. In doing the activity, you began to understand how customs are influenced by values, whether the values of a particular society, culture or period of history. This is important, because law can be seen to be influenced in the same way. Law does not operate in a vacuum. It operates in a society and is influenced by the values of that society. In doing this activity you have also begun to read and integrate text deciding if it is possible to draw an analogy or draw a distinction. This is one of a number of important legal study skills you will have the opportunity to develop throughout your W100 studies. Rules and customs share a number of common features. Both rules and customs are generally observed by the particular community in which they operate. Bother rules and customs reflect behaviour we expect others to observe -- rules because of their authority, customs because they represent a shared understanding. Both rules and customs have sanctions associated with them. Non observance of a rule is associated with the imposition of formal sanctions, and non-observance of customs with the imposition of informal ones. Before moving on to the next activity we will now consider what is meant by the terms roles and habits.
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Roles
A role is something a person performs because he or she occupies a particular position (for example, in society, in a family or in the work environment). The way in which a person behaves, and the way we expect them to behave, are determined largely by that role.
Habits
A habit is something which a person does regularly, not because they are obliged to do it by anyone else, but simply because it has become part of that persons routine. There is no expectation that anyone else will behave in the same way that this person does, and there is no sanction applied if the habit is not followed. In the next activity you will have an opportunity to apply the definitions of rules, customs, roles and habits to some everyday events.
ACTIVITY 5 Rules, customs, roles and habits (allow 30 minutes)........................................
In the table below is a list of everyday events. Using the definitions of rules, customs, habits and roles apply the definitions to these events by placing a tick in the appropriate column. You may find that some of the events fits more than one category.
Table 3 Event 1. Fionas alarm clock goes off as usual at seven oclock. She gets up, has a shower, dresses before having some breakfast and leaving home to catch the bus to work. 2. The bus is very crowded, but Fiona gets a seat, At the next stop an elderly man boards the bus. Fiona gives up her seat to him. 3. During the morning at work Fiona greets a visitor in reception by shaking hands before showing them to a meeting room. 4. At lunchtime Fiona goes out and does some shopping. She pays with her credit card. 5. At the end of the working day Fiona loads the dishwasher in the office kitchen and checks the milk in the fridge as it is her turn to do so according to the agreed rota for keeping the shared kitchen clean. 6. After work, Fiona meets a friend in a restaurant for supper. The waiter takes their order and serves the meal. 7. On her way home Fiona meets her brother in her local pub for a drink. It is late and the landlord calls last orders. 8. Arriving home Fiona finds a message from her mother asking her to phone back when convenient. As it is very late Fiona decides to leave this until the following morning. Rules Customs Habits Roles
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Comment
There is no right or wrong answer to all of these, as some events could be described as being in more than one category.
Table 4 Event 1. Alarm clock going off as usual, showering, dressing, having breakfast before catching the bus. 2. Giving up the seat on the bus. Rules Customs 4 Most people will make sure that they are clean and suitably dressed to go to work. Habits 4 It sounds as if Fiona does this every working day. Roles
4 In some communities it is expected that a younger person will give up a seat for an older person. 4 In a western culture this is the expected behaviour. 4 Fiona is abiding by the law. If she did not pay, she could be stealing and possibly breaking the law. 4 Fiona is taking her turn on the rota according to the office rule. 4 This is what we expect of someone who is a waiter. 4 The pub closes when it is legally obliged to do so. 4 We dont usually phone people if we think they may have gone to bed. 4 Fiona could also be said to be behaving appropriately in her role as a daughter. 4 Fiona could also be acting in the way expected as an employee.
3. Greeting a visitor with a handshake. 4. Paying for shopping.
5. Cleaning the office kitchen.
6. Waiter taking the order and serving the meal. 7. The pub closing. 8. Not phoning her mother back because it is late.
From the comment to this activity you will see how many of the things that we do in our daily lives are things we do because there is a shared social expectation that we should or should not do them or because our
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role demands it rather than because there is a law (which is an enforceable rule) telling us that we must or must not.
SUMMARY OF PART B
After studying Part B you should be able to: explain what is mean by social rules explain how social rules develop define and recognise customs, roles, and habits interpret the meaning of a rule of etiquette and apply it to a situation.
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Part C Rules and values
In this part, we will develop our understanding of rules further, by considering the ways in which they are informed by certain values and principles. Often rules including laws are expressed in neutral language, but nevertheless reflect the prevailing values of the time and culture in which they were formulated. We will also explore how values impact on the way decisions regarding the interpretation of rules are made. One view is that the justification for deciding in a particular way should be grounded in core values; another is that it should be based on the outcome that the decision will produce. You will be given the opportunity to think about this distinction by applying your understanding of certain values to problem situations. In thinking about the way that customs in general, and rules of etiquette in particular, operate, you should have become aware that they express certain values. We have also seen, in the extract from Beckers book Outsiders, that different social groups within a society may have different values. In this part of the unit we will be thinking about the relationship between rules and values. Values are a key concept when thinking about both rules in general and law in particular. This is not only because rules express values as such, but because people are more likely to comply with a rule which expresses a value to which they are committed. You may have read about the Poll Tax riots in the UK in 1990. Those riots started because a significant number of taxpayers and others thought that the tax, which was not based on a persons ability to pay, was unfair.
ACTIVITY 6 Expressing values (allow 20 minutes).......................................................................
In the left-hand column of Table 6 you will see eight statements. Below,
I have set out eight values. Put the value you would associate with each
of the statements next to the one which most clearly reflects that value.
Values Liberty Privacy
Table 5 Statement People of different ethnic backgrounds should be
treated no differently from each other.
People should not have to carry identity cards.
People suspected of links with terrorist
organisations should be held in custody.
People who have not been convicted of a criminal
offence should not be held in custody.
People charged with a criminal offence have the
right to put their defence.
People should not be punished in public.
Women should have the right to choose whether
they have an abortion.
People should be able to say what they want to say.
Value
Security Fairness
Autonomy Equality
Dignity Freedom of expression
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Comment
Your completed table should look like Table 7.
Table 6 Statement People of different ethnic backgrounds should be treated no differently from each other. People should not have to carry identity cards. People suspected of links with terrorist organisations should be held in custody. People who have not been convicted of a criminal offence should not be held in custody. People charged with a criminal offence have the right to put their defence. People should not be punished in public. Women should have the right to choose whether they have an abortion. People should be able to say what they want to say. Value Equality
Privacy Security Liberty
Fairness Dignity Autonomy Freedom of expression
When filling in the table, you may have been aware of the fact that although each of the statements expresses one clear value, those values may conflict with each other. For example, security, which a community may value because it emphasises the importance of physical safety, may conflict with the value of liberty (of people suspected of terrorist links). Similarly, the value of freedom of expression, which allows newspapers to publish intimate stories about people, may conflict with the value of privacy of individuals. It is part of the more problematic nature of rules that they may advance one value at the expense of another. This is explored in more detail in the next extract I would like you to read. (Two values which were not mentioned -- justice and the right to a fair trial -- will be discussed in later units.)
ACTIVITY 7 Relations between rules and values (allow 45 minutes).................................
Please read Reading 2: Rules and values, from Twining and Miers How to Do Things with Rules (1999). You may find that Reading 2 is more challenging than the previous ones. The questions below should help you to understand the main points that it makes, and will allow you to practise making notes from an academic article. We suggest that you read it through as a whole first, and once you have a sense of the article as a whole, read it through section by section to answer the questions which relate to the numbered sections of the article.
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1 Twining and Miers suggest that the relationship between rules and values is complex. Note the three aspects of the relationship discussed in paragraph one.
2 What absolute moral principles does Article 3 of the European Convention on Human Rights embody?
3 Is it always possible to maintain a distinction between rules and values?
4 Explain what is meant by values that are: (a) intrinsically good

(b) extrinsically good
(c) both intrinsically and extrinsically good.
Why do you think that the intrinsic values of predictability and
consistency are important in a system of rules such as a legal
system?
5 Note down the three main views about the criteria which may be adopted to determine the claim of any action or rule to be right.
Comment
1 The three aspects discussed in paragraph one are that rules may further, embody, or conflict with values. 2 Article 3 of the European Convention on Human Rights embodies the absolute moral principles against torture and inhuman and degrading treatment. 3 Twining and Miers suggest that it is not always possible to maintain a distinction between rules and values. 4 Values that are intrinsically good are good in their own right, for example the right to life and telling the truth.
Values that are extrinsically good promote desirable consequences,
for example brushing ones teeth and keeping fit promote good
health.
Values that are both intrinsically and extrinsically good combine
both in that they are good in their own right and promote desirable
consequences, for example keeping a promise.
5 Twining and Miers suggest that there are three main views about the criteria which can be used to support a claim that an action or rule is right. The first is based on abstract principles such as justice and fairness. The second considers the consequences of an action. The third uses a combination of both consequential and moral arguments.
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This activity should have given you an insight into the ways in which rules and values can, and do, conflict. It is this which makes the task of making, interpreting and applying rules and in particular law so interesting and so complex. You have now almost completed the first unit. To give you the opportunity to think more generally about what you have studied and learned, you should work through Activity 8. The activity will give you an opportunity not only to review your understanding of some of the ideas and themes that have been explored in the unit, but also to practise your skill in taking notes and answering questions. To take maximum advantage of the exercise please follow the instructions carefully.
ACTIVITY 8 Living with formal rules (allow 30 minutes)..........................................................
DVD
Please note that this is an instance where the DVD numbering differs from that in the unit activity, as explained in the introduction.
I would like you to listen to an extract from a radio programme, Living with formal rules, in which the participants discuss the benefits and disbenefits of living in societies and communities where what are normally treated as social rules are made into formal (and sometimes legal) rules. You will find this on the W100 DVD. Look for Unit 1 Activity 10 -- Living with formal rules. First, listen to the extract and make notes about anything which strikes you as being relevant to what you have studied in this unit. Then, when you have finished listening and making your notes, look at the questions I have set out below. Use your notes to answer the questions. You will probably find that you can answer some and not others. Dont worry about this -- it will help you think about the way you make notes, and what the function of making notes is. When you have done this, listen to the programme again. Answer the questions one by one as you listen, checking them against the answers you have already given -- you can pause the DVD as you go along to make this easier if you like -- just press the pause button on the DVD player screen that you have in front of you. You may need to go back over the various sections of the unit to answer some of the questions. After you have completed the exercise, look at my answers and comments and see how they compare with yours. The questions you should address are as follows: 1 Which countries are used to illustrate the issues raised in the extract? 2 Make a list of the rules described by the correspondents from the countries other than the UK. 3 Do you think that the prohibitions described by the correspondents from the different countries are best described as descriptive or prescriptive? Why?
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4 What would you say the purposes or functions of the rules described by the correspondents are? (Think back to our exploration of social rules in Parts B and C.) 5 Table 8 lists some of the rules (and arguments for and against some of them) referred to in the extract. Which of the following values do you think inform the rules and arguments set out, and in what ways? It is worth remembering that a value may be reflected negatively or positively in any given rule. (You may find it useful to review Part D of this unit when attempting this question.) Values Liberty Privacy
Table 7 Rules and arguments The rule against having a barbecue on the balcony of your flat in Berlin The rules in Bournville about the colour you are allowed to paint your house, and whether you can put up a TV aerial The rule in Bournville that prohibits the sale of pornographic magazines Values In what way do the values inform?
Security Fairness
Autonomy Equality
Dignity Freedom of expression
Comment
The following answers were contained within the extract from the radio programme: 1 Germany, USA, UK 2 Germany -- (in the country) mowing lawns, cleaning cars, or any activity that is likely to make noise on Saturday afternoons or on Sunday; in the city (Berlin) different rules -- restrictions on running water, the flushing of toilets, disposal of glass and metal (dependent on property manager), use of barbecues on balconies, washing not out on Sundays or public holidays, washing to be hung out below balcony wall. United States -- (Celebration) lawns must be neat, pale paint
essential for houses, loud colours for curtains forbidden, deck
furniture to be made of a particular material.
3 They are prescriptive, because they provide guidance on what those to whom the rules apply can and cannot lawfully do. 4 The rules have a range of purposes and functions. Some that you may have thought of are: promoting a clean environment (not having barbecues on balconies), respecting neighbours (not hanging out your washing, keeping front gardens neat and tidy, not disposing of rubbish on certain days), maintaining public decency (not selling
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pornography), maintaining public order (not selling alcohol). You may have thought of others. 5 Table 9 shows how I would have filled out the table. Dont worry if yours looks different -- there are a number of ways in which you could have interpreted the rules and arguments, and the values which informed them.
Table 8 Rules and arguments The rule against having a barbecue on the balcony of your flat in Berlin Values Autonomy In what way do the values inform the rules? Because the rule prevents a person from exercising a free choice about where and how they prepare their food Arguably because the reason for the rule may be to minimise the risk of fire. Safety is a paramount concern in buildings. Some rules are necessary to ensure that people are not put at risk Because the smoke from a barbecue could have a negative impact on the ability of neighbours to enjoy their own property and may adversely affect their home life Because all people who live in Bournville are subject to the same rules Because although the rules allow for some limited variation, they encourage uniformity and prevent individuality Because, some might argue, pornography is degrading Because, some might argue, people should be entitled to make pornography Because, some might argue, people should be entitled to buy pornography
Security
Privacy
The rules in Bournville about the colour you are allowed to paint your house, and whether you can put up a TV aerial
Equality
Freedom of expression
The rule in Bournville that prohibits the sale of pornographic magazines
Dignity Freedom of expression Autonomy
We have now considered the meaning of rules, and explored the influence of values on rules. This final activity should have alerted you to the fact that many of the rules which we generally treat as social -- whether customs, habits, roles or etiquette -- can be formalised into written ones. Unit 2 introduces you to the process of making, interpreting and applying rules.
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SUMMARY OF PART C
After studying Part C you should be able to: understand some of the values which lie behind rules demonstrate the function of values in decision making apply your own values and reasoning skills to make a decision about how to act given conflicting rules. Before moving on to unit 2 I would like you to take a few moments to review the learning outcomes for unit 1 which follow in the review section.
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REVIEW OF UNIT 1 LEARNING OUTCOMES

After studying Unit 1 you should be able to:
Part A
understand what is meant by the term rule identify a rule understand that a law is a type of rule understand what is meant by a descriptive rule understand what is meant by a prescriptive rule.
Part B
understand how social rules develop understand why rules of different social groups may conflict define rules, customs, habits and roles distinguish between rules, customs, roles and habits. explain the functions of etiquette interpret the meaning of a rule of etiquette and apply it to a situation
Part C
understand some of the values which lie behind rules demonstrate the function of values in decision making apply your own values and reasoning skills to make a decision about how to act given conflicting rules. You should also have begun to form your own effective reading and note-taking habits.
Before moving on to Unit 2:

Do you feel confident that you have a sufficiently comprehensive understanding of rules and their function to enable you to move on? Do you feel sufficiently confident in your understanding to enable you to move on, but are aware that you need to revisit the material later? or Have you found the material difficult to understand and need to look over it again before moving on? Remember, new information takes time to sink in. Most people agree that short-term memory will hold a limited amount of information. As you progress through W100 you will be receiving more and more information; information you read today will be pushed out of your memory by the information you read tomorrow. You must, therefore, allow time for consolidation to take place.
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Having now explored rules and their development, learnt about descriptive and prescriptive rules, considered the differences between rules, customs, roles and habits and the values which can underpin rules and decision making, we will explore next how rules are made, interpreted and applied. While working through this unit, you have also started to develop your reading and note-taking skills. These skills will be built upon in Unit 2.
REFERENCES
Becker, H.S. (1963) Outsiders, London, Simon & Schuster, pp. 15--18.
Post, E. (1937) Etiquette: The Blue Book of Social Usage, New York,
Funk & Wagnalls, p. 20.
Robinson, F.P. (1946) Effective Study, New York, Harper & Row.
Rowntree, D. (1988) Learn How to Study, Basingstoke, Macmillan.
Twining, W. and Miers, D. (1999) How to Do Things with Rules (4th edn),
London, Butterworths, pp. 123--33.
W100 Block 1
Unit 2
Making, interpreting and applying rules
Prepared for the W100 team by Matthew Weait and Jane Goodey
CONTENTS
Unit 2 learning outcomes Introduction 42 43
Part A The meaning of formal rules Part B Policy and rule making Part C How to make rules work Part D Interpreting rules Part E Applying rules Part F Making, interpreting and applying a law
43 45 55 61 65 69
83 84
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identify and describe what is meant by a formal rule and understand
the problems associated with rule making explain what is meant by policy and why it is important understand how formal rules are constructed explain why the language of formal rules is important explain what is meant by interpretation and interpretive strategies understand how formal rules are applied explain the development and application of a law You should also have developed skills in reading a document and beginning to analyse the content by answering questions about it.
UNIT 2 MAKING, INTERPRETING AND APPLYING RULES
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Introduction
The aim of Unit 2 is to introduce you to the processes of making, interpreting and applying rules. The challenges that you will discover in making, interpreting and applying rules generally also apply to law. In Unit 1 we saw that many rules, most of which are unwritten, we observe because we have a shared social understanding of what they are. We are now going to move on to think about a different kind of rule, a formal rule as opposed to a social rule. A reminder of a definition of a rule (as opposed to a custom, role or habit) we used in Unit 1 is shown in Box 1. Box 1 Rules A rule is something which prescribes what a person must/must not do, may/may not do, can/cannot do. It is generally possible to go to a text (such as an Act of Parliament, a contract, the written decision of a court, or the holy book of a particular religion) which specifies what the rule is. The authority of a rule is generally accepted and observed by those to whom it applies. Formal sanctions, such as punishment or the payment of compensation, may be applied if the rule is broken.
Part A The meaning of formal rules

In this part, we will develop our understanding of rules further. So far we have concentrated on social rules. Here we are going to explore rules which are more formal in nature. By this I mean rules which -- instead of being the product of shared understanding and practice -- are set down in some way, usually in writing. In this section we will be focusing on what is meant by formal rules and the ways such rules are made. The purpose of Activity 1 is to provide you with an opportunity to study a number of statements and to identify which of them express a rule.
ACTIVITY 1 Identifying formal rules (allow 10 minutes) ..........................................................
Think again about the definition of a rule as set out in Box 1, and put a tick next to those statements in the following list that you think represent a rule according to this definition: o Children should be seen and not heard. o It is an offence for a person to be drunk in charge of a bicycle. o Tea must be brewed for at least three minutes before it is drunk. o Drivers must obey a Give Way sign. o Invoices must be settled on the date agreed. o Owners of a television set must be in possession of a valid TV licence. o Alcohol must not be served to those under the age of 18 in a public restaurant. o Rhododendrons should be planted in acidic soil. o Breakages must be paid for.
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Comment
Your list should look like this: o Children should be seen and not heard. o It is an offence for a person to be drunk in charge of a bicycle. 4 o Tea must be brewed for at least three minutes before it is drunk. o Drivers must obey a Give Way sign. 4 o Invoices must be settled on the date agreed. 4 o Owners of a television set must be in possession of a valid TV 4 licence. o Alcohol must not be served to those under the age of 18 in a public 4 restaurant. o Rhododendrons should be planted in acidic soil. o Breakages must be paid for. 4 Each of the statements marked with a tick is a rule. Those that are not ticked are, respectively, a well-known proverb, advice for someone who does not like weak tea and a good gardening tip. What you may have noticed about the statements that do represent rules is that they deal with a very wide range of behaviour -- including the obligation to compensate someone for loss (Breakages must be paid for) and the obligation to honour a contract (Invoices must be settled on the date agreed). Indeed, the range of rules is at least as broad as the range of social customs and habits we observe. One of the things you may also have noticed about the statements we identified as rules is that they are also the product of a decision by a person or group of people. So, for example, the rules about bicycles, drivers, TV owners and serving alcohol paraphrase rules which have been made under the authority of Parliament (via the Highway Code, the Television Licensing Authority and legislation dealing with licensed premises). The rule about the invoices being paid will have been made under the authority of a contract agreed between the parties, and the rule about breakages will have been made by the owner of the shop in which it applies. It is this element of rules -- the fact that they are deliberately created -- that we are going to consider next.
SUMMARY OF PART A
After studying Part A you should be able to: describe what is meant by a formal rule identify a formal rule
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Part B Policy and rule making
Formal rules (and laws) do not just appear from nowhere! In this part we will be exploring how such rules (and laws) are the product of a process of policy making. As an example, we will be using the Irish Governments policy on banning smoking in the workplace, and the law which arose out of this policy. Part B will also provide you with an opportunity to apply some of the reasoning skills you have been developing by applying your understanding of the Irish law to some factual situations. One of the most obvious differences between the development of a custom within a community, which we looked at in Unit 1, and the introduction of a rule which applies to that community, is that the rule will almost invariably have been the result of a policy decision. In other words, at some point in time those with authority to make a rule will have decided that the behaviour of those in the community should be guided or controlled in a certain way, and that a rule is necessary in order to do that. This may be for a number of reasons. For example, it may be that the behaviour in question is not something which people in the community will do voluntarily. Or it may be that the rule-maker has changed its view on the propriety of certain behaviour and wants to bring about change on ideological grounds. (This is what happens when control of a Parliament, as the rule-maker, shifts from one political party to another as the result of a general election.) Or it may be because a rule change is necessary in order to bring about a socially or economically desirable outcome for the community: there are many other reasons.
The policy behind Irelands ban on smoking in the workplace

In order to explore these issues, we are going to look at the introduction of a rule in the Republic of Ireland -- the ban on smoking in places where people work which was introduced in 2004. Similar bans were introduced in Scotland in 2006 and Wales, Northern Ireland and England in 2007. What I would like you to do now is to think about your own position on this subject. The purpose of the next activity is to provide you with an opportunity to think about your own attitudes to a particular kind of behaviour which many people feel should be subject to legal control. It is useful to work out what you think about a particular subject before engaging in more detailed study of it because it helps clarify the position from which you are arguing.
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ACTIVITY 2 Smoking in the workplace (allow 20 minutes) ......................................................
Activity 2 is in two parts. You should attempt Part A before moving onto Part B. Part A Consider the following questions and make a note of your answers: 1 Whether or not you smoke, do you think that people should be allowed to smoke in premises where people work?
Would you draw a distinction between premises where all the people are working there (such as an office), and premises where some are and some are not (such as a pub)?
Whether or not you would draw a distinction, what are the reasons for your view?
Do you think that smoking should be at the discretion of the person in control of the premises (such as the employer in an office or the publican in a pub), or controlled by legislation?
Part A Comment
There are no right answers to these questions. Their purpose is to help you clarify your own position before attempting Part B of this activity. Part B Those reasons for the introduction of the law in Ireland were set out by the Irish Health Minister, Mr Martin, in the debate on the Bill which introduced the new law. Please read the extract from his speech in the Irish Parliament in Box 2, and then answer the questions which follow. Box 2 Public Health (Tobacco) (Amendment) Bill 2003: Second Stage Minister for Health and Children (Mr Martin): I move: That the Bill be now read a Second Time. The battle against tobacco is one of the most important public health challenges facing us in the new millennium. I have made this area one of my main priorities as Minister for Health and Children. The adverse impact of tobacco consumption on human health globally and locally is well documented. Tobacco smoke is the leading preventable cause of death and disability in Ireland. Medical evidence has repeatedly confirmed tobacco as a cause of cardiovascular disease, including heart attack and stroke, common cancers, chronic obstructive pulmonary disease, asthmatic attacks, low birth weight babies and sudden infant death syndrome. About 7,000 deaths in Ireland each year are attributable to tobacco related illness. Smoking tobacco products is one of the unhealthiest things a human being can do.
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Life expectancy is lower in Ireland than the EU average and the diseases which contribute primarily to this are heart disease and cancer. Tobacco use is the leading preventable cause of these diseases. Smoking is a major causative factor in about 90% of the 2,000 deaths from lung cancer each year and increases the risk of other cancers such as the mouth and throat. Smoking is also a primary cause of cardiovascular disease, the greatest single cause of mortality in Ireland. Tobacco is a significant burden to individuals, families and society through death, illness and medical costs. Reduction in tobacco use will increase life expectancy in Ireland and result in happier, healthier and better quality lives for many Irish people. Evidence has accumulated year on year of the enormous world wide threat to human health from consumption of tobacco products. Studies carried out internationally in recent years have also confirmed that there is a significant risk to the health of the non-smoker from inhaling environmental tobacco smoke referred to as passive smoking. [. . .] The tobacco industry and its allies seem determined to try to undermine public health policy in the area of tobacco control. Perhaps we should regard this as testimony to how effective the measures contained in the Bill will be when enacted and commenced. We must not lose sight of the predatory nature of the tobacco industry. It is a global industry which has long regarded the World Health Organisation as its greatest enemy in preventing the spread of the global tobacco epidemic. Much has been achieved in reducing the incidence of smoking in our population. By a combination of measures including legislation, regulation, health promotion and education we were able to achieve a level of 27% for 2002 as shown in the SLAN [Survey of Lifestyle, Attitudes and Nutrition] survey published earlier this year. More recent surveys conducted by the Office of Tobacco Control indicate smoking levels dropping to 25%. This is welcome news and the reduction achieved will have many benefits, particularly for future generations who will come to accept non-smoking as the social norm. Our success in improving the health status of the nation is linked to further reducing the level of tobacco usage and in particular preventing young persons from starting to smoke. If the incidence of tobacco use can be reduced further we can make considerable progress towards a tobacco free and a healthier society in the years to come. I am not suggesting that legislation alone, no matter how comprehensive, can create and sustain the environment necessary to prevent people from starting to smoke and to assist those who have already started to quit. Our anti-tobacco strategy will be multifaceted, containing as it will strong legislative controls and effective enforcement powers. However, the strategy will also have a fiscal element and the supports required by smokers to quit. The implementation of this comprehensive strategy will, in time, effect the necessary attitudinal changes in society to tobacco consumption followed by the necessary behavioural changes. We owe it to ourselves, to the younger generation, and, indeed, to future generations to ensure that the war against tobacco is won. We must ensure that the children and young people of today do not become future victims of the tobacco industry, whether through being induced to smoke tobacco products or through exposure to and inhalation of environmental tobacco smoke. 1 Is Mr Martins speech about smoking, or against smoking?
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Does Mr Martin make his argument mainly on the basis of a principled objection to smoking, or mainly on the basis of scientific evidence?
Why do you think he mainly uses this argument in his speech?
What benefits does Mr Martin say will result from the control of tobacco use?
Identify those places in the speech where Mr Martin uses military language. Why do you think he does this?
Does Mr Martin believe that law alone can prevent people from smoking?
What wider impact does he believe the introduction of the law will have?
Part B Comment
1 2 3 The speech is an argument against smoking. He is making the case for the control of tobacco use. There is a strong emphasis in the speech on scientific evidence, primarily from medical research. It is often thought effective to justify a policy change using evidence from those with expertise in the particular area, especially if the evidence is strong (as it is in this case). By using arguments grounded in science it is easier for Mr Martin to avoid the criticism that the Bill is designed to limit personal freedom, for example. Mr Martin emphasises the health benefits, to those who smoke, those who inhale other peoples smoke, and babies born to smokers. More generally, he emphasises the fact that the change in the law will result in an improved quality of life for many Irish people. In this way he draws attention to the social and communal benefits which will result from the introduction of the rule. Mr Martin uses the following phrases: The battle against tobacco The tobacco industry and its allies We must not lose sight of the predatory nature of the tobacco industry
It is a global industry which has long regarded the World Health
Organisation as its greatest enemy
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We owe it to ourselves, to the younger generation, and, indeed, to future generations to ensure that the war against tobacco is won He uses this military terminology to emphasise that this is a fight which he, the Irish government and the Irish people must win. Politicians introducing new laws often use powerful language like this -- rhetoric -- to persuade people of their cause. 6 No. He sees it as part of the solution. The battle against smoking has to be fought using fiscal (monetary) incentives and other forms of support. Mr Martin believes that the introduction of the new law will change attitudes towards smoking and that this, in turn, will result in changes in behaviour.
Did you find Mr Martins argument convincing? Whether or not you agree with the case he made against smoking, I think you can see that he used a number of effective ways of making that case.
The Irish anti-smoking law

In Activity 2 we considered what the Irish Governments arguments for introducing the smoking ban were. We are now going to turn to the law itself. The passage I want you to read is from the Irish Government Public Services website and explains the new law in simple language. Read the passage in Box 3 carefully and answer the questions in the activity which follows. The questions ask you to interpret the rules, something we will be looking at in more detail later in the unit. For now, I just want you to use your own everyday knowledge and understanding. The purpose of Activity 4 is to provide you with an opportunity to read a document which attempts to explain a law, and to answer some questions about the way in which the law operates in practice -- an important legal skill. Box 3 Ban on smoking in the workplace in Ireland Information Since 29 March 2004, the Irish Government has implemented a ban [on] smoking in the workplace. This means that with effect from that date (29 March 2004) smoking is forbidden in enclosed places of work. This includes office blocks, various buildings, public houses/bars, restaurants and company vehicles (cars and vans). The ban is being introduced as part of the Public Health (Tobacco) Act, 2002 (Section 47) Regulations 2003. Just under 25% of the Irish population smoke and the purpose of this ban is to offer protection to employees and the public who are exposed to the harmful and toxic effects of tobacco smoke in the workplace. Smoking has been identified as a major cause of heart disease and a significant contributor to lung cancer in Ireland. Rules From 29 March 2004, you are not allowed to smoke in an enclosed place of work in Ireland. While the ban will mean that smoking will be forbidden in many places, there are a few exceptions:
. .
Prisons
Police station detention areas
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. . . . . . . . .
St. Patricks Institution [a medium-security place of detention] Nursing homes Hospices Religious order homes The Central Mental Hospital Psychiatric hospitals Maternity homes Hotel, guesthouse and B&B bedrooms Third-level educational residential facilities.
The Government has stated that even though certain places are exempt from the ban, all employers (even those who are exempt) still have the right to enforce the legislation. In other words, even though the above organisations and institutions are not obliged to enforce the ban, they are free to do so if they wish. [. . .] Given that prisons and places of detention are unique, the law does not apply to these institutions. [. . .] Outdoor smoking areas While smoking in an enclosed workplace is forbidden under the law, employers have discretion to provide an outdoor smoking area, subject to the requirements of the law. The law has defined an outdoor area as: A place or premises, or part of a place or premises, that is wholly uncovered by any roof, fixed or mobile. An outdoor place or premises that is covered by a roof, so long as not more than 50% of the perimeter (outside) is covered by a wall, windows, gate or similar. [. . .] Does my employer have to give me time off work for smoking breaks? No. Employees in Ireland are only entitled to time off work for breaks as set down in Section 12 of the Organisation of Working Time Act, 1997. Your employer is not currently obliged to provide additional time for smoking breaks for employees nor will they be obliged to provide smoking breaks for employees after the implementation of the Smoking Ban in the Workplace. Enforcement of the smoking ban Inspections to ensure that the ban on smoking in the workplace is being implemented will be undertaken by Environmental Health Officers employed by the health boards. In addition, inspections will be carried out by Inspectors from the Health and Safety Authority. The traditional workplace locations visited by the Health and Safety Authority will have to comply with the new smoke-free measures requirements, as part of their general compliance with health and safety requirements. Officers from health boards and the Office of Tobacco Control will ensure that smoke-free measures are undertaken in workplaces connected with the food and hospitality sector. Offences Any person found guilty of breaching the ban on smoking in the workplace may be subject to a fine of 3,000 euro. The owner, manager or person in charge of the workplace is legally responsible for ensuring that the ban on smoking in the workplace is complied with.
(Source: www.oasis.gov.ie/employment/health_and_safety_in_employment/ [Accessed 11 September 2006])
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ACTIVITY 3 Analysing rules (allow 40 minutes) ............................................................................
Based only on the information provided in Box 3, answer the questions below. Some of the answers merely expect you to identify the relevant factual information. Others require you to think a little more creatively! 01 When did the ban on smoking in the workplace start?
02 What legislation provided the basis for the ban?
03 Does the ban extend to smoking in any car or vehicle?
04 What was the justification for the ban?
05 Does the ban extend to convents?
06 Does the owner of a hotel have to allow people to smoke in hotel bedrooms?
07 Does the ban apply to the dining area of a guesthouse?
08 Can the rules be used to prevent a prisoner smoking?
09 Must an employer provide an outdoor smoking area for employees?
10 Would the premises in Figure 1 be classified as an outdoor area? Assume that the open space depicted is the only open space.
Roof
Wall
Open space
Figure 1 Outline of premises
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11 Do the new rules create an obligation on employers to provide breaks so that employees who wish to smoke may do so?
12 Which different agents and agencies are involved in ensuring that the smoking ban is enforced?
13 Could the landlord of a pub in which customers smoked on the premises avoid legal liability?
Comment
01 02 03 04 29 March 2004. The Public Health (Tobacco) Act, 2002 (Section 47) Regulations 2003. No -- only company cars and vans (i.e. vehicles owned by the company). The purpose of the ban is stated to be the protection of people in the workplace from the harmful effects of tobacco smoke. These effects include heart disease and lung cancer. The rules do not specify convents, but they do not extend to religious order homes (which would include convents and monasteries); so the answer is no. Hotel bedrooms are exempt from the ban, but the owner (if they are the employer) may choose to enforce it if they wish; so the answer is no. Yes. The exception (subject to what I have said in the answer to question 6) only applies to bedrooms. It would seem not. Prisons are said to be unique institutions, and so the rules do not apply. There is no requirement to do so, though an employer may provide one at their discretion. If they do so, the outdoor area must be one which the rules define as outdoor. No. The rules explain that a premises with a roof is outdoor if 50% or less of the perimeter is covered by a wall or similar. In Figure 1, much more than 50% of the building is walled. No. The rules do not alter the existing situation (which is that employers do not need to provide smoking breaks for their employees). Environmental Health Officers (employed by the health boards); Inspectors from the Health and Safety Authority; officers from the Office of Tobacco Control. No. The pub would be a workplace, and the landlord of a pub would, as the owner, manager or person in charge, be legally responsible for ensuring that people did not smoke there.
05
06
07 08 09
10
11
12
13
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When you answered these questions, which of them did you have to think about a bit more carefully? My guess is that questions 5, 6, 7, 8, 9 and 10 required a little more thought than the others. Even if you answered these questions correctly, it is worth thinking about the thought process you were engaged in when you did so and being aware that they involved certain key comprehension and reading skills. Question 5 is a typical legal question in that the answer depends on your interpretation of another term. It is rather like the question you were asked in Unit 1 about whether a gentleman should take off his hat on a hotel staircase, or in the compartment of a railway train. (Go back to Activity 4 on etiquette in Unit 1 and reread the passage and comments if you wish.) Religious orders is a general category which could cover a number of more specific workplaces. It might very well be that there are some workplaces less obvious than convents (or monasteries) where deciding if they fell into the general category of religious orders would be for a court to determine. We will look in more detail at the problems of interpretation later in the unit but for now, the important thing to note is that if you answered the question correctly, you have demonstrated a very important skill. You have recognised that it is possible to answer a question about a rule by using everyday reasoning. If you did not answer the question correctly, take a little time to think about why you did not. Question 6 required the use of another skill useful for those studying the way the law operates. At first glance, the answer would appear to be found in the list of exceptions. Hotel bedrooms are not subject to the mandatory ban. However, the answer to the question depended on reading beyond the list to the paragraph below and realising that there was a discretion to enforce the ban which could be exercised by the employer. This in turn meant qualifying the answer by saying that the hotel owner could exercise the discretion but only if they were the employer. During W100 you will frequently be asked questions like this, where the answer depends on connecting different parts of a text, and working out how one affects the other. You will also discover that you are only able to give a partial or conditional answer on the basis of the information you are given. (It would be incorrect simply to say that the hotel owner could enforce the ban without explaining that this would only be so if they were also the employer.) Question 7 also requires careful reading. Because the list of exceptions includes hotel bedrooms, it might be tempting to assume that the ban does not apply to hotels. This would be wrong because, unlike the answer to Question 5, the particular does not include the general. Religious order includes convent, but hotel bedroom does not include hotel. It is very important that you use only the information at your disposal to answer the question asked and to assume that the information is accurate. Do not be tempted to think They must mean hotel premises generally, if that is not what you are told.
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Question 8 is a tricky one. On the basis of the information given, it would seem that prisons are not workplaces to which the ban could ever apply, even if an employer wanted to ban smoking. The reason it is difficult to be sure of the answer is the way the information is set out. Prisons are listed among the exceptions. There then follows an apparently general statement which purports to provide a discretion in respect of all exempted workplaces (which would mean that prison employers could impose a ban under the rules); but there then follows a brief statement explaining that prisons and places of detention are unique and that the law does not apply to them. Assuming that the law includes the discretion to impose a ban, then the answer is no, but the explanation is not as clear as it could be. Generally, it is not good practice to answer a question with it seems not or possibly, because this gives the impression that you do not know the answer and are hedging your bets! However, if the information is not clear, and you give an explanation of why your answer is circumspect then this will be adequate. It is better to say, therefore, it could be argued (or words to this effect). Question 10 is tricky for two reasons. One is the fact that you have to apply the meaning of a text in written form to a visual image. The other is the explanation given in the text. Even though the passage you read was provided as a lay-persons guide to the new rules, you may very well have found the explanation of what constituted outdoor places and premises a bit mind-boggling. This is in part because the sentence which includes 50% has two clauses, the first of which is general and the second of which qualifies the first using so long as (creating the exception). The meaning is not made any clearer by the odd use of cover. Have you ever thought of a wall covering the perimeter of a space with a roof on? No, neither have I. This kind of language in a rule does not make it easy to answer questions about the meaning of the rule, but it is unfortunately very common in legal texts. You will have further opportunities to think about the language of rules later in the unit. For now, do not be too concerned if you got the answer wrong, or found the language difficult.
SUMMARY OF PART B
After studying Part B you should be able to: describe the relevance of policy for rule making demonstrate/explain the implications of the rules governing Irelands ban on smoking in the workplace.
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Part C How to make rules work
We have looked at the way in which policy informs the development of rules, and you have had an opportunity to develop your reasoning skills by applying your understanding of a set of rules to some factual situations. One of the issues which came out of Part B was that sometimes in applying rules the language in which the rules are written makes it difficult to know exactly what is meant. In Part C we will be looking at this problem in a little more detail. In particular, we will be looking at some of the issues that arise when making (formulating) rules, and the difficulties that arise when rules are too specific or too general.
Formulating rules
Activity 3 should have shown you that the language used for making rules can sometimes make them difficult to understand. Given that we can only comply with a rule if we know what it means, this is a big problem! In this part of the unit we are going to look at the process of making rules in more detail -- and you are going to have the opportunity to make a rule that can be understood and which is effective in achieving what it sets out to do. It is worth restating that rules are made for a reason -- to achieve a specific purpose or outcome. They are designed to ensure that their target audience acts, or refrains from acting, in a certain way. That audience could be sovereign states (bound by international treaties to which they are signatories), members of the general public (bound by Acts of Parliament, local by-laws, etc.), children at school (bound by rules of attendance and discipline), players of a sport (bound by the rules of that sports governing body), participants in a court trial (bound by the rules of evidence and procedure), or smokers in an Irish pub. There are many other examples. Whoever their audience is, rules should, ideally, be formulated in such a way that members of that audience understand exactly what is expected of them. If they are unclear, the audience may be at a loss as to how it should behave, and the rules will not achieve their purpose. There are issues with this idealistic goal. While there is an infinite number and range of real-life events, there can only ever be a finite number and range of rules to deal with them. Rules therefore have to be drafted in such a way that they cover the conduct they are meant to regulate, but not so that they regulate other conduct, and so have unintended effects. To explore these issues, I would like you to read the account in Box 4 of Mrs Biggs, and the difficulties she has in controlling visitors to her garden.
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Box 4 In an English country garden Mrs Biggs is the owner of a house which has a beautiful garden. Once a year she takes part in a scheme which allows members of the public to visit gardens in her area, so that they can appreciate the flowerbeds, trees and shrubs that gardeners like her have spent many years growing and cultivating. The scheme allows Mrs Biggs, as the gardener, to decide what rules should apply to those wishing to visit her garden. Three years ago, when she first took part in the scheme, she was advised by a neighbour that visitors had a nasty habit of picking flowers, so Mrs Biggs made the following rule:
Do not pick flowers.

Mrs Biggs was satisfied with the rule, and opened up her garden. However, she was horrified to see one person taking cuttings from some shrubs, and another picking raspberries off the plants she was growing outside the back door. You cant do that, she said, to which the visitors replied Why not? Theres no rule about taking cuttings, or picking raspberries; and we werent picking flowers. We complied with the rule. The following year, Mrs Biggs decided to deal with the problem by changing the one rule into two. The amended list read as follows:
Do not pick flowers or raspberries. Do not take cuttings from any of the shrubs.
She was pleased with these rules, which dealt with the problems that had arisen, and the following year she opened her garden again. However, on the first day she was once more horrified to see someone picking plums and another taking cuttings from her prize apple tree. You cant do that, she said, to which the visitors replied Why not? Theres no rule about taking cuttings from trees, or picking fruit other than raspberries. Last year Mrs Biggs decided to change the rules one last time. The new rules were:
Do not pick flowers or fruit. Do not take cuttings.

She opened up her garden this time with some trepidation, but none of the flowers or fruit were picked, and no cuttings were taken. Although this is a very simple story, it illustrates two difficulties with rules. One is that they must be sufficiently specific for their intended audience to know what they are supposed to do (or not do). The other is that they must be sufficiently general that they will cover unanticipated behaviour or conduct. When Mrs Biggs made her first rule, she made it clear that she did not want flowers picked; but she had not given any thought to the fact that things other than flowers can also be picked. She had also not covered the possibility that people reading the rule might assume that this was the only aspect of their behaviour that Mrs Biggs intended to regulate, and that it was therefore permissible to take cuttings (or, for that matter, to do anything else). Mrs Biggss second set of rules was an improvement, but not much of one. She realised that the rule about picking would need to cover the picking of raspberries, but (as she subsequently realised) this did not
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cover the picking of other fruit. Similarly, she introduced a rule about taking cuttings, but the rule was too specific. She had not anticipated that other kinds of cutting can be taken. Her final set of rules is better. What she did was to make them more general -- more inclusive. She realised that if she did not want raspberries or plums picked she needed to draft the rule using a term which would include both of these: fruit. And she realised that if she did not want any cuttings taken, she needed to draft the rule more generally and not refer specifically to shrubs. These points are illustrated in Activity 4. The purpose of this activity is to provide you with an opportunity to explore the ways in which different formulations of a rule can have different (and sometimes unintended or unanticipated) effects. The activity will also help you understand why the choice of language is so important when deciding how to formulate a rule.
ACTIVITY 4 Helping Mrs Biggs (allow 1 hour) ................................................................................
Imagine that you are Mrs Biggs and that you have opened up your garden once again. You have, you will remember, two rules now:
Do not pick flowers or fruit. Do not take cuttings.

Everything is going well, and you are receiving lots of compliments from the visitors. However, just as you are about to close up, you notice that your herb bed has been all but destroyed -- branches of rosemary have been snapped off, the sage bushes have hardly any leaves on them, and the basil has gone altogether. You say to yourself Thats it. Its no good -Ive tried my best. Im never going to open my garden again. A visitor to your garden hears you and asks you what the problem is, and you tell them about the herb bed. You explain that you have tried to deal with the conduct of visitors by using rules, but that they never seem to work exactly as you had hoped. The visitor is more optimistic than you are, and suggests that you both sit down and think of a way of regulating the behaviour of people in the garden so that you will feel confident about opening it to visitors next year. The visitor tells you that this will be possible if you think about some simple questions and note your answers: 1 Why do you think your rule about picking flowers or fruit did not stop people picking herbs?
Comment
Herbs are neither fruit nor flowers. The rule did not therefore deal with the picking of herbs. It was too specific. 2 What would you need to do to the rule as it is currently formulated (i.e. without changing the form of it) to stop people picking herbs?
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Comment
You could add herbs to the list of things which cant be picked. 3 Now redraft the rule, using its existing formulation.
Comment
Your rule might read Do not pick flowers, fruit or herbs. 4 Would this new rule stop people picking seed pods, or picking the bark off trees?
Comment
No, it wouldnt! Assuming you do not want people picking either seed pods or bark, we need to find a way of making the rule even more general. The trouble with specifying the different things you dont want picked is that there are so many. If you specified them all, the list would be incredibly long and unwieldy, and theres always the possibility that you would leave something important off the list. We could have a rule which said Do not pick any of the plants, but that wouldnt cover the case of the seed pods or the bark because, strictly speaking, these are not plants. There is, however, a way round this problem. It involves changing the verb pick to something else, and using a phrase which would include fruit, flowers, herbs, seed pods and bark (and other things you might not want people to damage). 5 Can you think of a way of redrafting the rule in a more general way, one which would achieve your objective?
Comment
The following are some possible answers. Think about each possible rule and identify: the extent to which it would address your problem the potential difficulties which it would create for you and for visitors to your garden. Possible rule 1:
Do not touch anything in the garden.

Your observations
This would certainly make it clear that none of the plants should be touched, and would also deal with the problem of the seed pods and the bark. But it would also mean that visitors would not be allowed to touch things other than plants -- fences, bird feeders, and rocks would all be
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out of bounds, and (taken literally) it would mean that visitors would not be allowed to touch the gate, so getting in and out would be problematic! Possible rule 2:
Do not touch anything which has been grown in the garden.

Your observations
This would allow visitors to touch the gate, but what about standing or walking on the grass? Grass is grown in the garden, and it may be that you are quite happy for people to walk on the lawn. Indeed, they may have to in order to get around. This problem could be addressed by: Possible rule 3:
Do not handle anything which has been grown in the garden.

Your observations
This would deal with the problem of walking on the grass -- you dont handle grass when you walk on it, and the rule covers the (unlikely) possibility of someone picking it. However, neither this, nor any of the other rules would deal with the person who came along with a spade and started digging things up. In ordinary language, a person who digs is not handling, nor are they touching. A pedant with a shovel might argue that, according to the ordinary meaning of the rule, they are not doing anything which has been prohibited. This difficulty could be addressed by the following: Possible rule 4:
Do not interfere with anything which has been grown in the garden.
Your observations
This rule uses a word -- interfere -- which arguably covers picking, handling, touching and digging, and serves your purpose. It uses a more comprehensive verb, easily understood, and which would therefore be more effective in preventing all the kinds of conduct which Mrs Biggs wants to stop. We have now seen some of the problems involved in formulating a rule which does what we want. In Part D we continue looking at some of the same issues, but this time concentrating on the question of interpretation.
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SUMMARY OF PART C
After studying Part C you should be able to: explain the problems associated with formulating rules identify whether a rule is too specific identify whether a rule is too general identify solutions to a problem of rule formulation.
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Part D Interpreting rules
We have seen some of the difficulties that Mrs Biggs has faced when formulating a sufficiently general and sufficiently specific rule to deal with the conduct of the visitors to her garden. In Part D we take things a step further by looking at some of the difficulties which may arise when it comes to interpreting rules such as the one developed (with your help) by Mrs Biggs. In particular, we will be exploring the way in which our understanding of the language used in rules affects our interpretation of them -- the way in which indeterminacy (the capacity of words and phrases to carry multiple meanings) creates difficulties - the problems of adopting a literal approach to rule interpretation, and the kinds of interpretive strategies we can adopt so as to avoid absurd interpretations and give effect to the intentions of the rule-maker. Anybody who wants to apply a rule must first interpret it. The job of those applying rules is to determine the meaning of a rule in order to see whether it applies to a given situation, and, if so, in what way and to what extent. One of the problems those applying rules face when confronted with a written rule is that the emphasis intended by the rule-maker is not always clear. This is because rules are expressed in language, and language has an indeterminate quality to it. We all know what we mean by the word cat or kettle or tree, but things are not always so simple. An example of what I mean would be the following comment by a fictional visitor to Mrs Biggss garden:
That plant is quite nice.
The meaning of this apparently simple sentence depends on the emphasis we give each word. Suppose the visitor said it like this:
This emphasis suggests that the visitor has been comparing one plant with another, and has decided that the plant she is indicating is a particularly nice specimen. But the visitor could instead say the sentence like this:
This emphasis suggests that the visitor has been comparing the plant with things other than plants. Or she could say it like this:
This suggests that although the visitor originally thought differently, she has now decided that the plant is quite nice after all. Or she could put the emphasis here:
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This suggests that the visitor thinks the plant is quite, but not very, nice. The meaning of the sentence That plant is quite nice therefore depends entirely on the emphasis placed on the individual words. While there is rarely a problem when somebody is speaking a sentence out loud, or where the emphasis is made clear on the page (as it has been here), it can be a problem when the sentence, or rule, is written down without any obvious emphasis. In order to deal with these, and other, difficulties of rule interpretation, it is therefore necessary to adopt what may be called interpretive strategies.
Interpretive strategies
A literal approach
One way in which we can interpret a rule is by treating it literally. Very simply this means looking at the words which comprise the rule, and at the way in which they are put together, and applying the rule as is to a factual situation to which it applies. An example would be: Dog owners are not permitted to let their dogs off the lead in the park. If this is applied literally, it would mean that a person who did not own a dog, but who took a friends dog to the park, would not be bound by the rule. Similarly, a dog owner would not be bound by the rule if they let their dog off the lead before entering the park (if the rule is read literally to mean that dogs must not be let off the lead while in the park). There are two main consequences to interpreting rules literally. First, it ensures certainty and consistency in the application of the rule. If every rule-applier interprets a particular rule literally, then it means that every case or factual situation to which that rule applies will be decided in the same way. (This assumes, of course, that each rule-applier has the same understanding of the words which comprise the rule as every other rule-applier. We will assume this for the moment.) In any system of rules, whether that be the law, arithmetic, the rules of grammar, or the rules of a game or sport, it is important that there is consistency in the application of those rules. Without some degree of certainty or consistency it would be impossible to enter into a contract, to be sure that 1+1=2, to communicate with each other, or to play football or chess. Second, a literal approach to interpretation acknowledges the authority of the rule-creator. It recognises that the person who has formulated a rule has chosen to express it in a particular way for a particular reason. By taking a literal approach, the rule-applier may avoid the possibility of subverting the intentions of the rule-maker. In Unit 3 you will be introduced to the concept of the Sovereignty of Parliament. Among other things, this means that, under the UK constitution, it is the job of Parliament, not the judiciary (the judges), to make laws. A literal approach to interpretation ensures that the separate and distinct functions of Parliament and the judiciary are maintained. In the context of this unit, you should simply note that a literal approach has the
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effect of distinguishing clearly the roles of rule-maker and rule-applier, and of according a significant degree of respect and authority to the rule-maker. Judges have traditionally preferred the literal approach to interpretation because it enabled them to affirm their positions as appliers of law, rather than as creators of it. You will learn about how judges interpret law in Unit 4. The literal approach however is not without its problems. These can be illustrated by the following example. Suppose there is a sign inside a glassware shop which reads as follows:
Breakages must be paid for by the customer.

Read literally, this rule means that any breakage, whether or not caused by the customer, must be paid for by him. This would clearly be a ridiculous interpretation, and the rule-applier, in order to avoid this, must resort to another interpretive strategy.
Avoiding absurdity
One such strategy is to be as true to the literal meaning as is possible but to ensure, so far as the words allow, an interpretation which avoids absurdity. In the case of the rule I have just set out, this would mean an interpretation which ensured that only those customers who had caused breakages were obliged to pay for them. This approach works well in most cases, but not always. Take, for example, another rule posted up in this shop:
Customers must handle glasses with care in case of breakage.

Read literally, this rule suggests: (a) that a person must take care when putting on or taking off their spectacles (another meaning of glasses) in the shop because there is the possibility that the spectacles have smashed in their case, or in the persons pocket; or (b) that a person must handle (drinking) glasses on display with care if they are already broken; or (c) that a person must handle the unbroken (drinking) glasses on display with care because otherwise they may end up being broken. Here, it is not possible simply to avoid an absurd result by excluding interpretation (a) because this would still leave both (b) and (c) as possible interpretations. It is conceivable that the rule-maker intended both (b) and (c) when formulating the rule, but the rule-applier cannot be sure. For example, would the rule-applier be able to say that a person who carelessly picked up and dropped a cracked glass had broken the rule? If interpretation (b) is adopted, then the answer is yes; but if interpretation (c) is adopted, then the answer is no. In this case, using the literal rule would result in absurdity, but interpreting the rule simply to avoid the absurdity merely leads to other problems.
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Looking at the intention of the rule-maker

To resolve these problems, a rule-applier may adopt a yet broader interpretive strategy. This involves attempting to work out what the intention of the rule-maker was when the rule was formulated. In other words, it means going beyond or outside the language of the rule itself. In the context of a statute (i.e. an Act of Parliament), this may involve the rule-applier (the judge) looking at the law that existed before the statute was enacted and working out what the problem with that law was that the new rule was intended to resolve. The judge may also, in very limited circumstances, look for evidence of the purpose of the rule in the language of the government minister when the rule was introduced for debate in Parliament. The judge may then interpret the new rule so that it does resolve the problem as was intended.
SUMMARY OF PART D
After studying Part D you should be able to: explain the difficulties of interpreting written statements explain what is meant by indeterminacy explain what is meant by interpretive strategies describe the literal approach to interpretation describe the approach to interpretation which seeks to avoid absurdity describe the approach to interpretation which looks to the intention of the rule-maker.
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Part E Applying rules
We have now looked at how formal rules are formulated, and at some of the strategies that may be deployed when interpreting them. In this part we will take this one step further and explore in more detail something that we have already touched on and thought about -- the application of rules. This is a really important thing to understand, since rules are designed to regulate conduct, and have to be applied to instances of the conduct with which they are concerned.
Applying other peoples rules

The process of interpretation is very closely related to that of application. The reason is simple -- before applying a rule, the person applying it must interpret it to see whether the conduct in question is one to which the rule applies. Sometimes this will be straightforward, and sometimes not, as will be seen in Activity 5. The purpose of this activity is to provide you with an opportunity to explore the different ways in which rules formulated by others might be interpreted by those to whom they apply.
ACTIVITY 5 Standard rules (allow 30 minutes)..............................................................................
We are returning to Mrs Biggss garden. Lets suppose that Mrs Biggs has given up on making her own rules. Instead, she adopts a set of rules devised and made available by her local gardening association. She assumes that they will be more effective because they have been formulated by people with greater experience of the problems associated with visitors, and reflect a well thought-through policy. In order to take advantage of these rules, Mrs Biggs is required to ensure that they are enforced. This means that she has to apply them. As the Chair of the gardening association explains to her: We want to ensure that visitors to each garden are treated equally. It would never do if some garden owners were too lax and others too strict. The associations rules are shown in Box 5. Box 5 Standard Rules for Visitors to Gardens Participating in the Open Garden Scheme 1 These Rules apply to visitors to gardens participating in the Open Garden Scheme. 2 Visitors to gardens participating in the Open Garden Scheme should remember that they are the guests of those who make their gardens available and treat those gardens with appropriate respect. 3 No visitor to a garden is permitted to do anything in the garden which may be construed as interference with the enjoyment of the garden either by (a) the owner of the garden; or (b) other visitors to the garden and the meaning of interference shall be interpreted in accordance with the meaning set out in Clause 5 of these Rules. 4 Interference with the enjoyment of the garden by a visitor shall result in that visitor being required to leave the garden.
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5 In these Rules interference includes, but shall not be limited to, any of the following activities: picking flowers, fruit, vegetables, herbs or any other plant in the garden; taking cuttings from any plant in the garden; playing music; eating food; dropping litter.
The first thing you may notice about these rules is how much more formal they are. In contrast to Mrs Biggss own rules, they are written in much more legalistic language. Some people use the term legalistic to describe language which is specific and certain, while others -- perhaps you! -- use it disparagingly to describe language that is unnecessarily complicated. This activity is designed to establish how clear the rules actually are. Based only on your understanding of them, answer the questions below. Remember that Mrs Biggs has a number of different interpretive strategies at her disposal. For the purposes of this activity I would like you to state, in respect of each of your answers, whether adopting a literal strategy to interpretation would result in a different outcome from adopting an approach which avoids absurdity. (You may wish to remind yourself of the meanings of these terms, which are discussed above in Part D.) 1 To whom do the rules apply?
David, the postal worker, arrives to deliver a letter to Mrs Biggs. Do the rules apply to him?
Ali wants to visit the garden the day after the Open Garden Scheme finishes. Mrs Biggs lets him in as a favour. Do the rules apply to him?
Mrs Biggs is annoyed by a visiting family having a very loud argument. Can she require them to leave the garden?
Mr Smith, Mrs Biggss neighbour, is annoyed by the same argument. Can he demand that Mrs Biggs require them to leave the garden?
Sarah, a visitor, plants some bulbs in one of Mrs Biggss flowerbeds. Can Mrs Biggs require her to leave?
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James, an accomplished violinist, starts playing some very beautiful music, which Mrs Biggs thinks is a wonderful addition to the visitor experience. Must she require him to leave the garden?
Comment
1 2 Visitors to the gardens participating in the Open Garden Scheme The key question is: is David a visitor? On a literal interpretation of the rule it could be argued that he is a visitor to a garden participating in the Open Garden Scheme. He is visiting such a garden, though not to visit the garden as such. To draw the opposite conclusion you would have to argue that it would be absurd if everyone who came through Mrs Biggss gate was subject to the rules. The rules only apply to visitors to gardens participating in the Open Garden Scheme. On a literal interpretation you could argue that gardens participating in the Open Garden Scheme include those that have participated; but that would be a strained, and possibly absurd, interpretation. Yes, on any interpretation. Although Clause 5 does not include having an argument or making a loud noise in the list of things which constitute interference, it specifically says that the list is not limited to these things. Furthermore, they may be said to have broken Clause 2 by not showing respect, and Clause 3, because their conduct could be construed as interfering with the enjoyment of the garden both by Mrs Biggs and the other visitors. No. The rules on expulsion only apply if Mrs Biggs or the other visitors have their enjoyment of the garden interfered with. It would be different if Clause 3 had been more widely drafted to include those in neighbouring gardens. This depends on whether planting bulbs amounts to interference with enjoyment of the garden. We have seen that Clause 5 allows for some latitude in this matter, so if Mrs Biggs thinks that planting bulbs amounts to interference she can require Sarah to leave. If the rules are read literally, yes. Mrs Biggs is required to ask someone who is playing music to leave the garden, even though she likes it. This is because the list in Clause 5 specifically states that music amounts to interference. To avoid this absurdity, the rules would have to be interpreted in such a way that interference was only interference if it was experienced as interference!
The relationship between making, interpreting and applying rules

Although the processes of making, interpreting and applying rules can be explored separately, as we have done in this unit, it is important to realise that they are all part of one larger process. A new rule is often
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made because the interpretation and application of an existing rule does not solve the problems which that rule now has to confront. In turn, that new rule may be drafted in such a way that its interpretation leads to consequences that were unintended by the rule-maker, and the process has to start all over again.
SUMMARY OF PART E
After studying Part E you should be able to: explain what is meant by the application of rules read and make sense of a set of rules explain how and why different interpretive strategies may lead to different interpretations of a rule.
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Part F Making, interpreting and applying a law

Having learnt about the challenges involved in the formulation, interpretation and application of rules, here, in Part F we will begin to think about the challenges involved in the formulation, interpretation and application of law. As we have learnt in Unit 1, rules (and laws) deal with every aspect of our lives. This means that on occasion rules (and laws) have to deal with aspects of our lives that we may have strong feelings about. One of the skills that law students learn to develop is to recognise that in such situations, as someone studying law, they will need to put any personal feelings to one side and interpret and apply the law as it is written. However, another skill law students learn to develop is to express their own views backed by evidence when asked to comment on or critically evaluate the law (you saw an example of this type of skill in Activity 2 part B where the Irish Health Minister set out reasons in support of a new law). A number of the W100 activities and assignments will provide you with an opportunity to demonstrate these skills. The law which we are going to explore is on an area which covers a very emotive and difficult subject, about which you might have strong feelings. We are going to consider the Suicide Act 1961. This has been chosen as it has been subject to a number of recent challenges in the court system. You will find further instances in W100 of areas of law that you may feel strongly about. Before considering the law on suicide I would like you to do Activity 1. The purpose of this activity is to start you thinking about how you will respond to laws with which you may not agree or which you feel may be inconsistent.
ACTIVITY 6 Applying the law (allow 15 minutes) .........................................................................
1. 2. Read the following extract on the law on the age of criminal responsibility. Read the scenario in Box 6 and answer the questions that follow.
The Law on the Age of Criminal Responsibility In England and Wales and Northern Ireland children under ten years old are considered by the law not to understand the difference between right and wrong and therefore, are not capable of committing a crime. They do not have criminal responsibility. In France, the age of criminal responsibility is thirteen. Box 6 Jessica Mug who is ten years old is walking home from school in a small English suburb with her friend Trevor Tree who is nine years old. They dare each other to go into the local corner shop, and take some chocolates. They both take some bars of chocolate, hide them in their
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pockets and leave the shop without paying for them. On the same afternoon Jessicas cousin Marie is walking home from her school in a village in France. Marie is ten years old and older than Jessica by 11 months. Marie goes into a supermarket and takes a sandwich which she hides in her bag and leaves the supermarket without paying for it. 1. Which of the three children would be considered to have committed a crime?
2.
Do you think that using age as the deciding factor is appropriate? If not, why?
3.
Think of one advantage of using age as the deciding factor.
Comment
1. Jessica could have committed a crime because aged ten, she is considered by the law to understand the difference between right and wrong and so will have criminal responsibility in England and Wales. Trevor is only nine, and so will not be considered by the law to have criminal responsibility in England and Wales. Marie, although the same age as Jessica being ten will not be considered to have criminal responsibility because she is in France where the age of criminal responsibility is 13. 2. It could be said that using age as the deciding factor is not appropriate as the level of understanding can vary a lot from one child to another. Is it reasonable to assume that all ten year olds understand the difference between right and wrong? Can the level of understanding of children aged 10, 11 and 12 vary so much between England and France? It is possible to argue that there can be enormous differences in maturity and understanding from one child to another? These are rhetorical questions to which there may be no one answer. One advantage of using age as the deciding factor is that it provides certainty and clarity. It is an objective test rather than a subjective test which makes it much more straightforward to administer.
3.
This activity shows you that even though you may have strong feelings about whether the age of ten in England and Wales is an appropriate test for criminal responsibility as a law student there will be situations in which you must put your own thoughts and feelings to one side and interpret and apply the law as it is written. You will consider how the law deals with children who commit crimes in later units.
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The social context of The Suicide Act 1961 To enable us to understand how the current law on suicide came about we will consider how the law on suicide and attitudes to that law have changed. For a number of centuries, suicide has been condemned by the law, by religion and by folklore. Until the seventeenth century a person who took their own life was referred to as Felo de Se which means self-murderer. The self-murderer was considered to have committed a serious crime. As a result their property would be confiscated by the Crown, often leaving their families in destitution. Their bodies were forbidden a Christian burial and the corpses of those who had committed suicide were buried outside the village or town. From the middle of the eighteenth century a more understanding and sympathetic approach developed and suicide began to be seen as the result of mental illness or desperation rather than a diabolical act (MacDonald 1986 p87). However, suicide and attempted suicide remained as crimes in English law until 1961 when the Suicide Act 1961 became law. We will now look at some of the reasons why many members of society felt that the law prior to 1961 was outdated and needed reform. The social historian Arthur Marwick (1986) describes the period from 1958--1973 as one of a cultural revolution. Marwick (1996) describes this period as one in which Victorian controls were lifted from British society (p.9). He identifies five factors which contributed to major changes in UK society.
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A general attack on and release from social controls and conventions established in Victorian Times. Cosmopolitanism. Marwick identifies an openness to continental and American developments as a break away from the insularity of the post Second World War period. New attitudes to class in which class differences were made more explicit. Pre-occupation with youth. Marwick points to in the spending power and self-expression of youth through clothes and popular music. Major developments in higher education with the creation of a number of new universities and the upgrading of teacher training and art and design colleges.
It is against this background that it is possible to identify what are recognised as a number of more liberal changes in the law, including The Murder (Abolition of Death Penalty) Act 1965 which abolished capital punishment for the crime of murder and The Suicide Act 1961 which decriminalised suicide and attempt to commit suicide.
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The Suicide Bill We will explore a number of opinions that were expressed on the need for reform before looking at the process by which the law was changed and the opinions expressed by those involved in changing the law. Pressure to change the law relating to suicide grew in the late 1950s and recommendations for change in the law on suicide were made by The Criminal Law Revision Committee in a report published in October 1960. The Criminal Law Revision Committee had been established in 1959 to consider the criminal law and possible areas of reform of the criminal law (It has now been superseded by The Law Commission which you will learn more about later in the your studies of W100). A number of other organisations such as the British Medical Association and Magistrates Association also called for a change in the law. The recommendations were also supported by a wide range of individuals, including many lawyers. In a letter to The Times in 1958 Glanville Williams (a highly respected legal scholar) refers to the law in England being outmoded and medieval. When you read the letter it do not worry if you find some aspects difficult to understand, just try to gain an understanding of the essence of the argument that is presented. Suicide as a crime To the editor of The Times Sir- In a Parliamentary reply reported in your columns on February 7 Mr. Butler refused to consider introducing legislation to amend the law relating to suicide and attempted suicide on the ground that there is no evidence in my possession that an alteration of the basic concept [of suicide as a crime] would be universally acceptable to public opinion. Is this not a strange view of democratic principle, that a change in a medieval legal attitude cannot be made unless it is demanded by everybody?
In the Middle Ages the Judges declared that suicide was a crime in the order to fill the royal coffers with the proceeds of the resulting forfeitures. Their ruling was, of course, facilitated by the ecclesiastical view of suicide as mortal sin. Even so, attempted suicide was not punished until 1854. That it then became punishable was not a determination of Parliament but the conclusion of a judicial syllogism that suicide is a crime, and that any attempt to commit a crime is punishable. Since that date many poor wretches who found life intolerable have had their cup of bitterness replenished by being sent to prison for attempted suicide. Practice is much better now than it used to be, but the criminal statistics show that the threat of imprisonment is still a reality in a small proportion of the cases that are prosecuted (say, 40 out of 5,000)- and even these statistics do not list the number of imprisonments upon remand during trial. Since attempted suicide is punishable by magistrates, there is the greatest variation in the treatment of the offence in different parts of the country. A single instance may suffice to show what can happen. IN 1950 the Rochester Bench sent a woman to Holloway for six months for a second attempt at suicide. Her mother had died in a mental home, and she herself had shown other symptoms of being unbalanced. In announcing the sentence the Chairman said: You have been here before and we gave you every opportunity to go straight (Chatham Observer, September 16. 1949: January 20 and 27. 1950). Dr. Stengel has shown how police intervention in cases of attempted suicide hinders the efforts of medical men to treat their patient. England is one of the few countries where this outmoded attitude towards suicide is maintained, and it is hard to believe that the present law as to attempted suicide and suicide pacts is in fact supported by public opinion. Consider too, the law relating to suicide and life insurance. Id a man is informed or suspects that he is suffering from a malignant and fatal disease the last stages of which must be long-drawn out misery, and commits suicide to avoid such an ending, he
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is likely to leave his family without the provision he had planned for them. They will be unable to recover anything under his insurance policies --not even the premiums paid, or the surrender value. This harsh rule has been modified in several of the United States and in Canada: a common provision runs to the effect that suicide shall be no defence to the insurance company if it
occurs after a specified period, unless the assured intended to take his own life when he effected the insurance. Yours faithfully, GLANVILLE WILLIAMS Merrion Gate, Trumpington, Cambridgeshire
Glanville Williams was a member of The Criminal Law Revision Committee which reported on the decriminalisation of suicide in 1961. He became known as an advocate of law reform. He died in 1997 and in the obituary which appeared in The Independent Newspaper he was referred to as having being inspired by two ideas. The first is that the law should be clear, consistent and accessible, The second is that law should be humane. As a result of the pressure for change and recommendations made by organisations such as the Criminal Law Revision Committee a bill to change the law on suicide was drafted. This bill, the Suicide Bill, was introduced in The House of Lords on 2 March 1961. The bill formed part of a programme of law reform which aimed to update the law, to bring it in line with current thinking and societys needs. You will learn about the process of parliamentary lawmaking and the technicalities of that process in Unit 3. We do not need to know them for the purposes of our discussions here. The speeches made on 2 March 1961 when the bill was introduced to the House of Lords contain some interesting details about the reasons for the change in the law and attitudes about the need for change. They also help illustrate the fact that law is not made in a vacuum, but reflects the attitudes and views of influential bodies and the society in which the law is made. In his opening speech The Lord Chancellor (Viscount Kilmour) sets out the reasons for the abolition of the criminal offence of suicide.
Wherever and however we may place the motives of those who take their own lives in the scale of human values, I think we can agree that they have little or nothing in common with what we should nowadays generally characterise as criminal intent. It is for this reason that it has for some time been widely felt to be inappropriate that we should continue to regard this act as a criminal offence. The suicide has put himself beyond the reach of punishment; the existence of the offence in our criminal law has not proved an effective deterrent to others, as over 5,000 suicides a year are known to the police in England and Wales. And the continuing criminal character of the conduct does nothing but add to the distress and pain of the relatives and friends of the deceased. For these reasons my right honourable friend has concluded that the criminal offence of suicide should be abolished.
(Suicide Bill [H.L.] Hansard, 2 March 1961)
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Later on in his speech he acknowledges that the criminal law is not the place to deal with people who are in great distress and who need medical help rather than being dealt with by police officers and the courts. One of the other contributors to the speeches made in the House of Lords on 2 March 1961 was Lord Denning. If you go on to further legal study you may read some of his judgments. This speech is typical of the colourful and evocative language he used.
My Lords, if your Lordships approve this Bill, it will end a most interesting chapter of our English law, because for nearly a thousand years suicide has been regarded as the most heinous of felonies---the felony of self-murder. In consequence attempted suicide was a crime, a suicide pact was murder, and helping another to commit suicide was also murder. I say "for nearly a thousand years", because it was King Edgar, nearly one thousand years ago, who decreed that it was a crime for a man to take his own life, denied him burial rights and laid down that all his Goods were to be forfeited. The reason for that law was stated by Blackstone to be founded, as it was, on our religion. The law of England, he said, wisely and religiously decreed that no man had power to destroy life except by commission by God, the author of it. He said that it was twofold; that one was spiritual. He said that to commit suicide was invading the prerogative of the Almighty, by rushing into His presence uncalled for. The other was temporal, against the King, because the King had an interest in the preservation of all his subjects. Those being the reasons for the law, the punishment which we inflicted for hundreds of years was twofold. First, on the corpse we inflicted ignominious burial. The suicide was buried at a crossroads with a stake through his body and a stone on his face. Indeed, that continued until 1824, and the last suicide who was buried at the cross-roads was at Grosvenor Place. Even after that, until 1882, a suicide had to be buried by night; and ever since 1882 up to this day, according to the law of the Church of England, a suicide is not entitled to Christian burial. You will remember the gravediggers scene in Hamlet and how Shakespeare puts into the mouth of the gravedigger these words: Is she to be buried in Christian burial that wilfully seeks her own salvation? It never has been so. I expect that now that suicide is to be no longer a crime and I am glad to say it---a suicide will be permitted by Ecclesiastical Law a Christian burial, maybe with an alternative form of service recommended. That would be a final end to the law of dishonour in the courts. That was one angle of the punishment. The other angle was to forfeit the goods, lands or leases of a suicide to the King. The great case, on which Shakespeare founded the scene of Ophelia, was the case in which Sir James Hale threw himself into the river at Canterbury, and the question was whether his widow would be entitled to his lease of the Graveney Marshes on his death. The Judges held that the widow was not entitled, and it went to the Crown. That forfeiture existed until 1870, when we abolished it. But there is one form of forfeiture which exists to this day and which I hope this Bill, when passed, will do away with---monies on insurance policies.
(Suicide Bill [H.L.] Hansard, 2 March 1961)
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From the speeches made in the House of Lords on 2 March 1961 it is clear that this change in the law is also supported by The Church Assembly Board for Social Responsibility, The British Medical Association and the Magistrates Association.
This view is supported by the considered opinion of those most closely concerned with this problem from the aspects of ethics and religion, medicine and the administration of justice.
(The Lord Chancellor (Viscount Kilmour) Suicide Bill [H.L.] Hansard, 2 March 1961)
Following the 1961 Act it was no longer a crime to commit or attempt to commit suicide. However, assisting someone to commit suicide remained a crime. Those supporting the decriminalisation of suicide were very clear that they did not wish to decriminalise the person who assisted another person to commit suicide. In his opening speech Viscount Kilmour explains those concerns. Although this speech was made some 60 years ago they are in accordance with concerns being expressed more recently in discussions about assisted suicide which you will read about later on in this unit.
My Lords, one consequence of the fact that suicide and attempted suicide will no longer be criminal offences is that, if nothing more were done, any person who aided or abetted the successful or attempted suicide of another would similarly not be guilty of a criminal offence. The moral culpability of assisting another person to commit suicide varies widely. The assistance may be no more than providing at the earnest entreaty of the sufferer, drugs for a person who is suffering from painful and incurable illness. At the other extreme, the person assisting may have advised and assisted the suicide, from whose death he derives financial advantage. Even when we decide that the motives of a person who seeks to take his own life should no longer be the concern of the criminal law, we cannot say the same of those who are involved in bringing about the death of another. We must therefore ensure that complicity in the attempted or successful suicide of another does not cease to be an offence.
Having explored the context in which the change in the law was made the next section provides an opportunity to read The Suicide Act 1961 and examine the language used in the act. The Suicide Act 1961 represents one of the shorter Acts of Parliament. One of the longest acts of parliament is the Companies Act 2006 which is some 761 pages long. The Suicide Act 1961 The purpose of Activity 7 is to introduce you to an Act of Parliament. You will learn more about Parliamentary law making and the structure of an Act of Parliament in Unit 3. For the purposes of Activity 7 you will read the Suicide Act 1961 and answer a series of questions.
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ACTIVITY 7 The Suicide Act 1961 (allow 30 minutes) ...............................................................
This activity is in two parts. Part A requires you to gain an overall understanding of the purpose of the act, Part B requires a more detailed explanation. To answer part A you may be able to skim read the information in Box 7. To answer part B you will need to read the information more carefully. Part A Read the Suicide Act 1961 (You do not have the schedules referred to in the Act as they are not relevant to this activity.) This may be the first time that you have read an Act of Parliament. Do not worry about the structure of the act as it is not relevant to this activity (the structure of an Act of Parliament is explained in more detail in Unit 3). The purpose of this section of the activity is to enable you to gain a general understanding of the Act and its content.
Part A Comment
The Act is designed to change the law on suicide, so that suicide ceases to be a crime, but assisting (by aiding, abetting or procuring) someone to commit suicide remains a crime. S U I C I D E A C T 1 9 6 1
CHAPTER 60 An Act to amend the law of England and Wales relating to suicide, and for purposes connected therewith. [3rd August 1961] Be it enacted by the Queens most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-1. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. 2.--(1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years. (2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence. (3) The enactments mentioned in the first column of the First Schedule to this Act shall have effect subject to the amendments provided for in the second column (which preserve in relation to offences under this section the previous operation of those enactments in relation to murder or manslaughter). (4) An indictment for an offence under this section shall not be triable by a court of quarter sessions; and (subject to sections thirteen and forty of the Children and Young Persons Act, 1933, as applied by subsection (3) above) no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. 3.--(1) This Act may be cited as the Suicide Act, 1961. (2) The enactments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of the Schedule. (3) This Act shall extend to England and Wales only, except as regards the amendments made by Part II of the First Schedule and except that the Interments (felo de se) Act, 1882, shall be repealed also for the Channel Islands.
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Part B Having acquired a general understanding of this Act, re-read it in more detail and answer the following questions. 1. 2. 3. 4. What is the purpose of the Act?
What is the crime that the Act creates?
What is the punishment for this crime?
Where does the law created by this Act apply?
You may need to consult a dictionary to check the meaning of some words.
Part B Comment
1. The purpose of the Act is to change the law so that it is no longer against the law to commit suicide. Suicide is no longer a crime. This is therefore not a law to regulate something new, but a law made to introduce a change. Although it is no longer a crime to commit suicide. It is a crime to aid, abet, counsel or procure the suicide or attempted suicide of another person. A dictionary provided the following definitions of these words: Aid: help, typically of a practical nature.
Abet: encourage or assist (someone) to do something wrong.
Counsel: advice, especially that given formally.
Procure: persuade, or cause (someone) to do something.
3. 4. Someone who is guilty of this offence or crime may be sent to prison for up to 14 years. This law generally applies to England and Wales.
2.
Recently the Law Commission was concerned that the language of aid, abet, counsel or procure in the Suicide Act 1961was outdated , and recommended that it should be brought up to date and simplified so that everyone was able to understand the meaning of the crime to assist someone to commit suicide. The updating of the words aid, abet, counsel or procure was achieved through the Coroners and Justice Act 2009. This 2009 act amended section 2 of The Suicide Act 1961 by replacing the words aid, abet, counsel or procure as follows: Box 7 (1) A person (D) commits an offence if (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) Ds act was intended to encourage or assist suicide or an attempt at suicide. This amendment was not intended to change the purpose of the law i.e. the offence, but was intended to make the law clearer and easier for everyone to understand. You will learn more about the use of Acts of Parliament to amend the law as you progress through your W100 studies.
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ACTIVITY 8 Amending aid, abet, counsel or procure (allow 10 minutes).......................
Based on the information you have read in Boxes 7 and 8 answer the following questions. 1. Based on your understanding of the meaning of aid, abet, counsel or procure, do you think that encouraging or assisting are direct replacements?
2.
Do you think the change in wording made by the Coroners and Justice Act 2009 makes it clearer for everyone to understand when an offence has been committed?
Comment
There was no one way to answer the questions asked. Your answers would have depended on your own viewpoint. This is acceptable as long as your viewpoint was reached by a process of reasoning and with explanations. My thoughts were as follows. The dictionary definitions provided in Activity 7 in part B question two include the words show, encourage or assist within the meaning of abet. I wondered therefore whether the new wording (from the Coroners and Justice Act 2009) is now too narrow and does not encompass the wider meaning of aid, abet, counsel and procure in the Suicide Act 1961? For these reasons I was not sure that the new wording provides much assistance with the definition of the offence of assisting someone to commit suicide. As with many changes that are made to the law, only by using the new law will we be able to tell whether the change has been successful. The remainder of Unit 2 will consider the interpretation and application of the Suicide Act 1961 by considering a case which was heard by the courts in 2009. The case was heard before the new wording of the Suicide Act 1961 (as amended by the Coroners and Justice Act 2009) came into effect. Interpretation and application of The Suicide Act 1961 In Part D of this unit you considered the difficulties that may arise when it comes to interpreting rules. We will now explore some of the difficulties faced by those who need to be able to interpret the Suicide Act 1961 concerning the crime of assisting someone to commit suicide. This will be done by considering the case of Debbie Purdy. Debbie Purdy suffers from multiple sclerosis. She has decided that sometime in the future she wishes to be able to travel abroad to a country where assisted suicide is legal. However in advance of that happening she has thought about the practicalities of making the necessary arrangements for travelling abroad with the purpose of going to die. She is concerned that if she has to do all of this alone (because it is against the law to assist another person) then she may be forced to do this whilst still well enough to manage the journey alone which would
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probably be at a time before she wants to die. If her husband Omar Puente was able to help her with the practicalities of doing this, then she would be able to travel to another country with the practical and emotional support of her husband at a time when she wants to die. So, Debbie Purdy was faced with the challenge of interpreting section 2 of The Suicide Act 1961, as she feared that by assisting her to travel to another country her husband could be liable for prosecution. In an article in The Independent newspaper on 31 July 2009 Debbie Purdy is quoted as saying:
I do not want Omar or any other person dear to me to be made a criminal for what I see as an act of love and humanity. I will go overseas to die, alone and unaided, while I still can, if that is the only way I can be in control of my death and protect my husband.
In another interview, reported in The Independent newspaper on 1 February 2009 she is quoted as saying:
All I want is for the law to be clarified, then I can make sure Omar never crosses the line. If they say he cannot accompany me, then it means I have to go now, while I am still physically able to do so.
We are not concerned here with any of the arguments about the right to choose when to die. You will consider this later in your studies when you will learn more about Debbie Purdy and similar cases. Here we are going to look at what Debbie Purdy did to be able to help her to solve the dilemma she faced in whether or not her husband could face prosecution if he assisted her in travelling abroad. Debbie Purdy wanted to seek information and clarification from the courts on what assisted meant in the law, and eventually took her case through the court system in 2008 and 2009 to the highest court The House of Lords. You will learn about the structure of the courts in Unit 4. The House of Lords supported Debbie Purdy in her request for a clarification of the law. Their decision to support her did not change the law, but required the Director of Public Prosecutions to publish guidelines setting out the factors that would be considered in deciding whether or not to prosecute someone who assisted another person to travel to a country where assisted suicide was legal. The Director of Public Prosecutions Keir Starmer published a set of interim guidelines in September 2009. He made the purpose of those guidelines very clear.
Following the instructions of the Law Lords in the case of Debbie Purdy, I am today clarifying those factors of public interest which I believe weigh for or against prosecuting someone for assisting another to take their own life. Assisting suicide has been a criminal offence for nearly fifty years and my interim policy does nothing to change that.
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There are also no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Mrs Purdy, who want to be able to make informed decisions about what actions they may choose to take.
(Keir Starmer, Director of Public Prosecutions, Crown Prosecution Service press release, 23 September 2009)
The interim guidelines went out for a 12 week public consultation in September 2009. Some 5,000 responses were received. Following the consultation a Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide was published by The Director of Public Prosecutions in February 2010. The policy sets out factors which favour prosecution and factors against prosecution. These are set out in Box 9. (Note: reference to the victim in Box 9 means the person who committed suicide and reference to the suspect means the person who may have assisted.) Box 8
Public interest factors tending in favour of prosecution
A prosecution is more likely to be required if: 1. the victim was under 18 years of age; 2. the victim did not have the capacity (as defined by the Mental
Capacity Act 2005) to reach an informed decision to commit
suicide;
3. the victim had not reached a voluntary, clear, settled and informed
decision to commit suicide;
4. the victim had not clearly and unequivocally communicated his or
her decision to commit suicide to the suspect;
5. the victim did not seek the encouragement or assistance of the
suspect personally or on his or her own initiative;
6. the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. the suspect pressured the victim to commit suicide; 8. the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. the suspect had a history of violence or abuse against the victim; 10. the victim was physically able to undertake the act that constituted the assistance him or herself; 11. the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. the suspect gave encouragement or assistance to more than one
victim who were not known to each other;
13. the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
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14. the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; 15. the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. Public interest factors tending against prosecution A prosecution is less likely to be required if: 1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. the suspect was wholly motivated by compassion; 3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. the suspect reported the victims suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
(Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide)
In launching these guidelines Keir Starmer explained that the focus of the policy is on the motivation of the suspect or the person who may have given the assistance or encouragement.
ACTIVITY 9 The guidelines (allow 15 minutes)...............................................................................
Having read the guidelines given in Box 9 answer the following question. Do you think that the guidelines will help Debbie Purdy in deciding if her husband would be acting lawfully or unlawfully if he helped her to travel to another country where assisted suicide is legal? You should focus solely on the words in the guidelines, and should not consider the rights and wrongs of assisted suicide..
Comment
The guidelines appear to be written in clear straightforward language without any particular legal terminology which might be off putting or confusing. So, on the face of it they should help Debbie Purdy. You may have also noted that the guidelines use the language of the amended section 2 of the Suicide Act 1961 (as amended by the Coroners and
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Justice Act 2009) which refer to encouragement and assistance.

However there are some words used in the guidelines which could be
difficult to interpret because they are not exact or precise.
Some examples might be:
compassion - would everyone agree on what this means?
pressured - this has negative connotations, but when does
encouragement become pressure? minor encouragement or assistance - when does minor encouragement become encouragement? You may well have found other words which could be difficult to interpret. By doing so, you will be learning an important lesson about the nature of law as a subject, and the challenges involved in its formulation, interpretation and application. By its very nature, suicide is a difficult topic and is subject to different social, moral, philosophical and religious views and values. As such it is a good example of the point made earlier about law being made in a social context and not being divorced from values of the society within which the law it is made. It also demonstrates that laws represent the values of a particular time. If we think about the social context in which the law was made, the beginning of the 1960s, and compare it to now, some 50 years later there will be some values that remain constant, but others that will have radically changed.
SUMMARY OF PART F
After studying Part E you should be able to: understand some of the challenges in making, applying and interpreting a particular law understand the influence of the society in which laws are made on law making understand that law is not made in isolation and is influenced by a number of factors
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In Unit 2 you began to think about the process of making, interpreting and applying rules. The unit demonstrated that there are inherent difficulties in that process and demonstrated the importance of interpretation. Having considered some examples of this process in connection with rules in general, you considered the challenges faced in interpreting and applying a particular law (as law is a form of a rule). After studying Unit 2 you should be able to:
Part A
describe what is meant by a formal rule identify a formal rule.
Part B
describe the relevance of policy for rule making recognise the reasons which lead to Irelands ban on smoking in the workplace demonstrate/explain the implications of the rules governing Irelands ban on smoking in the workplace.
Part C
explain the problems associated with formulating rules identify whether a rule is too specific identify whether a rule is too general identify solutions to a problem of rule formulation.
Part D
explain the difficulties of interpreting written statements explain what is meant by indeterminacy explain what is meant by interpretive strategies describe the literal approach to interpretation describe the approach to interpretation which seeks to avoid absurdity describe the approach to interpretation which looks to the intention of the rule-maker.
Part E
explain what is meant by the application of rules read and make sense of a set of rules explain how and why different interpretive strategies may lead to different interpretations of a rule.
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Part F
appreciate the difficulties in interpreting and applying law understand that law is made in a social context and can be subject to different values. If you are working to the dates given on the study calendar (or study planner on the W100 website), then in the same week that you are working on Unit 2 you have been asked to complete and submit your first assignment (eTMA). This may seem daunting at this stage of your studies. However it is important that you attempt this assignment. If you have any queries about the assignment, you should contact your tutor to discuss them. Attempting this assignment is similar to attempting the activities you have undertaken in your studies so far. Instead of you assessing your own answers against comments which have been provided by the unit author, your answers will be commented upon by your tutor who will provide guidance on your progress and suggestions for your future studies. These comments will form an important part of your studies. At this stage you should read the guidance in the W100 Assessment Guide part 1 and then turn to eTMA 01. Carefully follow the guidance provided -- it has been specially written to assist you in the same way that each activity has been developed within each unit. Unit 3 will introduce you to one of the main methods of law making, the Westminster Parliament. Here you will consider the role of the Westminster Parliament in making new laws, the ways in which ideas for new laws are generated and the way in which law is made by the Westminster Parliament. You will also become familiar with parliamentary language and the structure of Acts of Parliament.
REFERENCES
Ban on smoking in the workplace in Ireland [online] Oasis Information on Public Services. Available from: www.oasis.gov.ie/employment/ health_ and_safety_in_employment/ban_on_smoking_in_the_workplace_in_ Ireland.html [accessed 11 September 2006] Fuller, L.L. (1969) The Morality of Law, New Haven, Yale University Press. http://business.timesonline.co.uk/tol/business/law/columnists/ article1388639.ece?prin Arthur Marwick (1986) A social history of Britain 1945--1983 in David Punter ed. Introduction to Contemporary Cultural Studies; Harlow, Longman Group Limited pp19--46 J. R. Spencer (1997) Obituary: Professor Glanville Williams, The Independent Arthur Marwick (1996) British Society Since 1945, Harmondsworth, Penguin Books Ltd
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Suicide Bill [H.L.] (Hansard, 2 March 1961) Available from: http:// hansard.millbanksystems.com/lords/1961/mar/02/suicide-bill-hl [accessed 22 February 2010] Policy for Prosecutors in Respect of Cases of Encourage of Assisting Suicide. The Crown Prosecution Service. Available from: http:// www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html [accessed 25 February 2010] DPP publishes interim policy on prosecuting assisted suicide - CPS press release. Available from: http://www.cps.gov.uk/news/press_releases/144_09 [accessed 4 February 2010]
W100 Block 1
Unit 3
Making law: (1) Parliament

Prepared for the W100 team by Raymond Arthur, Jane Goodey and Carol Howells
CONTENTS
Unit 3 learning outcomes Introduction 88
89
Part A From where do Acts of Parliament

originate?
89
Part B How do Acts of Parliament become

law? 104
Part C Delegated legislation and the
Westminster Parliament Part D Reading an Act of Parliament Part E The devolved legislatures Part F Parliament and law making
114
124
129
133
138
138
88
After studying Unit 3 you should be able to: explain how Acts of Parliament originate understand the role of the Westminster Parliament in making law understand the difference between primary and delegated legislation understand the role of delegated legislation created by the Westminster Parliament read and discuss Acts of Parliament understand the law making powers of the devolved legislatures understand the relationship between the Westminster Parliament and the devolved legislatures. read academic articles and make notes of the important legal principles expressed in these articles summarise ideas expressed in academic articles
UNIT 3 MAKING LAW: (1) PARLIAMENT
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Introduction
One of the most important functions of any legal system is to state the laws by which the society in question is to operate. Units 1 and 2 have shown that laws are not necessarily the only type of rule which prescribe social behaviour, but laws are distinct in that they constitute an official code which has the backing of state powers of enforcement and sanctions. This unit and Units 4 and 5 explore the major sources of law making in England and Wales -- the Westminster Parliament, common law, and the European Union and the European Court of Human Rights. Many of the methods of law making in England and Wales have their roots in medieval history; others are a more recent influence from the second half of the twentieth century. All, however, have one thing in common: they are heavily influenced by political, social and technological change. In Unit 3 we will consider the role of the Westminster Parliament in the law-making process. We will also introduce the law making powers of the Scottish Parliament, the Welsh Assembly and Northern Ireland Assembly. You may find Unit 3 has a different approach from the previous units. In Units 1 and 2 you were thinking about decision making and the application of rules in a general sense. In this unit you will be looking at some of the technical aspects of how laws are made in the Westminster Parliament. In Part A we will consider how Acts of the Westminster Parliament originate. Part B will examine the procedural aspects of making law in the Westminster Parliament -- the various stages a draft law (known as a bill) must go through before it actually becomes a law. Part C considers the role of delegated legislation and the Westminster Parliament. Part D invites you to read part of an Act of Parliament. In Part E we will discuss the law making powers of the devolved legislatures, the Scottish Parliament, the Welsh Assembly and Northern Ireland Assembly and their relationship with the Westminster Parliament.
Part A From where do Acts of Parliament originate?

In this part we will be concentrating on how Acts of Parliament are made in England and Wales by the Westminster Parliament. This unit will use the term the Westminster Parliament and Parliament interchangeably. Both refer to the same institution. In England and Wales, Parliament consists of the House of Commons and the House of Lords. The site of the Houses of Parliament is the Palace of Westminster in London. The Palace of Westminster was a royal palace and the former residence of monarchs.
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The House of Commons

The UK Parliament dates from the mid-thirteenth century. The Icelandic Parliament (known as the Althingi), established in 930, claims to be the oldest functioning Parliament in the world.
The members of the House of Commons are elected by the public, with the country being divided into constituencies and each of these returning one Member of Parliament (known as an MP). There must be a general election every five years, though an election can be called sooner by the Prime Minister. The Government of the day is generally formed by the political party which has the most MPs elected to the House of Commons. The Prime Minister will usually be the leader of the largest political party (i.e. the one with the most seats). The Prime Minister selects a large team of ministers to run each of the Government departments. The head of each department is usually a secretary of state and sits in the cabinet. The cabinet is the group of approximately 20 senior Government ministers who are responsible for running the Government departments of state and deciding Government policy.
Members of the House of Commons (MPs) are elected by the public.
Each voter has only one vote and to vote they simply place a cross on the ballot paper to indicate their preference. The person who wins the highest number of votes within a constituency is the elected Member of Parliament (MP) for that constituency. This electoral system is known as the first-past-the-post system. Box 1 The first-past-the-post system The first-past-the-post system is the only system ever used in British general elections and it has many advantages over other systems (see Box 2). It usually produces strong, decisive Governments with an overall majority in Parliament; with every voter represented by one MP,
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it provides a clear democratic link between the people and Parliament and it is quick and simple for the voters. However, the system may also be unfair. As an example, an election for the constituency of Not-Real has taken place. The three main candidates are from the three most prominent national parties. The result is as follows: Candidate A: 25,000 votes Candidate B: 20,000 votes Candidate C: 10,000 votes In this example, the clear winner is candidate A with a majority over Candidate B of 5,000. However, 25,000 voted for the candidate who won that election but 30,000 voted against the winner. If more people vote against a candidate by choosing an alternative, is this democratic in terms of popular representation in Westminster? In the 1997 UK General Election, the Labour Party gained 43.2% of the total votes cast and won 63.6% of seats at Westminster. The combined number of votes for the Conservatives and Liberal Democrats represented 47.5% of the total votes (over 4% more than Labour), yet between them they won 32.1% of the seats available at Westminster. In the 2001 election, Labour had 43% of the total vote whereas all the other parties had 57% -- yet Labour maintained its very powerful position in Parliament with 413 MPs out of 659 (63% of the total number of seats in Parliament). In the 2005 General Election, Labour won 37% of the vote and 55% of the seats in the House of Commons. The combined number of votes for the Conservatives and Liberal Democrats represented 55% of the total votes (18% more than Labour), yet between them they got 40% of the seats available in the House of Commons. The 2010 election resulted in the first coalition government in 70 years. The Conservatives and Liberal Democrats share power. In the election the Conservatives won 36% of the votes, the Liberal Democrats 23% and Labour 29%. The combined votes of the Conservatives and Liberal Democrats represented 59% of the vote. The conservatives have 306 MPs, the Liberal Democrats 57 MPs and Labour 258 MPs. No Government since 1935 has had a majority of public support as expressed through votes cast at a national election. The effect of this on law making is that a powerful Government with overwhelming Parliamentary power can usually push through its required legislation -but with only a minority of the country supporting it.
The second House of Parliament in England and Wales is the House of Lords, which we will examine in the next section.
The House of Lords

Originally the members of the House of Lords comprised those who had inherited a title (known as hereditary peers), senior judges who sat as Law Lords, and the most senior bishops in the country. During the twentieth century the awarding of a title for life (known as a life peerage) became more common. The Prime Minister nominated people who should receive a title for their lifetime only. In this way, people who had served the country and were thought to be suitable members of the House of Lords were able to bring their expertise to the House.
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Most life peerages were given to former politicians who had retired from the House of Commons. For example, James Callaghan, who was Prime Minister from 1976 to 1979, was made a life peer in 1987, taking the title Lord Callaghan of Cardiff, whilst Margaret Thatcher, the first female Prime Minister, was made a life peer in 1992 and became known as Baroness Thatcher. When men are made life peers they are called lords and women life peers are called baronesses. During the late 1990s the Labour Government decided that in a modern society an inherited title should not automatically allow someone to participate in making law. They felt that some of the members of the House of Lords should be elected and some should be nominated. The right of most of the hereditary peers to sit in the House of Lords was abolished in 1999. As a result of this change three types of peer now sit in the House of Lords: life Peers, Bishops and elected hereditary Peers.
Law making in the House of Commons and House of Lords

One of the main functions of both Houses of Parliament is to discuss, debate and pass new laws. Laws made by Parliament are called Acts of Parliament. Acts of Parliament are also known as statutes or legislation. These terms all mean the same thing and will be used interchangeably throughout this unit. Acts of Parliament can originate from a number of sources: (i) (ii) party manifestos national emergency, crisis or new development
(iii) Royal Commissions (iv) the Law Commission (v) Private Members Bills.
We will now consider each of these sources of Acts of Parliament.

Private Members Bill
Law Commission
Acts of Parliament
Party manifesto
National emergency, crisis or new development
Royal Commission
Figure 1 How Acts of Parliament originate
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(i)
Party manifestos
When there is a general election most of the political parties publish a list of the reforms they would carry out if they were elected as the next Government. This is called the partys manifesto. In effect a manifesto is a set of pre-election promises. Acts of Parliament may derive from the party manifesto on which the Government is elected. Below is an example of a party manifesto for the fictitious Progressive Political Party:
Progressive Political Party general election manifesto Our ten goals for 2015 are: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) long-term economic stability rising living standards for all expanded higher education as we raise standards in secondary schools a healthier nation with fast medical treatment, free at the point of use full employment in every region opportunity for all children, security for all pensioners handing back to individuals and families the ability to shape their own lives and communities to rebuild our inner cities to cut taxes and regulation to provide a Government that will deliver.
You may have seen many such party manifestos during various elections. Do you consider these manifestos to be important? If you vote in elections, do party manifestos influence who you vote for? If a political party is elected to Government, must it enact all the promises contained in its manifesto? Activity 1 will help you to think in more detail about promises made by political parties in their election manifestos. It requires you to read Readings 3 and 4 and identify whether pre-election promises made by political parties are legally enforceable. Reading 3 comprises brief summaries of two law cases. These are cases where the parties involved have gone to court in order to allow the courts to settle their dispute. Both cases involve the issue of whether pre-election promises are legally enforceable. The first concerns an election for the Greater London Council. In advance of the election, the Labour Party promised that, if they won, they would cut the fares on
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Londons buses and underground trains by 25 per cent. The second case concerns a pre-election promise by the Labour Party about a scheme whereby central Government provided funds to meet the school fees and associated expenses of pupils whose parents had insufficient resources. Box 2 An introduction to academic reading In Unit 1 you were provided with advice about effective reading and the SQ3R technique of reading. This advice is still applicable, so you may wish to revise the advice you received in Unit 1 before progressing further in this unit. Before you begin your reading task, you should first take some time to think about why you are reading. This is important to establish so that you are clear about the purpose for the reading. To help answer why you are reading the text, you should read the activity question before you start the reading and then bear it in mind as you read the text. Reading cases isnt like reading a novel or even a textbook. Many people find cases are often dry, difficult, and full of complicated concepts and terminology. However, as you get used to reading cases you will find them much easier. The key to reading cases and getting plenty of information out of them, particularly the more complicated ones, is to read them a few times when youre first starting out. Reading each case twice may be a conservative estimate during your first few weeks of W100 studies but should be adequate after that. The first read-through should enable you to get an overall picture of what is being discussed. The second reading should provide a more thorough, in-depth, comprehensive understanding of the case. In Unit 4 we will look at reading law cases in some more detail. Reading 4 is an excerpt from an article published by a legal academic in the Education Law Journal in 2001. The article discusses pre-election promises made in relation to the provision of special educational facilities for pupils with special needs. For Activity 1 you are concerned only with what the article has to say about pre-election promises. You do not need to be able to understand the details of special education provision. You should read the whole of Reading 4 once. It is tempting to take notes as you are reading the first time, but this may not be a good idea as you are likely to take down too much information and simply copy without understanding. Instead, when reading it the first time try to focus on understanding the material. You may wish to underline key words or phrases or mark them with a highlighter pen. Highlighting the text in this manner is a valuable way of focusing your attention on the text and making you think about what the key concepts are.
Box 3 Taking notes When reading the text a second time you should try to take notes in order to answer the question in Activity 1. So it is advisable to reread the question before you start your second reading. Taking notes forces you to think about the ideas in the text as you read it, because you have to decide what to write down and how to phrase it. As you write down notes you are pressed into finding some sense in the words in the text. If you read without taking notes, no matter how good your memory is,
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you will find that the ideas gradually drift away from you. This will occur not simply because you forget, but also because, as you proceed with your study of W100, you will be introduced to new ideas which will push out the current ones. So although note taking is hard work and quite time-consuming, it will add a lot of value to the time and effort you are already investing in reading. Remember:
. .
making notes encourages you to formulate the ideas in the text in a way which makes sense to you notes should not simply be a copy of the original text, but should be an attempt to extract the main ideas in order to answer the activity question you have been asked.
Taking good notes involves reading the text in an active way, asking yourself: What is this about?, What do I need to know? One way of doing this is to work from the words and phrases you may have underlined or highlighted as you were reading the first time. You may wish to set these words on a page in a way which highlights the main themes and their relationship to each other. You can even do this in the form of a diagram, an example of which is provided in Figure 2. Creating such a diagram helps you to clarify your thoughts and extract the important points from the reading. Being able to extract important points from a body of text is a vital legal skill that all lawyers need. You may like to use such diagrams as you go through the Readings on W100. Dont be afraid to play around with methods such as this to find out whether you gain in understanding, as taking notes is not a single skill which you acquire once but is one you develop over many occasions. It is a range of different activities which requires you to be flexible. Sometimes you will need to take detailed notes; at other times a diagram such as Figure 2 will be sufficient.
Draws together ideas from what you have read Stops your mind from wandering as you read Provides you with useful revision notes
The advantages of taking notes when reading
Makes the text easier to remember
Makes you think about Makes you find what you are reading sense in the words Encourages you to formulate the ideas in the text in a way which makes sense to you
Figure 2 The advantages of taking notes when reading
We will discuss note taking again later. Now I would like you to attempt Activity 1.
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ACTIVITY 1 Governments and pre-election promises (allow 45 minutes) .......................
Please read Reading 3: A brief summary of two cases and Reading 4:

The devil is in the detail and answer the following question:
Are Governments required by law to enact their pre-election promises?
Give reasons for your answer in two or three sentences.
Comment
Although Readings 3 and 4 suggest that pre-election promises and party manifestos are not legally enforceable, this does not mean that such promises are meaningless. The Government will have to account for broken election promises at the next election. They will also be held to account by the opposition parties and by the media. Thus, while there may not be legal consequences arising from a failure to implement pre-election promises, there may be considerable political consequences and the Government may lose the trust of the voting public. From Activity 1 you have seen that pre-election promises are not legally enforceable. Why do you think politicians make pre-election promises that they cannot keep? This may be because it is easy to promise dramatic changes to the law when not in Government, but more difficult to make them work in practice. Also, when elected, the party may have more information available to them and realise that the pre-election promises are not very practical. (ii) National emergency, crisis or new development Legislation may be passed because of some national emergency or crisis which emerges during the Governments period in office. For example, the Anti-Terrorism, Crime and Security Act 2001 was introduced to respond to the new situation arising from the terrorist attacks on New York and Washington on 11 September 2001. The aim of the 2001 Act was to cut off terrorist funding, ensure that Government departments and agencies have the power to collect and share information required for countering the terrorist threat, extend police powers available to relevant forces and update parts of the UKs anti-terrorist powers. For Activity 2, I would like you to read Reading 5. This is an article from the Daily Telegraph dated 19 December 2003 which provides an example of an Act of Parliament being introduced to respond to a national emergency, crisis or new development. When reading this article you should heed the same advice that was given for Reading 4 - read it through once and get a general understanding of what is being discussed. You should then read the question you have been asked in Activity 2, and think about the purpose of reading this article. Then, read the article for the second time. As you do so, you should try and think of another example where Parliament introduced an Act in response to an emergency or crisis.
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The Anti-Terrorism, Crime and Security Act 2001 was a response to the terrorist attacks on New York and Washington on 11 September 2001.
ACTIVITY 2 Acts of Parliament and emergencies (allow 30 minutes)...............................
Please read Reading 5: Desperate times need temporary measures and consider the following question: Using your own knowledge and experience, can you think of any other emergencies, crises or new developments that required the introduction of a new legislation.
Comment
You may have thought of other examples of legislation being introduced to respond to a new development or crisis. One example I thought of is the Governments response to developments in cloning. In 1996 the arrival of Dolly, the cloned sheep, set alarm bells ringing in many countries as it indicated that cloning human beings was no longer just science fiction. This was followed in 2001 by an announcement of a breakthrough in human cloning by US scientists. However, the British Government responded swiftly by introducing the Human Reproductive Cloning Act 2001 which makes the implantation of a cloned embryo into a woman a criminal offence. It took only nine days for the Bill to become an Act of Parliament. As you will learn later in this unit, this is an example of swift law making.
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Dolly the sheep was born in 1996 and became famous as the first mammal to be cloned from an adult cell. She died in 2003.
This is just one example of legislation being introduced to respond to an emergency, crisis or new development. Other examples include the following: In the Republic of Ireland in August 2004, the Irish Government introduced the Copyright and Related Rights (Amendment) Act 2004 in response to a copyright dispute. This Act took only eight days to become law. Copyright protects works such as poetry, movies, DVD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs. In 2001 the Irish Government paid E12.6 million for more than 500 sheets of work written by James Joyce, the famous Irish author. The material was intended to form the centrepiece of the National Librarys James Joyce and Ulysses exhibition, the biggest staged by the National Library. However, Stephen Joyce, the authors grandson, warned the Library that the exhibition could breach copyright legislation, as his family still held the copyright. Joyce warned that he would sue for any breach of copyright. In order to overcome this crisis the Irish Government introduced the Copyright and Related Rights (Amendment) Act 2004 to deal with the Librarys difficulties. The Copyright and Related Rights (Amendment) Act 2004 allows the Irish Government to exhibit James Joyces work without legal problems. In 2001 there was an outbreak of foot-and-mouth disease in Britain. Foot-and-mouth disease (also known as aphthous fever) is a viral disease that strikes cloven-hooved animals such as cattle, pigs and goats. Human infection is rare but humans can host the virus and subsequently infect animals. In the 2001 outbreak in the UK there were more than 2,000 cases and over four million animals
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had to be culled. In response to this the Government introduced the Animal Health Act 2002, which aimed to strengthen protection against future outbreaks of foot-and-mouth and other infectious diseases. The legislation gives Government vets the power to enter a farm and cull all its animals, and force farmers to help in the slaughter, with little right of appeal. These are just some examples of legislation that were introduced to respond to crises and emergencies. You may have thought of other examples. (iii) Royal Commissions Royal Commissions occasionally report to Parliament with recommendations for legislation which may be taken up as part of the Governments legislative programme. Royal Commissions are advisory committees established by the Government -- though formally appointed by the Crown, hence the Royal -- to investigate any subject the Government sees fit to refer to one. They are often used for non-party political issues, or for issues that a Government wishes to be seen as addressing in a non-party political way. An example of a Royal Commission influencing the introduction of an Act of Parliament is the Royal Commission on Criminal Justice established in March 1991 and chaired by Viscount Runciman of Doxford. This Royal Commission was charged with examining the effectiveness of the criminal justice system in securing the conviction of the guilty and the acquittal of the innocent. This Royal Commission was a response to the case of the Birmingham Six. The Birmingham Six were convicted in 1974 for the murder of 21 people in two pub bombings in Birmingham city centre. The six were arrested in 1974 and when in police custody they signed confessions accepting responsibility for the bombings. However, the men claimed in court that they had confessed only after being beaten by police. Scientific tests proved that statements made by the Birmingham Six while in police custody were altered at a later date. Scientists also admitted in court that forensic tests which were originally said to confirm that two of the six had been handling explosives could have produced the same results from handling cigarettes. In March 1991 the Birmingham Six successfully overturned their convictions and were freed from prison as innocent men. The Royal Commission on Criminal Justice presented its report to Parliament in July 1993. It recommended the establishment of an independent body to consider suspected miscarriages of justice, to arrange for their investigation where appropriate, and to refer cases to the Court of Appeal where the investigation revealed matters that ought to be considered further by the courts. (You will be examining the role of the Court of Appeal in more detail in Unit 4.) As a result of this Report, the Criminal Appeal Act 1995 was passed, enabling the establishment of the Criminal Cases Review Commission on 1 January 1997.
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A Government is not bound to accept the advice of any Royal Commission. In practice, Royal Commissions have sometimes been established to deal with issues that a Government feels may be too controversial to tackle itself. For example, in recent years various politicians have campaigned for a Royal Commission to examine the issue of the decriminalisation of cannabis. The size of a Royal Commission, its chairperson, membership and remit are set by the Government. Most Commissions take evidence, deliberate, and then produce a final report. The Government usually outlines at the time of its establishment when it expects a Royal Commission to produce its conclusions. The duration from establishment to report is generally between two and four years. Certain Royal Commissions can have a semi-permanent existence. For example, the Royal Commission on Historical Manuscripts was first set up in 1869 with the task of advising on and assisting in the preservation and publication of historical manuscripts. It is still in existence today. (iv) The Law Commission Another source of legislation is the recommendations of the Law Commission. The Law Commission was created in 1965 in order to review and make recommendations about any areas of the law which the Commission felt to be in need of reform. The Law Commission is responsible for keeping all the law under review with a view to its development and reform. This is not the only body charged with proposing changes to the law, there is also the Law Reform Committee and the Criminal Law Revision Committee (whose work you were introduced to in Unit 2). However, the work of the Law Commission is probably the most wide ranging. The Law Commission might suggest:
. . .
abolishing old laws which are no longer relevant a reduction in the number of separate statutes in a given area a removal of irregularities within the law.
We will be examining the role and function of the Law Commission in more detail later in W100 and you will see some examples of the Law Commission influencing legislation. (v) Private Members Bills Individual Members of Parliament have the power to introduce their own legislation known as a Private Members Bill. An example of a successful Private Members Bill which became law is the Marriage Act 1994 introduced by Gyles Brandreth who was MP for Chester at the time. This Act allows people to marry in any registered place, not just a Register Office or religious building. Private Members Bills may be the result of an MP being approached for support for a proposal put forward by particular interest groups operating outside Parliament. Alternatively, Private Members Bills may originate from a Government suggestion to an MP that he or she proposes a particular measure.
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Each year a ballot is held at the start of the Parliamentary session and the 20 MPs whose names come out top are allowed to introduce legislation on a subject of their choice. The six or seven MPs at the top of this list are given time by the Government to have their proposals discussed in the House of Commons. Measures which gain strong cross party support stand a good chance of becoming law. Members of the House of Commons or the House of Lords may also introduce Private Members Bills in the form of Ten Minute Rule Bills on Tuesday and Wednesday afternoons. The sponsoring MP may make a speech lasting 10 minutes in support of his or her Bill. These Bills are not allocated time for further discussion and stand little chance of becoming law. Another type of Private Members Bill is the Presentation Bill. A Member introducing this type of Bill presents the Bill to Parliament but is not able to speak in support of it and the Bill stands almost no chance of becoming law. However, these Bills can generate publicity and interest in specific issues. For example, in July 2002 Paul Burstow MP presented a Bill to the House of Commons to end child
Paul Burstow MP
deaths occurring as a result of abuse and neglect. Burstow also called for the establishment of a Childrens Rights Commissioner to provide added protection for children across the UK. Burstows Bill was not supported, but the government-sponsored Children Bill 2004, which became The Children Act 2004, created a Childrens Commissioner for England. So even if a Private Members Bill fails, it may still draw attention to an issue and provide the momentum for subsequent Government legislation. Activity 3 asks you to use the internet in order to see the types of issue that have been the subject of Private Members Bills. This activity should provide you with some practical examples of the issues being examined in this unit.
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You will already have used the internet to look at your OU student homepage and to submit your first assignment. If you are a relatively new user to the internet dont be overwhelmed by it. Feeling lost is normal and should be anticipated. Much like journeying to a new country, you know there are many things to see and do, but at first everything will seem different. When you first arrive, youll have trouble reading the street signs. You may get lost. Using the internet is a similar experience, but as you use it more often you will become more familiar with its workings and you will feel more confident. You may wish to refer back to the advice you were given in the Introduction to W100 about using the internet before you proceed further with Activity 3.
ACTIVITY 3 Private Members Bills (allow 30 minutes) .............................................................
WEB To see a list of current Private Members Bills you should: 1 2 3 Go to the Unit 3 section of the W100 website. Select the link to The Success of Private Members Bills factsheet. If you look at page 2 of this factsheet you will see the number of Private Members Bills which have received Royal Assent since 1945. We will be looking at what Royal Assent means in the next section of this unit but, simply put, to receive Royal Assent means that the Bill has been made law. Take a few moments to study the number of Private Members Bills which were successful in the years since 1945 and note the variation from year to year. For example, in 1996--7, 22 Private Members Bills became law, in 2001--2 only 8 were successful, and in 2008-9 five were successful.
Comment
From this website you will see that although there is a variation from year to year in the number of successful Private Members Bills, nevertheless the number is usually quite small. The largest number of successful Private Members Bills was in 1963--4 when 34 were enacted, since when the number has never risen above 25. Although Private Members Bills can influence which rules become Acts of Parliament, this is numerically a small influence. Sir Michael Shersby has been the most successful MP at introducing Private Members Bills. He has eight Bills to his credit. Box 4 shows some examples of successful Private Members Bills. Box 4 Examples of Private Members Bills which became Acts of Parliament Home Energy Conservation Act 1995 The Home Energy Conservation Act of 1995 was introduced by the then Liberal Democrat MP, Diana Maddock (now Baroness Maddock). This Act stimulated home insulation work, generated employment in the home insulation industry and encouraged the coherent use of taxation as part of the Governments environmental and energy conservation policies.
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Fireworks Act 2003 The Fireworks Act 2003 was introduced by Bill Tynan in February 2003 to make new laws to control noise, nuisance and anti-social use of fireworks. It was approved by Parliament and became law in September 2003. The Fireworks Act allows the Government to impose a noise limit on fireworks; ban the use of fireworks during anti-social hours; license people who sell fireworks; allow local authorities to revoke licences from traders who act irresponsibly; and create a compulsory training scheme for operators of public displays. Ragwort Control Act 2003 John Greenway, then MP for Ryedale in North Yorkshire, introduced this Private Members Bill which aimed to protect equines against the trauma and death resulting from consuming Common Ragwort. The Bill became an Act in November 2003. Common Ragwort is a weed which is poisonous to horses and other grazing animals. The Ragwort Control Act provided for a Code of Practice. The Code provides a strategy by which landowners, occupiers and horse owners can, for the first time, form a policy for Ragwort control.
Activity 4 requires you to undertake an interactive activity on the W100 website. The purpose of the activity is to consolidate your understanding of how an Act of Parliament may originate. It is important for you to understand how an Act can be introduced before you move on to study Part B which considers how an Act becomes law.
ACTIVITY 4 How do Acts of Parliament originate? (allow 5 minutes)...............................
WEB As this is an interactive exercise, you will need to go to the Unit 3 section of the W100 website to find the activity. Look for Activity 4 How do Acts of Parliament originate? I have not provided any answers in the Comment section, but you can make any notes you want to take while completing the activity in the blank Comments area below.
Comment
SUMMARY OF PART A
In Part A you have learnt about the roles of the House of Commons and House of Lords and explored some of the sources of Acts of Parliament: (i) (ii) party manifestos national emergency, crisis or new development
(iii) Royal Commissions (iv) the Law Commission (v) Private Members Bills.
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Part B How do Acts of Parliament become law?
The Houses of Parliament
An Act of Parliament starts off as a Bill. A Bill is a proposal for a new piece of legislation that -- if approved by a majority in the House of Commons and the House of Lords -- will become an Act of Parliament and law of the land.
Types of Bill
There are several kinds of Bill:
.
A Public Bill - This is the most common type of Bill. Public Bills deal with matters affecting the public generally and are usually introduced by a Government minister. Public Bills apply throughout England and Wales. Most Bills are public and are introduced and supported by the Government. A Private Members Bill - As already seen, a Private Members Bill deals with matters affecting the public generally but is introduced by a Member of Parliament who is not a minister. Private Members Bills are a type of Public Bill and should not be confused with Private Bills. A Private Bill - deals with issues which affect only a very small number of people. For example, a Private Bill could deal with a matter affecting a single local authority. Private Bills are promoted by the group concerned. A Private Bill does not affect the general public as a whole. A Private Bill might be introduced, for example, to give Railtrack (the company which maintains Britains network of train lines) the power to construct a new railway line in a particular area of the country.
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120 100 80 60 40 20 0 2002/03 2003/04 2004/05 2005/06
Number of Government Bills introduced Number of Government Bills receiving Royal Assent Number of Private Members Bills introduced Number of Private Members Bills receiving Royal Assent
Figure 3 Public Bills 2001-2006
Figure 3 shows the number of Public Bills that were introduced and made law from 2002--2006. The number of Government Bills can be contrasted with the number of Private Members Bills. Although many more Private Members Bills were introduced, very few were successful. In contrast, most Government Bills became Acts of Parliament. This part of the unit will deal mainly with Government Bills and the procedural stages through which they must pass to become Acts of Parliament.
Preparing and drafting a Bill

The period of preparation of a Bill allows time to scrutinise evidence on the policies underlying the Bill, and to consider whether the Bill can be improved before it is introduced. Proper preparation of a Bill should lead to better-informed debate when it is introduced, and may save time by identifying problems at an early stage. This period of pre-legislative scrutiny should allow mature consideration and so help to avoid introducing laws that are unworkable. In Activity 5 I would like you to read Reading 6, which provides a good description of the preparatory stage of a Bill before it is presented to Parliament. When reading this you should adopt the advice that was given to you for previous Readings. You may wish to look again at this advice before proceeding. You may also like to take some notes as you are reading. Again, you may like to reflect on the advice given earlier about note taking before proceeding. You will not need to take detailed notes but you may like to underline key phrases or draw a diagram.
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ACTIVITY 5 How a Government Bill becomes an Act of Parliament (allow 45 minutes)................................................................................................................
Please read Reading 6: Making a law.
Comment
Did you take any notes or underline any important phrases or ideas as you were reading? As I read through this Reading the first time, I underlined important phrases and then built up some notes in list form during my second reading. My notes looked something like this:
Government Department publishes Green Paper outlining plans for Bill and seeks advice and comments from affected people and organisations
Civil servants in
Government Department
summarise advice
and comments and
pass them to
relevant Minister
Minister and Department consider comments and publish White Paper outlining new ideas for Bill
Parliamentary draftsmen use White Paper to write Bill
Figure 4 Preparation of a Bill
Preparation of a Bill 1 2 3 Before a Bill is introduced into Parliament a period of consultation takes place. The consultation is organised by the Government department responsible for the Bill. Sometimes the Government department will publish a Green Paper outlining the ideas for a Bill and seek comments and advice from affected organisations.
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4 5
These comments are summarised by civil servants and passed on to the relevant minister. The department may then publish a White Paper which outlines firm proposals which will be contained in the Bill. This White Paper will form the basis of the Bill to be introduced to Parliament. The Bill is drafted by parliamentary draftsmen, who are lawyers skilled in drafting Bills. They must ensure that the Bill is clear and unambiguous.
You may have adopted a different method, such as notes in the form of a diagram (see Figure 4). It is up to you to decide which method of note taking is best for you. You may prefer the list style I used or you may prefer the diagram form. As I stated earlier in the unit, it is important to know why you are reading a text. If the purpose of your reading is to gain an overall understanding of a text then the diagram form of note taking may be most appropriate. Alternatively, you may be reading a text in order to locate specific information to answer a specific question. In this instance the list style may be more useful to you. It is important to try out different ways of taking notes and be prepared to use different styles for different Readings. So far in Unit 3 you have seen how ideas are generated for developing laws. Some ideas come from party manifestos and some arise as a result of national emergencies. Other ideas are recommended by Royal Commissions, the Law Commission or Private Members Bills. You have also seen how an idea is made into a Bill. Next we will examine how Bills become Acts of Parliament.
Procedure by which Bills become law

In order to become an Act of Parliament a Bill will have to be passed by both the House of Commons and the House of Lords. A Bill may start in either the House of Commons or the House of Lords, with the exception of Finance Bills which always start in the House of Commons. A Finance Bill is introduced by the Government shortly after the Budget to bring the Governments tax proposals into law. Before a Bill can become an Act of Parliament it must undergo a number of stages. 1 First reading The title of a Bill is read out and copies of it are printed but no debate takes place. There will be a vote on whether the House wishes to consider the Bill further. This stage lets MPs know that a Bill will be coming up for discussion. 2 Second reading Generally this is the first very important stage of a Bill. The purpose of the Bill is explained by a Minister. The general principles contained in the Bill are debated by MPs. Frequently the second reading stage is the point at which public attention becomes drawn to the proposal through press coverage and, on occasion, vociferous campaigns for and against
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the Bill by groups affected by it. At the end of this debate a vote is taken and a majority of the Members of Parliament must be in favour of the Bill in order for it to progress any further. 3 Committee stage At this stage a detailed examination of each clause of the Bill is undertaken by a committee of between 16 and 50 MPs. The committee subjects the Bill to line-by-line examination and makes amendments. The committee which carries out these discussions comprises MPs representing the different political parties roughly in proportion to the overall composition of the House of Commons. There will therefore be a Government majority on the committee. However, an attempt is made to ensure representation by minority parties. The membership of the committee will usually be those Members of Parliament with a special interest in, or knowledge of, the subject of the Bill under consideration. For Finance Bills the whole House will sit in committee, because Finance Bills are particularly complex. 4 Report stage A Bill that has been amended in committee stage is reviewed by the House in which it started. The amendments will be debated in the House and accepted or rejected. Further amendments may also be added. 5 Third reading This is the final vote on the Bill. It is almost a formality since a Bill which has passed through all the stages above is unlikely to fail at this late stage. In fact, in the House of Commons there will only be a further debate on the Bill if at least six MPs request it. In the House of Lords amendments may sometimes be made at this stage. 6 The House of Lords The House of Commons and the House of Lords must finally agree on the text of a Bill. If a Bill started life in the House of Commons it is now passed to the House of Lords where it goes through all the stages outlined above. If the House of Lords makes amendments to the Bill then it will go back to the House of Commons for the House to consider those amendments. If the House of Lords votes against a Bill it can go back to the House of Commons and become law if the House of Commons passes it for the second time. The reason for this is that the House of Lords is not an elected body and its function is to refine and add to law rather than oppose the will of the democratically elected House of Commons. There have only been a few occasions when the House of Lords has rejected a Bill from the House of Commons, the War Crimes Bill in 1991, the European Parliamentary Elections Bill in 1998, the Sexual Offences (Amendment) Bill in 2000 and the Hunting Bill in 2004. If the Bill started in the House of Lords it then passes to the House of Commons. The Bill then travels through the same stages discussed above but in the House of Commons. In Unit 2 you were introduced to the Suicide Act 1961 which began as a Bill in the House of Lords.
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(You may have noted that there is opportunity for parliamentary debate and discussion at all stages except the initial stage. This process enables politicians from all of the parties to participate in Parliament and to impress the electorate. Also, the debate and discussion allows the Government the opportunity to reflect on its proposed laws and modify them if necessary. There is therefore an intricate web of politics woven into what otherwise might appear a rather mechanical procedure for making law.) 7 Royal Assent You have already seen references to Royal Assent in this unit. The monarch formally assents to a Bill in order for it to pass into law. Royal Assent has never been withheld in recent times. Queen Anne was the last monarch to withhold a Royal Assent, when she blocked a Scottish Militia Bill in 1707. The Queen feared a Scottish militia might be turned against the monarchy. Since the sixteenth century no monarch has actually signed a Bill themselves. Instead, the monarch signs what are known as Letters Patent which announce that an assent has been given. Alternatively, the monarch signs a document known as a Commission which commands certain Lords, known as Royal Commissioners, to let both Houses of Parliament know that Royal Assent has been given. Once Royal Assent has been given the Bill is an Act of Parliament. Following the Royal Assent, the Act of Parliament will usually come into force at midnight of that date. However, there has been a growing trend for Acts of Parliament not to come into force immediately. Instead the Act itself either states the date when it will commence, or the Act passes responsibility to the appropriate minister to fix the date when the Act will come into force. In the latter case the minister will bring the Act into force by issuing a commencement order. Why would the commencement of an Act of Parliament be delayed like this? I can help you to answer this question by providing you with a good example. In 1989 the Children Act received Royal Assent. The Children Act 1989 aimed to offer greater protection to children. The main principles of the Act are to make childrens welfare a priority; to guarantee the principle that children are best brought up within their families wherever possible; to ensure that local authorities can provide services for children and families in need; to promote partnership between children, parents and local authorities; to improve the way courts deal with children and families; and to protect the rights of children. However, this Act did not come into force until 1991. Can you think why? If you read again the principles of the Children Act 1989 stated above you will see that it requires local authorities to provide services to children. Local authorities needed time to improve services for children. Social workers needed time so that they could receive training in how
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First reading Formal introduction of Bill into House of Commons/Lords
Second reading
Repeat of process If Bill began in House of Lords all stages repeated in House of Commons
Main debate on Bills principles
Committee stage Clause-by-clause consideration of Bill by committee
Third reading
Final debate on Bill
Royal Assent A formality where monarch approves Bill. Bill now Act of Parliament
Figure 5 Summary of law-making process in the Westminster Parliament
they should implement the new principles of making childrens welfare a priority, recognising that children are best brought up within their families wherever possible, and promoting partnership between children, parents and the local authorities. Between 1989 and 1991 local authorities and social workers had the opportunity to adjust their practices so that when the Children Act 1989 became law in 1991 they would be able to put the Act into practice. I would now like you to attempt Activity 6 which is an interactive activity which requires you to go to the Unit 3 section of the W100 website. Look for Activity 6 How a Government Bill passes through Parliament.
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ACTIVITY 6 How a Government Bill passes through Parliament (allow 40 minutes)................................................................................................................
WEB This activity is in two parts. The first part has been designed to enable you to check and consolidate your understanding of the preparation of a Bill, the second to allow you to check and consolidate your understanding of how a Government Bill passes through Parliament. I have not provided a Comment for this activity but there are blank or partly completed boxes in the Comment section. These are for your own study purposes and you may wish to fill them in once you have completed these activities to act as a prompt or reminder for future use. The importance of note taking has already been discussed.
Comment Preparation of a Bill
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Passage of a Government Bill through Parliament Name of process Description of process Overall examination of the Bill and a chance for the House to decide whether they want it to go any further. The Government sets out its ideas in a discussion document. Permanent officials (civil servants) gather together these ideas. The Government department may then produce firm proposals. The Queen signs the Bill. Debating the purpose and provisions of the Bill in the House. Letting MPs in the House know about the Bill. Looking at the details of the Bill in small groups.
Did you get all of the answers in Activity 6 right? If you got some wrong, do not worry, but it may be worth your while to revise Part B of this unit before proceeding to Part C so that you can clarify the process through which a Bill must pass before it becomes law. Revision is an important part of your learning process. Regular revision improves your memory and gives you a better understanding of the subject. You should reread Part B, and any notes you may have made the first time you covered Part B, and map out the main stages through which a Bill passes before it becomes a law. Revision may seem overwhelming at first. If you feel it is, then break Part B down into separate topics and work on mastering each topic one at a time, without worrying about the whole picture. If you adopt this approach you will find it much easier to understand and remember the important principles from each part of the units. Activity 7 will enable you to clarify and revise the issues examined so far in this unit. This is the first time you have been asked to watch a video clip on your DVD and you should read the Media Guide before you attempt this activity.
ACTIVITY 7 Parliament Uncovered (allow 20 minutes) ..............................................................
DVD I would now like you to watch Parliament Uncovered on your DVD, which is a short programme produced for the Parliamentary Education Unit. It goes behind the scenes of the British political system to explain how the democratic system works, the distinct roles of the House of Commons and the House of Lords, and the tradition and procedures which underpin their work. It includes interviews with many people involved in the political process -- from parliamentary candidates to the Speaker of the House of Commons. Watching this short programme will enable you to piece together the processes to which you have just been introduced and strengthen your understanding of them. You may wish to take some notes as you watch the programme. Run the DVD and look for Unit 3 Activity 7 Parliament uncovered.
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I have not provided a Comment as the purpose of this activity is to consolidate your knowledge and understanding of the role and operation of Parliament.
SUMMARY OF PART B
In Part B we have examined: the different types of Parliamentary Bills:
. . .
Public Bills Private Bills Private Members Bills
how Bills are prepared and drafted how Bills become Acts of Parliament.
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Part C Delegated legislation and the Westminster Parliament

What is delegated legislation?
In Parts A and B of this unit you have learnt about the role of the Westminster Parliament in the law-making process. In addition to the power to make law itself, the Westminster Parliament can delegate or pass on the power to make law to another person or body. Delegated legislation (also sometimes referred to as subordinate legislation) is law made by another person or body to whom Parliament has delegated or passed on the required authority. The required authority or power is usually given by Parliament in a parent Act of Parliament known as an enabling Act. The enabling Act creates the framework of the law, and then delegates authority to others to make laws and rules for specific purposes within the scope of the enabling Act. Delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted. An example of an enabling Act is the Criminal Justice Act 2003 which gives the Secretary of State the power to make delegated legislation. One of these powers enables the Secretary of State to devise a Code of Practice for the use of conditional cautions. An offender can be given a conditional caution instead of being taken to court.
The volume of delegated legislation

Delegated legislation is a very important source of legislation quite simply because of its volume. There are far more pieces of delegated legislation created each year than Acts of Parliament. For example, in 2005 there were only 24 general public Acts of Parliament passed whereas there were 3,699 Statutory Instruments made. You will learn about Statutory Instruments as one type of delegated legislation.
Types of delegated legislation

There are different types of delegated legislation:
. . . . .
Statutory Instruments byelaws Orders in Council Court Rule committees professional regulations.
Statutory Instruments
The vast majority of delegated legislation is in the form of Statutory Instruments (SIs). SIs are rules and regulations made by Government ministers acting under the delegated power given to them or their department by Parliament in a broadly drafted parent or enabling Act concerning their area of responsibility, for example, health or transport or education. SIs are normally drafted by the legal department of the
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minister concerned and are just as much part of the law as their parent or enabling Act. As there are about 3,000 SIs issued every year, they represent a major form of law making. Have a look now at Activity 8, in which you can explore SIs further.
ACTIVITY 8 Statutory Instruments (allow 20 minutes) ............................................................
This activity is in two parts. Exercise 1 enables you to see the wide range of activities covered by SIs, Exercise 2 asks you to select an individual SI and make a note of particular features.
Exercise 1
WEB To see the wide range of activities covered by SIs you should: 1 2 3 Go to the Unit 3 section of the W100 website. Select the link to Statutory Instruments. This will take you to the website of the Office of Public Sector Information where you will be able to see all published SIs since 1987. You should choose a year and then a batch of numbers to see the enormous range of SIs issued every year.
Comment
I chose 2006 Numbers 1--99 where there are examples of SIs concerning food hygiene, occupational pension schemes, drivers hours and working time for drivers of road tankers, and information about individual pupils, the disposal of older cattle, and cremations.
Exercise 2
Now select an individual SI and make a note of the following: 1 The full title of the SI.
The Government Minister making the SI.
The name and section of the enabling or parent Act.
The date it came into force. How much time passed between the date it was made and the date it came into force?
Comment
I chose No. 92 from 2006 Numbers 1--99.
1
2 3 4 The Cremation (Amendment) Regulations 2006. It was made by Harriet Harman, Minister of State, Department for Constitutional Affairs on the Authority of the Secretary of State. The enabling or parent Act was the Cremation Act 1902, section 7. It was made on 18 January 2006, and came into force on 14 February 2006, approximately one month later.
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Activity 8 shows you the huge number and range of SIs issued each year.
Byelaws
Byelaws can be made by local authorities and certain other public corporations and companies concerning issues within the scope of their geographic or other areas of responsibility. So, a County Council can make byelaws affecting the whole county, whilst a District or Town Council can only make byelaws for the district or town. Byelaws are usually created when there is no general legislation that deals with an issue that concerns people in a local area. If a council wishes to make a byelaw it must advertise the proposed byelaw to allow local people a chance to comment, before applying to the Secretary of State for approval. Local authority byelaws often concern such matters as traffic management, parking and libraries -- an example of this kind of byelaw is set out in Activity 9. An example of byelaws created by another body is the London Regional Transport Railways Byelaws. You can see the range of activities covered by these byelaws by going to www.tfl.gov.uk/tube/company/bylaws.asp (note: you might also see byelaw spelt by-law or bye-law).
ACTIVITY 9 Byelaws (allow 15 minutes) ............................................................................................
Here is an example of a byelaw made by the Greater London Authority. Read the byelaw and answer the questions that follow it. GREATER LONDON AUTHORITY TRAFALGAR SQUARE AND PARLIAMENT (AMENDMENT No: 1) BYELAWS 2002 SQUARE GARDEN
GREATER LONDON AUTHORITY ACT 1999, SECTION 385(1) The Mayor of London, acting on behalf of the Greater London Authority, hereby makes the following byelaws, which he considers are necessary for securing the proper management of Trafalgar Square and Parliament Square Garden, and the preservation of order and the prevention of abuses there. Citation 1 These byelaws may be cited as the Trafalgar and Parliament Squares (Amendment No: 1) Byelaws 2002. Interpretation 2 These byelaws amend the Trafalgar Square and Parliament Square Garden Byelaws 2000 (the existing Byelaws). Amendments to the existing Byelaws 3 The following shall be inserted as byelaw 3A after byelaw 3 of the existing Byelaws: 3A No person other than a person acting at the direction of the Mayor shall within Trafalgar Square - (1) feed any bird (which shall include dropping or casting feeding stuff for birds); or (2) distribute any feeding stuff for birds.
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Schedules 4 A copy of the existing Byelaws, with the amendment inserted therein is set out in the Schedule hereto. These Bylaws were made under the hand of Ken Livingstone, Mayor of London This 20th day of November 2002. Signed by Ken Livingstone. Mayor of London. Ken Livingstone The foregoing byelaws are hereby confirmed by the Secretary of State and shall come into effect one month after the date of confirmation. Signed by authority of the M Seeney Secretary of State. Name: Michael Seeney Title: Head of Architecture and Historic Environment Division D.C.M.S. Date: 17th October 2003
(Source: http://www.london.gov.uk/trafalgarsquare/docs/squares_byelaws.rtf)
What is the title of the byelaw?
What is the title of the enabling Act?
Who made the byelaw?
Who confirmed the byelaw?
Comment
1 2 3 4 Trafalgar Square and Parliament Square Garden (Amendment No: 1) Byelaws 2002. Greater London Authority Act 1999, section 385(1). The Mayor of London, Ken Livingstone. The Secretary of State.
If you wish to read the Schedule attached to the byelaw, you can find it at: www.london.gov.uk/trafalgarsquare/docs/squares_byelaws.rtf
Orders in Council
These are more correctly called Orders of the Legislative Committee of the Privy Council. The Government can make law through the Privy Council without going through the full parliamentary process. Orders in
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Council can be used by the Government in times of state emergency under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. However, they are also used to give legal effect to European law under the European Communities Act 1972 and to amend other types of law. An example of an Order in Council being used to amend law is The Misuse of Drugs Act 1971 (Modification) (No. 2) Order 2003 (SI 2003/ 3201) which downgraded cannabis from a Class B to a Class C drug.
Court Rule committees

Court Rule committees have delegated powers from such Acts as the Supreme Court Act 1981, the County Courts Act 1984 and the Magistrates Courts Act 1980, to make rules which govern procedure in particular courts. For example, the Criminal Procedure Rule Committee was established in 2004 to make rules of procedure for all the criminal courts in England and Wales, up to and including the Court of Appeal (Criminal Division). You will study the Civil and Criminal court structure in Unit 11. The Family Procedure Rule Committee was set up under the Courts Act 2003 to make rules which govern procedure in family proceedings. An example of such a rule is the Family Procedure (Adoption) Rules 2005 (SI 2003/2795).
Professional regulations
Certain professional bodies, such as The Law Society, have delegated authority under enabling legislation to regulate the conduct of their members. The Law Society has power to control the conduct of practising solicitors under the Solicitors Act 1974. The General Medical Council regulates the conduct of its members under the Medical Act 1983. It has four main functions:
. . . .
to keep up-to-date registers of qualified doctors to foster good medical practice to promote high standards of medical education to deal firmly and fairly with doctors whose fitness to practice is in doubt.
The control of delegated legislation

You may have been surprised to read that through delegated legislation an enormous amount of law is made every year outside of the democratically elected parliamentary process and therefore this law is being made by non-elected people. There are, however, certain safeguards to ensure that delegated legislation is controlled by way of both parliamentary and judicial control.
Parliamentary control
Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within
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which delegated legislation is made. In addition, there are scrutiny committees in both Houses of Parliament whose role is to consider the delegated powers proposed by a Bill. However, these committees have limited power. European legislation is considered by a specific committee and local authority byelaws are usually subject to the approval of the Department for Communities and Local Government. All SIs are subject to review by the Joint Committee on Statutory Instruments. Some SIs must be approved by Parliament before they can become law. This is known as affirmative resolution. Others are subject to negative resolution, which means that the SI will become law unless it is rejected within 40 days of being laid before Parliament. You will have seen the dates in the examples of SIs that you looked at in Activity 8. You can further explore the work of the Joint Committee on Statutory Instruments in Activity 10.
ACTIVITY 10 Joint Committee on Statutory Instruments (allow 20 minutes) .................

WEB You can see the work of the Joint Committee on Statutory Instruments (JCSI) by looking at its website. 1 2 3 Go to the Unit 3 section of the W100 website. Select the link to JCSI. This will take you to the homepage of the JCSI. From here you can see the formal minutes of each Committee session. Click on the current session and then on one of the actual session dates to see the business concluded on that day. What are the concerns of the Committee?
Comment
You will see that the Committee was concerned with SIs that were defectively drafted and where there was an unexpected use of enabling power. However, the JCSI can only report back on its findings and cannot actually alter an SI.
Judicial control
Delegated legislation is also subject to control by the courts whose judges can declare a piece of delegated legislation to be ultra vires. Ultra vires means beyond powers, so the court would be saying that a piece of delegated legislation went beyond the powers granted by Parliament within the enabling Act. If the court does this, then the delegated legislation in question would be void and not effective. There are two types of ultra vires:
Procedural ultra vires

This is where the enabling Act sets out the procedural rules to be followed by the body which has been given the delegated power. The court can find the delegated legislation to be ultra vires and void if these rules were not followed.
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In the Aylesbury Mushroom case (1972) the full citation of which is: Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280 delegated legislation required the Minister of Labour to consult any organisation . . . appearing to him to be representative of substantial numbers of employers engaging in the activity concerned about the establishment of a training board. The Minister failed to consult the Mushroom Growers Association which represented about 85% of all mushroom growers. Therefore, the delegated legislation was declared to be ultra vires on procedural grounds.
Substantial ultra vires

This is where the delegated legislation goes beyond what Parliament intended. In R v Secretary of State for Education and Employment, ex parte National Union of Teachers [2000] All ER (D) 991, the High Court determined that an SI concerning teachers pay and appraisal arrangements went beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was declared to be ultra vires on substantive grounds.
The advantages and disadvantages of delegated legislation

The advantages of delegated legislation include the following: Time Delegated legislation is far quicker to introduce than an Act of Parliament. This can be an advantage in instances when emergencies or unforeseen problems require laws to be changed. The use of delegated legislation also saves parliamentary time. The detail of the delegated legislation can be dealt with by the appropriate minister, leaving Parliament as a whole more time to focus on the general principles of the enabling Act. Expertise Delegated legislation by its very nature concerns specialist technical and/or local knowledge. So it is an advantage for such specialist provisions to be dealt with by those who have this knowledge rather than by Members of Parliament who generally would not have the required specialist or local knowledge. Flexibility Delegated legislation is more flexible than an Act of Parliament. It is far simpler to amend a piece of delegated legislation than to amend an Act of Parliament.
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The disadvantages of delegated legislation include the following: Democratic accountability The main criticism of delegated legislation is that it takes law making away from the democratically elected House of Commons. Instead, power to make law is given to unelected civil servants and experts working under the supervision of a Government minister. Sub-delegation Connected to the accountability issue is the problem that the authority vested in Parliament to make law is delegated away from Parliament, possibly through a number of layers, for example, to a Government minister and then to a department and then possibly again to a group of experts. The Trafalgar Square byelaw (see Activity 9) was made by The Mayor of London acting on behalf of the Greater London Authority. Scrutiny Again, connected to the accountability issue is the problem of adequate scrutiny. The detailed, technical and specific nature of much-delegated legislation means that, on the whole, Members of Parliament (the elected representatives) do not have the expertise to consider proposed legislation effectively. In addition, you have already noted that the scrutiny committees themselves only have limited powers. Volume The large volume of delegated legislation produced every year (some 3,000 SIs annually) means that it is very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This is exacerbated by the fact that delegated legislation is made in private, unlike Acts of Parliament which are made following public debates in Parliament.
Conclusion
Although there are advantages in delegated legislation, the disadvantages all concern the issue of accountability because delegated legislation takes law making away from the democratically elected House of Commons. These concerns about accountability were heightened by debates surrounding the bill that subsequently became the Legislative and Regulatory Reform Act 2006. The bill was seen by some people as challenging the role of Parliament as the main law-making body. Described by some as the Abolition of Parliament Bill, the proposal would have given a minister the power to alter any law, however important. However, as a result of opposition in the House of Lords the Government amended the Bill to limit the powers of the Act to allow a minister to make amendments to legislation in order to remove or reduce legislative burdens. Activity 11 will help you to see how much you have learnt about delegated legislation during the course of Part C.
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ACTIVITY 11 Consolidation (allow 10 minutes) ................................................................................
Complete the diagram below to help consolidate your work on delegated legislation.
Enabling or Parent Act Purpose: 1) 2)
Example
Example
Example
Example
Example
Comment
This is how I completed the diagram:
Enabling or Parent Act Purpose: 1) Creates the framework of the law. 2) Delegates authority to others to make law for specific purposes within the scope of the enabling act.
Statutory Instruments Example The Cremation (Amendment) Regulations 2006 (SI 2006/92)
Byelaws Example The Trafalgar Square and Parliament Square Garden (Amendment No. 1) Byelaws 2002
Orders in Council Example
Court Rule Committees Example
Professional Regulations Example
The General Family The Misuse of Medical Council Procedure Drugs Act 1971 (Adoption) (Modification Rules No. 2) 2005 Order 2003 (SI 2003/3201) (SI 2005/2795)
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SUMMARY OF PART C
In Part C you have learnt that: delegated legislation is law made by bodies other than Parliament, but with the authority of Parliament delegated in an enabling or parent Act the types of delegated legislation are:
. . . . .
Statutory Instruments byelaws Orders in Council Court Rule committees professional regulations
control of delegated legislation takes place in Parliament through affirmative and negative resolutions and scrutiny committees, and by the courts through the use of a declaration of ultra vires the advantages of delegated legislation are:
. . .
time expertise flexibility
the disadvantages, which largely concern the issue of accountability, are:

. . . .
democratic accountability sub-delegation scrutiny volume
the concerns about accountability are heightened by the Legislation and Regulatory Reform Act 2006.
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Part D Reading an Act of Parliament
In Parts A and B of this unit we have examined what influences determine which Acts of Parliament are made and the process by which they are made. In Part D I would like to show you some examples of what an Act of Parliament looks like, how Acts of Parliament are structured and how you should read an Act of Parliament. You have already been introduced to an Act in unit 2. Here you will learn more detail about the structure of acts and how to read them. Copies of all Acts of Parliament have been kept since 1497. Most of these are kept in the House of Lords Record Office in the Victoria Tower at Westminster and are available for public inspection on arrangement with the Clerk of the Records. The oldest Act held in the Victoria Tower dates from 1497 and is entitled The Taking of Apprentices for Worsteads in the County of Norfolk Act. A worstead was a woollen garment. Worstead is also a village in Norfolk, England, south of North Walsham and north of Wroxham. Walsham cloth was light and for summer use, whereas Worstead was a heavier cloth. It is still referred to as worsted, an older spelling of the name of the town. Some Acts of Parliament are clearly written, meaning that you can easily understand exactly what was intended and what the law is on a particular subject. Unfortunately, many Acts of Parliament are very difficult to understand. Acts of Parliament tend to include a lot of exceptions to the Act, a lot of whereases and cross-references to other Acts. This can make it very hard to understand what an Act means. However, as with most things, practice makes perfect, so you do not need to be worried about this. By the time you have finished studying W100 you will find reading Acts of Parliament very straightforward. In Activities 12, 13 and 14 we will practice how to read an Act of Parliament. In these activities I will ask you to read two different Acts. You will also be asked to identify specific things about the legislation, for example, the Explanatory Note. Activity 12 encourages you to take some time to examine the physical layout of an Act of Parliament in order to improve your understanding of how legal rules are made in Parliament.
ACTIVITY 12 Reading an Act of Parliament (allow 30 minutes) .............................................
WEB Go to the Unit 3 section of the W100 website and look for Activity 12. You should now see a reproduction of the Law Reform (Year and a Day Rule) Act 1996. The Year and a Day Rule was an ancient rule which prevented killers being convicted of murder if their victim survived for a year and a day after the original offence. Recognising that modern medical techniques can often prolong life for substantial periods after an initial attack, the Year and a Day Rule was abolished by the Law Reform (Year and a Day Rule) Act 1996.
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At this stage you should not be concerned with the actual content of the
Year and a Day Rule. In this activity, I am simply using this Act as an
illustration of how to read an Act of Parliament. I chose the Law Reform
(Year and a Day Rule) Act 1996 because it is an unusually short Act,
but it nevertheless provides a good illustration of the structure of an
Act of Parliament.
Take a few moments to look at the Act.
You will see that the name of the Act is given immediately under the
Royal Coat of Arms. Underneath the name, 1996 Chapter 19 means
that this was the nineteenth Act to be passed in 1996.
Next follows a short statement about the purpose of the Act.
Then there is a short statement confirming that the Act has been
passed by both Houses of Parliament and received the Royal Assent.
After this comes the main body of the Act, which is set out in sections.
Each Act will vary in the number of sections and parts it has. The Law
Reform (Year and a Day Rule) Act 1996 is a very short Act and has only
three sections. Each section is equally important: section 1 is not any
more or less important than section 2.
Section 1 abolishes the Year and a Day Rule. Section 2 states that the
consent of the Attorney General is needed before proceedings can be
started. Section 3 is concerned with the commencement of the Act.
ACTIVITY 13 Reading the Crime and Disorder Act 1998 (allow 20 minutes)...................
WEB Now I would like you to take a look at another Act on the W100 website, the Crime and Disorder Act 1998. This can be found in the Unit 3 section under Activity 13. The Crime and Disorder Act 1998 is quite similar in structure to the Law Reform (Year and a Day Rule) Act 1996, but it is a much bigger Act containing a lot more sections. You need not be concerned with the actual content of the Crime and Disorder Act 1998. Concentrate instead on the structure and layout of this Act and how it compares with the structure of the Law Reform (Year and a Day Rule) Act 1996. Similarly to the Law Reform (Year and a Day Rule) Act 1996, you will see that the name of the Act is given immediately under the Royal Coat of Arms. Underneath the name is 1998 Chapter 37 which, as you know, means that this was the thirty-seventh Act to be passed in 1998. After the heading you should see the Arrangement of Sections which divides the Act into various parts, and each part is arranged in individual sections. The Crime and Disorder Act 1998 has 5 parts and 121 sections. Remember that, at this stage, you should not be concerned about what the Crime and Disorder Act 1998 actually says; we are only concerned with examining the structure and layout of an Act of Parliament. Box 5 gives you more information about the title of an Act.
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Box 5 The title of an Act of Parliament Acts before 1962 use the following reference: Year of reign (known as Regnal Year)/Monarch/chapter number to define a chapter of the appropriate statute book. The terminology chapter arises because the very earliest Acts were regarded as parts of a single statute passed at one meeting of Parliament. For example, 16 Charles II c.2 was the second Act passed during the session of Parliament that fell during the sixteenth year of the reign of Charles II. Another example is the Bills of Sale Act of 1854 known as 17 & 18 Vict c.36. Since 1962, the Regnal Year has been replaced by the calendar year. Now all Acts of Parliament have a name and date, for example, the Road Traffic Act 1961. The name usually reflects the subject matter of the Act and the date indicates the year in which the Act passed through Parliament. Acts also have a number (for example, the Road Traffic Act was No. 50 of 1961 -- that is, it was the fiftieth Act passed in 1961).
ACTIVITY 14 Examining the Crime and Disorder Act 1998 in more detail (allow 30 minutes)................................................................................................................
WEB To undertake this activity you will need to look again at the Crime and Disorder Act 1998 in the Unit 3 section of the W100 website. Select Activity 13 again, as this activity builds on Activity 13. You will see at the end of the Arrangement of Sections that there are 10 Schedules. Many Acts of Parliament contain such Schedules. Schedules have equal force to the sections of the main Act. They are simply a convenient means of setting out matters of detail. For example, if you read section 41 of the Crime and Disorder Act 1998 you will see that it creates a new Youth Justice Board for England and Wales and states that the role of the Youth Justice Board is to monitor the operation of the youth justice system and to ensure the provision of youth justice services. Now briefly look at Schedule 2 of the Crime and Disorder Act. Schedule 2 discusses in more detail how the Youth Justice Board will actually operate. Schedule 2 creates a procedure for appointing and removing members of the Youth Justice Board and it creates the rules regarding how the accounts and finances of the Youth Justice Board will be regulated. Schedules allow for more detailed provisions to be included. You should not think of schedules as being an inferior source of law. Schedules are an important part of Acts of Parliament and are law in the same way that the sections of the Act are law. After the Arrangement of Sections follows the short statement about the purpose of the Act. Read this statement and think about what the purpose of the Act is. The short statement at the beginning of the Crime and Disorder Act 1998 states that it is: An Act to make provision for preventing crime and disorder; to create certain racially-aggravated offences; to abolish the rebuttable presumption that a child is doli incapax; to make provision as to the effect of a childs failure to give evidence at his trial; to abolish the death penalty for treason and piracy; to make
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changes to the criminal justice system; to make further provision for dealing with offenders; to make further provision with respect to remands and committals for trial and the release and recall of prisoners; to amend Chapter I of Part II of the Crime (Sentences) Act 1997 and to repeal Chapter I of Part III of the Crime and Punishment (Scotland) Act 1997; [ . . . ]
As in the previous Act you looked at, the next thing you will see is a short statement showing that the Act has been passed by both Houses of Parliament and received the Royal Assent. After this comes the body of the Act. You will see that section 1 of the Crime and Disorder Act 1998 creates a new power for tackling anti social behaviour -- the anti-social behaviour order. Section 1 then breaks down into subsections which discuss specific aspects of the new order. For example, section 1 subsection 1 (written as 1.-(1)) outlines the conditions that need to be fulfilled before an anti-social behaviour order can be made. Section 1.-(3) (section 1 subsection 3) states that an application for an anti-social behaviour order (known as an ASBO) must be made to the magistrates court. Section 2 of the Crime and Disorder Act 1998 concerns the sex offender order, which is an order designed to protect members of the public from sex offenders. I would now like you to read sections 1 and 2 of the Crime and Disorder Act 1998 in more detail, and think about the language used. You may have noticed that there is a lot of punctuation and a lot of use of and and or. It is common for lawyers and law students when reading a statute to do so a number of times. You should assume all words and punctuation in the statute have meaning. It is tempting to skip words you dont quite understand and ignore awkward punctuation, but you should read it all. It is important to interpret a statute so that it makes sense rather than leads to some absurd or improbable result. You may have found some of the terminology difficult to understand. There is a lot of reference to other Acts of Parliament such as the Powers of Criminal Courts Act 1973; some Latin terms are used (for example, in the short statement at the beginning of the Act the term doli incapax is used, a Latin term meaning that the child is incapable of crime) and there are other terms you may not understand such as conditional discharge on conviction or indictment on summary conviction. It is quite common for Acts of Parliament to contain language like this. You will be able to find the meaning of these words in your W100 Glossary. As you become more accustomed to reading Acts of Parliament you will become more familiar with the language used and you will begin to find it much easier to understand what the Acts are saying. The advice I am giving you here is general advice for your W100 studies, so you do not need to read all of the Crime and Disorder Act 1998. This is why only a number of the sections have been reproduced on the W100 website. Nor should you be worried if you find the language used in the Act difficult. As you progress through W100 you will be encountering more Acts of Parliament and you will have more practice in reading these so that by the time you have completed W100 you should find reading these Acts more straightforward.
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SUMMARY OF PART D
In Part D you have: examined how to read an Act of Parliament studied the physical layout of Acts of Parliament and identified those features common to all Acts of Parliament read sections of the Law Reform (Year and a Day Rule) Act 1996 and the Crime and Disorder Act 1998 examined the importance of Schedules and the short statement at the beginning of the Act studied the language used in Acts of Parliament.
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Part E The devolved legislatures
In Part E we will explore the roles of the devolved legislatures, the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly and how they interact with the Westminster Parliament. In the late 1990s Scotland, Wales and Northern Ireland all held referendums on devolution. As a result of these referendums certain law making powers were devolved from the Westminster Parliament and law making bodies were established in each of these jurisdictions. This process was achieved through a number of statutes passed by the Westminster Parliament (The Scotland Act 1998, the Government of Wales Act 1998 and Northern Ireland Act 1998). These statutes set out the frameworks for devolved law making powers in each jurisdiction. Different law making powers were created for each of the jurisdictions i.e. the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly all have different law making powers. The first elections for the Scottish Parliament and Welsh Assembly were held on 6 May 1999. The first elections for the Northern Ireland Assembly were held on 25 June 1998. Whilst each jurisdiction now has law its own making power, the Westminster Parliament retains the right to discuss business relating to Scotland, Wales and Northern Ireland.
The Scottish Parliament

The Scotland Act 1998 created the framework for the Scottish Parliament, its procedures and power. The Scottish Parliament consists of 129 members and elections are held every four years. The Parliament operates a four year sessional sitting cycle as opposed to the annual cycle used by the Westminster Parliament. Parliamentary business is usually arranged on Tuesday, Wednesday and Thursday to allow members to spend time at the beginning and end of each week on constituency business. The Scottish Parliament can pass primary legislation and delegated legislation on devolved matters. The Westminster Parliament passes primary legislation on reserved matters. A full list of reserved matters is set out in the Scotland Act 1998. Reserved matters are generally matters on which it is more practicable to have a UK wide legislative framework such as data protection, firearms, defence and national security, employment legislation and energy. The Scotland Act 1998 did not set out a list of devolved matters. Devolved matters are therefore regarded as all those matters that have not been reserved. They cover areas such as health, education, sport and the arts, police and fire services, national heritage and criminal law. In the next activity you will explore the law making powers of the Scottish Parliament.
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ACTIVITY 15 The law making power of the Scottish Parliament (allow 20 minutes)................................................................................................................
Please read the extract from the Scotland Act 1998 and outline what section 29 states.
Scotland Act 1998 Legislation 29 Legislative competence (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply-(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters, (c) it is in breach of the restrictions in Schedule 4, (d) it is incompatible with any of the Convention rights or with Community law, (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. (3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. [ ... ] 31 Scrutiny of Bills before introduction (1) A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament. (2) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision. (3) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.
(http://www.opsi.gov.uk/acts/acts1998/ukpga_19980046_en_3)
Comment
Section 29 sets out the limits of legislative competence of the Scottish Parliament. It states that if an act or any section of an Act is not within the legislative competence of the Scottish Parliament then it is not
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legally binding. It makes it clear that the Scottish Parliament cannot make a law which: attempts to legislate for other jurisdictions attempts to legislate on reserved matters is incompatible with the European Convention of Human Rights is incompatible with European Union law (referred to in the Act as Community law) would remove the Lord Advocate from their position Legislative competence is a way of determining whether an Act of the Scottish Parliament has been produced within the power of the Scottish Parliament. Its effect is that the legislative competence of every Bill is assessed before being introduced to the Scottish Parliament and a further opportunity exists for a Bill to be challenged once it exists but before it becomes law. In this way law making in the Scottish Parliament differs from that in the Westminster Parliament, for example, if the Westminster Parliament passed a law which was incompatible with the European Convention on Human Rights a challenge would need to be made through the courts to seek a declaration of incompatibility (you will learn more about this in later units). This challenge would take place after the legislation had been passed.
The Welsh Assembly

The power of the Welsh Assembly differs from that of the Scottish Parliament. The Assembly does not have full law making powers and cannot pass primary legislation. Its powers are limited to creating secondary legislation.
The Welsh Assembly in Cardiff
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The Welsh Assembly divides the year into three sessions and Assembly business is usually arranged on Tuesday, Wednesday and Thursday to allow Assembly members to spend time at the beginning and end of each week on constituency business. The Assemblys Power and Electoral Arrangements has been the subject of a recent review and are likely to change in the future.
The Northern Ireland Assembly

The creation of a Northern Ireland Assembly and a Northern Ireland Executive was one of the terms of the 1998 Good Friday Agreement. Devolution in Northern Ireland created three areas of legislative power; reserved, excepted and devolved. Excepted matters are subjects reserved to the Westminster Parliament and which will not be transferred unless by primary legislation. Devolved matters are matters on which the Northern Ireland Assembly can legislate. Reserved matters are subjects that could be transferred at a later date.
SUMMARY OF PART E
In Part E we have considered the role and function of the devolved legislatures: (i) Scottish Parliament (ii) Welsh Assembly (iii) Northern Ireland Assembly.
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Part F Parliament and law making
In this unit you have covered parliamentary law making at Westminster. You have learnt about the sources of legislation, how legislation is created and passed, secondary legislation, the devolved legislatures and their relationship with the Westminster Parliament. This part will build upon this knowledge by considering some of the advantages and disadvantages of the Westminster Parliament and looking at the idea of parliamentary sovereignty.
ACTIVITY 16 Parliament as a law-making body (allow 1 hour) ...............................................
Please read Reading 7: Improving the effectiveness of parliamentary legislative procedures, which is an extract from an article from a journal known as Statute Law Review about the role of Parliaments in making legal rules. This article is longer than the other Readings in this unit. You shouldnt let this daunt you, but remember the advice you have been given for previous Readings about reading it through once without taking notes. On the second reading you should think about your task in Exercise 1 and take notes. Reading 7 also has a lot of endnotes. The endnotes essentially contain information that is not directly relevant to understanding the article but is useful to know. Endnotes and footnotes are denoted by small numbers appearing in the text. The text of the endnotes appears at the end of the article. You do not need to read the endnotes to answer the activity, but you may find it useful to look at some of them to see the kind of information that they normally contain. Exercise 1 asks you to apply your understanding and knowledge of how legal rules are made in Parliament to identify and summarise the arguments for and against Parliament as an effective law-making body. Exercise 2 asks you to write a short paragraph (no more than 200 words) on your views as to whether the general public plays any role in deciding which laws Parliament should make. You can write this paragraph in any of the forms that were suggested earlier when discussing how to take notes. You should reflect on what you have read in Unit 3 and in the Readings and think about the ways in which the general public can influence the laws made in Parliament. Box 6 Summarising text in your own words Summarising in your own words involves reflecting on someone elses ideas and producing your own interpretation of these ideas. This means that you must understand the main ideas in a text, but does not mean that you simply take a paragraph from a Reading and change an occasional word, omit a phrase or rearrange a few sentences. You should read the Reading and then write the argument in your own words. Summarising ideas in your own words is an important skill. It helps you to clarify your understanding of the ideas and to improve your ability to recall them in future. You are effectively explaining the ideas to yourself and you are more likely to make sense of them. The ability to explain using your own words demonstrates your understanding of the issues and will be an important skill when doing eTMAs.
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The following is an extract from a popular cookery book, Jamie Olivers The Naked Chef: If I asked most people if they made risotto at home I reckon most would say no, and would think it was just poncy restaurant food. . . . But risottos are really meant to be cooked at home -- you can prepare them easily, and can make them warming and wholesome or delicate and light. They are cheap and can be eaten all year round. The perfect risotto should slowly ooze across the plate, not be made into a tower or a mould -- the fact that it isnt moving tells you that its too dry. Yuck! If you were asked to review the above piece and summarise it, how would you do so? There are of course a number of ways the passage could be summarised. One version might look like this: Jamie Oliver suggests that risotto is easy to make despite the fact that it is often thought of as a dish mainly served in restaurants. So you see it is not so difficult to summarise in your own words. This is quite a brief summary. You may be asked to write a more detailed summary of Jamie Olivers arguments. In such circumstances you might write: Jamie Oliver argues that risotto is an economical dish that is easy to cook at home, is suitable for any season and can be made so that it is either nourishing or lighter and more subtly flavoured. He also argues that, while risotto is frequently thought of as what he calls poncy restaurant food, restaurant-prepared versions of the dish are sometimes too dry, and, as such, detract from its true character. What does this tell you about summarising in your own words? The above paragraph summarises Jamie Olivers arguments. While the language used is different, the summary remains true to Jamie Olivers original meaning.
(Adapted from Writing in your Own Words prepared by Peter Redman for the Open University, p. 5)
Exercise 1
Reading 7 criticises and praises Parliament as a law-making body. Summarise the criticisms and praise.
Comment
Criticisms Parliament is dominated by the Government, which dictates the legislative agenda, so Parliaments role is increasingly marginal. MPs lack the technical expertise to draft legislation. Parliament is inefficient and slow. Parliament controls and monitors the Governments legislative agenda.
Praise
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Exercise 2
Write a short paragraph (maximum 200 words) outlining whether you think the general public can influence the laws enacted by Parliament.
Comment
Your paragraph may have looked something like this:
Party manifestos and pre-election promises are influenced by what politicians believe the public will vote for. Although the Government is not legally bound to introduce any pre-election promises, if they do not they may pay a heavy political price. Members of the general public can influence MPs to introduce Private Members Bills. The media can harness public opinion in order to pressure Parliament to make new laws. The general public can join or create pressure groups. However, Parliament is dominated by the Government and it is the Government that decides which laws will or will not be made.
[total 98 words] Your paragraph may have been different, and is likely to have been longer than this. You should not be worried if that is the case -- it simply reflects your own individual style -- but it is important that you check that your paragraph contains all the main points referred to in the paragraph above. Learning to write clearly and concisely is a skill you will be practising throughout your W100 studies. Dont worry if you didnt get all of the answers to all the exercises in Activity 16. It simply means that you may need to revise those parts of the unit which you had difficulty recalling or understanding. This activity will have provided you with an indicator of which parts you need to revise.
ACTIVITY 17 Parliament and law making (allow 15 minutes)...................................................
DVD To conclude Unit 3 I would now like you to watch Parliament and law making on your DVD. Please run your DVD and find Unit 3 Activity 18. This activity consists of a series of video clips which examine the Hunting Act 2004. This controversial Act outlaws fox hunting, deer hunting, hare hunting, mink hunting and hare coursing. The video will investigate how this law originated, why demands for the law grew and the lengthy process of introducing the Act. It examines the role of pressure groups, Private Members Bills, the role of Government in law making and the balancing of conflicting interests of different groups in society. It illustrates and places your academic studies in a wider
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context. It will help you to consolidate your studies and provide you with an opportunity to check your understanding of this unit. While watching the clips note down the arguments used both for and against the law. Being able to identify the main threads of an argument is an important skill and is one which studying W100 will assist you to develop. Think carefully about what arguments you found most persuasive and why. Was it because they produced evidence to support their claims, their clarity of explanation, the belief with which they were put or simply because they support your own personal viewpoint? Whatever the reason, make a note now so that you can refer back to this in the future when you are asked to construct your own argument either in support of or against something. I have not provided a Comment for this activity, as it is a consolidation of your studies in Unit 3.
Parliamentary sovereignty
Finally we will briefly consider the idea of parliamentary sovereignty and the UK constitution. The UK constitution has been developing for over 700 years and is founded on legislation and convention. The constitution is therefore flexible and can be adapted to meet the changing needs of society. It is not a formal written constitution (unlike the constitutions of Germany or the USA) and is therefore often described as partly written and wholly uncodified. One of the important principles of the UK constitution is the idea of Parliamentary sovereignty. This means that the Westminster Parliament is regarded as the supreme legal authority in the UK. Three things follow from this:
. .
Parliament can create or revoke any law. One Parliament cannot pass law that future Parliaments are not able to then change. The courts cannot overrule legislation.
The concept, whilst remaining important, has in recent times, been limited by a number of Acts that the Westminster Parliament has passed. These Acts have reflected changes in society and a number of political developments in the later parts of the twentieth century. In theory the Acts do not fundamentally undermine the concept as, in theory, Parliament can repeal any Act. The developments which have affected Parliamentary sovereignty include:
.
The entry into the European Union in 1972. You will learn more about this in Unit 5. In entering the EU the UK Parliament agreed to the law making bodies of the EU being able to create laws which were immediately applicable to the UK. The devolution of power to the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly.
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The European Convention on Human Rights and the Human Rights Act 1998. All legislation of the Westminster Parliament is supposed to be compatible with the ECHR. It is not in the UK courts power to overturn the legislation but they can make a declaration of incompatibility. You will learn more about this in later units. The establishment of the UK Supreme Court (which you will learn more about in unit 4).
The rule of law

Another important part of constitutional thinking is the rule of law. In everyday language this is often seen as meaning law and order. The rule of law means that government should be in accordance with certain rules. These include: 1. 2. 3. there should be no arbitrary use of power by the government the discretion of government should be limited the discretion of government should be exercised within limits imposed by law.
The rule of law is regarded as important for a number of reasons: 1. 2. 3. it curbs government power it helps to protect citizens rights it clarifies the position as to when government has the right to interfere with the lives of individuals.
The rule of law recognises that there should be a separation of powers into the functions of legislature, executive and judiciary. This helps prevents power from being concentrated in the hands of one person/ group and this in turn prevents the misuse of the power. The legislature are the law makers. In England and Wales this means the Westminster Parliament. The executive is the power that can make change. At a national level this means the national government. As we learnt earlier this is generally formed by the political party with the most MPs. The term executive also covers local government. The judiciary act as an independent check on the power of the executive. The judiciary also determine matters of law relating to constitutional issues.
SUMMARY OF PART F
In Part F you have: considered the position and role of Parliament learnt about the UK constitution learnt about the rule of law considered some of the advantages and disadvantages of law making by Parliament.
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After studying Unit 3, you should be able to: explain how Acts of the Westminster Parliament originate: party manifestos, national emergency or crisis, Royal Commissions, the Law Commission, Private Members Bills discuss the process by which laws are created and the role of Parliament in this: first reading, second reading, committee stage, report stage, third reading, House of Lords, Royal Assent explain the role of delegated legislation read and discuss an Act of Parliament outline the law making powers of the devolved legislatures and their relationship with the Westminster Parliament explain Parliamentary sovereignty and the rule of law read academic articles and made notes of the important legal principles expressed in these articles summarise ideas expressed in academic articles. Having considered how laws are created by the Westminster Parliament, you will next consider the role of judges in the English legal system. In unit 4 you will first consider the development of common law and its impact before looking at what happens when the words used in legislation are unclear. Unit 4 will also build on the study skills you have been developing in units 1 to 3.
REFERENCES
Greater London Authority (2002) Trafalgar Square and Parliament Square Gardens (Amendment No: 1) Byelaws 2002, [online] The Stationery Office, London, http://www.london.gov.uk/trafalgarsquare/docs/squaresbyelaws.rtf (Accessed 12 September 2006). Muylle, K.J. (2003) Improving the effectiveness of parliamentary legislative procedures, Statute Law Review, Oxford, Oxford University Press. Redman, P. (2001) Writing in Your Own Words, Milton Keynes, The Open University.
W100 Block 1
Unit 4
Making law: (2) common law

Prepared for the W100 team by Carol Howells and Gary Slapper
CONTENTS
Part A Historical development of the common law Part B Precedent Part C Accurate law reporting Part D The need for statutory interpretation Part E The rules of statutory interpretation Part F Common law and statute law Part G Common law and civil law systems Part H Consolidation
142 148 174 180 182 189 192 194

196 198
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After studying Unit 4 you should be able to: understand what is meant by a common law system demonstrate a good knowledge and understanding of what is meant by the common law demonstrate a good knowledge and understanding of how common law is created and changed demonstrate an understanding of how the common law has developed describe what is meant by a system of binding precedent explain the court hierarchy in England and Wales discuss how a precedent can be altered or avoided identify the ratio decidendi and obiter dictum of a court case explain the role of the judiciary in statutory interpretation discuss the rules of statutory interpretation understand the difference between a common law- and civil law-based justice system read and analyse legal materials (cases, statutes and academic commentary).
UNIT 4 MAKING LAW: (2) COMMON LAW
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Introduction
This unit will explore the role of the courts and the judiciary in England and Wales. The English legal system is often referred to as a common law legal system. Before medieval times the law in what we now call Great Britain was largely regional. Different regional kingdoms had different law. Over time, the same law was applied by judges across the single kingdom established after 1066 and so became common to all parts of the country. This was known as the common law. (The common law is a system that is followed in many countries -- Canada, Australia, India, New Zealand and the USA, to name but a few -- but we will concentrate on its development in England and Wales.) This means that many of our primary legal principles have been made and developed by judges (rather than by Parliament) from case to case in what is called a system of precedent, where the lower courts are bound to follow principles established by the higher courts in previous cases. The common law (or judge-made law) is at least as important to us as the law made by Parliament. For example, there is no Act of Parliament telling us that murder is a crime; it is a common law crime which has been refined over the centuries by judges. Another important role played by the judiciary is that of statutory interpretation. Whilst the meaning of law in a statute should be clear and explicit, this is not always achieved. Many cases come before the courts because there is a dispute over the meaning of a word in a statute. For example, the Dangerous Dogs Act 1991 contains the phrase any dog of the type known as the pit bull terrier but it did not say whether type meant the same as breed. In order to assist with the interpretation of statutes the judiciary have developed a number of rules: the literal rule, the golden rule, the mischief rule and the purposive approach. They all take slightly different approaches and the judiciary do not always agree on which approach should be used, so the interpretation of a statute may depend on the judge hearing the case. Once that interpretation has been made, however, it may form a precedent for later cases. Finally, Unit 4 will examine how the common law system works, the basic differences between civil code (continental) systems and common law systems, and the advantages and disadvantages of the common law system that relies heavily on rules and rule making. This unit will set out to explore the role of the judiciary in the law-making process by examining the historical origins of common law, the system of precedent and the rules of statutory interpretation.
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Part A Historical development of the common law

The history of the common law
Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. Before 1066 the English legal system involved a mass of oral customary rules, similar to those you read about in Units 1 and 2, which varied according to region. The law of the Jutes in the south of England, for example, was different from that of the Mercians in the middle of the country. Each county had its own local court dispensing its own justice in accordance with local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to show their guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other test of veracity. If the defendants wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
A map of pre-1066 Britain -- a country with different regional laws
Unlike continental civil law (on which the legal systems of many other European countries are based), the English system does not originate from any particular set of texts. It originates from what has been called tradition expressed in action. It began as customary law used in the Kings court to settle disputes and conflicts which affected the monarch directly. To begin with, these only included the graver crimes which became Pleas of the Crown. After the Norman invasion there were still many different types of court apart from the royal court -- the stannary
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Clerics were part of the Kings royal entourage.
(tin mining) courts of Devon and Cornwall, the courts of the royal hunting forests, for example -- but principally, in potential rivalry with the royal court, were the feudal and manorial courts. It was during Henry IIs reign that the clerics in his court began specialising in legal business and acting in a judicial capacity. In 1154, Henry II institutionalised common law by creating a unified court system common to the country through incorporating and elevating local custom to the national level, ending local control, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate criminal accusations and civil claims. Judges of the realm went on regular journeys throughout the country bringing the Kings justice to every citizen. Their aim was that there should be a common system of law throughout the land, hence the laws became known as the common law. The travelling judges formed a nucleus of judges with national jurisdiction who had no local roots. They were thus much less susceptible to the corruption which had spoilt a similar attempt earlier in the twelfth century in which the royal judges had actually been based in the local communities. It was under Henry II that judges were for the first time sent on circuits, hearing pleas in the major places they visited and taking over the work of the local courts. In time the decisions of the judges were written down. As the decisions of these courts came to be recorded and published, so the practice developed where past decisions (precedents) would be cited in argument before the courts and would be regarded as being of persuasive authority. These practices developed into the common law of England, the law which was available throughout the realm. Perhaps the most convincing of the reasons why Henry II should be regarded as the father of the common law is that he was largely responsible for the regional and itinerant royal justice through which the law truly became common - available to all. It is true that Henry II, who reigned from 1154 to 1189, did much of significance to enhance the development of the common law, for instance by popularising the Kings court. However, we dont know how the Kings court (called the Curia Regis) acted during the Norman period before Henry II, because the earliest documents date from his reign, so it might be presumptuous to credit too much to Henry II. In any event, many factors of a general historical nature contributed to the development of the common law and it might be more meaningful to speak of the various parties which helped nurture the common law from its first green shoots to its full bloom rather than to try to find a father. In the expansion of the Kings legal powers, an important role was played by the clerics. They developed a range of claim forms, called writs, and established procedures which, perhaps significantly, gave them greater importance and provided them with a generous income! Another important development, for example, was the expansion of the Kings Peace. This was the monarchs, as opposed to a local lords, right to deal with any local disorder or crime.
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Another reason the royal courts obtained a lot of business and thus power was the interpretation given to the Statute of Gloucester (1278) by the royal judges. This statute provided that no cases involving an amount of less than 40 shillings should be brought in the royal courts, but that they should be tried before local tribunals. The judges interpreted this to mean that no personal actions to recover a sum greater than 40 shillings could be commenced in the local courts, thus reserving all important cases for themselves. It is relevant here that the judges were anxious to attract litigants because their fees varied with the amount of business done. The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in the principles provided by past court decisions, as contrasted to a system which is based solely on Acts of Parliament. Besides the system of judicial precedents, other characteristics of the system of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the King was above the law; today it means that acts of governmental agencies and ministers can be challenged in the courts.
Use of language
Use of language is extremely important in law. As a law student it is important that you use language in an accurate way. The rest of Part A of this unit will therefore consider the importance of language in law. Box 1 Use of language By now you will have had a few opportunities to use the W100 Glossary to look up the meaning of words you were not sure about. Using language in an accurate way is often very important. Suppose I tell you that recently an organisation produced a report that said most new houses built this century are of a bad quality. You might well think then that what was wrong with the houses included things like defective woodwork, broken tiles, windows that do not shut properly, and sloping floors. If it turned out that what the report was really identifying as bad were features like lack of front gardens (as double driveways were used instead), and lack of visible similarity with older properties in the same district, then you might well say: Thats not bad quality. If anything, it is bad design. It is the design of the houses that the report seems to be attacking, not the quality of the workmanship. Such a misunderstanding stems from the fact that, initially, I said to you that the report claimed houses were of bad quality. This sort of misunderstanding that comes from using language in a careless way happens all the time. In any area where rules operate, it is essential for people to be careful about the way they use language. I should now like you to attempt the first four activities, in which you are asked to use dictionaries. Where we introduce a specialist word or phrase, I will give you a definition of it. However, you might not be sure
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of the meaning of some of the other words in this unit. (The same applies for future units.) If you go into a large bookshop and head for the section called something like Dictionaries and Reference, you will discover a wide range of dictionaries. Some are general and some are specialist reference dictionaries, such as a dictionary of science.
ACTIVITY 1 Using a dictionary (allow 20 minutes) ......................................................................
Why do you use a dictionary? Try to think of at least four occasions when you have referred to one.
Comment
My answers are probably quite similar to yours: (a) to find the meaning of an unfamiliar word (b) to check the meaning of a familiar word and related words (c) to check the spelling of a word (d) to see how to pronounce a word (e) to see what synonyms (different words with very similar meanings) are available; sometimes a thesaurus is used for this purpose (f) to look up a specialist word in a specialist dictionary for a much fuller description (e.g. photosynthesis).
ACTIVITY 2 Which dictionary? (allow 30 minutes).......................................................................
Read the following passage and write down your own definitions of the three words in bold: The earliest dictionaries were word lists inscribed on clay tablets organised like a thesaurus, in the second millennium BCE. Even after the invention of the alphabet later in the same millennium, many centuries passed before alphabetic ordering became a common tool for organising information. The need for a dictionary in which difficult English words were explained by easier English words took shape in the late sixteenth century and, by the eighteenth century, the dictionary was competing with spelling books as a quick look-up source. Monolingual dictionaries, like the Oxford English Dictionary, list and define the words of one language. Bilingual dictionaries offer the equivalent of language A in language B. Pronouncing dictionaries arrived later in the eighteenth century, and speciality dictionaries for technical subjects or controversial usage such as slang in the nineteenth and twentieth centuries; an example of the latter is Fowlers A Dictionary of Modern English Usage. Once you have written down your definitions, look up the three words in a general dictionary and compare your definitions with those from the dictionary.
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Comment
Often the general dictionary will tell you whether the word is a verb, or a noun, or some other part of speech. Some will also give you an example of the word used in a phrase or sentence.
Prefixes and suffixes

Prefixes and suffixes can offer clues to the meaning of words. Prefixes come before the main part of the word: In antenatal, ante is a prefix meaning before and the whole word means before birth. Suffixes are added to the end of the word: -ive, -ing, -ness and -ion are all suffixes and are used to form words such as active, willing, willingness and action.
ACTIVITY 3 Understanding vocabulary (allow 20 minutes).....................................................
See how many words you can find beginning with the following prefixes: (a) sub- (meaning under) (b) super- (meaning above) (c) trans- (meaning across).
Comment
Understanding what the prefix sub- means helps you to tackle an unfamiliar word: knowing that sub means below and marine is something to do with the sea helps you to understand the word submarine. Extending your vocabulary makes your writing more interesting and vivid. A thesaurus (meaning a treasury) gives information about words associated in meaning with the word you are looking for. If you look up aroma in a thesaurus, you might find the following associated words (synonyms): bouquet, fragrance, odour, perfume, redolence, savour, scent, smell, whiff. You may need to check the usage in your writing -- we tend not to say the flower had a delightful whiff! A thesaurus may give words opposite in meaning (antonyms), for example, loveable -- hateful.
ACTIVITY 4 Broadening your vocabulary (allow 20 minutes).................................................
This activity is taken from The effective use of English, Open University Student Toolkit 1.
Try looking up three words you frequently use in writing -- for example, important, relevant, and significant. See if you can find other words that you may prefer to use as alternatives.
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Comment
It really is worthwhile to find the right dictionaries for you: a handy small one like The Pocket Oxford Dictionary for quick reference and a larger one, like The Oxford Advanced Learners Dictionary where words are put into phrases or sentences that help to make usage clear.
SUMMARY OF PART A
In Part A you have learned: that the English legal system is a common law system that this means that much of the law has been developed over time by the courts (and expressed in judicial decisions) how to develop your use of language.
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Part B Precedent
Precedent forms the basis of the common law. The doctrine of binding precedent is known as the doctrine of stare decisis, which is Latin meaning to stand by/adhere to decided cases, i.e. to follow precedent. In other words, once a legal principle is decided in one case it should be followed in similar future cases. The doctrine of binding precedent refers to the fact that, within the hierarchical structure of the courts in England and Wales, the decision of a higher court will be binding on a lower court. In general terms, this means that when judges try cases they will check to see if a similar situation has come before a court previously. If a precedent from a similar situation exists and it was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the legal principle established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it. There are three essential elements to this system of precedent:
. . .
a court hierarchy binding precedent accurate law reporting.
Court hierarchy
A court hierarchy establishes which decisions are binding on which courts. There are some exceptions and complications to what follows but, in general and for most purposes, the higher up a court is in the court hierarchy, the more authoritative its decisions. I mean authoritative in the sense that decisions of the higher courts will bind the lower courts and require the lower courts to apply the same decided principle of law. Activity 5 asks you to explore the court structure in England and Wales further.
ACTIVITY 5 The court structure in England and Wales (allow 20 minutes) ...................
WEB It will be helpful to examine a diagram of the court structure for England and Wales. I would like you to: 1 2 Go to the Unit 4 section of the W100 website. Select the link to The Court Structure in England and Wales.
The diagram you will see is presented by the Courts Service, which is an agency that runs the courts in England and Wales. Take a few moments to consider the diagram of the court structure and familiarise yourself with where the different courts stand. There are about 600 magistrates courts in England and Wales and over 30,000 magistrates dealing with a great many cases every day. There are a huge number of these cases (over one million a year) and they do not usually involve any dispute over what the relevant law means, so these cases do not have to be followed by other magistrates courts in the system of precedent.
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By contrast, the Supreme Court deals only with about 50 cases a year and its decisions bind all other courts. Over the next few weeks, you might want to see if you can find newspaper stories about cases in as many of these courts as you can identify.
Structure of the court system in England and Wales

Supreme Court of the United Kingdom
This is the highest appeal court in the UK and was created by the Constitutional Reform Act 2005. The court became operational on October 1 2009. Generally permission to appeal must be sought before a case can be brought to the UK Supreme Court As the highest court of appeal it hears matters which involve points of law of general public importance and concentrates on cases of the greatest public and constitutional importance. Its decisions are binding on all courts lower in the court hierarchy. In concentrating on cases involving points of law which are of public importance and cases of the greatest public and constitutional importance the court makes decisions which help shape society. The court:
. .
is the final court of appeal for all UK civil cases is the final court of appeal for all criminal cases from England, Wales and Northern Ireland (but not Scotland) is the final arbiter on devolution issues.
The Supreme Court of the United Kingdom
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The court is based in the former Middlesex Guildhall in Parliament Square. Unit 3 discussed the separation of powers into the legislature, executive and judiciary. The courts location in the former Middlesex Guildhall is regarded by many as symbolic as across Parliament Square are the Westminster Parliament and the Treasury building. The judiciary (UK Supreme Court), Westminster Parliament (legislature) and Treasury (part of the executive) now sit around three sides of Parliament Square. At the official opening of the UK Supreme Court, the then Justice Secretary Jack Straw stated:
The opening of the UKs Supreme Court marks the culmination of a long process of separation of the judiciary from the legislature and the executive. The Law Lords have served the United Kingdom and many Commonwealth jurisdictions with great distinction over many decades. But the institution of the Law Lords was opaque, and obscured from public view. In its place we now have this Court - public, accessible, visible, situated in this square at the heart our nations history over a millennium. What wonderful symmetry we now see -- with Parliament on one side, Justice on this ....
You will learn more about the Law Lords later in the unit. When making their decisions the Justices of the UK Supreme Court have to take into account both European Union law and the European Convention on Human Rights. You will learn more about the reasons for this in Unit 5. Activity 6 asks you to read the statutory instrument which lays out the guidance for the fees payable when a case goes to the UK Supreme Court and answer a series of specific questions. It is designed to consolidate your skills of reading a piece of subordinate legislation to identify specific information and to build awareness that fees may be payable when taking a case to court.
ACTIVITY 6 The Supreme Court of the United Kingdom (allow 20 minutes) .................
Please read the Statutory Instrument in Box 2 and answer the following questions: 1. Under what Act was the Statutory Instrument made?
2.
When does the Supreme Court Fees Order 2009 come into force?
3.
What is the fee for filing an application for permission to appeal?
4.
What is the fee for filing an application for a decision of the Registrar to be reviewed?
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Box 2 S T A T U T O R Y I N S T R U M E N T S
2009 NO. 2131 (L. 25)
SUPREME COURT OF THE UNITED KINGDOM
The Supreme Court Fees Order 2009
Made Laid before Parliament Coming into force 30th July 2009 4th August 2009 1st October 2009
The Lord Chancellor, with the agreement of the Treasury, makes the following Order in exercise of the power conferred by section 52 of the Constitutional Reform Act 2005(1). The Lord Chancellor has consulted in accordance with section 52(4) to (6) of that Act. Citation, commencement and interpretation 1.(1) This Order may be cited as the Supreme Court Fees Order 2009 and comes into force on 1st October 2009. (2) In this Order the 2009 Rules means the Supreme Court Rules 2009(2); devolution jurisdiction means proceedings under the Scotland Act 1998(3), the Government of Wales Act 2006(4) or the Northern Ireland Act 1998(5). (3) Subject to paragraph (2), expressions used in this Order which are also used in the 2009 Rules have the same meaning as in those Rules. Fees payable 2.(1) Subject to the following paragraphs, the fees set out in column (2) of the table in Schedule 1 are payable in the Supreme Court in respect of the items described in column (1) of that table. (2) No fee in column (2) is payable in respect of criminal proceedings, other than the fee payable on submitting a claim for costs. (3) In relation to its devolution jurisdiction the fees set out in column (3) of that table are payable in the Supreme Court in respect of the items described in column (1) of that table. Remissions and part remissions 3. Schedule 2 applies for the purpose of ascertaining whether a party is entitled to a remission or part remission of a fee prescribed by this Order. Jack Straw Lord Chancellor 27th July 2009 We agree, Alistair Darling Dave Watts Two of the Lords Commissioners of Her Majestys Treasury 30th July 2009
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Article 2 SCHEDULE 1 Fees payable in the Supreme Court

(1) Number and description of fee 1 Application for permission to appeal 1.1 On filing an application for permission to appeal. 1.2 On filing notice of objection to an application for permission to appeal. 2 Appeals etc 2.1 On filing notice under rule 18(1)(c) of the 2009 Rules of an intention to proceed with an appeal. 2.2 On filing a notice of appeal. 2.3 On filing a reference under the Supreme Courts devolution jurisdiction. No fee is payable where the reference is made by a court. 2.4 On filing notice under rule 21(1) of the 2009 Rules (acknowledgement by respondent). 2.5 On filing a statement of relevant facts and issues and an appendix of essential documents. 3 Procedural applications 3.1 On filing an application for a decision of the Registrar to be reviewed. 3.2 On filing an application for permission to intervene in an appeal. 3.3 On filing any other procedural application. 3.4 On filing notice of objection to a procedural application. 4 Costs 4.1 On submitting a claim for costs. 4.2 On certification by the Registrar under rule 52 of the 2009 Rules of the amount of assessed costs, or on receipt of an order showing the amount. 5 Copying 5.1 On a request for a copy of a document (other than where fee 5.2 or 5.3 applies) (a) for ten pages or less; (b) for each subsequent page. 5.2 On a request for a copy of a document to be provided on a computer disk or in other electronic form, for each such copy. 5.3 On a request for a certified copy of a document. 5 50p 5 5 50p 5 2.5% of the sum claimed 2.5% of the sum allowed 2.5% of the sum claimed 2.5% of the sum allowed 1500 800 350 150 200 200 200 150 320 4820 160 800 800 1600 n/a 400 400 200 800 160 400 160 (2) Amount of fee (3) Amount of fee
20
20
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(1) 2005 c. 4. Back [1] (2) S.I. 2009/1603. Back [2] (3) 1998 c. 46. Back [3] (4) 2006 c. 32. Back [4] (5) 1998 c. 47. Back [5]
Comment
1. The Statutory Instrument was made using power granted by section 52 of the Constitutional Reform Act 2005 to the Lord Chancellor. 2. Section 1(1) of the Supreme Court Fees Order 2009 states that it comes into force on 1 October 2009. 3. The fee for filing an application for permission to appeal is 800 (unless it relates to criminal proceedings) or 400 if the matter relates to a devolution issue. 4. The fee for filing an application for decision of the Registrar to be reviewed is 1500 or 200 if it relates to a devolution issue. When reading the Supreme Court Fees Order you may have noted that there are a number of different fee levels payable and that these are determined by factors such as the nature of the case, whether the case involves a criminal or civil matter (you will learn more about the distinction between criminal and civil cases in later units) or a devolution issue. Court fees may be payable for a wide range of applications, including, as you have seen here, for copies of documents. Whilst fees may be payable for certain applications to appeal to the UK Supreme Court judgments issued by UK Supreme Court are available to view for free at http://www.supremecourt.gov.uk. The rest of this unit and following Blocks will make reference to the House of Lords. Until 1 October 2009 the House of Lords had been the highest appeal court in England and Wales. The powers and rules of the former House of Lords therefore remain relevant to your W100 studies and you will shortly learn more about them.
House of Lords
Until the creation of the UK Supreme Court, the House of Lords had been the most authoritative court in England and Wales. You learnt about the legislative function of The House of Lords in Unit 3 but it also had a judicial function as the highest appeal court in England and Wales i.e. the House of Lords had both a legislative and judicial function. The reasons for this are historical. Both the House of Lords and House of Commons were originally part of the High Court of Parliament and had judicial as well as legislative functions. However, the role of the House of Commons evolved to exclude any judicial function (it has not heard judicial business since 1322). The House of Lords, until the establishment
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of the UK Supreme Court, did not relinquish its judicial function and the judicial committee of the House of Lords continued to act as the highest court of appeal in England and Wales until 1 October 2010. Decisions of the House of Lords were binding on all other courts in the legal system, except the House of Lords itself. The House of Lords used to be bound by its own previous decisions until it changed this practice in 1966. The rationale for the old practice was that decisions of the highest court in the land should be final so that there would be certainty in the law and finality in litigation. This practice changed however to enable the House of Lords to adapt the law to meet changing social conditions and to pay attention to the decisions of superior courts in the Commonwealth. The possibility of the House of Lords changing its previous decisions was a recognition that law, whether expressed in statutes or cases, is a living and changing institution which must adapt to the circumstances to which it applies if it is to retain practical relevance. Box 3 Understanding the importance of thinking To have come this far in your studies of W100, you will have done a great deal of thinking. Thinking is something we do all the time. It is a vital part of life. However, although we are all taught lots of things in school, it is not that common to be trained in the art of thinking. Before we proceed further, it is worth pausing to consider a few important aspects of thinking. Activities 6 and 7 will help you improve your thinking. I would like to start by asking you to consider some fundamental questions about education.
ACTIVITY 7 The importance of thinking skills (allow 30 minutes)......................................

Note down your responses to the following questions: 1 Why have you become a university student?
What do you see as the purpose of higher education?
How do you think your answers to the previous question would differ from answers that the Government, employers or university teaching staff might give?
Comment
There are, of course, no set answers to questions of this sort. People and organisations have their own reasons and views. People give a range of reasons for becoming Open University students. For example, they may want to improve job prospects, to explore and gain knowledge of a subject area of interest, to develop themselves generally, or to have
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contact with others. Perhaps your responses to the second question were the same as to the first. Or maybe you mentioned more general skills and attributes that can be gained, such as confidence, communication or interpersonal skills. Did you include extending or developing thinking skills in any of your responses? If you did, how important was this in relation to other reasons you listed for study and higher education? The ability to think, particularly the ability to think critically, is often cited as one of the main purposes of education by those involved in delivering higher education today. Look at the following list and compare it with your answers. Traditional aims of higher education: adopting a distinctive way of thinking about concepts, evidence and theories taking a distanced, critical stance towards subject matter, assumptions and explanations tackling issues systematically, logically and effectively examining the adequacy of evidence and checking alternative interpretations of it demonstrating a thorough understanding of complex, abstract concepts within the discipline writing clearly and cogently, following appropriate academic styles and conventions being able to set and solve problems by applying concepts and techniques appropriately.
ACTIVITY 8 Thinking skills in education today (allow 10 minutes) ....................................
Can you suggest why thinking skills are considered to be so important in education today?
Comment
Education can be seen as the main way of developing individuals and society. There are a range of possible reasons you might have suggested for thinking being an important area to develop. Perhaps your reasons related to economic factors, or perhaps social, cultural or educational factors. A strong argument these days is that knowledge is central to our information age and movement towards a knowledge-based economy. The creation and use of knowledge depends on our ability to think. Good thinking could be viewed as empowering for individuals and society. Education can be seen as a process of joining a community in a subject. So you may become, for example, a social scientist or mathematician by learning the thinking styles, language and other characteristics of that community. Your reasons for studying and what you see as the purpose of higher education will influence your thinking, styles of study and other aspects of learning.
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The styling of legal cases

Activity 9 asks you to read Reading 8 -- a short extract from The English Legal System (Slapper and Kelly, 2003) -- and identify what you consider are the advantages of allowing the House of Lords to overrule its previous decisions. This extract provides you with examples of instances when the House of Lords has not followed its own previous decisions. Whilst the reading discusses the House of Lords it is also applicable to the UK Supreme Court which is also not bound by its previous decisions. This may be the first time you have read the name of a legal case. Case names are written in a particular style. For example, the first case referred to in Reading 8 is Conway v Rimmer [1968] AC 910. The v in the middle stands for versus, which is Latin for against. Either side of it are the names of the parties. The first name is the person or organisation that brought the case. If the case is a civil case, that person is called the claimant (formerly called the plaintiff) and the other party is called the defendant. In a criminal case, the person bringing the case is called the prosecutor, and the other person is called the defendant. If the case is R v Smith, the R stands for Rex (Latin for King) or Regina (Latin for Queen) and shows that the case is a criminal prosecution being brought by the Crown, that is, the state. The 1968 refers to the year the case was reported, and we will be examining the issue of case reporting later in this unit. As recommended in previous units, you should read Reading 8 through at least twice. The first time you should try to get an overall picture of what the Reading is saying. You should then reread the question and on the second reading you should take some notes and extract the relevant information and arguments from the Reading in order to answer the question.
ACTIVITY 9 Allowing the House of Lords to overrule its previous decisions (allow 45 minutes)................................................................................................................
Please read Reading 8: Cases of the House of Lords overruling previous decisions and write a short paragraph (about 50 words) outlining what you consider to be the advantages of allowing the House of Lords to overrule its previous decisions.
Comment
This is an example of an answer which does not really give enough detail:
The House of Lords must be able to let the law keep pace with social developments. All the cases examined in this Reading illustrate the necessity for the House of Lords being able to overrule its previous decisions.
[38 words] You will probably have noted other advantages.
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It is important for the law to be clear and certain so that no one can be surprised when it is enforced
You may be interested to learn that the final case to be heard by the House of Lords was that of Debbie Purdy. The issues raised by this case were introduced in Unit 2 and you will learn more about those issues in Unit 6.
The Court of Appeal

The Court of Appeal is bound by previous decisions of the House of Lords and by decisions of the UK Supreme Court. The Court of Appeal generally is also bound by its own previous decisions. There are, however, a number of exceptions to this general rule. Lord Greene MR listed these exceptions in Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293. MR means Master of the Rolls. This is the judge who is head of the Court of Appeal Civil Division. The odd name comes from the Middle Ages when a senior clerk in the Chancellors office was in charge of the Chancellors Roll, i.e. written material. A good source of information about legal terminology is on the internet at the official Court Service website. You will find a free glossary of legal terms there. It is not important for you to read this case at this point. What is important is that you understand the exceptions that arise, which are:
.
Where there is a conflict between two previous decisions of the Court of Appeal. In this situation, the latest court must decide which decision to follow and which to overrule. One reason why there can be two earlier Court of Appeal decisions that apparently say different things about the same law is that the second of the two cases might
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simply have been unaware of the first one when it gave its
pronouncement.
Where a previous decision of the Court of Appeal has been overruled, either expressly or impliedly, by the House of Lords. An express overruling would obviously occur where the House of Lords actually considered the Court of Appeal precedent, but it is equally possible that a precedent from the Court of Appeal could be overruled without the actual case being cited and considered. In this situation, the Court of Appeal, in line with the normal rules of precedent, is required to follow the decision of the House of Lords.
Where the previous decision was given per incuriam (Latin for through an error). In other words, that previous decision was taken in ignorance of some authority, either statutory or case law, that would have led to a different conclusion. In this situation, the later court can ignore the previous decision in question. The missing authority must be a sufficiently important one that it would have led to a different conclusion; the mere possibility is not enough. There are so many case authorities that it is simply not possible to cite all of them in any one case. However, it is the absence of any consideration of the essential authorities that renders a decision per incuriam. Instances of decisions being ignored on the basis of a ruling of per incuriam are very rare.
The European Communities Act 1972 gives the Court of Appeal grounds for ignoring any of its previous decisions which conflict with subsequent decisions of the Court of Justice of the European Union (you will learn more about this court in unit 5). This effectively fits the Court of Justice of the European Union into the traditional hierarchical structure of precedence as the court of last resort in relation to European Union law matters.
Section 2 of the Human Rights Act 1998 requires all courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. The Human Rights Act 1998 renders decisions of the European Court of Human Rights directly binding on the United Kingdom courts. This means that the decisions of the European Court of Human Rights now become precedents for the United Kingdom courts to follow. Any domestic precedent which is in conflict with a decision of the European Court of Human Rights is now invalidated and should not be followed.
Divisional courts
The legal terminology for these courts is not very straightforward! The High Court is divided into three divisions, each one dealing with different sorts of cases -- the Family Division, the Chancery Division (that deals with property and money cases) and the Queens Bench Division (that deals with cases involving things like contracts and negligence). Each of these divisions, however, also has the capacity to act as a court to hear appeals from lower courts and, when the judges
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sit in that capacity, the court is called a Divisional Court of the High Court. The Divisional Courts hear appeals from courts and tribunals below them in the hierarchy. They are bound by the doctrine of stare decisis in the normal way and must follow decisions of the House of Lords and the Court of Appeal. In turn, they bind the courts below them in the hierarchy, including the ordinary High Court cases. The High Court is also normally bound by its own previous decisions although, in civil cases, it may make use of the exceptions open to the Court of Appeal in Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293. In criminal appeal cases the Queens Bench Divisional Court may refuse to follow its own earlier decisions where it feels the earlier decision to have been made wrongly.
Judges have a lot of opportunity to develop the common law
The High Court

The High Court is also bound by the decisions of superior courts. Decisions by individual High Court judges are binding on courts inferior in the hierarchy, but such decisions are not binding on other High Court judges, although they are of strong persuasive authority and tend to be followed in practice. It is possible, however, for High Court judges to disagree and for them to reach different conclusions as to the law in a particular area. The question then becomes -- how is a later High Court judge to select which precedent to follow? It is usually accepted, although it is not a rule of law, that where the later decision has actually considered the previous one and has given a reason for not following it, then that is the judgment which later High Court judges should follow. Conflicting decisions at the level of the High Court can, of course, be authoritatively decided by reference upwards to the Court of Appeal and then, if necessary, to the UK Supreme Court, but when the cost of such appeals is borne in mind, it is apparent why, even on economic grounds alone, it is important for High Court judges not to treat their discretion as a licence to destabilise the law in a given area.
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In relation to conflicting judgments at the level of the Court of Appeal, the High Court judge is required to follow the later decision. Crown Courts, County Courts and magistrates courts cannot create precedent and their decisions can never amount to more than persuasive authority. Box 4 Crown Courts, County Courts and magistrates courts The Crown Court tries more serious criminal cases, as well as hearing appeals from the magistrates courts. Crown Courts sit in over 90 permanent centres throughout England and Wales, each centre being designated as first, second or third tier, reflecting the seriousness of the offences tried. County and district boundaries have no statutory significance in determining where a case should be heard. Most Crown Court cases are heard at the centre most convenient to the magistrates court which committed the case for trial. The County Court deals primarily with civil law, so it doesnt fight crime in the same way as the criminal courts in England and Wales. Despite their name, the County Courts do not fit within county boundaries in England and Wales and in fact the 230 County Courts are scattered around the towns and cities that require their services. All property cases up to 30,000, all personal injury claims less than 50,000, and bankruptcy matters are all carried out by the district judge at the County Court. Approximately 96 per cent of criminal cases are dealt with at a magistrates court. The case may be tried either by at least two, but usually three, lay magistrates, or by a district judge who sits alone. Until August 2000 these district judges were known as stipendiary magistrates, but were renamed in order to recognise them as members of the professional judiciary, as they are legally qualified and salaried. Activity 10 asks you to use your knowledge from Reading 9, what you have studied in Unit 4 so far and your own everyday experiences to summarise the principal advantages and disadvantages of the doctrine of precedent. You may find some of the language of the Reading a little difficult, but dont worry. It is not necessary for you to understand all that is being said, you simply have to identify and summarise the main good and bad points of the doctrine of precedent.
ACTIVITY 10 The advantages and disadvantages of the doctrine of precedent (allow 45 minutes)................................................................................................................
Please read Reading 9: English legal system in context and answer the following question: What do you consider to be the advantages and disadvantages of the doctrine of precedent?
Comment
Did you consider the following advantages and disadvantages?
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Advantages: Consistency and fairness in the law -- This refers to the fact that cases are decided on a like-for-like basis and are not subject to the whim of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions taken in particular cases. Certainty -- Lawyers and their clients are able to predict what the outcome of a particular legal question is likely to be in the light of previous judicial decisions. Also, once the legal rule has been established in one case, individuals can orient their behaviour with regard to that rule relatively secure in the knowledge that it will not be changed by some later court. Efficiency -- This refers to the fact that it saves the time of the judiciary, lawyers and their clients if cases do not have to be re-argued. For potential litigants, it saves them money in court expenses because they can apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous cases on the same or similar points. Flexibility -- This refers to the various mechanisms, by means of which the judges can manipulate the common law and thus allow the development of the law in particular areas without waiting for Parliament to enact legislation. Disadvantages: Uncertainty -- This refers to the fact that the degree of certainty presented by the doctrine of stare decisis is undermined by the huge number of cases that have been reported and can be cited as authorities. With so many rules and slightly different interpretations of them in thousands of cases, it is not always easy to see which interpretation a court will give the law in your case. This uncertainty is increased by the ability of the judiciary to select which authority to follow through use of the mechanism of distinguishing cases on their facts. You will see some examples of the uncertainty which can be generated by case law when you attempt Activity 11. Fixity -- This refers to the possibility that the law in relation to any particular area may become inflexible on the basis of an unjust precedent, with the consequence that previous injustices are perpetuated. An example of this is the long delay before the courts were willing to change the law and say that marital rape was a crime. Since the 1970s, arguments had been put to the courts on behalf of women raped by their husbands but the law was only amended by the House of Lords in 1992. We will examine this House of Lords judgment later in the unit. Unconstitutionality -- This is a fundamental question that refers to the fact that the judiciary are overstepping their theoretical constitutional role by actually making law rather than restricting themselves to the role of simply applying it. If they are not elected as law-makers then why should they be allowed to make law?
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You may have thought of some other disadvantages. The system of precedent can be slow. An area of law may be unclear or in need of reform but this cannot be done until the case is heard. The Court of Appeal has to follow its own previous decisions but during its existence only about 60 cases went to the House of Lords every year. It is expected that the UK Supreme Court will hear a similar number of cases each year. This may result in a long wait for a suitable case to be appealed as far as The UK Supreme Court. The system also encourages complexity. Even with online legal databases it is not easy to find all the relevant case law. The judgment in a case may be long with no clear distinction between comments, the ratio and obiter. We will go on to explain these terms more fully. Reading 10 is an article which highlights the uncertainty of the law in relation to the citizens right to protect their own property. The article discusses the case of Tony Martin and other court judgments. Tony Martin was a Norfolk farmer who shot and killed a trespasser on his property. As you are reading Reading 10 make a note of the inconsistent decisions which the courts have arrived at on this single issue of the right to protect property.
ACTIVITY 11 Castles built on law (allow 30 minutes) ...................................................................
Please read Reading 10: Castles built on law.
Comment
Reading 10 provides a very good illustration of why certainty is an important feature of the legal system. The law in this area has become rather confused. In 1996, the Court of Appeal decided that a trespasser engaged in criminal activities can claim compensation for injuries suffered if the force used against him or her exceeds reasonable limits. Tony Martin was convicted of murdering a young man who had broken into his house after dark. The court decision in the case of Tony Martin contrasts with other court decisions. As you will have read, between 1300 and 1348 there were frequent acquittals where householders had killed housebreakers.
There are so many thousands of reported legal cases in the law library that operating the doctrine of precedent can be difficult.
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Reading 10 also refers to the Peterborough Crown Court case in which a burglar who was beaten with a baseball bat was said by a judge to have got what he deserved. Whatever your opinion about which view is correct, I think you will agree that the law in this area is very uncertain and inconsistent.
Summary of the system of precedent

The basis of the system of precedent is the principle of stare decisis and this requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues. For example:
.
Decisions of the UK Supreme Court are binding on all other courts in the legal system, except the UK Supreme Court itself. The Court of Appeal is bound by previous decisions of the UK Supreme Court (and those made by the House of Lords before the UK Supreme Court was established). The Court of Appeal generally is also bound by its own previous decisions, with the following exceptions: 1 2 3 where there is a conflict between two previous decisions of the Court of Appeal where a previous decision of the Court of Appeal has been overruled by the House of Lords where the previous decision was taken in ignorance of some statutory or case law authority that would have led to a different conclusion where the previous decision is inconsistent with European Community law or with a later decision of the Court of Justice of the European Union Section 2 of the Human Rights Act 1998 requires all courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.
Divisional Courts must follow decisions of the Supreme Court and the Court of Appeal and are also normally bound by their own previous decisions. The High Court is also bound by the decisions of superior courts. Decisions by individual High Court judges are binding on courts inferior in the hierarchy.
Remember that throughout your studies you are also using reading and note-taking skills. Table 1 has been provided to illustrate how this summary could be expressed in an alternative format. You need to find a note-taking style which suits you.
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Table 1 The system of precedent Court Court of Justice of the European Union European Court of Human Rights Other courts it binds All other courts on matters of EU law All other courts on human rights issues (Section 2 1998 Human Rights Act) All other courts in the English legal system Other courts it must follow None
None
UK Supreme Court
Court of Justice of the European Union on EU law European Court of Human Rights on human rights issues
Court of Appeal
Itself (subject to some exceptions, e.g. Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293) Divisional Courts All other lower courts
Court of Justice of the European Union, European Court of Human Rights on human rights issues and UK Supreme Court Court of Justice of the European Union, European Court of Human Rights, UK Supreme Court and Court of Appeal Court of Justice of the European Union, European Court of Human Rights, UK Supreme Court, Court of Appeal, Divisional Courts Court of Justice of the European Union, European Court of Human Rights, UK supreme Court, Court of Appeal, Divisional Courts, High Court, i.e. all higher courts
Divisional Courts
Normally have to follow their own previous decisions High Court All other lower courts
High Court
County Courts Magistrates courts
Crown Court
Possibly magistrates courts
Note that both the County Court and magistrates courts do not create precedent. They are bound by the decisions of all higher courts. In Unit 3 you learned how to read an Act of Parliament. In Activity 12 I would like to show you how to read a law case.
ACTIVITY 12 Reading a case (allow 45 minutes) .............................................................................
WEB Go to the Unit 4 section of the website and locate Activity 12. You should now be looking at the following case: A v Essex County Council.
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Take a few moments to look at the case report. You will see at the top of the case the citation [2004] 1 FLR. This shows that the report is from the first volume of the Family Law Reports for 2004. (You will be examining the conventions of law reporting in more detail later in this unit.) The next thing you will see is the name of the case: A v Essex County Council. A refers to the person or people who brought the case -- in this case the adoptive parents of a young boy. In order to protect his anonymity the courts have called the parents A so that the boy will not be easily identifiable. A are bringing a case against Essex County Council. Beneath the name of the case is the citation [2003] EWCA Civ 1848. This is known as the neutral citation. (You will learn more about the neutral citation later in this unit.) Below this are details of the court and the judges who decided the case. Then you will see what is called the headnote, which has a summary of the facts of the case, followed by a statement of what the court decided. The barrister who reported the case, whose name is given at the end of the report, writes all of this. Headnotes are a very useful summary of the case but it is not unknown for headnotes to miss an essential point. Therefore law students should always read cases in their entirety (although that is not necessary for this activity). Further down is a list of statutes and a list of previous cases which were referred to in the judgment. The length of these lists will vary from case to case and may be long or short depending on the issues being addressed. Then the judgment itself starts. There is no need for you to read the judgment. The object of this activity was to show you the physical layout of a law case. You may find it interesting to read the case if you wish. One tip for your studies is to use a highlighter pen to highlight every case name/statute you come across in your W100 studies. This will make them easier to find when reviewing a unit and also assist with your note taking. Having learnt how to read a case by looking at a particular case you are now going to look at some Court of Appeal decisions to gain an appreciation of the range of issues that the Court deals with.
Judgment (rather than judgement) isnt a misspelling; it refers to legal decisions or verdicts.
ACTIVITY 13 Court of Appeal Decisions (allow 20 minutes) ....................................................
WEB In this activity you should go to both the Civil and Criminal divisions of the Court of Appeal. 1 2 Go to the Unit 4 section of the W100 website. Select the links to England and Wales Court of Appeal (Criminal Division) Decisions and England and Wales Court of Appeal (Civil Division) Decisions. In both instances you will be provided with an opportunity to browse the years.
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Click on any year to find the cases listed month by month, and then click on some of the cases to get an idea of the range of issues dealt with by the court.
Comment
From Activity 13 you will have seen the broad range of issues that the court deals with in both of its divisions. You will remember that in its decisions the Court of Appeal binds itself (subject to some exceptions), the Divisional Courts and all lower courts. The question then arises, which part of the judgment is binding and sets a precedent? This is what we shall examine next.
Binding precedent
Not everything in a court case sets a precedent. The contents of a case report can be divided into two categories: 1 The reason for the decision -- ratio decidendi The ratio decidendi of a case is not the actual decision, like guilty or the defendant is liable to pay compensation. The precedent is set by the rule of law used by the judge or judges in deciding the legal problem raised by the facts of the case. This rule, which is an abstraction from the facts of the case, is known as the ratio decidendi of the case (see Box 4). Box 5 Example of ratio decidendi A couple leave their dog in their car while they pop out to a shop. For a reason that cannot later be discovered, the dog gets excited and starts jumping around. There is no issue that the dog was suffering from dehydration or being overheated. The dog paws the rear glass window. It shatters and a shard of glass flies off and, unfortunately, into the eye of a passer-by, who later has to have his eye removed. Are the couple liable to pay compensation for the mans eye? The court said no. People should take care to guard against realistic possibilities. They should only be liable, the court said, if they caused others harm by doing something that could be reasonably foreseen as likely to cause harm. We are not liable if we fail to guard against fantastic possibilities that happen to occur. The accident in this case, the judges ruled, was just such a fantastic possibility. The couple therefore did not have to pay compensation. The reason for the decision in this case, the ratio decidendi, can therefore be expressed simply as: where harm was caused to a pedestrian by a dog smashing the window of the car that it was in, and where this sort of incident was unforeseeable, the defendants were not liable.
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Obiter dictum In a case judgment, any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous. Any such statement is referred to as obiter dictum. This is Latin for a word said while travelling or along the way (obiter dicta in the plural). Although obiter dicta statements do not form part of the binding precedent, they are persuasive authority and can be taken into consideration in later cases, if the judge in the later case considers it appropriate to do so (see Box 6). Box 6 Example of obiter dictum In the case above about the dog and the man injured by the shard of glass, one judge said that if you knew your dog had an excitable tendency or went mad in cars, then you would be liable if it caused someone harm in a predictable way (not in the freakish broken window scenario) and would have to pay compensation. The judge did not need to rule on that in the dog-and-the-car-window case, because the couple did not have a dog with a known excitable temperament. His observations were, therefore, made by the way and thus can be referred to as an obiter dictum. In a future case involving a dog known by its owners to be excitable, a lawyer for an injured claimant could refer back to the judges obiter dictum in the car window case and use it as persuasive but not binding authority.
The division of cases into these two distinct parts is a theoretical procedure. Unfortunately, judges do not actually separate their judgments into the two clearly defined categories and it is up to the person reading the case to determine what the ratio is. This is a bit like listening to, or reading, a speech made by a politician or a sports team manager and trying to identify what the most important part of the speech was. In some cases this is no easy matter, and it may be made even more difficult in cases where there are three or five judges and where each of the judges delivers their own lengthy judgment so there is no clear single ratio. In some cases it may be difficult to ascertain precisely the ratio of the case and to distinguish the ratio from the obiter dicta. Activity 14 provides you with two illustrative examples of how to identify the ratio decidendi of court judgments. These examples highlight that this is a complex task and there is no one method of approach to determining the ratio.
ACTIVITY 14 Identifying the ratio decidendi (allow 45 minutes)............................................
Please read Reading 11: Ratio decidendi and obiter dictum, which examines two law cases, Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 and Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907. It outlines the facts of these cases and identifies what the ratio decidendi of each case is. This Reading is longer than previous Readings in this unit, but the same advice applies as for all of them.
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You should read it through once to get an overall understanding of the piece. You should then read it a second time and take notes in order to clarify for yourself what is being said. You may find that you need to read through it a third or fourth time if necessary. When you have studied Reading 11, you should have a good idea of what is meant by the ratio decidendi of a case. Having seen examples of how ratio and obiter are determined in Reading 11, Activity 15 requires you to read Reading 12 and to summarise the ratio and the obiter of the case in question. Reading 12 discusses a dispute which arose about a television advertisement for the alcoholic drink Guinness. The TV advertisement, Anticipation featured a dance routine -- you may have seen the advertisement which appeared on TV from 1993 to 1994. The dispute concerned whether Guinness had copied the dance from a short film called Joy. As Open University students you will be aware that it is a serious matter if students in an exam were to copy each other, or if a student was to copy another students TMA or pass anothers work off as their own. So you can see why the makers of Joy were so upset at the thought that their work had been copied. Reading 12 is shorter and more straightforward than Reading 11. You should still read the article at least twice and attempt the exercise that follows.
ACTIVITY 15 Pure genius or plagiarism? (allow 25 minutes)....................................................
Please read Reading 12: Pure genius or plagiarism? and attempt the following exercise: Summarise the ratio decidendi and obiter dicta in the High Court case for breach of copyright brought by the commercials director Mehdi Norowzian against Guinness and Arks.
c The GUINNESS word is a trademark. O Guinness & Co. Practically every aspect of what we do can be the subject of legal disputes. When does a dance become a drama?
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Comment
Mr Justice Rattee dismissed the copyright infringement action. This was the decision made in this case. Ratio decidendi He decided that although Joy was a point of reference for Anticipation, it was not a copy of it. Obiter dicta Mr Justice Rattee focused on what was being filmed and decided that such a frenetic dance was not a drama. The judge stated that Joy was not a dramatic work, and therefore was outside the protection of the Copyright, Designs and Patents Act 1988. Please note that this case was subsequently appealed to the Court of
Appeal.
As has been noted previously, in delivering judgments in cases, judges
do not separate and highlight the ratio decidendi from the rest of their
judgment and this can lead to a lack of certainty in determining the
ratio decidendi. This uncertainty is compounded by the fact that reports
of decisions in cases may run to considerable length, and where there
are a number of separate judgments, although the judges involved may
agree on the decision of a case, they may not agree on the legal basis of
the decision reached. It is for the judge deciding the case in which a
precedent has been cited to determine the ratio of the authority and so
work out whether he or she is bound by the earlier case or not. This
factor provides later courts with a considerable degree of discretion in
choosing whether to be bound by a particular authority.
The main mechanisms through which judges alter or avoid precedents
are:
. .
overruling
distinguishing.
Overruling
Overruling is the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case. It is strange that, within the system of stare decisis, precedents gain increased authority with the passage of time. As a consequence, courts tend to be reluctant to overrule longstanding authorities even though they may no longer accurately reflect contemporary practices or morals. While old principles are not usually good in dentistry or computer science, they are often seen that way in law! In addition to the wish to maintain a high degree of certainty in the law, the main reason for judicial reluctance to overrule old decisions would appear to be the fact that overruling operates retrospectively, with the effect that the principle of law being overruled is held never to have been law. It may even lead to the imposition of criminal liability on previously lawful behaviour. It has to be emphasised, however, that the courts will not
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shrink from overruling authorities where they see them as no longer representing an appropriate statement of law. The decision in R v R [1992] 1 AC 599 to recognise the possibility of rape within marriage may be seen as an example of this, although, even here, the House of Lords felt constrained to state that they were not actually altering the law, but were merely removing a misconception as to the true meaning and effect of the law. As this suggests, the courts are rarely ready to challenge the law making rights of Parliament in an open way. An example of this reluctance can be seen in the House of Lords decision in Curry v Director of Public Prosecutions [1994] 144 NLJ 498. There used to be a presumption that children between the ages of 10 and 14 who were charged with a criminal offence did not know that what they did was seriously wrong and that the prosecution had to provide evidence to rebut that presumption (this presumption was known as the doctrine of doli incapax, meaning incapable of a wrong). In an appeal involving two young boys who had been convicted of a crime involving a motorbike, Lord Justice Mann justified reversing the presumption by claiming that, although it had often been assumed to be the law, it had never actually been specifically considered by earlier courts. The presumption of doli incapax was abolished in England and Wales by section 34 of the Crime and Disorder Act 1998. Prior to the Act, for a child aged over 10 but under 14 to be convicted of a criminal offence in England and Wales, the prosecution had to rebut the presumption of doli incapax as well as prove the offence. This meant that they must prove beyond reasonable doubt not only that the child did the act in question, but that they knew what they were doing was seriously wrong, rather than just naughty. To rebut the presumption, the prosecution had to show that the young person knew the act in question was seriously wrong. Since the 1998 Act, the prosecution no longer have to prove this. We will examine doli incapax further in Unit 15. On such reasoning, he felt justified in departing from previous decisions of the Court of Appeal which otherwise would have bound him. The House of Lords subsequently restored the previous presumption and said that in order to get convictions, the prosecution in any case would have to rebut the presumption that 10--14-year-olds dont know the difference between right and wrong. Although the Law Lords recognised the problem, and indeed appeared to sympathise with Mann LJs view, they nonetheless thought that such a significant change was a matter for parliamentary action rather than judicial intervention. Overruling should not be confused with reversing, which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.
Distinguishing
In comparison with the mechanism of overruling, which is rarely used, the main device for avoiding binding precedent is that of distinguishing.
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As has been previously stated, the ratio decidendi of any case is based upon the material facts of the case. This opens up the possibility that a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.
Summary of binding precedent

In this section you have seen:
. .
that not everything in a court case sets a precedent the difference between ratio decidendi (the statement of legal principles material to the decision) and obiter dictum (the discussion of legal principles raised in argument but not material to the decision) that the binding element in a future case is the ratio and that, while the obiter will never be binding, it may have strong persuasive force the situations in which judges do not have to follow previous decisions: --overruling a previous case distinguishing a previous case.
Table 2 Summary of binding precedent Legal term ratio decidendi Definition The reason for deciding Comment The part of the judgment which creates law -- the binding precedent Other parts of the judgment. These may be persuasive but do not create law
obiter dicta
Things said along the way
The decision Overruling
The outcome of the case for the parties involved A decision which states that a legal rule in an earlier case is wrong A method of avoiding a previous decision because the facts in the present case are different R v R [1992] 1 AC 599 is an example
Distinguishing
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ACTIVITY 16 The courts and judicial precedent (allow 40 minutes) .....................................
WEB
This activity will enable you to check your knowledge and understanding of the court hierarchy and system of precedent. Future units will assume a knowledge of these areas, so it is important that you have a thorough understanding of them. Once again I have provided a blank Comment section so you can make notes as you complete the activity. This activity, which is in three parts, is in the Unit 4 section of the W100 website under Activity 16.
Comment
General points about the judiciary Courts exist to provide a means of resolving disputes between individuals or individuals and the state and judges act as arbiters of those disputes. As you will learn in later units judges make their decisions based on the law and the facts of cases. Judges also, as you learnt in the previous unit, play an important role in the British constitution in their role as upholders of the law. The judiciary have a number of characteristics and these are reflected in the role they undertake in the justice system. First the they are independent. This means that they should have no interest in the outcome of any case they hear and they should have no connection to anyone in the case. Second, they listen to all the parties (whether claimant, defendant or prosecutor) in a case with equal attention giving impartial decisions based on the law and facts. When judges are appointed they swear an oath to do right to all manner of persons without fear or favour, affection or ill will. Judges have the responsibility to ensure that the law is obeyed, they interpret the law and when there is a dispute they must decide the outcome. They have the power to impose a wide range of sanctions on those who break the law, from monetary compensation to taking away a persons liberty by sending them to prison.
SUMMARY OF PART B
In Part B you have learned that: the system of precedent requires later courts to use the same reasoning as an earlier court, where two cases raise the same legal issues the contents of a case report can be divided into two categories:
.
ratio decidendi -- the statement of legal principles essential to the decision. The ratio is the binding element of the case obiter dictum -- any statement of law that is not an essential part of the judgment. The obiter is never binding, but can be
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persuasive authority which can be taken into consideration in later cases the main ways in which judges can alter or avoid precedents are:
.
overruling -- where the court sets aside a legal ruling established in a previous case distinguishing -- if the court regards the facts of the current case as materially different from previous decisions, then the court will not apply the precedent, as it will not be relevant to the current case.
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Part C Accurate law reporting
You cannot cite precedents to a judge and ask him or her to follow them if you dont have a good record of all the earlier cases and how they were decided. The operation of binding precedent, therefore, relies on the existence of an extensive reporting service to provide access to previous judicial decisions. This section will briefly set out where you might locate case reports on particular areas of the law. This is of particular importance to advocates (usually barristers but sometimes solicitors), who are under a duty to bring all relevant case authority to the attention of the court, whether it advances their case or not, so they are expected to make themselves thoroughly aware of the current reports. It will also be useful to you as a W100 student. Year Books (1275--1535) The earliest reports of particular cases appeared between 1275 and 1535 in what are known as the Year Books. These reports are really of historical interest as they were originally written in a language known as Law French. As with the common law generally, the focus was on procedural matters and forms of pleading. Those who are engaged in the study of legal history will find the most important cases translated and collected together in the Seldon Society series or the Rolls series but, in the main, they represent a backwater little navigated by those whose concern is modern law. Private reports (1535--1865) These reports bear the name they do because they were produced by private individuals and are cited by the name of the person who collected them. They were, however, published commercially for public reference. An ongoing problem with the private reports relates to their accuracy. At best, it can be said that some were better, that is, more accurate, than others. Of particular importance among the earlier reports were those of Plowden, Coke and Burrows, but there are many other reports that are of equal standing in their own right with full and accurate reports of the cases submitted by counsel together with the reason for the decisions in the particular case. A substantial number of the private reports have been collated and published as the English Reports. The series comprises 178 large volumes -- 176 volumes being reports and the last 2 volumes providing an index of all the cases reported. In addition, the reports are accompanied by a useful wallchart to assist location of individual reports. Modern reports (1865 to present) As you have seen, the private reports were not without their problems. In addition to, at least occasional, inaccuracy, their publication could be both slow and expensive. This situation was at last remedied by the establishment of the Council for Law Reporting in 1865, subsequently registered as a corporate body in 1870 under the name of the Incorporated Council of Law Reporting for England and Wales. The
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council was established under the auspices of the Inns of Court and the Law Society with the aim of producing quicker, cheaper and more accurate reports than had been produced previously. The Law Reports These are the case reports produced by the Incorporated Council of Law Reporting for England and Wales. They have the distinct advantage of containing summaries of counsels arguments and, perhaps even more importantly, they are subject to revision by the judges in the case before they are published. Not surprisingly, the Law Reports are seen as the most authoritative of reports and it is usual for them to be cited in court cases in preference to any other report. The current series of Law Reports, from 1891, is issued annually in four parts:
Appeal Cases Chancery Division Family Division Kings/Queens Bench (AC) (Ch.) (Fam.) (KB/QB)
Delays in reporting can obviously mean that cases decided in one year are not reported until the following year. Since the start of the current series, individual volumes of reports carry the year of publication in square brackets together with a volume number if there is a need for more than one. Cases are cited, therefore, by the year and volume in which they are published, rather than the year they were decided. Weekly Law Reports (citation WLR) These have also been published by the Incorporated Council of Law Reporting since 1953 and, although they are not reports of cases decided in the current week as the name might suggest, they are produced much more quickly than the Law Reports. All England Law Reports (citation All ER) These reports are produced by the legal publishers Butterworths and, although they do enjoy judicial revision, they do not contain counsels arguments. They are published weekly and are then collated annually in volumes. Legal periodicals and newspapers The Solicitors Journal (Sol Jo or SJ) has been reporting cases since 1856 and some cases are only to be found in its reports. In such circumstances, the reports may be cited in court. The same is also true for cases reported in other journals, such as the New Law Journal (NLJ) or the other specialist legal journals. The reports in the broadsheet newspapers (The Times, Guardian and Independent for example) may also be cited in such circumstances, as long as they have been produced by appropriately qualified individuals
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The Solicitors Journal has been reporting cases since 1856
(the Courts and Legal Services Act 1990 extended this right to solicitors as well as barristers). However, some of these reports are rather insubstantial in nature. Specialist reports There are a number of specialist reports. Indeed, there are more than can be mentioned here, but amongst the most important are:
Industrial Relations Law Review Knights Local Government Reports Lloyds Law Reports Report on Tax Cases Family Law Reports Criminal Appeal Reports (IRLR) (LGR) (Lloyds Rep.) (TC or Tax Cas) (FLR) (Cr. App. R)
European Law reports Although European cases may appear in the reports considered above, there are two specialist reports relating to EU cases:
.
European Court Reports (ECR) These are the official reports produced by the Court of Justice of the European Union. As such, they are produced in all the official languages of the Community and consequently suffer from delay in reporting.
Common Market Law Reports (CMLR) These are unofficial reports published weekly in English by the European Law Centre.
Reports of the European Court of Human Rights in Strasbourg are provided in the European Human Rights Reports (EHRR).
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DVD-ROMs and internet facilities As in most other fields, the growth of information technology has revolutionised law reporting and law finding. Many of the law reports mentioned above are available both on DVD-ROM and via the internet through legal databases such as Justis, Lawtel, LexisLibrary and Westlaw UK, many of which may be available to you as Open University law students through the OpenLibrary. The first major electronic cases database was the Lexis system, which gave immediate access to a huge range of case authorities, some unreported elsewhere. The problem for the courts was that lawyers with access to the system could simply cite lists of cases from the database without the courts having access to paper copies of the decisions. The courts soon expressed their displeasure at this indiscriminate citation of unreported cases trawled from the Lexis database (see Stanley v International Harvester Co. of Great Britain Ltd (1983)), The Times 7 February 1983.
Many reports can be found online
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Neutral citation In line with the ongoing modernisation of the whole legal system, the way in which cases are to be cited has been changed. Since January 2001 a new neutral system was introduced, and cases in the various courts are now cited as follows (EW means England and Wales):
Supreme Court House of Lords Court of Appeal Court of Appeal (Civil Division) Court of Appeal (Criminal Division) High Court Chancery Division Patents Court Administrative Court Commercial Court Admiralty Court Technology & Construction Court Family Division [year] EWHC case no. (Ch) [year] EWHC case no. (Pat) [year] EWHC case no. (Admin) [year] EWHC case no. (Comm) [year] EWHC case no. (Admlty) [year] EWHC case no. (TCC) [year] EWHC case no. (Fam) [year] EWCA Civ case no. [year] EWCA Crim case no. [year] UKSC case no. [year] UKHL case no.
Within the individual case, the paragraphs of each judgment are numbered consecutively, and where there is more than one judgment the numbering of the paragraphs carries on sequentially. Thus, for example, the neutral citation for International Transport Roth GmbH v Secretary of State for the Home Department is [2002] EWCA Civ 158 and if you were looking for the citation for the quotation from Simon Browne LJ from the case, this is at paragraph 53. The specific Law Report series within which the case is reported may be found at [2002] 3 WLR 344.
Summary of accurate law reporting

This section stressed the importance of accurate law reporting which allows for legal principles to be collated, identified and accessed. I examined where you might locate case reports on particular areas of the law. These are:
. . . . . . . . . .
Year Books (1275--1535) Private reports (1535--1865) Modern reports (1865 to present) The Law Reports Weekly Law Reports (citation WLR) All England Law Reports (citation All ER) Legal periodicals and newspapers Specialist reports European Law reports DVD-ROMs and internet facilities.
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SUMMARY OF PART C
In Part C you have learnt that: accurate law reporting allows for legal principles to be collated, identified and accessed there are many sources of law reports: Year Books (1275--1535), private reports (1535--1865), modern reports (1865 to present), the Law Reports, Weekly Law Reports, All England Law Reports, legal periodicals and newspapers, European Law Reports, DVD-ROMs and legal databases available via the internet.
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Part D The need for statutory interpretation

In Unit 4 we have considered the role of the judiciary in creating precedent. In Part D we will start to consider a further role of the judiciary, that of statutory interpretation. Where the words in a statute are not clear the judiciary may be required to determine their meaning. This task is undertaken by using the rules of statutory interpretation which have been developed over a number of years. First however we will consider why the words in a statute may be unclear. The Renton Committee on the Preparation of Legislation in 1975 divided complaints about statutes into four main headings, obscurity of language; over-elaboration of provisions; illogicality of structure and confusion arising from the amendment of existing provisions. You may recognise some of these criticisms from your earlier reading of statutes in Unit 3. Although the meaning of law in a statute should be clear and explicit, this is not always achieved. Thus, many of the cases which come before the courts concern a dispute over the meaning of a word or phrase in a statute. In those cases the task of the court is to decide the exact meaning of that particular word or phrase. There are a number of factors which can lead to an unclear meaning.
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A broad term -- There may be words designed to cover several possibilities and it is left to the user to judge what situations fall within it. London and North Eastern Railway Company v Berriman [1946] 1 All ER 255 Mr Berriman was a railway worker who was hit and killed by a train while he was doing maintenance work. Regulations stated that a lookout should be provided for men working on the other railway line for the purposes of relaying or repairing it. Mr Berriman was maintaining the line. His widow tried to claim compensation for his death because the railway company had not provided a lookout man. The court ruled that the relevant regulation did not cover maintenance work and so Mrs Berrimans claim failed. The court looked at the specific words in the regulation and was not prepared to look at any broad principle that the purpose of making a regulation that a lookout man should be provided was to protect those working on railway lines. Ambiguity -- A word may have two or more meanings and it may not be clear which meaning should be used. A drafting error -- The parliamentary council which drafted the original Bill may have made an error that has not been noticed by Parliament. This is more likely to occur where a Bill has been amended several times during debates.
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Wording may be inadequate -- There may be many ways in which the wording may be inadequate, for example, a printing error, or another error such as the use of a word with a wide meaning which is not defined. Brock v DPP [1993] 4 All ER 491 In the Dangerous Dogs Act (1991 S.I.) there is a phrase any dog of the type known as the pit bull terrier. This led to a debate as to whether type means the same as breed. In Brock, the Queens Bench Divisional Court decided that type had a wider meaning than breed and it could cover dogs that were not pedigree pit bulls but which had a substantial number of characteristics of such a dog. New developments -- New technology may mean that an old Act of Parliament does not apparently cover present-day situations. Changes in the use of language -- The meaning of words can change over the years. Certain words not used -- The draftsmen may refrain from using certain words that they regard as being implied. The problem here is that users may not realise that this is the case. Failure of legislation to cover a specific point -- The legislation may have been drafted in detail, with the draftsman trying to cover every possible contingency. Despite this, situations could arise which are not specifically covered. The question then is whether the court should interpret the legislation so as to include the situation which was omitted or whether they should limit the legislation to the precise points listed by Parliament.
In all legislation there is the potential for words and phrases to create uncertainty which can only be resolved by judicial interpretation. That interpretation is a creative process and inevitably involves the judiciary in the process of creating law. The question arises as to what techniques the judges should use as they are required to define that term or phrase. A number of rules have been developed to assist judges in this process, the rules of statutory interpretation. These have been produced over the centuries by judges themselves and Parliament has played no role in their development. It can be argued, however, that Parliament remains the supreme law making body. If it does not like the definition produced by the court, it can choose to pass new legislation which overturns the courts decision.
SUMMARY OF PART D
Part D explored several of the reasons which may result in a word or phrase in a Statute having an unclear meaning. This was illustrated by a number of examples. Interpretation of those words or phrases becomes a task for the judiciary. In this role, it can be argued that the judiciary are involved in the law-making process as they have been required to interpret and define a statute.
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Part E The rules of statutory

interpretation
In this part we will explore the rules developed to assist in the interpretation of statutes. These are:
. . . .
the literal rule the golden rule the mischief rule the purposive approach.
These rules each take different approaches to interpretation of the words in a statute. Some judges prefer one rule, while other judges prefer another. Some judges also feel that their role is to fill the gaps and ambiguities in the law whilst others think that it should be left to Parliament as the supreme law-maker. As the rules can result in very different decisions, it is important to understand each of them and how they may be used.
The literal rule

Under this rule the judge considers what the statute actually says, rather than what it might mean. In order to achieve this, the judge will give the words in the statute a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome. The literal rule says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. As the legislative democratic part of the state, Parliament must be taken to want to effect exactly what it says in its laws. If judges are permitted to give an obvious or non-literal meaning to the words of parliamentary law, then the will of Parliament, and thereby the people, is being contradicted. Lord Diplock once noted:
Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.
Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529
An invitation to treat is an invitation to others to make offers, as by displaying goods in a shop window.
The use of the literal rule is illustrated by the case of Fisher v Bell [1960] 3 All ER 731. The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons including flick knives. James Bell, a Bristol shopkeeper, displayed a weapon of this type in his shop window in the arcade at Broadmead. The Divisional Court held that he could not be convicted because, giving the words in the statute a tight literal meaning, Mr Bell had not offered the knives for sale. In the law of contract, placing something in a shop window is not technically an offer for sale; it is merely an invitation to treat. It is the customer who makes an offer to the shop when he proffers money
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for an item on sale. The court upheld that under the literal meaning of offer, the shopkeeper had not made an offer to sell and so was not guilty of the offence. Parliament subsequently changed the law to make it clear that displaying a flick knife in a shop window was an offence. The literal rule has both advantages and disadvantages. Constitutionally it respects parliamentary supremacy and the right of Parliament to make any laws it might wish no matter how absurd they may seem. It also encourages precision in drafting and ensures that anyone who can read English can determine the law, which promotes certainty and reduces litigation. Some disadvantages, however, can also be identified. It fails to recognise that the English language itself is ambiguous and that words may have different meanings in different contexts. The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious litigant. Judges have tended to over emphasise the literal meaning of statutory provisions without giving due weight to their meaning in a wider context. Placing emphasis on the literal meaning of words assumes an unobtainable perfection in draftsmanship. Finally, it ignores the limitations of language.
The golden rule

This rule is a modification of the literal rule. It states that if the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid that absurd result. The rule was closely defined by Lord Wensleydale in Grey v Pearson (1857) HL Cas 61, who stated:
The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.
The rule was used in the case of Adler v George [1964] 1 All ER 628 to avoid an absurd result. Under section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr Frank Adler had in fact been arrested whilst obstructing such forces within such a prohibited place (Marham Royal Air Force Station, Norfolk). He argued that he was not in the vicinity of a prohibited place as he was actually in a prohibited place. The court applied the golden rule to extend the literal wording of the statute to cover the action committed by the defendant. If the literal rule had been applied, it would have produced absurdity, as someone protesting near the base would be committing an offence whilst someone protesting in it would not. Re Sigsworth [1935] Ch 89 concerned a case where a son had murdered his mother. The mother had not made a will and under the Administration of Justice Act 1925 her estate would be inherited by her next of kin, i.e. her son. There was no ambiguity in the words of the Act, but the court was not prepared to let the son who had murdered his mother benefit from his crime. It was held that the literal rule should not apply and that the golden rule should be used to prevent the repugnant situation of the son inheriting.
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The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to depend on the result of each individual case. Whilst the golden rule has the advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to determine what is an absurdity.
The mischief rule

This third rule gives a judge more discretion than either the literal or the golden rule. This rule requires the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court is then required to interpret the statute in such a way to ensure that the gap is covered. The rule is contained in Heydons Case (1584) 3 Co Rep 7a, where it was said that for the true interpretation of a statute, four things have to be considered: 1 2 3 4 What was the common law before the making of the Act. What was the mischief and defect for which the common law did not provide. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.
This rule gives the court justification for going behind the actual wording of the statute in order to consider the problem that the particular statute was aimed at remedying. At one level it is clearly the most flexible rule of interpretation, but it is limited to using previous common law to determine what mischief the Act in question was designed to remedy. The case itself concerned a dispute about legislation passed under Henry VIII in 1540 and a legal action against Heydon for intruding into certain lands in the county of Devon. An example of the use of the mischief rule is found in the case of Corkery v Carpenter [1951] 1 KB 102. In 1950 Shane Corkery was sentenced to one months imprisonment for being drunk in charge of a bicycle in public. At about 2.45 p.m. on 18 January 1950, the defendant was drunk and was pushing his pedal bicycle along Broad Street in Ilfracombe. He was subsequently charged under section 12 of the Licensing Act 1872 with being drunk in charge of a carriage. The 1872 Act made no actual reference to bicycles. The court elected to use the mischief rule to decide the matter. The purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. The bicycle was clearly a form of transport and therefore the user was correctly charged.
The purposive approach

This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning
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in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. This attitude was criticised on appeal by the House of Lords. Lord Simmons called this approach a naked usurpation of the legislative function under the thin disguise of interpretation. He went on to say that if a gap is disclosed, the remedy lies in an amending Act. These comments highlight one issue with the purposive approach. How Parliaments intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own legislation. It is also the approach which is taken by the Court of Justice of the European Union in interpreting EU law. Since the United Kingdom became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach has affected the English courts in a number of ways. First, the courts have been required to accept that, from 1973, the purposive approach has to be used when deciding on EU matters. Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law. One example is Pickstone v Freemans plc [1989] AC 66. Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid 1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her for the same pay. When using one of the rules of statutory interpretation the courts may rely on a presumption or secondary aids to assist them in making their decision. All statutes also have to be interpreted in such a way as to bring them within the ambit of the European Convention on Human Rights. You will learn more about the European Convention on Human Rights in the next unit.
Presumptions
When determining the meaning of particular words the courts will make certain presumptions about the law. If the statute clearly states
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the opposite, then a presumption will not apply and it is said that the presumption is rebutted. The main presumptions are: 1 A presumption against change in the common law. It is assumed that the common law will apply unless Parliament has made it plain in the Act that the common law has been altered. 2 A presumption that mens rea (guilty mind) is required in criminal cases. You will learn more about mens rea in Units 7 and 8. At this point in your studies you need to be aware that mens rea is one of the elements that has to be proved for a successful criminal prosecution. There is a common law rule that no one can be convicted of a crime unless it is shown they had the required intention to commit it. 3 4 A presumption that the Crown is not bound by any statute unless the statute expressly says so. A presumption that a statute does not apply retrospectively. No statute will apply to past happenings. Each statute will normally only apply from the date it comes into effect. This is, however, only a presumption and as you will see later in your studies Parliament can choose to pass a statute with retrospective effect. This must, however, be expressly stated in the statutes, for example, the War Damage Act 1965, the War Crimes Act 1991 and the Adoption Act 1976.
The secondary aids are rules of language, intrinsic and extrinsic aids.
Rules of language
The courts may also choose to look at other words in the statute to ascertain the meaning of specific words. To enable them to do this they have developed a number of rules of language to help make the meaning of words and phrases clear. There are three main rules of language:
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Ejusdem generis This rule states that where there is a list of words which is followed by general words then the general words are limited to the same kind of items as the specific words. In the case of Powell v Kempton Park Racecourse [1899] AC 143, a ring at a racecourse was held not to fall within the terms house, office, room or other place because the list of words indicated that other place should be construed as an indoor place.
Expressio unius est exclusio alterius Where the express mention of one thing excludes others. Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list. In the case of R v Inhabitants of Sedgley (1831) 2 B & Ad 65 the use of the words lands, houses and coalmines excluded application to other types of mine.
Noscitur a sociis A word is known by the company it keeps. The words must be looked at in the context and interpreted accordingly. This involves
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considering other words in the same section or other sections of the Act. In the case of Muir v Keay (1875) LR 10 QB 594, the purpose of licensing theatrical or musical entertainment did not fall within the words of the Act covering houses for public refreshment, resort and entertainment, because the word entertainment in the Act referred to refreshment houses, receptions and accommodation of the public.
Intrinsic aids
Intrinsic aids are matters within an Act itself which may help make the meaning clearer. The court may consider the long title, the short title and any preamble. Other useful internal aids may include headings before a group of sections and any schedules attached to the Act. There are also often marginal notes explaining different sections; however, these are not generally regarded as giving Parliaments intention as they will have been inserted after parliamentary debates and are only helpful comments put in by the printer. Some Acts include sections in which words are expressly defined. For example, the Animal Boarding Establishments Act 1963 section 5(2) states: In this Act animal means any dog or cat.
Extrinsic aids
Extrinsic aids are matters which may help put an Act into context. Sources include previous Acts of Parliament on the same topic, earlier case law, dictionaries of the time, and the historical setting. The Interpretation Act 1978 section 6 also states that unless the contrary intention appears, words importing the masculine gender also include the feminine and words importing the feminine gender also include the masculine. In addition, words in the singular also include the plural and words in the plural include the singular. In addition, Hansard can now be considered. Hansard is the official report of what was said in Parliament when the Act was debated. The use of Hansard was permitted following the decision in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 583 where the House of Lords accepted that Hansard could be used in a limited way. It permits Hansard to be used where the legislation is ambiguous or obscure or leads to an absurdity, and the material relied on comprises one or more statements by a Minister or other promoter of the Bill and such other parliamentary material as is necessary to understand the statements, and the effect and the statements that were relied on have to be clear. Extrinsic aids also include international conventions, regulations or directives which have been implemented by English legislation. It is thought that English law should be interpreted in such a way as to be consistent with international law. Section 3 of the Human Rights Act 1998 expressly states that as far as it is possible to do so, an Act must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights. This only applies to any case where there is an issue of human rights.
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SUMMARY OF PART E
Rule, approach or aid The literal rule Comment Uses plain ordinary grammatical meaning of words and avoids judicial law making, but can lead to absurd decisions and injustices and assumes unattainable perfection in draftsmanship This starts from the literal approach but avoids absurdity or inconsistency and the court can extend the literal wording of the statute. It is limited in scope and there is no definition or measurement for an absurdity This looks at the gap in the previous rule and interprets the words so as to advance the remedy. Is very near to the purposive approach and has been favoured by the Law Commission in a review of the rules of statutory interpretation Looks for the intention of Parliament and allows for judicial law making Looks at other words in the statute: general words which follow a list are limited to the same kind; a list of words which is not followed by a general word is limited to the items on the list; a word is known by the company it keeps Things in the Act, especially short or long title, any preamble and definition, sections. Also 1978 Interpretation Act Things outside the statute which help place it in context, e.g. earlier statutes, Hansard, international conventions Cases Fisher v Bell [1960] 3 All ER 731
The golden rule
Adler v George [1964] 1 All ER 628 Re Sigsworth [1935] Ch 89
The mischief rule
Corkery v Carpenter [1951] 1 KB 102
The purposive approach Rules of language
Pickstone v Freemans plc [1989] AC 66
Intrinsic aids
Extrinsic aids
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Part F Common law and statute law
The common law means the substantive law and procedural rules that have been created by the judges through the decisions in the cases they have heard. I have here lumped together two types of common law: substantive law and procedural law. Let me explain the difference between them. A substantive rule is a rule about our behaviour, for example, that we cannot commit murder or that we will be forming a contract if we do such-and-such on an email exchange. These substantive rules are different from procedural rules, as the latter govern simply how things should be done. For example, regardless of what sort of case is in court, the rules governing the admission of evidence into court are the same. Statute law, on the other hand, refers to law that has been created by Parliament in the form of legislation. Although there has been a significant increase in statute law in the twentieth and twenty-first centuries, the courts still have an important role to play in creating and operating law generally and in determining the operation of legislation in particular. This is despite the fact that there is no legislative or express democratic authority for the court to be law-makers. Activity 17 requires you to read an article which discusses the role of Parliament and the role of the courts in making law. As we have learnt in this unit, common law provides room for judicial creativity and statutory interpretation also provides room for the creative interpretation of Acts of Parliament. The article in Activity 17 is longer than previous Readings, but dont let this daunt you. You will be familiar with the ideas which are discussed in the Reading. Exercise 1 then asks you to apply your understanding and knowledge of the common law and summarise the importance of the common law system being both flexible and certain. You are then asked to weigh and evaluate the arguments and say whether you think the judicial computer discussed in Reading 13 should replace the common law. This is not a question of arriving at the right answer any more than there is a scientific right answer to what is the best political party or the best soup! It is about being able to give reasons for a viewpoint you have arrived at.
ACTIVITY 17 Making law: the use of precedent (allow 1 hour)................................................
Please read Reading 13: The law factories and complete the three exercises.
Exercise 1 (allow 20 minutes)

Explain why there is a need for a balance between certainty and flexibility in common law. Do you think it would be better if the common law were replaced by a judicial computer like that depicted in Reading 13?
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Comment
Certainty Certainty is needed to allow people to plan their behaviour and to allow lawyers to advise their clients. Thus, in 1995 the House of Lords did not change the doli incapax rule concerning the criminal liability of children. Also, in the case of the soldier Private Clegg, in 1995 the Lords declined to make any changes to the law of self-defence. Therefore, the legal system needs to balance these two competing, but equally legitimate, aims. If a judicial computer were adopted this would guarantee certainty but remove all flexibility from the legal system. Flexibility The common law must be flexible in order to respond to changing times. Lord Hobhouse noted that the common law develops as circumstances change and the balance of legal, social and economic needs changes. For example, in R v R [1992] 1 AC 599, the House of Lords saw fit to abolish the then 256-year-old rule against a charge of marital rape. Also in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 583, the Lords Appellate Committee swept away a 223-year-old constitutional rule that had prevented Hansard being consulted by law courts in aid of statutory interpretation.

Having considered why certainty and flexibility are important, please now describe how certainty and flexibility are introduced into the common law system.
Comment
Certainty The binding nature of the ratio decidendi creates a foundation for certainty. Flexibility Flexibility is introduced by:
Overruling -- where higher courts can overrule lower courts in
circumstances where the later court thinks that the earlier court gave an erroneous analysis. Distinguishing -- where a lower court is able to point to material differences that justify the application of different principles. Departing -- where, in certain circumstances, a court can depart from its own previous decision. This can be done, for example, where times have changed since the earlier decision that seems to bind courts today. Until 1966 the House of Lords was bound by its own decisions. In 1966, the Lord Chancellor issued a Practice statement which stated that the House of Lords may depart from its own previous decision where it is right to do so. The reasons given were to avoid injustice and restrictions on the proper development of the law.
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The Court of Appeal can depart from previous decisions if one of the exceptions in Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293 is established. The Court of Appeal may also depart from a previous decision where this decision was per incuriam (through lack of care) because it was made in ignorance of relevant legislation or House of Lords decision with the result that the decision is demonstrably wrong. In criminal cases the Court of Appeal may depart from a previous decision if to follow it would lead to an obvious injustice.

Again based upon your knowledge and understanding of Unit 4, summarise the advantages and disadvantages of a system of precedent. You should take some time to revise the notes you made from the previous activities, and perhaps reread part of the unit.
Comment
Did you include the following advantages and disadvantages? Advantages Precedent allows the legal system to become more just as the law is certain -- so everyone can know what the law says about any topic. The certainty of precedent is tempered by the flexibility judges have to not follow previous cases. Precedent is more practical -- the law can modernise without the need for Parliament to enact new laws. Disadvantages The development of the law is contingent on accidents of litigation, i.e. the courts only rule on the law in the cases that happen to get brought by citizens. The development of the law is hindered by the need for certainty.
SUMMARY OF PART F
In Part F, we have compared and contrasted common law and statute law consolidating knowledge gained from the earlier parts of unit 4.
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Part G Common law and civil law systems
Having explored the origins and development of the common law and its characteristics, the final part of this unit will compare and contrast the common law with civil law based justice systems. The terms common law system and civil law system are used to distinguish two distinct legal systems and approaches to law. The use of the term common law in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the United States, but many other Commonwealth and former Commonwealth countries retain a common law system. The term civil law refers to those other jurisdictions which have adopted the European continental system of law derived essentially from ancient Roman law, but owing much to the Germanic tradition. The usual distinction to be made between the two systems is that the common law system tends to be case-centred and hence judge-centred, allowing scope for a discretionary, pragmatic approach to the particular problems that appear before the courts. The law can be developed on a case-by-case basis. On the other hand, the civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both these views are extremes, with the former overemphasising the extent to which the common law judges can impose their discretion and the latter underestimating the extent to which civil law judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the Court of Justice of the European Union, established, in theory, on civil law principles, is, in practice, increasingly recognising the benefits of establishing a body of case law. Although the Court of Justice of the European Union is not bound by the operation of the doctrine of stare decisis, it still does not decide individual cases on an individual basis without reference to its previous decisions. You will learn more about the Court of Justice of the European Union in the next unit.
ACTIVITY 18 Common law (allow 25 minutes)...................................................................................
DVD
Please note that this is an instance where the DVD numbering differs from that in the book, as explained in the introduction.
This activity builds on what you have just read about the differences between the systems of common and civil law. It is an extract from the BBC Radio 4 Unreliable Evidence programme broadcast in 2004. You should now find the activity entitled Common law listed under Unit 4, Activity 17 on your DVD and listen to the discussions. While listening, you may want to take notes. Listen in particular to what is said about the relationship between common law and civil law systems.
Comment
The discussions ended with the conclusion that neither system would extinguish the other as both had useful features. What was in fact happening was that the two systems were adapting features from each
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other. You may also have found it surprising to listen to the discussion of the backgrounds of some of the members of the European Court of Human Rights, as here the contributors clearly had different views. You will learn more about the European Court of Human Rights in later units.
SUMMARY OF PART G
In Part G you have explored the difference between common law and civil law systems.
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Part H Consolidation
The purpose of this part is to bring together your knowledge of law making in the English legal system. Through a series of activities you will be provided with the opportunity to review and consolidate your knowledge of the English legal system gained so far.
ACTIVITY 19 Common law (allow 20 minutes)...................................................................................
The term common law has a number of meanings. These meanings depend upon the context in which the term is used. Note down the different meanings of the term common law you have come across in this unit.
Comment
1 Common law may be used to describe a legal system which has developed from the English legal system, for example, in Australia or America. Common law may be used to distinguish a legal system from a civil law system. Civil law developed from the Romano-Germanic legal system and is the dominant system in much of continental Europe. France has a civil law system. Common law may be used to mean case law, i.e. where law has been developed through cases using a system of precedent. Common law may be used to distinguish it from statutory law, for example, murder is a common law offence but the defence of provocation and diminished responsibility are statutory under sections 2 and 3 of the Homicide Act 1957. Common law could refer to a system which is common to the whole of the country.
3 4
Throughout your studies of W100 you are likely to see the term common law used to describe a legal system or the law which results from the operation of the doctrine of precedent.
ACTIVITY 20 Domestic sources of law (allow 20 minutes) .........................................................
Drawing upon your knowledge of how law is made by Parliament or through the courts, construct a diagram of the sources of law you have been introduced to in your studies of W100 so far.
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Comment
Domestic sources of law
Parliament
The Courts
Statutory law
Delegated legislation
Statutory interpretation
System of precedent
You may have chosen to add more detail, for example, by including each of the rules of statutory interpretation. The first box here refers to domestic sources, which are the traditional sources of law in England and Wales. In Unit 5 you will learn about European sources of law and their impact as sources of law in England and Wales. The final activity will help to further consolidate your Unit 4 studies by considering a controversial case which was widely reported in the media.
ACTIVITY 21 Courts of law and decision making: the case of Tony Martin (allow 20 minutes)................................................................................................................
DVD
Please note that this is an instance where the DVD numbering differs from that in the unit activity, as explained in the introduction.
For this activity, you will need to run your DVD and look under the listings for Unit 4 for the activity entitled Courts of law and decision making, which contains a video clip exploring the case of Tony Martin. As you watch the video clip you may want to take some notes. In particular, think about the contrast between the outcomes for Tony Martin and Terry Reagan.
Comment
The case of Tony Martin concerned the common law concept of using reasonable force in self-defence. The clip contrasted the outcome in Martins case, where he was convicted of murder at his original trial, with that of Terry Reagan, against whom a case was dropped. It illustrates the difficult decisions that have to be made by the judge and jury in the courtroom, and by the police and the Crown Prosecution Service on decisions to prosecute.
SUMMARY OF PART H
In Part H you have consolidated your understanding of common law and the relationship between domestic sources of law.
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Part A
explain what the common law is and how it developed:
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In 1154 Henry II institutionalised common law. Judges travelled throughout the country bringing consistent justice to every citizen, and the practice developed where past decisions would be cited in argument before the courts and would be regarded as being of persuasive authority.
Part B
discuss the doctrine of binding precedent or stare decisis:
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There are three essential elements to this system of precedent: a hierarchy of courts, binding precedent, and accurate law reporting.
explain the difference between the ratio decidendi and obiter dictum of a court case -- the ratio decidendi of a case is the law used by the judge in deciding the legal problem raised by the concrete facts of the case. Any statement of law that is not an essential part of the ratio decidendi is referred to as obiter dictum.
Part C
understand the need for accurate law reporting distinguish between the many sources of law reports understand the system of neutral citation.
Part D
understand the need for statutory interpretation explain the factors which can lead to the unclear meaning of a word in a statute.
Part E
discuss the rules of statutory interpretation:
. . . .
the literal rule the golden rule the mischief rule the purposive approach.
understand that which rule is chosen will depend upon an individual judge, although the purposive approach is becoming more common understand the need for additional rules of language, and intrinsic and extrinsic aids.
Part F
explain the role of Parliament and the courts in making laws.
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Part G
distinguish the common law system from a civil law system.
Part H
explain the different meanings of common law explain domestic sources of law understand the impact media reporting may have on the knowledge and understanding of the sources of law. Figure 1 summaries the main roles of the judiciary that you have encountered in Unit 4.
Disadvantages uncertainty contingent on accidents of litigation made by an unelected body CREATION OF PRECEDENT (COMMON LAW)
Ratio decidendi reason for the decision binding Obiter dictum things said by the way persuasive
components
requires court hierarchy accurate law reporting Note Not used by Court of Justice of the European Union or the European Court of Human Rights
Precedent: legal principle decided in a case which is followed in definition later cases with similar facts
BUT
Advantages flexibility practical fair/just time saving certainty
overruling distinguishing departing Note. UK Supreme Court not bound by previous decisions
how to avoid precedent Roles of the Judiciary in the courts of England and Wales discussed in Unit 4
words in a statute or delegated legislation are unclear broad term ambiguity drafting error inadequate warning new developments change in use of language specific point is not covered rules of language intrinsic aids extrinsic aids
Presumptions against a change in the common law that mens rea is required in criminal cases statute is not retrospective unless statute says so crown not bound unless statute says so STATUTORY INTERPRETATION rules which may be used reasons why it is needed Also
literal rule plain, everyday meaning golden rule plain every day meaning unless absurd mischief rule what gap or mischief did the legislation intend to cover? Purposive approach what did Parliament mean to achieve?
rules
no set order in which rules made be used
Figure 1 Summary of the roles of the judiciary as discussed in Unit 4
The law in the United Kingdom (UK) does not all come from UK sources. Many of the UKs laws also come from the wider European communities of which the UK is a member. In the next unit we will introduce you to two European systems of law making, and explain how they works. In particular, we will consider one of the most recent influences on law making in England and Wales: the role and impact of European Union law. The final unit in Block 1 will also bring together all the skills you have developed so far and will provide an opportunity for you to consolidate your understanding of law making.
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REFERENCES
Cowie, F. and Bradney, A. (2000), English Legal System in Context, London,

Butterworths, pp. 88--90.
Extending and developing your thinking skills, Open University Student
Toolkit 9.
Slapper, G. (2000) Castles built on law, New Law Journal, 23 June.
Slapper, G. and Kelly, D. (2003) The English Legal System, London,
Cavendish, pp. 75--7 and 84--8.
The effective use of English, Open University Student Toolkit 1.
Pure genius or plagiarism? (1998) The Times, 25 August.
The law factories (2002) The Times, 29 October.
W100 Block 1
Unit 5
Making law: (3) Europe

Prepared for the W100 team by Jane Goodey, Carol Howells and Amanda Zambellas
CONTENTS
Part A The European Convention on Human Rights
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Part B Why did the United Kingdom join the European Economic Community? 212 Part C Law-making and the European Union 215 Part D How European Union law is created Part E Sources of European Union law Part F The effect of European Union law on the United Kingdom
222 225 228

233 235
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After studying Unit 5 you should have acquired:

a basic understanding of the European Convention on Human Rights
(ECHR) a basic knowledge of the legal effects of the ECHR a knowledge of the interaction between the ECHR and the Human Rights Act 1998 an understanding of the European Union (EU) a basic knowledge of EU institutions an understanding of the sources of EU law a knowledge of the interaction between EU law and domestic law.
UNIT 5 MAKING LAW: (3) EUROPE
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Introduction
Block 1 began by exploring the nature of rules. In units 1 and 2 you considered why rules (law being an example of a rule) are created and how they can be interpreted. Units 3 and 4 built on this by exploring how laws are made. Statutes, delegated legislation (unit 3) and common law (unit 4) are often referred to as sources of domestic law. Each has been developed and refined over many centuries. Unit 5 will add a further dimension to your knowledge of law making and its impact in the UK. It will consider the other major sources of law which can have force in England and Wales: the European Convention on Human Rights (ECHR) and European Union (EU) law. In comparison with the UK Parliament and common law, these sources are a relatively recent development. Both emerged as sources of law in the mid-twentieth century. To understand how and why both the ECHR and EU developed and the power they have been given, it is necessary to understand the visions for Europe that emerged as a result of the Second World War in Europe (1939--1945). Following the end of the war European politicians and governments sought to create a climate of stability, harmony, prosperity and cooperation to ensure that the horrors which occurred during the war would never be seen again in Europe. To achieve this they created a number of Europe-wide organisations.
ACTIVITY 1 The emergence of a European legal order (allow 20 minutes) ....................
DVD This activity requires you to consider a video clip on your DVD. Run the DVD and look for Unit 5 Activity 1 -- The Emergence of a European legal order. The clip illustrates how post-war idealism in Europe created a series of Europe-wide institutions to enforce individual rights and encourage economic, social and political cooperation. You have to listen carefully to pick up the point that the European Court of Human Rights is separate from the EU institutions which are discussed. The presenter does say that they are two separate things but refers to them in a different order. You may want to take notes, and whilst watching the clip you should think about the following questions: 1 2 Why were the individuals rights seen as important? Why were economic and social cooperation seen as important ways forward?
Comment
Individuals rights were seen as important to prevent the horrors which occurred in a so-called civilised society from happening again. Economic and social cooperation also played an important part of the vision. These would help create a climate of stability and growth. The DVD clip included some clips from 1945. It is very easy to forget the turmoil which existed in Europe immediately after the Second World War: the thousands of displaced persons, the collapse of industry, flattened cities, difficulties in travel and the breakdown of order. Out of these circumstances grew a belief in a new European order: the creation
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of a Europe where these events could not occur again. European politicians and governments thought that the way forward was through agreed common values, such as the protection of the rights of citizens, security, democracy and the rule of law. The focus initially was economic growth and the protection of rights but this focus has been expanded in the later part of the twentieth century and is something you will consider later in the unit.
Bombed housing in Europe, 1945
There was a recognition, which arose from the complete collapse of Europe and the desire to prevent such horrors in the future, that a new way of political thinking and cooperation was needed. European politicians were looking to the future and many had high ideals as to what that future should and could be. In Activity 1 you watched Winston Churchill (who was Prime Minister of Great Britain during much of the Second World War) speaking of the need for what he described as a United States of Europe. The desire to heal political and social scars left by the Second World War and the creation of ideas for a new European order led to the development of two key institutions: the Council of Europe and the European Union (EU). The development of the Council of Europe resulted from the desire to protect individuals rights, promote cultural diversity, to combat social problems, such as intolerance, and to create an independent forum where such matters could be heard and resolved. The development of the EU resulted from the desire for economic growth and political cooperation. You will consider both institutions and the law-making powers they possess as you progress through Unit 5.
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It is important to remember that the Council of Europe and the EU, although often confused, have very separate and distinct functions. Both however have an effect on law making in the United Kingdom (UK).
The Council of Europe

The Council of Europe was set up in 1949. Based in Strasbourg, France, it is an intergovernmental organisation set up to protect human rights, promote cultural diversity and combat social problems such as intolerance. Its creation was seen as a way of achieving a European approach to the protection of certain individual rights. In 1949 the horrors of what had taken place in the Second World War were still fresh in the minds of European governments and their citizens. European politicians and governments sought to find a method of preventing such horrors from reoccurring. The images and reports of the Second World War had left a lasting impression and a determination that they would not be repeated. Article 3 of the Statute of the Council of Europe states that:
Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms . . .
The Convention for the Protection of Human Rights and Fundamental Freedoms (commonly referred to as the European Convention on Human Rights) was one of the earliest achievements of the Council of Europe. It was agreed in November 1950 and came into force on 3 September 1953. It was one of the many instruments designed to assist post-war regeneration in Europe and it sought to achieve this by giving protection to individual citizens. That protection came from agreed and accepted rights which reflected agreed common values. The European Convention on Human Rights (ECHR) expressed those rights. Any state ratifying the ECHR would be bound to uphold them. Further, member states would keep each other in line by mutually enforcing the application of those rights. Member states also had a collective responsibility for ensuring respect for the ECHR. This was possible as the member states have a common heritage of political traditions, ideals, freedom and the rule of law. It was thought that the creation of explicit legal rights and a mechanism for their enforcement would be sufficient to ensure that these rights were observed and that the horrors of the war would not be repeated.
The European Union

What we now know as the European Union (EU) can trace its roots back to the 1950s, in what is known as the Schuman Plan. Robert Schuman was the French Foreign Minister. The Plan sought to look at the economic position of European countries. From this starting point further intergovernmental political initiatives developed. These were expressed in a number of treaties. These treaties in turn formed the building blocks of what we commonly refer to as the EU. They give authority and power to the institutions of the EU and have created
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law-making powers. For the purposes of your W100 studies you do not need to know the detail of each treaty. What you need to be aware of is that the EU has a wide range of responsibilities and power. The key governing institutions are:
. .
the European Commission representing the interests of the EU the Council of the European Union (also referred to as the Council of Ministers) representing the governments of the member states of the EU the European Parliament representing the people of the EU the European Council which has the role of driving EU policy-making the Court of Justice of the European Union enforcing and interpreting EU law.
. . .
Numerous other institutions have been created which serve specific purposes such as the European Central Bank, responsible for managing the Euro and the EU high representative for foreign and security policy, responsible external relations. You will look at the key governing institutions and at how EU laws are created later in this unit.
EU leaders
As the development of the EU has been a gradual one, different powers were gained at different times. On joining the EU, a country agrees to accept the law-making powers of the EU institutions. It becomes a new source of law for that member state. EEC, EC or EU? One thing which can be confusing when you start to study the influence which the law relating to the EU has on UK law is the terminology and, in particular, what the difference is between the EEC, the EC and the EU. For the purposes of your W100 studies you need not worry about this. The expressions are often used interchangeably.
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However (contrary to what is widely believed), the EC and the EU are not the same, and you might find it helpful to have a brief overview of what the difference is. The following key dates summarise this for you. 1952 The Treaty of Paris establishes the European Coal and Steel Community. 1957 Six Western European nations (France, Italy, West Germany, Luxembourg, Belgium, and the Netherlands) create the European Economic Community (the EEC) by adopting the Treaty of Rome. The Treaty deals with trade and economic matters, but also contains many provisions covering other areas (for example, that as a matter of social policy, rather than economics, men and women should get equal pay for equal work). 1973 The UK (along with Eire and Denmark) joins what is still the EEC. 1980s The non-economic aspects of the Treaty of Rome assume increasing importance. Many commentators start referring to the EEC as the European Community (EC) to reflect the fact that the Community is not confined to trade and economics. 1993 The Treaty on European Union (also known as the Treaty of Maastricht) comes into force. This creates the European Union (EU), which is primarily a political and geographical entity, but with a commitment to economic and monetary union between its member states. The EU is a separate entity from the EEC, which is officially renamed at this point as the European Community (EC). However, legally speaking, the EC is a part of the EU. This can be a confusing concept, and there is no need for you to be concerned about it for W100 purposes. All the member states of the EC are also member states of the EU. 2001 The Treaty of Nice sets out institutional changes to the EU. These changes were made in anticipation of the enlargement of the EU. 2004 The biggest single enlargement of the EU takes place with ten new countries joining. Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. 2005 and 2006 Referendums are held in France and Holland on The Constitutional Treaty. In each country the voters reject the Constitutional Treaty. The Constitutional Treaty is not implemented. This rejection leads to a period of reflection within the EU. 2007 The Lisbon Treaty The details of the Reform Treaty are made known. The Reform Treaty becomes known as the Lisbon Treaty after the city in which it was signed by EU members. Reform is needed as the original treaties were designed for an organisation with significantly fewer members.
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2009 Following referendums in a number of EU member states the Lisbon Treaty enters into force on 1st December. The appointees to two new positions are announced, Herman von Rompuy as president of the European Council and Baroness Cathy Ashton as High Representative of the Union for Foreign Affairs and Security Policy. The Lisbon Treaty amends the Treaty on European Union and the Treaty establishing the European Community. Until the Lisbon Treaty the European Community and European Union had different powers and did not operate by the same decision making rules. The Lisbon Treaty ends this by giving the European Union its own legal personality.
SUMMARY
The Council of Europe and the EU as organisations share a few similarities. Member states must join (although the process for joining is different in each case) and having joined they accept the law-making powers of the organisation. Both arose out of great social and political upheavals and in each case the use of law-making powers was seen as one of the methods of achieving their aims of preventing such horrors from occurring again, developing a new European order and European integration and harmonisation. Each operates very differently however and this is what you will now consider.
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Part A The European Convention on Human Rights

This section will briefly explore the European Convention on Human
Rights and the Human Rights Act 1998. Both are concerned with human
rights.
The European Convention on Human Rights (ECHR), as you have learnt,
was a result of the work of the Council of Europe following the Second
World War. The Statute of the Council of Europe was signed on 5 May
1949 in London. It had been achieved through international negotiations
in the post-war period which had seen Europe once more divided: this
time into a democratic West and communist East. The aim of the
Council was to:
Article 1(a)
achieve a greater unity between its members for the purposes of
safeguarding and realising the ideals and principles which are their
common heritage and facilitating their economic and social progress.
Article 1(b)
This aim shall be pursued through the organs of Council by discussion of
questions of common concern and by agreements and common action in
economic, social, cultural, scientific, legal and administrative matters
and in the maintenance and further realisation of human rights and
fundamental freedom.
The drafting of the ECHR was no easy task. There was a tension
between the common law traditions of England (which preferred precise
drafting) and the civil law traditions in Continental Europe (which
preferred generalised statements of principle). In addition there was the
matter of which rights should form part of the Convention: what
represented the basic human rights? Should there be a court which
allowed member states and individual citizens to enforce their rights?
The treaty itself was largely drafted by UK lawyers, including a future
Lord Chancellor, Sir David Maxwell Fyfe. In the drafting of the
Convention certain English domestic legal documents and procedures
were drawn upon including the writ of habeas corpus, the 1215 Magna
Carta, the Bill of Rights and the Act of Settlement 1701. The drafting
team also drew upon some of the other international agreements which
were being signed at this time, including the 1948 Universal Declaration
of Human Rights from the United Nations.
The ECHR created what was in effect a system of European law which
held member states accountable to an international court in respect of
their treatment of their own citizens. In this respect it was unique. You
will learn more about the power of the court later in your studies of W100.
The ECHR was signed in Rome on 4 November 1950. The first country
to ratify the ECHR was the UK on 8 March 1951. The ECHR came into
force on 3 September 1953 and the European Court of Human Rights
started its work in 1959. The ECHR has proven to be politically
attractive, and signing it has become the prerequisite for membership of
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the Council of Europe. It has been particularly attractive for European countries seeking to establish democratic credentials. For example, Spain joined in 1977 following the death of General Franco, Greece rejoined in 1974 (it had left in 1966 and sought to rejoin when democracy had been restored) and over the last decade many Eastern European countries have joined following the fall of communist rule. Currently 47 European countries have signed the ECHR.
The Articles of the ECHR

The ECHR is regarded as a living document and has been added to over the years. When the original Convention was signed in 1950 there were still ongoing discussions about rights to education and property. These are now included in the First Protocol, a document separate from the original Convention but which supplements it. The first Protocol was signed on 20 March 1952. A number of further Protocols have been signed, for example, the Fourth Protocol which contains four rights including the prohibition of imprisonment for debt, the Seventh Protocol which contains five rights including the right of appeal in criminal cases and the right to compensation for wrongful conviction, the Thirteenth Protocol which prohibits the death penalty for criminal offences. Member states have the ability to choose whether or not they accept additional Protocols as they supplement the original Convention.
ACTIVITY 2 Drafting a charter of rights (allow 15 minutes)..................................................
Imagine that you are on a team representing the UK at international negotiations. The team is negotiating a new international charter with the aim of guaranteeing specific rights to individuals. What specific rights would you seek to include?
Comment
Often the specific individual rights we value are a result of our own experiences. Our education, family, social peer group, beliefs and values, societal norms and culture influence us. These influences impact on our priorities and reactions. Imagine the challenges of getting a group of ten diverse individuals to agree something as simple as whether all would like either a hot or a cold beverage and then imagine the challenges of getting European governments to agree to a binding European agreement on their citizens rights. An agreement is much more likely to be reached if documents contain wide provisions. Compare the rights you have listed with the following list of the rights contained in the ECHR itself. You are unlikely to have produced a list that covers all the rights listed in the ECHR and it is likely that some of the rights you may have listed may not be shown. This is because some rights are implied within other rights, for example, a suspects right to silence is covered by the right to a fair trial (Article 6).
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Article of ECHR 2 3 4 5 6 7 8 9 10 11 12 13 14
Right Right to life Right to be free from torture and from inhuman and degrading treatment Freedom from slavery and enforced labour Liberty of the person Right to a fair trial Freedom from retrospective punishment Right to respect for private and family life, home and correspondence Freedom of thought, conscience and religion Freedom to receive and impart ideas and information Freedom of association Right to marry and found a family Right to an effective remedy Right to enjoy other Convention rights without discrimination
You will discover more about some of these rights as you progress through your studies of W100. The ECHR places an important emphasis on individual rights but recognises that there is also a need to strike a balance between individual and collective rights. Member states may also make what is known as a reservation. This is a declaration which allows the state to agree to the ECHR whilst retaining a domestic law that is not in conformity but which that member state does not wish to alter. Such reservations have to be specific and lodged before the member state ratifies the ECHR. Member states may also make a derogation. This permits limited non-compliance with the ECHR. It is allowed only in times of war or public emergency which threatens the life of the nation. The derogation must be lodged with the Secretary General of the Council of Europe. However, there can be no reservation or derogation in respect of the death penalty. You will learn more about restrictions which may be placed on human rights in Block 6.
The European Court of Human Rights

In Unit 4 you considered common law, the court hierarchy in England and Wales, statutory interpretation and judicial precedent. These are all peculiar to common law systems such as domestic English law. The European Court of Human Rights operates in a different way. Unlike the principles of English law, the rights in the ECHR are stated in general terms and are interpreted according to international legal
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principles. For example, Article 31(1) of the Vienna Convention on the Law of Treaties states:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
This calls for a different approach to interpretation. Since it was created in 1959 the European Court of Human Rights has developed its own rules and procedures to deal with the cases that come before it. The Court derives its authority from the ECHR, its purpose being to deal with claims concerning breaches of the ECHR. It can hear claims made by one state against another state and by individuals against a state (although some countries have had restrictions on an individuals right to do so). However, an individual must have first exhausted all remedies in their own domestic legal system (which can be expensive and time consuming). You will study how claims are made to the European Court of Human Rights in more detail in Unit 20. The number of judges in the European Court of Human Rights is equal to the number of contracting states. The judges regard the ECHR as a living instrument so there is no doctrine of precedent. This allows for changes in society and attitudes to be taken into account when interpreting a Convention article. You will consider an example of this in Unit 6. The European Court of Human Rights seeks to realise the objects and purpose of the ECHR subject to the doctrine of the margin of appreciation. The margin of appreciation is an international doctrine/ concept and it allows states to accommodate their national traditions in applying the European Convention on Human Rights. You will learn more about this later in W100.
The ECHR and UK law

Until the Human Rights Act 1998 came into force an individual could not bring proceedings for infringement of ECHR rights in the UK courts. The UK courts did not have the jurisdiction to hear such cases. In fact the UK only granted the right to individuals to petition the European Court of Human Rights in 1966. (At that time, member states had the option of allowing their citizens the right of individual petition.) The Human Rights Act 1998 changed this. It has been seen by many to be one of the most important pieces of legislation ever passed and has been ranked alongside the Magna Carta and Bill of Rights (documents which were drawn upon in drafting the original Convention). Its significance results from the fact that it sets out quite clearly what rights must be respected and it applies to existing and all future laws. Even Parliament, the supreme law-making body in the UK, has to respect those rights. The Act, in effect, does the following:
.
All UK legislation must be interpreted so as to be compatible with the ECHR. This also applies to common law. It is unlawful for a public body to act in a way which is incompatible with an ECHR Right.
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The UK courts have power to award remedies for breach of ECHR Rights.
You will learn about the Human Rights Act 1998 in more detail in Unit 20. One final point to note. The Human Rights Act 1998 did not incorporate the ECHR directly into UK law. This means that the Human Rights Act 1998 differs in an important way from the European Communities Act 1972 which incorporated EU law and which you will learn more about later in this unit. By providing that domestic laws should be interpreted and given effect in a way which is compatible with the Convention, the Westminster Parliament has retained some sovereignty.
SUMMARY OF PART A
In Part A you have briefly explored the European Convention on Human Rights, the Human Rights Act 1998 and the European Court of Human Rights.
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Part B Why did the United Kingdom join the European Economic Community?
The UK joined the European Economic Community on 1 January 1973. It may seem surprising that the UK was not one of the original founding members as the country had played such an important part in the Second World War and in the establishment of the Council of Europe. In 1946 the Prime Minister of the UK, Winston Churchill had famously given a speech in which he declared that We must build a kind of United States of Europe. You may remember that a clip of this speech was contained in the DVD extract entitled The emergence of a European legal order. However, the early European economic initiatives, such as the development of a common market for steel and coal under the European Coal and Steel Community in 1951 were regarded with suspicion by the major political parties in the UK. They were reluctant to pass control of the British coal and steel industries to a supra national body. This may seem surprising today as both the coal and steel industry in the UK have declined; however, at the time, the coal and steel industries were at their peak and were seen as fundamental to economic growth. In the event, the European Coal and Steel Community proved a success and it was soon expanded to include other industries. There was also a move towards greater economic integration between the member states with the establishment of the European Economic Community in 1957. The UK had the opportunity to join and took part in the initial meetings. However, the British Government decided not to join for various reasons. They were concerned about the possible detrimental effect on trading links with its former colonies which now formed the economic alliance of the Commonwealth countries and also on the impact on trade with their wartime ally, the United States. The UK government also remained suspicious of handing part of their economic control to the supra-national bodies created by the Treaty of Rome as it meant relinquishing some of the sovereignty of the UK Parliament. In 1959 as a response to the fear of creation of trade tariffs on British goods by the EEC, the UK was instrumental in creating the European Free Trade Area (EFTA) of seven European countries (Portugal, Denmark, Austria, Norway, Sweden, Switzerland and UK), designed to form an alternative trading bloc. The countries of the European Economic Community saw rapid economic growth in the early 1960s whilst Britains economy stagnated. Consequentially, the UK government saw the need to become a member of the Community and began negotiations to join. These came to an end in 1963 when President de Gaulle of France vetoed the UKs application for membership and this rejection was repeated in 1967. However, when President de Gaulle resigned in 1969, the way was open for successful negotiations and in October 1971 the European Communities Act 1972 was passed by the UK Parliament by a majority of 112, and on the 1 January 1973 the UK become a member of the EEC, along with Eire and Denmark.
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The question of whether the UK should be a member of the EEC has always polarised public opinion. However when, in 1975, the Labour Government of Harold Wilson held a referendum asking people to vote on the UKs continued membership, 67% of voters voted yes to remaining in the EEC. A referendum as to whether we should remain a member state, or even on whether the UK should have joined in the first place, has never been held. Euro-sceptics can be found amongst sections of the British population, and also in politics -- not only within the main political parties but also with the creation of the United Kingdom Independence Party (UKIP) - and in certain sections of the press. The introduction to this unit provided a brief overview of the development of what we now commonly refer to as the European Union. One of the major concerns of the Euro-sceptics is that the UK has surrendered her sovereignty in that the EU is an increasingly important source of law in the UK and these laws have not been approved by the Westminster Parliament. Later on in this unit you will consider how European Union law is made before considering the effect that membership of the EU has had on the UKs laws. At this stage it is important to appreciate that it is an increasingly important source of law in the UK and has been important in certain areas in particular, such as:
.
Employment -- over the last 20 years the EU has been responsible for many of the key developments in employment law. In 1997 the Labour Government adopted the EU Social Charter and this has resulted in an increasingly comprehensive framework of anti discrimination laws, family-friendly rights in the UK and also the establishment of a minimum wage and maximum working hours. Consumer protection -- most notably the Consumer Protection Act 1987 which introduced no fault liability for consumers who are injured by defective products. Also the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) which aims to provide protection from misleading provisions in consumer contracts, such as use of small and illegible print, the imposition of unreasonable penalties on consumers and the use of clauses which allow the seller to exclude liability.
There are many other examples; the laws made by the EU are often technical or commercially orientated with the aim of ensuring freedom of trade. For instance, the UK law on insider dealing (which prohibits people who have confidential and price-sensitive information from using the information to make a profit from buying and selling shares) derives from a European Directive. Now that you have a background of the history and aims of the EU and also of the membership of the UK, you are going to learn about the institutions that are responsible for creating EU laws, the different types of EU law that exist and what effect they have on the member states.
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Map of the EU
SUMMARY OF PART B
In Part B you have learnt that although the UK was initially reluctant to join the EEC, its success meant that it was felt to be in the UKs best interest to join and membership was successfully achieved in 1973. You have learnt that membership has not been universally popular in the UK and that one of the reasons for this is that EU laws can be binding on the people within the UK without having been approved or discussed by Parliament at Westminster. You have also learnt that EU law is an increasingly important source of law within the UK.
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Part C Law-making and the European Union

The Treaties have created institutions which govern the EU (and outline the powers of each institution). The institutions exist independently of the national governments and national institutions of each of the member states. On joining the EU the member states agree to abide by the laws created by the EU institutions. This is unique, as the member states are independent nation states who make their own laws and who ordinarily would not recognise laws created outside their borders by another state or organisation. This is referred to as having sovereignty, as it is the authority of a state to govern itself. However, in the case of the EU each member state has agreed to relinquish part of their own sovereignty, and accept the supremacy of EU law and to delegate some of their decision-making authority to the EU. In effect this restricts their own national power and it is this aspect of the EU that is unique and often controversial. The need for European laws can be most dramatically demonstrated in the development of the single European market. Trade barriers and restrictions between the member states have been removed, there is free movement of people, goods and money between member states. In order to achieve this some of the laws of the member states have needed to be harmonised so that they are similarly applicable to all citizens across the EU. So, for instance, the laws on safety standards need to be similar across all the member states, otherwise countries who allow lax safety standards, and so are able to produce goods more cheaply, would have an unfair price advantage over other countries with higher standards. At times the process of harmonisation has been controversial. In the UK many people are unhappy about being bound by laws created by the EU institutions rather than through the Westminster Parliament (by the process you learnt about in Unit 3). A highly publicised example of this occurred in 2000 where the domestic laws on imperial weights and measures (e.g. pounds and ounces) were altered to comply with EU requirements of the use of a metric system (a decimalised system of measurement, including metres and grams). Having two different systems of measurement was seen as a barrier to free trade. The Units of Measurement Directive 80/181/EEC authorised the use of metric units for economic purposes and in 2000 this was adopted into UK domestic law by the Metrication Regulations. It became a criminal offence for sellers to display only the imperial measurements when selling their produce. When Steve Thoburn, a greengrocer, refused to use metric measurements when selling his fruit and vegetables he was prosecuted under the Weights and Measures Act 1985 and a group known as Metric Martyrs was formed to campaign against the adoption of the metric system of weights and measures by the UK.
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ACTIVITY 3 The Metric Martyrs (allow 20 minutes)....................................................................
DVD For this activity you will need to run your DVD and look for Unit 5 Activity 3 which contains a video clip exploring the case of the Metric Martyrs. The case illustrates very clearly the tension between the need for harmonisation and cooperation and a resentment felt by many people about what the media presents as the imposition of laws created by the EU.
Comment
The case of the Metric Martyrs created many heated debates at the time it was brought. It illustrates the legal process through which a particular case may go. It also illustrates how the media have reported on EU laws such as directives. . Please note that in 2007 the European Industry Commission ruled that imperial weights and measures could be displayed indefinitely alongside metric measurements. You are now going to focus on learning about the main law-making institutions: the European Commission, the Council of the European Union (also referred to as the Council of Ministers), the European Parliament, and the Court of Justice of the European Union.
The European Commission

The European Commission is the executive body that represents the EU as a whole and is independent of the national governments. It is made up of a team of Commissioners, one from each member state, who are usually appointed by the governments of each member state and chosen on the grounds of their general competence. Most Commissioners will have held political office in their country of origin; for instance, the former Labour Party leader Neil Kinnock was a Commissioner until 2004. Peter Mandelson, a former cabinet minister in the 1997 Labour
The European Commission Building (Berlaymont), Brussels
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Government, was a Commissioner until 2008. Commissioners should be completely independent in the performance of their duties as their allegiance is owed to the EU not to their own country of origin. The Commission has a number of functions. As the executive body the Commission implements the agenda set by the European Council by drafting new laws and ensuring that member states put new laws into effect. It is the only EU institution with the power to initiate proposals for legislation.
The Council of the European Union

The Council of the European Union (often referred to as the Council of Ministers -- as we refer to it in this unit -- or simply as the Council but not to be confused with the Council of Europe) represents the interests of the individual member states. It comprises of one minister from the government of each member state. It is a permanent body based in Brussels and is divided into several different councils dealing with different policy areas. Each council is attended by a different minister, so the environment ministers of the member states will attend the council that deals with environmental and related issues. Each minister of each EU member state who sits in the Council is answerable to their national parliament and through this to the citizens of their member state. This is meant to ensure the democratic legitimacy of the Councils decisions. The EU member states take turns in presiding over the Council meetings. The Presidency rotates every six months and therefore each EU member state, at some point, has the opportunity to take charge of the Councils agenda and to promote legislative and political decisions. The Treaty of Lisbon slightly alters this process. The Treaty created the post of High Representative of the European Union for Foreign and Security Policy. Meetings involving foreign ministers will now be chaired by the holder of that position and not the minister of the country holding the rotating six month presidency. The aim of this is to make the system more coherent and effective. The Council of Ministers has several different roles:
.
to consider and approve the legislative proposals from the Commission, and to formally request that the Commission legislate on a particular topic.
The Council should be distinguished from the European Council which is the name given to the high profile summits held 2--4 times a year where the heads of state or of government and the foreign ministers of the member states meet to discuss issues of common interest, to formulate overall EU policy and to review progress. The Council of Ministers shares law making and budgetary powers with the European Parliament. The process by which the Council of Ministers makes decisions has been changed by the Treaty of Lisbon. From 2014
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a new voting method will be used. The new method of voting is called double majority voting. Its purpose is to reflect the legitimacy of the EU as a union both of citizens and of member states. Proposed EU laws, before being passed by the Council, will require a majority of member states (55%) representing at least 65% of the EU population. The idea behind this system is to make EU lawmaking more transparent and more effective. Ministers from every EU country meet to take joint decisions on EU policies and legislation.
The European Parliament

The European Parliament consists of 751 (750 plus the president of the parliament) members who are directly elected every five years by the population of each of the member states. It is a democratically elected body that represents some 500 million people of the EU. The UK currently has 72 Members of the European Parliament (MEPs). Do you know who your MEP is and when they next stands for re-election? This is, in fact, now more complicated than it used to be. Since 2004, your local MEPs have operated a sort of group practice -- you arent represented by a single MEP in the same way as you are by a single MP. Robert Kilroy-Silk and Glenys Kinnock have been two of our more high profile MEPs. MEPs sit in their political groupings rather than by nationality. The European Parliament only sits in full (referred to as plenary) session in Strasbourg for one week of each month. However the committees and administration that serve it are in Brussels and Luxembourg
Elected representatives of the EUs citizens at work in the European Parliament
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respectively, so MEPs spend their time travelling between these places and also visiting their constituencies in their member states. The European Parliament fulfils three main functions:
.
Broadly speaking, in many circumstances it shares the power of law making with the Council of Ministers. It can also formally request that the Commission legislate on a particular topic. It exercises democratic supervision over all the institutions. It has the power to compel the Commission to resign as a body. This power, however, is not used lightly and, from the five motions of censure tabled so far, three have been rejected when put to the vote. The most recent such motion of censure was in January 1999. It shares authority with the Commission for approval of the Budget.
European Parliament, Strasbourg
The Court of Justice of the European Union

The Court of Justice of the European Union sits in Luxembourg and is composed of one judge for each EU member state. They are appointed by the governments of each member state for a six-year term and are made up of those who would be eligible for judicial office in the member state in question, and also leading academic lawyers. Unlike the English legal system, which you read about in Unit 4, the judges only deliver one judgment (there are no dissenting judgments) and there is no system of precedent, so judgments of the Court of Justice of the European Union are not binding on future cases but in practice are usually followed. Courts in the member states must obey rulings of the Court of Justice of the European Union: in this sense, its rulings are binding. The Court of Justice of the European Union has several roles:
.
To hear complaints that a member state has not fulfilled its Treaty obligations -- the complaint may be brought by the Commission or
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another member state. Past actions against the UK have concerned the failure of the government to remove import restrictions on products such as milk and potatoes and their refusal to introduce compulsory tachographs in lorries.
.
To hear complaints against the European institutions -- it may be that they have not acted legally or have failed to follow the correct procedures. They may have refused to act when under a duty to do so. For instance, in the case of Laurent Piau v European Commission (Case T-194/02) of 26 January 2005, concerning the regulations governing football players agents, the Court decided that the Commission had acted within its powers by deciding not to take further action with regard to FIFA regulations on football players agents. To make preliminary rulings on the interpretation of EU laws -- the courts of each member state are able to make a reference to the Court of Justice of the European Union to obtain a ruling on how a particular provision of EU law should be interpreted. When the Court of Justice of the European Union has given the ruling it is then referred back to the national court so they can apply it to the facts of the case. This ensures that EU legislation is interpreted and applied consistently in each EU member state. You will read about the use of this process in a case concerning gender reassignment later on in the unit.
The Court of Justice of the European Union
If a member state fails to comply with a ruling by the Court of Justice of the European Union, the European Commission can bring the matter before the Court, which may deliver a judgment declaring that the member state has failed to fulfil its obligations under the Treaties and require it to take the necessary measures to comply with the decision of the Court. If this fails, the Court can impose financial penalties on the member state involved. For example, in 2002 the Commission demanded that a fine of E160,000 a day be imposed on France for illegally maintaining its import ban on British beef. No fine was ever imposed, as France subsequently lifted the ban but the threat was seen by many commentators as being instrumental in France lifting the ban.
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The Court of Justice of the European Union was formerly known as the European Court of Justice and you may see reference made to the European Court of Justice in cases heard before 2010.
The Lisbon Treaty

The Lisbon Treaty is a significant and important development for the EU. The Treaty clearly sets out limits on the EUs powers and, for the first time, includes a provision for a member state to withdraw from the EU. The EU can only exercise the powers that have been conferred on it by Treaty.
.
The EU has exclusive jurisdiction over competition rules, monetary policy of the Euro area and the common commercial policy Member states have primary responsibility in the areas of health, education and industry The EU and member states share competence in areas such as the internal market, agriculture, transport and energy Under the Treaty all proposed EU laws will be sent to the parliaments of member states will have eight weeks to present an argument if they feel the proposed law is not appropriate for EU action
The Lisbon Treaty also makes the Charter of Fundamental Rights (signed by member states in 2000) legally binding. When the EU proposes and implements laws it must respect the rights in the Charter. Member states must respect the rights in the Charter when implementing EU laws (you will learn more about this in unit 20). The Treaty also allows the EU as an institution to seek accession to the European Convention on Human Rights (you will learn more about this in Unit 20)
SUMMARY OF PART C
Here you have learned about the legal rule-making mechanisms which characterise the EU and its main constitutive institutions: the European Council, the European Commission, the Council of the European Union (Council of Ministers), the European Parliament and the Court of Justice of the European Union. These institutions complement each other in their legislative functions in order to deliver a body of law that applies to all the member states.
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Part D How European Union law is created
In Unit 3 you learnt how UK law is created through the Parliamentary process. In Unit 4 you learnt about the development and purpose of common law. Both legislation and common law are created by well recognised and established processes which have been refined over a number of centuries. EU law also goes through a formal process to become recognised as a law and in this section you will learn a little about how this is done and the issues that surround the EU legislative process. A number of the EU institutions you have just learnt about play a role in creating EU legislation. The process of law making is complex and the Treaties state which law making procedures are to be used. The explanation of the law-making process that follows has been simplified to provide a basic outline of the part that each institution plays in the process. Proposals for legislation These are initiated by the European Commission (which has the support of its own civil service in preparing the proposals). The Council of Ministers and European Parliament are able to make a formal request to the Commission to initiate a proposal for legislation. They cannot initiate legislation themselves. Initiating the proposals The European Commission initiates the legislative process; this usually occurs after widespread consultation with the other institutions of EU, the member states and relevant pressure groups. Once approved by the Commission, the proposals are sent to the
European Parliament and to the Council of Ministers.
Approval by the European Parliament Initially the European Parliament had only a consultative role and its vote could subsequently be ignored by the Council of Ministers when they considered the proposals. The Single European Act 1986 sought to rectify this by the introduction of several new legislative procedures which gave the European Parliament a more central and powerful position in the process. Two of the legislative processes were:
.
The cooperation procedure -- the European Parliament may reject the Council of Ministers position on the proposed legislation, and then, although the Council of Ministers can still pass the legislation, the Council of Ministers must act by unanimous vote. The codecision procedure -- this places the European Parliament and the Council of Ministers on an equal footing. The Commission sends legislative proposals to both institutions. They each read and discuss those proposals twice in succession. If they cannot agree, then the proposals are put to a conciliation committee. This committee has an equal number of representatives from the Parliament and the Council, the proposal will not continue if the agreement of the Committee cannot be obtained. This effectively gives the European Parliament a power of veto -- it can stop a law being passed -- and is the
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legislative procedure which gives the European Parliament most power. The procedure is used only for legislation in certain policy areas, but we have now reached a point where well over half of EU law is passed using codecision. The Treaty of Lisbon increased the number of areas where the European Parliament will share the power of law making with the Council of Ministers (by including the areas of freedom, security and justice). Under the Treaty of Lisbon the co-decision procedure will be re-named the ordinary legislative procedure. Approval by the Council of Ministers -- it considers and approves legislative proposals from the Commission. The Council has a pivotal and powerful role in creating new EU law as it must approve any proposals for legislation. You may be wondering why the only directly elected body, the European Parliament, does not have wider law-making powers. There is still considerable criticism of the fact that, despite being the only directly elected body, the European Parliament has to share the power to create new EU laws with the Council of Ministers. (This is sometimes referred to as the democratic deficit.) This can be contrasted with the position in the UK which you learnt about in Unit 3, in which the Westminster Parliament as the democratically elected body has the pivotal role in creating UK domestic law and remains the supreme law-making body on domestic matters.
ACTIVITY 4 Europe and UK domestic law (allow 20 minutes)................................................
DVD
Please note that this is an instance where the DVD numbering differs from that in the unit activity as explained in the introduction.
For this activity you will need to run your DVD and look for Unit 5 Activity 5 -- Europe and UK domestic law. After an introductory sequence in which we hear some criticism of the law-making structures of the EU, you will see Nick Clegg, who at the time was an MEP (and who subsequently became leader of the Liberal Democrat party in the UK and MP for Sheffield Hallam and at the time of writing is the UKs Deputy Prime Minister) , explain the process of passing a regulation. You will hear some interesting comments about the balance of power between the institutions. This clip was created before the Lisbon Treaty came into force. The debates and discussions you will watch remain relevant however.
Comment
No comment has been designed for this activity as its purpose is to help you consolidate the reading you have undertaken by watching images of the institutions and listening to an explanation of a law-making process and the negotiations which may precede it.
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SUMMARY OF PART D
This part has considered some of the issues surrounding the EU legislative process by looking at a simplified explanation of the law-making process and the views of an MEP.
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Part E Sources of European Union law
As you learnt earlier in this unit, the EU needs to create laws which apply in all member states as a means of achieving its aims. The main sources of EU law are:
.
EU primary legislation -- which is the law contained in the treaties and ancillary agreements EU secondary legislation -- in the form of regulations, directives, decisions, recommendations and opinions rulings on cases brought before the Court of Justice of the European Union
EU law binds EU member states they must: take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty . . . As you will remember, the EU is unique in that its laws are capable of having internal effect within a member state, without the need to be approved by the parliament or other legislative body of that member state. Normally, international agreements such as treaties are not binding within a country unless they are approved by its Parliament and incorporated into its own domestic laws. In contrast, EU law is enforceable within the UK and is capable of being directly effective meaning that institutions and individuals can rely on a provision of EU law, even though it was not approved by the Westminster Parliament.
EU primary legislation
Earlier in this unit we learned that the different stages in the development of the EU have been marked by the adoption of intergovernmental documents called treaties. These are the primary source of EU law and they set out the rules which govern the way the EU operates as an institution and provide for its law-making powers. In effect they create the constitution of the EU as they cover the rules which govern the institutions, the powers of the institutions and the decision-making and law making processes.
EU secondary legislation
The law made by the EU institutions in exercising the powers conferred on them by the treaties is referred to as secondary legislation. It can take several different forms:
. . . .
regulations directives decisions recommendations and opinions.
Regulations
A regulation has general scope and is obligatory on all member states without the need to be approved through their parliaments. It is binding in its entirety and directly applicable in all member states. An example
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of a law created by regulation is the creation of an EU design right, which is similar to the existing registered and unregistered design rights in the UK. A further example of a regulation was one which required the installation of tachographs (mechanical recording equipment which measures time elapsed) in lorries, which the UK government of the day decided not to implement. The matter was referred to the European Court of Justice (now known as the Court of Justice of the European Union) which held that member states had no discretion: regulations automatically became law in member states. Re Tachographs: Commission v United Kingdom (1979) (Case 128/78). Regulations ensure the uniformity of certain laws across all member states.
Directives
A directive is a formal command to member states requiring them to change their laws so that they achieve a particular result. This system is commonly used, as many member states have different laws, practices and customs and will need to change their laws in different ways to comply with EU law. So a directive has to be implemented by each EU member state through its own domestic legislative process. When a directive is passed by the EU institutions the member state is under an obligation to enact it within a certain time limit. A directive can only be relied on directly as a matter of direct effect if it fulfils the relevant criteria and is being used against the state or an emanation of the state. After the enactment of a directive, the EU member states will generally be given a period of time within which to bring their domestic law in line with the objectives of the directive. Infringement proceedings can be brought in the Court of Justice of the European Union against a member state who fails to comply. There are numerous examples of directives that have become part of English law; for instance, The Working Time Regulations 1998 (SI 1998/1833), a UK statutory instrument which (inter alia) imposes limits on working hours, derives from the Working Time Directive 1993 (93/104/EC).
Decisions
A decision is a legal tool designed to allow the EU institutions to order that a measure be taken in an individual case. So a decision tends to be specialised and particular in its character. It will address particular individuals, firms or EU member states. The decision is directly applicable and is binding only upon the persons to whom it is addressed. A decision may be addressed to a particular industry or sector; for example it may be used to set standards for certain agricultural products
Recommendations and opinions

These have no binding force and, therefore, are ineffective as EU law. However, they can have persuasive authority. They are used to promote the implementation of common practices throughout the member states. If a recommendation or opinion is ignored, it may later be followed up with a stronger legislative initiative, such as a decision or directive.
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Decisions of the Court of Justice of the European Union

You have briefly studied the role of the Court of Justice of the European Union in an earlier section. Over the years, its decisions have built up a body of judge-made law that can be used as guidance on the application and interpretation of EU law. For instance, in 1982 the then European Court of Justice was required to consider the meaning of the word worker as the EU single market legislation provides for freedom of movement for workers of the member states across the national boundaries of member states. The European Court of Justice made it clear that in this context the word worker should not be interpreted differently by each member state. They decided that worker included both part-time workers and those on or below the national minimum wage, so long as the person was in pursuit of effective and genuine activities and that the activities were not on such a small scale that they were purely marginal and ancillary. This definition has subsequently been used by the European Court of Justice and provides the basis on which member states must ensure that immigrants from other EU countries have access to their internal labour market.
SUMMARY OF PART E
Table 1 summarises the main aspects of Part E.
Table 1 Types of law and their effects
Type of law Treaties Regulations Directives Directly applicable Directly applicable Not directly applicable, but individuals can claim against the state for loss caused by a failure to implement the directive Decisions are binding only on those to whom they are addressed These have no binding force and are of persuasive authority only Effect
Decisions
Recommendations and opinions
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Part F The effect of European Union law on the United Kingdom

As you have learnt, the UK became a member of the EEC on 1 January 1973 by virtue of the European Communities Act 1972 which incorporated EU law into UK domestic law. EU law now forms an important part of UK law. In the case of H. P. Bulmer Ltd v J. Bollinger SA [1974] EWCA Civ 14, Lord Denning vividly describes the impact of the Treaty of Rome on England and Wales.
The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English Law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.
By becoming a member state of the EU the Labour government of the time in effect created a new source of law for UK lawyers and judges to refer to when representing their clients or making judgments in judicial proceedings. If there is a conflict between EU law and UK domestic law on a particular point, section 2(4) European Communities Act 1972 makes it clear the English law should be interpreted and have effect, subject to the principle that EU law is supreme. This means that EU law may now take precedence over any source of UK domestic law in cases of conflict.
ACTIVITY 5 The supremacy of EU law (allow 25 minutes).......................................................
You may have very decided opinions on this issue or know someone who has. It has at times been controversial. Write a short explanation of why the supremacy of EU law has been controversial. Now that you know more about the operation of the EU and its institutions, what your views are on the issue and has what you have learnt changed your opinions? If so, how?
Comment
The supremacy of EU is controversial as it means that on the occasions where there is a conflict with EU law, the laws created by the Westminster Parliament which is made up of people who have been democratically elected by the citizens of this country can be overruled. To many people this seems unfair and undemocratic. It contradicts the principle of sovereignty, a nations right to govern itself. This subject often elicits strong opinions. You may believe that a countrys right to sovereignty should never be compromised or you may think that the effect of EU law is exaggerated as many UK laws remain unaffected by the influence of the EU. You may feel that it is a price worth paying for the economic advantages of belonging to the EU. This leads us to the next issue of why EU law should have precedence over the domestic laws of the member states.
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The precedence of EU law is necessary to ensure the proper functioning of the EU. If EU member states had the power to ignore or annul EU law by adopting new domestic (national) law in conflict with the EU law, or if the member states could simply give precedence to domestic (national) law, then the EU policies would be impossible to pursue and achieve. The practical impact is that UK citizens can enforce new rights under EU law even if it is at contradiction with UK domestic law. For instance, in 1994 the Equal Opportunities Commission argued successfully that domestic legislation which gave part-time employees fewer employment rights than full-time employees contravened Article 141 of Treaty of Rome and directives made under this Article. The UK government was forced to change the law so that it complied with EU law and part-time employees gained more employment rights. Membership of the EU has also affected the interpretation of statutes by UK domestic courts in several ways. The European Court of Justice (now the Court of Justice of the European Union) has made it clear that where a provision of domestic law is open to interpretation, courts should seek to interpret that law as far as possible in line with the purpose and wording of any relevant directive. EU membership has also affected the judicial approach to statutory interpretation. You learnt about the different rules of statutory interpretation in Unit 4, when the use of the purposive approach was mentioned and you may find it helpful to re-read that section to remind yourself of the principle. UK courts are required to adopt the purposive approach when interpreting EU law, and look to the spirit and intent of the legislation. This represents a radical departure from the more limited approach of the literal rule. If the interpretation of an EU law is an issue, UK courts are able to make a reference to the Court of Justice of the European Union for a preliminary ruling on how the provision should be interpreted. You learnt about this procedure earlier in this unit.
An example of the effect of EU Law on the United Kingdom

The following case study based on the facts of P v S and Cornwall County Council [1996] All ER 387 shows how the UK domestic courts can refer a matter to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the words of an EU directive and how Parliament may need to alter UK domestic law to ensure that it complies with its EU obligations. You have read about this when considering the role of the European Court earlier in this unit. At this time the Court of Justice of the European Union was known as the European Court of Justice.
The facts
In 1992, P who was employed as a general manager of an educational unit by Cornwall County Council informed his employers that he intended to undergo gender reassignment to live as a woman. Three months later she was dismissed. P brought a claim of sex discrimination to the Truro employment tribunal. She claimed that under the Sex Discrimination Act 1975 she had been treated less favourably because of her sex.
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The tribunal decision

The tribunal found that it was not a case of sex discrimination under Sex Discrimination Act 1975 as this requires a comparison with the treatment of a member of the opposite sex and a female wishing to have gender reassignment to become a male would be likely to have faced the same treatment. However, the tribunal considered that the provisions of the Sex Discrimination Act may be inconsistent with the wording of the EEC Equal Treatment Directive (76/207/EEC). So they used the mechanism by which a domestic court of an EU country can make a reference to the European Court of Justice requiring a preliminary ruling on the interpretation of European legislation.
The European Court of Justice decision

The European court of Justice considered the wording of the Equal Treatment Directive which states that there should be equal treatment for men and women and that in particular there should be no discrimination whatsoever on the grounds of sex. Accordingly, they decided that it was a case of discrimination on the grounds of sex, as the Equal Treatment Directive was an expression of the principle of equality which is one of the fundamental principles of EU law. The Court also emphasised that they believed that the right not to be discriminated against was a fundamental human right which they were under a duty to protect. This approach meant that the Equal Treatment Directive could not be confined just to discrimination based on the fact that a person is one or other sex, but, in view of the purpose and nature of the rights which it seeks to safeguard, the scope of the Directive applies to discrimination arising from gender reassignment.
The consequences
This judgment meant that the UKs domestic law on discrimination did not comply with the Equal Treatment Directive. The doctrine of supremacy of EU law meant that Parliament needed to amend the Sex Discrimination Act 1975 and, in 1999, the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) added a new section 2A to the Sex Discrimination Act 1975. It provides that less favourable treatment of a person is unlawful if it is on the ground that she or he intends to undergo, is undergoing or has undergone gender reassignment. It also went further in that it is also unlawful for an employer to apply rules concerning absence which are less favourable to those that would apply to a worker absent on grounds of sickness or injury or any other cause. This is designed to cover the time off required for gender reassignment.
ACTIVITY 6 Summary of unit 5 (allow 45 minutes) .....................................................................
To consolidate your studies of unit 5 I would now like you to draw a diagram to illustrate sources of European law. Your diagram should illustrate the sources of law and indicate how they impact on the UK.
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Comment
In attempting this activity I drew the diagram below.
all legislation is to be interpreted so as to be compatible with the ECHR it is unlawful for a public body to act in a way which is incompatible with a right contained in the ECHR UK courts have the power to award remedies for breach of ECHR rights.
Has a number of objectives including promote economic and social progress achieve balanced and sustainable development develop the Union as an area of freedom, security and justice European Communities Act 1972 incorporates EU law into UK law powers to make law and details of the institutions which can make law are set out in a number of Treaties European Union applies and interprets EU law Court of Justice of the European Union the Treaties Secondary legislation
about individual rights
Human Rights Act 1998 (does not incorporate ECHR into UK law)
European Convention on Human Rights original convention supplemented by Protocols
European Sources of Law
European Court of Human Rights
Lawmaking
deals with claims concerning breaches of the ECHR
the convention is a living document
Primary legislation
this may lead to the change of the law in a contracting state
T European Commission he proposes legislation. T Council of Ministers he and European Parliament consider and approve legislation. Note. Treaty of Lisbon creates opportunity for Parliaments of member states to consider proposed legislation
Regulations apply in all member states (no need for member states Parliaments to consider) Directives command to member states to change their laws to achieve a particular result. Requires action of Parliaments in member states Decisions applies to a particular situation and only binding in that situation
Figure 1 Sources of European law
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SUMMARY OF PART F
In Part F you have had the opportunity to appreciate the relationship between the EU law and the domestic law of the UK and to consider the impact of EU law in providing a new source of law which is capable of taking precedence over UK domestic law. Also the effect of EU on the UK courts interpretation of statutes. You have then seen the effect of the application of these principles.
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Unit 5 has added a further dimension to your knowledge and understanding of law making by introducing the European Convention on Human Rights and the EU as important sources of law. After studying Unit 5 you should be able to:
Part A
understand the system of rights created by the European Convention of Human Rights and the mechanism set up for their protection: You have seen that the ECHR emerged from the social and political aftermath of the Second World War. It emphasises individual rights and tries to provide a balance between specific individual and collective rights. The ECHR is applied in two ways -- through application by the national courts of member states and by the European Court of Human Rights. Unit 20 will consider the European Convention of Human Rights and its relationship with UK domestic law in more detail.
Part B
understand why the UK joined the EEC in 1973 and the basis of why membership has been controversial at times. The EU is a relatively recent development whose original purpose to encourage greater economic co-operation amongst European nations has been developed and expanded to create the European Single Market and potentially even greater political unity. It has as its basis a number of European treaties.
Part C
explain the main EU institutions and their legislative functions:
. . . .
the European Commission the Council of the European Union/Council of Ministers the European Parliament the Court of Justice of the European Union.
Part D
provide a brief overview of how EU law is created
Part E
understand the sources of EU law:
. .
the EU primary legislation (the European treaties) the EU secondary legislation (regulations, directives, decisions, recommendations and opinions) rulings on cases brought before the Court of Justice of the European Union
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Part F
explain the effect of EU law on the UK explain the supremacy of EU law Subsequent units will assume that you have a basic grasp of both the European Convention of Human Rights and the EU. If you do not feel confident with the work you have done on Unit 5, you may wish to spend some time reviewing the notes you have made. The diagram below represents a summary of the sources of law in England and Wales you have learnt about in Units 3, 4 and 5.

Figure 2 Summary of the sources of law in England and Wales
You will have made your notes on the units in Block 1 in different ways. Take some time here to reflect on them -- what aspects of them have been useful to you and what aspects do you feel you could improve? You may find it useful to re-read the points made in Unit 1 on effective reading and note-taking. One further tip: you may find it helpful, as you move through the remainder of your W100 studies, having learnt about legislation and case law, to highlight the names of statutes of cases in a particular colour. This will enable you to locate them quickly as in eTMAs you are expected to use both legislation and case law wherever possible, to support the points you make.
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If you are following the W100 study calendar as advised, then your next week of study is a review and consolidation week. Use this week to reflect on your studies so far and to return to any of the material in Units 3 to 5 you do not feel confident about. In particular, reflect on the skills you have learned. How did you cope with the reading and note-taking skills you were required to use in Block 1? Were you able to identify relevant information in the Readings you were asked to consider, and were you able to present this information in a summary form? These skills are essential to your study of later units. If you are not confident, then return to the section on skills in the Introduction to W100, read the advice given there and practise these skills by making overall summary notes on the units you have studied so far. You should also use this week to prepare eTMA 02. Remember that the planning and preparation of your eTMA answers form an essential part of your studies and will assist you with the tasks you have been set. You will find the question for eTMA 02 in the Assessment Guide Part 1. Following the review and consolidation week you will move onto Block 2, which considers legal personality and is divided into three units. These units will explore the concept of legal personality, who has legal personality, and when legal personality can begin and end. You will also consider why certain acts become unlawful and how legal rules develop alongside social, economic and technological changes. At the end of Block 2, you will consider the relevance of states of mind in legal rules and how these are used to determine liability.
REFERENCES
Hartley, T.C. (1998) The Foundations of European Community Law, Oxford, Oxford University Press, pp. 11--13.
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ACKNOWLEDGEMENTS
Block 1
Grateful acknowledgement is made to the following sources: Text: Box 2, pages 46--47: Houses of the Oireachtas 2003 Page 72: Williams, G., Suicide as a crime, The Times, Feb 11th 1958 Page 76: Suicide Act 1961 is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO Page 80: From www.cps.gov.uk. Crown Copyright material is reproduced under Class Licence Number C01W0000065 with the permission of the Controller, Office of Public Sector Information (OPSI) Box, pages 116--117: Greater London Authority (2002) Trafalgar Square and Parliament Square Garden Byelaws, Greater London Authority Act 1999. Reproduced with permission from Squares Management Team, Greater London Authority Page 130: Scotland Act 1998 is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO Page 151: From www.opsi.gov.uk. Crown Copyright material is reproduced under Class Licence Number C01W0000065 with the permission of the Controller, Office of Public Sector Information (OPSI) Illustrations: Cover: Photodisc, Goodshoot, Dex Images, Digital Vision,
Rubberball
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Todd Holis/AP. Page 98: PH. Plailly/Eurelios/Science Photo Library.
Page 101: Courtesy of Paul Burstow. Page 104: H.J.Grubb.
Page 142: From the Historical Atlas by William R. Shepherd, 1923
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Pages 157, 162 and 176: Alamy. Page 159: Empics/PA. Page 168:
Guinness & Co. Page 177: By kind permission of LexisNexis
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Block 1

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W100 Rules, Rights and Justice: An Introduction to Law

Rules and rule making

Unit 1 Thinking about rules Unit 2 Making, interpreting and applying

The W100 team

BLOCK 1 RULES AND RULE MAKING

W100 Legislation list for Block 1

W100 BLOCK 1 RULES AND RULE MAKING

Unit Unit Unit Unit Unit Unit

Unit 3 Unit 4 Unit 4 Unit 5

European Union Legislation

Republic of Ireland Legislation

Treaties and Conventions

BLOCK 1 RULES AND RULE MAKING

W100 Case list for Block 1

BLOCK 1 RULES AND RULE MAKING

W100 BLOCK 1 RULES AND RULE MAKING

Thinking about rules

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 LEARNING OUTCOMES

UNIT 1 THINKING ABOUT RULES

W100 BLOCK 1 RULES AND RULE MAKING

Part A What is a rule?

Talking is not allowed in the library reading rooms

Talking in the library reading rooms is disturbing to other users

UNIT 1 THINKING ABOUT RULES

ACTIVITY 1 Understanding the term rule (allow 20 minutes)..............................................

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 THINKING ABOUT RULES

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 THINKING ABOUT RULES

Part B Other influences on our behaviour

ACTIVITY 2 Breaking social rules (allow 15 minutes) ................................................................

W100 BLOCK 1 RULES AND RULE MAKING

The development of social rules

UNIT 1 THINKING ABOUT RULES

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 THINKING ABOUT RULES

Did his family support his decision?

Did Matthew find studying for his A levels easy?

ACTIVITY 3 Rule making (allow 1 hour) .............................................................................................

What examples of different social groups does he give? (Section B)

W100 BLOCK 1 RULES AND RULE MAKING

3 What do you understand by the phrase empirical research? (Section C)

UNIT 1 THINKING ABOUT RULES

W100 BLOCK 1 RULES AND RULE MAKING

ACTIVITY 4 A gentleman removes his hat (allow 1 hour) ........................................................

UNIT 1 THINKING ABOUT RULES

3 Would you say that the guidance is specific or general?

6 What kind of social values do you think the passage illustrates?

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 THINKING ABOUT RULES

W100 BLOCK 1 RULES AND RULE MAKING

ACTIVITY 5 Rules, customs, roles and habits (allow 30 minutes)........................................

UNIT 1 THINKING ABOUT RULES

3. Greeting a visitor with a handshake. 4. Paying for shopping.

5. Cleaning the office kitchen.

W100 BLOCK 1 RULES AND RULE MAKING

UNIT 1 THINKING ABOUT RULES

Part C Rules and values

ACTIVITY 6 Expressing values (allow 20 minutes).......................................................................

Dignity Freedom of expression

W100 BLOCK 1 RULES AND RULE MAKING

Privacy Security Liberty