THE LAW MAKING

Cao Xuân Phong

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

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

Do you know that England belongs to Common Law tradition/family, while

Vietnam belongs to Civil Law tradition/family?
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 European law

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

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 EU laws
TREATIES REGULATIONS
Agreements of EU
Impose uniformity of
members
law throughout EU
Most important are Rome
1957, Maastricht 1992
revised by Lisbon 2009
DIRECTIVES
DECISIONS
Tool for harmonization Affect only particular
of law between individual or company
members Empower it to do smt or
Set aim, silent on prevent from doing smt
methods

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 Legislation

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

Do you know the Lord ranking? Duke, Marques, Earl, Viscount, Baron
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 Steps to bring a Bill to
Parliament
After consultation
Government
Government with interest
minister or
issues Green groups,
private P
Paper which sets Government
member
out legislative issues White
propose a Bill
discussions Paper, adding the
to P
intention of Bill

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

1st reading 2nd reading Committee Report

3rd reading
stage stage

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Bill Bill Bill Bill Bill
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• Publication • Debate on • Bill examined by • Amended bill • Final
of bill only general merit standing out to the approval at
committee, House for House
• No debate • No
section by further • At Common,
amendments discussions,
section and could only
to the bill amendments
be amended superficial
and approval changes may
• House may act
as committee • be made
 English Parliamentary Procedure
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CONSIDERATION
STAGE
Each House ROYAL ASSENT
considers & agrees Just a formal step
amendments of
other House

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 Delegated
legislation

Parliament

Make law, delegate power

Government or local authorities Parliament can exercise

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

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

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

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 + & - of delegated
legislation
ADVANTAGES DISADVANTAGES

Saving of parliamentary time Loss of Parliamentary control

“ Specialist knowledge

Flexibility

Legislation can take place

when Parliament is not sitting
Bulk and frequent changes

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 Tools for legislative
interpretation
1. INTRINSIC AIDS

2. EXTERNAL AIDS

3. JUDICIAL PRINCIPLES
(developed by the courts)

4. JUDICIAL PRESUMPTION

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 Intrinsic and External
Aids

Interpretation Act
Title
v 1978

EXTERNAL AIDS
INTRINSIC AIDS
Commission
Preamble Report

Terms def.
Hansard
(Legislatie history)

Side notes

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

The act is interpreted

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

Meaning suitable to Mischief Golden No internal

the purpose Rule Rule contradiction

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

Only UK
No alteration of common law

Gaps as it
Presumptions
Proper compensation

No Crown binding

Clear words on liberty

Criminal charge with proof

No retrospective effect
 Case law / Precedent

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Courts and case law
COURTS IN ENGLAND MAKE CASE LAW FEATURES
CASE LAW Slow development (only when a case
is brought before the court)
Narrow law (deal only with facts of
Before 19 century, case law case)
was key source of law in Develop only with regard to something
England already happend

COURTS AND CASE LAW

LEGISLATION v. CASE LAW NOWADAY

Parliament acts are faster developed Only higher courts retain limited law-
source of law, with high level of making powers, mostly in contract and
codification, more suitable to industrial torts
society
Courts now have interpretative power
 General court hierarchy
◇ Trial courts
◇ Lowest court in the system
◇ Where disputing parties bring their case to
◇ Courts decide case for the first time
◇ Disagreeing party may appeal decision to the higher court

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

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

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

• Decisions of Criminal Division bind all

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

• Decisions bind Crown courts, Magistrates’

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

• Decisions do not bind any UK courts

Crown Court

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

Key parts of a Court Decision

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

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

Fisher v Bell [1960] 3 WLR 919

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

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

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 + & - of binding precedent
ADVANTAGES DISADVANTAGES

Certainty Uncertainty

“
Flexibility Rigidity

Practical nature Retrieval problems

Speed Haphazard/unpredicted
development
Undemocratic

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 Thank you!
Welcome all questions,
comments and discussions!

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