What About Law?

Studying Law at University

Catherine Barnard, Janet O'Sullivan, G J Virgo

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509950119
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

"' What About Law? ' succeeds where so many legal guidebooks fail... [it] skilfully demystifies the law and ably proves its argument. The law is, indeed, all around us - and this book will whet your appetite to find out how and why." – Alex Wade, The Times (of the previous edition) Law is one of the few subjects that the school leaver, choosing a degree course, will have very little real understanding of. This book comes to the rescue by clearly setting out what a prospective law student can expect and why a student should choose to study law. This new edition is updated to reflect the reality of studying law today, highlighting changes due to Brexit and reforms to constitutional law. The book covers the compulsory subjects every law student has to study: contract, criminal, property and trusts law, and brings them up to date. With a clear core structure and approach it takes a case from each of these subjects to illustrate legal issues and methodology. The writing style is accessible and has the audience – novices to law – firmly in mind. What About Law? shows how the study of law can be fun, intellectually stimulating and challenging. It introduces prospective students to the legal system, legal reasoning, critical thinking and argument. Written by a team of experienced teachers, this book should be read by every student about to embark on the study of law.

1

Introduction to Law

Catherine Barnard, Janet O’Sullivan and Graham Virgo

STARTING TO THINK ABOUT LAW

Picture this. Laura, who is 17, organises a party at the family home while her parents are away for the weekend. It gets out of hand. For Laura and her parents, it is a nightmare. But for a lawyer, there are as many questions as there are empty bottles strewn the next morning across the prized living-room carpet. (We have assumed that there are no more coronavirus lockdown restrictions when you read this, but at the time of writing such a party would have been illegal)

What if the party was very noisy? It might have caused a nuisance to neighbours living nearby and those neighbours might have contacted the local authority, whose noise-prevention officers have powers to close the party down or require the noise to be reduced in some other way. If the party was large enough—and loud enough—to cause serious annoyance or inconvenience to the neighbours, Laura and her guests might even be prosecuted for the crime of intentionally or recklessly causing public nuisance and eventually punished.

What if the partygoers damaged the house or stole some of the family’s possessions? These are obviously criminal offences, but what happens if the perpetrators can’t be identified? Can guests be forced to give evidence of what happened? Can they get into trouble if they don’t name names? If the perpetrators are easily identified and have lots of money, Laura’s parents might even consider suing them for compensation to cover the cost of all the damage. If the parents choose not to bother, but claim instead on their household insurance policy, can the insurance company recoup some of the money it pays out to the parents from those responsible for the damage?

What if one of the invited guests, Malik, was seriously injured when he tripped over a loose paving-stone on the patio—a stone that Laura’s parents knew was dangerous and had been meaning to get fixed? He might want to sue the parents for compensation, but would it make any difference to his chances of success if the parents had expressly banned their daughter from inviting anyone to their home while they were away? And what if Malik was drunk or messing about when he tripped, but the paving stone was sufficiently dangerous that he would, more likely than not, have tripped and suffered the same injury even if he had been perfectly sober? Do people nowadays resort too readily to litigation when injured, unwilling to accept that they have no one to blame but themselves for what happened?

How would the arrival of gate-crashers affect the position? What was their legal status while in the house—were they trespassers? If so, what does that mean? They might be guilty of a crime, such as burglary if they intended to steal or damage property. Could they be forcibly ejected by Laura’s friends, even if this requires physical violence? What if Laura turned a blind eye to their arrival or appeared to welcome them, but later wanted to throw them out? And what if a gatecrasher is injured tripping on that same dodgy paving-stone?

Social media adds a new dimension to the problem. Perhaps Laura publicised the party on Instagram, or maybe some of her so-called friends hacked into her account and publicised the party without her permission. Would this generate any legal liability in itself? What about any responsibility of Instagram itself? Is it asking too much to expect a traditional, national legal system to cope with the challenges of an online world?

Did Laura buy alcohol for the party, even though there are supposed to be laws preventing that happening? Or did she raid the parental drinks cabinet? Are there any laws that penalise serving drinks to under-age people at private parties, or any licensing requirements that apply to such private gatherings? We all know about the problem of binge drinking, but some countries have laws imposing ‘social host liability’—this means that if a host has served alcohol and then allows an obviously drunk guest to drive home, the host might be liable to pay compensation if the drunk driver later injures or kills someone on the road. Should the same laws be introduced in the UK and, if so, should they apply just to commercial premises, like pubs, or should they apply to private parties too? And should they apply if the person killed or injured is not an innocent third party but the drunk driver?

Meanwhile, back at the party, what if some guests did things they deeply regretted next morning? If a woman consented to sex when drunk, but the man knew that she wouldn’t have consented if she had been sober: is he guilty of rape? And can a drunken consent to sex really be considered consent? What if a man believes a woman is consenting, but only because he is too drunk to realise that in fact she doesn’t consent? The legal age of consent to sex is 16, so what are the criminal law consequences of a 19-year-old man having sex with a 15-year-old girl who said she was 17, or of a 15-year-old boy having consensual sex with a girl his own age? Does it make any difference if the parties are the same gender? Is it right for the law to attach such overwhelming significance to the age ‘16’ in this context? Is it practicable to have laws that are so difficult to enforce?

As the party descended into chaos, there was a fight and a man was hurt. Can he sue the person who hurt him for damages, even though he was a willing participant in the fight? If the fighting spilled out onto the street, can the police arrest the perpetrators for causing a breach of the peace or for drunk and disorderly conduct? Are there any additional protections for under-age suspects?

Finally, the police raided the party and found that illegal drugs were being taken. Is it illegal to take drugs, to share them, or just to supply them? Is it economically and politically sensible to tackle drug-taking using the criminal law?

Laura is clearly going to be in trouble with her parents, but can she be held legally responsible for any of these events, even if she spent all night cowering in her bedroom, terrified and unable to do anything to bring the party to an end? And should her parents be regarded as legally responsible, even though they were not there and were horrified to discover the chaos when they got home?

* * *

One party, but so many diverse and fascinating legal issues. Some are about what the law is, others about why it is that way and others about whether the law should be changed. Lawyers have to think in those terms all the time. For many of the questions, there is no obvious ‘right’ answer, because the law is surprisingly open to more than one interpretation and because considerations of policy and fairness do not always point in the same direction. Lawyers and law students need to think about all these issues, and this book will give you a taste of the opinions and arguments that result.

In the chapters that follow, we look at seven cases—one from each of the core subjects that you must study if you wish to start out on the career path of becoming a lawyer. These subjects are essential building blocks for a proper understanding of law, regardless of whether you go on to pursue a legal career. First, however, we need to provide you with some of the basic tools of the trade to help make sense of the cases that follow. Why not start with a fundamental (and very difficult) question: what is law?

THE TOOLS

What Is Law?

The Oxford English Dictionary describes law as:

The body of rules, whether formally enacted or customary, which a particular State or community recognises as governing the action of its subjects or its members and which it may enforce by imposing penalties.

This definition is perfectly satisfactory as far as it goes, but it does not tell us much about what law really is, either as an academic subject or about the way it works for lawyers and members of the public. So let’s think in a bit more detail about where law comes from and the role it plays in different sorts of disputes. (Don’t forget that although this book focuses on court cases, knowing and understanding the law allows lawyers to settle disputes without them ever reaching court or, better still, preventing them from arising in the first place.) We will return to the essential question of what we really mean by ‘law’ in the final chapter, once you have read the rest of the book. It seems simple, but it is actually one of the most difficult and controversial questions raised by the philosophy of law (known as jurisprudence).

The Sources of Law

English law comes from a number of sources. First, because we do not have a written constitution in the United Kingdom, the laws with the highest authority in this country are statutes, passed by Parliament and given ‘royal assent’ by the monarch. Statutes, also known as Acts of Parliament, are referred to as primary sources of law. These primary laws may be supplemented by secondary sources, known as secondary or delegated legislation, usually in the form of Statutory Instruments (SIs). These are the nitty-gritty, detailed, technical rules fleshing out in more detail a provision laid down in a particular Act of Parliament. SIs are subject to less detailed parliamentary scrutiny. To give you an example, the right for parents with children and those with caring responsibilities to request flexible working hours is laid down in general terms in the Employment Rights Act 1996. But you will find all the details in various SIs such as Flexible Working Regulations 2014 (SI 2014/1398). However, when adopting Acts of Parliament and SIs, Parliament no longer enjoys the total freedom it once had: in the past it had to ensure that the rules did not contravene European Union law (considered further in chapter eight). Parliament must still ensure that the rules comply with the European Convention on Human Rights.

The statutory rules may also be accompanied by other documents which are not always legally binding but offer guidance to judges and other officials striving to apply these rules. These include codes of practice such as the Advisory and Conciliation Service’s (ACAS) Code of Practice on Disciplinary and Grievance Procedures at Work.

The second source of law is the common law, much of it made a long time ago by judges. It continues to develop as judges have to decide new and different cases. It is all rather mysterious, because strictly speaking judges don’t make new law, they merely declare and apply the existing law when deciding a case (although this is a bit of a chicken-and-egg puzzle because every common law rule must at some point in ancient legal history have been invented for the first time). This declaratory theory is certainly accurate insofar as it relates to judges in the ordinary or lower courts (we will return to the structure of the courts later). These are judges who decide initially which party wins a civil dispute, or who preside over criminal trials. However, when the losing side is unhappy with the result and takes the case further, to the higher or appellate courts, the senior judges who decide the appeal often do things that look very much like making new law, such as deciding to expand a rule to cover a new area, or reverse an earlier rule because it is now out of date or didn’t work very well. The appellate judges are adept at being creative with the existing law, managing to respect the declaratory theory while, in reality, changing the law slightly.

The basics of many important areas of law, such as contract, tort and equity (which are considered later in this book), are governed by judge-made law, although even these traditionally common law areas are increasingly being altered by statutory developments. Sometimes this happens when Parliament thinks that the common law is going in the wrong direction. At other times, politicians want to introduce a wholly new law in a particular area. Judges (however creative they are) cannot make major reversals or big changes to the common law—this requires legislation.

A good example of statutory intervention is the Unfair Contract Terms Act, passed by Parliament in 1977, which provided that certain very unreasonable contract terms and notices were no longer to be legally effective. Included among these clauses and notices were those which say that one person is exempt from any liability for negligently causing death or personal injury to another person. The courts had struggled for years to find common law solutions to protect people from onerous exclusion clauses and notices of this kind, but parliamentary intervention was able to do the trick in an instant. From the moment this statute was passed, it superseded all the old common law on the question of the validity of such notices and clauses. When passing the Unfair Contract Terms Act, Parliament had the benefit of guidance from the Law Commission. This body, consisting of judges, barristers, solicitors and academic lawyers, considers whether particular areas of law need reform, puts proposals for change out to consultation with lawyers and other interested parties, and produces reports detailing its final conclusions. Parliament is not obliged to implement the Law Commission’s recommendations, but sometimes does so.

Between 1972 and 2020 many statutes and statutory instruments were passed to give effect to the UK’s commitments to the European Union. So, for example, in July 1985 the European Community (which is what the European Union used to be called) adopted a Directive on Product Liability requiring Member States to implement domestic legislation providing that manufacturers would be liable, even if not at fault in the traditional sense, for any personal injury or damage to property caused by their defective products. This Directive meant that the 28 Member States of the European Union all had compatible, harmonised product-liability regimes. The UK government implemented the Directive by passing the Consumer Protection Act 1987. Following the UK’s departure from the EU, there is no longer an obligation on the UK to implement EU obligations. However, where the UK has already done so, as is the case with the Consumer Protection Act 1987, that is now described as ‘retained EU law’, in accordance with the European Union (Withdrawal) Act 2018, and continues to apply in the UK until Parliament decides otherwise.

Most statutes, even those introducing completely new rules, assume and build on the existing common law in some way—they rarely arrive out of a clear blue sky. For example, statutory provisions protect employees from being unfairly dismissed, but the question ‘who is an employee?’ is answered by reference to the common law’s understanding of a contract of employment. In addition, the common law often still has a role to play when a statute is enacted in a particular area. Judges may need to interpret what a particular statutory provision means and, having decided what it means, this interpretation will then become law in its own right and be applied in future cases.

By now, you will have worked out that existing common law cases, and the rules set down in them, are important in deciding new cases. They not only influence the result in the new case, but also dictate what that result will be, because the fundamental basis of the common law system is the doctrine of precedent. To grasp fully the importance of this doctrine, we must first understand the structure of the courts in England.

At its simplest, the structure of the courts (see the diagram on page 10, below) consists of trial judges at the lowest level, then the Court of Appeal and finally the Supreme Court. The doctrine of precedent requires the lower-level courts to be bound by the decisions of superior courts on matters of law—they have no choice but to follow the rule set down in those superior decisions. Don’t ignore the words ‘of law’ in the previous sentence—trial judges often have to decide between conflicting pieces of evidence and work out the facts of the case, and in this aspect of their decision-making the doctrine of precedent has no role to play. But where issues of law are concerned, a trial judge is bound by decisions of the Court of Appeal and the Supreme Court, and the Court of Appeal is bound by the decisions of the Supreme Court. In 2009 the Supreme Court replaced the House of Lords as the highest court. However, decisions of the House of Lords retain their superior status as precedent, a concept that we shall explain later. Following Brexit, pre-Brexit decisions of the European Court of Justice, the highest court of the EU, have the same precedential value as decisions of the UK Supreme Court but the UK Supreme Court and the Court of Appeal can depart from them where it is ‘right to do so’ (a test which raises all sorts of questions).

In addition, courts of a particular level are generally bound by decisions of other courts at the same level. So, for example, the Court of Appeal is bound by other, earlier, decisions of the Court of Appeal, although on very rare occasions it is possible for the Court of Appeal to overrule one of its own earlier decisions. Likewise, the Supreme Court can in theory overrule its own, earlier decisions, including decisions of the House of Lords, but like the Court of Appeal, it does so only on very rare occasions and for exceptional reasons. On the other hand, higher courts are not bound by decisions of lower courts. So, for example, the Supreme Court can, and frequently does, overrule decisions of the Court of Appeal in earlier cases, just as it can reverse the result in the particular case being appealed to it and allow the appeal.

This book focuses on the law of England, which includes the law of Wales. This system is primarily common law-based. Scottish law is different. It is derived from Roman law, which is the tradition which also applies in continental Europe. The Scottish system, also sometimes called the civilian system (not to be confused with the more common meaning of the phrase ‘civil’ law as the opposite of criminal law, which is discussed below), is based on formal written Codes prescribing the detail of the law. In contrast to the common law, civilian judges have no law-making function at all, other than in interpreting and applying the Code. However, the law of England and Wales, on the one hand, and Scotland, on the other hand, is not as different as would first appear. In areas which have not been devolved to the Scottish Parliament or the Welsh Senedd, statutes passed by the Westminster Parliament in London apply to all three jurisdictions and the interpretation of those statutes by the Scottish courts has persuasive effect on the English courts. Further, and somewhat surprisingly, decisions of the Supreme Court bind the courts throughout the United Kingdom, includin...