English Legal System - Sources of Law Custom Equity and Treaties (Part 3)

Reform by Parliament

Law reform is mainly carried out by the Parliament in four (4) different ways
a) Repeal – of old or/and obsolete laws
b) Creation – completely new law or adapting existing legislation
c) Codification – if development has taken place in a form of large body of case law and statute, these may be codified into one
d) Consolidation – bringing together successive statutes which have been brought to remedy the problems arising out of statutes

The initial inspiration to consider the need to reform law may come from different sources – one particular source or combination of sources including:
a) Political parties – often to implement Government party’s manifesto
b) The Civil Service – different departments want to influence how to best achieve departmental goals
c) Treaty obligations – particularly the membership of the UK to the European Union and the European Convention on Human Rights
d) Pressure groups – groups concerning particular areas of law such as Help the Aged charity, professional organisation Law Society or the JUSTICE pressure group
e) Media pressure and public opinion – there has been a number of very well published cases in the media raising a public outcry to bring changes to law such as the case of racially motivated killing of Stephen Lawrence and how such cases are investigated and the case of Sarah Payne and need to efficiently monitor paedophiles

As well as the groups mentioned above, there are a number of agencies which consider the need of law reform in areas referred to them by the Government or issues may be referred to them by the above mentioned groups.

The Law Commission

Consisting of five members drawn from the judiciary, legal profession and the legal academics with chairman usually being a High Court judge and rest of the members including QC with criminal experience, solicitor with land law and equity expertise and two academics working on projects referred by the Lord Chancellor, the Government Department or the Commission itself and operating under the Law Commission Act 1965 to :-

· Codify
· Remove anomalies
· Repeal obsolete legislation
· Consolidate
· Simplify and modernize the law

The Criminal Law Revision Committee

Considers law reform of the criminal law consisting of the Director of Public Prosecutions (DPP), judges and academics

Royal Commissions

Comprising of a wide cross-section of people including expertise but mainly with no legal qualifications, and are set up to perform study in a particular areas of law result of which takes the form of final report detailing recommendations that the Government may act upon or not

Public inquiries

One-off, temporary committees set up by the Government to concentrate on a particular problem or incident causing social concern

Other temporary inquiries

Occasionally various Government departments set up temporary projects to investigate a specific area of law, such an example is the recent inquiry of the Civil Justice System by Lord Woolf

The law reforming agencies have criticised weaknesses in number of areas – lack of power, political difficulties, lack of influence on results, too much compromise, influence of the legal profession as well as lack of ministerial involvement

English Legal System - Sources of Law Custom Equity and Treaties (Part 2)

Equitable Maxims

Equity has created maxims which had to be satisfied before equitable rules could be applied:

‘He who comes to equity must come with clean hands’

The claimant who themselves have been in the wrong in some way will not be granted an equitable remedy

‘He who seeks equity must do equity'

Anyone seeking equitable remedy must be prepared to act in fairness towards their opponent

‘Delay defeats equities’

Equitable remedies will not be available for a claimant who takes an unreasonably long time to bring an action. ‘Unreasonably long time’ is a matter of fact which is determined in accordance to the circumstances of the case

Equitable remedies are discretionary to the court which may choose to award a equitable remedy in addition to the common law remedies awarded as a right to a party winning the case

Equity has an important role in the development of the law of property and contract

It is capable of adapting and expanding in relation to meeting new needs and therefore creating law reform


The Vienna Convention on the Law of Treaties defines treaties in Article 2 (2) as:

[An] international agreement concluded between states in written form and governed by international law, whether embodied in a single document or in two or more related instruments and whatever its particular designation.

The importance of treaties is emphasised by Malanczuk (1997) who states that

Treaties are the major instrument of cooperation in international relations, and cooperation often involves a change in the relative positions of the states involved…Treaties therefore, are often an instrument of change.

Treaties become law in the UK after Parliament produces legislation to enact the treaty provisions, not like in many countries where treaties become part of domestic legislation as soon as the state signs the treaty

In relation to legal system in the UK the most important treaties are the treaties setting up the European Union, and the European Convention on Human Rights – incorporated into the domestic law by the Human Rights Act 1998.

Law Reform

As society changes, the law and the legal procedures also must adopt to these changes in order to maintain an effective legal system

In order to do this, there are number of ways of bringing about change – Judicial change and Reform by Parliament

Judicial change

Reform of law may be brought by case law, most recent example of this

R v R [1991] 1 AC 599

Case which challenged and successfully changed the very old totally outdated view in modern society that a husband having sexual intercourse with his wife without her consent could not be guilty of rape, view based on an assertion by the 18th century jurist Sir Matthew Hale who stated that ‘… by marrying a man, a woman consents to sexual intercourse with him, and may not retract that consent.”

A major reform like this by the courts is not very common, reasons for this put forward in ‘Law Reform in the United Kingdom’ by Norman Marsh

There is no systematic, state-funded process for bringing points of law in need of reform to the higher courts. The courts can only deal with such points as they arise in the cases before them, and this depends on the parties involved having sufficient finance, determination and interest to take their case up through the courts. Consequently, judge-made reform proceeds not on the basis of which areas of law need changes most, but on a haphazard presentation of cases.

Secondly, judges have to decide cases on the basis of the way the issues are presented to them by the parties concerned. They cannot commission research, or consult with interested bodies to find out the possible effects of a decision on individuals and organizations other than those in the case before them – yet their decision will apply to further cases.

Judges have to recognise the doctrine of precedent, and for much of the time this prohibits any really radical reforms.

Marsh’s also argues that reforming decisions by judges have the potential to be unjust to the losing party. Law reforms made by the Parliament are prospective, affecting something that happened before the judges decided what the law was. The more reformatory such a decision is, the less the likelihood that the losing party could have aided by the law, even if they wanted to.

Judges are not elected, and therefore feel they should not make decisions which change the law in areas of great social or moral controversy. They themselves impose limits on their ability to make major changes and will often point out to Parliament the need for it to make reforms, as happened in the Bland case concerning the Hillsborough stadium disaster victim

English Legal System - Sources of Law Custom Equity and Treaties (Part 1)


Custom has been the basis of the common law, originating from the times of William the Conqueror

Custom has been defined in the following ways:

Tanistry Case (1608)

“Such usage as has obtained the force of law”

Sir Fredrick Pollock

“The common law is a customary law if, in a course of about six centuries, the undoubting belief and uniform language of everybody who had occasion to consider the matter were able to make it so.”


“… one of the main triangles of the laws of England”


“…the universal rule of the whole kingdom and form the common law in its stricter and more usual signification”

Today in the modern law it has a very small role, but is not completely obsolete.

Its main use is in cases where local custom and traditional practises are being challenged and where these practises are tried to be established to have such a long standing that they should be given the force of law regardless that they may be in conflict with the general common law

There is a list of criteria that a custom must fulfil in order to be regarded as conferring legally enforceable rights;

a) ‘Time immemorial’ – a statute of 1275 states that the custom must have existed since 1189, today claimants usually seek to establish that it has existed as far as living memory can go, but this may not always be sufficient

b) Reasonableness – the fundamental principles of right and wrong can not be undermined when seeking to establish a legally enforceable custom, such as customary right to commit a crime

c) Clarity and Certainty – the locality and the people to whom the rights are granted must be clearly and certainly defined

d) Locality – if custom is to be considered as granting rights it must be specified to which geographical area it specifically applies
e) Continuity – there is no need for the customary right to have been exercised continuously since 1189, but it must be shown that the right could have been exercised

f) Exercise as of right – if a custom has been exercised by permission, it can not create legal rights

g) Consistency – the local custom must be consistent with other customs in the area

h) Obligatory – if there is a specific duty imposed the custom, that duty must be obligatory

i) Statutory Conformity – if a custom is in conflict of a statute, it can not be regarded as giving legal rights


The term ‘equity’ in its ordinary meaning is natural justice, but in legal terms the meaning is very different.
In the context of law, the term ‘equity’ means a specific set of legal principles which add to those provided in the common law, but is identifiable as a specific branch of the law.
It was originally based on the ideas of natural justices, therefore acquiring its name

Equity supplements the common law providing just and practical remedies where the common law alone is not enough but restricts itself to cases where those remedies are genuinely and justly deserved

Its origins are in the Middle Ages where the courts of common law failed to give redress in certain types of cases where it was needed and therefore disappointed litigants started to petition to the King, the ‘Fountain of Justice’, for extraordinary relief

The King eventually set up the Court of Chancery through the Chancellor, King’s chief minister to deal with these petitions and eventually the rules applied by the court became law and regular part of the law of land

In the case of conflict or variance between the rules of common law and the rules of equity, equity would prevail

In 1875 the Judicature Act 1873 came into force and abolished the old courts of common law and the Court of Chancery, replacing them with the single Supreme Court of Judicature having the power to administer both common law and equity

It is important to note that the Judicature Act did not fuse common law and equity, but only their administration and therefore there is still today in operation a body of rules of equity distinct from the common law rules

These two branches of law are distinct regardless that they are implemented by the same courts

The most important branch of equity is trusts, but also remedies such as injunctions and specific performance are used

a) Injunction – offers defendants to do or not to do something

b) Specific performance – compels the party to fulfil a previous agreement

c) Rescission – Restores the parties to a contract to the position in which they were in before the signing of the contract

d) Rectification – Order altering the words of a document not expressing the true intentions of the parties to it

English Legal System - Statutory Interpretation (Part 4)

Interpreting European Legislation

The Treaty of Rome Art. 234 states that the European Court is the supreme tribunal for the interpretation of EU law

S. 3(1) of the European Communities Act 1972 states that the question as to the validity, meaning or effect of European legislation are to be decided in accordance with the principles laid down by the European Court

Therefore when interpreting EU law, the English courts should take the same approach as the European Court would

Bulmer v Bollinger [1974]

“No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent. To quote the words of the European Court in the Da Costa case they must deduce from the wording and the spirit of the Treaty the meaning of the Community rules… They must divide the spirit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they can. They must do what the framers of the instrument would have done if they had thought about it. So we must do the same.”

It was meant that the courts should use the Mischief rule broadly, rather than the literal approach

If in doubt, the matter may/must be referred to the European Court of Justice

Conclusion to Interpreting Statutes

As a rough guide on how a problem of interpreting statutes may be approached see the following:

Read the Section(s) carefully, referring to:-
Related sections in the Act
Interpretation Sections
Related statutes

Understand the mischief statute trying to remedy:-
Refer to annotations of the Act
Refer to Law Commission Reports
Refer to economical, social and political background
Use Hansard
Look at the long title of the Act

Check for any European derivation, and if operative, the effects of the Human Rights Act 1998

Conduct a research into academic texts:-
Articles and case notes

Research existing or related case law

Be aware of any technical meanings of the words in question

Be aware of technical rules of grammar

Be aware of judicial trends in methods of interpretation

Be aware from which perspective you are viewing the problem

Adopt the appropriate style of argument

Decide how to marshal your authorities in order to substantiate your approach

Decide how you can distinguish unhelpful authority

English Legal System - Statutory Interpretation (Part 3)

The European Communities Act 1972

As an example of this power of the Parliament is the Act of 1972 which makes it clear that some of its provisions are to be applied retrospectively

If however the wording of an Act does not make it perfectly clear that the Parliament has decided to against certain presumptions, the courts may assume that the presumptions apply

Indication to how judges feel regarding what kind of weight to presumptions should be attached is given in the case below:-

L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486

Case which concerned the presumption against retrospective effect and in which the House of Lords stated that ‘simple fairness’ was the important issue, thus if reading the relevant statute as imposing the suggested degree of retrospective effect, the result be so unfair that the Parliament could not have intended such regardless that the words may have suggested retrospective effect. This could be judged by balancing a number of factors such as the rights affected, the clarity of words used as well as the background of the legislation.

It is unclear how conflicting presumptions are weighed and why certain values are selected for protection by presumptions and others are not

External aids

Historical setting – consideration may be given by a judge to the historical setting of the legislation, which may be done by citing earlier cases or even legal textbooks

Dictionaries – to find a meaning of a word

Textbooks – to read views of legal academics

Reports – official reports may be considered as evidence (reports by the Royal Commission, the Law Commission or other official advisory committee)

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburgh A.G. [1975] AC 591
In this case the House of Lords laid down the principle that official reports which lead to legislation could be consulted in the construction of the disputed words under consideration. Lord Diplock thought such reports may be used to understand ambiguous phrase so as to give effect to Parliament’s aim.

Treaties – international conventions and treaties may be considered as long as the Parliament does not legislate in a way which is in breach of the its international obligations

Salomon v Commissioners of Customs and Excise [1967] 2 QB 116

The case in which the Court of Appeal took the view that it was entitled to resolve ambiguities and obscurities by looking at a 1950 international convention, regardless that the 1952 Act did not refer to it, because English law should be interpreted by such a way that it remains constant with international law. Lord Denning, and Lord Justices Diplock and Russell all agreed that as the terms of the statute and that of the convention were virtually identical, the statute was intended to embody the convention.

Previous Practice – general usage and practise in the particular field the legislation concerns may be looked at when determining its meaning

The Human Rights Act 1998 – “So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Hansard – official daily report of the parliamentary debates which therefore also records the introduction of legislation. For over 100 years it was held by the judiciary that such documents as the Hansard could not be used for statutory interpretation, rule which was overturned in the following:-

Pepper v Hart [1993] 1 All ER 42

The case was a tax case concerning nine school masters of a public school, Malvern College, who were assessed to tax by the Inland Revenue regarding the benefits they enjoyed because their sons were educated at the school for one fifth of the ordinary fees. Reason why the issue of consulting parliamentary debates arose from the fact that during the passing of the Finance Act laying down the tax rules regarding the matter, the then Secretary to the Treasury Robert Sheldon specifically had mentioned that purpose of the relevant statutory provision was to tax concessionary education for teachers’ children on the marginal cost to the employer and not on the average cost of the benefit. The House of Lords decided that Hansard may be consulted in order to see what has been said by a Minister and from which the intention of the Parliament may be derived.

Three Rivers District Council v Bank of England [1996] 2 All ER 363

This case concerned the correct interpretation of legislation fulfilling obligations under an EC directive and it confirmed the decision in Pepper v Hart. There was no ambiguity as to the legislation itself, but the claimant argued that if Hansard was used to aid the interpretation, there would be certain duties imposed by this legislation upon the defendants, otherwise not obvious from the legislation. The case stated that Hansard may be consulted to bring light on the general purpose of legislation.

R v Secretary of State for the Environment, Transport and the Regions, ex Parte Spath Holme Ltd [2001] 2 AC 349

This case gave a restrictive interpretation to the application of Pepper v Hart as it was pointed out that Pepper v Hart was concerned with the meaning of an expression used in a statute and the present case in contrast was concerned with matter of policy and in particular with a meaning of a statutory power rather than a statutory expression thus only if a Minister were to give a categorical assurance to Parliament that a power would not be used in a given situation would a parliamentary statement on the scope of a power be admissible.

Wilson v Secretary of State for Trade and Industry [2003]

In this case the House of Lords gave again a restrictive interpretation to Pepper v Hart by holding that only statements in Hansard made by a Minister or other person promoting legislation could be looked at by the court in interpreting statutes and other statements recorded by it should be ignored and the court emphasised that courts should not stray into Parliament’s constitutional role and should respect the rule of separation of powers.
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