Legal Argument

When I was teaching Law to undergraduates in Northampton, I would regularly take small groups of my students for unofficial tours of Westminster. Part of the day involved sitting in the hearings of the Law Lords. It was both interesting and informative - and a useful introduction for aspirant lawyers to legal argument. We even got to see both argument and the decision in Pepper v Hart.

Sadly, I no longer have the opportunity (the time) to listen to hearings before the Supreme Court of the United Kingdom. However, since the 1990s we have the internet - and hearings can be viewed on the Supreme Court website - though in recent years I've relied on reading the decisions - rather than viewing the hearings.

However a friend asked whether I had watched this weeks hearing in the Isle of Wight v Platt case. I hadn't, but took the opportunity to watch (some) of the hearing. It's a wonderful resource for anyone wishing to understand how legal argument is conducted, especially when it is a matter of statutory interpretation.

The case concerns the legal duty of a parent to ensure that their child attend school regularly. In this case the parent fulfilled that duty well - except that they withdrew their child from school for a few days in order to take the child on holiday. They were fined - but never paid. The case looks at what the legislation means in practice.


The decision of the original court can be read at http://www.bailii.org/ew/cases/EWHC/Admin/2016/1283.html

I am unable to embed the videos of the hearings - but they can be accessed at

Morning session - https://www.supremecourt.uk/watch/uksc-2016-0155/310117-am.html
Afternoon session - https://www.supremecourt.uk/watch/uksc-2016-0155/310117-pm.html

The Justices are now considering their decision - keep an eye on the Supreme Court website, and once the decision iOS delivered, the full law report will be available.


If I were still teaching, I would use this case to illustrate legal argument; and how statutory interpretation is undertaken. At one point one of the justices identifies what he thought the ratio decidendi of an earlier case and invites the lawyer to respond. If you are studying law this case is worth watching.

Pepper v Hart

I mentioned the case of Pepper v Hart in yesterday's post. It was quite a breakthrough - prior to the decision, it was not possible to argue using Hansard, what the "intention of Parliament" was. While there were good reasons for the original rule, it did seem strange that the one document which recorded the reasons for introducing a bill and the aims of the proposed legislation couldn't be used.

The speech of the Minister or member who brought forward the bill during Second Reading usually sets out the "mischief" which the proposed legislation sets out to address. MPs and Peers will use the legislative process to get explanations about the intended effect of specific words and phrases. Ministers may seek to assure the House about the meaning (and what is NOT intended).

The House of Commons Library produced a paper on the decision - and what we may now call "The rule in Pepper v Hart". The paper states -

"Following the decision in Pepper v Hart in 1993, if primary legislation is ambiguous or obscure the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation. Until that decision, using Hansard in that way would have been regarded as a breach of Parliamentary privilege.”

The paper is available here.
 


  

Why can't Parliament get it right?

A new report has been published by the Political & Constitutional Reform Committee of the House of Commons. It begins...

"There has been repeated criticism in recent years, from a variety of sources, about both the quantity and quality of legislation. This is despite changes to the legislative process in the House of Commons (Public Bill Committees), initiatives to consult on some legislative provisions in draft before their formal introduction (pre-legislative scrutiny) and the beginnings of a process for evaluating the effectiveness of legislation following its enactment (post-legislative scrutiny). It has also been despite the existence of a Cabinet Committee, the Parliamentary Business and Legislation Committee, charged with ensuring that bills are well-prepared before they are presented to Parliament.

Against this backdrop of criticism the Liaison Committee asked us to lead on this issue. We began our inquiry by asking whether there is a need for improved legislative standards and if so, what changes to existing processes in Parliament or Government would contribute to them. We wanted to know whether a new mechanism designed to ensure improved legislative standards (such as a Legislative Standards Committee) should be introduced, and whether there is a case for differentiating between different types of legislation.

Five key recommendations
 The Committee concludes... We consider that there is a need for the quality of legislation to be improved. We have made a number of recommendations, as well as suggesting areas for further consideration by Parliament, designed to achieve this end. The most significant of these are: (Paragraph 149)  [1] that there should be a set of standards for good quality legislation agreed between Parliament and the Government; we have provided our own draft Code of Legislative Standards to start this process; (Paragraph 149.a) [2] that a Joint Legislative Standards Committee to oversee application and effectiveness of the Code should be created; (Paragraph 149.b) [3] that a week should elapse between the conclusion of Public Bill Committee evidence sessions and the start of line by line scrutiny, to allow Members enough time to consider the evidence they have heard and read, and for amendments to be drafted and selected for debate; (Paragraph 149.c) [4] that a test for identifying constitutional legislation should be agreed between Parliament and the Government; (Paragraph 149.d) [5] that for each bill presented to Parliament which has not previously been published in draft, the Government should provide an accompanying statement setting out why the bill was not published in draft and therefore not available for pre-legislative scrutiny. (Paragraph 149.e) The Report entitled "Ensuring standards in the quality of legislation" can be downloaded in pdf format here.

An ideal Law Exam Question?

'Discuss the view that "Parliamentary legislation is excessively complex and its confusions undermine the rule of the law"'

This isn't actually an exam question that has been set in a British university - but it would an excellent question - either for "English Legal System" (allowing an explanation of issues relating to 'statutory interpretation') or "Constitutional Law" (enabling a student to demonstrate their understanding of the concept of the Rule of Law)

If I were a student, I'd read the following article - from which the quote is taken - and reflect on what points I could make - even going as far as preparing an essay plan.

http://www.guardian.co.uk/law/2013/apr/16/parliamentary-legislation-too-complex-report

On the 'Rule of Law' (and other UK constitutional principles), it's difficult to beat Lord Bingham's short, readable and thought provoking book of the same name.

Writing and Understanding Legislation

One of the key skills of an English lawyer is interpreting statutes. The more a prospective lawyer reflects upon the problems of drafting legislation; and learns from those who are regularly involved in interpretation - the better a lawyer they will become.

There are a number of books available, I have three to recommend. They are



This book is written by a former Parliamentary Counsel - one of the few individuals in Britain who write Government Bills. His experience and the examples he uses are an excellent aid to understanding how legislation is written.




Written by an academic - a very useful introduction to drafting






Well written book which takes examples from across the British Commonwealth, and helps the reader understand the problems and solutions in drafting.