Learning Legal Skills and Reasoning

Sharon Hanson, Tobias Kliem, Ben Waters

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000427035
• Edition: 5
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Language skills, study skills, argument skills and the skills associated with dispute resolution are vital to every law student, professional lawyer and academic. The 5th edition of Learning Legal Skills and Reasoning draws on a range of areas of law to show how these key skills can be learnt and mastered, bridging the gap between substantive legal subjects and the skills required to become a successful law student.

The book is split into four sections:

• 
  
  

• Sources of law: Including domestic, European and international law.

• 
  
  

• Working with the law: Featuring advice on how to find and understand the most appropriate legislation and cases.

• 
  
  

• Applying your research: How to construct a legal argument, answer a problem question and present orally (mooting).

• 
  
  

• Skills for solving disputes: From negotiation to mediation and beyond.

Packed full of practical examples and diagrams to illustrate each legal skill, this new edition has been fully updated and now includes a new chapter on drafting. It will be an essential companion for any student wishing to acquire the legal skills necessary to become a successful law student.

Part 1

Sources of law

DOI: 10.4324/9780429285080-1

A clear understanding of the different types of legal rule is a basic prerequisite for the competent exercise of legal skills and reasoning. The four chapters in Part 1 are designed to map the territory of law. They identify its sources, describe its creation, format and the limits of its jurisdiction.

Chapter 1 ‘Domestic legislation’ defines and explains what legislation is, how it is created by Parliament and the formats used to set it out. The chapter also distinguishes between primary legislation (created by Parliament) and secondary legislation (created by office holders and groups on the delegated authority of Parliament). Time is also taken to explain the range of interchangeable words/phrases used when referring to legislation which can be confusing.

Chapter 2 ‘Domestic case law’ gives you a basic appreciation of what common law or case law is, and the way in which it is created, developed, discussed and changed by the senior judges in the English courts. It describes the hierarchical structure of English courts and tribunals as well as their jurisdiction, staffing and development of the key doctrine of precedent by the senior judiciary. Precedent is discussed in detail in Chapter 8. The importance of three courts outside the hierarchy of the courts is also considered: the Privy Council, the Court of Justice of the European Union and the European Court of Human Rights.

Chapter 3 ‘International and European Law’ is designed to introduce the basic concept of treaties (formal agreements between nations) and discusses how they are created, amended or terminated. It also considers the legal impact of treaties that have been entered into by the government, drawing distinctions between international law and English law. Time is taken to ensure the vocabulary used in treaties and about treaties is understood. The chapter also considers European Law, a source of law originating outside the English legal system in the founding treaties of the European Union (EU). These no longer have legal effect inside the English legal system due to the UK’s withdrawal from the EU. But as the UK and countries within the EU continue to be trade partners, this law remains relevant. EU law includes the treaties, legislation and the case law of the European Union and each area is discussed in this chapter.

Chapter 4 ‘Human rights’ looks at the European Convention on Human Rights, explaining its relationship to domestic human rights law. Human rights law is an increasingly important area of law globally. It is a key issue in political debate and has given rise to many controversies in the UK concerning judicial interpretations of both the European Convention on Human Rights (ECHR) 1951 created by the Council of Europe and the English Human Rights Act 1998 (HRA). Students of English law are often quite justly confused about the relationship between the ECHR and the HRA. The chapter explains in detail how the English legal system’s human rights law originates outside the English legal system in European treaties. It also explains how parts of the ECHR have been given limited legal effect in the English legal system by the HRA. The chapter includes concentration on selected articles¹ of the ECHR and its protocols, as well as selected decisions of the European Court of Human Rights.

1 A treaty is subdivided into numbered articles.

1 Domestic legislation

DOI: 10.4324/9780429285080-2

Learning outcomes

After reading this chapter you should be able to:

• Understand the structure and role of Parliament in the enactment of domestic legislation.
• Appreciate the role of government in proposing legislation.
• Be aware of the procedures that must be followed to create valid legislation.
• Understand the process of drafting legislation.
• Distinguish between primary and secondary legislation and be aware of its standard formats and subject matter.
• Be aware of the function of statutory interpretation.
• Understand the basic relationship between cases and legislation.

Introduction

Domestic legislation is created by Parliament or by the delegated authority of Parliament and it is the major source of legal rules in the English legal system. English legislation is referred to as ‘domestic’ to differentiate it from European Union (EU) legislation enacted by the institutions of the EU. Up until the UK’s withdrawal from the European Union, EU legislation was a major source of English law, but this is discussed in Chapter 3.

Primary and secondary domestic legislation are described and the standard method of creating them is set out. The standard layout of domestic legislation is also dealt with. A brief explanation of statutory interpretation by the judiciary is given; however, detailed discussion of this area is reserved for Chapter 7, which concentrates on the skills of reading, analysing and interpreting legislation.

What is domestic legislation?

Domestic legislation is the dominant form of law making in the English legal system and it is created by the authority of Parliament. It exists in two main forms, primary and secondary legislation. Primary legislation (statutes) applies to the whole of the English legal system and is created by Parliament directly. It can deal with any subject matter that Parliament wishes.

Secondary legislation (delegated legislation) is created by others acting on powers delegated to them in primary legislation, which in these circumstances can be described as ‘enabling’ or ‘parent’ legislation. For example, an individual minister of state may be given powers to make changes to certain primary legislation. Or a professional body may be allowed to make legal rules affecting its members. A local council¹ can enact legal rules applicable only to the geographic area of the council. Secondary legislation is often described as an indirect form of law making and can be additionally referred to as delegated or subordinate legislation. It can be repealed or changed by primary legislation.

1 Technically referred to as a local authority (LA).

Twining and Miers describe legislation as encompassing a wide variety of rules in ‘fixed verbal form’.²

2 W Twining and D Miers, How to Do Things with Rules (Cambridge University Press, Cambridge, 2010), 193.

Legislation is enacted in various timescales. Sometimes legislation is quickly created as a reaction by Parliament to a crisis or public outcry or a one-off situation, for example, in response to an act of terrorism (an often-cited example is the Dangerous Dogs Act 1991).³ Sometimes it is a reasonably well-considered response to a particular issue such as consumer protection. On other occasions it is the end product of several years of public, political and expert consultation. The Equality Act 2010⁴ (EA) is an example of legislation that was the outcome of several years of consultation.

3 c. 65 1991.

4 c. 15 2010.

Legislation can be enacted to create new codified legal rules on any matter. It can also be enacted to consolidate existing law in a particular area, such as theft. In that case, it brings together rules made by judges as part of the common law,⁵ customary legal rules⁶ and/or existing legislation into one statute; it does not change the existing law but clarifies it.

5 Explained in Chapter 2.

6 Ibid.

Not all codifying legislation gets it right. A good example is the Theft Act 1968. It codified the common law and prior legislation in existence in the area of theft. However, a major problem with the old law was the definition of deception. The Theft Act 1968 failed to deal with this adequately and eventually the Theft Act 1978 was enacted to resolve the problem. That too proved inadequate in a range of areas and it was followed nearly 20 years later by the Theft (Amendment Act) 1996. Continuing issues around fraud and deception finally led to the Fraud Act 2006.⁷

7 c. 35 2006.

Although legislation responds to particular issue...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of tables
• Preface
• Introduction
• PART 1: SOURCES OF LAW
• PART 2: WORKING WITH THE LAW
• PART 3: APPLYING YOUR RESEARCH
• PART 4: SKILLS FOR RESOLVING DISPUTES
• Conclusions
• Further Reading and Useful Websites
• Index