Common Law and Ethics

1. With reference to section3(2) of the Act, what sort of secondary legislation is likely to be used to bring the Act into force and how does the method of creation of such legislation differ from that of primary legislation? Secondary legislation allows the Government to make changes to the law using powers conferred by an Act of Parliament.  In relation to section 3(2) of the act which states “this act shall come into force on such day as the Lord Chancellor may by order appoint”, a statutory instrument (SI) is likely to be used to bring the Act into force, in particular a Commencement Order.  A Commencement Order is an SI that brings into force all or parts of an Act of Parliament at a later date that when the Act was passed. The secondary legislation-making process is not as complicated as in primary legislation and passing it is not so time consuming. Generally, it is made by being signed by an appointed individual; customarily from the area of expertise of the Bill, however occasionally the Queens assent may be required. This makes the legislation very adaptable and swift – it also takes away the Parliament’s need for debates regarding the Bill which are best discussed with particular experts, making the law more meticulous and efficient. Whereas the actual formal procedure of passing the Act in Parliament, as primary legislation, is a very lengthy and laborious process. It starts with a first reading, usually in the House of Commons, followed by a second reading involving vigorous debate, where various amendments may be solicited. In the final reading, the Bill is introduced without the possibility to be further amended. After that, the process is repeated in the second house, the House of Lords generally, before final considerations and Royal Assent.  2. Explain why rules of construction are used by judges and identify the different rules of construction that were applied by Lord Sahni. Rules of construction are used by judges to aid them in statutory interpretation, specifically when statutes appear vague and unclear. While Parliament often drafts statutes as to minimize the amount of interpretation necessary by judges, in certain situations it can be difficult to write the statute to apply to all situations, therefore judicial interpretation may be required.Judges in England generally apply three basic rules of construction: the literal rule, the golden rule and the mischief rule.  Although judges are not bound to apply these rules, they generally take one of the following three approaches, and the approach taken by any one particular judge is often a reflection of that judge’s own philosophy. Firstly, in his judgement, Lord Sahni uses the literal rule in his judgement to allow the appeal, explaining that “Mr. Mackenzie was not ‘nude’ in the literal sense of the word.” He then goes on to apply the mischief rule, as the reason for the Offending Public Decency Act 2010 was to protect the public from overt displays of nudity and public indecency – Mr. Mackenzie walking around in his living room behind a blind covered window with no intention of offending anyone does not convey a remedy for the mischief the act was intending to suppress. By applying these rules, Lord Sahni concluded that Mr. Mackenzie did not commit an offence and allowed the appeal.3. With reference to the end of Lord Sahni’s judgment, explain the provisions of Article 8 of the Human Rights Act 1998 and to what extent the 1998 Act can affect the court in R v Mackenzie. Article 8 protects your right to respect for private and family life, your home and correspondence. While Article 8 is a qualified right, meaning public authority can sometimes interfere with your right to respect for private and family life, this only applies if it’s in the interest of the wider community or to protect other people’s rights, which Lord Sahni clearly concludes that Mr. Mackenzie did not commit an offence and therefore cannot be convicted, as this would breach his human rights under Article 8 of the Human Rights Act 1998. Following the UK’s entrance into the European Union in 1973, it is important to consider the effects of the membership on UK law. While one of the most highlighted effects after the EU membership was statutory interpretation, another, rather delayed, outcome was that of the Human Rights Act 1998, whereby “the British people will be able to argue for their rights in the British courts — without [this] inordinate delay and cost.”  However, in effect, the Act introduced a new rule of statutory interpretation itself, as all statutes must be interpreted in accordance with the rights conferred by the Act, making sure primary and secondary legislation is compatible with the Convention rights. 4. Using examples from the judgments in the case, distinguish between the phrases “ratio decidendi” and “obiter dictum”. “Ratio decidendi” may be defined as a statement of law as applied to the material facts of a case. It is not the decision itself but it provides the legal basis for the decision; essentially the principle coming from precedent. There is slight ambiguity in the Offending Public Decency Act 2010 as the interpretation section of the act does not provide a definition of “overt”. Yet Lord Sahni uses extrinsic aids by referring to a copy of the Oxford English Dictionary in order to resolve this issue.  In this case, ratio decidendi is: that wearing your underwear in a private place, such as your living room in your home, is not an offence under s1 the Offending Public Decency Act 2010, In contrast, obiter dicta relates to comments made in judgments that are “said in passing” – they may not be directly relevant or may be matters of opinion or speculation, for example, Lord Sahni’s comment of the “prevailing trends in underwear” or “prudish member of the public”.  The whole of a dissenting judgment constitutes as obiter dicta too, so that would apply to Lord Meadow’s judgement in R v Mackenzie.

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