The Common Law _ Constitutional _ Administrative Law _ SQE Prep

Welcome back everyone to our studies in constitutional and administrative law for the SQE specification. We are continuing in this video talking about some of the introductory content, just taking an overview of the sources of the UK's constitutional framework, and we're going to talk about the common law in this video, and we'll spend a little bit of time examining what the common law is. Bear in mind that we'll actually explore the nature of the common law in far more detail in the legal system module, where we talk about the idea of judicial precedent, the structure of the judiciary, and all these different kinds of things. But it's obviously helpful that if we're talking about the sources of the UK constitution to spend some time in this lesson going over the common law. And it really begs the question, what actually is the common law then? What does this refer to? Well it refers to the laws that have developed over time through the decisions of judges within courts. These judicial decisions form what we call precedent. They form the precedent for decision making that can then help influence future rulings to help shape the law, and over time a body of law develops that is common to all, hence why it is called the common law. It developed mostly out of the reign of Henry II, who sought to essentially after a civil war had taken place under Henry I, essentially sought to unify the legal system under one single system of law. He would essentially send out what were known as itinerant judges to go around and essentially apply the king's will in areas where it may historically have not been applied, and hence where the idea of the common law develops, but also where the name the common law, the idea of law that is common to everybody. The common law is crucial in areas where the statutes law, where parliament for example, may be silent, and many constitutional principles in the UK, such as the rights of individuals or the prerogatives of the monarch, have their roots in common law ideas. There are some areas of law that you will study throughout the SQE that are more common law heavy than other areas of law. So for example, the law of tort is an area that is generally almost exclusively dealt with by the common law. There are some statutes, there are some pieces of legislation, Occupies Liability Act for example, and some issues concerning product liability, but in terms of things like the law of negligence, in terms of things like the law of nuisance, and the law of defamation, well defamation does have legislation as well in fact, but there is mostly quite heavy reliance on common law principles and case law. So it's a very case heavy area to study, whereas other areas such as land law is very legislative based. It's the law of property act which has the vast majority of the rules that are established there. Now it might be useful to define the common law or to give an illustration of the common law by giving you a case from the common law. This is the case of Burma oil and Lord Advocate from 1965. Remember all of this is introductory content, so you won't be tested on this case for example in the SQE as far as I'm aware, and so don't feel too worried about having to remember it. This might be just helpful to give you an idea of how the common law applies and some of the rules therein. So this case was one in which the House of Lords was essentially invited to consider whether compensation was owed at common law to an oil company for decisions that were made under the auspices of the royal prerogative. Now I'm saying the House of Lords because historically the House of Lords was the highest point of appeal in the judiciary. There were members of the House of Lords called the Law Lords who would sit and they would decide cases. Since the Constitutional Reform Act of 2005 and the subsequent opening of the Supreme Court in 2009, the Law Lords moved to the Supreme Court, so there's a separation there. But when I say the House of Lords I'm talking about the highest point of appeal. So this compensation, the owing of compensation, was in relation to the destruction of some property by British forces who had been acting under the auspices of the royal prerogative. Now the House of Lords held that compensation could be owed, which created a principle of common law, and so ultimately what this is an illustration of is how a case can create law. A case can create a precedent. So there was no precedent that had been established, there was no rules that had been established about whether or not compensation for property being destroyed by British forces acting under the royal prerogative could be owed at common law. There was no rule, there was no law in Parliament that established whether or not they could, and so the courts were invited to answer the question. And they answered the question by saying in fact yes it could, and this creates a new principle that other cases might in the future be able to rely on and cite this case as their precedent. So fundamentally then one of the major roles that is played by the courts, and more broadly the common law, is that of interpreting statute law. And simply put the courts must in making a ruling on statutory interpretation ascertain the intention of Parliament. We'll talk about statutory interpretation and the various different approaches to statutory interpretation, the golden rule, the mischief rule for example, and the purpose of approach when we spend some time looking at this in our series on the legal system, because that's where we will spend most of our time talking about the common law. But hopefully this was just a useful proviso of what the common law essentially is, how it works, and some fundamental principles that establish parts of the sources of the UK's constitution. The next two lessons will just finish by looking at the idea of works of authority as a source of the constitution, as well as the royal prerogative as a source of the UK constitution as well.