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Programma di preparazione per esame orale/scritto L-LIN/ Fiordelmondo Danila Patricia Libro → Legal English and the Common Law , Alison Riley, Cedam 3a ed. 2015
CHAPTER II
PART I
PRINCIPAL SOURCES OF ENGLISH LAW
English law has two principal sources: Legislation Judicial precedent
LEGISLATION STATUTE LAW
Definition Law or laws enacted by the legislature, that is,the Queen in Parliament. Also called:Acts of Parliament,enactments,laws orstatute. Collective terms:Legislation,statute law,enacted law. Further information Delegated legislation (also called secondary legislation) may be enacted by other persons or bodies under authority delegated by Parliament. Ex. There was an implementation in UK law by The Privacy and Electronic Communications 2003,Directive 2002/58/EC, a statutory instrument made by the Government minister designated. Operation as a source of law In cases where legislation exists to govern an issue in a dispute, that is the source of law which the courts must use to resolve the dispute. Legislation has priority over judicial precedent; it must be applied even if there is a conflicting precedent. The role of the courts The courts interpret the provision of the Act by examining the legislative text to find the intention of Parliament, a process called statutory interpretation. The job of the courts is to apply the law to the specific facts of the individual dispute.
JUDICIAL PRECEDENT COMMON LAW
Definition The body of legal principles established in decided cases, created and developed by the English courts. Also called:judicial decision,precedent,common Law,Case Law Precedents may also be calledauthorities. A precedent may also be called anauthority The principles of the common law are found in judgments of the superior courts, published in the volumes of The law reports. Further information The part of a judgment which is binding and operates as precedent is only the ratio decidendi; that is the reason or principle upon which the judges’ decision on the issue (the question before the court) was based. Operation as a source of law In cases where no legislation exists to govern an issue in a dispute, precedent is the source of law that the courts use to resolve it, creating, developing and applying principles on a case-by-case basis. According to the doctrine of binding precedents, courts deciding later, similar cases must apply the same principles developed in precedent. We say that the courts are bound to follow precedent.
The doctrine of binding precedent is also known by the Latin term stare decisis. The system operates within the strict framework of the hierarchy of the courts. Note The doctrine of binding precedent also applies to statutory interpretation. Where the courts have interpreted a provision in a specific way in relation to certain facts in a previous case, the same interpretation must be given by courts in later similar cases, always subject to the hierarchy of the courts. 2.2 Legislation and the legislature 2.2.1 LEGISLATION Legislation is enacted law; it is formally enacted by the legislator according to a procedure recognised as valid for producing law within the legal system. Enacted law is also called written law. Legislation is commonly referred to as statute law, in Britain. By contrast, judicial precedent is unwritten law; it is pronounced by the judges when deciding cases, but is not formally enacted by the legislature. We refer to it as judge-made law, or common law. The legislature may also be called the legislator or law-maker (potere legislativo). Even in the common law system, judges are not legislators and distinct terminology is used; but we sometimes use the term judicial law-making to refer to the judges’ creative role in developing legal principles. The legislature is one of the three main powers or state organs, together with the executive and the judiciary (the collective term for all judges). The Oxford Dictionary of Law defines the legislature as “the body having primary power to make written law” and specifies the different uses of the term legislation: Legislation → 1The whole or any part of a country’s written law. In the UK the term is normally confined to Acts of Parliament, but in its broadest sense it also includes law made under powers conferred by Act of Parliament … 2 The process of making written law. Act of Parliament are primary legislation; they are enacted directly by the legislature itself. And normally when we refer to legislation we mean, an Act or Acts of Parliament. But the legislature may also delegate legislative power to another body or individual, such as a government minister. When that body exercises the power granted to it by Parliament, the provisions (disposizioni) it enacts are not primary, but subordinate legislation, also called secondary or delegated legislation. 2.2.2 THE LEGISLATURE: THE QUEEN IN PARLIAMENT In the UK constitution the legal name for the legislature is The Queen in Parliament (or The King in Parliament when the monarch is a king). It is composed of: The monarch The House of Lords The House of Commons These three components are all mentioned in the enacting words; the formula that introduces the text of an Act of Parliament, giving it the force of law, without these words it remains a simple bill.
The role of the monarch in the constitution today The link with the past has special significance because, for a nation which has not experienced a recent political revolution, the monarchy represents tradition and continuity. The Queen, as a symbol of national identity, can be said to personify the state. She performs an important constitutional role but is, in fact, left with very little real political power. It is a convention of the highest constitutional importance that the monarch always follows the advice of her ministers. The UK is a constitutional monarchy where “the Queen reigns but does not rule”. This means that the Sovereign holds the position of King or Queen (the Queen reigns) but he or she does not govern (rule) the country; that is the role of the government, led by the Prime Minister and effected through legislation approved by Parliament. The Queen does not exercise power because she must act on the advice of her ministers. This is a constitutional convention; an obligation imposed by usage, a recognised political practice considered binding by all the actors in the British constitution. The final step in the legislative process is the Royal Assent. This transforms a proposal of law into a law; the bill becomes an Act. An Act comes into force (entra in vigore) on the day of the Royal Assent; the monarch’s Royal Assent to bills approved by Parliament is not a personal political act; it is a formality, reflecting her symbolic role as head of state in the constitution today. The Royal Assent is part of the Royal prerogative; that is, the various rights and powers that the king or queen still has at a particular point in history. British governments policies and proposed reforms are announced to Parliament in the Queen’s Speech, or Speech from the Throne, at the beginning of each parliamentary session. The speech illustrates the relationship between the British monarchy and government today; while the Queen presents the government programme and refers to My Government, the speech is prepared by the political leader; the Prime Minister (PM). “My Lords and Members of the House of Commons … My Government will take forward policies … “ A legally binding framework is one which must be observed by law. If the intended Bill is approved and becomes an Act, it will be a law operating in the national (or domestic) legal system; the British courts will enforce it (apply it and give it legal effect). The period of Labour government with Tony Blair as Prime Minister from 1997 to 2007, was marked by major constitutional reform. At the state opening of Parliament in May 1997, Queen Elizabeth II declared: “A bill will be introduced to incorporate into United Kingdom law the main provisions of the European Convention on Human Rights” And another important constitutional reform was announced: “Decentralisation is essential to my government’s vision of a modern nation. Legislation will be introduced to allow people of Scotland and Wales to vote in referendums on my government’s proposals for a devolved Scottish Parliament and the establishment of a Welsh Assembly. If these proposals are approved in the referendums, my government will bring forward legislation to implement them”
Referendums were held and decentralization was approved by the people of Scotland and Wales. Then, as announced in the Queen’s speech, devolution of power away from central government was introduced by legislation; the Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998. There are examples of statutes that change the constitution; they are part of the British constitutional law. Referendums (or referenda (plural)) are not a regular feature of the British constitution. There are no basic rules to determine when a referendum should be held. Instead, the government may decide to hold a referendum if it considers it is politically convenient to reach a decision only on the basis of popular support. The Brexit referendum of June 2016, with its shock result in favor of leaving the European Union, changed the face of British politics and of the future of the United Kingdom, with far-reaching implications for both Britain and Europe. 2.4 THE LEGISLATURE: HOUSE OF COMMONS AND HOUSE OF LORDS The Queen in Parliament (that’s the official name for the UK Parliament) is composed of the monarch, the House of Commons and the House of Lords. In the enacting words that follow the short and long titles of a UK statute, the House of Lords is mentioned after the Queen and before the House of Commons. The Lords is sometimes referred to as the Upper House or Upper Chamber. The Commons is referred to as the Lower House. However, the elected House of Commons is more powerful than the unelected House of Lords. In fact, in some circumstances, a bill may become law even without the approval of the Lords. (ex. The Hunting Act) The House of Lords used to have two functions:
- Legislative As a chamber of a bicameral Parliament.
- Judicial As the highest court in the hierarchy of the English courts. The judicial function was not performed by the whole House, but by a group of the most senior judges; the law lords. Today, the House of Lords still exercises its legislative function as the Upper House of Parliament, but its judicial function was transferred to the Supreme Court of the United Kingdom from October 2009 → Constitutional Reform Act 2005 s.23. The first stage of reform of the House of Lords as a legislative chamber took place in 1999, with the abolition of most hereditary peers (hereditary lords) from the legislative chamber. For most legislation, the House of Lords today has a delaying power; that is, power to delay a bill passed by the Commons for a maximum ofone year. After that period, if the Lords still refuses to approve the bill without amendments, it can receive Royal Assent and become an Act directly. The House of Lords only blocks legislation in this way in rare cases and it has no power to delay money bills (financial measures); this is because the Commons is the elected, representative body in the British constitution.
5.3.2 STARE DECISIS → THE DOCTRINE OF BINDING PRECEDENT
In the common law legal system judges are under a legal obligation to follow precedent. This basic principle of the common law system is called the doctrine of binding precedent, or stare decisis. It is the status of precedent as a primary source of law that is the keystone of the English legal system and by derivation of the common law family of legal systems operating throughout the world today (Australia, Usa, Canada; where English is the language). A judge deciding a later, similar case must apply the same principles previously established by the courts, depending on the relative position of each court in the hierarchy. A judicial precedent is not merely persuasive in a later similar case, it is binding. We say that the later court is bound to follow precedent, or the later court is bound by the earlier court. The judge therefore enjoys a central role in the common law system, not only as arbiter, but also as a type of law-maker. The English judge is not usually described as a legislator; this term implies a general power to make law. The judge’s power is specific; to decide the issue before the court. If no legislation exists to regulate the dispute and there is no precedent for the case (because it presents new or different facts) → such a case is called a case of first instance/impression. In this case the judge has the power to make law by pronouncing a new rule in resolving the dispute. The new rule will become part of the body of precedent, to be applied by the courts later, in similar cases. Courts however, do not exercise their power arbitrarily; the judges operate within a controlled framework of established rules and practices. Key elements are the hierarchically organised courts, the network of general common law principles, and the distinctive style and approach which typify English legal reasoning. 5.3.3 THE RATIO DECIDENDI AND THE HIERARCHY OF THE ENGLISH COURTS In common law legal systems the courts are organised in a strictly hierarchical structure. In the English legal system, only the superior courts can create binding precedent. Binding precedent is created in appeal cases, not cases heard at first instance (primo grado). Each court must follow precedent according to its position in the hierarchy. The general rule is that a court is bound to follow any precedent decided by a court above it in the hierarchy, and appellate courts (except the Supreme Court, or previously, the House of Lords) are bound by their own previous decisions. In the first case, precedent has a vertical effect on the courts below. In the second case it has a horizontal effect. About the fact that “the court is bound to follow precedent” Rupert Cross, the greatest authority on English precedent, explains: “When it is said that a court is bound to follow a case or bound by a decision, what is meant is that the judge is under an obligation to apply a particular ratio decidendi to the facts before him in the absence of a reasonable legal distinction between those facts and the facts to which it was applied in the previous case”.
So what is the Ratio Decidendi? The part of the case which operates as binding precedent is the ratio decidendi. The principle on which the case was decided; the reason or ground on which the judge based his decision in the case. That is, the decision on the legal question in dispute before the court (the issue). Any other statement of law by the judge is not part of the ratio, but us an obiter dictum → the judge said obiter that …. There is a close link between the ratio decidendi and the facts of the case. Precedent is only binding in later similar cases (like cases). There is no substitute for reading the judge’s judgments to discover the ratio decidendi of the case. The judge’s judgments are the full, reasoned opinions pronounced individually by each judge in a case. Collectively, they form the judgment of the court. The typical approach of the common law judge is to extract rules and principles in the process of finding a solution to the case. The inductive approach to judicial decision-making in the common law is apparent;the judge proceeds from the facts of the concrete case to the general rule. By contrast, civil law method is deductive in approach,moving from the general rule to its application in the individual case. The common law approach is less abstract and more closely linked to real facts. THE HIERARCHY OF THE ENGLISH COURTS AND THE EFFECT OF PRECEDENTS SUPREME COURT OF THE UNITED KINGDOM (formerly House of Lords) The Supreme Court of the United Kingdom is the final court of appeal for all cases except Scottish criminal appeals. Until 2009, the highest court in the UK was the House of Lords; the Appellate Committee of the House of Lords exercised the judicial function of the House. Judges were the Lords of Appeal in Ordinary or “law lords”, life peers in the House of Lords. The House of Lords in its judicial function was replaced by the Supreme Court of the United Kingdom as from October 2009, under s.23 of the Constitutional Reform Act 2005. Judges are called “justices of the Supreme Court”. The existing law lords became the first Justices of the new court. Vertical effect → Supreme Court/House of Lords precedents are binding on all other UK courts. Horizontal effect → The Supreme Court/House of Lords considers its own precedents as “normally binding” but will “depart from a previous decision when it appears right to do so”, to prevent injustice or restricting “the proper development of the law”. COURT OF APPEAL
Civil Division and Criminal Division
The judges are called “The Lords Justices of Appeal”. Civil Division appeals from the High Court, tribunals and, sometimes, county courts. Criminal Division appeals from the Crown Court. Most appeal cases reach final judgment in the Court of Appeal, Only a small number of appeals a year go right up to the Supreme Court.
- Which are the appeal courts? The appeal courts are the Supreme Court/House of Lords, the Court of Appeal and the High Court, sitting in Divisional courts of the Divisions.
- Which courts can create binding precedent? Binding precedent can be created by the Supreme Court/House of Lords, Court of Appeal and Divisional courts of the High Court, the same as the appeal courts.
- Which courts have civil jurisdiction? Which have criminal jurisdiction? Civil jurisdiction is exercised by the Supreme Court/House of Lords, Court of Appeal Civil Division, High Court (all Divisions), county courts and magistrates’ courts. Criminal jurisdiction is exercised by the Supreme Court/House of Lords, Court of Appeal Criminal Division, HIgh Court Queen’s Bench Division, Crown Court and magistrates’ courts.
- How can existing legal principles be changed? Existing principles can be changed by a higher court in the hierarchy or, in the case of the Supreme Court/House of Lords, by the Court itself, a power exercised in rare cases. At any time, Parliament can decide to change, abolish or supplement the principles of precedent by legislation. 5.3.4 PRECEDENT FROM THE AMERICA PERSPECTIVE The United States is a federal state; it therefore has different levels of judicial organisation. Each state has its own court structure, organised hierarchically, and in addition there are the federal courts, with the Supreme Court of the United States at the top of the hierarchy. It is the highest appellate court in the federal court system. The judges of the Court, called “Justices of the Supreme Court” are nominated by the President of the United States, “with the advice and the consent” of the Senate. In most US states, the highest appellate court is called the “supreme court”. It is also described as “the court of last resort”, another term for “the final court of appeal”. The Supreme Court of Florida, for example, adjudicated on the election result that was instrumental in George W.Bush’s election to a second term as President in 2004. In other states, such as New York, “the supreme court is a court of general original jurisdiction possessing also some appellate jurisdiction, but not the court of last resort”. 5.3.5 PRECEDENT IN BRITISH AND AMERICAN CONTEXT It is easy to observe that the concepts and terminology of precedent are very similar in English and American law. Some differences in the terminology are the use of “federal” and “state” specific to the organization of a federal state, the state like the United States, and the and the use of “opinion”. In British terminology, thejudgment ordecision are preferred; only the individual judgments of the law lords are called the opinions (or speeches) which are then formally delivered in the Chamber of the House of Lord's. Finally, for a decision “rendered” by a court, we may find a decision pronounced by a court in British English. References to precedents from another common law jurisdiction are particularly important when the courts must decide a case of first impression, for which there is no precedent in the jurisdiction. The persuasive precedent from another common law jurisdiction can be used as a guide to elaborating the legal principle in the case. It is not binding, but it is considered desiderableby the judges for common law principles on important matters to develop in harmony. An example of a reference of this kind can be observed in the judgment in Donoghue v Stevenson.
IMPORTANT ACTS STUDY THE SCOTLAND ACT 1998 → DEVOLUTION
SHORT TITLE
The Scotland Act 1998 is the short title of the Act, used to identify it as a legal source. Numerical reference → 1998 chapter 46 (the 46th act of 1998)
LONG TITLE
The first paragraph of text is the long title of the Act. It begins typically “An Act to provide for the establishment of a Scottish Parliament….; to provide for changes in the constitution… “To provide for” means to govern by law, to regulate by legislation (disporre, prevedere, disciplinare). The use of the infinitive with “to” in the long title expresses purpose. Each phrase lists one or more purposes of the Act, principal among them “the establishment of a Scottish Parliament and Administration”. One purpose of the Act is “to amend the law about parliamentary constituencies in Scotland”. The choice of verb specifies that this part of the Act involves modifying (amending) past law.
The Act is divided into SECTIONS;
The Act begins withsection 1, concerning the Scottish Parliament, thensection 28 concerns Acts of the Scottish Parliament, andsection 29 concerns the legislative competence of the Parliament. The Act is a constitutional reform of great significance for the United Kingdom and especially for the people of Scotland. It provides for devolution to Scotland, creating a Scottish Parliament and Executive; as the names suggest, these organs have wide legislative and governmental powers at Scottish level. The new Scottish Parliament came into existence in 1999, with its seat at Holyrood, in the capital Edinburgh. The historic Scottish Parliament, and also the English Parliament, had been abolished by statute, after the political unification of Scotland with England → The Treaty of Union of 1707. A single Parliament for Great Britain was established in London, Westminster, which co-exists today with the modern Scottish Parliament. The Scottish Parliament enjoys wide legislative powers over Scottish matters. However, it remains constitutionally part of the United Kingdom with the British monarch as head of state. It cannot pass a valid law declaring Scottish independence; that must be the subject of political negotiation. At the time of writing, with the Scottish National Party in power in Edinburgh, the prospect of independence has been on the political agenda for some time. In the first independence referendum held in Scotland in 2014, Scots voted to remain part of the UK; after Brexit, that choice may change.
- What power is granted by section 28 to the Scottish Parliament?
THE HUNTING ACT 2004 SHORT TITLE Hunting Act 2004 Numerical reference → 2004 chapter 37 (the 37th Act of 2004) LONG TITLE An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing; and for connected purposes. SECTIONS Section 1 of the Act creates a crime. Section 2 permits exemptions which are specified in schedule 1 to the Act. Section 4 provides a defence → it’s a defence if the defendant can show that he/she reasonably believed that the hunting was exempt. If both conduct and mental element are present,then the defendant is obviously and deliberately breaking the law → it’s a case of blatant law-breaking. At the beginning of the 21st Century, many people on both sides of the debate felt very strongly about the Hunting Bill, a proposal to ban a traditional old English sport. Considered cruel by many citizens, the right to engage in this form of hunting was supported by many others, including the majority of the House of Lords. The Hunting Act came into force in february 2005 and the enacting words of the Act show that the House of Lords did not approve the Bill. Therefore, the Parliament Acts 1911 and 1949 were invoked and it became law without the approval of the Lords.
- What form of hunting was involved? Chasing a fox with a group of hounds and letting them catch and kill the fox while the hunter would follow the hounds on a mount (a horse).
- What was the position of the House of Lords? The House of Lords voted against the bill proposing a complete ban (afull oroutright ban) on hunting. But it voted in favor of licensed hunts, instead. → hunts permitted with a licence. This involved amending the Bill approved by the Commons. In the past the Lords had already blocked the bill (it had used itsdelaying power)
- What constitutional problem arose? If the House of Lords rejects the bill again, it may be necessary to use the Parliament Act to enact the law, ignoring the opposition of the Lords -> overriding it. (verb to override)
- What other verb means to prohibit, to ban? To outlaw
- What does the verb “to override” mean? To override means “to use official authority to ignore or change a decision that someone else has made; to use one’s authority to reject or cancel”.
PART III
THE EUROPEAN DIMENSION
3.1.2 EUROPEAN ABBREVIATIONS
EU is the abbreviation for European Union. Abbreviations are typical of legal language, since they permit brief but precise identification of an institution, the legal source, or other entity. MEP Member of the European Parliament Elected representative of the European people in the Strasbourg Parliament. *** Membro del Parlamento Europeo TFEU Treaty on the Functioning of the European Union The Treaty of Lisbon Ave the Treaty of Rome this new name. It forms the detailed basis of EU law by defining the principles and objectives of the EU and the scope for action within its policy areas. TFUE | Trattato sul Funzionamento dell'Unione Europea. ECB European Central Bank Based in Frankfurt, this financial institution manages the euro and EU monetary policy. BCE | Banca Centrale Europea EEC European Economics Community Established by the first Treaty of Rome, the economic aims of this Community are based on the creation of a common market. CEE | Comunità Economica Europea ECSC European Coal and Steel Community Established by the Treaty of Paris and expiring 50 years later in 2002, this first Community introduced shared control over production of the prime materials of war. CECA | Comunità Europea del Carbone e dell'Acciaio EMU Economic and Monetary Union It involves close coordination of economic policies and the introduction of a single currency; the euro. UEM | Unione Economica e Monetaria dell'Unione Europea ECHR European Convention on Human Rights The judicial organ of the European Union ensures observance of EU law and its uniform interpretation in the Member States. CEDU | Convenzione Europea per la tutela dei Diritti Umani ECJ European Court of Justice The judicial organ of the European Union ensures observance of EU law and its uniform interpretation in the Member States. CGUE | Corte di Giustizia dell'Unione Europea EESC European Economic and Social Committee A non-political consultative body that represents economic and social interest groups in civil society in the EU. CESE | Comitato Economico e Sociale Europeo TEU Treaty of european Union Also known as the Treaty of Maastricht, it marked a fundamental new stage in European integration. TUE | Trattato sull'Unione Europea CAP Common Agricultural Policy This important policy defines the European model for agriculture; Member States sometimes disagree on its budget. PAC | Politica Agricola Comune CFSP Common Foreign and Security Policy This principle was formalised in the Maastricht Treaty, it seeks to preserve peace, and reinforce international security and promote cooperation and democracy. PESC | Politica Estera e Sicurezza Comune
The Convention was inspired by the United Nations Universal Declaration of Human Rights of 1948; being a convention, the ECHR is a legally binding instrument, while the Universal Declaration only has indirect legal effects. The Convention is central to the legal protection of individual human rights in the Member States of the Council of Europe. After signing the Convention, the what final legal step must States take? After signing the Convention, written in two authentic texts in English and French, the parties must ratify it. Ratification is a step by which the international obligation is assumed, in accordance with the national constitutional procedures of each state. Under Article 59, instruments of ratification must be deposited with the Secretary General of the Council of Europe and, under paragraph 2, the Convention would come into force after the deposit of ten such instruments. This took three years; in September 1953, the Convention came into force. The Council of Europe has two official languages, and which are also the languages of the Convention text and of the European Court of Human Rights: English and French. It also has three working languages: German, Italian and Russian. LANGUAGE AND HUMAN RIGHTS Language is mentioned in the text of the European Convention on Human Rights both in relation to non-discrimination (Article 14) and also in relation to the right to liberty and Security (Article 5) and the right to afair trial (giusto processo) (Article 6). EUROPEAN CONVENTION ON HUMAN RIGHTS Article 5(2) protects a person at the time of the arrest; he must be told quickly and without delay (promptly) of the reasons of the arrest, the and of criminal accusations against him, and in a language he understands. Article 6(3) protects a person from the time of incriminating and during trial; he must be told promptly and in detail about the nature and causes of the accusation against him, in a language he understands and he has a right to free interpretation in court if needed. Article 14 prohibits discrimination on any ground; the list of grounds is for example only (such as… ) and includes discrimination on the ground of language.
- 2 THE UNITED NATIONS The Charter of the United Nations (Carta delle Nazioni Unite) was established as a consequence of the United Nations Conference on International Organization held at San Francisco and was signed on 26th June 1945, as the Second World War came to a close. Some aims of the new universal international organization were to prevent future war, to maintain international peace and security, to develop friendly relations among nations and to promote respect for human rights. The Purposes and Principles of the UN can be examined in full in Articles 1 and 2 of the Charter text, while Article sets out its principal organs. The Charter was drafted (to write an official text such as a treaty, law or legal document. It is done by draftsmen) in five languages; Chinese, French, Spanish, Russian and English. Article 111 provides that the Charter texts are equally authentic (fanno ugualmente fede) in the five languages specified and the texts must remain deposited in the US Government archives. It imposes a duty on the US Government to transmit copies of the text, duly certified (debitamente certificate → copie certificate conformi), to the Governments of the other signatory States (stati firmatari).
Today, with the addition of Arabic, the UN uses six official languages in its intergovernmental meetings and documents and the Secretariat uses two working languages: English and French; simultaneous interpretation is provided in the other official languages of the body concerned at formal meetings. THE INTERNATIONAL COURT OF JUSTICE The principal judicial organ of the United Nations is the International Court of Justice (ICJ), which has its seat in the Netherlands at The Hague. The Statute of the International Court of Justice is annexed to the UN Charter and forms an integral part of it. In Article 39, the Statute lays down the official language of the Court, giving the parties to a case different options. Under paragraph 1, French and English are both official languages of the Court and the parties may agree to conduct a case in either language; judgment is then delivered (pronounced) in that language. If there is no agreement (in the absence of agreement) it is possible for each party to use the language it prefers (each party may …) in the pleadings. Judgment is then pronounced in both languages and the Court determines (decides) which is the authoritative text. Under paragraph 3, the Court must authorize the use of another language by a party, on request. Aware of the language problem, the UN decided to operate in a limited number of key languages.
- 3 THE EUROPEAN UNION MULTILINGUALISM In contrast with the United Nations, the European Union is criticised for the expense and bureaucracy involved in its multilingual operations. THE TREATIES The primary legal texts of EU law are the Treaties, drawn up in all the official languages, with each version being equally authentic. The only exception to this was the ECSC Treaty, signed in Paris in 1951. It was drafted in a single text in French, generally regarded as the authentic version and later translated into the other languages. But when, in 1957, the same six founder members of the European Communities signed the Treaties of Rome, establishing the EEC and Euratom, they adopted amultilingual approach. The Treaty of Rome was drawn up by the six founder members in a single original in the Dutch, French, German and Italian languages, all four texts being equally authentic. As enlargement of the European Community began in the 1970s, with the accession of Denmark, Ireland and the United Kingdom, more versions of the treaty in the new languages were added, and these, too, were given the status of authentic texts. Each enlargement of the European Community - and of the European Union since its creation in 1992 - has brought together populations with different cultures, traditions and languages within a single economic and legal framework. Today the EU has almost 500 million citizens, from 27 different nations. As more candidate countries join, new languages will be added, since each country decides, when joining the EU, which of its national languages it wishes to be used at EU level. FOUNDING TREATIES AND ACCESSION TREATIES The Treaty of Rome is one of the founding treaties of the European Union; such treaties are also calledconstitutive treaties because they may be regarded as the constitution of the Community and the Union. They set up the various organs of the Union and grant them their powers, delineating the areas of exclusive and shared competence between the Union and Member States. They also contain provisions of substantive law, which would not normally be found in a constitution. The Accession Treaties are another important class of treaty in the EU legal context. In international law, a treaty of accession is the type of agreement by which a State can become a party to a pre-existing treaty.
Binding legal texts such as the Treaties, EU acts and judgements of the Court of justice must be effective and accessible on equal basis to the people of Europe in their own language. The European Commission uses three working languages: English, French and German. Draft policy papers (bozza di documento orientativo) anddraft legislation (bozza di legge) are produced only in these three languages and are translated into all the other official languages only at the final stages. A “Joint Practical Guide of the European Parliament, the Council and the Commission” is available for persons involved in the drafting (redazione) of European Union legislation. Its first General Principle is that the drafting of a legal act must be clear, simple and precise. One reason for this is the equality of citizens before the law:the law must be comprehensible and accessible to all. Article 1.2.1 of the Guide underlines that this principle is especially important in respect of EU legislative acts, “which must fit into a system which is complex, multicultural and multilingual. The European Parliament has developed a system of “pivot” languages. These languages are English, French, German, Italian, Polish and Spanish. A document is presented in another language, such as Greek; and is first translated into the pivot languages, then retranslated into the remaining languages. This reduces the number ofbilateral combinations needed.
- 4 PARALLEL TEXTS AS LANGUAGE RESOURCE One of the benefits of EU multilingualism is the fact that we can use authentic parallel texts, such as the Treaties, to discover equivalent terms and expressions in different languages, an excellent resource for vocabulary expansion in the wide range of areas where the EU operates today.
- 3 THE TREATY ON EUROPEAN UNION Article 1 TEU pre-dating changes (2006) By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called “the Union”. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens. (...) Article 1 TEU Consolidated version (2010) The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.
- 2 CITIZENSHIP OF THE EUROPEAN UNION One important aim of the Treaty on European Union was to introduce a new legal status for citizens of the Member States; citizenship of the European Union. Article 3 TEU 1 The Union’s aim is to promote peace, its values and the well-being of its peoples. 2 The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. 5 In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. Citizenship at EU level involves rights and duties (diritti e doveri) which are laid down in the Treaties.
3. 4 THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The ECHR was drawn up by the Council of Europe in 1950. The ECHR drew inspiration from the United Nation Universal Declaration of Human Rights of 1948; it is an important regional instrument for the protection of fundamental rights..
- 2 BRITAIN AND THE CONVENTION BEFORE THE HUMAN RIGHTS ACT 1998 The UK was one of the signatories to the European Convention on Human Rights. In fact, British lawyers helped to draft the Convention and Britain ratified it, in conformity with Article 59, in 1951. As a party to the Convention, the UK was bound to observe its provisions as part of British obligations under international law, as soon as it came into force in September 1953. However, the UK Parliament did not immediately enact legislation to incorporate it, that is, to transpose the Convention into British law. This step was only taken in 1998, with the enactment of the Human Rights Act. The reason for this is that the British legal system is strictly dualist; indualism, national and international law are considered to be two separate systems operating in different fields. (The opposite is monism, where national and international law form one legal structure, international law being supreme). The British courts “take no notice of treaties”; in other words, they do not regard treaties as a direct source of legal obligation. A legislative enactment at national level is necessary to incorporate the treaty into the national legal system and the courts will then apply the national law, giving effect to the treaty as enacted by Parliament. The result of British failure to incorporate the ECHR was that for many years an individual victim who alleged (to state that certain facts are true, often indicating a crime. Allegation) a violation of Convention rights against the UK could only enforce his or her rights by making an application directly to the Convention bodies; the European Commission and Court of Human Rights in Strasbourg. This was a long, expensive process, subject to the “generally recognised rules of international law”, as provided in Article 35 ECHR. Under this Article, the power of the Court “to deal with the matter” only comes into play after all “domestic remedies” have been tried, but have failed. After final judgment before the national courts, a victim has a time limit of six months to apply to the Court; after that, the action is time barred. UK VIOLATIONS In the period up to 1998, the UK lost many causes before the Strasbourg Court, leading to changes in domestic law. But thiscreated tension and bad publicity for the British government and embarrassment, usually for the Home Secretary, the Minister with responsibility for criminal justice, frequently responsible for procedures found by the European Court to be in violation of the Convention. Breaches (violations) for which the United Kingdom was held responsible in this period included controversial matters such as judicial corporal punishment, custodial sentences to be served by young criminals, treatment of IRA prisoners, and “shoot to kill” operations by special security forces against suspected terrorists. Nationalist critics said Britain should leave the European Convention on Human Rights, so as to avoid interference from Europe. By contrast, human rights supporters advocated different legal solutions to the problem, to give effective protection of ECHR rights at national level.
