When written in plain black and white, laws may seem like simple things: you can do this, you can’t do that. But when the theory comes into contact with the real world – a messy place filled with complicated human behaviours and interactions – that clarity can deteriorate fast.
To correct for such ambiguities, we have case law. In case law, disputed legislation can be clarified by a senior court, setting a precedent by which other cases can be decided.
Such clarifications are made in all manner of scenarios – from clearing up tax legislation to defining what’s lawful or unlawful in the bedroom. Here, we ask three legal minds to name their favourite cases from the archives.
Working out what the lawmakers actually meant
Jessica Brown, director of client training at Thomson Reuters
One of my favourite cases is Pepper v Hart [1993] AC 593, a landmark House of Lords decision on the use of legislative history in statutory interpretation, which has had a massive impact on the legal world.
Before this case, judges could only use the text of the statute – words on a page – without any additional knowledge. Written in very generic terms, this text can be vague and ambiguous and therefore very difficult to apply.
The Pepper v Hart case entailed looking at tax legislation to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. What was important in this case was that the particular point about whether something was a tax benefit or not had been debated – it wasn’t specifically covered in the Finance Act 1976. Those on the case wanted to enter this parliamentary debate as evidence.
The judges ruled that when primary legislation is ambiguous, then, under certain circumstances, the court may refer to statements made in the House of Commons or House of Lords. In other words, look at the debates or presentations made in parliament when the act was being created, to get a better understanding of the reasoning and justification to interpret the meaning of the legislation.
For the first time, judges had more than just the words on the page. It saved a lot of court time, because any ambiguities could just be resolved by looking at what had been discussed in parliament.
Take Anti-Slavery Day, for example, which was created by an Act of Parliament to raise awareness of modern slavery and to inspire people to eliminate it. It was a fantastic idea, however, the act was incredibly badly drafted. All it said was “we shall specify a day that shall be observed each year as Anti-Slavery Day”, with no definition of what should be done. Did it mean a day off, a minute’s silence, specific activities to mark the day? It was almost impossible to comply with. It’s only when you look at the debate that you can see there was a discussion over when it should take place and how to mark the day.
With Brexit on the horizon, there is likely to be a raft of new legislation that will be passed in a bit of a hurry, and that’s where ambiguities and vagueness can slip in. Being able to look at additional materials and understand what the law is actually getting at will save time and create that certainty in the law that wasn’t really available up until this case.
Defining when it’s OK to harm another person
Kerrie Lloyd-Dawson, specialist editor and court reporter, Westlaw UK (above)
One of the most interesting and impactful cases to me is that of R v Brown [1994] 1 AC 212, which had sadomasochistic sex at its core, but which really focused on the issue of consenting to injuries, and what you can consent to and what you can’t. It was the subject of heated debate and divided opinion back then, and still does today.
The case involved five men who had willingly engaged in sadomasochistic acts, resulting in the infliction of actual (ABH) and grievous bodily harm (GBH). Although none of the men had reported anything to the police, the Crown Prosecution Service acted on a video of the encounter and charged them under the Offences Against the Person Act 1861. The issue was whether they could consent to the harm, and the House of Lords decided that their consent was not a defence, and that the consensual infliction of harm on another for sexual gratification was not an act the law should permit.
Some commentators of the time expressed the view that had the facts been different, and involved heterosexual sadomasochistic activity, it would have been found lawful. Others insist that if it were made today, the decision would be different.
In terms of the public’s views on sexuality, 25 years is a long time and I haven’t yet come to a conclusion as to whether we [as a society] have really changed our views. We certainly have more freedom and autonomy in terms of sexual preferences, but have we relaxed our views in terms of how we regulate it from a legal perspective? I’m not sure we have, and in some ways you can argue that we are more regulated.
Where do you draw the line? With Brown, the judges decided that it wasn’t in the public interest that a person should cause ABH to another person for no good reason. However, there are established exceptions, the sport of boxing for example, or tattooing and body piercing, which cause ABH but are not considered a crime.
R v Brown has been considered in a few cases, including R v Wilson [1997] QB 47, where a husband had been convicted of ABH after branding his initials on his wife’s buttocks with a hot knife, at her request. The Court of Appeal overturned the husband’s conviction, finding that the wife had been capable of consenting, there had been no intention to cause injury and she had wanted to acquire a desirable piece of personal adornment.
What you can consent to and at what point the law should intervene is a fascinating and complex subject that will continue to spark debate and divide opinions for many years to come.
Deciding whether an employment contract is binding
Sophie Capel, group head, Practical Law (above)
In naming a favourite case, it would be remiss of any employment lawyer not to name R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, in which the supreme court ruled that employment tribunal fees were unlawful on the basis that they prevented access to justice. This was a massive decision for employment lawyers, and for all workers.
However, currently, I am particularly interested in the cases concerning the employment status of people working in a myriad of creative business structures, the so-called “gig-economy” companies. These are structures that enable businesses to be flexible, classing people as self-employed rather than employees, so they are not entitled to the statutory rights afforded to employees and workers (for example the national minimum wage).
All of these cases have their roots in a case from 2011 (Autoclenz Ltd v Belcher), involving 20 valets who worked for the car cleaning company Autoclenz. Their contracts described them as self-employed, on the basis that they were under no obligation to accept work and they had a right of substitution (they could send someone else to do the job). However, these contracts didn’t reflect reality. The valets were required to turn up for work every day and to notify Autoclenz in advance if they were unable to work.
The group took Autoclenz to the employment tribunal, claiming that they were employees and the case eventually went to the supreme court, which upheld the tribunal decision. Importantly, it held that when determining an individual’s employment status the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement represented what was agreed. The reality was that an individual applying for a role to valet cars did not have the power to negotiate the terms of the contract.
The decision means that employment tribunals may disregard the terms of a written agreement that do not reflect the actual agreement between the parties. The focus of the tribunal’s enquiry should be on the “actual legal obligations of the parties”. This has far-reaching implications, not just for employment status cases currently before the courts and tribunals, but in ways that we don’t yet appreciate – who knows how people will be working in another five or 10 years from now?
