Sources of English Law

There are three major sources of English law namely;

-          Case law

-          Legislation

-          European Union Law

1.  Case law

Case law or Judge made law refers to the decisions and interpretations made by judges while deciding legal matters/issues brought before them. These decisions/cases become precedents. A precedent is a previous court decision which another court is bound to follow by deciding a subsequent case in the same way. See notes on the Doctrine of Judicial Precedent.

2. Legislation

Legislation may take the form of primary or delegated legislation under an Act of parliament.

Primary legislation includes Acts of Parliament or statutes. They are enacted by parliament. Statutes lay out Parliament’s general intention in a particular field.

Delegated legislation refers to rules of law and regulations made by people acting under the authority of parliament under powers conferred by statutes.

2.1.                     Parliamentary sovereignty

This is a principle of the UK constitution. It makes parliament the supreme legal authority in the UK which can;

-          Repeal earlier statute

-          Amend an existing statute

-          Overrule or modify case law developed in courts

-          Make new law

Parliament usually follows certain conventions which limits its freedom:

-          No parliament can legislate so as to prevent a future parliament from changing the law.

-          Judges have to interpret statute and they may find a meaning in it which those who promoted the statute did not intend.

The validity of act of parliament cannot be questioned. However, judges may declare an Act to incompatible with the European Convention on Human Rights.

In Cheney v Conn, the claimant objected to his tax assessment under the Finance Act 1964 because some of the tax collected was used to fund the manufacture of nuclear weapons. He alleged that it was contrary to the Geneva Conventions Act 1957 and in conflict with international law. It was held that the act gave clear authority to collect the taxes.

Additionally, parliament may make the law clearer by passing a codifying statute putting case law on a statutory basis e. Sale of Goods Act 1979.

It may also pass consolidating statutes that incorporate an original statute and its successive amendments into a single piece of legislation e.g. Companies Act 2006.

2.2.                     Parliamentary procedure

A proposal for legislation can be presented to the parliament by government, a back bench M.P or a peer. A government bill may be aired in public in a Government Green or White Paper. A bill may be introduced into either the House of Commons or the House of Lords. A bill is a proposal for new legislation, or a proposal to change an existing law presented for debate before parliament.

A Bill may be introduced into either the House of Commons or the House of Lords. When it has passed through one House it must then go through the same stages in the other house.

Before becoming an Act of Parliament, a Bill must go through the following stages in both houses.

-          Stage 1:  1^st reading – publication and introduction of the Bill in the house. No debate.

-          Stage 2:   2^nd reading- debates on the general merits of the Bill. No amendments are made to the Bill.

-          Stage 3:   Committee stage – the bill is examined by a standing committee of about 20 members representing the main parties and including some members at least two who specialize in the relevant subject.

-          Stage 4:     Report stage – the Bill as amended by the committee is reported back to the full house.

-          Stage 5:    Third reading – the bill is read for the final time and approved or rejected by the members.

When it has passed through both houses it is submitted for Royal assent which is given on the Queen’s behalf by a committee of the Lord Chancellor and two other peers. It then becomes an Act of Parliament but does not come into operation until a commencement date is notified by statutory instrument.

Advantages of primary legislation

-          Statute law can in theory deal with any problem

-          Statutes are carefully constructed codes of law

-          A new problem in the society can be dealt with by passing an act of parliament

-          The House of Commons is elected at intervals of not more that five years. Hence the law making process is theoretically responsive to public opinion.

Disadvantages

-          Statutes are bulky

-          Parliament often lacks time to consider draft legislation in sufficient detail.

-          A substantial statute can take up a lot of parliamentary time.

-          Statutes law is a statement of general rules. Those who draft it cannot anticipate every individual case which may arise.

2.3.                     Delegated legislation

These are rules of law, often of a delegated nature made by subordinate bodies to whom the power to do so has been given by statute.

The following are some forms of delegated legislation:

              a)      Statutory instruments – detailed orders, rules or regulations mad by the minister

              b)     By-laws made by local authorities

              c)      Rules of court made by the judiciary to control court procedure 

              d)     Professional regulations concerning certain occupations

              e)      Orders in council issued by the government through the privy council.

2.3.1.      Control over delegated legislation

Parliament exercises some control over delegated legislation by keeping the production of new legislation under review.

For instance,

-           - Some statutory instruments must be laid before parliament before they take effect.

-           - Some statutory instruments do not take effect until approved by affirmative resolution of parliament.

Additionally, there are standing Scrutiny Committees of both houses whose duty is to examine statutory instruments from a technical point of view and may raise objections if necessary.

Further, courts are permitted to strike out delegated legislation which is contrary to the Human Rights Act.

Advantages of delegated legislation

Legislation can be passed quickly in an emergency

Laws can be passed with input from those who have technical expertise, which MPs may not have

Responds to local knowledge of specific problem

It is easier t amend or revoke than acts of Parliament.

Disadvantages  

Takes power from democratically elected MPs

Its volume and lack of publicity means that it can be difficult to keep up with the changes introduced.