Tutorial

Sources of law

In explaining the sources of English law, it has to be borne in mind that the law has evolved organically over many centuries.

Prior to 1189 England had a codified, civil legal system that was based on Roman law, which is still the basis of law in most of Europe. After 1189 the laws passed by the crown gradually replaced the laws and customs of the various local courts. This was the beginning of the common law in England.

The term “common law” has three meanings; two are used in this essay. The first separates civil law from English law. The second separates case law from legislative law – Parliamentary statute.

Case law had been applied in English courts long before legislation was introduced. It is based upon judges using their common sense to apply the legal rules and customs in a fair and consistent manner. Judgments are made using the principle of precedent (stare decisis), meaning that a court is bound by the decisions of an equal or higher court in a case of equivalent circumstances

Since Norman times the monarch and then parliament made legislation. The Magna Carta, imposed on King John by the feudal barons at Runnymede in 1215, was the first document to limit the power of the crown by law. The oldest extant legislation (Distress Act 1267 C.4 Statute of Marlborough 52 Hen 3) narrowly post dates this event.

Today, legislation is created by and enacted under the auspices of Parliament. The functions of legislation are basically making, changing and repealing the law. This is significantly different to case law. Judges are not meant to make law; they are able, through the use of the rules of construction, the rules of language and the other aids to interpretation, to shape the law to meet Parliament’s intent. Central to the legislative process is debate. Bills can initially be presented to either the House of Common’s or the House of Lord’s as a matter of government policy or agenda, or without government backing as a private member’s Bill. Through a process of discussion, consultation, revision and voting the Bill may become law.

Unless otherwise stated in the Act, the Act becomes law on the date it receives Royal Assent. Alternatively, it may have a commencement date or the Act may delegate authority to a Minister or local government body to initiate the Act. The scope of the secondary legislation is stipulated in the Act; to act outside of those provisions would be ultra vires.

The European Communities Act 1972 was enacted to allow EU law to be incorporated into domestic law without the repeated intervention of parliament. The primary legislation of the EU is contained in the two treaties that were amended by the Treaty of Lisbon, which came into force on 1^st December 2009 viz. The Treaty on European Union (Maastricht) and the former Treaty of Rome – now known as The Treaty on the Functioning of the European Union. This legislation is binding on all member states and institutions.

Secondary legislation, mainly regulations and directives, is enacted by the EU institutions: The Council of the European Union; The European Commission and The European Parliament.

Somewhat ironically, case law judgments of the Court of Justice of the European Union (CJEU) are binding on UK courts, but not on the CJEU itself because it does not have a concept of stare decisis. In reality the CJEU only departs from its previous decisions for compelling reason. This is somewhat analogous to the Supreme Court and its use of The Practice Statement [1966] 3 All ER 77.

Decisions in the European Court of Human Rights (ECHR) are not binding on UK law, but are considered persuasive. In the judgment of ECHR in A v. United Kingdom (Application No 3455/05) per Lord Hoffman “To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the convention”.

Legislation is the most important source of English law. The law reflects the morals and customs of the society it serves. Domestic legislation is best placed of all the sources discussed to meet this end.

Case law, through the interpretation of statute is more malleable on a work-a-day basis, but it lacks the authority of democracy, and is subject to the prejudices of individual judges.

Although UK law, in many areas is subordinate to EU legislation and ECHR judgments, as has been shown, none the less, this is a direct result of UK legislation in the form or The European Communities Act 1972.

VJ (C) 2012