Explain the Sources of English Law

This essay examines the different ways English law is created and then evaluates the role of legislation as the most important source of law.

English law is created in four important ways, namely legislation, case (common) law, human rights law and EU law. A fifth residual way is through custom, but this is not discussed since case law and legislation have largely incorporated custom.

It is recognised that Parliament is the supreme law-making authority, with exceptions for EU law as discussed later. Legislation created by Parliament starts as a Bill. Public Bills are brought by government MPs and affect the public in general. Private Bills affecting persons or a locality are brought by non-government MPs. Bills go through several stages – first and second readings, committee and report stages, and third reading before going to the House of Lords where any amendments are made. The Bill becomes law after receiving Royal Assent.

Devolved legislation comes from bodies or persons authorised by Parliament to enact laws. The devolved law must come from and be consistent with a ‘parent’ or enabling Act. An example is the Scotland Act 1998 passed by Westminster Parliament to create a Scottish Parliament with legislative powers over health, education, criminal and civil law among other areas. Laws passed by the Scottish Parliament are therefore enabled by the Scotland Act.

Legislation can also consolidate or codify law. Consolidation brings different statutes under one statute without change, such as the Insolvency Act 1986. Codification brings all the law under one topic inclusive of custom, common law and statute under one new statute. The pre-existing law may be changed as in the Theft Act 1968.

Legislation, passed in either Acts of Parliament or in devolved legislation, is also important for the sheer volume of new laws. Other sources of law do not reflect the quick change represented by passing a statute.

Common law or case law is also an important part of law making. Courts can create laws by the way in which statutes are interpreted. When statutes are created by Parliament, they must cover a wide range of circumstances. This makes statute non-specific and clarification needs to be applied in circumstances before the court. Courts therefore try to interpret the will of Parliament. Additionally, courts clarify unclear language or errors made in drafting of the statute.

Interpretation of statute by the court is binding through a system of judicial precedent. Principles in decided cases are followed in future cases to give consistency and accuracy in decisions, as well as a measure of predictability in the outcome of cases. There is also efficiency in quoting cases to make a point instead of re-arguing, and some flexibility in ‘development of law’. The adherence is called stare decisis and is binding on all lower courts by appellate courts. Appellate courts are also bound by their own previous decisionsHazel2011-03-08T13:13:00

Save for where the exceptions apply. Look at page 165 of Block 1. and by European Court of Justice. The ECJ will be discussed later.

Statutory interpretation is very important as in R v R [1992] 1 A.C. 599, the House of Lords held that rape is possible within a marriage. This was a deviation from previous precedent and reflected changing social conditions. Case law interpretation then is a way that the law reflects change and may do so quicker than Parliament, where Bills may be defeated or opposed when a vote is taken.

Law is also created from human rights law. The European Communities Act 1972 was passed to recognise EU law as part of British laws. The Human Rights Act 1998 became domestic law to incorporate the European Convention on Human Rights. Higher courts can declare statute incompatible with the HRA. Parliament will be forced to change or repeal the law to avoid the incompatibility such as the Anti-terrorism, Crime and Security Act 2001 being replaced (after A v. Secretary Of State for the Home Department [2005] AC 68, [2004] UKHL 56) with the Prevention of Terrorism Act 2005.

Another source of law originates from the Court of Justice of the European Union (ECJ). Since domestic law gives way to interpretation from the ECJ, Parliament is again bound to adopt rulings of the ECJ such as the recent decision involving voting rights for prisoners.

In conclusion, while case law, EU law and human rights law have considerable influence on law making, it is clear that legislation remains the most important source of law. Written laws created by Parliament and through devolved legislation can override case law, but not vice versa. In a similar manner, case law from human rights law and EU law ought first be legislated by Parliament to reflect those rulings and become part of domestic law (part of the EU Directives). Legislation can also reflect societies’ change much quicker and for these reasons remain the most influential source of law.

798 words

Bibliography

Theft Act 1968

Insolvency Act 1986

Scotland Act 1998

Sale of Goods Act 1893

R v R [1992] 1 A.C. 599, House of Lords

European Communities Act 1972

Human Rights Act 1998

Anti-terrorism, Crime and Security Act 2001

Prevention of Terrorism Act 2005

Biles, G et al; Understanding Law; The College of Law, 2011

Explain and discuss the basic distinctions between

Criminal and civil liability, and

Criminal and civil procedure

in relation to the charge by the police and the proposed claim for damages by Stacey which might help your friend Norman understand his situation. In particular, concentrate on the misunderstandings that are apparent from Norman’s email and explain to him any relevant points of procedure in criminal and civil cases.

To: norman42@telkor.com

From: baz@interfone.co.uk

Subject: Trouble

The law is a complex and ever-present part of our society. There are many ways to categorise law but perhaps one of the simplest ways to understand it would be to divide it into criminal and civil law. Initially a clarification of both types of laws is offered, and subsequently an explanation of the procedures involved.

Criminal law is a breach of law, called an offence, against the State. In this case, a breach of s.47 of the Offences Against the Person Act 1861 has taken place. Criminal offences are prosecuted by the Crown Prosecution Service (CPS) after a charge has been made by the police. The charge of assault occasioning actual bodily harm (“ABH”) is not normally prosecuted under the Criminal Justice Act 1988 (s.39). The purpose of a criminal prosecution is to punish the guilty person.

A charge of ABH is an “either way” offence. This means that case can be heard either in the Magistrates’ or Crown Court or in the High Court. The punishment is up to 5 years imprisonment upon conviction. Since Stacey’s jaw was broken it is clear that ABH was committed. This e-mail does not explain whether or not there is proof against Norman.

It is to be noted that the standard or burden of proof falls upon the CPS to prove guilt “beyond reasonable doubt”. If for any reason this burden is not met, an acquittal can be expected. Additionally a criminal offence is considered to have two parts. The first part is called mens rea. This means that the person must be of a ‘guilty mind’. In determining in this two things are taken into account; whether the person had intended his action or was being reckless. The second part is called actus reus which means that there is a ‘guilty act’.

Norman can also be held liable under civil law. Civil action is brought about by the injured person in this case Stacey. A civil action is called a claim and will be heard in the County Court or possibly a High Court. The purpose of the civil action is to claim compensation for damages, in this case injury to Stacey’s jaw. She may also claim the cost of the legal fees and other sundry expenses such as lost income, cost of medical treatment etc.

To initiate civil action Stacey’s solicitor will file a claim in the relevant court. Norman will be required to attend court on the hearing date. Evidence will be presented and judgement will be given ‘on a balance of probability’. The burden of proof is less than that of a criminal trial.

From the information given it is unclear what evidence there is against Norman and what led the police to charging him. If Norman was involved in the fight it may be likely that the CPS will need to prove that it was his intention and/or recklessness that led to Stacey’s injury. Stacey will need to show that it was his actions that led to her injury.

508 words