Most Important Source of English Law

Case-law, also known as Common law, is a main source of law; this is because most modern English Law has not become statutory. Therefore, the courts are called upon to interpret Acts according to Parliament’s intention and the rules of Statutory Interpretation and apply it to the facts of the case in question. Legislation does not come from judges, it is interpreted by the court and this interpretation does become part of the law.

It has however, been acknowledged that judges do make new law. Predominantly, within the Court of Appeal and the House of Lords. Lord Browne-Wilkinson in Kleinwort Benson Ltd v. Lincoln City Council [1998] 4 All ER 513, overtly stated that ‘The whole of the common law is judge made and only by judicial change in the law is common law kept relevant in a changing world’ (REF). This was evidenced in the case of Re A (Children) [2001] Fam 147.

Moving on to European Law as a source of English law, the UK signed a Treaty in 1957 to become part of the EU in 1973. The English legal system does not include treaties as a source of law, therefore to incorporate EU legislation in English law the European Communities Act 1972 was enacted, thus saving Parliament from having to legislate on every occasion. The UK’s membership to the EU is significant in areas such as consumer, employment and commercial law and the environment and freedom of movement. The European Commission (usually ministers of member states) and the Council of European Union (usually government bodies) create EU Law. There are two types of EU legislation, primary and secondary. Primary legislation is found in the initial treaties. Primary legislation is enforced in all member states and EC institutions and cannot be opposed. Secondary legislation consists of two parts, the Regulation and the Directive. EU Law has superiority over English law. S2(4) European Communities Act 1972 sets out, where discrepancies occur between UK domestic law and EU law, EU law overrides all UK domestic sources of law.

Another source of law is Human Rights; the Human Rights Act 1998 came into force in October 2000. The European Convention on Human Rights was incorporated in to UK domestic law and is enforceable within UK Courts. When Parliament creates legislation they should ensure the Bill is compatible with Convention Rights. When considering existing Acts of Parliament, the courts do not have the authority to overthrow Act’s that are not compatible with Convention Rights. Incompatibilities can however; under s. 4 Human Rights Act 1998, be declared by the judges in High Court or a court superior to it. Reform of the law is obtained via the fast track legislative procedure exercised by the executive and Parliament. This power was exercised in A v. Secretary of State for the Home Department [2005] AC 68, [2004] UKHL 56 and provides illustration.

The final source of UK Law to be discussed is legislation. These are the statutes passed by the Queen and Parliament. Legislation creates and amends laws.  A Bill is presented to the House of Commons then the House of Lords. If the Bill receives approval from both parties, the Queen gives Royal Assent to the legislation. Once executed, the Bill becomes an Act of Parliament and is executed in the specific areas or the entire UK, dependant on the Act. There are Public Bills which deal with matters relating to society as a whole and are part of the Government’s legislative programme or Private Bills which are not sponsored by the government which deal with matters relating to a specific location or person. Legislation can be codifying or consolidating. Consolidation does not change law but is used where several statutes containing similar themes are brought together into one single statute an example is the Insolvency Act 1986. Codifying is whereby laws relating to the same theme have already been covered by common law, custom and sometimes statutes are combined into a single statute. Codification may if necessary change the law an illustration would be the Insolvency Act 1986.

An Act of Parliament may grant bodies such as ministers in government the authority to create rules and regulations under an Act. An Act conferring this authority is referred to as a parent or enabling Act. Regulations made under this authority are termed delegated or subordinate legislation.