Main Sources of Law in England Today - Essay Example

? Critically discuss the main sources of law in England today and provide a brief explanation of the role of judges. There are three major sources of law in England; Common Law, Legislation, and the European Union law. The laws of England are not contained in a single series of documents. English law applies to England and Wales, but there are various laws, which apply to the entire UK. There are international policies and rules that may become part of national laws, for example, the European Convention on Human Rights (ECHR) in which UK is a signatory. The Human Rights Act of 1998 enables all the UK courts to guard the rights identified in the ECHR (Alisdair 2007, p. 20). The English law is based on three pillars; parliamentary sovereignty, the rule of law, and separation of powers. Parliamentary sovereignty refers to the supremacy of the United Kingdom Parliament in legislative matters. The principal source of UK law is the UK Parliament. Separation of powers means there is the existence of some degree of independence in the running the different roles of government. Conventionally, these roles are the executive, legislative, and the judicial functions of government (John 2011, p. 145). The rule of law calls for equality of all before the law. The rule of law encompasses basic liberties including freedom from arbitrary laws and arbitrary powers (Alisdair 2007, p. 21). Statutes Statutes are laws, which are made by parliament. The House of Lords, House of Commons, and Monarch are responsible for making legislation. Legislation begins with a Bill, and there are three types of bills; public bills, private bills, private members’ bills. Public Bills are introduced by the government on public policy matters that affect the entire country. Local governments or large public companies introduce Private Bills. Private Members’ Bills are introduced by the Members of Parliament who are not Government Ministers or Lords (John 2011, p. 147). The Legislative Process Bills may be initiated into either House of Lords (except Finance Bills, which start in the House of Commons) or the House of Commons. A Bill follows several stages; First Reading, the title of the Bill and the main objectives are read out. Second Reading; the Bill is fully read. The main debate takes place concerning any contentious issues; amendments can be made at this stage. Joint Select Committee on Human Rights reports any occurrence of Human Rights issues. After the debates, the House votes whether to proceed or not. Committee Stage; at this stage the Committee scrutinize each and every clause of the Bill. The Committee Stage is an exercise of eliminating any drafting errors. Amendments of the Bill may be proposed by the Committee. Report Stage; the committee files its findings to the House of origin. The proposed modifications are then debated, and the members vote for or against the amendments (John 2011, p. 149). Third Reading; The Bill is fully read, and at this stage, a debate will be there if at least six MPs request it. The MPs will vote whether the Bill should continue or not. If a Bill successfully passes all the stages, it then continues to the alternative Chamber. Any modifications made in the alternative House should be submitted back to the House of origin to assent to the amendments; this in known as Ping Pong. Once a Bill successfully passes through both houses, it then goes to Royal Assent. This entails a formal process whereby the Queen assents the Bill, and it officially becomes a statute. The newly generated statute contains a date of implementation shortly following the Royal Assent. Delegated legislation is made under the power of the Act of Parliament. The Act gives an institution or a person authority to make the detail of the law on behalf of the Parliament (John 2011, p. 150). The following are the advantages and disadvantages of Statute Law as demonstrated by John (2011, p. 152). Advantages Parliaments are elected since they have policies citizens want. This means that their laws are likely to incorporate the ideas of the people. Judges could not be in touch with the proposals of the ordinary citizens. Parliament is elected, and it may be argued that, it has right to make laws. The parliament is the primary source of law and derives its supremacy from the citizens. A judicial precedent is usually about one point, whereas a Statute covers a wider range of issues and, therefore, more comprehensive. Disadvantages Legislation frequently uses difficult language, and more time may be spent in a case arguing the about its meaning. It takes long to pass legislation; the process is slow. Judicial Precedent Peter (2010, p. 18) concludes that judicial precedent, also known as common law, are those laws made by the judges in their rulings and interpretations. The stare decisis are the basis of the doctrine of the judicial precedent. Once in a certain case, a point of law has been decided, that law must be useful in all future cases having similar material facts. It is necessary to establish what a point of law is, in order for the doctrine of judicial precedent to function. In the course of delivering judgments, judges will present their reasons for reaching a resolution. The reasons which are essential for the judges to reach their resolution result to the ratio decidendi of a case. The ratio decidendi forms the legal principle. This principle is the binding precedent implying that it ought to be followed in future cases containing similar material facts. It is significant to separate the obiter dicta from ratio decidendi. Obiter dicta are statements arising in the course of a ruling that are not essential for the decision. Besides, in binding precedents there is the existence of the persuasive precedents. Persuasive precedents contain judicial statements that are not binding but can be considered. There exists a hierarchy of courts in UK. The basic rule is that a court should follow the precedents from a superior court, but they are not bound to follow resolutions from subordinate courts lower in the hierarchy (Peter 2010, p. 20). The following are the advantages and disadvantages of Judicial Precedent as demonstrated by Peter (2011, p. 24). Advantages The hierarchal order of the courts enables the attorneys to be aware of precedents, and may accordingly advise their clients before the hearing of their cases in court. Precedents provide opportunities for change and growth of law. Precedents imply that there is incredible detailed information in the law. Precedents provide judges with examples of previous cases rulings, thus making it easy for judges to make a reasonable decision regarding a case with similar material facts. Disadvantages Some courts, especially the Supreme Court, are unwilling to overrule previous decisions, even when most Law Lords believe they are wrong. If there is no computer database of previous cases, it is complicated and difficult to search through all cases. Distinction can be employed on an extremely small point, which permits a binding precedent to be ignored. In judicial precedents, there is a sluggish law change, since it changes in reaction to cases coming up. The European Union Law The EU was established in 1957; presently, it has 27 Member States. The UK joined EU in 1973, and since then, the UK parliament is bound to incorporate EU law into national law. The EU law takes precedence over the national law provided that UK remains as a member of the EU. This means that the UK Parliament has limited sovereignty. The governing bodies of the EU include Council of Ministers; this acts as the main decision making institution of the EU. European Commission; the Commission gives directions of EU policies and presents legislative proposals to the Council for consideration. European Parliament is yet another governing body; the Parliament has no direct powers of making law. It debates legislative proposals and is allowed to put questions to the Council and Commission. European Court of Justice; the main function of the Court is to ensure observance of interpretation and application of the Rome treaty of 1957. The Court has a broad jurisdiction over EU law and may hear cases brought by the EU institutions, Member States, or individuals. Treaties, regulations, directives, and decisions are the types of EU law (Karen 2003, p. 40). The following are the advantages and disadvantages of European Law as demonstrated by Karen (2011, p. 42). Advantages European law is a significant source of business law in UK, such as laws relating to employment and product safety. EU law such as directives applies to all member states and the law may lead to harmonization of law among member states, thus strengthening the unity. The members of European Parliament are elected by citizens from every member state; this means that the law incorporates a wide range of ideas of Europeans unlike UK Statutes and Judicial Precedents. Disadvantages The European Parliament has no direct powers of making law; it only debates legislative proposals unlike UK legislature and judiciary, which have direct powers. The European law limits the sovereignty of the UK parliament. Role of Judges Alisdair (2007, p. 25) observes that judges play a role in the interpretation of the statutes and delegated legislation. This is essential since words may sometimes have more meanings. As a result, interpretation may be ambiguous or confusing. There is the literal approach and the purposive approach in statutory interpretation. The literal approach is a traditional approach where words are given their dictionary meaning. European judges prefer the purposive approach where they interpret the purpose of the law makers. The judges play a role in the enforcement, implementation, and administration of the laws through the civil and criminal justices’ systems. Through judicial precedent, judges play a vital role in the formulation of laws. Conclusion There are three main sources of law in England; Common Law, Legislation, and the European Union law. The UK Parliament is the arm of government with the mandate of making Statutes forms the primary source of law in England. Judicial precedents form a source of law in UK and the law originates from the old rulings of the judges. Judges make use of Precedents in delivering rulings of cases with similar material facts in regard to previous cases. The European Law serves as an important source of law in England. Most of the UK laws are similar to European law, and these regulations are useful, especially to businesses. However, these sources of law have advantages and disadvantages, but each serve as a useful source of law. References List Alisdair, G. (2007). The English Legal System, Oxford, Oxford University Press. pp. 17-80. John, O. (2011). British Civilization: An Introduction, London, Taylor & Francis. pp. 143-168. Karen, D. (2003). Understanding European Union Law, London, Routledge. pp. 35-58 Peter, R. (2010). A Guide to Criminal Law, London, Straightforward Co. Ltd. pp.18-48. Read More