The Main Sources of Law That Have Shaped the English Legal System - Essay Example

?The Main Sources of Law that have Shaped the English Legal System Introduction The main sources of law that have shaped the English legal system areparliamentary acts, judicial precedent, European Community law and delegated legislation.1 European Community law consists of both primary and secondary legislation and judicial precedent. Therefore the main sources of law that have shaped the English legal system can be broadly divided into codes and case law. Both codes and cases have made significant contributions to shaping the English Legal System.2 However, based on the doctrine of parliamentary sovereignty, acts of parliament are arguably the most influential source of law shaping the English legal system today.3 Parliament has the authority to “make” or “unmake any law”4 and as a result of the exercise of, or the failure to exercise this power, the sources of English law are possible today. This essay will assess the sources of law shaping the English legal system and in doing so will demonstrate why acts of parliament are the most influential source of law today. This essay is therefore divided into two main parts. The first part of the essay examines the four main sources of law and the second part of this essay examines the doctrine of parliamentary sovereignty and its role in shaping the hierarchal order of sources of law today. The Main Sources of Law The four main sources of law shaping the English legal system can be classified as case law and codes of law. Judicial precedents are case law consisting of law established by the judiciary via the application of rules set forth by “previous cases”.5 Acts of parliament are laws created by Parliament.6 Delegated legislation represents secondary sources of acts authorized by Parliament and usually materialize in the form of Statutory Instruments.7 European Community law is the law established by the European Union and includes directives, regulations, decisions, case law and treaties which are binding on all Member States.8 Judicial Precedents Case law which is the underlying premise of judicial precedents “refers to the creation and refinement of law in the course of judicial decisions”.9 Essentially, judges are required to apply and interpret statutory laws to the facts of the case at issue. Only when statutory laws have been exhausted can a judge then look to case law. When both sources of law have been exhausted, a judge may rule on the matter and establish a precedent.10 As creative and as important as judicial precedents are, it is a long established principle that Parliament can overrule or alter any judicial precedent.11 Separate and apart from the binding nature of acts of Parliament, case law is also subject to a hierarchal order. This is established by the doctrine of stare decisis which compels a lower court to be bound by the previous decisions of higher courts or a court of equal rank.12 The difficulty with the doctrine of stare decisis is that although it establishes an hierarchal structure, a lower court may be bound by a faulty decision of a higher court and is powerless to overrule the decision.13 Master of the Rolls Lord Greene, established rules designed to resolve some of the difficulties that might arise when applying the previous decisions. Lord Greene ruled that when there was a conflict “between two decisions” of a courts of “co-ordinate jurisdiction”, the court must choose between them.14 However, where a decision of a higher court conflicted with a decision of a court of higher jurisdiction, the court must follow the decision of the highest court. A court when looking at decisions of higher courts could not “follow decisions of its own given per incuriam”.15 A decision is given per incuriam when it misapplies a previous decision or a statute.16 Noticeably absent is the authority to ignore a previous erroneous decision of a higher court. Obviously, case law serves an important function in shaping the English legal system. When Parliament enacts a law, it passes through a formal debate process before it can become law. Thus time constraints make it impossible for Parliament to contemplate each and every scenario. In this regard, the judiciary forms an important purpose in filling the gaps left by Parliament in the law making process. Moreover, case law under the doctrine of stare decisis also increases certainty and predictability in the interpretation and application of statutes and rules of law established by the courts.17 It therefore follows that while the doctrine of precedents cannot always be perfectly applied, it does serve a significant purpose as a source of law shaping the English legal system. Acts of Parliament Acts of Parliament include both primary and secondary/delegated legislation. In this regard, primary legislation is passed as “Public General Acts” which id applicable throughout England and Wales where they cover issues not under the authority of the Assembly of Wales.18 Thus acts of parliament are statutes passed by Parliament. Parliament itself consists of democratically elected representatives referred to as the House of Commons and the non-elected but appointed House of Lords.19 Secondary or delegated legislation is more popularly known as “statutory instruments”.20 Acts of Parliament usually make provision for a specific law but will usually omit some matters that may arise. For example, a new law will usually not provide the date for which the statute is to come into effect. Thus the power will be delegated to a government ministry or minister for declaring the effective date of the statute. Moreover, a primary statute may confer specific powers but fail to list the persons or bodies that should exercise the power. For example, the Regulation of Investigatory Powers Act 2000 confers upon public bodies the authority to conduct secret surveillances.21 The 2000 Act fails to identify the public bodies or the persons within the public bodies that may exercise the authority. The specific details were subsequently identified in the Regulation of Investigatory Posers (Directed Surveillance and Covert Intelligence Sources) Order 2003 SI 2003/3171.22 All Acts of Parliament are regarded as the highest source of law within the English Legal System.23 Within the hierarchal system within the English legal system, whenever there is a conflict between a judicial precedent and an Act of Parliament, the Act of Parliament will prevail.24 It would therefore appear that Acts of Parliament are the source of law within the English legal system with the greatest influence today. This argument is explored in greater detail below under Parliamentary Sovereignty. European Community Law European Community law, also consist of statutes, secondary legislation (directives, regulations and decision) and judicial precedents. Community law originates outside of England and Wales, but is binding on England and Wales nonetheless. However, the binding nature of Community law was only made possible by an Act of Parliament.25 The enabling Act is the European Communities Act 1972 (as Amended) which provides for the direct application of all European Community treaties or any law arising out of those treaties to be directly applicable in England and Wales.26 European Community law therefore has greater influence within the English legal system than judicial precedents do. The direct applicability of European Community law via the European Communities Act means that European law whether statutory or case law, can overrule a judicial decision and thus bind all courts within the English legal system. The European Court of Justice ruled that: The EEC Treaty has created its own legal system which, on the entry into force of the Treat, became an integral part of the legal systems of the member states and which their courts are bound to apply.27 Community law can also overturn or overrule Acts of Parliament since all national laws are subject to Community law and what has come to be known as Community supremacy.28 It can therefore be argued that Community law has the greatest influence in terms of shaping the English legal system today. However, it is only through an Act of Parliament that Community law can be applied in England and Wales. Just as Parliament passed a law that seemingly surrendered sovereignty to the European Community, Parliament can enact a law in which Community sovereignty is removed.29 In the absence of an Act of Parliament, in particular, the European Communities Act 1972, Community law would not be directly applicable in England and Wales. As Lord Denning noted in contemplation of UK signing the EC Treaty, noted that the UK did not take official notice of treaties. Instead the UK would only take official notices of treaties if they were incorporated by virtue of an Act of Parliament.30 It therefore follows that despite the dominance and therefore influence of Community law in shaping the English legal system today, this dominance and influence is directly influenced by an Act of Parliament. It is only through the doctrine of Parliamentary sovereignty that the dominance and influence of Community law is best understood. As will be demonstrated below, Community law, taken as its highest remains subject to the will of Parliament and thus, Parliament is therefore the most influential source of law shaping the English legal system today. Parliamentary Sovereignty and the Importance of Acts of Parliament Parliamentary sovereignty can be defined as Parliament’s competence to make or repeal any law on any subject that it chooses and no court has the authority to review the validity of an Act of Parliament once it has been passed.31 For instance the Human Rights Act 1998 specifically incorporated the European Convention on Human Rights into the law of England and Wales. In doing so, Convention Rights are enforceable in England and Wales. The 1998 Act provides that: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.32 The 1998 Act goes on to provide that should the court come to the conclusion that primary or secondary legislation is incompatible with Convention rights it “may make a declaration of that compatibility”.33 In other words, the courts may only make a declaration of incompatibility as opposed to invalidity. This means that a national statute may conflict with a Convention right, the courts may not set aside the law as ultra vires or invalid. The law in question remains good law despite the fact that it conflicts with a Convention right. The courts are duty bound to interpret the national law in such a way as to ensure that it gives effect to Convention rights.34 If that is not possible, the courts may make a declaration of incompatibility. As Lord Steyn noted in R v A the courts must only exercise the discretion to declare an Act of Parliament as a last option and to avoid making these declarations as far as it is possible to do so. In other words, the declaration of incompatibly should only be made if it could not be avoided.35 The courts are even more certain to avoid declaring an Act of Parliament invalid. For instance in British Railroad Board v Pickin, the plaintiff argued that the British Railways Act 1968 was invalid. The 1968 was described as a private Act passed without opposition and the plaintiff took the position that Parliament had been deceived into passing the statute. The 1968 Act allowed the mandatory purchasing of land. The House of Lords, now the Supreme Court, and the highest court in the hierarchal system of the judiciary, ruled that challenges to the validity of an Act of Parliament could not be made in any court.36 Betten explains that there are logical reasons for the Court’s deference to Acts of Parliament which in turn explain the significance of Acts of Parliament and the reasons for Parliamentary sovereignty. Parliament is comprised of a democratically elected chamber. When Parliament enacts a law, it is typically making and defining matters of important public policy. Thus these decisions are made for and on behalf of the public that elected Parliament to make these decisions. AS Betten explained: ...the authority to make those decisions derives from a democratic mandate. Members of Parliament in the House of Commons possess such a mandate because they are elected, accountable and representative.37 Moreover, in the event the courts had the authority to invalidate Acts of Parliament, the courts would have the final say over Parliamentary decisions. Pursuant to the constitutional conventions and documents such as the Human Rights Act and the European Community Act, the judiciary does not have this kind of authority. If the judiciary were to have the authority to set aside Acts of Parliament, there would be significant and insurmountable conflicts between the judiciary and Parliament. This would be inconsistent with the democratic process and standards of representative democratic institutions.38 As Goldsworthy argued: The price that must be paid for giving judges authority to invalidate a few laws that are clearly unjust or undemocratic is that they must also be given authority to overrule the democratic process in a much larger number of cases where the requirements of justice or democracy are debatable. The danger of excessive judicial interference with democratic decision-making might be worse than that of parliamentary tyranny, given the relative probabilities of their actually occurring.39 It therefore follows that Parliamentary sovereignty is compatible with the democratic system in England and Wales and the judiciary in acknowledging that it does not have the authority to overrule Acts of Parliament is subscribing to the democratic mandate. It must be noted that although Parliament can make and unmake any law, its sovereignty would not be possible without “judicial obedience”.40 No act of Parliament has established judicial obedience and deference to the power of Parliament. Parliamentary sovereignty via judicial obedience has been established by virtue of constitutional conventions. Even so, it would take another constitutional convention or “revolution” to undo Parliamentary sovereignty.41 Therefore until such time as there is a constitutional revolution and new constitutional convention is established, Parliamentary sovereignty will continue to operate so that Acts of Parliament will remain the most influential source of law in the English Legal system today. Established by custom and practices, the duty of the judiciary throughout England and Wales is to apply and adhere to Acts of Parliament.42 In this regard, although the UK courts are bound to follow and apply Community law when it is in conflict with the laws of England and Wales, the courts are in effect applying an Act of Parliament which instructs them to do so. In doing so, the judiciary is acknowledging and applying Parliamentary sovereignty. After all, it is only through an Act of Parliament (the European Communities Act) that Community law is directly applicable and enforceable in England and Wales. Although in practice and the living reality of the law suggests that Community law is the most influential law within the English legal system shaping the law today, none of this would be possible without Parliamentary intervention. Likewise, judicial precedents while they are binding on courts based on the hierarchal structure of the judiciary and the courts, Parliament may if it chooses, enact laws overruling judicial decisions.43 Thus Parliament has the final word on what is law and how law should be interpreted, enforced and applied. When Parliament wishes to exercise its authority to enact new laws, change the law, repeal laws and overturn or replace judicial precedent it can do so at will. While it may appear that the European Community law is the most prevalent and influential law in England and Wales, it remains subject to the will of Parliament. For example, Lord Bridge noted that while the courts recognize Community supremacy it continues to be aware of the fact that Parliamentary sovereignty was “voluntary” surrendered by virtue of an Act of Parliament.44 Acts of Parliament are therefore the most influential source of law shaping the English legal system today. As long as the doctrine of Parliamentary sovereignty continues to recognized and enforced in the Constitution of England and Wales, Acts of Parliament will continue to be the most dominant and influential source of law in the English legal system. Conclusion The four sources of law shaping the English legal system (primary statutes, delegated statutes, Community law, and judicial precedents/case law), have all contributed to the formation of laws within the English legal system. A hierarchal structure has been established with Community law prevailing over English laws, Acts of Parliament prevailing over judicial precedents and judicial precedents are subject to its own hierarchal order. The purpose of the hierarchal order is for maintaining and supporting a democratic system of accountability, transparency, representation and participation. Moreover, the hierarchal structure of the sources of law is also important for maintaining consistency, predictability and certainty of law. Although, Community law sits at the top of the hierarchal order of sources of law, it only derives its power from an Act of Parliament. Since the doctrine of Parliamentary sovereignty dictates that Parliament can make and unmake any law on any subject at any time, Community supremacy is tenuous. In other words, just as Parliament conferred upon Community law the status of supreme law of the land, Parliament is at liberty to strip Community law of its supremacy in England and Wales. It therefore follows that, in reality, Acts of Parliament remain the most dominant and therefore the most influential source of law shaping the English legal system today. Bibliography Textbooks Betten, L. The Human Rights Act 1998: What it Means: The Incorporation of the European Convention on Human Rights into the Legal Order of the United Kingdom. (The Netherlands: Kluwer Law International, 1998). Dicey, A. V. Introduction to the Study of the Law of the Constitution. (Indianapolis, IN: Liberty Fund, 1982, 8th Edition). Forsyth, C. Judicial Review and the Constitution. (Oxford, UK: Hart Publishing, 2000). Gillespie, A. The English Legal System. (Oxford, UK: Oxford University Press, 2007). Goldsworthy, J. Parliamentary Sovereignty: Contemporary Debates. (Cambridge, UK: Cambridge University Press, 2010). Hanson, S. Legal Method, Skills and Reasoning. (Oxon, UK: Routledge-Cavendish, 2010). Mitchell, A. As Law. (Oxon, UK: Routledge-Cavendish, 2009). Partington, M. Introduction to the English Legal System. (Oxford, UK: Oxford University Press, 2012). Slapper, G. and Kelly, D. The English Legal System. (Oxon, UK: Routledge, 2011, 12th Edition). Journal Articles Aldridge, P. ‘Precedent in the Court of Appeal – Another View.’ (March 1984) 47(2) The Modern Law Review, 187-200. Asimow, M. ‘Delegated Legislation: United States and United Kingdom.’ (Summer 1983) 3(3) Oxford Journal of Legal Studies, 253-276. Eleftheriadis, P. ‘Parliamentary Sovereignty and the Constitution.’ (July 2009) XXII(2) Canadian Journal of Law and Jurisprudence, 1-24. Lord Wright, ‘Precedents.’ (1943) 8(2) The Cambridge Law Journal, 118-145. Perry, S. R. ‘Judicial Obligation, Precedent and the Common Law.’ (1987) 7(2) Oxford Journal of Legal Studies, 215-257. Scarman, L. G. ‘Codification and Judge-Made Law: A Problem of Coexistence.’ (1967)42(3) Indiana Law Journal, 355-368. Enchelmaier, S. ‘Supremacy and Direct Effect of European Community law Reconsidered, or the Use and Abuse of Political Science for Jurisprudence.’ (June 2003) 23(2) Oxford Journal of Legal Studies, 281-299. Waldron, J. ‘Stare Decisis and the Rule of Law: A Layered Approach.’ (October 2012) 111(1) Michigan Law Review, 1-31. Cases Blackburn v AG [1971] EWCA Civ 7. British Railroad Board v Pickin [1974] AC 765. Costa v ENEL Case 6/64 (1964) ECR 585. Factortame (No 2) Case C213/89 (1990) ECR 2433. Macarthys Ltd v Smith [1979] ICR 785. R v A [2001] 2 AC 45. Thoburn v Sunderland City Council[2002] EWHC 195. Young v Bristol Aeroplane Co. [1944] KB 718. Statutes European Communities Act 1972. Human Rights Act 1998. Regulation of Investigatory Powers Act 2000. Regulation of Investigatory Posers (Directed Surveillance and Covert Intelligence Sources) Order 2003 SI 2003/3171. Read More