Sources and Classifications of Law in the United Kingdom - Essay Example

Sources and ifications of Law in the United Kingdom Sources and ifications of Law in the United Kingdom Introduction Law constitutes a set of rules that govern the conduct of an affair in a given community. According to Simpson (2011), law encompasses various rules of conduct and standards prescribed by authorities for governing and regulating relations between members of a particular community or state. When a person or persons having power in a community enforces rules, then the rule acquires the status of law in a generally accepted meaning of the word. The United Kingdom comprises of four countries; these are England, Wales, Northern Ireland, and Scotland. The UK government adopted the Act of Devolution that granted statutory powers from the Parliament of the UK to the National Assembly for Wales, the Scottish Parliament, the London Assembly, and the Northern Ireland Assembly (Simpson, 2011). The UK has three legal systems: English Law, Northern Ireland law, and Scots law, which apply to England and Wales, Northern Ireland, and Scotland respectively. The sources of law consist of the various factors that contribute to and determine the content of law and the organs through which laws are enacted. The sources of law in the UK include legislation, case law/common law, European Union law, and the European convention on Human Rights; the law in the UK is classified into public and private law. Legislation Legislation refers to the law, which is made by a body specially constituted for that purpose. Legislation is classified into primary and secondary legislations. Legislation in the UK derives from various sources. The Supreme legislation body for the United Kingdom is the Parliament of the UK of Great Britain and Northern Ireland, British Overseas territories and British Crown dependencies; the parliament is also referred to as the Westminster (Aspremont, 2011). Each of the three major jurisdictions of the United Kingdom: Northern Ireland, English and Wales, and Scotland has its laws and legislative systems. The Westminster possesses legislative supremacy; therefore, it has ultimate power over all other political powers in the United Kingdom and its territories. Legislation in the United Kingdom takes the form of Acts or Statutory Instruments. The Acts are passed directly by Parliament while the government minister or the Queen-in-council makes Statutory Instruments under the authority of Parliament. Primary Legislation Primary legislation constitutes the law made by the legislative branch of the government. Primary legislation takes the form of Acts of Parliament in the United Kingdom (Singh, 2013). In primary legislation, the parliament is the law making body; this is because parliament derives its law making powers directly from the constitution. Secondary Legislation Secondary legislation is the law made by the executive branch of the government. Secondary legislation in the United Kingdom must receive the authorization from the primary legislation in order to ensure conformance to boundaries laid down by primary legislation. Secondary legislation aims at implementing and administering the requirements of primary legislation. The legislature passes statutes that set broad outlines and principles (Simpson, 2011). The legislative body delegates powers to an executive branch official to flesh out the details through substantive regulations and provide proper procedures for implementing the substantive provisions of statutes through procedural regulations. Process of Making Law in Parliament The law making process involves passing a bill until it becomes a law. A Bill is a draft of a proposed Act of Parliament that becomes a statute upon receiving the Royal Assent. A bill must pass through six stages: first reading, second reading, committee stage, report stage, third reading and royal assent before it becomes an Act of Parliament. Donovan (2004) describes the stages that a bill must pass prior to gaining status of law. First Reading This is the first stage of passing a bill in the House of Commons. The clerk reads out only the title of the bill. This is a mere formality; neither debating nor voting takes place at this stage. If the Bill passes the first reading, it moves to the next stage. The date for the second reading is fixed. Second reading The second reading provides the first chance for MPs to debate the fundamental principles of a bill. The debate progresses with the opposition parties and backbench members giving their opinions concerning the Bill. The Commons decides whether the Bill should be given a second reading by voting, implying that it can proceed to the next stage. Committee stage The Bill is referred to a committee of the whole house or a select committee comprising of selected MPs of the house and experts to analyse and scrutinise various aspects of the Bill. The committee is able to take evidence from experts and interest groups from outside parliament if the Bills start from the House of Commons. The committee agrees with, changes or removes every clause in the Bill; this may happen under a program order without a debate. Report Stage The chairperson of the committee submits the report to the House after proper analysis of the details of the Bill at the committee stage. If some amendments are made at the committee stage, the members can debate again on those amendments, and if it is approved, it moves to the third reading. Third Reading The third reading provides the Commons with the final chance to debate the contents and principles of the Bill. Third reading usually occurs immediately after the report stage as the next item of business on the same day. Debate during third reading is usually short and limited to the actual contents of the bill. The House votes to approve the third reading of the bill. Consideration of Amendments The Bill is returned to the first House if the passes through the third reading in both Houses. This is to provide for consideration of the second House’s proposals for change. The Lords must consider the amendments made by the Commons, disagree with the amendments or make alternative proposals for change. The Bill is sent back to the Commons in case the Lords disagrees with the amendments of the Commons or make alternative proposals. Royal Assent The Bill must have a Royal Assent before it becomes an Act of Parliament after passing through all the Parliamentary stages in both Houses. Royal Assent constitutes the agreement by the Monarch to make the Bill into an Act of Parliament. There is no set time limit between amendments consideration and the Royal Assent; the time can take a few minutes after the debate (Ping Pong) is complete. Case Law/Common Law Case law is usually found in judicial decisions or judgements; it is law pronounced by the judges and this explains the common reference to judge made law. The doctrine of judicial precedent forms the basis of case law. The principles behind the doctrine are that in each case the judge applies existing principles of law by following examples of precedent of earlier decisions (Morigiwa, Stolleis & Halperin, 2011). Judges have the opportunities of developing and expanding the law using precedent. There are four types of precedent, including declaratory, original, distinguishing and overruling precedents (Aspremont, 2011). Common law is unwritten law that has a distinctively English origin. Oliver, Prosser and Rawlings (2010) posit that common law covers matters such as contracts, torts, property relations and statuses. The common law consists of the ancient customs and usage of England that have been recognised and afforded the force of law (Lundmark, 2012). Declaratory precedent occurs when the judge applies an existing rule of law without extending it; the judge merely declares the law and their judgements forms the declaratory precedent. Original precedent occurs if there is no previous decision on the case, which forces the judge to decide the case based on the general principles of law. Distinguishing precedent is applied when the facts of the current case are different from those of the case in hand in a material respect that the earlier case is held not to apply (Aspremont, 2011). The earlier case becomes law in its own circumstances while the one on hand, though not following it, also becomes law. Overruling precedent constitutes a case being deprived of its legal effects so that it ceases to have any authority at all. Judicial precedent occurs because courts operate at different levels. Inferior courts are bound by the legal principles as decided by superior courts in earlier cases. The aim of judicial precedent is to provide consistency and predictability in law. The diagram below illustrates the hierarchy of the court system. Figure: The hierarchy of the court system In the 1966 practice statement of the House of Lords, the House presented guidance on invitation to depart from previous decision of the House (Bryan & Conference on the Law of Obligations, 2007). According to the statement, precedent provides some degree of certainty upon which judges can rely in conducting their affairs and orderly development of legal rules. The Lordships recognise that excessive rigidity may cause injustices in particular cases and restrict proper development of law. The statement proposed modification of present practice and depart from previous decisions when it is right to do so. The case, Young v Bristol Aeroplane Co Ltd, provided exceptions when the court of Appeal is not bound to follow its own decisions: when there are two previous decisions that are conflicting, if the previous case cannot stand with the decision of the House of Lords, and if the decision was given per incurium (Hoffman, 2011). The case, balfour v balfour, is distinguishing precedent case that differentiates matters of social aspects of marriage from other forms of contracts that the court can enforce. Courts can only support negotiated divorce, written settlements and business relationships between spouses; therefore, an enforceable case cannot be used as a precedent for a case involving the social aspects of marriage. Statutory Interpretation Statutory interpretation is the process interpreting and applying legislation by the courts. The court seeks to ascertain the intention of the parliament in enacting certain statues whose meanings are not clear. The words and phrases used in a statute may have either have plain and straightforward meaning or ambiguity and vagueness (Einer, 2008). There are four rules that govern statutory interpretation: the Literal rule, the Golden rule, the Mischief rule, and Ejusdem General Rule. In the case, Consumer Products Safety Commission et al. v. GTE Sylvania, Inc. et al, it was held that courts always turn to one cardinal canon prior to all others; this implies that courts ought to hold a presumption that the legislative body says in a statute what it means, and means in a statute what it says. Judges must apply proper rules to interpret statutes for proper application in determining cases (Holland & Webb, 2010). European Union Law European Union law constitutes a body of treaties and legislations that have direct or indirect effects on the legislation processes of the European Union member states. The European Union has several regulations and directives for governing the activities of member states. The United Kingdom is one of the member states of the European Union; as a result, the European Union Law becomes a source of law in the United Kingdom because the country loses some of its law making sovereignty to the European Union, and this law affects the United Kingdom and other member states (Holland & Webb, 2010). The courts of member states apply the European Union law; if the law of member states provide for lesser rights compared to European Union Law, the courts of member states can enforce the European Union law. The case, Van Gend en Loos v. Nederlandse Administratie der Belastingen¸ confirms that the European Union law has a direct effect before the state courts of the member states. In Costa v ENEL, the European Court of Justice held that EU law prevails in situations characterised by conflicts between laws of member states. The EU regulations become immediately enforceable as laws in all member states at the same time. An example of EU regulation is the adoption of a regulation when the union wanted to protect the names f agricultural products coming from certain areas such as Parma ham (Nicholson, 2012). A regulation, thus, is a binding legislative act. The EU decisions are binding on specific country or individual companies to whom they are addressed and directly applicable. For example, the decision applied to Microsoft alone when the EU issued a decision to fine the company for abusing its market position. Directives, on the other hand, must be transposed into national law before becoming applicable. Article 288 of the Treaty on the Functioning of the European Union forms the legal basis for the enactment of regulations (Knowles & Thomas, 2012). The EU directives focus on Accounting, Auditing, and management control; for example, the Seventh Directive and Eight Directive deals with Consolidated accounts of limited liability companies and auditors’ qualifications respectively. Directives focusing on environmental conservation and sustainability include Integrated Pollution Prevention and Control, Habitats Directive, Birds Directive, and Large Combustion Plan Directive. European Convention on Human Rights The primary aim of the European Convention of Human Rights is to protect human rights and fundamental freedoms in Europe. The Act was passed in 1998 and became in force in 2000 (Brüggemeier, Ciacchi, Comande, 2010). The European Court on Human Rights provides chances of appealing by people of member states if they feel that their rights have been violated by the states. The Committee of Ministers of the Council of Europe is responsible for monitoring the execution of judgements, particularly to ensure compensations for damages are reasonable (Singh, 2013). The European Convention on Human Rights must prevail when the members states’ internal law conflicts with the Convention’s provisions. Examples of articles in the European Convention on Human Rights include respecting life, torture, fair trial, expression, association and discrimination. Classification of Law in the United Kingdom Public Law Public law governs the relationship between the state and its citizens, and those relationships between persons are direct concern of the society. The public law is the one that the state has an interest in, and it consists of constitutional law, administrative law, tax law, and criminal law. The relationships the public law governs are unequal and asymmetric (Gelardi, 2014). This is because the government can make decisions concerning the rights of persons. Constitutional law consists of rules that regulate the relationship between different authorities of the state; these authorities include the legislature, the judiciary and the executive. The legislature is the decision-making part of the organisation that is associated with the national government; the legislature has powers to enact, amend and repeal the laws. The executive is the part of the government, which has the sole responsibility for the day-to-day administration of the state. The executive branch enforces the law of the state. The judicial system comprises of the system of the courts responsible for interpreting and applying the law in the name of the state. Administrative law regulates the actual functioning of the executive instruments of the government (Aspremont, 2011). Criminal law deals with wrongs committed against the state. Private Law The primary purpose of the private law is to govern the relationship among the citizens. The private law is concerned with the rights and duties of persons towards persons in the society. Private law is also referred to as civil law and deals with issues affecting human beings as they interact in the civil societies. The examples of private law include the law of contract, the law of succession, law of torts and the law of property (Oliver, Prosser & Rawlings, 2010). This implies that individual interactions attract the sanction of private law so that if any person is aggrieved by the act of his neighbours or friends can seek the assistance of the civil law. Private law also deals with family related issues and domestic relations including marriage, divorce, child custody and visitation, alimony, spousal abuse, civil unions, and child support awards. Conclusion Sources of law in the UK include legislation, case/common law, European Union law, and the European Convention on Human Rights. Legislation in the UK is either primary or secondary. The process of making the law in parliament passes through five stages before approval to become an Act of Parliament. Case law is founded on judicial precedent, where the decisions of higher courts in the hierarchy are binding to those of lower courts. The European Union law applies to member states in forms of directives, decisions and regulations. The European Convention on Human Rights was passed in 1988 and forced in 2000. Law in the UK is classified into private law and public law. References Aspremont, J. (2011). Formalism and the sources of international law: A theory of the ascertainment of legal rules. Oxford: Oxford University Press. Brüggemeier, G., Ciacchi, A. C., Comandé, G. (2010). Fundamental rights and private law in the European Union. Cambridge [England: Cambridge University Press. Bryan, M., & Conference on the Law of Obligations. (2007). Private law in theory and practice. London: Routledge-Cavendish. De, S. S. (2012). A UK Law Perspective. 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Emergency response and emergency management law: Cases and materials. Springfield, Ill: Charles C. Thomas Publisher. Oliver, D., Prosser, T., & Rawlings, R. (2010). The regulatory state: Constitutional implications. Oxford: Oxford University Press. Simpson, A. W. B. (2011). Reflections on The concept of law. Oxford: Oxford University Press. Singh, R. (2013). The Moral Force of the United Kingdoms Human Rights Act. New Zealand Journal of Public & International Law, 11(1), 39-53. Read More