Assessing the Different Sources of the Law in England and Wales - Assignment Example

 Law in England and Wales in quite rich in attaining its content from various sources. There are four commonly known sources of law in England and Wales out of which, two are internal sources while the other two are external sources. The internal sources of English law are Common law and Statute law while the external sources are European Union law and European Convention on Human Rights. Slorach, et al (2013) identify sources of English law as case law including common law along with equity, legislation (statutes), EU (European Union) law and ECHR (European Convention on Human Rights) law. According to Winterton & Moys (1997), the internal sources existent in England and Wales are twofold and can be named as legislation or acts of parliament (Statute Law) and the decisions of the courts or judges (Common law). All of these sources play crucial role in the development of law in England and Wales as a whole. Common law The decisions of the courts and judges are based on relevant facts and relevant law and they also take support of case law (decisions taken by prior judges in similar situations). Judges base their decisions on precedents, which can be defined as decisions taken by judges based on relevant laws. Precedents can be primarily original in which, the judge takes a new decision based on relevant law and they can be binding in which, the judgment is based on a decision that is already taken on a similar situation previously. If the judgment is taken by superior courts such as House of Lords, Court of Appeal or High court, the lower courts have to abide by the same law (Owen & Lewis 2014; Bamford, et al 2011). Therefore, precedents are taken into consideration in common law for reaching at a decision similar to some previous one or a new one. Common law deals with innovations and newness in law. But its progress is slow. However, it is quite relevant for solving criminal cases, civil law cases, employment cases and much more (Brayne & Carr 2012). The courts take decisions based on precedents so the decisions taken by Supreme Court can be considered as the basis of common law used in England and Wales (Hughes & Ferrett 2011; Slapper & Kelly 2013). English law is basically formed of common law or case law, which is quite old. Common law was formed as a law followed throughout England and Wales. Because the law depend on precedents, hence, the courts existent in England and Wales are organized in a hierarchy and the cases are properly reported and saved (Slapper & Kelly 2013). Once a decision is taken relevant to law, it is followed to take further decisions. Therefore, common law is mostly judges’ made law (Adams 2014). Statute Law The parliament passes statute law that is laid as Acts of Parliament or legislation (Hughes & Ferrett 2011). The House of parliament plays double role in United Kingdom, one is governmental while other is legislative. Legislation keeps the authority to create new laws altogether. It can also repeal or amend existing laws in order to cover current situations and happenings and can also consolidate many laws into one comprehensive act (Owen & Lewis 2014; Brayne & Carr 2012). The laws that are created in form of case law or as a combination of case law and legislation can be codified into an act (Owen & Lewis 2014). There is a whole procedure of passing a bill that later on transforms into an act. The bill can be private as well as public and it passes through a number of stages, starting from the assent of House of Commons and House of Lords and finally attaining Royal Assent to become an Act of Parliament (Bamford, et al 2011). Legislative process is quite old and sophisticated. It depends on the wants of parliament and also illustrates about public requirements as per changing social and political conditions. Now, the legislation is done either directly or indirectly. Direct legislation is that in which, Parliament passes a law and presents it in form of an act while indirect legislation is that in which, an enabling act is passed and the legislation is left to other people or powerful institutions to make it. The example of direct legislation can be finance acts while that of indirect legislation can be Health and Safety at Work Act 1974 (Owen & Lewis 2014). The House of Commons, the House of Lords and the Queen form the parliament that takes major decisions regarding acts and new laws. The decision taken by the parliament is sovereign. The government forms the majority of House of Commons and is responsible for making laws (Slorach, et al 2013). The law reforms can bring development in common law and there are decisions that are challenging to the common law such as the decision of case like R v R (1992) regarding offence of marital rape. Therefore, the law reforms on the level of common law can bring change in the Acts of Parliament eventually if a bill is passed. In addition, the parliament in England in Wales is the supreme most institution, which can override even the decisions made by judges in common law (Adams 2014). European Union Law European Court of Justice (ECJ) in England and Wales is based on rulings under EU law and these rulings are interpreted from EU institutions and applied by national courts. As far as power of ECJ is concerned, it is very restricted (Slorach, et al 2013). UK is a member state of European Union due to which, EU law is applicable in England and Wales. UK is a signatory of European Communities Act 1972 and according to this act, UK has to acknowledge the preeminence of EU law and EU’s power of decision making. In case of legal discord, the decision taken by considering EU law requires being prioritized (Toth 1997). EU depends on Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) while the decisions taken are through European Court of Justice (ECJ). By signing the treaties of EU, UK has entered in an agreement to EU law due to which, English law has undergone some changes (Berry & Hargreaves 2007; Davies, 2013). Through the Acts of Parliament, UK has allowed EU to interfere in English national law. Regulations and Directives are created by EU institutions and EU law imposes its supremacy over other laws based on the treaties (Davies 2013). European law has influenced the State’s liability whether it deals with laws related to community or human rights. The decisions taken by European Court of Human rights regarding State Liability make UK as a respondent. The cases of Osman v UKand Z v UK can be taken as examples asking for State Liability. The European Law has also influenced the arena for “claim for damages for breach of Convention rights enshrined in the Human Rights Act 1998” (McCorquodale, 2010, pp. 203-204). Therefore, it can be said that European law is challenging for the orthodox common law in terms of acquirement of human rights as compared to duties. The State becomes liable if the European Community law is breached (McCorquodale, 2010). European Convention on Human Rights The European Court of Human Rights is formed under the treaty of European Convention on Human Rights (ECHR). The court is quite influential and can impose rights on national courts. English law is influenced by decisions taken by the European Court of Human Rights but the decisions taken by the court are not directly enforceable on government (Slorach, et al 2013). Human Rights Act 1998 can be taken as an enforceable act to impose the court’s decisions in law in England and Wales. The rights and freedoms given in the ECHR are part of English law (Young 2008). Because of Human Rights Act 1998, the courts in UK are bound to take into consideration the decision of the European Court of Human Rights when taking into account a Convention right (Young 2008). The HRA 1998 was passed to allow UK courts to put into effect the rights as per ECHR. The decisions taken in Strasbourg are regarded as case law and are used for decision making by UK courts. However, because of this following of decisions made by European Court of Human Rights, the English law has accepted immense external pressure on its internal law. The parliamentary sovereignty is undermined because of EU law and ECHR law (Alston & Weiler 2000; Elliot 2001). Conclusion The four sources of English law namely common law, statute law, EU law and ECHR law, all have contributed to the formation of English law. Common law and statute law are internal while EU law and ECHR are external. One source of law affects the other as common law is affected by statute law and statute law and common law are affected by EU law and ECHR law. As per English law, the Parliament is sovereign, but EU law and ECHR law impose their supremacy over statute law. English law is affected by external sources as the decisions taken by EU law and ECHR are part of English law and are followed. Bibliography Adams, A. (2014). Law for business students. 8th Ed. Pearson Education. Alston, P., & Weiler, J. (2000). An" ever Closer Union" in Need of a Human Rights Policy: The European Union and Human Rights. Harvard Law School. 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