Sources of Law in England and Wales - Essay Example

Sources of Law in England and Wales Sources of Law in England and Wales English law is one of the three legal systems in the United Kingdom and is applicable in England and Wales and has jurisdiction in both criminal and civil cases (CILEX 2014, p. 1). The sources of English law may broadly be categorised into primary and secondary. The primary sources are in reference to the law itself and are in terms of original and authoritative statements in the form of common law, statute law, European law and European Convention on Human Rights (ECHR). Secondary sources relate to law commentaries such as legal textbooks, encyclopaedias and journals and parliamentary documents. Each of these categories can further be broken down into internal and external sources and they have distinct effects on the development of law. The purpose of this paper is to assess the different sources and further describe to what extent the external ones have affected the development of law. The internal sources include Common law (or Case Law) and Statute law (or the legislation) while external sources are the European Law and the (ECHR), which together form the four principle sources of English law (Adams 2014, p. 19). Founded on the system of precedent, Common law forms the English legal system’s basis whose origin can be traced back to William the Conqueror’s reign in 1066, before which the laws were mainly regional. However, when judges travelled on circuits, they essentially shifted to a national-level judicial system away from localised ones hence creating a unified court system. This required, and continues to, a hierarchical arrangement of the courts and law reporting, meaning inferior courts are bound by decisions made by higher courts. With the Supreme Court at the top, the Court of Appeal follows, then the High Court, which hears civil cases, and the Crown Court that handles criminal cases. The decisions made the judges of the senior appellate courts also become part of law, but, on the other hand, and its decisions are binding to any other courts under its jurisdiction (Giacomo 2011, p. 147). It is worthwhile to mention that such decisions have persuasive implications in the Supreme Court’s other jurisdictions. The decision of the courts are published as law reports, and the significance of the law reports is that they determine the success rate of developing the law in the manner in which they present reliable issues, facts and decisions (CILEX 2014, p. 1). Through the Common law, it is, therefore, possible for courts to make decisions based on earlier ones made under similar circumstances. However, Common law has the inherent disadvantage that it may sometimes rely on outdated and irrelevant cases, which, since they have never been successfully challenged, remain valid and applicable though wrongfully. Statute law or the legislation is law that is created and passed by a legislature made up of the Houses of Parliament as one of their key functions, and the Acts of Parliament are their most crucial pieces of legislation (Adams 2014, p. 21). Primary legislation entails Statutes, which spell the general objectives of Parliament in a specific area and are enacted by Parliament. The Houses of Parliament, comprised of the House of Commons and House of Lords is the only body mandated to enact laws applicable to all the four UK countries. In Parliament, the proposals to change existing or create new law are presented as Bills, either public or private, and while hundreds of them are presented annually, only a few are enacted into law. The way in which the law applicable to the general public is altered is affected by the Public Bill while the Private Bill affects laws applicable to organizations or individuals. Upon presentation, these Bills are subjected to a series of stages in the two Houses of Parliament before Royal Assent may be granted, which will enable them to become Acts of Parliament. Statutory instruments, byelaws, Orders in Council, professional regulations and Court Rule committees made by persons or bodies acting under powers conferred to them by parliament are included in delegated (or subordinate) legislation (Giacomo 2011, p. 150). The enabling, or parent, Act retains the power to delegate legislation. Since Parliament has the authority to introduce and enact any law it deems appropriate, it is the legislative processes’ supreme component. Although critics may sometimes link this aspect to misuse and abuse of power, it is a critical characteristic of Statute law because it can get rid of outdated and potentially detrimental Common law that is based on precedence. European Union law is the first of the external sources that function alongside the domestic English law. By virtue of the UK being the European Union’s Member State, the European law takes precedence over English law, as demonstrated by R v Secretary of State for Transport ex parte Factortame (1990). After the signing up of the UK into the 1972 European Communities Act (ECA), however, there were inevitable changes in the processes of making law within the English law. As stipulated by section 2(1) of the ECA, it was required of the UK to surrender some of its sovereignty, directly implying acceptance of the European Union law’s supremacy. Consequently, some roles in making decisions were delegated to the European Union and, in the event that there are legal conflicts between English law and the European law, the European law will assume precedence (Collier 2009, p. 83). Among the factors derivative from the UK Parliament’s sovereignty, it stated that Parliament remains the highest authority of legislation, and it is the only one that can create law; the sphere of legislation is limitless, meaning it can legislate on whatever issue; and the ability of Parliament to make law cannot be restricted or obstructed by any court in the UK. On the other hand, the European law is known to derive and develop its laws from the EU Court of Justice’s rulings and decisions as well as directives and regulations. The effect of this is that the English law, beginning 1st January 1973, had gotten a new source or, set of sources, of law. These were primarily the treaties of the European Communities and secondarily, various legislations made by the European Economic Community (EEC), which was established in 1957 by the Treaty of Rome (Giacomo 2011, p. 151). Apart from being the most notable law affecting England and Wales, the Treaty of Rome is also the EEC’s constitution and superior to any domestic law. This means that this external source of law has diluted the powers of the internal sources both in terms of creating and developing law. However, after critical analysis, it may also be argued that it is an Act of Parliament that granted these powers to the European Union, and they work in conjunction with each other to develop the English legal system. As an international treaty enacted in 1953, the ECHR was established for the protection of fundamental human rights and liberties in Europe and was incorporated into English law in 2000 by the 1998 Human Rights Act (Berry & Hargreaves 2007, p. 117). The UK Parliament ratified the ECHR among several other treaties, which means that its processes of legislation and making decisions regarding human rights are governed by it. Since the treaties are part of the wider EU law, they are similar in most aspects and will become law in the member states once they are enacted. Although no stringent measures of implementation are stipulated, the ECHR take priority over the English law’s conflicting provisions in deciding issues related to human rights and liberties. Essentially, this means that it is mainly the development of laws that affect everyday life issues that is influenced by the ECHR rather than political or economic laws. Similar to the argument about EU law, English law is affected by this treaty because as member states, England and Wales brought forth a set of law that is bonding to both the nations as entities and their nationals (Collier 2009, p. 69). The provisions of this treaty may override some domestic provisions, but they eventually work together towards the development of human rights. In conclusion, English law is developed from four sources that work interactively with each other although with the European law and ECHR, which are external sources, taking precedence over the Statute and Common law, which are internal, where discord occurs. The extent to which these external influences have affected the development of English law is apparent, because the UK and the English law have prided themselves for being sovereign for centuries. Presently, legislation concerning many aspects of the political, economical and freedom arenas are being determined at the European level and precede the English law. Apart from the property law, the English law and the nationals of England and Wales are affected by the EU law in all other aspects. However, it may be revealed by a critical analysis that the English law need not remain static but align itself with the trends towards globalisation. Viewed in this sense, it can be acknowledged and appreciated that EU law is not a replacement of English law. Then, it must also be understood that not all English law provisions will originate from Europe, since this can only happen under the condition that the UK are constituents of a federal Europe. References Adams, A 2014, Law for business students, 8th edn, Pearson, London. Berry, E & Hargreaves, S 2007, European Union law, Oxford University Press, London. Collier, J 2009, Conflicts of law, University of Cambridge, Cambridge. Chartered Institute of Legal Executives (CILEX), 2014, The legal system of the United Kingdom, viewed 5 October 2014, http://www.cilex.org.uk/about_cilex_lawyers/the_uk_legal_system.aspx Giacomo, F 2011, ‘The EU Charter of fundamental rights: from declaration to binding instrument’, Ius Gentium Comparative Perspectives on Law and Justice, vol. 8, no. 2, pp. 147-153. Read More