Sources of Law in England and Wales - Essay Example

Essay, Visual Arts and Film Studies 11 November Sources of Law in England and Wales: Extents to which external sources have affected development of Law English law encompasses both the legal systems of England and Wales. Until 1967, any reference to legislation of England was considered to include Wales but this came to an end with the enactment of Welsh Language Act 1967. The jurisdiction is presently referred to as simply England and Wales. Presently, Wales has a devolved Assembly and any legislation passed by this Assembly is enacted and defined by the Government of Wales, legislation of British Parliament, or by Orders in Council given under the authority of Act of 2006. (William and Fergus 29). English Law has four principal sources: Statute law, European Union law, common law and the European convention on Human Rights (Slorach 34). This paper is meant to assess and describe these four law sources, identifying which among them are internal and which others are external. The paper will also show an interaction that exists between some of this sources and how they engage with one another. On the external sources of law, the discussion will also assess whether they have externally influenced the development of English Law. Statute Law Statute laws are the main source of English Law and comprise of the legislation passed by the UK Parliament based in London. The UK Parliament is made up of the House of Commons and the House of Lords, which comprises of 650 members of Parliament with each member representing a defined geographic constituency (Slorach 32). Conversely, the House of Lords consists of close to 800 peers, out of which 600 of the peers are formally appointed by the Queen as endorsed by Prime Minister. Additional members in the House of Lords consist of senior bishops and people with inherent aristocratic titles such as “Lord” or “Lady” (Elis 47). Statute Law is divided into two forms of legislation namely, Primary Legislation and Secondary Legislation. In primary legislation, legislation is introduced in the form of Bills, usually Private or Public bills. Public Bills changes the law as per its application to the general public while Private Bills alters the law as it applies to individuals or organisations. A Bill is then required to pass through an enactment process that involves a debate followed by approval in the House of Commons, before being moved to the House of Lords for subsequent approval. Eventually, the Bill has to receive Royal Assent before it becomes an Act of Parliament (Elis 47). Secondary Law, on the other hand, law is made outside the Parliament by bodies such as Local Authorities, Government Ministers or specific organisations. Parliament delegates the power to make the legislation to an external body through an authority contained within the Parent Act, which is also referred to as the Enabling Act. Most Secondary legislation takes the form of Statutory Instruments although there are other existing forms such as Court Rule committees, by-laws, Orders in Council and professional regulations (Elis 49). There are various types of statute law used in England and Wales. They include; Acts of the United Kingdom Parliament, Acts of the National Assembly of Wales, Ministerial Order, and Measures of the National Assembly for Wales, Ministerial Order and UK Statutory Instruments (Elis 47). Statute Law takes precedence and is the most important of all sources of English Law. The Parliament is regarded as the highest law-making authority in England and Wales. Despite the Queen being the head of State, Slorah states that “Parliament may introduce any Law it Wishes” (41), asserting how the Parliament’s reigns in all matters of the legislative process. Common Law Common law, similarly referred to as Case Law, forms the basis of the legal system of English Law. The use of Common Law has been traced as early as 1066 during the reign of William the Conqueror. It was during this era that a unified court system was formed which saw establishment of a common system of law throughout England. After the establishment of the system, there was a drift from the existing localized justice to a judicial system that covered the national level. It was referred to as King’s Justice hence the term “Common Law” (Percy 14). Common law in England and Wales is based on precedent system where decisions of senior appellate courts bind the inferior courts. The system requires the courts to operate in a hierarchical organisation with an existence of precise law reporting. Therefore, if there is an established principle of law in one case, the same principle is followed in similar cases in future. Such a system that involves setting precedents enhances confidence in the law. These types of jurisdictions in common law use the legislation that grows organically to cater for rising demands and deal with current problems in the society. Case laws, however, are subject to alterations through judicial decisions making and the Parliament (Charles 21). The courts that handle case laws comprise of independent, non-elected judges. These judges create common law by making decisions by applying common sense and knowledge of legal precedents (stare decisis) on cases before them. The judiciary is said to have a quasi-legislative role in cases where it is required to produce common law. The judiciary is, therefore, important in areas with sparse legislation and where it fills the gaps in legislation. (Slorach 38). It is worth emphasizing that common law can be changed through a legislative process but cannot override or alter statute laws. European Union Law UK is a member of the European Union and thus the European Union Law applies in both England and Wales. Consequently, the European Court of Justice has an influence on Welsh and English courts on areas of law that EU has passed legislation. For example, by the virtue of European Community Act of 1972, European Community Law plays a part in the formation of the regulations (Vervaele and Klip 54). The EU has two formulated core treaties which include the Treaty on the Functioning of European Union (TFEU) and the Treaty on the European Union (TEU). The treaties were last updated in 2009 and have aided both England and Wales in empowering the establishments of the EU such as the European Commission and the European Parliament to formulate and implement laws. The legislation is necessary for the achievement of progressive incorporation and coordination of economic and political systems. The laws also help in the establishment of a single market within the EU member states which ensures free movement of goods, money services and people (Jane 152). Europeans Conventions on Human Rights Another external source of Law in England and Wales is the Europeans Conventions on Human Rights. It was incorporated into the English Law, on 2nd October 2000 through the Human Rights Act 1998. The legislation gives power to the courts to question some Acts of Parliament (House of Commons Justice Committee 97). Europeans Conventions on Human Rights can be applied to the Acts of non-state agents and all public authorities including the courts. However, an exceptional to this rule is the Parliament while also no specific application guidelines have been stipulated for private parties. The Human Rights Act 1998 enables all the courts in the UK to protect all the rights highlighted in the Europeans Conventions on Human Rights. An Act of Parliament, however, provides remedy under the domestic laws of England and Wales for a breach of any convention right without the need to refer the case to the Europeans Conventions on Human Rights in Strasbourg (Council of Europe 193). Effects of external sources of law in England and Wales There are four principle sources of English law which are divided into two forms. The internal sources include the statute laws and common law, while the external sources are the European Union Law and The Europeans Conventions on Human Rights. The external sources have an influence to the development of law in England and Wales in various ways. However, the sovereignty of the Parliament holds in that it retains the supreme legislative authority implying that it may make or repel any kind of law or convention in the land. Conversely, no other body may deter or question the legitimacy of an Act of Parliament. England and Wales are dualist in their relationship with the international law inferring that all International requirements have to be merged into English Law first before the courts can apply the supranational laws. A prime example is the case with the Europeans Conventions on Human Rights that was adopted by UK in 2000. The court has already taken the convention into account and is now used during interpretation of common law. The convention is also taken into consideration when interpreting the Acts of Parliament although, in this case, the convention must be in line with the Act (Noel 7). On a similar note, England and Wales are governed by some of the core treaties of European Union which provide the co-ordination for employment and economic policies between member states and the EU. This has led to development and adoption of common foreign and security policies. In one case study, for instance, England and Wales, being member states of the EU, are subject to a variety of common EU laws. These laws seek to harmonise measures relating to road use between member states and management of wastes disposal and recycling mechanisms among other areas. The governments from the two states are responsible for coming up with corresponding arrangements in relation to the established EU laws (Roy 32). Conclusion In summary, it is apparent that the statute law which are legislated through Acts of Parliament, are the most important internal sources of English Law. In 2005, for example, there were 24 general Acts of Parliament that were passed and an additional 3699 Statutory Instruments. All these had a direct effect on the domestic legislation of England and Wales. Elis (197) argues that the European Law and other external sources of law, to some extent, assumed Parliamentary sovereignty. However, it should be remembered that this authority was granted through an Act of Parliament. Works cited Charles Daly. The Common Law: Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It. New York and Albany: Banks & Bros, 1894. Print. 21 Council of Europe. The Training of Judges and Public Prosecutors in Europe: Proceedings [of the] Multilateral Meeting Organised by the Council of Europe in Conjunction with the Centre for Judicial Studies, Lisbon, 27-28 April 1995. Strasbourg: Council of Europe, 1996. Print Ellis Wasson. Sources and Debates in Modern British History: 1714 to the Present. Hoboken: John Wiley & Sons, 2011. Internet resource. House of Commons Justice Committee. Devolution: A Decade on; IWA Response to the House of Commons Constitutional Affairs Committee Call for Evidence. Cardiff: Institute of Welsh Affairs, 2007. Print. Jane Aldgate. Enhancing Social Work Management: Theory and Best Practice from the UK and USA. London: Jessica Kingsley Publishers, 2007. Internet resource. Noel Cross. Criminal Law & Criminal Justice: An Introduction. Los Angeles: SAGE, 2010. Internet resource. Percy Winfield. The Chief Sources of English Legal History. Washington D.C: Beard Books, 2000. Print Roy Harrison. Pollution: Causes, Effects and Control. Cambridge: Royal Soc. of Chemistry, 2001. Print Slorach, J S. Legal Systems & Skills. Oxford: Oxford University Press, 2013. Print. Vervaele, J A. E, and Klip André. European Cooperation between Tax, Customs, and Judicial Authorities: The Netherlands, England, and Wales, France and Germany. The Hague: Kluwer Law International, 2002. Print William Gordon and Fergus. Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow, 1989. London: Hambledon Press, 1991. Print Read More