What Are The Sources Of English Law?

Kirsty Mellor

The Norman Conquest unified the local customs in ‘common law’, and this saw the emergence of judicial activity. ‘Common law’ was never written down, but was established by judges discussing various customs used throughout the country, discarding some to allow consistency to prevail. Other changes took place, including the development of ‘case law’ in which, if the facts of a case are similar to that of another that has already been decided, then that case must be judged equally, as the first case had set a ‘precedent’. Also the hierarchy of the binding precedents came into place.

European Court of Justice

House of Lords

Court of Appeal

Divisional Court

High Court

Crown Court/ County Court/ Magistrates Court

In recent times, legalisation; (statute law/ acts of parliament) and laws made by government ministers and their departments, delegated legislation is most prevalent.

Now we have Law commissions who spot obsolete acts and recommend their appeal. Parliament can make or unmake any law it chooses. This is called Parliamentary sovereignty. It is possible for any of the 650 members of the House of Commons to introduce a members Bill. Unless the government supports the idea, then the Bill has little chance of enactment. Each year there is a ballot of those members who wish to introduce bills privately.

There are a number of formal stages a bill must go through before it becomes an act. The first being the ‘first reading’, which is a formal introduction to the bill, read out by a clerk, and there is usually no debate or discussion. The next step is the ‘second reading’ for which a day is chosen, and the bill is copied out and distributed to everyone. The ‘second reading’ is the main debate on the bill. It concentrates on the main principles rather than the details, and there is a vote at the end. If at any time there is a majority against the bill then it doesn’t go any further. The next stage is the ‘committee stage’, at which a committee of 15-50 MPs examines the bill so that the parties in the House of Commons are proportionally represented. Their job is to go through each cause of the bill and make any alterations they think are necessary.

The next stage is the report stage, where the committee reports back to the House of Commons with its suggested amendments, and each amendment is voted on individually. The amendments only take place if there is a majority vote by the house.

The next stage is the ‘third reading’ where there is a final vote on the bill as a whole. There will be a further debate on the principals of the bill, but only if at least 6 MPs request it. If there is a vote in favour of the bill, then it is passed on to other houses ...

This is a preview of the whole essay

In the House of Lords, the same happens, but the House of Lords have limited powers, and any decision they make on the bill must be considered by the House of Commons before Royal Assent. On the other hand, if the House of Lords refuse the bill, then the House of Commons can introduce the same bill at the next session of Parliament. If it is passed more than once by the House of Commons, it can receive Royal Assent without the agreement of the House of Lords. This is set out in the Parliament Act 1911 and 1949.

At Royal Assent, the monarch has to approve the bill and give his/her Assent (agreement) to it becoming an Act. Nowadays this stage is a formality, as the last time Royal Assent was refused was 1707.

The bill is now law. When law is made by others who are authorised to do so by Parliament it is called delegated legislation because it’s made with delegated authority including: the Queen, privy council, ministers, government departments, local authorities and public co-operations.

European Law now takes precedent over U.K law, since December 1998, but community law does not affect the whole of our la, but it is only found in such areas as agriculture, social security, etc.

There is also a European Assembly, which has 518 directly elected members and little practical power, although its opinion is usually sought after about legislative proposals. It has the power to remove commission from office if it can get a 2/3 majority. Recently however community institutions can make joint decisions.

Regulations are made, directives issued, decisions and recommendations made, and opinions delivered. Of these, the regulations are the most important, which are binding and directly applicable in all member states. They confer rights and duties, which must be recognised by the national court within the member states. They pass straight into law without no parliamentary approval. So member states are given a certain period of time, say 2 to 3 years within which certain prescribed laws must have been within each state. A member state may be bound, or just a single company within the state. They are usually administrative decisions implementing community law, like granting authorisations or exceptions. There is a select committee in our Houses of Parliament, which scrutinises community policies and legislative proposals, so that our parliament is kept aware of what is happening in the area of community law.

How Effective Is The System?

If you were to ask any sane member of the public, you would expect them to say that they though murder was wrong; therefore people think that it’s fair to punish someone for committing murder.

Case law has advantages over common law, including ‘certainty’, ‘flexibility’ and ‘example’, the strict hierarchy of the courts means that it is often possible to state with relative certainty, what the courts decision will be, given a certain set of facts. In particular this makes it easier for people to organise their businesses and make contracts. They know what the affect of a particular term in a contract will be. It also makes it easier for buyers to advise their clients on what to do, and what the law is. As a result, fewer cases will need to go to court.

Although there is certainty, there is also no room for the law to be flexible with changing conditions. In this the House of Lords practise statement is very important, since it allows flexibility. Distinguishing also lends flexibility, as judges can use it to avoid past decisions, which they feel are not suitable for the present case.

Since there are about 1million reported cases and many more unreported, there is a vast amount of information in the law. It would be difficult to write as much detail into a code of law.

All decisions are based on evidence and so the law is illustrated by real cases. Having real examples makes it easier to understand and to apply it future cases.

There are also disadvantages i.e. case law, including ‘rigidity’, ‘illegal distinctions’ and ‘bulk and complexity’.

It is claimed that our system is too rigid. It can be difficult to change. Critics argue that the House of Lords is too unwilling to use its power in the Practise statement to overrule old decisions even when judges in the House of Lords themselves agree that the old law is wrong. This is because on the 26th July 1966 the then Lord Chancellor, Lord Gardiner issued the famous Practise statement, in which it quotes,

‘To depart from a previous decision when it appears right

to do so. In this connection they will bear in mind the danger

of disturbing retrospectively the basis on which contracts, settlements and property.’

When distinguishing is used to avoid a previous decision, there is the risk that the judge may distinguish the two cases on a small point of law, which is obscure and difficult to justify.

Having such a large number of cases to illustrate the law can be seen to make it too complex. Lawyers will have difficulty in finding all the relevant past cases, although a computer database called LEXIS has made this easier. Where there are several different decisions on the same point of law, the law may be very complicated.

Another problem is finding the ‘ratio decidendi’ in the judgement, as some judgements are several pages long. This becomes even more complicated when 2 judges (or up to 5 in the House of Lords) give judgements in appeal cases.

Overall I think the advantages out weight the disadvantages, as there must be some form of following past decisions and consistency, otherwise the law would be chaotic and lose credibility.

Statute law has both advantages and disadvantages; one advantage is the thought that Parliament are more in touch with the outside law than judges. This means that a public opinion is taken into account. Another is that Parliament is free to make law points straight away, rather than waiting for a case to come along. This way, Parliament helps to fill in the ‘gaps’ of case and common law. The main advantage is that Parliament has been democratically elected, therefore been given the mandate to make the law by the people. But this system also has disadvantages. These include the problems of the long process of passing an Act, therefore, many sections of laws get overlooked as Parliament don’t seem to have the time to discuss and reform the law. In all I think that this system works well, but only in combination with case law. Alone, I think that it would not be as effective.

The most recent source is European Law. The advantages of this source include the wide section of opinions as a member is elected from each Member State. When coming to important decisions, all ministers must be in agreement; this perfects the decision from a cross section of opinions.

For less important decisions a unanimous decision must be reached having a given amount of votes per country, relative to their size. Another is that the European Parliament is elected every 5 years, this way there is a wide cross section of members over the years to represent each country.

There are also disadvantages to the system. What I consider to be a big disadvantage is that the members tend to be members of aristocracy, such as Lords, who have the baronial image inherited from their family. This is unfair as the publics opinion does not seem to be taken into account much, especially as it’s the public that are affected by these laws.

In all I think that our sources are very effective with decisions made from judicial precedent and any uncertainties or ‘gaps’ filled in by Parliament or by Delegated legislation. However English sources of law are bound by European laws, which I see as a disadvantage, as different countries have different cultures and ideas, and it seems unfair, that we should be bound by their decisions.