Sources of the Law in England and Wales
The study will identify the main sources of English law and their effects, and discuss the interactions among these sources. It will examine the internal and external sources of the English law. Primary research has been used to conduct this report.
The paper analyses the sources of the law in England and Wales. For the purpose of this paper, the law in England and Wales will be referred to as English law. The specific tasks tackled in the paper include the identification of the main sources of English law (statute law, common law, equity law, European Community law and the European Convention on Human Rights), the analysis of the effects of the various sources of English law and the discussion of the interactions among these sources. It will be seen that English law has evolved to conform to England’s parliamentary system of government with statutory law now dominating all other sources of English law.
The Parliament is in charge of making statute law that includes primary legislation and secondary legislation. Primary legislation is a product of a pre-defined process called the parliamentary procedure through which a Bill evolves into an Act of Parliament (Adams 2010, p. 22). The parliamentary process includes first reading, second reading, committee stage, and third reading in both the House of Commons and the House of Lords. If the Bill is successful, it receives the Royal Assent and enters the law books. The parliament may delegate its law-making powers to a local authority or a government agency, resulting in the creation of secondary legislation (Adams 2010, p. 23). Primary and secondary legislation coexist to allow flexibility and feasible application of the law. Since the parliament does not have the time to address all matters pertaining to a particular legislation in detail including minor changes in the target environment or issue, it leaves room for secondary legislation to take care of such matters (Gillespie 2013, p. 24). However, by delegating authority excessively, the parliament risks losing control of the law during implementation.
Common law/case law is the law judges make as they decide cases in courts (Slapper & Kelly 2014, p. 165). Under the principle of stare decisis, the decisions that a court makes are binding to the court and all other courts below it. The rationale for the binding decision is the binding precedent rather than the judgment itself. Judges can overrule precedents if they deem it necessary not to use them. Common law has a long history dating back to the Norman Conquest (1170 BC) (Adams 2010, p. 5). Although law existed in England for many centuries prior to Norman Conquest, a unified legal system had not been established (Adams 2010, p. 11). The crown appointed judges to establish a common or centralized legal system through a consistent and systematic application of the law, leading to the development of common law.
The courts create common law (also called case law). Prior to the establishment of the parliament in the 19th century, courts dominated law making (Adams 2010, p. 12). However, the parliament proved to be more effective than courts in law making by eliminating the haphazardness associated with case law development. In addition, the parliamentary process saves time and legislates for future cases unlike the courts whose legislative effect only applies to past cases. The efficiency of the parliamentary process explains why much of English law is statutory. In fact, the parliament has been refining common law principles to include them in statutory law. Nevertheless, the courts still possess significant law-making powers in contract and tort law (Goldsworthy 2010, p. 55).
Common law and statutory law complement each other and the two rarely clash. While statutory law dominates in both criminal and civil cases, common law fills the gaps in statutory law by setting precedents in novel cases (Gillespie 2013, p. 12). For example, the High Court claims the power to exercise jurisdiction over cases pertaining to the protection of vulnerable persons because statutory law has not been able to address the matter comprehensively (Adams 2010, p. 12).
Equity law is part of common law in the wider context and refers to the discretionary rules that the court makes to protect the legal and moral entitlements of individuals and entities (Adams 2010, p. 11). They include injunctions, contract law, mortgage law, lending law, and restraining orders. Equity law dates back to the 14th century when it developed as a distinct part of common law aimed at ensuring fairness in the rule of law by emphasizing adherence to moral principles (Gillespie 2013, p. 13). Equity law applies in civil courts together with common law and is used as an alternative to common law in matters where the latter would violate moral principles. In most cases, common law takes precedence over statutory law in matters where moral principles of equity and fairness might play a greater role in serving justice than mere adherence to legal traditions such as cases involving vulnerable groups and individuals (Chen-Wishart 2012, p. 7).
The European Community (EC) law became a source of English law in 1973 when the United Kingdom joined the then European Economic Community, which became EC in 1992 courtesy of the Maastricht Treaty (Adams 2010, p. 18). The EC consists of the Economic Community, the European Atomic Energy Treaty Community and the European Coal and Steel Community. EC law only applies to the Economic Community and is implemented by the Court of Justice. The jurisdiction of the rest of the EC communities EU belongs to intergovernmental co-operation and the laws governing these communities are irrelevant to national legal systems. The European Communities Act 1972 rendered EC law part of English law and in case of conflict of rights, EC law prevails (Fenwick & Phillipson 2013, p. 169). National courts have no jurisdiction over matters involving EC law; they refer such cases to the Court of Justice. In adherence to EC law, member countries to the EU are under obligation in accordance with the Treaty of Rome to refrain from actions or inactions that deter free movement of goods within the EU. This explains why the issuance of licensing is a major cause of conflict of interest between the two legal orders (Adams 2010, p. 518).
EC law mainly influences English law in matters of industry, trade, environment, employment and finance, thus EC law plays a significant role as a source of business law (Adams 2010, p. 18). The influence of EC law on English law will continue to grow since EC is expanding. For example, following the establishment of the Treaty of Amsterdam in 1999, the EC law assumed the responsibility of ensuring equal treatment of European Union citizens, requiring member states to remove all hindrances to the free movement of goods, services and people within the Union (Adams 2010, p. 21). On a national level, England had to expand its non-discrimination law to include sex, age and religion-based discrimination in employment. In addition, the Treaty broadened the EC mandate to include protection of personal privacy and security by requiring member states to respond systematically to terrorism, trafficking of humans and drugs, child abuse and corruption.
The European Convention on Human Rights, hereafter the Convention, is another external source of English law. The Human Rights Act 1998 (HRA) codified the Convention into English law (Adams 2010, p. 23). The Convention has had significant implications for domestic law. For instance, all public institutions including schools, hospitals, law enforcement agencies, and the courts must comply with the Convention’s provisions for human rights, meaning that human rights cases can be heard in local courts instead of being referred to the European Court of Human Rights. Under the HRA, citizens of England and Wales are entitled to the right to life, right to fair trial, freedom of expression, freedom of association, right to liberty, freedom from torture and degrading treatment among others (Hoffman 2011, p. 166). Section 3(1) of the HRA states that statute law must be stated in a manner that is compatible with the Convention
Despite dominating English law for many centuries, common law now claims jurisdiction in limited albeit important areas such as contract and tort laws thanks to the codification of English law through the parliamentary procedure. It appears that English law might eventually become purely statutory. However, this may not represent a significant shift in traditions because statutory law is largely based on common law, which also explains why conflicts between common law and statutory law are rare or even inexistent. Concerning the external influence on English law, the impact of EC law will continue to grow as EC law expands through treaties. Since EC law is superior to English law in the event that the two orders conflict, one can expect that English law will evolve significantly to comply with EC law. In addition, the adaptation of the ECHR into English law through the HRA implies that the principles of equity law will continue to influence English law more than any other aspect of common law.
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