English Legal System

Sources of Law

Introduction to the branches of government

Relationship between legal authorities

Aims

• The aims of this lecture are:

1. To introduce the main sources of English law;

2. To look at the different ways in which these sources can be classified;

3. To look at the relationship between the different sources of law and how conflicts between them are resolved;

4. To look at the influence of European law on domestic law;

5. To examine the status of books of authority before the courts

6. To look briefly at the institutions which exist to reform the law.

Outcomes

• By the end of this lecture you should be able to:

1. Identify the main sources of law in England;2. Describe the way in which these sources of law may be

classified;3. Describe the relationship between the different

sources;4. Identify the main authoritative works on English law

and how important they are within the English Legal System;

5. Identify and critically consider the institutions which exist for the reform of the law.

Institutions and doctrines in the English Legal System

• In order to understand the reasons for the hierarchy of laws in the English Legal System one has first to appreciate the different institutions and their role in the law-making process

• The three branches of government in England and Wales are:

1. The Legislature2. The Executive 3. The Judiciary

These will be examined in further detail when we look at the institutions of the English Legal System and their composition

The Legislature

• It is the legislature’s role in the constitution to make the law

• Traditionally the legislator may have been an individual, the King or Prince who made the laws for his subjects

• In England from the middle ages onwards Parliament became the legislature for the country as a whole

• This reached its classical expression during the Reformation when the King or Queen-in-Parliament was held to be the highest and most important law-making institution

The Legislature

• After the English Civil War and the Glorious Revolution of 1688 the relationship was statutorily defined in Article 9 of the Bill of Rights

• The courts should not enquire into the proceedings of parliament

The Sovereignty of Parliament

• The sovereignty, or as it is sometimes expressed, the supremacy of Parliament, reached its classical formulation in the writings of Professor Dicey in the 19th Century

This means that Parliament in traditional constitutional theory can do whatsoever it likes

Executive• The executive in this country is the Crown whose functions are

exercised through the government, in particular by the Prime Minister

• The executive also comprises the wider organs of the State with executive authority such as the police, the civil service and local authorities

• The definitions given to public authority vary from on area of public and European Law to another

• It is important to realise the the State, and hence the executive, can have a much wider definition depending on the context in which it is regarded

• The executive proposes and enforces the law

The Judiciary

• The Judges’ function is to apply the law in the cases which come before them

• Whether judges make law is a more moot point

• However, it is fundamental that the judges should be independent of the executive

• The Judiciary can sometimes come into conflict with the executive – see Slapper & Kelly pp.11-12

Sources of Law in the English Legal System

• Statute Law• Secondary or Delegated Legislation• EC Law• ECHR Law• Case law• Custom• Books of authority• Quasi-legislation

Statutes

• Also referred to as Acts of Parliament or primary legislation – many may already be familiar to you

• Health & Safety legislation or the Licensing Acts for example

• Traditionally regarded as the highest form of law because of the supremacy or sovereignty of Parliament

• Not always been the case, Dr Bonham’s Case 1610 Coke stated that there were circumstances when the judges would depart from the doctrine and apply natural law

Modern limitations on the supremacy of statute

• Lord Woolf in more recent times has stated that there may be instances where the judiciary are willing to challenge legislation and this debate has been heavily influenced by the Human Rights Act 1998

• Supremacy of EC law – wherever EC law is supreme or not is not just a legal, but also a political question

• A judge in a recent case has indicated that were Parliament to repeal the European Communities Act 1972, the judges would obey the new Act

Statutes

• Will look in a different lecture at how statutes are interpreted and the process by which they become law

• Note, however, that for a valid Act of Parliament there has to be the consent of the Queen, the Lords and the Commons

• If these are written on the statute then the court will enquire no further as to its validity – see Coke and Article 9 of the Bill of Rights (above)

Secondary Legislation

• As well as primary legislation passed by the United Kingdom Parliament there is also secondary legislation or delegated legislation

• This is made by a body or authority outside Parliament using powers conferred on them by a specific Act of Parliament

• Governs complicated and technical areas which Parliament does not have time or knowledge to deal with

EC law

• The law of the European Communities is increasingly an important source of English Law

• A another lecture will look at its relationship in some detail. Note, however:

Primary legislation = Treaties, and the specific articles in them, e.g. The Treaty of Rome 1957, the Single European Act 1982, The Treaty of Maastricht 1992

Secondary legislation = main forms are regulations and directives

European Convention on Human Rights

• Incorporated into English Law by the Human Rights Act 1998 – effective from 2nd October 2000

• Separate lecture will deal with the form of incorporation in more detail

• Note: that legislation must be interpreted as compatible with Convention Rights as far as this is possible

• The Convention rights protect fundamental human rights from abuse by the State

Case law

• Case law is a very important source of law in the English Legal System because of the doctrine of judicial precedent or ‘stare decisis’, let the decision stand

• A whole lecture will be devoted to this topic later in the course

• Few elementary points to note here

Case law

• Although bookshelves full of law reports – very few cases are litigated, most settle outside of the system

• This could be either because of the use of ADR (Alternative Dispute Resolution) or because the lawyers in the case negotiate a settlement between the parties

• The case law provides a degree of certainty to the parties in trying to negotiate a settlement to the case

• How the law will apply to the individual facts of the case is a more complex question

Custom

• To some lawyers ‘the common law’, the concept we looked at in the introduction to legal concepts and terminology, may be viewed as customary

• The common law judges recognised the local customs as laws across the country and made them as uniform as possible

• Other commentators see this as an overly romantic view of the law, and its historical development

• See Egerton v Harding [1974] 3 All ER 689

Egerton v Harding [1974] 3 All ER 689

• This case concerned the land of a public common

• The courts upheld the customary duty of the party to fence the common land and prevent cattle from straying

• Custom may be seen as a positive way of reflecting the practice of society

• Professor Zander in his book in the law-making process states:

‘But it is the judge who decides – not the people or the custom’

Custom has been a very important source of law in countries which do not have a formal, written legal system

Custom

• Criteria for the recognition of custom:

1) It must have existed from ‘time immemorial’, that is, 1189;

2) It must have existed continuously within that period;3) It must have been exercised peaceably and without

opposition;4) It must have been felt to be obligatory;5) It must be capable of precise definition;6) It must have been consistent with other customs;7) It must be reasonable.

Books of authority

• As well as the case law that has built up over the centuries there have been very influential writers who have stated the law at various times

• The courts were originally reluctant to admit these as authority, but this is becoming more and more prevalent in the practice of the courts

• No longer the case that an author has to be dead in order to be an authority

Traditional Sources of Authority

• Coke’s Reports

• Blackstone’s Commentaries

• Dicey

Blackstone’s Commentaries

• Series of lecture given by Blackstone when Vinerian Professor of Law in the University of Oxford

• Still very influential in some areas of law, for example in constitutional theory

• The definition of the royal prerogative as ‘the pre-eminence that the King hath over other men’ is an example of this

Modern practitioner texts

Chitty On Contract, Clerk & Lindsell On Torts, The White Book for Civil Practice, Archbold’s for Criminal Practice and Procedure

• Some modern academics and practitioner texts – Hill’s ‘Ecclesiastical Law’ for example was referred to in the House of Lords in 2001 the Aston Cantlow case

Professor Zander

• See pp.387-392 for a discussion of why books of authority have not been highly regarded

• One reason is that the status of the study of law at universities where it was not regarded as a liberal arts subject

• He quotes Dr Paterson in the LQR as saying:

‘there seems little evidence that the Law Lords regard pronouncements of living academic writers (as a group) as having even persuasive authority’

Modern Practitioner Texts

• Why do you think that courts may have been reluctant in the past to admit practitioner texts as a statement of the current state of the law?

• Why has this position altered?

• See Zander ‘The Law-Making Process’ for a discussion of this question (reference above)

Law Reform - The reports of Commissions

• These are sources of law, although they can be influential and useful to the student in assisting him or her to understand the rationale for the adoption of a certain legal rule

• There are temporary Commissions set up to deal with ad hoc events, e.g. Royal Commissions set up at the command of the Sovereign

The Law Commission

• This is the statutory body set up by the Law Commission Act 1965

• It is divided into different sections which keep the law under review in specified areas and also works towards the codification of the law

• Composed of senior judges and academics, Baroness Hale was a member of the Commission

• It is also has a standing body of the civil servants who keep the law under review and also employs graduate research assistants

Law Commission

See their website at www.lawcommission.org.uk

The government does not always implement their recommendations – see for example the Report on blasphemy which was laid before the House in 1985

Why do you think that the government may not always implement the Law Commission’s recommendations in a certain area?

Quasi-legislation

• This is a term first used in 1944 by R.E. Megarry

• It refer to rules which are made by executive agencies in particular, but which do not form part of the written law as such

• A well known example of this would be the Highway Code – a breach of the Code can be taken into account in determining whether someone was negligent in a road traffic accident claim

• See Zander ‘The Law-Making Process’ pp. 400-403

Summary of Lecture

• You should now be able to:

1. Explain in basic outline the functions of the three branches of government and explain the doctrines of parliamentary sovereignty;

2. Identify the main sources of law in this country;3. Discuss the advantages and disadvantages of certain types

of legislation;4. Be able to name certain historical and modern authoritative

works on the English law and the courts’ approach to using these on a daily basis;

5. Identify ad hoc and statutory bodies which are set up to deal with law reform.

Further reading

• Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition), chapter 2 ‘Sources of Law’, pp.63-108

• Smith, A.T.H, Glanville Williams Learning the Law (London: Sweet and Maxwell, 2002), chapter 1 Common Law and Equity, pp.22-28