An Important Role In Aiding Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Regarding primary sources of law , common law would be the oldest and most original source of law as it dates way back in 1066 after the Norman Conquest . However before the common law was brought about , the kind of law that was sourced were customs which were specific behavior and rules that develop in communities without being deliberately invented . Two types of customs governed the areas of UK which were the general and local customs. General customs are merely the basis of common law and local customs are specific in its area. Before 1066 , there was no unitary legal system , however there were mass of oral customary rules which differed according to regions , an example the South of England which was the Jutes and Mercians from the middle of England [5] . However even after the Norman Conquest in 1066, there were still many courts besides the Royal Court like the tin minning courts of Devon which provided equity for tin minning workers [6] and the courts of Royal Hunting Forests [7] which specified on forest law [8] .Customs are moreover , secondary sources of law . Moreover it must be said that the "Father Of Common Law " is Henry II because in year 1154 , he created an unified system of courts which was common to the whole country [9] and cases were heard in the Kings Courts . Judges then went around the circuits in the country which was divided by Henry II , to choose the best customs which was to be used throughout the country which resulted in the birth of common law . The common law had been gaining success in many ways in the sense that an role that was played by clerics which was the founders of developing claim forms called writs were generating a lot of income and moreover , The statute of Gloucester(1278) provided statements that no case should be tried without the amount of 40 shillings in the Royal court which thus generated astounding profits and income [10] . However the common law grew from an adaptable source of law to a rigid system of rules which did prove to be inadequate in the sense that it provided injustice to the citizens back then , hence this is where equity came into the picture as it merely filled in the gaps of common law . "Law without equity , though hard and disagreeable, is much more desirable for the public good , than equity without law – Sir William Blackstone [11] , However there were many misconceptions that the introduction of equity was to replace common law , however it was merely to supplement and guide it when common law was heading towards providing an unjust decision of law . Equity was brought about when the number of petitions roused and was given to the King who then passed it to the Lord Chancellor which then created the Court of Chancery to avoid the harshness and slow pace of the common law . [12] The common law courts had many defects as it was rigid and the writs were expensive , as stated earlier above as, it generated a lot business , therefore it could be noted that , the common law courts were looking to be more of money making business than providing the main goal of justice . Therefore , the court of Chancery was a great alternative solution to provide decisions based on good sense and fairness and moreover , it was also cheaper than the common law courts. Even though , the courts were not bound by precedent , it varied by Chancellor to Chancellor as fairness was a subjective quality . However it should be heavily known that the Judicature act 1873-75 had unified both common law courts and courts of Chancery . Equity has contributed in new remedies like , injunctions , rescission , however with the common law , the only remedy was damages. Based on S.25 Judicature Act 1873, S.49 (1) Supreme Court 1981, if there is conflict between common law and equity, equity shall prevail [13] . The common law in United Kingdom has implicated countries like Malaysia like the syrah laws and customary law traditions [14] . Even Australia ‘s common law for that matter is also influenced by the decisions of the UK [15] .

The EU is made up of 27 different countries and negotiate on laws within the member countries or in another words member states . Furthermore , with the involvement of UK , decisions from the European Court Of Justice (ECJ) had to be also bound by the judges in courts. Moreover , S.2 of the HRA 1998 required all courts and tribunals to take into account any Strasbourg case law which sanctions any overruling of any previous English authority with decisions of the European Convention on Human Rights [16] . This proves that , European Community laws have played a huge impact on the common law in the UK.However , recently , Based on an article by Daniel Hanna , it stated that the debate on whether or not the European Union Criminal Division is incompatible with the common law has moved on and that it is unthinkable that it would apply the EU since it is an area where it has never been applying European jurisdiction [17] . Moreover, he also feels that the EU is making its constituent poorer, less democratic and less free. This shows that common law also has its powers against the EU.

Now , Legislation on other hand is another form of law , however it is made by the legislature or which way it is enacted to the country . It defers from common law in the sense that common law is made by judges who travelled around the country , however legislation is codified and made by law making bodies which ultimately , the heart of law making bodies , Parliament the original lawmaker of all legislation . Moreover the judges during the common law follow customs based on communities and pass laws , however state legislatures meet every year to overcome new and emerging problems . [18] The legislation is said to have the power to overwrite the common law , however the common law on the other hand cant . Based on the separation of powers doctrine , the judges do have a role but it is to merely interpret statutes . However judicial precedent is where past decisions of judges are made so that other judges can follow which also increases the scope of the roles of the judges . Therefore , judges developed the common law and also can bring a new meaning in interpreting the statutes based on the purposive approach . However , it cannot be argued that Parliament is sovereign because it can pass laws and moreover laws made by Parliament cannot be held void unless there are any exceptional circumstances of absurdity.

Legislations can be divided into primary and secondary legislations. Acts of Parliaments ends up as being a primary legislation . The system of how an act of Parliament is made through a bill . This bill will go through the enactment process in the First Reading in either the House of Commons or Lords and then to the second reading where there is a debate regarding the principles of the bill then the Committee Stage where the bill is reviewed and to the Report Stage where the bill is reported and voted upon and if it gets through it will go to the Third Reading where there is still a further debate on the bill and there would be a final vote and finally it will lead to the Royal Assent of the bill. However even though United Kingdom is said to have an unwritten constitution , however large parts of the country have codified laws by Parliament . The doctrine of Parliamentary Sovereignty is mainly based on the relationship of Parliament and the courts [19] . Based on the case of R v Jordan , where J was imprisoned for an offence under the Race Relations Act 1965. He applied for legal aid to help him apply for habeas corpus on the grounds that the Race Relations Act prohibited free speech. However the courts held that parliament was supreme and that there is no power for the courts to question the validity of parliament [20] . Based on AV Dicey –" the right to make or unmake any law whatever and no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament [21] â€™â€™. This probably proves that nobody is above the law and that the law makers might act in a way that is exploiting the use of his or her powers .

Secondary Legislation as contrast to primary legislation are laws which are made by other bodies and individuals through the parent act , or in other words this is called delegated legislation . Delegated legislations probably a little similar to the relationship of equity and common law as it complements the lost time in Parliament. Parliament does not always have the time to debate on every single law , and this is brings out the growth of delegated legislation. Delegated legislations also helps the government make changes in the law without the government pushing for a new act of parliament [22] . Moreover , primary legislation may also delegate and act of parliament to particular individual or body to set regulations which also would then be counted as a delegated legislation. Delegated legislations are made up of statutory instruments , bylaws and orders in council . Statutory instruments are rules which are made by government ministers and bylaws are made by local authorities to cover matters within its area [23] Delegated legislations benefits in the sense that it provides speed and flexibility . However there also pro s and cons to things and the delegated legislation also has its critisms that too much delegated legislation is made with less elected people or bodies . It isn’t publiced well and this causes a huge problem . Parliament has aided these problems with Statutory Instrument Act 1946 and other controls. Lord Hewart however describes delegated legislation "Whether good or bad ", delegated legislation is inevitable (The Committee On Minister‘s (1932) One member said that it was " a necessary evil , inevitable , but nevertheless a tendency to be watched with misgiving" –Lord Hewart [24] 

The European Union has also played its role in influencing the UK’s legislation through the European Convention on Human Rights and also through the Privy Council because orders in council are used to give legal effect to the European Directives to declare a state of emergency under the Emergency Powers Act 1920. Before 1998 , the United Kingdom did not have a constitution nor a bill of rights to define their civil liberties , anyone was free to go about and carry our their actions . Even though the European Convention on Human Rights came about in the 1950 , it was only incorporated in October 2000 with the birth of the Human Rights Act 1998 [25] . The European Convention on Human Rights , has affected the United Kingdom Legislation through statutory interpretation , through section 3, 4 , 10 and 19 of the HRA 1998 [26] . Furthermore sections 4 and 10 of the HRA 1998 , have made severe changes to the United Kingdom Parliament in the sense that , a higher court can make a declaration of imcompatibility if its in breach of the European Convention on Human Rights and that also section 10 allows a fast track procedure to alter the primary legislation . The HRA 1998 have also acted on public authorities through Sections 6, 7 , and 8 [27] . However there is a certain limit that The HRA 1998 can influence due the powers of parliamentary sovereignty . In another view , there has been also critisms on the part of the HRA 1998 . Recently The Conservatives , led by David Cameron , pledged to abolish the Human Rights Act if they were elected to power and replace it with a Bill of Rights ; Nick Clegg and the Liberal Democrats on the other hand were persistent that the HRA 1998 would not be repealed , and it created some what of a dilemma for the coalition [28] . In January 2012 , in Strasbourg , David Cameron set out an agenda to reform the ECtHR for admissible cases [29] . This also proves that the UK is proving that parliamentary sovereignty is more important than the involvement of the HRA 1998. " Human rights is a cause that runs deep in the British heart and long in the British history ….We are not and never will be a country that walks on by while human rights are trampled into dust " – David Cameron (Strasbourg Speech) Jan 2012 [30] .

Due to the conflicts of parliamentary sovereignty , the laws in the United Kingdom always contradicts with the laws of the EU . Based on the case of Factortame , there were a series of litigation between United Kingdom laws and European laws because the Merchant Shipping Act was against a law of the European Union [31] The House of Lords then gave an injunction to suspend the Merchant Shipping Act 1988 eventhough parliamentary sovereignty was at stake because no matter what by setting aside the law , it is merely enforcing Parliamenetary sovereignity . This is because, even if parliament doesn’t wish to follow European laws , it can withdraw from the EU but it is highly unlikely . In other words , with the involvement of the United Kingdom in the European Union , it cannot be denied that parliamentary powers have been limited . Based on the S.2(4) of the European Comunities Act 1972 , "any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section [32] "

The EU as you can see has played a huge role in the UK . The European Union is made up of primary legislation which is the Treaty and secondary which is regulations and directives . A treaty is a binding agreement between all member countries which proves as a purpose to make the European Union more efficient and provide transparency , for an example a single currency [33] . With that an example of a treaty is the treaty of Rome which was signed on the 25 March 1957 and was incorporated on 1 January 1958 [34] .The treaty was made for the purpose creating an European Economic Community and European Atomic company [35] . The treaty of Rome was connected to the case of Blacburn v Attorney General whereby it was held that treaty making powers rest in the Crown and that acting in the powers of the ministers cannot be questioned in court [36] .

Regulations on the other hand are secondary legislations of the EU and they are legislative acts which are enforced in all member states . For an example , recently the introduction of the "six pack" which amounts to an overhaul in the economic governance in the EU. Therefore , stricter and sanctions will be applied to member states who fail to fulfill budgetary discipline [37] . Besides that , a directive is also a legislative act , but however it distinguishes from a regulation as it make sures that member states achieve a particular result . An example of a scenario can be proved in the case of Faccini Dori v Recreb ( 1995) whereby it was held that a directive cannot impose an obligation on the company in the absence of national legislation and therefore could not rely on her rights against the company [38] . However in a contrasting case from the above where a directive was successful , is shown in Gibson v Yorkshire Council ( 2000 ) where a employee benefited from a paid holiday . This is because even from the date a directive should have been implemented until it was implemented the, the aggrieved party can benefit [39] .

In a nutshell , although there were rumours that the UK might end their 40 year membership with the European Union recently in 2013 , however Ken Clarke a conservative Cabinet Ministers had other thoughts in mind as he said that that decision would be a "fatal mistake". However David Hannan , a very experienced journalist that has been on the whole European Union issue for years has stated that democracy is not simply a periodic right to mark a cross on a ballot paper [40] . Therefore based on these arguments from both parties , it is obvious that both UK and EU law are conflicting as the supreme of power seems to catch the everyone s attention. Unfortunately this is not a the best situation to be in as power is overlooked over justice and fairness in law . In my opinion , even if parliamentary sovereignty is at stake , the UK should still work together with the EU because civil liberties can be invoked which is very important to build a serene environment . Also , at the same time , the EU laws should not interfere to much with the affairs in the UK because as they absolute power corrupts absolutely and this applies to the relationship of both the EU and UK laws . You only have power over people so long as you don’t take everything from them. But when you’ve robbed a man of everything , he’ s no longer in your power , he’ s free again – Aleksandr Solzhenitsyn [41] . However , whatever the decision , priority must always be given to the people as they are the heartbeat to a country ‘ s success.