Common Law English Legal System Law Public Essay

Published Date: 02 Nov 2017

"Compare and contrast the various sources of law in the UK discussing also the effect of European influence as a source of law in this regard"

Contents

Table of Cases

Table of Statutes

Introduction

2.0 Sources of Law

2.1 Similarities and Differences among Various Sources of Laws

2.1.1 Common Law and Statutes

2.1.2 Statutes and Delegated Legislation

2.1.3 Custom and Works of Authority

3.0 European Union and the Sources of Community Law

4.0 European Influence in the United Kingdom as a Source of Law

4.1 Influences of European Union Treaties

4.2 Influences of the CJEU

4.3 Parliamentary Sovereignty and the EU

5.0 Conclusion

1.0 Introduction

With no written constitution, the laws of the United Kingdom (UK) derive from various sources. One of the earliest sources is Common Law which dated back as far as the Norman Conquest of England in 1066 where it was used to establish a unified national legal system under the patronage and control of a sovereign king. [1] The best customs were then adopted to be used as laws by a circuit of judges, who travel around the country, establishing the "Kings Peace". [2] One may think that the British do not have a written constitution and may not need one, however, there are laws in Britain that are constitutional in nature which go back as far as the Magna Carta. [3] The present legal system can now be said a mixture of the original English legal system and the European legal system.

2.0 Sources of Law

Primary Sources

Legislation (Statutes)

Statutes are also known as Act of Parliament as it is drafted, debated upon and passed in the British Parliament which consist of the House of Commons and House of Lords (HOL). Starting off as a Bill in Parliament, it goes through scrutiny first from the House of Commons and after it was passed, it undergoes scrutiny from the House of Lords. Upon passing the Bill in the House of Lords, The Sovereign will then hand down his or her royal assent [4] which enacts it into an Act. The Acts of Parliament in Britain are deemed as supreme and could not be judicially reviewed or declared ultra vires [5] in UK courts in accordance to Parliamentary Sovereignty and also taking into account that there is no higher constitutional authority in the UK unlike other Commonwealth countries. [6] An existing statute can only be repealed by another recent statute. An example of statute is Drug Trafficking Act 1994. [7] 

Legislation (Delegated Legislation)

Delegated legislations are made through the exercise of law-making powers delegated unto a person or body by an enabling Act. [8] A legitimately enacted piece of delegated legislation is legally enforceable as that on an Act but is confined to the restrictions in its enabling Act. An example of an enabling Act is the Local Government Act 1972. [9] There are a few types of delegated legislation in the UK such as bylaws, Orders in Council, statutory instruments, Court Rule Committees and professional regulations.

Common Law

Common law was once a ‘tool’ used by the Sovereign of England to create a unitary legal system in England and its existence was the result of a particular struggle for political power. [10] The early development of common law was sustained by a basic principle which is ubi remedium ibi jus [11] where there is a right only when there is a procedure to enforce it. [12] In present, common law is generally known as case law. Common law is the legal principles developed by the judiciary known as ratio decidendi. Bounded by the doctrine of precedent or stare decisis [13] , case law are rigid and slow to change until a superior court overturns it.

Equity

When the common laws become too rigid in the past, with damages as its only remedy, it was not a satisfactory solution to the citizens resulting in many petitions to the king [14] , seeking redress for the wrongs. These petitions were passed to the Lord Chancellor [15] as the king do not have time to consider them and soon, the Lord Chancellor acts in his own authority, resulting in the Court of Chancery. The maxim whereby this source of law operates under is ‘He who seeks equity must do equity’. It came to a point where common law and equity were in conflict and on the advice of Lord Bacon, James I firmly decided that when common law and equity are in conflict, equity would prevail. [16] It is now stated in s 49 of the Senior Courts Act 1981 [17] . [18] The common law courts and the Courts of Equity were operating in their respective jurisdictions until it was combined, both court and procedure by the Judicature Acts (JdA) 1873-75. [19] 

Statutory Interpretations

Although Parliament is the supreme law-making authority in the UK, courts have to interpret the statutes to give "life" or effect of the statutes. Statutory interpretations come about when judges define the words, sections or the Act as a whole. Judges have the option to approach the statutory interpretations in ways they deem necessary. The tradition approach begins with the Mischief Rule [20] which is the oldest approach in UK courts as laid out in Heydon’s Case (1584). [21] The other two traditional approaches are the Literal Rule [22] and Golden Rule [23] . In addition to the approaches or rules are ejusdem generis [24] , noscitur a sociis [25] and expresso unius est exclusio alterius [26] which is known as rules of language. Not excluding the Hansard or Interpretation Act 1978 [27] , these documents provided guidelines for judges when interpreting a statute or word of a section with consideration to the Parliament’s intention when enacting the particular Act.

European Union Laws

The European Union (EU) is governed by various sources of laws of which most of them affects UK laws. EU treaties, regulations and directives are examples of sources of law in the European Community. Focusing on the internal treaties of the EU, Member States are subjected to these treaties of the EU and de facto [28] the treaties prevail over domestic authority. [29] Other sources of law in the EU include Regulations and Directives. EU laws are mostly introduced into UK through the European Communities Act (ECA) 1972.

Secondary Sources

Works of Authority

When there are no precedents or authorities in deciding a case, legal textbooks or journals may be used in assisting the courts to make its decisions. The works of authority usually are influenced by the philosophy or ideology of the authors. [30] 

Custom

Custom was once an important source or factor to judges in making case law in the early times. Custom derives from the cultural beliefs or practices of various tribes in the country. However, in the present times, the importance of custom in the process of decision-making by the courts or as a source of law has diminished greatly.

Canon Law

Canon law is the law of the Catholic Church where it was once an important influence in the growth of English law. While its role is of little significance now, it was the basis of multiple concepts generated in law courts such as using imprisonment as punishment for a crime and it influences the nature of equity as well given that the early Chancellors were clergymen. [31] 

2.1 Relationship among Various Sources of Law

2.1.1 Common Law and Statute

With no written constitution to govern the UK, the country depends heavily on common law and statutes as their source of law. The past, common law was depended upon more as compared to statutes. By the 20th and 21st century, the numbers of statutes has increased significantly. However, the role of courts is, too, significant in interpreting the law and to determine the direction of law and how it should operates.

With extremely imperative importance, both sources of law are legally binding on the citizens of the UK and anyone who comes underneath. Essentially, both sources are aimed at ridding off ‘social evils’ and provide a guideline on how the country should operates.

It is important to distinguish both sources of law in terms of their nature. As such, common laws are developed by the independent judiciary body in their decision-making of a case whereas statutes are enacted in the parliament which undergoes scrutiny and debates. It can be said that common law is easier to develop compared to statutes given that common law is the ratio decidendi of the judge and there is no debate or scrutiny on how it should be developed. Statutes, on the other hand, take longer time to be enacted. [32] 

No doubt, the clear relationship between common law and statute is that one affects another. It is like a ‘love-hate’ relationship. Both sources of law limit one another and in the same time, the complement one another. [33] Although Parliament enacts the statutes, judges are the ones that will determine the direction and how the statute should operate. The interpretation given by the judges may not be what Parliament intended for the outcome of the statute to be. Vice versa, Parliament limits the scope of interpretation of judges through the Interpretation Act 1978 [34] which provides the provision for interpretation of statutes.

2.1.2 Statutes and Delegated Legislation

As there are many areas to be covered by the law, it became overkill to the parliament as there are more important national issues to be discussed and debated upon. Thus, a delegation of power to delegated public bodies or individual was made by the parliament through a parent Act or enabling Act to ease the workload of the parliaments. Delegated legislation is legally enforceable as it is with statutes. When compared to statutes, delegated legislation is much easier and faster to be enacted, giving the Government much space and liberty to make changes to the law without having to push through a new Act of Parliament. [35] 

2.1.3 Common Law and Equity

Although UK courts exercise common law and equity jurisdiction concurrently in cases, these two sources of law differ from one another. Referring back to its origins, common law was rigid whereas equity comes from the discretion of the courts. Needless to say, equity complements and covers up loopholes that surface from the rigidity of common law. Under common law, the remedy provided and the sanctions incurred for a particular offence is never changing due to its rigidity whereas under equity, circumstances, seriousness of the offence committed and other factors are considered which are not done in the common courts.

3.0 European Union and the Sources of Community Law

After World War II, European countries strive to revive their economy as Europe was in utter ruins. In attempt to achieve this, European Communities were established through treaties. Such Communities are the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (Euratom) and on November 1, 1993, the Treaty on European Union which was signed at Maastricht on February 7, 1992, came into force, thus, the EU was established. [36] The main organs of the EU are the European Parliament, European Council, Council of the European Union, European Commission, Court of Justice of European Union (CJEU) [37] European Central Bank, and Court of Auditors. [38] Community law derives from four sources namely international treaties and protocol, international agreements, secondary legislation and decisions of the CJEU.

4.0 European Influence in the United Kingdom as a Source of Law

The source of law in the UK is influenced greatly by the European Community. As the UK is a ‘dualist’ Member State of the EU unlike many Member States which are ‘monist’, Community law (the acquis communautaire) [39] are only enforceable in the UK through section 2 of the ECA 1972 and whereby if this Act is to be repealed, the UK would no longer be of obligation to be bound by Community law. [40] There are a few European influences which will be discussed in the subheadings below.

4.1 Influences of European Union Treaties

At present, the ruling treaties of the EU are the Treaty on European Union (TEU), Treaty on the Functioning of the European Union (TFEU), and the Charter of Fundamental Rights of the European Union. [41] As reported in The Telegraph on the 28th of October 2010, up to half of British laws come from Europe. [42] Treaties do not automatically become part of UK law by the traditional approach to UK’s constitutional law upon their making or ratification and will only be enforceable in UK through an Act of Parliament in which the European Communities Act 1972 was enacted to enable the incorporation of EU Treaties as UK law without having to enact many statutes for different Treaty. The Human Rights Act (HRA) 1998 illustrates the influence of Europe on UK sources of law in terms of legislation. The HRA 1998 was drafted with reference to the European Convention on Human Rights (ECHR).

Although an individual may bring action against his country’s government for a breach of convention in the European Court of Human Rights (ECtHR) in Strasbourg, the HRA 1998 provides provision for UK courts to declare a section of or any statute incompatible with the ECHR under section 4 and 10. [43] However, it is important to note that although a declaration of incompatibility has been issued, the law remains unchanged until Parliament decided or take initiatives to amend them.

While Treaties affect a significant number of UK legislation, the same effect goes to common law. However, before the enactment of HRA 1998, courts do not take into consideration Treaties signed unless ratified. Lord Denning confirmed this principle in Blackburn v The Attorney General (1971). [44] With the implementation of HRA 1998, judges have a different approach when it comes to interpretation or deciding a matter of law. Judges were expected to consider the ECHR when interpreting a statute and are also expected to refuse to apply those statutes when it is incompatible with the existing EU laws. [45] 

4.2 Influences of the CJEU

As the highest court in the EU, the decisions of the CJEU are legally binding on all other courts of EU Member States which includes the domestic courts of the UK. However, CJEU is not bound by its past decisions. Generally, no Act of Parliament should be questioned or challenged. As the beliefs of the people changes, including the participation of UK in the EU by which the CJEU assert that at the commencement and duration of UK’s membership in the EU, the domestic laws of UK must yield in cases of conflict to superior Community laws. [46] However, the higher UK courts’ judges will implement the English legislation first when it is not possible for them to read English legislation in a way which meets the European position. [47] 

With the provision given under s 3 of the ECA 1972, judges are now to implement the laws of EU and this allows the CJEU’s precedent to be set over the UK courts, thus, UK courts are now bound by the CJEU. This is illustrated in Factortame I where the HOL referred the matter to the European Court and thus it was decided that Community law prevails over national laws. [48] The HOL applied the preliminary ruling in the 1990 case and in Factortame II. This 1990 and 1991 case marks the ‘entrance’ of EU laws including its precedence in the UK.

On the perspective of the Court of Justice, the direct effect of EU laws was enshrined in the case of Van Gend en Loos on 5th of February 1963. It was held that the CJEU may not only engender obligations for Member States, but rights of individual as well. Arising from this, two direct effects takes place; horizontal and vertical. The horizontal direct effect allows an individual to take action against another individual whereas the vertical direct effect allows an individual to take action against any Member States. [49] 

4.4 Parliamentary Sovereignty and the EU

William Blackstone once said ‘true it is, that what the parliament doth, no authority upon earth can undo’ and Dicey on Parliamentary Sovereignty ‘…under the English constitution, the right to make or unmake any law whatever…’ These two statements definitely describe and confirm the supremacy of the Parliament of Great Britain. Thus, further in his analysis that no other than the parliament itself ‘is recognised by the law of England as having a right to override or set aside the legislation of Parliament", Dicey indicates that there are no other higher authority in the law-making of English laws other than the parliament itself. In strengthening the views of Dicey, it is generally accepted that when the Queen, House of Lords and House of Commons work together in the enactment of laws, conclusively it is to be consider valid by the courts. [50] 

The supremacy of Parliament was demonstrated in the 1688 Revolution with the end of James II’s reign. Lord Reid in his judgment in Pickin v British Railways Board (1974) confirms the supremacy of the Parliament. [51] International courts such as the ECtHR and CJEU de jure do not have the authority in English law to declare an Act of Parliament invalid and whether it was intra vires for them to do so in their legal system is a different question. [52] When Parliament is supreme, the laws it made is supreme itself. Whenever a statute is in conflict with some other forms of law, the statute will always prevail. Thus, comes forth a question, in consideration of the supremacy of laws enacted by Parliament, that whether there is a possibility that a statute enacted by Parliament may authorise other legislative powers to override UK statutes.

In 1972, the European Communities Act 1972 was enacted which opens the floodgate for the EU to encroach into the English legal system. The ECA 1972 is the "bridge" that allows EU laws to be of dominance over the municipal laws of the UK which comes under section 2 of the ECA 1972. It is possible to say that the HRA 1998 is, too, another statute that limits the sovereignty of parliament in a certain way. In Attorney-General v Jackson (2006), Lord Steyn stated ‘…the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out place in the modern United Kingdom’ and Lord Hope of Craighead ‘Parliamentary Sovereignty is no longer, if it ever was, absolute…’ The doctrine of the supremacy of Parliament is no longer in its original context anymore whereby Parliament can make and unmake any laws it wishes as it is bound by the ECA 1972 and HRA 1998 and as such, these Acts act as limiters to Parliament as suggested by the Law Lords in Attorney-General v Jackson (2006) [53] . [54] 

However, it is critical to note as well the opposing views that Parliamentary Sovereignty cannot simply be determined in the courts. Lord Neuberger of Abbotsbury in the April 2011 Weedon Lecture questioned and commented on Lord Steyn’s obiter statement, ‘Parliamentary Sovereignty was acknowledged rather than bestowed by the courts. They acknowledge what had been clearly established by civil war, the Glorious Revolution of 1688, the Bill of Rights 1689 and the Act of Settlement 1701.’ [55] Considering this statement made, if it were to be true, the courts, either domestic or international, have no authority at all in regards to the question of Parliamentary Sovereignty. With that saying, Parliament is indeed supreme and could not be influence by external powers unless allowed by Parliament itself. Vis-à-vis the scope of power of statutes, section 3 of the ECA 1972 allows UK courts to enforce laws made by the EU which can be implied as Parliament’s consent to allow EU’s influence within the English legal system. [56] 

As such, the government has passed the European Union Act (EUA) 2011 to amend the ECA 1972 to such extend that the enforcement of EU laws in the UK will be subjected to Parliament’s wishes. This can be construed as Parliament’s declaration that it is still in control over the laws in the UK and the pride and sovereignty of the Parliament of Great Britain remains and will not be subjected to foreign powers.

6.0 Conclusion

The laws in the UK are influenced by various sources which includes external powers such as the EU. With the deteriorating of the doctrine of Parliamentary Sovereignty in question, should the UK wishes to retain its power, amendment towards the ECA 1972 has to be done, considering the EUA 2011 has been enacted in consideration of this as the domestic courts are still bound by CJEU’s precedents and have the power to apply EU laws under section 3 of the ECA 1972.

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