The European Court Of Human Rights Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Sources of law in UK can be divided into primary and secondary sources of law, where primary sources of law consists of case law, legislation and European Union (hereafter referred as EU) law.

Firstly, case law are law made by judges. Common law is the earliest case law available in UK and referred as the base of all law. Curia Regis was set up to hear cases at first. The best decision were selected and applied to the whole country, known as common law. However, common law gradually changed from a dynamic and adaptable system to one that was excessively formalised, inflexible and inadequate. The range of writs were limited and expensive. Damages was the only remedies available in common law which was not most litigants seek for. Common law was rigid based on the doctrine of stare decisis [1] . It is bound to previous decision albeit previous decision was absurd or outdated. Lastly, cases often lost to procedural defects and technicalities before the case even heard in the courts.

This had persuaded the introduction of equity. Equity was never intended to replace common law in the first place it was merely to fill lacuna in common law. The decision by equity was based on the fairness and good sense, hence it was rather subjective. Equity successfully adapted and expanded to meet new needs. Since the Court of Chancery was cheaper and less formal, it is user-friendly in nature. Besides, maxims were designed which has to be satisfied before equitable rules can be applied. The most important maxim is 'he who comes to equity must come with clean hands' which ruled in D&C Builders v Rees [2] .

There was tension between these two different bodies in Earl of Oxford's case [3] . It was clarify that whenever there was a conflict between common law and equity, equity shall prevail. Sooner, administration of the two systems was brought together by the Judicature Acts 1873-75 [4] , which combined common law and equity courts. However, equity still prevail under s25 of the Judicature Act 1873 [5] and s49(1) of the Senior Courts Act 1981 [6] is the modern embodiment of that rule. Despite the combination of two bodies, common law and equitable rules have not merged into one source of law.

The existence of equity has created new rights. Equity recognised the rights of the beneficiary and rights of the mortgagor. Equity has created new remedies other than damages. An injunction was an order from court to compel the defendant to do something, which is mandatory injunction or not to do something, namely prohibitory injunction. In order to ensure contractual parties to perform his part of promises, specific performance was introduced. Besides that, rectification was created to alter the words of the documents. Lastly, rescission was introduced to restore parties to their original state from the contract they were entered into. Mareva injunction and anton pillar order were introduced to extend the scope of injunction.

The most significant contribution by equity was the doctrine of promissory estoppel [7] . It originated from Lord Denning's obiter dicta in High Trees Case [8] . Based on this doctrine, the principle in Pinnel's case [9] , 'Lesser sum is not satisfaction of a larger sum' statement had been overruled provided certain conditions were fulfilled.

Since case law are made by judges, it is necessary to include statutory interpretation into part of case law. There were three approaches available, namely literal rule, golden rule and mischief rule before UK became part of EU. Literal rule means to interpret statute to their original and nature meaning, even though it might produce absurd result as ruled in Whiteley v Chappel [10] . Golden rule is applied when literal rule gives absurd meaning as seen in R v Allen. It can divided into two view, namely narrow view showed in Jones v DPP [11] and broad view used in Re Sigsworth [12] . The last approach is mischief rule where four criteria was laid down in Heydon's case [13] . Smith v Hughes [14] will be an example of a case applying mischief rule. Besides that, there are some rules of language that helped the courts in deciding cases, which are ejusdem generis in the case of Powell v Kempton Park Racecourse [15] , expressio unius est exclusio alterius in Tempest v Kilner [16] and lastly noscitur a sociis ruled in Inland Revenue Commissioners v Frere [17] .

Despite case law, legislation plays irreplaceable role in the part of the sources of law. There are two types of legislation in the UK, which are primary and secondary legislation.

'England is not governed by logic; she is governed by Parliament', [18] it described parliament sovereignty by Benjamin Disraeli.

Parliament in UK has unlimited power in making law because there is no written constitution that restrain them. Hence, any law that made by Parliament will be enforceable even though it might breach the rights of individuals. Parliament must not bind a successor as laid down in the doctrine of implied repeal. However, it is possible to overrule any previous law as ruled in Vauxhall Estates Ltd v Liverpool Corporation [19] . Avory J said :

'Speaking for myself, I should certainly hold, until the contrary were decided that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions.' [20] 

On the other hand, no other body can ignore or override an Act of Parliament. According to Bill of Rights 1688 [21] , courts must apply the Act of Parliament once is passed due to the principle laid down in the enrolled Act rule.

Parliament consists of the House of Lords and House of Commons. House of Commons is the democratically elected chamber of Parliament while the members of House of Lords are not elected by general public, instead the majority are appointed by the Queen on the recommendation of the House of Lords Appointments Commission [22] . House of Lords are divided into four types, namely life peers, retired judges of the former House of Lord's judicial committee, bishops and elected hereditary peers [23] .

Every 'Act' is started with bill, either private bills, public bills or private public bills. A bill can be started in either House and required to go through first, second reading, committee stage, third reading and royal assent before becoming an Act of Parliament to be enforceable in courts. Criminal Defence Service (Advice & Assistance) Act 2001 [24] will be an example of an Act of Parliament.

It is true that Parliament is the ultimate law-maker, yet Parliament has limited time, hence it is impossible to debate every law. Thus, Parliament decided to delegate his power to individuals and persons other than Parliament to make and pass law under Parent Act, where these law that passed are delegated legislation. There are four types of delegated legislation which are Orders in Council, statutory instruments, by-laws and rules of court procedure.

Orders in Council are made by Privy Council to give legal effect to European Directives and do not require consent or approval from Parliament. It is also used to declare a state of emergency under the Emergency Powers Act 1920 [25] .

The most outstanding form of delegated legislation are statutory instruments. These are made by government bodies or civil servants within their responsible areas. It applies to the whole country and are used to add detailed technical rules to general legal framework. It requires the approval of Parliament before becoming law.

By-laws is a type of delegated legislation made by local authorities to deal with matters of local concern. Despite local authorities, public and nationalized bodies are allowed to use by-laws to cover matter within their jurisdiction. One of the example will be British Railway Board Bylaws 1985 in the cases of Boddington v British Transport Police [26] .

Lastly, rules of court procedure is one of the form of delegated legislation. These are made under powers conferred by various statutes.

There are several controls that governed delegated legislation to prevent abuse of power by bodies other than Parliament. Negative resolution is famously used as delegated legislation will automatically become law unless it is rejected by Parliament within 40 days.

There are also controls by judges by judicial review. There are two grounds where delegated legislation will be held void. When procedure of enabling act failed to be followed while statutory instruments was created, it will be held to be procedural ultra vires which ruled in Aylesbury Mushroom case [27] . If a delegated legislation have gone beyond the powers conferred by the parent act, it will held to be substantive ultra vires, hence voidable as ruled in Commissioners of Customs and Excise v Cure and Deeley Ltd [28] . Courts might also held delegated legislation to be void on the basis of unreasonableness in Strickland v Hayes-Borough Council [29] .

EU law is part of the main sources of law in UK because UK joined European Economic Community in 1973.It is created by the Treaty of Rome which aimed to deal with issues of economic and social development between countries. There are three main types of EU law, which are treaties, regulations and directives. Before that, it is useful to explain the concept of direct applicability and direct effect. Direct applicability means automatically apply EU law into domestic law without any concern of the country. Direct effect is the ability of provision of EU law to be relied on even though it is not within domestic law.

Treaties is the highest source of law among these three. It lay out the legal framework within EU institutions to operate. The treaties are directly applicable and direct effect in nature. One of the most important treaties is the Treaty of Rome which set up the original European Economic Community. Van Gend en Loos [30] had established that a provision must be clear, unconditional, precise and non-dependant in order to have direct effect in terms of rights and regulations. The provisions have two types of direct effect, namely horizontal direct effect which is enforceable against private bodies and vertical direct effect which is enforceable against public bodies.

Next, regulations are secondary legislation in EU. It is, however, more common than treaties. Regulations are direct applicability subjected to the requirements set in Van Gend en Loos [31] . Whenever there is a conflict between domestic law and regulations in EU, regulations will prevail and it must be applied. Regulations are able to have both vertical and horizontal direct effect as ruled in Leonesio v Ministero dell' Agricoltura [32] . In addition, regulations must be published in the Official Journal of the European Union [33] .

Lastly, directives aim to create a wide objective while the members can includes detailed information during the practice, hence it is less precise than regulations. However, it is only applicable for horizontal direct effect.

After looking into the primary sources of law in domestic, it has clearly showed the existence of doctrine of separation of power as each body has equal power where executive create delegated legislation, Act of Parliament is made by legislature and lastly judiciary make case law.

Firstly, the degree of flexibility among domestic law. Case law will definitely be the winner in term of flexibility as it is not rigid compared to statute law. It is followed by delegated legislation because the courts might declare incompatibility when delegated legislation is not right to apply in deciding cases. It is, definitely, follow by Act of Parliament as the courts must give effect once it passed. Besides that, it takes a time to change when it is necessary. However, on the other hand, less flexibility creates certainty and consistency as it will gain public confidence, hence the order will be reversed when it comes to the term of consistency.

Next, it is essential to look into to the authority power of each sources of law. Act of Parliament is the winner in this section. Act of Parliament can abide the country and it must be followed and enforced in court because of doctrine of Parliament sovereignty. Hence, it cannot be challenged by judicial review or whatsoever. It is followed by case law. Prior to Constitutional Reform Act (hereafter referred as CRA) 2005 [34] , its authority power is as power as Act of Parliament due to stare decisis and ratio decidendi [35] that laid down by higher court are binding. However, after CRA 2005, the authority power has loosen as the Supreme Court has the discretion to depart from its previous decision whenever it is right to do so. Court of Appeal and high courts also have the freedom to depart its previous decision, provided it satisfied the criteria laid down in Young v Bristol Aeroplane [36] . Lastly, delegated legislation tend to has lesser authority power because courts can challenge the validity of delegated legislation by judicial review and unreasonableness.

By comparing between EU law and domestic law, EU law is far more supreme than domestic law stated in European Communities Act 1972 [37] . However, Parliament still remain supreme as they have the rights to reject EU law by giving up their memberships in EU.

Secondary sources of law are not that important nowadays as it is no longer relevant. However, it is still exist. There are two types of secondary sources of law, namely custom and woks of authority. In order for the courts to recognize and enforce custom, custom must be definite as to locality, nature and scope, exercised peaceably, openly and as of rights, reasonable and existed since time immemorial. Works of authority are books that are considered to be legal guides to UK constitution. For example, An Introduction to the Study of the Law of the Constitution [38] .

Primary sources of law are far more important compared to secondary sources of law. Secondary sources of law are always overlooked by the courts and focus more on primary sources of law. The main difference is primary sources of law are applied and enforceable by the courts whereas secondary sources of law are merely used as references and it is usually not legally enforceable.

After discussing the first issue, the second issue is required to look into the influence of European as a source of law.

Under s2(1) [39] and (4) [40] of the European Communities Act 1972, EU law become part of UK law as stated earlier. s2(1) of this act required treaty provision to be direct applied in UK law while s2(4) of this act required future Acts passed must be conform with EU provision. It has made EU law to be far more supreme than domestic law as seen in the case of Costa v ENEL [41] where European law takes precedence over national law and lastly, in Factortame [42] ruled that whenever there is a conflict between domestic and EU law, EU law shall prevail. It has, however, breached the doctrine of parliamentary supremacy. It is argued that s2(1) of this act has removed the job of Parliament as a ultimate law maker, hence restrained the power of Parliament. However, Parliament still remain supreme as parliament has the power to abolish EU law by resigning for the member of EU as discussed above, yet it will not be happening anytime soon due to political reasons. Therefore, it is arguable buy in theory, parliament in UK remain supreme, 'in theory Parliament has total power. It is sovereign' [43] .

One of the significant influence by European is statutory interpretation. Before UK became the member of EU, there were only three as discussed earlier. These approaches did not give much discretion to the courts as it restrain the freedom for the courts to decide cases. However, purposive approach is available and it is, technically, a better approach as it is flexible in nature. Purposive approach looks into its intention rather than its context. Hence, it provides more discretion to the courts in interpreting the law. In Magor and St Mellons v Newport Corporation [44] , Lord Denning said :

'... We sit here to find out the intention of Parliament and of Ministers and carry it out and we this betterby filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.' [45] 

Courts nowadays tend to favor purposive approach in deciding cases because even though the courts choose to use other approach instead of purposive approach, European Court of Justice will still overrule the courts' decision by using purposive approach when the case is brought upon. R(Quintavalle) v Secretary of State for Health [46] is an example of case that purposive approach was applied by the courts.

European Convention of Human Rights (hereafter referred as ECHR) is also one of the sources of law in UK as result of the influence of EU. It was created by the Council of Europe. The European Court of Human Rights (hereafter referred as ECtHR) sits in Strasbourg and case has to appeal to the highest court before it reaches ECtHR before the Treaty was incorporated with the Human Rights Act (hereafter referred as HRA) 1998 [47] . The HRA1998 is the culmination of an aggressive campaign for the incorporation into domestic law of the ECHR. [48] There are significant influences in the judicial precedent and statutory interpretation in UK as s2 of the HRA [49] required the courts to consider past cases of the ECtHR before deciding any case. However, it is only merely persuasive as ruled in R v Spear [50] . s3 of the HRA [51] required statute to be interpreted in line with the article of ECHR as seen in Ghaidan v Mendoza [52] . HRA also created new rights for individuals. In Malone v UK [53] , domestic law do not recognize human rights and ECtHR overruled the decision when the case was brought to Strasbourg. Lastly, there are plenty of articles created, for example, Article 2 [54] , Article 8 [55] and Article 10 [56] .

In a nutshell, UK has no written constitution yet there are many sources of law available to maintain the order in society. UK law are unique as to the point that it neutralize the power between three bodies. However, in term of making law, Parliament still remain at the top above others. Albeit UK has a pure domestic law compared to other countries like Commonwealth countries, UK is willing to accept EU law as part of the law. It has, however, limited the supremacy of Parliament, yet UK has allowed more sources of law to join with the domestic law in order to make sure the courts has wider discretion in deciding case, hence higher chances to prevent injustice. In the end of the day, the question still remains whether it is reasonable to restraint Parliament's sovereignty in exchange of membership as part of EU.

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