Sources of English Law
We have looked at the historical sources of English law and will now consider the other sources from which English law has developed, namely, the main legal sources. These are legislation and case law. Another important source briefly considered is ‘books of authority’.
Legislation
Legislation is an important way of finding out what English law is and affects it has on the lives of everyone in the United Kingdom. It refers to the process by which laws are made, altered and removed. Over the centuries, legislation has been used to bring English laws up-to-date by removing and altering outmoded common law practices and replacing them with new laws. In the United Kingdom, legislation has 2 main forms: Acts of Parliament and delegated legislation.
ACTS OF PARLIAMENT.
Almost all new laws are made by the body known as Parliament, (consisting of the House of Lords, the House of Commons and the Monarch, known as the Queen-in-Parliament ). Laws made by Parliament are known as ‘Acts of Parliament’. Parliament has the power to make, unmake or remove any law it wishes, (although it should be noted that since 1972, laws made must be consistent with European law, see Law Notes on EC law for a fuller explanation). Provided an Act of Parliament comes into existence following the proper procedure (to be considered below), it cannot be challenged by anyone, not even the English courts, which is proof of Parliament’s ‘sovereign’ power to make any law it wishes.
There were periods in history when this was not always the case. More recently in British Railways Board v Pickin [1974] 1 All ER 609, the complainant argued that a Private Act of Parliament could be struck down by the courts where it was obtained by misleading Parliament. The Court of Appeal was persuaded by this argument, but on appeal, the House of Lords rejected this, stating the role of the courts in the legislative process is only to interpret or explain the meaning to Acts of Parliament.
How do Acts of Parliament come into existence? First of all, proposals for new laws are drawn up by parliamentary draftsmen (civil servants working for a minster of the government). These proposals are drawn up in the form of a ‘Bill’. The Bill may concern a law affecting all members of the public (and as such is known as a ‘public Bill’ when introduced by the government, and a ‘private members Bill’ when introduced by a Member of Parliament) or may only affect a limited number of people in the country, (known as a ‘private Bill’).
Secondly, whether the Bill is public or private, it must introduced to either the House of Lords or the House of Commons. Once introduced, the Bill goes through the following ‘stages’ in each House: firstly, it has a ‘first reading’. This is a simple matter of just reading out the proposals; secondly, it has a ‘second reading’. Here, it is discussed in more detail; thirdly, it goes to the ‘committee stage’, where a committee examines the finer details of the Bill; fourthly, it goes to the ‘report stage’, where changes to the Bill at the Committee Stage are brought to the attention of the House; finally, it has a ‘third reading’, where only verbal changes to the Bill are allowed. After passing through both Houses of Parliament and going through the above stages, the Bill goes to the Queen for Royal Assent (or her consent). Once this is granted, it becomes an Act of Parliament (also known as a ‘statute’).
DELEGATED LEGISLATION.
Some laws are not made by Parliament, but are made by special organisations who have been given certain powers by Parliament. These laws are known as ‘delegated legislation’. As long as the organisation which Parliament gives power to make these laws acts within the powers conferred, the resultant law will be valid and upheld by the courts. If the organisation acts outside (or ‘ultra vires’) its original powers, the courts can challenge any resultant law it makes. The main advantage of delegated legislation is that laws can be updated or changed without going through the lengthy process considered above for Acts of Parliament.
Examples of delegated legislation are: by-laws (laws affecting a particular district and passed by local authorities); orders in council (laws made by the government through the Queen-in-Council and used when the government needs to get a law into operation quickly); and statutory instruments (laws made by minsters of the government for special reasons).
Case Law (Or Judicial Precedent)
A further main source of English law is the important legal decisions made by judges in cases. This is known as ‘case law’ or ‘judicial precedent’ and is sometimes said to be ‘judge-made’ law (although judges do not actually make laws in the way we have considered above). These decisions can be found in law reports, which record the decision of judges and their interpretation of a particular area of law.
Over the centuries, judges in the superior courts (the House of Lords and Court of Appeal) heard cases and made decisions on how the law raised in a particular case should be interpreted or explained. Certain decisions or interpretations of the law were seen as so important that they were put in writing or ‘reported’ so that other judges, especially those in the lower courts, (the High Court, County Court, Crown Court and Magistrates’) could refer back to them whenever a similar point arose in a future case and apply the same principle. Case law became an important guide to judges because it ensured that where cases were similar, English law was applied consistently. Accordingly the rule evolved that where a judge hears a case, before he can reach a decision in that case, he must refer back to cases involving similar facts to see how a previous judge dealt with the issue. This practice is what is known as ‘judicial precedent’ or ‘stare decisis’.
How does judicial precedent work? Decisions made by judges in certain courts are binding or must be followed by judges in other courts. For instance, decisions of the superior courts are binding on all the lower courts. But there are occasions when judges need not follow a previous decision; (i) following the Practice Statement in 1966, judges of the House of Lords need not follow decisions made by fellow judges in the Lords where they think it is right to do so; (ii) judges in the House of Lords are not bound by decisions made by the Court of Appeal. (iii) judges in the Court of Appeal (Civil Division) are bound by decisions made by other judges of the Civil Division except where the previous decision is ‘wrong in law’ (or per incuriam), was changed by a later House of Lords decision, or conflicts with other decisions of the Court of Appeal; (iv) judges in the Court of Appeal (Criminal Division) may depart from a previous decision where the liberty of an individual is in issue.
Which part of the decision in a case is binding? The ratio decidendi or the part of a case which explains the judge’s reason for deciding the case in a particular way. Everything else stated in the decision (for example, reference to other cases or legal principles) is known as obiter dicta (or things said ‘by the way’).
Other Sources
Other important sources often quoted are books of authority and conventions. These will be considered briefly.
Books of Authority
These are ancient textbooks setting out the laws of England and explaining English law as it was in those times. Such books normally date back to the 17th century and before this time. Their explanation or application of English law is regarded as so important that their contents are sometimes referred to in the courts as an authoritative guide.
Conventions
These are non-legal rules, treated as binding by those who observe them (although observation of these rules does not generally give rise to any legal obligation or sanction which the courts will recognise or enforce). It is debatable why conventions are observed. In some instances, they are obeyed because they regulate the internal operation of an organisation or body. Thus, conventions may be observed by clubs and associations and form part of their internal rules of practice.
Politically, they have been used as early as the 17th century to regulate the behaviour of government officials and ministers. Here, conventions ensure that these officials and ministers act constitutionally or within the boundaries of what ordinary, decent individuals would regard to be fair and normal.
Examples of conventions which regulate the behaviour of the government include the practice of the Royal Assent being given before a Bill becomes an Act of Parliament; the policy that ministers should declare financial and business interests to the House of Commons which might conflict with their duties as minister; and the policy that a minister should resign where he or she has brought his or her party into disrepute.
