Sources of English Law

Sources of English Law

• English law's significance and precedence are determined by the source of a rule.
• Four principal sources exist in the English common law system.
• Legislation (statutes or Acts of Parliament) are written laws from Parliament.
• Common law (case law) are judges' decisions applied in later cases through precedent.
• EU law comes from the European Commission, Council of Ministers, and Court of Justice of the European Union.
• The European Convention on Human Rights (ECHR) emanates from the European Court of Human Rights and is incorporated through the Human Rights Act 1998.

Parliament and Statutes

• Parliament is the supreme law-making body in England and Wales.
• It consists of the House of Commons (democratically elected MPs) and the House of Lords (appointed and hereditary members).
• A valid Act of Parliament is written law, the result of a Bill's passage through Parliament.
• The government usually consults, publishing a Green Paper (tentative proposals) and then a White Paper (firm proposals).
• The draft Bill is introduced, debated, and amended in Parliament.
• Royal Assent from the Queen is required after the parliamentary processes.
• Acts of Parliament take precedence over common and case law, but this is subject to changes as a consequence of Brexit.

Primary and Secondary Legislation

• Primary legislation includes Acts of Parliament or statutes.
• Secondary legislation (statutory instruments, regulations, rules, or orders) contains detailed rules produced under the authority of an Act.
• Secondary legislation has the force of law with less scrutiny than primary legislation.

Devolved Legislation

• Devolution transfers powers to Scotland, Wales, and Northern Ireland.
• The Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998, established devolved bodies.
• Each devolved legislature can pass laws in specified areas, also being bound by UK Parliament legislation.

The Courts and Common Law ('Judge-Made Law')

• Common law refers to law from court decisions, not Acts of Parliament.
• England and Wales operate a common law system.
• Many fundamental legal rules are established by judges deciding cases.
• Contract law is primarily found in common law versus statutes.
• Lawyers and judges refer to legal cases establishing these legal principles.
• English common law dates back to the 12th century.
• 18th Century Jurist William Blackstone, described common law as derived from court records, judicial decisions, and treatises, giving rise to collection of maxims and customs.

European Union Law

• The EU is an economic and political partnership among European countries, formed post-WWII.
• The EU promotes human rights and is based on treaties agreed by member countries.
• The EU's Charter of Fundamental Rights, since the Treaty of Lisbon in 2009, places all rights in a single document.
• Since 1973, law from the European Parliament, Council, and Commission governs some UK activities.
• The European Communities Act 1972 makes European law superior to domestic law.
• The Court of Justice of the European Union (CJEU) interprets and implements European law.
• Section 2(4) of the European Communities Act 1972 states English law is subject to the principle of European law's precedence.
• R v Secretary of State for Transport, ex p Factortame, established the supremacy of European law.
• The Merchant Shipping Act 1988 conflicted with EU law regarding fishing licenses, leading the CJEU to rule in favor of EU law.
• The UK voted to leave the EU in 2016.
• The European Union (Withdrawal) Act 2018 ends the authority of EU law by converting its provisions into UK law and repealing the European Communities Act 1972.
• The intention is for Parliament to decide which aspects of EU law to retain, amend, or repeal post-Brexit.
• The European Union (Withdrawal Agreement) Act 2020, the UK left the EU on 31 January 2020.
• The status of EU law has not fundamentally changed during the implementation period, scheduled to last until 31 December 2020.
• The exact relationship between EU law and UK law during the implementation period depends on negotiations between the EU and the UK.

European Convention on Human Rights

Human Rights Before the ECHR

• Certain rights and freedoms have been protected in English common law since the Magna Carta (1215).
• The Magna Carta established due process, equality before the law, and forbade bribery and misconduct.
• English law has traditionally approached human rights with negative protection: citizens can do anything unless prohibited by clear, accessible, non-retrospective laws.
• Common law constrained government power, ensuring it acted according to law.
• R v Lord Chancellor ex p Witham shows human rights protection before the ECHR: the High Court ruled against increased court fees that would limit access to courts for those with financial hardship.
• Laws J stated that access to the courts is a constitutional right.
• Since the Human Rights Act 1998, many fundamental rights are positively protected, with the ECHR significantly impacting English law and legal processes.

Human Rights Under the ECHR

• The ECHR is an international treaty from 1950, effective in 1953, signed by Council of Europe members.
• The Council of Europe and the ECHR are separate from the EU.
• The UK was one of the first signatories to the Convention.
• 47 countries now comprise the Council of Europe.
• The ECHR was a reaction to the Second World War's horrors.
• In 1998, the UK passed the Human Rights Act, incorporating the ECHR into English law, establishing cases can be pursued if the UK Government breaches human rights.

The European Court of Human Rights

• The ECHR provides individuals the ability to bring cases to the European Court of Human Rights in Strasbourg if a government breaches obligations.
• The Court was set up in 1959.
• 'Strasbourg' is shorthand for the European Court of Human Rights.
• This Court should not be confused with the Court of Justice of the European Union (CJEU) in Luxembourg.

The Protected Rights and Freedoms

• The ECHR protects fundamental rights and freedoms, with Articles 2-14 outlining specific rights.
• The Convention is supplemented by protocols.
• Protected rights and freedoms include:
• Right to life (Article 2)
• Prohibition of torture (Article 3)
• Prohibition of slavery and forced labour (Article 4)
• Right to liberty and security (Article 5)
• Right to a fair trial (Article 6)
• No punishment without law (Article 7)
• Right to respect for family and private life (Article 8)
• Freedom of thought, conscience and religion (Article 9)
• Freedom of expression (Article 10)
• Freedom of assembly and association (Article 11)
• Prohibition of discrimination (Article 14)
• Right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)
• Right to free elections (Article 3 of Protocol 1).

Derogation

• Some fundamental rights and freedoms cannot be interfered with by the state (absolute and inalienable), while others can be opted of by a state in specific circumstances (contingent and subject to derogation).
• Absolute rights are in Articles 2, 3, 4, 7 and 14.

Margin of Appreciation

• The European Court of Human Rights (ECtHR) developed a ‘margin of appreciation’ doctrine due to the diverse cultural and legal traditions of the 47 member states of the Council of Europe and can permit a degree of discretion, subject to supervision of the European Court of Human Rights, when it takes legislative, administrative or judicial action in the area of a Convention right.
• This allows the Court to account for different interpretations of the Convention in member states.
• Member states may be allowed a wide or narrow margin of appreciation.
• Lautsi v Italy (2011) dealt with this concept: the ECtHR ruled that crucifixes in Italian schools do not infringe on freedom of religion, highlighting the importance of respecting culture and traditions.

Proportionality

• Proportionality dictates that state interference with human rights should be necessary, and go no further than what is essential to achieve the objective.
• Any measure affecting a basic human right must be appropriate, necessary, and reasonable.
• Lord Justice Laws referred to the principle of proportionality as one of ‘minimal interference’
• De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, courts decide whether legislative interference with some fundamental right is arbitrary or excessive, the court should ask whether:
• The legislative objective is sufficiently important to justify limiting a fundamental right
• The measures designed to meet the legislative objective are rationally connected to it; and
• The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

Operation of the Human Rights Act 1998

• Before 2000, UK citizens had to appeal to the European Court of Human Rights in Strasbourg to enforce their rights.
• The Human Rights Act made Convention rights part of English law.
• The Act gives Convention rights a central place in domestic law.
• The Human Rights Act does not enable judges to declare legislation invalid for incompatibility with Convention rights.
• Sections 3 and 4 of the Act work together.
• Section 3: requires statutes to be interpreted as compliant with Convention rights.
• Section 4: allows senior courts to issue a 'declaration of incompatibility' if legislation is not compatible with Convention rights, instead of striking down legislation.
• The declaration of incompatibility does not require the government to change the law, but allows it to do so under section 10 of the Act.
• Key measures of the Act are:
• Section 2: English courts must consider previous European Court of Human Rights decisions.
• Section 3: All legislation must be read to give effect to Convention rights.
• Section 4: Courts can issue a declaration of incompatibility.
• Section 6: It is unlawful for public authorities to act incompatibly with the ECHR.
• Section 10: A fast-track procedure exists for remedial legislation after a declaration of incompatibility.
• Section 19: Government ministers must state that a Bill is compatible with Convention rights.

Possible Changes to the Human Rights Act 1998?

• In 2014, the Conservative Party proposed breaking the formal link between British courts and the ECtHR, stating UK Courts, not Strasbourg, will have the final say in interpreting Convention Rights, as clarified by Parliament.
• The government may leave the ECHR if a "looser" relationship couldn't be achieved.
• In 2015, David Cameron intended to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights.
• In 2019, the newly elected government in stated that they would ‘update the Human Rights Act…to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’.
• Changing the Human Rights Act may face resistance.
• Dominic Grieve QC argued opting out of the ECHR would undermine international human rights law.
• A 2016 EU Justice Sub-Committee report raised concerns about replacing the Human Rights Act 1998, potentially impacting the UK’s international reputation and causing constitutional disruption in devolved nations.

Sources of Law: The Comparative Context

• English law sources are statutes, common law, EU law, and the ECHR.
• Civil law systems differ, relying on legal codes and legislation.
• Courts in civil law systems refer to previous cases for consistency, but it is not a formal source of law.
• France is a civil law system with the main source of law being legislation.
• There is a hierarchical relationship between different types of legislation in France.
• French parliament can only enact laws which are in accordance with the constitution.
• There is a court (the Conseil Constitutionnel) which ensures that statutes are not contrary to the constitution.
• There is no formal hierarchy of laws in the English legal system.
• Under parliamentary sovereignty, statutes are the highest form of law (subject to EU law).
• Statutes must also be interpreted in accordance with the ECHR.
• France and the UK parliament have similar processes for passing statutes.
• A government bill (projet de loi) must be approved by both houses of the French parliament (the Assemblée Nationale and the Sénat).
• The President of the Republic must then promulgate the bill, and it must be published in the Official Journal.
• Legislation in the form of government regulations is the equivalent of secondary legislation in the English common law system.
• French law is codified, so that the whole of the law should be accessible within a single document, rather than piecemeal in different statutes or case law.
• There are a number of different codes in the French legal system, each dealing with different aspects of law.
• Codification is not a feature of common law systems in the same way.

Codification

• Codified laws are arguably easier to access and understand.
• Codification enhances certainty and consistency.
• Codes may not give a complete picture of the law.
• Codification arguably leads to law not being sufficiently amended and updated.
• Case law is not a formal source of law in France
• The role of judges in France is to interpret and apply the law, not to create it.
• French judges do make legal rules and may follow previous precedents if they choose to do so, and this adds to legal certainty.
• Some areas of law are based on decisions of the judges in courts, for example, administrative law.

The Impact of Further International Law

• Public international law governs relationships between countries.
• Private international law regulates private relationships across international borders (e.g., international sales).
• International law relates to the work of the UN.
• The UN makes laws in the form of treaties, for example, the Convention on the Rights of the Child and the Charter of the United Nations.
• International law is not directly a source of English law because England has a dualist system: international treaties must be incorporated into the UK’s legal system by legislation.
• Ratification of a treaty alone is not enough to give the treaty legal effect: the treaty must also be incorporated.
• English courts may consider treaties that have not been incorporated as an aid to assist with issues that are before them, for example, the interpretation of a statute.
• International treaties can indirectly have an influence on domestic law.
• In the French legal system, treaties that have been ratified by the French state have precedence over domestic statutes.

Law Reform

• Understanding law reform facilitates an understanding of how existing law is changed.
• Judges change legal rules and principles incrementally through the common law, but cannot constitutionally undertake wholesale reform of the law.
• Parliament can reform the law but this is often in a somewhat ad hoc manner, in response to political or media pressure.
• Ad hoc committees are set up to review certain aspects of the law.
• The Civil Justice Council advises on the development of the civil justice system.
• The Law Commission of England and Wales advises on law reform.
• The Commission’s statutory function is that It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform.
• The Commission keeps the law under review and recommends reforms.
• The Commission is independent of government.
• The Commission operates by drawing up programmes of law reform every three to four years.
• The Thirteenth Programme of Law Reform was published on 14 December 2017 includes projects on a diverse range of legal topics
• The Commission researches the current law and its perceived defects and carries out research into the law in other jurisdictions.
• A consultation paper with suggested solutions is issued for consultation among interested bodies.
• At the end of a law reform project, a final report with final recommendations for law reform is submitted to the Lord Chancellor.
• The Commission is only an advisory body; it cannot make the law, and the government does not have to implement the Commission’s recommendations for law reform.
• There is a Protocol agreed between the Law Commission and the government in 2010
• The government must then provide a response within a year.
• Under the Law Commission Act 2009, the Lord Chancellor must report to Parliament annually on the government’s progress on the implementation of reports.
• Examples of Legislation following from Law Commission reports include the Contracts (Rights of Third Parties) Act 1999, the Land Registration Act 2002 and parts of the Criminal Justice and Courts Act 2015.
• Many of the Commission’s reports are not implemented and do not become law which remains a criticism of the role of the Law Commission.
• In 2017, the then Lord Chief Justice, Lord Thomas, noted two issues of importance for the Law Commission in the future:
• Amendments to the law as a result of Brexit, which will require law reform on a considerable scale given the close integration of EU law into domestic law
• Changes to modern society resulting from digitisation, including social media and the internet, as well as concepts of ownership, of contract, of employment status and rights, of intellectual property rights, and consumer rights,.
• The Law Commission model has been replicated in countries around the world