Sources of English Law

• The source of a rule in English law is relevant in determining its significance and whether it takes precedence over another source.
• The three principal sources of law in the English common law system are: law made by Parliament, law decided in the courts, and the European Convention on Human Rights.

Parliament and Statutes

• In England and Wales, Parliament is the supreme law-making body consisting of the House of Commons and the House of Lords.
• A valid Act of Parliament is written law resulting from a process that starts with a draft 'Bill'.
• The government consults on proposed law changes by publishing a 'Green Paper' (tentative proposals) and a 'White Paper' (firm proposals).
• A bill becomes an Act after being debated, discussed, amended, and signed by the Queen (Royal Assent).
• Acts of Parliament take precedence over common law (case law).
• 'Primary legislation' refers to Acts of Parliament or statutes.
• 'Secondary legislation' (statutory instruments) contains detailed rules produced under the authority of an Act, with the force of law but less scrutiny.
• Devolution is the transfer of some powers to Scotland, Wales, and Northern Ireland.
• The Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998 established their respective legislative bodies.
• Each devolved legislature can pass laws in specified areas and is bound by much of the UK Westminster Parliament legislation.

Courts, Common Law and Judge-Made Law

• Common law is found in court decisions, complementing legal rules in Acts of Parliament.
• England and Wales operate under a common law system, where fundamental legal rules and principles are established by judges.
• Case law or 'legal precedents' set out relevant legal principles.
• English common law has roots in the 12th century.
• Sir William Blackstone (1723–1780) defined common law as derived from the records of courts, judicial decisions, and treatises handed down from ancient times.

European Union Law

• The European Union (EU) is an economic and political partnership among 27 European countries, originally aiming for economic cooperation.
• The EU is based on the rule of law, with laws based on democratically agreed treaties promoting human rights.
• The Treaty of Lisbon in 2009 consolidated fundamental rights in the EU's Charter of Fundamental Rights.
• The UK left the EU on 31 January 2020 under the European Union (Withdrawal Agreement) Act 2020.
• EU law remained a source of law in the UK until 31 December 2020.
• The European Union (Withdrawal) Act 2018 defined 'retained EU law,' which was EU law converted into domestic law as it existed on 31 December 2020.
• Domestic courts are no longer bound by EU law, but EU law and related judgments can be used to interpret retained law.
• The Retained EU Law (Revocation and Reform) Act 2023, receiving Royal Assent on 29 June 2023, significantly altered retained EU law.
• Around 600 pieces of specific EU law are planned to be repealed by the end of the year, with laws not listed automatically retained.
• The Act abolished the supremacy of EU law, renamed 'retained EU law' as 'assimilated law', and encourages courts to diverge from previous EU case law.

European Convention on Human Rights

• Fundamental rights and freedoms existed in English common law since the Magna Carta (1215).
• The 'negative theory of rights' allows citizens freedom unless specifically prohibited by clear, accessible, and non-retrospective laws.
• The common law has also constrained government powers, ensuring legality.
• The case of R v Lord Chancellor ex p Witham [1998] QB 575 illustrates human rights protection before the ECHR or HRA 1998.
• The High Court ruled that the Lord Chancellor exceeded statutory powers by increasing court fees, infringing on the constitutional right of access to courts.
• Since the Human Rights Act 1998, a wide range of fundamental rights and freedoms are positively protected, significantly impacting English law and legal process.
• Protection of human rights is fundamental to the rule of law.
• The European Convention on Human Rights (ECHR) is an international treaty drafted in 1950, effective in 1953, and signed by European nations in the Council of Europe.
• The Council of Europe and ECHR are separate from the EU.
• The UK is bound by the ECHR regardless of EU membership.
• 46 countries have signed up to the Convention, including many East European and former communist countries
• Russia left the Council of Europe in 2022.
• The ECHR was a reaction to the Second World War horrors
• The Human Rights Act 1998 directly incorporated the main ECHR provisions into English law.
• Individuals can bring proceedings in the European Court of Human Rights in Strasbourg, France, if the government breaches ECHR obligations.
• The Court was set up in 1959.
• The Court of Justice of the European Union (CJEU) in Luxembourg ensures EU law is interpreted and applied uniformly across the EU.
• The ECHR's purpose is to protect fundamental rights and freedoms.
• Articles 2 to 14 outline protected rights; protocols have been added to supplement the Convention.
• Some of the most important rights and freedoms protected under the ECHR 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), and right to free elections (Article 3 of Protocol 1).
• Some fundamental rights and freedoms are absolute and cannot be interfered with by the state; others are subject to 'derogation.'
• Absolute rights are provided for in Articles 2, 3, 4, 7 and 14.
• The European Court of Human Rights (ECHR) developed the 'margin of appreciation' doctrine to accommodate diverse cultural and legal traditions of the 46 member states.
• This allows member states discretion when acting on Convention rights, subject to supervision by the European Court of Human Rights.
• The doctrine allows the Court to consider different interpretations based on legal and cultural traditions.
• The margin of appreciation balances state sovereignty with Convention obligations.
• The principle of 'proportionality', is linked to the margin of appreciation, it judges state interference with human rights.
• State restrictions on rights must be necessary and proportionate.
• Measures affecting basic human rights must be: appropriate, necessary (least severe), and reasonable.
• Lord Justice Laws referred to proportionality as 'minimal interference' in his Hamlyn Lectures in 2013.
• In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, Lord Clyde articulated criteria for courts to assess legislative interference with fundamental rights.
• The questions that courts should ask when assessing legislative of rights are: legislative objective is important, measures are rationally connected; and means used impair the right no more than necessary.
• Before the Human Rights Act 1998, UK citizens had to exhaust domestic appeals before applying to the European Court of Human Rights.
• The Human Rights Act incorporated Convention rights into English law.
• The Human Rights Act gives Convention rights a central place in law while preserving parliamentary sovereignty.
• The Human Rights Act (unlike systems like Canada's) does not allow judges to invalidate incompatible legislation.
• Sections 3 and 4 of the Act work together.
• Section 3 mandates courts to interpret statutes compatibly with Convention rights.
• Senior courts can issue a 'declaration of incompatibility' if compliance is impossible.
• Only the Supreme Court, Court of Appeal, and High Court can make such declarations.
• A declaration of incompatibility does not force the government to change the law, but allows expedited action under section 10.
• Section 2 requires English courts to consider European Court of Human Rights decisions.
• Section 3 requires legislation to be read to give effect to Convention rights.
• Section 4 allows courts to issue a ‘declaration of incompatibility' when primary legislation conflicts with Convention rights.
• Section 6 makes it unlawful for public authorities to act incompatibly with the ECHR.
• Section 10 provides a fast-track procedure for remedial legislation after a declaration of incompatibility.
• Section 19 requires government ministers to declare a Bill's compatibility with Convention rights.

Changes to the Human Rights Act 1998?

• In December 2020, the Conservative government initiated an Independent Review of the Human Rights Act, focusing on the impact of the HRA on domestic courts/European Court of Human Rights and the judiciary/executive/legislature.
• The government stated commitment to remaining a signatory to the ECHR.
• The consultation period ended in March 2021, and the report was presented in October 2021.
• The Joint Committee on Human Rights found no need to change the Act due to its positive impact on enforcement and accessibility of rights.
• The Independent Review made minor recommendations and statutory recognition of case law and statues.
• The government proposed wider reforms, including replacing the Human Rights Act with a 'modern Bill of Rights'.
• The resulting Bill of Rights Bill was withdrawn in June 2023 amid controversy.
• Measures proposed included removing the duty on courts to interpret legislation compatibly with Convention rights, removing the duty on courts to consider how the European Court on Human Rights has interpreted a right and requiring the courts to give more weight to the views of parliament when balancing rights issues.

Sources of Law: Comparative Context

• The traditional sources of English law are statutes and common law, with the ECHR as a more recent source.
• English law sources are compared to those in civil law systems.
• Civil law systems rely on legal codes and legislation more than case law.
• Courts in civil law systems refer to previous decisions for consistency without binding precedent.
• In France, the main source of law is legislation (constitution, treaties, statutes, and government regulations).
• There is a hierarchy, where constitution is at the top.
• The Conseil Constitutionnel ensures statutes align with the constitution.
• Unlike France, the English legal system lacks a formal hierarchy of laws, and has parliamentary sovereignty.
• Statutes must also be interpreted consistent with the European Convention on Human Rights
• Parliamentary statutes in France are similar to the UK.
• A government bill (projet de loi) must be approved by 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.
• Government regulations are the equivalent of secondary legislation.
• French law is codified, aiming to have all law in a single document.
• The French legal system has various codes, such as the Civil Code, the Civil Procedure Code, and the Commercial Code.
• Codification Benefits: easier access, enhanced certainty and it has pitfalls such as code may not give the law's complete picture, and there could be slow amendments.
• Case law isn't a formal legal source in France
• Judges interpret and apply the law of judges.
• French judges make legal rules and may follow precedents.

The Impact of Further International Law

• Public international law governs relationships between states.
• It is distinct from private international law, which regulates private relationships across international borders.
• Much of public international law is related to the UN.
• Formed in 1945, it consists of 193 member states.
• The UN addresses peace, security, climate change, sustainable development, and human rights.
• The UN makes laws via treaties (agreements in writing between states), such as the Convention on the Rights of the Child and the Charter of the UN.
• Customary law and general principles of law are also additional sources of international law.
• International law isn't a direct source of English law.
• England operates under a 'dualist' system.
• International treaties must be expressly incorporated into the UK's legal system by legislation to have legal effect.
• Ratification of a treaty alone isn't sufficient for legal effect in English courts; incorporation is required e.g. The European convention on Human Rights was incorporated by the Human Rights Act 1998.
• Despite not having direct legal force, the English courts may consider unincorporated treaties for issues like statutory interpretation.
• In the French legal system, treaties ratified by the state take precedence over domestic statutes (under Article 55 of the French constitution).
• Courts can declare statutes inconsistent with a treaty and apply the treaty.

Law Reform

• Law reform facilitates understanding of how existing law changes.
• Judges change legal rules through common law.
• Judges cannot constitutionally undertake wholesale reform of the law.
• Parliament can reform the law but in an ad hoc way, in response to political or media pressure.
• The Woolf review of the civil justice system in 1996 and the Leggatt review of tribunals in 2001 are examples of law review.
• The Civil Justice Council advises the Lord Chancellor on developing the civil justice system.
• The Law Commission of England and Wales, established under the Law Commissions Act 1965, is the main body advising on law reform.
• Its statutory function is set out in s.3(1).
• The Commission's overall function is to keep the law under review.
• It makes recommendations for its reform to ensure it is fair, modern, simple and cost-effective.
• The Commission is independent of government, drawing up law reform programmes every three to four years (under section 3 of the Law Commissions Act 1965).
• Occasionally, government departments directly refer law reform projects.
• A modern framework for disposing of the dead
• Administrative review
• Automated vehicles
• Electronic signatures
• Employment law hearing structures
• Modernising trust law for a global Britain
• Registered land and chancel repair liability
• Residential leasehold
• Simplifying the immigration rules
• Smart contracts
• Surrogacy
• The Commission researches current law, consults, and issues consultation papers with suggested solutions.
• It submits a report with recommendations to the Lord Chancellor.
• The Commission is an advisory body that cannot make the law.
• the government doesn't have to implement recommendations. This causes an issue of the recommendations are reliant on implementation by Government.
• Following a 2010 protocol, the government must respond to the Commission's final report within a year.
• Under the Law Commission Act 2009, the Lord Chancellor must report annually to Parliament on the government's progress on report implementation.
• Legislation following from Law Commission reports is: Contracts (Rights of Third Parties) Act 1999, Land Registration Act 2002, parts of the Criminal Justice and Courts Act 2015.
• Some of the commissions reports are not implements.
• In a 2017 lecture, Lord Thomas noted Brexit and digitisation as Law Commission issues. The Law Commission model has been replicated in countries around the world including New Zealand, Australia, India and Hong Kong