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Sources of English law

1 Sources of law

(a) Common law

(b) Equity

(c) Statute (legislation) including delegated legislation

(d) European Union Law

2 Common law and equity

2.1 This is a system of law based upon decided cases. Legal rules (initially created by judges when hearing cases) are followed by judges in subsequent like cases.

It developed after the Norman Conquest.

2.2 Initially only common law rules were derived from cases. The aim of common law was certainty. However various problems within the common law system resulted in the development of another kind of case law called equity. Equity sought to address some of the problems contained in the common law system. Its aim is fairness.

2.3 Amongst the common law problems were inadequate remedies, a failure to recognise trusts and a reluctance to allow new causes of action to develop.

2.4 At first common law and equity operated as two distinct systems of law with their own independent court and judges. Given that equity is based on fairness however it was eventually decided that in the event of conflict between the two systems equity should prevail.

2.5 The two systems have now been merged together. In practice therefore, if you seek a remedy in the courts today, the court will look first to the common law. If the common law can deal with your problem adequately there will be no recourse to equity. If the common law is unable to deal adequately with the problem the court will look to equity.

2.6 Equity is therefore referred to as to a supplement to the common law.

2.7 The operation of equity is entirely discretionary whereas common law applies automatically.

2.8 Maxims:

'He who comes to equity must come with clean hands.'

'Equity does not suffer a wrong to be without a remedy.'

3 Statute (primary law)

3.1 Acts of Parliament:

Created by parliament. All new statutes should be compatible with HRA 98. Courts cannot strike out an Act of Parliament.

Procedure:

Green paper: Discussion document

White paper: Statement of policy

(a) First reading

No debate - Bill is introduced to the timetable of the house.

(b) Second reading

General debate and vote.

(c) Committee stage

Bill is scrutinized and amendments suggested.

(d) Report stage

Amendments reported back to the House.

(e) Third reading

Brief debate and vote.

(f) Same procedure in other House

(House of Lord's has power to amend and delay passage of Bill: Parliament Acts 1911-1949).

(g) Royal assent

Study point: Ensure you know what happens at each stage.

Overview

DELEGATED LEGISLATION

Delegated Types Controls Advantages Disadvantages

bodies

3.2 Delegated Legislation: (Secondary law)

Created by persons/bodies to whom parliament has delegated powers e.g. government ministers, local authorities, Inland Revenue and Customs and Excise. Delegation made possible by an 'Enabling' Act.

(a) Types:

—Orders in Council

— Bye?laws

—Statutory instruments

—Acts of devolved assemblies

(b) Controls:

– Parliamentary: House of Commons committee on statutory instruments

- Statutory instruments must be laid before parliament prior to enactment although some require positive parliamentary approval

- Judicial: Courts may declare them "ultra vires" (beyond capacity) (unlike Primary Acts). They must be compatible with HRA 98.

- Ministerial: bye-laws must be approved by a minister

(c) Advantages:

– saves time

–technical and local expertise

– allows for swift alterations in the law to keep pace with changing social and historical conditions

(d) Disadvantages:

 lack of democratic accountability

 attack on concept of parliamentary sovereignty

concentrates power in the hands of civil servants

 complexity and bulk

- can be attacked in courts which may lead to uncertainty.

Study point: Revisit this area having noted the impact of HRA 98 in Chapter 4.

4 European community law

Overview

European community Law

Institutions Legislation

4.1 Forms part of UK law by virtue of European Communities Act 1972

Institutions of the Union:

(a) European Court of Justice

ECJ is the final authority on community law.

(b) Council of Ministers

The Council is made up of ministers from Members States.

The Council together with the Parliament is responsible for the adoption of legislation proposed by the commission.

(c) The Commission

Made up of commissioners from Member States. They propose draft legislation. Also ensure treaty obligations observed can refer cases to ECJ.

(d) The European Parliament

Made up of directly elected members. It is an advisory and debating body which with the Council of Ministers bring law into effect.

Study point: Ensure you can succinctly describe the function of each institution.

4.2 Direct applicability and direct effect

Community law which is directly applicable in member states comes into force without any act of implementation by members states.

Law has direct effect if it confers rights and obligations directly on individuals.

4.3 Types of European Law

Primary Law: that contained in the Treaties.

Secondary Law:

(a) Regulations (directly applicable)

These are binding and enforceable from the time of their creation. Seek to give effect to Treaty aims. Take effect uniformly through out the EU.

Failure to implement a directive within the specified time period, or failure to implement it completely may allow individuals to rely on the directive even though it is not implemented through national legislation. Such action can only be taken against the state or emanation of the state.

(b) Directives (not directly applicable)

Statements of principles which seek to harmonise EU laws, but left to member states to alter national law so as to achieve these aims within a specified period.

(c) Decisions (binding only on recipient states and individuals to whom they are addressed). These are decisions relating to the operation of E.U. laws and policies.

4.4 Impact on Parliamentary Sovereignty?

(a) Parliamentary sovereignty

(i) Parliament is the prime law maker. It can overrule all other sources of law including previous statutes.

(ii) Parliament cannot restrict a future parliaments’ ability to change the law.

(iii) The courts must apply statute even if they think the law operates unfairly.

(b) Conflict between Parliamentary Sovereignty and membership of the EU

(i) A directive may require Parliament to change the law.

(ii) A regulation may be passed which conflicts with an existing Act of Parliament.

(c) Points to bear in mind

(i) The UK is fully represented in all the EU’s institutions.

(ii) UK ministers sit on all council meetings and vote on all proposed law.

(iii) Ultimately, Parliament could repeal the ECA 1972. END OF CHAPTER