Sources of Law • Katarzyna Gromek Broc • York University • York Law School
Sources of Law • Sources: ways by which the law comes into existence • English law comes from variety of sources although their importance varies
Sources • - Common Law (case law) • - Equity • - Custom • - Legislation • A) primary • B) secondary, delegated legislation • - Statutory interpretation • -International Law (Treaties, EU law)
Who makes law? • Four principal law makers in the UK • - the Courts • - the Parliament • - EU • -Council of Europe
Sources of Law • General Overview • Case Law: judge-made law lay down rules to be followed in future court decisions: a predominant source of law • However Primary Legislation (Act of Parliament, Statutes) prevails over common law
Sources Overview • Primary Legislation(Act of Parliament) interacts and contributes to the development of common law: courts while interpreting the Acts, and such decisions lay down new precedence
Sources of Law • Delegated legislation is made by administration rather than legislation and is concerned with the detailed rules to implement Act of Parliament • Note: increasing importance of EU law due to supremacy of EU Law
Sources of law • Common Law
Common Law • Historically primary source of law (unwritten, then recorded) • Common law of the King and the nobility recorded e.g. by Bracton • Developed into the system of precedent
Common Law • Curia Regis (King’s Court) travelling King’s Court, listening to the customs of different lands, resolving disputes, writing down decisions: beginning of Common Law) 1250
Common Law • - Establishment of the system of collection of the decisions of higher courts; • - Publication of reports of cases in the higher courts.
Defining Common Law • “common law was seen to represent a rational ordering of the rules governing human behaviour and it was the claim of a developing class of lawyers to provide a seamless web of regulation. All of these factors contributed to the ability of the common law to withstand the threat of codification and to provide an effective resistance to the incursion of piecemeal legislation” (Goodrich, Reading the Law 1986, 42).
Common Law • When should judges make law? • -judges should adapt the law to the changing conditions in society • -filling the gap left by statutes • -protecting individual rights -giving meaning to parliamentary intention (respecting the parliamentary opinion)
Advantages of Common Law • Certainty: like cases will be treated alike • Practical: adapted to the real situations • Case law developing in line with the market needs • Flexible adapted to changes in society
Disadvantages of common law 1. Complexity and Volume (long cases, judges discussion not explicit, a crux of the decision buried in irrelevant material) 2. Rigid ( the judges need to follow even bad decisions of higher courts) 3. Depending on chance (precedent created only in response to those who brought the claim)
Disadvantages of common law • 4. Illogical (the fact of the case must be significantly different, unclear, creating the precedence in similar cases); • 5. Unsystematic progression (no comprehensive code, ad hoc development depending on cases) • 6. Not based on scholarly findings (research) • 7. lack of accountability of the judges
Disadvantages of common law • 8. Retrospective effect ( unlike the legislation can apply to the events before the case reached the Court)
Sources of Law Equity • - Equity means fairness • - Inspired by ideas of fairness and natural justice • - emerged as response to the rigidity of common law (now part of it)
Equity • Common Law only remedy: damages • Equity remedies: injunctions, specific performance, rescissions, rectifications: intention of the parties) • Petitions to the King (15th century delegated to Lord High Chancellor) • Creation a separate court: court of chancery (now Chancery Division of the High Court) • The Judicature Acts 1873-75: one system
Equity • Although the same courts today, the separate rules remain • conflict between equity and common law, equity prevails
Equity • Equity maxims: • “Equity is equality” • “Equity will not suffer a wrong without remedy” • Who comes to equity must come with clean hands” • “Who seeks equity must do equity”
Sources: Legislation • ‘Queen in Parliament’ (Dicey) • Legislation superior to common law • Most recent enactment is the law • Statutes superior to secondary legislation
Legislation • Non-intervention of legislation - a law job? • provide the legal framework as a guide for action • recourse to the law –a last resort • law works outside the courts but in the shadow of the courts. • Existence of courts (even as a last resort) influences the functioning of the law. • How does the court process fit in with the legal process and the court structure? • Inter-relationship of the court ‘hierarchy’ and our system of judicial law-making
Legislation • who makes it? • Queen in the Parliament is the official name for the legislature (or King). • The legislature consists of: • the Monarch (King or Queen) • the House of Lords (peers: Lords Spiritual, Lords Temporal) (about 750) • the House of Commons (elected Members of Parliament, MPs) (646)
UK Parliament House of Commons House of Lords
Legislation • Primary legislation (Act of Parliament) • Secondary legislation (rules made by administration not by legislature on implementation of the Acts)
Act of Parliament • Public (incl. Private Member’s Bills) or Private • The Whitehall stage (public bills) • Consultation • Green Paper • White Paper • Drafting
Parliament Act • The Westminster stage • Parliamentary Time • Westminster, usually House of Commons: • First reading (formal, no debate) • Second Reading (policy & debate) • Committee - scrutiny • Report stage • Third Reading (formality, no changes) • House of Lords (n.b. Parliament Act 1911) • Royal Assent
Act of Parliament • 1. THE WHITEHALL STAGE • Once a competent department has decided to ask Parliament to enact a Bill, the department will start a consultation process (Green Paper) with all the concerned parties. To which extent and the time this process will take, differ with the complexity, urgency and importance of the matter.
Act of Parliament • 2. Drafting • When the department in question has decided to pass on the process, the provisions are sent to the civil servants called Parliamentary Counsel. These civil servants are lawyers who are specialized in drafting techniques. Once the drafting stage is ended, the bill is ready to be presented to the Parliament (White Paper).
Act of Parliament • 3. The Westminster Stage (HOUSE OF COMMONS) • A Bill has to be accepted by the Future Business committee in order to be given time in Parliament. In this cabinet committee the responsible of the cabinet decides which Bill will be presented before the Parliament in the next session. • It is important to point out that all the Bills must be passed by both the House of Commons • and the House of Lords.
Act of Parliament • 3. Westminster Stage (continues) • They are able to start in either of the Houses, but most of the Bills • start in the Commons. The process in each of the Houses consists of the following five • stages
Act of Parliament • 4. First Reading • The first reading is a formal stage, this is when the House orders the Bill to be printed. In this stage, it is likely that there won’t be any debate on the content of the Bill.
Act of Parliament • 5. Second Reading • During the second reading, there is a first possibility to hold a debate. Less important Bills • and Bills that contain wholly uncontroversial measures can receive their second reading ‘on • the nod’, which means devoid of any debate at all. The minister responsible sets out the • main policy objectives. The opposing parties then have the chance to set out their reservations.
Act of Parliament • 5. Second reading (continues) • And finally the other Members of the Parliament (named the backbenchers) • can comment. When the debate ends, there is a summing up by a government minister. • Most of the time, it is exceptional that the bill is voted or defeated at this stage. In the case where a vote takes place because of the conflicting opinions, the Bill can go no further if the vote is lost.
Act of Parliament • 6. Committee Stage • The detailed analysis of a Bill takes place in a Standing Committee. • The Committee has the task to analyze the Bill clause by clause and they can amend it where • it seems it could be improved, so that the Bill turns into an acceptable shape. The • This Committee is composed of the senior MP’s • .
Act of Parliament • An alternative procedure is to inspect the Bill in a Committee of the Whole House (also known as keeping the Bill ‘on the floor’), with all the members of the House that adopt the committee procedure. This procedure is used for example for constitutional measures. A mixture of both procedures is also possible, for example you can consider to bring one part of the Bill before the Committee of the Whole House and to bring the rest to the Standing • Committee.
Act of Parliament • 7. Report Stage (CONSIDERATION STAGE) • In this stage the Bills which have been changed in the Committee stage, are reported to the main House. The House has the opportunity to, on the one hand, reject the changes made in the Committee or, on the other hand, make new amendments.
Act of Parliament • 7. Report Stage (continues) • The advantage of this stage is that all the MP’s can debate on eventual amendments. Often this is the moment at which • the government tries to introduce new amendments. This stage is very criticized upon because, when the government uses its right to make significant changes to a Bill, this is done in a late stage in the process of enacting the Bill.
Act of Parliament • 8. Third reading • Finally, the third reading is again a more formal stage. In this stage they bring together all • the components of the Bill. At that time the bill is ready to be referred to the House of Lords, • and when that happens it is no longer possible to change anything to the content of the Bill. Usually a brief discussion takes place, where the MP’s who have been most active during the legislative-process, look back on the work which they have contributed in the Committee Stage.
Act of Parliament • 9. The process in the House of Lords • The process of law-making of a Bill can start in the House of Lords or can start in the House • of Commons to be referred later to the House of Lords. In the House of Lords it goes through • the same five stages as in the House of Commons (see the procedure described above) but • in the House of Lords the Bill is kept ‘on the floor’ in all but some exceptional cases. In addition, in the House of Lords, changes can be made at the Third reading stage. There is also less government control in the House of Lords in contrast to the House of Commons.
Act of Parliament • 10. The Royal Assent • This is the last stage of the whole process a Bill undergoes. The Royal Assent is the stage • wherein the Queen signs the Act of Parliament. In other words, this is a formal stage that has • to be accomplished. The Royal Assent makes the Bill turn into an Act. There are two ways a • Bill can come into force, instantly or at a future stage as stipulated in the Act. In practice it • usually contains a ‘commencement clause’, which stipulates the inlet of the Act.
Sources of Law: Delegated legislation • Delegated (secondary legislation) Parliament gives power to local authority or local government to make law. • Usually to elaborate a detailed framework to implement an Act of Parliament
Sources of Law: Delegated Legislation • Making delegated legislation • - Statutory instruments • - Byelaws • -Orders of the Council
Sources: Delegated Legislation • Statutory Instruments: • Parliament confers the power to make statutory instrument to a governmental department or Minister. They will draft a statutory instrument to implement the requirements to enable Act
Delegated legislation • Byelaws • Made by local authority or other public body e.g. British Rail. They regulate a certain behaviour under their control • E.g. Regional Council passed a byelaw to fine people who do not clean up after their dogs.
Delegated Legislation • Orders of Council • Differently known as Order of the Legislative Committee of the Privy Council: another form of SI but reserved for the most important pieces of secondary legislation
Delegated legislation: advantages • Speed: discharging Parliament, ensure fast and effective implementation • More adaptable to local needs: local Council • More flexible: easier changeable • Parliamentary supervision: affirmative/negative resolution • Judicial control: subjected to judicial review (ultra virus, exceeded power, procedural or substantive, then void)
Sources of Law: Statutory Interpretation • Although Acts of Parliament are carefully drafted: Implications of a statute are often unclear • Number of factors have been identified that could cause uncertainty • 1) some words may be left out: ‘and/or’: should the words be automatically implied? • 2) Broad terms are used (ban of vehicles in the park) The court needs to decide of bikes, skateboards are also banned. • 3) Ambiguous words used: inadequate wording because of a printing, drafting or other error • 4) the events of the case brought before the court where not foreseen when the legislation was drafted