Every nation has it is own law and legal system. In order to discuss the source of law, this is to be stated that law is not developed overnight but it is a long process (Parliament.uk, 2018). Law of every nation belongs to some sources where from the same gets it is identification and validity. Similar to any other nation or states, the laws of England and Wales also have many of the internal as well as external sources by the help of which the same came into it is present form. In the presented essay, the discussion will be focused on various sources of law of England and Wales legal system.
Firstly, to discuss the internal sources of law of England and Wales, this is to mention that these are the sources that are related to the UK. On the other side, external sources of law are those, which consist outside elements such as international law. Moving towards internal sources of law of England and Wales legal system, this is to state that there are mainly four sources from which the subjective law has been derived.
These four sources are namely, statue law, the common law, European Union Law and European Convention on Human Rights. Starting from a very first source that is Statue law, this is to inform that statue law is also known as legislation. The most significant piece of legislation is acts of parliament (Inbrief.co.uk, 2018). For both England as well as Wales, the UK parliament has the power to pass laws. This parliament is based in London. Legislation pass by this parliament is applicable to England and Wales and therefore becomes an important source of law in the country of England and Wales. Legislations are the written law that gets approval from parliament (Halberstam and Reimann, 2013).
In England and Wales, there were many legislations passed by UK parliament that the courts of these countries were used to referred while granting decisions in the cases. The sovereign body of parliament includes queen and two houses such as the House of Commons and House of Lords (Cilex.org.uk, 2018). These houses pass a legislation that applies to the England and Wales. The assent of the queen is required to develop a bill into legislation. Judges often look up to the rules of these legislations in order to provide justice to victim parties.
It would not be wrongful to state that this is a very important source of law that is helpful in the legal system of these two countries. However, in England, the judges have powers to make interpretation of legislation and to apply the same accordingly to various cases by using extrinsic and intrinsic aids. When it comes to the discussion of statues as sources of law, this is to conclude that judges are very much depended on the same and one cannot imagine a law of any nation without the existence and reference of statues.
The other primary sources of law in these two countries are common law (Loc.gov, 2018). Common law can be understood as customs and practices of a nation. The common law works on the principle of an idol situation and refers to the historical origin of certain rules. In those cases where an act is missing, judges provide a decision based on common law. Common law and equity are closely connected. In England and Wales, modern
law is not statutory in nature and judges makes interpretation of the legislation. It provides that judges modify the acts according to the nature of cases and use them as an equity principle and therefore the common law is a very significant source of laws in England and Wales. English law is way much dependent on common law. In English law, there was no major codification of law. In fact, the judges were and are used to apply the decisions given by judges in earlier cases as a reference in current cases. Legal precedents are part of common law in this way. Where one side, common law consists the old practices, similarly on another side, legal precedents means the decisions of old cases.
Many of the times, judges use these legal precedents and common law practice to provide justice to innocent parties and hence the common law can be understood as an important source of the English legal system (Gurnani, 2015). In conjunction with this, this is to inform that the courts of Wales and England are headed by the senior courts such as a high court of justice (in the matters of civil cases), the Crown Court (in the matters of criminal cases) and the court of appeal. The Supreme Court is there over and above all these courts and therefore the decision of this court is binding on the decisions of every court that have been mentioned earlier. Lower courts often look up to the decision of the supreme court while dealing with many of the cases. This also reflects the use of common law and precedents in the development of the English legal system.
The statues and common law are also connected with each other. Common law is historical and therefore while making any new law (statue) in the nation, authorities often consider the common law (Gov.uk, 2018). This can also be written as that common law provides the basis of statues and hence in this manner, common law is the most significant source of English law that cannot be ignored to discuss.
In addition to common law and statues, European Union Law is the third important source of English Law. It is well known that the UK became a member of the European Community in the year 1973 (Liddle, 2014). European Communities Act 1972 is the act by which the European Laws has been incorporated in UK Law. This act recognizes that Law of EU can be directly applicable. Further, it also makes the government of UK enable to make a legislation to implement EU Law in the boundaries of UK. In addition to this, the act requires UK courts to apply the EU Law according to the principles stated by the Court of Justice.
Being a member of the European Union, UK has to follow some of the rules, regulation, and law of EU and in this way, the law of European Union became the source of English law. Many treaties are there under EU Law that is applicable to it is every member including all countries of UK. Being a member country, UK has to comply with the legislation of EU Union. This is to be stated that law does not only include legislations but also includes regulations and directives. Every member of EU is bind to follow the directives and norms issues by EU. Directives provide some result that every member country needs to achieve. In conjunction to this, the court of justice of European Unions states that decision of this court will supersede all the legislation and therefore it is correct to say that .
EU Law has great influence on the legal system of England and Wales. In order to further discuss this source of English law, this is to say that on 29.03.2017, the Prime Minister of UK has served the intention of UK to leave EU Community pursuant to Article 50 of the Treaty on European Union (Economictimes.indiatimes.com, 2018). If no extension or agreement would be there in the next two years, then on 29.03.2019, UK automatically will no longer remain a part of EU. After that, all the treaties and agreement of UK with EU will be canceled and UK will not be bind to follow any EU Laws. The situation can be different afterward. Many relationship models such as Norway Model, Swiss Model, Turkish Model and so on are there that decide the relationship of EU and third countries and therefore the UK would be able to choose any one model out of them.
Moving towards the forth main source of English law, this is to inform that the same is The European Convention on Human Rights. In the year 1951, UK became a signatory of the ECHR (The European Convention on Human Rights). Till 1965, the UK government has not given any right to it is a citizen to make a petition in EU courts of human rights to exercise their rights under ECHR. Afterward, with the enactment of The Human Rights Act 1998, ECHR becomes a significant part of English Law. Here the role of the Human Rights Act 1998 (hereinafter referred as HRA98) can be understood so important as a cause of the same, ECHR became a source of English Law.
The enactment of this act enabled the UK citizen to apply before domestic courts in case of breach of their human rights. However, the act introduced the ECHR in a weak mode in English Law. This can be proved by the fact that this act did not allow courts to held the legislation invalid if it stops or infringes the provisions of ECHR. ECHR became a part and source of English Law in this manner, however, some of the provisions are there that are not absolute in nature and state can limit the exercise of the same in some of the matters.
These matters are specifically related to article 8, 9, 10 and 11. All signatories of the ECHR, as well as the United Kingdom, are afforded a margin of appreciation by the EU Court of right, that provides the state a degree of latitude that how to protect restricted and limited rights mentioned in the ECHR. States are free to derogate some of the freedoms and rights contained in ECHR, nevertheless, according to Article 15, such derogation is only allowed in the cases of war and emergency.
After the aforementioned reading, this is far clear that English Law has mainly four sources. These sources included external as well as internal sources. Where Statues and Common Law is an internal source, on the different side, European Union Law and European Convention on Human Rights can be counted as an external source of English law. All the discussed sources are major but are not complete. These sources are also connected with each other. Common law does not only provide the basis for English law but also provides a foundation of statues law. Common law is the most significant source of English law that also has an influence in the development of status. In a similar manner, the rest of the two sources i.e. European Union Law and ECHR are connected with each other as both have derived from Europe. These are the external sources which are applicable to England and Wales as UK has become the member of EU and signed the ECHR.
It means in addition to mentioned four sources, some other sources are also there that is mentioned in below discussion. The other source of English law is international law. UK has signed many of the international treaties that put an impact on the laws of UK (England and Wales). Lord Dennig stated in the decision given in the case of Blackburn v Attorney-General [1971] 2 All ER 1380, that court does not take notice of any treaty until they are embroiled in the legislation developed by parliament (Rab, 2018). At the present UK is a signatory of around 14000 different agreements and treaties that includes both bilateral and multilateral treaty (Stateofwales.com, 2015).
Businesses are being global and therefore the law of a country gets affected by the law of different nations. Whenever a case comes to a court where parties of a different nation be a party then judges have to consider the international laws. International law can take precedence over domestic law subject to the interference of national parliament. When it comes to discussing the international sources of English law, international treaties play a very significant role.
Equity has already been discussed with the common law. Equity provides the basis of justice. In English Law, judges provide a decision based on the equity. What is justifiable? Judges think about this and then provide decisions in the cases. In this manner, it becomes a practice of judges to think about the welfare of victim party in addition to consider the legislation. In civil as well as criminal legal system, the discussed sources are useful.
While making a critical analysis of all the mentioned sources, this is to be stated that the scope of external sources is limited. Although judges are bind to follow them, however, the lead equity and common law are very significant one and at last, these two are the basis of every judgment. In many of the decision of the cases, Judges settled the case based on equity and legal precedents. International Law also has it is influence to English legal system but they need to be a part of statues approved by parliament.
In this manner these two sources i.e. international law and statues are connected. To conclude the discussion, this is to be stated that in addition to four main sources, international treaties and laws also have a significant influence in the development of the English legal system. Some of these sources are connected with each other. Common Law is the most ancient and important source that include legal precedents and principles of equity, however each source it is a unique feature and importance.
Blackburn v Attorney-General [1971] 2 All ER 1380
Cilex.org.uk. (2018) The Legal System of the United Kingdom. [online] Available from: https://www.cilex.org.uk/about_cilex/about-cilex-lawyers/what-cilex-lawyers-do/the-uk-legal-system [Accessed on 08/11/2018]
Economictimes.indiatimes.com. (2018) UK to exit EU on Mar 29, 2019 at 11 pm: Theresa May. [online] Available from: https://economictimes.indiatimes.com/news/international/world-news/uk-to-exit-eu-on-mar-29-2019-at-11-pm-theresa-may/articleshow/61594744.cms [Accessed on 08/11/2018]
European Communities Act 1972
European Communities Act 1972
Gov.uk. (2018) Making the law easier for users: the role of statutes. [online] Available from: https://www.gov.uk/government/speeches/making-the-law-easier-for-users-the-role-of-statutes–2 [Accessed on 08/11/2018]
Gurnani, N. (2015) Precedents as a source of law. [online] Available from: https://www.lawctopus.com/academike/precedents-as-a-source-of-law/ [Accessed on 08/11/2018]
Halberstam, D. and Reimann, M. (2013) Federalism and Legal Unification: A Comparative Empirical Investigation of Twenty Systems. USA: Springer Science & Business Media.
Human Rights Act 1998
Inbrief.co.uk. (2018) English Law: An introduction. [online] Available from: https://www.inbrief.co.uk/legal-system/english-law/ [Accessed on 08/11/2018]
Liddle, R. (2014) The Europe Dilemma: Britain and the Drama of EU Integration. New York: I.B.Tauris.
Loc.gov. (2018) Legal Research Guide: United Kingdom. [online] Available from: https://www.loc.gov/law/help/legal-research-guide/uk.php [Accessed on 08/11/2018]
Parliament.uk. (2018) How are laws made? [online] Available from: https://www.parliament.uk/education/about-your-parliament/how-laws-are-made/ [Accessed on 08/11/2018]
Rab, S. (2018) Legal systems in UK (England and Wales): overview. [online] Available from: https://uk.practicallaw.thomsonreuters.com/5-636-2498?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1 [Accessed on 08/11/2018]
Stateofwales.com. (2015) Wales & The World VIII: Treaties & Agreements. [online] Available from: https://stateofwales.com/2015/08/wales-the-world-viii-treaties-agreements/ [Accessed on 08/11/2018]
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