Sources of Law in England and Wales

Jul 2, 2018
folder_opencategory: Law

Introduction

England and Wales have a total of four sources of law that can be followed by the legal system in settling disputes within these countries. The four sources are statute law, the common law, European Union law and the European Convention on Human Rights. Common law relates to the customs and the way of life of the residents of the respective countries. Statutory law are regulations created by Members of Parliament and are applied to all citizens equally. The remaining two sources, that is, European Union law and the European Convention on Human Rights, are laws that are adapted from external organization but are equally important in their application in the countries. The paper will give a description and analysis of the four sources of law in England and Wales

Internal Sources of Law

Common Law

Common law is one of the most important sources of law in the two countries. The rulings of the courts are based on previous court judgements instead of the statutory laws. The ruling or decision made with respect to a particular case provides the foundation for arriving at future rulings. The presiding judges are mandated to depend on the rulings pronounced by their predecessors when making a ruling and are not required to rely on any other information such as readings. The judge presiding over a case that has the same facts as a case that had been previously decided is mandated to make his decisions on the basis of the previous court records that comprise the judgements of previous court cases. The judges of common law are mandated to stick to previously resolved cases in which the particulars of the cases are significantly comparable. The judgements made by a court are binding authority for comparable situations being handled by a similar court or courts of less status that are located within a similar region. Higher courts are, however, not bound by the same verdicts whether they are within the same jurisdiction or in other jurisdictions (Cannizzaro, Palchetti & Wessel, 2012).

Since common law judges handle cases concerning daily circumstances as they transpire, alterations within the society, discoveries, and creations make it mandatory for the presiding judges to consider other sources beyond those recorded within the records for assistance in a case that has never been determined. The rules permit a judge to seek assistance in a different jurisdiction or to consult previous or current court experience in order to arrive at a conclusion. The freedom enables the judges to effectively handle alterations that were not foreseen. Instantaneously, stare decisis offers confidentiality, consistency, and expectedness, thereby enabling the legal environment to be fairly stable. The resolution of disputes in the common law structure requires the parties involved to argue their cases by presenting proof. The particulars are presented before a mediator who is typically a judge or a jury, who then assesses the proof presented, provokes the relevant regulations, and then issues a decision upholding the position of one of the sides. The party that loses the case has the freedom to launch an appeal with a higher court. Irrespective of an individual’s position in the society, the common law applies equally to all persons.

Statute Law

Statutory law is the form of law that is recorded and codified into law. The law starts as Bills, which are either public or private. Public Bills tend to have an influence upon all the citizens of the respective countries, while Private Bills typically provide restricted power to the public organization, for example, local municipalities, or impact just particular sectors of the community. Prior to a Bill transforming into law, it has to pass through certain steps.

Firstly, a Bill is inspected and enhanced prior to the creation of an ultimate draft. It then goes through the first reading followed by a second reading, after which its specifics are discussed. Modifications to the Bill may be made at the Committee stage while it is in the House of Commons and at the House of Lords. Additional alterations may be made upon the Bill reaching the Report Stage. Final modifications are made during the third reading before it reaches the subsequent House allowing for the making of the final changes. Upon passing through all the stages, the Bill gets the Royal Assent, following which it turns into a law (Horspool & Humphreys, 2012).

Even though particular regulations are codified through the statutory law, the constant progress and variability of case law permits the presiding judges to understand the legislative law. Since judges are not mandated to follow their predecessors, these laws are prone to constant modifications. There are particular circumstances that would necessitate Parliament to make modifications to enacted laws, for instance, the Criminal Justice and Public Order Act 1994 in reaction to the snowballing amounts of enormous parties that were being conducted in various parts of the nations.

Common Law and Statute Law

Even though the common law forms the foundation for the legal system in both countries, the implication is not that common laws are superior. The two laws supplement each other properly, for instance, common law updates statute law about current situations in addition to generating a precedent.

External Sources of Law

European Convention on Human Rights

Another source of law for the two nations is the European Convention on Human Rights. The laws that were created in 1950 are a mandatory global accord that England and Wales have adopted more than 50 years ago. However, the provisions of the ECHR were not applied in full as a source of law. Following the implementation of the Human Rights Act in 2000, the freedoms and basic rights contained in the ECHR became executable in the courts. The Act has three provisions. Firstly, it necessitates that the interpretation of implementation of the law should be in accordance with the requirements of the Act. In the case of incompatibility, domestic laws cease to apply. Secondly, the Act forbids a public authority to perform incompatibility with the provisions of the Act necessitating for such a situation to be taken to court. Lastly, all the legal systems such as courts in the respective nations have to consider the provisions of the Act in cases that they handle. The implication is that the legal system of the country has to ensure there is compatibility (Kortmann, Fleuren & Voermans, 2006).

European Union Law

The last source of law in the legal system of England and Wales is the European Union Law. The two countries became a part of the Union following the decision by the United Kingdom to sign up in 1973. By the time the United Kingdom decided to join the Union, it had already been in existence starting from 1957 after six countries had signed to become members by signing the Treaty of Rome. Come 1972, the United Kingdom also became a member state by signing the Treaty of Rome on an occasion conducted in Brussels. Subsequently, European Law was included into the law of England and Wales by the European Union Act 1972 (Slorach& Oxford University Press, 2013).

The implication of the signing is that the European law needed to be recognized as authentic and an obligatory source of law for the United Kingdom. In the case of incompatibility between the Union law and the domestic law, the former would prevail. This limited the independence of Parliament. Following the identification of the situation of a violation of Union law by the statutory law, modifications to the English and Wales laws were affected by Acts of Parliament. The challenge presented to the independence of the Parliament of the two governments was initially restricted by the simple range of the European Union. Nevertheless, progressively following 1986, the members modified themselves into the current Union that possesses examples of the features of an independent administration and is indeed not just a global accord. The transformation was particularly gesticulated by the Treaty on European Union that is frequently mentioned as the Maastricht Treaty, and is engaged by over 15 countries. Currently, the Union controls several aspects of the lives of individuals in Europe, for instance, agriculture, carriage, and freedoms of employees (Wilson, 2011).

Conclusion

There are several sources of law for the legal systems of England and Wales such as common law, legislative law, European Union Law, and the European Convention on Human Rights. Despite having more than four sources of law, the most important one was created through Acts of Parliament, and these laws are superior to precedents made by common law judges. With the adoption of the adoption of European Union as well as European Convention on Human Rights laws, the Parliaments of the two countries have lost their autonomy and are now under the control of the external laws that determine the enactment of important legislations in the countries.

References

Cannizzaro, E., Palchetti, P., & Wessel, R. A. (2012).International law as law of the European Union. Leiden: Martinus Nijhoff Publishers.

Horspool, M., & Humphreys, M. (2012).European Union law. Oxford [u.a.: Oxford Univ. Press.

Kortmann, C. A. J. M., Fleuren, J. W. A., & Voermans, W. J. M. (2006).Constitutional law of 10 EU member states: The 2004 enlargement. Deventer: Kluwer BV.

Slorach, J. S., & Oxford University Press. (2013).Legal systems & skills. Oxford: Oxford University Press.

Wilson, S. (2011).English legal system directions. Oxford: University Press

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