Sources of Law

How Studying Sources of Law Benefits Students

Exploring the sources of law empowers you to:

• Grasp the complexity and structure of the UK legal system
• Enhance your legal research and analysis skills
• Comprehend how laws evolve and adapt to changing social and political circumstances
• Interpret legal rules and principles more effectively
• Develop strong critical-thinking and problem-solving abilities

Sources of Law Meaning: A Comprehensive Overview

Sources of law refer to the specific origins from which the law is derived and developed. In the UK, there are several key sources of law that govern the legal system. To comprehensively understand the meaning of sources of law, it is important to explore the various types of legal systems that exist. This will unveil the differences in how laws are formed, allowing one to appreciate the diversity among legal systems.

Breaking Down the Different Types of Legal Systems

The UK legal system is primarily made up of four distinct types of legal systems: English law, Scots law, Northern Ireland law, and European Union (EU) law. Each type has its own distinct sources of law, which can be broken down into the following categories:

Each of these legal systems consists of both primary and secondary sources of law. Primary sources include statutes and case law, which have direct legal authority, while secondary sources – like textbooks and academic articles – offer additional context and interpretation for the primary sources.

In-Depth Analysis of the UK's Primary Sources of Law

Legislation is one of the most important sources of law in the United Kingdom and plays a significant role in shaping the legal landscape. It refers to laws that are formally enacted and enforced by the Parliament, usually as Acts of Parliament. These Acts often serve as the primary basis for a vast array of regulations, statutory instruments, and other secondary legislations, which collectively contribute to the overall legal framework.

The Process Involved in Creating New Laws

Creating new laws, i.e., passing legislation, involves a complex and lengthy process within the Parliament, designed to ensure appropriate scrutiny, debate, and transparency. The process can be generally summarised into the following key steps:

1. Introduction: A Member of Parliament (MP) or a Lord introduces a draft bill (i.e., a proposed law) in the relevant House (either the House of Commons or the House of Lords).
2. First Reading: The draft bill is introduced and read aloud in the chamber by its sponsor. The primary purpose of this stage is to provide a broad overview of the bill's main objectives, without going into extreme detail.
3. Second Reading: This stage involves a more in-depth discussion and debate on the general principles and purposes of the bill. Members of the respective House express their views and raise concerns or amendments. Following the debate, a vote is held to determine whether the draft bill should progress to the next stage.
4. Committee Stage: During this stage, the bill is referred to a committee made up of a representative sample of MPs or Lords, who scrutinise and consider every clause in detail. Amendments to the bill may be suggested and debated, and further evidence can be gathered. Once the committee completes its work, a report is presented back to the relevant chamber.
5. Report Stage: The bill returns to the chamber where further amendments can be proposed, debated, and voted on.
6. Third Reading: This is the final opportunity for Members to debate the bill in its amended form. After the debate, another vote is held to decide whether the bill should proceed to the other House (e.g., from Commons to Lords).
7. Consideration in the other House: The process in the second House mirrors the stages already undertaken. However, if any additional amendments are made, the bill must return to the originating House for consideration.
8. Royal Assent: Once both Houses agree on the final version of the bill, it is presented to the monarch for their formal approval, known as Royal Assent. Upon receiving Royal Assent, the bill officially becomes an Act of Parliament and a part of UK law.

The Role of Common Law in the UK Legal System

Common law is another vital source of law in the United Kingdom, particularly in England and Wales as well as Northern Ireland. It refers to the body of unwritten law developed through centuries of judicial decisions, rooted in the principle of stare decisis, or "stand by what has been decided." Common law is constantly evolving and adapting to accommodate new social, economic, and political realities, covering areas where no specific legislation has been enacted.

The Impact of Judicial Precedent on Court Decisions

At the heart of common law lies the doctrine of judicial precedent, which dictates that previous court decisions, especially those of higher courts, serve as binding authority for future cases with similar facts. Judicial precedent ensures stability and consistency in the legal system, while still allowing for a degree of flexibility to adapt to changing circumstances. The overall structure of this doctrine involves several essential elements and principles that govern its application:

• Hierarchy of courts: Decisions made by higher courts are binding on lower courts within the same jurisdiction. The apex courts in England, Wales, and Northern Ireland are the Supreme Court, the Court of Appeal, and the High Court, with the hierarchy descending from there. In Scotland, the highest court is the Court of Session.
• Fact and ratio decidendi: When analysing a case's precedent value, a distinction must be made between obiter dicta and ratio decidendi. The ratio decidendi, or 'the reason for the decision', represents the principle of law that the court relied upon to reach its decision and is the only part that serves as binding authority. Obiter dicta, or 'things said by the way', are incidental remarks made by a judge that are not directly related to the case's determination and have persuasive value only.
• Binding and persuasive precedent: A binding precedent must be followed by lower courts, while a persuasive precedent, which may come from a court of equal or lower standing, other jurisdictions, or even academic works, has no binding effect but may still be taken into consideration by a court.
• Departing from precedent: In exceptional circumstances, courts may choose to depart from precedent, which often occurs when previous decisions are deemed unsuitable for modern circumstances, conflict with other decisions, or involve procedural errors. For example, the Supreme Court has the authority to depart from its own prior decisions, a mechanism allowing for legal evolution and adaptation.

In conclusion, understanding the United Kingdom's primary sources of law, including legislation and common law, is crucial for students, legal practitioners, and anyone interested in the workings of the UK legal system. By appreciating the roles and intricacies of Acts of Parliament and judicial precedent, individuals can develop a more nuanced understanding of the overall legal landscape and the complex interplay of various legal sources.

Exploring the UK Legal System's Secondary Sources of Law

Even though the United Kingdom has left the European Union, a unique category of law known as 'retained EU law' continues to play a role in the UK legal system. This body of law is a result of the European Union (Withdrawal) Act 2018, which aims to ensure legal continuity as the UK transitions away from EU membership.

How Brexit Has Changed the Role of EU Law in the UK

Brexit has significantly altered the UK's relationship with EU law. Upon leaving the EU, the UK ceased to be subject to the jurisdiction of the Court of Justice of the European Union (CJEU), nor does it participate in the development of new EU legislation. However, a large body of EU law has been retained, converted, and preserved in UK law. Retained EU law can be classified into the following categories:

• EU-derived domestic legislation: Existing UK laws that were created to implement EU law, such as delegated legislation made under the European Communities Act 1972. These continue to apply within the UK.
• Directly applicable EU legislation: EU regulations that automatically took effect in the UK without the need for domestic implementation. These have been converted into UK law.
• EU decision: Decisions by the EU institutions directed at a particular entity or individual. These are only retained in UK law if they applied to the UK before the withdrawal date.
• Preserved CJEU case law and principles: CJEU judgments made prior to the UK's withdrawal continue to have binding precedential value, unless overturned by a higher UK court or new legislation. Additionally, the general principles of EU law can still be relied on in the interpretation and application of retained EU law.

While retained EU law largely mirrors the original EU law, some adjustments have been made to ensure its practical and effective functioning within the UK legal system. Such changes include the removal of references to EU institutions and the adaptation of enforcement mechanisms.

Human Rights Law: Protecting the Rights and Freedoms of Individuals

Human rights law forms a critical element of the UK's legal landscape, protecting the fundamental rights and freedoms of individuals. Encompassing both national and international sources, human rights law helps ensure that UK laws and policies adhere to internationally recognised standards.

Key Human Rights Legislation and Court Cases in the UK

Several essential legal instruments and case law make up the foundation of human rights law in the UK. Among the most significant are the following:

• European Convention on Human Rights (ECHR): An international treaty adopted by the Council of Europe, which establishes a set of fundamental rights for individuals in its member states. The UK ratified the ECHR in 1951 and has since been bound by the provisions contained within this treaty.
• Human Rights Act 1998 (HRA): This domestic legislation incorporates the majority of the ECHR rights into UK law, enabling individuals to enforce these rights in UK courts. The HRA requires public authorities to act compatibly with the ECHR rights and obliges courts to strive to interpret and give effect to domestic legislation compatible with the ECHR.
• Key court cases: A variety of landmark human rights cases have played a decisive role in shaping the UK's human rights law landscape. Some examples include:
  • R v. Secretary of State for the Home Department, ex parte Daly: A key case establishing that common law rights relating to privacy can coexist with the HRA.
  • R (A and others) v. Secretary of State for the Home Department: This case dealt with the compatibility of indefinite detention without trial under anti-terrorism legislation in the context of the right to liberty under Article 5 of the ECHR.
  • Belmarsh Prison case (A v. Secretary of State for the Home Department): A landmark case where the House of Lords declared parts of the Anti-Terrorism Crime and Security Act 2001 incompatible with the ECHR, specifically regarding the indefinite detention of foreign nationals without trial.

While the UK is subject to a variety of international human rights treaties, the ECHR and the HRA remain the most prominent sources of human rights law in the country.

International Law and its Influence on the UK Legal System

International law, although not necessarily a source of law in itself, can have a considerable impact on the UK legal system. Global treaties, conventions, and customary international law principles can influence UK laws, policies, and court decisions.

Incorporation of International Law Principles in UK Law

International law principles can be incorporated into UK law through various means, depending on the nature of the international instrument and the mechanism used for transposition. Some key incorporation methods include:

• Legislation: International treaties usually require an Act of Parliament to be effectively incorporated into UK law, such as the HRA's incorporation of the ECHR rights. Other examples include the Genocide Act 1969 and the Rome Statute of the International Criminal Court Act 2001, which transpose international criminal law conventions into domestic law.
• Judicial decisions: UK courts can refer to international law principles as persuasive or interpretive tools, helping to shape the development of the common law and statutory interpretation. For example, courts often refer to international law when interpreting domestic laws that are ambiguous or unclear, seeking to avoid breaches of the UK's international obligations.
• Customary international law: Recognised customs and practices in international law can become part of the common law, provided they are not inconsistent with domestic statutes or case law. Customary international law principles that are considered part of UK law include the prohibition of torture, diplomatic immunity, and rules governing statehood and sovereignty.

Although international law does not function as a source of law in the same way as legislation or common law, it plays a vital role in shaping the UK legal system and influencing the interpretation and application of domestic laws.

Understanding Customary Law Within the UK Legal System

Customary law features in various forms within the UK legal system, typically arising from long-established practices and conventions that have acquired binding force through widespread observance and adherence.

How Customary Law Evolves and Affects National Laws

The process through which customary law emerges, evolves, and impacts national law is multifaceted and often depends on the legal and social context. Some essential aspects of the development and influence of customary law include:

• Origination: Customary law often arises from longstanding practices or social conventions that reflect the collective will, culture, and values of society. Over time, these norms become entrenched and widely accepted, eventually gaining recognition and enforcement in the legal system.
• Elements of customary law: To be considered a valid customary law, a practice must typically satisfy two criteria: (1) the material element, which requires the existence of a general and consistent adherence to the practice, and (2) the psychological element, which demands the belief that the practice is legally required, or "opinio juris".
• Judicial treatment: Customary law may be recognised by UK courts as valid legal norms where it is not inconsistent with statutory or common law provisions. Courts can also refer to customary law when interpreting and applying other sources of law, such as legislation or common law principles.
• Examples: Some examples of customary law within the UK legal system include local customs (e.g., grazing rights), business practices (e.g., trade usages), and even constitutional conventions that guide the actions and relationships of key institutions in the UK's uncodified constitution (such as the conventions of individual and collective ministerial responsibility).

While not forming a separate source of law like legislation or case law, customary law represents an organic and evolving aspect of the UK legal system, reflecting society's diverse cultural and social conventions.