Sources of Law Part 1

Aims and Objectives of the Lecture

• Core Legal Application: To be able to apply relevant core legal principles and rules appropriately in various legal contexts.

• The 8 Sources of Law: Identification and understanding of the specific origins from which law is derived.

• Statute Creation: Understanding the formal process of how Parliament creates a statute.

• Statutory Reform: Understanding how statutes are updated, improved, or repealed.

Traditional Sources of Law

• The Crown: Evolution from absolute power and royal proclamations to the current role in granting Royal Assent to legislative bills.

• The Nobility: Roots in the feudal system, military leadership, and the royal household; transitioned into the second chamber of Parliament (the House of Lords).

  • Current composition after the House of Lords Act $1999$: $90$ elected hereditary peers and $660$ life peers.

• Judges and Parliament:

  • The Law Lords were formally removed from the House of Lords to the Supreme Court in $2005$.

  • The role of Lord Chancellor is currently integrated into the Secretary of State for Justice (held by Dominic Raab at the time of the lecture).

• The Church: Evolution from Papal decrees to the General Synod.

  • The General Synod produces "Measures," which have the same legal status as Acts of Parliament.

  • Example: Section $3$ of the Church of England (Miscellaneous Provisions) Measure $2020$, which allows authorized lay workers to perform funerals in locations other than a church or churchyard.

  • Other ecclesiastical sources include Canons and Subordinate Legislation.

• The Military: Evolution from military rule and armed force as a driver of change to modern emergency powers.

  • The Civil Contingencies Act $2004$: Grants authority for military usage in the interests of civil protection and public welfare.

The Eight Primary Sources of Law

• Statute: Formal Acts of Parliament.

• Delegated Legislation: Includes Statutory Instruments, bye-laws, and Orders in Council.

• Case Law: Judicial decisions (to be covered in subsequent lectures).

• Statutory Interpretation: The methods used by courts to interpret legislative text.

• European Law: The legal influence remains relevant alongside the influence of civil law and codified systems.

• International Treaties: Global agreements that influence domestic legal frameworks.

• Equity: Legal principles providing specific remedies such as:

  • Specific Performance

  • Injunctions

  • Rescission

  • Rectification

• Custom: Historically established local or general practices recognized by law.

Statutes and Parliamentary Sovereignty

• Definition & Importance: Statutes (Acts of Parliament) are considered the purest expression of the will of the people, possessing broad social impact and judicial relevance through court interpretation.

• Parliamentary Sovereignty (Supremacy):

  • The validity of any statute passed by Parliament cannot be legally challenged in court.

  • A.V. Dicey defined this concept by stating: "Parliament passes Acts, and those Acts can make, change, or repeal law."

Primary and Secondary Legislation

• Primary Legislation (Acts of Parliament/Statutes):

  • Broad scope covering centuries of history, from the Statute of Marlborough in $1267$ (regarding the nature of damages) to modern acts like the Road Traffic Act $1988$ and the Anti-social Behaviour, Crime and Policing Act $2014$.

• Secondary (Delegated) Legislation:

  • Statutory Instruments (SI).

  • Byelaws.

  • Church edicts.

The Triggers and Origins of Legislation

Legislative creation is typically driven by four main triggers:

1. Political Pledges: Manifesto commitments such as the privatization of industries or the creation of the National Health Service (NHS).

2. Administrative Necessity: Matters required for government functioning, such as the annual Finance Acts related to taxation.

3. Changes in Society/Electorate Demands: For example, Environmental Acts responding to public concern.

4. Unexpected Events: Immediate and urgent attention needed from the executive, such as the Emergency Powers (Defence) Act $1939$ or the Coronavirus Act $2020$.

• Multifaceted Legislation: Some Acts meet all triggers simultaneously, such as the National Health Service Act $1946$.

Consultation Documents: Green and White Papers

• White Papers: Government-issued proposals on topics of current concern. They state the government's definitive intention to enact new legislation and often initiate a consultation process to refine details.

• Green Papers: Less frequent consultation documents designed to solicit feedback on policy or legislative proposals from both inside and outside Parliament. These may eventually lead to the development of White Papers.

• Access: Copies of these documents are made available on relevant departmental websites.

The Legislative Cycle and Process

The Cycle:

1. Parliament drafts the law and creates the Act.

2. Various public interpretations occur.

3. Clients instruct lawyers based on the new law.

4. Lawyers question the text; courts provide rulings and handle potential appeals.

5. Legislators review the law to simplify, correct, or clarify the Act, providing the impetus for revised law.

The 9-Step Process:

1. First Reading (Commons): The bill's title is read; no resolution is required. The bill is printed and published. Ministers declare compatibility with the European Convention on Human Rights (or state the intent to proceed regardless).

2. Second Reading (Commons): The main debate on the bill's principles, recorded in Hansard.

3. Committee Stage (Commons): Detailed examination of provisions and proposed amendments.

4. Report Stage (Commons): Debate and voting on amendments proposed during the committee stage.

5. Third Reading (Commons): Final debate and vote on the amended bill.

6. House of Lords Proceedings: The bill follows the same structure as in the Commons (Steps 1 through 5).

7. Lords Amendments: If the Lords make changes, the bill returns to the House of Commons.

8. Ping-Pong: The bill travels between chambers until agreement is reached or proceedings terminate.

   • The Parliament Acts $1911$ and $1949$: Allow the Commons to bypass the Lords and present a bill for Royal Assent if the Lords reject it twice (e.g., the Hunting Act $2004$).

9. Royal Assent: The formal signing of the bill into law.

Categories and Powers of Legislation

• Types of Statutes:

  • Public Statutes: General laws affecting the whole population.

  • Private Statutes: Legislation affecting specific individuals or organizations.

  • Consolidating Legislation: Re-enacts dispersed legislation into a single modern Act.

  • Codifying Legislation: Amends the law or incorporates case law/custom into a single statute (e.g., Sale of Goods Act $1979$).

• Parliamentary Powers: Parliament can Enact, Revise, Consolidate, Repeal, and Codify legislation.

• Welsh Senedd: Powers and restrictions are defined under the Wales Act $2017$.

  • Schedule $7A$: Reserved powers held by Westminster.

  • Schedule $7B$: Specific powers and restrictions for the Senedd.

Landmark Statutes of the Last 50 Years

• Murder (Abolition of the Death Penalty) Act $1965$

• Sexual Offences Act $1967$

• Family Law Reform Act $1969$

• Equal Pay Act $1970$

• European Communities Act $1972$

• Police and Criminal Evidence Act $1984$ (PACE)

• Human Rights Act $1998$

• Land Registration Act $2002$

• Constitutional Reform Act $2005$

• Health Act $2006$

• Human Fertilisation and Embryology Act $2008$

• Equality Act $2010$

• Marriage (Same Sex Couples) Act $2013$

• European Union (Withdrawal Agreement) Act $2020$

Law Reform Mechanisms

• Henry Maine Quote: "Social necessities and social opinion are always more or less in advance of the law…. Law is stable; these societies we are speaking of are progressive."

• Law Commission: A permanent body of $5$ people (judiciary, legal professionals, and academics).

  • Aims (Law Commissions Act $1965$): Codify law, remove anomalies, repeal obsolete/unnecessary laws, consolidate law, simplify and modernize law.

  • Success: Approximately $70\%$ of reports have been implemented. Examples include the Defective Premises Act $1972$, Unfair Contract Terms Act $1977$, Children Act $1989$, Domestic Violence, Crimes and Victims Act $2004$, and Fraud Act $2006$.

• Other Influences:

  • Political manifesto commitments.

  • Public opinion and social media (e.g., British Social Attitudes Report $2020$).

  • Pressure groups and Lobbyists.

  • Judicial Reviews and Precedent.

  • Public Inquiries: Investigate one-off social concerns (e.g., Hillsborough football disaster).

  • Royal Commissions: Temporary committees for specific tasks (e.g., Reform of House of Lords), dissolved upon completion.

Landmark Case Law and Legal Principles

• R v Dudley and Stephens ($1884$): Established the common law precedent that necessity is not a defense to murder.

• Carlill v Carbolic Smoke Ball [$1893$]: Contract law case regarding a flu remedy advertisement. Established that advertisements can be construed as offers. Essential elements identified: offer and acceptance, consideration, and invitation to treat (intent to create legal relations).

• Donoghue v Stevenson [$1932$]: Tort law ("snail in lemonade"). Formulated by Lord Atkin, establishing the "neighbour principle" or "neighbour test" for duty of care.

• Central London Property Trust Ltd v High Trees House Ltd [$1947$]: Reaffirmed the doctrine of promissory estoppel. Much of the judgment is considered obiter dicta as it relates to hypothetical facts regarding wartime rent.

• J v C [$1970$]: Family law "welfare principle." Held that the child's welfare applies to disputes between parents and third parties (e.g., long-term foster parents vs. biological parents).

• Practice Direction (Judgments: Form and Citation) [$2001$]: Standardized citation/numbering for the internet era to ensure consistency across the Court of Appeal and High Court.

Delegated Legislation and the Human Rights Act

• Human Rights Act $1998$ (Section $19$):

  • Ministers must make a statement of compatibility with the ECHR before the second reading of a bill.

  • If compatibility cannot be stated, they must acknowledge this and state the intent to proceed at the first reading.

  • Courts cannot set aside an incompatible Act but can issue declarations.

• Delegated (Secondary) Legislation Authorities:

  • Enabling/Parent Act: Provides the specific authority and procedural rules.

  • Ministers: Issue Statutory Instruments, regulations, and orders (Statutory Instruments Act $1946$).

  • Local Authorities: Issue by-laws under the Local Government Act $1972$.

  • Semi-Public Organizations: National Trust or railway authorities issuing by-laws.

  • Court Rule Committees: Civil, Criminal, and Family Procedure Rule Committees.

  • Privy Council: Orders in Council for emergency regulations or UN Security Council resolutions.

• Control via Judiciary: Unlike Acts of Parliament, delegated legislation can be challenged via Judicial Review under the doctrine of Ultra Vires (acting beyond one's powers). If found ultra vires, the legislation is declared void.

Pros and Cons of Legislation

Primary Legislation:

• Advantages: Democratic, involves consultation, allows for broad policy and full reform.

• Disadvantages: Lack of parliamentary time, long process, government control, and inherent complexity.

Delegated Legislation:

• Advantages: Detailed rules can be implemented quickly; utilizes specialist knowledge not held by MPs; saves parliamentary time.

• Disadvantages: Not fully debated in Parliament; less democratic/opportunity for public objection is minimized; less publicized than Acts; rapid proliferation makes keeping up to date laborious.