Sources of Law in the English Legal System

Codified (Written) Sources of Law

• Definition: Rules that have been formally written-down in authoritative texts, giving them immediate visibility, certainty, and ease of reference.

1. Primary Legislation (Statutes / Acts of Parliament / Enactments)

• Chief, supreme source of domestic law.
• Drafting & Enactment process:
– Government or back-bench proposal is introduced as a Bill.. /
– The Bill is debated, scrutinised and amended in both Houses of Parliament (Commons and Lords).
– After successful passage, it is sent for Royal Assent; upon assent, it becomes an Act of Parliament.
• Parliamentary Supremacy (also called Parliamentary Sovereignty):
– Parliament can make or unmake any law.
– It cannot bind its successors nor be bound by its predecessors.
– No court or other body may question the validity of an Act.
– Consequently, a statute will prevail over any other source where conflict arises.
• Examples of terminology: "Housing Act $1985$", "Equality Act $2010$".

2. Delegated (Secondary) Legislation

• Parliament delegates law-making power to subordinate bodies by passing a Parent (or Enabling) Act.
• Common creators: Government Ministers, local authorities, public regulators, specialised agencies.
• Main forms:
– Statutory Instruments (SIs): Ministerial rules of wide application.
– Orders in Council: Made by Privy Council, often in emergencies.
– By-laws: Local rules made by councils or public-utility bodies (e.g.
Transport for London).
• Rationale for delegation:
– Efficiency & speed – avoids congesting parliamentary timetable.
– Technical expertise – subject-matter specialists draft detailed rules.
– Flexibility – allows rapid updating to changing circumstances without a new Act.
• Control mechanisms: Parliamentary scrutiny committees, affirmative/negative resolution procedures, judicial review for ultra vires.

3. European Union (EU) Law

• UK was a Member State from $1973$ – $2020$.
• Main instruments:
– Regulations: Directly applicable and binding in every Member State.
– Directives: Bind as to result; require national implementation via domestic measures.
• Entry into UK system: European Communities Act $1972$ gave supremacy to EU law over conflicting domestic provisions (Factortame principle).
• Brexit:
– European Union (Withdrawal Agreement) Act $2020$ entered into force $23$ January $2020$.
– UK left the EU on $31$ January $2020$.
– EU law retained as "Retained EU law" unless and until amended or repealed.

4. European Convention on Human Rights (ECHR)

• Multilateral treaty (Council of Europe, $1950$) protecting fundamental rights.
• Key Articles frequently cited:
– Art $2$: Right to Life.
– Art $3$: Prohibition of Torture, inhuman & degrading treatment .
– Art $6$: Right to a Fair Trial.
• Incorporated domestically by Human Rights Act (HRA) $1998$ (enters into force $2000$).
• Dual effect:
– Vertical – individual v State.
– Horizontal – individual v individual (courts must, where possible, apply domestic law compatibly even in private disputes).

Human Rights Act $1998$ – Core Sections

Section $2$ – Duty to Take Strasbourg Jurisprudence Into Account

• Domestic courts must "take into account" European Court of Human Rights (ECtHR) judgments.
• Non-binding but highly persuasive.
• Lord Bingham (Ullah): courts should follow any "clear and constant" Strasbourg line unless special circumstances justify departure.

Section $3$ – Interpretative Obligation

• Courts must, "so far as it is possible", read and give effect to domestic legislation in a manner compatible with Convention rights.
• Goes beyond ordinary purposive interpretation; may require reading in, reading down, or reading out words.
• Case: Ghaidan v Mendoza – reinterpretation of the Rent Act to extend succession rights to same-sex partners.

Section $4$ – Declaration of Incompatibility (DOI)

• Where $3$ interpretation is not possible, a superior court may issue a DOI.
• DOI does not invalidate the statute; political pressure generally leads Parliament to amend.
• Cases:
– Bellinger v Bellinger – marriage definition incompatible with Art $8$ & $12$.
– Steinfeld & Keidan – denial of civil partnerships to opposite-sex couples; led to Civil Partnerships, Marriages and Deaths (Registration etc.) Act $2019$.

Uncodified (Unwritten) Sources of Law

1. Common Law (Case Law / Judge-Made Law)

• Develops through ratio decidendi (binding legal reasoning) of judicial decisions.
• Precedent system: stare decisis – like cases treated alike, promoting consistency and predictability.
• Reported in official Law Reports (e.g. All England, WLR).
• Landmark example: Donoghue v Stevenson ($1932$): Created the modern tort of negligence with the "neighbour principle" (duty of care).

2. Equity

• Origin: Court of Chancery developed to temper rigidity of common law writ system.
• Characteristics:
– Focus on fairness, conscience, moral justice.
– Judges exercise discretionary remedies (injunction, specific performance, rescission, rectification, constructive trusts).
– Guided by equitable maxims (e.g.
• "He who comes to equity must come with clean hands" – illustrated by D & C Builders v Rees).
• Fusion with common law courts by Judicature Acts $1873$–$1875$ – equity prevails in conflict.

Key Doctrines and Inter-relationships

• Hierarchy of Sources: \text{EU law (pre-Brexit)} > \text{Statutes} > \text{Delegated Legislation} > \text{Common Law & Equity}. After Brexit, supremacy of EU law applies only to retained EU law unless altered.
• Doctrine of Implied Repeal: Later Act supersedes earlier inconsistent Act (unless the earlier is a "constitutional statute" – per Thoburn v Sunderland City Council).
• Compatibility Principle under HRA $1998$: All domestic sources must be interpreted/operated consistently with ECHR rights whenever possible.
• Ultra Vires Control: Courts may strike down delegated legislation exceeding powers granted by the parent Act.

Illustrative Cases and Principles (Extended List)

• R (Factortame) v Secretary of State for Transport – supremacy of EU law over Merchant Shipping Act $1988$.
• R (Miller) v Secretary of State for Exiting the EU – prerogative power cannot be used to nullify statutory rights created by ECA $1972$.
• Entick v Carrington ($1765$) – principle of legality; State must point to legal authority for interference with rights.
• A v Secretary of State for the Home Department (Belmarsh) – indefi nite detention incompatible (DOI issued, leading to Prevention of Terrorism Act $2005$).

Practical / Ethical / Philosophical Implications

• Balance between democratic legitimacy of Parliament and judicial protection of fundamental rights.
• Delegated legislation raises accountability concerns – rapid law-making vs reduced parliamentary scrutiny.
• Brexit illustrates constitutional flexibility: supremacy doctrine can be limited or re-instated by political choice.
• Human Rights framework fosters a culture of rights-based adjudication, influencing both public and private law.

Connections to Earlier / Foundational Principles

• Rule of Law (Dicey) – law must govern, not arbitrary power; reflected in necessity for proper authority in delegated powers.
• Separation of Powers – making (Parliament), interpreting (Judiciary), enforcing (Executive); yet overlaps (e.g.
Section $3$ HRA expands judicial interpretative power).
• Historical Influence – Equity originated as moral corrective; Common Law built on custom; EU/ECHR demonstrate growth of supra-national norms.

Quick Reference: Numeric Articles, Sections & Years (All LaTeX-formatted)

• Art $2$, Art $3$, Art $6$ ECHR.
• Sections $2$, $3$, $4$ HRA $1998$.
• European Communities Act $1972$; EU Withdrawal Act $2020$.
• Donoghue v Stevenson $1932$.
• Judicature Acts $1873$–$1875$.