There are four sources of the law in the United Kingdom. These comprise: legislation, Case Law, European Union Law, and the European Convention on Human Rights. Additionally, the law in the United Kingdom can be grouped into two categories; Public and Private Law. This essay aims to provide an in-depth analysis of the four sources of law along with the two classifications of law in the United Kingdom. This essay looks into the sources of law and the types of law in the United Kingdom. In addition, the law-making process is briefly outlined as followed by the United Kingdom system that is collectively done by the House of Lords, House of Commons and the Monarch.

The first source of law is legislation. Essentially, legislation is naturally made by the Parliament. An idea for a new law can be presented by a Member of Parliament or a Lord Gaebler & Shea, 2014). Importantly, legislation exists due to the aspect of changing times. Emergency factors may put pressure on the government to review dated laws and case laws (Robinson, Fergus & Gordon, 2000). Legislation encompasses primary and secondary legislation.

In primary legislation, the pre-preliminary stage involves consultation with various interested parties before a law is proposed in Parliament officially (Micklitz, 2014). These parties include: pressure groups, voluntary organizations, and professional bodies. In line with this is the concept of white and green papers. In essence, the proposals for legislative alterations may be found in the government White Papers (Webley & Samuels, 2015). Alternatively, Green Papers denote the consultation papers that outline government proposals which are still in the process of formation and used to seek for public opinion. Usually, the green papers may precede the white papers.

Following consultation, the concept of bills is introduced. A Bill refers to a proposed law which is under parliamentary consideration to become a law. The four major types of bill are Public Bills, Private Bills, Private Member’s Bills and Hybrid Bills. Public bills are introduced with the aim of changing the laws as they apply to the general population (Micklitz, 2014). Private Bills on the other hand are often promoted by organizations to grant themselves powers ahead of the general law. Like the public bills, they can start in either House. Private Member’s bills are those which are introduced by Member of Parliaments and Lords that may not be government officials. Finally, the Hybrid Bills are those which have attributes of both private and public bills (Webley & Samuels, 2015).

The process of lawmaking in parliament is classified into multiple categories. Firstly, the Bill begins in the House of Lords or the House of Commons. There are five stages of legislation. The First Reading involves the Bill’s formal presentation. The Second Reading encompasses debates on wide-ranging principles regarding the Bill. The Committee Stage follows whereby the Bill is thoroughly examined for every word and amendments are made (Gaebler & Shea, 2014). The Report Stage is also a further consideration of the amendments made during the Committee Stage. The Third Reading denotes the bill’s final consideration. If the two Houses are in agreement about the Bill, Royal Assent is sought. The Monarch plays the role of either accepting or rejecting a proposed Bill. If the Monarch rejects a proposed Bill, a General Election would be held as no law can be passed without royal assent (Ru?Hmkorf, 2015).

The Parliament Acts of 1911 and 1949 are noteworthy in the UK legislation. Fundamentally, the Parliament Act 1911 stipulated the dominance of the House of Commons through the limitation of legislation-blocking authority of the House of Lords (Ru?Hmkorf, 2015). Essentially, legislation can be passed even if the House of Lords disapproves. In addition, the Parliament Act 1949 amended the Act 1911 by further limiting the authority of the Lords by minimizing the allocated time in which they could delay the bills from 2 years to 1 (Micklitz, 2014). Royal Assent denotes the consent of the monarchy with regards to the passing of the Bill into a law. Essentially, Royal Assent is the final stage before a Bill becomes a law. The Monarchy can either accept or reject a Bill.

The advantages of lawmaking process in parliament include: flexibility since many parties are involved; democracy since a vote is taken before a bill is approved; verification by the House of Lords; and scrutiny as attributed to the thoroughness of the legislative process. The disadvantages include: the process is slow; government control is predominant due to the MPs in the House of Commons; and the processes are rather dated (Dabbah, 2004).

Secondary legislation is also referred to as Statutory Instruments (Dabbah, 2004). These Statutory Instruments can be made in variable forms: rules and orders, regulations, and Orders in Council. Definitively, statutory instruments refer to a form of legislation whereby provisions of a Parliamentary Act can be enforced or altered without the passing of a new Act by Parliament (Eeckhout & Tridimas, 2010). Through statutory instruments Ministers are empowered to make rules and regulations and orders. The advantages of secondary legislation include: saves on time and procedures by not involving the Parliament in law enactment; allows experts to handle technicalities in law making; and it enables flexibility. Conversely, the disadvantages of secondary legislation are: involves less scrutiny by parliament and there is little publicity made on the laws passed through secondary legislation (Eeckhout & Tridimas, 2010).

The second source of law in the United Kingdom is Case Law. Case laws denote “the law as established by the outcome of former cases” (Dabbah, 2004). It creates the doctrine of precedence within the British Legal System and is usually published in law reports. Some of commonly related factors in case laws are judicial precedent, ratio decidendi, stare decicis, and obiter dicta. Ratio decidendi denotes the reason or rationale upon which the decision of a particular case is established. Stare decisis is a policy that mandates courts to abide by the principles, rules, and decision made by previous courts regarding certain cases. Simply defined, stare decisis refer to the legal principle of determining points in litigation according to precedent. Aditionally, Obiter dicta are observations or comments made by a judge that do not comprise a necessary component of the court’s decision but influence the court’s opinion (Moys, & Winterton, 1997). In the United Kingdom, for example, decisions of the House of Lords bind all other courts but the House does not regard itself as strictly bound by its previous decisions.

A judicial precedent is a decision of the court that is used as a basis for future legal decision-making in related or similar cases. Judicial precedents are the most commonly applied factor in case laws (Moys & Winterton, 1997). Essentially, judicial precedents are founded on the principle of stare decisis. Fundamentally, the judgments previously passed by judges regarding imperative cases are recorded and become substantial sources of law. In application of case laws, the hierarchy of the court system is pertinent. The Supreme Court is the highest followed by the Court of Appeal and then the High Court (Eeckhout & Tridimas, 2010). This is followed by the Crown Court and then the County Court and Magistrate Courts.

The decisions made by the House of Lords and the Supreme Court are binding on all other courts (Eeckhout & Tridimas, 2010). However, the House does not consider itself to be solidly bound by former case rulings. This is attributed to the Practice Statement of 1966 whereby the House of Lords sought to detach itself from previous decisions. An example is the case of Murphy v Brentwood District Council (1990) whereby the House overruled its previous decision in the case of Anns v London Borough of Merton (1978) regarding the matter of a local authority’s liability in terms of negligence to future property buyers (Eeckhout & Tridimas, 2010). Additionally, the Civil Division of the Court of Appeal binds itself to former decisions as in the case of Young v Bristol Aeroplane Co Ltd (1944). Notably however, three exceptional cases were established in that particular case whereby the court could disregard previous decisions (Eeckhout & Tridimas, 2010). These were: two conflicting Court of Appeal decisions; conflicting decision with a later ruling by the House of Lords; and “if the earlier decision was given per incuriam (through want of care) however it cannot ignore a decision of the House of Lords on the same basis” (Gaebler & Shea, 2014). Subsequently, the High Court and Divisional Court enforce the rule set by the Young’s case.

In technical terms, reversal denotes a case whereby a decision is reversed in the same case in which case the former decision loses its effect in judicial precedence (Elliott & Thomas, 2013). Overruling denotes where a higher court later decides that the previous case was wrongly ruled. This is manifest in the case of Murphy v Brentwood District Council (1990) in relation to the case of Anns v London Borough of Merton (1978). Distinguishing refers to the rejection of a previous case as the authority due to either material facts of simply narrow statement of law in relation to the new facts. Lastly, explanation is when a judge attempts to interpret a former decision before distinguishing or applying it. Both these concepts are represented in the case of Young v Bristol Aeroplane Co Ltd (1944) (Elliott & Thomas, 2013).

In relation to case laws, statutory interpretations are important factors. The golden rule permits a judge to depart from the usual meaning of a word so as to avert an absurd outcome. The rule originated from the case of Becke v Smith (1836) which was later modified by Lord Wensleydale in the case of Grey v Pearson (1857) by stating, “In construing statutes, and all written instruments, the grammatical and regular sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther” (Finch & Fafinski, 2013). The mischief rule is intended to determine the defect that the “statute in consideration has set out to solution, and what ruling would effectively implement this remedy” (Le Sueur, Sunkin & Murkens, 2013). This rule was established in the Heydon case in 1584 (Reid & Visser, 2013).

The third source of law in the United Kingdom is the European Union Law. Upon joining the European Union in 1973, the United Kingdom was required to abide by certain directives, regulations, and decisions which are mandatorily applicable to all member states of the EU (Finch & Fafinski, 2013). These also comprise a major part of the UK law presently. The EU has primary and secondary legislation (Aplin & Davis, 2013). Particularly, in relation to the United Kingdom the EU’s secondary legislation constitutes directives, regulations, and decisions.

The EU regulations are generally directly applicable and binding of all the member countries, the United Kingdom included. The EU regulations are directly enforceable in the member countries from the moment they are stipulated and must not necessarily be reordered complementary to the national law. These regulations are purposed to ensure uniformity in application of the EU law in the member countries (Faragher, 2013). Notably, EU regulations surpass the UK national laws that are incompatible with the set provisions.

In addition, “the EU directives are binding as to the result to be achieved upon any or all of the member states they are meant for but leave to the national authorities the choice of form and methods” (Faragher, 2013). Therefore, the UK national legislators are mandated to adopt an altering act to transpose directives and enforce national law according to the EU objectives. While the EU considers various national circumstances while giving directives, the UK is bound by the law to abide by the directives provided. This is according to the principle of sincere cooperation found in Article 4 (3) TEU (Faragher, 2013).

Principally, the European Union Court of Justice has ruled that various provisions found in a directive may occasionally direct impact on a member state even in cases where the member state, say the United Kingdom, has not actually adopted an act of transposing where: “the directive has not been transposed into national law of has been incorrectly transposed; the provisions of the directive are imperative and sufficiently clear and precise; and the provisions of the directive confer rights on individuals” (Birks, 2004).

Lastly, with regards to decisions, opinions, and recommendations; the EU decisions are entirely binding of all member states (the United Kingdom). Some decisions may be directly addressed to specific countries in which case only they are bound. These decisions may also address circumstances that are particularly applicable to only those selected countries. Usually, decisions made by the European Union can be applied directly on similar terms as EU directives (Duncan et al., 2016). However, they may provide direction regarding the content and interpretation of the European Union’s Law (Birks, 2004).

The United Kingdom, being a primary member of the European Union, is bound by these directives, regulations, and decisions. As mentioned, the EU laws have precedence over national law and therefore in cases where the Union laws conflict with the UK national laws, the Union laws must be enforced. Notably, this forms a major reason why the United Kingdom is strongly contemplating an exit from the EU. A case example to demonstrate the EU law supremacy is the case of Flaminio Costa v E.N.E.L. (1964) (Anthony, 2002).

The fourth source of law in the United Kingdom is the European Convention on Human Rights. As a mechanism of international law, the convention was not usually a direct component of the UK law. It was only adopted into the Human Rights Act 1998 by the United Kingdom. Since its adoption, the European Convention has affected the way in which judges rule their cases (Colston, 1999).

The European Convention on Human Rights impacts on legislation. The UK therefore is required to comply with its international commitments by securing legislative reforms in cases when they breach or could strongly violate the European Convention on Human Rights. Additionally, the European Convention on Human Rights is regarded by highly courts. “With regard to statutes, the English courts, adopting the rule of construction that Parliament does not intend to legislate contrary to UK international law, have stated that the requirements of the Convention ought to be considered by them, though this applies only where English statute law is unsettled or ambiguous or is directly seeking to implement Convention requirements” (Colston, 1999).

Notably however, in relation to common law the application of the Convention is rather unclear and may rely on judicial preference. An example is the case of Derbyshire County Council v Times Newspaper whereby the House of Lords ruled that the Convention was not relevant to the interpretation of the libel rules in common laws regarding whether local corporations could enforce any action. This is a reversal of the stance adopted by the Court of Appeal. A more popular perception is that clearly established common laws should not be overruled on grounds of the European Convention on Human Rights (Colston, 1999).

With regards to the classifications of law in the UK, there are public and private laws. Public law handles matters that impact on the state or general public. Some of the commonly covered laws in public laws include administrative law: these laws govern the UK government agencies such as the Equal Employment Opportunity Commission and the Department of Education (Barnett, 2010). Alternatively, private law related to the obligations and rights of individuals, businesses, and families as well as small groups. It was formulated for the purpose of assisting citizens in solving their disputes involving private issues.

The difference between public and private law is that the scope of public law is wider. Private law encompasses contract law which governs obligations and rights of individuals or parties entering into legal contracts. Additionally, tort law constitutes obligations, remedies, and rights accorded to a party that has been wronged by another party. Contract law is rather prevalent in private law. The case involving Pao On and Lau Yiu Long (1980) saw Lord Scarman state, “An act done before the giving of a promise to confer some form of benefit can often be a consideration for the promise. The act must have been done at the promisors’ request: the parties must have comprehended that the act needed remuneration either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance” (Duncan, Eady, Hungerford-Welch, Nag, Sprack & Browne, 2016).

The law of tort is also predominantly applicable in the UK private law. A case example is that of Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310 House of Lords Whereby Lord Ackner made the Obiter dicta that, “”‘Shock’, in the context of this course of action, considers the sudden acknowledgement either by sight or sound of a horrifying happening, which violently agitates the mind (Burrows, 2013).

In conclusion, the law in the United Kingdom has a rich history and is founded on solid grounds. Several nations worldwide have been known to apply British case laws in their court decisions. The various intricacies associated with the sources of law (legislation, case laws, European Union, and European Convention on Human Rights) are simplified in the related constitutions. Moreover, the public and private classification of laws has served reasonably well in the country for a long period of time.

References

Anthony, G. (2002). Uk Public Law And European Law. Oxford [England], Portland, Or.

Aplin, T. F., & Davis, J. (2013). Intellectual Property Law: Text, Cases, And Materials. Oxford, United Kingdom : Oxford University Press.

Barnett, H. (2010). Understanding Public Law. London, Routledge-Cavendish.

Birks, P. (2004). English Private Law Suppl. 2 Suppl. 2. Oxford [U.A.], Oxford Univ. Press.

Burrows, A. (2013). English Private Law. Oxford University Press.

Colston, C. (1999). Principles Of Intellectual Property Law. London, Cavendish.

Dabbah, M. M. (2004). Ec And Uk Competition Law: Commentary, Cases And Materials. Cambridge [U.A.], Cambridge University Press.

Duncan, N., Eady, J., Hungerford-Welch, P., Nag, S., Sprack, J., & Browne, J. (2016). Employment Law In Practice. Oxford : Oxford University Press.

Eeckhout, P., & Tridimas, T. (2010). Yearbook Of European Law: 2010 Vol. 29. New York, Oxford University Press.

Elliott, M., & Thomas, R. (2013). Public Law. Oxford : Oxford University Press.

Faragher, C. (2013). Public Law Concentrate. Oxford : Oxford University Press.

Finch, E., & Fafinski, S. (2013). Legal Skills. Oxford : Oxford University Press.

Gaebler, R., & Shea, A. A. (2014). Sources of State Practice In International Law. Leiden ; Boston : Brill-Nijhoff.

Le Sueur, A. P., Sunkin, M., & Murkens, J. E. (2013). Public Law: Text, Cases, And Materials. Oxford, United Kingdom : Oxford University Press.

Micklitz, H.-W. (2014). Constitutionalization Of European Private Law. Oxford, United Kingdom : Oxford University Press.

Moys, Elizabeth M., & Winterton, J.R. (1997). Information Sources In Law. Berlin, De Gruyter.

Rainey, B. (2015). Human Rights Law: Law Revision & Study Guide. Oxford : Oxford University Press.

Reid, E., & Visser, D. P. (2013). Private Law And Human Rights: Bringing Rights Home In Scotland And South Africa. Edinburgh, Edinburgh University Press.

Robinson, O. F., Fergus, T. D., & Gordon, W. M. (2000). European Legal History. London [U.A.], Butterworths.

Ru?Hmkorf, A. (2015). Corporate Social Responsibility, Private Law And Global Supply Chains. Cheltenham, Uk : Edward Elgar Publishing.

Webley, L., & Samuels, H. (2015). Complete Public Law: Text, Cases, And Materials. Oxford, Oxford Univ. Press.

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