Tuesday, 13 September 2011

Sources of Law

Where does law come from in England? There are a number of sources - each having different weight (the doctrine of 'Parliamentary Sovereignty' is relevant here - it explains why - in a conflict between case law and legislation - it is the Act of Parliament which prevails).

Legislation - law made by, or under the authority of Parliament. Where a bill is considered by both Houses of Parliament, and an agreed text is approved by both - it becomes law after the Royal Assent is given. This is PRIMARY legislation - and can be referred to as an "Act of Parliament" or a "Statute" (the terms are interchangeable). When Parliament gives authority for legal rules to be made by someone else - those rules are described as "SECONDARY or DELEGATED legislation - they may be Orders in Council; Statutory Instruments - or if the power is exercised by a local authority "by-laws".

Legislation may also be created by the European Union. Under the European Communities Act 1972 - these are recognised as valid law in England. European Union Law is in the form of Primary Law - the Treaties or secondary - Regulations and Directives. Regulations take effect without the need for further national implementation (they are 'directly applicable' - a term not to be confused with "Direct Effect" - which refers to rights arising under European Union law being given effect by the national courts - you can get a remedy by going to the local court). Directives are BINDING, as to the result to be achieved - but the national government chooses the most appropriate way of turning that legal obligation into the law of the land.

Case Law - Common Law systems place great importance of the doctrine of binding precedents. Decisions by a court on the same facts should be followed. The hierarchy of the Courts are important to this doctrine - since higher courts generally bind lower courts. Case law remains an important source of law - though it can be overriden by Parliament.

No comments: