LSM Assignment Number 2:
RANIA ADNAN
LECTURE 2
TUTORIAL 3
Assignment Question:
Describe the sources of English law and explain which takes precedence or primacy over
the other
Answer: Engaging with the essay prompt requires a discussion on the sources of law present
within the legal system of the United Kingdom. This essay aims to illustrate that while the
sources of English law exist within a defined hierarchy in theory, in practice the distinction is
often not as clear. It will do so in three parts: firstly, the essay will outline the sources of law that
exist within the United Kingdom. Secondly, the relationship between the sources will be
outlined. Finally, the essay will aim to discuss how developments such as the Human Rights Act
1998 have affected this hierarchy.
Coming towards the outlining of the sources of law, judicial lawmaking will be outlined. The very
essence of the Common Law – as a system distinct from its counterpart, Civil Law – is that it is
built on the foundation of judicial decisions – predating even the system of parliament and
statute. This source of law is described by Sir William Blackstone in ‘Commentaries on the laws
of England’ as handing down principles ‘from the times of ancient antiquity’. The first source of
English law that bears discussion therefore is what is known as ‘judge made law’. The English
legal system depends on the principle of precedent and laws established by judges, which
underpin its common law tradition. The principle of precedent, also known as stare decisis,
mandates that courts adhere to previous rulings in comparable cases, particularly those from
superior courts, thereby promoting uniformity and reliability. This encompasses utilizing the ratio
decidendi (binding legal principle) while taking into account obiter dicta (non-binding remarks).
Judicial decisions enhance this by enabling judges to interpret laws and establish legal
principles, particularly in the absence of applicable legislation. Although precedent offers
stability, the system remains adaptable: judges have the ability to differentiate cases with
varying facts or overturn obsolete precedents, allowing the law to progress over time.
This system operates vertically, meaning lower courts must follow rulings from higher courts,
and horizontally, where courts at the same level generally follow their own prior decisions for
consistency. However, the highest courts, like the Supreme Court, have some flexibility to
depart from their previous decisions when necessary through the use of the Practice Statement
of 1966. This structure promotes consistency and predictability in legal rulings while allowing
room for adaptation over time.
In the English legal system, case law, or judge-made law, enables judges to establish new legal
principles in instances where no previous ruling or statute is relevant, commonly known as novel
situations. When confronted with these situations, judges either interpret current legal principles
or establish brand new ones to ensure a fair and just result, thus creating new law. This
authority allows judges to address specific cases and changing societal norms, as
demonstrated in significant cases such as Donoghue v Stevenson (1932), which defined the
contemporary understanding of negligence. In this manner, judges aid in the evolution of the
law, addressing areas where legislation falls short. Alongside establishing new law in unique
cases, judges possess the authority to overturn precedent, enabling them to “uncreate” law by
reversing earlier established legal principles. This happens when a higher court, such as the
Supreme Court, rules that a previous decision is obsolete, mistaken, or inappropriate under
current conditions. By setting aside precedent, judges are able to eliminate outdated legal rules
and substitute them with new interpretations that align more closely with modern values and
insights. This capability guarantees that the legal system stays flexible and reacts to societal
changes, enabling judge-made law to develop in parallel with social advancement.
Courts act as a source of law by examining statutes, which includes explaining the meaning and
use of legislative language. When laws include unclear wording or broad terms, judges explain
the law to guarantee it functions appropriately in particular situations. To achieve this, courts
apply recognized interpretative principles, including the Literal Rule, which assigns words their
usual meaning; the Golden Rule, which adjusts meanings to prevent unreasonable results; and
the Mischief Rule, which examines the intention behind the statute. Through these
interpretations, judges influence how statutes are implemented, thereby generating case law
that directs future applications and addresses gaps left by lawmakers. This interpretative role is
essential in modifying written laws for various and unexpected circumstances. The interpretation
of ‘statutes’ leads the answer towards its next point which is that of laws made by the
Parliament.
In time, the United Kingdom transitioned from a pure monarchy to a parliamentary monarchy, a
shift that birthed a new source of law to reflect the will of the people: ‘statutes’. In the UK,
Parliament holds the highest authority for lawmaking, which means it possesses the final power
to create, modify, and abolish laws. This concept, referred to as parliamentary sovereignty,
guarantees that no other entity, including the judiciary, can overturn or nullify laws passed by
Parliament. As a result, every other form of law, such as judge-made law, is inferior to
parliamentary legislation, establishing Parliament as the supreme legislative power in the nation.
The UK Parliament consists of two chambers: the House of Commons and the House of Lords.
The House of Commons consists of Members of Parliament (MPs) elected by the public in
general elections. It is the main legislative chamber, tasked with presenting and discussing bills,
along with casting votes on them. The House of Lords, in contrast, serves as a revising
chamber made up of appointed life peers, bishops, and hereditary peers. Although the Lords
lack the same authority as the Commons to start or modify money bills, they are essential in
reviewing, proposing amendments, and offering expertise on draft legislation.
The authority of Parliament to create legislation is carried out by drafting and voting on bills. A
bill is a suggested law that may be presented in either the House of Commons or the House of
Lords. After a bill has undergone multiple readings, discussions, and committee evaluations in
both chambers, it receives approval and is subsequently forwarded to the monarch for royal
assent. Though royal assent mainly serves as a formality, it is essential for a bill to transform
into an Act of Parliament. When royal assent is received, the bill turns into law and is applicable
as legislation in the UK. This procedure guarantees that legislation is carefully reviewed and has
been approved by both chambers of Parliament before it becomes legally enforceable.
In the UK, statutory law making facilitates the establishment of primary and secondary
legislation, which have distinct functions within the legal framework. Primary legislation denotes
laws created directly by Parliament, usually presented as Acts of Parliament. These laws create
wide-ranging legal structures and outline fundamental principles, including the establishment of
new legal rights, obligations, or organizations. Primary legislation is the key form of law and
necessitates complete parliamentary procedure, involving several readings and discussions in
both the House of Commons and the House of Lords, culminating in royal assent.
Secondary (or delegated) legislation, often referred to as subordinate legislation, enables
Parliament to assign the authority to create detailed rules and regulations to other entities,
including government ministers or agencies. This kind of legislation serves to elaborate on or
execute the terms of primary legislation. Secondary legislation does not need the same degree
of parliamentary examination as primary legislation and frequently goes through a more efficient
approval mechanism, like affirmative or negative resolution processes. It enables laws to be
revised or broadened without requiring a new Act of Parliament, offering adaptability in
governance.
Though Parliament serves as the highest law making institution in the UK, it has the option to
integrate additional legal sources into the system, as was done with the European Convention
on Human Rights (ECHR). By implementing the Human Rights Act 1998 (HRA), Parliament
successfully incorporated the rights and freedoms set by the ECHR into UK law, enabling UK
courts to enforce these rights directly in domestic situations. The HRA allows UK courts to
interpret laws in a manner that aligns with the ECHR, when feasible, and grants individuals the
ability to present human rights cases in UK courts instead of having to resort to the European
Court of Human Rights in Strasbourg. While Parliament maintains its sovereignty, the Human
Rights Act promotes adherence to ECHR standards, granting this Convention a distinctive
position as a significant legal source within the UK legal system. This integration emphasizes
Parliament's authority to accept and modify external legal standards, creating new legal sources
that must continue to function within the limits of parliamentary sovereignty. This leads the
essay towards the significance of the European Conventions of Human Rights.
While not a source of law wholly indigenous to the United Kingdom, the parliament in light of its
commitment to creating a unified scheme of Human Rights protections throughout Europe
institutionalized an obligation to follow a new system of law: that enshrined within the ECHR.
The Human Rights Act 1998 (HRA 1998) incorporated the European Convention on Human
Rights (ECHR) into British law, establishing a duty for UK courts and Parliament to conform to
ECHR principles. According to the Act, courts must interpret domestic laws in a manner that
aligns with ECHR rights whenever feasible. If a law cannot be fairly interpreted to comply, courts
may issue a "declaration of incompatibility," indicating to Parliament that the legislation is at
odds with human rights standards, but it does not nullify the law. While Parliament is sovereign,
it is anticipated to take ECHR compatibility into account when enacting new laws, and ministers
must indicate if proposed legislation conforms to ECHR standards. Moreover, the HRA 1998
renders it illegal for public authorities to behave in ways that violate ECHR rights, thereby
integrating the Convention’s safeguards into UK public governance and the legal framework.
It was among the initial treaties established following World War II, designed to promote
universal human rights principles. The United Kingdom was among the initial nations to endorse
the Convention, showing a firm dedication to advancing and protecting human rights on both
national and global levels. By ratifying the ECHR, the UK committed to maintaining the rights
outlined in the Convention, including the right to life, protection from torture, and the right to a
fair trial, and to permit individuals to present cases to the European Court of Human Rights if
these rights are infringed.
The Council of Europe established the European Convention on Human Rights (ECHR) in 1950
following the conclusion of World War II. The Convention was created to establish a consistent
framework of human rights standards applicable to all signatory nations in Europe, promoting a
shared basis for human dignity, freedom, and justice. It was the initial global agreement to
define particular rights and liberties, establishing a new benchmark for human rights safeguards
across the continent.
The ECHR was also intended to create a system of checks and balances to protect against
violations of human rights. This was especially important considering Europe’s recent history of
serious human rights abuses during the war. The Convention established the European Court of
Human Rights (ECtHR) to uphold these rights and provide individuals with a direct means to
pursue justice if their rights were violated by their governments. With this framework, the ECHR
sought to avert more abuses, encourage collaboration among European countries, and
safeguard essential rights internationally.
The European Convention on Human Rights (ECHR) functions based on fundamental principles
such as the margin of appreciation and proportionality, allowing nations a degree of flexibility in
their interpretation and application of ECHR rules. The margin of appreciation grants national
governments some leeway in applying the Convention’s rights, acknowledging that every nation
has distinct cultural, historical, and social circumstances that can shape its perspective on
specific rights. This margin holds particular significance in delicate matters like public morals,
national security, and social policies, where there can be a valid difference in how rights are
weighed across various societies.
The principle of proportionality is closely connected and stipulates that any limitation on a right
must be suitable and not overly burdensome in accomplishing a valid objective. In other terms,
authorities must find a balance between restricting a right and the necessity of safeguarding that
right, making certain that any restrictions are warranted and least invasive.
Nevertheless, in spite of this flexibility, the ECHR is still obligatory for all signatory nations,
including the UK, as emphasized by the Human Rights Act 1998 (HRA 1998). The HRA formally
integrates ECHR rights into UK legislation, requiring UK courts and public bodies to respect
them and guaranteeing that the UK legal framework complies with the Convention’s criteria.
This binding characteristic indicates that although the UK enjoys a degree of flexibility in
implementation, it must essentially uphold and safeguard the ECHR rights according to its legal
responsibilities. Having outlined the sources of law, engagement with the essay prompt requires
a dissection of how each of these sources interact with each other and what hierarchy – if any –
exists between these sources.
Despite the chronological appearance of Common Law being prior to Statutory law, it is clear
that in light of democratic principles parliamentary law is sovereign within the United Kingdom.
In the United Kingdom, statutory law—laws established by Acts of Parliament—is viewed as the
highest form of law. This idea originates from the principle of parliamentary sovereignty,
asserting that Parliament is the ultimate legislative authority in the UK. This indicates that
Parliament holds the highest authority to establish, modify, or abolish any law, and no other
entity, including the judiciary, can annul or supersede an Act of Parliament. In contrast to certain
other legal systems, where constitutional or supreme courts can invalidate laws, UK courts do
not possess the power to annul statutes enacted by Parliament. As a result, statutory law
possesses the greatest legal authority in the UK, and all other laws, such as common law or
subordinate legislation, must adhere to the stipulations established by Acts of Parliament.
In the UK, statutory law is viewed as the highest authority mainly due to its democratic
legitimacy. Acts of Parliament, serving as the foundation of statutory law, are established by
elected representatives selected by the public through democratic elections. This provides
statutory law with a distinct authority, as it directly mirrors the will of the people. By electing
representatives, citizens influence the laws that regulate society, crafting regulations and
policies that reflect community values and requirements.
Conversely, judges in the UK are appointed instead of being elected, which indicates they do
not reflect the public's voice in the same manner. Judges interpret and enforce the law, but they
do not make it. This difference highlights the reason parliamentary law has the utmost authority;
Parliament lawmakers are answerable to the public via frequent elections, while judges are
mainly accountable through their compliance with existing laws and legal standards. Thus, the
supremacy of Parliament in creating laws guarantees that the regulations that oversee society
originate directly from a democratically elected and responsible entity.
In the UK, parliamentary law is mostly unrestricted because of the principle of parliamentary
sovereignty, empowering Parliament to enact legislation on almost any issue. Nevertheless,
judicial safeguards are still in operation to guarantee that parliamentary legislation adheres to
essential standards. Courts offer judicial supervision to guarantee compliance with the unwritten
constitution, encompassing core principles like fairness and the safeguarding of individual
rights. Judges may not overturn Acts of Parliament, but they interpret laws in alignment with
these constitutional principles. Furthermore, the UK is obligated by international law through
treaties and conventions, including the European Convention on Human Rights (ECHR). While
Parliament has the authority to enact laws that might contradict these international obligations,
judicial review guarantees that domestic laws are understood in alignment with those
commitments. Courts have the authority to declare incompatibility, prompting Parliament to
revise laws that breach international standards. Therefore, although Parliament possesses
considerable legislative authority, judicial review aids in protecting constitutional values and
international commitments.
Judicially created law, referred to as common law, is viewed as inferior in the legal hierarchy
relative to parliamentary legislation in the UK. This structure is evident as, in most instances,
when there is a dispute between a ruling made by a judge and an Act of Parliament,
parliamentary legislation will take precedence. This arises from the principle of parliamentary
sovereignty, which establishes that Parliament possesses the supreme power to create, modify,
or eliminate laws. Although judges possess the authority to interpret and enforce the law, their
rulings cannot surpass the statutes enacted by Parliament. Therefore, when a dispute occurs
between common law and statutory law, courts are required to implement the statutory law, as it
is deemed the highest form of law in the UK.
Although judge-made law is viewed as subordinate to parliamentary law in the legal hierarchy,
the notion is somewhat complicated by the practice of judicial lawmaking. While judges cannot
override Parliament, they do hold the important power to interpret the language of laws. This
indicates that judges have the ability to impact how laws are applied, molding legal principles
and establishing legal precedents that significantly aid in the evolution of the law. When the
language of a law is uncertain or ambiguous, judges can interpret its meaning or address
omissions, thus shaping the law. Nevertheless, although judges possess the authority to
interpret and influence law through their rulings, Parliament ultimately holds the power to
override judicial law creation. If Parliament is at odds with a judicial interpretation or thinks that a
judge's ruling strays from the intended legislative goal, it has the option to draft a new statute or
modify an existing one to make its stance clear. This power to establish or change legislation
enables Parliament to override judicial lawmaking and revise or restore the law to its intended
purpose, reinforcing the dominance of parliamentary law.
Prima facie, this relationship would seem to suggest that the discussion insofar as primacy is
concerned is relatively clear – parliament reigns sovereign within the United Kingdom. However,
to truly assess whether this is the case, reference must now be made to the ECHR and discuss
where it fits in the hierarchy.
According to Section 2 of the Human Rights Act 1998 (HRA), English courts must "consider"
prior rulings of the European Court of Human Rights (ECtHR) while interpreting and enforcing
the rights specified in the European Convention on Human Rights (ECHR). This indicates that
although the rulings of the ECtHR are not obligatory for UK courts, they carry considerable
persuasive influence. English courts are required to take into account the decisions of the
ECtHR, particularly in cases concerning human rights, and ensure their rulings are consistent
with recognized European human rights law. Nonetheless, UK courts are not obligated to
adhere strictly to ECtHR decisions, and there remains an opportunity for judicial discretion,
especially if the courts feel that the situations in the UK differ significantly from those assessed
by the ECtHR.
In accordance with Section 3 of the Human Rights Act 1998 (HRA), English courts must
"interpret— as much as feasible" all national legislation to ensure it is "consistent with the
Convention" (the European Convention on Human Rights). This implies that when courts
construct UK statutes, they should work to make sure their interpretations correspond with the
rights and principles outlined in the ECHR, even if the language of the law does not clearly
convey this.
Consequently, courts are required to interpret parliamentary law by taking into account the
intentions and phrasing of Parliament in addition to integrating the jurisprudence of the
European Court of Human Rights (ECtHR). This duty compels judges to align national law with
recognized human rights norms, guaranteeing that the UK's laws conform to its global
responsibilities under the ECHR. In practice, this indicates that the courts frequently consider
how the ECtHR has understood comparable human rights matters, incorporating European
human rights case law into the interpretation of UK laws to foster adherence to the Convention.
The stipulations outlined in Sections 2 and 3 of the Human Rights Act 1998 (HRA) affect the
conventional perspective on parliamentary sovereignty and the supremacy of Parliament. In
accordance with these provisions, English courts are required to interpret legislation with regard
to Parliament's intentions and also take into account ECtHR case law, ensuring that domestic
laws conform to the European Convention on Human Rights. This causes a change in power
dynamics, recognizing that European human rights law can impact how UK law is interpreted.
Consequently, Parliament is no longer the only crucial entity in deciding how laws ought to be
implemented, since courts must consider international human rights standards.
Nonetheless, this does not imply that the structure of UK law has been entirely contested.
Section 4 of the HRA preserves Parliament's supremacy by detailing the process for resolving
disagreements between national laws and the ECHR. If a court determines that a law
contradicts the ECHR, it must issue a "declaration of incompatibility" rather than invalidate the
law. This declaration does not alter the law’s functioning or render it invalid; instead, it indicates
to Parliament that it might need to revise or replace the law to comply with human rights
standards. Ultimately, Parliament has the authority to react to these declarations by either
altering the law or upholding the current statute, thereby maintaining its legislative superiority.
In conclusion, the structure of English law prioritizes statute law, demonstrating the concept of
parliamentary sovereignty. Although other sources like common law and ECHR law affect the
interpretation and application of legal principles, they cannot override parliamentary statutes.
Judicial bodies need to interpret legislation in a manner consistent with these other sources
whenever feasible; however, Parliament possesses the authority to enact laws that can
supersede judicial interpretations or decisions on international human rights. Although judicial
lawmaking and human rights obligations have an influence, parliamentary sovereignty continues
to be the cornerstone of the UK legal system, guaranteeing that statute law remains superior to
all other legal sources.