The Different Sources of Law in England and Wales - Essay Example

The Different Sources of Law in England and Wales Introduction The legal order that currently exists in England and Wales is not be governed by any single constitutional documentation but by a combination of common law, constitutional convention, statute and practice. The principal sources of law as applied to these two countries are European Union law, common law, statute law and the European convention on Human Rights. Statute Law Statute Law is essentially law that has been written down and then codified into law. Statute law in England and Wales are internal laws that only affect these two countries. In their formation, statute laws begin as either a public or private bill. Public bills are those bills that affect either the whole of the United Kingdom or a number of constituent countries such as England and Wales; conversely private bills are bills designed to apply only to specific locations within England and Wales, or to grant limited powers to various public bodies such as local authorities (Flintoff, 1840). Bills have to undergo critical scrutiny and refinement before the final draft can be created. After this, the bill is accorded its first reading and then after its second reading, there is a general debate pertaining to its content. Once a bill is at the committee stage, the House of Lords and the House of Commons are allowed to make amendments to it. Additional refinements can be made to a bill at the report stage as it is being considered. A third reading allows for any final changes to be made before it is then passed on to the other house ad final amendments can then be made. After this process ends, a bill then receives a “Royal Assent” which allows for it to become law (Flintoff, 1840). Common Law According to Adams (2014), Common law comprises of internal legal precedents that have been made by sitting judges, this evolved from the three English Crown courts of the King’s Bench, the Exchequer and the Common Pleas. As opposed to statute law, common laws are constantly changing. The constant changing of common law can be attributed to the fluid manner in which judges are able to interpret the law using their knowledge of legal precedent, applying common sense, as critically considering the critical facts of the case they are hearing. Judges create common law by delivering written judgments on the cases that have been brought before them. If magistrates’ courts across both Wales and England were to be allowed to follow and make their own precedents, this would have the effect of creating relatively huge variations in both the regional and local legal customs in the two countries (Gearey, Morrison and Jago, 2013). The common law works to ensure that the law remains common throughout the land. However, it is the responsibility of the House of Lords and the criminal division of the Court of Appeal to create legal precedents in relation to criminal matters affecting Wales and England. It is the decision that is made by these higher courts that works to bind the lower courts. At times, new situations occur that are found to be entirely new in relation to common law. In such instances, courts in England and Wales can sometimes opt to look aboard at the decisions of the courts made in other commonwealth countries in order to seek the necessary guidance or from them. This allows for common law systems to have a degree of flexibility and stability as they continue to look to each other for guidance (Gearey, Morrison and Jago, 2013). Statute Law and Common Law Interaction Although the English legal system is primarily founded n common law, this does not necessarily mean that statutes are any less binding. In fact, the relationship between statute and common law is that that statute law codifies certain rules whereas the common law serves to provide clarification and interpretations when facts pertaining to instant cases are applied to codified law. Common law helps to keep statute law up to date and in keeping with the modern problems and solutions. It also helps to aids in the creation of precedent where there currently exists no statutory codification. Statutes are effectively superior to common law. If a court happens to make a decision pertaining to a given statute and the legislature happens to not like it, the legislature can overrule the court by creating a new statute or modifying the current (Gearey, Morrison and Jago, 2013). European Union Law The European Union was formed after the events of World War II and was aimed at creating lasting peace across Europe. The 1972 European communities Act incorporated European law into the UK law. Adams (2014) points out that Section 2 of the European law causes it to be a binding source of UK law. Of note is that when European Law exits on a particular subject as is set out in its regulations and treaties, this law is considered to be superior and overrides all other inconsistent UK law including Statute law. The postulations made by Adams (2014) are supported by Kaczorowska (2008) who highlights the fact that EU law is binding and all the Union’s various member states are required to adhere to it. The Courts of Justice is one of the key EU institutions; this court is tasked with the interpretation of EU law and ensuring that EU law is equally applied in the same manner across all the different Union member countries. In its capacity, the institution settles all the legal disputes between EU institutions and EU governments. It is also possible for organizations, individuals or companies to bring their cases before the court if they happen to feel that their rights have been critically infringed by one of the EU institutions. The creation of EU law begins by the European commission making a proposal that is often made in response to an invitation that has been made by a particular member state. The EU parliament and grouping of EU governments such as England and Wales will then debate on this law before amending and eventually adopting it. The England and Wales government will liaise closely with its permanent representative in Brussels to ensure that the proposed legislation is as closely as possible in tandem with its own national interests (Kaczorowska, 2008). In Wales and England, departmental policy officials assess the impact of the proposal on the legal system in addition to considering if it is the best means through which the Commission’s policy objectives can be achieved. After an EU law has been passed, England and Wales are responsible for ensuring that the national legislation is consistent with European law. This sometimes necessitates that amendments are made to existing provisions as well as the introduction of new law in the event that this is necessary. European Convention on Human Rights The United Kingdom signed this external law convention after its development by the Council of Europe in 1950. The UK then ratified the convention in 1951. The convention allows for individuals to present their cases if they happen to feel that any of their rights have been violate by a member state (Greer, 2006). This convention has affected the law in Wales and England in that the government must always attempt to secure legislative reform wherever it is found to be in breach of this law. Before the citizens of England and Wales can apply to the European Court of Human Rights, they are first required to try and pursue any legal proceedings in the country that might possibly be capable of giving them the appropriate redress for any violation of convention rights. The Human Rights Act was passed in 1988 so as to provide further effect to European Convention in British Law (Adams, 2014). Under this law, Public Authorities across the country are required to act respectfully to other people’s rights under the convention. In the event of ambiguity as to what the law exactly requires, the courts in England and Wales Assume that the law should fundamentally be interpreted in a manner that is perceived to be complying with England and Wales’ international obligations (Greer, 2006). Secondary sources of UK law are mainly identified as being commentaries on the law; these include law journals, legal encyclopedias, Text books as well as Parliamentary and Non Parliamentary Documents. Conclusion There are four main sources from which laws in England and Wales are derived. These four sources are European Union law, Statute law, common law and the European convention on human rights. Statute law and common law are the two main internal source of law in England and Wales whereas European Union law and European Convention on human rights are the two main external sources of law. EU law has the effect of necessitating that some changes be made in the internal England and Wales law so as to ensure that these laws are consistent with the superior EU Laws. European Convention on Human Rights laws also affects the laws in England and Wales but to a lesser extent as compared to EU law. This is because courts in these two countries can interpret these laws in a manner that is perceived to be complying with the international obligations of England and Wales. Bibliography Adams, A. 2014. Law for business students. Pearson Education. Flintoff, O. 1840. The Rise and Progress of the Laws of England and Wales. Richards. Gearey, A., Morrison, W., & Jago, R. (2013). The politics of the common law: perspectives, rights, processes, institutions. Routledge-Cavendish. Greer, S. C. 2006. The European Convention on Human Rights achievements, problems and prospects. Cambridge UK, Cambridge University Press. Kaczorowska, A. 2008. European Union Law. Routledge. Read More