English Legal System

Question: Describe the Source of Law and critically evaluate Case Law?

Source of Law is the origin from which rule of human conduct comes into existence and derive legal force. Britain does not have a written constitution and thus relies on various Sources of law. The Sources of Law used in Britain are Statute Law, European Law, and Case law.

Statute Law is made by the Parliament which consists of the House of Lords, House of Commons and the Monarch. They begin as a Public Bill, Private Bill or a Private Member’s Bill. Public Bills are introduced by the government as part of its program of legislation and affect the public as a whole. A Bill goes through the First Reading, Second Reading, Committee Stage, Report Stage, Third Reading, House of Lords and Royal Assent before it is made an Act of Parliament.  During the First reading the title of the Bill is read in The House of Commons. At the Second reading the proposals are debated and may be amended and members vote whether to proceed. At committee stage the Bill is referred to a committee of the House of Commons for detailed examination bearing in mind points made during debate. During the Report Stage the committee reports back to the House and any proposed amendments are debated and voted upon. At the Third reading the Bill is represented to the House. The Bill then goes to the House of Lords where a similar process of three reading is followed. If anything is altered, the Bill returns to Commons for further consideration. The final stage is Royal Assent “technically, the queen must give her consent to a legislation before it can become law”^[1]; this is seen as a formality.

The European Law is another Source of Law in the UK.  Tony Blair, in a 2004 speech to the CBI stated that "half of all major new regulation comes from the EU"^[2] meaning it is an important Source of Law. The European Communities Act 1972^[3] is the most important provision relating to European Law. Section 2(4) of the European Communities Act 1972 states that English Law should be interpreted and have effect subject to the principle that European Law is supreme; this means that European Law take precedence over all domestic sources of Law. As a result; it has a deep effect on the rights of citizens of Britain. European Law is seen as the most Supreme source of Law as shown by the case of R.Vs Secretary of state of Employment (1994)^[4] where the House of Lords found a conflict between Employment Protection Act 1978 ^[5]and that of equal treatment for male and female employees; thus the Uk government were forced to change the law and greatly improve the rights of part-time workers. Section 2(1) of the European Communities states that the UK must, for example enforce all rights directly resulting from the treaties and Community without further enactment to be given legal effect or used is directly enforceable in UK courts this has bound Britain to any future treaties or Community regulations.

Case Law is made by the judges. Case Law is the legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases.^[6] Historically a great deal of our law has always been case law. The doctrine of Precedent is used in Case Law; states that once a decision has been reached in a particular case it stands good law and should be relied upon in other cases as an accurate statement of law. The doctrine has 2 presumptions; cases with the same or similar material facts should be decided the same way and decisions made in higher level courts carry greater weight than those in the lower.

 Case law plays an important role in the British constitution.  It helps ensures certainty as judicial precedent means similar cases will be treated alike. They are detailed practical rules as Case law is a response to real situations. They are free market in legal ideas as stated by Hayek (1982) this means that if a ratio of a case is seen not to work it will be abandoned, if it works it will be followed. Case Law is Flexible as it meets the need of a changing society. However case law can be seen as rigid,  judges have to follow a binding precedent even where they think it is bad law.  They is also an illogical distinction as the fact  binding precedents must be followed which may lead judges to make minute distinctions between facts of a previous case and the case before them, this in turn leads to a mass of cases all establishing different precedences. This illogical distinctions leads Case Law to being unpredictable. Case Law is dependent on chance as changes are only in response to those cases brought before it. It can be Unsystematic as a whole series of rules can be built on one case, if this is overruled the whole structure can collapse. Case Law is seen to have a lack of research as the judges are only presented with the facts of the case and legal arguments; they are not concerned with economic and social implications of the decision. They are a Retrospective effect, for example if a case changed the law the parties concerned in that case could not have known what the law was before they acted. Case law is a complex to find out what is "the law" on a subject matter it may be very difficult to find or to state as it is spread across various cases. It is highly undemocratic because judges do not have democratic mandate.