Topic 3: Sources of Law Flashcards
What are the 3 types of sources of law?
- Law by parliament (legislation/acts of parliament/statutes)
- Common law (common law/case law)
- ECHR law (HRA law/ECHR law)
What is the structure of parliment in England & Wales?
Parliament in England & Wales comprises of a bicameral system (two ‘chambers’
- House of Commons - democratically elected MPs
- House of Lords - some appointed and inherited
What are the 4 phases of the parliamentary process that a Bill goes through to become an Act of Parliament
1) ‘Green Paper’ (consultation)
- Sets out tentative proposals for changes to law and invite committees
2) ‘White Paper’ (consultation)
- Contains government’s firm proposals for new law and may have draft Bill attached
3) Introduction of draft Bill
- After the 2 consultation process, draft Bill introduced to parliament to debate, discuss, and amend
4) Royal Assent
- Signed by the King and published as an Act
What are the 2 types of legislation?
Primary legislation
- Refers to an Act of Parliament - as it takes a long time for it to go through all stages of parliamentary process
Secondary legislation / statutory instruments
- Drafting of the Act which contains broad provisions
- Detailed rules produced later under the Act (regulations/rules/orders)
What is devolved legislation?
What are the 3 Acts for this?
Transfer of some powers to the 3 nations - Scotland, Wales, Northern Ireland
- Scotland Act 1998 - Scottish parliament
- Government of Wales Act 1998 - Welsh Assembly
- Northern Ireland Act 1998 - Northern Ireland Assembly
How do the devolved bodies get their power from?
Can devolved powers pass any laws?
Westminster devolves some powers to the bodies
* How much power is different to each devolved legislature and individual arrangements that have changed over time
Devolved legislature can pass legislation in areas that are specified by statute by UK Westminster Parliament (devolved matters only)
What is common law /’judge-made law’?
Referred to decisions made by courts, most fundamental legal rules and principles established by judges in individual cases (rather than laid down by parliament)
- Most usual common law is formation of a binding contract (not found in statute)
Lawyers and judges would look at ‘legal precedents’ rather than statute
What academic explains the source of common law?
Sir William Blackstone in ‘Commentaries on the laws of England’ – explains the source of common law
- “The Common Law is to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law.”
How was the European Union formed?
history
- EU is an economic and political partnership between 27 European countries created after WWII
- Initial purpose was to encourage economic cooperation
- Assuming that economic independence would avoid future conflict
- EU now has an economic and political union
- Based of ROL and laws are based on treaties that have been democratically agreed by all member countries
What was the purpose of the creation of the EU?
What treaty was created for this?
Promote human rights
- Treaty of Lisbon in 2009 (EU Charter of Fundamental Rights) placed all human rights in a single document
What Act was enacted to withdraw from the EU?
What date did UK leave the EU?
Is UK still bound to follow EU law?
Introduction
- European Union (Withdrawal Agreement) Act 2020 was enacted and UK left EU on 31 January 2020
- EU law no longer is a source of domestic law in the UK (ended 30 Dec 2020)
- But EU (Withdrawal) Act 2018 made provisions that defined ‘retained EU law’
- This was a snapshot of EU law when it existed on 31 Dec 2020 and was converted into domestic law
- Retained EU law became part of domestic law as primary or secondary legislation
Application
- As domestic courts are no longer bound to EU law or decisions of the CJEU, they also can’t refer questions to CJEU for advice
- They need to look at EU law and judgements to interpret retained EU law
What is the Act that repealed retained EU laws?
What was the effect of this enactment?
Retained EU Law (Revocation and Reform) Act 2023
- Received royal assent on 29 June 2023
- Made significant changed to retained EU law
- All retained EU law (except limited number of laws specifically saved) would have been automatically repealed
- The Act plans to repeal 600 pieces of specific EU law at the end of 2023
- Any laws not listed in revocation schedule would be automatically retained
Note
- The Act abolished supremacy of EU and renamed ‘retained EU law’ now known as ‘assimilated law’
- It allows & encourages courts to depart more often from previous case law by the CJUE
How long has fundamental rights and freedoms been protected and by what?
Certain fundamental rights and freedoms have been protected since the singing of Magna Carta (‘Great Charter’) by King John of England 1215
- It sets out many human rights and fundamental rights of good government
What was the original approach towards human rights in English law?
Previously, the approach of human rights in English law is seen as a negative rather than positive protection
- ‘Negative theory of rights’ - where citizens can do whatever they want unless specifically prohibited by laws that are clear and accessible to the government
- Common law also constraints powers of government to ensure they don’t exceed their powers
What case protected human rights before ECHR or HRA 1998?
R v Lord Chancellor ex parte Witham [1998]
R v Lord Chancellor ex parte Witham [1998]
protection of human rights before ECHR & HRA 1998
Facts
- LC significantly increased fees that litigants were required to pay to issue proceedings in civil courts to have dispute decided by a judge
- Before there was an exemption for people with low incomes to be able to access courts
- The LC had removed the exemption for people suffering financial hardship
- MR Witham brought the issue for JR
Held
- High Court granted declaration that the LC exceed his statutory powers
- On grounds that it had the effect of the increase would exclude people from access to courts
Laws J
- Laws J states that access to courts is a ‘constitutional right’ that can’t be displaced except by parliament -
- “It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen’s right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.”
What changed the approach to the traditional view to human rights?
Since the HRA 1998 a wide range of fundamental rights and freedoms are now positively protected by the Act
- Human rights are now a fundamental right to the ROL
What was the ECHR?
Are the CoE and ECHR the same thing?
Introduction
- ECHR is an international treaty drafted in 1950 and came into effect in 1953
- It was singed by European nations that were members of the Council of Europe (body in Strasbourg)
Note
- CoE and ECHR are completely separate from EU
- Convention is not a piece of EU law
- UK continues to be bound by ECHR even after the leaving of EU
CoE
- Uk was one of the 1st to sign to the convention in 1953
- There are now 46 countries signed up to the convention
- Singithe singing of the convention makes up the CoE
What was the purpose of the ECHR?
ECHR was a reaction to WWII and for the nations to join together to protect human rights if it were to happen again
What Act ‘directly’ incorporated ECHR laws?
Human Rights Act 1998
- In 1998 UK passed the Human Rights Act 1998 incorporating directly into English law the main provisions in ECHR
- So now UK citizens can bring action to courts if they think the government breached their human right obligations (ECtHR)
What is the European Court of Human Rights (ECtHR)?
Introduction
- ECtHR allows individuals to bring proceedings to Strasbourg, France if government breaches their rights
- The court was set up in 1959
Note
- Don’t confuse with CJUE in Luxembourg for ensuring EU law is interpreted and applied in the same way in every EU country
- CJUE also ensures countries and EU institutions abide EU law
What are the 17 important articles from ECHR?
- Article 2 - right to life
- Article 3 - prohibition of torture
- Article 4 - prohibition of slavery and forced labour
- Article 5 - right to liberty and security
- Article 6 - right to a fair trial
- Article 7 -no punishment without law
- Article 8 - right to respect for family and private life
- Article 9 - freedom of thought, conscience and religion
- Article 10 - freedom of expression
- Article 11 - freedom of assembly and association
- Article 14 - prohibition of discrimination
- Article 15 - Derogation
- Articles 1 & 2 of Protocol 6 - right not to be subjected to the death penalty
- Article 3 of Protocol 1 - right to free elections
What articles are not subject (absolute) to Article 15 - derogation
Devolved legislation allows states to completely refuse some rights and freedoms
- However, Articles 2, 3, 4, 7, 14 are absolute
- Rest are subject to potential limitations
What is a margin of appreciation?
What is its function?
Introduction
- It is difficult to ensure compliance with ECHR by all the 46 member states of CoE due to culture and legal traditions
- To accommodate ECtHR developed a doctrine of ‘margin of appreciation’ which is a degree of discretion to consider each state when breaching the ECHR regarding: legislative, administrative, or judicial action
Function
- Allows courts to take into account convention will be interpreted differently for member states regarding legal & cultural traditions (i.e. security/emergency issues)
- This doctrine allows flexibility to balance sovereignty of member states
What is a case that dealt with margin of appreaciation?
Lautsi v Italy
Context
- Dealt with margin of appreciation
Facts
- Applicant was an Italian citizen of Finnish origin
- Brought complaint against Italy for her 2 children
- Alleged that display of crucifix in classrooms of public schools interfered with children’s freedom of belief
- And right to education and teaching consistent with her philosophers conviction under Article 9 (freedom & belief)
Held
- ECtHR ruled that porecense of crucifix in Italian public schools does not infringe Article 9
- Highlighting margin of appreciation for Italy
- Religious matters were sovereignty of member states to respect culture and traditions of each country
What is the principle of proportionality regarding human rights under ECHR?
What are the 3 requriements?
proportionality
Introduction
- State interference with human rights is to be judged
- Although it is accepted sometimes the state may restrict or interfere with human rights or freedom, principle of proportionality requires that such interference be necessary and goes no further than what is essential to achieve the objective
3 requirements
1. So public authority that affects basic human rights needs to be appropriate to achieve the intended objective
2. Necessary that there is no less severe means of achieving the objective
3. Reasonable in the circumstances
What academic provides a view on proportionality?
proportionality
- Lord Justice Laws Hamlyn Lectures in 2013 in referred to proportionality as ‘minimal interference’:
- “…every intrusion by the State upon the freedom of the individual stands in need of justification. Accordingly, any interference which is greater than required for the State’s proper purpose cannot be justified. This is at the core of proportionality; it articulates the discipline which proportionality imposes on decision makers.”
What case lays down the 3 criteria for the principle of proportionality?
proportioanlity
Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999]
Lord Clyde states criterias/questions to decide whether legislative interference is arbitrary or excessive
- The legislative objective is sufficiently important to justify limiting a fundamental right
- The measures designed to meet the legislative objective are rationally connected to it; and
- The means used to impair the right or freedom are no more than is necessary to accomplish the objective
What are the 2 provisions of the HRA which provide how it functions
This function is seen in Sections 3 & 4
- Section 3 - where it protects human rights by requiring courts to interpret statutes as far as possible compliant to ECHR
- Section 4 - If S.3 is not possible then courts can declare a DOI or strike down legislation (only UKSC, COA, High Court)
What are the 6 relevant sections in HRA 1998?
1) Section 2
- Requires courts to take account previous ECtHR decisions
2) Section 3
- All legislation to read, so far as possible, to give effect to ECHR rights
3) Section 4
- Power to declare ‘declaration of incompatibility’ if Act conflicts with ECHR rights
4) Section 6
- Unlawful for public authority to act incompatible with ECHR
5) Section 10
- Provides fast-track procedures for remedial legislation to be passed (necessary if DOI is issued)
6) Section 19
- Requires minister responsible for Bill to make a written statement that provisions of the Bill are compatible with ECHR rights
What review was carried out on HRA?
What were the grounds for reforming HRA?
What were the recommendations?
On December 2020, conservative government established an independent review for HRA focused on 2 themes
- Relationship between domestic and ECtHR
- Impact of HRA on relationship of 3 bodies of government
- Many criticisms made on the plans to ‘update’ HRA
Joint Committee on case for changing HRA stated
1. Cases are heard by UK courts rather than needing to go to Strasbourg
2. Meaning cases are heard sooner and less expensive
3. UK judges would also take better account of the national context when reaching decisions
4. While courts can declare incompatibility of statutes, they can’t overturn primary legislation, upholding PS
5. Public authorities need to comply with ECHR
6. HRA is central to devolution settlement
7. Amending HRA would be a huge risk to the constitutional settlement and to enforcement of rights
Independent Review made recommendations about changes to HRA
- Better education about constitution and human rights
- Section 2 to be amended to give statutory recognition to case law, which would allow case laws and statutes to apply first when interpreting ECHR
- No changes to margin of appreciation
What was the government’s response to the recommendations from review by the Joint Commitee?
Government response was to publish their own consultation which proposed more wide ranging reforms and intended to replace HRA with a ‘modern Bill of Rights’
1. The BOR went through parliamentary process but withdrawn in June 2023
2. The Bill had proposed to remove duty of courts to interpret legislation according to ECHR
3. Removing duty of courts to consider how ECtHR interpret a right
4. Requiring courts to give power to parliament when balancing rights issues
What is a civil law system?
What is an example of a country and the sources of law that this system uses?
Introduction
- Comparison - sources of law in the English legal system compared to civil justice system are mostly importance to case laws
- Principle sources of laws are legal codes and legislation
- Courts in civil law refer to decisions in previous cases but don’t rely on binding precedent, so case law is not formal source of law
Example of sources of law - France
- Legislation comprising of constitution, treaties, statues, and government regulations
- Constitution at the top of hierarchy > government regulations bottom
- French parliament can only enact laws accordance to constitution
- Courts ensure that statues are not contrary to constitution
What are characteristics of the English legal system?
common law system
- No such formal hierarchy of laws
- PS means that statutes are the highest form of law in UK (used to be EU law, until UK left)
- Statues required to interpret as far as possible compliance to ECHR, though can’t invalidate even if they are not consistent with convention rights
What are the 4 similarities and 4 differences between the civil law system and common law system
Similarities
- France legislation also has to go through legislative process similar to UK parliament
- Bill has to go through both houses of French parliament
- President of the Republic must promulgate the bill and must be published in the Official Journal
- Legislation in form of governmental regulations are the same with English common law
Difference
- French laws are different as it is codified
- Codification in civil law systems are that law is from a single document (written constitution) rather than case laws and statute
- Different codes are used in French legal system dealing with different aspects of law (Civil Code, Civil Procedure Code, Commercial Code)
- However, not everything is in codes, also has separate legislation that amend the codes or are independent from them
What are the pros and cons of codifying a constitution?
Pros
- Easily accessible and understandable - easy for normal citizens to know what law is
- Certainty and consistency - rafting codes involves thinking about laws in a logical and systematic way
Cons
- Codes still won’t give complete picture of law - in modern times there are multiple sources of law
- Stuck in time - codification makes laws not being able to be amended and updated so often
What body serves as the ‘public international law’?
What are the 4 issues that they focus on?
- International law is termed as ‘public international law’ related to work of the United Nations or one of its specialised agencies
- UN was formed in 1945, currently made up of 193 member states
- Works on issues that affect world community -
1. Peace & security
2. Climate change
3. Sustainable development
4. Human rights
Is international law a direct source of UK law?
1) International law is not directly a source of UK law
2) England uses a ‘dualist’ system
- International treaties have to be expressly incorporated for them to have legal effect
- Ratification of a treaty not enough to have legal effect in UK courts
- Example of why ECHR is law of English law as it is incorporated
What is the Act created the Law Commission of England & Wales that is responsible for advising on law reforms?
What is the provision that states this?
Law Commission was established by Law Commission Act 1965
Section 3(1) states -
- It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law…
What are the 3 main functions of the Law Commisions of England & Wales - Law Commision Act 1965
- Keep the law as a whole under review and make recommendations for its reform ensuring fair, modern, simple, cost-effective reforms
- Operates by drawing up programmes of law reform every 3-4 years by statute
- Sometimes law reform projects referred directly by government departments
What is the procedure/process that the Law Commission carries out?
- Commission research on current law and defects and research other jurisdictions
- Consultation paper suggests solutions
- At the end of law reform project, report with final recommendations are submitted to LC
Does the Law Commission for England & Wales make law?
1) The Commission is only an advisory body, they can’t make law
2) Government also not permitted to follow recommendations
- However, Protocol agreed between Law Commissions and government in 2010 stated that the final report must provide a response within a year
- Law Commissions Act 2009 stated that LC must report to parliament annually on governmental progress on reports
