Sources of English law

Although acts of Parliament are the best known source of English law, they are by no means the only source. There are five sources in total, although the most important ones are legislation (primary and delegated) and case law.

Sources of English LawThe five sources of English law are:

  • Legislation
  • Case law (precedent)
  • European Union law
  • Custom
  • Legal texts

Legislation and case law are the most important sources, although European Union law takes precedence over English law in certain matters. Most customs have either been fallen into disuse or have been integrated into statute or case law. Legal texts can be regarded more as aids to interpreting the law rather than actual sources of law.

Legislation comprises:

  • Primary legislation: Acts of Parliament also known as statutes. This is the most important source of law.
  • Secondary legislation: Also known as delegated legislation, these are laws created by local authorities and other public bodies that have been given powers to make regulations for specific purposes by Parliament.

Acts of ParliamentThe legislative functions of Acts of Parliament or statutes consist of:

  • Codification: includes law that may be found in common law, case law and statute into an act of Parliament.
  • Consolidation: merges legislation split between various statutes into one.
  • Law reform: statutes can be used to change or repeal existing legislation or to overturn precedent (case law) set by the Supreme Court.
  • Revenue collection: Parliament introduces a Finance Act every year following the budget.
  • Special legislation: updates legislation to keep pace with social change.

Every piece of legislation starts life as a Bill and before it can become an Act of Parliament or statute, the Bill has to go through a lengthy approval process in both houses. Bills can start in either house.

A bill can be introduced in two ways:

  • Government Bill: the government decides to introduce a Bill as a result of recommendations from the Cabinet, a Committee, a Royal Commission or by public demand. The proposals are set out in a document called a Green Paper which is a preliminary discussion document. Once the Green Paper has been discussed, feedback is incorporated into a White Paper which is the proposal presented to the House.

  • Private Members Bill: individual MPs can present a Bill to Parliament. Most private members bills do not become law but a handful of them have become important pieces of legislation.

The Bill goes through a lengthy process of discussion and debate, amendments and votes at every stage of the way. A Bill can be voted out at various points in the process or it can just be amended. If the Bill makes it past the third reading and final vote, it’s passed on to the other House where the process is pretty much repeated. If the Bill started in the House of Commons it will be passed to the House of Lords and vice versa.

If both Houses approve the Bill, the Prime Minister presents it to the Monarch for her to sign it. This is called Royal Ascent and at this point the Bill becomes a new Act of Parliament or statute.

Overview of the law making process

Parliamentary law making process

Parliament confers powers on individuals and public bodies such as local authorities, to make their own regulations. Delegated legislation is enacted by those individuals or bodies who have been given authority to introduce the legislation. Delegated legislation saves time because it’s not subject to the lengthy process involved in passing an Act of Parliament but its scope is limited.

Parliament gives other bodies the power to make delegated legislation with a parent (or enabling) act.

Advantages and disadvantages of secondary or delegated legislation

  • Advantages
    • Regulations can be made quickly without undergoing the lengthy approval and voting process involved in Parliamentary law making.
    • Allows Parliament to concentrate on other matters.
    • Provides flexibility because regulations can be revised and modified as required.
    • Makes the best use of expertise in specific areas.
  • Disadvantages
    • Vast amounts of legislation can be produced.
    • Takes legislation out of the democratic system by allowing people other than elected MPs to make law.
    • Can be hard to keep pace with all the delegated legislation being created.

Types of secondary legislation

Delegated Legislation

  • Statutory Instruments are a form of legislation used to bring into force or alter Acts of Parliament. They often complement the Act itself by providing additional detail. Each statute or Act of Parliament has a Statutory Instrument that determines when the legislation comes into force, sometimes different parts of an Act may come into force at different times. Statutory Instruments include Rules, Regulations and Orders.
    • Rules set out procedures to perform certain actions, for example, The Civil Procedure Rules.
    • Regulations are used to legislate specialised areas and to comply with European legislation directives.
    • Orders are used to bring legislation into force.
  • By-laws are passed by local authorities and other public bodies, they are mostly local and restricted to the relevant area. Many by-laws are made under the authority of the Local Government Act 1972. Common examples include laws regarding parks, footpaths and public spaces such as those forbidding drinking or smoking in certain places.
  • Orders in Council are made by the Monarch and the Privy Council which is a body made up of senior politicians, judges and members of the Royal Family. Orders in council are used for:
    • Dealing with urgent matters and emergency measures;
    • Dissolving parliament before an election;
    • Bringing acts of parliament into force;
    • Compliance with European Union directives;
    • Dealing with foreign affairs; and
    • Transferring power from Westminster to the Scottish Parliaments and the Welsh assembly.

Controls over delegated legislation

Judicial review is exercised by the Queen’s Bench Divisional Court, which exercises supervisory powers over the decisions of government ministers.  If the court finds that the legislation is ultra vires (exceeding its powers) the court can make an order with the effect of making the legislation void.

  • Substantive ultra vires – The legislation can be challenged in the courts if the law has been created outside the powers of the body that created it or constitutes an abuse of power by public authorities.
  • Procedural ultra vires – If there is an argument that the correct procedure was not followed when the law was made, the courts can step in and may decide that the delegated legislation is ultra vires.

The court cannot make an order substituting the ultra vires legislation, this means that new legislation will have to be made following correct procedures and complying with any parameters set by the enabling Act.

Delegated legislation can also be declared void if they conflict with European Union legislation.

Scales and gavelCase law is made up of judgments or decisions made by the higher courts interpreting the meaning of statutes. They are also known as precedents or authorities and are binding on all inferior courts and  in some cases, on courts of the same level. See court structure for more information about the English court system.

The doctrine of judicial precedent is based on the idea that it’s not up to a judge to make law, that’s the function of Parliament. Judges should decide cases in accordance with existing rules which have been applied to similar cases. See appeals and precedent for more information on case law.

EU Law processThe UK joined European Union (EU) in 1973, and from that date accepted its obligation to implement European throughout the country and fulfil its obligations under the Treaty.

EU legislation has become part of English law. It does not replace English law, however, it can override those parts of the law that may be against it. If there is a conflict between EU law and English law, EU law will prevail. Some people regard this as an erosion of the sovereignty of  Parliament, since the UK has to obey EU law even though it hasn’t been created by our elected representatives.

European legislature

EU law is created by three European bodies:

      • The European Commission draft the proposals.
      • The European Parliament debates the proposal and can accept or reject it, or puts forward its own amendments.
      • The European Council of ministers enacts the legislation. It can accept or reject the European Parliament’s amendments and make amendments of their own. The proposal becomes law once approved by the Council.

Types of EU legislation

EU Law TypesThere are three basic types of EU law:

      • Regulations are binding acts similar to national law (such as English law) which apply to all EU countries. They are binding in the UK even if this country has not enacted legislation to that effect.
      • Directives  set out general objectives to be achieved by all EU countries but leave it up to the individual country to make their own laws to implement the directives. The UK has created its own legislation to implement a number European Directives, an example is the Working Time Directive.
      • Decisions refer to specific matters brought in front of the European authorities and are only binding on a specific member state, an individual or corporation.
INFOEnglish courts cannot interpret EU legislation, only the European Court can interpret EU legislation. If English Courts, come across any EU legislation that requires interpretation, it has to be remitted to the European Court for a ruling.

Customs are common habits or behaviours observed by society. Customary law is the oldest form of English law and the foundation of the Common Law. Customs can apply to the whole country or to a local area.

Nowadays, custom as a source of law has largely disappeared as most customs have been incorporated into legislation or precedent, however, there are occasions where the courts may need to determine whether something can be regarded as a custom. To establish whether a custom exists or not, certain rules are applied.

Requirements for a custom to be valid

The custom must:

      • Have existed since time immemorial. In English law, this has been fixed as the year 1189. It’s not possible to apply this test rigidly for obvious reasons and the party that wishes to argue against the custom must show that the custom did not exist that far back.
      • Have existed continuously without a break.
      • Have been exercised peacefully and as of right, without the use of force or the need for permission.
      • Be reasonable.
      • Be certain.
      • Be consistent with other customs.
      • Must not be contrary to any law (statute).