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The Impact of External Sources on the Development of Law in England and Wales: A Study of EU Law and the European Convention on Human Rights

Introduction

The term ‘source’ is used in the sense that there are different methods that are used for developing the law and these are the sources of law (Martin, 2013). In England and Wales, there is not one source, but many sources that have led to the development of the law. Basically, there are four main sources of law, with Common law being the oldest of the four. Statute, is the primary law and the most important source of law in the UK today. The law of the European Union (EU) has come to occupy an important place today in the UK. Also, the European Convention on Human Rights has emerged as an important source of law with respect to human rights and liberties. Of these, common law and statute are internal sources of law and EU law and ECHR are external sources. However, these external sources, as this essay seeks to establish, have greatly impacted the sources of law that are internal.

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The essay first discusses the sources of law. Then, the influence of the external sources, that is, EU law and ECHR on the internal sources are also discussed.

Sources of Law

Sources of law are the modes in which the law is developed or the actual source from where the law is derived. Common law and statute are considered to be the most important sources of law. There are also some historical sources that pre date common law and statute, such as “custom, Roman Law and authoritative texts, such as Blackstone’s commentaries” (Wilson, et al., 2016, p. 28).

Common law (internal source)

Out of the four sources considered in this essay, Common law is the oldest in the English legal system. Initially, common law consisted of customs, as were declared by the judges. Over a period of time, common law came to be seen as a judge made law as opposed to statute, which is law made by the Parliament (Slapper & Kelly, 2009, p. 5). The common law emerged through the process in which a single legal system was established throughout England (Slapper & Kelly, 2009, p. 14). Common law can be defined as “an unwritten law developed from customs and judicial decisions” (Martin, 2013). Common law remains an important source of law in the English legal system today. This has been made possible due to the application of the doctrine of stare decisis, which is an important factor in common law becoming a source of law. The doctrine gave the judge made law (precedent), as binding character for subsequent cases. For this, the courts in the UK are hierarchical, so that the judgements of superior courts are binding on subordinate courts. Moreover, judgements are reported (Wilson, et al., 2016, p. 28).

Statute (internal source)

Statutory law is the most important source of law today. Statute is the Act of the Parliament and it is primary legislation. Parliament is the supreme law making body and the law made by the Parliament cannot even bind its successors because whichever is the parliament of the day, is supreme and cannot be bound by its predecessor. In the UK, the principle of parliamentary sovereignty is applied to mean that the primary legislation is the supreme law of the land and it is outside the scope of judicial review (Abbott, et al., 2007, p. 25). Legislation itself may be categorised into two categories: primary legislation, that is, the law made by the Parliament; and delegated legislation, that is, the rules made by executive authorities as per the rule making powers given by primary legislation. Delegated legislation by itself has become an important source of law because every year more and more delegated legislation is being created.

EU Law (external source)

Since the UK became a member of the EU, EU law came to occupy an important place as a source of law in the UK. This is because of the stated position that EU law is supreme in each EU state (Costa v Enel (1964) Case 6/64., n.d.).

As the UK became a member of the EU, it had to comply with treaty obligations that were agreed to under the aegis of the European communities and for that purpose the British Parliament felt the need to enact a specific legislation to give superiority to the institutions of the European Communities (Wilson, et al., 2016, p. 34).

The British Parliament enacted the European Communities Act 1972 to give effect to EU law in the UK. The Act provides in s.2(1) that municipal law of UK, irrespective of date of enactment should be in compliance with the EU law (Barnett, 2014, p. 129). The Act provides the ‘Directly effective EU law’ principle in s.2(4), as per which the courts are under the statutory duty to interpret domestic law in compliance with the EU law (Broadbent, 2009, p. 7). This came to be the reason why EU law had an impact on the primary and delegated legislation in the UK, because such legislation is to comply with the EU law.

Where there is a conflict between the domestic law and EU law, the latter will prevail over the former. Courts are authorised by the European Communities Act 1972 to declare incompatibility between domestic law and EU law. In R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70, the House of Lords used the provisions of the European Communities Act 1972, to suspend the operation of a domestic legislation due to contradictory positions of the domestic legislation and the relevant EU law (Turpin & Tomkins, 2011, p. 351). Again, in R v Secretary of State for Employment, ex p Equal Opportunities Commission, (1995) 1 AC 1, the House of Lords held that there cannot be a contrary position in the domestic law to the EU law.

European Convention of Human Rights (external source)

The ECHR, which was passed by the Council of Europe, came to be directly applicable in the UK in 1998, with the enactment of the Human Rights Act 1998 by the British Parliament (Slapper & Kelly, 2009, p. 25). The ECHR is a European treaty related to the protection of human rights and liberties. As such, it defines many of the key human rights and also prescribes a mechanism for the redressal of these rights in case they are violated in a manner contrary to the treaty. The individuals can directly file a case against the state itself in the European Court of Human Rights (ECtHR) and the court can give binding judgements in the case. Moreover, the courts have to give effect to the ECHR provisions as well as the judgements of the ECtHR (Wilson, et al., 2016, p. 28).

Like the European Communities Act 1972, the HRA 1998 also provides that courts can declare incompatibility between domestic law and ECHR. This is provided under s.4:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

There are two impacts of the ECHR on the English legal system. First, the actions of the public authorities must be in compliance with the ECHR provisions (s.6). Second, in interpreting legislation that involve human rights issues, courts and tribunals must interpret the legislations in context of ECHR and the HRA 1998, as provided by s.4. An example of effect of non- compliance with the ECHR law is provided in the case of A v Secretary of State, [2004] UKHL 56, (Belmarsh case), in which the domestic law was held to be contrary to the ECHR provisions because it provided for indefinite detention of terror suspects. The Parliament repealed the offending provisions of that law.

The impact of the ECHR is quite pervasive into the English legal system as laws as well as public actions must comply with the ECHR provisions. More discussion on this impact is in the following section of the essay.

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Impact of external sources

The EU law and the ECHR have been impactful as far as the statutory law is concerned. Courts are reluctant to interpret statutory law contrary to the EU law. In R (Ullah) v Special Adjudicator, [2004] UKHL 26, the House of Lords held that national courts should not try to dilute the significance of the law declared by the ECtHR._ In R v Horncastle, it was declared by the UK Supreme Court that the law declared by the ECtHR will not have a binding effect on English courts if such laws fail to understand the significance of special aspects of English legal process in making that decision (Bjorke, 2015). However, in that case, the House of Lords did hold that as far as possible the English courts must take into consideration, the principles of law declared by the ECtHR. Therefore, the ultimate effect is that courts have to, as far as possible, give effect to the EU law even over the primary legislation.

Conclusion

England and Wales have four principal sources of law today. Common law and statutory law are internal sources and EU law and ECHR are external sources. The external sources have come to occupy a prominent place today due to the prominence given them by the British legislations themselves. The European Communities Act 1972 and the Human Rights Act 1998, provide that there must be compliance by domestic law with the EU law. Many judgements have gone on to declare incompatibility between domestic law and the EU law. This shows the impact of the EU law upon the internal sources to be great indeed.

Bibliography

  • Martin, J., 2013. The English Legal System. London: Hachette .
  • Wilson, S., Rutherford, H., Storey, T. & Wortley, N., 2016. English Legal System. Oxford: Oxford University Press .
  • Slapper, G. & Kelly, D., 2009. The English Legal System. Oxon: Routledge.
  • Abbott, K., Pendlebury, N. & Wardman, K., 2007. Business Law. London: Cengage .
  • Costa v Enel (1964) Case 6/64. (n.d.).
  • Barnett, H., 2014. Constitutional & Administrative Law. Oxon: Routledge.
  • Broadbent, G., 2009. Public Law Directions. Oxford: Oxford University Press.
  • Turpin, C. & Tomkins, A., 2011. British Government and the Constitution: Text and Materials. Cambridge: Cambridge University Press.
  • Bjorke, E., 2015. Domestic Application of the ECHR : Courts as Faithful Trustees. Oxford: Oxford University Press.

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