The legal sources of law in England and Wales
I thought I would post this essay as a ‘refresher’ for busy professionals who sometimes need reminding of the basic principles underlying the established legal system we all abide by.
There are two main legal sources that court judgments are based on. These two sources are legislation, formed under the authority of Parliament, and case law, known as judicial precedent. Judges have to take account of both of these sources in reaching a decision and so both sources need to be understood by business professionals.
Legislation in England and Wales is created by the sovereign body of Parliament. This sovereign body consists of the Queen, whose role is purely formal, the House of Commons, which is the main body that creates legislation in the form of statutes and the House of Lords, which is the Supreme Court. A statute is an act of Parliament and is binding i.e. it cannot be challenged in any English court.
Primary legislation is formed through Parliament alone and cannot be challenged in UK courts. The finer details of primary legislation are often decided by an appropriate, appointed public body such as the Health and Safety Executive or a local authority. This is known as delegated legislation, as it does not come directly from Parliament, and these statutory rules can be challenged in court.
The Judiciary are bound by Parliament’s power to create statutes and must make decisions based on the existing legislation. However, the English system of law allows a considerable amount of discretion in decision making. It is down to the individual judge to interpret Acts of Parliament and apply them to cases. To do this they must use intrinsic and extrinsic aids. Intrinsic aids are contained within the act itself, e.g. specific words or phrases that emphasise the intention of a policy. Extrinsic aids could be information concerning legislative background, the prevailing political climate or general presumptions in the system (such as the presumption against violating international law).
When a court interprets legislation or supporting documents they are able to use different ‘rules of construction’ to try and ascertain Parliament’s intention. This has the effect that different results could occur in different courts if the same case were tried. The two main rules of construction are the literal rule (meaning the words are interpreted according to their exact meaning as in the case of Kahn V Newbury 1959) and the golden rule (which allows more assumptions based on ‘common sense’). Usually one rule or the other is suitable depending on whether or not ambiguity exists in the wording.
The other main legal source of law is known as the doctrine of judicial precedent and is based on the latin principle of stare decisis meaning ‘to stand upon decisions’. What this means is that judges have to follow previous decisions made by superior courts as they are binding. The ratio decidendi, i.e. the reason for the decision, is the part of a previous judgment that is binding and, as such, this reasoning must be applied to cases afterwards.
The other words used in the application of previous judgments (known as obiter dicta) may also be used, as material considerations, but are not legally binding. The doctrine of binding precedent is dependent on accurate and exhaustive law reporting.
The House of Lords (the Supreme Court) is the only court not bound by its or any other courts previous decisions. The Court of Appeal is bound by all decisions of the House of Lords and also its own previous decisions (although its criminal division allows for more discretion as justice overrides consistency as a principle, more so than in the civil division). The High Court is bound by the decisions made in the House of Lords and the Court of Appeal (and also its own previous decisions in the case of divisional courts). All other courts do not bind either themselves or others.
In summary then, judges are bound by law to abide by Acts of Parliament, by interpreting them, and are also bound by the reasons for previous decisions of superior courts. Any other considerations in making a judgement are ‘material’.
The English system is primarily considered to be a discretional one (there is no written constitution as in many other countries), however, the power of Parliament to legislate and the binding and unchallengeable (except in EU courts) nature of statutes means that the government controls the political landscape and legislative ethos of the time. Crucially though, Parliament cannot bind itself and so, to some extent, power lies with the voters.
College of Estate Management. Paper 6024: Sources of English Law. Reading: CEM
Keenan D (2007) Smith and Keenan’s English Law Text and Cases (15th edition). Harlow: Pearson
The UK Statute Law Database (2009) [Website] Available from: <www.statutelaw.gov.uk/content> [Accessed 10 March 2009]
Office of Public Sector Information (2009). OPSI [Website ]. Available from: <www.opsi.gov.uk/RevisedStatutes/Acts/ukpga_19820029_en> [Accessed: 6 March 2009]
Department for Business Enterprise & Regulatory Reform (2009). BERR [Website]. Available from: <www.berr.gov.uk/whatwedo/consumers/fact-sheets/page38337.html> [Accessed 6 March 2009]
Written by Thomas Allman