Discussion Concerning the Principle Sources of Law in the UK

This essay will consider the principle sources of law in the UK, and how law is made through; Parliament which is considered the supreme law making body, common law or law made by judges, and European Union law (EU law). It will explain the different processes by which law can be changed and how law reform is produced by parliamentary and judicial activity. It will then show how Parliament takes into account social, technological and economic changes when dealing with particularities of law reform through the Law Commission, Royal Commissions, and various member bills. It will also show how the judiciary use interpretation of the law to implement reform it in an opportunistic way case by case. Consideration will be given to EU law and how this affects the law making process.

The British constitutution, unlike other constitutions throughout the world is an unwritten constitution. It is a creation of historical progress and while many of its sources are written it remains ‘uncodified’. The constitution sets out how power should be balanced between the governing bodies.

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In the UK there are three main sources of law, Parliamentary law (statute law), Common law and EU law. Parliamentary law in the form of Acts, begin in a variety of ways as Bills, these are proposals for a new piece of legislation presented to Parliament and must go through various stages of agreement, by both the House of Commons and the House of Lords before being formally approved by the reigning sovereign, in the form of Royal Assent in order to become part of the UK Law.

Public Bills presented by a government minister affect the entire population and generally become Acts of Parliament, while Private Member Bills although similar are presented by non government ministers such as MP’s or Lords. Many of these do not become law, but do raise publicity around the issues they are concerned with. The Children Act 2004 created a Children’s Commissioner for England in response to issues raised from a Private Members Bill (The Open University, 2011, p.101). A Private Bill is presented by other organisations such as private companies and affects only a minority of society. Bills may be passed because of a national emergency or in reaction to some new technology. The Anti-Terrorism, Crime and Security Act 2001, was created in direct response to the events of terrorist attacks on America on 11 September 2001. It allows for the indefinite detention without trial of foreign nationals who are suspected of posing a threat to the security of this country (The Daily Telegraph, 2003). However, this may be incompatible with the European Convention on Human Rights (ECHR).

During the law making process there are many influences on Parliament in the form of Law Commissions, Royal Commissions, and various pressure groups. The Law Commission was established by The Law Commission Act 1965 as an independent body to reassess the existing law, recommend reforms and abolish old laws or amend existing laws. Royal Commissions are advisory groups set up by Government to generally deal with non political issues. The introduction of the Criminal Appeal Act 1995 came about from recommendations from the commission when the ‘Birmingham Six’ successfully had their convictions overturned.

In the UK historically, the judiciary make law by way of contributing to the development of the common law. The legal principles are built on through the courts by judges case by case over time, through an established practice of ‘precedent’ known as ‘stare decisis’ meaning ‘to stand by decided cases’. In the case of R v R [1992] 1 AC 599, the House of Lords, which was the highest court until 2009, decided to overrule previous precedent by recognising the offence of ‘marital rape’, however the House of Lords felt constrained to say they were changing the law, but were simply removing an error as to the true meaning of the law. Accurate law reporting through Year Books, The Law Reports, Weekly Lay Reports and European Law Reports, allows for this legal doctrine to be collated, identified and accessed.

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The doctrine of ‘binding precedent’ refers to the hierarchical structure of the court system, and means that a decision made in a higher court is binding on the courts below it, however, this can lead to the judiciary overstepping their constitutional role by actually making law instead of applying it. Judges can ensure that a statute is interpreted properly, giving flexibility without waiting for Parliament’s prolonged processes. By the use of ‘statutory interpretation’ the judiciary can influence the law using rules developed over time, however, each rule can result in different decisions.

Statutory interpretation is made up of four rules that the judiciary use when deciding on the outcome of a court case. By applying the ‘literal rule’, the judge considers what the statute actually says in its every day meaning and applies this, unless this would produce an outcome that was absurd, then the ‘golden rule’ which allows the judiciary to look for another meaning for the words in the statue. The ‘mischief rule’ gives more discretion as the judiciary can look at the law before the statute was created, in order to discover what ‘mischief’ the statute was intended to deal with. With the ‘purposive rule’ the court is not just looking at what the statute intended but also what they think Parliament meant to achieve.

The UK courts are divided into a hierarchy which practices law at all levels, in both civil and criminal matters. The lowest court is the Magistrates Courts, followed by the Crown Court and County Courts, the High Court, the Court of Appeal and the highest court is the Supreme Court (formerly the House of Lords). The hierarchy system means that decisions can be checked or overruled by higher courts to take into account changes to political, social or technological conditions. Decisions made in the Supreme Court are binding to all UK courts. Other influences come from the European Court of Human Rights (ECrtHR) and the Court of Justice of the European Union which overrides domestic precedent.

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EU law has power over UK law, even without having been approved by the UK Parliament and, where applicable, the UK is bound by that law and cannot make conflicting laws. The UK was the first country to ratify the ECHR in 1951, and it has been introduced into English law covering basics such as the right to life, and the right to marry and found a family. Any new laws must be compatible with the ECHR.

The Human Rights Act 1998 is classed as one of the most important pieces of legislation in the UK, it allows the ECHR to be part of British law, and allows citizens to use the domestic court system when breaches of their rights are in dispute. Whilst this does not allow the courts to overrule an Act of Parliament, they can make a ‘declaration of incompatibility’ under s.4 of the Act. Parliament then decides whether the law should be changed, but this allows the judiciary some discretionary powers under s.8 allowing them to award remedies.

Law making in England and Wales is based on a democratic Parliament so that the public can have an effect on law reform. Through general elections every five years it ensures that the government does not remain in power against the wishes of the people, however most people vote based on a party’s proposal’s, and the winning party are not legally bound to keep these promises. As the ‘first past the post’ election system is not a balanced representation system, a government may not have a majority of public support through votes, despite winning a majority of constituent seats. This allows for a powerful government with overwhelming Parliamentary power to push through its required legislation whilst having the support of a minority of the people. Legislation can be passed during times of crisis, following a breakthrough in science on human embryo cloning The Human Reproductive Cloning Act 2001 came into force within nine days. The Law Reform Act 1965 codifies all areas of law, including corporate law, family law, and reproductive rights

The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) came about in response to society’s frustration with the lack of successful corporate prosecutions such as the P&O’s Herald of Free Enterprise disaster in 1987, R v P&O [1991] in which 190 people were killed, when the bow doors were left open after setting sail. The current law at the time lacked provisions for negligence where death occurred, as the common law offence required an individual to be responsible, even though the coroner’s report gave a ruling of ‘unlawful killing’. In such a large corporation the prosecution were not able to identify the individuals responsible for ‘obvious and serious risk of the ship setting sail with its bow doors open’ (Bergman, D. 1990).

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The Law Commission with pressure from the Health and Safety Executive and the Centre for Corporate Accountability proposed reform for the creation of the 2007 Act. Parliament took more than ten years to implement the legislation, and while showing some positive reforms, is limited. New prosecutions can only be prosecuted by the Director of Public Prosecutions and only in the High Court. The judiciary powers under s.6 only allow for ‘indictment of a fine’ if a corporation is convicted of corporate manslaughter or corporate homicide, with ss.9 and 10 providing the sanction of ‘remedial orders’ for them to remedy the breach. In 2011 the successful conviction of a company under the CMCHA 2007 led to a large fine for Cotswold Geotechnical Holdings Ltd, on appeal the Court of Appeal upheld the conviction but no real precedent was set as it was small family run business with a sole director. The judiciary will have to wait for prosecutions of larger organisations before any interpretation of the Act will become clear.

Family law in the UK has been subject to substantial modification over the years, through social changes encompassing marriage, divorce, non-marital cohabitation, same sex partnerships and adoption. These changes in ideas about family can affect legal issues such as taxation, inheritance and other civil and criminal laws. The Marriage Act 1949 was challenged in the European Court of Human Rights in the case of B and L v United Kingdom [2006]. UK law did not allow a father-in-law to marry his daughter -in-law, even though both were divorced and had formed a relationship. The ECrtHR found this incompatible with Article 12 of the convention and consequently the UK Parliament reformed this law in the Marriage Act 1949 (Remedial) Order 2007.

The concept of ‘common law’ husband or wife does not exist in the UK legal system, couples who live together, whether same sex or heterosexual, and are not married do not have the same legal rights as those that are. The Odysseus Group, a pressure group for ‘equal rights for all’ called for changes in the law to allow these couples to have the same legal rights as married couples. This and the case of Anna Homsi (The Open University, 2011 p.54) led to the creation of The Civil Partnership Act 2004 allowing same sex couples to register their partnership and be afforded the same rights as a married couple. Parliament left out recommendations from The Law Commission to include heterosexual couples in the Bill, during the parliamentary term. It maintains that heterosexual couples can marry if they want to whereas same sex couples cannot under the present law.

Technological and medical advances have occurred in a relatively short period of time, and the necessity to regulate these practices became an issue of statutory regulation as they are in the public interest. The legal issues with reproductive technology brought about the creation of the Human Fertilisation and Embryology Act 1990 (HFEA 1990). The Act sets out the principles, prohibitions and created the Human Fertilisation and Embryology Authority (HFEA) to regulate and assist the judiciary in applying the law. This Act however was implemented based on technology and science from 1984.

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Section 12 of the HFEA 1990 sets out the conditions for licensing, and requires compliance of section 3, the requirements for ‘effective’ consent of treatment (The Open University, 2012 p.91). This was challenged by Diane Blood who wanted to have fertility treatment using the sperm of her dead husband. However, the sperm had been taken while her husband was in a coma and he had not given written consent to its use. The HFEA refused to authorise treatment without consent, and it was ruled in the Court of Appeal that she could exercise her rights under s.10 of the ECHR to have fertility treatment in another EU state. This illustrates that the law was open to interpretation, as ‘written’ consent was not specified in the Act. The court stated that as Parliament had delegated responsibility to the Authority, then the courts should not interfere, however they did point to considerations with regards to the EC Treaty and Diane Bloods enforceable rights. The Government acknowledged this position and no amendments have been made to the Act.

In the case of R (on the application of Quintavalle on behalf of Pro-life Alliance) v Secretary of State for Health [2001] EWHC Admin 918 the courts ruled, after using a purposive interpretation that the embryos created through cell nuclear replacement (CNR) could be used for experimentation without the limitation of time or any other restriction. In the Court of Appeal reference was made to the case of Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, and concluded that the legislation would have imposed the same restrictions on embryos from CNR as embryos from a person. They interpreted that although the technology did not exist when the Act was created, Parliaments regulation of the use of embryos was clear. The Government created The Human Reproductive Cloning Act 2001.

In conclusion, this essay shows how the law making process and law reform is defined through technological, social and economic developments. Parliament as a public elected body deals with the particularities of reform through the various commissions, pressure groups and members bills as they are accountable to the public. The judiciary can be seen to reform the law through the common law system, using principles of interpretation, and they do this in an opportunistic way through cases as they are presented to the courts. Although the implementation of The Human Rights Act 1998 gives judges the power to declare ‘incompatibilities’ with the current law, it is still ‘opportunistic’, and ‘piecemeal’.

Bibliography

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Statutes

Abortion Act 1967

Anti-Terrorism, Crime and Security Act 2001

Children Act 2004

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Civil Partnership Act 2004

Corporate Manslaughter and Corporate Homicide Act 2007

Criminal Appeal Act 1995

The European Convention of Human Rights

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Family Law Act 1996

Family Law (Scotland) Act 2006

Health and Safety at Work etc. Act 1974

Human Fertilisation and Embryology Act 1990

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The Human Reproductive Cloning Act 2001

The Human Rights Act 1998

The Law Commission Act 1965

Marital Causes Act 1973

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Marriage Act 1949

Marriage Act 1949 (Remedial) Order 2007 (2007 No. 438)

Cases

B and L v United Kingdom [2006] 1 FLR 35

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R v Human Fertilisation and Emryology Authority, ex parte Blood [1997] 2 All ER 687

R v P&O European Ferries (Dover) Ltd (1991) 93 Cr App R 72; [1991] Crim : R 695

R v R [1992] 1 AC 599

R (on application of Quintaville on behalf of Pro-life Alliance) v Secretary of State for Health [2001] EWHC Admin 918

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Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800

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Arthur, R. (2011) ‘Unit 7 Unlawful Conduct, W100 Block 2 Legal Personality, p57-67, Milton Keynes, The Open University

Arthur, R., Goodey, J., and Howells, C. (2011) ‘Unit 3 Making Law (1) Parliament’, W100 Block 1, Rules, and rule making, p.89-113, Milton Keynes, The Open University

Howells, C. (2012), ‘Unit 25 Law, justice and social change: (3) law and reproductive technology’, W100 Block 7, Justice, p.90-124, Milton Keynes, The Open University

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Howells, C. and Slapper, G. (2011) ‘Unit 4 Making Law (2) common law’. W100 Block 1, Rules, and rule making, p.141-192, Milton Keynes, The Open University

Howells, C. And Zambellas, A. (2011) ‘Unit 5 Making Law (3) Europe, W100 Block 1 Rules, and rule making, p.207-230, Milton Keynes, The Open University

Montgomery, H. (2012), ‘Unit 24 Law, justice and social change: (2) marriage and family, W100 Block 7 Justice, p.47-74, Milton Keynes, The Open University

Weait, M. and Goodey, J. (2011) ‘Unit 3 Making Law: (1) Parliament’, W100 Block 1 Rules, and rule making, p89-138, Milton Keynes, The Open University

Zambellas, A. and Voiculescu, A. (2012) ‘Unit 23 Law, justice and social change: (1) corporate manslaughter, W100 Block 7 Justice, p.13-32, Milton Keynes, The Open University

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Reader Articles

Bergman, D. (1990) ‘Recklessness in the boardroom’, New Law Journal, 140, 6477, p.1496, ‘Reading 28’ Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

Community Legal Service Direct Information Leaflet 7 (2005), The Human Rights Act, Legal Services Commission, ‘Reading 7’ Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

Corporate Manslaughter and Corporate Homicide Act 2007 (extract), 2007 Chapter 19, ‘Reading 35’ Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

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The Daily Telegraph (2003) ‘Desperate times need temporary measures’, Daily Telegraph, London, 19 December 2003, p.23, ‘Reading 5’ Reader 1, W100 Rules, rights and justice, Milton Keynes, The Open University

Forlin, G. (2007) ‘Worth the wait?’, New Law Journal, 157 NLJ 1165, ‘Reading 36’ Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

Gerry, A. (2005) ‘Happy birthday human rights’, New Law Journal, 155 NLJ 1469, ‘Reading 8’ Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

Muylle, K. J. (2003) ‘Improving the effectiveness of parliamentary legislative procedures’, Statute Law Review, 24 (169), ‘Reading 7’ Reader 1, W100 Rules, rights and justice, Milton Keynes, The Open University

Slapper, G. (1996) ‘Should the judges or MP’s make the laws?’, The Times, London, The Times Newspapers, 2 July 1996, ‘Reading 23’ Reader 1, W100 Rules, rights and justice, Milton Keynes, The Open University

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Weait, M. (2003) ‘The Civil Partnerships Bill’, Family Law News, January 2003, ‘Reading 38’, Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open University

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The Open University (2008), ‘ Organisations and Justice’, W100 DVD, W100 Rules, rights and justice, Milton Keynes, The Open University (DVD)

The Open University (2008), ‘The case of Diane Blood;, W100 DVD, W100 Rules, rights and justice, Milton Keynes, The Open University

Other References

Slapper, G, and Kelly, D. (2011) The English Legal System (12th edn), Abingdon, Routledge, p.153), Milton Keynes, The Open University

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