Primary sources of law in the United Kingdom
Introduction
The United Kingdom like any other sovereign state is governed under rules and regulation that are stipulated, which can either be codified or uncodified. However, United Kingdom portrays a different approach concerning the codification of its constitution to a single document. The foundational constitutional context guiding the United Kingdom citizens is called Magna Carta and it was formulated by King John of England in 1215[1]. Since its formulation, the United Kingdom’s constitutional laws have been evolving to integrate into the social, political and economic changes. The present United Kingdom’s constitution is a combination of statutory laws, landmark judicial opinions and the conventions unwritten rules of constitutional opinions[2]. Generally, there are two categories of sources of law in the United Kingdom; primary and secondary[3]. The principle sources of United Kingdom Law include legislation, case law, European Union law and European Convention on Human Rights[4]. While secondary sources are found in already documented articles and publications such as Law Gazette and Cambridge Law Journals, primary source are a statement of laws formulation. Therefore, primary sources of law can be divided into two categories; legislation and case laws4.
Primary source: Legislation
The legislation is also known as statute law thus it is a central term used to refer to the United Kingdom written laws. The legislation provides laws through Acts of Parliament, however, it also involves laws that are formulated through Acts of Parliament conferred powers. With the introduction of hyperlinked text to the UK legislation known as British and Irish Legal Information Institute (BAILII), the Acts of Parliament are at a constant change. Therefore, UK legislation can be of different versions; up-to-date law is known as consolidated, historical law known as enacted and laws at a particular point. In the UK, Parliament is the supreme legal authority that has the mandate to enact any law, thus, portrayed as a superior source of law[5].
Legislation as a source of law in the United Kingdom is categorized as either primary legislation or delegated legislation. Primary legislation refers to the laws that are passed by the United Kingdom’s legislative bodies. Delegated legislation is also known as secondary or subordinate legislation is legislation initiated by an individual or a body under the conferment powers in the primary legislation[6].
Legislation: primary legislation
The primary legislation is sometimes referred to as statutes and the whole of statute laws currently in force are known as statute book. There are several primary legislation laws that are passed by the legislative bodies of the United Kingdom. Some of the primary legislation include Acts of Parliament that is UK parliament, Scottish Parliament, Northern Ireland Assembly and Welsh Parliament. Other primary legislation include Acts passed by historical parliament and the General Synod of the Church of England[7].
The primary legislation in the UK is mainly Acts of Parliament. The two main forms of primary legislation are Public General Acts and Local and Personal Acts. Public General Acts are also known as Public Bills applies to the general public and can be introduced by the government or a private member either a lord or a Member of Parliament. Local and Personal Act also known as Private Bills are bills that are introduced for discussion and approval while aiming their application to a specific group of individuals or organizations[8].
Acts of Parliament laws are usually initiated as Parliamentary bills proposed in either the House of Commons or the House of Lords for examination, discussion and amendments. A parliamentary bill is a new law proposal or a proposal to change an existing law tabled in parliament for debate. In the United Kingdom parliament, there are three types of bills; private, public and hybrid. The bill becomes an Act of Parliament only after its approval by the majority in the House of Commons and House of Lords and has gone through the Royal Assent. Therefore, an Act of Parliament is a statute law that is enforced in all states forming the United Kingdom. For a bill to become a law, it can either be initiated in the House of Commons or House of Lords, however, most bills are initiated in the House of Commons. Irrespective of the house that initiates the bill, it has to undergo the process of the first reading, second reading, committee stage, report stage and third reading then proceeds to the next house where it undergoes the same process, once approved, it undergoes a consideration of amendments and lastly the royal assent thus becoming an Act of Parliament law[9].
Public general acts (Public bills) are the most familiar type of UK’s Acts of Parliaments since they change the law as it applies to the general public. Once the public bills are introduced into any the House, it must go through a number of set stages in both Houses to become Act of Parliament Law. During the discussion process, several modifications can be made by either House to make the public bill suitable for application to the general public. Restrictions are made to the introduction of public bills that involve financial expenditure or public money such as new taxes or public spending, and it is only allowed to be introduced in the House of Commons[10]. Once the public bill is passed and approved through Royal Assent it becomes an Act of Parliament. The public bills introduced by the government are usually the bills that seek to modify the law through UK constituents. An example of a public bill introduced by the government is the Air Travel Organizers’ Licensing Act 2017[11]. When public bills are introduced by individual MPs or lords who are not in government usually the backbench members, and it is referred to as ‘Private Member Bills.’ For instance, Abortion (Cleft Lip, Cleft Palate and Clubfoot) Bill 2019-21[12].
The public general acts approved through royal assent are first published as individual pamphlets by The Stationery Office (TSO). After which, they are issued in bound volumes in the TSO series Public General Acts and General Synod Measures. However, the revised public acts are published in Halsbury’s Statutes, a LexisNexis title, and they are acts in force as amended with annotation6.
Private bills once passed become local or personal acts. Therefore, private bills aim at changing the law as it applies to specific individuals or organizations, thus promoted by organizations. Private bills are initiated at either of the Houses, and they are required to be publicized through newspaper adverts and official gazettes in writing to the interested parties[13]. The groups or individuals affected by private acts can petition Parliament against the proposed bills and presents their allegations before MPs and Lords committees. For example, the City of London Corporation (Open Spaces) Act 2018[14].
Hybrid bills refer to specific bills that propose works of national importance while focusing on a specific region in the UK. Therefore, hybrid bills contain public and private characteristic mixture, hence its changes affect the general public in addition to having a significant impact on a specific individual or group[15]. For example, High-Speed Rail (West Midlands- Crewe) Bill 2017-19 to 2019-21[16].
Other primary legislation includes prerogative orders issued by Crown and the Privy Council under the royal prerogative. Prerogative orders also referred to as Order in Council or Order of Council. Order in Council are orders made by the Queen basing on Privy Council’s advice. Order of Council is specific orders made by the Lords of Privy Council without the obligation of the Queen[17]. These orders can also be stipulated under the Statutory Instruments powers. For example, Naval and Marine Pay and Pension Act 1865 and Burial Act 1853.
Legislation: delegated legislation
Delegated legislation also known as secondary or subordinate legislation is a legislation that is passed by other government bodies other than parliaments such as regulatory agencies, local authorities or government ministers under the conferment powers of the parliament. For instance, the Office of Communication is given legislative powers under the Communication Act 2003. The main types of delegated legislation include Statutory Instruments, Church Instruments and Statutory Rules and Orders.
Statutory Instruments are regulations formulated under the conferment powers of an Act of Parliament. Therefore, Statutory Instruments are vital documents that provide Statute application details and the commencement of Act provisions. The types of Statutory Instruments used in the UK are orders, regulations and rules. Other instruments are declarations, schemes and directions. Although these instruments have different functions they have the same legislative force. The Statutory Office publishes Statutory Instruments individually and adds them into the bound volume yearly. Example of Statutory instrument legislation is The Inquiry Rules 2006, SI 2006/1838[18].
Church Instruments are annotations to the revised legislation made by the Archbishops of Canterbury and York under conferment of Church Measures. The Church Instruments are used to bring Church Measures into force. For example, Synodical Government Measure 1969, which considers and approves legislation that affects the whole Church of England, through the formulation of new forms of worship and approval of the annual budget of Church[19].
Primary Source: Case Laws
Case laws also known as judge-made law is a source of law that includes the English Legal System precedent doctrines published under the Law reports. Generally, case laws show actions enforcing legislation. Therefore, case law is a rule exclusive of statute but found as a principle law initiated and established by a judge in some legal proceedings. Therefore, the decisions of judges of the courts are published as law reports that are a fundamental source of UK law and form the basis of future decisions. Case laws act as a source of law through the doctrines of precedents that bounds a court by the decisions of a court above it and also a court of equivalent standing. Superior courts like the Supreme Court have the capacity and power to overturn a ruling that was made by a lower court, in addition to overruling its own decision.
Case laws: Law Reports
Law reports are a series of legal cases that are published from higher courts and tribunals of high legal significance. Therefore, law reports are reprints of courts judgement full text, which includes judges judicial reasoning and statements of facts. Moreover, law reports highlight additional materials such as legal issues summaries, cited cases and reference legislations. Law reports also have the generally accepted hierarchy. The most authoritative series of the Law Report is the Law Reports[20].
The Law Reports series include Appeal Cases (AC), Queen’s Bench (QB), Family (Fam) and Chancery Division (Ch). The judgements from the Law Reports series are evaluated before their publication for accuracy and Counsels arguments are include by their delivering judges. The Law Reports series are published by the Incorporated Council of Law Reports (ICLR). The Appeal Cases include Judgements of the Supreme Court, Privy Council and House of Lords, in addition to the European Union Court of Justice. The High Court cases are included in law reporting series relevant to the High Court Divisions such as Chancery, Family or Queen’s Bench. However, the Court of Appeal cases is included in the series specific to its appealing High Court division. For example, Lungowe vVedanta Resources plc [2016] EWHC 975 (TCC)[21].
Weekly Law Reports series involve cases under review that await revision for publication in the Law Reports. These series are neither corrected nor include various Counsels arguments. All England Law Reports are a series of law reports that are published by Lexis Butterworths. Despite not corrected by judges nor contain Counsel’s argument, All England Law Reports are widely cross-referenced to other legal works such as Halsbury’s Law and Halsbury’s Statutes. Further to the above series of Law Reports, case laws are reported basing on the subject specialist law reports. For example, Criminal Law Reports (Crim LR). English Law Reports involves cases before 1865. For example, R(Hassett) v Secretary of State for Justice [2019] 1 WLR 3393, (SC)[22].
Official transcription is unreported cases identified by the case’s neutral citation and is only act as a source of law if they contain significant legal principle statement not found in the reported case. These official transcriptions are freely available on the court websites in form of judgement transcription, digests and case notes[23].
Bibliography
A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (1st, Bloomsbury, United Kingdom 2015) 314
Abortion (Cleft Lip, Cleft Palate and Clubfoot) HC Bill (2019-21) [131]
Air Travel Organizers’ Licensing HC Bill (2017-19) [33]
Church of England Measures UK: Fact Sheet (HC 2010 L10)
City of London Corporation (Open Spaces) HC Bill (2016-18) [i]
D Greenberg, Craies on Legislation 1st Supplement: A Practitioner\’s Guide to the Nature, Process, Effect and Interpretation of Legislation (8th, Sweet & Maxwell, e.g. Oxford 2008) 1012
D Oliver, ‘ The Parliament Acts, the Constitution, the Rule of Law, and the Second Chamber’ [ 2011] SLR 1, 4
D.H.O. Owen, ‘The Privy Council and the Professional Foul’ [1992] MLJ 60
High-Speed Rail (West Midlands- Crewe) HC Bill (2017-19 to 2019-21) [103]
Legislation.gov.uk, ‘Understanding legislation’ (legislation.gov.uk, 2020) < www.legislation.gov.uk/understanding-legislation > accessed 17 July 2020.
Lungowe vVedanta Resources plc [2016] EWHC 975 (TCC).
Parliament.uk, ‘How are Laws made?’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/ > accessed 17 July 2020.
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Parliament.uk, ‘Private Bills’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/bill/private > accessed 17 July 2020.
Parliament.uk, ‘Hybrid Bills’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/bill/hybrid > accessed 17 July 2020.
Procedure Committee UK: Private Members’ bills (HC 2013-14 188-I)
R(Hassett) v Secretary of State for Justice [2019] 1 WLR 3393, (SC).
S Carter, ‘ UPDATE: Researching Legal System of the United Kingdom’ [ 2020] HGLSP 1, 45
SOAS Library, ‘Sources of UK Law’ (Saos.ac.uk, August 2012) < www.soas.ac.uk/library/subjects/law/research/file70249.pdf> accessed 17 July 2020.
SOAS Library, ‘Understanding UK Case Law’ (Saos.ac.uk, August 2012) < www.soas.ac.uk/library/subjects/law/research/file70250.pdf > accessed 17 July 2020.
The Faculty of Law, ‘Law reports and the doctrine of precedent’ (Law.ox.ac.uk, 2019) < www.law.ox.ac.uk/legal-research-and-mooting-skills-programme/law-reports > accessed 17 July 2020.
The Inquiry Rules 2006, SI 2006/1838.
University of York, ‘Law’ (Subjectguides.york.ac.uk, July 2020) < www.subjectguides.york.ac.uk/law/uk > accessed 17 July 2020.
[1] A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (1st, Bloomsbury, United Kingdom 2015) 314
[2] D Greenberg, Craies on Legislation 1st Supplement: A Practitioner\’s Guide to the Nature, Process, Effect and Interpretation of Legislation (8th, Sweet & Maxwell, e.g. Oxford 2008) 1012
[3] SOAS Library, ‘Sources of UK Law’ (Saos.ac.uk, August 2012) < www.soas.ac.uk/library/subjects/law/research/file70249.pdf> accessed 17 July 2020.
[4] University of York, ‘Law’ (Subjectguides.york.ac.uk, July 2020) < www.subjectguides.york.ac.uk/law/uk > accessed 17 July 2020.
[5] D Oliver, ‘ The Parliament Acts, the Constitution, the Rule of Law, and the Second Chamber’ [ 2011] SLR 1, 4
[6] S Carter, ‘ UPDATE: Researching Legal System of the United Kingdom’ [ 2020] HGLSP 1, 45
[7] Legislation.gov.uk, ‘Understanding legislation’ (legislation.gov.uk, 2020) < www.legislation.gov.uk/understanding-legislation > accessed 17 July 2020.
[8] S Carter, ‘ UPDATE: Researching Legal System of the United Kingdom’ [ 2020] HGLSP 1, 45
[9] Parliament.uk, ‘How are Laws made?’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/ > accessed 17 July 2020.
[10] Parliament.uk, ‘Public Bills’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/ > accessed 17 July 2020.
[11] Air Travel Organizers’ Licensing HC Bill (2017-19) [33]
[12] Abortion (Cleft Lip, Cleft Palate and Clubfoot) HC Bill (2019-21) [131]
[13] Parliament.uk, ‘Private Bills’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/bill/private > accessed 17 July 2020.
[14] City of London Corporation (Open Spaces) HC Bill (2016-18) [i]
[15] Parliament.uk, ‘Hybrid Bills’ (Parliament.uk, 2020) < www.parliament.uk/about/how/laws/bill/hybrid > accessed 17 July 2020.
[16] High-Speed Rail (West Midlands- Crewe) HC Bill (2017-19 to 2019-21) [103]
[17] D.H.O. Owen, ‘The Privy Council and the Professional Foul’ [1992] MLJ 60
[18] The Inquiry Rules 2006, SI 2006/1838.
[19] Church of England Measures UK: Fact Sheet (HC 2010 L10)
[20] SOAS Library, ‘Understanding UK Case Law’ (Saos.ac.uk, August 2012) < www.soas.ac.uk/library/subjects/law/research/file70250.pdf > accessed 17 July 2020.
[21] Lungowe vVedanta Resources plc [2016] EWHC 975 (TCC).
[22] R(Hassett) v Secretary of State for Justice [2019] 1 WLR 3393, (SC)
[23] The Faculty of Law, ‘Law reports and the doctrine of precedent’ (Law.ox.ac.uk, 2019) < www.law.ox.ac.uk/legal-research-and-mooting-skills-programme/law-reports > accessed 17 July 2020.