English Legal Principal
The United Kingdom is governed by a series of laws that outlines the relationships between different entities in the state. This paper discusses an in-depth analysis legislations and law applicable in the UK. Particularly, on how they are enacted and its operation, further analyses the use of Case Laws. Moreover, discussion is made on Britain, as a state party of the European Union, a review of how the different regulations under the Union affect them shall also be done. Towards the end of this discussion, a classification of the various types of laws shall be done.
Legislation refers to a piece of laws and an act that has been passed by a governing body such as the Parliament, can also be a government regulation, or queen Council. Although the United Kingdom derives its laws from multiple governing sources, the Westminster Parliament constitutes the supreme organ where such promulgations are done. Thus, it holds supremacy over other political entities in Great Britain. Another important source of legislations in common law jurisdictions is the case laws, where a superior court renders a decision which binds subordinate courts, normally cures a lacuna in legislations(Felli, L and Anderllini, L 2008, 2). It is imperative to deduce that the goal of these pieces of law includes; regulation, authorizations, provision of funds, proscription, restriction, grant, sanction, or even declaration. Several variations of legislations exist in the English legal system (McDonald 31).
Classifications of legislations
Legislations are classified as on one hand as either primary or secondary legislations and otherwise as delegated and subordinate legislation.
- Primary legislations
Consist of Acts of Parliament and other statutes emanating from the same institution. The Westminster Parliament enacts such laws. Primary legislations are further sub-divided into two namely; the Public General Acts, and the Local and Personal Acts. In the United Kingdom, an average of between 25-50 new Public Acts enacted annually. As from the 1999, Explanatory Notes must accompany such Acts. The latter assist in the explanation of the Act in clear English to the general population. The Local and Personal Acts have an effect on a given locale, an individual, or even an organization. Newer pieces of such legislations are less prevalent on an annual basis as compared to the Public General Acts (Currier and Thomas 33).
Primary legislations are advantageous in that the Parliament takes time to scurinize a legislations before it comes into effect, additionally, the representatives of the people can match needs and wants of the people and come with legislations that match them.
Major challenge of primary legislations, is that the majority in the Parliament always have their way and can shoot down unpopular bills.
- Secondary legislations
This refers to any other laws enacted in the United Kingdom but not necessarily emanating from Westminster Parliament. They are promulgated by the executive arm of the government, through powers conferred unto them by a relevant Act of Parliament. In such a case, any such change must be in line with the provisions that the legislature outlines. Secondary laws are sub-divided into two namely; delegated and prerogative legislations.
Delegated legislations entail pieces of laws that are authorized by an Act of Parliament. In such a case, an individual authority is vested in the executive to come up with laws on mainly defined subjects. On the other hand, the Crown, who is not dependent on the Parliament, makes prerogative legislations. However, it is crucial to note that these privilege rules are subordinate to the United Kingdom Parliament. This aspect is vested in the fact that the Westminster Parliament is the supreme lawmaker of the country.
Subordinate Legislations are laws made by government departments and statutory authorities by the power provided by the primary legislations. An example is the Welsh Assembly that was empowered by the Wales Act 1998 to make subordinate pieces of legislations. The main reason as to why Parliament confers such powers to other bodies is due to the time factor of enacting detailed pieces of legislations, which could be detrimental to the enacting of other equally important rules (Currier and Thomas 9). It must be noted that delegated legislation as a form of secondary legislation saves Parliament time, gives government prerogative to amend a law without needing a new one, and works perfectly in emergency situations. Although, in limited circumstances the government may abuse its powers by enacting or delegating unconstitutional laws.
- Case Law
Case law also known as judicial precedents refer to authority established by a Superior court and bind all subordinate courts. These pieces of legislation entail laws established due to previous judicial decisions made in prior cases. Case law constitutes one of the multiple sources of legislations in the United Kingdom. Since the English legal system is a common law regime, a presiding judge is supposed to look at the events of the previous cases that have a similarity to the current one. Some of the aspects that he/she must deduce are the legal principles that were applied to arrive at such a decision. It is crucial to note that the rulings of the higher courts are given more priority where similar facts are deduced.
Judicial precedents are important in that it creates certainty, assure farness and consistency, save courts time and helps in analyzing details in a case. On the other hand, antagonists of judicial precedents have expressed reservations as to its rigidity, complexity, and its failing to evolve with time.
During court judgments, barristers and solicitors present in the ceremony write down law reports. All the arguments and the sentences meted to the accused are noted down. Once a final draft is realized, the report is submitted to judges and the counsel so that the accuracy and authority of the same are verified prior to publication. These law reports constitute the most authoritative binding and authoritative pieces of case legislations realized.
In the UK, the Supreme Court of the United Kingdom is the highest appeal court in the land. Any decision that is arrived at in this institution is binding on all lower courts. In such a case, all previous court rulings made by the Supreme Court constitute a Case Law that should be applied by the presiding judge of a lower court when arriving at a decision. From the most powerful downwards, the Courts arrangement is as follows: House of Lords, Court of Appeal, High Court, County Courts/Crown Courts, and Magistrates’ Courts. The House of Lords tackles appeals from High and Appeal courts, while the Court of Appeal tackles those from High and County Courts and Tribunals. The High Court comprises Family Chancery, and Queen’s Bench Divisions, each with Divisional Courts. County Courts handle civil litigation cases, based on the nature of claim, while Crown Courts tackle indictable offenses and referrals/appeals from Magistrates’ Courts. Magistrates’ Courts comprise youth, and family proceedings’ courts, and they handle summary offences and Crown Court committals.
This doctrine of reviewing past cases to determine the fate of current cases is based on the stare decisis legally meaning as things stand (Great Britain 11). In this provision, where a particular segment of a law has been decided in a given court ruling, such legislation must be utilized in all the future cases. The only factor needed here is that the case at hand has similar material facts with the one being referred to in the end. The doctrine of judicial precedent has worked due to the reasons that judges give when arriving at a ruling, an aspect known as ratio decidendi. It constitutes the legal principle that is a binding precedent. In other cases, persuasive precedents may be used although they are not legally binding. Known, as the obiter dicta are not taken to account for the formulation of Case Laws. This aspect is because they are simply illustrations or thoughts of the presiding judge or magistrate and do not necessarily fall within the law (Great Britain 7).
A good example of how this case law or judicial precedent is used is best described by the case of Donoghue v Stevenson of 1932. In the ruling made by the House Lords, the manufacturer was found responsible to care for the consumer of their products. This particular case became a binding precedent when it came to the determination of court cases that had similar setups in tortuous cases. As captured in the court rulings in Grant v Australian Knitting Mills of 1936 AC 85, and the Knuller v DPP of 1973 AC 435.
The court emphasized the application of stare decisis, in Young v Bristol Aeroplane Company that a court is bound by its prior decisions. Moreover, in future bound and qualified by various exceptions (Scragg, R 2003, 2).
4.0 Classification of Law
4.1 Public Law
In Britain, this law is a part of legislation that governs the manner in which persons interact with their government. Other aspects that are also dictated by this provision are relationships existing between people and the general population. Some of the legislations that comprise of public laws include the Constitution, tax laws, procedural laws, administrative laws, and criminal laws. The government is however allowed from time to time to come up with decisions on the rights of persons as long as they fall within the provisions of the law.
4.2 Constitutional Law
This law is made up of a group of pieces of legislations that define the organization, distribution, and regulation of state power. The interactions between the judiciary, parliament, and the executive are also outlined. In the United Kingdom, the constitutional law is “unwritten.” This aspect, therefore, means that no single piece of legal documents exists where all the fundamental laws of how the operations of the state work are outlined. The British constitutional law is made up of a series of conventions, treaties, statutes, and judicial decisions.
4.3 Administrative Law
This piece of legislation is involved in the making of public bodies that administer public policies. Other roles undertaken by this law in the United Kingdom include the creation of procedures and powers, rights, liabilities, and duties. An administrator is required by the administrative law to act in a manner that is fair and reasonable as outlined by the law. The Constitution of the United Kingdom is one of the administrative rules available. This legislation falls under the public laws (Great Britain 27).
4.4 Criminal Law
This law is a body of legislations that deal with issues that are considered as crimes, and prescribing their consequences. The UK criminal law falls under the jurisdiction of England and Wales. Britain as a state considers criminal acts as offenses committed against the general population. Several public installations exist under this law to ensure that justice is served. They include the police department, the courts, and the prisons. In criminal proceedings, the fundamental concepts of actus reus and mens rea are reviewed. A conviction of an individual under this law requires the ascertaining of these two basic concepts.
4.5 Private Law
In the British legal system, this law is pieces of legislation that govern the relationships existing between individuals. These laws seek to control the interactions in place between private citizens. Some of the areas covered by the British private laws include; family laws, testamentary laws, labor laws, competition laws, commercial laws, property laws, civil law, and the law of torts among others (Hyatt and Bruce 3).
5.0 European Law
5.1 European Union
The European Union founded in 1957 is now composed of a total of 27 member states. The United Kingdom is a member of the European Union, meaning that it is also a source of legislations for the country. The laws of the Union are mostly enacted in the form of treaties. The Treaty of Rome signed on in 1957 by six European states was the first piece of law ever realized for the coalition. The second one where the United Kingdom joined was undertaken in 1972 and was signed as the Treaty of Rome. It is critical to note that the principal documents that considered under the European law includes the Treaty of Rome 1957, 1997 draft Treaty of Amsterdam, Single European Act 1986, and the Treaty on European Union 1992. These agreements take effect as laws in the member nations (Hyatt and Bruce 13). These legislations comprise of directives, regulations, the Court of Justice’s decisions, as well as opinions and recommendations.
Since joining the EU in 1973, the UK Parliament has bound itself to incorporate EU law into national law. While the UK remains a member of the EU, EU law takes precedence over national law. This means that the UK Parliament is no longer the supreme lawmaker and, for the time being at least, it has limited its sovereignty.
5.2 European Union Convention on Human Rights
This initiative was enacted in Rome on the directions of the Council of Europe in 1950. A system of international protection of human rights was realized as a result. Persons could now turn to the courts to ensure that their rights were enforced. The convention was drafted into three distinct parts. The first section comprises of main rights and freedoms, whereas part two sets up the requisite institutions. The final third chapter provides the concluding part of the convention. Each section is made up of articles that outline the provisions in finer details. Examples of the articles include Article 2 that guarantees the right to life for an individual, and Article 4 that prohibits slavery. Under this convention, several supervisory bodies based in Strasbourg were born including; European Court of Human Rights, Committee of Ministers of the Council of Europe, and a commission that examines applications by a state or private entities.
5.3 European Court of Justice
This institution handles enforcing the European Union law and is the highest judicial body of the Union. It thus outranks the supreme courts of all the nations who are member states of the EU. When it comes to judgments, the rulings can impact on an individual or even a state. The court was set up by the Treaty of Paris in 1951. The Maastricht Treaty of 1982 gave the court the jurisdiction to cover the EU.
Each member nation of the EU is represented by one judge in the Court who serves for a term of six years. The most prevalent type of cases executed before this institution includes direct actions, actions for failure to fulfill an obligation, action of failure to act, requests for a preliminary ruling, or actions for annulment. All cases before the court undergo two phases namely; the written and the oral stage.
Article 249 of the Treaty of Rome makes the effect of Regulations legally binding in every respect in each Member State without that Member State having also to implement the law. Citizens may rely on them both against the state and against private individuals or bodies.
The United Kingdom sources its legislations from multiple sources. However, the Westminster Parliament is supreme over any laws made by other entities subject to direct and vertical and horizontal application of the EU laws. Because the British constitution is an “unwritten” one, prior court rulings by higher judicial courts are adopted to become part of the law. This issue is due to an aspect known as legal precedents. The Supreme Court of the UK is the topmost court of appeal available. Britain has a membership in the European Union. Therefore, all the laws that are enacted by this group become part of their legislation. Such legislations come about mostly in the form of treaties. The European Union Convention on Human Rights is one such provision that is currently a part of the British law. The European Court of Justice enforces treaties in the event that disputes arise between the member states. The UK law can be sub-divided into private, public, criminal, administrative, and constitutional laws. Each serves different and distinct groups at a time.
Currier, Katherine A, and Thomas E. Eimermann. The Study of Law: A Critical Thinking Approach. , 2013. Print.
Felli, L and Anderllini, L 2008. Statute Law or Case Law. print
Great Britain. Statutes of the Realm: Volume 3. Burlington, Ont: TannerRitchie Pub. in collaboration with the Library and Information Services of the University of St. Andrews, 2007. Internet resource.
Hyatt, Thomas K, and Bruce R. Hopkins. The Law of Tax-Exempt Healthcare Organizations. , 2013. Print.
McDonald, Andrew. Reinventing Britain: Constitutional Change Under New Labour. Berkeley: University of California Press, 2007. Internet resource.
Scragg, R 2003. The New Zealand Court of Appeal and the Doctrine of Stare decisis. http://ir.canterbury.ac.nz/bitstream/10092/4102/1/12598424_2003_13_Scragg.pdf
Young V Bristol Aeroplane co Ltd