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Essay: Is legislation the most important source of law in England and Wales?

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  • Subject area(s): Law essays
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  • Published: June 10, 2021*
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  • Tags: Constitutional law
  • Is legislation the most important source of law in England and Wales?
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This essay is based on the sources of law from the uncodified Uk constitution and relevant examples will be provided throughout. The detailed essay focuses on the 5 different sources and the argument that the “legislation source is the most important one within both England and Wales” will be analysed and examined with finally a conclusion drawn up at the end to decide whether this statement is true, partly true or false.

The sources will be defined and references from articles, educated websites and academic books from various authors will be listed. All the sources discussed within this piece of writing are somewhat connected to each other and will be compared throughout the essay.

Each source is divided into primary and secondary sources.

Primary sources refer to the law itself and are established by those who decide the details of bills and acts of Parliments. (M.Barkan A. Bintliff and Whisner) suggest that “in one sense, the term sources of law refer to the origins of legal concepts and ideas, but can also “refer to the government institutions that formulate legal rules”. Examples of primary sources may include direct laws and regulations put in place by parliament or other officials i.e courts and the decisions they make based on the laws.

Secondary sources on the other hand can be defined as the commentary on the law. They offer analysis, an inquiry and commentary in order to discover and explain the primary sources in law this would include textbooks, encyclopaedias and journal articles. This is furthered by stating that secondary legislation is.” principally made in the form of statutory instruments and regulations with their main purpose being to support and enforce primary legislation.

Many people believe that the constitutions main purpose is the statute law. The Legislation source (statute law) consist of written laws and regulations produced by a legislature, all of which are “issued to meet the needs of citizens and resolve outstanding issues” (diffen.com 2018)and is a secondary source.

(Elliott et al., n.d.)1 mentions that another word for Statute is an Act of parliament which is a form of legislation that creates or changes existing laws, Nicole McEwan states that “The Statute law is particularly important for determining the powers of government, and the conduct of elections” (Scribd, 2018). McEwan includes this assertion because statute laws are sometimes made into delegated legislation…Delegated legislation is “a process where the executive branch (ministers who carry out the laws for the government) are given limited powers to make laws” (Post, 2018 )2 however for this to happen an act of parliament must be present. This process helps laws be made by those who have knowledge and experience within this area for example, a minister of education may know what schools in his community are lacking. A more specific example of delegated legislation is European Communities Act 19723 as it allows the uk to make laws based on European legislation.

“Devolution in England is the transfer of power from the ‘central government’ and funding from national to local government” (local.gov.uk 2018) which means that local authorities can improve public services and without this process decisions will continue to be made in Westminster and will simply have less effectiveness on areas. This helps pass laws faster and be more effective but one of the criticisms that occur when it comes to devolution is that it is undemocratic meaning that unelected ministers are given power to make legislation.
Statutory interpretation is the process by which Judges interpret Acts of Parliament. The process consists of reading and applying statutory laws and finding the intention of it. According to D.Hussian The technique was developed because in most cases of statutes there is “ambiguity and vagueness that must be resolved by judges”, this means that the wording of the law is unclear and could be interpreted in another way than intended. An example of where the language was unclear can be seen in the case of Twining v Myers (1982). This interpretation shows readers that even though law is important It can also be misread or misunderstood. However, to help with the problem of ambiguity the literal rule was invented. Under this rule the words presented in the act of parliament its self is given their natural meaning this informs individuals that they will be read literally and there will be no “need for it to be analysed further for different meanings” (inbrief.co.uk2018) .

All these points show that Statute law may have its negatives but is known as the most important source as the others don’t reflect quick change produced by a passing statute.

Law is also created to focus on human rights which is mainly done so through the Eu source as the section of the constitution that mentions individual rights is EU Law which is a primary source; The Human rights acts 1998 raises the awareness of how important human rights laws are. The act provides detailed but clear basis for human rights and has become one of the greatest ways of scrutiny towards a passing act of parliament! The 1998 act was drawn up to protect the rights of uk citizens. The European union includes 28 European countries who all have the same aim of creating peace and preventing another world war from occurring also another aim that they hope to achieve is to “abolish all restrictions effecting the movement from people, goods and money between the members of the European union” (Elliott et al., n.d.). These aims are the reason the European communities act was passed in 1972 and was soon to be recognised as British law. As well as this act, the court of justice of the European union (ECJ) which “interprets law so that it is applied the same way in all Eu countries” (European union 2018)4 keeps parliament bound to adopt to their rulings which suggest that the Eu source has some control over the legislation source which causes controversy to the title of the essay this is backed up the words of (Mattspaul 2018).

“Arguably powers of the EU and its ability to impose treaties makes it seem like a more important root of UK constitution compared to the statute law”.

As stated in the introduction that the sources are connected to each other this highlighted by the fact that any changes within the European laws will have a direct effect on the customs source.

Customs is the law which allows foods, animals, and other goods to be moved in and out of countries. Customs is present in today’s society however it only plays a small role such as debating whether “fishermen should be allowed to dry their nets on particular land” (Elliott et al., n.d.) which is laid out in the case of Factortame no.2 1991 which suggest that customs only deal with the rights of individuals which makes it a primary source and this reason shows how the Eu and the commons law is somewhat connected to each other. But a large amount of people disagrees with this statement and consider customs being very important as this is how citizens go on holiday and move around.
If we compare this back to the importance of legislation, then it is clear that statute law is far more important as without laws individual rights are non-existing to a certain extent especially when it comes to Eu laws and therefore people may not gain the right to travel and the trading business would suffer a huge loss.

For customs to be a source of law it must undergo an assessment to see if it fulfils the strict criteria such as being reasonable, locality, exercised as a right and most importantly consistency. This source is not seen as being more important than legislation as “custom is not, of itself, ‘law’” (Elliott et al., n.d.).

One of the sources within the constitution is Common law which is also known as the case law or judicial precedent which is the system where legal decisions from judges are formed around a similar case that occurred in the past in relations to disputes. An example of a precedent case is Donghue versus Stevensons 1932 (Leo Isaac.com) and today the outcome of this case helps judges come to a ruling in other cases that have similar facts or raise a similar conflict. This is only one type of case law; the other is original precedent “where judgements become new laws when there are no statutes” or no decisions made before, (diffen.com) and these are made for future cases to follow.
The Donghue versus Stevensons example goes along aside the expression that the common law source is based on “traditions and long-established practices” which are the words of (Mattspaul 2018) and also makes it a primary source.

(Alex Carroll) also mentions that the courts “have no jurisdiction to question how parliament regulates proceedings”. Carroll is trying to illustrate that common law is not as important to legislation, as those who work in this sector of law cannot challenge the powers used by the government and their highest officials and the source has no say in whether the influence during the making of laws for the country is ultra-virus therefore statutes are said to be more important than cases in law making.

In conjunction to Carrolls pervious statement on common law he has also acknowledged that the “Uk parliament is not bound by international laws”.

(Thefreedictionary 20185 ) defines the international source as being “the body of law that governs the legal relations between states or nations” and is known as a primary source. This relationship was formed to stabilise and organise alliances for each country involved. This relation consists of treaties (international agreement) which focuses on putting domestic laws in place.

(Elliott et al., n.d.) touches on the fact that when the Uk signs a treaty “it does not instantly make a law” as “parliament must introduce legislation to enact its treaty commitment” which shows beyond doubt that the international source has no power over statute law. And “should an enactment be inconsistent with international law; the statute source prevails” which indicates that parliament deals firstly with their own legislations before dealing with other countries and their regulations. This implies to the readers that the statute source is far more important to England and wales than international sources.

The final conclusion that the readers may have come to is that while custom, common, Eu and even international law have had significant impacts when it comes to law making and protecting human rights, the title of this essay is true; legislation does remain the most important source of law. “This is clear as written laws created by parliament can override case laws but not vice versa” and what makes the statute source the most essential source is that the laws produced are created to meet citizens needs and rights which would not exist without law. Legislation has become the most important source as it sets standards for the courts to obey by. Many people believe that without a legislature to make legislation no country can run properly.

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