What are the main sources of English law and how do they integrate?
The English legal system represents an uncodified corpus of varying providence, one which spans several centuries of law. The various sources and their interactions are not clearly delineated as in civilian systems, but a piecemeal construct driven by pragmatism. This article will examine the four chief sources and their interactions with one-another of English law : Common law, Parliamentary Statute, Delegated Legislation and the Law of the EU (pre-Brexit). A brief consideration of a fifth source of law, statutorily incorporated law, will also be assessed, and contrasts drawn with the EU.
The common law, or case law, makes the greatest contribution to the English legal corpus, and is the first source assessed. The binding judicial decisions of several centuries of judges form a huge and comprehensive body of law, and as a result of judicial decision making finds its way into every application of law made. We can identify two historic movements of the common law. The first was its ancient role, when Parliament rarely legislated and it was widely acknowledged that courts were simply declaring the ephemeral natural law of the land. This common law has an extensive history, and developed many of the modern norms of contract, tort, criminal law and equity. It’s death-knell, and the recognition of the fiction of its premise, was realized in the House of Lords 1966 Practice Statement, which recognized that the judiciary were engaged in a far more subjective endeavor than declaring perpetual law. The role the common law took from here was one that it had gradually begun to adopt over the 19th century, one of giving legal effect to statute. This role is the fundamental role it plays today, giving effect to the various other sources of law by providing reasoned and cogent binding interpretation to whatever case or controversy comes before a bench.
Parliamentary Statute is the second source we examine. As A.V. Dicey noted in his study of the British constitution, Parliamentary Supremacy is the bedrock of the English constitution. That an Act of Parliament can undo any other source of law is, to this day, absolutely beyond reproach in the substantive law. Due to its nature as a sovereign body, Parliament has the ability to remake the law and the interpretation of it. By empowering another body to create laws within its ambit, Parliament has effectively created a new source, or arguably sources, of law: delegated legislation.
Delegated legislation is that exercised by ministers, council and other empowered bodies. It is given shape, as with Parliamentary legislation, by common law rulings, but does not enjoy its primacy and overriding nature. Thus, though it makes up a huge part of the English legal corpus, from traffic laws to considerable parts of Welsh law, it can be readily struck down as invalid should a court identify any of it to be ultra-vires to Parliament’s authorization. It thus enjoys its position as a source of law to Parliament’s will, subject to common law interoperation.
The fourth major source of English law (pre-Brexit) was the law of the EU. Incorporated by the 1972 European Communities Act, this source of law consisted of explicit ‘statutes’ in the form of EU regulations, and the EU’s own variety of common law, ECJ Community Law. The law of the EU enjoyed a special status before Brexit, as a source that took priority over statute law (per Factortame cases). Any decision of the CJEU that conflicted with English common law or statute took priority, as did any directly effective regulations.
The reconciliation with this source and its stature with the Diceyan orthodoxy of Parliamentary Sovereignty was complicated. The English courts have consistently endorsed the position that the authority for EU law’s supremacy itself came from Parliamentary sovereignty, and thus did not disturb the legal bedrock of the country. LJ Laws in Thoburn v Sunderland CC attempted to clarify this by creating a new source of ‘constitutional statute’, ones which are part of Parliament’s ambit but entrenched from implied interference. Though the decision has not been endorsed by a higher court, it has not been overruled either, and represents an attempt to rationalize the current interplay between sources.
The precise nature of the EU source of law brings us to a fifth smaller source of law, those that result from parliamentary incorporation. Through its sovereign nature Parliament can choose to embed foreign sources of law into the English legal order. The most prominent example of this is the Human Rights Act 1998, which incorporated the ECHR into English law. Though there is considerable debate as to whether the 1972 ECA is a similar incorporation (albeit with the ability to override Parliamentary statute) or whether it is a unique novel source in English law, it is clear in either case that Parliament’s actions can at the very least introduce new sources of law into the legal system.
By its very nature as an uncodified and generally pragmatic system, there are numerous conceptual contentions in English law. The House of Lords in AG v Jackson considered tremendously controversial issues, obiter, including whether Parliamentary Sovereignty is itself a creature of common law, and whether incorporated doctrines such as the ECHR could ‘crystallize’ into permanent fixtures of English law. Nevertheless, it is possible to sketch an overview of the source of English law. At the top sits the Parliamentary statutes, supreme and increasingly the source of substantive changes in the law. After this comes EU law, law which enjoys priority over Parliamentary statute by virtue of Parliament’s own permission. Next come the sources that are realized by Parliament’s will, including both the voluminous corpus of delegated legislation, and incorporation of foreign doctrines such as the ECHR. Last, but by no means least, rests the common law, the interpretation that colours and fills in the gaps for all other sources of law.
A contentious additional source of english law is customary international law. This collection of rules are those that are agreed on by nation states in practice and in principle, and chiefly govern matters that the English Domestic legal system does not interact with. Nevertheless, a number of cases, primarily those dealing with sovereign immunity, have seen the courts give effect to customary rules and reference them as a source. The difficulty in confirming this as a source comes from the Trendtex case, where the court attempted to deal with how drastic changes in customary international law could be followed by lower courts when a higher one has applied older customary international law. On consideration of Lord Denning’s judgment in the case, it may be said that customary international law is not a separate source of English law, but rather an incredibly strong consideration for appellate courts to adjust their common law judgments.
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