LAWS41712 English Legal System

Lecture Two – Sources of Law 1: Legislation

Intended Learning Objectives:

– Identifying the Different types of legislation in the

UK;
– Understanding Acts of Parliament and their different
components;
– Understanding the concept of Parliamentary
sovereignty; and
– Understanding the concept of Delegated Legislation
 Constitution
• A constitution can be defined as a series of legal and non-legal rules
that define how a country is governed.

• However, the term ‘constitution’ in many countries means a document

that enshrines the fundamental rules of governance.
 Does the United Kingdom have a constitution?

• The United Kingdom does not have a written constitution.

• There is no document in the United Kingdom equivalent, for example, to

the United States Constitution

• Within the United Kingdom the legislature rarely expressly refers to

pieces of legislation as constituting part of a formal constitution.
• The presumption is that so-called ‘constitutional’ pieces of legislation (ex:
Human Rights Act 1998, (now repealed) The European Communities Act
1972)

• However, these are no different from any other piece of legislation

and could be amended or repealed by a simple majority.

The ECA 1972 is a good example of this.

Primary Sources of Law

• Primary sources of law are authoritative sources of law, ie

they are statements of what the law is.

Secondary Sources of Law

• Secondary sources are not strictly speaking statements of

what the law is but rather interpretations of the law
EXAMPLE:

consider the difference

between the information
you take from the Theft
Act v your Criminal Law
textbook
 Primary Sources

Legislation Decisions of courts

ie measures that come from i.e, the ‘common law’ (or, case
the legislature (Parliament) law)
and this is known as ‘statutory
law’
ON LEGISLATION:

• Sovereign power in the United Kingdom resides in the Queen in Parliament.

• This means that all legislation requires the approval of the monarch (‘Royal Assent’)

• The citizens of UK elect Members of Parliament who have the right to pass laws.

• As the Queen in Parliament is supreme then this means that where a statute conflicts
with a decision of the court, the statute (legislation) prevails.

• The courts of England and Wales have no power to declare a statute unlawful. (unlike
say, the USA)
ON CASE LAW:

• As the UK is a common law country, decisions of courts are sources of law.

• Judges can, to an extent, make the law by making decisions.

• Decisions of courts are reported in Law Reports.

• These contain:
- an account of the case,
- the judgement and
- in some reports, the submissions of counsels.
 Secondary Sources
• These are largely academic material (textbooks, newspaper articles,
TV interviews, journal articles etc)

Consider this!

Judges will make speeches or write an article for a learned

journal and this will include statements of what the law
may be.

However, this remains a secondary rather than primary

source because it is their personal view of the issue and not
the ruling of a court.
Acts of Parliament
 Acts of Parliament are Statutory Instruments
Primary Legislation. are Secondary
Legislation
• It exists either as
Private Acts/Public • It will include
Acts. consequential matters
left out by an Act of
• Public Acts and these Parliament.
are measures that
apply to all of society. • Such matters could
include when a piece of
• Private Acts are those legislation comes into
that are limited to a effect or the precise
particular company or application of a law.
organization that
requires powers • This is also known as
In 2018, Parliament passed thirty-four Public beyond those delegated legislation.
Acts of Parliament while 1,387 pieces of prescribed by the
secondary legislation were passed. normal law.
Process of Creating an Act of Parliament

The Parliament comprises:

– House of Commons
– House of Lords
– Monarch

How laws are made – YouTube

How Do Laws Get Passed In The UK? - YouTube

Example of an Act
of Parliament
 Short title

Royal Coat of Arms

SHORT TITLE

It is what the Act will be referred to/cited as.

However, the authority to be called/cited as such

must be given in the Act as, for example, ‘This Act
may be cited as the Constitutional Reform Act 2005.’

ROYAL COAT OF ARMS

It acts as a seal for the legislation

 Citation

CITATION

• The second official way in which a statute should

be cited is in respect of its chapter number.
 Long title
Date of Royal Assent

LONG TITLE

• It serves as a description of the purposes of the

Act.

• It also governs the scope of legislation and acts

as an aid to construction (Bennion)

DATE OF ROYAL ASSENT

• It is the final part of the process required to

enact legislation.

• It is the date on which assent is given is placed

on the Act and on all copies of the Act.
ENACTING FORMULA

• It demonstrates that the legislation passed the

relevant legislative processes

SECTIONS AND SUBSECTIONS

• It contains the provisions of the Act, i.e, the law.

• It is these provisions that need to be interpreted

when adjucating a case.

Enacting formula

Sections and subsections

PART NUMBER AND HEADING

Where an Act is long it is not uncommon for the act to be split into parts.

Each part is usually accompanied by a heading, or more properly referred to as a

‘note’ and these have the same status as marginal notes

MARGINAL NOTES

It operates as a heading.

It makes it easier to locate the necessary law.

SCHEDULES

These are often used to spell out in more detail how the provisions of the bill are to
work in practice.
Delegated Legislation
• Delegated Legislation (also known as, secondary legislation) takes the
form of a ‘statutory instrument’.

• It is found in by-laws, ordinances, orders in council and various other

‘instruments’ made by the executive.

• Delegated Legislation is legislation made by an executive body (ex:

Minister) by authority of an Act of Parliament, this means, the power
to make delegated legislation is conferred on the executive by an Act of
Parliament.
• The British Parliament has a long-established practice of delegating its
power to make rules and regulations to the executive.

• The complexity of the modern state renders it impossible for the

Parliament to deal with the mass of technical detail which is usually
contained in delegated legislation.

• Thus, it will delegate its law making powers to the executive for the
purpose of fine-tuning a piece of legislation.

• The effective oversight of the exercise of the delegated legislative power

is essential due to the sheer volume of delegated legislation.
eg: Automated and Electric Vehicles Act 2018

Section 10 Public charging or refuelling points: access, standards

and connection
…
(3) Regulations … may, for example, require the operator of a
public charging or refuelling point to ensure that the point complies with
prescribed requirements (which may include technical specifications).
eg: Automated and Electric Vehicles Act 2018

Section 18 Regulations
…
(2) A power to make regulations under this Part is
exercisable by the Secretary of State by statutory instrument.

(3) Before making regulations under this Part, the Secretary of State
must consult such persons as the Secretary of State considers appropriate.
POSITIVE AFFIRMATION PROCEDURE NEGATIVE AFFIRMATION PROCEDURE

This is a type of parliamentary procedure that applies An SI laid under the negative procedure becomes
to statutory instruments (SIs). law on the day the Minister signs it and
automatically remains law unless a motion – or
Its name describes the form of scrutiny that the SI ‘prayer’ – to reject it is agreed by either House
receives from Parliament. within 40 sitting days.

An SI laid under the affirmative procedure must be It is used for small uncontroversial matters, such as,
actively approved by both Houses of Parliament changes to the minimum wage.
before the delegated legislation becomes law.

NOTE: Certain SIs on financial matters are only

considered by the Commons.
Parliamentary Sovereignty
‘The principle of parliamentary sovereignty means neither more nor less than this: namely, that
Parliament thus defined has, under the English constitution, the right to make or unmake any law
whatever; and, further, that no person or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament … The same principle looked from its negative side,
may be thus stated: there is no person or body of persons who can, under the English
constitution, make rules which override or derogate from an Act of Parliament , or
which (to express the same thing in other words) will be enforced by the courts in contravention of an
Act of Parliament.’

AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, (1898), Macmillan, 1959)
39
R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) [20]

Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ:

‘It is common ground that the most fundamental rule of UK constitutional law is that the Crown in
Parliament is sovereign and that legislation enacted by the Crown with the consent of both
Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to
Parliament). Parliament can, by enactment of primary legislation, change the
law of the land in any way it chooses.’
It is usual to think of Parliamentary sovereignty as comprising
three rules:

1. That Parliament can make or unmake any law whatsoever.

2. That no body or court of law can question an Act of

Parliament.

3. That no Parliament can bind itself, its successors or be

bound by its predecessors.
GINGER HAIR TEST

The essence of this example is that Parliament passes a law that states anyone with ginger
hair is to be arrested and sent to gaol. Theoretically Parliament could enact such a law but
it is an unjust law and one that is a direct affront to human rights and the right to liberty.
Given that the courts will be the ultimate arbitrators of this law it is argued that they could
interpret the law so as to make it impossible to implement. For example, if a judge was
called upon to rule whether someone had ginger hair, she could adjudicate that the person
in fact had red hair or a dark copper colour hair. In this way the courts could act as a ‘brake’
to Parliament’s desire to infringe human rights by ensuring that the law was interpreted in
such a way that no injustice is done.
 REVIEW!
1. What are primary sources of law and secondary sources of law?

2. What is primary legislation and secondary legislation?

Note: Don’t mix up primary sources of law and primary legislation!

3. What is the Parliamentary process for passing legislation?

4. Can you identify the parts that compose an Act of Parliament and their purpose? (next
slide!)

6. What is meant by delegated legislation?

7. What is the Positive and Negative Affirmation procedure?

A
B
C

D
E
8. What does the concept of Parliamentary Supremacy NOT entail?

A. Parliament can make or unmake any law whatsoever.

B. No body or court of law can question an Act of Parliament.
C. Parliament can make judicial decisions while sitting in the House of Lords
D. Parliament cannot bind itself, its successors or be bound by its predecessors.

9. Which of the following could be classed as a primary source of law?

A. Law Report
B. Journal Article
C. Newspaper Report
D. Radio Interview
Summary

We have looked at:

– Different types of legislation in the UK
– Acts of Parliament and their different components
– Parliamentary sovereignty
– Delegated Legislation