Sources of English law
1 Sources of law
(a) Common law
(b) Equity
(c) Statute (legislation) including delegated legislation
(d) European Union Law
2 Common law and equity
2.1 This is a system of law based upon decided cases. Legal rules (initially created by judges when hearing cases) are followed by judges in subsequent like cases.
It developed after the Norman Conquest.
2.2 Initially only common law rules were derived from cases. The aim of common law was certainty. However various problems within the common law system resulted in the development of another kind of case law called equity. Equity sought to address some of the problems contained in the common law system. Its aim is fairness.
2.3 Amongst the common law problems were inadequate remedies, a failure to recognise trusts and a reluctance to allow new causes of action to develop.
2.4 At first common law and equity operated as two distinct systems of law with their own independent court and judges. Given that equity is based on fairness however it was eventually decided that in the event of conflict between the two systems equity should prevail.
2.5 The two systems have now been merged together. In practice therefore, if you seek a remedy in the courts today, the court will look first to the common law. If the common law can deal with your problem adequately there will be no recourse to equity. If the common law is unable to deal adequately with the problem the court will look to equity.
2.6 Equity is therefore referred to as to a supplement to the common law.
2.7 The operation of equity is entirely discretionary whereas common law applies automatically.
2.8 Maxims:
'He who comes to equity must come with clean hands.'
'Equity does not suffer a wrong to be without a remedy.'
3 Statute (primary law)
3.1 Acts of Parliament:
Created by parliament. All new statutes should be compatible with HRA 98. Courts cannot strike out an Act of Parliament.
Procedure:
Green paper: Discussion document
White paper: Statement of policy
(a) First reading
No debate - Bill is introduced to the timetable of the house.
(b) Second reading
General debate and vote.
(c) Committee stage
Bill is scrutinized and amendments suggested.
(d) Report stage
Amendments reported back to the House.
(e) Third reading
Brief debate and vote.
(f) Same procedure in other House
(House of Lord's has power to amend and delay passage of Bill: Parliament Acts 1911-1949).
(g) Royal assent
Study point: Ensure you know what happens at each stage.
Overview
DELEGATED LEGISLATION
Delegated Types Controls Advantages Disadvantages
bodies
3.2 Delegated Legislation: (Secondary law)
Created by persons/bodies to whom parliament has delegated powers e.g. government ministers, local authorities, Inland Revenue and Customs and Excise. Delegation made possible by an 'Enabling' Act.
(a) Types:
‑ Orders in Council
‑ Bye‑laws
‑ Statutory instruments
- Acts of devolved assemblies
(b) Controls:
‑ Parliamentary: House of Commons committee on statutory instruments
- Statutory instruments must be laid before parliament prior to enactment although some require positive parliamentary approval
- Judicial: Courts may declare them "ultra vires" (beyond capacity) (unlike Primary Acts). They must be compatible with HRA 98.
- Ministerial: bye-laws must be approved by a minister
(c) Advantages:
‑ saves time
‑ technical and local expertise
‑ allows for swift alterations in the law to keep pace with changing social and historical conditions
(d) Disadvantages:
‑ lack of democratic accountability
‑ attack on concept of parliamentary sovereignty
‑ concentrates power in the hands of civil servants
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