Legal System
Sources of Law
What are sources of law?
1. Law made by Parliament – referred to as
‘legislation’, ‘statute law’ or ‘Acts of
• Parliament’. Written laws that express the will of
the legislature.
2. Law decided in the courts – referred to as ‘common
law’ or ‘case law’. Decisions of judges in particular
cases applied by other judges in later cases through
the process of precedent (combined common law
and equity).
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What are sources of law?
3. European Union law – referred to as ‘EU law’
comprising law emanating from the European
Commission, Council of Ministers and Court of
Justice of the European Union.
4. European Convention on Human Rights –
referred to as Human Rights Law or ECHR,
emanating from the European Court of Human
Rights (ECtHR) and now incorporated into UK
law through the Human Rights Act 1998.
Law made by Parliament
• In England and Wales the supreme law-making
body is Parliament.
• Parliament has two ‘chambers’: the House of
Commons comprising democratically elected
Members of
• Parliament (MPs); and the House of Lords
comprising members who are appointed and some
who have inherited the right to serve in the House
(not to be confused with the Judicial Committee of
the House of Lords which until 2009 was the final
court of appeal for the UK)
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Law made by Parliament
• A valid ‘Act of Parliament’ is written law and is the
end product of a long process following the
introduction of a draft ‘Bill’ in Parliament.
• Before a Bill is introduced to Parliament, the
government will normally go through a process of
consultation.
• They will publish what is called a ‘Green Paper’
which sets out the tentative proposals for changes
to the law and invite comments. Green Papers were
first used in 1967 and are now usually used as part
of the legislative process
Law made by Parliament
• This will be followed by a ‘White Paper’ which
contains the government’s firm proposals for
new law and may have the draft Bill attached.
• Following consultation, the draft Bill is
introduced in Parliament and then debated,
discussed and amended.
• Once a Bill has gone through all of the
necessary Parliamentary processes it will be
signed
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Law made by Parliament
• Once a Bill has gone through all of the
necessary Parliamentary processes it will be
signed by the Queen (Royal Assent) and then
published as an Act.
• A valid Act of Parliament takes precedence
over common law or case law. Indeed, it takes
precedence over everything except EU law.
The courts and common law or
‘judge-made law’
• In contrast to statute law, when we refer to the
‘common law’ we are referring to the law contained
in decisions of the courts rather than legal rules
contained in Acts of Parliament.
• England and Wales is a common law system,
meaning that many of our most fundamental legal
rules and principles have been established by
judges deciding individual cases, rather than these
rules being laid down by Parliament
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The courts and common law or
‘judge-made law’
• So, for example, most of the law relating to the
formation of binding contracts is to be found
in the common law rather than in statutes.
The courts and common law or
‘judge-made law’
• When a lawyer or judge is looking for the rules
on the formation of contract they will refer to
important legal cases which set out the legal
principles. In other words, they will be looking
at case law or ‘legal precedents’ which
establish the relevant legal principles.
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The courts and common law or
‘judge-made law’
• the body of court decisions that comprises the
English common law has developed over many
years, dating back to its origins in the12th
century.
The courts and common law or
‘judge-made law’
• The Common Law is to be found in the records
of our several courts of justice in books of
reports and judicial decisions, and in treatises
of learned sages of the profession, prescribed
and handed down to us from the times of
ancient antiquity.
• They are the laws which gave rise and origin to
that collection of maxims and customs which is
now known by the name of common law.
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The courts and common law or
‘judge-made law’
• We will look at the development of English
common law later in the chapter.
• In the meantime, it is important to note that
the term ‘common law’ may also be used in
two other contexts.
• This can be confusing for students new to law,
but gradually the meaning in different
contexts will become very familiar and cause
no difficulty.
The courts and common law or
‘judge-made law’
• As well as the contrast between common law
and statute law, the term ‘common law’ is also
used to distinguish law emanating from
common law courts from law emanating from
courts of ‘equity’
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The courts and common law or
‘judge-made law’
• The third context in which the term common
law is used is to distinguish ‘common law’ legal
systems or jurisdictions
• such as England and Wales, Canada, USA and
Australia from ‘civil law’ legal systems or
jurisdictions such as Germany or France where
the law is almost entirely ‘codified’ (i.e.
contained within written codes).
EU Law
• The European Union (EU) is an economic and
political partnership between 28 European
countries, created after the Second World War.
• The initial approach was to encourage
economic cooperation on the assumption that
economic interdependence might avoid future
conflict.
• The EU now encompasses both economic and
political union.
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EU Law
• It is based on the rule of law and its laws are
based on treaties that have been
democratically agreed by all member
countries.
EU Law
• One of the EU’s main goals is to promote
human rights. Since the Treaty of Lisbon in
2009, the EU’s Charter of Fundamental Rights
has placed all these rights in a single
document.
• The EU’s institutions are legally bound to
uphold them, as are EU governments
whenever they apply EU law.
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EU Law
• Since the UK joined the EU in 1973, law
emanating from the European Parliament,
European Council and European Commission
governs certain activities and practices in the
UK.
• Since the enactment of the European
Communities Act 1972, European Law takes
precedence over domestic law.
EU Law
• On 23 June 2016, the UK held a referendum on
whether to leave or remain in the EU. The
majority voted to leave the EU.
• Although the British Prime Minister started the
formal process of leaving the EU at the end of
March 2017, at the time of writing, it is not
clear what the timetable or outcome of the
process will be.
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EU Law
• The government has said that it will enact
what it calls a ‘Great Repeal Bill’ as soon as the
UK leaves the EU.
EU Law
• The effect of this would be to end the
authority of EU law by converting all its
provisions into British law, while at the same
time repealing the European Communities Act
1972 and the sovereignty of EU law.
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EU Law
• The intention is that Parliament would then be
able to decide whether to retain, amend or
repeal aspects of EU law in the future.
• However, at the time of writing this module
guide, the position of EU law as a source of law
in England and Wales has not changed.
European Convention on Human
Rights (ECHR)
• The European Convention on Human Rights is
an international treaty which was drafted in
1950 and Came into effect in 1953 having
been signed by European nations who were
members of the
• Council of Europe, a body set up in Strasbourg
in France after the Second World War.
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European Convention on Human
Rights (ECHR)
• The UK signed up to the Convention in 1953
and was one of the first countries to do so.
• Some 47 countries have now signed up to the
Convention including most of the east
European, and former communist countries,
and several countries that were once part of
the Soviet Union.
• The countries that have signed up to the
Convention make up the Council of Europe.
European Convention on Human
Rights (ECHR)
• The Council of Europe is quite separate from
the European Union.
• The operation of the European Convention in
the UK is therefore not affected by the
referendum decision to leave the European
Union.
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European Convention on Human
Rights (ECHR)
• The ECHR was a reaction to the experience of
the horrors of the Second World War and
reflected the hope and belief that if nations
joined together to agree to protect human
rights, the likelihood of a recurrence would be
reduced
European Convention on Human
Rights (ECHR)
• The ECHR provides for individuals to bring
proceedings in the European Court of Human
Rights in Strasbourg, France, if they believe
that a government is in breach of its
obligations under the ECHR.
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European Convention on Human
Rights (ECHR)
• In 1998 the UK passed the Human Rights Act
1998 which incorporated directly into English
law the main provisions of the ECHR..
European Convention on Human
Rights (ECHR)
• In 1998 the UK passed the Human Rights Act
1998 which incorporated directly into English
law the main provisions of the ECHR..
• This means that if a UK citizen believes that the
UK Government is in breach of its human
rights obligations, a case can be pursued in
the English courts.
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European Convention on Human
Rights (ECHR)
• Certain fundamental rights and freedoms have
been protected in English common law since
the signing of the Magna Carta (‘Great
Charter’) by King John of England in1215.
• The Magna Carta sets out many rights that are
now referred to as ‘human rights’ or
fundamental principles of good government.
For example, it established principles of due
process and equality before the law.
European Convention on Human
Rights (ECHR)
• It contained provisions forbidding bribery
• and official misconduct. Despite the provisions
of Magna Carta and other rights
• protected under English common law, since
the passing of the Human Rights Act
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European Convention on Human
Rights (ECHR)
• 1998 a wide range of fundamental rights and
freedoms are now positively protected by the
Act and the jurisprudence of the European
Court of Human Rights has had a significant
impact on English substantive law and on legal
process.
• The protection of human rights is now
regarded as fundamental to the rule of law
European Convention on Human
Rights (ECHR)
• The protected rights and freedoms
• The purpose of the ECHR is the protection of
fundamental rights and freedoms.
• The Convention is divided into ‘articles’.
Articles 2 to 14 set out the rights that are
protected by the Convention
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European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Over the years the Convention has been
supplemented by a number of ‘protocols’ that
have been agreed by the Council of Europe.
Some of the protocols just deal with procedural
issues but some guarantee rights in addition to
those included in the Convention
European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• Right to life (Article 2)
• Prohibition of torture (Article 3) (‘No one shall be
subjected to torture or to inhuman or degrading
treatment or punishment’)
• Prohibition of slavery and forced labour (Article 4)
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European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• right to liberty and security (Article 5)
• right to a fair trial (Article 6) (‘everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law’)
European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• Punishment without law (Article 7)
• Right to respect for family and private life
(Article 8)
• Freedom of thought, conscience and religion
(Article 9)
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European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• Freedom of expression (Article 10)
• Freedom of assembly and association (Article
11)
European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• Prohibition of discrimination (Article 14)
• Right not to be subjected to the death penalty
(Articles 1 and 2 of Protocol 6)
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European Convention on Human
Rights (ECHR)
The protected rights and freedoms
Some of the most important rights and freedoms
protected under the ECHR are:
• Right to free elections (Article 3 of Protocol 1)
(free elections at reasonable intervals by secret
ballot ensuring free expression of the opinion
of the people in the choice of the legislature).
European Convention on Human
Rights (ECHR)
The protected rights and freedoms
The ECHR rights incorporated into English law
under the Human Rights Act 1998 appear as a
Schedule to the Act.
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European Convention on Human
Rights (ECHR)
The protected rights and freedoms
‘Derogation’
These fundamental rights and freedoms are not
all seen in the same way. Some are absolute and
inalienable and cannot be interfered with by the
state. Others are merely contingent and are
subject to ‘derogation’.
European Convention on Human
Rights (ECHR)
The protected rights and freedoms
‘Derogation’
That means that a signatory state can opt out of
them in particular circumstances. The absolute
rights are those provided for in Articles 2, 3, 4, 7
and 14. All the others are subject to potential
limitations.
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