ENGLISH LAW,ITS HIERARCHY OF COURTS,SOURCES OF LAW AND IMPACT OF EUROPEAN UNION IN ENGLISH LAWS

                 

HISTORICAL BACKGROUND

English Law refers to the Law of England, Wales and Scotland

The spread of English legal system is mainly due to colonial expansion of British Empire and its flexibility and its pragmatism.

Like Roman Law, English Law developed from procedures, only later substantive law.

Roman empire

Anglo- Saxons

Norman conquest-1066

The history of English law have 4 principles period:

1st- before the Norman conquest in 1066

2nd-stretching from 1066 to then accession of the Tudors (1485) where there is formation of common law and in this period new legal system wad developed at the expense of local custom

3rd-rule of equity developed alongside the common law. It lasted from 1485-1832

4th-beginning in 1832 and still running where common law faces unpredicted development in legislation.

      SOURCES OF ENGLISH LAW

Precedent

Legislation

Customs

Equity

Expert’s opinion

Decision of the European courts

                  PRECEDENT

Major source of law in England.

Judicial decisions developed by the king’s council of England after Norman conquest in 1066.

Precedent is preferred in absence of legislation or in presence of unclear laws.

Right visioning power of the judges.

“Stare decisis”- principle of binding principles

Binding nature

Precedents ensure certainty, consistency and logical progression and development in the law.

            LEGISLATION

Legislation simply refers to the Statute or codification

These are the Laws enacted by the parliament.

Though precedent is the major  source of English law, legislation is also being an important source these days.

 2 types: supreme legislation

                 delegated legislation           

                          CUSTOMS

customs refers to the laws before Norman conquest

In English law, customary laws  are applied as a source of law.

The customs which are not rational, are reasonable and not  against social norms are already approved by legislation.

The customs must have following characteristics:-

§ antiquity

§Continuity

§Should be in practice from time immemorial

§Reasonable

§Binding

§Nature and scope

§Not against statutory/fundamental law

There are two types of customs:

General customs:- applied all over the country

Local customs:- applied to certain community only

                  EQUITY

Equity is the name given to the set of legal principles, in jurisdiction following the English common law tradition.

It is commonly said to “mitigate the rigor of common law” allowing courts to use their discretion and apply justice in accordance with natural law.

Equity means the right visioning of the judges.

It advocates equal opportunity for the equals.

Equity refers to the system of rules and principles developed by the former Courts of Chancery. Equity provides a measure of fairness, or natural justice, that is not always available under common law. Although equity and common law are implemented by the same courts, the two branches of the law are separate. Equity includes wide remedial principles that allow the courts to protect individuals from strict common law rules.

           EXPERT’S OPINIONS

When there is insufficiency in common law system then opinion of experts are also considered.

      DECISION OF EUROPEAN COURT

For the English legal system, specially those who were under British empire, the decision of European court is also a source of law. The decisions made by the European court is binding to these countries and may even overrule the national laws of the respective countries.

            STATUTES AND TREATIES

Statute law refers to law that has been created by Parliament in the form of legislation.

However, to be enforced even statutes and treaties must be interpreted by the judges to b applied as law.

Statutes are controlling i.e. a statutory law can replace customary law.

Statutes are the laws made by Parliament acting in its legislative role. Until the statute (or Act) has passed through all its stages and received the royal assent, it is referred to as a ‘bill’, for example the Localism Bill 2010.

HIERARCHY OF ENGLISH COURTS

House of lords

Courts of appeal

High courts

Crown court and county court

Magistrates’ court 

 According to, Judicial Statistics, Annual Report 2005 (CM6799) (London, The Stationery Office, 2006)the hierarchy of modern English court can be illustrated in the following diagram:

                     ENGLISH PARLIAMENT

               After King John’s death, government was carried on by the Great Council, since his son and successor Henry III was nine years old at the time.

              A meeting of the nobles, the clergy and the representatives of the countries and towns (boroughs), was called by Simon de Montford in January 1265, in order to decide the methods of government administration and of levying taxes. This meeting became famous as the Parliament of Simon-de-Montford. This earned him the title of "Father of Parliament body in the world.

         

The Parliament of Great Britain was formed in 1707 following the ratification of the Treaty of Union by both the Parliament of England and Parliament of Scotland passing Acts of Union. However in practice the parliament was a continuation of the English parliament with the addition of Scottish MPs and peers. Parliament was further enlarged by the ratification by the Parliament of Great Britain and the Parliament of Ireland of the Act of Union (1800), which abolished the Irish Parliament; this added 100 Irish members to the Commons and 32 to the Lords to create the Parliament of the United Kingdom of Great Britain and Ireland. It has been called "the mother of parliaments", its democratic institutions having set the standards for many democracies throughout the world, and the United Kingdom parliament is the largest Anglophone legislative

   The parliament of UK is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The Queen is the third component of the legislature. The House of Lords includes two different types of members: the Lords Spiritual (the senior bishops of the Church of England) and the Lords Temporal (members of the Peerage) whose members are not elected by the population at large, but are appointed by the Sovereign on advice of the Prime Minister. Prior to the opening of the Supreme Court in October 2009 the House of Lords also performed a judicial role through the Law Lords. The House of Commons is a democratically elected chamber with elections to it held at least every five years. The two Houses meet in separate chambers in the Palace of Westminster (commonly known as the Houses of Parliament), in London. By constitutional convention, all government ministers, including the Prime Minister, are members of the House of Commons or, less often, the House of Lords, and are thereby accountable to the respective branches of the legislature

          
         Parliamentary Sovereignty

 

case[EC Law - An Act of Parliament cannot be challenged]
          C, a taxpayer challenged the validity of the Finance Act 1964 because it provided for expenditure on nuclear weapons, contrary to international law (the Geneva Convention was incorporated into UK Law by the Geneva Convention Act 1957).  

    Held: A statute could not be challenged on the grounds that it was illegal, or made for an unlawful purpose, for if this were possible the supremacy of Parliament would be denied.

    While there was a general presumption that Parliament would not wish to override the UK's international obligations it certainly had the power to do so, where an Act conflicts with a Convention the Act prevails. 

    Ungoed-Thomas J. "If the purpose for which a statute may be used is an invalid purpose, then such remedy as there may be must be directed to dealing with that purpose and not to invalidating the statute itself. What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest from of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal."

 C lost

    Comment: This case is sometimes quoted as authority for saying that UK legislation can have precedence over EC Law.

  IMPACT OF EUROPEAN UNION ON ENGLISH LAWqThe UK joined EU 1973 and since then, the UK Parliament has bound itself to incorporate EU law into national law.

EU law takes precedence over national law i.e. UK Parliament is no longer the supreme law-maker and, for the time being at least, it has limited its sovereignty.

The treaties of EU is directly applicable to UK.

EU limits the power of national government and affects national sovereignty as well.   

EU law can have what is known as direct effect.  That means that the law automatically becomes part of each Member State’s domestic law.  Furthermore, EU law can have what is known as either vertical or horizontal direct effect.  Vertical direct effect allows an individual to use a legal provision to legally challenge the act of the state, government or public body.  Horizontal direct effect enables an individual or other body to legally challenge private individuals or bodies.

  Treaties:  Vertical and in certain circumstances horizontal direct effect 

  Treaties are the primary sources of EU law and do not need to be given legal effect by the UK Parliament.  Treaties can create individual rights.

  Regulations:  Vertical and in certain circumstances horizontal direct effect

    Article 249 of the Treaty of Rome makes the effect of Regulations legally binding in every respect in each Member State without that Member State having also to implement the law.  Citizens may rely on them both against the state and against private individuals or bodies.

Directives: Vertical direct effect but not horizontal direct effect

          Directives are binding on Member States who are then  left to implement their provisions into domestic law.  In the UK, this is done either by Act of Parliament or secondary legislation (see below) and there is usually some scope for flexibility in the precise nature of the implementation.  Once the provisions become part of domestic law, they can also have horizontal effect. 

   Decisions: 

          Decisions are rulings on a range of different issues.  They can be addressed to Member States, individuals or other bodies and are binding on them.

 Recommendations and Opinions: no direct effect 

          Recommendations and Opinions do not create enforceable rights but can be influential on the application of EU law in a Member State or its interpretation by the courts of that Member State.  Recommendations and Opinions are not binding.

EU case law:

          Decisions of the ECJ set a precedent to be followed by lower courts in a similar way to the common law tradition in England where judges make and develop the law through following previous decisions.  While the ECJ can bind the House of Lords in the UK, the ECJ itself is not bound by its own decisions.

                          Supremacy doctrine of EU

    In Costa v ENEL [1964] ECR 585 the European Court of Justice held   that in situations where there is a conflict between the laws of member states and European Union law, European Union law prevails, because "a subsequent unilateral act incompatible with the concept of the Community cannot prevail". However, according to the 1993 Maastricht Accord the European Union does not prevent member states from maintaining or introducing more stringent laws on working conditions, social policy, consumer protection and the environment, so long as these laws are comply with the Treaty of Rome, which has relevant provisions in these areas. Some courts in member states have resented the supremacy doctrine though it is not commonly challenged and the European Court of Justice has encouraged legal interpretation in light of European Union law by courts in member states as alternative to repealing or amending laws of member states which conflict with European Union law. A source of tension has historically been the relationship between the constitutions of member states and European Union law.

     Unlike the UK, most continental European member states have written constitutions and some have constitutional courts with the exclusive power to interpret the national constitution. The European Court of Justice has rules that such courts must apply European Union law in its entirety, to avoid any conflicting provisions of national law. Until recently the French constitutional court has regarded itself not empower to review administrative measures, as it did not recognize the review power and duty provided to it by European Union law. The German and Italian constitutional courts initially refused to strike down national laws which conflicted with European Union law. The legal system of the European Union depends heavily on the courts in member states to acknowledge and uphold European Union law, and to follow the interpretation of the European Court of Justice if there is one. The supremacy doctrine has found widespread acceptance, though the direct and indirect application of European Union law still needs to fully establish itself.