Statutes or Legislations
The main purpose of law in business assist regulate how but is to transactions contact with each other. All businesses must operate within a legal framework. This paper will be discussing the different sources of law in England and Wales. The first source that would be covered is the parliamentary legislation. These are laws created by the United Kingdom (UK) Parliament which is the only body with powers of enacting legislation. Another source of law is the Case-law which is also referred to as the Common law. This is the law that has developed through the adoption of rationales that have been held by Judges in the previous cases. Moving on is the European Convention on Human Rights which has been incorporated into the UK Law through the Human Rights Act of 1998 (HRA). The last source of law is the European Law. This source comes as an adherence to the 1957 treaty the that the UK signed in 1973 to become a member of the European Union (EU).
Legislations are classified as either primary or secondary legislation. Secondary legislation may also be referred to as the subordinate or delegated legislation. Primary legislation are also referred to as the statutes or Parliamentary Acts. These types of laws are enacted in Parliament and they are regarded as the supreme form of the law. The UK parliament is the supreme body for making the law, and it has the power to make and suspend a law (MacIntyre, 2016, p.8). The UK Parliament is divided is made up of the two houses, the House of Commons and the House of Lords (HL). The process of the formation of the law starts with the presentation of the of the Bill to the House of Commons after that it is then presented to the HL. If both houses approve the Bill by a majority vote, it is then presented to the Queen who gives it a Royal Assent to become a legislation.
The normal procedure for a Bill to become a law is as follows;
The First reading: This is the first stage where the Bill is presented to the House of Commons. Its title is read and published (MacIntyre, 2016, p.9).
The Second reading: The general provisions of the Bill are debated in the House of Commons (MacIntyre, 2016, p.9).
The Committee stage: The provisions of the Bill are examined in detail and amendments are made if any (MacIntyre, 2016, p.9).
Report stage: Votes are taken over the amendments (MacIntyre, 2016, p.9).
The Third reading: This happens to be the final stage. It involves consideration of the entire Bill including the concluded amendments, and the MPs take the final voting. The members may also engage in a short debate for taking minor amendments before taking a final vote for passing the Bill (MacIntyre, 2016, p.9).
Presentation to the HL: The Bill undergoes a similar procedure like the one it underwent in the House of Commons. If the HL suggests some amendments, the Bill goes back to the House of Commons (Jones, 2013, p.47). The Bill can undergo this stage until both houses are satisfied with all the provisions.
The Common Law
Royal Assent: The Queen gives her assent to the Bill before it becomes the law. Once this stage has passed, the Bill becomes an Act of Parliament (Jones, 2013, p.48).
The Bills presented for enactment can be either Public or Private Bills. Public Bills are concerned with matters such as those touching on the society in general or those dealing with a particular Government statutory programme. Private Bills are those the government sponsors to deal with matters that are specific to a certain location or group of people. Secondary legislation is made by bodies or persons who are granted authority under the Act of Parliament to enact such legislation. These bodies or persons can be ministers or government bodies.
Unlike statute law, the common law refers to the adoption of a decision previously made by the court instead of Acts of Parliament. In the UK, common law has been the main source of law which mainly consist of fundamental legal principles which have been established by the judges while deciding on various cases. The Common law systems of England dates back to the time of the Norman conquest (Gibson and Fraser, 2013, p.14). Before then, different parts of England were using different legal systems, and each was based on its own customs. When William the Conqueror came to power in 1066, he created a centralized government and standardized the law (Thomas, 2007, p.7). The process involved upholding rational custom principles and rejecting the unreasonable. It was at this time the principle of stare decisis was made which meant that an earlier decision must stand. Where there was no previous decision in situations when there was a new problem, the decision formed was to be followed in future similar situations. This trend resulted in the system of ‘Common law’ which was used consistently to decide cases and predict the outcome of every particular situation.
The ‘common law’ principles are still applied today in legal decisions under the concept of stare decisis. Within the common law, there is also the concept of precedent. This is a system in the modern court system where Courts follow a hierarchical system and judges in the lower courts have to follow the decisions made by the Courts higher in the hierarchy (case law) (Adams, 2014, p.29).
The EU law was part of the international laws that were originally denoted to as European Community Law. The EU is an international organization made up of some European countries. According to (Forsberg, 2013), the EU was formed to mainly deal with issues such as those involving political, military, and economic matters among member states. The union also deals with other common factors that affect the states. EU law constitutes treaties signed by the members, judgments, and enacted laws which form parts of the legal systems among the member states. The EU law is binding to the states and it supersedes national laws where there is a conflict of laws dealing with human rights, political, economic or other matters.
According to (Khorana and Garcia, 2018, p.38), the EU law is usually classified as primary, secondary, and supplementary law. The primary laws are those that are contained in the signed EU treaties (Khorana and Garcia, 2018, p.38). Both the government and the EU negotiate the treaty, and after the negotiation, both parties sign the treaty which its operation in the member state pend until it has been ratified in the parliament of that country. The treaties contain the roles, institutions that form up the EU, the bodies that make decisions and legislation, the executive and various practices that underpin the laws and their implementation. Once regulations become laws and are ratified by the states, the immediately become operational and override any contradicting domestic law. Unlike directives, regulations never require any implementation measures. According to (Adams, 2014, p.20), the EU directives require the members to achieve adhere to some measure and achieve laid out results. As legislations are made from decisions, European Court of Justice (ECJ) ensures uniform interpretation and implementation of the EU laws among members (MacIntyre, 2016, p.27).
European Union Law
The EU secondary laws are acts and agreements made with member states for governing their activities to achieve a particular pre-determined goal (Khorana and Garcia, 2018, p.38). For instance, the unilateral acts contained in Article 288 of the treaty which has the provisions that govern EU operations. The Acts has provisions for recommendations, decisions, opinions, regulations, and directives as contained in Article 288. The EU supplementary laws provide general legal principles that have been developed in the ECJ (Khorana and Garcia, 2018, p.38). Apart from the case law, supplementary laws also allow the court to fill in the gaps that were not handled by either both the primary and secondary laws. For example, the supplementary law may have provisions for customs of trade practices and other international provisions not contained in the written law.
According to (Amos, 2017), the UK was one first states that contributed to the founding of the Council of Europe (COE) after it ratified the Statute COE 1949 and later the ratification of the European Convention on Human Rights (ECHR) in 1951. The UK enacted the HRA in October 2000 which was based on ECHR. The act contained various sections of ECHR that hold some effects of codifying the safeguarding of the rights contained in the convention to the UK law. Following this, the rights contained in the ECHR forms part of the UK law and they are recognized in the UK courts. It also means that any person can bring a human rights case in UK court without creating a necessity to go and argue the case at Strasbourg.
The significance of ECHR can be seen in Lord Bingham comments in the case of (Ullah v Special Adjudicator, [2004]) where the Judge stated that national courts have a duty to keep pace with the jurisprudence of the Strasbourg as it keeps evolving. The applications of ECHR can be viewed in two main areas of relevance in the UK domestic law. The first one is that the UK law will always try to maintain the compatibility of their interpretation of domestic legislation with the ECHR provisions. Again, while enacting laws, the UK parliament also has to avoid breaching the ECHR provisions. Secondly, this rationale has been awarded a specific force under section 2(1) (Human Rights Act, 1998). The section states that either the tribunal or the court determining a case connected to the convention must consider the decisions, judgment and declarations made by the European Court of Human Rights.
International or Foreign laws find their way to England legal system through comparative law. The work of (Örücü, 2005), stated that the UK legal system stand with one foot in the ius commune novum with rest of Continental Europe legal systems while the other foot remains in the ‘unity of common law’ engraved Commonwealth legal systems and that of the US together with laws from other jurisdictions such as Scotland. According to (Gerven, 2008), UK judges use foreign laws and judgments as a comparative guide while interpreting English law either as supplementary or substantively, and the UK HL judges who have worked with the Commonwealth’s principles have been accustomed to the use of comparative law than the judges in other jurisdictions.
While viewing ECHR as an international law, the HRA places a legal obligation for the recognition of ECHR principles. Some scholars such as (Knop, 1999) have also observed the Human Right Acts and EU treaties have caused transjudicial negotiation on human rights which are a combination of the provisions of international law, comparative law, and constitutional law. Again, even prior to the enactment of HRA, the UK House of Lords were applying the comparative methods to consult the decisions of other jurisdictions. For instance, in (White v Jones, [1995]), the Lords engaged a comparative approach with Judge Nicholas pointing that there were courts in other jurisdictions who had given opposite conclusions on a similar matter. By other jurisdiction, the Judge was referring to countries such as the United States, Germany, Australia, and New Zealand. Another case is the decision of (A v. Secretary of State for the Home Department (No 2), [2005]) where the HL used determination of foreign courts to compare the interpretation of rights.
Conclusion
As stated in the introduction, this paper intended to analyze the legal system of the UK by looking at the main sources of the law. To accomplish this objective, the paper has explained the relevant areas of the common law system which was more of an illustration of the common law legal method and its effect in UK law. Following the same approach, the paper has discussed other sources such as the EU law, the legislature, the ECHR, and the international law.
References
A v. Secretary of State for the Home Department (No 2) [2005] UKHL 2005.
Adams, A., 2014. Law for Business Students. 8th New edition edition ed. Harlow: Pearson Education Limited.
Amos, M., 2017. The Value of the European Court of Human Rights to the United Kingdom. European Journal of International Law, 28(3), pp.763–785.
Forsberg, T., 2013. The power of the European Union: What explains the EU’s (lack of) influence on Russia? Politique européenne, 39(1), p.22.
Gerven, W., 2008. JURIDICA INTERNATIONAL. LAW REVIEW. UNIVERSITY OF TARTU (1632): The Open Method of Convergence. Juridica International, pp.32–41.
Gibson, A. and Fraser, D., 2013. Business Law 2014. 8 edition ed. Pearson Australia.
Human Rights Act, 1998.
Jones, L., 2013. Introduction to Business Law. 2 edition ed. Oxford, United Kingdom: Oxford University Press.
Khorana, S. and Garcia, M., 2018. Handbook on the EU and International Trade. Northampton, MA: Edward Elgar Pub.
Knop, K., 1999. Here and there: international law in domestic courts. NYUJ Int’l L. & Pol., 32, p.501.
MacIntyre, E., 2016. Business Law. 8 edition ed. Harlow, Essex, United Kingdom: Pearson.
Örücü, E., 2005. Looking at convergence through the eyes of a comparative lawyer. Electronic Journal of Comparative Law (, 9, p.2005.
Thomas, H.M., 2007. The Norman Conquest: England after William the Conqueror. Lanham: Rowman & Littlefield Publishers.
Ullah v Special Adjudicator [2004] UKHL 26.
White v Jones [1995] AC 207 2.
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