5/28/24, 11:14 AM Topic 3 – Sources of law | UGLaws VLE

Topic 3 – Sources of law

Site: Undergraduate Laws VLE Printed by: Anam Khan

Module: Legal system and method 2023-24 Date: Tuesday, 28 May 2024, 7:14 AM

Book: Topic 3 – Sources of law

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Table of contents

Learning outcomes
Topic reading
3.1 Introduction
Mini lecture 1
3.2 Parliament and statutes
3.3 The courts and common law or ‘judge-made law’
3.4 European Union law
Mini lecture 2
3.5 European Convention on Human Rights
Mini lecture 3
3.6 Sources of law: the comparative context
3.7 The impact of further international law
3.8 Law reform
Learning activity 1
Learning activity 2
Quick quiz 1
Am I ready to move on?
Further reading

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Learning outcomes

After studying this topic and the relevant readings, you should be able to:

identify the sources of law and law-making processes

analyse the sources of law in a comparative context
understand why and how the law is reformed.

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Topic reading

Core text
Holland and Webb, Chapter 1 ‘Understanding the law’.

Essential reading
Slapper and Kelly, Section 2.5 ‘The Human Rights Act 1998’ and Section 3.6 ‘Law reform: the role of the Law Commission’ (The book Kelly, D. Slapper
and Kelly’s the English legal system. (Abingdon: Routledge, 2020) 19th edition [ISBN 9780367139476] is available from VLeBooks via the Online
Library ).

Primary legal sources

European Convention on Human Rights available from Council of Europe (also available in Lexis+ and Westlaw in the Online Library )
Human Rights Act 1998 available from legislation.gov.uk
R v A [2001] UKHL 25.
This case was widely reported and the judgment is available in both Lexis + and Westlaw in the Online Library .
The judgment is also freely available from BAILLI: R v A [2001] UKHL 25 (17 May 2001) available from BAILLI .

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3.1 Introduction

In studying the operation of the legal system, we need to be able to recognise which rules are regarded as ‘law’ and how important any particular rule is in
relation to other rules. In English law, the source of a rule is relevant in determining both its significance and whether it takes precedence over a rule that
comes from another source. In the English common law system, there are three principal sources of law:

1. Law made by Parliament – referred to as ‘legislation’, ‘statutes’ or ‘Acts of Parliament’. These are written laws that express the will of the legislature.
2. Law decided in the courts – referred to as ‘common law’ or ‘case law’. These are decisions of judges in particular cases, which are applied by other
judges in later cases through the process of precedent.
3. European Convention on Human Rights – referred to as Human Rights Law or ECHR, emanating from the European Court of Human Rights and now
incorporated into UK law through the Human Rights Act 1998.

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Mini lecture 1

06:22

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3.2 Parliament and statutes

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. This is not to be confused with the Appellate Committee of the House of Lords, which, until 2009, was the final court of appeal for the UK.

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. 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 by the Queen (Royal Assent) and then published as an Act. A valid Act of Parliament takes precedence over common
law (case law).

3.2.1 The distinction between primary and secondary legislation

In discussion about legislation, or law emanating from Parliament, there is a distinction between ‘primary legislation’ and ‘secondary legislation’. Primary
legislation refers to Acts of Parliament or statutes. Because it often takes a long time for primary legislation to get through all of the various stages in the
Parliamentary process, the drafting of Acts may contain only broad provisions or rules and then the detailed rules are produced later under the authority of
the Act. These detailed rules are known as secondary legislation or ‘statutory instruments’ and take the form of ‘regulations’, ‘rules’ or ‘orders’. They have the
force of law, but can be implemented with less scrutiny than primary legislation.

3.2.2 Devolved legislation

‘Devolution’ means the transfer of some powers to the three nations (other than England) which make up the United Kingdom: that is, Scotland, Wales and
Northern Ireland. The Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998 established the Scottish Parliament, the Welsh
Assembly and the Northern Ireland Assembly and devolved some powers to these bodies. The scope of the areas within which the devolved bodies can
make legislation is different for each devolved legislature, and the individual arrangements have changed over time since devolution came into effect.

Each of the devolved legislatures can pass legislation in areas that are specified by statute, as well as being bound by much of the legislation passed by the
UK Westminster Parliament. You may, in your study of law, sometimes see references to Acts of the Scottish Parliament, Acts of the National Assembly for
Wales (or, previously, Measures of the National Assembly for Wales) or Acts of the Northern Ireland Assembly.

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3.3 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. As discussed in Topic 2, 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.

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. 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. 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.

As we will see in Topic 4, the body of court decisions that comprises English common law has developed over many years, dating back to its origins in the
12th century. In the 18th century, a famous judge and legal commentator, Sir William Blackstone, explained the source of English common law as follows:

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.

(Sir William Blackstone 1723–1780, Commentaries on the laws of England)

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3.4 European Union law

The European Union (EU) is an economic and political partnership between 27 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. It is based on the rule of law and its laws are based on treaties that have been democratically agreed by all member
countries. 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.

When the UK joined the EU in 1973 law emanating from the European Parliament, European Council and European Commission governed certain activities
and practices in the UK. Following the UK leaving the EU, and EU law ceasing to be part of English law on 31 December 2020, EU law no longer has supremacy
over UK law.

Under the European Union (Withdrawal Agreement) Act 2020, the UK left the EU on 31 January 2020. EU law and the implementation period, a time of
transition when EU law remained a source of UK law, ended on 31 December 2020. EU law is no longer a source of UK law but the European Union
(Withdrawal) Act 2018 (WA) made provision for what is defined as 'retained EU law'. The precise scope of what is included in 'retained EU law' is beyond the
LSM syllabus and it is sufficient for our purposes to say that retained EU law is a snapshot of EU law as it existed on 31 December 2020, which was converted
into UK domestic law. Retained EU law is now part of domestic law either as primary or secondary legislation. While the domestic courts are no longer bound
to follow EU law or decisions of the Court of Justice of the European Union and can no longer refer questions to the Court of Justice for advice, the domestic
courts will need to look to EU law and judgments to help them interpret how the retained law should apply to the UK.

The Retained EU Law (Revocation and Reform) Act 2023 received Royal Assent on 29 June 2023 and made significant changes to retained EU law. While the
Act was still passing through its parliamentary stages, the government’s proposals for the treatment of EU law in the Act were controversial, given its
intention to include provisions that would have brought about a wholesale revocation of retained legislation at the end of 2023. All retained EU law, except a
limited number of laws to be specifically saved, would have been automatically repealed. Instead, under the Act as passed, around 600 pieces of specific EU
law are envisaged to be repealed at the end of the year. Any laws not listed in the revocation schedule will be automatically retained. The Act also abolished
the supremacy of EU law and renamed ‘retained EU law’ so that it will be known as ‘assimilated law’. It allows and encourages the courts to depart more often
from the previous case law of the Court of Justice of the European Union.

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Mini lecture 2

04:55

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3.5 European Convention on Human Rights

3.5.1 Human rights before the 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 in 1215. The Magna Carta set out many rights that might now be referred to as ‘human rights’ or fundamental principles of good government. For
example, it established principles of due process and equality before the law, and contained provisions forbidding bribery and official misconduct.

The approach to human rights in English law has traditionally been one of negative rather than positive protection. This is what is referred to as the ‘negative
theory of rights’, which says that citizens can do whatever they wish unless it is specifically prohibited by non-retrospective laws which are clear and
accessible to the governed. The common law also constrained the power of government, ensuring that it acted according to law and not in excess of its
powers.

An example of protection of human rights prior to the ECHR or the HRA 1998 is the case of R v Lord Chancellor ex p Witham [1998] QB 575. In this case the
Lord Chancellor had significantly increased the fees that litigants were required to pay in order to issue proceedings in the civil courts to have a dispute
decided by a judge. Previously, there had been an exemption for people on low incomes to ensure that all people would be able to have access to the courts.
The new rules issued by the Lord Chancellor removed this exemption for people suffering financial hardship and, on an action for judicial review brought by
Mr Witham, the High Court granted a declaration that the Lord Chancellor had exceeded his statutory powers, because the effect of the increase would be to
exclude many people from access to the courts. In his decision Laws J said that the right of access to the courts is a ‘constitutional right’ that cannot be
displaced except by Parliament:

It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen’s right of
access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole
argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to
justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.

Despite the provisions of Magna Carta and other rights protected under English common law, since the passing of the Human Rights Act 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. For this
reason we will deal with the ECHR in some detail here and, throughout this module. we will refer to the influence of human rights legislation on the
institutions and processes of the English legal system, as well as on some areas of substantive law.

3.5.2 Human rights under the ECHR

The European Convention on Human Rights (ECHR) 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.

It is important to be very clear that the Council of Europe and the ECHR are completely separate from the European Union. The Convention is not a piece of
EU law. The UK will continue to be bound by the ECHR even after it leaves the EU.

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The UK was one of the first signatories to the Convention, which, as noted above, entered into force in 1953. 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 the Convention make up the Council of Europe.

The ECHR was a reaction to 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.

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.

The European Court of Human Rights

The European Convention on Human Rights 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. The Court was set up in 1959. You may often see references to ‘Strasbourg’ as
shorthand for the European Court of Human Rights.

This Court should not be confused with the Court of Justice of the European Union (CJEU) in Luxembourg, which is responsible for ensuring that EU law is
interpreted and applied in the same way in every EU country, as well as ensuring that countries and EU institutions abide by EU law.

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. 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. Some of the most important rights and freedoms protected under the ECHR are:

right to life (Article 2)

prohibition of torture (Article 3)
prohibition of slavery and forced labour (Article 4)
right to liberty and security (Article 5)
right to a fair trial (Article 6)
no punishment without law (Article 7)
right to respect for family and private life (Article 8)
freedom of thought, conscience and religion (Article 9)
freedom of expression (Article 10)
freedom of assembly and association (Article 11)
prohibition of discrimination (Article 14)
right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)
right to free elections (Article 3 of Protocol 1).

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’. 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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Margin of appreciation
Some of the difficulties in ensuring compliance with the ECHR by the 47 member states of the Council of Europe are the diverse cultural and legal traditions
of the various states. To accommodate this, the European Court of Human Rights (ECtHR) has developed the doctrine of a ‘margin of appreciation’ when
considering whether a member state has breached the Convention. It means that a member state is permitted a degree of discretion, subject to the
supervision of the European Court of Human Rights, when it takes legislative, administrative or judicial action in the area of a Convention right.

The doctrine allows the Court to take into account the fact that the Convention will be interpreted differently in different member states, given their
divergent legal and cultural traditions. The margin of appreciation gives the ECtHR the necessary flexibility to balance the sovereignty of member states with
their obligations under the Convention. In some circumstances – for example, national emergency or security issues – member states may be permitted a
‘wide’ margin of appreciation by the ECtHR. In other cases, for example in relation to discrimination, the Court will permit only the narrowest margin of
appreciation.

A case dealing with the margin of appreciation and one that received much publicity is Lautsi v Italy (Application no. 30814/06), heard by the Grand Chamber
of the ECtHR in 2011. The applicant, an Italian citizen of Finnish origin, brought a complaint against Italy on behalf of her two children. She alleged that the
display of the crucifix in classrooms of public schools interfered with her children’s freedom of belief as well as their right to education and teaching
consistent with her philosophical convictions under Article 9, protection of freedom of religion and belief. The ECtHR ruled that the presence of crucifixes in
Italian public schools does not infringe states’ obligations in relation to Article 9. Highlighting the importance of the margin of appreciation principles, the
Court confirmed that religious matters fall within the sovereignty of member states in order to respect the culture and traditions of each particular country.

Proportionality
Closely linked to the concept of the margin of appreciation is the principle of ‘proportionality’. This concept is the means by which state interference with
human rights is to be judged. Although it is accepted that sometimes the state may need to restrict or interfere with a fundamental human right or freedom,
the principle of proportionality requires that such interference should be necessary and that it goes no further than what is essential to achieve the objective.
Thus, any measure by a public authority that affects a basic human right must be: appropriate in order to achieve the intended objective; necessary in the
sense that there is no less severe means of achieving the objective; and reasonable in the circumstances. In his Hamlyn Lectures in 2013, Lord Justice Laws
referred to the principle of proportionality as one of ‘minimal interference’. He said:

…every intrusion by the State upon the freedom of the individual stands in need of justification. Accordingly, any interference which is greater
than required for the State’s proper purpose cannot be justified. This is at the core of proportionality; it articulates the discipline which
proportionality imposes on decision makers.

(See Lecture III: The Common Law and Europe, Courts and Tribunals Judiciary )

In the case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, Lord Clyde articulated the criteria that
courts should adopt to decide whether legislative interference with some fundamental right is arbitrary or excessive. The court should ask itself whether:

1. the legislative objective is sufficiently important to justify limiting a fundamental right

2. the measures designed to meet the legislative objective are rationally connected to it; and
3. the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

Operation of the Human Rights Act 1998

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Until the Human Rights Act 1998 came into force on 2 October 2000, UK citizens could not enforce their rights under the Convention in the UK. It was
necessary to first go through all domestic appeals and then to apply to the European Court of Human Rights in Strasbourg, France. The Human Rights Act
made the Convention rights part of English law in several ways.

It did this in a way that gave the Convention rights a central place in the law, while aiming to preserve the constitutional principle of parliamentary
sovereignty as much as possible. In contrast to many other systems of human rights protection around the world (for example, in Canada in relation to the
Canadian Charter of Rights and Freedoms 1982), the Human Rights Act does not enable judges to declare legislation invalid if it is not compatible with
Convention rights.

This works through the interplay between sections 3 and 4 of the Act. Section 3 protects human rights by requiring the courts to interpret statutes as far as
possible so that they are compliant with the Convention rights. But if this is not possible and legislation is not compatible with Convention rights, the senior
courts, instead of having a power to ‘strike down’ legislation, can issue a ‘declaration of incompatibility’. It is only the Supreme Court, the Court of Appeal and
the High Court that have the power to make the declaration. The declaration of incompatibility does not require the government to change the law to make it
compatible with human rights, but does allow it to do so under an expedited procedure set out in section 10 of the Act. The Human Rights Act therefore
draws a careful balance between the protection of human rights and the principle of parliamentary sovereignty. Sections 3 and 4 of the Human Rights Act
1998 are discussed further in Topic 8.

The Human Rights Act contains a number of different measures to strengthen the protection of human rights. Many of these are discussed later in the
module. In brief, the structure of the Act is:

Section 2: requires the English courts to take into account previous decisions of the European Court of Human Rights. This relates to how the English
courts interpret the Convention itself (see Topic 6).
Section 3: requires all legislation to be read, so far as possible, to give effect to the Convention rights. This relates to how the courts should interpret
domestic legislation so as to make it compliant with the Convention (see Topic 8).
Section 4: gives the courts a new power to issue a ‘declaration of incompatibility’ where any primary legislation conflicts with the Convention rights (see
Topic 8).
Section 6: makes it unlawful for any public authority to act in a way that is incompatible with the ECHR.
Section 10: provides for a fast-track procedure for remedial legislation to be passed, if this is necessary because a declaration of incompatibility has
been issued (see Topic 8).
Section 19: requires the government minister responsible for a Bill in Parliament to make a written statement that the provisions of the Bill are
compatible with the Convention rights.

Changes to the Human Rights Act 1998?

In December 2020, the Conservative government established an Independent Review of the Human Rights Act. This Review was said to be focused on two
key themes:

the relationship between domestic courts and the European Court of Human Rights, and
the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

There was to be no review of the substantive rights mentioned in the Human Rights Act and it was stated that the government was ‘committed to remaining
a signatory to the European Convention on Human Rights’.

The consultation period ended in March 2021 and the report was presented to government in October 2021. As can be imagined, there were many
responses that were critical of the government’s plans to ‘update’ the Human Rights Act. The Joint Committee on Human Rights, for example, found that
there was no case for changing the Act, stating that:

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It has had a positive impact on the enforcement and accessibility of rights in the UK. Cases are now heard by UK judges in UK courts rather
than applicants having to take cases to Strasbourg. This means that cases are heard sooner, court action is less prohibitively expensive, and
UK judges are able to take better account of our national context when reaching decisions than judges in Strasbourg. Whilst courts can find
legislation incompatible with our ECHR obligations, the courts cannot overturn primary legislation, keeping parliamentary sovereignty intact.
The requirement for public authorities to act compatibly with ECHR rights has embedded human rights in the delivery of public services. The
Act is a central part of the devolution settlement in the UK. To amend the Human Rights Act would be a huge risk, to our constitutional
settlement and to the enforcement of our rights.

The Independent Review made some relatively minor recommendations about changes to the Act. These included a recommendation that there be better
education about the constitution and human rights. Section 2 should be amended to give statutory recognition to case law, which requires UK case law and
statutes to be applied first when interpreting Convention rights. No change was recommended to the principle of the margin of appreciation (see above). The
government response was to publish its own consultation, which proposed much more wide-ranging reforms and the intended replacement of the Human
Rights Act with a 'modern Bill of Rights'. The resulting Bill of Rights Bill started the parliamentary process but was withdrawn in June 2023 amidst controversy
and widespread opposition. Among the measures proposed in the Bill were removing the duty on the courts to interpret legislation compatibly with
Convention rights, removing the duty on courts to consider how the European Court on Human Rights has interpreted a right and requiring the courts to
give more weight to the views of parliament when balancing rights issues.

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Mini lecture 3

10:16

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3.6 Sources of law: the comparative context

The traditional sources of English law are therefore statutes and the common law, with the more recent addition of the ECHR. We can think critically about
this. Is it necessary that these should be the sources of law? What are the sources of law in other jurisdictions?

The sources of law in the English legal system can be compared with those in civil law systems. Whereas common law legal systems are characterised by the
importance of case law and the decisions of judges in the courts, the principal sources of law in civil law systems are legal codes and legislation. Courts in civil
law systems will often refer to decisions in previous cases for the purposes of consistency, but they do not rely on the doctrine of binding precedent and so
case law is not a formal source of law (see further Topic 5 on precedent).

Let us take the example of France, which has a civil law legal system. The main source of law in France is legislation, comprising the constitution, treaties,
statutes (lois) and government regulations (reglèments). There is a hierarchical relationship between these different types of legislation, with the constitution
at the top of the hierarchy, and government regulations at the bottom. So, for example, the French parliament can only enact laws which are in accordance
with the constitution, and there is a court (the Conseil Constitutionnel) which ensures that statutes are not contrary to the constitution. In the English legal
system, there is no such formal hierarchy of laws. Because of the principle of parliamentary sovereignty (discussed in Topic 4), in the English legal system,
statutes are the highest form of law. This used to be subject to EU law, but this is no longer the case since the UK left the European Union. Statutes must also
be interpreted so far as possible in accordance with the European Convention on Human Rights, although they cannot be invalidated even if they are not
consistent with the Convention rights. As we will see in Topic 4, there is no unified, written constitution at the apex of English law.

Parliamentary statutes in France generally have to go through a legislative process which is in some ways similar to how statutes are passed in the UK
parliament. A government bill (projet de loi) must be approved by both houses of the French parliament (the Assemblée Nationale and the Sénat). The
President of the Republic must then promulgate the bill, and it must be published in the Official Journal. Legislation in the form of government regulations is
the equivalent of secondary legislation in the English common law system.

One way in which French law differs is in the fact that it is codified. The idea behind codification in civil law systems is that the whole of the law should be
accessible within a single document, rather than piecemeal in different statutes or case law. There are a number of different codes in the French legal
system, each dealing with different aspects of law, such as the Civil Code, the Civil Procedure Code and the Commercial Code. But not everything is contained
in these codes; there are also other separate pieces of legislation, which either amend the codes or which are independent of them. Codification is not a
feature of common law systems in the same way; there is no one civil code in English law setting out the law of contract, for example. There are statutes that
consolidate certain areas of law, but these do not attempt to be comprehensive in the same way as in a civil law system.

Codification brings with it certain advantages and disadvantages:

codified laws are arguably easier to access and to understand; this makes it easier for ordinary citizens to know what the law is
codification of laws enhances certainty and consistency, as the process of drafting a code involves thinking about laws in a logical and systematic way
even in civil law legal systems, codes may not give a complete picture of the law; in modern times there is a multiplicity of sources of law
codification arguably leads to law not being sufficiently amended and updated.

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Case law is not a formal source of law in France and, in contrast to England, there is no system of binding precedent. The role of judges in France is to
interpret and apply the law, not to create it. In practice, however, French judges do make legal rules and may follow previous precedents if they choose to do
so, and this adds to legal certainty. In fact, even though case law is not a formal source of law in France, some areas of law are based on decisions of the
judges in courts, for example, administrative law.

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3.7 The impact of further international law

By international law, we are talking here about what is termed ‘public international law’, the law that governs the relationship between different states
(countries). There is also a different branch of international law called ‘private international law’, which is the law that regulates private relationships across
international borders: for example, when a company in one country wants to sell a product in a different country. That type of law is not included in our
discussion. Nor does this section include the European Convention on Human Rights, which have a particular impact on English law, which has already been
discussed above.

Much of public international law is related to the work of the United Nations or one of its specialised agencies. The United Nations (UN) is an international
body, formed in 1945, and currently made up of 193 member states. It works on issues that affect the world community, such as peace and security, climate
change, sustainable development and human rights. The UN makes laws in the form of treaties, which are agreements made in writing between states: for
example, the Convention on the Rights of the Child, the United Nations Framework Convention on Climate Change and the Charter of the United Nations
itself. There are additional sources of international law, such as customary law and general principles of law.

International law is not directly a source of English law. England has what is called a ‘dualist’ system, which means that international treaties must be
expressly incorporated into the UK’s legal system by legislation in order for them to be given legal effect. Ratification (a formal agreement to be bound) of a
treaty by the UK at the international level is not sufficient for the treaty to be of legal effect in English courts; it must also be incorporated. This is how the
European Convention on Human Rights has come to be part of English law – it has been incorporated by the Human Rights Act 1998 (as already discussed).
There are many international treaties that the UK has ratified but which it has not incorporated into English law, and so these treaties do not have any direct
effect as a source of law. Nonetheless, the English courts may still consider treaties that have not been incorporated as an aid to assist with issues that are
before them, for example, the interpretation of a statute. So international treaties can indirectly have an influence on domestic law.

This is in contrast to the French legal system, in which international treaties are a source of law. Treaties that have been ratified by the French state have
precedence over domestic statutes (under Article 55 of the French constitution). The courts have the power to declare that statutes are inconsistent with a
treaty, and to apply the treaty rather than the statute to the case before the court.

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3.8 Law reform

You now understand the different ways in which the law is made. But how is the law reformed, and why is it necessary to reform the law? Understanding law
reform facilitates an understanding of how existing law is changed.

Judges in the courts change legal rules and principles incrementally through the common law, but cannot constitutionally undertake wholesale reform of the
law. Parliament can reform the law but this is often in a somewhat ad hoc manner, in response to political or media pressure. Occasionally, ad hoc
committees are set up to review certain aspects of the law, such as the Woolf review of the civil justice system in 1996 (discussed in Topic 15) or the Leggatt
review of tribunals in 2001. In addition, the Civil Justice Council has responsibility for advising the Lord Chancellor and the judiciary on the development of
the civil justice system; it was established under the Civil Procedure Act 1997.

The main responsibility for advising on law reform lies, however, with the Law Commission of England and Wales. The Law Commission was established by
statute, the Law Commissions Act 1965 (along with the Scottish Law Commission). Its statutory function is set out in s.3(1):

It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a
view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of
obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and
modernisation of the law…

The Commission’s overall function is therefore to keep the law as a whole under review and to make recommendations for its reform to ensure it is as fair,
modern, simple and cost-effective as possible. A key aspect of the Commission is that it is independent of government. It operates by drawing up
programmes of law reform every three to four years (under section 3 of the Law Commissions Act 1965) and sometimes law reform projects are also
referred directly by government departments. The Thirteenth Programme of Law Reform was published on 14 December 2017 and includes projects on a
diverse range of legal topics:

a modern framework for disposing of the dead

administrative review
automated vehicles
electronic signatures
employment law hearing structures
modernising trust law for a global Britain
registered land and chancel repair liability
residential leasehold
simplifying the immigration rules
smart contracts
surrogacy.

The Commission has recently published a consultation on its next Programme of Law Reform and, if you are interested, you can have a look at some of its
ideas for law reform.

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The Commission researches the current law and its perceived defects and carries out research into the law in other jurisdictions. A consultation paper with
suggested solutions is issued for consultation among interested bodies. At the end of a law reform project, a report with final recommendations for law
reform is submitted to the Lord Chancellor.

The Commission is only an advisory body; it cannot make the law, and the government does not have to implement the Commission’s recommendations for
law reform. However, following a Protocol agreed between the Law Commission and the government in 2010, once the Commission has published a final
report, the government must then provide a response within a year. And under the Law Commission Act 2009, the Lord Chancellor must report to
Parliament annually on the government’s progress on the implementation of reports. These measures were a response to the government’s non-
implementation, or delay in implementation, of many Law Commission reports.

Legislation following from Law Commission reports includes the Contracts (Rights of Third Parties) Act 1999, the Land Registration Act 2002 and parts of the
Criminal Justice and Courts Act 2015. Many of the Commission’s reports are not implemented, however, and do not become law (a table of implementation
information can be seen on the Law Commission’s website). This remains a criticism of the role of the Law Commission: that its recommendations are
reliant on implementation by Parliament and so many may never become law. Even where proposals are enacted as law, this often takes a long time, by
which time society and the law may have moved on.

In a lecture in 2017, the then Lord Chief Justice, Lord Thomas, noted two issues of importance for the Law Commission in the future:

amendments to the law as a result of Brexit, which will require law reform on a considerable scale given the close integration of EU law into domestic
law
changes to modern society resulting from digitisation, including social media and the internet, as well as concepts of ownership, of contract, of
employment status and rights, of intellectual property rights, and consumer rights.

The Law Commission model has been replicated in countries around the world – for example, New Zealand, Australia, India and Hong Kong, all of which have
similar law reform bodies.

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Learning activity 1

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Check your understanding on the sources of law by choosing the correct explanation for each
source of law.

Source of law Definition

Statute law / Acts of
Parliament/ Primary
legislation

Secondary legislation

Common law/ case law

European Convention on
Human Rights

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Learning activity 2

Drag the stages of the process of making statutes to arrange them in the correct sequence. This activity assumes
the Bill starts its legislative process in the House of Commons and then proceeds to the House of Lords.

House of Lords legisl… Third Reading (Hous… First Reading (House… Report Stage (House…

Royal Assent Green Paper Committee Stage (Ho… White Paper

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Quick quiz 1

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Am I ready to move on?

You are ready to move on to the next topic if, without referring to the module guide or textbook, you can answer the following questions:

1. Explain how Acts of Parliament are made.

2. What is the difference between primary and secondary legislation?
3. What does it mean to say that England and Wales is a common law system?
4. Explain the principle of ‘margin of appreciation’ in the interpretation of ECHR rights.
5. Name three ways in which the Human Rights Act 1998 protects human rights.
6. Explain the advantages and disadvantages of replacing the Human Rights Act 1998 with a British Bill of Rights.
7. What are some of the advantages and disadvantages of codification?
8. What is the function of the Law Commission?

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Further reading

Partington, Chapter 3 'Sources of law: authority and process'.

Greer, S. ‘The interpretation of the European Convention on Human Rights: universal principle or margin of appreciation?’ (2010) 3 UCL Human Rights
Review 1–14 (available in HeinOnline via the Online Library ).
Steiner, Chapter 1 ‘Legislation and the constitutional framework’, pp.4–14; Chapter 2 ‘Codification’, pp.37–48; and ‘Chapter 4 ‘Case law’, pp.85–92.
Bell, J. 'English law and French law: not so different' (1995) 48(2) Current Legal Problems 63, 83–86 'Legal sources'.
‘How are laws made?’
University of London Undergraduate Laws Blog ‘The Law Commission: reforming the law’, 29 November 2018 .
Lord Thomas ‘“Law reform now” in 21st century Britain: Brexit and beyond’, Sixth Scarman Lecture, 26 June 2017 .
House of Commons Library 'Reform of the Human Rights Act', 21 December 2021 .

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