Essay on Sources of Law in England and Wales

English law has a deep history, which dates back from the customs of Anglo-Saxons that existed until 1925. Immediately after the Norman invasion, English law had progress with Saxon shire courts, ecclesiastical courts, the barons and the feudal courts. The kings council evolved to be the royal courts which were under the professional judges (Beatson, 2006). The royal courts later absorbed the rule of ecclesiastical and baronial courts .In the mid 13th century, the royal courts has assimilated various customs to a system of common law in Britain. The common law was law common to the entire country.

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Case or common law became the basis of English law and its commencement is traced back in 1066 in the period when William the Conqueror was ruling Britain. Before Williams reign, laws were different from one region to the other. During the time of Henry II, judges who travelled on circuits generated a unified and common court system. This was a significant step towards the evolution of the current legal system as judges moved to legal system based on the national level from the localized judicial system. The objective of the judges was to generate a common system of law in the entire English land, hence the evolution of the common law.

Common law is the basis of judicial precedent under which the courts are required to be organized in regards to the hierarchy. In addition, there is accurate reporting of law under which the principle of law established forms the basis of future cases (Beatson, 2006). In Wales and England, independent body of the parliament consisting of the Queen, who has formal roles, the House of Commons, and the House of Lords, which acts as the Supreme Court, establishes legislation (Beatson, 2006). A statute is the act of parliament that is legally binding and no English court can challenge it. The parliament is the only institution forming the primary legislation and therefore, it is not possible for any UK court to challenge the legislation (Beatson, 2006).

The judiciary depends on the power of the Parliament to establish statutes as well as make decisions in reference to the existing laws. However, the English legal system only allows significant level of discretion in the process of making important decisions (Setter, 2015). Under the statute law, the White and Green outlines the various proposals for the law to be changed and therefore open to public opinions. The green papers have alternative policy options in order to invite the public comment on the proposals while White papers have more details in regards to the change of law.

The United Kingdom is a region, which consists of four countries, which are England, Wales, Scotland and Ireland. The United Kingdom was formed in 1801 after the union of Ireland and Great Britain, but attained its status in 1922 after partition of Ireland and the formation of Irish Free State. The four countries making up the United Kingdom forms three different jurisdictions where each country has its own legal professions and court system. In England and Wales, all the process of establishing the statute bills have to be completed after which they receive Royal Assent to become law. The Royal Assent becomes in effect once the monarch signs the bills (Jones, 2005). In the past, the monarch had an active responsibility of passing the statutory laws; however, currently getting the Royal Assent is a mere constitutional formality. Even if the statute laws follow specific rules, there is continuous development as well as fluidity of the case law that makes it possible for the judges to interpret the law (Setter, 2015). However, the judges do not depend on the judgments made by their predecessors that are the reason why case laws under the statute law in England and Wales is vulnerable to changes (Loc.gov, 2016). Under the Statutory instruments, Acts of the Parliament offer the ministers in England and Wales to make more rules, orders and regulations, which are secondary to the main Act of Parliament.

The United Kingdom joined the European Union, formerly the European Economic Community in 1973. After joining the EU it was required to incorporate the EU legislation into the UK law. In addition, England and Wales were required to recognize all the matters under the jurisdiction of European Courts in reference to the matters of EU law. The European law functions along with the statute and common laws within all the members. The United Kingdom signed to European Communities Act of 1972 (Hartley, 2005). Section 2 subsection 1 of the 1972 Act relinquished proportion of powers as sovereignty by making an agreement to accept the EU laws as supreme and delegate some of the roles in regards to decision making to the European Union. If there is a conflict between the statute and common laws with the EU laws, the EU laws take precedence (Hartley, 2005). The Treaty on functioning of European Union (TFEU), formerly European Community Treaty and the Treaty on European Union (TEU) forms the basis of incorporating the statute laws and the common laws in England and Wales to the European Union Laws.

After the World War II, the traumas of the war forced the United Nations to establish the Universal Declaration of Human Rights in 1948 (Gani, 2014). This was the first expression of human rights under which all people are entitled. In addition, it was a significant step to promote peace as well as diplomacy in the world. Under the article 2 of the UNs universal declaration of human rights, Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. (Gani, 2014)

The UNs declaration formed the basis of establishing the European convention on human rights drafted by the Council of Europe in 1950 in Rome. The aim of the convention was to protect fundamental freedoms and human rights in order to achieve international unity by recognizing equality of women and men in all spheres of life as well as incorporating the civil liberty traditions. It was implemented in September 1953 and its adoption was a step in implementing the UNs Declaration on human rights through writing. In regards to the freedoms and rights in the European convention on human rights, 17 articles focusing on freedoms and rights are outlined. These rights include prohibition of forced labour, slavery, and torture; right to life, security, fair trial and respect for family and personal life. In addition, the people living within the boundaries of the European Union are prohibited from punishment in the absence of law. Moreover, the freedoms of religion, thought, conscience and expression are protected under the European convention on human rights (Bates, 2010). The International Court in Strasbourg established in 1959 has the role of implementing all the laws under the European convention on human rights. It is the place where the state and individual applications, violation of political and civil rights are made. In addition, the court makes rulings regarding the violation of human rights as set by the convention (Bates, 2010). Currently, there are 47 judges elected on non-renewable term of nine years by the Council of Europe parliamentary assembly. These judges are independent and therefore they cannot be involved in activities, which can affect their impartiality. Statistically, out of 797 judgments, there has been one violation of European convention on human rights inclusive of 118 cases in Turkey, 119 in Russia, 5o in Hungary and 65 in Ukraine (Gani, 2014).

The Human Rights Act of 1998 incorporated the European convention on human rights (ECHR) to the domestic laws in UK specifically in England and Wales in 2000. According to the Act of Parliament , there is provision of remedies under the domestic laws in UK for violation of the convention without necessarily referring the cases to ECHR court.

All the courts in England and Wales have to take the consideration of existence of decisions by the European convention on human rights and European Court of justice . Before the incorporation of legal obligations under these laws, the House of Lords were using specific techniques from various jurisdictions. Their judgments were based on jurisdictions from other countries such as the United States, Australia and New Zealand (Gani, 2014). However, Lord Goff expressed issues in regards to the application of comparative approach between the Englands traditions on common law and the civil systems in other countries by stating that: We can, I believe, see this most clearly if we compare the English and German reactions . Strongly though I support the study of comparative law, I hesitate to embark in an opinion such as this upon a comparison, however brief, with a civil law system; because experience has taught me how very difficult, and indeed potentially misleading, such an exercise can be (Loc.gov, 2016). With the incorporation of EU laws and ECHR laws in England and Wales, most of the cases in these countries have been refer to the ECHR and EU laws but with preference to the common laws if there is no conflict of resolution.

Bibliography

Bates, E. (2010). The evolution of the European Convention on Human Rights. Oxford: Oxford University Press.

Beatson, J. (2006). Common Law, Statute Law, and Constitutional Law. Statute Law Review, 27(1), pp.1-14.

Fasterling, B. (2005). Best practices and better laws: Corporate governance codes in the member states of the European Union. ERA Forum, 6(3), pp.328-351.

Gani, A. (2014). What is the European convention on human rights?. [online] the Guardian. Available at: https://www.theguardian.com/law/2014/oct/03/what-is-european-convention-on-human-rights-echr [Accessed 3 Nov. 2016].

Hartley, T. (2005). The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws. International and Comparative Law Quarterly, 54(04), pp.813-828.

Jones, T. (2005). The Law of Wales or The Law of England and Wales?. Statute Law Review, 26(3), pp.135-145.

Loc.gov. (2016). Introduction to the UK legal System. [online] Available at: https://www.loc.gov/law/help/legal-research-guide/uk.php [Accessed 3 Nov. 2016].

Loc.gov. (2016). The Impact of Foreign Law on Domestic Judgments: England and Wales. [online] Available at: https://www.loc.gov/law/help/domestic-judgment/englandandwales.php [Accessed 3 Nov. 2016].

Setter, D. (2015). Sources of Law in England and Wales: An Introduction. [online] Lawscapeuk.blogspot.co.ke. Available at: http://lawscapeuk.blogspot.co.ke/2013/09/the-law-in-england-and-wales.html [Accessed 3 Nov. 2016].