Is Legislation the Most Important Source of Law?

Assess the contention that legislation is the most important source of law in England and Wales.

This essay will explore how legislation is the most important source of Law in England and Wales and what each source of law consists of.  In England and Wales there are many sources of law in England and Wales, this essay will focus on statue law, the passing of a bill and the making of an act, statutory interpretation, the interpretation of legislation by a judge and judicial precedent, which is the process of a judges following previously decided cases.

Legislation sets out the proposals for new laws, and plans to change existing laws, that are presented for debate before Parliament.[1] Statues are made by parliament, which consists of the House of Commons, the House of Lords and the Monarchy. The House of Commons is the democratically elected chamber of parliament and every four to five years members of parliament are elected in a general election by the public. The MPs then discuss day to day issues and proposals for new laws.[2]  The UK parliament is where a bill is created and becomes an act if it is agreed upon by the House of Lords and the House of Commons and is then turned into an act once given the royal assent by the Monarchy. An Act of Parliament creates a new law or changes an existing law. Taken together, Acts of Parliament make up what is known as Statute Law in the UK. [3]There are three types of bills in the UK. Public bills which a government promoted, Private member bills which are promoted by chosen MPs and then Private bills which are promoted by private companies.

There is a process in which the bill has to follow in order to become an act of parliament. In the first reading the title of the bill is read out to the House of Commons. Next there is a second reading which is the first opportunity for MPs to debate the main principles of the bill and amended the bill in any way appropriate.[4] After this reading the bill goes to the committee stage, this is where the bill is referred to the House of Commons for a detailed explanation; this is also where more amendments may occur. After the bill has been through the committee stage it is then taken to the report stage whereby the committee report back to the house, and any proposed amendments are debated again by the MPs and the amendments are then voted upon. Next the bill will go to the third reading and will be re-presented to the house. This is where a short debate may take place giving an opportunity for final comments on the bill. Normally only those MPs who have been active in previous stages will speak and a vote will happen on whether to accept or reject the legislation as it stands. [5]The bill then goes to the House of Lords where there is another similar process with another three readings. If the House of Lords alter anything, the bill will then return back to the House of Commons for further consideration, the commons will then respond with either an agreement, reasons for a disagreement or proposals for alternative changes. This shows why this is an important source as lords as it is discussed and altered many times before becoming a law, preventing the bill being misunderstood. Legislation can never be passed without the agreement from both of the houses. [6] In most cases an agreement is reached between the House of Lords and the House of Commons and the bill is presented for royal assent, where the Queen gives her consent for the legislation to become law. After this process the bill will become an act of parliament and will take effect on a specified date in the future. This is an important source of law in England and Wales as this process of a bill becoming an act of parliament is very precise, even if it is time consuming. This source of law is important as it makes sure that the bill presented to the houses isn’t useless and that it won’t have a negative impact on England and Wales. Both houses of parliament must agree on the bill presented to them, which gives an opportunity for MPs to debate and amend the bill till is it appropriate and of a high standard with a positive impact. Due to the fact that an agreement needs to have taken place, the House of Lords could block legislation put forwards by the House of Commons. This shows that any bill passed by the Queen is correctly justified, showing that this source of law is important in England and Wales.

Another source of law in England and Wales is Statutory Interpretation. When Parliament has passed an act, the courts then have to apply the statute in a particular case. Once the courts have interpreted a statute, the interpretation becomes a part of case law, just like any other judicial decision, the courts need to follow the rules of precedent. This is where a higher court, such as a crown court may decide that the interpretation was wrong and reverses the decision if it is appealed, or overrules it in a later case. However until this happens, lower courts, must interpret the statue in the same way. Statutory Interpretation if followed by four rules that the courts follow when interpreting legislation, the literal rule, the golden rule, the mischief rule and purposive approach.

The literal rule gives all the words in the statute their original and natural meaning, on the principle that under the literal rule, the literal meaning must be followed. The court system cannot create laws so the rules are their way of bending the law to fit a particular case. The literal rule appears in Whitely V chappel whereby a statute preventing electoral malpractice made it an offence to impersonate someone who was entitled to vote at an election. The accused was acquitted as he impersonated a dead person and following the literal rule a dead person isn’t entitled to vote. [7]This is an example where the courts have followed the literal meaning of the word, even though the result of this was manifest absurdity. However the golden rule can be used when the literal rule gives an absurd result that parliament could not have intended. The golden rule is followed to avoid unreasonable consequence; this is the courts way of bending the law. This rule appears in Alder V George It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld and therefore the judge changed the language of the legislation to for the case.[8] Another rule the courts may choose to follow is the mischief rule, this rule is used by the courts to look at the weaknesses is in existing laws. This allows the courts to use a broad meaning to the legislation. This occurs in Smith v Hughes & others,[9] this is because it was in the legislation that soliciting in the street is illegal however due to the defendant solicitation on a balcony the judge used the mischief rule to interpret this legislation so that it was illegal to be soliciting on the street, or a balcony, or in a door way or through a window. This shows that statutory interpretation is an important source of law as judges aren’t allowed to create new laws, so these rules allow judges to interpret the law in particular cases when the legislation is ambiguous. Finally the last rule the courts can chose to follow is the purposive approach. This allows the courts to go further than the mischief rule and consider the underlying legislative purpose behind the act; this then also provides the courts with a more flexible method of interpretation. However following this rule runs the risk of the courts acting beyond their constitutional role. Statutory Interpretation is an important source of law in England and Wales as it sets out a consistency within the court system, this is because, when following any given rule a particular interpretation of a statute from a judge would become legally binding for the lower courts to follow. Statutory interpretation also allows the judges to interpret the language in the legislation and choose the most absurd words to change for a better verdict. 

There is a hierarchy of courts in the English and Welsh legal system whereby the judges must follow the decisions made by courts higher than them, this is the rules of judicial precedence which is another source of Law in England and Wales. The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.[10] Once a decision has been made on the facts of a case judges need to apply the same law if the facts are similar in other previous cases. This is a way of making the law consistent in England and Wales, showing that judicial precedence is an important source of law. Another principle followed by the judges is ratio decidendi, which is Latin for reason for deciding, this part of the judgement is legally binding which forms the case law. For the facts in the case that do not form the ratio decidendi are called obiter dicta, which is Latin for things said by the way,[11] these facts are not used in the judgement by the judges but may be used as an influence by other judges in similar cases. When a case is put in front of a judge that is similar to another previous case, the judge can either follow the previous precedence that has been set or they can chose to distinguish the precedence, this is where the judge distinguishes the facts in two similar cases to set an original precedence. The judge can also overrule, this would happen is the judge doesn’t agree with the lower courts statement of law. Also the judge can reverse a previous precedence if a decision is appealed to a higher court; this is whereby a judge would change the judgement if the judge feels the lower courts interpreted the law wrongly. [12]However all facts in the judgment are binding and judges are bound by the decisions made in previous cases. Judicial precedence is an important source of law is that it provides certainty in the law. As cases with sufficiently similar material facts are bound by past decisions, it provides an idea of how the case will be decided. It is also an important source of law as it provides consistency throughout the English and Welsh legal system as lower courts are bound by the decisions made by the higher courts.  

To conclude, this essay has explored the sources of law in England and Wales and how they are important in the English and Welsh legal system. This essay has shown the different between each source of law while still explaining the importance they have in keeping the law consistent and justified.

Bibliography

• Allbon ES Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018)
• Adler v George [1964] 2 QB 7
• Bills & Legislation’ (UK Parliament, 2018) <https://www.parliament.uk/business/bills-and-legislation/> accessed 17 November 2018
• Judicial Precedent’ (E-lawresources.co.uk, 2018) <http://e-lawresources.co.uk/Judicial-precedent.php> accessed 19 November 2018
• Second Reading (Commons)’ (UK Parliament, 2017) <https://www.parliament.uk/about/how/laws/passage-bill/lords/lrds-commons-second-reading/> accessed 18 November 2018
• Smith v Hughes (1870) LR 6 QB 597
• Whitely v Chappel (1868) LR 4 QB 147

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[1] ‘Bills & Legislation’ (UK Parliament, 2018) <https://www.parliament.uk/business/bills-and-legislation/> accessed 17 November 2018.

[2] Emily Allbon and Sanmeet Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018).

[3]  ‘Bills & Legislation’ (UK Parliament, 2018) <https://www.parliament.uk/business/bills-and-legislation/> accessed 17 November 2018.

[4] ‘Second Reading (Commons)’ (UK Parliament, 2017) <https://www.parliament.uk/about/how/laws/passage-bill/lords/lrds-commons-second-reading/> accessed 18 November 2018

[5]  Emily Allbon and Sanmeet Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018).

[6] Emily Allbon and Sanmeet Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018).

[7] Whitely v Chappel (1868) LR 4 QB 147

[8] Adler v George [1964] 2 QB 7

[9]  Smith v Hughes (1870) LR 6 QB 597

[10]  Judicial Precedent’ (E-lawresources.co.uk, 2018) <http://e-lawresources.co.uk/Judicial-precedent.php> accessed 19 November 2018.

[11]  Emily Allbon and Sanmeet Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018).

[12] Emily Allbon and Sanmeet Kaur Dua, Elliot & Quinns English Legal System (19th edition, selected chapters complied by Dr Lorie Charleworth, LJMU 4101LawFL 2018).