10.10.2019
Sources of law are fundamental to what we do – all lawyers need to appreciate the intricacies of
what we do; statute v precedent.
Statute Law is often also referred to as legislation – and they are passed by Acts of
Parliament
The verb “to legislate” means to make law – but judges also made laws in their
interpretation of the common law
Government is usually the source of legislature – but sometimes private members bills
(written by individual MPs) are voted upon
There are also statutes delegating powers to government agencies to create secondary
legislation to the agencies areas of expertise
There are two types of Government consultation:
Green Paper (government consultation of people)
White Paper (government consultation of people for a bill which the Government has made
clear it wants)
Obiter dicta is where a judge will refer to law which is otherwise irrelevant when ruling on a legal
matter.
There is a procedural element to Parliamentary law-making – statute law is supreme over
the “law of the judges”
It is not within the remit of the Judges to say a law is not “constitutional”
Courts, can however, engage in judicial review in determining whether or not public officials
got the law “right”
The Human Rights Act of 1998 obliges judges so far as it is possible. It domesticates human rights
rules from Europe.
The Act (s4) confers on the higher courts the power to declare particular statutes
incompatible with the UK Convention obligations (s4) – meaning if a statute conflicts with
the HRA, it is highlighted.
But if there is an incompatibility – the prior statute that conflicts is upheld; and thus it
provides the right but no remedy for the issue.
It remains in Parliament’s remit to resolve this dilemma.
Judges will always attempt to prove that the European Convention is not in conflict with the
domestic statute – this means it can be used without Parliamentary changes.
Why no written constitution?
Parliamentary supremacy is understood in the UK as a distinctive type of commitment to
democracy.
A court is a small, homogenous and democractically-insulated group of people.
Large, diverse groups make better decisions on average.
How do courts interpret Parliamentary law?
In the 14th Century, there was no real distinction between Parliament and the Judges –
Parliament was a court of sorts – judges were in Parliament.
Sources of law are fundamental to what we do – all lawyers need to appreciate the intricacies of
what we do; statute v precedent.
Statute Law is often also referred to as legislation – and they are passed by Acts of
Parliament
The verb “to legislate” means to make law – but judges also made laws in their
interpretation of the common law
Government is usually the source of legislature – but sometimes private members bills
(written by individual MPs) are voted upon
There are also statutes delegating powers to government agencies to create secondary
legislation to the agencies areas of expertise
There are two types of Government consultation:
Green Paper (government consultation of people)
White Paper (government consultation of people for a bill which the Government has made
clear it wants)
Obiter dicta is where a judge will refer to law which is otherwise irrelevant when ruling on a legal
matter.
There is a procedural element to Parliamentary law-making – statute law is supreme over
the “law of the judges”
It is not within the remit of the Judges to say a law is not “constitutional”
Courts, can however, engage in judicial review in determining whether or not public officials
got the law “right”
The Human Rights Act of 1998 obliges judges so far as it is possible. It domesticates human rights
rules from Europe.
The Act (s4) confers on the higher courts the power to declare particular statutes
incompatible with the UK Convention obligations (s4) – meaning if a statute conflicts with
the HRA, it is highlighted.
But if there is an incompatibility – the prior statute that conflicts is upheld; and thus it
provides the right but no remedy for the issue.
It remains in Parliament’s remit to resolve this dilemma.
Judges will always attempt to prove that the European Convention is not in conflict with the
domestic statute – this means it can be used without Parliamentary changes.
Why no written constitution?
Parliamentary supremacy is understood in the UK as a distinctive type of commitment to
democracy.
A court is a small, homogenous and democractically-insulated group of people.
Large, diverse groups make better decisions on average.
How do courts interpret Parliamentary law?
In the 14th Century, there was no real distinction between Parliament and the Judges –
Parliament was a court of sorts – judges were in Parliament.
