The English legal system

The English legal system has existed for hundreds of years and it is made up of sources of law. The main sources of law include: Acts of Parliament/statue/legislation which is created by Parliament making Parliament the supreme law maker. The other main sources of law consist of: Delegated Legislation which is the Parliament Delegates, Common law and Case law which the courts apply, Equity which involves fairness rather than certainty, European Community Law and International Treaties.The International Treaties have been ratified by Parliament such as the European Convention on Human Rights has been implemented through the Human Rights Act 1998 consequently meaning the treaties have been put through domestic law.

The doctrine of Parliamentary Legislative Supremacy is a long-established concept with roots in constitutional law. The doctrine is the idea that Parliament, made up of the House of Commons and the House of Lords, is the sovereign power, supreme to all other bodies in its ability to legislate.The concept of the doctrine of legislative law making has been defined by the legal theory of Dicey as “Parliament has the right to make or unmake any law whatever” and that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” (Dicey 1959). Again, this shows that parliament is the supreme law maker.

Parliamentary Supremacy states that no body, including the courts of law, has the right to override or set aside an Act of Parliament.From this, it means that nobody can achieve the following: alter parliament’s power, devolve the power of parliament to other bodies, give effect to international treaties, and surrender or limit its own power. (Alison Cronin). Parliament has the power to enact and revoke any new laws on any subject matter and the courts are unable to question the legitimacy of the law. (Macintyre 2001) In addition, a Parliament cannot bind its successor meaning that Parliament cannot pass a law which is unable to be altered or inverted by a future Parliament.Lastly the doctrine means a valid Act of Parliament cannot be questioned by the court or any other bodies and that a court of law only has the power to apply an Act of Parliament because parliament is supreme.

http://www. parliament. uk/about/how/laws/sovereignty. cfm. This point was re-established in the case of Pickin v British Railways Board[1].

Mr Pickin had challenged a private act of 1836 on the basis that parliament had been misled by fraud. The House of Lords held that he was not entitled to examine proceedings in parliament to show that the Act had been passed due to fraud.Consequently the action failed and Lord Reid stated that “the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution. " Parliament is a legislative body with absolute sovereignty meaning that Parliament is supreme to all other government institutions. As a result of this, it is necessary to have knowledge of the workings of the legislative procedure through which law is made (Kelly and Holmes 2005). As well, it also implies that the legislative body may change or repeal any prior legislation.

Parliament decided to surrender its law making supremacy to gain more benefits, in order to join the common market. However, by doing this, it can be argued that Parliamentary Supremacy has been eroded due to the enactment with the European Communities Act 1972.This is because parliament has to accept and abide by the European Community laws. European Communities Law is supreme to UK legislation and UK law is subject to this.

This means that if there is conflict between European and National legislation, the European Communities Law will always remain superior. (Rush and Ottley 2006). For that reason, the European legislature is thought to be of a higher position than the British Parliament because UK law is subject to European law.Thus, the UK Parliament is able to make or create any law; however, the UK parliament has to ensure the law created does not go against the European legislation and is therefore compatible with the European Communities Law. The European Communities Act[2] has enabled the European Parliament to effectively obtain power to create new laws.

This suggests that the power of UK parliament to legislate on any law it wishes could slowly be eroding due to the UK’s legislative, executive and judicial powers bringing in decisions of the European Court of Justice.As well, if the European Court of Justice finds a UK law which is inconsistent with the European Communities law, then the law is controlled and managed by the European Communities structure. (Kelly and Holmes 2005). This therefore contradicts the Doctrine of Parliamentary Supremacy as Parliament is no longer able to make or legislate on any thing it wishes.

In Factortame 1[3] case, is a constitutional case confirming the supremacy of European Communities law invalidating UK legislation.The European Economic Community had a policy on common fishing which had limits on the amount of fish that any country’s fishing fleet was allowed to catch. The UK Parliament decided to introduce the Merchant Shipping Act 1988 which stated that all fishing companies registered as British companies must have a business within the UK and the act also stated that within that business there must be 75% of British National shareholders (Kelly and Holmes 2005).As a result of this, the high court made the decision to refer the legality of the legislation to the European Court of Justice but for the time being, granted interim relief.

(Kelly and Holmes 2005). what bit of the case shows this. Decision of the case. This proved that the European Communities Act is binding and is not of a higher position but it can sometimes have priority.

(Kelly and Holmes 2005). Another case which shows the European Communities Law overruling UK legislation is in Thoburn v Sunderland City Council[4] case.This involved a market trader using imperial weight, such as pounds and ounzes, rather than metric weight such as kilograms and grams. He was therefore not abiding by the Weights and Measures Act 1985. Thoburn relied on UK law but the European Communities Law stated that everyone had to implement metric weight again suggesting that the UK law is slowly eroding.

The minister stated “To sell by the pound was lawful under the Act, but the Act was amended because of a European Directive which said only metric units could be used. ”However, it could be said that UK parliament is gaining supremacy because as a result of his case, in 2007, European Union commissioners decided that the UK could carry on using imperial measurements, such as pints, pounds and miles but it did not affect current law on metric measurements, but means imperial equivalents can be used too. In November 2007 a decision was made. The European Parliament said that Britain and Ireland can continue to use miles for road signs and speed indications and pints, for bottled milk and draught beer and cider.

Also, the European Parliament said that Britain and Ireland could slao continue to use indefinitely labels with supplementary or dual indications of both metric and imperial sizes.As a result of European Communities Act 1972 the UK Parliament was obliged to implement the European Convention on Human Rights into domestic law as the Human Rights Act 1998. The Human Rights Act offered positive rights including freedom of speech, torture, liberty and association. There are three main sections for the Human Rights Act 1998[5]. Firstly, under section 2 of this Act, the court has to take the precedent into consideration from the European Courts of Human Rights. This means that the English legal system has to refer back to previous cases of the European Courts in order to make a decision.

Section 3 of this Act states that the courts are to read all legislation in order to give effects to the rights provided under the European Convention on Human Rights. This section therefore means that the courts will be provided with new and extended powers of interpretation giving potential to invalidate earlier accepted interpretations of statues which were made with no source to the European Convention of the Human Right Act (Kelly and Holmes 2005). The other main section for the Human Rights Act 1998 is under section 4.This part states that the Act must sanction the courts to issue a declaration of incompatibility. (Kelly and Holmes 2005).

This is a very important point because it means if a domestic law is made, which is incompatible with the Human Rights Act 1998, a declaration of incompatibility can be made by the UK courts and consequently, the domestic law can be repealed. The first case in which a declaration of incompatibility under section 4 of the Human Rights Act was made by a UK court was in Wilson v First County Trust[6].This case involved Mrs Wilson pawning her car in order to borrow ?5000 from the First County Trust for six months. She paid back the borrowed loan and the Trust gave Mrs Wilson her car back.

Mrs Wilson then applied to court stating that the loan agreement had been unenforceable and did not comply with the Consumer Credit Act 1974 for the reason that the Trust had included ? 250 in order to arrange the loan so as a result of this, Mrs Wilson was actually borrowing 250. The Judges agreed that the loan was unenforceable under the Consumer Credit Act 1974, but the appeal was then postponed for legal arguments after the pawnbroker claimed that this decision would contravene his rights under the Human Rights Act 1998. The case was then referred to the government as being incompatible with the European Convention on Human Rights and consequently it was continued with the Secretary of State for Trade & Industry being joined as a party.The result of this case was that First County was made to repay the loan to Mrs Wilson. When incompatible laws are made the government has to repeal the UK law. This is because the EU law is supreme.

If the government did not repeal the UK law, then there would be two different laws contradicting each other. Subsequently, this suggests that the Parliamentary supremacy has been eroded because parliament is unable to make incompatible laws.To conclude, whilst it appears that there has been a significant erosion of Parliamentary supremacy, due to the European Communities Act[7] and The Human Rights Act[8], since the UK legislature have to create laws that are not incompatible, this is not necessarily the case. This is because the UK Parliament does retain the option to repeal against the European Communities Act and withdraw from the EU entirely. From this information we are able to consequently say that the UK would no longer be subject to European Communities Law.

Whilst withdrawal from EU is an unlikely decision to be made due to the political implications, this choice is theoretically available to parliament. It could therefore be said that the UK parliament ultimately retains legislative supremacy in full and it has not been eroded in any way. In addition, the UK chose to make itself subject to and bound by the European Communities Law. By signing up and agreeing to abide by the EU treaties, laws and legislation, it remains the ultimate decision maker.

On that account, it could be argued that Parliamentary supremacy has not eroded and that Parliament retains ultimate supremacy.