Case or Common law is the term given to law which is created in the courts rather than in Parliament. In the UK, the decisions of the courts are written in law reports and these decisions become law
Traditionally, the majority of English law was derived from past cases. However, most law is now covered by legislation passed by Parliament. Case law has always been secondary to Parliamentary law because of the principle of Parliamentary sovereignty. Therefore Parliament is not bound by the courts or by its own past decisions. This has been modified by the role of European legislation and the Human Rights Act 1998. The majority of legislation is secondary or delegated legislation which is passed by the executive under statutory authority. This can give the executive significant power in determining the law; often with little or no Parliamentary scrutiny. 4 types:
Primary Acts (e.g. the HRA 1998)
Consolidating legislation (e.g. PCC(S)A 2000)
Codifying legislation – brings together existing law and common law Amending legislation
The areas were the EU is working towards common policies and practices, such as employment, are becoming increasingly important. Since the enactment of the European Communities Act 1972, European law has taken precedence over domestic law. This can be seen in the case of R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995). In this case, the House of Lords had to consider the rights of part-time employees. Domestic law on this matter was inconsistent and ‘less generous’ than European Law. Therefore, the legislation was modified by Parliament in order to bring it into line with European legislation.
The Human Rights Act 1998 and the European Convention on Human Rights
Undermines Parliamentary sovereignty?
This Act incorporates the European Convention on Human Rights into domestic law It was not brought into force until October 2000; in order to give judges and other public bodies the time to undertake training on its provisions. £5 million was set aside by the Government for the Judicial Studies Board to run training sessions for all judges Before this Act, the Convention could only be enforced by British citizens in the European Court of Human Rights in Strasbourg Unlike decisions of the European Court of Justice, the decisions of the European Court of Human Rights are not binding in the UK. *However, in practice, domestic law is nearly always amended as is appropriate to bring it in line with the decision However, the English courts are obliged to take account of the case law of the European Court of Human Rights The Courts must also interpret legislation in a way that is compatible with the Convention ‘as far as it is possible to do so’ ECHR
Article 2 – the right to life
Article 6 – the right to a fair trial
Article 7 – Prohibition on retrospective legislation
Article 10 – Freedom of expression
Article 14 – the right to enjoyment of the rights without discrimination The higher national courts can make a ‘declaration of incompatibility’ which means that Parliament will normally amend legislation which has been declared as conflicting with the Convention By the early 1990s, the UK had been held to be in breach of the Convention more times than any state other than Turkey S.2 of the HRA 1998 states that when courts are considering the Convention, they must ‘take into account’ decisions of the European Court of Human Rights S.3 of the HRA 1998 requires judges to interpret legislation ‘in so far as is possible’ with the Convention S.4 of the HRA 1998 states that a declaration of impartiality between domestic and European Convention does not affect the continuing validity of the legislation S.6 of the HRA 1998 states that it is unlawful for a public body (including the courts) to contravene a Convention right
The expansion by the higher courts of the law of judicial review during the past 40 years and the introduction of the...
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