Discussion Concerning the Principle Sources of Law in the UK

Discussion Concerning the Principle Sources of integrity in the UKThis essay pull up stakes consider the principle sources of truth in the UK, and how equity is make finished fan tan which is considered the supreme law making body, parking lot law or law made by judges, and European Union law (EU law). It will explain the different processes by which law can be changed and how law reform is produced by parliamentary and judicial activity. It will then show how Parliament takes into account affable, technological and economic changes when dealing with particularities of law reform through the law of nature Commission, Royal Commissions, and various member bills. It will also show how the terrace use version of the law to implement reform it in an opportunistic way case by case. Consideration will be given to EU law and how this affects the law making process.The British constitutution, unlike other constitutions throughout the world is an unwritten constitution. It is a creation of historical progress and plot galore(postnominal) of its sources ar written it re chief(prenominal)s uncodified. The constitution sets out how power should be balanced between the g all overning bodies.In the UK there ar three main sources of law, parliamentary law (statute law), Common law and EU law. Parliamentary law in the form of bouts, begin in a variety of ways as Bills, these be proposals for a new piece of legislation presented to Parliament and must go through various stages of agreement, by both the signboard of Commons and the house of Lords before being formally approved by the reigning sovereign, in the form of Royal Assent in order to become part of the UK Law. general Bills presented by a government minister affect the entire population and generally become kneads of Parliament, while Private Member Bills although similar are presented by non government ministers such as MPs or Lords. M whatever of these do non become law, only do raise overti ty around the issues they are concerned with. The Children achievement 2004 created a Childrens Commissioner for England in response to issues raised from a Private Members Bill (The reach University, 2011, p.101). A Private Bill is presented by other organisations such as private companies and affects only a minority of society. Bills may be passed because of a national emergency or in reaction to about(a) new technology. The Anti-Terrorism, Crime and auspices tour 2001, was created in direct response to the events of terrorist attacks on America on 11 September 2001. It allows for the indefinite detention without tribulation of foreign nationals who are suspected of posing a threat to the security of this country (The Daily Telegraph, 2003). However, this may be incompatible with the European Convention on gentle Rights (ECHR).During the law making process there are many influences on Parliament in the form of Law Commissions, Royal Commissions, and various stuff assorts . The Law Commission was established by The Law Commission Act 1965 as an independent body to reassess the existing law, recommend reforms and abolish senile laws or amend existing laws. Royal Commissions are advisory groups set up by Government to generally deal with non political issues. The introduction of the poisonous magical spell Act 1995 came about from recommendations from the commission when the Birmingham Six successfully had their credendums overturned.In the UK historically, the judiciary make law by way of contributing to the development of the leafy vegetable law. The legal principles are built on through the judicial systems by judges case by case over time, through an established practice of precedent known as stare decisis meaning to stand by decided cases. In the case of R v R 1992 1 AC 599, the House of Lords, which was the highest court until 2009, decided to over order previous precedent by recognising the offence of marital rape, however the House of Lo rds felt constrained to say they were changing the law, but were simply removing an error as to the true meaning of the law. Accurate law reporting through Year Books, The Law Reports, Weekly Lay Reports and European Law Reports, allows for this legal doctrine to be collated, identified and accessed.The doctrine of adhere precedent refers to the hierarchical structure of the court system, and means that a decision made in a higher court is binding on the courts below it, however, this can lead to the judiciary overstepping their constitutional role by actually making law instead of applying it. Judges can ensure that a statute is interpreted properly, giving flexibility without waiting for Parliaments prolonged processes. By the use of statutory commentary the judiciary can influence the law using rules developed over time, however, each rule can result in different decisions.Statutory interpretation is made up of four rules that the judiciary use when deciding on the outcome of a court case. By applying the literal rule, the judge considers what the statute actually says in its every day meaning and applies this, unless this would produce an outcome that was absurd, then the golden rule which allows the judiciary to look for another meaning for the words in the statue. The mischief rule gives more discretion as the judiciary can look at the law before the statute was created, in order to secure what mischief the statute was intended to deal with. With the purposive rule the court is not just looking at what the statute intended but also what they think Parliament meant to achieve.The UK courts are divided into a hierarchy which practices law at all levels, in both civil and criminal matters. The lowest court is the Magistrates Courts, followed by the Crown Court and County Courts, the High Court, the Court of Appeal and the highest court is the Supreme Court (formerly the House of Lords). The hierarchy system means that decisions can be checked or overrul ed by higher courts to take into account changes to political, social or technological conditions. Decisions made in the Supreme Court are binding to all UK courts. Other influences come from the European Court of Human Rights (ECrtHR) and the Court of Justice of the European Union which overrides domestic precedent.EU law has power over UK law, even without having been approved by the UK Parliament and, where applicable, the UK is bound by that law and cannot make conflicting laws. The UK was the first country to ratify the ECHR in 1951, and it has been introduced into English law covering basics such as the right to life, and the right to marry and found a family. Any new laws must be compatible with the ECHR.The Human Rights Act 1998 is classed as one of the most important pieces of legislation in the UK, it allows the ECHR to be part of British law, and allows citizens to use the domestic court system when breaches of their rights are in dispute. Whilst this does not allow the c ourts to overrule an Act of Parliament, they can make a declaration of incompatibility under s.4 of the Act. Parliament then decides whether the law should be changed, but this allows the judiciary some discretionary powers under s.8 allowing them to award remedies.Law making in England and Wales is based on a democratic Parliament so that the public can take an effect on law reform. Through general elections every five years it ensures that the government does not remain in power against the wishes of the people, however most people vote based on a partys proposals, and the winning party are not legally bound to declare these promises. As the first past the post election system is not a balanced representation system, a government may not have a majority of public support through votes, despite winning a majority of constituent seats. This allows for a powerful government with overwhelming Parliamentary power to push through its infallible legislation whilst having the support o f a minority of the people. Legislation can be passed during times of crisis, following a find in science on human embryo cloning The Human Reproductive Cloning Act 2001 came into force within nine days. The Law remedy Act 1965 codifies all areas of law, including corporate law, family law, and reproductive rightsThe introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) came about in response to societys frustration with the lack of successful corporate prosecutions such as the POs Herald of Free Enterprise disaster in 1987, R v PO 1991 in which 190 people were killed, when the bow doors were remaining open subsequently setting sail. The current law at the time lacked provisions for negligence where death occurred, as the common law offence required an individual to be responsible, even though the coroners report gave a ruling of unlawful killing. In such a large corporation the prosecution were not able to identify the individuals responsible for obvious and serious risk of the ship setting sail with its bow doors open (Bergman, D. 1990).The Law Commission with pressure from the wellness and Safety Executive and the Centre for Corporate Accountability proposed reform for the creation of the 2007 Act. Parliament took more than ten years to implement the legislation, and while showing some positive reforms, is limited. New prosecutions can only be prosecuted by the Director of Public Prosecutions and only in the High Court. The judiciary powers under s.6 only allow for indictment of a fine if a corporation is convicted of corporate manslaughter or corporate homicide, with ss.9 and 10 providing the sanction of remedial orders for them to remedy the breach. In 2011 the successful conviction of a company under the CMCHA 2007 led to a large fine for Cotswold Geotechnical Holdings Ltd, on appeal the Court of Appeal upheld the conviction but no truly precedent was set as it was small family run business with a sole director. Th e judiciary will have to wait for prosecutions of larger organisations before any interpretation of the Act will become clear.Family law in the UK has been subject to substantial modification over the years, through social changes encompassing marriage, divorce, non-marital cohabitation, same conjure partnerships and adoption. These changes in ideas about family can affect legal issues such as taxation, inheritance and other civil and criminal laws. The Marriage Act 1949 was challenged in the European Court of Human Rights in the case of B and L v United Kingdom 2006. UK law did not allow a father-in-law to marry his girl -in-law, even though both were divorced and had formed a relationship. The ECrtHR found this incompatible with Article 12 of the convention and consequently the UK Parliament reformed this law in the Marriage Act 1949 (Remedial) Order 2007.The concept of common law husband or wife does not exist in the UK legal system, couples who animated together, whether same sex or heterosexual, and are not married do not have the same legal rights as those that are. The Odysseus Group, a pressure group for equal rights for all called for changes in the law to allow these couples to have the same legal rights as married couples. This and the case of Anna Homsi (The Open University, 2011 p.54) led to the creation of The cultured Partnership Act 2004 allowing same sex couples to register their partnership and be afforded the same rights as a married couple. Parliament left out recommendations from The Law Commission to include heterosexual couples in the Bill, during the parliamentary term. It maintains that heterosexual couples can marry if they want to whereas same sex couples cannot under the present law.Technological and health check advances have occurred in a relatively short period of time, and the necessity to regulate these practices became an issue of statutory regulation as they are in the public interest. The legal issues with reproductive technology brought about the creation of the Human Fertilisation and Embryology Act 1990 (HFEA 1990). The Act sets out the principles, prohibitions and created the Human Fertilisation and Embryology Authority (HFEA) to regulate and aid the judiciary in applying the law. This Act however was implemented based on technology and science from 1984.Section 12 of the HFEA 1990 sets out the conditions for licensing, and requires compliance of section 3, the requirements for impressive consent of treatment (The Open University, 2012 p.91). This was challenged by Diane Blood who wanted to have fertility treatment using the sperm of her dead husband. However, the sperm had been taken while her husband was in a coma and he had not given written consent to its use. The HFEA refused to authorise treatment without consent, and it was ruled in the Court of Appeal that she could exercise her rights under s.10 of the ECHR to have fertility treatment in another EU state. This illustrates that the l aw was open to interpretation, as written consent was not contract in the Act. The court stated that as Parliament had delegated responsibility to the Authority, then the courts should not interfere, however they did point to considerations with regards to the EC Treaty and Diane Bloods enforceable rights. The Government acknowledge this position and no amendments have been made to the Act.In the case of R (on the lotion of Quintavalle on behalf of Pro-life Alliance) v Secretary of State for Health 2001 EWHC Admin 918 the courts ruled, after using a purposive interpretation that the embryos created through cell nuclear replacement (CNR) could be used for experimentation without the limitation of time or any other restriction. In the Court of Appeal reference was made to the case of Royal College of Nursing of the United Kingdom v Department of Health and hearty Security 1981 AC 800, and concluded that the legislation would have imposed the same restrictions on embryos from CNR a s embryos from a person. They interpreted that although the technology did not exist when the Act was created, Parliaments regulation of the use of embryos was clear. The Government created The Human Reproductive Cloning Act 2001.In conclusion, this essay shows how the law making process and law reform is delimit through technological, social and economic developments. Parliament as a public elected body deals with the particularities of reform through the various commissions, pressure groups and members bills as they are accountable to the public. The judiciary can be seen to reform the law through the common law system, using principles of interpretation, and they do this in an opportunistic way through cases as they are presented to the courts. Although the implementation of The Human Rights Act 1998 gives judges the power to declare incompatibilities with the current law, it is still opportunistic, and piecemeal.BibliographyStatutesAbortion Act 1967Anti-Terrorism, Crime and Sec urity Act 2001Children Act 2004 civil Partnership Act 2004Corporate Manslaughter and Corporate Homicide Act 2007Criminal Appeal Act 1995The European Convention of Human RightsFamily Law Act 1996Family Law (Scotland) Act 2006Health and Safety at Work etc. Act 1974Human Fertilisation and Embryology Act 1990The Human Reproductive Cloning Act 2001The Human Rights Act 1998The Law Commission Act 1965Marital Causes Act 1973Marriage Act 1949Marriage Act 1949 (Remedial) Order 2007 (2007 No. 438)CasesB and L v United Kingdom 2006 1 FLR 35R v Human Fertilisation and Emryology Authority, ex parte Blood 1997 2 All ER 687R v PO European Ferries (Dover) Ltd (1991) 93 Cr App R 72 1991 Crim R 695R v R 1992 1 AC 599R (on application of Quintaville on behalf of Pro-life Alliance) v Secretary of State for Health 2001 EWHC Admin 918Royal College of Nursing of the United Kingdom v Department of Health and Social Security 1981 AC 800Course UnitsArthur, R. (2011) Unit 7 Unlawful Conduct, W100 Block 2 Lega l Personality, p57-67, Milton Keynes, The Open UniversityArthur, R., Goodey, J., and Howells, C. (2011) Unit 3 Making Law (1) Parliament, W100 Block 1, Rules, and rule making, p.89-113, Milton Keynes, The Open UniversityHowells, C. (2012), Unit 25 Law, justice and social change (3) law and reproductive technology, W100 Block 7, Justice, p.90-124, Milton Keynes, The Open UniversityHowells, C. and Slapper, G. (2011) Unit 4 Making Law (2) common law. W100 Block 1, Rules, and rule making, p.141-192, Milton Keynes, The Open UniversityHowells, C. And Zambellas, A. (2011) Unit 5 Making Law (3) Europe, W100 Block 1 Rules, and rule making, p.207-230, Milton Keynes, The Open UniversityMontgomery, H. (2012), Unit 24 Law, justice and social change (2) marriage and family, W100 Block 7 Justice, p.47-74, Milton Keynes, The Open UniversityWeait, M. and Goodey, J. (2011) Unit 3 Making Law (1) Parliament, W100 Block 1 Rules, and rule making, p89-138, Milton Keynes, The Open UniversityZambellas, A. a nd Voiculescu, A. (2012) Unit 23 Law, justice and social change (1) corporate manslaughter, W100 Block 7 Justice, p.13-32, Milton Keynes, The Open University endorser ArticlesBergman, D. (1990) Recklessness in the boardroom, New Law Journal, 140, 6477, p.1496, Reading 28 Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open UniversityCommunity Legal Service Direct Information Leaflet 7 (2005), The Human Rights Act, Legal Services Commission, Reading 7 Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open UniversityCorporate Manslaughter and Corporate Homicide Act 2007 (extract), 2007 Chapter 19, Reading 35 Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open UniversityThe Daily Telegraph (2003) Desperate times need temporary measures, Daily Telegraph, London, 19 December 2003, p.23, Reading 5 Reader 1, W100 Rules, rights and justice, Milton Keynes, The Open UniversityForlin, G. (2007) Worth the wait?, New Law Journal, 157 NLJ 1165, Reading 36 Rea der 3, W100 Rules, rights and justice, Milton Keynes, The Open UniversityGerry, A. 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(2003) The Civil Partnerships Bill, Family Law News, January 2003, Reading 38, Reader 3, W100 Rules, rights and justice, Milton Keynes, The Open UniversityDVDThe Open University (2008), Organisations and Justice, W100 DVD, W100 Rules, rights and justice, Milton Keynes, The Open University (DVD)The Open University (2008), The case of Diane B lood, W100 DVD, W100 Rules, rights and justice, Milton Keynes, The Open UniversityOther ReferencesSlapper, G, and Kelly, D. (2011) The English Legal governance (12th edn), Abingdon, Routledge, p.153), Milton Keynes, The Open University