Gavin Howe
The United Kingdom's legal system is a complex and evolving entity, drawing on a variety of sources to ensure it remains adaptable and reflective of societal changes. The UK's legal system is primarily made up of four distinct types of legal systems: English law, Scots law, Northern Ireland law, and (formerly) European Union (EU) law. The sources of UK law can be divided into primary and secondary categories. Primary sources, such as legislation, directly shape the legal landscape, while secondary sources, such as textbooks and academic articles, provide context and interpretation.
| Characteristics | Values |
|---|---|
| Primary sources of law | Legislation, common law, European Union law, assimilated law, human rights law, international law, and customary international law |
| Secondary sources of law | Textbooks, academic articles |
| Legislation | Laws passed by the UK Parliament, Acts of Parliament, and statutory instruments |
| Statutory instruments | Laws made by government ministers under powers granted by Acts of Parliament |
| Common law | Unwritten law developed through centuries of judicial decisions, rooted in the principle of stare decisis |
| International law | Treaties, customary international law |
| Treaties | Geneva Conventions Act 1957 |
| Customary international law | Practices and norms followed by states out of a sense of legal obligation |
| Rulings of international courts | International Court of Justice, International Criminal Court |
| European Union law | Treaties, regulations, directives |
| Historical sources | English common law, documentary procedures |
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What You'll Learn
Legislation, Acts of Parliament and statutory instruments
Legislation is one of the primary sources of law in the UK. It refers to laws passed by the UK Parliament and contained in Acts of Parliament and statutory instruments. Acts of Parliament are laws that have been debated and passed by both the House of Commons and the House of Lords, receiving royal assent from the monarch. They form the most authoritative law in the UK, statutory legislation, which also comprises regulations and by-laws.
Statutory instruments are a type of secondary legislation that provides detailed regulations and orders needed to bring an Act of Parliament into force. They are made by government ministers under powers granted by Acts of Parliament. Statutory instruments are not codified, but they are cited by short title and year of enactment and are numbered sequentially during the year. For example, the Portability of Online Content Services Regulations 2018 was a statutory instrument with the number 2018 No.249.
Acts of Parliament may set out what is required in general terms, but they rely on statutory instruments to provide the detailed and practical regulations and orders needed to bring the Act into force. They are made by or under the powers conferred by statute on Her Majesty in Council, a Minister, the Welsh Ministers, or another body or person. Since 2004, all instruments laid before Parliament have been accompanied by an Explanatory Memorandum, outlining their purpose, policy objective, and policy implications.
Statutory instruments are available on the Legislation website back to 1987, listed by date and number, and can be found as HTML files or PDFs. Legislation.gov.uk has a comprehensive collection of statutory instruments from 1987 to the present, with partial coverage for 1948-1986. This website also carries most types of legislation and their accompanying documents, including how amendments are applied and where to obtain copies of legislation they do not hold.
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Common law, stare decisis and equity
The United Kingdom's legal system is complex and draws from a variety of sources, including legislation, common law, European Union law, and other factors. Common law, stare decisis, and equity are three key components of the UK's legal system.
Common law is a significant source of law in the UK, particularly in England and Wales, where it forms the foundation of English law. It comprises criminal law and civil law, each with its own courts and procedures. Criminal law, for instance, involves the actus reus (a criminally prohibited act) and mens rea (criminal intent or recklessness). Common law is made by sitting judges, who apply statutory law and established principles derived from past decisions.
Stare decisis, a Latin term meaning "to stand by that which is decided," is a legal doctrine that gives precedential value to past decisions. It mandates that courts adhere to historical cases with similar circumstances when ruling on current cases. The principle of stare decisis ensures consistency and stability in the law, as lower courts must follow the decisions of higher courts. For instance, in the United States, all states follow the precedents set by the US Supreme Court.
Equity is another important historical source of judge-made law in the UK. When a court faces a morally deficient precedent, it can exercise equitable power by either following the precedent or suspending its application and referring the case to a higher court. This allows for flexibility and justice in the legal system, as equitable power enables courts to make exceptions to binding legal obligations.
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International law, treaties and customary international law
International law, including treaties and customary international law, influences UK law. The UK treats international law as separate from domestic law, requiring domestic legislation to implement international obligations. Treaties that the UK is a signatory to become part of domestic law when incorporated by an Act of Parliament. For example, the Geneva Conventions, which set out the standards of international humanitarian law for the treatment of prisoners of war, have been incorporated into UK law through the Geneva Conventions Act 1957.
Customary international law, which consists of practices and norms followed by states out of a sense of legal obligation, can be considered by UK courts and may influence legal decisions and legislative developments. The rulings of international courts, such as the International Court of Justice and the International Criminal Court, have persuasive authority and are often considered by UK courts when making decisions.
International humanitarian law (IHL) is a body of rules that, in armed conflict, protects persons who are not, or are no longer, participating in the hostilities and limits the methods and means of warfare. The two main sources of IHL are treaties (international agreements concluded between states in written form) and customary international law (general practice accepted as law). The four Geneva Conventions of 1949 and their two 1977 Additional Protocols are considered the bedrock treaties of IHL.
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European Union law, treaties, regulations and directives
The United Kingdom's legal system draws from a variety of sources, including European Union law, which itself consists of treaties, regulations, and directives.
Treaties
Treaties are binding agreements between EU member states that outline the objectives of the European Union, rules for EU institutions, decision-making processes, and the relationship between the EU and its members. These treaties are negotiated and agreed upon by all EU member states and ratified by their parliaments, sometimes following a referendum. Examples include the Treaty of Rome and the Treaty of Maastricht. Treaties are considered the primary source of EU law, and the EU can only pass laws in policy areas where member states have authorised it to do so through these treaties.
Regulations
Regulations are binding legislative acts that must be applied in their entirety across the EU. They take precedence over national laws of member states, as seen in the example of the EU restricting the use of geographic names to market certain agricultural products.
Directives
Directives are legislative acts that establish specific goals or objectives without prescribing the means to achieve them. While the objectives are legally binding, individual member states have the responsibility to enact their own legislation to meet these objectives. Directives may apply to individual member states, groups of member states, or all member states.
European Union Law and the UK
International law, including EU law, treaties, and customary international law, influences UK law. Treaties to which the UK is a signatory become part of domestic law when incorporated by an Act of Parliament. For example, the Geneva Conventions, which set standards for humanitarian treatment in war, were incorporated into UK law through the Geneva Conventions Act 1957. The UK also considers rulings from international courts, such as the International Court of Justice and the International Criminal Court, in its legal decisions. Policy papers, consultation documents, treaties, and other government publications can be found on Gov.uk.
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Human rights law, including the European Convention on Human Rights
Human rights law is a significant source of UK law, encompassing the European Convention on Human Rights (ECHR) and other international treaties. The ECHR, an international treaty of the Council of Europe, came into force in 1953, with the UK being one of its first ratifiers in 1951. The ECHR is divided into 14 articles, each safeguarding fundamental human rights and freedoms, such as the right to life and liberty. The UK incorporates these rights into domestic law through the Human Rights Act 1998, allowing individuals to seek redress in British courts for violations of their ECHR rights.
The Human Rights Act 1998, which came into force in October 2000, is pivotal in upholding the rights outlined in the ECHR within the UK legal framework. Notably, Articles 1 and 13 of the ECHR are not included in the Act, as the UK has already fulfilled these rights through the Act's creation. The Act ensures that public bodies, including courts, police, and hospitals, respect and protect these rights, and guides Parliament to pass compatible laws.
The UK's international human rights obligations extend beyond the ECHR. The UK has ratified or agreed to several other treaties, such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), and the Optional Protocol to the Convention against Torture (OPCAT). Additionally, as part of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the UK has committed to ensuring rights such as education, fair work conditions, and adequate living standards.
The European Court of Human Rights (ECtHR) interprets and enforces the ECHR. It hears cases brought by individuals or states alleging violations of ECHR rights. The Court's judgments are publicly available, and it operates with a "margin of appreciation," allowing member states some discretion in interpreting the Convention while considering their unique legal and cultural traditions.
The UK Supreme Court's ruling on the government's "Rwanda Policy" illustrates the practical application of the ECHR and the Human Rights Act 1998. The Court found that sending asylum seekers to Rwanda, a country with deficiencies in its asylum processes, posed a risk of serious human rights violations, including torture and persecution, contrary to Article 3 of the ECHR.
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Frequently asked questions
The UK legal system is a complex and evolving system that draws from a variety of sources. These sources include legislation, common law, assimilated law, human rights law, international law, and European Union law. Each type of law has its own distinct sources, which can be broken down into primary and secondary sources.
Primary sources of law in the UK include statutes and case law, which have direct legal authority. Statutes are laws that are passed by the UK Parliament and are contained in Acts of Parliament and statutory instruments. Case law refers to previous decisions made by courts, which can be used as precedents for future decisions.
International law, including treaties and customary international law, influences UK law. Treaties that the UK is a signatory to become part of domestic law when incorporated by an Act of Parliament. For example, the Geneva Conventions, which set out standards for humanitarian treatment in war, have been incorporated into UK law through the Geneva Conventions Act 1957.
With the UK's withdrawal from the EU, EU law ceased to be a direct source of law in the country. However, the UK follows the principle of acquired rights, which means that any EU-derived domestic legislation and judgments made by the Court of Justice of the European Union before the withdrawal date still apply in the UK legal system.
