Principles and sources of English law

An Act of Parliament is made through a series of formal stages in both Houses, followed by Royal Assent.

A proposal often begins as a Green Paper, a consultation document that invites comments on possible reform, and is then refined into a White Paper, which sets out the government's firm proposals. These become a Bill — a draft law.

The Bill then passes through a series of readings in the House of Commons. At the First Reading the Bill's title is announced (a formality). At the Second Reading there is a full debate on the principle of the Bill, followed by a vote. The Committee Stage sees a small committee examine the Bill clause by clause and propose amendments. At the Report Stage the House considers those amendments, and at the Third Reading the final version is debated and voted on.

The Bill then goes through the same stages in the House of Lords. The Lords act as a revising chamber: they scrutinise and may amend the Bill, sending amendments back to the Commons. Under the Parliament Acts 1911 and 1949 the Lords can ultimately only delay, not block, most Bills, reflecting the elected primacy of the Commons.

Once both Houses agree the text, the Bill receives Royal Assent — the formal approval of the monarch, which by convention is never refused. The Bill then becomes an Act of Parliament and comes into force on a stated date.

Delegated (or subordinate) legislation is law made by a person or body other than Parliament, using powers granted by a 'parent' or 'enabling' Act. There are three main types.

Orders in Council are made by the Monarch and the Privy Council. They allow the government to make law without going through the full parliamentary process, and are typically used in emergencies, to transfer powers between government departments, or to bring Acts into force. Their use is also authorised under statutes such as the Civil Contingencies Act 2004 for emergency situations.

Statutory instruments (SIs) are the most common form, made by government ministers within their area of responsibility under powers given by an enabling Act. Thousands are made each year. They allow detailed, technical rules to be added to the framework of an Act — for example, updating the amount of the National Minimum Wage without passing a whole new statute.

Byelaws are made by local authorities and certain public bodies (such as the railways) to deal with matters in their own area, for example regulating behaviour in a public park or on public transport. They must be confirmed by the relevant government minister before they take effect.

These types allow law to be made quickly, by experts, and to be updated easily, which Parliament has no time to do for every detailed rule.

When the meaning of a statute is unclear, judges use established rules and approaches to discover its meaning.

The literal rule requires words to be given their plain, ordinary, dictionary meaning, even if the result is absurd. In Whiteley v Chappell (1868) the defendant impersonated a dead person to vote; he was acquitted because a dead person is not literally 'entitled to vote'. Similarly, in London & North Eastern Railway Co v Berriman (1946) a workman 'oiling' track was not 'relaying or repairing' it, so no lookout was required and his widow received nothing.

The golden rule is a modification of the literal rule: judges apply the literal meaning unless it produces an absurdity, in which case they avoid that result. In Adler v George (1964) 'in the vicinity of' a prohibited place was read to include being inside it, to avoid an absurd outcome. In R v Allen (1872) 'marry' was read as 'go through a ceremony of marriage' so that the offence of bigamy could exist at all.

The mischief rule, from Heydon's Case (1584), asks what 'mischief' (defect in the old law) Parliament intended to remedy, and interprets the statute to suppress that mischief. In Smith v Hughes (1960) prostitutes soliciting from balconies and windows were caught by an Act prohibiting soliciting 'in a street', because the mischief was harassment of people in the street.

Finally, the purposive approach goes further, asking what Parliament intended to achieve and interpreting the statute to give effect to that purpose. It is the dominant modern approach and is reinforced by section 3 of the Human Rights Act 1998, which requires legislation to be read compatibly with Convention rights so far as possible.

Because delegated legislation transfers Parliament's law-making power to ministers and other bodies, controls are essential — but their effectiveness is mixed.

Parliamentary controls and their strengths. The enabling Act itself limits the power granted, and the affirmative resolution procedure requires the most important statutory instruments to be expressly approved by Parliament, giving direct democratic oversight. The Joint Committee on Statutory Instruments ('the Scrutiny Committee') reviews SIs on technical grounds and reports problems back to Parliament. These controls keep delegated power tied to Parliament's authority.

Weaknesses of the parliamentary controls. However, the controls are limited in practice. The negative resolution procedure (under which an SI becomes law unless rejected within 40 days) means most SIs are never actually debated, and with thousands made each year scrutiny is superficial. The Scrutiny Committee can only report; it cannot amend or block, so its influence depends on Parliament acting on its reports — which it often lacks time to do.

Court controls and their strengths. The courts provide a vital check through judicial review for ultra vires. Delegated legislation made beyond the powers in the parent Act can be quashed. This covers procedural ultra vires (where the correct procedure, such as required consultation, was not followed) and substantive ultra vires (where the content goes beyond what the Act authorised), as well as unreasonableness (so unreasonable that no reasonable body could have made it — the Wednesbury principle). This provides a genuine legal limit that does not depend on Parliament's time.

Weaknesses of the court controls. Yet judicial review is reactive: a court can only act once someone with standing challenges the legislation, which costs time and money, and a defective measure may be in force for years before anyone does so.

Judgement. On balance the controls are necessary but imperfect. The court control through ultra vires is the most robust because it is a genuine legal limit, but it is reactive; the parliamentary controls are democratically valuable but stretched thin by the sheer volume of delegated legislation. The system therefore provides real but incomplete protection against the abuse of delegated power.

The doctrine of judicial precedent does deliver remarkable certainty, but the claim that it 'lacks flexibility' is overstated: the doctrine contains several built-in escape routes. This answer judges the doctrine by whether it can balance certainty against the need to develop and correct the law.

The case that precedent provides certainty. Under the doctrine of stare decisis ('stand by the decision'), the ratio decidendi of a higher court binds lower courts within the hierarchy of courts. This makes the law predictable, so that lawyers can advise clients with confidence and like cases are treated alike, which is fundamental to fairness. The development of a clear, lasting principle such as the neighbour principle in Donoghue v Stevenson (1932) shows how precedent creates settled, knowable law.

The case that precedent nonetheless retains flexibility. The claim that it 'lacks flexibility' ignores the avoidance techniques. The Practice Statement 1966 allows the House of Lords (now the Supreme Court) to depart from its own previous decisions 'when it appears right to do so' — used, for example, in Herrington v British Railways Board (1972), which overruled Addie v Dumbreck to update the duty owed to child trespassers. Distinguishing lets a judge avoid an inconvenient precedent by finding a material difference in the facts. Overruling allows a higher court to declare an earlier decision wrong, and reversing allows a higher court to change the outcome of the very case on appeal. Even the Court of Appeal, though generally bound by its own decisions, may depart in the three situations in Young v Bristol Aeroplane Co [1944]: conflicting past decisions, a decision overruled by the House of Lords/Supreme Court, or a decision made per incuriam. The courts have even used precedent to make bold social change, as in R v R (1991), which abolished the marital rape exemption.

The genuine weaknesses. That said, flexibility is not unlimited. A bad precedent can bind for years until a suitable appeal reaches the Supreme Court, so reform can be slow; the sheer volume of reported cases makes the law complex and the ratio sometimes hard to find; and law-making by unelected judges can be criticised as undemocratic.

Judgement. The statement is only half right. Precedent's certainty is real and is its greatest strength, but it does not 'lack' flexibility — the Practice Statement 1966, distinguishing, overruling and the Young v Bristol Aeroplane exceptions give it considerable adaptability. The doctrine is best seen not as a trade-off in which certainty defeats flexibility, but as a system that achieves a workable balance between the two, with certainty as the default and flexibility available where justice requires it.

Parliamentary supremacy (or sovereignty) is the principle, classically stated by Dicey, that Parliament is the supreme law-making body: it can make or unmake any law, and no other body — including the courts — may override an Act of Parliament. In broad terms Parliament remains supreme, but several developments qualify the principle in practice.

The case that Parliament is supreme. Parliament can legislate on any subject, and the courts must apply a valid Act of Parliament; in statutory interpretation their task is to give effect to Parliament's intention, not to override it. Even the strongly purposive duty in section 3 of the Human Rights Act 1998 — to read legislation compatibly with Convention rights 'so far as it is possible to do so' — preserves supremacy, because where compatibility is impossible the courts may only issue a declaration of incompatibility under section 4; they cannot strike the Act down, and it is for Parliament to decide whether to amend it. Delegated legislation made by ministers can be quashed for being ultra vires, but Acts of Parliament themselves cannot, which underlines Parliament's supreme status. Judge-made law through judicial precedent can also always be overridden by a later statute.

The case that supremacy is qualified. However, supremacy is not absolute in practice. Judges shape the law through statutory interpretation — the choice between the literal rule (Whiteley v Chappell) and the purposive approach can significantly affect what a statute means — and through judicial precedent, developing whole areas of law (the neighbour principle in Donoghue v Stevenson; abolishing the marital rape exemption in R v R). The HRA 1998 itself increases judicial influence, and membership of supranational legal orders historically constrained Parliament's freedom. Political realities, such as the conventions limiting the House of Lords and the influence of pressure groups, the media and the Law Commission on what Parliament chooses to enact, also shape law-making in ways Dicey's pure theory understates.

Judgement. Parliament remains legally supreme: no court can strike down an Act, and Parliament can always legislate to reverse judicial decisions or delegated legislation. To that extent the doctrine holds. But it is supreme in law more than in unqualified practice: the courts' interpretive power, the HRA 1998 framework and the political influences on legislation mean Parliament's supremacy is real but exercised within significant practical constraints. The principle is therefore best described as legally intact but practically tempered.