Sources Of Law In The Uk Notes

1. Sources of Law in the UK

There are different ways to categorise sources of law

1. Enacted law: legislation in the form of acts and statutes

Unenacted law: case law and institutional writings

2. Primary sources

1. Legislation:

• EU legislation

• Acts of UK parliament (statutes)

• Acts of Scottish Parliament

• Statutory Instruments

2. Case law

3. Institutional writings

Secondary sources

1. Legal literature

2. Custom

• Hierarchy of sources:

1. EU Law

2. UK Law

3. Acts of the Scottish Parliament

4. Secondary Legislation (statutory instruments)

• Later legislation inconsistent with earlier legislation takes priority

• Laws made by acts of parliament can reverse decisions of acts of courts (legislation has authority over case law)

• legislation is interpreted by the courts so courts can have their own interpretation of what this legislation is, but parliament can disagree with this interpretation

• But legislation that is passed on UK level can apply to all legal systems in the UK (Example: tax legislation-revenue law)

• But interpretation of this legislation could vary within legal systems

• Codification: setting out common law in legislative form
  

1. Sources of Law: Enacted Law

Legislation

Primary Legislation:

1. Acts of the Parliament of Scotland: acts of the old parliament

2. UK Statutes

3. Acts of the Scottish Parliament (after 1999)

4. European Union Law: treaties, regulations, directives,

5. European Convention on Human Rights

• Created by parliament (Scottish or UK)

• Restrictions:

  • EU Law

  • Human Rights Act 1998

• Scotland Act 1998 (legislative competence)

• Structure:

• Short title

• Long title: informs what the legislation is about in detail

• Chapter number: indicate the chronological order of legislation passed throughout the calendar year

• Enacting formula (Parliament Acts specialties)

• Marginal notes: written by the drafter, not passed by parliament

• Sections, Sub-sections, Paragraphs, sub-paragraphs

• Interpretation sections: what words mean etc.

• Geographical extent: UK, mentions if Scotland is included

• Schedules: appendix at the end of the main body of the act, contains a series of rules that provide more detail to the substantive rules in the act

• Repeals and amendments

• Consolidation of legislation: parliament modifies a statute by setting out rules and provisions in new legislation, and the old version is disregarded

• Commencement: If there is a (c) after a statute, then it is in in force

• sometimes there is a clause in the statute as to when it is to come into force, but if there isn’t then it should come into force upon royal assent

• Desuetude: when a statute becomes obsolete after the passage of time (applies to old acts of the Scottish parliament)

• Travaux preparatoires: working papers

1. Explanatory notes: notes which explain what legislation is meant to do

2. Policy memorandum: does not look at individual sections, but set out what legislation is attempting to achieve; the “why”

both...

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