Sources of English law

English law derives from multiple formal sources arranged in a strict hierarchy: Acts of Parliament (supreme), subordinate legislation, common law developed through judicial precedent, and equity. Parliamentary sovereignty means Parliament can make or unmake any law, and no court may override an Act of Parliament—though recent obiter dicta in Jackson and Privacy International suggest potential common law limits in extreme cases. This plurality of sources operates through defined relationships: statute prevails over common law and equity; later statutes impliedly repeal earlier ones; equity supplements but cannot override statute. The doctrine distinguishes formal sources (the process giving rules legal force) from material sources (substantive inspiration). Understanding which source supplies the operative rule—and how sources interact through interpretation, codification, and development—is foundational to every area of substantive law.

Entick v Carrington (1765) 19 St Tr 1029: Executive officers require legal authority for their acts; general warrants under prerogative are invalid. Foundational for the principle of legality and rule of law.

Donoghue v Stevenson [1932] AC 562: Lord Atkin's neighbour principle established general negligence duty, exemplifying judicial development of common law beyond statutory authority. Shows both creative capacity and limits of precedent.

Pepper v Hart [1993] AC 593: Courts may consult Hansard where legislation is ambiguous, ministerial statements exist, and are clear. Controversial exception to exclusionary rule; courts often decline to apply.

Ghaidan v Godin-Mendoza [2004] UKHL 30: HRA s.3 requires courts to read statutes compatibly with Convention rights even if departing from natural meaning, provided the legislation's thrust remains. Illustrates tension between sovereignty and rights-compatible construction.

R (Jackson) v Attorney General [2005] UKHL 56: Obiter dicta suggesting sovereignty may have common law limits; courts might refuse statutes abolishing judicial review or democracy. Signals potential constitutional review but remains hypothetical.

R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5: Triggering Article 50 required statutory authority; prerogative cannot alter domestic law or remove statutory rights. Reaffirmed statute's supremacy over prerogative.

R (Privacy International) v IPT [2019] UKSC 22: Only clearest words can oust judicial review; principle of legality constrains interpretation. Courts will protect constitutional fundamentals unless Parliament speaks unambiguously.

Courts identify the applicable source through hierarchical analysis. First, check for governing statute—if present, it prevails. Apply purposive interpretation: what was Parliament's objective? If ambiguous and conditions are met, consult Hansard (Pepper v Hart). Under HRA s.3, read compatibly with Convention rights where possible; if not, consider s.4 declaration.

For common law issues, identify binding precedent in the hierarchy. Extract the ratio decidendi (not obiter). The Supreme Court may depart from its decisions when right to do so; Court of Appeal follows Young v Bristol Aeroplane exceptions. Distinguish cases on material facts.

Delegated legislation must fall within the parent Act's scope. Courts review for ultra vires (substantive/procedural), irrationality, and proportionality. Primary legislation cannot be struck down but may be declared incompatible with Convention rights.

Equity applies where common law provides no remedy or produces injustice. It operates through established doctrines (trusts, estoppel) not general discretion. Where equity and common law conflict, equity prevails—but statute trumps both.

Conflating sources: Formal sources (statute, precedent) give legal force; material sources (policy, academic writing) provide inspiration only. Don't call Hansard or scholarship 'sources of law' without qualification.

Misusing Jackson: The sovereignty dicta are obiter, not ratio—the Act was upheld. Don't assert courts have established power to strike down statutes.

Overplaying s.3 HRA: Declarations of incompatibility don't invalidate legislation; the Act remains in force. This isn't constitutional review.

Precedent precision: Only the ratio from a higher court binds. Distinguish 'the Supreme Court held' (ratio) from 'Lord X observed' (likely obiter).

Post-Brexit confusion: EU law is no longer a separate source. Retained EU law has been assimilated or revoked under REUL Act 2023.