How are laws made?

In the English Legal System laws are made in a number of ways. Some you are likely to know about, others maybe not.

There is a hierarchy of law makers and that hierarchy applies to the resulting laws made.

Laws are known as primary and secondary laws. It makes no difference which “category” the law falls into. They are all equally legal!

The most important source of law comes from Parliament in the form of Acts of Parliament, which are also known as Statutes and are primary law. An example is the Unfair Contract Terms Act 1977.

“The management accept no responsibility for any damage or loss sustained from the use of these facilities, howsoever caused”.

The making of this Act by Parliament changed the rights of the consumer, bringing in protection from unfair terms written as exclusion clauses in consumer contracts. This made certain exclusion clauses invalid, no matter what. For example, no trader can exclude their liability for death or injury caused by their negligence. It also made some exclusion clauses valid only if they are reasonable in these consumer contracts. In 2015 with the bringing in by Parliament of the Consumer Rights Act 2015, further changes were made and now this is the governing Act relating to unfair terms. These and all other Acts of Parliament are Primary law and at the top of the hierarchy. When they are implemented they apply to all of us.

Parliament does not actually have the time to legislate (make laws) covering everything and so it delegates power to other bodies to make some of our law. This is secondary law and known as Delegated Legislation. It is delegated to Government Departments, Local Authorities, some private companies and public Corporations and the Queen and Privy Council. Parliament gives the power and can take it away.
The power is given to Government Departments and they produce the most law of all, approximately 3500 pieces of law each year. These are known as Statutory Instruments and Ministers or Departments will make laws within their remit for example: Health, Transport, Justice. These laws are likely to apply to us all.

Another secondary way law is made is by Local Authorities, Public Corporations and private Companies and known as Bye-laws. Local Authorities can make law within their jurisdiction. Bye-laws tend to cover local traffic regulations, ban on drinking alcohol in the streets or ban on allowing dogs to dirty the streets, in fact anything that is needed within that town or borough. Public Corporations and private companies can only make bye-laws relevant to their remit. For example, the London Underground and Airports and Train Companies can make bye-laws covering their area.

The final type is Orders in Council made by the Privy Council and signed by the Queen. These are usually used in times of emergency when law is needed quickly and sometimes when the Prime Minister needs to make political appointments. They have been used mostly in recent years to bring European Directives into English law. However, that is no longer the case.

Having looked at laws made by Parliament and other organisations; we must now refer to law made by the Courts. Court made law is another primary source of law and is also known as the Common Law. It is the decisions made in the highest Court(s) that lay down law for all courts to follow should they get a later similar case. Also known as Case Law which sets Precedents to be followed. It only applies to persons involved in that case or later similar situations.

The Supreme Court is the top of the court hierarchy and the Court of Appeal is below it but can set Precedents. A leading Precedent set in 1932, gave us the Tort (actionable civil wrong) of Negligence in the snail in the bottle case of Donoghue v Stevenson. We now all have to live by the rule that we have a duty of care not to “injure our neighbour” by negligent acts.

Finally, Precedents made in the Courts cannot override Acts of Parliament, but a Judge can point out to Parliament that a change needs to be made to any Statute if it infringes Human Rights. Known as a Declaration of Incompatibility.