Law Making and Application of Statutory and Common Law

Role of Government in Law Making and the application of statutory and Common Law in Courts

The British Government operates on the principle of separation of powers. The principle of separation of powers establishes three arms of Government.  These arms include the Executive: Prime Minister, cabinet, Government Departments and Civil service, the Legislative arm/ Parliament and the Judiciary.

The doctrine of separation of powers reserves the power to make laws for parliament while the judiciary is tasked with interpreting the laws.

Acts of parliament/ Statutory Law operate as the primary source of Legislation in England, by virtue of the concept of Parliamentary Sovereignty. The Concept of parliamentary Sovereignty reserves absolute sovereignty to parliament. The effect of this sovereignty is that Parliament is regarded to be supreme over all other governmental institutions including Judiciary and Legislature. Greenawalt, Kent(6)

Legislation passed by the British Parliament are classified into two main categories; Public general Acts and Personal Acts.

Public General Acts are legislations that have the effect of affecting everyone within the United Kingdom, while the Private acts affect individuals or a particular locality.

It should be noted that Parliament enjoys the discretion of delegating its legislative powers to the queen in council, a minister or another public body through a statutory instrument.

Common Law V Statutory Law

Common Law is defined to be a part of English Law stemming from accepted custom and Judicial Precedent.

Statutes are defined to mean written laws created by parliament to govern a Nation, State or City.

The Judiciary dispenses its role of interpreting laws through courts. English courts enjoy the sole mandate of interpreting laws deemed to be binding and acceptable to England. The sources of this laws include Statutory laws, Common Law, Equity and International law. The power of Interpretation of laws is limited to the extent of interpreting alone. As such, courts cannot purport to make laws through interpretation. Any attempt by courts to make laws  is considered to be null and void.  Greenawalt, Kent(45)

Statutory Law is the primary source of Law in England by virtue of  Parliamentary supremacy as envisaged in British Constitutional Law. This means that in interpreting the laws of the land, the provisions set out in Statutory Laws are supreme to all other laws. The effect of this is that the hands of courts are tied to strictly apply the provisions of statutory law and can only apply common law in cases where statutory law is silent on the issue at hand.

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