Primary Legislation
The most authoritative source of law is an Act of Parliament (also known as a statute). This is what is meant by primary legislation. A draft bill is put before the House of Commons for consideration : it may be discussed by the whole of Parliament in an open debate or referred to a Standing or Select Committee for detailed analysis. Amendments will be proposed and finally the House of Commons will vote to approve the bill. It then passes to the House of Lords and goes through a similar procedure there. Finally the bill must be given royal assent (which in practice is a formality). The process can also happen in reverse, that is to say with a bill starting in the House of Lords and then passing to the House of Commons.
Some Acts introduce a complete change in the law : others are mainly consolidating Acts which means that they bring together and update a number of previous Acts but do not necessarily make great changes to the law. The Education Act 1996 is a good example of this type of Act. However, even consolidating Acts will usually give effect to any developments in the courts. In theory the courts and judges do not create law : they merely interpret and apply it but in practice it can be difficult to see the distinction. In some circumstances, for example, the courts have to fill gaps in the law to cover situations that had not been foreseen before the Act was passed.
A word of warning. Just because an Act has been passed by Parliament does not necessarily mean that all or any of it is actually in force. Some parts of the Act may come into force immediately whereas others will be phased in. Sometimes the date on which an Act comes into force (‘the commencement date’) will be stated in the text of the Act itself. Sometimes the commencement date will be found in separate secondary legislation (see below). One Act may also be amended by subsequent Acts and / or parts of it may be repealed (deleted).
There are three ways of referring to an Act of Parliament : by its short title, by its official reference or by its full title.
For example, the Children Act 1989 is the short title. The official reference is the Children Act 1989, Chapter 41 (this means that it was the 41st Act to be passed in 1989).
The full title of the Act is :
The Children Act 1989 c. 41
An Act to reform the law relating to children; to provide for local authority services for children in need and others; to amend the law with respect to children’s homes, community homes, voluntary homes and voluntary organisations; to make provision with respect to fostering, child minding and day care for young children and adoption; and for connected purposes.
In this article references will be made to the short title of an Act, for obvious reasons!
At the beginning of each Act you will find a list of contents. Somewhere in the Act there is usually a section which defines the meanings of certain words used throughout the Act. This is often placed near the beginning or end of the Act. A long Act will usually be divided into several Parts each dealing with a particular aspect of law. For example, Part 1 of the Children Act 1989 is the Introductory section, Part II covers orders made in proceedings and so on. Each Part may be further subdivided into chapters. Each main clause is separately numbered and clauses are referred to as sections. For example, section 1 of the Children Act 1989 sets out the welfare checklist which is a list of considerations the court has to think about when dealing with any family case.
At the end of the Act there will be a number of miscellaneous provisions such as those which do not fit conveniently anywhere else or saying when the Act will come into force and so on. Finally there may be schedules to the Act which will usually include a schedule setting out the way other Acts have been amended.
If you want to look up an Act of Parliament there are several ways of doing so. The easiest way is to look them up online at the Statute Law Database at http://www.statutelaw.gov.uk/Home.aspx which now contains copies of most Acts fully updated (currently there are 14 Acts still to be loaded and some further updating is needed from 2001). Statutes are contained in a number of hard copy and online publications including Halsbury’s Statutes, Current Law Statutes, Jordan Publishing. These will often be found in main public libraries. Another word of warning. You need to be careful to check the additional volumes of each series to see whether there have been any amendments to the law. Individual Acts can be purchased from the Stationery Office Limited. Acts passed after the beginning of 1996 are available on the internet (through the HMSO site) and can be downloaded free. However, it can take a long time and be quite a fiddly process if you want a copy of the whole thing. Again, you will need to look elsewhere to see if the Act has been amended. Halsburys also publish a separate volume called ‘Is It In Force?’ in which you can check whether an Act or a part of it has come into force or been repealed. The online Statute Law Database will also tell you which bits of the Act are in force.
Some hard copy statutes can be found in law libraries (which may be difficult to get into: you will usually need special permission).
Secondary legislation
It is rare these days for any Act of Parliament to be the last word on the subject and so Parliament delegates power to someone else, usually the relevant Secretary of State, to deal with the detail, such as to allow the phasing in of certain functions, or for annual amendments to pay scales and the like. For example, section 14F (7) of the Children Act gives power to the Lord Chancellor or Secretary of State to make regulations dealing with the provision of support services to Special Guardians.
There are various procedures for exercising these delegated powers. The main method which you will see reference to is by Statutory Instrument (S.I.). Usually the S.I. must be laid before Parliament and they will not become law until a certain time has elapsed during which M.P.s can bring them up for discussion. In addition they will be considered by a committee who will also put them to Parliament for discussion in certain circumstances. In practice relatively few S.I.s are scrutinised in a public debate. Delegated legislation is sometimes referred to as subordinate or secondary legislation. S.I.s are often referred to as regulations : you may also see reference to Orders which are similar to S.I.s.
One vital difference between primary and secondary legislation is that an Act of Parliament cannot be questioned in the courts (although its meaning may be debated). That is to say, no matter how much the court might disapprove of the legislation or its effect in a particular case it must apply the law set down by Parliament. There is greater scope to argue about secondary legislation either on the grounds that the Secretary of State has acted outside the powers given to them in the Act (ultra vires) in making the regulations or on the grounds that the regulations are unreasonable or that there is a conflict with European Union law.
Each statutory instrument is allocated a number. The S.I. will be referred to by the year in which it was passed, followed by that number. For example, ‘Special Guardianship Regulations 2005′ (made under s. 14F of the Children Act 1989 referred to above) are known by the reference S.I. 2005/1109.
Statutory Instruments are also published on the Statute Law Database. They may also be found in public libraries and in the publications already referred to. There is usually a cross reference to any regulations that have been made in the footnote to the section giving power to make them. Copies of S.I.s can also be obtained from the Stationery Office Ltd.
Similar care needs to be taken as with statutes that the regulations have not been amended or indeed entirely superseded. This is what lawyers get paid for!
Case law
When judges make a decision in a particular case, their decision may become part of the body of the law (also known as precedent law). This will only happen if the decision concerns some point of principle which can be applied to other cases and is not just unique to the facts of the particular case. For example, sometimes the court has to decide what a word used in an Act of Parliament means in a particular context : a common example is the word ‘reasonable’ which has given rise to all sorts of legal arguments. Sometimes the courts has to decide when a particular body is liable to an individual for any acts of wrongdoing. For example, whether a school is responsible when a pupil runs into the road outside the school and gets run over.
Not all judicial decisions are equal. There is a hierarchy of courts. The lower courts are bound to follow the decisions of the higher courts but not the other way around. The decision of a magistrate or County Court Judge will not be binding on any other court (although it may still have some influence as ‘persuasive’ authority). The decision of a High Court Judge must be followed and applied by the lower courts but another High Court Judge can ignore it and make a different decision in similar circumstances. In the Court of Appeal judges sit in groups of two or three and their decisions must be followed by the courts below it but not by other benches of the Court of Appeal. It has been known for it to take years before a conflict of decisions is resolved because a case is taken as far as the House of Lords, the highest level of court which binds everyone else. Even the House of Lords can go back on its own decisions, although it rarely does so.
For case law relevant to family law in the UK the best places to look are:
http://www.familylawweek.co.uk