The Dynamics of Common Law and Statute in English Law: One Coherent System?

Historically, English courts have tended to view legislation as an unwelcome incursion into the domain of the common law, which was seen as the primary source of law. The growth of statutory regulation means this attitude is now untenable in many areas, and that new understandings of the interaction and relationship between common law and statute are required. This paper maps out the various dynamics of the relationship between common law and statute, which include legislation acting as a catalyst and constraint for the common law, and argues that the courts now aim to interpret and develop the common law and legislation as a single coherent system. Given this, it then goes on to identify the relevant factors and considerations which should be used by the courts to determine the applicable dynamic between common law and legislation under this approach.

Silent Prologues: the role of General Jurisprudence in Mapping the Intersection of Statute and Common Law

In recent years, the principle of legality has received renewed focus in recent years. In this paper, I argue that because the principle of legality is a tool for working out what the law is, any theory that seeks to justify or censure the principle must include a further theory about what makes the law what it is. In other words, it must be premised on a theory of general jurisprudence. The theory of general jurisprudence that makes the best sense of the principle of legality, I argue, is an anti-positivist one that views legal rights as genuine moral rights. More specifically, I argue that the principle of legality is best explained and justified with reference to Ronald Dworkin’s principle of ‘integrity’. This account explains and justifies key features of the principle of legality that other theories struggle to account for, and can act as a roadmap for its future development.

The Horizontal Effect of Human Rights in the UK after the Removal of the EU Charter of Fundamental Rights

In the United Kingdom, the constitutional conversation about horizontal effect (i.e. the application of fundamental rights to disputes between private parties) is far from novel. However, over the last decade, the horizontality principle has undergone significant changes in its reach and remedial implications, through human rights litigation before UK courts under the EU Charter of Fundamental Rights. The European Union (Withdrawal) Act 2018 now purport to remove these changes by limiting the possibility of continued reliance on the direct horizontal effect of EU human rights law. This article analyses the implications of these limitations to horizontal effect. It argues that the EUWA recreates a conceptually problematic gap between the EU and ECHR streams of rights protection in horizontal disputes in UK law. At the same time however, it should not be seen as succeeding in substantively reducing the reach of horizontality to its pre-Charter iteration in respect of all rights.