Sources of Law in England and Wales for SQE1
The Legal System > Sources of Law in England and Wales
Knowing where English law comes from is essential context for almost every SQE1 topic. Sources of law questions test your ability to rank authorities, understand parliamentary sovereignty, and identify which source takes priority in a given situation.
What Are the Sources of Law in England and Wales?
SQE1 examiners frequently test whether candidates can correctly rank competing sources of law and understand that parliamentary sovereignty means courts cannot strike down primary legislation—even if it conflicts with human rights. The law of England and Wales is derived from several sources. The principal sources are legislation (Acts of Parliament and delegated legislation) and case law (judicial decisions that establish precedent). Other sources include retained EU law (preserved after Brexit under the European Union (Withdrawal) Act 2018), the European Convention on Human Rights (incorporated via the Human Rights Act 1998), custom, and works of authority.
Parliament is sovereign, meaning that primary legislation (statute) is the highest domestic source of law and cannot be struck down by the courts.
Key Principles for SQE1
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Primary legislation: Acts of Parliament—the supreme source of domestic law due to parliamentary sovereignty.
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Delegated (secondary) legislation: statutory instruments, orders in council, and by-laws made under powers granted by a parent Act.
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Case law: judicial decisions that create binding precedent through the doctrine of stare decisis. The rules governing which precedents are binding depend on the court hierarchy.
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Retained EU law: EU legislation and case law that became part of domestic law after Brexit; it can be amended or repealed by Parliament. This is distinct from delegated legislation, which is secondary legislation made under powers granted by primary legislation.
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Human Rights Act 1998: requires courts to interpret legislation compatibly with Convention rights where possible (section 3) and allows a declaration of incompatibility (section 4) where this is not possible.
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Custom: historically a source of law, but rarely relevant today; a custom must be certain, reasonable, continuous, and exercised as of right.
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Works of authority: academic texts that may be persuasive (e.g., Blackstone's Commentaries) but are never binding.
How This Appears in SQE1 Questions
This is a classic SQE1 trap. Questions on this topic often ask you to identify the highest authority in a conflict between sources—for instance, whether a statutory provision takes priority over a common-law rule. Another common pattern involves retained EU law and whether it can be modified by secondary legislation. Watch for traps that suggest the courts can strike down an Act of Parliament—under parliamentary sovereignty, they cannot.
Quick Example Scenario
A recent Act of Parliament introduces a strict liability offence for environmental pollution. An older Court of Appeal decision established that liability for the same type of pollution requires proof of negligence. A factory is prosecuted under the new Act. Which source of law prevails?
The Act of Parliament prevails. Under parliamentary sovereignty, statute is the highest domestic source of law and overrides inconsistent common-law rules. The Court of Appeal decision is effectively superseded by the new legislation.
Common Mistakes Students Make
- Suggesting that courts can invalidate an Act of Parliament—they cannot; parliamentary sovereignty prevents this.
- Confusing retained EU law with directly applicable EU law (which no longer applies post-Brexit).
- Overlooking section 3 of the Human Rights Act 1998 and its interpretive obligation.
- Treating works of authority as binding rather than merely persuasive.
Quick Summary
- Parliamentary sovereignty: primary legislation (Acts of Parliament) is the highest domestic source of law and cannot be struck down by courts
- Primary legislation (Acts of Parliament): the supreme source of domestic law; overrides all other domestic sources
- Delegated/secondary legislation: statutory instruments, orders in council, by-laws made under powers from parent Acts; can be challenged as ultra vires
- Case law: judicial decisions creating binding precedent through stare decisis (courts must follow earlier decisions of higher courts)
- Retained EU law: EU legislation and case law preserved as domestic law after Brexit; can be amended or repealed by Parliament
- Human Rights Act 1998: s.3 requires courts to interpret legislation compatibly with Convention rights where possible; s.4 allows declaration of incompatibility if not possible
- Courts cannot invalidate an Act of Parliament even if incompatible with human rights; they can only issue a declaration of incompatibility
- Custom: historically a source of law but rarely relevant today; must be certain, reasonable, continuous, and exercised as of right
Exam tip
Watch for questions that suggest courts can strike down an Act of Parliament. Under parliamentary sovereignty, they cannot—even if they find the law incompatible with human rights, they can only issue a declaration of incompatibility.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A Crown Court judge is hearing a fraud trial. The defence counsel has cited a Court of Appeal decision from 2018 in which the court held that evidence obtained by a private investigator through deception was admissible because the investigator was not acting as an agent of the state. In that case, the private investigator had been hired by an insurance company and had posed as a potential customer to gather evidence of fraud. In the present case, the evidence was obtained by a private investigator hired by the police to conduct surveillance on the defendant. The investigator posed as a business associate and recorded conversations with the defendant. The police had provided the investigator with specific instructions about what information to obtain. The prosecution argues that the 2018 decision supports admissibility because the investigator was a private individual, not a police officer. The defence argues that the 2018 decision can be distinguished because the investigator in the present case was effectively acting as an agent of the state. The judge has also been referred to an obiter comment in a Supreme Court decision suggesting that private investigators acting under police direction should be treated as state agents for the purposes of admissibility.
Which of the following best describes the judge's options in relation to the 2018 Court of Appeal decision?
Question 2
Scenario
The Court of Appeal is hearing an appeal in a contractual dispute. The appellant argues that a previous Court of Appeal decision from 2015 on the interpretation of exclusion clauses should not be followed. The appellant has identified three grounds on which the court should depart from the 2015 decision. First, the appellant argues that the 2015 decision conflicts with a later Supreme Court decision from 2019 on a related but not identical point concerning the construction of commercial contracts. Second, the appellant argues that the 2015 decision was given per incuriam because the court was not referred to a relevant statutory provision. Third, the appellant argues that there are two conflicting Court of Appeal decisions on the same point and the court must choose between them. The respondent argues that the Court of Appeal is strictly bound by its own previous decisions and that none of the exceptions to this rule apply in the present case. The respondent particularly challenges the first ground, arguing that the Supreme Court decision concerns a different point and does not conflict with the 2015 decision.
Under which of the following circumstances may the Court of Appeal depart from its own previous decision, as established in Young v Bristol Aeroplane Co?
Question 3
Scenario
A property developer is prosecuted under a new environmental protection statute for depositing construction waste on a site without the required permit. The statute provides that 'any person who deposits controlled waste on land without a permit issued under this Act commits an offence'. The developer instructed a licensed waste contractor to remove the waste from the construction site and dispose of it lawfully. Unknown to the developer, the contractor instead deposited the waste on an unauthorised site. The prosecution argues that the developer is strictly liable because the statute does not require proof of knowledge or intent. The developer argues that the court should presume that Parliament intended a mental element to be required for the offence. The developer has operated in the construction industry for 22 years and has never previously been the subject of enforcement proceedings. The unauthorised site is located four miles from the developer's construction site. The developer's solicitor argues that the presumption against strict liability should apply. The prosecution responds that the presumption is rebutted by the statutory language.
Which of the following best describes how the court should approach the question of whether the presumption against strict liability applies?
Practice with full exam-style questions
Related Topics
- SQE1 The Legal System: Complete Guide
- Delegated Legislation for SQE1
- Statutory Interpretation Rules for SQE1
- Precedent in English Law for SQE1
Practise Sources Of Law In England And Wales Questions for SQE1
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