The English legal system
The United Kingdom is divided into three main jurisdictions (or self-contained legal systems):
- England and Wales,
- Northern Ireland.
Each jurisdiction has its own laws, court system, lawyers and judges. However:
- Laws that apply in one jurisdiction, particularly if they are derived from legislation (Acts of Parliament and Statutory Instruments) may apply equally, or very similarly, in other jurisdictions.
- While the courts in each jurisdiction can decide cases differently from those in other jurisdictions, the final appeal for all of them goes to the UK Supreme Court.
Moreover, the process of devolution has resulted in variations between the laws of Wales and those of England, and even as between different regions in England. Acts of Parliament can take effect differently, or at different times, in different parts of the jurisdiction of England and Wales.
This article is mainly about the legal system of England and Wales, though there may be similarities with other jurisdictions.
Sources of law
Laws may be defined as the rules that govern the behaviour of human beings within a civilized society. Unlike scientific laws, which are discerned from observation of the material universe and are immutable (though our knowledge of them may change), legal laws are decided and declared by human beings, and may be changed by further human intervention. This is true whether the justification of the law is religious, philosophical or political.
Sources of law may be described as primary or secondary.
Primary source of law are
- Legislation (Acts of Parliament or statutes, statutory instruments, Orders in Council etc)
- Case law (decisions of the higher courts, or “courts of record”, which are binding on and must be followed and applied by less senior courts).
Secondary sources of law are
- textbooks and commentaries by legal writers,
- the opinions of legal experts, and
- decisions of the courts (of whatever seniority) of other (foreign) jurisdictions,
all of which are treated as “persuasive” and may be taken into account by a court when making a decision, though the court is not bound to do so.
Common law and statute
The common law is the law declared by judges, derived from custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called “common” because it applied equally across the whole country. The doctrine of binding precedent, whereby courts follow and apply the principles declared in previous cases decided by more senior courts, known as “courts of record”, is also known by the Latin expression “stare decisis”.
The common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
Common law rules may be superseded or replaced by legislation, which is said to “trump” or take precedence over the common law. Offences of theft, for example, based on the old common law offence of larceny, are now governed by the Theft Acts 1968, 1978 etc; and the original penalties for murder (though not the offence itself) were replaced by statutes such as the Homicide Act 1957.
There is a limit to the extent to which common law judges, however creative or “activist”, can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law. The need for such a change often follows a period of research and consultation by the Law Commission, which was set up to review and propose reform to old or inadequate laws.
Common law and Equity
The common law was historically administered in the king’s courts, and equity developed as a separate system of mainly discretionary remedies administered by the Lord Chancellor, often as a way of ameliorating the injustice done by inflexible rules of the common law. Equitable concepts such as trusts are now generally dealt with as part of the business of the Chancery Division in the High Court, but since the Judicature Acts of 1873-75, when the systems of law and equity were fused, they have no longer been treated as separate jurisdictions and both legal and equitable remedies can be provided in all the courts.
Civil law may be defined in opposition to three alternatives.
- Civil as opposed to criminal law.
- Civil in the sense of secular law, as opposed to ecclesiastical or other forms of religious law.
- Civil law as a legal system, based on a code of laws (such as the Code Napoleon developed in France), as opposed to the common law system, based on the doctrine of precedent.
The meaning thus depends on the context. A criminal case may be decided in a civil court if that court is a secular rather than a religious one or is the court of a continental legal system, such as that of France. But a civil court in the first sense, such as the Chancery Division of the High Court, is not going to hold a murder trial; instead, such a case would be heard in a criminal court, eg the Crown Court.
Some types of civil law
The law of contract is concerned with the formation and interpretation (or ‘construction’) of written or oral agreements between companies or individuals. A contract does not have to be written down to be a binding contract. Disputes over contracts may concern whether or not a contract ever came into existence, what its various terms and conditions actually meant, whether one party has broken (‘breached’) the contract and, if so, what remedy (such as damages, an injunction or specific performance) should be ordered.
A tort is a legal wrong. A claim based on a tort usually requires the claimant to establish that the defendant owed a ‘duty of care’ and that they broke that duty. Classic types of claim in tort are those based on negligence, nuisance, defamation, misuse of private information, etc. Sometimes a claim may involve both contract and tort, but a claim based in tort does not require there to be any contract between the parties, simply that one of them owed the other a duty. Such a duty may have been developed either at common law or under a statute.
Company law is concerned with the formation and regulation of companies and corporations, which are separate legal persons from the individuals who own them (usually by acquiring shares in the capital value of the company), known as ‘members’, and those who manage and direct their activities, known as ‘directors’. When a company’s debts exceed its income and capital it becomes insolvent, and may be put into administration or, eventually, wound up altogether. There may be claims by different classes of creditor and regulatory proceedings may be taken against the directors. Company law covers all these matters.
Revenue law deals with disputes over the assessment of taxes and duties levied on organisations and individuals by the government. Types of tax include income tax, corporation tax, capital gains tax, inheritance tax, VAT etc are all covered. Revenue law is so called after the Inland Revenue department, now merged with Customs and Excise (responsible for levying duties such as import duty, excise duty etc) to form Her Majesty’s Revenue and Customs (HMRC).
Intellectual property law
IP law as it is often called is concerned with rights and duties relating to patents, designs, copyright and trade marks. Patents protect scientific inventions which often have an industrial or commercial value. Design rights protect the commercial value of a product’s design. Copyright is concerned with artistic works, whether written, composed or created in some other artistic way (thus a painting or illustration would generally be protected by copyright rather than a design right). Trade marks protect the identity and reputation of businesses. Claims for ‘passing off’ (where a business passes itself or its products off as being those of another business) are also considered part of intellectual property law. Some intellectual property rights have to be registered before they can be enforced but others do not. Disputes may arise over whether a person was entitled to register the right and whether such registration was valid.
Media and communications law
Media law deals with disputes over the regulation of and the content published or broadcast by media organisations and individuals (such as journalists) who generate that content. Information law is concerned with rights (such as Freedom of Information) and duties (such as data protection) relating to information. Communications law includes telecommunications, the internet and social media, though there is considerable overlap with media and information law. They are all among the types of business dealt with by the Media and Communications List in the Queen’s Bench Division.
Family law and the Court of Protection
Family law is concerned with marriage and divorce, children, and matrimonial finance. Some issues involving children are described as private law cases, because they only involve private individuals (usually the parents or guardians) but other disputes, such as care proceedings involving the local authority and other parties, are described as public law cases.
Cases involving children may relate to medical treatment for which, by virtue of their age, or lack of capacity, they are unable to provide consent. Similar cases involving adults lacking capacity are dealt with by the Court of Protection, which also deals with administrative issues such as where an adult lacking capacity should live and decisions about their financial affairs.