The English Legal System October 2019

Julian Lonbay
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The legal system of

England and Wales Lecture 2
Sources of Law

Legal Skills and Methods (LSAM)

Julian Lonbay LEGAL SKILLS AND METHODS
Birmingham Law School

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Introduction Looking at the UK

• The British Isles
• Great Britain (1707)
o This lecture will cover: • United Kingdom of Great
Britain and Ireland (1801)

– Categories of law • United Kingdom of Great

Britain and Northern Ireland
– Legal systems explained (1922)

o Explain the types of legal system that exist

o Explain the legal systems in the UK

– with a focus on that in England and Wales

– Outline the domestic sources of law in England and Wales

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The English Legal System October 2019

Introduction to the Common Law

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Magna Carta 1215 R (Unison) v Lord Chancellor [2017] UKSC 51

No free man shall be seized or imprisoned, or stripped of his
rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force
against him, or send others to do so, except by the lawful
judgment of his equals or by the law of the land. To no one will
we sell, to no one deny or delay right or justice.
See the British Library copy at http://www.bl.uk/treasures/magnacarta/index.html
See FT http://www.ft.com/cms/s/2/41dcbb78-ea16-11e2-913c-
00144feabdc0.html#ixzz2g66UpWPV
o Lord Reed: §66 et seq on the rule of law
§68. At the heart of the concept of the rule of law is the idea that society is
governed by law. Parliament exists primarily in order to make laws for society in this
country. Democratic procedures exist primarily in order to ensure that the Parliament
which makes those laws includes Members of Parliament who are chosen by the
people of this country and are accountable to them. Courts exist in order to ensure that
the laws made by Parliament, and the common law created by the courts themselves,
are applied and enforced. That role includes ensuring that the executive branch of
government carries out its functions in accordance with the law. In order for the courts
to perform that role, people must in principle have unimpeded access to them. Without
such access, laws are liable to become a dead letter, the work done by Parliament
may be rendered nugatory, and the democratic election of Members of Parliament may
become a meaningless charade. That is why the courts do not merely provide a public
service like any other.
o §74 et seq.
o See Mark Elliot’s blog at https://publiclawforeveryone.com/2017/07/26/unison-in-the-supreme-court-
employment-fees-constitutional-rights-and-the-rule-of-law/

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R (on the application of Miller) (Appellant) v The

Prime Minister (Respondent) (24 September 2019) Classifications of Law - terminology
§32. Two examples will suffice to illustrate the point. The
17th century was a period of turmoil over the relationship between o Legislation // Case law
the Stuart kings and Parliament, which culminated in civil war. That o Common Law // Legislation
political controversy did not deter the courts from holding, in o Civil Law // Criminal Law
the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to o Private Law // Public Law
alter the law of the land by the use of the Crown’s prerogative o Common Law // Equity
powers was unlawful. The court concluded at p 76 that “the King o Domestic Law // International law
hath no prerogative, but that which the law of the land allows him”, o European Law // International law
indicating that the limits of prerogative powers were set by law and
o Common Law // Civil Law
were determined by the courts. …
o

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Legislation // Case law

Common Law // Legislation
Common Law // Parliamentary law
o What is legislation? o Common law is the law laid down by judges in cases under
– The European Union (Withdrawal) Act 2018 the doctrine of precedent.
https://services.parliament.uk/bills/2017-
19/europeanunionwithdrawal.html o Legislation is the law as made by Parliament (or other law-
making body) in statutes.
o What is case law?

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Criminal Law // Civil Law Private Law // Public Law

o Civil law is the law that is applied to interactions between o Private law is the law that relates to individuals.
people.
– Action brought by individual party (Claimant)
o Public law is the law that relates to the relations between the
– Lower burden of proof State and the individual
o Criminal law is the law that deals with violations of the rules of
– Encompasses Criminal Law but is broader
the State
– Action brought by the government (Crown) – Includes human rights and other claims
– Higher burden of proof

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Common Law // Equity From Slapper & Kelly

o Common law is the historic set of very strict and rigid rules in the
English Legal system.

o Equity was the more flexible system developed to deal with gaps
‘at law’.
– Required that the party have ‘clean hands’

o Equity and common law were ‘fused’ in 1873.

– Equity remains in some of the remedies still available

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Domestic // International law

o Domestic Law – the law of a country or State

o International Law – A law that operates between States

QUESTIONS?

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European Law: EU Law // ECHR law

o Law that has developed through the European Union
Classifications of Law
– Includes: o Legislation // case law
o European Union law
o Common Law // Legislation
– including general principles developed by the Court of
o Civil Law // Criminal Law
Justice of the EU o Private Law // Public Law
o Common Law // Equity
o Law developed by other European Treaties under the Council o Domestic // International law
of Europe (Strasbourg) o European Law // international law
– E.g. Decisions of the European Court of Human Rights o Common Law // Civil Law
taken under the European Convention on Human Rights
(ECHR)
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Common Law // Civil Law Rough legal systems map

o Common law is the system in use in England and Wales. In this
type of legal system, judges create precedents via cases which
helps the law to develop.
o Civil law is the system in place in many continental countries. It is
based upon Roman law and is much more dependent on
comprehensive codes.
o Personnel of the law reflect the differences
o A useful and interesting account of the differences between the
common law and equity can be found in: Wilson et al (2013),
chapter 2, pp 25-28.

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What are the sources of law? The hierarchy

oPrimary sources o European Union Law

– Our courts currently recognise that EU law prevails over UK
oSecondary sources legislation
oA hierarchy of norms o Domestic Legislation
– Statutes (Acts, enactments)
Delegated legislation (Statutory instruments / regulations
o

/ Orders in Council)
– Case law

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Parliament
o In the UK this is the apex institution
– Parliamentary legislation can change any law
o Primary and secondary legislation

– Judges can interpret but not overrule legislation

– Judges can check the correct exercise of prerogative powrs
o EU law can prevail over Parliamentary law, but Parliament can repeal
our adhesion to the EU – The European Union (Withdrawal) Act 2018
https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted
CONCLUSIONS

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Acknowledgments
o https://static.diffen.com/uploadz/c/c3/legal-systems.jpg

QUESTIONS?

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