English law is the
legal system of
England and Wales,[1]
and the basis of
common
law[2]
legal systems in the
Republic of Ireland,
Commonwealth countries[3]
and the
United States.
English law in its strictest sense applies within the
jurisdiction of
England and Wales. While
Wales now
has a devolved
Assembly, any legislation which that Assembly passes is enacted in
particular circumscribed policy areas defined by the
Government of Wales Act 2006, other legislation of the
Parliament of the United Kingdom, or by
Orders in Council given under the authority of the 2006 Act.
Furthermore that legislation is, as with any by-law made by any other
body within England and Wales, interpreted by the undivided judiciary of
England and Wales.
The essence of English common law is that it is made by
judges
sitting in
courts, applying
legal precedent (stare
decisis) to the facts before them. A decision of the
Supreme Court of the United Kingdom, the highest
appeal court in England and Wales, is binding on every other
court. For example,
murder is a common law crime rather than one established by an Act
of Parliament. Common law can be amended or repealed by Parliament;
murder, for example, now carries a mandatory life sentence rather than
the
death penalty. English courts recognise the primacy of statute law
over common law where the two overlap.[4]
England and Wales as a distinct jurisdiction
The
United Kingdom is a state consisting of three legal
jurisdictions:
England and Wales,
Scotland and
Northern Ireland. The formerly separate jurisdiction of
Wales was
absorbed into the
Kingdom of England by
King Henry VIII. The difference between the United Kingdom and the
different jurisdictions within it is relevant for matters such as the
distinction between
nationality and
domicile. Thus, an individual would have a
British nationality and a domicile in one of the constituent states,
the latter law defining all aspects of a person's
status and
capacity. Dicey and Morris (p26) list the separate states in the
British Islands. "England,
Scotland,
Northern Ireland, the
Isle of Man,
Jersey,
Guernsey,
Alderney, and
Sark. . .
is a separate country in the sense of the
conflict of laws, though not one of them is a State known to public
international law." But this may be varied by statute. The United
Kingdom is one state for the purposes of the
Bills of Exchange Act 1882.
Great Britain was a single state for the purposes of the
Companies Act 1985. Traditionally authors referred to the legal unit
or state of
England and Wales as England, although in recent decades this usage
has increasingly become politically and culturally unacceptable.
Wales
Although
devolution has accorded some degree of political autonomy to
Wales in
the
National Assembly for Wales, it did not have
sovereign law-making powers until after the
2007 Welsh general election when the
Government of Wales Act 2006 granted powers to the
Welsh Government to enact some
primary legislation. The legal system administered through both
civil and criminal courts remains unified throughout
England and Wales. This is different from the situation of
Northern Ireland, for example, which did not cease to be a distinct
jurisdiction when its legislature was suspended (see
Northern Ireland (Temporary Provisions) Act 1972).
A major difference is also the use of the
Welsh language, as laws concerning it apply in Wales and not in the
rest of the
United Kingdom. The
Welsh Language Act 1993 is an Act of the Parliament of the United
Kingdom, which put the Welsh language on an equal footing with the
English language in Wales with regard to the public sector. Welsh may
also be spoken in Welsh courts.
Since 1967 most lawyers have referred to the legal system of England
and Wales as "the Laws of England and Wales" following the
Welsh Language Act 1967 as may be seen by looking at the applicable
law section of most commercial agreements from these countries. Before,
from 1746–1967 this was not necessary (see below) but may have been done
quite often nonetheless.
Statute law
Statutory
framework
The first schedule of the
Interpretation Act 1978, defines the following terms: "British
Islands", "England", and "United Kingdom". The use of the term "British
Isles" is virtually obsolete in statutes and, when it does appear,
it is taken to be synonymous with "British Islands". For interpretation
purposes, England includes a number of specified elements:
-
Wales and Berwick Act 1746, section 3 (entire Act now repealed)
formally incorporated Wales and
Berwick-upon-Tweed into England. But section 4
Welsh Language Act 1967 provided that references to England in
future Acts of Parliament should no longer include Wales (see now
Interpretation Act 1978, Schedule 3, part 1). But Dicey & Morris say
(at p28) "It seems desirable to adhere to Dicey's [the original]
definition for reasons of convenience and especially of brevity. It
would be cumbersome to have to add "or Wales" after "England" and
"or Welsh" after "English" every time those words are used."
- the "adjacent islands" of the
Isle of Wight and
Anglesey are a part of England and Wales by custom, while
Harman v Bolt (1931) 47 TLR 219 expressly confirms that
Lundy
is a part of England.
- the "adjacent territorial waters" by virtue of the Territorial
Waters Jurisdiction Act 1878 and the Continental Shelf Act 1964 as
amended by the Oil and Gas Enterprise Act 1982.
"Great Britain" means England, Wales, and Scotland including its
adjacent territorial waters and the islands of
Orkney
and
Shetland, the
Hebrides, and
Rockall
(by virtue of the Island of Rockall Act 1972). The "United Kingdom"
means Great Britain and Northern Ireland and their adjacent territorial
waters. It does not include the Isle of Man, nor the
Channel Islands, whose independent status was discussed in Rover
International Ltd. v Canon Film Sales Ltd. (1987) 1 WLR 1597 and
Chloride Industrial Batteries Ltd. v F. & W. Freight Ltd. (1989) 1
WLR 823. The "British Islands" means the "United Kingdom", the Isle of
Man, and the Channel Islands.
Types of Statute
law
Citation style
Main article:
Short titleStatutory law is referred to as "Title of Act Year",[5]
where the title is the "short
title", and ends in "Act", as in "Interpretation Act 1978". Compare
with American convention, which includes "of", as in "Civil
Rights Act of 1964".
This became the usual way to refer to Acts in the second half of the
19th century, starting in the 1840s; previously Acts were referred to by
their
long title together with the
regnal year of the
parliamentary session in which they received
Royal Assent, and the chapter number. For example, the
Pleading in English Act 1362 was referred to as 36 Edw. III c.
15, meaning "36th year of the reign of
Edward III, chapter 15", though in the past this was all spelt out,
together with the long title.
Common law
Since 1189, English law has been described as a
common law rather than a
civil law system (i.e. there has been no major
codification of the law, and
judicial precedents are binding as opposed to persuasive). This may
have been due to the
Norman conquest of England, which introduced a number of legal
concepts and institutions from
Norman law into the English system. In the early centuries of
English common law, the justices and
judges
were responsible for adapting the
Writ system
to meet everyday needs, applying a mixture of precedent and common sense
to build up a body of internally consistent law, e.g., the
Law Merchant began in the Pie-Powder Courts (a corruption of the
French "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace
courts). As
Parliament developed in strength
legislation gradually overtook judicial law making so that, today,
judges are only able to innovate in certain very narrowly defined areas.
Time before 1189 was defined in 1276 as being
time immemorial.
Precedent
One of the major problems in the early centuries was to produce a
system that was certain in its operation and predictable in its
outcomes. Too many judges were either partial or incompetent, acquiring
their positions only by virtue of their
rank in
society.
Thus, a standardised procedure slowly emerged, based on a system termed
stare decisis which basically means "let the decision stand". The
doctrine of precedent which requires similar cases to be adjudicated in
a like manner, falls under the principle of stare decisis. Thus, the
ratio decidendi of each case will bind future cases on the same
generic set of facts both horizontally and vertically in the court
structure. The highest appellate court in the UK is the
Supreme Court of the United Kingdom and its decisions are binding on
every other court in the hierarchy which are obliged to apply its
rulings as the law of the land. The
Court of Appeal binds the lower courts, and so on.
Overseas
influences
The influences are two-way.
- The United Kingdom exported the English legal system to the
Commonwealth countries during the
British Empire, and many aspects of that system have persisted
after the British withdrew or granted independence to former
dominions. English law prior to the Wars of Independence is still an
influence on
United States law, and provides the basis for many
American legal traditions and policies. Many states that were
formerly subject to English law (such as
Australia) continue to recognize a link to English law—subject,
of course, to statutory modification and judicial revision to match
the law to local conditions—and decisions from the English law
reports continue to be cited from time to time as persuasive
authority in present day judicial opinions. For a few states, the
Judicial Committee of the Privy Council remains the ultimate
court of appeal. Many
jurisdictions which were formerly subject to English law (such
as
Hong Kong) continue to recognise the common law of England as
their own—subject, of course, to statutory modification and judicial
revision—and decisions from the
English Reports continue to be cited from time to time as
persuasive authority in present day judicial opinions.
- The UK is a
dualist in its relationship with international law, i.e.,
international obligations have to be formally incorporated into
English law before the courts are obliged to apply
supranational laws. For example, the
European Convention on Human Rights and Fundamental Freedoms was
signed in 1950 and the UK allowed individuals to directly petition
the
European Commission on Human Rights from 1966. Now s6(1)
Human Rights Act 1998 (HRA) makes it unlawful "... for a public
authority to act in a way which is incompatible with a convention
right", where a "public authority" is any person or body which
exercises a public function, expressly including the courts but
expressly excluding Parliament. Although the European Convention has
begun to be applied to the acts of non-state agents, the HRA does
not make the Convention specifically applicable between private
parties. Courts have taken the Convention into account in
interpreting the common law. They also must take the Convention into
account in interpreting Acts of Parliament, but must ultimately
follow the terms of the Act even if inconsistent with the Convention
(s3 HRA).
- Similarly, because the UK remains a strong international trading
nation, international consistency of decision making is of vital
importance, so the Admiralty is strongly influenced by
Public International Law and the modern commercial
treaties and conventions regulating shipping.
Subjects and links
Criminal law
English criminal law derives its main principles from the
common law. The main elements of a crime are the
actus reus (doing something which is criminally prohibited) and
a
mens rea (having the requisite criminal state of mind, usually
intention or
recklessness). A prosecutor must show that a person has
caused the offensive conduct, or that the culprit had some
pre-existing duty to take steps to avoid a criminal consequence. The
types of different crimes range from those well known ones like
manslaughter,
murder,
theft and
robbery to a plethora of regulatory and statutory offences. It is
estimated that in the UK, there are 3,500 classes of criminal offence.
Certain defences may exist to crimes, which include
self-defence,
intention,
necessity,
duress, and in the case of a murder charge, under the Homicide Act
1957,
diminished responsibility,
provocation and, in very rare cases, survival of a
suicide pact. It has often been suggested that England should codify
its criminal law in an
English Criminal Code, but there has been no overwhelming support
for this in the past.
Constitutional law
Administrative law
Family law
Tort
Contract
Property
Trusts
Labour law
Evidence
Miscellaneous
See also