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 civil appeal court of the United Kingdom, 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 Common law can be amended or repealed by Parliament; murder, for example, now carries a mandatory life sentence rather than the death penalty.
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- Wales and Berwick Act 1746, section 3 (entire Act now repealed) formally incorporated Wales and Berwick-upon-Tweed into England.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, Scotland, their adjacent territorial waters and the islands of Orkney and Shetland, the Hebrides and, by virtue of the Island of Rockall Act 1972, Rockall. "United Kingdom" means Great Britain and Northern Ireland and their adjacent territorial waters, but not 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. "British Islands" – but not "British Isles" – means the United Kingdom, the Isle of Man and the Channel Islands.
Types of statute law
- Acts of the Old Irish Parliament
- Acts of the Scottish Parliament
- Acts of the United Kingdom Parliament
- Measures of the Northern Ireland Assembly
- Measures of the National Assembly for Wales
- Acts of the National Assembly for Wales
- Ministerial Order
- Northern Ireland Statutory Rules
- UK Statutory Instruments
Statutory law is referred to as "Title of Act Year", 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.
Since 1189, English law has been described as a common law rather than a civil law system; in other words, no major codification of the law has taken place and judicial precedents are binding as opposed to persuasive. This may be a legacy of the Norman conquest of England, when a number of legal concepts and institutions from Norman law were introduced to England. In the early centuries of English common law, the justices and judges were responsible for adapting the system of writs to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is the Law Merchant derived from the "Pie-Powder" Courts, named from a corruption of the French pieds-poudrés ("dusty feet") implying ad hoc marketplace courts. As the Parliament of England became ever more established and influential, legislation gradually overtook judicial law-making such that today, judges are only able to innovate in certain very narrowly defined areas.
One of the major challenges 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 roughly 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 (reason for decision) 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.
The influences are two-way.
- England exported English Common law and English Statute law to most parts of the British Empire, and many aspects of that system have survived after Independence or otherwise cessation of British rule. "English law" prior to the American Revolutionary Wars (American War of Independence) is still an influence on United States law, and provides the basis for many American legal traditions and policies. Many jurisdictions that have maintained the use of English Common law continue to incorporate modern developments of the Common law in England, and decisions from England are in many jurisdictions usually considered persuasive.
- For a number of jurisdictions within the Commonwealth of Nations, the Judicial Committee of the Privy Council in Britain remains the ultimate court of appeal in place of a local Supreme Court. The verdicts of the committee made before the change of jurisdiction remain binding legal precedent.
- Britain 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 Britain 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 Britain remains a strong international trading nation, international consistency of decision making is of vital importance, so Admiralty Law is strongly influenced by Public International Law and the modern commercial treaties and conventions regulating shipping.
Application to Wales
Unlike Scotland and Northern Ireland, Wales is not a separate jurisdiction within the United Kingdom. The customary laws of Wales within the Kingdom of England were abolished by King Henry VIII's Laws in Wales Acts which brought Wales into legal conformity with England. 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 British Parliament, or by Orders in Council given under the authority of the 2006 Act.
Between 1746 and 1967, any reference to England in legislation was deemed to include Wales. This ceased with the enactment of the Welsh Language Act 1967 and the jurisdiction is now commonly referred to as "England and Wales". Although devolution has accorded some degree of political autonomy to Wales in the National Assembly for Wales, it did not have the ability to pass primary legislation until the Government of Wales Act 2006 came into force after the 2007 Welsh general election. That said, the Welsh legal system remains English common law, in that 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.
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 and Wales should codify its criminal law in an English Criminal Code, but there has been no overwhelming support for this in the past.
Company and insolvency law
- Jurisdiction Of Courts In England And Wales And Their Recognition Of Foreign Insolvency Proceedings. Insolvency.gov.uk. Retrieved on 2013-02-03.
- There was originally a comma after the name of the Act, as is usual to separate a qualifier, but this has been dropped, yielding the more abrupt current form.
- Beale, Joseph H. (1935) A Treatise on the Conflict of Laws. ISBN ISBN 1-58477-425-8
- Dicey & Morris (1993). The Conflict of Laws 12th edition. London: Sweet & Maxwell Ltd. ISBN 0-420-48280-6
- Slapper, Gary; David Kelly (2008-07-15). The English Legal System. London: Routledge-Cavendish. ISBN 978-0-415-45954-9.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
- Barnett, Hilaire (2008-07-21). Constitutional & Administrative Law. London: Routledge-Cavendish. ISBN 978-0-415-45829-0.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>