Gavin Howe
The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. The common law of England, which was largely created after the Norman Conquest of 1066, has been administered by the common-law courts of England since the Middle Ages. It is a body of customary law based on judicial decisions and embodied in reports of decided cases. Common law forms the basis of the legal systems of many countries that were formerly colonized by England, Great Britain, or the United Kingdom, including the United States, Australia, and India.
| Characteristics | Values |
|---|---|
| Common law in Britain | Administered in the king's courts since the Middle Ages |
| Developed through judicial decisions and embodied in reports of decided cases | |
| Exported to colonies of the British Empire | |
| Influenced by Roman Law | |
| Influenced the legal systems of the United States, India, Ghana, and many other countries | |
| The principle of stare decisis ("to stand by things decided") is a key aspect of Britain's common law | |
| The Human Rights Act of 1998 defines the rights and freedoms afforded to defendants |
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What You'll Learn
Influence on former colonies
The British exported common law to its colonies, and it formed the basis of jurisdiction in all three types of direct colonial holdings. Common law was exported to North America, South Africa, Australia, Asia, and Africa. English law was adapted to local colonial circumstances, for example, in North America, the importation of African slaves required the implementation of European-designed laws regulating master-slave relations. In Australia, colonizers adopted the practice of terra nullius, thus not recognizing native claims to land and securing European land titles.
Many former colonies have continued to use common law post-independence, including Ghana, which has enshrined the common law system inherited from Britain in its 1992 Constitution. India, another former British colony, derives most of its modern judicial framework from the British legal system. Other former colonies that continue to use common law include the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other Commonwealth countries.
However, some former colonies have made changes to their legal systems post-independence. For example, the British Dominions, including New Zealand, eventually established their own local supreme courts, moving away from using London's Privy Council as their final appeal court. Similarly, while English law influenced American law, the United States now has its own state supreme courts with final appellate jurisdiction, resulting in the development of state common law.
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The role of the monarch
The British Monarchy, also referred to as the constitutional monarchy, is the form of government used by the United Kingdom. The current monarch is King Charles III, who ascended the throne after the death of Queen Elizabeth II, his mother.
The monarch is the head of state and the head of the nation. While the monarch has authority over the government, this power is limited and may only be used according to laws enacted in Parliament and within constraints of convention and precedent. The monarch's role is largely ceremonial, and they serve as a figurehead for the nation. The monarch acts as a focus for national identity, unity, and pride, giving a sense of stability and continuity. They officially recognize success and excellence and support the ideal of voluntary service. The monarch also has a constitutional role, which includes functions such as appointing the Prime Minister and other ministers, opening new sessions of Parliament, and giving royal assent to bills passed by Parliament. The monarch also makes a host of other appointments, such as senior judges and archbishops, but in all these duties, they act on the advice of the government.
The monarch also has a diplomatic role, promoting British interests and values abroad, increasing tourism, and promoting charities throughout civil society. The monarch undertakes various official, ceremonial, and representational duties, supported by their immediate family.
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Jury trials
The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Scotland and Northern Ireland have separate legal systems from England and Wales, but both are considered mixed systems of law.
England exported its common law and statute law to most parts of the British Empire. Many aspects of that system have survived after independence from British rule, and the influences are often reciprocal. Jury trials in criminal cases were a protected right in the original United States Constitution, and the Fifth, Sixth, and Seventh Amendments of the U.S. Constitution extend the right to a jury trial for both criminal and civil matters.
In England and Wales, all common law civil cases were tried by a jury until juryless trials were introduced in the new county courts in 1846. The perceived success of this system, together with increasing recognition of the integrity of judges and the professionalisation of legal institutions, meant that when the Common Law Procedure Act 1854 gave litigants in the Queen's Bench the option of a trial by judge alone, there was a steady uptake. Over the next eighty years, the use of juries in civil trials steadily declined. By 1998, fewer than 1% of civil trials in England and Wales were jury trials, and these were principally defamation cases.
In England and Wales, a jury panel is summoned from British, Irish, Commonwealth, and European Union citizens on the parliamentary or local government Electoral Register, aged 18 to 75 (although people aged over 70 can ask to be excused from serving), ordinarily resident in the UK, Channel Islands, or the Isle of Man for any period of at least five years since the age of 13. Those who are liable to be detained under the Mental Health Act 1983 or who lack mental capacity are disqualified, as are those currently on bail.
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The legal system in Scotland
The United Kingdom comprises three distinct legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Scotland has retained a separate legal system from England and Wales, despite sharing a legislature since the Union with England Act in 1707. Scots law is a hybrid or mixed legal system containing civil law and common law elements, with roots in various historical sources.
Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. The Scottish Parliament passes legislation on all areas of devolved responsibility, while the United Kingdom Parliament handles reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still valid today. Early Scots law, before the 12th century, consisted of the different legal traditions of the various cultural groups inhabiting the country, including the Gaels, Britons, Anglo-Saxons, and Norse.
Scotland's legal system has been influenced by Roman law, particularly after the 15th century, when Roman law was often adopted in court arguments. However, Scotland did not separate the administration of equity and law, resulting in a different conception of equity from the English system. The Scottish system is characterised by a focus on principles rather than precedent.
The Scottish court system is distinct from the English one and more closely resembles the continental pattern. The supreme Scottish court is the Court of Session, established in 1532, which has original jurisdiction in a broad range of cases and exclusive jurisdiction in a few matters. The Court of Session also serves as an appellate court, hearing appeals from the nine Court of Session courts of first instance, known as the Outer House.
The lower civil court in Scotland is the sheriff court, dating back to the 12th century. Scotland is divided into several sheriffdoms, each with its own sheriff-principal and full-time sheriffs. These courts handle both civil and criminal cases. In civil cases, the sheriff usually decides alone, while in criminal cases, the accused is tried by a jury of 15.
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The impact of EU law
The UK's legal system has been influenced by its historical use of common law, which forms the basis of its legal system, as well as its former membership in the European Union.
The UK's relationship with the EU has had a significant impact on its legal system, particularly in areas such as trade, agriculture, financial services, and the environment. Since joining the European Community (EC) in 1973, the UK has introduced over 52,741 laws as a result of EU legislation. These laws cover a wide range of areas, including trade agreements, environmental regulations, and employment rights.
One of the key ways in which EU law has influenced UK law is through the process of legislative adoption. As a member of the EU, the UK was required to adopt EU directives and regulations into its own legal system. This process involved either incorporating EU laws directly into UK law or passing new legislation to align with EU requirements. This process of legislative adoption ended when the UK formally left the EU on 31 December 2020, with the repeal of the European Communities Act 1972.
However, the impact of EU law in the UK did not end with Brexit. The UK and the EU negotiated a withdrawal agreement that included provisions for the ongoing application of EU law in certain areas. For example, the Northern Ireland Protocol allows for the continued application of EU legislation in Northern Ireland to maintain cooperation with the Republic of Ireland and avoid a hard border. Additionally, the UK's trade agreements with the EU may require ongoing adherence to relevant EU laws, similar to the arrangements of non-member states like Switzerland and Norway.
The UK government has also taken steps to retain and revoke EU laws domestically. The European Union (Withdrawal) Act 2018 provided for the retention of EU laws in UK domestic law, with any remaining rights and obligations continuing to be recognized. However, the government has since proposed revoking many of these retained EU laws, with at least 600 pieces of legislation set out in a revocation schedule. This has raised concerns about the potential loss of established rights, such as holiday pay, and the impact on the UK's relationship with the EU, particularly in the legal services sector.
The removal of EU laws could also lead to increased litigation as parties seek to overturn previous rulings based on EU case law. Additionally, the proposed changes to the way courts can depart from retained EU case law may result in a rapid and large-scale change to existing laws, impacting legal clarity and certainty for individuals and businesses.
In conclusion, the UK's relationship with the EU has had a significant and lasting impact on its legal system. While some EU laws have been retained or continue to apply in specific contexts, the UK's departure from the EU has initiated a complex process of negotiating and redefining the future relationship between the two legal systems.
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Frequently asked questions
Yes, common law is used in Britain. Common law is the law declared by judges, derived from custom and precedent.
Common law in Britain is said to have originated with the legal reforms of King Henry II in the 12th century. It is also believed that the common law of England was largely created in the period after the Norman Conquest of 1066.
Britain's common law has influenced the legal systems of its former colonies, including the United States, India, Ghana, and many other English-speaking or Commonwealth countries.
The United States' tort system, jury trials, and presumption of innocence in criminal justice are all influenced by Britain's common law and legal system.
