Keith Mack
The United Kingdom is a constitutional monarchy with three distinct legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Each of these jurisdictions has its own unique legal system, with England and Wales operating under a common law system. This system, built upon case law, gives significant weight to judicial precedent and the style of reasoning inherited from the English legal system. The common law of England and Wales includes both substantive rules, such as the offence of murder, and procedural ones, like court procedure rules. While Scotland and Northern Ireland have separate legal systems, they share the Supreme Court with England and Wales for civil cases, and the decisions of this court are binding across all three jurisdictions.
| Characteristics | Values |
|---|---|
| Number of jurisdictions | 3 |
| Names of jurisdictions | England and Wales, Scotland, and Northern Ireland |
| Criminal law decisions | Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts |
| Civil law cases | Supreme Court of the United Kingdom is the final court of appeal for civil law cases |
| Criminal law cases in Scotland | High Court of Justiciary has the authority |
| Civil cases in Scotland | Supreme Court of the United Kingdom is the highest court of appeal |
| Basis of common law | Judicial decisions, custom, and precedent |
| Common law rules | May be superseded or replaced by legislation |
| Common law judges | Limited power to reform an out-of-date law |
| Law reform | Reviewed and proposed by the Law Commission |
| Basis of legal laws | Decided and declared by human beings |
| Court system and case law | Controlled by the judiciary which is separate from Parliament |
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What You'll Learn
The UK's three legal jurisdictions
The UK does not have a unified legal system. Instead, it is divided into three main legal jurisdictions, each with its own laws, court system, lawyers, and judges. These jurisdictions are England and Wales, Scotland, and Northern Ireland.
England and Wales share a single jurisdiction, with Welsh law recognised as separate in operation but not considered a separate jurisdiction as the judiciary and courts follow England and Wales law. The Supreme Court of the United Kingdom is the highest civil appeal court and its decisions are binding on all three jurisdictions. However, the Supreme Court does not have authority over criminal law cases in Scotland, where the High Court of Justiciary has this power.
Historically, the common law was administered in the king's courts. It is the law declared by judges, derived from custom and precedent, and applies equally across the country. Common law includes 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 may be superseded or replaced by legislation, which takes precedence.
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The influence of English common law on former colonies
The United Kingdom is a common law jurisdiction. Common law is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. It is a system that has been developing in England since the 12th century, and it forms the basis of jurisdiction in all three types of direct colonial holdings.
English common law has had a significant influence on the legal systems of its former colonies. During the era of the British Empire, England spread its legal system across the British Isles and overseas colonies. Many former colonies, including Canada, Australia, New Zealand, and South Africa, retain the common law system today. These common law systems are legal systems that give precedence to judicial precedent and the reasoning inherited from English law.
In addition to influencing the structure and process of the legal system, English common law also influenced the substantive rules of law in former colonies. For example, common law includes substantive rules such as the offence of murder, which is recognized in many former colonies.
However, it is important to note that the influence of English common law on former colonies was not uniform, and there were adaptations made to suit local circumstances. For example, in North American colonies, the importation of African slaves required the implementation of European-designed laws regulating master-slave relations. In Australian colonies, the practice of terra nullius (nobody's land) was adopted, which did not recognize native claims to land and secured European land titles. Additionally, some former colonies, such as South Africa and Sri Lanka, maintained legal elements from previous colonizers, resulting in "mixed" legal systems.
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Scotland's distinct legal system
The UK is a common law jurisdiction, which means that its legal system is based on precedent and judicial decisions, rather than solely on statutory law. This means that past court decisions are binding or persuasive in future cases with similar facts and issues. However, within the UK, there are distinct legal systems in place for England and Wales, Northern Ireland, and Scotland. Each system operates independently and has its own unique features and history:
Scotland's legal system is unique and distinct from the rest of the UK, with a rich history dating back centuries. The Scottish legal system is a hybrid of common law and civil law elements, with its own courts, laws, and legal profession. The Court of Session is the highest court for civil cases in Scotland, with the High Court of Justiciary being the highest criminal court. One key feature of Scotland's system is the presence of three verdicts in criminal trials: 'guilty', 'not guilty', and 'not proven'. The 'not proven' verdict means that the jury believes that the accused is likely to be guilty but that the prosecution has not proven its case beyond a reasonable doubt. This verdict is unique to Scotland and has been a topic of debate and discussion for many years.
Scottish law has its roots in Roman law and early medieval legal practices, with influences from English common law and continental legal systems. Over time, it has developed its own unique characteristics and principles. The influence of Roman law can be seen in the use of legal writings and the concept of 'jus commune', which refers to the body of legal principles and rules that were applicable throughout the country.
The Scottish legal system is also known for its strong emphasis on human rights and has incorporated the European Convention on Human Rights into its domestic law. This means that individuals in Scotland can rely on these rights in court and that Scottish laws must be compatible with the Convention. In addition, Scotland has its own unique legal terminology, with many Latin terms and phrases still in use today, reflecting the historical influences on the system.
Another distinctive feature of Scottish legal practice is the role of advocates and solicitors. Advocates are similar to barristers in England and Wales, and they have rights of audience in all Scottish courts. Solicitors, on the other hand, have rights of audience in some lower courts and prepare cases and instruct advocates for higher court litigation. The Faculty of Advocates, established in 1532, is the professional body for advocates in Scotland, and it plays a crucial role in maintaining the standards and independence of the Scottish Bar.
In conclusion, Scotland's distinct legal system is an integral part of the UK's overall legal landscape, offering a unique blend of historical traditions and modern innovations. While sharing some similarities with other common law jurisdictions, Scotland's legal system stands apart with its own courts, laws, and legal profession, shaping the administration of justice and legal practices in Scotland today.
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The role of the Supreme Court
The UK is a common law jurisdiction. Common law systems are legal systems that give significant weight to judicial precedent and the style of reasoning inherited from the English legal system. The common law was historically administered in the king's courts.
The Supreme Court of the United Kingdom is the highest court in the country and a leader in the common law world. It is the final court of appeal for civil cases in the United Kingdom and all criminal cases originating in England, Wales and Northern Ireland, as well as some limited criminal cases from Scotland. The Supreme Court hears appeals on arguable points of law of the greatest public importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases. It also hears cases on devolution matters under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006.
The Supreme Court is composed of the President, Deputy President and ten other Justices of the Supreme Court. The President and Deputy President of the court are separately appointed to those roles. The Supreme Court of the United Kingdom is required to have judges who have previously served in the legal systems of England and Wales, Scotland and Northern Ireland, and act as representatives of their respective legal systems in the Supreme Court. The selection committee of judges ensures that each judge appointed to the Supreme Court will have knowledge of, and experience of practice in, the legal system of each country of the United Kingdom.
The Supreme Court plays an important role in interpreting and applying the law of the UK's three territorial jurisdictions. It ensures the law is correctly interpreted and applied, and that the legal limits on the powers of public institutions are respected. The Supreme Court’s role is primarily that of an appellate jurisdiction, meaning it is a forum for reconsidering the legal decisions of other courts and tribunals, rather than one that considers original disputes directly. Most of the cases heard by the Supreme Court are brought from other appellate courts, but some are brought directly from courts of first instance.
The Supreme Court is physically based in the former Middlesex Guildhall, on the opposite side of Parliament Square from the Palace of Westminster. It shares its building, secretariat and facilities with the Judicial Committee of the Privy Council.
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The history of common law
The expansion of the royal justice system during the late 1100s, under the reign of Henry II, played a pivotal role in the development of common law. This period saw the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, in Westminster, London. The creation of these institutions expanded the reach of royal justice across different geographical areas and social classes, marking a significant departure from the previous itinerant nature of the king's court.
The 12th and 13th centuries witnessed the emergence of the doctrine of precedent, which formed the foundation of common law. This doctrine was based on collective judicial decisions rooted in tradition, custom, and precedent. During this time, common law was administered in the king's courts and emphasised written documentation, particularly royal "writs". It also promoted the peaceful resolution of disputes, the use of local juries, and a clear hierarchy of courts.
While England, Wales, and Northern Ireland share a common law system, Scotland has a unique blend of civil law and its own common law traditions. Scottish common law has historically prioritised seeking the underlying principles that justify a law rather than simply relying on previous cases as precedents. Nonetheless, since the 19th century, Scottish and English approaches to precedent have become more closely aligned.
Common law, as a system, values judicial precedent and the style of reasoning inherited from the English legal system. It is distinct from civil law traditions, which are based on comprehensive legal codes that offer less judicial discretion in deciding cases. Common law rules can be superseded or replaced by legislation, and while judges can propose reforms, only Parliament has the power to enact them.
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Frequently asked questions
Yes, the UK is a common law jurisdiction.
Common law is the body of law derived from judicial decisions, rather than from statutes or constitutions.
Common law in the UK combines the passing of legislation with the creation of precedents through case law.
No, Scotland has a separate criminal law system from the rest of the UK.
Civil law is based on a code of laws, whereas common law is based on the doctrine of precedent.
