Keith Mack
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. The United Kingdom is divided into three main jurisdictions: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own laws, court system, lawyers, and judges. The main sources of English law include legislation, case (common) law, human rights law, and EU law. The most authoritative law is statutory legislation, which includes Acts of Parliament, regulations, and by-laws. Common law, which includes substantive and procedural rules, forms the residual source of law based on judicial decisions, customs, and usage. Judicial precedent, or case law, is based on the doctrine of stare decisis and is associated with jurisdictions based on English common law. Equity, or judge-made law, is another historic source of English law.
| Characteristics | Values |
|---|---|
| Common law | Judicial decisions, custom, and usage |
| Statutory legislation | Acts of Parliament, regulations, and by-laws |
| Devolved law | Acts of the Senedd, Acts of the National Assembly for Wales, and measures of the National Assembly for Wales |
| Primary legislation | Acts of Parliament, Statutory Instruments |
| Secondary legislation | Orders in Council |
| Historical sources | The Statutes at Large by Ruffhead, The Statutes of the Realm |
| Case law | Human rights law, EU law, R v R [1992] 1 A.C. 599 |
| EU law | Court of Justice of the European Union (ECJ) |
| Human rights law | The Human Rights Act 1998, The European Convention on Human Rights |
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What You'll Learn
Common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. Common law, historically the foundation and prime source of English law, is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
Judge-made common law was the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. In the 13th century, the early development of case law was traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. These are the law reports of medieval England and are a principal source for knowledge of the developing legal doctrines, concepts, and methods. In the Late Medieval Period, English law was codified through judge-made laws and precedents that were created in the proceedings of Royal justices in the Circuit courts.
English common law has influenced the common law of other countries, including the United States, Canada, Australia, New Zealand, and Ghana.
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Statutory legislation
English law is comprised mainly of criminal and civil law, with each branch having its own courts and procedures. The most authoritative law in the English legal system is statutory legislation, which includes Acts of Parliament, regulations, and by-laws.
Acts of Parliament are the primary form of legislation in the UK and can take various forms, including Acts of the Senedd (or previously, Acts of the National Assembly for Wales), measures of the National Assembly for Wales, and Orders in Council. Statutes are typically cited by their short title and year of enactment, such as the "Theft Act 1968", rather than their long title, regnal year, and chapter number.
Legislation can consolidate or codify existing laws. Consolidation brings different statutes under one statute without changing the existing laws, while codification brings all laws under one topic, including custom, common law, and statute, under a new statute. For example, the Theft Act 1968 changed pre-existing law, while the Insolvency Act 1986 consolidated different statutes.
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EU law
The rule of European Union law in England has been ended by Brexit. However, prior to this, EU law was a significant source of English law.
International agreements with non-EU countries or international organisations are also an integral part of EU law. They are separate from primary and secondary law but can have direct effect and superior legal force. The CJEU also cites written and customary international law as sources of inspiration for its case law.
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Human rights law
The Human Rights Act 1998 is a key piece of legislation that sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This Act incorporates the rights outlined in the European Convention on Human Rights (ECHR) into domestic British law. It came into force in October 2000 and allows individuals to defend their rights in UK courts, ensuring that public organisations respect and protect these rights. The Act covers a range of rights, including the right to life, freedom of conscience, religion, and belief, and protection from discrimination.
Case law from human rights law, such as R v R [1992] and Somerset v Stewart, has also played a significant role in shaping human rights law in England. For example, in Somerset v Stewart, it was held that slavery was unlawful at common law, reflecting the fundamental right to liberty and freedom from servitude.
While the Human Rights Act and case law are important sources of human rights law in England, it's worth noting that legislation, including Acts of Parliament, remains the most influential source of law overall. The European Union law, previously of prime importance, is no longer applicable due to Brexit.
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Devolved law
Scotland, Wales, and Northern Ireland now all possess executive and legislative devolution, while Metro Mayors in parts of England (and the Mayor of London) have only executive powers. Combined Authorities and the London Assembly can scrutinise executive decisions but not legislate in the manner of the Scottish Parliament, the Senedd (or Welsh Parliament), and the Northern Ireland Assembly.
The devolved competence of the Welsh Government and the Scottish Government is restricted and undermined by the United Kingdom Internal Market Act 2020. This Act constrains the capacity of devolved institutions to use their regulatory autonomy and restricts their ability to make different economic or social choices from those made in Westminster.
England is the only country in the United Kingdom without a devolved Parliament or Assembly, and English affairs are decided by the UK Parliament. This has given rise to the West Lothian question, which concerns the fact that Scottish MPs can help make laws that apply to England alone on devolved matters, while no English MPs can make laws on those same matters for Scotland.
In 2015, the House of Commons voted in favour of implementing a system of "English votes for English laws", but this was abolished in 2021, returning to the previous system.
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Frequently asked questions
The sources of English law can be divided into three categories: statute law, European (EU) law, and case law. Statute law, or legislation, is the most authoritative form of law and comprises Acts of Parliament, regulations, and by-laws. EU law includes the European Convention on Human Rights and the rulings of the Court of Justice of the European Union (ECJ). Case law, or common law, is made by sitting judges and is based on judicial decisions, custom, and usage.
The United Kingdom is divided into three main jurisdictions: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own laws, court system, lawyers, and judges. However, laws that are derived from legislation (Acts of Parliament and Statutory Instruments) may apply equally or with variations across the different jurisdictions. For example, the Scotland Act 1998 created a Scottish Parliament with legislative powers over health, education, criminal law, and civil law, among other areas.
English common law has influenced the legal systems of many countries, particularly those that were formerly part of the British Empire. For example, in the United States, each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law. In Australia, there is one national common law. In some jurisdictions, English decisions continue to be persuasive in common law cases.
English law has evolved significantly since the Norman Conquest of England in 1066, when legal concepts and institutions from Norman law were introduced. In 1276, the concept of "time immemorial" in common law was defined as any time before 6 July 1189 (the accession of Richard I to the English throne). Since 1189, English law has been a common law system, meaning that judicial precedents are binding rather than persuasive. Over time, new laws have been introduced through Acts of Parliament, such as the Theft Act 1968, and existing laws have been amended or repealed to reflect changing societal needs and values.
