Law of the United Kingdom
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Sub-nationally, the United Kingdom has three legal systems, each of which derives from a particular geographical area and for a variety of historical reasons: English law, Scots law, and Northern Ireland law.[1] Since 2007, as a result of the passage of the Government of Wales Act 2006 by Parliament, there also exists purely Welsh law. However, unlike the other three laws, this is not a separate legal system per se, being merely the primary and secondary legislation generated by the National Assembly for Wales, interpreted in accordance with the doctrines of English law, and not impacting upon English common law (except where such Welsh legislation ousts a common law rule by virtue of being a superior form of law). There is a substantial overlap between these three legal systems, and the three legal jurisdictions of the United Kingdom, these being England and Wales, Scotland, and Northern Ireland. Each legal system defaults to each jurisdiction, and court systems of each jurisdiction further the relevant system of law through jurisprudence. However, it should be noted that in private law it is possible for people in certain jurisdictions to use the law of other jurisdictions, for example a company in Edinburgh, Scotland and a company in Belfast, Northern Ireland are free to contract in English law. This is inapplicable in public law (for example, criminal law), where there are set rules of procedure in each jurisdiction. Overarching these systems is the law of the United Kingdom, also known as United Kingdom law or (more rarely) British law. British law arises where laws apply to the United Kingdom and/or its citizens as a whole, most obviously constitutional law, but also other areas, for instance tax law.
The United Kingdom does not have a single legal system because it was created by the political union of previously independent countries. Article 19 of the Treaty of Union, put into effect by the Acts of Union in 1707, created the Kingdom of Great Britain, but guaranteed the continued existence of Scotland's separate legal system.[2] The Acts of Union of 1800, which combined Great Britain and Ireland into the United Kingdom of Great Britain and Ireland, contained no equivalent provisions but preserved the principle of separate courts to be held in Ireland, of which the part called Northern Ireland remains part of the United Kingdom.
The Supreme Court of the United Kingdom is the highest court in the land for all criminal and civil cases in England and Wales and Northern Ireland, and for all civil cases in Scots law.[3] The Supreme Court is also the final court (in the normal sense of the term) for interpreting United Kingdom law. Note, however, that unlike in other systems (for example America), the Supreme Court cannot strike down statutes, and its cases can be expressly overriden by Parliament, by virtue of the doctrine of Parliamentary sovereignty. The Supreme Court came into being in October 2009, replacing the Appellate Committee of the House of Lords.[4][5] In England and Wales, the court system is headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Courts of Northern Ireland follow the same pattern. In Scotland the chief courts are the Court of Session, for civil cases, and the High Court of Justiciary, for criminal cases. Sheriff courts have no equivalent outside Scotland, as they deal with both criminal and civil caseloads.
The Judicial Committee of the Privy Council is the highest court of appeal for several independent Commonwealth countries, the British overseas territories, and the British Crown dependencies. There are also immigration courts with UK-wide jurisdiction — the Asylum and Immigration Tribunal and Special Immigration Appeals Commission. The Employment tribunals and the Employment Appeal Tribunal have jurisdiction throughout Great Britain, but not Northern Ireland.
European Union law is actively transposed into the UK legal systems under the UK parliament's law-making power, in fulfillment of its EU treaty obligations, not inherently by acts of the European Union Parliament.
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Three legal systems[edit]
There are three distinct legal jurisdictions in the United Kingdom: England and Wales, Northern Ireland and Scotland.[6] Each has its own legal system, distinct history and origins.
English law[edit]
English law refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English law is considered as the original of the common law and is based on those principles.[citation needed] English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189.
There has been no major codification of the law, rather the law is developed by judges in court, applying statute, precedent and case-by-case reasoning to give explanatory judgments of the relevant legal principles. These judgments are binding in future similar cases (stare decisis), and for this reason are often reported.
In the early centuries,[when?] 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, see Court of Piepowder (a corruption of the Law French "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength, subject to the doctrine of separation of powers, legislation gradually overtook judicial law-making, so that today judges are only able to innovate in certain very narrowly defined areas. The year 1189 was defined in 1276 as being the boundary of time immemorial.
The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Supreme Court is the highest court in the land for both criminal and civil appeal cases in England, Wales, and Northern Ireland and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions. On appeal, a court may overrule the decisions of its inferior courts, such as county courts (civil) and magistrates' courts (criminal). The High Court may also quash on judicial review both administrative decisions of the Government and delegated legislation. The ultimate body of appeal for all criminal and civil cases in England and Wales (and Northern Ireland, and for all civil cases in Scots law) is the Supreme Court of the United Kingdom, which took over this function from the Appellate Committee of the House of Lords (usually just referred to as "The House of Lords") in October 2009.[3]
After the Acts of Union, in 1707 English law became one of two legal systems in different parts of the same united kingdom and has been influenced by Scots law, most notably in the development and integration of the law merchant by Lord Mansfield and in time the development of the law of negligence. Scottish influence may have influenced the abolition of the forms of action in the nineteenth century and extensive procedural reforms in the twentieth.
Northern Ireland law[edit]
The law of Northern Ireland is a common law system. It is administered by the courts of Northern Ireland, with ultimate appeal to the Supreme Court of the United Kingdom in both civil and criminal matters. The law of Northern Ireland is closely similar to English law, the rules of common law having been imported into the Kingdom of Ireland under English rule. However, there are important differences.
The sources of the law of Northern Ireland are Irish common law, and statute law. Of the latter, statutes of the Parliaments of Ireland, of the United Kingdom and of Northern Ireland are in force, and latterly statutes of the devolved Assembly. The courts of Northern Ireland are headed by the Court of Judicature of Northern Ireland, consisting of the Northern Ireland Court of Appeal, the Northern Ireland High Court of Justice and the Northern Ireland Crown Court. Below that are county courts and magistrates' courts.
Scots law[edit]
Scots law is a unique legal system with an ancient basis in Roman law. Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus Scotland has a pluralistic, or 'mixed', legal system, comparable to that of South Africa, and, to a lesser degree, the partly codified pluralistic systems of Louisiana and Quebec. Since the formation of the Kingdom of Great Britain under the 1707 Acts of Union, Scots law has shared a legislature with England and Wales, and while each retained fundamentally different legal systems, the 1707 Union brought English and Welsh influence upon Scots law, and vice versa. In recent years,[when?] Scots law has also been affected by both European law under the Treaty of Rome, and also following the establishment of the Scottish Parliament, which legislates within domestic areas of legislative competence.
The chief courts are the Court of Session, for civil cases,[7] and the High Court of Justiciary, for criminal cases.[8] The Supreme Court of the United Kingdom serves as the highest court of appeal for civil cases under Scots law, with leave to appeal from the Court of Session not required as a general rule.[9] Sheriff courts deal with most civil and criminal cases including conducting criminal trials with a jury, known as sheriff solemn court, or with a sheriff and no jury, known as sheriff summary court. The sheriff courts provide a local court service with 49 sheriff courts organised across six sheriffdoms.[10] The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial.[11]
The Cabinet Secretary for Justice is the member of the Scottish Government responsible for Police Scotland, the courts and criminal justice, and the Scottish Prison Service, which manages the prisons in Scotland.[12]
Welsh law[edit]
Welsh law is the primary and secondary legislation generated by the National Assembly for Wales, using devolved authority granted in the Government of Wales Act 2006 and in effect since May 2007. Each piece of Welsh legislation is known as an Act of the Assembly.
However, as there is no criminal law within contemporary Welsh law, Wales is not generally considered a fourth jurisdiction of the United Kingdom. This is because the judiciary and the courts follow England and Wales law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction.
A commission set up in 2017 by the First Minister of Wales known as "The Commission on Justice in Wales" and chaired by Lord Thomas of Cwmgiedd, is looking into the operation of justice in the country. It aims to further clarify the legal and political identity of Wales within the UK constitution, which may include the creation of a distinct legal jurisdiction. This would formalise Wales as the fourth jurisdiction of the UK.[citation needed]
United Kingdom legislatures[edit]
United Kingdom Parliament[edit]
The Parliament of the United Kingdom is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The House of Lords includes two different types of members: the Lords Spiritual (the senior bishops of the Church of England) and the Lords Temporal (members of the Peerage); its members are not elected by the population at large. The House of Commons is a democratically elected chamber. The two Houses meet in separate chambers in the Palace of Westminster (commonly known as the "Houses of Parliament"), in the City of Westminster in London. By constitutional convention, all government ministers, including the Prime Minister, are members of the House of Commons or House of Lords.
Parliament evolved from the early medieval councils that advised the sovereigns of England and Scotland. In theory, power is vested not in Parliament, but in the "Queen-in-Parliament" (or "King-in-Parliament"). The Queen-in-Parliament is, according to the doctrine of parliamentary sovereignty, completely sovereign with the power to make and unmake any law other than to bind itself.
In modern times, real power is vested in the House of Commons; the Sovereign acts only as a figurehead and the powers of the House of Lords are greatly limited. The parliament retains some law-making powers for some jurisdictions outside of the United Kingdom proper.
Northern Ireland Assembly[edit]
The Northern Ireland Assembly (Irish: Tionól Thuaisceart Éireann,[13] Ulster Scots: Norlin Airlann Semmlie)[14] is the devolved legislature of Northern Ireland. It has power to legislate in a wide range of areas that are not explicitly reserved to the Parliament of the United Kingdom, and to appoint the Northern Ireland Executive. It sits at Parliament Buildings at Stormont in Belfast.
The latest incarnation of the Assembly was established under the Good Friday Agreement of 1998, an accord aimed at bringing an end to Northern Ireland's violent 30-year Troubles. It is based on the principle of power-sharing under the D'Hondt method to ensure that Northern Ireland's largest political communities, the unionist and nationalist communities both participate in governing the region. The Assembly is a unicameral, democratically elected body comprising 90 members who are known as Members of the Legislative Assembly, or MLAs. Members are elected under the single transferable vote form of proportional representation.
Scottish Parliament[edit]
The Scottish Parliament (Scottish Gaelic: Pàrlamaid na h-Alba; Scots: Scots Pairlament) is located in the Holyrood area of the capital Edinburgh. The Parliament, which is informally referred to as "Holyrood"[15] (cf. "Westminster"), is a democratically elected body of 129 members who are known as Members of the Scottish Parliament or MSPs. Members are elected for four-year terms under the Additional Member System of proportional representation. As a result, 73 MSPs represent individual geographical constituencies elected by the plurality voting system ("first past the post"), with a further 56 returned from eight additional member regions, each electing seven MSPs.[16] The Scottish Parliament, as it was created by devolution and an act of parliament, does not get its legislative powers by virtue of sovereignty or by virtue of `being the Scottish Parliament`. Rather, it legally exists as a subset of Westminster and derives it's powers as such.
The original Parliament of Scotland (or "Estates of Scotland") was the national legislature of the independent Kingdom of Scotland and existed from the early thirteenth century until the Kingdom of Scotland merged with the Kingdom of England under the Acts of Union 1707 to form the Kingdom of Great Britain.[17] As a consequence, the Parliament of Scotland merged with Parliament of England, to form the Parliament of Great Britain, which sat at Westminster in London.[17]
National Assembly for Wales[edit]
Since 2007, the National Assembly for Wales (Welsh: Cynulliad Cenedlaethol Cymru) has been invested with legislative powers. It is situated in Cardiff. The National Assembly, first elected in 1999, is a democratically elected body of 60 members who are known as Assembly Members or AMs. Members are elected for four-year terms under the Additional Member System of proportional representation. As a result, 40 AMs represent individual geographical constituencies elected by the plurality voting system ("first past the post"), with a further 20 returned from five additional member regions, each region electing four AMs.
Related legal systems[edit]
After centuries of settlement and conquest, the United Kingdom has legal relationships to many territories outside its borders. These include sovereign states that do and do not share a monarch and judicial institutions with the UK, and dependencies where the UK government, parliament, and crown do retain some power.
Independent sovereigns with British legal history[edit]
Most countries that have gained independence from the UK are no longer subject to the British parliament, monarchy, nor courts. They consist of a mix of republics (for example Ireland and India) and local monarchies (for example Kuwait and Brunei) with no relationship to the royal House of Windsor. The colonies and possessions were created and separated from the UK under a wide variety of circumstances, resulting in a spectrum of influence of British law in domestic law.
At the strongly influenced end of the spectrum, for example, is the United States. The Royal Proclamation of 1763 explicitly applied English Common Law to all British overseas colonies, and affirmed some degree of local law-making. The American Revolutionary War resulted in a unilateral separation recognized by the Peace of Paris (1783), but the English system continued to be used as the basis for court decisions. Over time, it was modified by the United States Constitution, state constitutions, and federal and state court decisions particular to their own jurisdictions. Colonial land grants of the British kings still remained relevant in some later boundary disputes of the former Thirteen Colonies, though adjudicated by the Supreme Court of the United States. But some parts of the United States not subject to British rule have laws based on other traditions, such as French civil law in Louisiana, and Native American law in areas of tribal sovereignty.
Some countries were granted independence by an act of the UK parliament (for example, the Statute of Westminster 1931) and have likewise diverged from UK law either under or after British rule. An example at the other end of the spectrum, despite occasional control for geopolitical reasons, British law had little impact on the law of Afghanistan.
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By special agreement, the UK-based Judicial Committee of the Privy Council acts as the court of highest appeal for three former colonies which are now republics (Mauritius, Trinidad and Tobago, and for constitutional rights, Kiribati) and has a special consultation agreement with the Sultan of Brunei.
Commonwealth realms[edit]
Commonwealth realms (for example Australia and Bermuda) are former colonies which are now sovereign states fully independent of the UK parliament. However, they share other legal institutions with the UK, to varying degrees.
Queen Elizabeth II remains the constitutional monarch of each realm in its own right, and retains a limited set of powers (royal prerogative) to be exercised either personally or through a local viceroy. Most powers are irrevocably delegated to a parliament more or less modeled on the Westminster system.
Crimes in Commonwealth realms are prosecuted in the name of the crown, and the crown remains the notional arbiter of disputes. In some realms appeals may be directed to the monarch as a last resort. Adjudication of these appeals is delegated to Judicial Committee of the Privy Council which draws judges from the UK and across the Commonwealth. In other realms, a domestic court has been made the highest court of appeal. (See Judicial Committee of the Privy Council § Overseas jurisdiction for full list.)
The "Imperial" Privy Council based in England advises the shared monarch on the use of royal prerogatives and parliament-authorized powers in the form of Orders in Council, and can also issue its own delegated Orders of Council. In some countries, a domestic council performs this function, namely:
- Federal Executive Council (Australia)
- Queen's Privy Council for Canada
- Executive Council of the Falkland Islands
- Executive Council of New Zealand
Similar to other former colonies, Commonwealth realms also share a common legal history with the UK. For example, Canada underwent a long period of patriation of its constitution, beginning with the Constitution Act, 1867 and ending with the Constitution Act, 1982. Like their southern neighbors, the Proclamation of 1763 extended English Common law to all the Canadian colonies, including Nova Scotia (which being Scottish might have operated under Scots law).[18] (French civil law was later re-applied to Quebec.[19])
Crown dependencies[edit]
The Channel Islands are held by the British Monarch by virtue of inheriting the feudal title of Duke of Normandy. These were never part of England, Wales, Scotland, Ireland, or the United Kingdom. Most of the historical Duchy of Normandy is on the European continent and was conquered by France. The Isle of Man is held by the British Monarch by virtue of inheriting the feudal title of Lord of Mann. It was previously ruled by Norway, England, and Scotland, before the feudal rights were purchased from Scottish dukes (after English-Scottish unification) by the United Kingdom in 1765. Due to local opposition, it was never merged into England as previously planned, and remains a distinct possession of the monarchy.
Each jurisdiction has a locally elected parliament with broad but not unlimited autonomy. The British monarchy retains responsibility for defense, citizenship law, and foreign affairs of the dependencies, and has delegated these responsibilities to the UK government and parliament. The UK parliament generally acts in consultation or gains the consent of the local government when passing laws that have effect in the dependencies. Residents of the dependencies do not have representation in the UK parliament. UK law does not apply to the dependencies unless explicitly stated, and such laws are almost always executed by the monarch in the form of an Order in Council. Whether the UK parliament retains the power to pass laws against the will of the local governments is disputed, and was tested with the Marine, &c., Broadcasting (Offences) Act 1967.
Legal cases may be appealed to the Judicial Committee of the Privy Council. Residents are treated the same as residents of the UK for the purposes of British nationality law, though local governments control local immigration and employment. This makes citizens of the British dependencies EU citizens, but the exchange of people and goods with the EU and UK is subject to special arrangements.
British Overseas Territories[edit]
Though not considered internal to the boundaries of United Kingdom, the UK maintains control over British Overseas Territories. Unlike Commonwealth realms, BOTs fall within the Monarchy of the United Kingdom. The Judicial Committee of the Privy Council is the court of final appeal. Three of the BOT are uninhabited, and Akrotiri and Dhekelia is military property; in these places, the UK government rules directly and on all matters.
The inhabited British Overseas Territories do not have representation in the UK parliament, and are thus on the United Nations list of Non-Self-Governing Territories. Residents of Gibraltar, as the only BOT which is part of the European Union, vote for a representative in the European Parliament in the South West England district. All citizens of British Overseas Territories are EU citizens, even though European Union law only applies in Gibraltar and the United Kingdom proper.
The inhabited territories each have their own legal system (based largely on English common law), with autonomy varying considerably with the size of the population. For example, Bermuda, Gibraltar, and the Falkland Islands are autonomously governed by their locally elected parliaments, with the UK responsible only for defense and foreign affairs (and granting limited autonomy to local governments to have relations with other countries and international organizations). On the sparsely populated Pitcairn Islands, the representative of the UK government has nearly unlimited powers.
Citizenship and nationality law is governed by the UK parliament, but immigration is controlled by local governments. The UK parliament retains the ultimate legislative power, and ensures good governance.
See also[edit]
- Constitution of the United Kingdom
- Legal education in the United Kingdom
- British Nationality Law
- British labour law
- United Kingdom company law
- UK commercial law
- UK competition law
- United Kingdom trade mark law
- Copyright law of the United Kingdom
- Software patents under United Kingdom patent law
- UK Domestic Recycling Policy
Notes[edit]
- ^ “The UK has three legal systems, operating in England and Wales, Scotland and Northern Ireland”, direct.gov.uk, accessed 12 March 2007
- ^ "The Treaty (act) of the Union of Parliament 1706". Scottish History Online. Retrieved 5 October 2008.
- ^ a b "Constitutional reform: A Supreme Court for the United Kingdom" (PDF). (252 KiB), Department for Constitutional Affairs; accessed 22 May 2006.
- ^ UK Supreme Court judges sworn in BBC News, 1 October 2009
- ^ "Constitutional reform: A Supreme Court for the United Kingdom" (PDF). (252 KB), Department for Constitutional Affairs. Retrieved on 22 May 2006
- ^ "pdf file" (PDF). (64.6 KiB) "For the purposes of the English conflict of laws, every country in the world which is not part of England and Wales is a foreign country and its laws foreign. This means that not only totally foreign independent countries such as France or Russia... are foreign countries but also British Colonies such as the Falkland Islands. Moreover, the other parts of the United Kingdom – Scotland and Northern Ireland – are foreign countries for present purposes, as are the other British Islands, the Isle of Man, Jersey and Guernsey." Conflict of Laws, J. G. Collier, Fellow of Trinity Hall and lecturer in Law, University of Cambridge
- ^ "Court of Session – Introduction". Scottish Courts. Retrieved 5 October 2008.
- ^ "High Court of Justiciary – Introduction". Scottish Courts. Retrieved 5 October 2008.
- ^ "House of Lords – Practice Directions on Permission to Appeal". UK Parliament. Retrieved 22 June 2009.
- ^ "Introduction". Scottish Courts. Retrieved 5 October 2008.
- ^ "The case for keeping 'not proven' verdict". London: Times Online. 20 March 2005. Retrieved 5 October 2008.
- ^ "Scottish Cabinet and Ministers". Scottish Executive. Retrieved 5 October 2008.
- ^ "Comhaontú idir Rialtas na hÉireann agus Rialtas Ríocht Aontaithe na Breataine Móire agus Thuaisceart Éireann ag Bunú Comhlachtaí Forfheidhmithe" (in Irish). Oireachtas. Retrieved 8 June 2008.
- ^ "Tha Boord o Ulstèr-Scotch – Tha Boord" (in Scots). Ulster-Scots Agency. Archived from the original on 26 November 2006. Retrieved 8 May 2007.
- ^ "Scottish Parliament Word Bank". Scottish Parliament. Archived from the original on 3 December 2005. Retrieved 14 November 2006.
- ^ "Scottish Parliament MSPs". Scottish Parliament. Retrieved 14 November 2006.
- ^ a b "The First Scottish Parliament: the Middle Ages – 1707". Scottish Parliament. Retrieved 14 November 2006.
- ^ http://www.chebucto.ns.ca/Heritage/FSCNS/Scots_NS/Hty_Sct/Hty_Law.html
- ^ http://www.bloorstreet.com/200block/rp1763.htm
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