Law of England and Wales Notes
Introduction to the Law of England and Wales
Main Themes
Introduction to law and legal system:
Part I: Defining law, common law, the role of courts, historical perspective on sources of law, different types of law.
Part II: Why does the UK have an unwritten Constitution?
Law in comparative perspective with SE Asian focus:
Comparing legal systems.
Approaching multi-layered legal traditions and wider definitions of law.
Legal transplants and the transmission of law between legal cultures.
UK Law and the Constitution:
Sources of law, constitutional principles.
Assessment of the UK's relationship with the EU post-Brexit, particularly concerning Scotland and Northern Ireland.
What is Law: Introduction
Introduces law in a UK context.
Provides an overview of the historical foundations of English law.
Covers the origins of the legal system and the current system of courts related to the development of common law.
Explains the essentials of the common law method and the system of binding precedents.
Links this to the role of the courts with reference to selected cases.
Examines how the law of the (unwritten) constitution has evolved with reference to the varied sources of the constitution.
Defining Law
Twining and Miers: ‘A general norm mandating or guiding conduct or action in a given type of situation’.
Holland and Webb: ‘Law … is definable as a system of rules. It guides and directs our activities in much day to day life…’
Rules are often normative, indicating what ought to happen.
The 'law' reflects the values of the age and culture.
Legal Positivists: laws are edicts and commands by the powerful, emanating from the sovereign.
Law reflects the exercise of power, enforced by the state, laws passed by Parliament.
Modern Western patterns of thought emerged from Roman Law through Napoleonic codes, including human rights discourse.
Ancient Hindu philosophy perceived the cosmos as an interlinked whole.
Holistic approaches (ancient Chinese, Japanese, African) were often oral rather than written, with cultural customs and practices counting as law.
Historical Context
Battle of Hastings 1066 (Bayeux tapestry): Norman conquest of William I of Normandy as a convenient starting point.
Doomsday Book 1086: Law and administration - inventory of the wealth of the Nation.
Tower of London (1070): Castle building by Plantagenet monarchs symbolic of the permanence of Norman rule.
Common Law and the Role of Courts
Common Law: Origins of Modern Legal System
Starting point: Norman Conquest – Doomsday book.
Henry II (1154-1189) established many features of common law: jury trial, and legal uniformity by judicial circuits.
New remedies became available in the King's Royal courts.
Common law enforced throughout the land by itinerant justices, professional administrators of the law, trained in one tradition.
Inns of Court established at this time: responsible for professional legal training of barristers.
Judges are recruited from barristers with expertise in legal reasoning.
King’s Bench was established by the end of the 13th century, and remained at the centre of the English judicial system until its powers were transferred to the High Court in 1873.
Blackstone’s Commentaries described the King’s Bench as “the supreme court of common law in the kingdom”.
Defining 'Common Law'
Common law refers to how judges decide cases in areas not governed by Acts of Parliament, built up as a system of precedents (Waldron).
It's a body of ancient custom, usages, practices, and rulings evolved from time immemorial (Loughlin).
Common law is “unwritten law”, with judicial authority limited to what it decides.
Any legal principle established at common law will be written down and recorded, but it is not enacted anywhere as part of a statute or legal code.
'Common Law' and Precedent
Common law categorizes legal systems with binding precedent (stare decisis): UK, USA, Canada, Australia, India, and former British colonies.
Where no legislation exists, precedent is the source of law.
Courts resolve issues by creating, developing, and applying principles on a case-by-case basis.
Common law is judge-made law based on precedents set by higher courts.
The ratio decidendi (reason for deciding) binds lower courts on the same point of law.
Civil law aspects like contract and tort are still dependent on judge-made law.
Statute law prevails over common law.
Precedent also applies to statutory interpretation.
Law Reporting
Supreme Court: all cases (panel of 5-9 judges).
Court of Appeal, Civil and Criminal, Divisional Court of QBD: all cases (3 judge panel).
High Court and Administrative Court (civil): all cases reported (Single judge).
County Court, Crown Court, Magistrates Court generally not reported in official law reports.
Understanding Law Reports
The report sets out:
The court that tried the case and when it was heard, establishing the level in the hierarchy of courts
The main contested issues by providing a summary
The facts of the case before the court
The decision of the court i.e. what the court held.
All cases referred to in judgments i.e. what precedents were considered to support the outcome. Also, all cases cited or referred to in skeleton argument by counsel.
Which court the appeal originated from and the previous outcome.
In full the judgments of the members of the (appellate) court.
The ratio decidendi which is the binding passage will be contained in the judicial statements.
Common Law Style of Judging
Majority, minority, and dissenting opinions have a role in a system of binding precedent.
With an adversarial procedure, there is a winner and a loser.
Common law judgments give a detailed account of the facts, and the reasoning is inductive, discursive, and pragmatic (Siems).
Judgments justify a principle and perform a broader explanatory role.
Reference is made to previous cases and academic writing.
Common law judgments do not have the academic style and logical approach of German/continental style judgments.
Tort of Negligence: Donoghue v Stevenson [1932] AC 562
Plaintiff becomes unwell after drinking ginger beer containing a decomposed snail.
The House of Lords considered whether there could be a claim in tort rather than contract.
Issue: Should a manufacturer be liable outside of any contractual liability?
George v Skivington (1869) important previous case: 'Unquestionably there was a duty towards the purchaser, and it extends, in my judgment, to the person for whose use the vendor knew the compound was purchased'.
Lord Atkin sees this as clear authority supported by subsequent judgments.
Dissenting versus Majority Judgments
Lord Buckmaster's dissenting interpretation viewed the same case as an isolated authority.
Lord Atkin in the majority held:
'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.'
'Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called into question'.
Liability for negligently manufactured products follows from this statement.
Principle extended e.g. by Lord Reid in Home Office v Dorset Yacht Co [1970] AC 1004 and Lord Wilberforce in Anns v Merton LBC [1978] AC 728.
Principle Established
Three elements to establish liability in negligence cases:
A “neighbour” relationship exists such that the defendant can reasonably foresee that his acts will affect the plaintiff/claimant (proximity).
The defendant has failed to take reasonable care.
The defendant’s acts or omissions have caused the damage to the plaintiff (damage must be reasonably foreseeable).
'Lord Atkin’s judgment does not speak only of manufacturers, producers or consumers; it is couched in general terms and can be read as a general statement of principle…'
In many areas this is self-evident, such as road users owing a duty to other road users.
Extent of English Law Insularity
'Our lawyers seem to have known little and cared nothing about the law of foreign countries, nothing about Roman jurisprudence' (Maitland 142).
For comparative lawyers, it is possible to demonstrate that nations deliberately adopt/borrow legal rules from other legal systems.
In the UK pivotal areas of law (such as tort and contract) have not been codified and developed on a case-by-case basis.
External influence increased with entry into the EU and the Human Rights Act 1998.
External influence is manifest and there are no pure legal systems.
Common law judges turned at times to Roman law concepts such as caveat emptor.
EU law applies in many areas and will continue post-Brexit.
Why Does the UK have an Uncodified Constitution?
The British Constitution is not contained in any one document nor is there such a thing as higher order law.
The Constitution evolved over time, qualifying the absolute power of the King.
Magna Carta 1215 imposed limitations on Royal power.
Bill of Rights 1689 laid out basic rights and recognised the shift of power from the King to Parliament.
Great Reform Act 1832: redistribution of seats and the grant of the right to vote.
Parliament Acts 1911 and 1949: limitations on the powers of the House of Lords.
Magna Carta 1215
Magna Carta (MC) sealed by King John.
This identified the founding principles for Parliament and the constitution.
MC defined some rights, legal practices (fair trial) and 'good lordship'.
Set out what subjects could expect from their monarch and superiors.
Granted rights to London and other towns.
Subsequent charters recognised limitations to Royal Authority (absolute Kingship).
MC demonstrated that a committee of barons could overrule the King.
Due process of law is recognised.
Medieval feudal context (only applies to free men and women) and therefore not equivalent to a modern constitutional ‘bill of rights’.
Historical Figures
Charles I: Believed in the divine right of Kings and attempted to rule without Parliament provoking the Civil War 1642-49. The Royalist side lost and Charles was executed.
Oliver Cromwell: leading general in the Civil War and took over as ‘Lord Protector’ after the execution of Charles I. Upon his death the monarchy was restored under Charles II but with limits set by Parliament.
English Bill of Rights 1689
William III and Mary II were offered the throne in 1689 by Parliament but with strict conditions attached which limit the powers of the monarch
Pretended power of suspending the law and dispensing with laws by regal authority without consent of Parliament is illegal (Miller case 2017 and triggering Brexit).
Parliamentary independence guaranteed and freedom of speech inside Parliament under Article 9 (Parliamentary Privilege).
No army could be raised without parliamentary approval.
Taxation required parliamentary approval.
No special courts for political ends (e.g. Star Chamber).
Freedom of petition guaranteed.
Free elections and annual parliaments summoned (no general right to vote for citizens).
Protestant monarchy guaranteed, reinforced by the Act of Settlement 1701.
Key Figures
AV Dicey
Walter Bagehot
The myth of the English Constitution
Bagehot writing in the 19th century distinguished a kind of dichotomy - what he termed the ‘dignified’ and ‘efficient’ elements of the constitution.
Dignified - Ancient complex and ceremonial – which excites and preserves the reverence of the population and generates its motive power. Queen is a symbol of unity and strength and shrouded in mystery.
Efficient version - recognises the modern, simple and functional aspects. Deploying the power – the part which works and rules. PM rules according to the ‘efficient’ view but Queen remains head of the ‘dignified’ version.
Sources of the Constitution
It would consist of a range of different sources, many of them written but not in a single document:
Statute law.
Bill of Rights 1689: predominance of parliamentary government as King only able to act with Parliament’s consent.
1701 Act of Settlement: confirms protestant succession.
1707 Act of Union with Scotland: abolishes Scottish Parliament.
1832 Reform Act: extended voting rights: first step to universal suffrage.
1911 Parliament Act: reduced the power of the House of Lords to veto legislation.
1972 European Communities Act: paved the way for EU entry – 2018 and 2020 Withdrawal Acts introduced Brexit measures.
1998 Devolution legislation: introduced sub-national government for Scotland, Wales and Northern Ireland.
1998 Human Rights Act: incorporated the rights contained in the European Convention on HR into domestic UK law.
Further Constitutional Sources
Common law: e.g. Entick v Carrington [1765] key constitutional case in which courts stand up against power of the King and executive.
European Union law since 1973 – ECA 1972 – This was part of a multi-level and multi-layered constitution but has changed with Brexit as EU law is gradually removed the statute book and the ECJ no longer binds domestic courts.
European Convention on Human Rights since HRA 1998 in force since October 2000.
Legal treatises e.g. works of Dicey/Bagehot etc.
Law and custom of Parliament, which regulates itself but is outside the jurisdiction of the courts.
Royal Prerogative: powers of formerly of the monarch, now mostly exercised by ministers. See Miller Case 2017 re triggering Brexit.
Constitutional conventions: These are of special importance in regulating constitutional practice by constitutional actors.
Dicey’s Constitution
Parliament has supreme authority to pass and repeal law which cannot be directly challenged and this includes radical change such as Brexit. No entrenched constitution possible.
But every citizen is nevertheless subjected to ‘the rule of law’ which ensures no punishment without law/control of discretionary power and equality before the law.
Judges in the ordinary courts (rather than general civil and criminal courts, administrative courts and a constitutional court) are responsible for protecting rights using the common law e.g. Entick v Carrington [1765].
The courts do not have the power to override statute law, only to interpret it. Now the Human Rights Act 1998 incorporates the ECHR which overlaps with the common law e.g. Article 6 due process.
Conclusion: Characteristics of the Constitution
The historical constitution which developed incrementally through each of the events (and many more) mentioned here. Many of these aspects were enacted in statutory form.
Heavy reliance on constitutional conventions, these are established rules of constitutional practice that determine conduct of the Queen, PM, ministers, civil servants and Parliament e.g. Royal Assent always granted to legislation.
Constitutional monarchy - the powers of the King or Queen have been qualified since Magna Carta. Now the role of the Queen is governed mainly by strong constitutional conventions e.g. Royal Assent to legislation guaranteed.
Common law is a constitutional source. Where there is no other authority judge made law sets precedents that taken together form major parts of our law. Judges, especially of the highest courts, play a crucial role interpreting and applying the law, but there is no formal constitutional court as in many continental countries.