TheUnited Kingdom has three distinctly different[1]legal systems, each of which derives from a particular geographical area for a variety of historical reasons:English law (in the joint jurisdiction ofEngland and Wales),Scots law,Northern Ireland law,[2] and, since 2007, calls for a fourth type, that of purelyWelsh law as a result ofWelsh devolution, with further calls for aWelsh justice system.[3][4][5]
In fulfilment of its former EU treaty obligations,European Union directives had been transposed into the UK legal system on an ongoing basis by the UK parliament. UponBrexit, non-transposedEU law (such asregulations) was transplanted into domestic law as "retained EU law", with an additional period of alignment with EU law during thetransition period from 31 January to 31 December 2020.
There are three distinct legal jurisdictions in the United Kingdom:England and Wales,Northern Ireland andScotland.[6] Each has its ownlegal system, distinct history and origins, although there is a substantial overlap between these three legal systems and the three legal jurisdictions.
Unlike the other three, Welsh law is not a separate legal systemper se, merely the primary and secondary legislation generated by theSenedd, interpreted in accordance with the doctrines of English law and not impacting uponEnglish common law (except where such Welsh legislation ousts a common law rule by virtue of being a superior form of law).
The UK does not have a single legal system because it was created by the political union of previously independent countries. Article 19 of theTreaty of Union, put into effect by theActs of Union in 1707, created theKingdom of Great Britain but guaranteed the continued existence of Scotland's and England's separate legal systems.[7] TheActs of Union of 1800, which joined Great Britain andIreland into theUnited Kingdom of Great Britain and Ireland, contained no equivalent provisions but preserved the principle of different courts to be held in Ireland, of which the part called Northern Ireland continues to follow as part of the United Kingdom.
Each legal system defaults to its jurisdiction, each of whose courts further that law throughjurisprudence. Choice of which jurisdiction's law to use is possible inprivate law: for example, a company inEdinburgh, Scotland and a company inBelfast, Northern Ireland are free to contract using English law. This is not so inpublic law (for example, criminal law), where there are set rules of procedure in each jurisdiction.
Although Scotland and Northern Ireland form part of the United Kingdom and share Westminster as a primary legislature, they have separate legal systems. (Even though Scotland became part of the UK over 300 years ago,Scots law has remained remarkably distinct from English law). The UK's highest civilappeal court is theSupreme Court of the United Kingdom, whose decisions are binding on all three UK jurisdictions, as inDonoghue v Stevenson, a Scots case that forms the basis of the UK's law ofnegligence.[8]
"Great Britain" means England, Wales, Scotland, their adjacent territorial waters and the islands ofOrkney andShetland, theHebrides and, by virtue of the Island of Rockall Act 1972,Rockall. "United Kingdom" means Great Britain and Northern Ireland and their adjacent territorial waters, but not theIsle of Man, nor theChannel Islands, whose independent status was discussed inRover International Ltd. v Canon Film Sales Ltd. (1987)[9] andChloride Industrial Batteries Ltd. v F. & W. Freight Ltd. (1989).[10] "British Islands" – but not "British Isles" – means the United Kingdom, the Isle of Man and the Channel Islands.
The first schedule of theInterpretation Act 1978, defines the following terms: "British Islands", "England", and "United Kingdom". The use of the term "British Isles" is virtually obsolete in statutes and, when it does appear, it is taken to be synonymous with "British Islands". For interpretation purposes, England includes a number of specified elements:
English and Welsh law (or justEnglish law) refers to thelegal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English and Welsh law is based on the principles ofcommon law.[12] English and Welsh law can be described as having its own legal doctrine, distinct fromcivil law legal systems since 1189.
There has been no majorcodification of the law, rather the law is developed byjudges incourt, applyingstatute,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 inlaw reports.
Thecourts of England and Wales are headed by theSenior Courts of England and Wales, consisting of theCourt of Appeal, theHigh Court of Justice (for civil cases) and theCrown Court (for criminal cases). The Supreme Court is the highest court in the land for both criminal and civil appeal cases inEngland andWales (also in Northern Ireland cases and civil cases in Scots law) and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions.[13]
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 onjudicial review both administrative decisions of the Government and delegated legislation. Before theSupreme Court of the United Kingdom was created in October 2009, the highest appellate body was theAppellate Committee of the House of Lords, usually just referred to as "TheHouse of Lords".[13]
After theActs 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 byLord Mansfield and in time the development of the law ofnegligence. Scottish influence may have influenced the abolition of theforms of action in the nineteenth century and extensive procedural reforms in the twentieth. Since theaccession of the United Kingdom to the European Communities in 1973, English law has also been affected byEuropean law under theTreaty of Rome.
Welsh law is the primary and secondary legislation generated by theSenedd, using the devolved authority granted in theGovernment of Wales Act 2006, amended substantially byWales Act 2014 andWales Act 2017, and in effect since May 2007. Each piece of Welsh legislation is known as anAct of Senedd Cymru.
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 theParliament at Westminster, 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 theFirst Minister of Wales known as "The Commission on Justice in Wales" and chaired byLord Thomas of Cwmgiedd, looked into the operation of justice in the country. Its aim was to further clarify the legal and political identity of Wales within the UK constitution. The commission's report was released in October 2019 and recommended the full devolution of the justice system. This would formalise Wales as the fourth jurisdiction of the UK.[14]
There have been multiple calls from both academics and politicians however for aWales criminal justice system.[3][4][5]
The law of Northern Ireland is acommon law system. It is administered by the courts of Northern Ireland, with ultimate appeal to theSupreme 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 theKingdom 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 ofIreland, of theUnited Kingdom and ofNorthern Ireland are in force, and latterly statutes of the devolvedNorthern Ireland Assembly. Thecourts 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. The Supreme Court is the highest court in the land for both criminal and civil appeal cases in 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.
Scots law is a unique legal system with an ancient basis inRoman law. Grounded inuncodifiedcivil law dating back to theCorpus Juris Civilis, it also features elements ofcommon law withmedieval sources. ThusScotland has apluralistic, or 'mixed', legal system, comparable to that ofSouth Africa, and, to a lesser degree, the partlycodified pluralistic systems ofLouisiana andQuebec.
Upon the formation of theKingdom of Great Britain under the 1707Acts of Union, Scots law shared a legislature withEngland and Wales. While each retained fundamentally different legal systems, the 1707 Union brought English and Welsh influence upon Scots law, and vice versa. Since theaccession of the United Kingdom to the European Communities in 1973, Scots law has been affected byEuropean law under theTreaty of Rome. The establishment of theScottish Parliament and creation of theScottish Government in 1999, which legislates on all matters within domesticareas of legislative competence, has created a further major source of Scots law.
Under theUK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 following thewithdrawal of the United Kingdom from the European Union in 2020[15] it is required that devolved Scots law has to stay in alignment with futureEU law despite the virtue of no longer being amember state.
The chief courts are theCourt of Session, for civil cases,[16] and theHigh Court of Justiciary, for criminal cases.[17] TheSupreme 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.[18] However, unlike in the rest of the United Kingdom, the Supreme Court of the United Kingdom has no role as the highest court of appeal for Scottish criminal cases: this is forbidden by Article XIX of theTreaty of Union between Scotland and England.[19]
Sheriff courts deal with most civil and criminal cases including conducting criminaltrials 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 sixsheriffdoms.[19] The Scottish legal system is unique in having three possibleverdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in anacquittal with no possibility ofretrial.[20] In very rare circumstances, theHigh Court of Justiciary can create new criminal offences without reference to Parliament, using itsdeclaratory power to do so.
TheCabinet Secretary for Justice and Home Affairs is the member of theScottish Government responsible forPolice Scotland, thecourts andcriminal justice, and theScottish Prison Service, which manages the prisons in Scotland.[21]
Retained EU law (REUL) is a category of law in the United Kingdom created at the end of the transition period following the UK'swithdrawal from the EU. REUL includes EU legislation which was "cut and pasted" into domestic law, along with certain domestic laws whose role was to implement EU regulations and directives. The objective of REUL is to maintain "legislative continuity".[22]
TheSupreme Court of the United Kingdom is the highest court in the UK for all criminal and civil cases inEngland and Wales and Northern Ireland, and for all civil cases in Scots law.[13] The Supreme Court is the final court, in the normal sense of the term, for interpreting United Kingdom law. Unlike in some other systems, for example, the United States, the Supreme Court cannot strike down statutes. Its precedents can be expressly overridden by Parliament, by virtue of the doctrine ofparliamentary sovereignty. The Supreme Court came into being in October 2009, replacing theAppellate Committee of the House of Lords.[23][24]
InEngland and Wales, thecourt system is headed by theSenior Courts of England and Wales, consisting of the Court of Appeal, theHigh Court of Justice (for civil cases) and theCrown Court (for criminal cases). TheCourts of Northern Ireland follow the same pattern.
In Scotland, the chiefcourts are theCourt of Session, for civil cases, and theHigh Court of Justiciary, for criminal cases.Sheriff courts, as they deal with both criminal and civil caseloads, have no equivalent outside Scotland.
Certain tribunals for administrative law cases have UK-wide jurisdiction, notably those dealing with immigration—theUpper Tribunal (Immigration and Asylum Chamber) andSpecial Immigration Appeals Commission—military and national security, competition and intellectual property, and a few others. Similarly, theEmployment Appeal Tribunal has jurisdiction throughoutGreat Britain but not in Northern Ireland.
TheJudicial Committee of the Privy Council is the highest court of appeal for several independentCommonwealth countries, theBritish Overseas Territories, and the BritishCrown Dependencies.
TheParliament of the United Kingdom isbicameral, with anupper house – theHouse of Lords, and alower house – theHouse of Commons. In addition to the two houses, theKing is also a component of Parliament.
The House of Lords includes two different types of members: TheLords Spiritual (the seniorbishops of theChurch of England) and theLords Temporal (members of thePeerage). 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 thePalace of Westminster, commonly known as the "Houses of Parliament", in theCity of Westminster inLondon. Byconstitutional convention, allgovernment ministers, including thePrime Minister, are members of the House of Commons or House of Lords.
Parliament evolved from theearly medieval councils that advised the sovereigns ofEngland andScotland. The King, Lords, and Commons acting together to legislate may be described as theKing-in-Parliament.[25] The King-in-Parliament is, according to the doctrine ofparliamentary sovereignty, completely sovereign with the power to make and unmake any law other than to bind itself.
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 theUnited Kingdom proper.
The Northern Ireland Assembly (Irish:Tionól Thuaisceart Éireann,[26]Ulster Scots:Norlin Airlann Semmlie)[27] is thedevolvedlegislature ofNorthern Ireland. It has power to legislate in a wide range of areas that are not explicitlyreserved to theParliament of the United Kingdom, and to appoint theNorthern Ireland Executive. It sits atParliament Buildings atStormont inBelfast.
The latest incarnation of the Assembly was established under theGood Friday Agreement of 1998, an accord aimed at bringing an end to Northern Ireland's violent 30-yearTroubles. It is based on the principle ofpower-sharing under theD'Hondt method to ensure that Northern Ireland's largest political communities, theunionist andnationalist communities both participate in governing the region.
The Assembly is aunicameral,democratically elected body comprising 90 members who are known asMembers of the Legislative Assembly, or MLAs. Members are elected under thesingle transferable vote form ofproportional representation.
The Scottish Parliament (Scottish Gaelic:Pàrlamaid na h-Alba;Scots:Scots Pairlament) is located in theHolyrood area of the capitalEdinburgh. The Parliament, which is informally referred to as "Holyrood"[28] (cf. "Westminster"), is a democratically elected body of 129 members who are known asMembers of the Scottish Parliament or MSPs. Members are elected for four-year terms under theAdditional Member System ofproportional representation.[29]
73 MSPs represent individual geographicalconstituencies elected by theplurality voting system ("first past the post"). A further 56 are returned from eightadditional member regions, each electing seven MSPs.[29] 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'. It legally exists as a subset of Westminster and derives its powers as such.
The originalParliament of Scotland (or "Estates of Scotland") was the national legislature of the independentKingdom of Scotland and existed from the early thirteenth century until the Kingdom of Scotland merged with theKingdom of England under theActs of Union 1707 to form theKingdom of Great Britain.[30] As a consequence, the Parliament of Scotland merged with theParliament of England, to form theParliament of Great Britain, which sat at Westminster in London.[30]
Since 2007, theSenedd (Welsh Parliament;Welsh:Senedd Cymru), previously known as the 'National Assembly for Wales', has been invested with legislative powers. It is situated in Cardiff. The Senedd, first elected in 1999, is a democratically elected body of 60 members who are known as Members of the Senedd or MSs. Members are elected for five-year terms under the Additional Member System of proportional representation. 40 MSs represent individual geographical constituencies elected by the plurality voting system ("first past the post"). 20 are returned from five additional member regions. Each region elects four MSs.
After centuries of settlement and conquest, the United Kingdom has legal relationships to many territories outside its borders. These includesovereign states that do and do not share a monarch and judicial institutions with the UK, anddependencies where the UK government, parliament, and crown do retain some power.
Mostcountries that have gained independence from the UK are no longer subject to the British parliament, monarchy, or courts. They consist of a mix ofrepublics (for exampleIreland andIndia) and localmonarchies (for exampleKuwait andBrunei) with no relationship to the royalHouse 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 theUnited States. TheRoyal Proclamation of 1763 explicitly appliedEnglish Common Law to all British overseas colonies, and affirmed some degree of local law-making. TheAmerican Revolutionary War resulted in a unilateral separation recognized by thePeace of Paris (1783), but the English system continued to be used as the basis for court decisions. Over time, it was modified by theUnited 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 formerThirteen Colonies, though adjudicated by theSupreme Court of the United States. Some parts of the United States not subject to British rule have laws based on other traditions, such as French civil law inLouisiana, and Native American law inareas of tribal sovereignty.
Some countries were granted independence by an act of the UK parliament (for example, theStatute 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 thelaw of Afghanistan.
By special agreement, the UK-basedJudicial 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 theSultan of Brunei.
Commonwealth realms, for exampleAustralia, are former colonies that are now sovereign states fully independent of the UK parliament. However, they share other legal institutions with the UK, to varying degrees.
King Charles III remains theconstitutional 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 localviceroy. Most powers are irrevocably delegated to a parliament more or less modelled on theWestminster 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 toJudicial 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. SeeJudicial Committee of the Privy Council § Overseas jurisdiction for full list.
The "Imperial" Privy Council based in England advises the shared monarch on the use ofroyal prerogatives and parliament-authorized powers in the form ofOrders in Council, and can also issue its own delegatedOrders of Council. In some countries, a domestic council performs this function, namely:
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 theConstitution Act, 1867 and ending with theConstitution Act, 1982. Like their southern neighbours, the Proclamation of 1763 extended English Common law to all the Canadian colonies, includingNova Scotia (which being Scottish might have operated underScots law).[31]French civil law was later re-applied toQuebec.[32]
TheChannel Islands are held by the British Monarch by virtue of inheriting thefeudal title ofDuke of Normandy. These were never part of England, Wales, Scotland, Ireland, or the United Kingdom. Most of the historicalDuchy of Normandy is on the European continent and was conquered by France. TheIsle of Man is held by the British Monarch by virtue of inheriting the feudal title ofLord 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, which like the UK parliament requires royal assent to pass laws. The British monarchy retains responsibility for defence, 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. The islands ofAlderney andSark in theBailiwick of Guernsey have their own parliaments, and the parliament of Guernsey generally only extends Bailiwick-wide laws to them with their consent.
Residents of the dependencies do not have representation in the UK Parliament. UK law does not apply to the dependencies unless explicitly stated or clearly intended,[33] and such laws are almost always executed by the monarch in the form of anOrder in Council. This constitutional arrangement was tested when the Isle of Man, supply base forRadio Caroline, rejected theMarine, &c., Broadcasting (Offences) Act 1967, but the legislation was extended to the island anyway by an Order in Council. This resulted in some protests and talk of independence in the Manx legislature, but no consequential action.[34] For centuries, UK laws have been considered to override local legislation, but since the 1980s, the ManxStaff of Government Division have asserted the two are co-equal.
Legal cases may be appealed to theJudicial Committee of the Privy Council. Residents are treated the same as residents of the UK for the purposes ofBritish nationality law, though local governments control local immigration and employment. Prior to Brexit this made citizens of the British dependencies EU citizens, but the exchange of people and goods with the EU and UK was subject tospecial arrangements.
Though not considered internal to the boundaries of United Kingdom, the UK maintains control over British Overseas Territories. Unlike Commonwealth realms, BOTs fall within theMonarchy of the United Kingdom. TheJudicial Committee of the Privy Council is the court of final appeal. Three of the BOT are uninhabited, andAkrotiri 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 theUnited Nations list of non-self-governing territories. Gibraltar, prior to Brexit, was the only BOT which was a part of the European Union, and residents voted for a representative in the European Parliament in theSouth West England district. Prior to Brexit all citizens of British Overseas Territories were EU citizens, even thoughEuropean Union law only applied 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 theFalkland Islands are autonomously governed by their locally elected parliaments, with the UK responsible only for defence and foreign affairs and granting limited autonomy to local governments to have relations with other countries and international organizations. On the sparsely populatedPitcairn Islands, the representative of the UK government has nearly unlimited power.
Citizenship and nationality law is governed by the UK parliament. Immigration is controlled by local governments. The UK parliament retains the ultimate legislative power, and ensuresgood governance.
The phrase 'Crown in Parliament' is used to describe the British legislature, which consists of the Sovereign, the House of Lords and the House of Commons.
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