Introduction to the legal system of England and Wales - Over...

Learning Outcomes

This article explains the structure and operation of the legal system of England and Wales. The key outcomes include the ability to describe the principal sources of law—statute, case law (common law/equity), retained EU law, and international law—as well as the constitutional arrangement of institutions making and applying the law. Additionally, the article details the hierarchical nature of the courts, the principle and operation of judicial precedent (stare decisis), and the factual circumstances determining when precedents are binding or persuasive. The importance of parliamentary sovereignty, the rule of law, and separation of powers are highlighted within the context of the UK’s flexible, uncodified constitution. The practical significance of these elements for understanding jurisdiction, legal reasoning, and the limits and obligations of government is examined. Further, coverage includes the role of statutory interpretation and how fundamental principles shape the development and application of law in professional practice, including the impact of human rights law and alternative dispute resolution.

SQE1 Syllabus

For SQE1, you are required to understand the legal system of England and Wales, with a focus on the following syllabus points:

• the main sources of law in England and Wales (legislation, case law, retained EU law, international law)
• the structure and hierarchy of the courts, including their jurisdiction and appellate routes
• the doctrine of precedent and its operation within the court hierarchy
• the constitutional principles of parliamentary sovereignty, the rule of law, and separation of powers
• the process and significance of statutory interpretation
• the impact of human rights law on the domestic legal system

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is meant by the doctrine of parliamentary sovereignty in the legal system of England and Wales?
2. Which court is the highest appellate court for civil and criminal cases in England and Wales?
3. What is the difference between primary and secondary legislation?
4. What is the principle of stare decisis and how does it affect the operation of precedent?
5. Name two key constitutional principles that underpin the legal system of England and Wales.

Introduction

The legal system of England and Wales is anchored in a combination of legal rules, principles, and institutional relationships designed to govern society, maintain order, and uphold justice. This overview provides a basic account of how law is made, applied, and developed in practice, focusing on the primary sources and types of law, the structure and function of courts, the doctrine of precedent, and the constitutional doctrines that support the entire legal system. The interplay between legislation, common law, retained EU law, and international norms is critical to understanding both historical evolution and modern practice.

The Main Sources of Law

The law in England and Wales is derived from various principal sources, each with its distinct authority, role, and form.

Key Term: legislation
Legislation refers to law made directly by or with the authority of Parliament. This includes both Acts of Parliament (also known as statutes or primary legislation) and delegated (secondary) legislation enacted by ministers or other authorised bodies under the authority of an Act.

Key Term: primary legislation
Primary legislation is law passed by Parliament in the form of Acts of Parliament (statutes). It is the highest form of domestic law and prevails over all other domestic legal sources.

Key Term: secondary legislation
Secondary (or delegated) legislation is law made by persons or bodies under powers given to them by an Act of Parliament (known as the parent or enabling Act). Secondary legislation is most commonly issued through statutory instruments.

Key Term: case law
Case law is law developed by the decisions of judges in individual cases, forming a body of legal principles that are applied in future similar cases.

Key Term: retained EU law
Retained EU law is the body of European Union law which, having been incorporated into UK law during the UK's membership, continues to have effect in the UK after Brexit as directed by the European Union (Withdrawal) Act 2018 and related legislation.

Key Term: international law
International law comprises rules and agreements between nations, including treaties, conventions, customary rules, and, where incorporated, these can be given internal legal effect through domestic legislation.

Primary and Secondary Legislation

Acts of Parliament—primary legislation—form the principal law of the legal system and are the supreme law within domestic legal hierarchy. Parliamentary sovereignty ensures that Parliament can make or unmake any law it wishes, and no other body can override or question its Acts.

Key Term: parliamentary sovereignty
Parliamentary sovereignty is the doctrine that the UK Parliament is the supreme law-making body. It can make or repeal any law it chooses, and no court or other body may set aside its legislation.

In practice, Parliament cannot create every detailed rule itself. Instead, it confers powers to ministers or other bodies to make detailed rules by delegated (secondary) legislation—for example, through statutory instruments, regulations, or orders. This secondary legislation enables the legal system to respond swiftly to changing needs, fill in technical detail, and implement framework provisions of Acts of Parliament.

Primary and secondary legislation together enable Parliament to set down the main principles and delegate appropriate levels of detail for effective governance.

Case Law and Precedent

Judicial decisions, especially from superior courts, form a major component of English law, particularly in areas not governed by detailed statutes. This body of law, known as the common law, is continuously developed and modified through the doctrine of precedent (stare decisis). In addition to common law, the courts have developed and applied principles of equity, which evolved to mitigate the harshness or inflexibility of the common law and provide remedies (such as injunctions or specific performance) not available at law.

Key Term: stare decisis
Stare decisis ("to stand by things decided") is the doctrine that courts should follow legal principles enunciated and applied in previous analogous cases in order to support certainty and uniformity in the law.

The principle operates across the hierarchical structure of the courts. Decisions of higher courts are binding on lower courts in subsequent cases with similar material facts. Where no relevant statute applies, common law principles guide the decision.

Key Term: equity
Equity is a body of legal principles developed by the Court of Chancery to supplement the common law where its strict application would cause injustice. It adopts maxims such as "he who comes to equity must come with clean hands" and provides remedies such as injunction and specific performance.

Retained EU Law and International Law

After Brexit, the European Union (Withdrawal) Act 2018 provides that EU law which applied in the UK before exit day continues to be part of domestic law as "retained EU law." This ensures legal continuity by retaining regulations, directives already implemented, and other Brussels-derived legislation in force as domestic law unless and until amended or repealed by Parliament. Over time, this body of law is increasingly subject to UK legislative amendment.

International law—including treaties, conventions, and international customary law—may form part of domestic law only when incorporated by Parliament, either by primary or secondary legislation. For example, the Human Rights Act 1998 incorporates rights from the European Convention on Human Rights into domestic law.

A practical example illustrates interplay between sources of law: Parliament enacts legislation (the statute), which is interpreted and applied by courts, but sometimes this legislation incorporates or refers to EU law or international treaties as the substantive standard.

Worked Example 1.1

A statute prohibits discrimination "contrary to any international convention to which the UK is a party." A claim is brought under the statute, but the convention has not been incorporated into domestic law.

Answer:
The courts cannot directly enforce the unincorporated international convention, unless Parliament gives it legal force through primary or secondary legislation. The statute, however, may allow the court to refer to the convention as an interpretive aid, if Parliament so provides.

The Court Structure and Hierarchy

The courts of England and Wales are structured in a strict hierarchy, which is fundamental for the operation of the doctrine of precedent and the appellate system. The structure also has direct implications for deciding to which court a particular matter should be brought and the appeal routes that are available.

Key Term: court hierarchy
The court hierarchy is the ranking of courts by their status and authority, with higher courts having the power to set binding precedents and decide appeals from lower courts.

Overview of the Court System

• Magistrates' Courts: Primarily deal with criminal cases of summary offences, some civil matters (like licensing), and preliminary hearings. They are courts of first instance and often staffed by lay magistrates, advised by a legally qualified clerk. Their sentencing powers are limited. In addition, magistrates’ courts make initial determinations in all criminal cases, sending more serious cases upwards as necessary.

• Crown Court: Handles indictable criminal cases, trials involving a jury, and appeals against conviction or sentence from the magistrates’ courts. The Crown Court is a senior court and has broader sentencing powers. It also hears committals for sentence and is presided over by judges with appropriate criminal jurisdiction.

• County Courts: These are the main forum for the resolution of most civil disputes, including contract, tort, property, business disputes, and family matters. Cases of limited value and complexity almost always start here, though even high-value claims may do so. County courts operate through a system of small claims, fast track, and multi-track to ensure cases follow appropriate procedures in accordance with value and complexity.

• High Court: As a senior court, the High Court of Justice is divided into three Divisions:

  • King's Bench Division (QBD): Deals with civil claims (contract, tort, some complex commercial disputes), appeals on points of law from lower courts, and judicial reviews.
  • Chancery Division: Focuses on land law, trusts, probate, company law, and insolvency.
  • Family Division: Handles family law matters not covered by the Family Court, especially those involving international elements or the general jurisdiction of the High Court. The High Court has original (trial) jurisdiction and appellate jurisdiction, including appeals from county courts or (in some instances) tribunals. It can also conduct judicial review of administrative bodies.

• Court of Appeal: Consists of two divisions:

  • Civil Division: Hears appeals from the High Court, county courts, and certain tribunals.
  • Criminal Division: Hears appeals from the Crown Court in criminal matters. The Court of Appeal binds all lower courts and generally follows its previous decisions, subject to certain exceptions.

• Supreme Court: The highest appellate court in the UK for both civil and criminal cases from England, Wales, and Northern Ireland (and civil cases from Scotland). It is the final arbiter for points of law of general public importance. Supreme Court decisions are binding on all other courts.

• Specialist tribunals: Employment Tribunals, First-Tier and Upper Tribunal chambers, and other specialist administrative courts handle disputes in areas such as immigration, social security, and professional discipline. Appeals from most tribunals go to the Upper Tribunal or the High Court, depending on the statutory scheme.

Key Term: rights of audience
Rights of audience describe the right of a legal professional (usually solicitors and barristers) to represent a party and address the court. Barristers have rights of audience in all courts by qualification; solicitors must acquire higher rights of audience for senior courts.

Below the High Court, county courts, magistrates’ courts, and family courts are considered "inferior" courts and do not create binding precedents for other courts but are, in turn, bound by decisions of higher courts.

Appeals and Appellate Routes

The English court system is designed so that decisions taken in the lower or trial courts can commonly be reviewed by a superior court for errors of law, procedural error, or (in some cases) fact.

In criminal cases, appeals against conviction from the magistrates’ courts go to the Crown Court. Further appeals, or challenges by way of judicial review or by way of case stated, can be made to the High Court (Queen's Bench Divisional Court). Appeals from the Crown Court go to the Court of Appeal (Criminal Division), and the Supreme Court only considers appeals on points of law of general public importance, where permission is granted.

In civil claims, first appeals from the county court generally go to a higher judge in the county court or to the High Court, depending on the rank of the first-instance judge and the complexity or significance of the case. Appeals from the High Court mostly go to the Court of Appeal (Civil Division), with a possible direct "leapfrog" appeal to the Supreme Court in cases of general public importance, or on other limited grounds. Final appeals are heard by the Supreme Court, but only on compelling points of law of wider importance.

The use of "track" allocation in civil courts (small claims, fast track, multi-track) is designed to match procedural requirements to the value and complexity of cases, ensuring proportionate and efficient case management.

The Doctrine of Precedent

The doctrine of precedent forms the principal element of common law legal reasoning in England and Wales. It ensures that legal principles established by higher courts are followed by courts lower in the hierarchy in cases involving similar material facts. The goal is to support legal certainty, fairness, and predictability.

Key Term: binding precedent
A binding precedent is a legal principle established by a higher court that must be followed by lower courts in future cases with materially similar facts and legal issues.

Key Term: persuasive precedent
A persuasive precedent is a decision or legal reasoning that, while not strictly binding, may influence a court in reaching its decision. This may arise from past decisions of other jurisdictions, lower courts, or obiter dicta from higher courts.

The operation of precedent depends fundamentally on the principle of stare decisis. The higher up the court in the hierarchy, the more authoritative the legal principle it develops. Precedent also distinguishes between ratio decidendi (the legal principle or rule essential to the outcome of the case, which is binding) and obiter dicta (other statements in a judgment that do not form part of the binding principle but may be persuasive in later cases).

Key Term: doctrine of judicial precedent
The doctrine of judicial precedent is the process by which legal principles developed by higher courts are binding on lower courts and generally on the court that created the precedent. This supports consistency and stability but allows change where permitted by the hierarchy.

In general:

• Decisions of the Supreme Court bind all lower courts; it may depart from its own previous decisions in rare cases "when it appears right to do so."
• The Court of Appeal is bound by Supreme Court decisions and usually binds itself, unless one of the exceptions applies (such as conflicting past decisions or "per incuriam" errors).
• The High Court is bound by both higher courts and, unless sitting as an appellate court, is not strictly bound by its own past decisions.
• Inferior courts generally do not create binding precedent but are bound by superior courts.

Horizontal binding in appellate courts is more complex but aims to maintain consistency unless compelling reasons justify departure.

Worked Example 1.2

A claimant brings a negligence action in the County Court. The judge finds for the defendant, but the claimant appeals to the High Court, which reverses the decision. Is the County Court bound by the High Court’s ruling?

Answer:
Yes. The County Court is bound by the decision of the High Court on a point of law, which sets a binding precedent for future cases at that level with similar facts.

Appeal courts may also reverse the decision of a lower court in a particular case, and in rare circumstances, overrule an existing precedent set by their own court where the established exceptions are met.

Constitutional Principles

The English legal system is not only shaped by rules and institutions but also governed by fundamental constitutional principles, reflecting its uncodified, evolutionary constitution.

Key Term: parliamentary sovereignty
Parliamentary sovereignty confirms that Parliament is the supreme legal authority, able to enact or repeal any law. No court or other body may override its statutes.

Key Term: rule of law
The rule of law holds that every person and institution, including the government, is subject to the law and that laws should be public, clear, and apply equally to all. It requires due process, fairness, and accountability, limiting the arbitrary exercise of power.

Key Term: separation of powers
Separation of powers refers to the institutional division of state authority among the legislative (Parliament), executive (government), and judiciary, supporting checks and balances and reinforcing the independence of each branch.

Parliamentary Sovereignty

The concept of parliamentary sovereignty is central in the UK’s constitutional framework. Parliament can legislate without restraint and no Parliament can bind its successors. Courts cannot strike down or refuse to apply Acts of Parliament. Parliamentary sovereignty is evidenced by the ability to override common law principles, international law, and even constitutional conventions, unless Parliament provides otherwise. However, devolution, the incorporation of international law (for example, the Human Rights Act 1998), and the legacy of EU membership introduce some practical and political constraints.

Parliament may choose to limit its own power (such as requiring referendums or special procedures for certain legislation), but in legal theory, these constraints can always be removed by a later Parliament.

The Rule of Law

The rule of law requires that state power is exercised lawfully, that the law is accessible and clear, and that individuals are protected from arbitrary actions. This principle is reflected in the need for all government decisions to be justifiable by reference to law, and for the government itself to be held to account through judicial review and independent courts.

Lord Bingham's analysis expands the rule of law to demand equal application of law, protection of fundamental rights, access to justice, independent and impartial courts, and compliance with international obligations. The principle is important in upholding civil liberties, providing effective legal mechanisms for redress, and maintaining trust in the justice system.

Separation of Powers

The UK system involves a complex mix of joint exercise and separation of powers. Parliament exercises legislative functions; the government (executive) implements and administers policy; and the judiciary interprets and applies the law—though the actual boundaries are less distinct than in strict theoretical models. Parliament holds the government to account, the government is drawn from Parliament, and the judiciary’s independence from political interference is fundamental.

Recent constitutional reforms—such as the establishment of the Supreme Court as an institution separate from Parliament and the creation of the Judicial Appointments Commission—have enhanced the separation between the judiciary and executive, bolstering judicial independence.

Worked Example 1.3

A government minister issues a regulation that exceeds powers granted by an Act of Parliament. Can the courts intervene?

Answer:
Yes. Courts have jurisdiction to review the legality of executive action through judicial review. If a minister acts ultra vires (beyond legal powers), the courts can quash the regulation, demonstrating the operation of checks and balances and the importance of the rule of law.

Statutory Interpretation

Statutes may be unclear, ambiguous, or silent on new factual scenarios. Courts apply established interpretive approaches and rules to discern Parliament’s intent and apply the law to the facts.

Key Term: statutory interpretation
Statutory interpretation is the judicial process of deciding what statutory words and provisions mean, including applying rules such as the literal, golden, mischief, and purposive approaches.

• Literal Rule: Requires the court to give words their ordinary and plain meaning, even if the result seems harsh or unexpected.
• Golden Rule: Permits departure from the ordinary meaning to avoid absurd or repugnant outcomes, either narrowly (where multiple meanings are possible) or more broadly (to avoid a result contrary to public interest or policy).
• Mischief Rule: Allows the court to consider the “mischief” or problem the legislation was designed to address and interpret its provisions accordingly.
• Purposive Approach: Emphasises the broader aim and purpose of legislation, often informed by context, extrinsic materials, and, when specific criteria are met, parliamentary debates (e.g., Hansard in limited circumstances).

Courts also use rules of language (e.g., ejusdem generis, noscitur a sociis) and apply presumptions (for example, against retrospectivity, or for the requirement that criminal offences require mens rea unless Parliament provides otherwise).

Key Term: rules of language
Rules of language help clarify statutory meaning by looking to context, lists, and associated words within legislative text.

Modern practice is influenced by the need to construe legislation compatibly with human rights where possible (Human Rights Act 1998, s. 3), and to consider retained EU law in accordance with its original legislative purpose.

Worked Example 1.4

A statute prohibits "vehicles" in a public park. A person is fined for riding an electric scooter in the park. The court applies the literal rule. What is the likely outcome?

Answer:
The court will interpret "vehicle" according to its ordinary, dictionary meaning. If an electric scooter falls within that ordinary meaning, the fine is upheld; if not, the individual may not be liable under the provision.

Human Rights and the Legal System

Human rights law—incorporated principally through the Human Rights Act 1998—has a significant impact within the legal system of England and Wales. The Act gives domestic effect to the rights and freedoms set out in the European Convention on Human Rights, requiring public authorities and courts to act consistently with protected rights.

When interpreting statutes, courts must, so far as possible, read the law compatibly with Convention rights. However, if a statute cannot be read compatibly, courts may make a declaration of incompatibility rather than disapplying the statute—the consequences of such declarations are political rather than strictly legal, unless Parliament chooses to amend the law.

The Human Rights Act strengthens the accountability of public authorities, reinforces judicial remedies, and requires that public law is shaped to protect individual liberties. It does not grant courts the power to strike down Acts of Parliament, maintaining the central importance of parliamentary sovereignty.

Worked Example 1.5

A statutory provision is found to violate a Convention right. What may the court do?

Answer:
The court must interpret the statute compatibly with the relevant Convention right as far as possible. If it cannot do so, it may issue a declaration of incompatibility, highlighting the inconsistency to Parliament. The statute remains valid and enforceable unless amended by Parliament.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) covers processes such as negotiation, mediation, and arbitration, providing means of resolving disputes outside the traditional court system. Tribunals also play an important role in rapidly resolving certain disputes, such as employment or immigration matters.

Courts are increasingly proactive in encouraging parties to consider ADR; an unreasonable refusal to engage in ADR by a party can have negative costs consequences. The tribunal system, established under the Tribunals, Courts and Enforcement Act 2007, provides specialist forums for disputes between individuals and the state as well as between private parties.

ADR supports efficiency, flexibility, confidentiality, cost-effectiveness, and greater autonomy for parties in resolving disputes.

Key Point Checklist

This article has covered the following key knowledge points:

• the main sources of law in England and Wales: legislation (primary and secondary), case law (common law and equity), retained EU law, and international law
• the distinction between primary and secondary legislation, and the legislative process for both
• the structure and hierarchy of the courts, including summary, civil, criminal, and specialist jurisdictions
• the doctrine of precedent and how it determines when judicial decisions are binding or persuasive
• fundamental constitutional principles of parliamentary sovereignty, the rule of law, and separation of powers, and their practical operation
• the role of statutory interpretation, including the literal, golden, mischief, and purposive rules, and the importance of rules of language and legal presumptions
• the effect of human rights law, through the Human Rights Act 1998 and related jurisprudence, on public authorities and statutory interpretation
• the importance and practical operation of tribunals and alternative dispute resolution in the legal system

Key Terms and Concepts

• legislation
• primary legislation
• secondary legislation
• case law
• retained EU law
• international law
• equity
• court hierarchy
• rights of audience
• stare decisis
• binding precedent
• persuasive precedent
• doctrine of judicial precedent
• parliamentary sovereignty
• rule of law
• separation of powers
• statutory interpretation
• rules of language