Understanding the words like 'The English' Legal' and 'System' will be interestingly engaging. Though these words are often used by us, it is not very clear as to why these words are used in the phrase. This article will help the readers to put them into context. Let's understand the word 'England' which is commonly referred to as 'Britain', the UK or the United Kingdom.

But the country has an official legal title 'United Kingdom of Great Britain and Northern Ireland. Since 1920 the latest title became relevant with the partition of Ireland and twenty six countries were given independence, forming the Republic of Ireland.[1] This title also demonstrates "Britain' or more correctly 'Great Britain'. The second word that will be examined is 'legal' which is grammatically an adjective for 'law' and the final word 'system' and understanding precisely what a system is may draw an intellectual debate.

The United Kingdom Of Great Britain

Commonly known as the United Kingdom (UK) or Britain, is a sovereign country in Europe, comprises of four countries England, Wales, Scotland, and Northern Ireland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland, and many smaller islands.

The United Kingdom is a unitary parliamentary democracy, and constitutional monarchy. The monarch, Queen Elizabeth II, has reigned since 1952.The status of Wales differs from England, Scotland, and Northern Ireland.

Traditionally Wales was a principality (a province ruled by a prince) and this is a term that continues to be used by some, not least because the Crown Prince of the United Kingdom is known as the Prince of Wales and thus the logic, to some, is that it follows that Wales is a principality. Others disagree and argue that Wales is a country and should be accorded that title.

In reality the distinction between principality and country is moot and either title could be used although it would seem that many in Wales itself dislike the term principality. Wales does differ from the other constituent countries in that it has not had its own legal system since the sixteenth century, although this is arguably changing now.

England And Wales

Wales does not, as yet, have its own legal system (see, however, the Government of Wales Act 2006 discussed later-see 'Welsh legislation') and following the Laws of Wales Act 1535, Wales in effect became legally 'annexed' by England and ensured that the laws of England would apply in Wales too.

This Act was passed by an English-only Parliament but part of its purpose was to ensure that there could be Welsh representation in the (then) English Parliament. A further Laws of Wales Act was passed in 1543 and gave further effect to the governance of Wales and the long title of the Act makes express reference to its status as a principality. This was followed by the Wales and Berwick Act 1746 that defined 'England' as including all of Wales.

This Act was repealed by the Interpretation Act 1978, but prior to this, its extent had been limited by the Welsh Language Act 1967,3 which re-introduced the concept of Wales as a country in its own right.

It is not correct to say the English Legal System; it is technically the Legal System of England and Wales. That this is correct can be seen when one examines the main legal institutions. The senior courts are technically known as the Superior Courts of England and Wales.[2]

The body for solicitors, known as the Law Society, is actually the Law Society of England and Wales and the body for barristers, known as the Bar Council, is actually the General Council of the Bar for England and Wales. This extends to judicial offices with the Lord Chief Justice technically being the Lord Chief Justice for England and Wales, something perhaps more readily understood with the current holder of the office, Lord Thomas of Cwmgiedd, an obviously Welsh location for his barony.

Welsh Legislation

As noted earlier, the Government of Wales Act 2006 (GoWA 2006) granted Wales a limited form of legislative powers. Initially this was through 'Assembly Powers' which were, in essence, a form of secondary legislation since each power required the approval of the Privy Council[3] but following a referendum in 2011 (which was required under s 103) the Welsh Assembly was permitted the right to pass Acts of the Assembly.

These legislative instruments are primary legislation in Wales and, unlike measures, do not require the approval of the Privy Council (although they do, as with UK legislation, require Royal Assent). However, it would be wrong to say that Wales has yet reached the status of either Scotland or Northern Ireland in terms of devolved legislative powers, not least because its legislative competences are somewhat restricted.[4]

A number of Acts of Assembly have been passed, including the Schools Standards and Organisation (Wales) Act 2013, the National Health Service Finance (Wales) Act 2014, and the Renting Homes (Wales) Act 2016. Despite the introduction of these Acts of Assembly, realistically it will be some years before the laws of England and Wales differ dramatically, and even then it will not affect the legal system since courts and both civil and criminal procedure are not devolved matters (cf the position in both Scotland and Northern Ireland).

Scotland

Scotland is a country and joined the United Kingdom as a result of an Act of Union. The history of England and Scotland is probably well known to most readers and involved numerous battles between the two countries, sometimes with England winning, sometimes with Scotland winning. Indeed some of the battles occurred after the union with perhaps the most notable being the uprising led by 'Bonnie Prince Charlie's who believed that he was the rightful heir to the throne.

Prior to the countries uniting, England and Scotland shared a sovereign, when King James VI of Scotland assumed the throne of England as King James I. This continued even through the 'Glorious Revolution' of 1688 when King William III and Queen Mary II jointly ruled both thrones.

The countries were joined by the Act of Union 1707. In fact two statutes were passed as both the English and Scottish Parliaments had to pass the Act. The effect of the Act was to extinguish the Parliaments of both England and Scotland and create a Parliament of the United Kingdom. Perhaps one of the most important aspects of the Act was the preservation of Scots law. Title 19 of the Act expressly preserved the Scottish Legal System and governed how appointments to the senior judiciary would be made. The principle of a separate legal system has continued throughout and devolution has merely altered the mechanics of this.

Northern Ireland

Northern Ireland is the most recent addition to the United Kingdom, it being created in 1920. Prior to that Ireland was a whole country and it was a member of the United Kingdom as a result of the Act of Union 1801.

There were many similarities between the Acts of Union 1707 and 1801 and it was intended that it would be a merger: Ireland did not become part of the United Kingdom of Great Britain but transformed it into a new body, the United Kingdom of Great Britain and Ireland.

The merger was political expediency: the two countries had shared the same King since the sixteenth century and there was close cooperation between the Parliaments but it was believed more appropriate to create a single country. Like Scotland, Ireland retained its own legal status and although there were United Kingdom laws (ie laws that applied across the entire United Kingdom) there were also individual Irish laws

The United Kingdom

The election of a Labour government to the Westminster Parliament in 1997 led to the process of devolution. Theoretically devolution does not affect purely English matters; the law continues to be passed by the Parliament at Westminster. Devolution principally affects Northern Ireland and Scotland and this is outside the scope of this book although it is likely you will discuss them in Constitutional Law or similar modules.

Westminster remains the Parliament of the United Kingdom and the devolution instruments expressly preserve the right of Westminster to pass legislation that affects both Scotland and Northern Ireland. This is known as 'extent'. Both prior to and following devolution, the convention is that if an Act of Parliament is silent as to its extent (ie there is not a section within the Act of Parliament that discusses its extent) then it applies only to England and Wales. If the Act is to apply to either Scotland or Northern Ireland then a section within the Act will expressly state this and also the provisions that apply.

Legal

The second word to examine is 'legal' which is the adjective for 'law' but what is 'law'? One of the first things to note is that we talk about a 'body of law' meaning that there is more than one law. Indeed those of you who are studying for a law degree can find that out from your degree title. Most of you will be reading for the degree of LLB (Hons) but do you know what that stands for? It is the abbreviation for Legum Baccalaureus which means Bachelor of Laws. Why is it that there are two 'L's? It is because in Latin the abbreviation for a plural is to repeat the first letter (whereas we use 's', ie Law becomes Laws).

Classifying Law

Before considering what law is (which will require a brief examination of the philosophy of law) it is worth reflecting on the types of law that exist. Law can be classified in various ways and the approach that is taken to the law will be governed by its classification.

Substantive Or Procedural

The first division that perhaps has to be discussed is that which exists between substantive and procedural law. It will be seen later that some theorists, most notably Hart, argue that law can be classified into primary and secondary rules. Primary rules are considered to be laws that set out rights, duties, and obligations. Secondary rules determine how the primary rules are to be recognized, interpreted, and applied. Whilst this can be considered relatively simplistic it does assist in our understanding of the distinction between substantive and procedural laws.

What is the first thing you think about when you think of law? There is a reasonably high chance that it will be crime (see 1.2.1.3). This is not uncommon because it is one of the few areas of law that most people know something about but also because it is an interesting area of law and one that the media deal with on a daily basis. The actual crime is substantive law, in other words substantive law is that which sets out the rule which must be followed.

Where someone is suspected of breaching this substantive law, there has to be an investigation, prosecution, and trial. All of these areas are also governed by laws so that an individual is protected against arbitrary interference by the state. These laws differ from the rule that says a person cannot commit a crime but they are nonetheless laws, and must be followed. These rules are procedural law and they set out the framework by which the substantive law will be determined.

Substantive and Procedural Law Section 1 Theft Act 1968states:

1. A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and 'thief' and 'steal' shall be construed accordingly. This is a substantive law. It is in combination with s 7 (which prescribes the punishment for theft), states that a person must not steal.
   
   Section 24 Police and Criminal Evidence Act 1984 states:
   
   1. A constable may arrest without a warrant:
      
      1. anyone who is about to commit an offence;
      2. anyone who is in the act of committing an offence;
      3. anyone whom he has reasonable grounds for suspecting is about to commit an offence;
      4. anyone whom he has reasonable grounds for suspecting to be committing an offence.
   2. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

This is procedural law. It sets out the circumstances when a police officer may arrest someone, those being (approximately) that a person has committed, or is about to commit, a breach of the substantive law.

Private Or Public Law

The next distinction that needs to be drawn is between private and public law. This is a more subtle distinction as it straddles both substantive and procedural law; ie both substantive and procedural law could be either private or public law. A crude but effective separation is to suggest that private law concerns disputes that exist between citizens, and public law is disputes that exist between the state and the individual. It is perhaps the definition of 'public' that is more relevant since certain disputes between public bodies may actually give rise to private law matters.

Civil Or Criminal Law

It may seem that one of the more obvious distinctions to make is between civil and criminal law but, as we will see, this is not always a simple distinction. The distinction does not, as is sometimes believed, necessarily follow the private and public split.

Civil law is effectively anything that is not criminal. This may appear a trite statement but to an extent it is easier to say this than to suggest that a crime is anything that is not civil. This is because it is generally easier to identify what is criminal rather than civil. The civil law encompasses many different bodies of law mixing both private and public law.

Ordinarily criminal matters can be categorized as public law in that the state is becoming involved in its sovereign capacity in relation to a citizen. In criminal matters the state will ordinarily be the prosecutor (for offences that take place in the Crown Court this will normally be through the sovereign (known as Regina when the sovereign is female and Rex when the sovereign is male) and in magistrates' courts ordinarily through the Director of Public Prosecutions or Crown Prosecution Service (12.1.1)).

Whilst many crimes will have a victim, who will almost certainly be a citizen, it is not necessarily a private dispute between citizens. Indeed the state can, if it so wishes, bring a prosecution regardless of the views of the victim (12.1.2.1). This would make it a public law matter,

However, criminal law can, under certain circumstances, be a private law matter too. Although the state sets out the legal framework and will ordinarily prosecute, there remains in England and Wales the right to undertake a 'private prosecution'. This will be discussed elsewhere (12.1.5) but in essence means that a private citizen acts as the prosecutor and brings court proceedings.

Whilst the state can intervene it need not do so, and accordingly in that guise it would appear to be private law (because the state is not present); but the laws are made on the assumption that the state will be the prosecutor so is this not still public law merely instigated privately? This is confusing but does demonstrate an important point: there are no clear answers in law and thus the divisions noted in this chapter will always be somewhat imprecise in practice.

System

The final word to examine is that of 'System'. Identifying precisely what a system is can be open to debate but it is probably more than the individual rules or laws and is instead the concept of how law is administered. In the same way that law can be divided into civil and criminal law (1.2.1.3), there are two systems, the criminal justice system and the civil justice system. Thus the system is how the law is to be applied and envelopes some procedural law together with the courts etc.

Common Law
The English Legal System is an example of a common-law-based system. This can be contrasted with the other principal system which is sometimes known as the civil system (which can be confusing as it does not mean civil as in the distinction between civil and criminal law) and more readily understood as the continental system.

These two legal systems can be found throughout the world and their use reflects the geopolitical influence of Britain, Spain, and France. Accordingly, those areas of the world that were parts of the British Empire (eg the United States of America, Canada, Australia, New Zealand, and certain African states) have all tended to follow the common-law-based system of law whereas those that formed part of the French and Spanish empires (eg Continental Europe, Latin America, and certain parts of Africa) have adopted the continental approach.

Common-Law System

The principal hallmark of the common-law system is, as its name suggests, the recognition of something called 'common law'. In England and Wales law is not only passed by Parliament (known as statutory law) but also can develop from the previous decisions of courts. It is for this reason that precedent (which is explained in further detail in Chapter 3 but may be summarized here as the basis upon which certain courts set out rulings which they and other courts must follow) is so important to the common law system. The origins of the common law are contested.

However, there is broad agreement that it emerged following the Norman Conquest and that King Henry Il played a pivotal role in its development. Before the Conquest, and indeed for a period afterwards, different areas of England were governed individually by local laws and customs, rather than by a national legal system. Local courts were governed by the King's stewards, with the King himself (perhaps unsurprisingly) presiding over the King's Court (the Curia Regis), which followed him as he travelled around the country. The Curia Regis was the origin for the development of the Court of the Exchequer and the Court of Common Pleas, as well as the Court of King's Bench.

When Henry II came to the throne (1154-89) he introduced a series of reforms which sowed the seeds of the common-law system. In 1166 at the Assize of Clarendon, Henry II ordered the non-King's Bench judges to travel around the country's circuits and establish the 'King's peace' by deciding cases. In doing so, rather than applying the piecemeal laws found in local areas, the judges applied the new laws of the state which were 'common' to all.

In 1178, he appointed five members of the Curia Regis to sit permanently at a court in Westminster 'to hear all the complaints of the realm and to do right'. This court was the origin of the Court of Common Pleas. Eventually the court separated into two, and the Court of the King's Bench emerged, continuing to follow the King around the country.

By the 1170s it was also possible to distinguish the work of the Exchequer from that of the rest of the Curia Regis, dealing with financial litigation and some matters of equity, eventually leading to the creation of the Court of the Exchequer. Thus, by the thirteenth century three senior courts existed, those of the Common Pleas, the Kings Bench, and the Exchequer. The judicial decisions in these cases produced 'common' law, applicable to all in the country.

The term 'common law' was used to distinguish between law that was decided by the Royal Courts in London and which was applied throughout the kingdom (thus a 'common' approach to the law), ecclesiastical (Church) law (which remained an important source and application of law until the nineteenth century), and local customary law.

Eventually the common law tock over the other sources of law, especially as the reporting of decisions became more ordered and it was thus easier to see how judges were applying the law. The common law remains strong today and, whilst it is comparatively rare for the courts to create a new legal principle, there continues to be a significant amount of law that exists without statutory definition.

Common Law v/s Equity

Whilst we now refer to the system in England and Wales being a common-law system it is also necessary to refer to the place of equity. Prior to the Judicature Acts of 1873 and 1875 equity was considered a parallel system to the common-law courts.

It is not true to think of it as being separate to the common law as its jurisdiction was inextricably linked to the common law but the common-law courts were restricted to granting damages and so if somebody could not petition the court, or wished something other than damages, the common-law courts could not assist.

There was also a belief that the common-law courts were too mechanistic and that the strict rules of law sometimes created unfairness. People began to petition the King (as Sovereign) for justice and he began to delegate these matters to the Lord Chancellor and eventually created a separate series of courts, the courts of Chancery, to resolve such matters.

The courts of Chancery proceeded not on the basis of the strictures of common law but on the principles of justice and they could dispense equitable rather than legal resolutions, something based on fairness, and which incorporated other remedies, including injunctions and the ability to recognize beneficial, and not just legal, interests.

Equity introduced a series of new and innovative resolutions but it became quickly apparent that in many instances a dispute could be resolved either under the common law or equity and the two parallel systems often conflicted. In the Earl of Oxford's case31 the courts were called upon to decide whether common law or equity took priority.

It is not necessary to consider the facts of this case in depth and you will probably read about it in Equity & Trusts but, in essence, there was an allegation that a judgment of the common-law courts had been obtained by bribery. The Chancery court issued an injunction preventing the common-law order being enforced and this led directly to a conflict between the two jurisdictions. It was ultimately resolved by it being ruled that in a dispute between the common law and equity, equity would prevail.

The Judicature Acts of 1873 and 1875 resolved this tension by unifying the jurisdictions and creating one Supreme Court of judicature (now embodied by the Senior Courts of England & Wales). All courts-not just the courts of Chancery-were able to exercise the equitable remedies and hence now the part of the High Court that is seen as the successor to the common-law courts (the Queen's Bench Division) readily issues equitable remedies such as injunctions or mandatory orders.

It is important to note the jurisdictions did not merge and it is possible today to distinguish equity from the common law (and indeed you will do so when you study the module Equity and Trusts). Equity is based on a series of principles-known as equitable maxims which continue to be used and which were considered to encapsulate the inherent fairness of equity.

Continental System

The continental system differs from a common-law system in that it is based on the primacy of written laws. Continental systems tend to be codified, meaning that the laws are all set out in a document. This is not only the hallmark of the continental system since in many common-law countries (most notably America) they have a codified criminal law whereby all of the crimes and procedural rules relating to the criminal justice system are set out in one document, commonly referred to as a Penal Code.

The codification system means that judges are not 'creating' new laws or rights but simply interpreting the laws set out by the legislature. Accordingly, if there is a 'gap' in the law then it cannot be filled by the judges. However, of course, in practice the concept of 'interpretation' is almost as fluid as the idea of judicial creations and the fact that many courts will 'follow' the decisions of other judges (even though they arguably do not have a formal system of precedent per se) means that the law will develop in the way that the judges desire.

An Adversarial System

The second hallmark of the English Legal System (and indeed all common-law systems) is that it is an adversarial system. This refers to how cases are adjudicated upon and can be distinguished from the inquisitorial system that is frequently found within the continental system.

Adversarial Approach

The adversarial approach to law is where the adjudication is seen as a contest between two or more sides and it is fought out before a neutral umpire (the judge and/or jury. The judge, whilst able to ask questions, should not seek to become an investigator and should rather concentrate on ensuring that both sides are obeying the procedural rules governing the presentation of their case.[5]

A central plank of the adversarial process is the fact that the parties, not the court, call witnesses. Both parties will gather their evidence, including asking witnesses to give statements. The parties will then decide which witnesses they are going to call to give evidence in court.

The opposing party is able to challenge this evidence in two ways. The first is through calling their own witnesses who may provide an alternative viewpoint on the issues. The second, and more combative, method is to allow witnesses to be cross-examined. Cross-examination is where a party directly challenges the witnesses' evidence and puts the contrary case to them.

The other key principle of the adversarial system is that of the importance of orality. In both the criminal and civil systems of justice there is still the assumption that providing live oral evidence is the best way of arriving at the facts. Indeed in a criminal trial where there is no dispute between the parties as to what the witness will say (ie there will be no cross-examination) then the statement given by that person will be tendered as evidence. The way it is tendered is that it is read out aloud.

Inquisitorial Approach

The continental system tends to adopt an inquisitorial approach. In this sense the court becomes the investigator itself. Rather than the judge being a neutral umpire, he is given the authority to seek out the truth by asking questions of the witnesses. The respective lawyers seek to control this questioning by reference to the procedural rules and to this extent it can be argued the roles of counsel and the judiciary are almost mirrored.

It has been suggested that one advantage of this model is that it ensures that all relevant witnesses are heard whereas in the adversarial system, if a witness's evidence is not helpful to a side, he or she may not be called. Consideration was given to whether the English Legal System should move towards an inquisitorial approach but the Royal Commission on Criminal Justice argued that this would be a significant cultural shift. Arguably this is correct and it cannot be accidental that common-law systems tend to be adversarial with continental systems being inquisitorial, suggesting that any shift to either model may involve a rethink of the legal system as a whole.

References:

• Alisdair Gillespie, Sioban Weare, The English Legal System (7th Edition 2019)
• https://www.iclr.co.uk/knowledge/topics/the-english-legal-system/
• Thomson Reuters, Practical Law
• Beale, Joseph H. (1935) A Treatise on the Conflict of Laws.
• Darbyshire, Penny (2017) Darbyshire on the English Legal System - 12th ed - Sweet & Maxwell
• Dicey & Morris (1993). The Conflict of Laws - 12th edition - Sweet & Maxwell
• Slapper, Gary; David Kelly (2016). The English Legal System.
• Barnett, Hilaire (2008). Constitutional & Administrative Law.
   

End-Notes:

1. It is often erroneously said that the 26 countries constitute 'Southern Ireland', presumably as the opposite of 'Northern Ireland'. However, this is both legally incorrect.(the formal name of the state is The Republic of Ireland.(in English)
2. Welsh Language Act 1967, s 4.
3. ibid, s 107.
4. Jones v National Coal Board(1957)QB-55

Written By: Dr SK Bose, is currently working as Associate Professor at School of Law & Director, Centre for Legislative Studies & Research, Manav Rachna University, Delhi-N

Also Read:

• The Legal System in India: An Analysis