Product Code Database
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and Procedural law.For Civil procedure, see Civil procedure in England and WalesFor Criminal procedure, see the Criminal Procedure and Investigations Act 1996Note: "English law" is more accurately, termed the law of England and Wales and is applied in agreements that parties will adopt the jurisdiction of England and Wales as well as for matters within the physical jurisdiction. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.
Common law is made by sitting who apply both statutory law and established principles which are derived from the Ratio decidendi from Precedent legal case. Equity is the other historic source of judge-made law. Common law can be amended or repealed by Parliament.For example, section 4 of the Carriage of Goods by Sea Act 1992 repealed the rule in Grant v Norway (1851) 10 CB 665.
Not being a civil law system, it has no comprehensive codification. However, most of its criminal law has been codified from its common law origins, in the interests both of certainty and of ease of prosecution. Law Commission Report on the Codification of the Criminal Law Fisher v Bell 1961 1 QB 394 For the time being, murder remains a common law crime rather than a statutory offence.Law Commission Consultation Paper no. 177 - "A New Homicide Act for England and Wales?"
Although Scotland and Northern Ireland form part of the United Kingdom and share Westminster as a primary legislature, they have separate legal systems outside English law.
International treaties such as the European Union's Treaty of Rome or the Hague-Visby Rules have effect in English law only when adopted and ratified by Act of Parliament.Carriage of Goods by Sea Act 1971: s.1(1)In this Act, "the Rules" means the International Convention for the unification of certain rules of law relating to bills of lading (...). s.1(2)The provisions of the Rules, as set out in the Schedule to this Act, shall have the force of law. Adopted treaties may be subsequently denounced by executive action, Arrest Convention 1952 Art. 17 unless the denouncement or withdraw would affect rights enacted by Parliament. In this case, executive action cannot be used owing to the doctrine of parliamentary sovereignty. This principle was established in the case of R (Miller) v Secretary of State for Exiting the European Union in 2017.
By contrast, English law is the archetypal common law jurisdiction, built upon case law.Penny Darbyshire writes: "... in England ... at no time was it felt necessary to look outside the principles of common law or equity for assistance. Inevitably, through the ecclesiastical courts in particular, some Roman law influence can be traced, but in general terms, this is very limited". - Darbyshire on the English Legal System (2017)
The reforming Judicature Acts of the 1880s amalgamated the courts into one Supreme Court of Judicature which was directed to administer both law and equity.Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 10 The neo-Gothic Royal Courts of Justice in The Strand, London, were built shortly afterwards to celebrate these reforms.
Formerly, most civil actions claiming damages in the High Court were commenced by obtaining a writ issued in the Queen's name. After 1979, writs have merely required the parties to appear, and writs are no longer issued in the name of the Crown. Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), discussed in House of Lords in 1980 After the Woolf Reforms of 1999, almost all civil actions other than those connected with insolvency are commenced by the completion of a Claim Form ...as prescribed by Rules 7 How to start proceedings and 8 Alternative procedure for claims of the Civil Procedure Rules) as opposed to a writ, originating application, or a summons. The Civil Procedure Rules 1998
Orders in Council are a sui generis category of legislation.
Secondary (or "delegated") legislation in England includes:
Statutes are cited in this fashion: "Short title Year", e.g. Theft Act 1968.See also: acts listed in First Schedule to Short Titles Act, 1896) where the title is the "short title", and ends in "Act", as in "Interpretation Act 1978". This became the usual way to refer to Acts from 1840 onwards; previously Acts were cited by their long title with the regnal year of the parliamentary session when they received royal assent, and the chapter number. For example, the Pleading in English Act 1362 (which required pleadings to be in English and not Law French) was referred to as 36 Edw. 3. c. 15, meaning "36th year of the reign of Edward III, chapter 15". (By contrast, American convention inserts "of", as in "Civil Rights Act of 1964").
This law further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s. It developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods, pre-colonial, colonial and post-colonial, as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the Court of Chancery, the ecclesiastical courts, and the Admiralty court.
In the Oxford English Dictionary (1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiastical law, and admiralty law.OED, 1933 edition: citations supporting that description, before Blackstone, are from the 14th and 16th centuries. For usage in the United States the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them".OED, 1933 edition: citations supporting that description are two from 19th century sources.
In the early centuries of English common law, the justices and were responsible for adapting the system of to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is the Law Merchant derived from the "Pie-Powder" Courts, named from a corruption of the Law French pieds-poudrés ("dusty feet") implying ad hoc marketplace courts.
Following Montesquieu's theory of the "separation of powers", only Parliament has the power to legislate. If a statute is ambiguous, then the courts have exclusive power to decide its true meaning, using the principles of statutory interpretation. Since the courts have no authority to legislate, the "legal fiction" is that they "declare" (rather than "create") the common law. The House of Lords took this "declaratory power" a stage further in DPP v Shaw, Shaw v DPP 1962 AC 220 HL n where, in creating the new crime of "conspiracy to corrupt public morals", Viscount Simonds claimed the court had a "residual power to protect the moral welfare of the state". Shaw v DPP case summaryViscount Simonds: "There remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for." As Parliament became ever more established and influential, Parliamentary legislation gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.
After independence, English common law still exerted influence over American common law – for example, Byrne v Boadle (1863), which first applied the res ipsa loquitur doctrine. Jurisdictions that have kept to the common law may incorporate modern legal developments from England, and English decisions are usually persuasive in such jurisdictions.
In the United States, each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law. The US Supreme Court has the final say over federal matters. By contrast, in Australia, one national common law exists.Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, Bond Law Review, Volume 27, 2015
Even after independence, many former British colonies in the Commonwealth continued to use the Privy Council, as it offered a readily available high-grade service. In particular, several Caribbean Island nations found the Privy Council advantageous.
Britain has long been a major trading nation, exerting a strong influence on the law of maritime law and maritime trade. The English law of Marine salvage,1989 Salvage Convention collisions,COLREGS ship arrest,1952 Arrest Convention and carriage of goods by seaThe Hague-Visby Rules are subject to international conventions which Britain played a leading role in drafting. Many of these conventions incorporate principles derived from English common law and documentary procedures.
The UK's highest civil appeal court is the Supreme Court of the United Kingdom, whose decisions, and those of its predecessor the House of Lords, are binding on all three UK jurisdictions. Unless obviously limited to a principle of distinct English and Welsh, Scottish or Northern Irish law, as in Donoghue v Stevenson, a Scots case that forms the basis of the UK's law of negligence. Donoghue v Stevenson 1932 UKHL 1932 UKHL
Any reference to England in legislation between 1746 and 1967 is deemed to include Wales. As to later legislation, any application to Wales must be expressed under the Welsh Language Act 1967 and the jurisdiction is, since, correctly and widely referred to as England and Wales.
Devolution has granted some political autonomy to Wales via the Welsh Parliament, which gained its power to pass primary legislation under the Government of Wales Act 2006, in force since the 2007 Welsh general election. The legal system administered through civil and criminal courts is unified throughout England and Wales.
This is different from Northern Ireland, for example, which did not cease to be a distinct jurisdiction when its legislature was suspended (see Northern Ireland (Temporary Provisions) Act 1972). A major difference is use of the Welsh language, as laws concerning it apply in Wales and not in the rest of the United Kingdom. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh may also be spoken in Welsh courts.
There have been calls from both Welsh academics and politicians for a separate Welsh justice system.
target="_blank" rel="nofollow"> First Edition of Halsbury's Laws of England Digitized", Legal Sourcery, 21 March 2017, Alan Kilpatrick.
|
|
