Introduction

Owing to the interest in UK affairs at the moment, given Brexit, it seems appropriate to write a post on the sources of English law. This is not a post on the structure and nature of the United Kingdom’s constitution; but it is a related topic.

England and Wales are a single jurisdiction within the United Kingdom, and because it would be tedious to refer to the law that operates therein as “English and Welsh law”, it is common to simply say “English law”. Scotland is a hybrid jurisdiction with elements of civil law and common law. In this context, civil law does not mean the non-criminal part of law, but is used as a term to designate the type of law system found in continental Europe (e.g. France) and is thus used as a contrast to the common law system found in the United Kingdom and her former colonies and dominions (e.g. Canada). It is common when creating a contract in the United Kingdom to specify that the contract will be governed by English law because English case law is considered to offer certain advantages not conferred by the Scots law approach to contracts. Northern Ireland is a third jurisdiction within the United Kingdom.

The four main sources of English law to be discussed below are:

• the common law;
• statute;
• equity; and
• EU law.

These sources all have their different origins and have different levels of priority within the English system. The way that they interact with one another can be complex, and they operate within different areas.

Civil vs Criminal Law

Civil law (here not as a system of law) concerns actions that do not carry criminal penalties. “Suing” or “bringing a claim” are terms used to describe the initiation of such actions. An example of such would be suing someone in contract law for breach of contract, contract law being a branch of the civil law. The person who brings the claim is called the “claimant” (formerly “plaintiff”) and the person against whom the claim is brought is called the “defendant”. An example of a remedy an unsuccessful defendant might comply with is damages, the paying of a monetary sum to the claimant. As a general rule in civil cases, the losing party also pays the other party’s legal costs. The burden of proof in civil cases is “on the balance of probabilities” – i.e. anything over 50% (more likely than not).

Criminal law concerns offences, which carry criminal penalties. These penalties are more serious than the remedies resulting from breaches of the civil law. A convicted person will be given a criminal record, which will affect his ability to be employed in various sectors or to obtain employment at all. Fines, the paying of monetary sums, are issued rather than damages, and they are paid to the state not to the individual who was actually affected by the crime. Imprisonment is a criminal sanction: it is not available as a remedy under the civil law. The prosecutor argues the case against the defendant. The overwhelming number of criminal cases are prosecuted by the state via the Crown Prosecution Service (“CPS”). The titles of such cases begin with “R v…”, where “R” stands for “Rex” or “Regina” (king or queen), and is always read out loud as “the Crown against…”. (In civil cases “v”, standing for “versus”, is read out loud as “and”, not as “versus” as in the USA). Criminal cases must be proved “beyond reasonable doubt”.

The Common Law

The common law is law made by judges in trials, known as case law. The common law provides causes of action and also provides interpretation of laws, including both statute, EU law, and common law doctrines and remedies. It operates in both civil and criminal law.

Civil Law Areas

Civil law areas include:

• Tort
• Contract
• Land law

Torts are “civil wrongs”. They include: assault, battery, tortious interference, defamation (libel and slander), trespass to land, and negligence. These were created by the courts. Statute may interact with them, but, fundamentally, they are common law affairs. As civil wrongs, they do not carry criminal sanctions. The usual remedy awarded to claimants in these cases is damages.

Criminal Law

The common law has also created criminal offences over time. Murder is a classic example. It is not defined by statute, but by case law. It was defined by Chief Justice Coke, who lived in the Elizabethan and Jacobean periods, as the “unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought”. Unlawful act manslaughter and gross negligence manslaughter (an interesting example of a civil law concept entering the criminal law) are also offences created by the common law.

Stare Decisis, AKA Precedent

The common law also involves the interpretation of the law in cases. An example of this may be where a statute created by Parliament is ambiguously worded or where it is not clear whether it should be applied to a given set of facts. In these instances, the court is asked to give a ruling on interpretation. In a sense, this could also be called the creation of law, rather than simple interpretation, because the effect is, as it were, to add an implied provision to the statute clarifying it. An example of when this has occurred is the issue of misrepresentation in contract law. A statute specified that damages were available but did not specify how they were to be assessed, whether on a contractual or tortious basis. The courts decided to interpret the statute as meaning that damages should be assessed on a tortious basis (note that a claim in the tort of deceit could theoretically be brought regarding fraud connected with the creation of a contract).

The English court system is hierarchical. On the civil side, with 1 being highest, the structure is:

1. Supreme Court (formerly Appellate Committee of the House of Lords);
2. Court of Appeal, Civil Division;
3. High Court, various divisions;
4. County courts.

On the criminal side, the hierarchy is as follows, with 1 being the highest:

1. Supreme Court (formerly Appellate Committee of the House of Lords);
2. Court of Appeal, Criminal Division;
3. High Court, Queen’s Bench Division;
4. Crown Court;
5. Magistrates courts.

The general rule is that a ruling from a higher court binds a lower court, but it is more complex than this in practice as the Court of Appeal binds itself unless an exception applies. The county courts, Crown Court, and magistrates’ courts do not produce precedent, and thus do not bind themselves. One appeals up the court hierarchy regarding points of law (and also if there has been a procedural defect in the trial).

Provided a precedent from a binding court applies, the judge must follow it, irrespective of his personal feelings on the matter. The skill of a lawyer who wants to avoid precedent is to persuasively argue that it does not quite apply to the current case, either because the underlying law is not the same or because the facts are materially different from the previous case. While this system may seem harsh, it provides stability through its predictability, which allows for effective legal planning. By contrast in the non-common law systems of other countries – e.g. the civil law system in France – there is less certainty about what a judge will do in a trial as he is not bound by previous rulings. Judges in these systems will generally follow the pre-existing jurisprudence, but they are not obliged to do so.

A further point to note, before departing from this section, is that traditionally in the context of precedent the role of the judges is to keep as close to the law as it is written. By contrast, in civil law systems, the judges try to effect the purpose of the legislation, no matter how badly or vaguely it may be written. Thus in the United Kingdom, statutes are drafted with the same precision and diligence as would be required in cases of high value commercial contracts. European statutes are more simply worded because it is expected that the courts will perceive the general spirit of the law and give effect to it. The European Court of Justice (“ECJ”), an institution of the European Union (“EU”), operates in this civil law fashion which is not consonant with the common law tradition of England and Wales.

Statute

Statute refers primarily to laws created by Parliament, but includes bylaws and other legislation created by local authorities and other bodies. Parliamentary laws fall into two basic categories: Acts (primary legislation) and statutory instruments (secondary, or delegated, legislation).

I will not give all the details of the creation of an Act here. In a nutshell: a Bill is proposed by a Member of Parliament (MP) or a lord who has the right to sit in the House of Lords (as opposed to lords who do not); the Bill is debated and voted upon in the House of Commons and House of Lords; if it successfully passes these stages it is signed into law by the monarch, called the giving of Royal Assent, which converts it into an Act of Parliament. The Act comes into force according to the specified time within it, which may be on Royal Assent or a specific date or a time chosen by the minister responsible for bringing it into force. An Act may come into force all at once, or in stages. There are Acts currently in force that contain provisions that are not yet in force.

Delegated legislation is generally not voted upon by Parliament. It is created by government ministers under the authority granted them by specific treaties and Acts of Parliament (see also “Henry VIII powers”: https://www.parliament.uk/site-information/glossary/henry-viii-clauses/). These statutes are generally for the purpose of bringing provisions of Acts into force or formally incorporating EU legislation and ECJ rulings into English law. A great many statutory instruments are created every year: it would be impractical for Parliament to debate them all. Nevertheless, where one that is very controversial is created, there is nothing to prevent Parliament attempting to pass legislation that overrides it.

Statute can override the common law. If Parliament wanted to create its own definition of murder, it could do so. It operates in both the civil and criminal spheres, in both public and private law. Thus there are statutes of affecting prison sentences, damages in tort, membership of the House of Commons, and the application of contractual rights to third parties.

Traditionally statute was considered the highest form of law in the land. The courts under the “enrolled Act rule” do not question the validity of an Act of Parliament. However, there is some conflict between the common law and statute. In the famous Jackson case, it was suggested obiter that where Parliament created an Act that went against the fundamental principles of democracy and liberty that underpin our constitution, the courts may decide to refuse to enforce that Act.

Statutes generally did not clash with treaties. However, treaties are the basis of our membership in the EU. EU law is now the highest form of law in the land, and so, on that basis, treaties can be said to be the highest form of law in the UK – though this is an ongoing constitutional debate. It can be argued that Parliament will only gain its supremacy once our current foundational treaties with the Member States of the EU are at an end.

Equity

Equity is distinct from law, though that distinction is less meaningful nowadays. Equity was born of the Crusades. When a knight or lord went to fight in the Holy Land, he would legally transfer his lands to a friend or relative to hold on trust (i.e. for the benefit of) for himself and his family.

A problem arose when the knight returned and the “friend” would not return his land to him. Under the common law, the friend was the legal owner and could not be compelled to give the land back. This was unfair and so a fair or “equitable” solution was sought from the king himself, who had the power to compel the friend to return the land to the knight.

The increase in such cases made it impractical for the monarch to deal with them personally, and so this duty was entrusted to his chancellor. The chancellor and his subordinates thus gave rise to the name for the court that handled these applications, the Court of Chancery, which gives its name to Chancery Lane in London. This principle of fairness that lay behind this system encouraged people to bring other types of request before the Court, and thus its influence grew.

It operated in parallel to the courts of law, with its own cases and principles to guide its judgments. These principles are known as “equitable maxims”. A few examples of such maxims are: “he who comes to equity must come with clean hands”; “equity will not perfect an imperfect gift”; “equity sees that as done what ought to be done”; and “equity is equality”.

In the late 19th century, it was felt that these separate systems of law and equity ought to be combined for the purpose of stability, efficiency, and simplicity. A single court system was created in which judges could hear both types of application as separate cases or within a single case and could award both common law and equitable remedies.

An important equitable maxim to remember in this combination is: “equity follows the law”. Equity interacts with the civil law only, not with the criminal law. It follows the common law; it does not overturn it. Furthermore, under the common law, where the case is proved, its accompanying common law remedy must be given as of right (unless statute specifies to the contrary), whereas an equitable remedy is discretionary. Thus there is the concept of “satisfying the equity”: an equitable remedy is only available where it is in the interests of fairness; and the circumstances of the case will determine the type of remedy that is available. Cases involving creatures of equity, such as fiduciary duties, will have equitable remedies potentially available.

Examples of equitable remedies and doctrines include:

• estoppel;
• injunctions;
• rescission;
• laches;
• equitable tracing (as opposed to common law tracing);
• intermeddling; and
• constructive trusts.

Equity may be considered an English parallel to the concepts of fairness and honest dealing that underpin the civil law jurisprudence of contract law in continental Europe. Since equity is discretionary in nature, it is unwise to rely upon it for solutions unless the case clearly falls in an established area of equitable activity. The purpose of equity is not to punish but to do what is fair between the parties in the circumstances of the case.

EU Law

EU law is a vast and complex area of law that requires a great deal of study in its own right. It generally interacts with the civil side of law, but it does play a part in the criminal side too. EU law affects all areas of life, including: workers’ rights; requirements for packaging of food and other products; fishing rights; consumer rights; family rights; border control; tariffs; and constitutional law.

EU law is binding on the Member States of the EU by virtue of the foundational treaties that give authority to EU institutions to create and interpret EU law. The main types of EU legislation are as follows:

• Treaties;
• Regulations; and
• Directives.

Treaties are binding on all Member States (because all have signed them) and do not necessarily require formal incorporation into that State’s law system (it will depend on how the ratification of treaties and other relevant system matters are handled). Regulations are automatically binding on all Member States and do not require formal incorporation (although, again, a State may choose voluntarily to do so or because its constitution so requires): whether it is formally incorporated or not it applies in that Member State, even if the Member State voted against it in the European Council or European Parliament. Directives are binding on the States to which they are addressed (which may or may not be all of the Member States). They must be formally incorporated into those States’ law systems by the date specified in the Directive. Failure to incorporate or properly incorporate a Directive can carry sanctions. The power to issue Directives and Regulations and the manner in which they are binding derives from the treaties themselves, which are considered foundational, primary legislation, while the latter are considered secondary.

EU law interacts with both statute and the common law in England and Wales. We have statutes that incorporate EU law into our legal system and those statutes, along with the EU legislation itself, have been interpreted and applied by judges in our case law. Courts and tribunals in England and Wales, provided they satisfy certain criteria, can, and in some cases must, refer cases involving EU law to the Court of Justice of the European Union (CJEU), which comprises the General Court (a lower court) and the ECJ, which is its supreme court. The ECJ has ultimate authority for the interpretation, administration, and application of EU law. Its rulings, despite the civil law basis of EU law, are treated in England and Wales as binding precedent that cannot be altered by our Supreme Court. Thus the highest court in England and Wales, as far as EU law is concerned, is the ECJ by virtue of the EU treaties.

I would like to end this lengthy post by placing before the reader a most serious application of these principles of EU law. In the infamous Factortame saga, the ECJ required the English courts to issue an injunction suspending an Act of Parliament. This is not lawful under traditional English constitutional jurisprudence as statute is the highest form of law in the land. It is also contrary to principles of democracy and representational government, since Parliament is elected, but the judiciary is not. Nevertheless, the courts complied and at that time it became clear that treaties are the highest form of law, not statute, and certain treaties had made EU law supreme in the United Kingdom. The ECJ cases of Costa v Enel and Internationale Handelsgesellschaft also enforced the principle that EU law is supreme over the constitutional laws of Member States. Thus the Poles, in wanting to pass a resolution stating that Polish law is supreme over EU will be acting against the jurisprudence of the ECJ. Any Polish law that is at variance with EU will be of no effect as far as the ECJ is concerned.