The legal order of the UK is not governed by a single constitutional document but by a combination of statute, common law, and constitutional conventions and practice.
The principal sources of law in England & Wales are Acts of Parliament; European Community law; Statutory Instruments and other subordinate legislation; and the common law as developed through judicial decisions. The hierarchy of these sources is described below. Where there are conflicts between the different sources of law, the principal forum for resolving them is the courts.
Civil law in England & Wales is not set out in a civil code. The civil law derives largely from the common law, but there have also been significant pieces of legislation dealing with particular areas (e.g. exclusions and limitations of liability, enforcement of contracts by third parties, interference with goods, contributory negligence, and contribution between multiple defendants).
Primary legislation is made by the UK Parliament in Westminster. Before a proposal for legislation (known as a Bill) can become an Act of Parliament, it must be approved by both Houses of Parliament (subject to what is said below) and receive the Royal Assent. Most Bills which become Acts of Parliament are Government Bills introduced in Parliament by ministers, usually following a process of consultation.
Parliament comprises the House of Commons and the House of Lords. The House of Commons is the elected chamber, consisting of 659 MPs (529 representing English constituencies and 40 representing Wales). The membership of the House of Lords consists of:
A Bill may be introduced in either House. The Commons and the Lords have slightly different procedures, but in each House there will be a debate on the principles of the Bill (“Second Reading”), followed by detailed consideration of its provisions by a committee (“Committee stage”), and a further debate in the House to consider the provisions of the Bill and any amendments made by the committee (“Report” and “Third Reading”). After passing through one House, a Bill will be sent to the other House for consideration. If amendments have been made, it will return to the House where it began for the amendments to be considered.
The House of Lords is generally regarded as a “revising” chamber with a complementary role to that of the Commons. The Lords do not have the power to prevent a Bill which has passed through the Commons from becoming law, but only to delay its enactment. If the two Houses cannot agree, the Commons may present the Bill for Royal Assent without the Lords’ agreement after a delay of 13 months (or 1 month for a Bill dealing only with taxation or expenditure).
When a Bill has passed through all its parliamentary stages, it
is sent to the Queen for the Royal Assent, after which it becomes
an Act of Parliament. It is a constitutional convention that the
Royal Assent will be given to any Act passed by Parliament, and
Royal Assent has not been refused in nearly 300 years.
In recent years, the number of Acts of Parliament enacted each year has ranged from 25 (in 2001) to 69 (in 1997).
An Act will come into effect on the day of the Royal Assent unless it contains provisions to the contrary. In practice, most Acts either specify a commencement date some time after Royal Assent, or give the relevant Secretary of State the power to bring the Act (or part of it) into effect by making a Commencement Order.
Disputes about the interpretation of legislation may be resolved by the courts. However, since there is no “written constitution” in the UK, it is not possible to challenge an Act of Parliament in court on the basis that it is “unconstitutional”. The constitutional doctrine of “Parliamentary sovereignty” holds that Parliament is the supreme legislative authority, in the sense that it may make and repeal any law, and that no other body may repeal or question the validity of an Act of Parliament.
However, the doctrine of Parliamentary Sovereignty is qualified by the UK’s membership of the European Union. By virtue of the European Communities Act 1972, European Community Law forms part of the law of England and Wales. Domestic legislation must be interpreted so as to comply with Community law wherever possible. Furthermore, if an Act of Parliament cannot be interpreted consistently with Community law, then the courts must give effect to Community law rather than the domestic legislation.
The Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK law, gives the courts another power to call Acts of Parliament into question. So far as possible, domestic legislation must be interpreted to be compatible with Convention rights. Where a provision in an Act of Parliament cannot be interpreted so as to comply with the Convention, the higher courts may make a “declaration of incompatibility”. Once such a declaration is made, a Minister may make a Remedial Order to amend the Act and remove the incompatibility (see below).
Many Acts of Parliament delegate legislative powers to public authorities such as Secretaries of State, local authorities, or statutory agencies and committees.
Secondary legislation made by central government and statutory
bodies may have various titles such as Orders in Council, Regulations
or Rules, all of which may be referred to collectively as “Statutory
Instruments”. The number of Statutory Instruments (SIs) made in
a year is often more than 3,000.
The purposes for which SIs may be made are governed by the relevant Act of Parliament, and include setting the commencement date of primary legislation, filling out the details necessary to implement broad statutory provisions, and in some cases amending primary legislation (e.g. SIs made to implement EU legislation in the UK).
The procedural requirements which apply to a particular SI depend on the provisions of the parent Act of Parliament, but there is also a general requirement that all SIs must be published. Some SIs (e.g. most commencement orders) are not subject to any Parliamentary procedure, and once signed they will come into force on the date stated in the SI. However, most are subject to some form of Parliamentary control.
An SI may simply have to be “laid” before Parliament (i.e. deposited at an office in the House) before it can come into force, without there being any requirement for Parliamentary scrutiny. However, the most common procedure is the “negative resolution procedure” which generally means that the SI is laid before Parliament and comes into effect on the date stated, but that it will be annulled if a motion to that effect is passed within a specified period (usually 40 days). Alternatively, under the “affirmative resolution procedure” an SI can only come into force if it is approved by Parliament.
When the House of Commons is called upon to consider a motion to approve or annul an SI, there may be a debate in the House or the matter may be referred to a Standing Committee. SIs may also be scrutinised by a Joint Committee of both Houses which reports on whether SIs have been made in accordance with the provisions of the relevant enabling Acts, and by the recently-established Lords Committee on the Merits of Statutory Instruments, which will consider all SIs laid before Parliament.
In July 1999 certain law-making powers were transferred to the National Assembly for Wales, which is located in Cardiff and consists of 60 Assembly Members (AMs) elected to represent Welsh constituencies and regions. The Assembly has the power to make SIs affecting Wales, but primary legislation on Welsh affairs continues to be made by the UK Parliament. The Assembly has responsibility for matters including economic development, education, the environment, health, housing, tourism and transport; but it does not have responsibility for civil or criminal law.
All subordinate legislation must comply with the terms of the enabling Act of Parliament, and will be invalid if it exceeds the powers which the Act confers or if a mandatory statutory procedure was not followed in making it. Subordinate legislation may also be challenged on other grounds, e.g. that it conflicts with rights granted by other primary legislation, the European Convention on Human Rights or directly effective EC Law; that it is irrational, oppressive, or made for an improper purpose; or that its terms are too vague. Such a challenge may be made by bringing judicial review proceedings in the High Court, or by raising the validity of the instrument as a defence in proceedings brought to enforce it. The usual remedy is a declaration that the instrument is invalid, but the High Court may also quash subordinate legislation.
Decisions of the courts of England & Wales, and particularly of the appeal courts, play an important role in the development of the law. Not only do they provide authoritative rulings on the interpretation of legislation, but they also form the basis of the common law, which accounts for most civil and commercial law.
The common law is derived from court decisions in previous cases (or case law). An important feature of the common law system is the doctrine of precedent (or stare decisis). This essentially means that, in deciding a particular case, the court must have regard to the principles of law laid down in earlier cases which raised the same issues, and where such a precedent is “binding” the court is required to follow the reasoning of the earlier case. To understand how the doctrine of precedent works, it is necessary to identify which courts’ previous decisions will be binding on other courts, and which elements of those decisions will be binding in a particular case. Further details about the court system in England and Wales can be found in “Organisation of Justice – United Kingdom”.
In general, as to which courts’ decisions bind which other courts, the general principle is that a court will be bound by earlier decisions made by a higher court. Appeal courts may also be bound by earlier decisions of the same court. In order to determine which precedents may be binding on a particular court, it is necessary to appreciate the hierarchy of the various courts in the legal system of England & Wales.
Civil, commercial and family proceedings in England & Wales are administered primarily by the county courts and the High Court, the latter handling the more substantial and complex cases.
County courts in England and Wales handle most types of civil
claim at first instance (and most also deal with family issues).
Magistrates’ courts (which are primarily criminal courts) also have
limited civil jurisdiction in family matters and in certain other
cases. Decisions of these courts are not binding on themselves or
on any other court. Magistrates’ and county courts are bound by
decisions of the High Court, Court of Appeal and House of Lords.
The High Court handles some types of appeal from county courts. It also acts as a court of first instance in relation to civil matters above a certain value; and some types of proceedings (e.g. defamation and judicial review) may only be brought in the High Court. Cases are normally decided by a single High Court judge, whose decision is binding on a lower court but is not strictly binding on another High Court judge. The High Court is bound by decisions of the Court of Appeal and House of Lords.
The Civil Division of the Court of Appeal hears over 1,000 appeals each year, from county courts, the High Court and certain statutory tribunals. Appeals are decided by panels of two or three judges (called Lords Justices of Appeal). Their decisions are binding on lower courts and tribunals, and on the Court of Appeal itself. However, there are a number of exceptions to the rule that the Court of Appeal will be bound by its own earlier decisions (e.g. if the Court which made the earlier decision did not have relevant legislation or binding authority drawn to its attention and would otherwise have reached a different conclusion, if there are conflicting Court of Appeal decisions on the point in issue, or if the earlier Court of Appeal decision is inconsistent with a subsequent decision of the House of Lords). The Court of Appeal is bound by decisions of the House of Lords.
The final court of appeal in England and Wales is the House of Lords, which hears about 50 to 60 civil appeals each year. The judicial work of the House is carried out by 12 full-time Lords of Appeal in Ordinary (or Law Lords), sometimes assisted by other serving or retired senior judges who are entitled to sit in appeals. Appeals are normally heard by an Appellate Committee of five judges.
Decisions of the House of Lords are binding on all of the courts lower in the hierarchy. The House of Lords will normally be bound by its own decisions, but will depart from them where it appears right to do so (bearing in mind the danger of disturbing arrangements which have already been entered into). The House of Lords has only rarely departed from its earlier decisions.
Finally, in relation to matters of European Community Law, the European Court of Justice is the highest authority. Its decisions are binding on all courts in England & Wales, including the House of Lords.
It is also necessary to identify which parts of a court’s decision are binding. What is binding on another court is the ratio decidendi of the court’s decision, which means the propositions of law which the court treated as necessary steps in reaching its conclusion in the case. Parts of the court’s judgment may discuss legal principles which are obiter dicta, that is not essential to the court’s conclusion, in which case they are and are not binding (although they may still have persuasive force).
Furthermore, the ratio decidendi of an earlier case will not be applied if there is a material distinction between the facts of the earlier case and the case which the court is considering. Instead, the court will “distinguish” the earlier case (i.e. hold that its ratio decidendi is not relevant to the case under consideration).
Even where judicial statements are not binding, they will often be persuasive. The courts may also have regard to decisions from other common law jurisdictions (e.g. Australia, Canada and New Zealand) and to academic writings.
An important aspect of the common law system is the publication of judgments. Court judgments are delivered in public, although this may be subject to exceptions (e.g. in cases involving children or questions of national security). Subject to such exceptions, all judgments of the House of Lords, and most judgments of the Court of Appeal and High Court, are now made available on the Internet. Important judgments have been published in various series of law reports since the 19th Century (and there are also reports of some older judgments).
The power to make treaties on behalf of the UK is vested in the Crown, i.e. the UK Government. The UK Parliament has no formal role in making treaties, but where a treaty requires a change in UK legislation or the grant of public money, Parliament will vote on that in the normal way. All EU treaties require legislation for their implementation in the UK and are therefore subject to parliamentary scrutiny.
Where a treaty is subject to ratification, the signed treaty must be laid before Parliament for at least 21 sitting days before ratification takes place. The treaty may be scrutinised by a Parliamentary select committee and/or debated in Parliament itself. However, Parliament cannot prevent the Government from ratifying a treaty. Nor can the decision to enter into a treaty be challenged in the courts.
Treaties do not have any force in English law unless they are enacted in legislation. It is not possible to challenge primary or secondary legislation, or executive decisions, on the ground that they do not comply with an international agreement. However, the courts presume that Parliament would not legislate in a way which would breach international obligations, and they take the provisions of treaties into account in interpreting domestic legislation.
Last update: 19-08-2004