UNIT 1: Introduction to the Legal System of
England and Wales and Sources of Law
1.1 Introduction: What is a Legal System?
A legal system varies based on perspective:
o Judges: Resolving disputes in society.
o Politicians: Assisting in resource allocation.
o Scientists: Enabling and protecting research.
o Businesses: Ensuring fair play.
o Ordinary People: Protection of freedoms.
Definition by Slorach, Embley, Goodchild, and Shephard (2017):
o A legal system is a body of institutions that make, execute, and resolve
disputes on the law of a jurisdiction.
o A jurisdiction refers to the political entity where a particular law applies.
1.2 What a Legal System Is Not
Not for pleasure: It involves hard choices, not unlimited enjoyment
Not optional: People cannot pick and choose the extent of its application.
Not ethereal: A legal system is permanent, not temporary.
Examples of Non-Legal Systems:
Children playing in the street: No legal element, voluntary and temporary.
Family breakfast: Voluntary, pleasurable, not governed by a legal system.
Factory work: Governed by safety considerations, but not a full legal system.
1.3 Examples of Legal Systems Around the World
India:
o Constitution (1950): Over 450 articles and 12 schedules.
o Cultural & Historical Factors: British Empire influence, mutiny of 1857,
partition in 1947.
o Unofficial Elements: Agricultural diversity, cricket, railway system.
China:
o Constitution (1982): Amendments made over time.
o Cultural & Historical Factors: Dynasties, Confucian philosophy,
Chairman Mao’s influence.
o Unofficial Elements: Modern tech, city-countryside divide, Communist
Party control.
USA:
o Constitution (1787): Endures with 27 amendments.
o Cultural & Historic Elements: Role of France and Spain, slavery, global
trading power.
o Unofficial Elements: Frontier individualism, sports culture, immigrant
traditions.
1.3.1 Conclusion: Common Elements of Legal Systems
Constitution: Foundation of legal framework.
Central & Local Government: Relationship between levels of governance.
Dominant Leadership: Key figures setting the agenda for the system.
Geography & Military Events: Influences from geography and neighboring
states.
Religion: Impact of religious beliefs on law.
Unofficial and Popular Will: Public influence, unrest, and expectations.
Grassroots Activities: Trade, leisure, and travel shaping the system.
Technology: Technological advancements influencing legal frameworks.
,1.4 The Rule of Law: Definition
Lord Bingham's Definition:
o All persons and authorities, whether public or private, are bound
by and benefit from laws that are:
Publicly stated
Administered in the courts
Key Principles:
o Clear and Predictable Law: Laws must be easily understood and
predictable.
o Subordination of Discretion: Discretion should be subordinate to the
exercise of law
o Equality Before the Law: Everyone should be treated equally under the
law.
o The state should provide an essential safety net for the settlement of
matters which private parties and individuals were unable to resolve
o Access to Justice: The state should resolve disputes that individuals
cannot settle on their own.
o Adherence to Obligations: The state must adhere to both national and
international legal obligations.
1.4.1 Case: Benkharbouche and Janah v Secretary of State for Foreign and
Commonwealth Affairs [2017] UKSC 62
Context: Foreign nationals working in embassies alleged unfair treatment
(discrimination, unpaid wages, unfair dismissal).
Issue: Embassies claimed immunity under state sovereignty.
Court Decision: Supreme Court ruled immunity does not apply in these claims,
emphasizing:
o Human Rights Act (1998) and European Convention on Human
Rights (1950)
o Equality before the law, prioritizing employees’ rights over state immunity
o Judicial involvement when individuals cannot resolve disputes
o International perspective on legal matters
1.4.2 Significance of the Rule of Law in England and Wales
Role in Governance: Ensures certainty for nationals and foreigners alike,
establishing the UK as a global center for justice.
Core Values:
o Treats people equally regardless of wealth or status.
o Relies on rules, precedent, and law.
Importance of Rule of Law: Without the rule of law, legal systems in other
jurisdictions may fail to offer justice or fairness.
1.5 International Law and the UK
International Law's Role:
o The UK is subject to international law but does not consider it superior to
its domestic law.
o Treaties and Conventions: The UK subscribes to many, but not all
international agreements (e.g., Kyoto Protocol’s struggle with climate
issues).
o UK’s Position: International law supports but does not override the rule
of law within the UK legal system.
1.6 Legal System History: From 1066
, William the Conqueror’s Influence:
o Introduced systems of control and land ownership.
o Established hierarchical jurisdiction and record-keeping (e.g., reports and
assizes).
o Conflict and dissatisfaction led to early foundations of modern law.
1.7 Magna Carta 1215
Historical Significance:
o Regulated relations between King John and the nobility.
o Important Clauses:
Clause 12: Taxation requires consent.
Clause 13: Acknowledges the commercial importance of the City of
London.
Clause 17: Ensures fixed locations for lawsuits (continuing in
modified forms today).
Clauses 38-40:
No trial based solely on self-incrimination.
Justice must follow the law and cannot be delayed or denied.
Equal treatment before the law.
Legacy: Introduced important concepts still relevant in modern democracies,
such as the importance of monarch and elites courts, rule of law. fair justice,
and equality before the law, barons and higher nobility
1.8 Legislation and Parliamentary Power
Development of Parliamentary Law:
o Early recorded acts (e.g., 1497) show the beginnings of Parliament's role
in lawmaking.
o The monarch’s approval was essential for law creation (Royal Assent).
o Key Principle: Government by decree (without Parliament) is un-British,
and laws must involve parliamentary approval.
1.9 How the Judiciary Found Its Voice
The judiciary's journey towards self-assertion began during Henry VIII's reign,
particularly with his desire to divorce his first wife and separate from the
Catholic Church.
Judicial pronouncements gained significance as the King distanced himself from
the Catholic establishment.
Sir Thomas More, Chancellor to Henry VIII, was executed for resisting the King’s
demands, highlighting early tensions between the monarchy and the law.
Chief Justice Coke's ruling in Prohibitions del Roy (1607) established the
principle of separation of powers, asserting that judges, not the monarch, should
make legal decisions.
In Case of Proclamations (1610), Coke ruled that the King had no power to
suspend or make laws without Parliament's consent, reinforcing limits on royal
power.
o The Crown, and thus government are bound by the law and cannot act
outside it
Lord Atkin's dissent in Liversidge v Anderson (1942) emphasized that even in
wartime, the judiciary must protect individual liberties from executive
overreach.
The Miller v Secretary of State for Exiting the European Union (2017) case
reaffirmed that executive power cannot overreach and Parliament must be
involved in triggering Brexit, limiting the royal prerogative.
, 1.10 Bill of Rights 1688
The Bill of Rights 1688 was a key document that limited the monarchy’s power
and contributed to the development of Parliament and the courts.
It reinforced principles like freedom of speech, the existence of juries,
prohibition of cruel and unusual punishment, and the requirement for free
elections to Parliament.
The Bill of Rights declared that the Crown could not suspend or make laws
without the involvement of Parliament, emphasizing the rule of law and limits on
royal power.
1.11 Extending the Franchise
The franchise was gradually extended through the Representation of the People
Acts of 1832, 1867, and 1884, allowing more men to vote, thereby giving the
public greater influence over Parliament and legislation.
The Peterloo massacre in 1819, where a crowd protesting for voting reform was
met with force, highlighted the demand for broader political representation for
the working class.
The internet and social media have accelerated public involvement in the
parliamentary process, making it easier for people to influence government
decisions, though not always in a dignified manner.
1.12 The Place of EU Law within Our Legal System
The UK joined the EU on 1 May 1973, and the European Communities Act (ECA)
1972 incorporated EU law into UK law.
Under the ECA 1972, EU obligations were to be given legal effect and enforced
in the UK without further enactment.
In R (Factortame Ltd) v Secretary of State for Transport (1990), the House of
Lords (now Supreme Court) ruled that EU law could override UK law, leading to
judicial deference to the European Court of Justice (ECJ).
The UK's eventual departure from the EU (Brexit) has raised questions about the
continued influence of EU law on UK legal structures.
The Retained EU Law (Revocation and Reform) Bill (2023) aims to remove much
of the historical EU influence from UK law, signaling a shift towards national
legal principles.
1.13 Why England and Wales (but not Scotland)?
England and Wales have a combined legal jurisdiction due to historical and
geographical factors, especially during the reigns of Henry VII and Henry VIII,
when legal and administrative unity was established through the Acts of Union
(1536, 1543).
Scotland, however, maintained its own distinct legal customs, and despite the
union of the crowns in 1603, its legal system remained separate.
Scotland entered into a separate Act of Union with England in 1707, and its legal
system was allowed to remain distinct, explaining why England and Wales share
a jurisdiction but Scotland does not.
1.14 Differences Between Civil and Criminal Law
Civil Law: Deals with private disputes, contracts, and differences. The outcome
is typically a remedy, such as damages (monetary compensation). The case
must be proven on the balance of probabilities.
Criminal Law: Involves public offenses, with punishment as the outcome (e.g.,
imprisonment). The case must be proven beyond reasonable doubt. The
accused is presumed innocent until proven guilty (Woolmington v DPP, 1935).
Examples:
England and Wales and Sources of Law
1.1 Introduction: What is a Legal System?
A legal system varies based on perspective:
o Judges: Resolving disputes in society.
o Politicians: Assisting in resource allocation.
o Scientists: Enabling and protecting research.
o Businesses: Ensuring fair play.
o Ordinary People: Protection of freedoms.
Definition by Slorach, Embley, Goodchild, and Shephard (2017):
o A legal system is a body of institutions that make, execute, and resolve
disputes on the law of a jurisdiction.
o A jurisdiction refers to the political entity where a particular law applies.
1.2 What a Legal System Is Not
Not for pleasure: It involves hard choices, not unlimited enjoyment
Not optional: People cannot pick and choose the extent of its application.
Not ethereal: A legal system is permanent, not temporary.
Examples of Non-Legal Systems:
Children playing in the street: No legal element, voluntary and temporary.
Family breakfast: Voluntary, pleasurable, not governed by a legal system.
Factory work: Governed by safety considerations, but not a full legal system.
1.3 Examples of Legal Systems Around the World
India:
o Constitution (1950): Over 450 articles and 12 schedules.
o Cultural & Historical Factors: British Empire influence, mutiny of 1857,
partition in 1947.
o Unofficial Elements: Agricultural diversity, cricket, railway system.
China:
o Constitution (1982): Amendments made over time.
o Cultural & Historical Factors: Dynasties, Confucian philosophy,
Chairman Mao’s influence.
o Unofficial Elements: Modern tech, city-countryside divide, Communist
Party control.
USA:
o Constitution (1787): Endures with 27 amendments.
o Cultural & Historic Elements: Role of France and Spain, slavery, global
trading power.
o Unofficial Elements: Frontier individualism, sports culture, immigrant
traditions.
1.3.1 Conclusion: Common Elements of Legal Systems
Constitution: Foundation of legal framework.
Central & Local Government: Relationship between levels of governance.
Dominant Leadership: Key figures setting the agenda for the system.
Geography & Military Events: Influences from geography and neighboring
states.
Religion: Impact of religious beliefs on law.
Unofficial and Popular Will: Public influence, unrest, and expectations.
Grassroots Activities: Trade, leisure, and travel shaping the system.
Technology: Technological advancements influencing legal frameworks.
,1.4 The Rule of Law: Definition
Lord Bingham's Definition:
o All persons and authorities, whether public or private, are bound
by and benefit from laws that are:
Publicly stated
Administered in the courts
Key Principles:
o Clear and Predictable Law: Laws must be easily understood and
predictable.
o Subordination of Discretion: Discretion should be subordinate to the
exercise of law
o Equality Before the Law: Everyone should be treated equally under the
law.
o The state should provide an essential safety net for the settlement of
matters which private parties and individuals were unable to resolve
o Access to Justice: The state should resolve disputes that individuals
cannot settle on their own.
o Adherence to Obligations: The state must adhere to both national and
international legal obligations.
1.4.1 Case: Benkharbouche and Janah v Secretary of State for Foreign and
Commonwealth Affairs [2017] UKSC 62
Context: Foreign nationals working in embassies alleged unfair treatment
(discrimination, unpaid wages, unfair dismissal).
Issue: Embassies claimed immunity under state sovereignty.
Court Decision: Supreme Court ruled immunity does not apply in these claims,
emphasizing:
o Human Rights Act (1998) and European Convention on Human
Rights (1950)
o Equality before the law, prioritizing employees’ rights over state immunity
o Judicial involvement when individuals cannot resolve disputes
o International perspective on legal matters
1.4.2 Significance of the Rule of Law in England and Wales
Role in Governance: Ensures certainty for nationals and foreigners alike,
establishing the UK as a global center for justice.
Core Values:
o Treats people equally regardless of wealth or status.
o Relies on rules, precedent, and law.
Importance of Rule of Law: Without the rule of law, legal systems in other
jurisdictions may fail to offer justice or fairness.
1.5 International Law and the UK
International Law's Role:
o The UK is subject to international law but does not consider it superior to
its domestic law.
o Treaties and Conventions: The UK subscribes to many, but not all
international agreements (e.g., Kyoto Protocol’s struggle with climate
issues).
o UK’s Position: International law supports but does not override the rule
of law within the UK legal system.
1.6 Legal System History: From 1066
, William the Conqueror’s Influence:
o Introduced systems of control and land ownership.
o Established hierarchical jurisdiction and record-keeping (e.g., reports and
assizes).
o Conflict and dissatisfaction led to early foundations of modern law.
1.7 Magna Carta 1215
Historical Significance:
o Regulated relations between King John and the nobility.
o Important Clauses:
Clause 12: Taxation requires consent.
Clause 13: Acknowledges the commercial importance of the City of
London.
Clause 17: Ensures fixed locations for lawsuits (continuing in
modified forms today).
Clauses 38-40:
No trial based solely on self-incrimination.
Justice must follow the law and cannot be delayed or denied.
Equal treatment before the law.
Legacy: Introduced important concepts still relevant in modern democracies,
such as the importance of monarch and elites courts, rule of law. fair justice,
and equality before the law, barons and higher nobility
1.8 Legislation and Parliamentary Power
Development of Parliamentary Law:
o Early recorded acts (e.g., 1497) show the beginnings of Parliament's role
in lawmaking.
o The monarch’s approval was essential for law creation (Royal Assent).
o Key Principle: Government by decree (without Parliament) is un-British,
and laws must involve parliamentary approval.
1.9 How the Judiciary Found Its Voice
The judiciary's journey towards self-assertion began during Henry VIII's reign,
particularly with his desire to divorce his first wife and separate from the
Catholic Church.
Judicial pronouncements gained significance as the King distanced himself from
the Catholic establishment.
Sir Thomas More, Chancellor to Henry VIII, was executed for resisting the King’s
demands, highlighting early tensions between the monarchy and the law.
Chief Justice Coke's ruling in Prohibitions del Roy (1607) established the
principle of separation of powers, asserting that judges, not the monarch, should
make legal decisions.
In Case of Proclamations (1610), Coke ruled that the King had no power to
suspend or make laws without Parliament's consent, reinforcing limits on royal
power.
o The Crown, and thus government are bound by the law and cannot act
outside it
Lord Atkin's dissent in Liversidge v Anderson (1942) emphasized that even in
wartime, the judiciary must protect individual liberties from executive
overreach.
The Miller v Secretary of State for Exiting the European Union (2017) case
reaffirmed that executive power cannot overreach and Parliament must be
involved in triggering Brexit, limiting the royal prerogative.
, 1.10 Bill of Rights 1688
The Bill of Rights 1688 was a key document that limited the monarchy’s power
and contributed to the development of Parliament and the courts.
It reinforced principles like freedom of speech, the existence of juries,
prohibition of cruel and unusual punishment, and the requirement for free
elections to Parliament.
The Bill of Rights declared that the Crown could not suspend or make laws
without the involvement of Parliament, emphasizing the rule of law and limits on
royal power.
1.11 Extending the Franchise
The franchise was gradually extended through the Representation of the People
Acts of 1832, 1867, and 1884, allowing more men to vote, thereby giving the
public greater influence over Parliament and legislation.
The Peterloo massacre in 1819, where a crowd protesting for voting reform was
met with force, highlighted the demand for broader political representation for
the working class.
The internet and social media have accelerated public involvement in the
parliamentary process, making it easier for people to influence government
decisions, though not always in a dignified manner.
1.12 The Place of EU Law within Our Legal System
The UK joined the EU on 1 May 1973, and the European Communities Act (ECA)
1972 incorporated EU law into UK law.
Under the ECA 1972, EU obligations were to be given legal effect and enforced
in the UK without further enactment.
In R (Factortame Ltd) v Secretary of State for Transport (1990), the House of
Lords (now Supreme Court) ruled that EU law could override UK law, leading to
judicial deference to the European Court of Justice (ECJ).
The UK's eventual departure from the EU (Brexit) has raised questions about the
continued influence of EU law on UK legal structures.
The Retained EU Law (Revocation and Reform) Bill (2023) aims to remove much
of the historical EU influence from UK law, signaling a shift towards national
legal principles.
1.13 Why England and Wales (but not Scotland)?
England and Wales have a combined legal jurisdiction due to historical and
geographical factors, especially during the reigns of Henry VII and Henry VIII,
when legal and administrative unity was established through the Acts of Union
(1536, 1543).
Scotland, however, maintained its own distinct legal customs, and despite the
union of the crowns in 1603, its legal system remained separate.
Scotland entered into a separate Act of Union with England in 1707, and its legal
system was allowed to remain distinct, explaining why England and Wales share
a jurisdiction but Scotland does not.
1.14 Differences Between Civil and Criminal Law
Civil Law: Deals with private disputes, contracts, and differences. The outcome
is typically a remedy, such as damages (monetary compensation). The case
must be proven on the balance of probabilities.
Criminal Law: Involves public offenses, with punishment as the outcome (e.g.,
imprisonment). The case must be proven beyond reasonable doubt. The
accused is presumed innocent until proven guilty (Woolmington v DPP, 1935).
Examples:
