The Legal System of England and Wales (FLK1)
Introduction
The legal system of England and Wales is a common law system, characterized by the development of law through judicial decisions as well as legislation. It forms part of the broader UK legal framework but operates distinctly from the legal systems of Scotland and Northern Ireland. This chapter explores the key components of the legal system, including its structure, sources of law, and the roles of legal professionals, as required by the Solicitors Qualifying Examination (SQE) FLK1 syllabus.
1. Sources of Law
The legal system in England and Wales derives its laws from several key sources:
1.1 Primary Legislation (Acts of Parliament)
- Laws passed by the UK Parliament, consisting of the House of Commons, House of Lords, and Royal Assent.
- Examples include the Equality Act 2010 and the Consumer Rights Act 2015.
- Parliament is sovereign, meaning no court can strike down an Act of Parliament (though courts can interpret statutes).
1.2 Secondary (Delegated) Legislation
- Laws made by authorities (e.g., ministers, local councils) under powers granted by an Act of Parliament.
- Includes Statutory Instruments (SIs) and Byelaws.
- Subject to judicial review if they exceed delegated powers.
1.3 Case Law (Common Law & Equity)
- Judge-made law developed through judicial decisions (precedent).
- Doctrine of Precedent (Stare Decisis): Lower courts must follow decisions of higher courts.
- Hierarchy of Courts: Supreme Court decisions bind all lower courts; Court of Appeal binds lower courts, etc.
- Equity developed to supplement common law where remedies (e.g., injunctions, specific performance) were insufficient.
1.4 European Convention on Human Rights (ECHR) & Human Rights Act 1998
- The Human Rights Act 1998 incorporates the ECHR into UK law.
- Courts must interpret legislation compatibly with the ECHR (Section 3).
- If incompatible, courts can issue a declaration of incompatibility (Section 4), but Parliament must amend the law.
1.5 Retained EU Law (Post-Brexit)
- The European Union (Withdrawal) Act 2018 retained EU law as part of UK law.
- UK courts are no longer bound by new EU Court of Justice (CJEU) rulings but may consider them.
2. The Court System
The court structure in England and Wales is hierarchical:
2.1 Civil Courts
- County Court – Handles lower-value claims (e.g., contract disputes, personal injury).
- High Court – Divided into three divisions:
- King’s Bench Division (contract, tort, commercial law).
- Chancery Division (trusts, property, insolvency).
- Family Division (matrimonial, child law).
- Court of Appeal (Civil Division) – Hears appeals from the High Court and County Court.
- Supreme Court – Final appellate court for civil cases.
2.2 Criminal Courts
- Magistrates’ Court – Deals with summary offences (e.g., minor assaults) and preliminary hearings for indictable offences.
- Crown Court – Handles indictable offences (e.g., murder, rape) and appeals from Magistrates’ Court.
- Court of Appeal (Criminal Division) – Hears appeals from the Crown Court.
- Supreme Court – Final appellate court for criminal cases (on points of law).
2.3 Specialist Courts & Tribunals
- Tribunals (e.g., Employment Tribunal, Immigration Tribunal) handle specific disputes.
- Family Court deals with family law matters.
- Commercial Court (part of the High Court) handles business disputes.
3. Legal Personnel & Their Roles
3.1 Judges
- Supreme Court Justices – Highest appellate judges.
- High Court Judges – Sit in the High Court and Crown Court.
- Circuit Judges – Preside over Crown and County Courts.
- Magistrates (Justices of the Peace) – Lay judges handling minor criminal cases.
3.2 Legal Professionals
- Solicitors – Provide legal advice, draft documents, and represent clients in lower courts.
- Barristers – Specialize in advocacy (higher courts) and provide expert legal opinions.
- Chartered Legal Executives (CILEx) – Qualified lawyers specializing in specific areas.
4. Alternative Dispute Resolution (ADR)
- Mediation – Neutral third party facilitates settlement.
- Arbitration – Binding decision by an arbitrator.
- Negotiation & Conciliation – Less formal resolution methods.
- Encouraged by courts to reduce litigation costs (e.g., Civil Procedure Rules 1998).
5. Access to Justice & Legal Funding
- Legal Aid – Government funding for those who cannot afford legal representation (restricted by LASPO Act 2012).
- Conditional Fee Agreements (CFAs) – "No win, no fee" arrangements.
- Pro Bono Work – Free legal services provided by lawyers.