Introduction to the UK Legal
Systems and Processes
Professor Mark Poustie,
mark.poustie@strath.ac.uk
SUFE Law School, Room 415
Aim and Outline
• To provide you with an introduction to and
understanding of:
• The UK and its legal systems
• Sources of law in UK
• How law is made in the UK
• UK Courts
– Civil courts and civil procedure
– Criminal prosecution, criminal courts and criminal
procedure
• Role of European Courts in UK system
• Operation of precedent
• The judiciary
The United Kingdom and its Legal
Systems
Geographic Terminology
• United Kingdom
•
England, Wales, Scotland and
Northern Ireland
• British Islands
•
The above plus Isle of Man and
Channel Islands
• Great Britain
•
England, Wales and Scotland
Legal Systems
• England & Wales
• Northern Ireland
• Scotland
• Isle of Man
• Various Channel Islands
Sources of Law in the UK
Sources of law in the UK - 1
• International Law (indirect)
• EU Law
– E.g. Directive 2000/60 – Water Framework Directive
– Implemented via the e.g. Water Environment and Water
Services (Scotland) Act 2003 and Water Environment and Water
Services (Controlled Activities) (Scotland) Regulations 2011
• If BREXIT occurs all EU Law from which UK Law is derived or
which applies directly in UK will be incorporated into UK
Law to ensure continuity of law (European Union
(Withdrawal) Act 2018)
• European Convention on Human Rights
– E.g. Malone v UK (1985) 7 E.H.R.R. 14
– Interception of Communications Act 1985 (now the Regulation
of Investigatory Powers Act 2000)
– Human Rights Act 1998
Sources of law in the UK - 2
• UK Acts of Parliament (Primary legislation)
– E.g. War Damage Act 1965
– European Communities Act 1972
• Devolved Legislation (Scotland, Wales &
Northern Ireland) (Primary legislation)
– E.g. Scottish Independence Referendum Act
2013
– Marriage and Civil Partnership (Scotland) Act
2014
• Delegated
legislation)
Legislation
(Secondary
– Legislation made by Ministers under powers
granted in Acts of UK Parliament or Acts of
Scottish Parliament
– Known as Statutory Instruments and called
Regulations or Orders
– E.g. Water Environment (Controlled Activities)
(Scotland) Regulations 2011
Sources of law in the UK - 3
• Common Law (found in judicial
decisions in reported cases)
– E.g. Donoghue v Stevenson [1932]
A.C. 562
• Royal Prerogative Power (Common
Law/Customary powers of the
Monarch
exercised
by
Government)
– E.g. Burmah Oil Co (Burma Trading)
Ltd v Lord Advocate [1965] A.C. 75
• Scottish Institutional Writers
– E.g. S v HMA 1989 S.L.T. 469
Sources of law in the UK - 4
• No single constitutional
document
• No
constitutional
entrenchment
• Political
constraints
on
constitutional change but
limited legal constraints
because of doctrine of
Parliamentary Sovereignty
How Law is Made in the UK
Legislative Processes – UK
Parliament - 1
• www.parliament.uk
• Two chamber (bicameral) Parliament
with House of Commons and House of
Lords
• Draft legislation is known as a Bill
• 4 types of Bill
– Public Bills (promoted by Government
which affect general public interest)
• European Union (Notification) of
Withdrawal Bill (became Act 2017)
– Private Members’ Bills (promoted by
individual Members of Parliament which
affect the general public interest)
• Abortion Bill (became Act 1967)
Legislative Processes – UK
Parliament - 2
– Private Bills (promoted by specific
organisations to give themselves
powers not available or even contrary
to existing law)
• New Southgate Cemetery Bill
(became Act 2017)
– Hybrid Bills (partly public and partly
private – maybe promoted by
Government or other organisations –
partly affecting general interest and
partly specific organisation(s) or groups)
• High Speed Rail (West Midlands –
Crewe) Bill (still in progress)
Legislative Processes – UK
Parliament - 3
• Party election manifesto commitments
• Pre-legislative consultation involving
– Green Paper (legislative proposals issued
for consultation)
– White Paper (detailed proposals issued for
consultation)
– Draft Bill
• Then in Parliament there are three
‘Readings’ plus a Committee stage
involving detailed scrutiny and a
‘Report’ stage following scrutiny by a
Committee in each House of Parliament
• http://www.parliament.uk/about/how/l
aws/passage-bill/commons/comscommons-first-reading/
• Royal assent (now a formality)
• Bill then becomes an Act
Legislative Processes – UK
Parliament – 4
• Both Houses of Parliament must
consent to the Bill
• If there is no agreement between
the two Houses of Parliament then
the Lords can delay the Bill but only
for one year (as a result of the
Parliament Acts 1911 and 1949)
• After that the Commons can force
through the legislation e.g. War
Crimes Act 1991
• The Parliament Acts cannot be used
to force through legislation designed
to extend the life of a Parliament
beyond 5 years
Legislative Processes – UK
Parliament – 5
• Delegated legislation is not made by
Parliament but is made by Ministers
• Negative or positive resolution
procedure
• Negative resolution procedure much
more
common
–
delegated
legislation comes into effect 40 days
after its making unless there is an
objection in Parliament
• Vast amount of delegated legislation
made
• Issues
around
scrutiny
and
accountability
Devolution in the UK
• Prior to 1999 there was administrative
devolution to Scotland, Wales and
Northern Ireland
• However, since 1999 there has been
legislative devolution to these countries
so each now has its own Parliament or
Assembly and Government
• Devolution is asymmetrical with
Scotland having most extensive powers
but powers to Wales have been
enhanced too
• This also means that Wales’ system is
beginning to differ from England’s
Devolution to Scotland - 1
• Scotland Act 1998
– Scottish
Parliament
(directly elected)
– Scottish
Ministers
(known
as
Scottish
Government)
– Must
comply
with
European Union Law and
the European Convention
on Human Rights
Devolution to Scotland - 2
• Scotland Acts 1998 and
2012
– Reserved matters (UK
Parliament)
–
e.g.
defence, foreign affairs,
trade
– Devolved matters – e.g.
criminal
justice,
education, environment,
housing, planning, some
elements of tax, transport
– www.gov.scot/
Legislative Processes – Scottish
Parliament
• www.parliament.scot/
• Bills introduced into Parliament by the
Scottish Government (Public Bills) but also
possible for Private Members Bills to be
introduced by individuals, Private Bills etc
• Single chamber (unicameral) Parliament
• Three
stage
process
(www.parliament.scot/visitandlearn/10052
9.aspx)
• Opportunity for Advocate General to
challenge legality of legislation (i.e. does it
conform with the Parliament’s powers)
• Royal Assent
Devolution to Wales
• Government of Wales Acts
1998 and 2006; Wales Act
2017
– National Assembly of Wales
and Welsh Government
– Required to comply with EU
Law and ECHR
– Devolved matters – e.g.
education,
environment,
housing, land use planning,
social services, transport
– www.gov.wales/
Devolution to Northern Ireland
• Northern Ireland Act 1998
– Northern Ireland Assembly
and
Northern
Ireland
Executive
– Required to comply with EU
Law and ECHR
– Devolved matters – e.g.
criminal justice, education,
environment, housing, land
use planning, transport
– www.northernireland.gov.uk/
Devolution – Overall Comments
• Positive development to allow
parts of the UK to pass laws
which reflect will of peoples
living in those areas
• However, has led to increasing
divergence between laws in
different parts of the UK so
can be harder for businesses,
lawyers etc.
• There can be 3 or 4 texts of
the same former UK statutory
provision applying separately
to England, Wales, Scotland
and Northern Ireland
UK Courts
Types of Courts
• First instance courts
– In criminal proceedings first
instance courts are known as trial
courts
• Appeal courts
– On whole merits
– OR just on points of law
– Often requirement for leave to
appeal (i.e. permission to appeal)
particularly in relation to the
highest appeal courts
– Normally (but not always) 2 tiers
of appeal
Civil and Criminal Courts
• Civil courts deal with matters such
as contracts, personal injury, family
issues, judicial review – purpose
may be compensation or access to
family members or challenging a
decision by government
• Criminal courts deal with matters
determined by the legislature or
common law to be criminal and
warranting punishment so the
purpose is to punish the person
who is found to have committed
the crime (e.g. murder, rape,
assault, robbery)
Language of Civil Litigation
Taking civil proceedings
• In civil court actions, you do not prosecute the a person but rather sue
them or litigate against them
• Prosecute is normally a word used in criminal proceedings
England and Wales
• Those bringing civil claims are known as ‘Claimants’ (formerly ‘Plaintiffs’)
• Claims are brought against ‘Defendants’
Scotland
• Those bringing civil claims are generally known as ‘Pursuers’ except in
judicial review cases where they are known as ‘Petitioners’
• Claims are brought against ‘Defenders’ except in judicial review where
claims are brought against ‘Respondents’
Appeals
• In both jurisdictions appeals are brought by appellants against
respondents
English & Welsh Civil Court
Structure (simplified)
Supreme Court
Court of Appeal
Civil Division
High Court
County Court
Magistrates
Court
Court Structures – Civil
England & Wales (simplified)
• UK Supreme Court
• Court of Appeals (Civil Division;
appeals)
• High Court (first instance and
appeals)
• County Court (first instance and
appeals)
• Magistrates Court (first instance)
Scottish Civil Court Structure
(simplified)
Supreme Court
Court of Session
Inner House
Court of Session
Outer House
Sheriff Appeal
Court
Sheriff Court
Court Structures – Civil
Scotland (simplified)
• UK Supreme Court
• Court of Session Inner House
(appeals from Outer House
and Sheriff Appeal Court)
• Court of Session Outer
House (First instance)
• Sheriff Appeal Court (appeals
from Sheriff Court)
• Sheriff Court (First Instance)
Civil Procedures
• Considerable reforms to try to reduce
length and expense of civil proceedings
in both England & Wales and Scotland
• Use of informal small claims courts
• Shift from management by parties to
judicial case management (more like
civil law system procedures)
• Attempt to ensure that as much is
agreed as possible and that oral
pleadings are shorter
• Virtually no civil jury trials any longer
(contrast US)
• Increased use of specialised courts and
procedures (e.g. Administrative and
Commercial Courts)
• Increased emphasis on mediation
Criminal Prosecution & Criminal
Procedure - 1
• Public Prosecution
• Prosecutors are independent of the police
• Also
relatively
independent
of
Government
• England & Wales: Crown Prosecution
Service (CPS) headed by Director of Public
Prosecutions
• Scotland: Crown Office Procurator Fiscal
Service (COPFS) headed by Lord Advocate
• Chief prosecutors are not elected in
contrast to US
• Private prosecution (relatively common in
England & Wales; very difficult in Scotland
because of requirement of consent of Lord
Advocate)
Criminal Prosecution & Criminal
Procedure - 2
• Summary procedure (judge only; no jury)
leads to summary conviction (vast majority
of criminal cases are decided this way)
• Indictment (Scotland = solemn) procedure
(judge and jury) leads to conviction on
indictment (higher penalties available –
some serious crimes e.g. murder must be
tried on indictment)
• Jury size – 12 (England & Wales); 15
(Scotland)
• As with civil procedure increased emphasis
on judicial case management to speed up
process and encourage early guilty pleas
where appropriate
Language of Criminal Litigation
Taking criminal proceedings
• In criminal court actions, you do not sue the
defendant but rather you prosecute them
England and Wales
• Prosecutions are brought by the Crown Prosecution
Service in the name of the Queen (e.g. R v Smith)
against the defendant
Scotland
• Summary cases are brought in the name of the
Procurator Fiscal against the defendant (e.g. Brown
v Smith)
• Solemn (i.e. jury cases) are brought in the name of
Her Majesty’s Advocate against defendant (e.g.
HMA v Smith)
Appeals
• In both jurisdictions appeals are brought by
appellants against respondents
English & Welsh Criminal Court
Structure (Simplified)
Supreme Court
Court of Appeal
(Criminal Division)
High Court (Appeals
on points of law from
Magistrates Courts)
Crown Court
(Summary appeals)
Magistrates Court
(Summary trials)
Crown Court (Jury
trials)
Court Structures – Criminal
England & Wales (Simplified)
• UK Supreme Court
• Court of Appeal (Criminal Division)
• High
Court
(Appeals
from
Magistrates Court on points of law)
• Crown Court (Appeals from
Magistrates Court and First
Instance/Trial Court for Indictment
Cases)
• Magistrates
Court
(First
Instance/Trial Court for Summary
Cases)
Scottish Criminal Court Structure
(Simplified)
Supreme Court
(devolution
issues only)
High Court of
Justiciary
(Appeal Court)
High Court of
Justiciary (Jury
Trial Court)
Justice of the
Peace Court
Sheriff Appeal
Court
Sheriff Court
(Jury trials)
Sheriff Court
(Summary trials)
Court Structures – Criminal
Scotland (Simplified)
• UK Supreme Court (devolution issues
only)
• High Court of Justiciary (Final appeal
court)
– High Court of Justiciary (Indictment/Jury
Trial court)
– Sheriff Court (Indictment/Jury trial court)
– Sheriff Appeal Court
• Sheriff Appeal Court (appeals from
summary trials in courts below)
– Sheriff Court (Summary trials)
– Justice of the Peace Courts (Summary
trials)
UK Supreme Court
• Established by Constitutional Reform Act
2005; in operation 2009
• Replaced House of Lords Judicial Committee
and aspects of Privy Council which dealt
with devolution issues (its decisions are of
same status as those of HL)
• UK final court of appeal for civil matters
from all the jurisdictions with leave
• Cases must be of general public importance
to get leave
• Final court of appeal on points of law in
criminal cases from England & Wales (but
not for Scotland)
• Only court which can provide authoritative
interpretation of devolution issues under
the various devolution legislation –
constitutional court function
Role of European Courts in UK System
• Court of Justice of the European
Union (Luxembourg)
– Preliminary rulings
• European Court of Human Rights
(Strasbourg)
– Right of individual petition after
exhaustion of domestic remedies
Operation of Precedent – UK Courts
• UK Supreme Court decisions bind lower
courts in the applicable jurisdiction
• UK Supreme Court is not bound by its own
previous decisions (change in 1966 to allow
more flexibility to develop the law)
• Court of Appeal/Court of Session Inner House
(Appeals) normally bound by their own
previous decisions and in turn bind lower
courts in their respective jurisdictions
• English High Court and Court of Session Outer
House not bound by their own previous
decisions although they will treat them with
great respect not least to ensure consistency
• English decisions do not bind Scottish Courts
and vice versa
• However, the higher the court and the more
similar the laws between England and
Scotland, the more persuasive the case will
be (see e.g. Donoghue v Stevenson)
Operation of Precedent – European
Courts
• Decisions of the Court of Justice of the EU
(CJEU) (Luxembourg) are binding on UK
courts because of supremacy of EU law
• CJEU is not bound by its own previous
decisions but has indicated it will not
normally hear cases which are identical to
previous cases it has already decided
• CJEU decisions will cease to be binding in
UK if BREXIT takes effect but the decisions
will then be regarded as having same
force as those of the UK Supreme Court
(so can be altered by the Supreme Court)
• Decisions of the European Court of
Human Rights (Strasbourg) are not
binding but must be taken into account by
UK courts: Human Rights Act 1998, s.2
Key Concepts in Precedent
• Key concepts in precedent
– Stare Decisis (precedents are
binding and must be followed)
– Ratio Decidendi (the legal reason
or principle for the decision)
– Obiter Dicta (things said by judges
‘by the way’, not forming part of
the ratio)
• It is the ratio of the case which
must be followed where the
material facts are sufficiently
similar
Determining Ratios and Avoiding Being
Bound by Precedent
• Determining the ratio of a case
is a function of judges in future
cases so they have considerable
discretion to avoid being bound
by precedent
– Distinguish
– Over-rule
– Indicate the earlier decision was
decided per incuriam (without
reference to a key authority which
would have led to a different
decision)
Advantages and Disadvantages of
Precedent
• What are the key advantages and
disadvantages of the system of
precedent?
The Judiciary
Judiciary – Judicial Office Holders
England & Wales
• Supreme Court Justices (12 – 2 from
Scotland and 1 from Northern Ireland)
• Court of Appeal (Lord Chief Justice, Master
of the Rolls and Lords Justice of Appeal (40)
• High Court Judges (106)
• Circuit Judges (Crown Court & County Court
– 640)
• Recorders (part-time judges who assist
Circuit Judges – 1126)
• District Judges (hear Civil Cases in County
Courts - 438)
• Magistrates (22000 lay judges plus some
professional magistrates)
Judiciary – Judicial Office Holders
Scotland
• Court of Session/High Court of Justiciary (35
known as Senators of the College of Justice
headed by Lord President and Lord JusticeClerk)(Inner House – 12; Outer House – 23)
– Plus temporary judges
• Sheriff Appeal Court (17 Appeal Sheriffs)
• Sheriffs (around 150 full-time Sheriffs)
• Judiciary and Courts (Scotland) Act 2008
– Formally made Lord President head of the whole
Scottish judiciary
– Duty placed on Lord President to provide judicial
training – this is delivered through the Judicial Institute
for Scotland
Judiciary - Appointments
• Courts and Legal Services Act 1990 (E&W)
• Scotland Act 1998 & Judiciary and Courts
(Scotland) Act 2008 (Scotland)
• Extensive experience in practice required
• Appointments by Monarch on advice of
Prime Minister (E&W) or First Minister (Sc)
• Responsibility for process now rests with
– Judicial Appointments Commission (E&W)
– Judicial Appointments Board for Scotland
• Process more transparent
• Attempts to achieve greater diversity
• No system of Parliamentary hearings for
Supreme Court judges etc so appointment
system is not politicized to same extent as
in the US
Judiciary – Independence and Removal
from Office
• Protection against arbitrary removal still major bulwark of judicial
independence
• England & Wales – senior judges hold office during good behaviour and under
Act of Settlement 1700 and subsequent legislation may only be removed from
office by the Crown on address by both Houses of Parliament (only one Irish
judge removed under this procedure in 1830)
• In Scotland now governed by Scotland Act 1998 (although judicial
independence has applied since 1599)
– Court of Session judge may only be removed from office by the Queen acting on
recommendation of First Minister
– Scottish Parliament must resolve that such a recommendation should be made
– Provision for tribunal to investigate whether judge is unfit for office by reason of inability,
neglect of duty or misbehaviour and report must be laid before Parliament
• Courts Reform (Scotland) Act 2014 – separate but similar procedures for
sheriffs
• Otherwise judges retire at 70
Judiciary – Impartiality
• Judges must be impartial with no
conflicts of interest
• This is now underpinned by the
European Convention on Human
Rights, Art.6 – criminal charges and
civil rights must be determined by an
independent and impartial tribunal
• Lord Hoffman’s conflict of interest in
the General Pinochet case
• R v Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet
Ugarte (No 2) [1999] 2 WLR 272