A Guide to the UK Legal System
By Sarah Carter
Published November 2005
Please, Read the Update!
Sarah Carter is Law Librarian at the University of Kent at Canterbury, UK. She has been active in organising electronic legal information since it became available, and especially since the growth of the World Wide Web. She has written extensively on the subject in the Law Librarian and other publications. She was on the editorial committee of Moys Classification for Legal Materials and contributed to the 3rd edition, published in 1992. Her website LAWLINKS is internationally recognised and has received several awards, including the Wallace Breem Memorial Award from BIALL (British & Irish Association of Law Librarians) in 2000. At the same time she published a book based on LAWLINKS (Carter, S. Lawlinks. Cavendish, 2000). In an earlier librarianship role she wrote on the subject of women’s studies. Since 2002 she has been director of the Lawpaths project.
Table of Contents
Background and Constitution
The United Kingdom of Great Britain and Northern Ireland consists of four countries forming three distinct jurisdictions each having its own court system and legal profession: England & Wales, Scotland, and Northern Ireland. The United Kingdom was established in 1801 with the union of Great Britain and Ireland, but only achieved its present form in 1922 with the partition of Ireland and the establishment of the independent Irish Free State (later the Republic of Ireland).
The UK joined the European Economic Community (now the European Union) in 1973, since when it has been a requirement to incorporate European legislation into UK law, and to recognise the jurisdiction of the European Court of Justice in matters of EU law. There have been significant constitutional reforms since the Labour government came into power in 1997, which make any description of the UK legal system before then out of date. The Labour government immediately instituted a process of devolution, i.e. devolving certain areas of government to the component countries of the UK: a separate Scottish Parliament and a Welsh Assembly were established following referendums in the countries concerned. Ireland already had its Assembly, although this was not in operation (see below under Northern Ireland). In the context of these new legislatures the English Parliament is often referred to as ‘Westminster’. These devolved governments are dealt with in separate sections. The UK is a signatory of the European Convention of Human Rights, and this has recently been incorporated into UK law with the passing of the Human Rights Act 1998. This allows for the provisions of the Convention to be applied directly by the UK courts.
There is no written constitution. The Queen is the Head of State, although in practice the supreme authority of the Crown is carried by the government of the day. The legislature is a bicameral Parliament. The House of Commons consists of 659 Members of Parliament (MPs), elected by simple majority vote in a general election every five years, although the Government has the right to call an election at any time before then, and in practice usually brings the date forward to secure electoral advantage. The House of Lords until recently consisted of life peers, awarded peerages for public service, and a large number of hereditary peers whose membership of the House of Lords depended on their aristocratic birth.
The constitutional law of the UK is regarded as consisting of statute law on the one hand and case law on the other, whereby judicial precedent is applied in the courts by judges interpreting statute law. A third element consists of constitutional conventions which do not have statutory authority but nevertheless have binding force. Much of the relationship between the Sovereign and Parliament is conventional rather than statutory.
The Labour government which came into power in 1997, and is now in its third term of office, has instituted constitutional reforms in three distinct areas: the reform of the House of Lords, devolution, and the passing of the Human Rights Act 1998.
It began the long-overdue process of House of Lords reform by abolishing the voting rights of all the hereditary peers apart from ninety-two who remain until the House is fully reformed. Proposals put forward by the Royal Commission on the Reform of the House of Lords were published in 2000 as a command paper: A House for the Future (Cm 4534) with government proposals laid out in The House of Lords: Completing the Reform (Cm 5291). These proposed a predominantly appointed second chamber with a minority of elected members representing regions of the UK, and attracted much dissension. On 13 May 2002 the issue of reform was in effect sent back to the drawing board. Links to documents on Lords Reform are on the Department for Constitutional Affairs Lords Reform page; the House of Lords Information Office has a Briefing Paper on Reform and Proposals for Reform since 1900 [until 1999].
The Human Rights Act was passed in 1998, incorporating into UK law rights and freedoms guaranteed by the European Convention on Human Rights. Although the UK had been a signatory to the European convention on Human Rights since 1951, the Act provided for the provisions of the Convention to be incorporated into domestic law. This means that a consideration of human rights affects every area of government. For a guide to the effects of the Act see The Human Rights Act 1998 Guidance for Departments. There is extensive information about the application of the Act on the DCA’s Human Rights Unit pages.
For the effects of devolution reforms see below.
The Department for Constitutional Affairs (DCA) was established in 2003, replacing the Lord Chancellor’s Department. Its changed responsibilities include holding and administering the judicial system, human rights, and electoral and constitutional reform. The DCA administers the Courts Service (see under Courts System below) and oversees judicial appointments. The role of Lord Chancellor has been modified, with the holder renamed Secretary of State for Constitutional Affairs and Lord Chancellor, relinquishing his functions as Speaker of the House of Lords and (most importantly) as a judge. These changes were brought in by the Constitutional Reform Act 2005 (see Explanatory Notes to the Act). This Act also made important changes to the courts and the judiciary. See below for details.
Making a Difference: Taking Forward our Priorities published in May 2005 sets out the DCA’s achievements and vision.
Civil cases at first instance are heard in the County Courts (for minor claims) or the High Court, which is divided into three divisions: Queen’s Bench, Family and Chancery. Cases may be appealed to the Court of Appeal (Civil Division). Cases may be appealed from the County Court to the High Court.
The House of Lords is the supreme court of appeal. Its judicial functions are quite separate from its legislative work, and cases are heard by up to 13 senior judges known as the Lords of Appeal in Ordinary, or Law Lords. It shares its function as the supreme appellate court with. The judicial work of the House of Lords is described on its web pages. The HMCS web pages provide information on the other courts. However the Constitutional Reform Act 2005 (see Explanatory Notes) provides for the establishment of a Supreme Court to replace the judicial function of the House of Lords with an independent appointments system, thereby making a constitutional separation between the legislature and the judiciary.
A further appellate court, sometimes omitted in a description of the system, is the Judicial Committee of the Privy Council, which hears cases from the British overseas territories and dependencies as well as some specialised domestic appeals. It also hears cases concerning questions relating to the powers and functions of the devolved legislatures. (See below). The ‘devolution’ function will be transferred to the new Supreme Court.
In addition to the courts there are specialised Tribunals, which hear appeals on decisions made by various public bodies and Government departments, in areas such as employment, immigration, social security, tax and land. The Court Service also contains information on these.
Her Majesty’s Court Service (HMCS) is an agency of the DCA responsible for administration of the court system, and was established in 2005 under the Courts Act 2003, bringing together the separate agencies previously responsible for court administration.
There has been extensive reform of civil procedure in recent years. Following on the publication of a major report on Access to Justice by Lord Woolf in 1996, a completely new set of Civil Procedure Rules were put into operation in 1999, as well as new legislation for modernising the courts and legal services. The Legal Services Commission was created under the Access to Justice Act 1999 to provide a Community Legal Service and Criminal Defence Service and administer legal aid.
Criminal cases are heard at first instance in the Magistrates’ Courts, with more serious ones being hears in the Crown Court. Appeals are heard in the Court of Appeal Criminal Division. The Review of the Criminal Courts by Sir Robin Auld was published in 2001, as a result of which consolidated Criminal Procedure Rules were introduced in 2005. The Criminal Justice System website contains more information.
The various reports, the new Civil and Criminal Procedure Rules and much else can be found on the Department for Constitutional Affairs website.
Web-based sources for primary law have been made available officially since 1996. However, while they offer authentic texts they are limited by the fact that they are not annotated, amended or hyperlinked. Consequently it is necessary to use commercial subscription services in order to get reliable up to date information. Early in 2000 a new initiative to put up hyperlinked texts of UK legislation and case law was launched. Known as BAILII (British and Irish Legal Information Institute), it is based on the Australian model AustLII. It uses its own system of citation for cases, which has since been adopted as the standard ‘neutral’ citation, by the court system (see below). There are links other cases and legislation where they are loaded on the database. The site is under development, and coverage is patchy at present. However, in 2005 BAILII has received substantial funding for development, which is likely to confirm its status as the major free resource for law.
The major encyclopaedia is Halsbury’s Laws of England. 4th ed. Butterworths, 1973-. It is the starting point for any research on English law. It is also available as an online subscription service as part of LexisNexis Butterworths.
Legislation since devolution forms several separate entities:
· United Kingdom legislation: applying to the whole UK
· Scottish legislation
· Welsh legislation (Statutory Instruments only)
· Northern Irish legislation
There are two main forms of primary legislation: Public General Acts and Local and Personal Acts. The latter are of specific and limited application only. For the purposes of this survey I will concentrate on PGAs. Depending on the legislative programme of the government, some 40-70 Acts are passed each year. The sequential numbering of each Act within each year is known as a chapter number.
Public General Acts appear in individual paper-covered volumes, cumulating into three or four annual volumes. From 1996 they have been published on the Acts of the UK Parliament website, and their coverage now extends back to 1988. Many recent Acts have useful Explanatory Notes. They are also on BAILII (see below), and the texts here contain hyperlinks to other legislation on the BAILII database.
Unamended legislation is of limited value, however, and it is always necessary to consult up to date sources. The principal printed source for statutes is Halsbury’s Statutes, published by Butterworths. This is arranged by subject in 50 volumes and contains the amended text of all Acts in force with extensive annotations. It is updated by means of an annual Cumulative Supplement and a loose leaf Noter-up, both arranged like miniature versions of the work itself.
Halsbury’s Statutes annotations are available on LexisNexis Butterworths (see below under Electronic sources).
Current Law Statutes, published by Sweet & Maxwell, are a chronologically arranged printed source. The texts of Acts are therefore unamended, but are annotated. This source is of particular value for finding the background to legislation, and tracing the documents (reports, white papers, etc.) and debates which preceded the Act. Some of this material has been incorporated into Westlaw (see below under Electronic Sources).
Statutory Instruments, or SIs, are regulations made under the authority of an Act of Parliament. There are up to 3500 of these published annually, and they are numbered sequentially within each year. They are important documents, which often provide the detail required for the application of the Statute, and some contain provisions for the commencement of an Act (when it comes into force). Statutory Instruments are available on the web from 1987 on the OPSI site and also on the electronic services listed below.
Public domain sources include the Office for Public Sector Information (OPSI) which hosts legislative texts. As well as the public domain sources for legislation on the Web listed above there are several subscription services. OPSI was established in 2005 and has taken over the functions of Her Majesty’s Stationery Office (HMSO)
BAILII (British and Irish Legal Information Institute) contains the text of Acts since 1988 and Statutory Instruments since 2002.
LexisNexis Butterworths is the new platform combining Lexis and Butterworths services. At the time of writing the new service is about to be launched. It contains the same legislative data as LexisNexis Professional, including Statutes and Sis, and the Halsbury’s annotations.
Justis UK Statutes contains the full text of Statutes as enacted with cross referencing between amended and amending legislation, and is the only service to include all repealed statutes as well as those in force. Justis UK Statutory Instruments contain SIs from 1987, with a separate database containing an archive of pre-1987 SIs.
Westlaw UK (www.westlaw.co.uk or www.westlaw.com) contains consolidated Statutes and SIs in force. It also has historical versions of statutes
Lawtel contains links to the official version of Acts and statutory status tables giving details of amending and amended legislation with links.
Cases in the courts are reported in numerous series of law reports. Until 1865 case reporting was done by private court reporters, and the resultant publications are known as the nominate reports, because they are usually known by the name of the reporter. These have been gathered together in a 178-volume collection called the English Reports 1220-1873, which makes them relatively easy to find. They are available online from Justis (see below) The English Reports have also been published on CD-ROM by Jutastat, but this is not widely held. For a list of citations to the nominate reports contained in the English Reports see Citations for the English Reports.
In 1865 the reporting of cases was systematised by the Incorporated Council of Law Reporting, which started publishing series of reports organised according to the court, collectively known as The Law Reports.
The main general series currently published are:
· The Law Reports, 1865- which is in four separate series at the present day. For a list of the citations to all the series within The Law Reports see the guide Citations for The Law Reports.
· Weekly Law Reports, 1954-
· All England Law Reports, 1936-
In addition there is a large number of specialised reports, covering different areas of law. There is a recognised hierarchy of reports, the most authoritative being The Law Reports, but of course many cases are only reported in specialised series.
The Cardiff Index to Legal Abbreviations, launched in 2004, is an authoritative online public domain source for legal abbreviations, both British and worldwide.
Lists of citations can be found in many of the published works, but the most comprehensive printed guide for UK abbreviations is Raistrick, D. Index to legal citations and abbreviations, 2nd ed, Bowker Saur 1993,
A distinction here has to be made between law reports and transcripts. In recent years there has been a growth in the provision of electronic transcripts of cases on the web, many available free. Many of these, though not all, will subsequently be reported.
BAILII contains an easily searchable and growing number of case law databases,
House of Lords judgments are available on the web from 1996, and within 2 hours of the decision.
Her Majesty’s Court Service (HMCS) contains a database of selected recent judgments from the Court of Appeal and the High Court.
Other sources can be checked on LAWLINKS.
Lexis contains The Law Reports 1865-, the All England Law Reports 1936-. It also has the All England Reprint and All England Reprint Extension which contain cases from 1558-1935. In addition it contains other cases from specialised series published by Butterworths, and unreported cases (transcripts) from 1980. It has the broadest coverage of any single service. This will be available on the new platform LexisNexis Butterworths
Westlaw contains The Law Reports 1865- and several other series as well, including Weekly Law Reports and Criminal Appeal Reports.
Justis hosts an electronic version of The Law Reports, 1865- and several other major series of reports, including the Weekly Law Reports.
Lawtel contains a wide-ranging database of full text case transcripts from about 1980.
There are numerous other services offering access to more specialised series of reports.
Legislation and Case Law Indexes
The two major printed indexes to UK law are the Digest, published by Butterworths, and Current Law, published by Sweet & Maxwell. Both contain digests of cases with references to cited cases and legislation, and both contain invaluable indexes to cases which will tell you where they have been reported.
Current Law is available electronically as Current Legal Information, on CD-ROM and online from Sweet & Maxwell. This is in fact a family of databases. The Current Law Case Citator enables you to check the judicial history of a case and to see where it has been reported, and to trace case commentaries in journals, and links to the digest of the case in Current Law Cases. The Current Law Legislation Citator enables you to find cases interpreting a piece of legislation, and commentary in articles. The Current Law databases are all now available on Westlaw, though in a somewhat altered form, and it is expected that the CLI service will eventually cease to be available separately.
JustCite is a new product from Justis.com which allows cross searching of online resources.
The Legal Journals Index is the major British source for tracing articles in legal journals, and covers over 400 UK and European English-language publications. It started publication in 1986 and is no longer available in hard copy. It is available on Westlaw and is also part of the Current Legal Information service, on CD-ROM and online. It is expected that CLI will cease as a separate service in due course.
Index to Legal Periodicals has good coverage of the more academic-orientated UK legal journals.
Lawtel also includes an articles index for about 60 law journals from around 1998.
The UK Parliament website gives access to information on the business of the two Houses of Parliament, including a wealth of general material on the parliamentary system, much of it accessible from the Parliamentary Publications and Archives pages. Here you can find useful factsheets on parliamentary history and procedure. You can also find details of the composition of Parliament and of the government of the day and links to official publications on the web, including white papers and green papers, reports of committees, House business and the Weekly Information Bulletin.
The debates of Parliament are published in Hansard. There are separate series for the House of Commons and the House of Lords and for Standing Committee debates. Hansard is also available on the web on the Parliament website, and there are archives of the Commons Hansard back to 1988/89 The House of Lords Hansard database is from 1996.
Bills are published on the web with amendments where available, and Explanatory Notes for major public Bills introduced into Parliament by a government minister. The progress of legislation can be checked in the House of Commons Weekly Information Bulletin on the Parliament website.
Directgov is the UK government website which acts as the main information point for all public services. The site includes an A-Z index to all government departments, agencies and other public or quasi-governmental bodies and is the gateway to a rich resource of material in the departmental websites. There is also a Guide to Government with useful summaries of all aspects of the system.
Until 1996 all government publishing was in the hands of Her Majesty’s Stationery Office when it was privatised. The trading business was sold off to a company now known as The Stationery Office. HMSO remained as a body handling the statutory functions of official publishing, with responsibility for publishing legislation and administering crown and parliamentary copyright, but these functions have now been transferred to OPSI (Office for Public Sector Information). The Official Publications section on its pages gives access to the full text of government publications where available, although it is often necessary to go to government department sites for departmental, non-parliamentary publications.
TSO (The Stationery Office) is now mainly useful for its online catalogue and bookstore.
The major online subscription service for official publications is UKOP, which has authoritative bibliographic information. BOPCRIS is a valuable free index to official publications from 1688 to 1995.
The Law Commission is an independent body set up in 1965 to keep the law of England and Wales under review and recommend reform where needed. Its projects are described on the website, and you can access the valuable Law Commission Reports and Consultation Papers in its online Library. The Scottish Law Commission is the equivalent body for Scotland
Recent constitutional reforms are dealt with under Background and Constitution above. Reform of civil and criminal procedure is under The Court System above.
You can find a useful summary of devolution since 1997 on UCL Constitution Unit’s website:
Information about devolution can also be found on the Directgov site and the devolved government and parliament sites.
The Scottish legal system is in part separate from that of England and Wales. It has its own court system and legal profession. Scotland lost its independent legislative powers under the Treaty of Union1707, when Scotland became part of Great Britain. In 1997 the new Labour Government carried through proposals for devolution, and the Scottish Parliament was set up following a referendum in the Scotland Act 1998. Elections were held in 1999. The Scottish Parliament can legislate in areas of domestic policy, but excluding foreign affairs, defence and national security, economic and monetary policy, employment and social security. The Scottish Executive is the official government website.
The court system is separate and different from that of England and Wales, and uses different terminology. The principal law officer is the Lord Advocate. The Court of Session is the supreme civil court, subject to appeal to the House of Lords, with most civil jurisdiction being dealt with in the sheriff courts. The supreme criminal court is the High Court of Justiciary, and the lower courts are the sheriff courts and district courts. The Scottish Courts website contains information on the court system and links to judgments.
The Laws of Scotland: Stair Memorial Encyclopaedia, Butterworths 1987- is the definitive Scottish legal encyclopaedia. It is available as a subscription service on LexisNexis Butterworths.
Until the establishment of the Scottish Parliament, Acts of Parliament with specific application to Scotland were made in the Westminster Parliament. The first of the Acts of the Scottish Parliament was passed in 1999, and they are on the Scotland Legislation website. This site also includes links to Scottish Statutory Instruments and other material.
The Scottish Parliament site includes Bills and other material.
Session Cases 1822- is the main series, reporting not only cases heard in the Court of Session, but also in the House of Lords and the High Court of Justiciary.
Scots Law Times 1893- is a weekly publication containing law reports. There are also other series, and some significant Scottish judgments may be reported in the Weekly Law Reports and the All England Law Reports.
BAILII publishes all the Scottish cases in the public domain with links to legislation and cases cited.
Wales has been united with England administratively, politically and legally since the 16th century. Under arrangements for devolution a new Welsh Assembly was established in 1999, following a referendum (The Government of Wales Act 1998), giving powers legislate in domestic areas but excluding foreign affairs and defence, taxation, overall economic policy, social security and broadcasting. However, the National Assembly for Wales is restricted to passing subordinate legislation only.
Welsh Statutory Instruments can be found on the Wales Legislation site and on BAILII.
There is no separate Welsh case law.
Northern Ireland was created in 1922 from the six protestant-dominated counties of the Irish province of Ulster (the remaining three Ulster counties being catholic). After centuries of conflict with Britain, in which the 'Irish question' was a major political issue, demands for home rule for Ireland were met by establishing two separate parliaments subordinate to Westminster (the Government of Ireland Act 1920: text on BAILII). This proved unacceptable to the South and after negotiations leading to the Anglo-Irish Treaty of 1921 (on the National Archives of Ireland website), the 26 counties of Southern Ireland left to form the Irish Free State, now known as the Republic of Ireland. The six predominantly protestant counties of the province of Ulster retained their own parliament under Westminster jurisdiction.
The present civil unrest between the Unionists (protestant) and the nationalists (catholic) began in the 1960s, and the British government assumed direct responsibility for law and order in 1972. The Northern Ireland Parliament was abolished, and replaced by a unicameral Northern Ireland Assembly, with a Secretary of State appointed by the British Government and serving as a member of the British Cabinet. The constitutional authority of this lies in the Northern Ireland Constitution Act 1973. This only lasted until 1974, when the British government took over direct rule of Northern Ireland (the Northern Ireland Act 1974). In 1998, following extensive negotiations, the Good Friday Agreement was reached and endorsed by referendum. A new Northern Ireland Assembly was created and legislation to implement the settlement (The Northern Ireland Act 1998 text also on BAILII) was passed. However, a breakdown in the peace process led to the suspension of the Assembly in 2002 and the re-imposition of direct rule from Westminster.
Legislation applying to the whole of the UK can be assumed to apply in its entirety to Northern Ireland unless this is made explicit within the Act. Some Acts apply primarily or exclusively to Northern Ireland. Northern Ireland. A House of Commons Factsheet on Northern Ireland Business and Legislation gives details.
The Northern Ireland Legislation site gives details of and links to all NI legislation.
Orders in Council are Statutory Instruments applying exclusively to Northern Ireland under the Northern Ireland Act 1974, and which equate to primary legislation. They are published in full text on the OPSI site. They are collected together in annual volumes: Northern Ireland Statutes, 1921-
Statutory Rules of Northern Ireland are Statutory Instruments relating exclusively to Northern Ireland and are on the web from 1998.
Statutes Revised Northern Ireland, 2nd. ed. (HMSO, 1982) includes Acts passed before Northern Ireland came into existence. These are also on BAILII.
The legal profession in England and Wales has two branches, solicitors and barristers. There are some 67,000 solicitors in England and Wales, and only 8,500 practising barristers. Barristers represent clients in the courts on the instruction of solicitors, although their exclusive rights of audience in the higher courts have been eroded in recent years. Barristers are organised into sets of Chambers, but are essentially self-employed. Their professional organisation is called the Bar. Solicitors are organised into firms of varying size from sole practitioner to large multinational practices. They provide all legal services and instruct barristers.
A valuable portal for the legal profession is Legal Resources in the UK and Ireland.
Law degrees in the UK are at undergraduate level. Professional training is provided at postgraduate level by means of the Bar Vocational Course (BVC) for would-be barristers, and the Legal Practice Course (LPC) for solicitors.
Students with a first degree in a subject other than Law must follow a one-year qualifying course (known as the CPE (Common Professional Examination) or PGDL (Post Graduate Diploma in Law) in the foundation subjects of law before being eligible for the qualifying courses. In order to enter the profession student solicitors must find a post as a trainee solicitor, and barristers must obtain a pupillage in a set of barristers’ chambers. Entry to both branches of the profession is extremely competitive.
The UK Centre for Legal Education is the body responsible for the development of learning and teaching in legal education, both academic and vocational.
There have been major changes in legal publishing in recent years. The venerable legal publisher Butterworths has been incorporated into LexisNexis, and the print publishing activity more or less abandoned. The academic titles have been sold on to Oxford University Press, and the practitioners’ titles to Tottel Publishing, a new imprint. Sweet & Maxwell continues to have an extensive print list.
Two thriving legal publishers with academic and practitioner lists are Cavendish Publishing, which incorporates an e-books service allowing the purchase of individual chapters, and Hart Publishing which tends more towards the academic market. Another important publisher is Cambridge University Press. However there are a number of other publishers with substantial legal publishing programmes. A list of these can be found on LAWLINKS.
The following are some of the sites providing free legal news:
· In Brief
In addition there are a growing number of web logs. Legal Resources in the UK and Ireland provides links to current awareness services and is kept up to date.
LIS-LAW, hosted at www.jiscmail.ac.uk, is the main forum for discussion among law librarians in the UK.