A Legal Cultural “Take” on the Legal System of England and Wales

Many thanks to Research Assistant Ingrid Hestnes for updating and checking the references for the present edition of this contribution (1 June 2022).

Wales was annexed by England by the Acts of Union of 1536 and 1543, Scotland and England were unified by a treaty in 1707 and Ireland was to become part of the United Kingdom from 1801 until the secession of all bar Northern Ireland in 1922.

Devolution trends have also extended to the regions of England. As part of the sweeping constitutional modernisation reform proposals instigated during the late 1990s and early 2000s (described in more detail below), the UK Parliament passed the Regional Assemblies (Preparations) Act in 2003, which made provision for holding referendums concerning the establishment of elected assemblies for the regions of England (excepting London, which already has its own Assembly). Plans for English devolution nevertheless lost their momentum following a (rather unexpected) “no” vote in the very first such referendum, which was held in the North East of England. The Act was later repealed by the Local Democracy, Economic Development and Construction Act 2009.

For simplicity’s sake, and unless otherwise stated, reference will henceforth be made to the English legal system rather than the legal systems of England and Wales.

For an introduction to the Scottish legal culture, see instead the contribution by Simpson in this book.

UK Office of National Statistics. Available at https://​www.​ons.​gov.​uk/​peoplepopulation​andcommunity/​populationandmig​ration/​populationestima​tes.

For more on these, see, e.g., Cane (2009).

For county courts, the Magna Carta (1215) even contained a clause making clear that meetings were not to be held more frequently than once a month.

Manor courts enjoyed feudal jurisdiction over smaller communities of tenants (usually villages), not just of tenants of the same lord but also their neighbours. As feudalism essentially embodied the economic structure of medieval society in England at the time, the feudal manor courts therefore had little to do with governmental matters as such. The essence of feudalism itself reflects the strong economic dimension behind the structure, which formed a pyramid: a superior (e.g. a lord) would allow measures of control to his inferiors (e.g. tenants), whose holdings he would undertake to protect in return for a tribute (money, chattels, fighting men, etc.), and so on down the scale to the bottom of the feudal pyramid structure itself. Four elements were largely present in the work of the manor courts: determination of property rights, sanctioning against those who failed in their feudalistic duties, compensation issues and petty crimes. Somewhat confusingly in today’s standards, however, all such disputes could seemingly have been dealt with by the vills or the county or hundred courts, which enjoyed concurrent jurisdiction over many of the same matters. Nevertheless, it would seem as though most disputes that are limited to tenants belonging to the same manor would be dealt with by the manor courts in practice.

For more on the history of the sheriffs of England, see, e.g., Morris (1968).

Although records show that a central Court of Common Pleas (also called the Common Bench) existed in the late twelfth century to which private individuals could attempt to bring their cases, it would seem as though opting for that route was largely the exception to the general rule of seeking out the Justices in Eyre. The main reason for this is most likely that cases before the Common Bench required the issuance of a writ (i.e. a special authorisation to proceed with the case), which costs money. The writ system and the indelible mark it has left on the common law and legal culture of England and Wales are described further below.

Novel disseisin was an action at common law designed to return land to a wrongfully dispossessed claimant, whilst mort d’ancestor was an action to recover lawfully inherited land taken by another before the heir was able to take possession. For more on these and their history, see, e.g., Milsom (1981), pp. 134–143.

Magna Carta (1215), c. 17; Magna Carta (1225), c. 11.

Writs were not required (but could nevertheless be issued) for cases proceeding before the third of the centralised courts—the King’s Bench (described directly below).

Observant readers will note how the jurisdictions of the King’s Bench and Common Bench could therefore often be deemed concurrent, i.e. covering the same matters. For example, although trespass cases were ordinarily dealt with by the Common Bench, in cases involving aggravated trespass or in any event where royal interests were concerned, the King’s Bench was the correct venue. During the 1300s, the King’s Bench also regularly tried to prevent ordinary writs of trespass from going to the Common Bench altogether, at times causing such cases to be diverted to its list. The jurisdictions of the Common Bench and the Exchequer also seemed to overlap in part since the latter (up until 1300; see 28 Edward I, Chapter 4) also enjoyed the power to hear certain common pleas, such as any case involving Exchequer officials, who, owing to their privileged status, could compel proceedings to be held on their home turf. Plucknett argues that this jurisdictional flexibility indeed was one of the early main strengths of the centralised courts—allowing cases to flit back and forth between them, as required. See Plucknett (1956), p. 157. Viewed more subjectively, however, from the perspective of those approaching the courts at the time, it would probably have been considered a costly hardship for most, especially since the King’s Bench was still itinerant at the time.

During the reign of Edward III (1327–1377)—see, e.g., 42 Edward III, Chapter 6.

County Courts Act of 1846.

The Crime and Courts Act 2013, for example, abolished the need for the Lord Chancellor to give his approval for High Court judges to hear cases at a County Court—see Section 5 of the County Courts Act 1984.

Sections 2.1 and 2.2 of Civil Procedure Rules Practice Direction 7A. Readers will nevertheless note an important exception in that any claim deemed suitable for inclusion on any one of the specialist court lists of the High Court (e.g. the Patent or Company Court), can always justify bypassing these monetary limits.

The use of the term “fast track” is actually something of a misnomer, given that directions for pre-litigation commence up to 30 weeks before the set trial date(!).

District judges are appointed by the Queen, following an open competition administered by the Judicial Appointments Commission, with a statutory qualification of a 5-year “right of audience” (i.e. the right of a lawyer to advocate in court) in relation to all proceedings in any part of the Supreme Court or all proceedings in the County or Magistrates’ Court. Circuit Judges must have more than 10 years of right of audience and are usually expected to have previous experience as a Recorder or District Judge. Circuit Judges are appointed by the Queen on the recommendation of the Lord Chancellor, following an open competition administered by the Judicial Appointments Commission.

As mentioned previously, however, not all civil cases are dealt with at first instance by the County Court—certain particularly complex and/or substantial cases will go directly to the High Court (see further below).

Children and Families Act 2014 and Crime and Courts Act 2013 Section 17(3). According to these provisions, the Family Court has jurisdiction to deal with almost all family proceedings, except for a limited number of matters that are exclusively reserved for the High Court.

See the Civil Procedure Rules Family Practice Directions Part 30, as supplemented by Procedure Direction 30a on Appeals.

Ministry of Justice (2019) Family Court Statistics Quarterly—October to December 2018 https://​assets.​publishing.​service.​gov.​uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​789792/​FCSQ_​October_​to_​December_​2018_​-_​final.​pdf.

Pleas of the Crown were not originally limited to what we would call criminal offences today but also encompassed a number of civil claims in which a royal interest lay. By the eighteenth century, however, most of the civil claims had been removed from this heading in the books and reports dealing with such cases. There are several examples, one of which is civil claims related to trespass, where the fine issued (i.e. the royal interest in such a case) was eventually rendered nominal.

Patent Rolls, Henry III, vol. 1, 1216–1225, 186.

The laws of King Cnut (1016–1035) bear witness to the beginnings of a form of jury trial, although certain traces from the time before the Norsemen conquered Anglo-Saxon England also hint at similar mechanisms, such as King Ethelred’s Law of Wantage from the end of the 900s. Of course, it is not only jury trials that we must thank the Scandinavian invaders for—the origin of the very word “law” is traceable to the Norse language(!).

The hundred courts had for centuries dealt with a great many petty crimes and the like and were well established long before the Conquest. In the mid-900s, King Edgar charged the hundreds with capturing and trying thieves, and under King Cnut, no appeal to the King was made available unless justice could not be achieved before the hundreds. Local villages and townships were also often placed under a collective duty to report crimes and (preferably, if possible) present wrongdoers to the hundred courts. This duty of presentment was carried out by the sheriff and his four best men. Here we can also spy certain traces of the modern criminal jury as the King’s justices in several instances would call upon the sheriff and four best men of four or more neighbouring villages or townships to pass judgment on the guilt or innocence of a defendant. The modern civil jury, for its part, grew instead from the old criminal jury through the action of trespass, which, as mentioned previously, suffered a rather muddled past, being both part civil and part criminal wrongdoing in nature (see, e.g., Plucknett 1956, p. 107). Whilst the hundreds’ collective policing and administrative duties steadily increased well into the 1800s, their importance as a judicial unit faced a rather abrupt decline: sheriffs often controlled the hundreds, appointing bailiffs under their control to steer proceedings, and many sheriffs were kept firmly in the pockets of larger landowners. Thus, many hundreds were effectively under private control. That also meant that fines and forfeitures resulting from criminal inquiries—a lucrative source of revenue—could be (and probably often were) diverted from the King’s coffers to local magnates. The Assize of Clarendon (1166), as later confirmed by Magna Carta, therefore served to remove the pleas of the Crown from the local courts’ jurisdiction.

For more on the background leading up to the passing of the Courts Act 1971, and the proposals of the Beeching Commission upon which it was largely based, see, e.g., Cownie et al. (2007).

Generally, according to Section 154 of the Criminal Justice Act 2003, defendants who either plead or are found guilty by the Magistrates may receive sentences of up to 12 months’ imprisonment for a single offence (65 weeks in total for consecutive offences) or a fine of up to £5000.

“Court Closures and Access to Justice”, Debate Pack, CDP-0156, House of Commons Law Library, 18 June 2019, 4.

On a slightly different tangent, the mode of trial by battle in itself shows just how deeply entrenched the basic ideal of adversarial proceedings (and hence procedural law) really is in the English legal culture.

See, e.g., Plucknett (1956), pp. 118–119.

Statute of Westminster I (1275), c. 12.

Plucknett (1956), p. 125. By the 1670s, jury trial was still essentially medieval—indeed, wager by law was not completely done away with until well into the 1800s.

Milsom (1981), p. 411; as now set out in the Magistrates’ Court Act 1980.

See further, e.g., Gillespie (2015), pp. 202–203.

House of Commons (2021) Court Statistics for England and Wales. https://​researchbriefing​s.​files.​parliament.​uk/​documents/​CBP-8372/​CBP-8372.​pdf.

Section 78 of the Senior Courts Act 1981.

Formerly the Supreme Courts Act 1981.

This series of acts started with the Supreme Court of Judicature Act 1873, followed in quick succession by a further 14 orders and amending statutes leading up to the turn of the twentieth century.

See Schedule 1 of the SCA 1981 for more details concerning the distribution of business at the High Court.

For example concerning certain inheritance cases, which may be dealt with by either Chancery or the Family Division, according to the terms set out in the Inheritance Act 1975 and CPR 57.15.

Tort claims concern civil wrongs, such as wrongs against the person (e.g. defamation and libel) and/or against property (e.g. trespass, negligence and nuisance).

Business at the Commercial Court has a distinctly international flavour, dealing with a variety of claims relating more generally to the transactions of trade and commerce, such as commercial agreements, import and export, markets, carriage of goods, agency, insurance and reinsurance, banking and financial services, arbitration and competition matters. The Admiralty Court, for its part, enjoys jurisdiction over a number of maritime claims, such as the arrest of ships, mortgage and ownership claims, collisions and salvage.

Section 19(3) of the SCA 1981.

Section 66(3) of the SCA 1981. If only two judges hear an appeal and they disagree on the outcome, the judge agreeing with the order of the lower court will win the day—which would also serve to explain why criminal appeals at the High Court are in fact usually heard by three judges.

Section 4(1) SCA 1981.

For more on the powers of the High Court on appeal, see Section 6 of the Summary Jurisdiction Act 1857, which states that the High Court may affirm, reverse or vary the decision of the first instance court, make any order it deems fit, or send it back to the first instance court with its opinion attached. It may also order a rehearing of the case by the same (or different) judges.

Other early examples of appellate jurisdiction include Parliament’s jurisdiction in error over decisions from the King’s Bench, discussed further below.

Criminal Appeal Act 1966.

The grounds for allowing and dismissing criminal appeals are currently set out in the Criminal Appeals Act 1995.

Certain High Court Judges and senior Circuit Judges may sometimes be authorised to sit to hear cases in the Court of Appeal. Retired Lord and Lady Justices and current Justices of the UK Supreme Court appointed from England and Wales can also hear cases in either division.

Judiciary of England and Wales (2018) The Lord Chief Justice’s Report 2018. https://​www.​judiciary.​uk/​wp-content/​uploads/​2018/​11/​lcj-report-2018.​pdf. More recent figures are difficult to trace and might in any event give the wrong impression, given the impact of Covid-19 and the numerous lockdowns in the UK over the past few years, which have inevitably led to a greater backlog of cases than usual.

Initially by the Provisions of Oxford (1258), as subsequently reaffirmed by the Provisions of Westminster (1259).

Chapter 24 of the Second Statute of Westminster (1285) did, however, empower Chancery to create new writs in narrowly defined circumstances, although this power certainly appears to have been used with extreme caution.

See, e.g., Plucknett (1956), p. 151.

Only one full manuscript of Fleta from the 1400s exists today and may be found in the British Library. The Selden Society has published edited versions of the treatise, translated from Latin under the steady hands of G.O. Sayles and H. G. Richardson; Fleta – vol. ii. (Prologue, Books 1 and 2) (1955) Vol. 72, Selden Society; Fleta – Books 3 & 4 (1972) Vol. 89, Selden Society; Fleta – Books 5 & 6 (1983) Vol. 99, Selden Society. Fleta is often said to be based largely on Bracton’s earlier writings—an author whom we shall return to touch upon briefly in Sect. 5 below.

Richardson and Sayles (1955), para 1.

Plucknett (1956), p. 201.

Later also confirming its jurisdiction in error from the Queen’s Bench (Error from the Queen’s Bench Act 1584) and more generally from lower common law courts (Error Act 1588).

Just as the pre-Conquest Anglo Saxon rulers of England were believed to have done at their Witans in (even more) ancient times. Like the early post-Conquest Parliaments, the Witan was in no sense a popular assembly but was rather the council of the Anglo-Saxon kings. Its essential duty was to advise the King on all matters on which he chose to ask its opinion. Although its composition and the time of meeting were determined at the King’s discretion, they were usually attended by the greater nobles and bishops of the realm.

18 Car. 2, 1666, 6 vol. 709; Skinner v. East India Company (1666) St. Tr. 710. Thomas Skinner had established a base for trade in the Far East at a time when little regulation on such matters existed. The East India Company subsequently took control of the area under state-sanctioned monopoly trade rights, confiscating Mr. Skinner’s property in the process. He petitioned the King for relief, and the dispute was subsequently referred to the House of Lords, which decided in favour of Mr. Skinner. In reply, the East India Company petitioned the House of Commons, claiming that the decision of the House of Lords had no merit as it should have been first dealt with by a court proper at first instance. The dispute between the Houses spiralled seemingly out of control, to the point where orders were made by the Commons for the imprisonment of Skinner and by the Lords for the imprisonment of the East India Company’s chairman. Whilst the conflict eventually cooled off and was effectively abandoned by both Houses, it marked the House of Lords’ final acceptance of a case under its original (civil) jurisdiction. Although it continued to hear, e.g., indictments against peers, technically this was not at first instance as such cases would first be touched by the King’s Bench before being referred to the Lords—usually by the Lords’ issuing of a writ of certiorari to it. For more, see, e.g., Dymond (2009), p. 4.

As mentioned above (Sect. 2), the Judicature Act of 1873 had initially set out to do away with the House of Lords’ judicial competence altogether—at least as far as cases originating in England were concerned. Although the reform was never carried out, the very attempt to divest the House of its judicial powers was rather unsurprising. At this point in time, the Lords proved often prone to high degrees of partisanship and capriciousness in their appraisal of the disputes that were brought before them. As such, the House of Lords’ judicial decisions of the time—although growing steadily in number—enjoyed little respect from the people of the country or the Bar itself. For more generally on the role of the House of Lords in its judicial capacity following these events, see the remarkable book by Blom-Cooper et al. (2009).

Dymond (2009), p. 9. The House had in fact previously enjoyed jurisdiction in error in criminal cases, but it had virtually lapsed in practice at this point.

Sections 33 and 137 of the Constitutional Reform Act 2005. Although they rarely did so, the former Law Lords were able to vote on legislation as full members of the House of Lords. In fact, in later years, the Law Lords would only really be involved in certain committee work, especially in the EU Committee. The first Supreme Court Justices (as former Law Lords) remained members of the House of Lords but were unable to sit and vote in the House. All new justices appointed after October 2009 are directly appointed to the UKSC on the recommendation of a selection commission.

The idea of separating the political and legal roles of the Lord Chancellor was indeed not new, an attempt, for example, having been made 171 years earlier, in 1834, by the then Lord Chancellor (Brougham). The current reforms would no doubt also have pushed even further—doing away with many of his residual powers and distancing him even further from the legislature and judiciary. But many of these powers were statutory in nature, and the House of Lords has proven highly reluctant to let go of some of the more ceremonial traditions vested in the office. For more, see, e.g., Horne (2015).

Appointments to the Supreme Court—which are primarily made on the basis of merit—are now governed by Sections 25–31 and Schedule 8 of the Constitutional Reform Act 2005, as amended by the Tribunals and Enforcement Act 2007 and the Crime and Courts Act 2013.

Compare, e.g., the views of former Supreme Court Justice (and inaugural President of the UKSC) Lord Phillips (2012), with the views of Supreme Court Justice Lady Hale (2015): “The rule of law has always been the servant of Parliamentary sovereignty – the courts ensuring that public authorities stay within the bounds of the powers which Parliament has given them – but could it be that the rule of law is gradually taking over as the organising principle of our constitution?” See further Darbyshire (2015).

For a more recent example, see The Criminal Justice and Courts Act 2015, which amended Section 5 of the Constitutional Reform Act 2005 so as to allow the President of the Supreme Court to lay before Parliament written representations on matters of importance relating to the Supreme Court or to the jurisdiction it exercises.

See Section 40 and Schedule 9, Constitutional Reform Act 2005. The Judicial Committee of the Privy Council is the highest court of appeal for many Commonwealth countries, British Crown Dependencies and British Overseas Territories. Five judges—usually Justices of the Supreme Court (known as “The Board”)—determine such cases. Whilst not binding as precedent on lower courts in England and Wales, the decisions of the Privy Council are nevertheless considered highly persuasive sources of law—unsurprising, perhaps, in light of the judges who usually decide the cases.

Section 63 of the Criminal Justice and Courts Act 2015 has recently broadened the range of appeals from the High Court that may “leapfrog” the Court of Appeal and go directly to the Supreme Court, thereby aiming to save the cost and inevitable delay of the regular appeals procedure in cases which appear destined to end up before the UKSC in any event.

Section 42, Constitutional Reform Act 2005.

See the Administration of Justice (Appeals) Act of 1934.

Detailed figures from 1 year to the next are made public in the Supreme Court Annual Report and Accounts, available and free to download on the Supreme Court’s website: https://​www.​supremecourt.​uk/​about/​planning-and-governance.​html.

The devolution settlements of the late 1990s saw competence to rule on the legality of the actings of the Parliamentary Assemblies of Scotland, Wales and Northern Ireland fall to the Judicial Committee of the Privy Council. Following the Constitutional Reform Act 2005, the competence to rule on (and potentially strike down) such actings as incompatible with the powers granted to them by the UK Parliament was transferred to the Supreme Court.

See the seminal ruling in R (Jackson) v. Attorney General [2005] UKHL 56, [2006] 1 AC 262. Although refuting the contention that they had power to strike down the controversial Hunting Act 2004, Lords Hope and Steyn and Lady Hale all hinted in obiter dicta at the potential limits of the principle of parliamentary sovereignty, questioning whether Parliament could legislate so as to, e.g., abolish judicial review by ordinary courts of law.

Milsom (1981), p. 27.

Ibid, p. 6.

The inevitable discussion as to whether judges therefore create law or merely provide evidence as to what the law is, and the constitutional sensibilities it provokes, is naturally too big to deal with here. For a brief introduction to the discussion, see, e.g., Twining and Miers (2010).

Holland and Webb (2010), p. 193.

Holland and Webb (2010), p. 198.

As we have implicitly seen in earlier sections, drawing this distinction between law and fact is also important in other connections, such as in distinguishing between the functions of a judge and a jury and in establishing general rights of appeal.

See further, e.g., Mcleod (2005), pp. 33–40.

See, e.g., National Westminster Bank Plc v. Spectrum Plus Ltd and others [2005] UKHL 41 and Ahmed v. H.M. Treasury (no 2) [2010] UKSC 5.

See, e.g., British Railways Board v. Herrington [1972] 1 All ER 749, where the House of Lords overruled its previous decision in Addie (Robert) & Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358, thus creating liability in tort for the damage caused to trespassers, where previously there had been none. Further, in R.v. Shivpuri [1986] 2 All ER 334, the House of Lords overruled its previous decision in Anderton v. Ryan [1985] 2 All ER 355, to the effect that even if it may not be possible to commit the full criminal offence in question because the factual basis is not present (in this case, believing that one is handling drugs, which turns out to be a harmless white powder), if the facts had been as the defendant believed them to be (i.e. that he was in fact handling drugs), he can be charged with attempting to commit the offence in question.

As set out in Young v. Bristol Aeroplane Co. Ltd. [1944] 2 All ER 293, and Police Authority for Huddersfield v. Watson [1947] 1 KB 842.

An exception to this exception is nevertheless deemed to apply as far as lower courts are concerned as they are barred from disapplying decisions of higher-ranking courts under reference to the per incuriam rule—see, e.g., the Court of Appeal’s attempt to do so in Broome v. Cassell & Co. Ltd. [1971] 2 All ER 187, [1971] 2 W.L.R. 853, and the (rather harsh) subsequent rebuke by the House of Lords on appeal in the same case ([1972] 2 W.L.R. 645, [1972] 1 All ER 801).

The most notable pieces of legislation include, e.g., the Statutes of Westminster (I and II) and the Bill of Exceptions. For more, see, e.g., Plucknett (1956), pp. 27–31.

Ibid, pp. 44–46.

Indeed, the infancy of modern contract law can be traced to the Statute of Frauds (1677), which introduced regulation of more trade and commerce matters by requiring more formal methods of proof through written agreements than had hitherto been the case, and the Habeas Corpus Act (1679), which grew from the common law writ of the same name and, even earlier on, from the practice of royal command by the King to one of his officials.

Bentham (1789/1996). It was at this time that, e.g., the wager of law was finally abolished as a method of proof in legal proceedings (see Sect. 2 above).

Indeed, the structural reforms to the judicial system brought about by the many legislative acts adapting, furthering and amending the Constitutional Reform Act 2005 no doubt also find a certain resonance in calls for increased austerity—although one should perhaps also be wary of the many challenges this might pose to upholding the rule of law, not least through access to justice and the courts as one of its primary virtues.

Although Parliament changed from hand writing to printing the original Acts of Parliament back in 1849, they are still printed on vellum to this very day. Thankfully, the UK Government’s website https://​www.​legislation.​gov.​uk/​ukpga also makes all current Acts of Parliament and Statutory Instruments electronically available to the public.

By way of caveat, amendments may be made in the Lords’ at this stage, but only if the amendments themselves concern matters not previously debated and/or voted on at an earlier stage.

The situation is naturally more straightforward in democratic terms where the bill was first introduced in the House of Lords, and the House of Commons later refused to agree on the text—in these cases, the Commons would in any event always enjoy the last word.

Watson (2019).

Discounting (theoretical) situations where the formalities of the legislative procedure have not been adhered to—in such cases, judicial review of the validity of the Act may well be readily available.

Section 2(4) of the European Communities Act 1972.

The UKSC acknowledged in the seminal HS2 case that we can differentiate between “constitutional legislation” and “ordinary legislation” under UK law, thus challenging the traditional view and core of the principle of parliamentary sovereignty that all statutes of Parliament are legal equals (R (HS2 Action Alliance Ltd.) v. Secretary of State for Transport [2014] UKSC 3, [2014] WLR 324). As pointed out, e.g., by Elliott, this decision has certainly done much to allow us to reimagine the UK constitutional landscape and the constitutional setting within which the principle of parliamentary sovereignty is situated today; see Elliott (2014).

“Supreme Court Practice Direction (Hansard: Citation)” [1995] 1 WLR 192.

Particularly noteworthy is the Statute of Proclamations of 1539, passed during the reign of Henry VIII, which formally provided the King and his Council with the prerogative (i.e. power) to issue proclamations having the force of acts of Parliament in cases of emergency—a power which appears to have been used moderately, however, and with little attempt to usurp the legitimate law-making powers of Parliament as such.

This is sometimes referred to as “consistent” or “harmonious” interpretation in practice.

Section 3 of the Human Rights Act 1998.

Section 2 of the Human Rights Act 1998, which also refers to certain statements and decisions of the Commission and the Committee of Ministers.

“An interpretation should not be adopted which is inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment.” Vodafone 2 v. Revenue and Customs Commissioners [2009] EWCA Civ 446, with further reference to Lord Nicholls in Ghadain.

In a series of judgments in the past few years, the UKSC has placed renewed emphasis on common law as a source of fundamental, constitutional rights—see, e.g., Osborn v. Parole Board [2013] UKSC 61, [2014] AC 1115; Kennedy v. Charity Commission [2014] UKSC 20, [2014] 2 WLR 808; A v. BBC [2014] UKSC 25, [2014] 2 WLR 1243; and R. (Evans) v. Attorney General [2015] UKSC 21. Supreme Court Justice Lady Hale has suggested in the light of these cases that “there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration”; see Hale (2014). For more on these developments, see, e.g., Clayton (2015).

See, e.g., The Guardian (2016) UK must leave European convention on human rights, says Theresa May. https://​www.​theguardian.​com/​politics/​2016/​apr/​25/​uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum.

The consultation ran from 14 December 2021 to 19 April 2022. See UK Government (2021) Human Rights Act Reform: A Modern Bill of Rights—A consultation to reform the Human Rights Act 1998. https://​www.​gov.​uk/​government/​consultations/​human-rights-act-reform-a-modern-bill-of-rights.

Although some may be tweaked, such as the right to trial by jury, which as we have seen holds a strong historical position under common law. There is also a suggestion for enhancing the right to freedom of speech (Section 12(4) of the Human Rights Act 1998), whereby the balance struck thus far by the ECtHR between freedom of expression and privacy seems to be clearly called into question. See the Consultation Paper, ibid, pp. 61–64.

Ibid, p. 5.

Ibid, p. 6.

Ibid, pp. 6, 23.

Ibid, p. 56.

Ibid, pp. 28–29, 43.

Section 3 provides: “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any [EU instrument], shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant [decision of the European Court]).”

See, e.g., Pickstone v. Freemans Plc. [1988] 2 All ER 803, [1989] AC 66, and Litster v. Forth Dry Dock and Engineering Co. Ltd. [1989] 1 All ER 1134, [1990] AC 546.

See, e.g., Jessemy v. Rowstock Ltd. [2014] 3 CMLR 24 and Vodafone 2 v. Revenue and Customs Commissioners [2009] EWCA Civ 446.

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ C 384I/1.

Section 1 of the European Union (Withdrawal) Act 2018.

Section 1 of the European Union (Withdrawal Agreement) Act 2020.

Section 39 of the European Union (Withdrawal Agreement) Act 2020.

Sections 2 and 3 of the European Union (Withdrawal) Act 2018.

Section 4 of the 2018 Act ensures that any remaining EU rights and obligations, including directly effective rights within EU treaties, continue to be recognised and available in domestic law after exit.

Barnard (2022).

For more on the enquiry, still ongoing at the time of writing, see https://​committees.​parliament.​uk/​work/​6492/​retained-eu-law-where-next/​publications/​.

See UK Government (2022) Queens Speech. https://​www.​gov.​uk/​government/​speeches/​queens-speech-2022.

Article 7 TCA.

Indeed, the axiom of medieval justice seemed to be “to each his own” (Plucknett 1956, p. 31) and largely the product of the views of the Regent—by virtue of the divine right of the sovereign and the centralisation of the judiciary under his direct control. Yet these views naturally came to change as society developed. If the interregnum period between 1649 and 1660 without a King or Queen and the many experiments on various forms of government proposed during this time were to teach the English one thing, it was that the power to determine government ultimately lay in the hands of its people. And from this realisation poured forth many new political theories of government, advocating many different forms of justice still taught today—such as those of Hobbes (advocating the virtue of the social contract between men, whereby justice is derived from the mutual agreement of everyone concerned) and Locke (who promulgated the virtues of justice as a part of natural law, according to which certain consequences will naturally derive from any given action). The changing ideals or notions of justice borne out of the English civil war are further reflected in the Act of Settlement of 1701, which finally cemented the complete independence of the lower rungs of the English judiciary, providing for the removal of judges from their posts only by a decree of both Houses of Parliament (i.e. the Commons and the Lords).

Procedural rights under English law have also had a marked influence on the development of procedural rights in other common law jurisdictions and in the EU legal system—see, e.g., Franklin (2010).

Lord Devlin (1956). It had not always been so, however: as jury trial quickly became the norm in the 1300s, it also came to be manipulated in many instances through bribery, stacking and intimidation. It is therefore not so difficult to imagine the distrust of juries being an important factor in the early popularity of equity courts (Plucknett 1956, p. 178). Plucknett maintains further that the development of trial by jury can be seen as a reaction to (or a dissatisfaction with) existing methods of proof, the obvious inclination being that any person presenting their own witnesses to swear as to their words and actions would more often than not be biased in their views. The juries themselves suffered under similar (and often decidedly warranted) accusations of bias in ancient times. Jurors were selected from the representatives of the vills and hundreds, who were presenting defendants to the itinerant Justices in Eyre. The very act of presentment, of course, entailed an accusation in itself—that the defendant had committed a wrongdoing. And as members of the presenting parties eventually came to be asked to determine matters of guilt as well, it was not that difficult to predict the likely outcome of their verdict—at least in those cases where they had presented the defendant to whom they were now to judge. The odds became even more firmly stacked against the accused over the course of the 1300s as indictors risked imprisonment themselves in the event of a subsequent acquittal. It was not until 1352 that a statute was finally introduced that allowed defendants to challenge jurors on the ground of bias for also being a part of the presenting party, thus ensuring some basic modicum of justice in criminal proceedings (see 25 Edward III, stat. 5, c. 3). Over the course of the following century, it became possible to challenge the decision of juries in certain (and eventually all) civil trials for “attaint”—essentially a form of appeal to a new jury of 24 not only to rehear the case but also to decide whether the initial jury had perjured itself. In criminal proceedings, the final act of ensuring a jury’s impartiality was to arrive as late as 1856, when an Act of Parliament was passed ensuring the removal of certain cases from local jurisdictions to the Central Criminal Court in cases where bias might be feared (19 Vict., c. 16).

Milsom (1981), p. 5.

Plucknett (1956), p. 158.

It is important to note, however, that Chancery’s equitable jurisdiction was by no means made exclusive at this stage. A number of other courts, such as the Court of Exchequer, and the Councils of Wales and the North (the bodies set up to govern these troubled areas during the 1300s–1400s) also exercised a considerable degree of equitable jurisdiction. Although the historical beginnings seem rather murky, it seems apparent from the rolls that the Exchequer also came to exercise a significant equitable jurisdiction in its own right, lasting from the early 1400s all the way down to 1842, at which point its jurisdiction was transferred in its entirety to the Chancery.

Selden (1689/1868), p. 46.

A trust is a form of property holding under English law whereby the legal estate lies with the trustee and the equitable (i.e. beneficial) ownership is kept separate. The formation of trusts thus allows elaborate and complicated systems of beneficial interests to be created without complicating the legal title to a thing. Although it would naturally have been possible to achieve the same result using other mechanisms, the trust mechanism is viewed as a convenient (and today pretty much the only) way of effecting complicated forms of property settlement under English law. The use of trusts has spread to other common law jurisdictions around the world, and guidelines for their recognition in other (i.e. civil) jurisdictions may be found in the suitably titled 1984 Hague Convention on the Law Applicable to Trusts and Their Recognition.

For more details, see, e.g., Martin (1997), pp. 32–38.

Attempts to curb the King’s Council’s equitable jurisdiction had, for example, been made by several Parliaments during the course of the 1300s.

See, e.g., Plucknett (1956), pp. 192, 194.

Martin (1997), pp. 12–14.

This was not the first attempt at jurisdictional fusion. Sir Thomas More—who sat as Chancellor from 1529 to 1532 and was a lawyer trained in common law—is, for example, known to have suggested to the Common Bench during his tenure that it adopt equity into its jurisdiction and thereby do away with the need for discretionary injunctions. It is needless to say perhaps, in light of what we shall see below, but his suggestion seemed to fall on deaf ears. See further Holdsworth (1924), pp. 223–224; Plucknett (1956), pp. 189–190.

Section 25 of the Judicature Act 1873, reproduced today in Section 49(1) of the SCA 1981: “Subject to the provisions of this or any other Act, every court exercising jurisdiction in England or Wales in any civil cause or matter shall continue to administer law and equity on the basis that, wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.”

Lord Denning (1980), p. 134; Anton Piller KG v. Manufacturing Processes [1976] Ch. 55; [1976] W.L.R. 162; Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd’s Rep. 509.

Section 23 of the County Court Act 1984.

For more on the forerunners to the serjeant counters—the narrators—see Plucknett (1956), p. 217.

For more on the serjeants and the beginnings of judicial recruitment from amongst their ranks, see, e.g., Langbein et al. (2009), pp. 155–162.

See, e.g., UKSC Justice Lady Hale (2015) Speech delivered at Conference to mark the tenth anniversary of the Judicial Appointments Commission. https://​www.​supremecourt.​uk/​docs/​speech-151106.​pdf.

See the Practice Direction issued by Lord Woolf CJ in 2001, where he states in no uncertain terms how “both the High Court and the Court of Appeal require that where a case has been reported in the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales it must be cited from that source. Other series may only be used when a case is not reported in the Law Reports.” [2001] 1 WLR 194.

40 or so institutions currently offer the LPC to approximately 9000 students per year; only eight offer the BPTC to approximately 2000 students per year.

According to numbers issued by the Solicitors Regulation Society, April 2022. Of these, approximately 2/3 work in private practice, with the rest working either in-house for large corporations (approx. 15,000) or for the local or central government (including approx. 2000 for the Crown Prosecution Service).

See the Solicitors Regulation Authority’s Higher Rights of Audience Regulations 2011, Part 2, Regulation 2.

Clementi (2004) Review of the Regulatory Framework for Legal Services in England and Wales—Final Report.

Such as the Solicitors Regulation Authority—an Approved Regulator charged with ensuring standards for education, training and qualification of solicitors, under the guise of the Legal Services Board.