The legal system of England and Wales: a common law jurisdiction, its sources, its courts and its precedent rules

The United Kingdom is a political state made of England, Wales, Scotland and Northern Ireland. It has three legal jurisdictions: England and Wales, Scotland (whose law mixes civil law and common law and has its own courts and profession) and Northern Ireland. England and Wales is a single jurisdiction with one court system, although since devolution the Senedd in Cardiff can make laws that apply only in Wales, and the phrase ‘Welsh law’ now has real content. ‘Great Britain’ means England, Wales and Scotland. The right term when speaking of the law of this course is England and Wales.

The common law is sometimes contrasted with the civil law tradition of continental Europe. A civil law system starts from codes, and judges apply the code to the case. A common law system starts from decisions: judges decide the dispute in front of them and give reasons, and later courts follow those reasons. The contrast is less sharp than it was, as England and Wales now legislates heavily and many continental systems give weight to previous decisions, but it explains the habits of mind in each system. Civil law has another meaning, too: it is also the name for the body of law that deals with disputes between private parties, as against criminal law. Context shows which is meant.

The doctrine of precedent (*stare decisis*, ‘stand by what has been decided’) says that a court must follow the earlier decisions of higher courts, and in some cases of its own rank, when the facts raise the same point. It gives the law stability and lets people predict what a court will do. Only part of a judgment binds. The ratio decidendi is the legal reasoning necessary to the decision. Obiter dicta are things said by the way, such as a view on what would happen on different facts. A later court is bound by the ratio, and treats the obiter as persuasive only.

A court below can avoid a precedent without defying it by distinguishing the case: pointing to a material difference in the facts. A higher court can overrule an earlier case, and an appeal court can reverse the decision of the court below in the same case. The principle that decisions from other systems, such as Australia or Canada, may be cited and are persuasive but never binding, is part of how the common law has spread.

Tribunals form a separate system for disputes about employment, immigration, social security, tax and many other fields, with their own appeal routes into the Upper Tribunal and the Court of Appeal. Civil law (in the sense used here) deals with rights and duties between private parties, such as contract, tort, property and family, and aims to put the claimant right through damages or another remedy. Criminal law deals with wrongs the state treats as offences against the public, aims to punish and protect, and is prosecuted in the name of the Crown. The standard of proof differs: in civil cases, the balance of probabilities; in criminal cases, beyond reasonable doubt. One event can give rise to both, as when a drink driver injures a pedestrian.

The legal profession has two main branches. Solicitors advise clients directly and handle most legal work; to qualify, a person passes the Solicitors Qualifying Examination in two stages and completes qualifying work experience, and is regulated by the Solicitors Regulation Authority. Barristers specialise in advocacy and opinion work, are usually instructed through solicitors, and are regulated by the Bar Standards Board. Other regulated lawyers include chartered legal executives and licensed conveyancers. Judges are chosen from the profession through an independent commission. Wales has its own devolved Parliament, the Senedd, which makes laws in the areas devolved to it, such as health, education and local government; those laws apply only in Wales, while the courts remain those of the single jurisdiction.