Chapter 1. The Common Law Framework in England and Wales

The Common Law System

The legal system stands as the institution that formulates, enforces, and interprets the laws governing a society, ensuring the resolution of disputes within its jurisdiction.

England and Wales are distinguished by their common law system, where legal decisions are derived from both statutory laws and judgments from prior similar cases.

This contrasts with the civil law systems prevalent in much of Europe, which rely heavily on codified statutes.

"Consider a situation where two neighbours dispute the boundary between their properties.

Under the common law system of England and Wales, the court would resolve this dispute by referencing relevant property laws and considering previous judicial decisions where similar boundary disputes have been adjudicated."

1.1 Progression of Legal Precedents

The common law is enriched by judicial decisions which may interpret statutes relevant to the dispute or be based on judicial discretion where no statute directly applies. This allows for the law to adapt and become more nuanced as judges make rulings that provide detail to areas not explicitly covered by legislation.

"However, not all prior decisions have equal authority; in the English/Welsh legal system, some precedents are binding while others are merely persuasive."

1.2 The Adversarial System

In this system, the disputing parties present their case, and the judge acts as a neutral arbiter, ensuring the procedural rules are followed. This is in contrast to the inquisitorial systems found in civil law jurisdictions.

1.3 Principles of Equity

Historically, English law comprised two strands: the rigid common law and the more flexible principles of equity, administered by the chancery courts. Post-1875, these streams merged, allowing legal proceedings to include both statutory and equitable remedies, the latter being dispensed as per the tenets of fairness and justice.

1.4 Legal Terminology

Understanding the categorisation of laws is vital.

Laws are differentiated as public or private, criminal or civil, and further as substantive or procedural, each with distinct functions and applications within the legal system.

Sources Of Law

2.1 Act of Parliament

Statutes or Acts of Parliament are paramount in the UK's legal hierarchy. They are primary legislation from which the common law draws its authority and substance.

Understanding an Act involves comprehending its integral features:

• Short Title. The name by which the Act is commonly known, for example, the Data Protection Act 2018.  
• Citation. The unique identifier of the Act, often a chapter number, used for referencing, such as 2018 c.12.
• Long Title. This explicates the Act's purpose and assists in its interpretation, for instance, "An Act to make provision for the regulation of the processing of information relating to individuals..."
• Date of Royal Assent. The day the Bill becomes law, such as for the Data Protection Act 2018, which was the 23rd of May 2018.
• Preamble. A formal declaration historically included to announce the sovereign's enactment of the legislation.
• Parts and Sections. These subdivide the Act into thematic areas and specific clauses for detailed legal application.
• Extent Provisions. These outline the applicability of the Act, which may vary based on the matter at hand and the relevant authorities involved.
• Enabling Provisions. These sections allow certain parts of the Act to come into force at a future date through secondary legislation or regulations often stipulated by a government minister.

For solicitors, a deep understanding of these components is essential for accurate application and interpretation of the law.

2.2 Statutory Instruments

Certain Acts confer powers upon various bodies to create detailed regulations or rules to implement and administer the Act's broad principles. These delegated legislations are known as statutory instruments (SIs) or secondary legislation.

"For example, the Health and Safety at Work etc. Act 1974 empowers the Secretary of State to issue detailed regulations on a range of workplace safety issues.

The resulting detailed rules, such as the Management of Health and Safety at Work Regulations 1999, are statutory instruments that provide practical measures to fulfill the Act's objectives."

2.3 International Treaty

Under the royal prerogative, as outlined in your constitutional law materials, the executive branch, comprising the Prime Minister and Cabinet, holds the power to enter into binding international treaties on behalf of the United Kingdom. These treaties become binding international obligations, though their provisions may require the enactment of legislation to take effect domestically.

2.4 Case Law

The common law system is characterised by its dual reliance on statutory law and the body of judicial decisions. When a point of law is established in a higher court, it becomes a binding precedent as part of the common law, thereby granting senior judges a de facto legislative role independent of Parliament.

2.5 Works of Authority

In the realm of common law, authoritative texts, such as seminal textbooks and legal treatises, may assist in interpreting legal texts.

While less influential than in civil law jurisdictions, these works are nonetheless respected for their scholarly insight.

2.6 Conventions

Conventions arise from the unwritten aspects of the UK constitution, as discussed in your constitutional law materials.

These are established practices that, despite being unenforceable in courts, carry significant weight in the governance of the country.

"An example is the expectation that a Prime Minister should resign after losing a parliamentary vote of confidence."