Unit 1 Core Reading

Key Principles of the English Legal System

– Unit 1 Core Reading
Table of Contents
Chapter 1: Introduction to the Legal System of England and Wales and Sources of Law.................. 3
1. Introduction: what is a legal system? ......................................................................................... 3
2. What a legal system is not .......................................................................................................... 3
3. Examples of legal systems around the world ............................................................................. 4
4. The rule of law and its place in our legal system ........................................................................ 6
5. International Law ........................................................................................................................ 8
6. 1066 and all that ......................................................................................................................... 8
7. The Magna Carta 1215 ................................................................................................................ 9
8. Legislation – the new normal .................................................................................................... 10
9. How the judiciary found its voice ............................................................................................. 10
10. Bill of Rights 1688.................................................................................................................. 11
11. Extending the franchise ........................................................................................................ 12
12. The place of EU law within our legal system ........................................................................ 12
13. Why England and Wales (but not Scotland)? ....................................................................... 14
14. Differences between civil and criminal law .......................................................................... 15
15. The role of the police ............................................................................................................ 17
16. The British Broadcasting Corporation (BBC) ......................................................................... 18
17. The UK Constitution .............................................................................................................. 19
18. Summary ............................................................................................................................... 20
Chapter 2: Sources of Law of England and Wales......................................................................... 22
1. Introduction .............................................................................................................................. 22
2. Scope of this chapter ................................................................................................................ 22
3. Acts of Parliament ..................................................................................................................... 22
4. Case law .................................................................................................................................... 24
5. Common law ............................................................................................................................. 24
6. Equitable principles................................................................................................................... 25
7. The combined concept.............................................................................................................. 25
8. Civil law ..................................................................................................................................... 26
9. How these principles dovetail today......................................................................................... 26
10. Case law in action ................................................................................................................. 27
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11. Traditional sources of law ..................................................................................................... 27

12. Legal academics, commentators and philosophers .............................................................. 31
13. Reflections on jurists and academics .................................................................................... 34
14. EU law ................................................................................................................................... 35
15. The internet .......................................................................................................................... 36
16. Summary ............................................................................................................................... 36
Chapter 3 Development of Case Law .......................................................................................... 38
1. Introduction .............................................................................................................................. 38
2. Law, morality and ethics ........................................................................................................... 38
3. Types of case law ...................................................................................................................... 41
4. Cases relating to essential freedoms ........................................................................................ 42
5. Decisions relating to entitlements ............................................................................................ 43
6. Cases relating to constitutional matters ................................................................................... 44
7. Matters relating to the changing nature of society .................................................................. 45
8. Cases relating to business and the creation of wealth ............................................................. 50
9. Cases where the courts got it wrong ........................................................................................ 52
10. Summary ............................................................................................................................... 54
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Chapter 1: Introduction to the Legal System of England and Wales and

Sources of Law
1. Introduction: what is a legal system?

A legal system could mean a variety of things. To a judge it might represent the ability to resolve
differences within society. To a politician it could be a vehicle for assisting in the allocation of
resources. A scientist would regard it as a means of enabling and protecting research. For businesses
it could be a means of ensuring fair play between government, free enterprise and the individual. To
ordinary people it represents the protection of freedoms.
These are important but somewhat nebulous concepts. For a more specific definition we can refer to
a wealth of textbooks and academic publications. For instance, Slorach, Embley, Goodchild and
Shephard, Legal Systems & Skills, 3rd edn (Oxford University Press, 2017) at chapter two offers the
following:
The legal system describes the body of institutions that make, execute and resolve disputes
on the law of the jurisdiction, together with the law they deal with. You may encounter the
term legal system in a narrower sense, meaning the courts of a jurisdiction.
The authors then go on to state that:
a jurisdiction is most commonly used to refer to a political entity where a particular law has
application.
2. What a legal system is not

Let’s speculate as to what a legal system is not. It is not a thing of pleasure, where everyone obtains
unlimited enjoyment from it, because it invariably involves hard choices. It is not optional in the
sense that people can pick and choose as to its extent. It is not ethereal and temporary.
Let’s give a few simple examples. Children play in a street. Two of them get fed up and play
elsewhere. There is no legal element to this, although there may be a system of sorts. The activity
and the decision to cease it is entirely voluntary, it was essentially pleasurable and it was a
temporary event.
A family sits down to breakfast one morning. This is a demonstration of community, perhaps even
tribalism, but there is no legal system governing the process. Breakfast is a primary need, one could
say, but it is essentially pleasurable, voluntary and transient.
John goes to work in a factory. He performs his duties for eight hours a day, five days a week. He
may or may not find it a pleasurable activity, but it is essentially voluntary in that he is not forced to
do that job. It is also temporary in the sense that at the end of every day he leaves it behind. His
work is governed by safety considerations, but it is not a legal system as such.
So activities, obligations, social interactions and business commitments, although they may take
place within a legal framework, are not themselves, alone, examples of legal systems. As part of
establishing what we mean by legal systems, let’s travel the globe.
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3. Examples of legal systems around the world

This is not a comparative text, but before we examine the legal system of England and Wales, and
exactly what it is, it is useful to consider other such structures around the world. From this exercise
we can compile a template of characteristics that accrue to a typical jurisdiction. There are many
ways of defining and explaining a legal system. One approach is to break the construct into three
essential components. First, there is the constitution of the country in question. Second, we can
consider the contributing cultural and historical factors to that constitutionality. Third, there are the
unofficial and often popular elements which influence that society’s conventions, customs and
principles.
Let’s start with India. This is the most populous democracy on the planet and thus a good starting
point.
• A question and answer document by Ashish Bhan and Mohit Rohatgi entitled Legal Systems
in India: Overview (Practical Law – Thomson Reuters, with the law stated as at 1 January
2020) is helpful here. The constitution dates from 1950 and comprises over 450 articles and
12 schedules. It has a parliamentary tradition with strong federal instincts to ensure unity
within the numerous states.
• Its contributing cultural and historical factors include influences from the British Empire,
trade links with countries as far flung as Australia, the varied cultures of its 29 states and
seven union territories, the mutiny – or maybe freedom struggle – against British rule of
1857–1858, the various religions of the nation, and the process of partition from what
became Pakistan in 1947.
• The unofficial and popular elements of the legal system would be represented by the
geographical remoteness of its far-flung areas, the significance of its railway system, its
street and urban panoramas, its agricultural diversity, and of course cricket.
What about China?
• The China Legal Information Centre website states the country’s current constitution
was promulgated by the National People’s Congress in 1982. It has been amended
several times since.
• As you would imagine for such a noble and enduring culture, its cultural and historical
antecedents are many and varied. These include the events of its various dynasties and
kingdoms going back 2,000 years or so, religions such as Buddhism, the more recent
influence of Chairman Mao and the Long March, its border ties with other powers such
as India, the contribution of its various regions, its new and uneasy relationship with
Hong Kong since that territory reverted to Chinese sovereignty from Britain in 1997, and
the role of its ancient philosophy and literature. Confucian thought would be an example
of Chinese philosophy, and the 14th-century novel The Water Margin, with its story of
banditry and themes of abuse of power by officials, an example of its stimulating
literature.
• Unofficial and popular influences on the development of its legal system would include
modern architecture and technology, particularly in terms of the internet and
commerce; the somewhat uncomfortable relationship between city and countryside;
and the popular thirst for educational improvement.
• Clearly the Communist Party, and its controlling elite, is also a key continuing driver of
the legal system. We should therefore note that a fully functioning system of law does
not necessarily guarantee a pluralistic democracy, however desirable that would be.
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The United States of America (USA), popularly referred to as just the United States (US), has a legal
system often considered approximate to, and derivative of, that in England and Wales.
• The US constitution was formulated in 1787 by a select body of opinion formers and endures
today with 27 amendments. This is therefore the pillar of its legal system.
• Its contributory cultural and historic elements include the governance and presence of
France and Spain in the growth years of the current nation state, the opening up of the
West, the role of its indigenous peoples, the institution of slavery, the right to bear arms, its
growth as a global trading power, its role as international policeman, a ‘frenemy’ type
relationship with the United Mexican States, the many labour riots of the late 19th and early
20th centuries, its tolerance of multiple religions and ethnicities, and the development of its
cities.
• Unofficial and popular elements contributing to the legal system would include the country’s
intense focus on frontier individualism, its adherence to immigrant traditions and culture, its
fondness for elections (including sometimes of judges, something unheard of in England and
Wales), the national love of baseball and other sports, the link between popular media and
consumerism (walk-in fridge, anyone?) and even the national tendency to measure
distances not in miles but time taken in an automobile – an ever-present reminder that cars
are the royalty of travel in that vast continent.
• All in all, this is a truly diverse collection of influences.
a. Conclusion on components of a typical legal system

We can therefore conclude that some common elements for a legal system, based on this superficial
survey, would be as follows:
• the existence of a constitution;

• a relationship between central and local government;
• the leadership of a dominant body of people who control the levers of power, and who set
the agenda for the operation of the system;
• the influence of geography, military events, and neighbouring states;
• invariably the impact of religion;
• some element of the popular will, involving the influence and expectations of the ordinary
population, and often popular unrest;
• grassroots activities, such as leisure pursuits, trade and travel; and
• the growth of technology.
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Figure 1 Three aspects of a typical legal system
Let’s consider now the legal system of England and Wales.
4. The rule of law and its place in our legal system

Lord Bingham in his seminal work The Rule of Law (Penguin paperback, 2011) said:
all persons and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly and prospectively promulgated and publicly
administered in the courts.
This is a definitive modern definition of the rule of law. It means every person, whether born in a
cardboard box or a country mansion, should be governed by, and benefit from, the laws of the land.
Further, those laws should be clearly stated, understood and administered.
Lord Bingham went on to outline a number of principles which he believed to be essential

components of this concept. By way of paraphrasing his excellent thoughts, some of these
requirements include:
• the law must be clear and predictable;

• the exercise of discretion should be subordinate to the exercise of law;
• we should all be equal before the law;
• the state should provide an essential safety net for the settlement of matters which private
parties and individuals were unable to resolve; and
• the state should adhere to its international as well as national obligations.
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a. A case illustrating the application of the rule of law

Any number of court cases could illustrate the operation of these basic principles. Let’s take one as
an example. Imagine you are a foreign national who comes to work in the UK. You are employed in
an embassy of an overseas state. You then think you are treated badly, alleging discrimination,
harassment, unpaid wages and unfair dismissal. Should you be allowed to progress a case in an
Employment Tribunal (a specialist court dealing with dismissal and related claims by employees)?
These were the outline facts in Benkharbouche and Janah v Secretary of State for Foreign and
Commonwealth Affairs [2017] UKSC 62. The two employees were Moroccan nationals working
at the Sudanese and Libyan embassies in London respectively. They alleged various
employment-related injustices. The embassies argued, amongst other matters, they had
immunity from prosecution by virtue of their status as emanations of foreign governments.
The UK Government’s involvement in the case stemmed from its interest in the state immunity
principle.
The Supreme Court decided the claims against the embassies should be allowed to progress.
The court acknowledged the concept of state immunity but ruled it should not apply to these
claims. It concluded the provisions of the Human Rights Act 1998, enacting the European
Convention on Human Rights 1950 (ECHR), and the European Union (EU) Charter of
Fundamental Rights 2000 should take precedence.
This case incorporates a number of the elements inherent in the rule of law. It prioritises law over
discretion, placing considerable weight on the interplay of the various pieces of legislation relevant
to the dispute. One of its conclusions was the need for equality before the law, placing the interests
of the two employees on an equal footing with the entitlements of the embassies and, indeed, the
UK Government. The case demonstrated the need for the judiciary to step in when individuals were
unable to resolve their differences. And it indicated that the legal system takes an interest in the
affairs of non-nationals, thereby emphasising its international outlook.
b. Some thoughts on the rule of law

The rule of law in the legal system of England and Wales is integral to the effective governance of
the UK. It provides certainty for both nationals and foreigners, thus underpinning the UK’s status as
an international centre for democratic principles, trade and justice. It purports to treat people
equally, whether you are rich or poor, or part of the ‘establishment’ or not. It proceeds by way of
reference to rules, precedent and law. Any number of countries have legal systems. How effective
those systems are, however, depends on the existence and application of the rule of law. Not every
jurisdiction is lucky enough to have a rule of law as effectively developed as that of the UK.
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Figure 2 Some components of the rule of law
5. International Law
This leads us to the topic of international law. It is not the aim of this book to deal with this
interesting area, but a brief reference is helpful in establishing the context of the UK in the wider
world. The UK, and hence the jurisdiction of England and Wales, takes note of and is subject to
international law principles. A glance at Malcolm Evans (ed), International Law, 5th edn (Oxford
University Press, 2018), for instance, indicates the vastness of this subject. Hundreds of international
instruments and other documents are listed there.
The UK subscribes to a considerable number of treaties and conventions. Equally there are others it
declines to recognise. The important points to note for our purposes are:
• the UK takes pride in its position in the world, and its legal system reflects that;
• international law should be considered an adjunct to the legal system of England and Wales,
rather than something superior;
• international agreements often promise more than they deliver. One thinks of the League of
Nations, formed in 1920, which lamentably failed to maintain peace in Europe in 1939–
1945; and more recently the Kyoto Protocol 1997 on climate issues, which has struggled to
gain traction in environmental matters; and
• the rule of law must remain paramount, regardless of the international perspective.
Sometimes the UK courts find themselves in the position of reaffirming key legal principles in
the face of tension with other states.
6. 1066 and all that

The current legal system is a product of much strained compromise. When William the Conqueror
arrived at Pevensey in 1066 he brought with him more than bloodshed and the customs of his native
land. Having defeated, and killed, Harold at Hastings he introduced presumptions that quickly found
their way into a system of rule. First he re-allocated resources, something that most obviously
manifested itself in the distribution of land grants to his supporters. So from an early stage in the
legal history of the nation the primacy of ownership of land was firmly established.
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Next, William and his Norman successors set about legitimising the power they wielded, and that
came through a system of control, which grew in sophistication over time. That system has little
resemblance to the institutions and practices that exist today. But they do provide an insight into
what we mean by a legal system.
• There were rules and customs.

• There was chain of command, which was essentially hierarchical in nature. Participants
submitted to a jurisdiction – here, usually, the King, or his officials, or those representing his
inner circle.
• Records of decisions were sometimes kept and in time these would be referred to as
reports.
• The process also orientated itself around not just people and rules but also time and place.
Time became apparent through the regularity and timetabling of hearings, and place
expressed itself through the venues – sometimes imposing and impressive ones – where
decisions were made.
Throughout this structure those at lower levels of society frequently bridled at abuses of power.
That was as much the case for nobility who perceived themselves to be excluded from the fruits of
economic success as it was for, in time, the peasantry and the emerging middle classes. The system
of rule and society imposed by the ruling elite in the early centuries after William’s invasion laid the
foundations for today’s legal system.
7. The Magna Carta 1215

King John and his nobility, who were in dispute, built upon those foundations in an agreement called
the Magna Carta reached at Runnymede, Surrey, in 1215. Pretty much immediately after the signing
of the document its signatories lost interest in both the letter and the spirit of the agreement. But a
number of its provisions, designed at the time to regulate relations between king and nobility, retain
their significance. Society today would frown on various clauses of this document, which have
prejudicial elements to them, but other parts of the Magna Carta endure in one form or another
today.
At clause 12 there is a loose reference to the concept of taxation involving consent. Clause 13 doffs
its hat to the commercial primacy of the City of London – an insight into the perennial role of
commerce, and wealth, in developing the law. Clause 17 mentions ‘law suits’ being held in a fixed
place. This combines with references to assizes, in other words travelling courts, and inquests, ie
investigations into deaths. Both these forums exist today, albeit in a modified form (and neither are
perfect).
Perhaps the most significant parts of the document, as we look back with the benefit of hindsight,
are clauses 38, 39 and 40. Clause 38 states that no official shall put a defendant on trial on the basis
of an unsupported self-incriminatory statement alone. This can plausibly lay claim to the sentiment
that it is for officialdom, not the defendant, to make the running when presenting a prosecution –
and that the burden of proof in a criminal matter lies with the prosecutor.
Clause 39 states that there shall be punishment only within the law of the land. Clause 40 says that
justice shall not be sold, delayed or denied. These last two provisions represent concepts particularly
dear to modern democracies – namely, that everyone is equal before the law, legal decisions should
be made on the basis of consistency rather than whim, and justice should be conveyed swiftly,
without heed to the highest bidder.
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Following the Magna Carta the legal system in our country adopted in embryo important concepts
which are still pertinent. These can be summed up as follows:
• the involvement of the monarch and other elite elements in society;

• the acceptance, sometimes gradually, often in the face of conflict, of the rule of law;
• the importance of commercial interests such as those represented by the City of London;
• the existence of courts and their officials; and
• the presence of simmering, and frequently overt, dissatisfaction amongst key elements of
the population, in this instance the barons and higher nobility. As we shall see, social unrest
among those lower down the socio-economic ladder was also significant in the sprouting of
the legal system we enjoy today.
8. Legislation – the new normal

As the centuries rolled by, the forces shaping legal society adopted a more assertive form. In
particular Parliament grew in importance. Not only did it represent the will of ruling society, working
in an occasionally uncomfortable partnership with the monarch, but it also started to affix its name
to laws relating to governance.
By way of example, one of the earliest recorded Acts of Parliament is from 1497 and relates to the
taking of apprentices for wool-making in Norfolk. There is evidence of it being approved by the
Lords, with the then King Henry VII endorsing his monogram. At this stage in its development what
we now call the House of Commons had yet to establish itself as a legislative player. But even so this
Act show-pieced a basic template for the creation of legislation. Representatives of classes of society
would gather in Parliament, a discussion of sorts may or may not take place, laws would be drafted
and those laws would be approved by the monarch. This final step of course is what we now call
‘Royal Assent’, the customary endpiece to the creation of an Act, even in today’s modern world. The
idea that governments can simply create law with the stroke of a pen, without involving Parliament,
was swiftly discounted by our constitution. Government by decree is considered something entirely
un- British.
9. How the judiciary found its voice

Just as the nobility and the emerging classes had, in their own ways, wrestled influence from the grip
of the Crown, so the judiciary began its own, somewhat uncomfortable, journey towards self-
assertion. During the reign of Henry VIII the King brought upon himself the increased significance of
judicial pronouncements through his desire to divorce his first wife. He also needed to put some
distance between himself and the Catholic establishment in Rome.
The legal advice he received was not always welcome. An early casualty of tension between
monarch and the law was Sir Thomas More (1478– 1535), whose tenure as Chancellor (then a
lawyer’s post, not the Treasury role it is today) to Henry VIII ended in More’s execution. Even so,
with an admirable determination to separate the judicial process from that of executive authority,
law officers and the courts continued to make decisions which indicated that there were limits to
governmental power.
For instance, in 1607 Chief Justice Coke held in Prohibitions del Roy [1607] 12 Co Rep 64 that
there should be separation of powers between the state and the judiciary, opining that judges
not the monarch should be entrusted with decision- making in law cases.
This principle holds good today. Even those with only a rudimentary grasp of constitutional matters
understand that judges should be independent of Parliament and the executive. Some
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commentators believe this is more akin to a balance, rather than a strict separation as such, of
powers, and that is something to ponder as you read this book and progress your legal studies
generally.
Another, even more impressive, example of lawyerly muscle would be the Case of
Proclamations [1610] 12 Co Rep 74. There, Coke gave a ruling on new buildings in and
around London. In the case report the following statement appears:
The King has no prerogative but that which the law of the land allows him.
This is an admirably brief and indeed blunt statement on the limits of Crown power. It reinforced the
notion that decisions have to be made, and adhered to, according to rules rather than the caprice of
government functionaries.
More recent cases have continued to repeat this theme. During the Second World War, in
Liversidge v Anderson [1942] AC 206, the House of Lords (now the Supreme Court) was called
upon to consider the competing demands of the executive as against the individual. In a time
of crisis, to what extent can the Government restrict freedoms? The majority favoured the
Government but it is the dissenting judgment of Lord Atkin which is still held dear today:
In England, amidst the clash of arms, the laws are not silent. They may be changed, but
they speak the same language in war as in peace. It has always been one of the pillars of
freedom, one of the principles of liberty for which on recent authority we are now
fighting, that the judges are no respecters of persons, and stand between the subject
and any attempted encroachments on his liberty by the executive, alert to see that any
coercive action is justified in law.
What does this statement mean? Set against the backdrop of war, it was then, and remains today, a
striking reminder of our entitlement to personal freedom. Lord Atkin believed the executive, no
matter how powerful, and no matter what the circumstances, should expect its actions to be
checked by the judiciary when considering individual liberties.
A thoroughly modern twist on the need for the executive to recognise limits on its powers is
the case of Miller v Secretary of State for Exiting the European Union [2017] UKSC 5. There,
the Supreme Court held that there was an obligation on the Government to involve
Parliament before triggering the Article 50 process for leaving the EU. In its own way this was
the judiciary repeating the message from the Case of Proclamations: the executive cannot be
allowed to over- reach its powers. Whatever your views on the EU and the United Kingdom’s
departure from it, one of several conclusions to be drawn from this case is that there are
limits to the royal prerogative and executive power.
There is thus a consistent line of reasoning from ancient times to the present that the separation of
powers between the executive, the legislature and the judiciary – or the balancing act inherent in
their relationship – is a cardinal principle of the legal system.
10. Bill of Rights 1688

The Bill of Rights is considered an important part of the UK constitution and a foundation stone of
the legal system. It represents a further restriction on the power of the monarchy and as such
contributed to the development of Parliament and the courts. It sets the tone in its preamble by
stating it was an Act ‘declaring the rights and liberties of the subject’. It includes references to
freedom of speech, the existence of juries, the undesirability of cruel and unusual punishment, and
the requirement for free elections to Parliament. It also stated, crucially,
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That the pretended Power of Suspending of Laws or the Execution of Laws by Regall
Authority without Consent of Parlyament is illegall.
We have kept the old English spelling here, and what this last provision reinforces is the restriction
on the Crown’s powers to suspend or make laws without the involvement of Parliament.
The Bill of Rights therefore reinforces basic principles of the rule of law and continued the gradual
development of the legal system we recognise today, namely the involvement of the Crown (albeit
with increasingly limited powers), Parliament and the courts.
11. Extending the franchise

As time passed the legal system continued to develop its own distinct character. One of its early
hallmarks was a reluctant sharing of power between those in the ascendancy and those seeking
more influence. An early example of this would be the Magna Carta. The principle was then taken to
extremes in 1649 when King Charles I lost his head during the Civil War period.
By the 1800s a new constituency was agitating for influence: the growing alliance between property
owners and the merchant classes. At the same time industrialisation created seething social
discontent amongst the poor. At Peterloo near Manchester in 1819 a crowd formed to protest
against poverty and proclaim the benefits of voting reform. The authorities used force against those
present and 18 died.
This heavy- handed reaction could not quell the fervour of reform. Together, the growing
sophistication of the mercantile classes and the physical muscle of the underclasses prompted the
reform of representative democracy, in the form of the Representation of the People Acts of 1832,
1867 and 1884. These Acts extended the franchise to an increasing number of people (well, men;
votes for women came later). This meant a greater proportion of the population were electing
Members of Parliament and, by implication, contributing in some way to the creation of legislation
in Parliament.
Ever since these Acts the ability of the general public to influence the operation of Parliament, and
hence a key aspect of the legal system, has grown considerably. With the growth of the internet and
social media that trend has naturally accelerated in the last few decades. Not all popular
involvement in the parliamentary process is dignified: the House of Lords Select Committee on
Communications Report, ‘Regulating in a Digital World’ dated 9 March 2019, noted that one female
Labour MP received 8,121 abusive Twitter messages in 150 days in the run up to the 2017 General
Election.
12. The place of EU law within our legal system

The United Kingdom joined what is now the EU on 1 May 1973. That decision was confirmed with a
67% vote in favour through a referendum on 5 June 1975. The European Communities Act (ECA)
1972 anticipated the UK’s membership and provided for the UK’s institutions taking note of EU law.
For instance the ECA 1972, s 2(1) states as follows:
All such rights, powers, liabilities, obligations and restrictions from time to time created or
arising by or under the Treaties, and all such remedies and procedures from time to time
provided for by or under the Treaties, as in accordance with the Treaties are without further
enactment to be given legal effect or used in the United Kingdom shall be recognised and
available in law, and be enforced, allowed and followed accordingly …
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There is some tortured syntax in the middle of this section but the sentiment is clear. Obligations
created under EU laws, in particular the Treaty of Rome 1957 (hence the reference to ‘Treaties’),
shall be ‘given legal effect’ and ‘enforced’. Politicians and the courts took a while to embrace this
concept but what is now acknowledged as the supremacy of EU law, so long as the UK remains
within the EU, was considered in the House of Lords (now the Supreme Court) in 1990.
In R (Factortame Ltd) v Secretary of State for Transport [1990] 2 AC 85, Lord Bridge of
Harwich discussed the impact of the Treaty of Rome, as updated, on UK law, and the role of
the European Court of Justice (the ECJ) in deciding on the scope of European Community law.
Towards the end of his judgment Lord Bridge made the sensational statement that:
I do not think that it is open to your Lordships’ House to decide one way or the other
whether … Community law overrides English law and either empowers or obliges an
English court to make an interim order …. It follows, I think, that your Lordships are
obliged under … the Treaty to seek a preliminary ruling from the ECJ.
In other words, the highest court in the land was unable to confirm it could rule on a UK provision
which involved EU law. On the contrary, it considered itself obliged to refer the matter to the ECJ.
This judicial deference to EU legal structures caused some heartache. Large numbers of people, not
just lawyers, took the view the UK’s way of life was threatened by such an intrusion.
This no doubt contributed to the referendum decision of 2016 in which a slim majority voted to
‘leave’ the EU rather than ‘remain’. By that time EU law concepts had taken a considerable hold on
England and Wales and its sources of law, and one interesting aspect of future developments is the
extent to which EU influences will continue to hold sway over our own jurisdiction.
The flowchart below illustrates the development of the legal system. It is somewhat subjective,
picking and choosing its landmarks. We’ve called it ‘a sideways glance’, meaning it doesn’t pretend
to be comprehensive, or even balanced. Some of the commentary is a bit tongue in cheek. Hopefully
you get the idea.
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Figure 3 A sideways glance at the development of the legal system
13. Why England and Wales (but not Scotland)?

You might be wondering why there is a combined legal jurisdiction for England and Wales but not for
Scotland or Northern Ireland. We can leave Northern Ireland to its own particular history. But what
about Scotland? After all, the Stuart King James I reigned over both his own country and England
from 1603. So how come the legal systems are procedurally distinct?
The answer lies principally in history. There has always been compelling neighbourhood between
England and the principality of Wales. In strategic, tactical and administrative terms England in the
1400s and 1500s saw Wales as pleasingly subordinate. Geography also played its part: the proximity
of mercantile centres at Gloucester, Tewkesbury, Worcester and Chester to the Welsh borders
meant the two countries had frequent interactions in trade, cultural and commercial terms.
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The reigns of Henry VII (1485–1509) and his son Henry VIII (1509–1547) were significant in that
those kings had a historical and familial attachment to Wales, symbolised by the landing of Henry VII
at Pembroke prior to his defeat of Richard III at Bosworth Field. Naturally the Welsh were not always
compliant with the concept of greater unity, but legal juncture was set through the Acts of Union
1536 and 1543. These established administrative and legal institutions which in turn led to enduring
links between the two countries.
Scotland by contrast sent King James and his successors to England in 1603 without wishing to
compromise its own customs, which it guarded with considerable success. It then waited until 1707
for its own Act of Union with England. By that stage Scotland was comfortable in its own legal
culture. The English establishment was sufficiently sage to allow the distinctiveness to remain.
This explains why we talk of the jurisdiction of England and Wales rather than one which includes
Scotland or, for that matter, Northern Ireland.
14. Differences between civil and criminal law

There are many different areas of law, and at this introductory stage of learning about legal systems
it is a good idea to be clear about one stark distinction: that between civil and criminal law.
Curiously, what you may have thought as being something very obvious can in fact be somewhat
opaque. Take these examples:
• Albert rushes into Brian and knocks him over, injuring Brian’s shoulder. Albert is accused of
assault occasioning actual bodily harm under the Offences Against the Person Act 1861.
• Charles rushes into Donald and knocks him over, injuring Donald. Charles has committed no
offence, and indeed is congratulated by those around him.
Why the difference in approach to these two apparently similar events? The context is all important.
Here, the distinction is one of consent. Assume Brian is walking down the street and did not agree to
being attacked. Contrast that with Donald – assume he was playing rugby, a sport where violence is
effectively legalised. Charles no doubt did not intend to injure Donald but either way there would be
no suggestion Charles has done anything wrong. Albert, however, would face criminal sanctions.
Here is another example.
• Edward walks onto Frank’s land without permission. He has committed a civil wrong called
trespass, for which there may be only a nominal result in something called ‘damages’
(compensation) in a limited sum;
• Further down the road Gary walks onto land owned by the Ministry of Defence without
permission. Gary is charged with a criminal offence under the Serious Organised Crime and
Police Act 2005 and could be in deep water, receiving a stiff fi ne or imprisonment in jail or
both.
The distinction here stems from the activities of the armed forces. Frank’s land needs no
security. But a military base, if that is what it was, needs close protection. This explains why
Edward’s act is not a crime but Gary’s is.
Civil law involves agreements and mainly private resolutions. Criminal law involves punishment.
Here is a brief and somewhat global list of the differences between the two areas.
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• Civil law deals with contracts, disputes and differences where the outcome is measured
in remedies or the payment of monies. In the event of the courts having to make a
decision, a matter must be proved on the balance of probabilities.
• Criminal law imposes restrictions and obligations on the population, where the outcome
is measured in punishment for transgressions, with the public taking an interest in both
the offence and the punishment. The ultimate penalty is the loss of one’s freedom
through imprisonment.
Criminal matters must be proved beyond reasonable doubt, and the ‘golden thread’ of justice
as stated in the case of Woolmington v DPP [1935] AC 462 is that the accused is innocent
until proven guilty.
a. An early example of a criminal case

To illustrate the operation of the criminal law within the legal system, let’s take an early example.
Here is one of the first reported cases from London’s Central Criminal Court, the Old Bailey. You can
find more such cases at oldbaileyonline.org. We have kept the original language for colour.
This case involved the theft of a mirror from a property owner. The thief pretended at one
stage to be a member of the public pursuing the perpetrator, and as you can see the ruse
was ineffective.
Theft Grand Larceny 29 April 1674
Also there was another Tryed for stealing of a Looking- Glass from one Oliver Smith.
The manner was thus, there did a great Looking- Glass stand in the window of the
said Mr. Smith, valued at nineteen shillings, and he one Evening hearing a crackling
of the Glass of the Window, went to look to see what the matter was, but could see
no person. Presently after going again, he found the Glass gon, and the Thief running
away, who immediately following him, and crying stop Thief, he threw down the
Glass, and in making hast away dropt of his Hat, crying himself, stop Thief, but being
most suspected himself, he was taken and his Hat carried to him, which he owned.
And Committed to Newgate, and from thence to Justice- Hall, where his Indictment
being read, he pleaded not Guilty, but the Evidence coming against him, he was
found guilty by the Jury and had Judgement to be hanged, being burnt in the hand
before.
Here, the defendant stole a mirror. The owner chased the thief who was eventually detained.
Did you detect the punishment given to the accused? He actually received two: being
branded, or burnt, in the hand, and then being hanged from the neck. Today the state cannot
sentence someone to death, incidentally.
Note the role of evidence in a court case illustrated here. The defendant dropped his hat,
which linked him to the scene of the crime.
This vignette thus offers an insight into key ingredients of the criminal law process, and these remain
integral to prosecutions today. They can be summed up as follows:
• there must be an action which is forbidden by society, usually through a statute or other
law. We say ‘usually’, because sometimes (although rarely these days) there are customs
which are influential;
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• there will be a victim (occasionally you hear of a ‘victimless crime’, but judges don’t
recognise this slogan);
• the importance of evidence, such as items or possessions, and also the personal testimony
of both the victim and the accused;
• the requirement of proof;
• a finding of guilt; and
• some form of punitive resolution, which most typically involves unwelcome consequences
for the guilty, and often an element of retribution to give satisfaction to the victim and
society.
Criminal procedure operates as a microcosm of the rule of law, and reflects the requirement of the
legal system to embrace transparent standards. The operation of the criminal law is a subject that
may be developed in your other studies.
15. The role of the police

To the extent the police are crucial in arresting suspects, bringing them before the courts, and
facilitating the withdrawal of liberties, they are an essential component of the legal system.
Policing in the UK is by consent. The police operate with the agreement and support of the general
population. Although they wear a uniform, they are ordinary citizens in the same way as you or me.
Policing in London, which is generally considered the brainchild of Sir Robert Peel (1788– 1850), was
given official form through the Metropolitan Police Act 1829. It is subject to the jurisdiction of
central government and the Home Office. Outside London, police activities are controlled by local
authorities.
It is an important principle that police actions should remain within the law. If constables act outside
the law, there are both civil and criminal penalties. There is a host of legislation governing the
behaviour of the police, some notable instances of which include the Police and Criminal Evidence
Act 1984, the Criminal Justice and Public Order Act 1994, and the Policing and Crime Act 2017.
In Mohidin v Commissioner of The Police of The Metropolis [2015] EWHC 2740 (QB) the court
reviewed an interaction between police and youths in June 2007 on London’s Edgware Road.
Officers stopped, arrested, handcuff ed and removed to a police station various individuals.
The case involved allegations of assault, racial aggravation and gross misconduct.
This incident impacted on many parties:
• the complainants made claims, among others, for false imprisonment and assault;
• police officers were arrested and tried for misfeasance in public office;
• medical evidence was called to assess the impact of events on the health of
individuals involved;
• there were investigations by the Independent Police Complaints Commission (IPCC),
now the Independent Office for Police Conduct; and
• the innocent parties received damages.
The conclusions we draw from cases such as this is that the police must act within the law, they are
as equal as the rest of us before that law, and courts are assiduous in providing remedies in the face
of wrongful acts by the police. This is a powerful reminder of the rule of law within the legal system
of England and Wales.
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16. The British Broadcasting Corporation (BBC)

Not everyone would agree a broadcaster should feature in a book on legal systems. The BBC is,
however, unique. It began life in its current form by way of Royal Charter in 1927. The Charter is
periodically subject to renewal. The BBC remains today admired for its journalistic prowess, its place
within the national identity, and its ability to hold the Government to account through media
scrutiny. A licence fee payable by households throughout the UK provides finance for it. It is thus (at
the moment) publicly funded but not through conventional taxation, and this lack of direct fiscal
control by the Government means it is able to maintain independence of a sort from Westminster
politicians.
One of the recitals to the original Royal Charter states as follows:
Whereas In view of the widespread interest which is thereby shown To be taken by Our
People in the Broadcasting Service and of the great value of the Service as a means of
education and entertainment, We deem it desirable that the Service should be developed and
exploited to the best advantage and in the national interest.
The last two words are significant. The concept of broadcasting in the national interest has
developed into a principle of scrutiny of not just the executive but also Parliament and the courts.
One could say the BBC therefore acts as an important additional check and balance within the legal
system. Other media bodies also do this, but none with the reach, funding, influence and power of
the BBC.
The Beeb, or Auntie, as it is sometimes patronisingly called, has its critics and is no longer held in the
universal affection that accompanied it during, for instance, the Second World War. But it remains
an important representative of popular culture, plays its part in scrutinising officialdom, abides by
strong principles and rules – for instance through its editorial guidelines – and maintains an
international outlook. As such it pays close heed to certain aspects of Lord Bingham’s analysis of the
rule of law.
Like the courts, the BBC also has a duty to be impartial. This reinforces its role within the UK’s
bicameral and judicially influenced democracy.
Its impartiality, as stated in the First Public Purpose of Article 20 of its current Charter, was
reviewed in the somewhat oddball, and one off, case of Keighley v BBC [2019] EWHC 3331
(Admin). There, the High Court stated that:
The BBC should provide duly accurate and impartial news, current affairs and factual
programming to build people’s understanding of all parts of the United Kingdom and
of the wider world … so that all audiences can engage fully with major local,
regional, national, United Kingdom and global issues and participate in the
democratic process, at all levels, as active and informed citizens.
The court then added:
it is clear that the BBC has adopted performance measures to assess its performance
in promoting its First Public Purpose (ie impartiality), and that there is no proper
basis for the contention that the BBC has acted irrationally or otherwise unlawfully in
adopting the framework that it has.
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You should not get the idea that judicial review of the BBC is a regular event. This case does,
however, confirm the view of the courts that the BBC is essentially an independent body, a
perspective almost certainly echoed by the vast majority of the UK population.
The BBC has a number of attributes that reinforce its importance. It:
• has a commitment to impartial broadcasting;

• regularly reports events in Parliament; and
• through its news reporting and current affairs programmes, holds to account both the
Government and Her Majesty’s Official Opposition.
As such it plays an important role in scrutinising the acts of officialdom, and therefore playing its part
in the fine-tuning of our legal system and its constitution.
17. The UK Constitution

These points beg the question: what is the UK constitution? The answer to this is more properly
located in a book on constitutional and administrative law, but a simple response can be provided
here. The constitution guides the interplay between the various elements of society. The monarchy
has its role. So do you and I, in our own simple way: by voting, complying with laws, paying taxes,
appearing before the courts when required and so on.
The constitution is uncodified in that it is located across different sources, only some of which are
written. So we start with declarations such as the Magna Carta, progress through the Acts of
Settlement for Wales and Scotland, include the Bill of Rights 1688, and refer to any number of
compromises between the Crown, nobility, Parliament and the people.
The levers of constitutionality are then operated through a combination of the monarch, Parliament
and the courts. Often constitutional steps involve not just the written word but also precedent,
custom, prerogative and convention. To this we can add the occasional roles of the Church of
England and the Armed Forces, who would consider themselves as friends to the constitutional
process. This is in both a broader societal manner and a narrower legalistic form. In broad terms
both these institutions have strong links historically to the Crown and the landed classes. In a narrow
sense they have their own courts where decisions are made, which occasionally still create
jurisprudence of benefit to society as a whole.
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Figure 4 Overview of influences on the constitution and legal system
18. Summary
This chapter has travelled from the days of William the Conqueror to the era of the internet. It has
discussed the nature of the legal system of England and Wales. It has also touched on the sources of
law inherent in that system.
The key characteristics of the legal system of the jurisdiction can be summed up as follows:
• the involvement, actual or symbolic, of the monarch;

• the election and/or involvement of individuals in the two Houses of Parliament;
• the complicity, support and/or involvement of society in the law-making process, often as a
result of protest or violence, in order to assert their entitlements;
• the creation of legislation by the executive and the legislature;
• the continuing scrutiny of legislation as part of the process of resolving disputes through the
courts;
• the insistence by lawyers and judges on their independence;
• public support for the separation, or balance, of powers as between the executive, the
legislature and the judiciary;
• the continuing influence of other organisations within society, such as the media and the
police; and
• last but not least, an adherence to the rule of law.
The sources of law for our jurisdiction include the following, and you can see that this is a
combination of the general and the specific:
• parliamentary legislation; case law formulated by judges when making decisions in court;
• external agencies such as the EU;
• the gradual growth of a fully functioning, pluralistic and participative democracy; and
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• the ability of the governing elites – whether that be monarchs, nobility or the mercantile
classes – throughout the centuries to share power as an alternative to having their privileges
removed by force
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Chapter 2: Sources of Law of England and Wales

1. Introduction
Few of us would think a storyteller from the late Middle Ages could be a source of law in the 21st
century. But Geoffrey Chaucer (1340s–1400) in the Man of Law’s Tale refers to an aspect of court
procedure current today. The Tale involves a trial of a woman accused of murdering another.
A knight is called to give evidence and the Tale states:
Now hastily do fetch a book, and if this knight shall swear how she slew this woman, yet will
we advise ourselves whom that we wish to be our judges. A Briton book written in
evangelical terms was fetched and on this book he swore anon she guilty was …
Middle English Text from Larry D Benson/Houghton Miflin.
This version of paragraphs 662–668 translated by Frederick Price.
The reference to ‘evangelical’ means the Gospels. So here we have an instance of a witness swearing
an oath on a religious book prior to giving evidence in front of a judge. Today, witnesses at trial are
required to swear an oath, or provide an affirmation as to the truth of their story, or to give a
solemn promise. In the Man of Law’s Tale the knight apparently lied and was struck dead by a divine
hand. Chaucer thus reinforces the correctness of honesty in court, with a suitable punishment for
perjury, which is the legal name for lying in front of a judge. The sanction today is not so terminal, of
course, but there are still consequences for misleading a court.
You can therefore see that modern law can derive from ancient roots. But it is not all about old
‘stuff’. It is constantly self-generating, for instance a statute receiving Royal Assent last week, or a
judgment given in court yesterday.
2. Scope of this chapter

This chapter will explore the many different sources of law for the legal system of England and
Wales. We have mentioned some in our first chapter, and we can expand on the topic here. The two
most obvious sources are Acts of Parliament and decisions made by judges in court – ie case law.
There are also influences stemming from the operation of society over the centuries, through the
Crown, nobility, church and armed forces. We also have principles articulated by academics and
jurists from long ago. Then there are more modern sources, such as the EU, and perhaps the
internet. Apart from the last two, these have ancient origins. Yet they all remain important today.
Indeed, collectively they represent a patchwork, of constitutionality, the sum total of which is a
concordat of legal concepts essentially practical, popular, democratic and fair.
We will begin with Acts of Parliament.
3. Acts of Parliament
Acts of Parliament, or statutes, are everywhere. If we intentionally injured a wild bird the Wildlife
and Countryside Act 1981 would apply. When we drive cars we should note the Road Traffic Act
1988. If we injure someone in a brawl we might be punished under the Offences Against the Person
Act 1861.
Statutes are just one sort of legislation. Other types include secondary legislation such as the
statutory instrument (SI); byelaws for local councils and authorities; and more obscure edicts such as
Church of England Measures, the last of which we will return to in a moment. None of these match
Acts of Parliament for importance, scope and judicial relevance. Statutes:
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• are important because they convey in their purest form the will of the people, who have
elected the House of Commons to run Government on their behalf;
• have scope through their impact on society; and
• have judicial relevance because the courts take delight in interpreting them.
Statutes have been in existence since Norman times. The oldest statute still in force is the Statute of
Marlborough of 1267, relating to the judicial nature of damages. This set the trend: as the years
rolled by, it became established precedent that monarch and Parliament had control of the law-
making process. Over time the volume of legislation has increased significantly. In 1911, for instance,
Parliament passed 760 pages of legislation, according to statistics from the House of Commons
library. In 2006, 14,580 pages were added to the law books.
Acts of Parliament range across the widest possible landscape. For instance, you would probably
expect to receive a fine for dropping litter somewhere, but you can also be made to pay a fixed
penalty for putting rubbish out on the wrong day. The offence is envisaged by the Clean
Neighbourhoods and Environment Act 2005. You might also expect nuclear fission to be closely
regulated, but even so it is surprising that legislators anticipated you and me setting off a neutron
bomb. Just in case we do, the Nuclear Explosions (Prohibition and Inspections) Act 1998 makes it an
offence to cause a nuclear explosion.
a. Creation of Acts of Parliament

AV Dicey, a celebrated Victorian thinker and generally recognised as a constitutional guru, said
Parliament passes Acts, and those Acts can make, change or repeal law. We call this ‘sovereignty’ – a
vital aspect of Parliament, and a key part of our constitution. We will return to the various nuances
of this principle later. They can also be explored in more detail when you study constitutional and
administrative law. For now, let’s look at how legislation is made.
Parliament consists of the King, the House of Commons (which is democratically elected) and the
House of Lords (which is not). Both Houses are involved in the process of creating Acts of Parliament.
Before this occurs, the Government usually (but not always) publishes a Green Paper, which is a
consultation document on possible new law, and a White Paper, which incorporates the
Government’s firm proposals for the new law.
An Act will then begin its life as a document known as a Bill. Only when it has passed through a series
of stages, involving scrutiny and debate, will it eventually become an Act of Parliament. Debate is an
essential aspect of democracy, and indeed the word ‘Parliament’ comes from the Norman French
term meaning ‘talking shop’. Whether you believe this is a relevant definition for the two chambers
of Westminster today is a matter for you.
b. Acts of Parliament – the process

Here is a summary of how an Act is created, and the stages it goes through.
• First, the Bill is drafted and given a first reading in the House of Commons. Bills normally
commence in the Commons as an acknowledgement of that body’s elected status. The
Commons consists of 650 or so Members of Parliament (MPs), sent to Westminster by
voters in their constituencies. In the eyes of MPs, and possibly most constitutionalists, this
gives them the upper hand in the legislative process. The argument that the House of Lords
is equal to the Commons is certainly hard to sustain in today’s modern world.
• Next, there will be a second reading, where there is a detailed debate in the chamber of the
Commons on the various sections of the Bill. MPs are called to make contributions by the
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Speaker of the House, ie the person who controls debates and ensures fair play between the
Government and Her Majesty’s Official Opposition. A Government minister will be
responsible for the Bill, open the debate, listen to contributions by MPs, and oversee the
Bill’s passage through the various stages. The House will vote on parts of the Bill as
necessary.
• Next there will be committee scrutiny. This could be by way of a Committee of the Whole
House, or a dedicated committee with an interest in the underlying subject matter. Here
there is further detailed scrutiny on a clause by-clause-basis. This is detailed, grinding and
often gruelling work. It is not a spectator sport. But many reputations, and careers, are made
during this process.
• Then the Bill will return to the floor of the House for the Report Stage. Here, the House will
vote on any proposed amendments suggested in committee.
• Next, there will be the third and final reading of the Bill, representing the final version as
approved by the Commons.
• The focus then moves to the House of Lords, which follows the same various stages. The
Lords will scrutinise, vote on and agree the final version. The Lords is free to adopt the Bill as
provided by the Commons, or it can vote on amendments to it. At the Third Reading stage it
must return to the Commons for any amendments to be approved.
• NB: If the Lords rejects a Bill twice it is possible for the Commons to bypass the Lords by way
of the provisions of the Parliament Acts 1911 and 1949. This prevents what is seen as the
undemocratic Lords blocking the will of the democratically elected Commons.
• The final step in this, usually lengthy, process is provision of Royal Assent by the Crown. At
this stage the Bill becomes an Act, ie becomes law. We say ‘usually’ because ministers can, if
they pull the correct levers, expedite the process massively. Legislation touching on both
Brexit and coronavirus occupied considerably less time, for instance.
• Occasionally, opponents of a Bill attempt to delay it by talking at length, either in committee
or debate. This is called ‘filibustering’ – deliberately, but in a procedurally allowable manner,
wasting time through verbosity. Governments have the answer to this, however: the
imposition of a timetable, called a ‘guillotine’. As you can imagine, many MPs are wary of
curtailing the entitlement to a filibuster. It represents an important weapon of the
legislature, ie the Houses of Parliament in the ever-present tussle for power and influence
between it and the executive, ie the Government of the day.
• In the absence of provisions to the contrary, statutes apply to all the UK. A specific
statement should accompany Acts that do not apply to Wales, Scotland or Northern Ireland.
4. Case law
Case law is one of the main sources of English law today, in addition to Acts of Parliament and
secondary legislation.
5. Common law
Common law is the original and traditional mode of decision- making by judges. Historically, it
involved decisions on contracts and the payment of damages. It provided remedies for disputes
involving the letter of the law.
An early example of this is Pinnel’s Case [1602] 5 Co Rep 117, where it was held that ‘the gift
of a horse, hawk, or robe’ would be sufficient to allow one contract to replace another.
Over time, the exercise of the common law on its own proved somewhat inflexible and other
principles developed to make the delivery of justice overall more flexible and fair.
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6. Equitable principles
The desire for flexibility and fairness led to the creation of the court of Chancery and the use of
equity. The word ‘equity’ in the legal context means arriving at a resolution that is fair to all parties,
taking into account a mix of considerations such as the facts, the behaviour of those involved, and
the respective situations of the parties. The court of Chancery was presided over by the chief law
officers of the time, called Chancellors, and adopted the approach that certain disputes needed
resolution in a different manner.
Initially, there were few guidelines for the Chancellors to use, but as time passed, judges developed
a set of equitable principles or maxims. These were applied by the court of Chancery and are still
relevant today. Set out below are some examples:
(a) Equity looks on that as done which ought to be done. This means that equity will enforce the
intention of the parties, rather than allowing something to founder because of a failure to
conform to rigid procedure.
(b) He who comes to equity must come with clean hands: accordingly, an equitable remedy will
not be granted to a claimant who has not acted fairly.
(c) Delay defeats equity: as a consequence, a claimant cannot wait too long before making a
claim, as this may prejudice the other party.
(d) Equity will not suffer a wrong to be without a remedy. This means what it says: under
equitable principles, if a court decides there is a wrong, a solution beneficial to the injured
party should result.
Equity allows various useful remedies to the innocent party. Equitable remedies include the
following:
• injunctions, ie a requirement that something be done or not done;

• specific performance, ie the carrying out of an obligation, usually in relation to land;
• recission, in other words confirming that a contract no longer exists;
• rectification, ie correcting a wrong; and
• an account of profits, ie allowing an innocent party an appropriate share of a
wrongdoer’s gains.
You may explore these in detail elsewhere, but to gain a flavour of their nature we can expand on
specific performance. In somewhat simplistic terms, this compels the wrongdoer to complete
whatever it was they started but failed to fi nish. For instance, if you contract to purchase a
delightful cottage overlooking the sea, and the vendor refuses to complete the sale, you might use
specific performance to force the transaction to its conclusion. You should remember, however,
specific performance has limited application. You cannot use it, for instance, to force a builder to
finish constructing your house, or a lawyer to complete drafting that much promised contract, or the
gardener to clip your roses.
7. The combined concept

The Supreme Court of Judicature Acts of 1873 and 1875 created a single court structure and merged
the separate court systems of equity and the common law. For the fi rst time, court procedure as a
whole adopted a common approach rather than being left to individual courts.
As a consequence, all civil courts can now grant both common law and equitable remedies in the
same proceedings. For example, an injunction to stop continuing unlawful behaviour can be ordered
in addition to damages for loss.
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a. An example
Let’s illustrate the way in which equity and common law can combine to arrive at an appropriate
result. Let’s imagine that you are a jobbing builder, in other words something of a sole operative,
perhaps occasionally combining with someone else to work effectively on a construction project or
other contract. You do a splendid job of building a client’s home. The client refuses to pay. You suffer
financial stress as a result, and are at risk of going out of business as a consequence of cashflow
problems. The client knows you have financial issues and takes advantage of this by offering to pay a
proportion of the debt in full and final settlement. In desperation, you accept. You then seek to claim
the balance later.
These were the facts in D & C Builders Ltd v Rees [1966] 2 QB 617. Here, Lord Denning held
the client’s behaviour was somewhat dubious, and pronounced that there was no equitable
bar to the builder recovering the balance owed. The court did not state which equitable
maxim applied here, but one could speculate the client through her behaviour and attitude
had failed to show clean hands. This would be the second of the four points mentioned
above. Courts today often refer back to previously decided cases and the Rees case is no
exception, in that it was mentioned in an approving manner in the 2016 case of Stevensdrake
v Hunt [2016] EWHC 111 (Ch).
8. Civil law
Civil law is a code- based system derived from traditional Roman law concepts. Examples of
countries with codified constitutions include France and Germany. The jurisdiction of England and
Wales draws on few codified concepts, as common law and equitable notions have overtaken them
somewhat. The European tradition of civil law is, however, important to the culture of EU law and
hence lawyers here should be aware of them.
9. How these principles dovetail today

We have considered the development of English law, the place of Acts of Parliament, and the nature
of common law and equity. Their relationship to each other, and other sources of law, is summarised
in the Figure below.
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Figure 5 Parliament and the courts
10. Case law in action

There are examples every working day of case law being created. To take but one interesting case, in
the decision of Wednesbury [1948] 1 KB 223 the Court of Appeal gave impetus to a new area of law
in the field of judicial review. There, in declaring local authorities should act reasonably, the courts
placed limits on the way in which councils conduct themselves. As Lord Greene Master of the Rolls
(MR) stated:
The court is entitled to investigate the action of the local authority with a view to seeing
whether they have taken into account matters which they ought not to take into account, or,
conversely, have refused to take into account or neglected to take into account matters
which they ought to take into account.
This decision led to the growth of an entirely new branch of constitutional and administrative law.
From this point on, individuals and businesses could expect administrative decisions by public bodies
to be governed by due process. The Wednesbury ruling illustrates the flexibility inherent in a court
system that combines different attributes with an ability to stay relevant to the issues of the day.
In addition to Acts of Parliament and case law, the legal system also defers to other influences from
long ago. We will consider these now.
11. Traditional sources of law

Our core sources of law took shape long ago. By this, we mean before parliamentary democracy
took meaningful shape. We are being deliberately vague: cautiously, we are talking about the period
before 1600–1700.
a. The Crown
The key source of law for this period was the Crown. The monarchy dominated society. Monarchs
devised and passed laws, and in the 12th and 13th centuries the process involved little or no
collaboration with other branches of society. Creating law was essentially a despotic act. In
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subsequent centuries royalty took a marginally more consensual approach, as indicated by the
various proclamations issued by the Tudor dynasty. Paul L Hughes and James F Larkin in their three-
volume Tudor Royal Proclamations (Yale University Press, 1964 and 1969) mention a series of laws
reinforcing royal sovereignty. Some reflected the predominant religious thinking of the day. Others
met the needs of contemporary society by dealing with pressing economic and social issues: the
coinage, wool trade, wages, insurance rates and wine prices. Either way, they represent the singular
influence of the Crown. This is something that endures today, albeit in a different form, for instance
in the convention that the monarch must give Royal Assent to any Bill before it becomes an Act.
b. The nobility
The next, traditionally crucial, source of law was the nobility. They gained this role by flexing their
military muscle. As part of the feudal system they controlled apportionment of land, gathering of
taxes and dues, and raising of armies. They naturally expected their say in the formation of laws,
something realised through the Magna Carta 1215, and their increasingly formalised presence as
advisers within the royal household, and in bodies such as the Privy Council. These days the Privy
Council is somewhat honorific, but in the past it was the premier body advising and guiding the
Crown. Today, the nobility has a constitutional presence through the House of Lords, the second
chamber of Parliament, with a crucial role in the creation of legislation.
i. The House of Lords

The House of Lords is a favourite topic of the popular press, as it largely consists of individuals who
arrive there by virtue either of their birth or appointment by governments. It is an unelected
chamber, although some members, as we note below, do submit to a quasielectoral process.
Occasionally journalists lampoon members of the House for falling asleep during debates, or turning
up for five minutes purely to claim their daily allowance, and so on. Indeed it does appear somewhat
anachronistic within a democratic setting. Its supporters, however, would say it is an integral part of
our bi-cameral society, acting as a counterweight to the overt populism, and perhaps short termism,
of the House of Commons.
ii. Hereditary peers

For many years the peerage, through its hereditary members, dominated the House of Lords. But
their parliamentary role has diminished recently. The House of Lords Act (HLA) 1999 abolished the
automatic entitlement of all hereditary peers to sit in the Lords, leaving just 90 members at any one
time to co-exist with life peers. Any hereditary vacancies are filled through a by-election process
amongst the hereditaries themselves. There is therefore the curious process of ancient bloodlines
jockeying for position by way of electoral preference in a second chamber, which regularly receives
criticism for being undemocratic.
Those interested in the position – or it might just qualify as a ‘job’ – must declare themselves
available for election. The authorities keep a register of hereditary peers who wish to stand for
election under the obscure Standing Order 10. At the end of 2019 the list began with the Marquess
of Abergavenny. It proceeds in alphabetical order to the Earl of Yarborough. In the middle we have a
host of colourful and historic names such as the Duke of Buccleuch and Queensberry, Lord Cochrane
of Cults, the Earl of Iddesleigh, Viscount Runciman of Doxford and more. You should note hereditary
peers still have a role in local and national society, living busy lives up and down the country. But
their parliamentary profile is much lower. Such is the price of progress in a modern democratic
culture.
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iii. Life peers

The HLA 1999 also impacted on the role of life peers, who since the Life Peerage Act 1958 have
provided considerable numbers of the House of Lords. Traditionally they are a mix of eminent
achievers from all walks of life, MPs from the Commons who have retired or lost their seats, and
(controversially) sometimes donors to, and key supporters of, political parties. Usually, life peers
display considerable knowledge and wisdom in their main role of scrutinising and debating
legislation. Even so, the body politic decided there were too many peers overall, and the HLA 1999
reduced their number to approximately 660 at the time of writing. The Government of the day
refreshes the head count through regular appointments, most notably in the annual New Year’s
honours process. The convention is the Prime Minister makes recommendations to the monarch
who confirms the appointments.
c. Judges and Parliament

Constitutional changes have also altered the role of judges within the Westminster ‘bubble’. For
many years the House of Lords included top justices, known as the Law Lords, within their ranks.
They rubbed shoulders with the other characters inhabiting that House: blue-blooded hereditaries,
failed MPs, millionaire widget manufacturers, windy academics and the like, nodding sagely
throughout debates. Occasionally they spoke, especially when laws relating to, well, the law, came
up for discussion. But they generally kept a low profile, avoiding any suspicion of taking sides. They
had a parallel status to the Lords Spiritual, ie the archbishops and senior bishops of the Church of
England, who also had, and indeed today still do have, seats in the Lords.
Many traditionalists saw nothing wrong in this arrangement, relying on the fabled sense of British
fair play for these senior legal figures to act in an appropriate manner when present in the House.
The argument was they provided gravitas, common sense, perspective and so on that might have
been lacking in other members of the Lords. But their involvement was something of an anomaly.
How could judges sit in, and engage with, a body whose laws they were meant to interpret in court?
The whole arrangement seemed contrary to the balance of powers, whereby the judiciary held itself
above the hurly burly of Parliament.
Section 23 of the Constitutional Reform Act 2005 addressed this issue. It removed the top judges
from the House of Lords. Instead, the 2005 Act created a Supreme Court, and sited the Law Lords
there, on the western side of Parliament Square. The House of Lords now is a term, and body,
referring purely to the legislature. It is no longer permeated – or infected, depending on your view –
with a judicial presence. Our top judges, bearing in mind their geographical proximity to our law
makers, remain very much at the centre of the Westminster culture. But they now have a more
clearly defined role as interpreters of the law rather than participating, however peripherally, in its
legislative creation.
The 2005 Act also reformed the role of the Lord Chancellor, so that the post no longer exercises
judicial functions, and is more obviously a holder of political office within the Government as
Secretary of State for Justice. They, along with other Secretaries of State, attend Cabinet, which is
the inner circle of Government, for regular meetings chaired by the Prime Minister.
d. Religious influences
Religion also has an ancient role in the creation of law. This originally stemmed from papal decrees,
whereby popes provided centralised instructions to monarchs on various aspects of doctrine and
observance. The influence of the pope in terms of applicable law diminished considerably in England
when Henry VIII reformed the church during 1509–1547. But whether driven by popes or royal
families, religious observance resulted in a body of ecclesiastical, or canon, law that had a significant
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influence on early society. This is something made clear by RH Helmholz in his article ([1997] 75
Texas Law Review 1455–70), on Norman Doe, The Legal Framework of the Church of England: A
Critical Study in a Comparative Context (Oxford University Press, 1996). Church law embraces a
blend of divine concepts, doctrinal matters and practical control. The last is illustrated through edicts
on finance and property, a reminder that these two elements are routinely wrapped up with legal
principles. Other areas of early legislation covered marriage and the use of Latin in holy texts.
If you believe Church law is an outmoded relic, think again. The Church of England (CoE)’s governing
body, called the General Synod, passes laws on a regular basis. There are three sorts:
• Measures, which are the equivalent of Acts of Parliament;

• Canons, which are of more limited scope; and
• Subordinate legislation in the form of statutory instruments.
Church law impacts on our daily lives in relation to births, baptisms, weddings and, as you would
expect, deaths. As with more general Acts of Parliament, some of these are from long ago but still in
force. For instance, the Ecclesiastical Dilapidations Measure 1923 is still relevant to the finance of
dioceses, ie local administrative areas of the CoE. Moving to the modern day, s3 of the CoE
(Miscellaneous Provisions) Measure 2020 allows authorised lay workers to perform funerals in
places other than a church or churchyard. This sort of thing has an impact on a great number of us.
e. The military
We should also consider the role of armies and the use of armed force. Until the 1700s, society
implicitly accepted regime change through violence. William the Conqueror set the tone in 1066;
Cromwell confirmed the process during the English Civil War. The military establishment, through
the growth of armies and their generals, became a source of law through their ability to support and
sustain the victors. Essentially, legal influence stemmed from the point of a gun and the tip of a
sword. Perhaps inevitably from their position as power brokers, generals developed a commanding
presence within society and thus the legal system.
JV Capua, in ‘The Early History of Martial Law in England from the Fourteenth Century to the Petition
of Right’ (1977) 36(1) Cambridge Law Journal 152–73, discusses the significance of the military in our
history. In particular he mentions martial law, which is defined as ‘a summary form of criminal
justice, exercised under direct or delegated royal authority by the military or police forces of the
Crown, which is independent of the established processes of the common law courts …’. In other
words, it is a form of dictatorship, and the armed forces had a developed role in facilitating it at
various stages in our history.
Fortunately for society as a whole this hasn’t happened within our living memory. A form of it
occurred in Ireland early last century. The Civil Contingencies Act 2004 allows the exercise of
emergency powers in the interests of civil protection and welfare. So traces of this flirtation with
military rule exist today, and at times of national crisis there is often talk of using the army to ensure
the effective operation of society as a whole. It is clear the army has a key role in the history of
democracy, and hence the law, within British society.
In practical terms, military law remains relevant today, albeit within a narrow frame of reference.
The Armed Forces Act 2006, for instance, makes provision for the discipline of service personnel
through various means, including the court martial process, whereby wrongdoers can be reduced to
the ranks, discharged without honour and imprisoned. The Service Civilian Court has powers to try
the civilian relatives of those in the armed forces, and also civilian contractors. Section 359 of the
2006 Act allows for pardons for those executed for cowardice, throwing away arms, sleeping on duty
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or similar infringements during the First World War. All these measures remain of relevance and
comfort to the civilian population today.
The flowchart below illustrates some traditional sources of law and their interrelationship. Note we
start with the monarchy – you might think its role is largely honorific, but you simply can’t ignore it.
Everything seems to flow from, and indeed back to, it.
Figure 6 'Traditional' sources of law and their inter-relationships
These, then, are some institutional sources of law with continuing relevance today. We also need to
consider the role of legal academics, commentators, philosophers and those in related areas. We will
do that now.
12. Legal academics, commentators and philosophers

Lawyers have a long tradition of deferring to academic commentators. You could if you wish trace
the starting point for this practice to Alfred the Great and earlier, but we shall concentrate on trends
since the 16th century. We shall mention individuals, briefly explain their philosophy and confirm
their continuing signifiance.
a. Sir Edward Coke (1552– 1634)

Coke, pronounced ‘Cook’, was Chief Justice of the Common Pleas. He was influential in the late
1500s and early 1600s. He pronounced on matters such as habeas corpus and freedom of the
individual. The doctrine of habeas corpus, traceable to 1305, means literally ‘you shall have the
body’. It is the principle someone should only be arrested and imprisoned with lawful reason.
Consequently, an arrested person should be given their freedom unless there is justification for
them to be imprisoned.
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This judicial reasoning is crucial to the operation of a free society, and its tenets are applied up and
down the land today.
In Jalloh [2020] UKSC 4, the Supreme Court illustrated the principle. Ibrahima Jalloh was granted
asylum and then ordered to be deported following conviction for a criminal offence. He was
subject to a curfew at night in his home city of Sunderland between February 2014 and July 2016.
He was electronically monitored by way of tagging. Lady Hale on behalf of a unanimous majority
held the curfew to be unlawful, a deprivation of liberty, and false imprisonment. This is an
instance of policy colliding with law, and it is a current example of the principle that freedom
should only be withdrawn in accordance with the law.
b. John Locke (1632– 1704)

Locke was one of the leading philosophers of his day. As the Stanford Encyclopedia of Philosophy
suggests in Locke’s Political Philosophy (9 November 2005), he made a key contribution to the place
of property within the law. He applauds the accumulation of property, but not without restrictions.
He advocates taxation by consent of the majority. He discusses the role of labour in the economic
cycle, indicating that its value inevitably diminished when property values rose. Locke’s contribution
to our sources of law endures today. Whether you like it or not, the ownership of property is a
central part of British life, and much law stems from it. One thinks of landlord and tenant legislation,
laws relating to commercial property ownership and tax reliefs, initiatives concerning aff ordable
housing, and planning law generally.
c. Charles- Louis de Secondat, Baron de La Brede et de Montesquieu (1689– 1755)

Montesquieu, as we simplify him, pronounced on the separation of powers, believing it was
essential the executive, legislature and judiciary perform distinct functions, and that they should not
trespass on each other’s areas of operation. So, broadly, these bodies should have the following
roles:
• The executive should formulate policy and initiate legislation;

• The legislature should scrutinise laws and pass them; and
• The judiciary should interpret those laws.
Without this separation, Montesquieu stated, there can be no liberty. His views were embraced with
gusto in the USA when drafting their constitution, and have endured in this jurisdiction too.
The case of Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 provides
a good illustration of the impact of this principle. Here, the Supreme Court, in its role as
interpreter of laws, said the Government, in its policy role relating to departure from the EU,
was obliged to consult Parliament, in its legislative role, on the exit procedure from the EU.
d. Jeremy Bentham (1748– 1832)

For someone active as a jurist and political reformer so long ago, Bentham’s views have astonishing
relevance today. He is famous for the philosophy of utilitarianism, articulated in his 1776 pamphlet
‘A Fragment on Government’. Utilitarianism broadly means government has a duty to the
‘fundamental axiom’ that ‘it is the greatest happiness of the greatest number that is the measure of
right and wrong’. He realised that good rule depended on the support of the majority, a partnership
if you like between the governors and the governed.
He finessed this philosophy into a great number of areas. He opined on economic, political,
educational, legal and religious matters. In his writings he explored the nature of legislation, the
virtues of the rule of law, and the need for penal reform. He was an early advocate of principles of
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international law, and of what we would today call comparative law, ie the study of different
jurisdictions. He was sceptical as to religion’s place in effective governance – a further aspect of the
doctrine of separation of powers, in a way. He also found time to discuss judicial administration and
welfare reform. Bentham’s philosophy is a true cornerstone of the modern legal system.
You may think his writings have no place in the administration of today’s law. But let’s consider one
scenario involving the welfare state. Imagine you married someone in a foreign country. You arrived
in the UK and became absorbed into society. Your spouse died. Under welfare legislation certain
widows are entitled to a bereavement payment. Your application for such a payment is rejected by
the authorities. The reason? You were not a spouse in the proper meaning of the word because your
marriage was polygamous, ie your husband had another wife, something allowable in the
jurisdiction where you originally married, but illegal in the UK.
These are the facts of NA v Secretary of State for Work and Pensions [2019] 1 WLR 6321, a
tribunal case. Let’s consider some of the Benthamite issues that arise. First, government has
a duty to achieve the greatest happiness as a measure of right and wrong. Second, the
system of government should be administered properly, with the courts providing oversight.
Third, welfare principles have their place in good governance. Fourth, the courts should be
alert to comparative and international law principles. Fifth, the rule of law should be applied,
so that rules rather than discretion should be used in coming to a decision.
In the NA case, a widow claimed bereavement and related benefits under the Social Security
Contributions and Benefits Act 1992. The Secretary of State had refused the application on
the grounds that the relationship with the deceased was polygamous. A First Tier Tribunal
refused her appeal. The Upper Tribunal found she was indeed ‘married’ and as such qualified
for the payments. It allowed the widow’s appeal.
The culture of this decision illustrates the link between centuries old thinking and modern
jurisprudence. The Tribunal embraced the idea there should be the maximum happiness for the
population, within a simple administrative setting. This is shown at paragraph 77 of the judgment
where the judge states that: ‘Claimants necessarily apply for bereavement benefits at a difficult time
and the system needs to be straightforward and non- intrusive to administer so as to minimise
distress’. Note the implication that the Government needs to do good in order to provide happiness,
and that the administration of welfare should be as simple as practicably possible.
The Tribunal then discussed the different marriage ceremonies in the respective jurisdictions,
observing UK concepts were not necessarily superior. The judge went on to allude to Bentham’s
concept of partnership between Government and people, particularly in welfare matters, saying at
paragraph 81 ‘that furthermore, I suspect that most passengers on the upper deck of a Birmingham
bus, whether or not they are of Bangladeshi or Pakistani heritage, would regard the appellant as a
“lawful” (rather than a polygamous) widow’. The Tribunal here is paying considerable heed to the
will of the populace, and the requirement of Government to be alert to it. The Tribunal also provided
a forensic analysis of the relevant rules, basing its decision not on whim or discretion but the strict
application of the law. It did what courts up and down the country do every day – apply the rule of
law.
The judge concluded by expressing a more generic principle, namely the ability of the judiciary to
comment on executives failings. At paragraph 116 of the judgment the Tribunal expressed ‘concern
at the apparently glacial pace of the Secretary of State’s consideration’ of matters involving widow’s
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allowances in similar situations. The coda, therefore, of this judgment is a reminder of the
separation (or balance) of powers, and the importance of an independent judiciary.
We can therefore see Bentham’s views absorbed into today’s courts. Many cases illustrate this.
When next reading a court report, you should see what influences from past thinkers are detectable
today.
e. AV Dicey (1835– 1922)

Dicey was a renowned constitutional author from Victorian times who wrote the Introduction to the
Study of the Law of the Constitution in 1885. He says at chapter two of his work:
There is no law which Parliament cannot change, or (to put the same thing somewhat
differently), fundamental or so- called constitutional laws are under our constitution changed
by the same body and in the same manner as other laws, namely, by Parliament acting in its
ordinary legislative character.
This is a simple statement of parliamentary sovereignty – the idea that only Parliament can make
and change laws. Dicey is considered somewhat ‘alpha male’ today by some commentators, as since
the 1880s the constitution has subtly evolved beyond the bare bones of his analysis. But his central
thesis remains sound, and his views carry weight today.
By way of illustration, imagine you work for an organisation devoted to individual privacy. You are
sceptical at the operation of secret state organisations. You wish to challenge the legality of security
services such as the Government Communications Headquarters (GCHQ) engaging, without a
warrant, in computer network exploitation (CNE). To you and me this is computer hacking, albeit on
an official basis. You apply to a body called the Investigatory Powers Tribunal (IPT) for a ruling. You
then wish to judicially review the decision of the IPT. The matter is disputed all the way to the
Supreme Court.
These are the outline facts of R (on the application of Privacy International) v Investigatory
Powers Tribunal [2019] UKSC 22. In their ruling, their Lordships by a narrow majority ruled
the IPT’s action was subject to judicial review. In so doing they gave consideration to Dicey’s
view, and they were aware that they were in no position to thwart the will of Parliament.
Lord Sumption noted an earlier Supreme Court decision stating that parliamentary
sovereignty was ‘a fundamental principle of the UK constitution’. The Court had adopted,
and Lord Sumption repeated, Dicey’s view that such sovereignty comprised
the right to make or unmake any law whatever; and, further, that no person or body
is recognised by the law of England as having a right to override or set aside the
legislation of Parliament.
In this case the Court was concerned with the interpretation of a particular section of the Regulatory
and Investigatory Powers Act 2000 allowing CNE. It is, however, interesting that it saw the need to
quote, and embrace, Dicey’s long- established view. This decision is thus another reminder of the
currency of old concepts.
13. Reflections on jurists and academics

We have looked at some ancient commentators who remain important sources of law. There are
other people too who could be considered – Thomas Paine and his Rights of Man, Thomas Hobbes
and Leviathan, and more – the list is quite long. But the point of this chapter is to give a flavour of
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the influences on our society today, not a discussion of every contributing individual. You can find
out more through your own reading as your studies progress.
These thinkers as individuals are highly important to our legal culture. Collectively, they become
even more significant. Either directly or peripherally, they belong to the same culture – that of a
legal system paying homage to a combination of individual freedoms, parliamentary dominance,
property entitlements and lawful outcomes. Diagrammatically they could perhaps be linked as in the
Figure below. Note we’ve created a ‘sweet spot’ where they all meet, indicating the sum of their
collective parts is far greater than their individual contributions. Of course there are other thinkers
and philosophers too.
Figure 7 Academics and thinkers as source of law within the legal system
The shaded area indicates the ‘sweet spot’: when all four of these coalesce you have the essence of
English law. For example, imagine you fall on hard times and are provided with social housing.
A government official believes, without evidence or substantiation, you are dealing in drugs and
enters your home in breach of legislation and attempts to detain you.
A court ruling would embrace:
• property rights (Locke)

• the importance of legislation (Dicey)
• unlawful detention/habeas corpus (Coke)
• social entitlements (Bentham).
Two other subjects deserve mention: the EU, and the growth of modern technology in the shape of
the internet.
14. EU law
The United Kingdom voted by a slim majority to leave the EU in a referendum in June 2016.
Departure legislation has since passed through Parliament. Since the 1970s, when the UK joined
what was then the European Economic Community, EU law has gained a significant role within our
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jurisdiction. You can study EU law further when considering constitutional and administrative
matters elsewhere. For our purposes here, it is sufficient to note that:
• it is currently part of our legal system;

• it is a relevant source of law; and
• it will be fascinating to see how in the future it will impact on our lives, if at all, and in what
form.
15. The internet

You could have quite a debate as to whether the internet is merely a reflection of the law or a
source of it. We will let you ponder this distinction, and you will have the chance to explore the
internet’s impact on contract, tort, land law and business transactions elsewhere.
For the moment we should note the enormous influence the internet has over legal issues and
practice. One obvious area is in the field of social media, which is little short of a minefield for the
unwary. If you are wondering about the impact of it on the legal profession, the Law Society – the
body representing solicitors in England and Wales – issued a Practice Note on 5 December 2019 with
the following passage on client matters:
Even if you do not have a relationship with clients via social media, you should take account
of the fact that your presence on social media channels, like weblogs and micro-blogging
sites, may accidentally impact on your professional obligations towards your clients.
For example, if you comment on Twitter that you’re in a certain location at a certain time,
you may unintentionally disclose that you’re working with a client and breach the
requirement on confidentiality that ‘you must keep the affairs of clients confidential unless
disclosure is required or permitted by law or the client consents’.
This excerpt serves as a reality check for those of us who obsess about selfies or are compulsive
tweeters. It suggests you can’t just blithely publicise your fascinating train journey to Stevenage or
somewhere similar in case you tip off the world at large you are about to visit your biggest client.
You could be betraying a key confidence. The Practice Note also demonstrates the perils of using
social media as part of your law firm strategy.
These issues are of course magnified throughout society, and invariably find their way into the
courts, and as such have increasing significance in our legal system.
16. Summary
In this chapter we have pondered the following:
• the creation of Acts of Parliament. These days our legislators are keen creators of laws,
reflecting both their desire for votes, and society’s belief that difficult questions deserve a
solution in law;
• decisions of judges in the courts. This happens any time a court rules on a dispute. These
decisions have attracted a collection of terminology. You might see them described as case
law, or precedent, or common law. Whatever the exact description, the important thing to
know is that judicial rulings – or at least those that are reported (and, oddly, even some that
are not) - are exceptionally influential in the law today;
• custom and procedures that have evolved over time. We have mentioned the Royal Assent.
Another example might be a prime minister visiting the monarch to be invited to form a new
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Government. The idea of being invited is a fiction: backstage manoeuvring amongst

politicians will have cemented the decision before any royal involvement;
• foreign influences, treaties and other events – for instance, joining the EU, and following EU
laws and the decisions of the Court of Justice of the EU (the CJEU, or ECJ). We joined the EU
in the 1970s following the Treaty of Rome 1957. Leaving the EU means the significance of
decisions of the ECJ will change;
• early influences in society, such as the nobility and the armed forces;
• the significance of religion. When discussing this, you should remember that, many centuries
ago, the distinction between church and state did not exist, or at least manifested itself
differently to that experienced today;
• writings of legal philosophers, academics and jurists. The views of some of these remain
vitally important to the freedoms we enjoy today; and
• storytelling (and maybe even myth) from ancient times, such as Chaucer’s tales.
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Chapter 3 Development of Case Law

1. Introduction
What is the role of judges? One influential figure thought he had the answer. Judges should allow:
Flexibility of law … which always had to uphold the regime’s interests as a top priority, so
laws could not be allowed to restrain the leadership’s room to maneuver.
From an article by Robert Argenbright (2002) Russian Review 249
In other words, judges should be compliant, to allow the state and a country’s leadership to pursue
their policies unhindered. A judge’s top priority is to sustain a regime’s interests. These are the views
of Vladimir Ilyich Lenin (1870–1924), the famous Bolshevik and early leader of the Soviet state, and a
man not known for supporting democratic principles.
Francis Bacon (1561–1626), in his Essay of Judicature (1625), took a different approach. Bacon was a
leading jurist and Lord Chancellor during the Tudor and Stuart periods. He thought a judge’s main
job should be to tackle inequality:
The principal duty of a judge, is to suppress force and fraud … A judge ought to prepare his
way to a just sentence, as God useth to prepare his way, by raising valleys and taking down
hills: so when there appeareth on either side an high hand, violent prosecution, cunning
advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to
make inequality equal; that he may plant his judgment as upon an even ground.
We have kept the original language, so ‘useth’ means ‘uses’, and ‘appeareth’ means ‘appears’. Bacon
sees judges as champions against violence and falsehood. Their primary role, he says, is to discount
the prejudices of competing elements of society, with the aim of arriving at a just outcome. A judge
should not be swayed by over-eloquent speeches, powerful people or heavy-handed behaviour.
Judges can then plant their judgment ‘on an even ground’, ie make a decision that has firm
foundations, is essentially fair and will stand the test of time.
These two very different views have one point in common. They imply the central role of the judge
in making decisions in court. In the jurisdiction of England and Wales we call this case law. This is
something infinitely varied. Generally, court judgments are carefully reasoned, sensible and
consistent. But that is not always the case. Judges, like the rest of us, can make mistakes, or indulge
in misplaced nuances. The process of arriving at a decision is a very human matter. We will now look
at the development of case law as a key influence on the operation of the legal system.
2. Law, morality and ethics

When discussing the legal system we need to distinguish between law on the one hand, morality on
the other and ethics somewhere in between. We can accept the three are indeed distinct, but need
to appreciate the first has jurisdiction over the other two. Judges have generally accepted they
should rule on moral and ethical matters. This is a natural extension of the concept of the rule of
law, as it would be inappropriate for a judicial system to decline to rule on tricky matters. Morals
involve a basket of issues including personal choice, matters of taste, agonising dilemmas, freedom
of action, unpleasant trade-offs and the like. Are judges meant to ignore these? Of course not.
People come before the courts in order to receive an unbiased resolution of intractable diff erences.
And where morality stumbles, the law steps in.
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a. Murder, morality and case law

Imagine the following scenario. You are a seafarer, working on a large yacht. In bad weather the
vessel founders. You jump into a small lifeboat with three other people. You are castaways. You
drift. The days pass. After 12 days of minimal rations you have no food or water. You all become
desperate. One castaway, a young boy, becomes noticeably weaker than the others. In desperation
on day 20 you decide to kill him and eat him in order to survive. This nourishment, if it can be called
that, sustains you for a critical period. Four days later you are rescued.
In normal circumstances this would be what lay people call an ‘open and shut case’. Killing
someone, and eating them, would constitute the most heinous crime imaginable. The charge against
the defendant would be one of murder (cannibalism is wrapped up in the original offence). If you
were the judge, or the jury, what would you decide?
These were the facts, and the issue confronting the court, in R v Dudley and Stephens (1884)
14 QBD 273. The court needed to decide whether it was justifiable to murder someone to
save your own life. The defendants faced a terrible dilemma: should they spare someone who
quite possibly was about to die anyway, and in so doing risk death themselves; or should
they, in the words of the case report, off er a prayer asking forgiveness, go to the boy, tell
him that his time was come, and put a knife into his throat and kill him? By deciding on this
latter course, they saved their own skins.
The court found the defendants guilty of murder. It gave considerable thought to the facts
and the jurisprudence. It stated:
law and morality are not the same and many things may be immoral which are not
necessarily illegal, yet the absolute divorce of law from morality would be of fatal
consequences …
As part of its judgment the court said that ‘it is not the law at the present day’ that a man
may save his life by killing ‘an innocent and unoffending neighbour’. It discussed the defence
of necessity and decided it did not apply, in part because the victim was ‘the weakest, the
youngest, (and) the most unresisting’.
The court condemned the defendants to death. Afterwards, the sentences were commuted –
in other words, changed for something more lenient. The men were imprisoned. This is called
clemency – a form of sympathetic leniency in recognition of the circumstances of the crime.
Nowadays the concept doesn’t exist in its pure form, but advocates are allowed instead to
enter a plea in mitigation after a guilty verdict. Mitigation offers reasons – of a sort – as to
why a client committed the crime, in the hope of achieving a lesser sentence.
We can draw certain conclusions as to the nature and development of case law from this sad tale.
• The court took great care to consider previous decisions by judicial authorities. Some of
these were from other jurisdictions, and some were in the nature of academic or
philosophical declarations. This reinforces the international nature of the legal system, and
the occasional relevance to judges of foreign sources of law.
• In discussing necessity the court referred to a defence that has relevance today. This
illustrates the continuity of case law decisions, and the way in which judgments endure over
many years, and sometimes centuries.
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• The court was well aware of the human element of the case, and the terrible circumstances
of the decision to murder the boy. It was prepared to consider the moral and ethical aspects
of the defence.
• Even so, the rule of law prevailed, in that murder could not be countenanced. It would be
different if killing someone was required as a matter of self-defence.
• You will note the reference by the court to ‘neighbourhood’. This word, and concept, took
on a different nuance in the House of Lords (now the Supreme Court) in 1932 in a famous
case in the area of tort, ie civil wrongs. That case is Donoghue v Stevenson [1932] AC 562.
This is therefore confirmation that case law can involve the transfer of concepts from one
field to another. Indeed, this is an essential aspect of a legal system retaining its relevance.
• The court stated ‘there is no safe path for judges to tread but to ascertain the law to the
best of their ability and to declare it according to their judgment’. This is a classic statement
of the role of judges, and the part they play in developing case law. It is the job of judges to
‘ascertain the law’, ie to interpret and declare it, not to put themselves centre stage in
seeking to change it. But as we shall see, some judges seek to push the boundaries of this
principle through broad interpretation, a sense of justice or stubbornness.
b. Public taste, morality and case law

Courts occasionally deal with tricky matters of public taste and what the law calls decency. Imagine
someone has a business in adult entertainment. They wish to import into the UK films of a salacious
nature. The ECJ says the import of these videos is unlawful. The business then wishes to import into
the UK blow-up dolls. The ECJ says this is allowable.
You might think that this is a somewhat inconsistent approach. The business wishing to import the
items in question is entirely lawful, even if the items themselves are questionable. The products are
lawful in their country of origin, even if some of us might be a little puritanical in our view of them. It
might appear odd, therefore, that one sort of material is allowable for import, but the other is not.
In the eyes of most people the underlying need – to exercise some form of control over trade in
‘dubious’ goods – is the same.
But the court was being consistent, and reinforcing the rule of law, and the role of courts in
developing the law. The key factor was whether the goods were legal in the UK. The videos at the
time were not. The dolls at the time were.
The first of these cases, involving the videos, was Case 34/79 Henn and Darby [1979] ECJ. The doll
case was Case 121/85 Conegate [1986] ECJ.
There is an EU angle to these cases but, putting that to one side, you should note for our purposes
the following points:
• Matters of morality often require decisions by courts. Those decisions are made according to
the governing law, which in this instance was tinged with EU concepts.
• Law stems from the will of society, either through legislation passed by the authorities or
perhaps custom, both of which involve the prevailing views of the population. Those views
may well change over time, in which case the approach of the governing classes, and the
courts, will usually adapt. If they don’t, that is a recipe for social unrest.
• You can see the central role of courts, in this instance the ECJ, in embracing the need to rule
on matters of morality and at the same time maintain the rule of law.
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Figure 8 Overview of the role of judges and courts in developing case law
3. Types of case law

We have looked at the role of case law in declaring courts have status when ruling on matters of a
moral or quasi-moral nature. We now turn to the foundations of case law. There are a number of
categories worth considering and some relevant ones are:
• cases relating to essential freedoms. In many ways these are the bedrock of our judicial
process, as they go to the heart of a free society, and the democracy inherent in it. This sort
of thing would include the requirement that no one should be imprisoned on a whim, and
that an accused should be innocent until proven guilty;
• decisions relating to entitlements. You can see this as an extension of democratic rights. For
instance, you might wish to claim compensation for a civil wrong, ie a tort as mentioned
above. Alternatively, you might wish to enter into a contract. In both these instances, it
would be impossible to progress very far without having basic freedoms in the first place;
• court cases relating to constitutionality. These might involve decisions confirming the
supremacy of Parliament, and the operation of conventions;
• matters relating to the changing nature of society. These could be decisions which nudge the
executive towards passing legislation in subsequent years. Topics could include ownership of
property, social relationships, environmental issues or welfare law;
• cases relating to the operation of business. The presumption here is that businesses should
benefit from the same protections as individuals. Business law covers a wide field, and we
will look at just one area, involving companies that wield too much power at the expense of
their rivals and consumers; and finally
• to counter any suggestion that the law is perfect, there are decisions that protect privileges
and perpetuate injustice. In the past courts have reflected the attitudes, and, yes,
prejudices, of society. They came to decisions that might not be considered healthy today. In
an attempt to put a positive gloss on these rulings, perhaps we should try to see them as
part of a continuum leading, ultimately, to better outcomes.
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Let us now look at these six types of case law. There are other categories too – as part of your
learning, you should see if you can spot, catalogue and discuss others as well.
4. Cases relating to essential freedoms

We should never take for granted the right to go free. Captain Renault, played by Claude Reins, in
the movie Casablanca directed by Michael Curtiz (1942), says towards the end when investigating a
crime: ‘Round up the usual suspects’. That is not allowed in the jurisdiction of England and Wales.
The police must have evidence and good cause before arresting someone. Likewise, you cannot be
stopped and asked to prove your identity without good reason.
a. Habeas corpus
Most importantly of all, you cannot be detained, and deprived of your freedom, unless the law
allows it. The suggestion that the state can remove someone’s liberty without due cause was
negated early on in the relationship between courts and the executive. The case of Zadig and
Halliday [1917] AC 260, HL reviewed the matter. There, the House of Lords discussed the
Government’s powers of internment during the First World War. The law then allowed arrest and
imprisonment ‘of any person of hostile origin or associations, where the authorities believed such
internment would secure public safety or the defence of the realm’. Internment, then as now, is a
form of summary imprisonment, with limited, or sometimes no, judicial oversight. The Lord
Chancellor, Lord Finlay, referred to Darnel’s Case (1627) 3 St Tr 1 128. He mentioned the views of
Lord Justice Coke, a hugely significant legal figure of the early 1600s. Coke in Darnel’s Case set out
the key concepts of individual freedom. In particular he mentioned ‘habeas corpus’, the doctrine
that imprisonment without suitable justification was unlawful:
i. No man can be imprisoned upon will and pleasure of any but a bondman or villein.
ii. If a freeman of England might be imprisoned at the will and pleasure of the King or
by his command, he were in worse case even than a villein … and
iii. A freeman imprisoned without cause is civilly dead.
This statement by Coke, as borrowed by Lord Finlay in 1917, can be summarised as follows. First, we
cannot be imprisoned unless by an official having the appropriate ‘will or pleasure’, ie authority.
Second, someone imprisoned by the executive without the relevant authority would be
automatically reduced in status to the lowest level. Third, and most crucially for our purposes, a free
person imprisoned without due cause is as good as dead. This last point emphasises the vital
importance of personal freedom. In effect, Coke is saying you are better off deceased than falsely
imprisoned.
Incidentally, the word villein in those days meant a feudal servant of the landed gentry. It does not
mean the ‘villain’ or ‘baddy’ of today.
b. ‘Maybe it’s because I’m a Londoner …’

The courts have shown consistent loyalty to the principle of individual freedom. They have
routinely resisted any attempts to imprison us without lawful reason. They rule on this fairly
regularly. For instance, in the case of Okoro v Commissioner of Police of the Metropolis [2011]
EWHC 3 (QB), the police in October 2007 arrested, in the words of the judgment, ‘an entirely
innocent man’ on the Hornsey Road in North London. There was a conflict of evidence over
matters such as the need to restrain Mr Okoro, his demeanour and his behaviour. Video evidence
was confusing. Mr Okoro suffered injuries. He claimed damages for wrongful arrest and false
imprisonment.
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The court found the use of police computer procedures were inadequate; officers had
exaggerated their accounts of Mr Okoro’s behaviour; and certain testimony could not be
accepted. At paragraph 106 of the judgment the court stated: ‘I am not persuaded on the
evidence laid before me that the Commissioner has discharged the burden upon him of justifying
the arrest of Mr Okoro’. At paragraph 115 the judge concluded: ‘Consequently I fi nd that the
arrest was wrongful and the ensuing detention unlawful’. The court then awarded the claimant
damages of £ 13,000.
c. Case law and religious tolerance

Courts can sometimes subtly adapt legal principles to ensure optimal outcomes. Imagine you are a
Quaker in the 18th century. The establishment frowned upon, and tended to discriminate against,
Quakers. Then as now, Quakers have a particular religious philosophy, much admired today, not so
much then. Imagine you object to payment of a particular church tax. The authorities take action
against you. A court makes a ruling on the matter that is not in your favour, suggesting the refusal to
pay was merely a result of your scruples, in other words your personal preferences.
These are the facts in R v Wakefield (1757) 1 Burr 485. There, the Court of the King’s Bench
disagreed with the court below. Lord Mansfield said the ruling ‘ought not to stand in the way
and prevent our coming at the real justice and merits of the case’, even if the original ruling
was apparently conclusive. This decision is not of the same calibre as ones involving habeas
corpus, but in its own way it is equally important, hinting at the development of
jurisprudence supporting religious tolerance. As such it can be seen as another example of
the courts demonstrating backbone in the face of executive pressure, even perhaps laying
foundations for subsequent case law on civil disobedience.
5. Decisions relating to entitlements

Avoiding imprisonment has little meaning if we are unable to act on the freedoms we take for
granted. It is a basic aspect of life that we may wish to enter into contracts, or claim compensation
for a wrong. As you would expect, the courts are active in these fields.
In Slade’s Case (1602), the court touched on a matter that remains relevant today. The case
stretched over five years, and involved much debate by the judiciary, but the nub of the issue
can be found deep into the judgment where it is stated:
Although an action for debt lies upon the contract, the bargainor may nevertheless
have an action on the case or an action of debt at his election …
Put into plain English, this means that the innocent party in any breach of contract is entitled to ‘an
action on the case’, ie more than the simple basic act of repayment of a debt. This might seem an
unremarkable statement to us today. It confirms that payment or repayment of a sum of money may
in some instances be inadequate. It does not, for instance, take into account further losses suffered
as a result of the breach, or inconvenience, or the knock- on effects of an obligation being ignored.
But this statement was somewhat innovative. It represented the early stages of a process that
developed contract law principles, and those relating to recovery of damages, to their current
maturity.
Case law has developed tort too, although this has more recent roots. We have already mentioned
the 1932 case of Donoghue v Stevenson and that is a good place for you to begin when reading
further on this subject.
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6. Cases relating to constitutional matters

The United Kingdom constitution, which is uncodified in that it cannot be found written down in one
place, has many sources and has developed over time. It is a blend of many different influences. One
thinks of the tussles between the Crown and nobility resulting in the Magna Carta of 1215. There is
the growth of parliamentary sovereignty. There is the balance of powers between executive,
legislature and judiciary. We can also add to these matters the following: constitutional conventions,
electoral reform, the growth of a civil service, popular discontent and demonstrations that put
pressure on rulers to make changes, and the influence of the church.
a. Parliamentary sovereignty
Courts have naturally played a part in confirming the operation of the constitution. To give but one
example, judges have from an early stage deferred to the sovereignty of Parliament. You will not
find a statute or a rule book that says: ‘What Parliament wants, Parliament gets’. But that is in effect
what our constitution says. Parliament is supreme. It can pass whatever laws it likes. This is of course
subject to the recent intervention of European Union law, but we can put that to one side for the
purposes of this discussion, especially as the UK voted to ‘leave’ in 2016. Subject to that, courts have
confirmed parliamentary sovereignty and, in so doing, made it quite clear that they cannot thwart
Westminster’s will.
We can see an instance of this in Brass Crosby’s Case 1771 [1558– 1774] All ER Rep 586. This is a
case about parliamentary privilege – the ability of Parliament to control its own affairs without
external interference – and is illustrative. Here, an official of the Tower of London arrested the
Lord Mayor of London and detained him. The official was acting on the authority of the Speaker
of the House of Commons. The Speaker alleged that the Lord Mayor, who was himself a Member
of Parliament (MP), had abused his privileges as an MP. The underlying issue, which today’s
observer might fi nd singularly uncontroversial, was over the publication of parliamentary
debates by an independent printer.
b. The courts and parliamentary privilege

In making its decision the court declined to look into the substantive issues. It found by a clear
majority it had no status to contradict Parliament’s wishes, in this instance revolving around its
particular Westminster privileges. This therefore illustrates what happens when different principles
appear to contradict each other. On the one hand Lord Mayor Crosby suggested he was being
detained unlawfully in breach of the principle of habeas corpus. On the other hand, the detention,
even if it lacked an element of certainty in law, was authorised by the supreme legislative body of
the jurisdiction, namely Parliament. Faced with this contradiction, the court did the judicial
equivalent of ignoring a married couple arguing in public. It stated in clear terms they could not
interfere. Mr Justice Blackstone, in concluding the court had no power to release Crosby, said:
I concur in opinion that we cannot discharge the Lord Mayor. The present case is of great
importance, because the liberty of the subject is materially concerned. The House of Commons is
a supreme court, and they are judges of their own privileges and contempts, more especially with
respect to their own members … and if any persons may be safely trusted with this power, they
must surely be the Commons who are chosen by the people, for their privileges and powers are
the privileges and powers of the people.
c. Conclusions on this area of law

It should be stressed this case is somewhat oddball, revolving as it does around the desire of
Parliament to discipline one of its own. But the court’s judgment can be summarised
thus: Parliament is supreme; the House of Commons is elected by the general population;
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Parliament can make their own laws; and courts cannot intervene for fear of contradicting the will of
the people. The judge in question was overstating the matter, because it is perfectly ludicrous to us
today to suggest that Parliament was in some way representative of the nation. It was not. It was
then a bastion of privilege and entirely the preserve of the landed minority. But the core principle of
this decision remains valid: courts cannot trespass on parliamentary sovereignty. This is something
subsequently stated by constitutionalists such as AV Dicey, and is a line of judicial reasoning
maintained today.
The Crosby case mines a particular seam of law relating to Parliament and the way it handles its
privileges, so we shouldn’t draw too many specific conclusions from it. But it does hint at the circular
nature of law creation within our legal system. Somewhere a law originates. Judges rule on that law.
Parliament can then pass more law. Judges then need to interpret, or reinterpret, that law. And so
on. The Figure below illustrates the process.
Figure 9 Relationship between legislation and case law
7. Matters relating to the changing nature of society

Case law contains many fascinating aspects. These include the opposing contentions of the
participants; the conflicts of evidence that inevitably emerge; the ability of a persuasive advocate to
make something positive of a poor case; and the involvement of the judge. The last of these
concerns us here. Judges are naturally a product of their eras. As such, sometimes they appear to be
cowed by the conventions of the society in which they live. Alternatively, they are capable of being
forward thinking. Courts, therefore, both maintain the status quo and encourage society to change.
Here, we are going to examine the subtle – some would say glacial – manner in which courts can
influence society.
Let us transport ourselves back to the 1770s. Imagine you are from the state of Virginia in the
American colonies. You are a slave. You and your master come to England. There, you escape. Your
master wishes to sell you to someone in Jamaica. The laws of England are somewhat ambiguous as
to slavery. Although the institution is wholly legal across the Atlantic, in England people are
somewhat uncomfortable, although compliant, with the idea. You begin a court case to confirm your
status, to avoid the nightmare of being sold abroad.
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a. An important case on social change

These are the facts from Somerset v Stewart [1772] 20 State Tr 1. The judgment of Lord
Mansfield is a masterpiece of social compromise. He starts by suggesting that it would be
possible for a master and a slave to agree that the slave be sold. To an observer today this is a
staggering statement. How could a slave have any meaningful say in the matter? Surely, any
such agreement or negotiation would be manifestly one sided.
Lord Mansfield then goes on to make a series of relatively subdued statements, which on closer
inspection have considerable significance. He states because the object of enquiry is a slave, that
makes ‘a very material difference’ to the debate. He says there are consequences to embracing
the American principle of slavery. He thinks ‘many of those consequences are absolutely contrary
to the municipal law of England’. He then talks of a ‘coercive power’, somewhat ambiguously
failing to make it clear what he means. He then says the coercive power cannot be exercised,
meaning at this stage the master has no power over the slave. He makes a digression into history
by talking of a decision 50 years earlier, which, he implies, relates to the freeing of 14,000–
15,000 slaves. Lord Mansfield continues by saying that ‘we cannot in any of these points direct
the law; the law must rule us’. His judgment then tails off somewhat by suggesting the matter
should be stood over ‘and if we are called on for a decision proper notice shall be given’.
The reader of this case today can be forgiven for wondering at its significance. It is far from decisive,
riddled with ambiguous comments and half-baked statements that suggest the court is somewhat
reluctant to interfere with the slavery model. The ending is inconclusive. Throughout, Lord Mansfield
appears to treat the claim as one relating to property rather than individual freedoms. But in its own
way this case is a textbook example of the way in which a court can lay the foundations for future
decisions. It is difficult to match cause with effect, but in 1807 Parliament prohibited the slave trade,
and in 1833 it abolished slavery altogether.
Let us therefore interpret Lord Mansfield’s judgment. First, he gives the impression of deferring to
the established order by suggesting some sort of compromise between master and slave. This is
obviously impossible on the facts, but enables him to gain support for what follows. Lord Mansfield
from the outset is working the margins of what would be acceptable to the ruling classes.
Sometimes it doesn’t pay to go bull-headed at the establishment in a way likely to alienate it.
He then refers to ‘material differences’, which is again ambiguous, but which for a judge is indicating
something close to disapproval. The statement about the institution of slavery being contrary to the
municipal law is again a muted judicial comment with considerable significance. Essentially Lord
Mansfield says slavery is unlawful, albeit in a tactful manner. His digression into speaking positively
about important decisions 50 years ago implies support for the idea of freeing slaves, without
actually stating as much. The passage is laudatory of the actions taken even if it is unclear as to
exactly who did what, and when. Throughout, he makes it clear he is guided by the law. And indeed
he was. But, under the cloak of conservative judicial principles, he managed to make statements that
were ahead of their time.
b. Conclusions on the Somerset case

The Somerset case therefore has significance in the development of case law. The conclusions we
can draw from it are as follows:
• Courts are frequently asked to make difficult decisions, and they should not shy away from
them.
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• Sometimes courts reflect the will of society and the established order, and at other times
judicial decisions run ahead of legislative actions.
• Judges cannot contravene the will of Parliament. But they can still shape the law where, as
was the case with Somerset’s application, there is no relevant statute as a starting point, or
perhaps no statute that is clear on the matter.
• Judges are usually cautious in extending the ambit of case law. This was the genius of Lord
Mansfield. He gave the impression of supporting principles of property ownership. He was
reluctant to state that slavery was unlawful, and indeed he could not in the face of
legislation in force then. Accordingly he chose a soothing approach. But at the same time he
made statements that would grow in importance over time, such as the implication that
slavery was a coercive power, the ‘material difference’ attaching to a slave’s situation, the
apparent support for masters freeing their slaves, and the crucial dicta that slavery was
‘contrary to municipal law’ in England.
• As lawyers, we should accept campaigning in a courtroom might be an impossible task. If
you are, say, Nelson Mandela in South Africa in the 1960s under the spotlight of apartheid,
you can legitimately use your prosecution for sedition to challenge the state, turn the tables
and put the Nationalist government on trial. But otherwise it might be better to encourage
change over a period of time, and experience some success, rather than expect immediate
results and be disappointed.
c. A further case on social issues

A case from the 1940s illustrates the careful tread of the courts in racial matters. Learie
Constantine (1901–1977) was a famous Trinidadian sportsman. He represented the West Indies
at cricket. He spent much time in England playing in Lancashire. He was one of Wisden’s
Cricketers of the Year in 1939 (Wisden being the most important annual cricketing reference
book in the world). During the Second World War he worked for the Ministry of Labour. On 30
July 1943 he arrived at the Bedford hotel in London to fulfil a booking. The hotel refused to
receive and lodge him. Constantine made a claim in the High Court.
Mr Justice Birkett presided over the case of Constantine v Imperial London Hotels Ltd [1944] 2
All ER 171. In every way the decision is an example of judicial restraint. The claimant himself
pursued the matter in a modest manner, declining to claim either for slander or breach of
contract. He simply wanted justice. But the ruling has echoed down the generations. The court
considered a number of authorities. It declined to enter the bear pit of emotion. It looked at the
matter strictly from a legal point of view. In so doing it made a number of observations:
• It noted Constantine visited, and was offered a room in, a nearby hotel. The defendant
owned that hotel as well as the Bedford. The court said that this made no difference to
the claim. The injury remained potent despite this supposed mitigation.
• The judge in reviewing the authorities compared Constantine’s situation to a number of
important constitutional rights. At one stage he talked about the right to vote.
Elsewhere he mentioned the freedom of the individual.
• In the face of the limited nature of Constantine’s claim – where there was no claim for
breach of contract or slander – the court reacted positively to the dignified nature of the
complaint. In its own limited way, it interpreted the law in an expansionist manner.
Today we would call this the ‘purposive’ approach – the idea that law should be
construed in such a way as to give it effective meaning.
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Matters of racial prejudice, and indeed any discrimination, are sensitive areas with which to deal.
Some of us think the courts should be more assertive. Others advocate something of a graduated
approach. And there are many variations in between. Judges, and their decisions, tend to be
evolutionary in the thinking. This certainly seems to be the case for Mr Justice Birkett. He managed
to dismiss a possible remedy of malicious prosecution whilst leaving it open as an option for the
future. This is what he said:
But although an action does not give rise to an action for malicious prosecution, inasmuch as
it does not necessarily or naturally involve damage, there are legal proceedings which do
necessarily and naturally involve that damage; and when proceedings of that kind have been
taken falsely and maliciously, and without reasonable or probable cause, then, inasmuch as
an injury has been done, the law gives a remedy. Such proceedings are indictments — I do
not say every indictment, but I mean all indictments involving either scandal to reputation or
the possible loss of liberty to the person, that is, all ordinary indictments for ordinary
offences.
This passage contains elements vital to future decisions. It implies the behaviour of the hotel was
false and malicious. When the judge says there is no ‘reasonable or probable cause’, he means the
hotel’s action was completely intolerable. The word ‘indictment’ implies a possible criminal element
to the behaviour. And the reference to ‘possible loss of liberty to the person’ indicates the extremely
grave nature of the allegation against the defendant.
The court gave judgment for Constantine, the judge saying as follows:
Having given the matter the fullest consideration, I hold this action is maintainable without
proof of special damage. The right, I think, is founded upon the common law. That right I find
was violated in this case. The law affords a remedy and that injury imports damage.
Did you note the reference to ‘common law’? In other words, the judge relied on previous decisions
by other judges. This is a classic example of the use, and development, of case law. The judge
awarded nominal damages by way of a remedy.
d. Conclusions on the Constantine case

In its own way this case is a landmark for the law on discrimination. First, it relies strictly on legal
reasoning, stripping away any of the emotive issues that could arise. Second, it took a narrow cause
of action and used it to discuss a wide range of remedies. Third, even if it decided those remedies
were not applicable, the nature of case law allows the discussion to be continued for later
generations, either in the courts or in society. Fourth, the judge interpreted the law available to him
in as broad a manner as possible in the interests of justice. Fifth, as with every significant piece of
case law, it hinted at future developments, in particular the criminalising of the worst discriminatory
behaviour (through the word ‘indictments’). As such this case remains an interesting illustration of
the way in which the judiciary deals with the changing nature of society.
Learie Constantine was knighted in 1962, ennobled in 1969 as Baron Constantine of Maraval and
Nelson, and died in 1971. As an international he appeared in 18 matches for the West Indies cricket
team. He contributed to social change in Lancashire through his involvement in league cricket. And
for our legal system he was a pathfinder in racial matters.
These cases on race illustrate a process that often, but not always, accompanies the role of case law
in tracing societal developments. Society suggests something should change; courts ruminate on the
matter; and eventually, or rapidly, depending on the scenario, Parliament passes a law, often as a
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result of judicial comment. In this way you can see the link between people, court cases and
legislation.
e. Case law, the legal system, cricket and the cult of the all- rounder
Certain aspects of the legal system revolve around non- lawyers. One thinks of magistrates, who are
not legally qualified, and juries, who are ordinary people tasked with giving a verdict at the end of a
Crown Court trial. We look at these in a subsequent chapter. They confirm British society places
value on the role of the amateur, or alternatively the ‘all- rounder’, ie someone who has transferable
skills between different disciplines. So a journalist can become prime minister (Boris Johnson); so
can a general (the Duke of Wellington); an accountant can run a business; thousands read history at
university and then work in areas entirely unrelated to the study of past events; literature lovers run
railways; and so on.
These are not chance events: they are repeated across the decades. The comparison with Germany,
say, is illustrative: there, technical skills are instilled and prioritised from an early stage, with the
emphasis on excellence through specialism.
From where does this culture of the generalist stem? The answer is, at least in part, from the playing
fi elds and sporting environment of middle England. In particular, the link between cricket, society
and the law is well established. In imperial India the sport provided a means of interaction between
the rulers and the ruled. Across the Commonwealth cricket represents a commonality for otherwise
disparate communities.
There is a pleasing symbiosis between cricket and the law. The culture of cricket mirrors the rule of
law: a set of procedures, predictable interpretations of law, impartial officials and international
obligations. And of course there are hierarchies galore, from the selectors of teams
downwards: captains, batsmen and, at the bottom of the ladder, the poor old bowlers who do most
of the hard work.
Cricket has influenced, or perhaps tainted depending upon your viewpoint, the administration of the
law for some considerable time. If you were to take a straw poll of traditional male barristers the
vast majority of them would say they could advise on an extraordinarily wide range of legal matters.
A majority would agree they should confine themselves to either criminal matters or civil ones but
within those two spheres they would believe themselves competent to opine across a wide canvas.
They are the legal world’s all- rounders.
The cult of the gifted amateur, and the all- rounder, may have a limited shelf life. For a start,
modern life militates against it, quite properly too in some ways. Who would argue against
the beneficial influence of more women at the Bar, for instance? In terms of case law it
started to come unstuck in the case of Greig v Insole [1978] 1 WLR 302. There, the former
England captain Tony Greig (1946– 2012) claimed restraint of trade against the English
cricket authorities when they sought to prevent a number of leading players from
participating in a tournament organised by the Australian entrepreneur Kerry Packer (1937–
2005).
The case ended in victory for the players. The principle of participants being able to play
outside the strict control of the authorities was confirmed. The idea of a patriarchal system,
presided over by the few for the benefit of the many, broke down. So did the cherished
concept of the all- rounder, in this instance in the form of cricketers earning low sums by
playing, and then moving effortlessly into other employment at the end of their playing days.
Instead, the Packer era rewarded players properly, and decently, for the job of work they did
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on the cricket pitch. If you would like to ponder the origins of sports people earning large
sums of money, with awesome contracts to match, you might start your research with Greig
v Insole.
It is a complete falsehood for people to think cricket is in some way gentlemanly and purer than the
rest of society. This cult of the gentleman all- rounder took another knock, in a somewhat bruising
manner, when Ian (now Lord) Botham, arguably England’s greatest modern all- rounder, sued Imran
Khan, his Pakistani equivalent, for defamation in a 1996 trial. There was little love lost in a contest
that resulted in victory for Imran, someone who has since gone on to lead his country. You can gain a
sense of the matter from a subsequent case report into costs stemming from the litigation – Botham
v Khan [2004] EWHC 2602 (QB).
The moral of all this is as follows. The cult of the all- rounder, where you can treat sport, life and the
law as a dreamy continuum, will only take you so far. Both Greig and Packer were outsiders, Greig by
virtue of his South African background, and Packer through his ruthless nose for business, sharpened
in the unforgiving environment of New South Wales. They were unconstrained by traditional
concepts of society or law. Likewise, Botham and Imran were, and still are, non- traditionalists.
The impact of the outsider is a theme hinted at repeatedly in literature, from Vanity Fair by William
Thackeray (1811– 1863), to The Go Between by LP Hartley (1895– 1972), and in particular Beyond a
Boundary by the Trinidadian CLR James (1901– 1989). Indeed, the last of these – an analysis of
cricket in the West Indies in the mid- 1900s – should be required reading for anyone seeking an
insight into the relationship between the law, society and sport. It deals in crisp manner with
disparities within society, and how participation in sport mirrors the world in which it takes place,
including the rules that shape that world.
8. Cases relating to business and the creation of wealth

Court decisions on business are part of the early impulse by the courts to limit monarchical power.
In the Case of Monopolies (1602) Trin 44 Eliz, also known as Darcy’s Case , the courts
examined the lawfulness of a monopoly (exclusive trade rights) granted by the Crown. The
facts are these. Darcy, who was based in London, claimed he had authority from the Queen
to ‘enjoy the whole trade traffi c and merchandise of all playing cards’. This covered both the
import of playing cards from abroad, and the making and selling of them by domestic
manufacturers. The duration of this entitlement was for 12 years.
Then as now, London was an international centre of trade. Merchants transacted much business
there, and the city, and to an extent the rest of the country, started to grow wealthy as a result. The
monopoly claimed by Darcy would have two immediate impacts: first, it would restrict consumer
choice by narrowing supply. Second, it would prevent local manufacturers from making cards, selling
them and earning a living. This is what you and I would refer to as ‘cornering the market’ –
dominating it so there is little if any competition, with consumers forced to purchase from a sole
supplier.
This case was a true test of the judiciary’s attitude towards businesses and their relationship with
the state. It would have been entirely understandable if the court had decided that a limited scope
monopoly would be acceptable. It could be argued the arrangement would allow Darcy to expand
his business, create employment, develop a world class business, raise wages (perhaps), and
improve quality.
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But the court decided the opposite. It made a ringing declaration as to the importance of free trade,
ie the policy of allowing goods to cross borders in the interests of competition, customer choice and,
hopefully, lower prices. The court said ‘a dispensation or licence to have the sole importation and
merchandising of cards is utterly against the law’. It declared the monopoly to be contrary to the will
of Parliament. There are arguments for and against the notion of free trade, but in the context of the
early 1600s, where the consequences for snubbing the Crown could include death, this was a brave
and insightful decision.
a. Impact of case law on the business environment

This case had various consequences and they remain significant today. First, it reinforced the limits
of Crown prerogative. Second, it confirmed the law should protect mercantile endeavour as much as
individual liberties. That protection should be, first, against the state; second, in favour where
possible of consumers; and third, against other entities that seek to abuse their powers.
Courts continue to frown on monopolies. The concept of regulated free enterprise, and controlled
free trade, is part of UK democratic history and indirectly a source of law. In this, the courts take
their lead from Parliament.
The MP John Bright, speaking at the Amphitheatre Liverpool on 30 August 1843 ( Liverpool Mercury ,
1 September 1843), gave the example of a fictional business person addressing a typical voter:
He showed them how monopoly robbed them of their coffee and sugar, and of bread and
butter for their children; he showed them how stonemasons, shoemakers, carpenters and
every kind of artisans suffered if the trade of the country were restricted; he showed them
that if their families increased, if the population increased and trade did not increase those
who had no property but their labour, who must have work or must starve, suffered most; he
showed them how the fierce competition for labour thus created reduced the rate of wages;
he showed them that the foul fi end of monopoly … deprived them of one third or one half of
the miserable pittance of wages that they earned.
Bright spent most of his life on the back benches, ie as an ordinary MP, not involved in government.
His arguments were contentious at the time. They have, however, gained currency, and his views are
easy to understand, even if you disagree with his economics. He believed monopolies, and
restrictions on free trade, resulted in higher prices and less choice. They also allowed businesses to
dictate conditions in the labour market, with a surplus of workers chasing fewer jobs, with resulting
lower wages. We could debate these policy matters indefinitely, but the courts have continued to
reflect the will of Parliament in their disapproval of the monopoly principle, and this can be seen in
some modern decisions.
b. Case law and business in more recent times

Let’s look at one example. A well- known software and technology company develops a desirable
product. The company, and the product, are very successful, with a market share of perhaps 70–
80%. It decides to sell one product on the back of another. It compels consumers to purchase a
media player whenever they wish to buy a personal computer operating system. The authorities
take an interest in this strategy. They suspect that:
• the company in question has a stranglehold on the market;

• consumers have less choice; and
• trade is being restricted as a result. In modern terms this is called abuse of a dominant
position, and it is as close as you can get these days to an old style monopoly.
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These were the issues in Case T- 167/ 08 [2012] ECJ. There, the ECJ upheld a €497m fi ne
for abuse of a dominant position, plus a penalty payment of €860m. The company was
Microsoft, which continues today, entirely lawfully, to dominate its field. The case
was Microsoft v Commission.
The principles discussed reflect current law within the jurisdiction of England and Wales. Our laws
say it is wrong for companies to abuse a dominant position. It can thus be seen there is consistency
of sorts over many centuries in the way that courts and MPs believe monopolies, whether ancient or
modern, to be undesirable.
9. Cases where the courts got it wrong

The courts of England and Wales have always obsessed about property. This is the case for both land
and possessions. From the earliest stages of history ownership of land conferred wealth, and
ownership of possessions implied status. So courts as representatives, even if inadvertently, of the
privileged classes placed considerable emphasis on property rights. This led to some unfortunate
results.
a. Case law, and the concept of people as possessions

In the case of Osborn v Gillett (1873) LR 8 Exch 88 Elizabeth Osborn died as a result of an accident
involving a horse and wagon. The judgment makes uncomfortable reading. The court said
damages could not be obtained where death was more or less instantaneous, suggesting any
action ceased with death. Further, the deceased in any event had no apparent status in making
any claim, and throughout the judgment Elizabeth was treated very much as a fringe player. Yet
further, her father could only claim in the capacity of a master having lost a servant, rather than
as a grieving parent.
One can only imagine the distress that accompanied the process. The court in its defence held
itself to be interpreting the will of Parliament, thus maintaining the doctrine of sovereignty. But
courts do not always need to be restrictive. In earlier years Lord Justice Coke was prepared to
make bold statements limiting the Crown’s influence, and in later years Lord Denning was able to
develop new reasoning in the fi eld of administrative law. Here, the court believed itself bound. It
is an example of judicial caution, laced with the unpleasant presumption that a person is akin to
a possession.
b. Case law perpetuating marital injustice

We can also discuss another line of reasoning that blends somewhat obnoxious concepts of property
with family relationships. Imagine you are a married woman. Your marriage is not a happy one. Your
husband forces himself on you. You are obliged to participate in intimate relations against your will.
These are the outline facts of R v R [1992] 1 AC 599, where the House of Lords (now the
Supreme Court) examined the contention that a married man could not be convicted of the
rape of his wife. Their Lordships seized on R v R as an opportunity to review this area of law.
In the Court of Appeal the Chief Justice, Lord Lane, noted that early authorities supported the
notion that a husband could control a wife. Lord Lane referred to the views of Sir Matthew
Hale in his History of the Pleas of the Crown (1736), vol 1, ch 58, 629, where it was stated the
wife through mutual consent had given herself to her husband, and consequently could not
be raped by him. Ecclesiastical decisions such as Popkin v Popkin (1794) 1 Hag Ecc 765n
embraced the notion with some enthusiasm, and, owing to the infl uence of such courts on
society in the 18th century, this thinking became a form of received wisdom. Lord Lane noted
Lord Stowell in Popkin had said:
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The husband has a right to the person of his wife … but not if her health is
endangered.
So by 1794 the courts appear to have accepted that wives were subservient to husbands, albeit with
the implication that a wife did not need to submit in the face of danger. The concept became
embedded into legal thinking from that moment on. In summary the sequence of events is as
follows.
• Sir Matthew Hale stated a concept in 1736.

• Religious courts adopted it.
• Subsequent case law embraced it.
• The notion that a husband cannot rape his wife became embedded.
It was not one of the judiciary’s proudest moments.
The House of Lords in R v R pondered the history of marital rape and concluded a man having ‘a
right to the person of his wife’ was a legal fiction – the closest a court can come to saying a
previous ruling was not just mistaken, but horribly wrong. Accordingly R v R removed the
presumption that a husband could not rape a wife, and this paved the way for s 1 of the Sexual
Offences Act 2003, which confirmed that rape by a husband should be treated the same as rape
by anyone.
c. Some conclusions
A number of conclusions can be drawn from Osborn and R v R:
• The law of England and Wales has always placed emphasis on the value of property,
particularly land, and this endures to the present day.
• The law says property includes possessions.
• Historically, courts have come close to confirming possessions can include people. It
must therefore be reluctantly accepted that courts have played their part in maintaining
unfairness within society. Over time it could be that such unfairness dissipates, and this
might be as a result of judicial wisdom, middle class pressures of the sort represented by
John Bright MP, or through popular unrest and protest. Street demonstrations,
incidentally, do have a part to play in the development of the legal system. They bring
pressure on rulers in a direct manner, and although politicians say they will not be
swayed by unlawful protests, it would be naive to suggest they have no influence.
• We should note the caveat to the 1794 Popham case, implying a wife has a right of self-
defence in the face of danger. This anticipates important case law developments later,
whereby courts extended the self-defence concept, and related discussions on
premeditation, into abusive situations.
Also, an optimist could take heart from the balance of powers principle. Let’s face it, judges
can be a source of embarrassment occasionally. So can Parliament. But both courts and
legislators have the knack of being sensible at crucial times in the democratic cycle, most
notably when the other branch needs supervision or advice. So when courts allow injustice
to fester, there is a fighting chance that Parliament will step in to correct the anomaly.
In general, we can see the benefits of our legal system and the development of case law.
Over time it has stood the test of time. The general populus is happy with it. Otherwise, we
would have had a revolution, drawn up a written constitution every decade or so, and
dispensed with the rule of law. But there are many imperfections in our constitution, and
Page 53 of 54
one of them is the way in which powerful interests set the legal agenda. This is an ongoing
dynamic. It might be illustrated diagrammatically as in the Figure below.
Figure 10 How case law can get things wrong
10. Summary
This chapter traces the development of case law. People who could be described loosely as judges
have made decisions in places, and in a manner, vaguely approximate to a courtroom ever since
Saxon times. But our story begins with the Tudors and the Stuarts, ie in the 1500s and 1600s.
Judgments from that period have taken root and grown over time. We have looked at cases ranging
from those that protect basic freedoms to others that have failed, to put it mildly, to cover
themselves with glory. There are also cases that deal with constitutionality, societal developments,
personal matters such as contracts, and the operation of business.
All these areas can be studied in more detail when you progress your learning to the specific areas of
law mentioned. For the moment, you can reflect on the cases and principles mentioned, and gain an
insight into an important aspect of the constitution of England and Wales, its legal system and its
sources of law. Case law is truly a pillar of our society.
Page 54 of 54

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Key Principles of the English Legal System

Key Principles of the English Legal System

11. Traditional sources of law ..................................................................................................... 27

Chapter 1: Introduction to the Legal System of England and Wales and

1. Introduction: what is a legal system?

The authors then go on to state that:

2. What a legal system is not

3. Examples of legal systems around the world

What about China?

a. Conclusion on components of a typical legal system

• the existence of a constitution;

Figure 1 Three aspects of a typical legal system

Let’s consider now the legal system of England and Wales.

4. The rule of law and its place in our legal system

Lord Bingham went on to outline a number of principles which he believed to be essential

• the law must be clear and predictable;

a. A case illustrating the application of the rule of law

b. Some thoughts on the rule of law

Figure 2 Some components of the rule of law

6. 1066 and all that

• There were rules and customs.

7. The Magna Carta 1215

• the involvement of the monarch and other elite elements in society;

8. Legislation – the new normal

9. How the judiciary found its voice

10. Bill of Rights 1688

11. Extending the franchise

12. The place of EU law within our legal system

For instance the ECA 1972, s 2(1) states as follows:

Figure 3 A sideways glance at the development of the legal system

13. Why England and Wales (but not Scotland)?

14. Differences between civil and criminal law

Here is another example.

a. An early example of a criminal case

Theft Grand Larceny 29 April 1674

15. The role of the police

This incident impacted on many parties:

16. The British Broadcasting Corporation (BBC)

One of the recitals to the original Royal Charter states as follows:

The court then added:

• has a commitment to impartial broadcasting;

17. The UK Constitution

Figure 4 Overview of influences on the constitution and legal system

• the involvement, actual or symbolic, of the monarch;

Chapter 2: Sources of Law of England and Wales

Middle English Text from Larry D Benson/Houghton Miflin.

This version of paragraphs 662–668 translated by Frederick Price.

2. Scope of this chapter

We will begin with Acts of Parliament.

a. Creation of Acts of Parliament

b. Acts of Parliament – the process

• injunctions, ie a requirement that something be done or not done;

7. The combined concept

9. How these principles dovetail today

Figure 5 Parliament and the courts

10. Case law in action

11. Traditional sources of law

i. The House of Lords

ii. Hereditary peers

iii. Life peers