English legal system and its context — common mistakes

In essays, use the Rule of Law and Separation of Powers as evaluative tools. For example, when discussing delegated legislation or judicial precedent, consider whether these mechanisms uphold or potentially undermine these core principles.

When answering a problem question on precedent, you must identify the relevant courts, state which is higher in the hierarchy, and explain whether the lower court is bound by the ratio decidendi of the higher court's decision.

Not quite. While England is a 'common law country', the term 'common law' has specific meanings. It can refer to the entire legal system (as opposed to a 'civil law' system). More precisely, it refers to the body of law developed by judges through court decisions (precedent), as distinct from law made by Parliament (statute law) or the principles of Equity. So, common law is just one, albeit very important, source of law within the English legal system.

Under the doctrine of Parliamentary Sovereignty, a judge in the English legal system cannot declare a validly passed Act of Parliament to be unlawful. Their role is to interpret and apply the law as written by Parliament. However, judges can declare delegated legislation ultra vires (beyond the powers granted by the parent Act). Furthermore, under the Human Rights Act 1998, judges can issue a 'declaration of incompatibility' if a statute conflicts with the European Convention on Human Rights, but this does not invalidate the Act; it merely puts political pressure on Parliament to amend it.

No, they remain distinct legal concepts, although they are administered in the same courts. The Judicature Acts 1873-75 'fused' the administration of common law and Equity, meaning any court can now apply both sets of principles and grant both common law remedies (like damages) and equitable remedies (like injunctions). However, the principles themselves are separate. As the saying goes, 'the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters'. Where there is a conflict, Equity prevails.

In the UK, the separation is not absolute. The Executive (government) is drawn from the Legislature (Parliament), creating a fusion. However, key separations exist. The judiciary is independent, a principle strengthened by the Constitutional Reform Act 2005 which created a separate Supreme Court and an independent appointments process. This independence allows judges to review the actions of the executive through judicial review, ensuring the government acts lawfully, which is a crucial check on power.