Paul Nuttall MEP, Leader of the United Kingdom Independence Party, kicked off lots of discussion on twitter today with his suggestion that upon this fair island there is only one law and that it is British law. Many people have lined up to correct Mr Nuttall’s understanding of law within the United Kingdom, while some people (and they are by far in the minority) have tried to argue that he is correct. So, is there only one law in the UK?
I will assume for these purposes that Mr Nuttall was referring to the UK and that he was not ignoring the existence of Northern Ireland (Britain referring only to England, Scotland and Wales – the UK’s full title being the United Kingdom of Great Britain and Northern Ireland). The United Kingdom is divided into three separate legal jurisdictions: those of England and Wales, Northern Ireland and Scotland. So far as the law is concerned each jurisdiction might as well be a foreign country. Lawyers qualified in one jurisdiction are not permitted to practise law in any of the others (with a few minor exceptions, which I shall return to later) without first undergoing a process of re-qualification. The legal systems are very different from one another (and the substantive laws are completely different in many key areas of law, such as the criminal law).
The separate nature of Scots law has existed throughout the lifetime of the political union between the Kingdoms of England and Scotland. The treaties and Acts that gave effect to this political union preserved the separate Scottish legal system. The systems have developed independently since the beginning of the political union (but have, at various times, influenced each other). The historical development of Scots has been very different from that south of the border. There has been a big influence from continental “civil” law (“civil” as in the legal system, not to be confused with “civil” as all the laws of the land that are not criminal – yes, it’s a trifle confusing!) including French and Roman Law (indeed, it is still a requirement to have studied the roman law on property and obligations in order to be called to the Bar in Scotland).
There are areas where the law overlaps to a great extent and these could be classed as “British Law”, but I suggest that this is the wrong classification (for reasons I shall come onto shortly). Some examples of these include Road Traffic laws (although there are some divergences, particularly around the drink-drive limit); anti-terror laws, immigration laws, employment laws and company law (although, there are some differences here as well). An example exception to the general rule that a lawyer qualified in one jurisdiction cannot practise law in another without re-qualifying would be in the case of employment laws. A Scottish Solicitor could move to London (which, of course, is in England) and practise employment law from there within the Employment Tribunal and the Employment Appeal Tribunal without the need to re-qualify in England and Wales. That is because the substantive law is the same and the Tribunals (at present) have UK-wide jurisdiction (and so lawyers from all of the three UK jurisdictions have ‘rights of audience’).
The employment law example doesn’t hold true for all of the examples given above of areas where the substantive law is the same. Take road traffic laws and anti-terror laws as an example; these are matters of substantive criminal law and are dealt with in the criminal courts. A Scottish Solicitor, couldn’t represent someone in a Magistrates’ Court charged with a driving offence, or in the Crown Court charged with an anti-terror offence. Equally, an English, Welsh or Northern Irish Solicitor couldn’t appear in the Sheriff Court or Justice of the Peace Court in Scotland to represent someone being prosecuted for a road traffic offence. There is a lack of ‘rights of audience’.
Where a lawyer in one jurisdiction represents a client from another in a tribunal with a UK-wide jurisdiction, it can be problematic when matters come before the courts on appeal. An example of this can be seen in a tax case from 2015. The case in question is Taylor Clark Leisure Ltd v The Commissioners for Her Majesty’s Revenue and Customs. In this case the Appellant, Taylor Clark Leisure Ltd (a company registered in Scotland), had instructed Philippa Whipple QC to represent them in the UK Tax Tribunals in connection with a VAT appeal (along with Philip Simpson QC, a member of the Scottish Bar); they were now looking to appeal to the Court of Session in Scotland. Ms Whipple is a Barrister in England and Wales and thus had the right to appear for the Scottish Company in the UK Tax tribunals. The Court of Session held, unanimously, that she had no right to appear in the Court of Session.
The 2015 case above highlights the position that the three legal jurisdictions in the UK are, for all intents and purposes, foreign countries. Even where a matter is of UK-wide application, the different jurisdictions can have a significant impact upon the course of litigation. It is not possible for an English lawyer who has not either been admitted to the public office of Advocate, nor as a Solicitor in Scotland (and then been granted extended rights of audience) to appear in the Court of Session. That would hold true of other courts in Scotland as well.
It is probably fair to compare the situation to that of EU law, where you have 28 different member states (and many more jurisdictions – the UK is not the only member state with more than one jurisdiction) with different legal systems that share some of the same laws. Although, that comparison isn’t exactly in point because of the Establishment Directive (which doesn’t apply to inter-member state jurisdictions); but that’s not for here!
What of the UK Supreme Court? Doesn’t it have UK-wide jurisdiction? Yes, it does. However, it is not straight forward, certainly insofar as Scotland is concerned (as a Scottish lawyer I couldn’t possibly begin to speak about the situation in England and Wales or Northern Ireland). Before we go any further, it might be useful if I explain (briefly) the concept of precedent. Precedent, in law, means that where a court that is higher than the court considering a matter has made a decision on the same point of law, the decision of the higher court is binding upon the lower court (unless it is possible for the lower court to distinguish the case before it from the one in the higher court).
Applying this rule strictly, the UK Supreme Court is higher than the Court of Session and therefore, logically, all decisions of the UK Supreme Court on the same point of law are binding on the Court of Session. That’s not quite how it works; only decisions of the UK Supreme Court that arise out of a Scottish case are binding on the Court of Session (or any other court in Scotland); decisions from the UK Supreme Court arising out of cases from England and Wales or Northern Ireland are persuasive (in the same way that a decision of the Supreme Court of Canada may be considered persuasive authority in a Scottish court). For practical reasons, the Scottish courts will generally follow a decision from the UK Supreme Court on a point of law that arises from a UK-wide law which has come from a case from England and Wales or Northern Ireland. After all, if the UK Supreme Court has decided the law on a particular point in one way in one case, it is unlikely that it will decide it a different way in another case (although it is possible). That pragmatic view does not alter the fact that a UK Supreme Court authority from an English (including Welsh) or Northern Irish case is merely persuasive in a Scottish court.
Then, there are criminal law matters. The highest appellate court for criminal matters in Scotland is the High Court of Justiciary when sitting as an appellate court. There is no right of appeal to the UK Supreme Court. The UK Supreme Court has gained jurisdiction in respect of Scottish criminal appeals in very limited circumstances as a result of devolution. An accused person who complains that their human rights have been infringed can appeal to the UK Supreme Court, but only on that ground. The UK Supreme Court does not, however, have the power to quash a conviction or to alter a sentence in a Scottish criminal appeal; it must remit the case back to the High Court of Justiciary to apply its decision to that case. Nor does it have the right to interpret criminal offences enacted by the Scottish Parliament, nor consider common law offences in Scotland; except upon the limited grounds that there has been an infringement of EU law or the European Convention on Human Rights.
In short, it is, in my submission, incorrect to say that there is one law applicable across the whole of the UK called British law. There are three separate laws across the UK (and a fourth developing as a result of devolution to Wales) and the laws in many key areas are very different (an English criminal lawyer would probably look at you funny if you mentioned hamesuken to them). It is more accurate to say that there are three legal systems which share some of the same laws.