Chapter 1 – The nature of the LAW in the UK Flashcards
1.1 Intro
The law of a territory (country) comprises the many rules by which that country expects its citizens to behave. Rules are made formally by institutions which are recognised as having the authority to make law.
Part of UK law is revenue law (law of tax) and by its nature tax is law. Although revenue law is part of public law of the UK, the application of revenue law depends on the existence of some transaction or state of affairs subsisting with an area of private law.
1.2 Legal Jurisdictions in the UK
The UK has three separate legal systems. For legal purposes there is no distinct law of the UK because there is no distinct sole system operative in the UK. The three legal jurisdictions and systems are:
• England and Wales – in which English law operates
• Scotland forms a separate system where Scots law operates
• Northern Ireland forms a separate system where Northern Ireland law operates. This is similar to English law, for the ease of reference the term English law should include the legal system of England, Wales and Northern Ireland, except where otherwise stated
There are some laws different in each jurisdiction and systems and some laws which are the same. Moreover, the systems of law that operate in the three legal jurisdictions share the same nature in that they are common law systems rather than civil law systems. This means that in addition to Parliament, the courts provide many of the overarching principles of law in the UK.
The Isle of Man and the Channel Islands are not part of the UK, they have their own legal systems and legislatures to determine their legal and fiscal policies. They are crown Dependencies of the UK and the UK is responsible for their foreign policy and defence, they also share a common nationality law.
1.3 English Law: Common Law
Before 1066 (Norman conquest) there was no unified system of law for the UK. Local areas were largely autonomous and had their own systems of courts and local law. From 1066, the English kings began to introduce strong central government from England and common law emerged. Common law is a system of justice common to the whole country. The King appointed commissioners to travel the country and deal with affairs, some had judicial powers and were the first royal judges. The best local laws were reported back to the King who with his council took on the judicial function by applying these. English law was extended to Wales when they were incorporated politically into England as a principality of the crown. As the judicial functions of the Kings council were delegated to the courts, the judges developed the law further. It was not until the 19th century that law made by parliament (legislation) became more voluminous than the law made by judges (case law) and became the primary source of law in the UK. The law administered by the common law courts of England depended on a system of writs (commands by the Lord Chancellor). Originally there was no limit to the different types of writs. In 1258 the Provisions of Oxford (constitutional reforms) forbade the creation of new writs. This restricted the development of common law because a claimant (plaintiff) had to fit their case into one of the existing categories of writ. This led to injustice and in order to overcome this, a new parallel body of law grew up, called Equity.
1.4 English Law: Equity
Claimants unable to obtain resolutions for their grievances in common law courts petitioned to the King to obtain relief by royal prerogative. The King could grant their petitions due to royal prerogative. The petitions came before the King in Council, in practice they were referred to the Principal civil minster, the Lord Chancellor. The concern was to establish the truth of the matter and then impose a joint solution.
The Lord Chancellor was concerned was concerned to do with without undue regard to the technicalities and procedural points that were uncharacteristic of the common law. The Lord Chancellor enforced authority by forcing parties to attend the Court of Chancery for interrogation. Penalty for not complying could be imprisonment or confiscation of property. Thus, a parallel of rules developed in England and Wales alongside common law, known as Equity. Royal power made this law effective.
1.5 Interaction of Common Law and Equity
The system of Equity developed and administered by the court of chancery was not completely different to common law, this method added and improved common law. The interaction of the two caused the development of new rights and the provision of better remedies to solving legal disputes. Equity recognised and protected new rights for which common law gave no safeguards.
Equity developed better remedies for legal disputes brought by claimants against defendants. The standard common law remedy for a successful claimant is the award of monetary compensation (called damages) for their loss. Equity is able to give alternative remedies; it can order the defendant to honour the agreement (specific performance) or abstain from wrongdoing (injunction). The equitable remedies were and still are given only at a court’s discretion.
The rule developed that where Equity and Common Law conflict, Equity prevails. This rule was introduced in England, Wales and Northern Ireland but not Scotland, as they preserved its own distinct legal system.
Until 1875, common law and Equity was dealt in separate courts (common law courts and the Court of Chancery). In 1875 the jurisdictions in England and Wales were transferred to the Supreme Court of Judicature (renamed Senior Courts by CRA 2005). Then it became possible to bring an action and seek remedies at common law and Equity at the same time in the same court. However, the rules of common law and Equity were not fused, and they remain separate.
The major tax impact of the two regards the ownership of property. Ownership in common law is different from ownership in Equity. Many tax rules are framed in terms of ownership in Equity and not common law.
1.6 The Development of Scots Law
Scots law belongs neither to English common law nor the Roman law basis of Western European systems, it is characterised as a mixed system with influences from both. One difference is that there has never been a distinction between common law and Equity in Scotland. The historical development of Scots law can be divided into three phases:
The medieval phase of development to 1532
The creative phases of development 1532 – 1800, contemporary with the Renaissance
The modern phase since 1800, in which it has developed as a system within the UK
Medieval phase – reflected Anglo-Norman influences. The law was the Kings law and was administered by sheriffs and justiciaries. Certain law branches were the prerogative of ecclesiastical courts (such as law relating to succession). Statute law was the products of the old Parliament of Scotland. Main legacy from the period was the distinctive system of land law. The legal system depended on the strength and influence of the royal government; the weakness of the Stuarts reflected the decline of legal institutions in Scotland.
The classical Age – dated to 1532 when the court of Session was established by James V as the Supreme Court with a professional judiciary. Western Europe influenced the Scots law system, Scottish lawyers studied in Europe and brought back ideas. The influence of Roman law from Europe survived both the union of crowns with England in 1603 and union of the old Parliament of Scotland with the Parliament of England in Westminster in 1707. The separate legal system of Scotland was preserved by the Act of Union in 1707. Phase ended when Napoleonic wars cut off cultural access to Europe.
Modern Phase – English law became the biggest influence. The House of Lords acted as the supreme court for the UK and statute law become the prime source of new law. Preserving the Roman law influence of Scots law was a priority for the judges in the Court of Session, this was reflected in the existence of separate permanent law commissions for Scotland and England to deal with continuing reform and modernisation of the law. Since devolution in 1999, Scottish Parliament has had the power to make laws, including taxes on land and buildings, transaction tax, landfill tax and air passenger tax. Income tax not devolved, can set limits and rates of income tax applicable to non-savings and dividend income.
1.7 A Classification of the Law in the UK
Legal rules can be divided in many ways, they show differences in purpose, form and origin, remedies and enforcement. However, it is possible to classify the divisions into different types of law. The distinction is between substantive law (public/private law) and adjective law.
Substantive law is the division of law that contains what are commonly understood to be the rules of law. Public law contains the areas of law that define the constitution and functions of the Crown, Parliament and judiciary, and govern the legal relationship between the Crown and subject (the citizen). Private law is concerned with the legal relationships between private persons.
Adjective law deals with the law relating to legal procedure, for example, law of evidence, civil procedure, criminal procedure and arbitration.
The same divisions apply to Scots law and Northern Ireland law.
1.8 The Sources of Law in the UK
There are 3 main sources of law in each of the three legal jurisdictions in the UK: legislation (written law), case law (made by judges) and the law of the European Union. Custom is a source of general law but not of tax law.
In the context of revenue law there are also a number of extra-legal sources such as HMRC, manuals, statement of practice, concessions, interpretation and briefs.
