The United Kingdom is a monarchy: the head of state is an unelected position, occupied by virtue of birth. The British monarch has been a mostly ceremonial figure since the mid-17th century, but governmental powers are exercised in its name.
The United Kingdom has no single written constitution setting forth the rights of citizens or limitations on government. Instead of codifying these rights and limitations in a single document, the “constitution” of the United Kingdom is found in statutes, conventions, judicial decisions, and treaties. The cornerstone of the constitutional order is parliamentary sovereignty, and acts of the legislature supersede judge-made law as developed through court decisions.
England and Wales have a unified common-law court system; Northern Ireland’s judicial system is similar to the systems in England and Wales. Scotland has a hybrid legal system with elements of both the common and civil law systems. This profile highlights some of these different systems but focuses mainly on the structure in England and Wales.
Sources of law
Foundational Acts of Parliament
Some examples include:
- Magna Carta (1215): set forth the primacy of the rule of law and governing with the consent of the governed.
- Bill of Rights (1689): imposed limitations on the powers of the monarch.
- Acts of Devolution (1998): created a devolved system of government by establishing the Scottish Parliament in Edinburgh, and the assemblies in Cardiff (Wales) and Belfast (Northern Ireland).
Unwritten Constitutional Conventions
Without a single written constitution, political customs known as “conventions” have special significance. These are entirely unwritten rules of constitutional practice that are vital to political and legal functions.
For example: the monarch appoints the Prime Minister as the person most likely to command the confidence of the House of Commons, and the monarch acts on ministerial advice. Another convention is that the Prime Minister sits in the House of Commons.
One advantage of these unwritten norms is no need for an amendments process. Parliament, through this flexibility, removed hereditary peers from the House of Lords, and limited its own power by passing the Human Rights Act and devolving some powers to Wales, Northern Ireland, and Scotland.
Adherence to the prior decisions of other courts is a defining feature of a common law system, which originated in the practice of English courts. Decisions are typically published.
The United Kingdom is also subject to certain international legal regimes. For example, when Parliament passed the Human Rights Act in 1998, it incorporated the rights and obligations set forth in the European Convention on Human Rights (ECHR) into domestic law.
Impact of Brexit
On June 23, 2016, the United Kingdom voted to leave the European Union, beginning a process nicknamed “Brexit.” On January 1, 2021, the UK officially left the EU; however, the precise state of the relationship between the UK and the EU is only just beginning to take shape.
Before Brexit, the UK Supreme Court was required to refer to the decisions of EU courts and incorporate such judgments.
In the European Union (Withdrawal) Act 2018, Parliament authorized transposing already existing, directly applicable EU law into UK law to create a new category called “retained EU law.” Absent any centralized register of which EU treaty rights were incorporated into UK law, Parliament identified characteristics that would allow any law to be retained through case-by-case evaluation.
The process for appointing justices to the Supreme Court is facilitated by a selection commission, convened by the Lord Chancellor, the head of the judiciary. The statute creating the Supreme Court outlines the membership of the commission: it includes members from the judicial appointments commissions in the several nations (England and Wales, Northern Ireland, and Scotland), and is chaired by a senior judge from anywhere in the UK, except that the chair cannot be a justice of the Supreme Court. The commission must also include one lay person.
To be eligible for appointment to the Supreme Court, candidates must have held high judicial office for at least two years or been a qualifying practitioner for fifteen years. The Commission consults senior judges and politicians and short-lists candidates based on merit. By act of Parliament, the commission may prioritize increasing the diversity of the bench, if needing to choose between two candidates with equal merit.
After an interview process, the Lord Chancellor can accept or reject the Commission’s recommendation or ask the Commission to reconsider. If the candidate is accepted, their name is sent to the Prime Minister, who forwards the recommendation to the monarch; after formal approval, the Prime Minister makes the appointment.
In England and Wales, and for some UK-wide tribunals, the Judicial Appointments Commission (JAC) selects candidates for judicial office. The JAC does not participate in selecting justices for the Supreme Court, but the Chair of the JAC serves on the supreme court selection commission.
The JAC was established by the Constitutional Reform Act 2005 in an effort to make judicial appointments more merit-based, and to increase the independence of the judiciary from the other branches.
The JAC has three statutory mandates: to select candidates solely on merit; to select only people of good character; and to encourage diversity in the judiciary. By law, the chair must be a layperson, and although judges sit on the JAC, they are not the majority. Appointments are made by open competition, and interested candidates may nominate themselves.
In 2021, Parliament set the mandatory retirement age for judges at 75. For nearly thirty years, the retirement age was set at 70, but was raised after studies suggested raising the age would allow for an increasingly diverse judiciary.
Judicial salaries are insulated from the executive and Parliament: they are set by an independent body and paid from a fund that does not require annual approval.
The UK Supreme Court
The UK Supreme Court is the final court of appeal in the United Kingdom. The Supreme Court hears civil cases from the entire United Kingdom, and criminal cases from England, Wales, and Northern Ireland. Scottish criminal appeals are heard by the High Court of Justiciary, Scotland’s supreme criminal court; the Supreme Court’s jurisdiction is limited over Scottish criminal cases.
The Supreme Court has existed only since 2009. It was created after devolution to Scotland, Wales, and Northern Ireland was underway and after the ECHR was incorporated into UK domestic law. Because it was created by act of Parliament and its precise characteristics are not provided for in any constitutional document, Parliament may continue to amend the Court’s jurisdiction and composition in the future.
Like the US Supreme Court, the UK Supreme Court controls its own docket. It grants permission for appeals (similar to the certiorari process) where the case “raises an arguable point of law of general public importance.” Unlike the US Supreme Court, the UK Court cannot summarily overrule the judgment of the court below, nor may it dismiss a case as improvidently granted. To comply with EU law, the UK Supreme Court gives reasons when it denies permission to appeal (whereas the US Supreme Court most often denies cert without further explanation).
The Court Structure of England and Wales
The Supreme Court is at the top of the UK judicial system. These are the lower courts of England and Wales.
The Court of Appeal
The High Court
- Within the Queen’s Bench, the biggest of the three divisions, are several specialist courts, including: Admiralty, Commercial, Mercantile, Technology & Construction, and Administrative Courts.
- The Chancery Division has three specialist courts: the Companies Court, the Patents Court, and the Bankruptcy Court.
- The Family Division has the smallest range of the specialist courts. This division handles probate matters and family law questions, including guardianship, adoption, and wardship issues.
However, for the most serious offenses (for example, murder, manslaughter, rape, robbery) known as “indictable-only,” the magistrates’ court decides questions of bail and reporting restrictions. These cases are then sent to the Crown Court for a full trial with judge and jury.