E Pluribus Unus: The UK Mix of Plurality and Uniformity of Laws
ABSTRACT The paper discusses legal pluralism and Constitutional unity in the context of devolution of legislative powers in the United Kingdom and the new UK Supreme Court.
Electronic copy available at: http://ssrn.com/abstract=1423944
‘E PLURIBUS UNUS: THE UK MIX OF PLURALITY AND
UNIFORMITY OF LAWS’
THEMATIC CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW
“THE IMPACT OF UNIFORM LAW ON NATIONAL LAW. LIMITS AND POSSIBILITIES”.
MEXICO CITY, NOVEMBER 13 TO 15, 2008.
THEME: NATIONAL UNIFICATION OF LAWS IN FEDERAL SYSTEMS
UK National Report
The United Kingdom is a unitary, not federal state. The UK experience is,
therefore, not that of a federal state. Indeed, a UK National Report on the present theme
would have much less to contribute only a few years ago.
However, there are today four relatively distinct separate components of the UK,
England, Wales, Scotland and Northern Ireland, with devolved legislative powers to the
Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, while the
UK Parliament at Westminster in London retains its overall sovereignty over the whole
of the UK, and continues to legislate directly for England on all matters, and for Wales,
Scotland and Northern Ireland on reserved matters. This devolution of legislative power
is sui generis, being neither a purely legislative delegation of secondary rule-making
power by the Westminster Parliament, as, for example, in the case of local authority by-
laws and regulations, nor a purely independent primary law making power granted under
a common constitution, as in the case of US State laws, except in relation to certain
sovereign powers of the Scottish parliament. Additionally, the centuries-old judicial
plurality in the UK, in which England and Wales, as one common jurisdiction, and
Scotland and (to a lesser extent) Northern Ireland, traditionally enjoyed independent and
separate systems of administration of justice and common law sources, a plurality in itself
1 Ptycheion Nomikis (Athens), PhD (Cantab.), Advocate (Greece), Reader in Law, University of East
Anglia, United Kingdom; Fernand Braudel Senior Fellow, European University Institute (Autumn 2008)
Electronic copy available at: http://ssrn.com/abstract=1423944
unique and fascinating, was recently substantially reshaped in a major Constitutional
reform of the judiciary in the UK. Therefore, the current UK experience, although not
that of a federal state, may still be valuable from a comparative perspective, especially in
the light of the absence of a detailed written Constitution and the special nature of
judicial common law making in the UK component parts. An important early caveat must
be entered: The devolution of legislative powers and the Constitutional reforms of the
judiciary are very recent developments and still not fully operative and it is too early to
know what the effect will be of the diverse new institutions and legal regimes, on legal
uniformity in the UK.
This paper will look at two distinct forms of plurality of legal sources in the UK2:
Legislative plurality, recently reshaped by the devolution reforms, and
Judicial plurality in common law making, also recently reshaped by the
Constitutional reform of the UK judiciary.
The paper will address the unification and harmonization processes and influences
underpinning UK law as a whole:
The multi-layered Constitutional framework
The effect of European Courts and Institutions, the uniform development of the
common law by UK courts under the stare decisis doctrine, and the transnational
development of English common law.
The role of legal doctrine and legal culture.
The role of the Law Commissions, entrusted with law review and legal reform in
the UK’s constituent parts.
This report has not followed the general reporters’ questionnaire as closely as its
author might have wished to, because the questionnaire does not fit the emerging
situation in the UK as well as it fits other, more truly federal systems.
II CENTRAL DISTRIBUTION AND EXERCISE OF LAWMAKING POWER
A LEGISLATIVE PLURALITY IN THE UK-DEVOLUTION OF LEGISLATIVE POWER
A significant development in the UK in the last years of the 20th century has been
political, economic and legal devolution, first of Scotland, and then of Wales and
2 Constraints of time and space prevent me from discussing in this paper at any length the allocation and
effect of secondary or delegated legislative powers in different parts of the UK.
Northern Ireland. The debate for further devolution of powers within the English counties
continues but with no concrete results of any importance to date3.
Primary law making for the whole of the UK has been in the hands of the
Westminster Parliament in London (hereafter the UK Parliament), since the union of
England and Scotland at the beginning of the 18th century, with the Union with Scotland
Act 1706 and the Union with England Act 17074. The UK Parliament is constitutionally
composed as the Monarch, the House of Lords and the House of Commons. The Monarch
remains the UK Head of State after the devolution, and appoints the UK Prime Minister,
who selects his cabinet with a free hand, subject, of course, to the consent of Parliament.
The House of Lords remains an unelected body, despite recent major reforms, and the
way its members should be selected is still hotly debated in the evolution of this reform
process. Suffice to note here that the House of Lords functions entirely as UK legislative
chamber and its members do not represent regions in the way that the US Senate
represents States or the German Bundesrat represents German Laender. The House of
Commons members are elected in UK-wide general elections, representing their
individual constituencies that are dotted all over the UK, without any regional deviations
of any kind. Both members of the House of Lords and the House of Commons are not
representing regions and are not in any way connected with devolved bodies, with the
exception of House of Commons members from Northern Ireland that can be,
simultaneously, members of the Northern Ireland Assembly or, indeed, the Northern
For legislation to be properly enacted, all three branches of the UK Parliament,
i.e. the Monarch, the House of Lords and the House of Commons must assent, in reverse
order. The House of Commons decides first, the House of Lords must then assent and the
Monarch’s assent is the last one before the Act of Parliament can be promulgated.
However, after a second rejection of a Bill by the House of Lords, following a
complicated procedure, the House of Commons can proceed without the consent of the
Lords, under the terms of the Parliament Acts of 1911 and 1949. The second of these
Acts, further curtailed the power of the Lords by reducing the time that they could delay
bills voted by the House of Commons to a maximum time of one year.
Before the devolution process which is analyzed below came into effect, the UK
Parliament would legislate in all areas of law for the whole of the UK, England, Wales,
Scotland and Northern Ireland. Although the separateness of the Scottish legal system
from English common law, and the separate and largely independent judicial system in
3 The current debate about devolution for English regions cannot be entered into here. It is often linked to
the so-called ‘East Lothian’ question, i.e. Scottish members of the Westminster Parliament having a vote on
laws passed by that Parliament exclusively for England. There are, however, eight English Regional
Assemblies, besides London, but with no primary legislative powers, described on the official UK
government site as follows: ‘Voluntary, multi-party and inclusive Regional Assemblies have been
established in each of the eight English regions outside London, building on the partnership working
arrangements that already existed in some regions between local authorities and regional partners.
Assemblies operate within the same boundaries of the Government Offices in the regions and the RDAs.
Their constitutions vary from region to region’. See
http://www.communities.gov.uk/citiesandregions/regional/regionalassemblies/ (last visited 4.9.2008)
4 [1706 c. 11.]; [1707 c. 7(S).]
Scotland, were preserved after the union in the 18th century, all new legislation for
Scotland before the recent devolution had to pass through the UK Parliament. The
separateness of Scottish (or Scots) law was, however, always acknowledged in that
legislation for Scotland was passed separately than legislation for England and Wales,
often with different provisions of a procedural and technical nature to fit it with the
special features of Scots law and often with different commencement dates5. This
practice is likely to continue after the devolution with regard to all legislative measures
for Scotland that have been reserved for the UK Parliament (see below).
Primary law making for England and Wales remains in the hands of the UK
Parliament, for the time being. As far as Wales is concerned, the Welsh devolution
process, analyzed below, may one day in the future lead to greater law-making autonomy
for Wales, but Wales remains and is likely to remain firmly integrated into the judicial
structure of the English legal system.
Northern Ireland is a special case. Several attempts at devolution of law-making
powers to Belfast were made and failed during the province’s turbulent political history
in the second half of the 20th century, culminating in the devolution process actually in
progress and described below. And unlike Wales, Northern Ireland always enjoyed a
separate court system. But, like in Wales, the common law in Northern Ireland has
always being essentially English in sources and style, with limited exceptions often
imposed by the special political problems facing the province.
1 THE SCOTTISH PARLIAMENT
Most important in terms of actual significance and impact in the UK has been the
Scottish devolution, with the creation of the new Scottish Parliament, which now sits in
its splendid new building in Scotland’s elegant capital City, Edinburgh. The main
legislation is contained in the Scotland Act of 1998.
This Act gives to the Scottish Parliament sovereign powers to legislate in
Scotland, and confer or remove functions exercisable in Scotland, except in areas
reserved for legislation exclusively by the Westminster Parliament6. But the ambit of
these exceptions can be modified, increased or decreased, by the UK executive, acting as
Her Majesty by Order of Council, under a special provision in the Act7. Importantly, the
5 As an example, the Human Rights Act 1998 came immediately into effect in Scotland but only two years
later, i.e. in 2000, in England and Wales.
6 Section 29 of the Scotland Act 1998 entitled ‘Legislative competence’, provides the following on the
legislative competence of the new Scottish Parliament (1) An Act of the Scottish Parliament is not law so
far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as any of the following paragraphs apply—
(a) it would form part of the law of a country or territory other than Scotland, or confer or
remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or with Community law,
(e) it would remove the Lord Advocate from his position as head of the systems of
criminal prosecution and investigation of deaths in Scotland.
7 Section 30 of the same Act entitled ‘Legislative competence: supplementary’ provides:
(1) Schedule 5 (which defines reserved matters) shall have effect.
independence of Scots Private law and Scots Criminal law is preserved and enhanced by
the Scotland Act, as the Scottish Parliament is given powers over it even in areas of
matters reserved for Westminster, unless the rule in question is special to a reserved
Matters of Constitutional importance reserved for Westminster include freedom
of trade in the UK guaranteed by the Union with Scotland Act 1706 and of the Union
with England Act 17079; certain provisions of the European Communities Act 197210;
the provisions of the Local Government, Planning and Land Act 1980 on designation of
enterprise zones11; the provisions of the Social Security Administration Act 1992 on rent
rebate and rent allowance subsidy and council tax benefit12; the Human Rights Act 1998,
which implemented in the UK the European Convention of Human Rights, which first
came into force in Scotland13.
Other reserved matters, on which the Scottish Parliament has no legislative
powers, are defined by Schedule 5 of the Scotland Act. These include, first, several
aspects of the UK constitution, namely, the Crown, including succession to the Crown
and a regency, the Union of the Kingdoms of Scotland and England, the Parliament of the
United Kingdom, the continued existence of the High Court of Justiciary as a criminal
court of first instance in Scotland and of appeal, and the continued existence of the Court
of Session as a civil court of first instance and of appeal. Even the determination of the
remuneration of judges14 of the Court of Session, sheriffs principal and sheriffs, members
of the Lands Tribunal for Scotland, and the Chairman of the Scottish Land Court is a
reserved matter. This shows that, despite the traditional independence of the Scottish
legal system recognized in the devolution legislation, all matters relating to the tenure and
remuneration of judges, important for judicial independence from party politics, are
reserved as matters of UK Constitutional importance. Significantly, however, Her
Majesty’s prerogative and other executive functions, functions exercisable by any person
acting on behalf of the Crown, or any office in the Scottish Administration are not
(2) Her Majesty may by Order in Council make any modifications of Schedule 4 or 5
which She considers necessary or expedient.
(3) Her Majesty may by Order in Council specify functions which are to be treated, for
such purposes of this Act as may be specified, as being, or as not being, functions which
are exercisable in or as regards Scotland.
(4) An Order in Council under this section may also make such modifications of
(a) any enactment or prerogative instrument (including any enactment comprised in or
made under this Act), or
(b) any other instrument or document,
— as Her Majesty considers necessary or expedient in connection with other provision
made by the Order.
8 Or the subject-matter of the rule is interest on sums due in respect of taxes or excise duties and refunds of
such taxes or duties, or the obligations, in relation to occupational or personal pension schemes, of the
trustees or managers.
9 Articles 4 and 6 of the Union with Scotland Act 1706 [1706 c. 11.] and the Union with England Act 1707
[1707 c. 7(S).]
10 [1972 c. 68.]—Section 1 and Schedule 1, Section 2, Section 3(1) and (2), Section 11(2)
11 Paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 [1980 c. 65.]
12 Sections 140A to 140G [1992 c. 5.]
13 [1998 c. 42.]
14Head L, Schedule 5