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
parts of the United Kingdom. Whereas both Wales and Northern Ireland have been
granted significant legislative autonomy under the devolution programme of the present
Government, Wales is integrated into English common law and the English judicial
system, and Northern Ireland, although with a separate judicial system as explained
below, is also a jurisdiction where English law applies.
1 England and Wales, Northern Ireland
In the birthplace of the common law, the Royal Courts of Justice in London have
supervised over the centuries a tightly centralized system of administration of justice in
England and Wales. Currently still known as the Supreme Court of Judicature for
England and Wales, there is one general court of first instance for civil, commercial and
chancery matters, the High Court, one Criminal Court, and the Court of Appeal. But
while the courts in Scotland are not affected, after the creation of the new UK Supreme
Court, the Supreme Court of England and Wales will be renamed the ‘Senior Courts of
England and Wales’51. This change of name may be explained as based on the need to
avoid confusion but can also be seen as removing a certain historical symbolism, and,
combined with the statutory requirement that the justices of the new UK Supreme Court
must between them have knowledge of, and experience of practice in, the law of each
part of the United Kingdom, as establishing formal parity between the three legal systems
of the country.
In Northern Ireland, the existing ‘Supreme Court of Judicature of Northern
Ireland’ will be renamed, when the new UK Supreme Court comes into existence, to
“Court of Judicature of Northern Ireland’52.
Scotland traditionally possessed its own ‘mixed’ legal system, of a civil law and
common law origin, distinct legal institutions and separate courts. The Court of Session is
Scotland's supreme court in civil and criminal matters. It is both a court of first instance
and a court of appeal, with a further appeal to the House of Lords, and, from October
2009, the new UK Supreme Court in civil matters only. Its origins can be traced to the
early sixteenth century. The court presently consists of judges who are designated
‘Senators of the College of Justice’ or ‘Lords of Council and Session’. The court is
headed by the Lord President, the second in rank being the Lord Justice Clerk. The Court
of Session is divided into the Outer House and the Inner House. The Outer House
consists of 24 Lords Ordinary sitting alone or, in certain cases, with a civil jury. They are
a first instance court on civil matters, including cases based on delict (tort) and contract,
commercial cases and judicial review of administrative action. The Inner House the
appeal court, but it also has a small range of first instance business. It is divided into two
Divisions of equal authority, and presided over by the Lord President and the Lord
Justice Clerk respectively. Judges are appointed to the Divisions by the UK Secretary of
51 Section 59 of the Constitutional Reform Act 2005.
52 Section 59
State for Scotland, not the devolved Scottish executive, after consulting the Lord
President and Lord Justice Clerk. Each division is made up of five Judges, and the
quorum is three. The two Divisions of the Inner House hear cases on appeal from the
Outer House, the Sheriff Court and certain tribunals and other bodies53.
The High Court of Justiciary hears criminal appeals and serious criminal cases.
Trials are held before a judge and jury. The principal judge of this Court is the Lord
Justice-General. The Court is based in Edinburgh, but trials can be held in towns and
cities all over Scotland. There is no further appeal to the House of Lords, or to the new
UK Supreme Court, in criminal cases, meaning that Scottish Criminal law is not subject
to a central UK overview.
Finally, the first instance courts of general jurisdiction in Scotland, and civil
courts of first appeal, are the Sheriff Courts. For purposes of jurisdiction, Scotland is split
into six regions called Sheriffdoms. Each Sheriffdom has a Sheriff Principal who
manages the Sheriff courts in his area and hears appeals in civil matters. Within the six
Sheriffdoms there are a total of forty-nine Sheriff Courts, with a single judge conducting
trials, who is called a Sheriff. Sheriff Courts are trial courts for both Civil and Criminal
D LEGAL EDUCATION AND TRAINING
It is not possible to study Scots law in a Law School anywhere in England, Wales or
Northern Ireland. But in Scotland, at least one Law School, at the University of Dundee,
offers joint honours degrees in both Scots and English law, and this does attract a small
number of students from England and Wales. It would be fairly accurate to state that in
the United Kingdom there is no exchange of law students between England and Scotland.
The training and access to the legal profession is clearly separate in Scotland and in the
rest of the United Kingdom. But legal practitioners in the two parts of the UK, despite
their different professional titles (Advocates in Scotland, Barristers everywhere else),
education, training and qualification credentials, are fairly mobile across the border.
Significantly, a number of very distinguished House of Lords judges in the recent history
of the UK, very influential in the development of English law, have been Scottish
Advocates-QCs, sitting with their English, Welsh and Northern Irish brethrens,
Barristers-QCs, with great ease. This does, of course, imply that the reality on the
ground, in terms of the judicial development of core areas of the law across the UK, with
the exception of purely domestic Criminal law, is much more one of uniformity rather
than separateness, although the tradition wants Scotland to be a separate jurisdiction with
no historical or cultural ties with English common law.
E OFFICIALS AND OTHER ENFORCEMENT AGENCIES54
53The decisions of the Court of Session are reported in Session Cases (cited as 1999 S.C. 100), Scots Law
Times (cited as 1999 SLT 100) and Scottish Civil Law Reports (cited as 1999 SCLR 100).
54 On the appointment of judges see supra.
The UK has only one, UK civil service, run from London. Enforcement
authorities (e.g. police) are not run by central government (exception is the London
Metropolitan Police), nor by regional executives, but by local authorities (e.g.
Cambridgeshire, Strathclyde), but they all have, of course, a duty to apply UK law. There
is no equivalent to the US Federal systems of civil servants and enforcement agencies.
Armed forces are national, and there no local auxiliary military bodies (such as the US
National Guards), and the Territorial Army is a national UK body.
At a time when the devolution process and historic Constitutional reforms of the
entire UK system of justice at the highest level have not yet been fully implemented, it is
hard to predict how the new Constitutional and legislative rules, central mechanisms and
structures put in place to preserve the separateness of the UK’s legal systems, but also
safeguard the basic unity of UK state law, which have been analyzed in this paper, will
perform. More political uncertainty lurks in the not so distant horizon with the ruling
Scottish National Party’s pledge in Scotland to hold a referendum on Scottish complete
independence from the United Kingdom. However, and until such a dramatic rapture
takes place, it can be safely assumed that the long tradition of centralized legal power and
delivery of justice initiated in the British Isles by William the Conqueror, coupled with an
equally long common legal culture of all legal professions in the UK will not easily
change, despite Constitutional and political reforms. Despite the recently
institutionalized, with the devolution processes, plurality of formal sources of legislative
and judge-made law in the different parts of the UK, the decisive role of judges, more
empowered than judges in the Civil law tradition, and more independent from party and
community politics than judges in the US and some other jurisdictions, at the point of
delivery of legal solutions, is likely to keep the UK ship steady in the potentially
turbulent seas of devolved legal development lying ahead. Judicial selection strictly on
merit and a common legal culture uniting lawyers in al parts of the UK will shield legal
evolution from any atavistic fragmentation on grounds of regional nationalism, as it has
always done, even before the Acts of Union in the 18th century. Additionally, large
chunks of the law are out of bounds for devolved legislators and judges, including the
basic core of Fundamental Rights, European law, Public law and the entire Private law,
commercial and civil, Scottish Criminal law being the only historical regional preserve
that will continue to escape any check of uniformity55.
The challenge for the new UK Supreme Court in deciding appeals on devolution
issues will be to map the territory of reserved ‘UK Law’, a challenge similar to that faced
by the US Supreme Court since its inception, to define the borders of federal law in the
US. In deciding other matters, the challenge for the UK Supreme Court will be to
preserve uniformity based on pragmatism and common sense in meeting the legitimate
aspirations of the nascent devolved legal systems of the UK, to have their own distinct
identities and styles. It will be helped considerably by the fact that the authority, and
unifying influence, of the two European courts, the ECJ and the ECHR, has been
55 See the detailed lists of entrenched statutes and reserved matters in Part One, above.
enhanced by the devolution reforms56. And its task will be more facilitated when the
English and Scottish Law Commissions continue to produce increasingly converging
proposals for law reform in the two countries. So, hopefully, like in the ancient Roman
recipe, celebrated by Virgil in his poem57, the success of which depended on the
masterful mix of the different ingredients into one pleasant sauce58, the UK’s mix of legal
systems will continue to set into a miraculously uniform blend, provided, of course, the
master chefs, scholars, practitioners and judges, do not forget their centuries-old cooking
56 Powder to the guns of those campaigning for a ‘Europe of the Regions’, instead of the present Europe of
sovereign nation-States, among which one of the most prominent Scottish intellectuals and politicians, the
late Professor Sir Neil McCormick, who had also served as an MEP of the Scottish National Party, which
advocates `Independence within Europe' for Scotland.
57 it manus in gyrum: paulatim singula vires
deperdunt proprias, color est e pluribus unus,
nec totus viridis, quia lactea frusta repugnant,
nec de lacte nitens, quia tot variatur ab herbis (Moretum, by Virgil)
58 That (probably) still survives today in the artisan pesto sauce of Genoa