English common law is one of the oldest and best-established legal systems in the world. Solidified in structure after the Norman Conquest, it represents a distinctly English heritage, marked by uniformity and consistency. It is a law system designed for, run by, and maintained by the English.

In the same way, it also represents a rejection of the Roman civil law system that simultaneously developed on the continent. This split in tradition was, and remains, one of real substance: common law and civil law can be quite different in practice. Common law is based on practice and prior experience, while civil law tends to place greater emphasis on theory and deductive reasoning.

Thus, the divide between continental and British law was very straightforward – that is until 1972. That year, the European Communities Act 1972 brought the United Kingdom into the European Union, and crucially, gave the EU supremacy over UK law. This meant that when interpretation of EU law was in doubt, British courts had to defer to the European Court of Justice. Courts were obliged to strike down legislation inconsistent with EU law. 

Unique situation

With a successful Brexit movement, in which the UK left the EU and was no longer subject to its parliament, one might think that the same would apply to British legal systems. However, this is not exactly the case. Laws and regulations made during the forty years of EU rule were carried over into UK law. While the object was to avoid a “black hole” of legislation, where years of precedent were overthrown in a flash, the result is a very unique situation in which the law courts of the United Kingdom are subject to a bloc of foreign legislation that is frozen in time. These so-called “EU retained laws” can be supported, amended, or repealed by Parliament, so the British government does have full control, but for the time being laws originating outside the UK still have influence over the British legal tradition. 

That being said, there remains one institution of particular note that has direct outside influence on UK law: the European Convention on Human Rights (the “Convention”). The UK is subject to the convention through its continued membership in the Council of Europe. The Human Rights Act 1998 stipulates that UK courts are tasked with deciding whether public bodies have acted compatibly with the Convention. Additionally, in matters of legal interpretation, courts must interpret law in a manner that is consistent with the Convention on Human Rights. If this is impossible, a “declaration of incompatibility” is made, signaling to Parliament that a change must be made.

Due to the continued supremacy of Parliament, courts do not have the authority to strike down legislation that conflicts with the Convention. The European Court of Human Rights (the “Court”), a function of the Convention, does not have direct authority over UK courts, but those courts must “take account” of decisions made by the European Court. The difference between the two institutions is that while the Convention has general protocols which member states must follow, the Court makes interpretation based on those protocols, and those interpretations may or may not take into account particulars of British domestic position, and therefore could be unsuitable for implementation in the UK. The ability for British courts to interpret the Convention’s protocols, and the Acts based off  them, allows for an informed judgement tailored to the needs of the British people.

The United Kingdom spent forty years in the European Union; a period which had – and will continue to have – an enormous and lasting impact on British common law.

By Marc Ayers

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