Monday, 20 December 2021

What is England and Wales?

 

Or, more precisely, what exactly, in a legal sense, is this thing we call England and Wales [1]? This whole blog was prompted by the observation [2] that the old maxim

Cuius est solum, eius est usque ad coelum et ad inferos [3]

might not - or even more curiously might but the draftsman has erred - apply to the actual physical definition of England and Wales.

Before that, however, we need to take a detour to consider the difference between the extent of a law and where it applies. At first brush, these seem to be two ways of saying the same thing - they most certainly are not.

And then we need to work out where England and Wales came from, and only then can we answer the question 'what is it?'

Extent versus application

Unusually - indeed I know of no other state which does this even close to as systematically as the United Kingdom - laws in Britain can have both a jurisdiction extent and a territorial (or even spatial or temporal) application.

A law is said to extend to an entire jurisdiction, so laws can extend to England and Wales (one jurisdiction, consisting of two countries), Scotland (one jurisdiction consisting of one country), Northern Ireland (ditto), Gibraltar (one jurisdiciton consisting of an overseas territory), the Isle of Man (one jurisdiction consisting of a Crown Dependency), or ... you get the idea. Or any admixture of the above.

Lest it cause any confusion, in the above when I say country I really mean, for any purpose whatsoever, 'that part of the United Kingdom called X'. This can become a needlessly thorny issue. I will try hereafter to use the nice, neutral, term 'place' to describe these things.

By default and some enforcement, Acts of Parliament extend to England and Wales, Scotland, and Northern Ireland though they may work in each in different ways [4]. However, most [5] Acts will specify an extent clause, picking and choosing which ones. 

Extent, however, has absolutly nothing to do with where an Act or indeed any law applies. It just means it forms part of the law of that jurisdiction. That jurisdictions have geographic names is simply because one usually follows the other.

Application, on the other hand, is where the law is actually active. The most common manifestation of this - before this was more of an unusual curio, about which we shall come to - after devolution is in the jurisdiction of England and Wales. Laws made by the Welsh Ministers will extend to England and Wales but can only apply in Wales. This applies then mutatis mutandis the other way in areas of devoled competence. This is how Wales and England can share a jurisdiction, but have different public health restrictions, for example. The rules either side of the River Severn extend to all of England and Wales the jurisdiction but only apply in either England or Wales the place.

Application can be narrower than this, for example restricted to sub-part of England and Wales. Application can also be by simple implication, i.e. the law obviously doesn't apply to everywhere it purports to extend. One - esoteric - example of this is the Middlesex Deeds Act 1940 [6]. This is silent about extent, so extends to the whole of the United Kingdom, but clearly only applies to, well, Middlesex. It forms part of the law of Scotland and Northern Ireland, but is utterly inert there.

But, application can also be outwith the country too. The Official Secrets Act 1911 has, in part, a provision that reads
10 (1) This Act shall apply to all acts which are offences under this Act when committed in any part of His Majesty’s dominions, or when committed by British Officers or subjects elsewhere.

but also has no extent clause. In this manner this law applies (at least insofar as it can be enforced) outside of the geographical limits of the jurisdictions to which it has been extended. We can also see here it has been extended to the entire British Empire by (at least) necessary implication [8] [9] [10].

So, how does this all matter to the question of "what is England and Wales?". To answer that, we need to consider just what in law the terms "England" and "Wales" mean. "England and Wales" as the jurisdiction is ephemeral, in comparison. It's just the place where the writ of Her Majesty's High Court of Justice runs, in a manner of speaking.

The Interpretation Act 1978

The schedule of defined words and phrases [11] in this Act provides [12]
“England” means, subject to any alteration of boundaries under Part IV of the Local Government Act 1972, the area consisting of the counties established by section 1 of that Act, Greater London and the Isles of Scilly 
“Wales” means the combined area of the counties which were created by section 20 of the Local Government Act 1972, as originally enacted, but subject to any alteration made under section 73 of that Act (consequential alteration of boundary following alteration of watercourse)

The reference there to the Local Government Act 1972 is interesting and somewhat key. But the astute may also notice that these definitions define the terms England and Wales (but not England and Wales) by reference to the areas of local councils. Not even true geography. 

This Act, which reformed local government, also effected a pair of important definitional changes. To understand that, we need to look at a few related provisions. All of these are as enacted, for a variety of reasons, mostly Welsh local government reorganisations, the provisions as in force now hide this somewhat. First, both sections 1 and 20 provided

1(12) In this section “England” does not include the administrative county of Monmouthshire or the county borough of Newport.

20(7) In this section “Wales” includes the administrative county of Monmouthshire and the county borough of Newport.

Which if you read them carefully effects something that had been unclear in the extreme since at least the 16th century: just where was Monmouthshire [13]? 

Both these provisions, however, affect the application of laws only. We now need to consider just where England and Wales the jurisdiction came from.

The Laws in Wales Acts

Since the Laws in Wales Acts 1535 and 1542 [14], Wales had formed part of one jurisdiction united with England, viz.

That his [15] said Country or Dominion of Wales shall be, stand and continue for ever from henceforth incorporated, united and annexed to and with this his Realm of England.

Before this, since Wales was conquered by King Edward, it remained a separate jurisdiction (as we would now call this - that term had yet to be really invented!) and had an entirely separate system of laws and courts and so on. 

And thus the jurisdiction of England was created (the and Wales will need to wait nearly five further centuries).

But what of the application of laws? This remained gloriously ambiguous for another two centuries.

In 1746, annexed to the back end of a statute about the window tax [16] and now known as the Wales and Berwick Act 1746 [17] was the provision

III. And it is hereby further declared and enacted by the authority aforesaid, That in all cases where the Kingdom of England, or that part of Great Britain called England, hath been or shall be mentioned in any Act of Parliament, the same has been and shall from henceforth be deemed and taken to comprehend and include the dominion of Wales, and town of Berwick-upon-Tweed.

By this enactment, any residual difference in the application of laws between Wales and England was eliminated and thus the last vestige of separate Welsh laws was ended. For now. However, it is not abundently clear this provision was ever actually necessary in practice - but thankfully nothing turns on this point (which did animate Blackstone, however).

The Curious Case of Monmouthshire

So, Monmouthshire. It was never clear prior to the 1746 Act, but after it it became functionally irrelevant if Monmouth was part of England or Wales. This then begat curious application clauses in things like the Welsh Church Act 1914 [18] like
[...] the Church of England, so far as it extends to and exists in Wales and Monmouthshire (in this Act referred to as the Church in Wales), shall cease to be established by law [...]

This phrasing both works, because the Wales and Berwick Act 1746 united Wales to England but didn't abolish it in totality, and is also necessary just in case the pre-1746 position was that Wales was not united with Monmouthshire.

This is also clearly a clause defining the application of a law. So, even before England gained its and Wales it was clear that the jurisdiction could have laws that only applied to bits of it (this of course has always been clear, this being merely a stark example of it) [19].

The effect, therefore, of that pair of sub-sections in the 1972 Act was to finally remedy this anomaly.

The and Wales

So, we have a jurisdiction called England, and a rule that said any law purporting to apply to England also applies to Wales (but not, strictly, the reverse, and Monmouth was safe because it was either one or the other, even if no one knew which). When did it becomes England and Wales?
Section 3 of the Wales and Berwick Act 1746 (which provides that references in Acts of Parliament to England include references to Wales and Berwick) shall have effect in relation to any Act passed after this Act as if the words " dominion of Wales and " were omitted.

Thus provided the Welsh Language Act 1967 [20]. Now, to my mind this is ambiguous as to whether it just undid the 'application' bit or also renamed the jurisdiction too. But I think it is a necessary implication of it that the jurisdiction now became England and Wales and anything which purported to apply to only England would not so apply to Wales (but would form part of that conjoined jurisdiction, still).

Even if one can quibble about precisely what happend when and how, this is now the status quo. So, this odd historical journey completed, we can now consider exactly what is England and Wales.

Low-tide

The boundaries of local authorities, with some esoteric (Bristol) exceptions, stop at the low water mark. Or, put another way, local authorities don't have powers over the open sea. As one will notice in the definitions given in the 1972 Act above, this means that right now England and Wales as England and Wales the places laws apply stop at the low-water mark.

This practice mirrors the implication of the Territorial Waters Jurisdiction Act 1878 [21], which extended the criminal law in England (and elsewhere but lets focus on it) to the sea around it. The corollary of that is that the civil law didn't automatically so apply [22]. 

So, England and Wales as geographic entities to which laws can apply, by default, stop at the water's edge. So, that's part of our answer to 'what is England and Wales'.

Ad inferos

So, downwards? This one is easy. No special words are required to regulate mines or tunnels or whatever. So I think it follows without much fanfare that a law which applies to England or to Wales applies to the centre of the Earth beneath it.

Ad coelum

Now, this is the vexing one. And indeed, the situation that prompted this whole discussion (after this we need to briefly finish off by considering the continental shelf, which is thankfully trivial, and we are done).

My naive assumption would be that like down towards Tartarus, England and Wales also encompass everything out to somewhere high in the atmosphere - the modern day equivalent of the Heavens. I think it is obvious that the old literal definition needs to be amended to consider the existence of Outer Space, and thankfully it probably makes everything better to work that way too!

But, in laws every now and then one encounters curious provisions like this [23]
(3) These Regulations extend to England and Wales, and apply—
(a) in England;
(b) in English airspace to a person who is on board an aircraft which took off from, or is to land at, a place in England;
(c) in the English territorial sea to a person who is on board a vessel which is not an excluded vessel.

 And the same regulation then defines 'English airspace' as [24]

“English airspace” means the airspace above England or above the English territorial sea;

Since we know that the territorial sea is not part of England (the place), this opens up a question: is English airspace not part of England either? (Everything here applies mutatis mutandis to Wales).

This single provision also very nicely demonstrates the difference between extent and application. The regulations extend to the jurisdiction of England and Wales (united by the Laws in Wales Acts and renamed by implication by the Welsh Language Act), apply only to a subset of the two geographical entities that comprise that jurisdiction (viz. just England) but also apply to (supposedly) two places outside those geographical entities.

I remain totally on the fence whether (3)(b) is necessary, but I think the discussion of nuclear sites below possibly holds the key. If it is, the doctrine when applied to England and Wales should be recast as

Cuius est solum, eius est usque ad inferos

(which incidentally says nothing about the sea, so it nicely captures the concept that England and Wales stop at the low-water mark for free!). If not, (3)(b) is otiose and should never have been included.

I have tried and essentially failed to use civil aviation to answer this question, to limited avail. However, Rich Greenhill found me a slightly older (by about two years) reference in an actual Act, viz. this is the new section 16C of the Nuclear Installation Act 1965 [25]

(9) In this section—

(a) a reference to a part of the United Kingdom is a reference to—

(i) England and Wales,

[...]

(b) a reference to England and Wales includes a reference to—

(i) areas within the territorial limits of the United Kingdom, other than Scotland or Northern Ireland or areas adjacent to Scotland or Northern Ireland, and

(ii) the relevant maritime zone of the United Kingdom, other than the relevant maritime zone adjacent to Scotland or Northern Ireland, and the sea bed and subsoil within, and the airspace above, that part of that zone;

The drafting is curious because it's written backwards, in that England and Wales' extra bit (watery or airy) is everything that is neither Scotland nor Northern Ireland's extra bits. But it is the same idea, that a reference to the United Kingdom would not be apt to capture the territorial sea (fine, not controversial) or the air above it (the sea, that is). Seabed and subsoil will be dealt with in the final bit below, it's actually very anodyne and clear.

This really does not imply that Parliamentary Counsel did not believe that airspace falls within England (or Wales). Which is probably more correct. It would be quite bizaree if an area of land defined by reference to the boundaries of local authorities descended to the centre of the Earth but not to the Heavens. And as Greenhill put it "where would it leave flying cars?"

And thus we may have our answer: the place England and Wales is the ground, everything built on it, and everything down to the centre of the Earth, and everything up to the Heavens, within the borders of any English or Welsh local authority. So, then, cuius est solum, eius est usque ad coelum et ad inferos indeed.

The Continental Shelf

This is simple, obviously this is not part of England or Wales. But it is a place the United Kingdom can exercise some jurisdiction, albeit with some limits. Consequently an application clause is necessary apply things here - and as we see in the previous part it may be necessary to be clear about seabed and subsoil when doing so.

Conclusion

England and Wales is two things at the same time: an ephemeral jurisdiction to which laws can extend, and two chunks of land to which laws can apply. The latter, however, perhaps surprisingly not including the territorial waters around the chunks of land, but, more conventionally, the area above and beneath them.

This poses no issues in practice, of course, because as we saw right at the beginning, where a law extends only matter for which courts enforce. Where a law applies need not bear much resemblance to its extent at all.

Colophon

I am indebted to whichever drafting lawyer put that regulation in the face covering regulations, without which I would never have thought to consider this. 

As a caveat, while everything else is pretty clear, I have both been a bit radical on delinating between extent and application than may be normal (but remember before the 1960s it so barely mattered no one was too clear or careful); as for my conclusions on airspace, I submit the drafting lawyer at the DHSC was simply wrong. [26]

Corrigenda

A briefly published but not advertised draft of this contained a fatal misunderstanding at the end, this has been removed and everything else adjusted.

[1] Which was once simply called England, but we will jump to the here and now.
[2] With an hat-tip to Rich Greenhill!
[3] "Whoever owns the soil owns everything from the Heavens to Hell", i.e. owners of estates of land in fee simple absolute own everything from the centre of the Earth to... well they didn't quite know about Outer Space when they formulated this one!
[4] A trivial example is substituting references to the High Court to the Court of Session in Scotland.
[5] But not all, and there are some categories of Acts, like the appropriation acts, that by convention always use the default rule.
[6] 3 & 4 Geo. VI. cap. 34; still seemingly in force though mostly spent I would aver.
[7] 1 & 2 Geo. V. cap. 28; this Act still provides for the basis of the offence of spying in the United Kingdom, inter alia.
[8] Orders-in-Council were and are used to provide for this more explicitly too by disabling the Imperial Act if a territory enacted its own equivalent law, see, e.g. The Official Secrets (Jersey) Order in Council, 1952 (S.I. 1952 No. 1034)
[9] Before devolution, the two terms were sometimes used with a bit less care and precision, but context usually makes clear what is going on where.
[10] A slight common law aside here: the common law offence of murder also applies to any British Citizen anywhere in the world. This idea that a law can apply to someone in a place outside the jurisdiction is not all that unusual. The most extreme examples are true extraterritoriality, where the actions of foreigners living abroad purport to be criminalised. But as we see here, extraterritoriality is a question of application, not extent (and it is a surprisingly common slip to elide these things).
[12] Curiously, no definition of Scotland is provided, indeed a statutory one doesn't seem to exist at all, and later the "United Kingdom" is defined as "Great Britain and Northern Ireland" without bothering to define either of those either.
[13] I declare an interest here: I am within the historical borders of Monmouthshire as I write this.
[14] They were both passed before March 25th in their respective years, so people who don't understand calendars will add one to these dates; those people are wrong. The regnal citations, which are unambiguous, are 27 Hen. VIII. cap. 26 and 34 & 35 Hen. VIII. cap. 26. Do love a good Henrician statute.
[15] I.e. Henry VIII.
[16] Yes, really. I'm wholly serious, the long title of the Act is 
An Act to enforce the execution of an Act of this session of Parliament, for granting to His Majesty several rates and duties upon houses, windows, or lights.
There is also an unclear provision about Quakers in the Act as well, and it defies me to work out what it does.
[17]  20 Geo. II. cap. 42; we will not discuss Berwick-upon-Tweed here, for the simple reason it defies mortal explanation.
[18] 4 & 5 Geo. V. cap. 91
[19] The situation of the Border Parishes I am entirely ignoring since nothing turns on it.
[22] This leads to my curious question: would me sat in a dinghy below the low water mark with a megaphone be able to slander someone with impunity?
[23] The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021 (S.I. 2021 No. 1340), reg. 1; there is an irony that it was an emergency public health law that prompted this entire blog, I think.
[24] It also defines English territorial waters as the territorial waters adjacent to England, but since we have established that England does not qua England encompass those, that makes sense.
[25] 1965 cap. 57
[26] My theory, since I was seduced by this trap too, is that they read the 1972 Act, concluded local authorities jurisdiction doesn't extend to airspace regulation, and therefore the area of a local authority does not include airspace. This seems very tenuous at best.

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