11.1 Courts, Judicial Function and Rights of Audience

SQE1 Functioning Legal Knowledge (FLK1) tests the legal system of England and Wales as a solicitor actually uses it: which court has jurisdiction, what the court is there to do, and who may speak. This OpenExamPrep chapter is independent study material for those topics. It is not published by the Solicitors Regulation Authority (SRA). The September 2026 FLK1 specification treats courts, the judicial function and rights of audience as the courtroom map. Hierarchy and jurisdiction stay in this chapter. The appeal system is taught with dispute resolution and with criminal practice, not here.

England and Wales is one legal jurisdiction. Scotland and Northern Ireland are separate jurisdictions with their own courts and sources of law. Wales is not a separate legal jurisdiction. The same senior courts, county court, family court and magistrates' courts sit for England and for Wales. Senedd Cymru can, and does, make primary legislation that applies in Wales, so the content of the law can differ on either side of Offa's Dyke. That difference is a difference of legal rules, not a second court system and not a second legal profession. A solicitor admitted in England and Wales practises in both Cardiff and Canterbury as a solicitor of one jurisdiction.

Why court structure matters in practice

A newly qualified solicitor who issues in the wrong court, appears without a right of audience, or treats a tribunal as if it were the High Court wastes costs and can put the client's case at risk. FLK1 items typically give a short fact pattern — a housing possession in Swansea, an indictment at Inner London Crown Court, a judicial review of a Welsh Minister — and ask which court has jurisdiction or who may be heard. The skill is classification: subject-matter, geography, original jurisdiction, and who sits, not a procedure manual for how a dissatisfied party takes a case higher. Routes, permission, leapfrog and criminal references belong elsewhere on the specification.

Hierarchy of courts in England and Wales

Treat the system as layers of status and original jurisdiction.

The Supreme Court of the United Kingdom sits at the apex. It is a United Kingdom court, created by the Constitutional Reform Act 2005 and sitting from October 2009, in place of the Appellate Committee of the House of Lords. For England and Wales it is the final court in both civil and criminal matters. It also hears Northern Ireland business and Scottish civil (not criminal) business. Twelve Justices sit; panels are usually five, sometimes more on issues of unusual importance. The Supreme Court is not one of the Senior Courts of England and Wales.

The Senior Courts of England and Wales, so named by the Senior Courts Act 1981 (the former 'Supreme Court of England and Wales' was renamed when the UK Supreme Court was created), are:

1. the Court of Appeal — Civil Division, associated in practice with the Master of the Rolls, and Criminal Division, associated with the Lord Chief Justice;
2. the High Court of Justice, in three divisions — King's Bench, Chancery, and Family; and
3. the Crown Court.

King's Bench Division includes the Administrative Court (judicial review and most public law claims), the Commercial Court, the Technology and Construction Court, the Circuit Commercial Courts, and the Planning Court. Chancery Division includes business, property, trusts, company and insolvency, patents and intellectual property lists. Family Division retains inherent jurisdiction work, wardship, and specified international child cases. Most everyday family proceedings now start in the Family Court, created as a single court by the Crime and Courts Act 2013.

Principal first-instance courts and tribunals

The Employment Tribunal is a statutory tribunal outside the First-tier structure; employment onward business goes to the Employment Appeal Tribunal. Do not collapse 'tribunal' into 'county court'. Tribunals exist because Parliament created specific statutory jurisdictions, often with a mix of legal and expert members.

Geographical jurisdiction. These courts cover England and Wales. A claim about land in Cardiff is still a claim in the courts of England and Wales. Scottish courts are the wrong forum for that land claim. Northern Ireland is a separate system.

Subject-matter and value. The county court can hear civil claims of any value in many causes of action, but listing practice and the Civil Procedure Rules channel high-value, highly complex, or specialist work to the High Court. Judicial review is High Court (Administrative Court) work, not county court work. Indictable-only crime is Crown Court trial work, not a magistrates' trial. Family financial remedies after divorce belong in the Family Court, not the Chancery Division. Getting the forum right is part of competent conduct of litigation.

The judicial function

The September 2026 FLK1 wording is judicial function, not a vague heading about 'the judiciary' as a social or professional group. The question is: what do courts do?

The judicial function is to administer justice in particular cases. Concretely, a judge, magistrate or tribunal:

• identifies the issues between the parties;
• finds facts on evidence, or proceeds on agreed facts;
• identifies the applicable law, including statute, assimilated law where it still applies, and common law;
• interprets legislation where the words are in dispute;
• applies that law to the facts;
• develops the common law only incrementally, by deciding the instant case according to principle and precedent;
• gives a reasoned decision, in public unless statute or the common law requires privacy (for example many family cases);
• manages the case so that it is dealt with justly and at proportionate cost.

That function is independent of the executive and of the legislature. The Constitutional Reform Act 2005 made the Lord Chief Justice President of the Courts of England and Wales and Head of the Judiciary of England and Wales. The Lord Chancellor remains a Cabinet minister with a statutory duty to uphold the independence of the judiciary, but is no longer a sitting judge and is no longer the professional head of the judges. Judges are selected on merit through the Judicial Appointments Commission. Senior judges have security of tenure. They take a judicial oath to do right to all manner of people after the laws and usages of the realm, without fear or favour, affection or ill will.

Two exam traps follow from this.

First, judges are not a second legislature. Lord Diplock's speech in Duport Steels Ltd v Sirs [1980] 1 WLR 142 is the classic statement: Parliament makes the law; the judiciary interprets and applies it. Common-law development is real, but it is interstitial. If a policy choice is open-ended, it belongs to Parliament or, in Wales on devolved matters, to Senedd Cymru.

Second, the judicial function is not confined to High Court judges. Lay magistrates exercise a judicial function when they try a summary trial. Tribunal judges exercise a judicial function when they decide a tax appeal. Recorders exercise a judicial function in the Crown Court. The function is defined by the task — impartial adjudication according to law — not by the title on the door.

Open justice, impartiality (including the duty to recuse where a fair-minded and informed observer would conclude there is a real possibility of bias), and the giving of reasons are part of the function. Case management — timetables, disclosure, limiting issues — is also judicial work in modern procedure. What this section does not teach is the machinery of taking a case to a higher court. That sits with dispute resolution and criminal practice.

Rights of audience

A right of audience is the right to appear before a court and address it as an advocate. Under the Legal Services Act 2007 it is a reserved legal activity. Carrying on a reserved legal activity when not entitled is a criminal offence and a regulatory breach.

Authorised persons include solicitors authorised by the SRA, barristers authorised by the Bar Standards Board, and other authorised professionals (including many Chartered Legal Executives with the correct advocacy certificate, and other approved regulators in limited fields). Exempt persons include a litigant in person acting in their own case.

Solicitors. Admission and an SRA practising certificate confer rights of audience in the magistrates' courts and the county court. They do not automatically confer rights in the Crown Court, High Court, Court of Appeal or Supreme Court. For those higher courts the solicitor must hold a Higher Rights of Audience qualification under the SRA's higher-rights rules. A solicitor-advocate with higher rights may appear in the relevant higher courts. Conduct of litigation is a separate reserved activity: most practising solicitors are authorised to conduct litigation even if they are not higher-rights advocates. Do not confuse the two permissions.

Barristers. Call to the Bar plus the practising requirements confer rights of audience in all courts of England and Wales. Direct access changes how the client instructs the barrister; it does not enlarge or shrink the rights of audience.

Exam scenario. A newly qualified solicitor employed in Cardiff is asked to appear tomorrow: (a) a mortgage possession in the county court; (b) a plea and trial preparation hearing in the Crown Court; (c) a one-day judicial review in the Administrative Court. The solicitor may appear in (a). For (b) and (c) the solicitor needs higher rights (criminal for the Crown Court; civil for the High Court) or must instruct someone who has those rights — typically a barrister or a solicitor-advocate.

Welsh language in court. In courts sitting in Wales, a party, witness or other person who wishes to speak Welsh may do so (Welsh Language Act 1993, s.22). That is a language right in proceedings in Wales, sitting alongside the official status of Welsh in Wales under the Welsh Language (Wales) Measure 2011. It does not create a Welsh court system, and it does not apply as of right to proceedings sitting in England.

FLK1 traps for this section

• Naming the UK Supreme Court as a Senior Court of England and Wales (it is not).
• Treating Wales as a separate jurisdiction because Senedd Cymru legislates.
• Writing 'the judiciary' as if the specification still wanted a who-is-who of titles rather than the function of adjudication.
• Assuming every solicitor may appear in the High Court or Crown Court.
• Treating a McKenzie friend as an advocate.
• Building an 'appeal map' in an answer that only asked which court has original jurisdiction.