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The English Legal System - Overview

 

The phrase “English Legal System” refers to the law of England and Wales. 

 

The English Legal System developed separately from the systems of other parts of the United Kingdom such as Scotland.

 

Since devolution of government under the Government of Wales Acts of 1998 and 2006, some differences have developed in that “Welsh Assembly Measures” passed by the National Assembly for Wales  only apply within Wales.  The 2006 Act also makes provision for the National Assembly for Wales to pass Acts.  Since this page is concerned only with basic principles, these differences are not looked at further.  In 2012 the Welsh Government issued a consultation paper on a Separate Legal Jurisdiction for Wales.

 

 Distinct Features of the English Legal System

 

  • ·         Continuous development - The system has continuously developed since before the Norman Conquest of 1066.  In the centuries immediately following the Norman Conquest a strong central system of government developed.  This central system of government had the King at its head.  It is from "the Crown" that the right to administer justice derives.  By the Tudor Period (1485-1603) the key institutions of Parliament, the Common Law Courts (King’s Bench, Common Pleas and Exchequer) and the Court of Chancery (administering “Equity”) had come into being.  Those courts evolved from the "Curia Regis" established by the Normans and  in 1406 the judicial view was expressed that the King had  "committed all his judicial powers" to the courts: per Gascoigne CJ  Chedder v Savage (1406) YB Mich. 8 Hen IV, fo.13, Pl.13
  • ·         Parliament as the Supreme Legal Authority - The English Civil War (1642-51) was fought essentially over the rights of Parliament vis-à-vis the rights of the King.  Parliament emerged victorious with the consequence that Parliament became the supreme legal authority in the country.  The Supremacy of Parliament remains a cornerstone of the constitution.  It means that, in legal theory, Parliament may pass any law it wishes though, practically, there are limitations to this power.  Lord Bingham considers the compatibility of the rule of law and the supremacy of Parliament in his book "The Rule of Law" (Ch. 12) - (Publisher Allen Lane 2010).
  • ·         The modern High Court of Justice – (which dates from the Judicature Acts 1873-75) – is an amalgamation of the pre-existing Courts of Common Law and the Court of Chancery – referred to above.
  • ·         Justice is administered in the name of “The Crown” since the U.K. is a Constitutional Monarchy.
  • ·         There is a system of Judicial Review by which the High Court ensures that lower courts, government (national and local) and public bodies operate within the law. Judicial review is concerned with the legality of decision-making and not with the merits of the decision.
  • ·         There are courts with Appellate jurisdiction – (i.e. they decide appeals from courts below them in the hierarchy of courts) - principally, the Supreme Court of the United Kingdom (which has replaced the Appellate Committe of the House of Lords), the Court of Appeal and, to a lesser extent, the High Court.  The Court of Appeal has a Civil and a Criminal Division.  [The Crown Court hears certain appeals from the Magistrates' Courts].
  • ·         A distinct system of Criminal Courts - The Crown Court of England and Wales and the Magistrates' Courts.  The Crown Court dates from the Courts Act 1971 which abolished and replaced various courts including the "Assizes" and "Quarter Sessions" and many local courts (e.g. The Court of Chancery of the County Palatine of Lancaster etc).
  •           A very large number of specialist matters are dealt with by Tribunals though there may be an appeal structure – e.g. to a “higher tribunal” or to a court – (usually the High Court).  The tribunal structure has undergone radical reform as a result of the Tribunals Courts and Enforcement Act 2007.
  • ·         There is significant use of non-lawyers in the system – e.g. as Jurors or as Magistrates (Justices of the Peace) or as tribunal members.  The importance of the jury was emphasised by the speeches in R v Abdroikof [2007] UKHL 37 .  Nevertheless, there is provision in the Criminal Justice Act 2003 for non-jury trial in certain situations.
  • ·         Procedure in most courts and tribunals is “adversarial” – i.e. Party v Party – this contrasts with the “inquisitorial” system favoured by some European legal systems.  However, Coroners Courts work on an inquisitorial system and hearings in those courts are referred to as "Inquests."
  • ·         Considerable areas of the law remain "Judge Made."  There is no single “CODE” setting out the basics of the law.  Areas of law largely created by the judges include the law of contract, tort (i.e. civil wrongs such as trespass and negligence), the law of trusts etc.  Many of these areas of law have been modified by Acts of Parliament.  At the present day, very few crimes remain "judge made" though the crimes of murder and manslaughter are still "judge made" or common law offences.  Even here, the law has been modified by certain Acts of Parliament - e.g. the Homicide Act 1957 and the Coroners and Justice Act 2009.
  • ·         There is a system of binding precedent (or "stare decisis") by which the decisions relating to law of higher courts bind courts lower in the hierarchy – e.g. a decision of the Supreme Court of the U.K. will bind all other courts just as did a decision of the former House of Lords.  Precedent is said by its supporters to promote certainty in the law but it can become very difficult to change the law without recourse to Act of Parliament.
  • ·         An independent judiciary – i.e. one which is not influenced by the Executive in terms of the outcome of particular cases before the courts.  The independence has been emphasised in recent legislation - e.g. Constitutional Reform Act 2005Judicial independence from the Monarch was not properly achieved until the Act of Settlement 1701 which gave the senior judiciary protection of tenure.
  • ·         Divided legal profession – Lawyers divide into Barristers and Solicitors – the Barristers are governed by the various Inns of Court and the Solicitors branch is governed by The Law Society – however, members of either branch may now aspire to the rank of Queen’s Counsel (Q.C.).  There are also "Legal Executives" who are now regarded as a third branch of the legal profession.  Legal Executives are represented by the Institute of Legal Executives.
  • ·         There are certain specialist branches of law which developed historically:  Admiralty Law, Ecclesiastical Law etc.
  • ·         The Armed Forces of the Crown have their own Courts-Martial system.  Under the Armed Forces Act 2006 the whole system of military discipline has been reformed so that a single disciplinary regime applicable to all three services is in being.  Previously, each of the Services (Navy, Army and Air Force) operated under its own Discipline Act.
  •         Magistrates’ Courts developed as courts with a local jurisdiction (e.g. for a particular area such as a City).  Since the Courts Act 2003 they are now administered by Her Majesty’s Court Service and there is a single “Commission of the Peace” for England and Wales
  • ·         The Police are organised into Forces as opposed to having a single “national” Police Force – however the number of Forces has been reduced over the years.

 

Several other countries have based their legal system on the English "common law" model – e.g. Australia, New Zealand, Canada, the U.S.A. etc.  They are referred to sometimes as “common law” jurisdictions though, naturally, each has developed separately.

Since accession to the European Communities in 1973, there has been a need for courts to recognise the force of “European Law.”

The Human Rights Act 1998 has made it possible for Acts of Parliament to be challenged in the higher U.K. courts on human rights grounds.  The court may not overrule the Act but may make a "declaration" that the Act is "incompatible" with the European Convention on Human Rights.  It is then for Parliament to determine whether to amend the Act so as to remove the incompatibility.

There has been considerable change to law due to the work of bodies such as The Law Commission which is tasked with keeping the law under review. 

Under the Constitutional Reform Act 2005 there is Supreme Court of the United Kingdom which replaced the judicial functions of the House of Lords.  [The Supreme Court came into existence on 1st October 2009].

Both society and the style / nature of government have changed.  Society is now more diverse and social attitudes have changed.  To some degree this has made the law more “liberal” – e.g. the Civil Partnerships Act 2004.  However, the U.K. has undoubtedly seen a strengthening of Police power as tools are added to their armoury to combat serious crime and terrorism.  There is therefore growing concern that certain "Civil Rights" have come or are coming under threat.  Ultimately, as in any democratic society, the electorate must elect those into political power who will continue to ensure that new laws are sensible, fair and proportionate to the challenges of the 21st century.

 

: Sources of Law :

 

Common law – essentially, the common law is the law as stated or developed by the Judges.  The origins of the common law may be traced back before the existence of Parliament.  In the centuries following the Norman Conquest of 1066, various “Courts of Common Law” developed and an additional system came into being of sending Judges to the Counties to hear serious criminal cases.  It also became possible for civil cases to be heard at these County "Assizes."  The Courts of Common Law came to be known as “Court of King’s (Queen’s) Bench”, “Court of Exchequer”, “Court of Common Pleas.”  Interestingly, those courts sat in Westminster Hall for many centuries prior to the creation of the modern High Court of Justice.  In fact, the Common Law courts survived until 1875 when they were merged into the modern High Court of Justice and the venue became the Royal Courts of Justice in The Strand, London.  The Assizes survived until replaced by the Crown Court on 1st January 1972.

Through the various common law courts, the Judges were responsible for the creation of much of our law.  The law relating to land, contract and “tort” (i.e. civil wrongs such as trespass) were all originally developed by the Judges in these common law courts.

In modern times, an important area of the common law known as the "Royal Prerogative" has come into prominence.  The Prerogative refers to important rights of the "Crown."  The right to administer justice is a key prerogative power.  Originally, these rights belonged to the Monarch but, under modern constitutional arrangements, the powers have come to be exercised by the Government or, in the case of justice, by the judges.  Some of these powers are of major importance such as the right to conduct foreign relations (including power to make treaties with other States or international bodies); the power to declare war etc.  If a "prerogative power" is claimed to exist, it is for the courts to actually state whether or not it exists and to also state the extent of the power.  No new prerogatives can be created.  So, for every prerogative power, there has to be historical precedent.

Equity – another major development, which came somewhat later than the common law courts, was the “Court of Chancery.”  Equity came about principally because the common law developed into a somewhat inflexible system.  This court developed an entire body of law known as “Equity” and a major branch of this is the law of trusts.  "Equity" always fully recognised the position as far as common law was concerned.  Hence, Equity never sought to replace the common law but it added some important concepts and devised additional remedies such as "injunctions."  The Court of Chancery was also merged into the modern High Court in 1875.

Common Law and Equity since the formation of the modern High Court

When the modern High Court was formed, it was no longer necessary to administer Common Law and Equity in different courts.  Courts now apply both and in any case where the rules of common law and equity conflict then the rules of equity prevail.  Such conflicts have been extremely rare - one example is the "land law" case of Walsh v Lonsdale (1882) 21 Ch.D. 9.

Ecclesiastical and Admiralty Law – the Church – via its “Ecclesiastical Courts” - had considerable jurisdiction in matters regarded as “spiritual” such as marriage, divorce, wills.  “Admiralty Law” arose to deal with matters related to the sea and shipping and there was a system of Admiralty Courts to deal with disputes. 

As a result of various Acts of Parliament, the jurisdiction of the ecclesiastical courts and most of the Admiralty Courts was taken over by the civil courts.  In particular, matters such as wills, divorce and admiralty work became part of the High Court in 1875 in what was then known as the Probate, Divorce and Admiralty Division.  Under the Administration of Justice Act 1970, this Division became the modern Family Division in 1971 with Admiralty cases being transferred to the Queen’s Bench Division.

Acts of Parliament – these are the method by which Parliament states the law.  An Act of Parliament is a supreme kind of law in that it is capable of replacing any other law including previous Acts of Parliament.  However, once Parliament has enacted a law, it remains for the Judges to interpret the law (i.e. state what it actually means).  The methods used by Judges to interpret Acts are a considerable subject in their own right.

In very special circumstances, as a result of the law of the European Union, the courts may have to “grant relief” to persons adversely affected by an Act of Parliament.  This was finally settled by the decision of the House of Lords in the “Factortame Case” decided in 1990.  The House of Lords was reacting to the views stated by the European Court of Justice.

Frequently, an Act of Parliament will permit a Government Minister to make “delegated legislation.”  This usually takes the form of either an “Order in Council” or “Regulations.”  Delegated legislation may only be made if permitted by Parliament and the Minister making it must not exceed the powers given to him by Parliament.  It is possible for the courts to state that a piece of delegated legislation exceeds the powers granted by Parliament – i.e. “beyond the powers” or “ultra vires.”

Judicial Decisions – the decisions of the Higher Courts can bind courts lower in the hierarchy of courts.  The Supreme Court of the United Kingdom binds all courts below it - (as was the case with the former House of Lords); the Court of Appeal binds all courts except the Supreme Court etc.  This is known as the “doctrine of precedent” (or "stare decisis").  Strictly, it is the so-called “ratio decidendi” of a case which binds.  This is the statement of the law which the judge(s) reached on the basis of the actual facts of the case.  The doctrine of precedent is complex and there are certain ways in which perhaps the “bolder” judges can sometimes avoid precedents considered to be “awkward.”  A further complication is whether a court is capable of binding itself and there are various rules about this.

The Supreme Court may overrule a decision of any other court of England and Wales.  Similarly, the Court of Appeal may overrule decisions of courts lower in the hierarchy.    The House of Lords was, since 1966, able to "depart from" its own earlier decisions and did so on a considerable number of occasions.  There is no doubt that the Supreme Court will hold itself able to depart from previous decisions where it is appropriate to do so.

When a case is overruled, the law is restated by the higher (overruling) court.  This raises the questions as to whether the overruling applies only to the future or to both the past and the future.  The traditional English law position has been that overruling applies both to the past (i.e. retrospectively) and to the future (i.e. prospectively).  However, in National Westminster Bank Ltd (Respondent) v Spectrum Plus Ltd (Appellant) [2005] UKHL 41 the House of Lords considered that it should, in appropriate circumstances, be able to overrule cases prospectively only though, in the actual case, it did not do so. 

The law of precedent perhaps helps to promote certainty but it also makes the law complex.  Modern textbooks therefore contain extensive discussion about the actual cases decided.  Precedent also enables the lower courts - (which deal with the vast majority of actual cases) - to do their work without the need for an excessive number of appeals.

Decisions of certain eminent courts do not bind English courts but are said to be “persuasive.”  Examples include superior courts within the British Commonwealth, the U.S.A. etc.

 

Human Rights – the European Court of Human Rights remains the final interpreter of the European Convention on Human Rights and Fundamental Freedoms and its judgements must be given effect to within the U.K. by virtue of the Human Rights Act 1998.

European Union – the Court of Justice of the European Union is the final interpreter of the Treaties and other legislative acts of the European Union.

International Law – there are certain “International Courts” such as the International Court of Justice set up under the Charter of the United Nations.  These are clearly authoritative in their decisions relating to disputes referred to them.

Texts – eminent writers are also able to influence the law.  For instance, the authors of Smith and Hogan on “Criminal Law” have influenced the Judges in their decisions in several criminal cases.

 

: The Judiciary :

 

Head of the Judiciary and President of the Courts of England and Wales - The Lord Chief Justice of England and Wales

The Supreme Court of the United Kingdom - The Justices of the Supreme Court

House of Lords – The Lords of Appeal in Ordinary – [from 1st October 2009 the House of Lords was replaced by the Supreme Court.  Its judges were known as Lords of Appeal in Ordinary]

Court of Appeal – Lords Justice of Appeal

High Court – Judges of the High Court

County Court – Circuit Judges or District Judges

Crown Court – High Court Judges, Circuit Judges or Recorders

Magistrates’ Courts – Either Magistrates (Justices of the Peace) or District Judges (Magistrates’ Courts)

 

See the Judiciary Website

 

: The English Legal Profession :

 

In modern times there are three branches within the legal profession: barristers, solicitors and legal executives – the latter having developed since 1963.

Barristers

Barristers are those “Called to the Bar” by one of the “Inns of Court.”  These are the Honourable Societies of Lincoln’s Inn , Inner Temple  , Middle Temple and Gray’s Inn  .  The Inns are very ancient unincorporated bodies which, for over 500 years, have had the right to "call to the bar" those qualified.  Each of the Inns is governed by eminent members known as “Benchers.”  Interestingly, whilst the vast majority of Benchers are also barristers, it is possible for distinguished persons to be invited to become Benchers (e.g. members of the Royal Family).

Those wishing to become barristers will typically be University graduates who go on to complete a Bar Vocational Course and then be “called to the bar” by one of the Inns.  Barristers have a right of audience in all tribunals and courts within England and Wales and also in the European Courts.

The Bar Council  is the professional body for barristers in England and Wales. It provides representation and services for the Bar, and guidance on issues of professional practice.   The Bar Standards Board  is responsible for conduct and complaints.

Outside of London, the Bar is organised into six "circuits" and barristers will usually become a member of one of these.  The circuits are South Eastern, Western, Midland, Wales and Chester, Northern and North Eastern.  These modern circuits have developed from the former Assize system though the actual circuit organisation has proved to be adaptable to change.  For instance, some modern circuits are now amalgamations of earlier circuits.  Each circuit has a Presiding High Court Judge.  The circuits provide support for their members - e.g. continuing education etc.  There is a newer European Circuit for those barristers who practice principally within the Europe.  Here is a link to the Northern Circuit website - a circuit which has basically existed since 1176. 

Solicitors - (full title "Solicitor of the Senior Courts of England and Wales)

Formerly, those non-barrister members of the legal profession who practised in the common law courts were known as Attorneys.  “Solicitors” were officers practising in the Court of Chancery.  The corresponding practitioners in the Ecclesiastical and Admiralty courts were known as “Proctors.”  Since the Judicature Act 1873, these distinctions have disappeared and the only term used is “Solicitor".

Those wishing to become solicitors must comply with one of the various routes to qualification – typically University graduation, legal practice course and a training contract.  Following successful completion of all the stages the person will be “Admitted to the Roll” as a Solicitor of the Senior Courts of England and Wales.

Solicitors undertake work in connection with all types of legal matters.  Commonly, local firms of solicitors will deal with matters such as buying and selling houses (conveyancing), preparation of wills (probate work), advising on business matters (e.g. companies, business contracts etc), family law (e.g. children cases etc) and representation in courts such as the Magistrates' Court or County Court.  Solicitors have rights of audience in tribunals, Coroner’s Courts, Magistrates’ Courts, County Courts and European Courts.  Additionally, it is now possible for solicitors to obtain “Higher Court” rights of audience.  Solicitors are also to be found in many other areas – e.g. working for local government, the Crown Prosecution Service, within business etc.

Solicitors are represented by the The Law Society of England and Wales  .  Its is the Law Society which negotiates on behalf of solicitors with government and professional regulators.  The Law Society also has a training and advice function.  The Solicitor’s Regulation Authority is the body which deals with conduct and discipline.

 

Legal Executives

Legal executives are those who have qualified as Fellows of the Institute of Legal Executives , a body which came into being in 1963.  They are considered to be qualified lawyers who usually specialise in a particular area of law – e.g. property transfers (conveyancing) etc.  They will have passed the ILEX Professional Qualification in Law and have at least 5 years experience of working under the supervision of a solicitor in legal practice of in the legal department of a private company or in national or local government.

Queen’s Counsel

It is now possible for both barristers, solicitors and leading academic lawyers to attain the rank of Queen’s Counsel (Q.C.).  The rank of Q.C. came into being when the former rank of Serjeant-at-Law was abolished in 1877.  Generally, a Q.C. will take on the more complex cases and appeals and they are frequently supported by other barristers (referred to as "juniors").

In the period 1999 – 2003 there was a concerted effort to abolish this rank.  However, it has survived and appointments continue to be made.  Many saw the Q.C. rank as anachronistic and others questioned whether it was right for government to confer a special status on selected practitioners which enhances their earning power and competitive position.  It was also argued that those lawyers who appeared on behalf of the government had a better chance of being appointed Q.C. than those who chose to represent individuals against the state.  The Bar Council defended the system as a “kite mark” of quality.  The former  Department for Constitutional Affairs consulted nationally about this in 2003 with the result that 63% of responses favoured retention of the system though most respondents were individual judges and barristers or associations of barristers and judges such as the Bar Council and the Chancery Bar Association

 

 

 

 

 

 

 

 

 


 
 
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