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A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.

The civil law system is derived from the Roman Corpus Juris Civilus of Emperor Justinian I; it differs from a common-law system, which relies on prior decisions to determine the outcome of a lawsuit. Most European and South American countries have a civil law system. England and most of the countries it dominated or colonized, including Canada and the United States, have a common-law system. However, within these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and Spanish settlers in their use of civil law systems.

Table of Contents1. The UK Legal System

1.1 Background and Constitution1.2 Constitutional Reform

2. The Court System2.1 Civil Courts2.2 Criminal Courts

3. Primary Sources of Law3.1 Legislation

3.1.1 Primary Legislation: Acts of Parliament3.1.2 Delegated Legislation: Statutory Instruments3.1.3 Electronic Sources of Legislation

3.2 Case Law3.2.1 Law Reports3.2.2 Citations3.2.3 Electronic Sources of Case Law                                               

4. Encyclopaedias5. Indexes and Digests

5.1 Legislation and Case Law Indexes5.2 Periodical Indexes

6. Parliamentary Information6.1 Debates6.2 Bills

7. United Kingdom Government7.1 Official Publications

8. Law Reform9. Devolved Governments          

9.1 Scotland9.1.1 Background9.1.2 Legislation9.1.3 Case Law          

9.2 Wales9.3 Northern Ireland

9.3.1 Background9.3.2 Legislation9.3.3 Case Law

10. The Legal Profession10.1 Legal Education10.2 Legal Publishers10.3 Legal News & Current Awareness

 

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1. The UK Legal System

1.1 Background and Constitution

The United Kingdom of Great Britain and Northern Ireland consists of four countries: England, Wales, Scotland and Northern Ireland. It was established in 1801 with the union of Great Britain and Ireland, but only achieved its present form in 1922 with the partition of Ireland and the establishment of the independent Irish Free State (later the Republic of Ireland).

England and Wales have a combined judicial system, while Scotland and Northern Ireland each have their own judicial systems.

There have been significant constitutional reforms since the Labour government came into power in 1997, which make any description of the legal system before then out of date. The Labour government immediately instituted a process of devolution, i.e. devolving certain areas of government to the component countries of the UK: a separate Scottish Parliament, Northern Ireland Assembly and Welsh Assembly were established following referendums in the countries concerned. In the context of these new legislatures the English Parliament is often referred to as ‘Westminster.’ The devolved governments are dealt with in separate sections below.

The UK joined the European Economic Community (now the European Union) in 1973, since when it has been a requirement to incorporate European Union legislation into UK law, and to recognise the jurisdiction of the European Court of Justice in matters of EU law.

The UK is a signatory to the European Convention of Human Rights. The Convention was incorporated into UK law with the passing of the Human Rights Act 1998, which allows for the provisions of the Convention to be applied directly by the UK courts.

The Queen is the Head of State, although in practice the supreme authority of the Crown is exercised by the government of the day. The legislature is a bicameral parliament. The House of Commons consists of 646 Members of Parliament (MPs), elected by simple majority vote in a general election every five years, although the Government has the right to call an election at any time before then, and in practice usually brings the date forward to secure electoral advantage. The House of Lords has about 750 Members, who fall into four categories: elected hereditary peers, life Peers, Law Lords and bishops; most are appointed on the recommendation of the Prime Minister or the House of Lords Appointments Commission.

There is no single written constitution. The constitutional law of the UK consists largely of statute law, case law and constitutional conventions which do not have statutory authority but nevertheless have binding force. Much of the relationship between the Sovereign and Parliament is conventional rather than statutory.

The Ministry of Justice, created on 9 May 2007, is the government department responsible for the justice system, the constitution and electoral matters. Its head is the Lord Chancellor and Secretary of State for Justice. The Ministry’s predecessor was the Department for Constitutional Affairs, which had itself superseded the Lord Chancellor’s Department in 2003.

1.2 Constitutional Reform

The government which came into power in 1997 (and is now in its third term of office) has instituted constitutional reforms in several areas, including the reform of the House of Lords, devolution and human rights.

The process of House of Lords reform began with the abolition of the voting rights of all the hereditary peers, apart from ninety-two who remain until the House is fully reformed. In July 2008 the government presented the latest in a series of white papers on House of

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Lords reform, setting out plans for an eighty or one hundred percent elected second chamber (Cm 7438). The House of Lords Information Office has a Briefing Paper on Reform and Proposals for Reform from 1900 to 1999 and the House of Lords Library has produced a Library Note on the reforms from 1997 to 2008.

The Human Rights Act was passed in 1998, incorporating into UK law the rights and freedoms guaranteed by the European Convention on Human Rights. Although the UK had been a signatory to the European Convention on Human Rights since 1951, the Act provided for the provisions of the Convention to be incorporated into domestic law. For information about the effects of the Act see the human rights pages of the Ministry of Justice website.

The government is currently considering the introduction of a Bill of Rights for the UK. On 23 March 2009 it published a green paper called “Rights and responsibilities: developing our constitutional framework”, Cm 7577.

For the effects of devolution reforms see below.

Valuable commentary on constitutional affairs, including a monthly newsletter, can be found on the website of the University College London (UCL) Constitution Unit.

2. The Court System

2.1 Civil Courts

In England and Wales, most civil cases at first instance are heard in either the County Court (minor claims) or the High Court (but certain types of civil case – such as family proceedings - are heard in the magistrates’ courts). The High Court has three divisions: Queen’s Bench, Family and Chancery. Appeals from the County Court go to the High Court or Court of Appeal, Civil Division; appeals from the magistrates’ courts go to the High Court; appeals from the High Court go to the Court of Appeal, Civil Division.

The House of Lords is, for a few more months, the supreme court of appeal for the whole of the UK in civil cases. A new Supreme Court will replace the judicial functions of the House of Lords in October 2009, under the Constitutional Reform Act 2005 (see Explanatory Notes), thereby making a constitutional separation between the legislature and the judiciary. Further information about the Supreme Court can be found on the Ministry of Justice website.

A diagram of the court system for England and Wales can be found on the website of Her Majesty’s Courts Service (HMCS).

A further appellate court, sometimes omitted in a description of the system, is the Judicial Committee of the Privy Council, which hears cases from the British overseas territories and dependencies and some Commonwealth countries as well as certain highly specialised domestic appeals. It also hears cases concerning questions relating to the powers and functions of the devolved legislatures of Scotland, Northern Ireland and Wales (see below); this area of its jurisdiction will be transferred to the new Supreme Court.

There has been extensive reform of civil procedure in recent years. Following the publication in 1996 of a major report by Lord Woolf: Access to justice: final report to the Lord Chancellor on the civil justice system in England and Wales, a completely new set of Civil Procedure Rules was put into operation in 1999, as well as new legislation modernising the courts and legal services. The Legal Services Commission was created under the Access to Justice Act 1999 to administer legal aid.

Her Majesty’s Courts Service (HMCS), an executive agency of the Ministry of Justice, is responsible for administration of the court system. It was established in 2005.

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In addition to the courts there are specialised tribunals, which hear appeals on decisions made by various public bodies and Government departments, in areas such as employment, immigration, social security, tax and land. They are administered by the Tribunals Service, which was set up in 2006 as an executive agency of the Ministry of Justice. In November 2008 the first phase of a programme of reforms to the tribunal system began, under the Tribunals, Courts and Enforcement Act 2007. Information about the reforms can be found on the Tribunals Service website.

2.2 Criminal Courts

All criminal cases are heard initially in the magistrates’ courts; the more serious ones are then transferred to the Crown Court. Appeals from the magistrates’ courts go to either to the Crown Court or the High Court; appeals from the Crown Court go to the Court of Appeal, Criminal Division. The final court of appeal for criminal cases in England, Wales and Northern Ireland is, at the time of writing, the House of Lords, but the new Supreme Court will take over this function from October 2009. A diagram of the civil and criminal court system in England and Wales can be found on the HMCS website.

Criminal procedure has recently been reformed: following the 2001 Review of the Criminal Courts by Sir Robin Auld, consolidated Criminal Procedure Rules were introduced in 2005.

 

3. Primary Sources of Law

3.1 Legislation

This section covers legislation by the UK Parliament at Westminster. For information about the devolved legislatures, see the sections on Scotland, Wales and Northern Ireland, below.

3.1.1 Primary Legislation: Acts of Parliament

There are two main categories of primary legislation: public general acts and local acts; this survey concentrates on public general acts. Depending on the legislative programme of the government, some 40-70 acts are passed each year. The sequential number of each act within a year is known as the chapter number (thus Banking Act 2009 c.1 - the first act to be passed in 2009).

Public general acts are published individually by The Stationery Office in pamphlet format, cumulating into several annual bound volumes. Explanatory notes are published separately for each act.

The principal printed source for revised acts is Halsbury’s Statutes, published by LexisNexis. It is arranged by subject in 50 volumes and contains the revised text of all acts in force, with extensive annotations. It is updated by means of an annual cumulative supplement and a loose-leaf noter-up.

Current Law Statutes, published by Sweet & Maxwell, contains acts as originally passed. It consists of annual volumes and each act has an introduction and annotations, but these do not give details of amendments. It is of particular value for finding the background to legislation and tracing the official documents (reports, white papers, etc.) and parliamentary debates which preceded an act.

3.1.2 Delegated Legislation: Statutory Instruments

Statutory instruments, or SIs, are rules, regulations and orders made under the authority of an act of parliament. There are up to about 3500 of these published annually, and they are numbered sequentially within each year (e.g. The Inquiry Rules 2006, SI 2006/1838).

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They often provide the detail required for the application of the act and some contain provisions for the commencement (coming into force) of legislation.

SIs are published individually by The Stationery Office and they cumulate annually into bound volumes.

 

3.1.3 Electronic Sources of Legislation

Free websites

The Office of Public Sector Information (OPSI) provides acts in their original form from 1988 onwards. Explanatory notes can also be found here. It has SIs from 1987 onwards.

The official Statute Law Database, provided by the National Archives, has revised acts. However, it is not as up-to-date as the subscription sources.

Acts can also be found on the British and Irish Legal Information Institute website, known as BAILII (original text from 1988 onwards, plus earlier revised texts extracted from the Statute Law Database).

 

Subscription databases

Justis provides the original texts of all acts from 1235 to the present. It has SIs from 1949 onwards (plus all earlier instruments that were still in force in 1948). Westlaw UK has revised acts and SIs. It also provides historical versions of acts. 

LexisNexis Butterworths also has revised acts (with the annotations from Halsbury’s Statutes) and SIs. It also has an email request service for historical versions of acts.

Lawtel contains the original text of acts from 1987 onwards and SIs from 1984 onwards, with lists of amendments and other status information 

3.2 Case Law

3.2.1 Law Reports

Cases of legal significance from the higher courts and tribunals are reported in numerous series of law reports. However, cases from the lower courts (magistrates’ courts, county courts and Crown Court) are very rarely reported and those which do not establish a noteworthy legal point are not reported at all.

Until 1865 case reporting was done by private court reporters; the resultant publications are called the nominate reports, because they are usually known by the name of the reporter. The nominate reports have been gathered together in a 178-volume collection called the English Reports (1220 - 1873), which makes them relatively easy to find. The English Reports are available free on the CommonLII website, as well as on several subscription databases (see below).

In 1865 the reporting of cases was systematised by the Incorporated Council of Law Reporting (ICLR), which started publishing series collectively known as The Law Reports. These are the most authoritative source of case law and should be cited in preference to other series where there is a choice.

The Law Reports (1865- ) comprises four separate series: Appeal Cases, Chancery Division, Queens Bench and Family Division. Judgments of the House of Lords and Privy Council

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appear in Appeal Cases; High Court cases appear in the series relating to the appropriate court division (e.g. Chancery); cases heard by the Court of Appeal do not appear in the Appeal Cases series, but in the series dedicated to the High Court division from which the case was appealed.

The ICLR also publishes the Weekly Law Reports (1954- ) and a few other series.

The All England Law Reports (1936 - ) is the only other general series of law reports, published by LexisNexis.

In addition there are a large number of specialised reports from various other publishers, covering different areas of law.

3.2.2 Citations

The Cardiff Index to Legal Abbreviations, a free website launched in 2004, is an authoritative directory of legal abbreviations, both British and worldwide.

The leading printed guide to UK legal abbreviations is Raistrick, D., Index to Legal Citations and Abbreviations, 3rd ed., Sweet and Maxwell, 2008.

3.2.3 Electronic Sources of Case Law

A distinction here has to be made between law reports and transcripts. In recent years there has been a growth in the provision of electronic transcripts of cases, many available free. Some of these, though not all, will subsequently be reported.

Free websites

BAILII contains an easily searchable and growing number of case law databases

CommonLII provides the full series of the English Reports

House of Lords judgments are available on the Parliament website from 1996 onwards, and are uploaded within two hours of the decision.

Other sources can be found via LAWLINKS, a directory of legal websites provided by the University of Kent.

Subscription Services

LexisNexis Butterworths contains The Law Reports 1865-; the All England Law Reports 1936-; and the All England Reprint and All England Reprint Extension, which contain cases from 1558-1935. In addition it contains many other cases from specialised series published by LexisNexis, plus unreported cases (transcripts) from 1980 onwards. It has the broadest case law coverage of any single service.

Westlaw UK contains The Law Reports 1865- and many other series, including the Weekly Law Reports and Criminal Appeal Reports. It also has unreported cases from 1999 onwards.

Justis has The Law Reports, 1865- and several other major series, including the English Reports and the Weekly Law Reports.

HeinOnline has the English Reports

Lawtel contains a large database of transcripts from about 1980 onwards.

There are numerous other services offering access to more specialised series of reports.

 

4. Encyclopaedias

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The leading legal encyclopaedia is Halsbury’s Laws of England, published in numerous volumes by LexisNexis. The fifth edition has recently started to come out, but the fourth edition has not yet been completely superseded. Halsbury’s Laws is available online via the LexisNexis Butterworths service.

5. Indexes and Digests

5.1 Legislation and Case Law IndexesThe Stationery Office publishes the Chronological Table of the Statutes, which lists amendments to statutes from 1235 onwards. It also used to produce a printed index, the Index to the Statutes, but this has been superseded by online sources. Sweet and Maxwell’s Current Law includes a Legislation Citator giving details of amendments.

The two major printed indexes to UK case law are The Digest, published by LexisNexis, and Current Law, published by Sweet and Maxwell. Both contain summaries of cases, with law report citations and references to cited cases and legislation.

Current Law is available electronically as part of Sweet and Maxwell’s CLI Online. The Current Law Case Citator, part of CLI Online, enables you to check the judicial history of a case and to see where it has been reported, and to trace case commentaries in journals, and links to the digest of the case in Current Law Cases. The database also includes the Current Law Legislation Citator, which enables you to find amendments, cases interpreting a piece of legislation and commentary in journal articles. The Current Law databases are available on Westlaw UK as well, though in a somewhat altered form.

JustCite is an electronic-only case and legislation citator produced by Justis Publishing.

5.2 Periodical Indexes

Legal Journals Index covers over 800 UK and English-language European titles. It started publication in 1986 and is no longer available in hard copy. It is available on Westlaw and CLI Online.

Index to Legal Periodicals, as US database, has good coverage of the more academic UK legal journals.

Lawtel also includes an articles index for about 60 law journals from around 1998.

6. Parliamentary Information

The UK Parliament website provides information on the current and past business of the two Houses of Parliament and their committees. It also has a wealth of general material on the parliamentary system, including factsheets on parliamentary procedure and history. You can also find details of the composition of Parliament and of the government of the day and links to official publications.

6.1 Debates

The debates of Parliament are published in Hansard. There are separate series for the House of Commons and the House of Lords and for Public Bill Committee (formerly Standing Committee) debates. Hansard is also available on the Parliament website, back to the 1988/89 session for the House of Commons and 1995/96 for the House of Lords. New debates appear within about 3 hours. There is also a prototype digitised version of Hansard from 1803 to 2005 on the same website.

6.2 Bills

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Current bills are available are on the Parliament website. Once a bill has become law it is removed from the site and a link to the act is given instead.

The progress of legislation can be looked up in the House of Commons Weekly Information Bulletin (current bills) and Sessional Information Digest (bills from previous sessions, 1995/96 onwards).

7. United Kingdom Government

Directgov is the UK government website, which acts as the main information point for all public services. It includes an A-Z list of central government departments and agencies with links to their respective websites.

7.1 Official Publications

Most official publications are published by The Stationery Office (TSO), a commercial company established in the mid-1990s following the privatisation of the trading functions of the official publisher, Her Majesty’s Stationery Office (HMSO). Part of HMSO remains within the OPSI (Office of Public Sector Information), handling the statutory functions of official publishing and administering crown and parliamentary copyright.

Some official publications are published by individual government departments or agencies rather than by TSO – see departmental websites for details.

TSO provides all command papers and House of Commons papers for free on its Official Documents website, together with a selection of earlier documents. It also has an online catalogue and bookshop.

The online index to official publications is the subscription database UKOP, which goes back to 1980. There is also a free index, BOPCRIS, covering selected publications from 1801 to 1995.

8. Law Reform

The Law Commission is an independent body set up in 1965 to keep the law of England and Wales under review and recommend reform where needed. Its projects are described on its website, and you can access Law Commission Reports and Consultation Papers in its online library. The Scottish Law Commission is the equivalent body for Scotland.

9. The Devolved Governments of Scotland, Wales and Northern Ireland

An introduction to devolution can be found on the Directgov site, including links to the websites of the devolved governments and assemblies themselves. For more detailed information, see the website of the UCL Constitution Unit.

9.1 Scotland

9.1.1 Background

The Scottish legal system is in part separate from that of England and Wales. It is a mixed system, combining elements of civil law and common law.

Under the Treaty of Union in 1707, when it became part of Great Britain, Scotland lost its independent legislative powers. Then in 1997 the new Labour Government carried through proposals for devolution, setting up a new Scottish Parliament. The first elections were held in 1999. The Scottish Parliament can legislate in most areas of domestic policy, but not foreign affairs, defence and national security, economic and monetary policy, employment or social security (see Scotland Act 1998, schedule 5).

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The Scottish court system is separate from that of England and Wales. The principal law officer is the Lord Advocate. The Court of Session is the supreme civil court, subject to appeal to the House of Lords; most civil cases are dealt with in the sheriff courts. The supreme criminal court is the High Court of Justiciary, and the lower courts are the sheriff courts and district courts. The Scottish Courts website contains information about the court system.

The legal encyclopaedia for Scotland is Laws of Scotland: Stair Memorial Encyclopaedia, a multi-volume work published by LexisNexis. It is also available online via LexisNexis Butterworths.

9.1.2 Legislation

The Scottish Parliament passed its first acts in 1999. The original texts of all acts of the Scottish Parliament (ASPs) are on the OPSI website, together with Scottish Statutory Instruments (SSIs) and other material. Revised ASPs and SSIs are available from the UK Statute Law Database, but may not be fully up-to-date – for more current versions, use the subscription databases Westlaw or LexisNexis Butterworths.

Acts of the UK Parliament at Westminster may apply wholly or partly to Scotland. Those which only apply to Scotland are not available on LexisNexis Butterworths, but they are on Westlaw UK. For other sources of Westminster acts, see above.

The Scottish Parliament site includes bills, debates and other official documents.

9.1.3 Case Law

The main series of Scottish law reports is Session Cases (1822- ). It reports not only cases heard in the Court of Session, but also in the House of Lords and the High Court of Justiciary. The series is available on LexisNexis Butterworths (1930 - ) and Westlaw UK (1898 - ).

The Scots Law Times (1893- ) is a weekly publication containing law reports. The whole series is on Westlaw.

There are also other Scottish series, and some significant Scottish judgments may be reported in the Weekly Law Reports and All England Law Reports.

BAILII publishes all the Scottish cases in the public domain, with links to legislation and cases cited. The Scottish Courts website contains the same cases, though without links, on its Court Judgments pages; you can also find information about the Scottish judiciary and the judicial system here.

9.2 Wales

Wales has been united with England administratively, politically and legally since the 16th century. Under arrangements for devolution a Welsh Assembly was established in 1999, following a referendum (see the Government of Wales Act 1998). At the time it could only make secondary legislation: Welsh Statutory Instruments.

The settlement created under the 1998 Act was substantially altered by the Government of Wales Act 2006. The National Assembly for Wales replaced the Welsh Assembly and was given limited powers to pass laws known as “measures,” which are equivalent to primary legislation. The first such measure was passed in 2008. Each measure within a year is given a serial number prefixed by “nawm” in the English-language version, or “mccc” in the Welsh-language version (equivalent to the chapter number of a Westminster act or the “asp” number of a Scottish Parliament act). The new Assembly also makes other types of legislation – these are outlined on its website.

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Welsh legislation can be found on the OPSI website and on BAILII. For Westminster legislation applying to Wales, see the UK sources mentioned above.

There is no separate Welsh case law; again, see the UK sources above.

9.3 Northern Ireland

9.3.1 Background

The island of Ireland was divided into Northern and Southern Ireland by the Government of Ireland Act 1920, passed by the UK Parliament at Westminster. The Act was rejected by the South, which left the United Kingdom to form the Irish Free State (now Ireland). What had been the United Kingdom of Great Britain and Ireland consequently became the United Kingdom of Great Britain and Northern Ireland.

The Parliament of Northern Ireland opened in 1921; from 1932 it was located at Stormont, near Belfast. It was given the power to legislate in most policy areas, but certain matters were still to be dealt with by the UK Parliament.

Civil unrest led to the suspension of the Stormont Parliament in March 1972. A new legislature, the Northern Ireland Assembly, was established in 1973, but suspended in May 1974, when the British government resumed direct rule.

In 1998, a political settlement for Northern Ireland was finally reached in the Good Friday Agreement (also known as the Belfast Agreement), which was endorsed by referendum. The Northern Ireland Act 1998 implemented the Agreement and the Northern Ireland (Elections) Act 1998 established the Northern Ireland Assembly. Legislative powers were devolved to the Assembly from 2 December 1999.Several times since then the Assembly has been suspended, but at the time of writing it has been in continuous operation since May 2007. (The suspension dates are: 11 February to 14 May 2000; 24 hours on 10 August 2001; 24 hours on 22 September 2001; and 14 October 2002 to 8 May 2007).

The Northern Ireland Office website provides background and current information. A valuable website for information and documents on the Northern Ireland conflict is the University of Ulster’s CAIN(Conflict Archive on the Internet).

9.3.2 Legislation Primary legislation: acts, measures and orders in Council Since the creation of Northern Ireland, acts applying to the province have been passed at various times by the Parliament of Northern Ireland, the UK Parliament at Westminster and the current Northern Ireland Assembly (see above for dates). The laws passed by the short-lived 1970s Northern Ireland Assembly were called measures, not acts.

Northern Ireland Orders in Council are a third type of (quasi-) primary legislation. Each has two reference numbers: an NI (Northern Ireland) number and an SI (statutory instrument) number, for example:The Budget (Northern Ireland) Order 2007, SI 2007 no. 914 (NI 8). Although mainly employed during periods of direct rule from Britain, they continue to be used in certain policy areas. Sources:

The acts of the Parliament of Northern Ireland (1921-72) were published by HMSO Belfast in annual volumes under the title Public General Acts, also known as Northern Ireland Statutes.

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 Orders in Council appear in Northern Ireland Statutes from 1972 onwards (the title pages give various titles but Northern Ireland Statutes always appears on the spine). They are on the OPSI websitefrom 1987 onwards.

The 1973/4 Northern Ireland Assembly’s measures were published in the 1974 volume of Northern Ireland Statutes (the volume’s title page reads Measures and Orders in Council) The acts of the current Northern Ireland Assembly are published in Northern Ireland Statutes (also known as Acts of the Northern Ireland Assembly). They are all available on the OPSI website as well, together with their Explanatory Notes. Westminster acts applying to Northern Ireland appear in the usual UK sources (see above).

Statutes Revised Northern Ireland: statutes of all the above types, except Westminster acts 1921 onwards and acts of the current Assembly, appear in this work. It also includes acts still applying to Northern Ireland which were passed by the Parliaments of England/Great Britain/the UK from 1226 to 1920 and those passed by the Parliament of Ireland at Dublin from 1495 to 1800.

The last printed edition of Statutes Revised Northern Ireland was the second, giving the text in force as at 31 March 1981. It has now been incorporated into the UK Statute Law Database and updated to 31 December 2005. 

Secondary legislation: statutory instruments and statutory rulesSecondary legislation applying to Northern Ireland takes two forms:

Statutory rules (SRs), made by Northern Ireland government departments: these have an SR number, for example the Social Security Benefits Up-rating Order (Northern Ireland) 1994, SR 1994/74. They are published in Northern Ireland Statutory Rules. They are all on the OPSI site from 1998 onwards, plus selected ones 1991 -

Statutory instruments (SIs), made by Westminster government departments: these have an SI number, for example The Maximum Number of Judges (Northern Ireland) Order 2001, SI 2001/958. They are distinguished from Orders in Council (see above) by the lack of an NI number. See above for sources of Westminster SIs.

Further information about Northern Ireland legislation can be found in a House of Commons Factsheet and on the OPSI and Statute Law Database websites.

 

9.3.3 Case Law

Northern Ireland has its own court structure, largely replicating that of England and Wales. The Northern Ireland Court Service website has a diagram.

The Northern Ireland Law Reports (1925 - ) cover cases from the superior courts and appeals from those courts to the House of Lords. The series was originally published by the

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Incorporated Council of Law Reporting for Northern Ireland; although now published by LexisNexis, it is the official series for Northern Ireland. It is on the LexisNexis Butterworths database (1945 - ).

The Northern Ireland Judgments Bulletin (1978 - ) is also published by LexisNexis.

The Bulletin of Northern Ireland Law (1981- ), published ten times a year by SLS Legal Publications, includes case summaries.

Northern Ireland decisions from 1998 onwards are available on BAILII.

10. The Legal Profession

The legal profession in England and Wales has two branches, solicitors and barristers. Barristers represent clients in the courts on the instruction of solicitors, although their exclusive rights of audience in the higher courts have been eroded in recent years. Barristers are organised into groups called “chambers,” but are essentially self-employed. Their professional organisation is called the Bar. Solicitors are organised into firms of varying size, from sole practitioner to large multinational practices. They provide all legal services and instruct barristers.

The Bar Council is the governing body for Barristers. The Law Society of England and Wales is the representative body for solicitors and the Solicitors Regulation Authority is the regulatory authority.

Northern Ireland has its own solicitors and barristers and therefore its own Law Society and Bar.

In Scotland the legal profession is divided into solicitors and advocates. Solicitors are governed by the Law Society of Scotland. Advocates are members of the Scottish Bar, the Faculty of Advocates.

10.1 Legal Education

Law degrees in England and Wales are at the undergraduate level. Professional training is provided at the postgraduate level by means of the Bar Vocational Course (BVC) for would-be barristers, and the Legal Practice Course (LPC) for solicitors.

Students with a first degree in a subject other than law must follow a one-year qualifying course known as the CPE (Common Professional Examination) or GDL (Graduate Diploma in Law) before being eligible for the professional courses. In order to complete their training student solicitors must find a post in a law firm as a trainee solicitor and barristers must obtain a pupillage in a set of barristers’ chambers. 

For information about legal education in Northern Ireland and Scotland, refer to the website of the UK Centre for Legal Education (the site also covers England and Wales).

10.2 Legal Publishers

There have been major changes in legal publishing in recent years. The venerable legal publisher Butterworths has been incorporated into LexisNexis, and the print publishing greatly reduced, academic titles having been sold on to Oxford University Press and many practitioners’ titles to Tottel Publishing, a new imprint. The other main UK legal publisher, Sweet & Maxwell (owned by Thomson Reuters), continues to have an extensive print list.

Two other substantial legal publishers are Routledge Cavendish and Hart Publishing; the latter tends more towards the academic market. Another important publisher is Cambridge University Press. Others include Ashgate, Barry Rose, Jordan, Macmillan and Wiley.

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The leading specialist law publisher for Scotland is W. Green, owned by Thomson Reuters. Some of the UK publishers mentioned above also publish Scottish law titles.

SLS Legal Publications, based at Queen’s University, Belfast, is a small publisher specialising in Northern Irish law.

10.3 Legal News & Current Awareness

The following are some of the sites providing free legal news:

       In Brief

       The Lawyer

       Law Society Gazette

       Elexica

       The Barrister

       Legal Week

       The Firm (Scotland)

       Scots Law News

In addition, the gateway site Legal Resources in the UK and Ireland has a directory of blogs.

LIS-LAW is the main online forum for discussion among law librarians in the UK.Hauser Global Law School Program, New York University School of Law

40 Washington Square South, New York, New York 10012-1099

Title: Introduction to the English Legal System

Commissioned Research Article

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A SHORT INTRODUCTION TO THE ENGLISH LEGAL SYSTEM

The DfES key stage 4 guidelines for the teaching of Citizenship as part of the National Curriculum state that in acquiring knowledge and understanding about becoming informed citizens, students should be taught about:

‘the legal and human rights and responsibilities underpinning society and how they relate to citizens, including the role and operation of the criminal and civil justice systems.’1

One of the key skills that students should develop is the ability to ‘study, think about and discuss topical political, spiritual, moral, social and cultural issues, problems and events.’2 The guidelines recognise that this can only be achieved through a growing awareness of the legal, political, religious, social, constitutional and economic systems that influence lives and communities.

This article focuses on one of those systems, the English legal system. However, recognising that this system of justice cannot be fully understood in isolation, we begin with a brief comment on the UK’s constitutional arrangements to show how the English legal system is the necessary product of the concept that is commonly referred to as ‘the rule of law’.

Introduction

The classical understanding of Britain’s unwritten constitutional tradition is that it rests on three pillars, namely:

parliamentary sovereignty; the separation of powers; and the rule of law.

To place the English legal system in its proper context, it is necessary to have some understanding of these concepts and particularly the rule of law.

1 www.nc.uk.net > Citizenship > key stage 42 Ibid.

Title: Introduction to the English Legal System

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Briefly, parliamentary sovereignty refers to the legislative supremacy of the UK Parliament. It means that there is no limit (apart from any self-imposed limit) on the capacity of the House of Commons, the House of Lords and the Crown to enact laws in the UK. The UK Parliament is the principal source of UK law.

The separation of powers refers to the idea that there is some degree of independence in the exercise of the different functions of government. Conventionally, these functions are described as the legislative, executive and judicial functions of government and can be seen most clearly in the work of Members of Parliament and the House of Lords (the legislature), the Cabinet (the executive) and the Judges (the judiciary). This separation is understood as being beneficial to the healthy operation of democratic government as, in theory at least, it provides a system of checks and balances that prevent too much state power being concentrated in the hands of one group. The new Supreme Court3, once in operation, will practically and visibly strengthen the constitutional separation between the legislature and the judiciary, primarily by taking judges out of the House of Lords. Current debate on the separation of powers focuses on whether, in practice, too much power resides in the hands of the executive.

The rule of law is something of an allusive notion that is difficult to pin down. There are several classic formulations of what the rule of law is but perhaps a glimpse of its essential nature can be seen by imagining each person in society asking themselves the question:

Why should I obey the law?

This is one of those strange questions that we may ask ourselves from time to time when we suddenly choose to question something that ‘seems’ both an obvious and a given part of the social order. We grow up with a notion of the law and often, its presence can seem as pervasive and constant as the air we breathe. At the same time, we take the existence of the law, the making of the law, the interpretation of the law and the application of the law for granted.

The International Bar Association’s ‘Rule of Law Resolution’ (2005) states that:

3 Created by the Constitutional Reform Act 2005 and expected to begin operating in 2009.

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‘The Rule of Law is the foundation of civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect.’

The truth, of course, is that everyone does not always obey the law, nor is there always a consensus on what the law is or should be. However, the maintenance of life in a modern democracy requires a willingness from most citizens for most of the time to observe the laws, even when individually they may not agree with them.

The rule of law, therefore, concerns the nature of the legal relationships between individuals and between the individuals and the state. It also concerns the range of processes through which the law governing those relationships can be enforced and administered. Principal themes that have grown out of the concept of the rule of law as it has developed in the UK are, for example:

that the law should not be arbitrarily or capriciously administered by those in power; that all people are equal before the law; that there should be a system to apply and interpret the law fairly and for all citizens.

The rest of this article is precisely about this system - the English legal system4.

If asking the question, “why should I obey the law?”, questions something we usually take for granted, then we are fortunate to have had that luxury in the past. Many countries do not have the benefit of the rule of law or a system of justice that is regularly applied without fear, favour or prejudice. In more recent times and especially since the recent growth of global terrorism, we must become increasingly aware that we can no longer take the benefits of a regular legal system for granted.

For further information see:

http://www.roldirectory.org/index.htm - the International Bar Association’s Rule of Law Directory.

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4 This article does not deal with the content, application or enforcement of Human Rights law.

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The sources of UK law

There are a number of law making institutions:

Institutions within the European Union (EU);

The UK Parliament and government;

The courts;

Regulatory bodies; and

International institutions

European Union Law

The EU was founded in 1957 and currently has 25 Member States with two more countries, Bulgaria and Romania, joining on 1 January 2007. The UK joined in 1973 and since then, the UK Parliament has bound itself to incorporate EU law into national law. While the UK remains a member of the EU, EU law takes precedence over national law. This means that the UK Parliament is no longer the supreme law-maker and, for the time being at least, it has limited its sovereignty.

The institutions of the EU

The Council of Ministers

The Council is the main decision-making body of the EU and consists of one minister from each Member State who is authorised to commit that State to legislative proposals.

The European Commission

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The Commission is made up of 25 Commissioners, one from each Member State, appointed for a five-year term of office. The Commission directs EU policy and brings legislative proposals before the Council for consideration.

The European Parliament

The Parliament consists of elected citizens from each of the Member States and there are currently 78 MEPs from the UK. Interestingly, and unlike the UK Parliament, the European Parliament has no direct law making powers. It debates legislative proposals and is permitted to put questions to the Commission and the Council.

The European Court of Justice (ECJ)

The ECJ is based in Luxembourg. It has 25 judges, one from each Member State and 8 Advocates-General. The Advocates-General prepare an impartial and independent legal view of each case which is presented to the ECJ for consideration. The primary function of the European Court of Justice is to ensure that the interpretation and application of the Treaty of Rome 1957 (the EU’s founding Treaty) is observed. The ECJ has a wide jurisdiction over EU law and can hear cases brought by any of the EU institutions, Member States or individuals e.g. appeals from the House of Lords.

For further information about the institutions of the EU see:

http://news.bbc.co.uk/1/shared/spl/hi/europe/04/eu_institutions/html/introduction.stm

http://www.curia.europa.eu/en/instit/presentationfr/index_cje.htm - European Court of Justice

The types of EU law

EU law can have what is known as direct effect. That means that the law automatically becomes part of each Member State’s domestic law. Furthermore, EU law can have what is known as either vertical or horizontal direct effect. Vertical direct effect allows an individual to use a legal provision to legally challenge the act of the state, government or public body. Horizontal direct effect enables an individual or other body to legally challenge private individuals or bodies.

The types of EU law are:

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Treaties: Vertical and in certain circumstances horizontal direct effect

Treaties are the primary sources of EU law and do not need to be given legal effect by the UK Parliament. Treaties can create individual rights.

Regulations: Vertical and in certain circumstances horizontal direct effect

Article 249 of the Treaty of Rome makes the effect of Regulations legally binding in every respect in each Member State without that Member State having also to implement the law. Citizens may rely on them both against the state and against private individuals or bodies.

Directives: Vertical direct effect but not horizontal direct effect

Directives are binding on Member States who are then left to implement their provisions into domestic law. In the UK, this is done either by Act of Parliament or secondary legislation (see below) and there is usually some scope for flexibility in the precise nature of the implementation. Once the provisions become part of domestic law, they can also have horizontal effect.

Decisions:

Decisions are rulings on a range of different issues. They can be addressed to Member States, individuals or other bodies and are binding on them.

Recommendations and Opinions: no direct effect

Recommendations and Opinions do not create enforceable rights but can be influential on the application of EU law in a Member State or its interpretation by the courts of that Member State. Recommendations and Opinions are not binding.

EU case law:

Decisions of the ECJ set a precedent to be followed by lower courts in a similar way to the common law tradition in England where judges make and develop the law through following previous decisions. While the ECJ can bind the House of Lords in the UK, the ECJ itself is not bound by its own decisions.

The UK Parliament and government

Parliamentary Sovereignty

Before joining the EU, Parliamentary Sovereignty meant that the law made by the UK Parliament could not be challenged. When the UK joined the EU (then known as the European Economic Community or ECC) in 1973 it did so by passing the European Communities Act 1972. This effectively ended Parliamentary Sovereignty so that EU law now takes precedence over national law. In the case of R v Secretary of State for Transport, ex parte Factortame (1990) this was put to the test and a conflict between a UK statute and Treaty of Rome was decided in favour of the Treaty of Rome.

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In recent years, law making powers have been devolved from the UK Parliament to other regional democratically elected bodies e.g. the National Assembly for Wales.

Primary legislation

In Britain, primary legislation is statutory and takes the form of an Act of Parliament. Usually, about 80 or so Acts of Parliament receive Royal Assent each year. Before it becomes law, an Act is called a Bill and passes through the parliamentary process in draft form being subject to debate, amendments and scrutiny by both Houses of Parliament. Once the Bill has been given the assent of the Monarch it becomes an Act of Parliament. However, an Act may not become legally ‘effective’ on the day of its assent, as the government may provide for another day(s) to be appointed on which the laws in the Act will come into force. An Act of Parliament can usually only be amended by passing another Act of Parliament containing those amendments.

The House of Lords used to be able to prevent Bills from becoming law even where the House of Commons voted in favour of them. It is now accepted that this power is limited by the Parliament Acts of 1911 and 1949. It is possible for the House of Lords to delay a Bill (apart from a so called ‘money bill’ i.e. bills connected with the budget) for up to one year after which the government can re-introduce the Bill and if it passes in the House of Commons for a second time, it then becomes law. The prevailing will of the House of Commons is due to MPs being the democratically elected representatives of the citizens. Despite this, the power is used very rarely and most recently in the controversial passing of the Hunting Act 2004.

Secondary legislation

Many people do not realise the huge amount of secondary legislation made under the authority of an Act of Parliament. The Act gives authority to a person e.g. a Secretary of State or other body to make the detail of the law on Parliament’s behalf. For this reason, secondary legislation is also known as delegated legislation. It takes a number of forms but the most used type of delegated legislation takes the form of regulations or orders known as Statutory Instruments and typically some 3,000 are made each year.

Secondary legislation is necessary simply because there is not time for Parliament to deal with all the detail of information, nor would they necessarily have the required specialist knowledge. There are parliamentary controls on secondary legislation although these are sometimes criticised for being insufficient. Delegated legislation has also been criticised for being undemocratic because it can be made by unelected individuals, often without a formal consultation process and with very little publicity.

For further information see:

www.parliament.uk

www.parliament.uk/bills/bills.cfm

www.opsi.gov.uk/acts.htm

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The English courts

The courts are arranged in a hierarchical structure, an outline of which is illustrated in the following diagram5:

5 Judicial Statistics, Annual Report 2005 (CM6799) (London, The Stationery Office, 2006)

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It can be seen that the House of Lords6 is the highest court in the UK and its decisions can only be overturned by a decision of the ECJ or the European Court of Human Rights. (These latter two institutions can also overturn the decisions of the lower courts.) The House of Lords should not be confused with the second legislative chamber of Parliament. The House of Lords when sitting as the most senior appellate court, consists of a number of Law Lords who hear appeals which have been sent to them by the Court of Appeal and which they have, in addition, agreed to hear. The direction of the arrows in the diagram, show broadly the path of appeals upwards from the decisions of the lower courts.

After the House of Lords, the Court of Appeal’s decisions are the most authoritative and after those, the decisions of the High Court. The system whereby judges follow the decisions of higher courts is known as the ‘doctrine of precedent’ and it is this practice that has led to the development of the ‘common law’. England is a common law country and much of the minutiae of the law and indeed some of the law’s most basic principles are judge made, having been decided in cases heard in the courts. The common law can, of course, be changed by statute.

Judicial Precedent

Briefly, judicial precedent means that a decided rule of law is followed in similar cases until it is overturned or modified by a higher court. Where there is no previous decision on a point of law then a court may make its own decision, which may then be appealed in the higher courts.

Once a higher court reaches a decision, that decision is binding on all lower courts in like-for-like cases. Courts must follow their own decisions, except the House of Lords and the High Court. The High Court must follow the decisions of its Divisional Courts and usually the later of two conflicting judgments.

In 1966 the Lord Chancellor published a Practice Statement allowing the House of Lords, in exceptional circumstances, the flexibility to change its view despite there being a clear precedent to follow. This removes the possibility of the law becoming too rigid and the risk that the doctrine of precedent could restrict the healthy development of the law.

Precedent can be either binding or persuasive.

A past decision is binding if:

The legal point being argued in court is the same as the legal point that was argued in the precedent

The facts of the case are of a similar nature to those of the precedent The precedent is a decision of a higher court

A persuasive precedent can come from statements within relevant judgments from other courts which are higher or lower in the hierarchy, although the more senior courts will be more persuasive. Dissenting judgments can also be persuasive, as can the decisions of courts outside the English legal system e.g. the European Court of Human Rights and the courts of Commonwealth countries.

Statutory interpretation

6 It is proposed that the new Supreme Court will take over the appellate function of the House of Lords and certain powers of the Judicial Committee of the Privy Council.

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Judges also play a role in interpreting Acts of Parliament and secondary legislation. This is often necessary because words can sometimes have more than one meaning and so interpretation can be confusing or ambiguous. The traditional approach to statutory interpretation has been a literal approach where the words are given their plain, dictionary meaning. This stands in contrast to the approach that tends to be favoured in Europe, where judges look to interpret the purpose of the law makers. This is known as taking a purposive approach.

The literal approach tends to produce a very gradual, conservative and restrictive attitude towards legal development; the idea being that judges should not make law but simply implement what Parliament has decided. It is now commonly accepted that judges do in fact make law and the purposive approach allows judges to interpret what they think Parliament was trying to achieve. It would be fair to say that there has been a steady move towards a more purposive approach in the English courts. However, the literal approach is still dominant and this is reflected in the various technical rules of statutory interpretation to ascertain the meaning of a statute and the rules to aid the interpretation of individual words.

Systems of justice upheld and enforced by the courts

The English legal system has a number of distinct systems of justice which operate internally according to their own, often complex, procedures.

One of the most fundamental distinctions is between the criminal justice system and the civil justice system.7 Indeed, the civil justice system could itself be subdivided into, for example, the administrative justice system8 and the family justice system.

For further information see:

www.hmc-service.gov.uk – Her Majesty’s Court Service

www.dca.gov.uk – the Department for Constitutional Affairs website contains links to the principal systems of justice enforced by the courts.

Regulatory bodies

There are a number of national regulatory bodies which have the power to make rules and regulations which are binding on citizens in certain circumstances. Usually, this rule making power is conferred by Act of Parliament so the regulatory body becomes an agent of the government. Such bodies include, for example:

7 See the brief explanation of each system below.8 Administrative law is a special sort of civil law that mainly concerns the interactions of citizens with the state, especially where the state is making decisions affecting individual citizens. Administrative law cases are mostly heard in tribunals specific to the subject.

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The Financial Services Authority (FSA) – regulates the UK’s financial markets and other financial activities in an attempt to ensure fairness and transparency for investors and those who buy financial products.

The Law Society – regulates the provision of legal services by the solicitors’ profession, especially professional conduct.

The Civil Aviation Authority (CAA) – regulates e.g. airports, air traffic services and safety.

The practice of devolving power from central government to separate regulatory bodies is increasing.

International law making bodies

There are a number of international institutions whose policies and rules can become part of national laws e.g. shipping law, conventions of warfare, use of the internet.

Development in communications, transport and the increasing awareness of issues which affect everyone on the planet e.g. climate change, global terrorism and genetic research will inevitably result in calls for law to be made increasingly on an international rather than national basis.

The English Legal System in Practice

The provision of legal services

It is a common misunderstanding that all legal work is carried out by lawyers through the courts. This is wrong in two respects:

Firstly, while there is a distinct legal profession consisting principally of solicitors and barristers, many other people are involved in the English legal system e.g. the police, magistrates, juries etc.

Secondly, many lawyers (particularly solicitors) rarely become involved with the work of the courts. This is especially the case where a solicitor specialises in what is known as ‘non-contentious’ work. Non-contentious work involves acting for clients in areas where they have no dispute with another party; clients simply want to organise their affairs legally and in such a way as to reduce the risk of exposing themselves to any potential dispute in the future. Typical examples of non-contentious work include housing law, business and commercial law, wills and probate work. Even barristers, who predominantly concentrate on advocacy work (representing clients in court), carry out other work, for example, advising on a particular area of law in which they have expertise. Indeed, some barristers working in areas such a taxation or patent law may rarely ever appear in court.

The Judiciary

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The Lord Chancellor is responsible for the Judiciary and also the government Department for Constitutional Affairs. The appointment of Lord Chancellor is a political appointment made by the Prime Minister. Traditionally, the role of Lord Chancellor has been criticised on constitutional grounds for undermining the concept of ‘the separation of powers’. This is because, until recently, his office involved being speaker in the House of Lords, taking a seat in Cabinet and being a judge and the head of the Judiciary. However, as a result of the Constitutional Reform Act 2005, the House of Lords agreed to elect its own presiding officer. The election took place on 28 June 2006 and it was announced on 4 July 2006 that the first elected Lord Speaker was to be Baroness Hayman. In addition, the Lord Chancellor is no longer a judge nor head of the Judiciary.

Historically, the Lord Chancellor was responsible for judicial appointments. However, as a result of the Constitutional Reform Act 2005, the Judicial Appointments Commission (JAC) has been established. The JAC was launched in April 2006 and its role is to assess, select and recommend candidates for judicial appointment. The Lord Chancellor’s powers of judicial appointment have as a result been reduced and this is seen as strengthening the independence of judges.

There are different kinds of judges and the most common distinction is made between what are known as superior judges and inferior judges:

Superior judges

Law Lords (their formal title is ‘Lords of Appeal in Ordinary’) sit in the House of Lords.9

Lords Justices of Appeal sit in the Court of Appeal.

High Court Judges (also known as Puisne Judges) sit in the High Court and are appointed to one of the three ‘divisions’ of the High Court i.e. Queen’s Bench, Chancery or Family (see the diagram on page 8, above).

Inferior Judges

Circuit Judges are full-time judges who sit in the county court or Crown Court.

Recorders are part-time judges that sit usually in the county court and Crown Court.

District Judges sit in the county court and Magistrates’ Court.

It is important that judges are independent and are seen to be independent. Judges cannot be sued for anything they do in connection with the exercise of their office and senior judges have security of tenure which means that they cannot be removed from office other than by the Monarch following a petition from both Houses of Parliament. Judges have in the past been criticised for being too conservative (both politically and socially) and personally unrepresentative of the diversity that exists within the UK’s population. The reforms brought about by the Constitutional Reform Act 2005 are, in part, designed to remedy this.

9 see footnote 6, above

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For further information see:

www.legalservices.gov.uk – the Legal Services Commission

www.lawsociety.org.uk – solicitors’ regulator

www.barcouncil.org.uk – barristers’ regulator

www.dca.gov.uk – the website for the Department for Constitutional Affairs – links to judicial appointments procedures and statistics

www.jsboard.co.uk – the Judicial Studies Board

http://www.judicialappointments.gov.uk/ - The Judicial Appointments Commission

A brief comparison between the criminal and civil justice systems

One of the principal functions of the English Courts is to operate different systems of justice which are distinct according to the area of law they deal with and the court procedures employed.

A fundamental distinction can be drawn between the criminal and civil justice systems. Broadly speaking, the criminal justice system enforces the criminal law in the criminal courts using its own criminal procedures. The civil justice system enforces the civil law in the civil courts using its own internal civil procedure rules. The main differences between the two systems are set out below:

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The criminal justice system – the basics:

The criminal law is a form of public law designed to prevent or enforce certain types of behaviour and punish offenders. Criminal cases are heard first in the Magistrates Court or the Crown Court. A prosecution is brought by the Crown Prosecution Service (CPS) usually following police investigation and arrest. The defendant will be tried by Magistrates in the Magistrates Court for non-serious crimes or by judge and jury in the Crown Court for serious crimes. In criminal cases, the burden of proof is known as ‘beyond reasonable doubt’ which means that the jury must have no reasonable doubt in the their mind that the defendant is guilty of the crime he is being tried for. If found guilty, the defendant can be fined and/or imprisoned or made subject to a community order.

The civil justice system – the basics:

The civil law is a form of private law because it governs the relationships between individuals in society e.g. contract law, planning law, company law. Civil cases are heard principally in the High Court and the county courts where allocation usually depends upon the size and complexity of a particular case. The usual scenario is that a claimant will sue a defendant hoping that the court will decide liability in his favour. The court has to make a decision on the basis of what is known as the ‘balance of probability’ where an assessment is made between what is the most likely version of the facts of a case. Once liability has been decided, the victor may be entitled to damages, usually in the form of a financial sum, or a decision of the court in the form of an injunction or declaration, which may for example, permit or prohibit a particular course of action.

The division between civil and criminal law is seen most clearly in the Court of Appeal which has two divisions - the Court of Appeal (Civil Division) headed by the Master of the Rolls and the Court of Appeal (Criminal Division) headed by the Lord Chief Justice. However, it cannot be over-emphasised that to view these two systems of justice merely through the internal workings of the criminal and civil courts is to see only part of the picture:

The wider picture…

The criminal justice system

The criminal justice system involves a large number of different agencies that interact with the courts to form the web of relationships that is the criminal justice system. Such agencies include e.g. the police, the Crown Prosecution Service, the prison and probation services and victim support services. Furthermore, it is not just the criminal law itself that is constantly

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changing and developing to meet new circumstances. Police powers and the law on sentencing are also subject to review and recent tensions between the legislature and the agencies who exercise these powers and laws have been brought to the public’s attention by the media e.g. the number of days that police can hold terror suspects for questioning or, in relation to the maximum sentences serious offenders can be given by the courts.

The criminal justice system currently faces actual and proposed reform on all fronts. For further information on the detailed working of the criminal justice system and proposed reforms see:

www.cjsonline.org – the criminal justice system online

www.sentencing-guidelines.gov.uk

www.youth-justice-board.gov.uk

www.homeoffice.gov.uk – links to the British Crime Survey

www.magistrates-association.org.uk

The civil justice system

First, it is important to reiterate that only disputed issues of civil law see the inside of a courtroom. That having been said, the structure of the civil courts (see the diagram on page 8, above) is somewhat complicated and deserves further explanation.

The county court hears all ‘small claims’ cases (usually under £5,000) and the simpler ‘fast track’ cases of £5,000 - £15,000. Cases where the disputed amount is above £15,000 are called ‘multi-track’ cases and these can sometimes be tried in the county court. Complex cases above £15,000 will be tried in the High Court.

The diagram also shows the three divisions of the High Court10. The divisions handle different types of civil work and can be briefly characterised as follows:

The Queen’s Bench Division deals with contract and tort (e.g. negligence, libel and trespass) claims and the specialist areas dealt with in claims brought before the Admiralty Court, Commercial Court and Technology and Construction Court. When sitting as a Divisional Court, the Queen’s Bench Division also deals with inter alia judicial review cases.

The Chancery Division deals with disputes such as personal insolvency and the enforcement of mortgages, trusts and intellectual property matters and the specialist areas of law pertaining to the Companies Court and the Patent Court.

The Family Division deals with family related disputes, wardship cases and other legal issues connected to child protection.

10 In 2005, the Government consulted on whether to combine the county court and High Court (including its divisions) to form a single unified civil court.

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From this description of the nature of the High Court, it can be seen that the landscape of civil law is vast. Civil law is, in effect, anything that is not criminal law and focuses on the implementation, maintenance and protection of legal rights and responsibilities e.g. the ownership of property or legally binding agreements.

Despite the fact that a dispute in civil law is between two or more private parties, the state maintains a civil justice system as a way of ensuring that each party is capable of gaining a fair trial using procedures that are equally applicable to each party.

The civil justice system has not been without criticism and an attempt was made in the late 1990s to simplify the rules of civil procedure. Nevertheless, the system still remains time consuming and complex with perhaps the biggest criticism being the costs involved in bringing cases to court. (In the same way that it would benefit the health system if doctors concentrated on preventing illness, it would be equally beneficial to the civil justice system if lawyers minimised the risk of cases going to court.)

One of the aims of the civil procedure reforms was to place a greater emphasis on parties having the opportunity to use a variety of other means of resolving disputes outside the court system. This has become known as ‘alternative dispute resolution’ (ADR) and includes e.g. arbitration or mediation. Once the parties agree to such a route, the decision is legally binding and in most cases, the parties benefit from the advantages of privacy, speed and cost.

For further information see:

www.dca.gov.uk – the Department for Constitutional Affairs contains links to various aspects of the civil justice system (including the Civil Procedure Rules) and alternative dispute resolution.

www.hmcourts-service.gov.uk – Her Majesty’s Court Service

End piece

Hopefully, this article will not just have alerted the reader to the complexities of the English legal system but will have helped to demonstrate the necessity of such a system in a thriving democracy. Society needs both a robust and yet flexible legal system which can maintain public confidence and also adapt to new challenges.

We have examined the sources of English law and also seen something of how those laws are applied, interpreted and enforced in practice, particularly through the criminal and civil justice systems. It is impossible in such a short article to go into the minutiae of the inner workings of those two systems of justice but hopefully, the reader will feel equipped to refer either to more detailed text books or the suggested web-sites for further information.

Michael HoldsworthOxfordNovember 2006

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Difference btw civil & cmmon law

However, understanding how our laws are developed and enforced always has a relevance to the bigger picture of our society, for if we understand this, we understand how the laws we live by are made.

Part of the problem is that explaining the difference between a civil law system and a system of common law is not exactly easy. I remember a couple of years back when I was asked whether Singapore has a civil law or common law system — I tried to discern the difference from Wikipedia, and came away stumped.

In a sense, the meaning of "common law" should be obvious from phrases such as "common law wife" — this is law which exists by unwritten convention, not written statutes.

Meanwhile, a civil law system develops through an existing legislative process. This is a system followed by most countries around the world, especially in Europe, and so we can see a very neat contrast between the United Kingdom and its European neighbours.

The common law system is predominant throughout the Commonwealth of Nations, thanks to their shared British heritage. Most former British colonies derive their laws from the same common law as England (the common law is actually a thoroughly English creature — the Scots and Irish were not subject to this system).

Now, you might be scratching your head at this point, because virtually all former British colonies, and even Britain herself, have legislative bodies. Don't these legislatures make written laws?

Well, yes, they do. However, the old body of common law continues to coexist with written law (although the written civil law does override the common law when they come in conflict).

Moreover, the body of common law continues to develop. Common law develops from the judgments handed down by the judiciary. The English legal system (and thus the legal systems of most of its former colonies) is marked by a very strict following of judicial precedent.

This principle, known in Latin as stare decisis, means that the courts follow the judgments of courts above them in the hierarchy. They can deviate from these judgments creatively by distinguishing a particular situation, but otherwise, they have to follow precedent.

This of course confers quite a few benefits. I've touched on one of them before — the flexibility offered by the common law in wedge cases or grey areas. This flexibility is not easy to achieve under a civil law system, as only the legislature can modify the law if the law is unjust.

But at the same time, the common law is markedly inflexible. It is difficult to update

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common law to change with the times. For example, it was established in the early 19th century by Adams v Lindsell that an offer to make a contract takes effect the moment its acceptance is posted — not received.

This judgment, which was creatively used to correct the uniquely unjust situation of the Adamscase, does not make much logic to the ears of the ordinary man — nor should it.

Similarly, another tenet of contract law according to the common law is that there must be consideration provided for any contract — I need to provide something for you to provide something else to me (a typical quid pro quo deal) unless the contract is written.

The problem is that in the case of unwritten contracts which should be enforced, there are times when the courts have had to lay down ridiculous judgments, declaring that, for example, a peppercorn counts as consideration.

With the development of the principle that a binding contract should have the intention to create legal relations in the early 20th century, the idea of consideration no longer has much use — and yet it remains.

Why? Because the courts are notorious for finding it difficult to retreat from the body of legal tradition which already exists. The legislature could act to change the law — as the legislative bodies of some former British colonies have done — but Parliamentarians are not known for caring about these obscure but nevertheless important details.

In a civil system, on the other hand, once a law has proven to be bad, it is amended or repealed. Because only the legislature can provide recourse in such a situation, there is no need to get one's hands dirty and file a lawsuit, hoping that it will reach the highest court of the land, and the judges here will be radical enough to depart from precedent.

Clearly, the common and civil law systems both have their advantages and disadvantages. Having been exposed to the common law system for much of my life, I must say I prefer it to a purely civil law system because of the flexibility that judicial precedent and statutory interpretation can offer judges.

Oh, and as for Singapore? I'm still not sure, but as far as I can ascertain, it operates under a common law system, and until a few decades ago, it was possible to appeal to the English Privy Council in a Singaporean case.

Civil vs common law

s an international business attorney, it’s not unusual for a client to ask me what the difference is between civil law and common law. It’s always a great question and lets me know that

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they’re engaged and invested in the legal process. This is so whether I’m dealing with a transaction or a dispute.It’s a great question because the differences between the two legal systems not only impact how business is done, but also how other business people and their lawyers think.  For example, an English solicitor may advise you that you have a very solid and strong case underEnglish Law, whereas a French lawyer might say of the same case, that it appears good ‘but you never know what will happen on the day’.The Basic Difference Between the Two Systems  Civil Law: A Civil Law country has a body of law (passed by Parliament) that can be referred to in

each individual case and there is no such thing as binding precedent. It is the most prevalent and oldest surviving legal system in the world and is found in continental Europe, much of Latin America and in parts of Asia and Africa.

Common Law: In Common Law systems the law continually evolves in addition to being amended by laws passed by the legislature. If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court – the decision of the higher court is a binding precedent. 

Common law legal systems are in use in England where it originated, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia

Here’s an Example:In the U.S. (except Louisiana), if you want to know what the law is, you check the statutes, rules and regulations. But you also need to review how these laws have been interpreted and applied by reviewing past legal cases.Under the Civil Code your inquiry stops with the statutes, rules and regulation – the Civil Code itself. Forget about creative interpretations of the law, or complying with the spirit of the law rather than the letter of the law. If the Civil Code says that you need to do X, you need to do X. There is no room for making analogical arguments, such as since doing Y would have the same result as doing X, it should be okay – and perfectly legal – to do Y rather than X. You might as well stop the analysis, and get ready to follow the letter of the law exactly, even if you can think of a hundred different and perhaps better ways to accomplish the same thing.Pros and ConsThe benefit of a common law system is that you can be confident of what will happen in your case if a similar case has been heard before. The drawback is that if you have an unusual case, there is nothing to stop a judge creating a new law and applying it to your case.The benefit of a civil law system is that you can only be judged by the laws which were actually written down in front of you at the time. The drawback is that even if previous cases show you should win your case, there is no guarantee a judge will interpret the code in the same way on your case.ConclusionAlthough the distinction between the two systems is a basic tenet of international law, their different legal approaches should be factored into every major international business decision that is made.

      -Santiago

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COMMON LAW PROCEDURES

Precedent

As the work of the common law courts grew, the judges began to use previous

decisions as a guide for later cases. This was the beginning of the doctrine of

precedent.

The writ system

The judges also developed the writ system. A writ is simply a document setting out the

details of a claim. Writs were issued to create new rights not recognised by the local

courts and this helped to attract business. Over a period of time the writ system

became extremely formal and beset with technicalities and claims would only be

allowed if they could fit into an existing writ. The rule was 'no writ, no remedy'. For

example, certain writs of trespass would only be issued for those acts done with force

and arms against the King's Peace. If the two requirements were not met, a person had

no claim.

Even if a writ was obtained, the judges would often spend more time examining the

validity of the writ than the merits of the claim. Writs were issued by the clerks in the

Chancellor's Office and they began to issue new writs to overcome these difficulties, in

effect creating new legal rights.

In 1258 the Provisions of Oxford forbade the issue of new writs without the permission

of the King in Council. As a result the common law became rigid and the rules

operated unjustly. In 1285 the Statute of Westminster II authorised the clerks to issue

new writs but only if claims were in 'like cases' to those before 1258. This was

restrictive and made further development of the common law very technical.

Other defects in the common law

There were also other faults with the common law courts, for example:

* the common law courts used juries which could be intimidated and corrupted.

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* the common law had only one remedy, damages, which was often inadequate.

* the common law paid too much attention to formalities, eg if a contract was made

which required written evidence for its enforcement, then lack of such evidence meant

that the common law courts would grant no remedy.

* the common law courts did not recognise the trust.

THE DEVELOPMENT OF EQUITY

 

Meaning

The word "equity" means fair or just in its wider sense, but its legal meaning is the

rules developed to mitigate the severity of the common law.

Petitioning the King

Disappointed litigants began to petition the King as the "Fountain of Justice", the

procedure being to present a petition (or bill) asking him to do justice in respect of

some complaint. For a time the King in Council determined these petitions himself, but

as the work increased he passed them to the Chancellor as the "Keeper of the King's

Conscience".

The Chancellor was usually a clergyman, generally a bishop, and learned in the civil

and canon law. The King, through his Chancellor, eventually set up a special court, the

Court of Chancery, to deal with these petitions. The Chancellor supervised the

Chancery where clerks (who originally worked behind a wooden screen - cancelleria -

hence Chancery) issued writs, commissions and other legal documents.

The Chancellor dealt with these petitions on the basis of what was morally right. The

Chancellor would give or withold relief, not according to any precedent, but according

to the effect produced upon his own individual sense of right and wrong by the merits

of the particular case before him.

In 1474 the Chancellor issued the first decree in his own name, which began the

independence of the Court of Chancery from the King's Council.

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New Procedures

Equity was not bound by the writ system and cases were heard in English instead of

Latin. The Chancellor did not use juries and he concerned himself with questions of

fact. He could order a party to disclose documents. The Chancellor issued subpoenas

compelling the attendance of the defendant or witnesses whom he could examine on

oath.

New Rights

Equity created new rights by recognising trusts and giving beneficiaries rights against

trustees. (A trust arises if one party gives property to trustees to hold for the use of

beneficiaries.) The common law did not recognise such a device and regarded the

trustees as owners.

Equity also developed the equity of redemption. At common law, under a mortgage, if

the mortgagor had not repaid the loan once the legal redemption date had passed, he

would lose the property but remain liable to repay the loan. Equity allowed him to keep

the property if he repaid the loan with interest. This right to redeem the property is

known as the equity of redemption.

New Remedies

Equity created new remedies:

(a) Specific performance, which is an order telling a party to perform their part of a

contract. This was useful where damages were not adequate, eg, in the sale of land.

Thus if the seller refused to sell after signing a contract, the buyer could obtain an

order of specific performance making the seller sell the house.

(b) Rectification, which allowed a written document to be changed if it did not

represent the actual agreement made by the parties.

(c) Rescission, which allowed parties to a contract to be put back in their original

position in the case of a contract induced by a misrepresentation.

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(d) Injunctions, usually an order to stop a person doing a particular act, like acting in

breach of contract (a prohibitory injunction).

EQUITY AND THE COMMON LAW

 

Rivalry between the Courts

The Court of Equity (or Chancery) became very popular because of its flexibility; its

superior procedures; and its more appropriate remedies. Problems arose as to the

issue of injunctions: the common law courts objected to the Chancellor issuing

injunctions restraining the parties to an action at common law either from proceeding

with it or, having obtained judgement, from entering it in cases where, in the

Chancellor's opinion, injustice would result. Consequently, a certain rivalry developed

between the two courts and this came to a head in the Earl of Oxford's Case (1616) 1

Rep Ch 1 in which the common law court gave a verdict in favour of one party and the

Court of Equity then issued an injunction to prevent that party enforcing that

judgement. The dispute was referred to the King who asked the Attorney-General to

make a ruling. It was decided that in cases of conflict between common law and equity,

equity was to prevail. From that time on the common law and equity worked together,

side by side.

As equity was developing, it had no fixed rules of its own and each Chancellor gave

judgement according to his own conscience. This led to criticism about the outcome of

cases and John Selden, an eminent seventeenth century jurist, declared, "Equity varies

with the length of the Chancellor's foot". To combat this criticism Lord Nottingham

(Lord Chancellor 1673-82) started to introduce a more systematic approach to cases

and by the nineteenth century, equity had become as rigid as the common law. Delays

were caused by an inadequate number of judges and the officials depended on fees

paid by the litigants so that there was every incentive to prolong litigation for

individual tasks and mulitply these tasks.

Some attempt was made to assimilate the remedies granted by the Court of Chancery

and the common law courts. Thus under the Common Law Procedure Act 1854 the

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common law courts were given some power to award equitable remedies and the

Chancery Amendment Act 1858 gave the Chancellor the power to grant damages in

addition to, or in substitution for, an injunction or a decree of specific performance.

The Judicature Acts 1873-75

The Judicature Acts 1873-75 rationalised the position. They created one system of

courts by amalgamating the common law courts and the court of equity to form the

Supreme Court of Judicature which would administer common law and equity.

The Supreme Court of Judicature consists of the High Court divided into divisions

known as the Queen's Bench Division, Chancery Division, and the Probate, Divorce and

Admiralty Division (re-named the Family Division in 1970 and the work reassigned);

the Court of Appeal; and, since the Supreme Court Act 1981, the Crown Court. Each

Division exercises both legal and equitable jurisdiction. Thus any issue can be

adjudicated in any Division; and any point of law or equity can be raised and

determined in any Division; but, for the sake of administrative convenience, cases are

allocated to the Divisions according to their general subject-matter. Thus the court "is

now not a Court of Law or a Court of Equity, it is a Court of complete jurisdiction."

(Pugh v Heath (1882), per Lord Cairns.)

It was forseen that a court which applied the rules both of common law and of equity

would face a conflict where the common law rules would produce one result, and

equity another. Section 25 of the Judicature Act 1873 provided that if there was any

conflict between these principles, then equity was to prevail. However, this did not

fuse the principles of common law and equity, which still remain as separate bodies of

rules. "The two streams have met and still run in the same channel, but their waters do

not mix" (Maitland).

NEW REMEDIES

In recent times the courts have used their equitable jurisdiction to develop new

remedies:

 

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Mareva Injunctions

In 1975 the Court of Appeal recognised the Mareva injunction for the first time. This is

a court order freezing the assets of a party to an action or stopping that party moving

the assets out of the country.

In Mareva v International Bulkcarriers [1975] 2 Lloyd's Rep 509, a shipowner let the

'Mareva' to a foreign charterer, with payment half monthly in advance. The charterer

defaulted on a payment. The shipowner found out that the charterers had money in an

English bank and sought an injunction freezing the account. It was held that an order

would be granted to stop the charterers from moving the money abroad before the

case was heard. Normally the application will be ex parte, which means that one party

applies without giving notice to the other side for if the other party did have notice,

they could move the assets.

In The Due Process of Law (1980) Lord Denning described the Mareva injunction as

"The greatest piece of judicial law reform in my time".

Anton Piller Orders

In 1974 the High Court started to grant what later became known as Anton Piller

orders. This is an order to a defendant to allow the plaintiff on to the defendant's

premises to inspect, copy or remove documents or other objects relating to the

plaintiff's property. The aim is to stop the defendant removing or destroying vital

evidence. The defendant may refuse entry, but such action would be regarded as

contempt of court, for which the defendant could be sent to prison. Once again it is an

ex parte application. The use of such orders was confirmed in the following case.

In Anton Piller v Manufacturing Processes Ltd [1976] Ch 55, the plaintiffs made

electrical equipment and employed the defendants as their agent in the UK. They

suspected that he was selling their technical drawings to competitors and so applied

for an order. The court held that an ex parte mandatory injunction would be granted,

to the effect that the plaintiff could enter the defendant's premises and inspect

relevant documents.

These orders have been used for breach of copyright, passing off and matrimonial

disputes.

THE SUBJECT-MATTER OF EQUITY

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It may be helpful to the understanding of equity to list the subjects which should

properly be included within it. No list can be exhaustive. However, the following

matters are assigned to the Chancery Division by the Supreme Court Act 1981:

* The sale, exchange or partition of land, or the raising of charges on land;

* The redemption or foreclosure of mortgages;

* The execution of trusts;

* The administration of the estates of deceased persons;

* Bankruptcy;

* The dissolution of partnerships or the taking of partnership or other accounts;

* The rectification, setting aside or cancellation of deeds or other instruments in

writing;

* Probate business, other than non-contentious or common form business;

* Patents, trade marks, registered designs or copyright;

* The appointment of a guardian of a minor's estate;

* All causes and matters involving the exercise of the High Court's jurisdiction under

the enactments relating to companies.

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.  Since this page is concerned only with basic principles, these differences are not looked at further.

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 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: perGascoigne 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

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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 theTribunals 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. theHomicide 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 2005. Judicial 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

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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 theCourts 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.

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: 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

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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 theAdministration 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

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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 41the 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

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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

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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 theInstitute 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.

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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