Advanced Level in Law (A-Level prospectus) pre-legal studies in UK: Part 1 — The Nature of Law and the English Legal System

Abstract: The United Kingdom (the UK) has three separate legal systems: one each for England and Wales, Scotland and Northern Ireland. This reflects its historical origins. The answers below deal primarily with the legal system of England and Wales but make reference to other parts of the UK where relevant. The UK has an unwritten constitution in that there is no single written document that sets out the rights of individual citizens and how the Government should act. The UK constitution is comprised of a variety of sources, some of which are written (such as statutes) and others (such as constitutional conventions), which are unwritten. The constitution is unitary in that the Parliament in Westminster is the supreme law-making authority. Since 1999, devolution has provided for the transfer of powers from the Westminster Parliament to assemblies in Cardiff (Wales) and Belfast (Northern Ireland), and the Scottish Parliament in Edinburgh. However, other law-making bodies, such as the devolved assemblies or local authorities, derive their law-making authority from powers that they have been granted by the Parliament in Westminster. Constitutional conventions are an important non-legal and unwritten source of the constitution. Constitutional conventions may be defined as: “…rules of constitutional behaviour which are considered to be binding upon those who operate the constitution but which are not enforced by the law courts…nor by the presiding officers in the House of Commons” (Marshall and Moodie, Some Problems of the Constitution). An example of a constitutional convention is that the monarch always gives Royal Assent to a bill, if advised to do so by the Prime Minister. As constitutional conventions are “non-legal” they do not require a procedure for their creation. If they become obsolete, they can be dispensed with without any formal step being taken.

Dr Francesco Dergano
80 min readJan 5

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Introduction

English law refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English law is considered as the original of the common law and is based on those principles. English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189.

There has been no major codification of the law, rather the law is developed by judges in court, applying statute, precedent and case-by-case reasoning to give explanatory judgments of the relevant legal principles. These judgments are binding in future similar cases and for this reason are often reported.

The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Supreme Court is the highest court in the land for both criminal and civil appeal cases in England and Wales (also in Northern Ireland cases and civil cases in Scots law) and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions. On appeal, a court may overrule the decisions of its inferior courts, such as county courts (civil) and magistrates’ courts (criminal). The High Court may also quash on judicial review both administrative decisions of the Government and delegated legislation.

What is case law in the UK and why is it important

Case law is a huge bank of information dating back centuries. As the UK has a common law system (which means that there is no codification of the law), it is based largely on this case law, as well as statues which are passed by Parliament. In certain circumstances (a good example would be the criminal law on murder) there is little statutory guidance with the law having being built up on a case by case basis over the centuries.

The Nature of Law and the English Legal System

1.1 Nature of Law

Why have law?

  • Some rules may be conceived as morally wrong e.g., do not be impatient.
  • The law creates a system whereby certain rules are deemed to be illegal and can be enforced by the courts. These are known as legally and morally wrong rules e.g., murder, fraud, theft, etc.
  • Some rules are legally wrong but may not be interpreted as morally wrong by all individuals e.g., parking rules.

What are the aims of law?

  • To protect individuals from evil and criminal elements in society.
  • To bring offenders to trial and punish them.
  • To provide a system whereby private citizens may settle disputes and grievances between themselves.
  • To ensure an orderly and peaceful society so that everyone can conduct their everyday lives without unlawful interference.
  • To develop a society which cares for the needs of its citizens in the terms of health, welfare, housing, education, etc.
  • To provide a structure in which desired business objectives can be developed and practised.

To be effective the law must be enforceable, otherwise there would be no point in having the system. Parliament provides various bodies with roles in carrying out the law, for example the Crown Prosecution Service, Trading Standards and the NSPCC. Some of the bodies have the power to prosecute wrongdoers.

Law is classified in several ways:

  • Public Law and Private Law
  • Criminal Law and Civil Law
  • Common Law and Statute Law
  • Common Law and Equity

Classification of Law

If you have not been to the magistrates’ or crown court before, follows these links to see the inside of a magistrates’ court: http://osclinks.com/4294 or the inside of a crown court: http://osclinks.com/4295 .

Additionally, you could plan a court visit to bring to life both the court system and an area of substantive law.

Within both common law and statute there is an important distinction between criminal law and civil law.

Definition of Criminal Law:

“a system of law concerned with the punishment of offenders”.

Definition of Civil Law:

“the part of a country’s set of laws which is concerned with the private affairs of citizens, for example marriage and property ownership, rather than with crime”.

Differences:

1.1.1 Law and Society

Imagine that you are walking home, and you come across a little green alien from Mars. You strike up a conversation. When the Martian learns that you are studying law, they look puzzled. t turns out that the concept of law does not exist on Mars. How would you explain this to them?

In order for society to be peaceful and problem free there must be rules and laws for people to abide by. The aim is to create a society where justice, fairness and equality is provided where the courts and governments will apply the same law to anyone within their jurisdiction. Protection is afforded to victims and those who have broken the law are punished and have to face the consequences.

When we look at fault-based liability we are looking for blame or responsibility where something has gone wrong. This is integral to the English Legal system and this is evidence in crimes where mens rea, the state of mind of the accused, has to be proven and in civil cases where intention is also an element in various torts against a defendant. These are often based on blameworthy activity and there is a close connection between the degree of moral blameworthiness that the defendant is believed to have possessed and the punishment/remedy.

The exception to this is strict liability which can be found in both criminal and civil law and this is where no intention is required, and the act alone is sufficient to be guilty/liable. A good example of this is negligence. In order to be liable, there is a duty of care, a breach of that duty and injury caused to the claimant. An example in criminal law is the controversial use of fault in State of Affairs crimes, where the defendant may have involuntarily committed an offence, yet is still guilty, For example, in Winzar v Chief Constable of Kent a drunken man was taken from a hospital onto a road outside by the police, and then arrested for being drunk on the highway, even though he would never have made it onto the highway without the “help” of the police.

1.1.2 Law and Morality

The Oxford dictionary defines Law as:

“The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.

Morality can be defined as

“The principles concerning the distinction between right and wrong or good and bad behaviour” (Oxford Dictionary, 2018).

Mary Warnock (academic) stated that our perspective as to what is right or wrong will change throughout our lifetime and what we thought was morally right or wrong today may be different in years to come. This goes alongside changes to society, our tastes, etc.

Durkheim (French sociologist) noted that just as we have a modern, developed society which has a wide range of ethnic backgrounds, statuses, etc. there are many different moral values shared and therefore it would be impossible to have one set shared by all.

The concept of English Law is primarily based on statutes and the moral values of the church and this had a large impact on common law. Our morals may arise from social and religious influence. For example, the 10 commandments can be found in various laws. E.g., thou shalt not steal is a crime of theft and thou shalt not kill is covered in our homicide laws. They are also found in civil laws, for example, adultery is a fact for providing divorce.

As we are now a multi-cultural society, religions other than Christianity are affected. For example, English law states that we can only marry one person, or we commit bigamy, which coincides with Christianity, however, goes against other religions now found within England.

There are also instances where law conflicts with morality in many ways and is not always flexible; for example, there are various challenges between the Church and Parliament and a recent example would be the Marriage (Same Sex Couples) Act 2013.

Some laws may not be morally wrong and but are made to avoid havoc. Furthermore, laws and morals can conflict with different views. Some day-to-day examples of what could be deemed moral only, legal only or where they overlap and where conflict can arise, include speeding, telling lies, parking on yellow lines, abortion, euthanasia, etc.

Our law is constantly evolving and needs to adapt in line with changes in society. Examples of how morals have influenced changes in legislation include the Smoking Ban, the Abortion Act, the Civil Partnership Act and the Equality Act 2010. We have a role in this through lobbying MPs and voting.

1.1.3 Law and Justice

Justice is defined in the dictionary as “just behaviour or treatment” or “a judge or magistrate, in particular a judge of the Supreme Court of a country or state. However, there are various meanings of the word ‘justice’ and there have been many competing theories, some of which are outlined below:

Watch lecture 1: http://osclinks.com/4297 and lecture 2: http://osclinks.com/4298 from Michael Sandel to help you understand the theories of justice and morality.

Justice can also be formal or substantive. Formal justice concerns itself with the procedures. Procedure law is regulated by statutory law and deals with the ways and which substantive law can be enforced. There are no independent powers. The idea is that the processes should be fair. Substantive Law, on the other hand, does have independent powers to decide the fate of a case and this deals with the areas of law which establish the rights of the individuals. This is regulated by an Act or Parliament or Government implementation. Rather than focusing on the procedures, this focuses on the treatment and behaviours.

Does our system uphold justice?

Justice, as defined by the Oxford Dictionary of Law, is ‘a moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs’.

As stated above, there are various theorists who provide concepts on the relationship between law and justice. In addition, justice can also be categorised as follows:

  • Formal Justice — equal application of procedural format of rules
  • Substantive Justice — actual just nature of the rules
  • Natural Justice — a duty to act fairly.

It is natural justice which is usually at the heart of our system.

Judicial review plays a large part of ensuring that a system of justice is maintained. The powers of the state are examined by an independent judiciary who examine the powers of the state or organisation of the state and how they use them.

Justice can only be measured by also looking at whether or not it is accessible to all. Public funding was introduced by the Legal Aid Act 1949 which assisted those who qualified under the means testing, however those in the middle income’ status were too rich to qualify for legal aid but too poor to afford to pay their own legal costs.

The Access to Justice Act 1999 exhausted legal aid further by introducing a limit on the amount that could be spent on legal aid every yea., and when this runs out no aid is available. Therefore, the problems created from 1949 still exist and there are also now further restrictions as to the type of work that can be covered under a certificate. For example, personal injury claims are now excluded.

In addition to access and funding, the procedures themselves should be analysed. Before the introduction of the Civil Procedure Rules 1999, the civil system was seen as unfair and Lord Woolf reported in 1996 that a number of aims should be put in place to which the civil justice system should aspire. These were to efficiently, justly and fairly deal with cases and litigants. The Civil Procedure Rules introduced these aims by way of the overriding objective and gave rules on pre-action protocols that save time and money via negotiation and also made judges pro-actively manage cases. Set timescales were introduced by way of 3 tracks, whereby cases are allocated according to value and complexity.

The criminal justice system has also been scrutinised following cases such as the Guildford Four, the Maguires and the Birmingham Six where police compromised principles and therefore the reliability of the evidence in order to secure convictions for various murders.

1.2 The Rule of Law

In order to understand the doctrine or the rule of law and how this is applied to law making, we must first compare the differences between legal and social norms as these influence the behaviours and laws in society.

The phrase the Rule of Law’ refers to a political situation father than legal rule. There are various elements to this. First, those with authority to uphold the law such as politicians and the judiciary, should govern the same within their powers. Secondly, the law applies equally to all. Finally, the law.is certain.

No-one is above the law and therefore it applies to everyone including politicians. There have been concerns as to whether this is upheld in all circumstances. For example, the powers of the prime minister and other ministers are based on the royal Prerogative which is not subject to judicial Oversight. Furthermore, given that Parliament makes laws, and can therefore amend or remove existing laws by creating a new Act of Parliament, it can be seen as being ‘above the law’. As head of the Legal System, the Queen is not properly subject to the law.

Everyone should have the same access to the legal system regardless of their religion, wealth or social status, However, for many, the cost of obtaining legal services or advice is too high and even though public funding is available, various tests have to be satisfied in order to be eligible.

In order to be effective, the law should always be applied, However, not all crimes are reported and even when they are, there are not always enough resources to take the matter further. When the law is applied it should be fair and equal, however elaborated media reports can lead to rash judgments or punishment by the public even if acquitted in court.

It is important that the courts are not influenced by other branches of government and that they work independently from them. This is to ensure the rule of law Judicial independence is important to the idea of separation of powers. The principal institutions are usually taken to be the Executive, These are the Crown and the government, and this includes the Prime Minister and cabinet ministers: the Legislature, which is the Crown, the House of Commons and the House of Lords and the Judiciary, comprising the judges of the courts of law, those holding judicial office in tribunals and lay magistrates.

The Prime Minister is the head of the executive and the legislature, These are therefore, linked and, in particular, this is seen in delegated legislation referred to in 1.3.2 below.

The separation of powers also applies to the separation between legislature and judiciary. Judges are not permitted to stand for election to Parliament. When interpreting legislation (see 1.3.3 below) judges apply certain rules; however ultimately, they must consider what Parliament intended when they created the Act and are not permitted to challenge the Act.

Although new Justices are called Lord or Lady, they are not influenced by politics and cannot sit in the House of Lords and do not have a peerage which maintains the separation of powers. This also prevents them from being involved in the creation of legislation and allowed them to interpret and rule on legal disputes in an impartial way. The Constitutional Reform Act 2005 modified the role of the Lord Chancellor and in doing so strengthened the independence of the judiciary.

The three branches of government keep each other in check, ensuring there is never an over-concentration of power. The risk of power being abused is reduced as a result of this.

1.3 Law Making

History of the Common Law

‘Equity’ is an integral part of the English legal system and accounts for the need for decisions to be made fairly. Prior to 1066 and the Norman conquest there was little commonality in law across England; the declaration by William the Conqueror that he would be ruler of the entire country resulted in the development of a system of rule from which the principles of equity ultimately evolved.

Feudal System

It was the creation of the feudal system that enabled William I to maintain control of those areas of the country well beyond easy reach of his primary residence in the city of Westminster. This system was reliant on a hierarchy, an intricate class system at the top of which were the King’s most trusted nobles and existing English Barons who proved willing to submit to his control. Vast swathes of land were given to each of these individuals who in turn were obliged to fulfil certain services or ‘tenures’ to the King, including such things as the provision of produce and labour and the provision of soldiers to fight for the King. Above all the tenures, the most important was ‘fealty’, the promise of loyalty to the King himself. Those who did not abide by this particular tenure would be subject to death and their lands would be taken from them.

The consolidation of the legal system within England began with the introduction of the Eyre’ and resulted in representatives of the King being sent from his seat in Westminster to monitor the smaller administrations being run across the country. Whilst their initial objective was recording of wealth and collection of taxes, dealing with disputes as and when they were presented, the resolution of disputes ultimately came to be their primary function. These individuals were known as the ‘Curia Regis’, translated to mean ‘King’s Council’ and from it there eventually emerged a variety of courts.

Common Law was founded as a result of the King’s representatives liaising with one another following their visits to compare the disputes they encountered and agree upon common resolutions to these problems. The first court established to deal with specific disputes was named the Court of the Exchequer which became firmly established during the rule of successive monarchs. Gradually the court was expanded to hold jurisdiction over specific areas of disputes.

Common Law Courts

The Court of the Exchequer was ultimately abolished along with the Court of Common Pleas by the Judicature Acts 1873–1875. However, whilst these two courts were still in existence, a further court known as the Court of the King’s Bench, dealing with disputes relating to the King, was established. This was the court that came to hold supervisory jurisdiction over lesser courts and government bodies. Four “Prerogative Writs’ were formed setting out the means by whích the Court of the King’s Bench supervised these lesser courts; Prohibition, Mandamus, Certiorari and Habeas Corpus are still in existence today and known as ‘Administrative Orders’. Unlike the Court of the Exchequer and the Court of Common Plea, the Court of the King’s Bench was incorporated within a new Supreme Court of Judicature; today this incorporates the High Court.

Flaws in the Common Law System

The Statute of Westminster Il 1285 went some way towards mitigating against this problem by stating that a new Writ could be issued but only if the claim were similar to those covered by an existing Writ. Whilst this statute was a significant marker in the history of the development of ‘equity’, it was nevertheless relatively conservative.

The bureaucracy of the court system similarly led to delays as the procedure of each court was required to be strictly followed and as a result a case could be thrown out due to errors in the required paperwork. Court cases would also be held up by up to a year as either party in a case could state that they would be unable to attend court by reasons such as sickness or flooding. In the event that a case was successfully heard in court, the only outcomes available were damages requiring that a sum be paTd by one party to another. Understandably, this did not always suit each case and, as such, an Injunction or similar could not be enforced as it would be today.

Ultimately the development of the needs of society was not reflected within the law; the development of Trusts, for example, did not come about until later, “Stare decisis’, translated as “let the decision stand’ meant that decisions made by the courts were equally inflexible and as a result often unsuited to the case in hand.

Development of Equity

Given that the King held ultimate power over the law of the land, it came to be the case that dissatisfied individuals would petition the King for a decision to be overruled or amended as they saw fit. The continued inflexibility of the court system resulted in such a great number of these petitions that they were deferred to the Lord Chancellor to rule on such decisions on the King’s behalf. This change marked a significant milestone in the development of ‘equity’ as the first Lord Chancellor appointed such responsibility was a Catholic Priest. The decisions he made therefore were founded in moral beliefs and understandings as opposed to the law of the land as set out in document. The Lord Chancellor made a decision based on the most equitable option for the circumstances.

Whilst the issues dealt with by the Lord Chancellor were initially undertaken in the name of the King, the decisions came to be made in his own name with the first being issued in 1474. As had happened previously, the Lord Chancellor too became overwhelmed with petitions being made to him directly and the Court of the Chancery was formed to deal with the increase in these petitions. Where common law offered no solution to a case, the Court of the Chancery would deal with such matters.

Conflict between Common Law and Equity

Ry the time of the rule of James I, disputes had arisen between the Court of the Chancery and the existing courts administering common law. The Attorney General, Sir Francis Bacon was subsequently ordered to arbitrate the matter, and this led to the order by James I that “where there is a conflict between common law and equity, then equity should prevail”. This was decided in the Earl of Oxford’s Case 1615. Whilst this is still the case in modern law, the intention has never been that equity should supersede common law; rather, it is intended to supplement common law and seek to provide a solution where none exists already.

Equitable Remedies

The development of equity has brought with it a number of significant remedies to issues arising in common law. The most notable of these are Injunctions, Specific Performances, Rectifications and Rescissions. It nevertheless remains the case that the application of equity in any case is at the discretion of the court and these solutions can themselves only be granted ‘in equity’.

Equitable Maxims

As with common law, there remain ‘rules surrounding the granting of an Order by the Court of Chancery in equity. Known as the Maxims of Equity, these rules are still applied today. Over the years whilst these rules remained in place, the way in which equity was enforced within the courts varied “with the length of the Chancellor’s foot” i.e. there was significant variation over the years in the way in which the Maxims of Equity were interpreted.

Judicature Acts 1873–1875

It was only with the passage of many centuries that equity as a system came to be a rigid system comparable to common law. The streamlining of the court system in particular was a major factor in the refining of equity. The Judicature Acts 1873–1875 went some way in cutting down on the number of inefficient courts in place and since then, further reforms have led to a mare logical, manageable and fair system today.

Over the years equity has enabled an otherwise rigid system of law enforcement to adapt to the needs of a developing society. Equity enables the law to be interpreted as needed, when needed, without requiring long, drawn-out changes to be made to law by Parliament. The creation of such remedies as the Anton Pillar Order have come about due to the principle of equity and as a result has led in many cases to a fairer trial as a Claimant is able to enter the premises of the Defendant in order to prevent documents or other evidence relevant to the case from being destroyed. Were the rule of the country to be based solely upon common law it is clear that there would frequently be situations arising for which no outcome could be determined. Equity allows for the best suited and fairest interpretation of the law based on the circumstances at the time.

1.3.1 Parliamentary Law Making

Legislation (also known as a statute or Act of Parliament) is the name given for laws which are made in Parliament.

The process starts with the new law being proposed by Cabinet (minsters and the Prime Minister) and drafted by Parliamentary Counsel The Government sets out its ideas in a discussion document (known as a Green Paper). Organisations are asked to comment. Permanent officials (civil servants) gather together the opinions. The government department may then produce firm proposals (known as White Paper).

The Bill is then produced to the First House (usually the House of Commons).

During the first reading photocopies are produced and the title is read out. This lets Members of Parliament in the House know about the Bill.

At the Second Reading the general principles are discussed. The Bill can be thrown out at this stage. The purpose of the Bill is explained to the House. Provided the Bill has passed the Second Reading. it will then go to the Committee Stage, This is where specialists in the subject area look at the Bill clause by clause in small groups (known as Standing Committees).

At the Report Stage the Chairman of select committee reports findings to the House and further consideration and changes are then made by the whole House. The Third Reading is a formality; only minor amendments are allowed, and this is where an overall examination of the Bill takes place and there is a chance for the House to decide whether they want it to go any further.

The Bill then goes to the other House (House of Lords, as the Commons usually start the process) which follows the same process as the House of Commons, The Lords can suggest amendments to the Bill and send it back to the Commons, who may send it back again until an agreement can be reached. If no agreement can be reached, the House of Commons can reintroduce the Bill the following year, knowing that the Lords cannot reject a Bill if it is passed by the Commons in two Successive sessions (years). In the Lords the First and Second Readings are almost the same however there is no select committee as there will be no specialists and therefore the whole house deals with the Bill. This also means there is no need to report. The Third Reading fs the same as that in the Commons.

The Bill is then passed back to the Commons for them to consider any amendments made by the Lords. If the Commons do not agree they bypass the Lords after 12 months and an example of when this Occurred was the Hunting Act 2004.

If everything is agreed the Bill will then be passed to the Queen For Royal Assent. The Queen does one of two things. She either signs what are known as Letters Patent which allow the Speakers of the two Houses (the Speaker of the House of Commons and the Lord Chancellor) to announce that the Queen has given-her assent or she signs a document known as Commission once a year, which commands certain Lords known as Royal Commissioners, to go the House of Lords to let both Houses know that Royal Assent has been given. The Act comes into force at midnight unless stated otherwise.

The Influences on Parliament

The Doctrine of Parliamentary Supremacy and Limitations on it

The Parliament is said to be a sovereign lawmaker and therefore a Statute is generally regarded as the highest form of law. Although Parliament can make laws concerning anything, one mustn’t forget that laws can be repealed and changed. and new laws introduced by a future Parliament. Judges can interpret Acts of Parliament using various rules and presumptions; however they cannot question the actual Act itself. Therefore, judicial review is not possible; however, Parliamentary Sovereignty can be seen to have been somewhat modernised as time passes, limiting its supremacy in some ways:

  1. A devolved government resulting in the granting of powers to regional assemblies in Scotland, Wales, and Northern Ireland.
  2. The United Kingdom’s membership of the European Union since 1973.
  3. Certain statutes are protected as Constitutional Statutes. In the case of Thoburn v Sunderland City Council, Lord Justice Laws held that certain statutes of constitutional importance including Magna Carta and the European Communities Act 1972 could not be repealed by the doctrine of implied repeal (explained earlier). This, as well, limits the Parliamentary Sovereignty.
  4. The enactment of the Human Rights Act 1998. This Act gives the courts the power to issue a declaration of incompatibility when they believe the Act of Parliament contravenes the Human Rights Act 1998.

The Advantages and Disadvantages of Influences on Parliamentary Law Making

Advantages:

  • The process between the Houses is thorough allowing for debates, scrutiny and amendments.
  • The House of Commons controls most of the law-making process and they are elected into power by members of the public ensuring democracy.
  • The power of the House of Lords was reduced following the Parliament Acts 1911and 1949 and the elected government can leapfrog to our Queen. This process is rarely used and has only been used a handful of times.
  • There are various methods by which a Bill can be introduced to Parliament, thus ensuring flexibility of the types presented.

Disadvantages:

  • Unlike the House of Commons, the House-of Lords is not elected into power, meaning they can change what they don’t like within reason, and this impacts on the democracy.
  • It can take months or years to pass a Bill into a law.
  • Out of date or complex language which is difficult to interpret.
  • The Government can vote out any private members’ Bill that does not fit their agenda from their manifesto.

1.3.2 Delegated Legislation

Delegated legislation is law made by individuals and institutions acting under a grant of legislative authority from Parliament.

Delegated powers are usually granted in an enabling Act (also known as an “umbrella Act’” or “”parent Act’”. This Act will establish a framework of general principles and grant powers to fill in the details.

Example: The Health and Safety at Work Act 1974 gives the Secretary of State for the Environment the power to create Statutory Instruments such as COSHH.

Types of Delegated Legislation

Delegated Legislation saves parliamentary time as it is able to to deal with complex and technical issues (e.g., health and safety regulations). it is quicker and easier to amend and update than enact new primary legislation. It is also able to respond quickly to emergencies and allows for local variation to meet local need.

However, there is a large volume, and it can often be poorly drafted. Some say there is a lack of control by Parliament.

Delegated Legislation results from transferring law-making powers from the legislature to the executive, Therefore, delegated powers must be subject to effective checks and controls to ensure accountability and prevent misuse.

Consultation

This is often required by the enabling Act and acts as a check in two ways:

  • directly — by requiring a public exercise of the power
  • indirectly — may form the basis for judicial review

Parliamentary Oversight

This may seem to conflict with the need to save parliamentary time; however, a responsible Parliament must monitor the use of powers it has delegated. There are two main forms of oversight:

Affirmation process

The Enabling Act may specify that the Statutory Instrument must be laid before Parliament. This is known as being affirmed before coming into force.

  • positive affirmation — instrument only comes into force after approval by positive resolution in Parliament
  • negative affirmation — instrument comes into force unless annulled by a negative resolution in Parliament
  • negative affirmation is more common BUT reliance on this may mean draft instruments receive inadequate policy scrutiny

Scrutiny committee

The Committee reviews technical merits of all draft Statutory Instruments. It refers to Parliament those giving cause for concern (e.g., unusual or unexpected use of the power). The Committee acts as a filter so that Parliament need only consider the small number of instruments referred.

The Legislative and Regulatory Reform Act 2006

This Act was enacted to replace the Regulatory Reform Act 2001.

Section 1 gives Ministers certain powers to make orders (“legislative reform orders”) that remove or reduce burdens resulting directly or indirectly from legislation. It also sets out what the powers are, the conditions and restrictions which apply to them, and the procedure which must be followed in exercising them.

Section 2 makes similar provision in relation to orders that promote principles of better regulation. It contains provisions which are intended to promote more effective inspection and enforcement by regulators and to ensure that they exercise their functions in a way that is consistent and proportionate without compromising regulatory standards or outcomes.

Section 3 sets out facts that the Minister proposing to make a legislative reform order has to address. They include positive tests (need for legislation, proportionality and fair balance of interests) and negative ones (no removal of necessary protection, no unreasonable interference with rights and freedoms, no constitutional significance). The Minister can only proceed if satisfied that all relevant section 3 tests are passed. It also makes provision about legislation relating to the European Communities.

It amends the interpretation Act 1978 to

  1. make provision about references in domestic legislation to Community instruments which have already been amended at the time that the domestic legislation is made; and to make provision about references in domestic legislation relating to the European Economic Area.
  2. makes provision about how Community obligations are implemented in domestic law, primarily in order to reduce the number of domestic instruments that need to be made.

Amendments are made to the European Communities Act 1972 (“the 1972 Act”] so that:

  • under section 2(2) of the 1972 Act, an order, rules or a scheme can be made as well as regulations.
  • certain subordinate legislation can make ambulatory references to Community instruments; and
  • the power to make a statutory instrument under section 2(2) of the 1972 Act can be combined with the power to make a statutory instrument under another enactment, where the procedural requirements attaching to the exercise of the two powers differ.

Judicial Review

The limited nature of delegated powers means that courts can annul delegated legislation where it is ultra vires (outside or beyond the power).

  • substantive ultra vires — subject matter outside scope of power (A-G v Fulham Corp [1921))
  • procedural ultra vires — subject matter intra vires but serious failure to comply with a mandatory procedural requirement e.g., failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])

Publishing

S2 Statutory Instruments Act 1946 states that Statutory Instruments and Orders in Council must be published as soon as they are made. Failure to do so can result in an offence.

1.3.3 Statutory Interpretation

English legislation is written in the English language, which is not necessarily well suited for expressing precise and unambiguous facts. Sometimes the language will have two possible interpretations.

This means that courts, judges in particular, will generally have to interpret the words of statutes with regard to the facts of each particular case. Surprisingly, there is relatively little statutory control over the interpretation of legislation; it is mostly a matter for judicial convention and precedent.

There are three main rules which the judges use to help them when they have to interpret unclear words or phrases in Acts of Parliament: these three rules are explained below:

The Literal Rule

By the literal rule, words in a statute must be given their plain, ordinary meaning. The objective of the court is to discover the intention of Parliament as expressed in the words used. This approach will be used even if it produces absurdity or hardship, in which case the remedy is for Parliament to pass an amending statute.

In Fisher v Bell [1960] a shopkeeper displayed a knife in his window. While the Restriction of Offensive Weapons Act 1959 made it an offence to sell such a knife, the Defendant succeeded in arguing that a display in a shop window is not an offer for sale. Under contract law it is an invitation to treat with any offer made by customers. It was presumed that Parliament did not intend to change common law.

In Whiteley v Chappell [1868] the Defendant was charged under a section which made it an offence to impersonate ‘any person entitled to vote’. The Defendant had voted using a dead person’s name. The Court held D was NOT guilty since a dead person is not, in the iteral meaning of the word, ‘entitled to vote’.

In Rv Judge of the City of London Court [1892] Lord Esher said, in applying a literal approach: “If the words in the Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity.”

In London & North Eastern Railway v Berriman [1946] the claimant’s husband was killed while oiling points along a railway line. Compensation was only payable if he had been “relaying or repairing” the line. The House of Lords held that oiling points was maintaining the line and not “relaying or repairing.”

The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an interpretation which avoids an absurd result. It therefore allows judges to avoid the harsh result and repugnant situations which would be produced by a literal reading.

In Rv Allen (1872) s.57 of the Offences Against the Person Act 1861 made it an offence to ‘marry’ whilst the original spouse was still alive (i.e. with no divorce). The Defendant claimed he could not “legally marry’ because he was not divorced. The court decided that in the Act the word ‘marry’ means “to go through a ceremony of marriage’. To accept otherwise would produce an absurd result.

In Re Sigswarth [1935] The defendant had murdered his mother. She did not have a Will and he stood to inherit her estate as next of kin, by being her “issue. The court applied the golden rule and held that “issue” would not be entitled to inherit where they had killed the deceased.

The Mischief Rule

The mischief rule is contained in Heydon’s Case [1584] and allows the court to look at the state of the former law in order to discover the mischief in which the present statute was designed to remedy. It allows judges to put into effect the remedy which Parliament chose to cure a problem in the common law.

There are four points a Court should consider:

  1. What was the common law before the Act?
  2. What was the mischief and defect which the common law did not provide?
  3. What is the remedy Parliament has resolved?
  4. The true reason of the remedy.

The Judges should then suppress the mischief and apply the remedy.

In Smith v Hughes (1960) prostitutes were charged with soliciting on the streets contrary to the Street Offences Act 1958. The Defence made that they were inside a building and tapping on a window to attract men (thus not on the street). Despite such, the Court applied the Mischief Rule and found them guilty because the Act was designed to prevent prostitution.

In Royal College of Nursing v DHSS [1981] the Abortion Act 1967 allows abortions by “a registered medical practitioner”, Doctors carried out the first part of the procedure and the second was performed by nurses but without a doctor being present. The House of Lords held (by 3–2) that this procedure was lawful because the mischief Parliament was trying to remedy was back street abortions performed by unqualified people.

Purposive Approach

This approach is a European Union link. It looks at the purpose behind the legislation so as to give effect to that purpose.

In Pickstone v Freeman (1988) the Court of Appeal held that Article 119 of the Treaty of Rome on equality of treatment for men and women was clear and could be applied directly. Thus, they assumed that Parliament’s intent was to comply with EU law.

In Rv Registrar General ex parte Smith (1990) Smith wanted a certificate in order to find his mother — problem was, he was a dangerous murderer in Broadmoor Mental Hospital. The Literal rule said he could have the certificate, however the purposive approach was applied since ‘Parliament could never have intended to promote such serious crime.’

In Cutter v Eagle Star (1998) the Defendant insurance company would be liable to pay damages if Cutter was injured on a road (he was on a car park). The Court of Appeal decided that a car park was a road for the purposes of the Road Traffic Act 1988. The House of Lords reversed this with Lord Clyde saying ..

“It may be perfectly proper to adopt a stained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar words or to stretch the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must be particularly so where the language has no evident ambiguity or uncertainty about it.”

In addition to these major rules of interpretation, there are others known as the rules of the language:

The ‘Ejusdem Generis” Rule
This rule provides that in a statute where general words follow specific words, they must take their meaning from the specific words. E.g., n the phrase ‘cats dogs or other animals”, ‘other animals’ would mean domestic pets and not all animals.

In Powell v Kempton Park Racecourse [1897] the Defendant had been operating an outside betting place. The Act stated ‘house, office, room or other place of betting’. The court therefore had to define ‘other place of betting’. As all of the previous terms were indoor places, it was held that “other place of betting’ would also be indoors.

The “’Expressio Unius Est Exclusio Alterius’” Rule
This simply means that what is included excludes that which is not. An example can be seen in Tempest v Kilner [1846]. This considered the Statute of Frauds Act 1677 which noted that a contract for the sale of ‘goods, wares and merchandise of E10 or more’ needed to be evidenced in writing. This case concerned stocks and shares and because they were not expressly mentioned in the list they were excluded.

The “”Noscitur a Socciis Sociis’” Rule
This means that words must be read in the context of surrounding words. In Rw Harris (1836] the defendant bit off a prostitute’s nose. The statute made it an offence to ‘stab, cut or wound’. The court held that ‘stab or cut’ implied a weapon or instrument would be used and teeth did not come within this definition.

Presumptions

There may also be “”presumptions”, some of which include the presumption against criminal liability: the presumption against ousting the jurisdiction of the courts; and the presumption that the Crown is not bound by statute unless it expressly so provides. These include:

  • Against alteration of common law
  • No criminal liability will exist in absence of guilty mind
  • Statute will not apply retrospectively
  • Against deprivation of individual’s liberty, property or rights
  • Against application to the Crown

External Aids

Following the case of Pepper v Hart [1993] courts can look at Hansard where they consider the law is ambiguous.

Internal Aids

From 1999 a set of explanatory notes are issued with each Bill — these are designed to assist understanding and are not part of the Act.

1.3.4 Judicial Precedent

Judicial precedent is where an earlier decision by the courts is followed by another court where the facts of the case are similar.

The principle of stare decisis i.e., to stand by the decided is paramount in the application of precedent. To achieve this inferior courts are bound to apply the legal principles set down by superior courts in earlier cases.

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way).

  • The ratio decidendi of a case is the binding element and the principle of law on which a decision is based. The judge will provide the reasons for the decision when the judgement is delivered.
  • There is also a non-binding element of a judgment known as obiter dictum where a judge includes in the summing up what the outcome might have been had the circumstance been slightly different. Although not binding, it is persuasive (see below).

When reading the law report, it can be difficult to establish which part is the ratio decidendi is and it may not be until it is required to be interpreted for another Case that it is questioned.

As stated above, precedents set by superior courts are binding on the lower courts. The court hierarchy is as follows:

The European Court of Justice
All decisions of the European Court of justice are binding in matters of Community Law on all courts including the Supreme Court.

The Supreme Court (previously the House of Lords)

This is the highest court in the land unless a matter of EC law is involved.

The House of Lords was bound by its own decisions until a Practice Statement was issued by Lord Gardiner LC in 1966. Following this the House of Lards has the option to depart from its decisions where it appears right to do so; however, in general the Lords would still follow their own decisions. This was seen as an important event, but in the years since that decision, the House of Lords has used the power sparingly. The Lords has overruled its own previous decisions in the following cases:

A decision of the House of Lords binds all lower courts.

Court of Appeal (Civil Division)

The Court of Appeal is bound by decisions of the House of Lords/Supreme Court. It is also bound by its own decisions subject to the following exceptions which were set out in Young v Bristol Aeroplane Co Ltd [1944]:

  1. If there is more than one decision which conflicts, the Court of Appeal must decide which to follow and which to reject.
  2. If a decision made by the Court of Appeal conflicts with one of the House of Lords/Supreme Court on another case, it just follows the decision of the House of Lords/Supreme Court.
  3. The Court of Appeal need not follow a decision of its own if satisfied that it was given per incuriam (literally, by carelessness or mistake).

Decisions of the Court of Appeal itself are binding on the High Court and the county courts.

Court of Appeal (Criminal Division)

Although the principle of Stare Decisis applies in both divisions, in practice (in addition to the Young exceptions, because a person’s liberty may be at stake ) precedent is not followed as rigidly in the criminal division.

The High Court

The High Court is not bound by its own decisions; however, it is of strong persuasive authority and is usually followed. Decisions of individual High Court judges are binding on the county courts.

Crown Courts

Decisions made on points of law are not binding, though they are of persuasive authority.

County Courts and Magistrates’ Court

The decisions of these courts are not binding.

Although the court hierarchy sets out which courts must follow others, there are circumstances where the precedent can be avoided.

Distinguishing

The facts and the legal principle/point of law will be looked at. If a judge can distinguish a case on either of these then it can distinguish between them so as to avoid having to follow the precedent.

Overruling

This occurs where a superior court overrules a decision made in an earlier case by a lower court.

Reversing

This occurs where an appeal is made to a higher court and the decision is reversed.

Per Incuriam

Where the decision resulted from carelessness or mistake, a court can avoid it by stating per incuriam.

Persuasive Precedent

These are not binding but can provide assistance, For instance, superior courts can look at the decisions made by courts below them despite not being bound. Decisions of the Judicial Committee of the Privy Council are also not binding. If English courts have not come across a matter before, they can look at the decisions of the courts in Scotland. Ireland. the Commonwealth and the USA for guidance.

There are various advantages and disadvantages to precedent. Although it creates certainty in the law, it can be difficult to locate the precedent or distinguish what the ratio decedent is. There is unity, however only if a case for a point to be decided has arisen. There is flexibility, however this then allows for inconvenient precedents to be distinguished. Although there is a vast amount of detail, the volume can be a hindrance and it can be complex.

1.3.5 Law Reform

The Law Commission is an independent body. It was set up in 1965 by the Law Commissions Act. It is full time and is made up of a High Court Judge who is the chairman, 4 other law commissioners who are experienced barristers, solicitors or teachers of law. They are supported by researchers and parliamentary draftsmen. Topics are referred by the Lord Chancellor. The Law Commission researches the law and publishers a consultation paper which will state the current law, the problems with the law and proposals for reform.

Our law is vast — it is made up of common law, precedent and statutes which go back many centuries. Therefore, it is impossible for reform to be tasked with Parliament or Judges and a wider consultation with experts and those affected by the reforms is paramount.

As stated in section 1.3.1 above, the Law Commission has various functions including statute repeals, consolidation of law and codification.

The Commission is often engaged on 20 to 30 projects at a time, all of which will be at different stages, The Law Commissions Act requires the Commission to keep “all the law” under review, When the Commission was introduced, it sets out a programme to codify family law, contract law, and landlord and tenant law. However, they changed this to just codifying small sections of law that can be added to later.

The Commission produces about 5 consolidation bills each year. Unfortunately, more Acts are being introduced and these often supersede the Bill produced by the Commission following their report. For example, the Powers of Criminal Courts Act 2000, consolidated the law on sentencing, however the Criminal Justice Act 2003 was passed changing the law again.

Due to the vast extent of the task, although it has not achieved its original plan of codification, it has been successful in dealing with smaller areas of law.

Although the first 2 years saw much success with 20 law reform programmes being implemented, by 1990 this slowed down and none of the reforms saw implementation and this resulted in a back log of 36 bills by 1992. Twenty-six reports were waiting to be implemented in 2006 with the oldest one dating back to 1991.

Despite the backlogs and struggles with the volume, the Commission has been very successful in some areas, notably the Land Registration Act 2002 which reformed and modernised the method of registering land.

The largest problem remains Criminal law and despite a draft criminal code being published in 1985, it has never been considered by parliament.

1.3.6 The European Union

Council

Based in Brussels, the Council is the EUs main decision-making body. Like the European Parliament, the Council was set up by the founding treaties in the 1950s. It represents the member states, and its meetings are attended by one minister from each of the EU’s national governments.

Which ministers attend which meeting depends on what subjects are on the agenda. If, for example, the Council is to discuss environmental issues, the meeting will be attended by the environment minister from each EU country, and it will be known as the ‘Environment Council’.

The EU’s relations with the rest of the world are dealt with by the ‘General Affairs and External Relations Council’. Each government will choose a Minister or State Secretary to attend meetings at the Council for general policy issues.

Each minister in the Council is empowered to commit his or her government. In other words, the minister’s signature is the signature of the whole government. Moreover, each minister in the Council is answerable to his or her national Parliament and to the citizens that parliament represents. This ensures the democratic legitimacy of the Council’s decisions.

There are 3 types of voting procedure in the Council:

  1. Unanimity
  2. Simple Majority
  3. Qualified Majority

Commission

The Commission is independent of national governments. Its job is to represent and uphold the interests of the EU as a whole. It drafts proposals for new European laws, which it presents to the European Parliament and the Council.

It is also the EU’s executive arm — in other words, it is responsible for implementing the decisions of Parliament and the Council. That means managing the day- to-day business of the European Union: implementing its policies, running its programmes and spending its funds.

Like the Parliament and Council, the European Commission was set up in the 1950s under the EU’s founding treaties.

European Parliament

The European Parliament (EP) originates from the founding Treaties in the 1950s. Since 1979 the members (MEPS) are elected by the people they represent.

Elections are held every five years, and every EU citizen who is registered as a voter is entitled to vote. Parliament thus expresses the democratic will of the Unions citizens (more than 455 million people), and it represents their interests in discussions with the other EU institutions. The present parliament elected in June Z018 has 750 members. (European Parliament, 2018)

Members of the European Parliament (MEPS) do not sit in national blocks, but in Seven Europe-wide political groups. Between them, they represent all views on European integration, from strongly pro-federalist to the openly Eurosceptic.

The current President of the European Parliament is Roberta Metsola.

With regard to law making, the role of Parliament was originally stated to be “advisory and supervisory”. It advises the Council of Ministers on Commission proposals. Committees of Parliament present reports on Commission proposals for debate by the full Parliament. Decisions made by Parliament are influential on the Council of Ministers but are not binding.

European Court of Justice

This is the European Union’s supreme judicial authority. It is responsible for ensuring the application and interpretation of EU Law.

The Court gives rulings on cases brought before it. The four most common types of case are:

  1. The preliminary ruling procedure
    The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. However, there is a risk that courts in different countries might interpret EU law in different ways.
    To prevent this happening, there is a ‘preliminary ruling procedure’. This means that if a national court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice for advice. This advice is given in the form of a ‘preliminary ruling’.
  2. Proceedings for failure to fulfil an obligation
    The Commission can start these proceedings if it has reason to believe that a member state is failing to fulfil its obligations under EU law. These proceedings may also be started by another EU country. Following the investigation, the Court will provide a judgment and the accused member state will be asked to set things right and may also receive a fine.
  3. Actions for annulment
    If any of the member states, the Council, the Commission or (under certain Conditions) Parliament believes that a particular EU law is illegal they may ask the Court to annul it.
  4. Actions for failure to act
    If a decision required under a Treaty has not been complied with, the member state or Community Institution that has failed to do so can ask the court to officially record a complaint against the member state or community institution that is the cause of the complaint.

Economic and Social Committee

This committee has advisory status. When the Council consults the Commission, the Commission will obtain the opinion of this committee which represents economic and social sectors of the EU.

The General Court

The General Court is made up of at least one judge from each Member State (54in 2020). The judges are appointed by agreement of the Member State governments for a renewable mandate of six years. They appoint their President, for a period of three years, from amongst themselves. They appoint a Registrar for a mandate of six years.

The judges carry out their tasks in a totally impartial and independent manner. Unlike the Court of Justice, the General Court does not have permanent Advocates General. However, that task may, in exceptional circumstances, be carried out by a Judge.

The General Court sits in Chambers of five or three judges or, in some cases, as a single judge. It may also sit as a Grand Chamber (thirteen judges) or as a full court when the legal complexity or importance of the case justifies it. Approximately three quarters of the cases brought before the General Court are heard by a Chamber of three judges. The President of Chambers is one of these judges who is elected by the others and the President sits for 3 years.

The General Court has its own Registry but uses the services of the Court of Justice for its other administrative and linguistic requirements.

Types of EU Law

Primary Source: Treaties

The European Union is based on the rule of law. This means that everything that it does is derived from treaties, which are agreed on voluntarily and democratically by all Member States. Previously signed treaties have been changed and updated to keep up with developments in society.

The Treaty establishing a Constitution for Europe, aimed to replace all the existing Treaties with a single text, is the result of the work done by the Convention on the Future of Europe and an Intergovernmental Conference (IGC). The Constitution was adopted by the Heads of State and Government at the Brussels European Council on 17 and 18 June 2004 and was signed in Rome on 29 October 2004. It was ratified by each Member State, in line with their own constitutional arrangements (i.e. by parliamentary procedure and/or by referendum).

However, the rejection of the document by French and Dutch voters in May and June 2005 brought the ratification process to an end.

Following a period of reflection, the Treaty of Lisbon was created to replace the Constitutional Treaty. This contained many of the changes that were originally placed in the Constitutional Treaty but was formulated as amendments to the existing Treaties (see below). It was signed on 13 December 2007 and came into force on 1 December 2009.

In 1957 the Treaty of Rome (also known as the EC Treaty) established the European Community (now the European Union) to achieve “ever closer union” amongst the people of Europe.

The Single European Act (SEA), signed in Luxembourg and the Hague, and entered into force on 1 July 1987, provided for the adaptations required for the achievement of the Internal Market. The SEA established the European Council, which formalises the conferences or summits of the Heads of States and Government. Social poticy is already regulated by the EC Treaty, but the Act introduced new policies. Furthermore, with regard to industry, the aim was to remove all physical, technical, and financial barriers with regard to trade, The Treaty on European Union 1992 (also known as the Maastricht Treaty) amended the EC treaty in order to achieve its aims. This included an economic and monetary union, including the development of:

  • a single currency
  • common citizenship
  • common foreign and defence policies

The Treaty of Amsterdam, signed on 2 October 1997, entered into force on 1 May 1999. It amended and renumbered the EU and EC Treaties. Consolidated versions of the EU and EC Treaties are attached to it. The Treaty of Amsterdam changed the articles of the Treaty on European Union, identified by letters A to S, into numerical form.

The Treaty of Nice, signed on 26 February 2001, entered into force on 1 February 2003. It dealt mostly with reforming the institutions so that the Union could function efficiently after its enlargement to 25 Member States. The Treaty of Nice, the former Treaty of the EU and the Treaty of the EC have been merged into one consolidated version.

The Treaty of Lisbon, signed on the 13th December 2007, entered into force on 1t January 2009. It amended the Treaty on European Union and the Treaty establishing the European Community. This Treaty restructured the EU and now, two treaties set out its rules:

  1. The Treaty of European Union [TEU]
  2. The Treaty of the Functioning of the European Union [TFEU]

Secondary Sources/Delegated Legislation:

In 2016, the UK voted to leave the European Union.

Read an article on Brexit and EU law: http://osclinks.com/4308

1.4 The Legal System

The Court Service carries out the administrative and support tasks for: The Court of Appeal; the High Court; the Crown Court; the county courts; the Probate Service and certain tribunals The structure of the courts in England and Wales is set out below.

1.4.1 The Civil Courts and Other Forms of Dispute Resolution

Civil litigation covers both commercial and private clients in many types of dispute. Proceedings are brought in the County Court, High Court and Court of Appeal.

The Civil Procedure Act 1997 gives effect to the Lord Woolfs report “Access to Justice” and establishes a Civil Procedure Rule Committee with power to make rules for all civil legislation (except family proceedings).

Previously there were a set of rules for the High Court — the Rules of the Supreme Court 1965 (RSC) and a set of rules for the County Court — the County Court Rules 1981 (CCR). Since 26 April 1999 a unified set of rules, the Civil Procedure Rules 1998, have been in force.

The Civil Procedure Rules (CRP) were created under the authority of the Civil Procedure Act 1997 and give effect largely to the recommendations of the Woolf Report. The purpose of the rules is to unify the procedures for civil claims in the High Court, the county courts and, in some cases, in the Civil Division of the Court of Appeal.

Overriding Objective

The philosophy behind the CPR is set out in Rule 1.1(1) which says that “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. The ‘overriding objective’ is described in more detail in R1.1(2), which says that dealing with cases justly should include:

  • ensuring that the parties are on an equal footing.
  • saving expense; dealing with the case in ways which are proportionate (i) to the amount of money involved; () to the importance of the case; (iti) to the complexity of the issues; and (iv) to the financial position of each party;
  • ensuring that it is dealt with expeditiously and fairly; and
  • allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

R1.2 says that courts must carry out their duties in such a way as to give effect to the ‘overriding objective’, and R1.3 says that the litigants must do likewise. R1.4 says that courts must ‘actively manage’ cases, which includes encouraging parties to co-operate and to seek Alternative Dispute Resolution, encouraging settlement, fixing timetables, and dealing with as many issues as possible at the same time.

The Rules in sections 2–73 deal with the substantive procedures that are intended to implement the overriding objective. Each section is accompanied by a Practice Direction (PD) (sometimes more than one) which seeks to clarify the application of the Rules in that section. There are also PDs of general applicability in the appendices, even a PD describing the procedure for issuing new PDs.

Under the Civil Procedure Rules civil cases are assigned to ether the small claims track, ‘Fast track’ or ‘Mut-track.

  • Small claims — claims with monetary value of less than L10,000 (or L1,000 for personal injury claims)
  • Fast Track claims with a monetary value in range of L10,000- 25,000 (or personal injury claims from C1,000- [25,000). A 30-week trial period will be allocated with the trial Lasting between 3 hours and 1 day. Public Funding may be available.
  • Multi Track larger and more important cases with monetary value in excess of C25,000. As the case is likely to be more complex, state funding may be available, and the trial may take longer.

County Court

Civil Litigation is always commenced in the County Court. Examples include debt recovery, breach of contract and personal injury claims. Depending on the value of the claim the case will either stay at the County Court or proceed to the High Court. The County Court hears claims worth up to E5,000 (small claims track).

People found in the County Court

  • Circuit Judge /District Judge
  • Barrister /Solicitor for Claimant and Defendant (advocate)
  • Legal Executive (assist advocates)

High Court

There are three divisions to the High Court and each deal with particular areas:

Queen’s Bench Division

This deals with contract and tort cases and appeals from certain tribunals. The Magistrates’ Court and the Crown Court. It also has a specialised Admiralty Court and Commercial Court.

  • Headed by Lord Chief Justice
  • Approximately 50 High Court Judges (puisne judges) in this division
  • Barrister/solicitor advocate for claimant and defendant
  • Legal executive (assist advocate)

Chancery Division

This deals with cases regarding trusts, property, mortgages, probate, etc. It also hears appeals from the County Court on bankruptcy and land matters and from the Commissioners of Inland Revenue.

  • Headed by Vice-Chancellor
  • Assisted by 12 Puisne Judges
  • Barrister/solicitor advocate for claimant and defendant
  • Legal executive (assist advocate)

Family Division

This deals with cases regarding marriage, divorce, annulment, children and financial issues relating to the same. It will also hear appeals from the county court and magistrates court (when dealing with family matters).

  • Headed by President (senior judge)
  • Assisted by 16 Puisne Judges
  • Barrister/solicitor advocate for each party
  • Legal executive (assist advocate)

Magistrates’ Court

Although this is a criminal court it does have jurisdiction to deal with civil matters:

  1. Debt Recovery: e.g., repayment of service bills (gas, electricity, rates, etc.)
  2. Family Proceedings Court: custody of children, maintenance and affiliation orders, adoption, etc.
  3. License Applications: for the sale of liquor, for entertainment, gambling, showing films, etc.
  4. Presided by Magistrates (or possibly District Judges who are paid a salary)

Alternative Dispute Resolution

The traditional way to resolve a dispute has always been at trial before a judge. Alternative Dispute Resolution is now encouraged fer several reasons:

  • Complexity
  • Court time
  • Cost of litigation
  • Public funding
  • Stress to litigants
  • Publicity

The Civil Procedure Rules 1998 encourage use of alternative dispute resolution and are encompassed throughout the Civil Procedure Rules. They farm part of the overriding objective and are encouraged throughout the pre-action protocols and reiterated at various parts of the procedure.

There are various types of ADR:

- Negotiation: This is where there is no independent third party involved; however, it may include the use of solicitor’s letters. Parties are encouraged to discuss and negotiate an outcome.

- Mediation: This is much tike negotiation, however in order to assist the parties, an independent third party passes on comments to each other.

- Conciliation: As per mediation, an independent third party is involved to assist the negotiation. The difference is that a conciliator will also give his/her suggestions.

- Arbitration: Here an arbitrator decides the outcome. The hearing is held in private, and the decision is final and binding.

- Tribunals: There are over 130 different types with 20 or so that it regularly includes. They deal with approximately one million cases a year outcome. A Chairman (legally qualified) and 2 lay members (not qualified) decide the outcome.

- Ombudsmen: An ombudsman is a person who looks into complaints about companies or organisations. The company’s own complaints procedure must be followed first. There are various types of ombudsman and some examples include: Pensions Ombudsman, Legal Ombudsman, Property Ombudsman, Furniture Ombudsman, etc).

Arbitration

Arbitration is where the parties agree to submit their claims to the judgement of an independent person instead of taking a court case.

The arbitrator may be a lawyer or, alternatively, an expert in the field of the dispute. Either way, the decision is legally binding.

Arbitration is governed by the Arbitration Act 1996 — you can use this as an introduction in your essays.

Uses of Arbitration

- Technical matters: the arbitrator can be an expert in the field of the dispute which saves time as they will understand the technicalities and terminology without this having to be explained to them.

- Professional disagreements: the parties can ensure that the chosen arbitrator understands their profession and is able to comprehend the usual practices in the area.

- Trade matters: the case can be looked at as a whole where the trade crosses national boundaries.

- Codes of practice: some organisations have their own codes of practice which members of the organisation must abide by. Within these codes of practice, it is often the case that an arbitration clause is present stating that if the dispute concerns one of their members, then the consumer has a choice of whether to use arbitration instead of litigation e.g., Association of British Travel Agents (ABTA).

The decision of arbitrator is binding upon the parties, whereas parties must agree to a solution in mediation. This is less expensive than litigation and the parties can choose their arbitrator, whereas they cannot choose their judge in litigation. It is also faster than litigation in resolving disputes and can be done at times that are more convenient to the parties, making it less stressful than litigation. It is also held in private.

Many of you will have seen the movie, Erin Brockovich, starring Julia Roberts. In that movie, a lawsuit was started against a utility company. In the end, the case went to arbitration because it was quicker than going through the regular court process.

The disadvantage is that an unexpected legal point may arise in the case which is not suitable for decision by a non-lawyer arbitrator. If a professional arbitrator is used, his fees may be expensive. The rights of appeal are limited. Another disadvantage of private arbitration is the lack of any setting of precedent by the arbitration award. They do not bind any person other than the parties.

There are several reasons for using an arbitrator:

  1. the legislation concerning the dispute states that arbitration must be used as an alternative to be going to in place of litigation.
  2. the parties can choose to use arbitration court see Scott v Avery (1855).
  3. the parties may have entered into a legally binding contract which contains an arbitration clause stating that if a dispute arose in the future, they would settle this through arbitration.

Steps in Arbitration

  1. Arbitrator is chosen
    Choices may be stipulated by a pre-contractual term in an agreement which has given rise to the dispute. Alternatively, if nobody is named and the parties cannot agree, the court will decide.
  2. Arbitrator will be contacted — will he act?
    Before making a decision, the arbitrator would wish to see all relevant documentation. It would also be appropriate to ask the arbitrator for an estimate of the fees involved at this stage. If the arbitrator refuses to act, the court can appoint someone else.
  3. Arbitrator is appointed.
    Once the arbitrator can confirm the appointment, they cannot change their mind. If either party or the arbitrator wishes to change the arbitrator, they must seek an order from the court.
  4. Arbitrator calls a preliminary meeting.
    A preliminary meeting will be held at arbitrator’s request. This may be a joint session with everyone present or may be conducted by telephone conference. It gives the arbitrator the opportunity to give directions to the parties stipulating how they should prepare for the case.
  5. Further meetings.
    These are used to tidy up any outstanding queries or points.
  6. Hearing takes place.
    Although ADR is designed to be more informal, some arbitrators decide to hold the hearing itself in a very similar manner to civil court proceedings with the normal court rules of evidence applying (e.g. witness evidence Sworn on oath, legal representation, etc.)
  7. Arbitrator makes an award.
    Since the matter is likely to be complex (hence the arbitrator is an expert in the field of the dispute), it is unusual to make an award at the hearing. The arbitrator will therefore reserve the award until he/she has had time to study all of the facts before making a decision. There is also the power to make an award for costs which can be assessed by the arbitrator or the court.
    The award could be:
    • Specific Performance — ordering the losing party to do something.
    • Damages — compensation.
  8. Is there a right of appeal?
    You can only appeal to the High Court on a point of law.
  9. Enforcing the award.
    This is done through the High Court.

Tribunals

As a result of the Leggatt Report 2000 tribunals went under review and reform. Previously, each tribunal had their own separate jurisdiction and procedures. The report outlined that tribunals should be more like the court system and encouraged there to be a set structure. As a consequence, the Tribunals, Courts and Enforcement Act 2007 (TCEA) has brought about a fundamental change to the structure of tribunals, creating a system that is analogous to the court structure. There are now two new tribunals: and generic rules of procedure and a system for appeals. These are under the Senior President.

There are two tiers to the tribunal structure. The First Tier Tribunal and the Upper Tribunal. The Upper Tribunal can hear appeals from the First Tier and is also able to hear judicial review cases.

1.4.2 The Criminal Court and Lay People

The Magistrates Court

There are three main functions of this court:

1. Court of Summary Jurisdiction: criminal offences are categorised into three levels of seriousness: summary, either-way and indictable. The Magistrates’ court is responsible for hearing those which are summary (least serious) and some either-way offences. Examples include road traffic offences, theft, criminal damage, assault etc.

2. Court of Transfer and Preliminary Hearing: all criminal cases commence in the Magistrates’ court. However, those which are more serious (some either-way and all indictable offences) will be committed to the Crown Court for trial. The Magistrates’ Court still concludes around 90% of all Criminal Cases.

3. Youth Court: offenders between the age of 10 and 17 will be tried by this court on all criminal charges save for homicide. As it deals with minors the cases are heard in private in a place where other sittings of the court have not taken place and will not do so within one hour of the hearing.

People found in the Magistrates’ Court:

  • Bench of Lay Magistrates/Justices of the Peace (sit in 3s): voluntary work — only paid expenses, Have only basic legal training.
  • Clerk of the Court (guides bench on points of law)
  • Solicitors/Barristers for the Prosecution and Defendant (advocates)
  • Legal Executive (assists advocate)

ALL cases start in the Magistrates Court.

A defendant will attend court either on bail (by summons or charged and granted bail from the police station), on a date arranged or within 24 hours of charge from the police station if bail is refused from the police station.

The first hearing at the Magistrates Court will take a different format depending on the offence(s) charged.

Indictable Only Offences

This type of case (e.g., robbery, murder, conspiracy, burglary with violence) will have one appearance in the Magistrates Court and then will be transferred straight to the Crown Court. The essential purpose of the Magistrates Court hearing will be any bail application and to get the case “in the system’.

Either Way Offences

These cases (e.g., theft) will start in the Magistrates Court. On the first appearance the procedure known as ‘mode of trial’ will take place.

The Defendant can enter a guilty plea but will be informed that the Magistrates may decline jurisdiction to sentence and could commit the case to the Crown Court for sentencing.

The Defendant will further be informed that if a not guilty plea is entered, having heard representations from the Prosecution (and Defence) the Magistrates may decline jurisdiction to hear the trial and send the case to the Crown Court for trial.

On a not guilty plea whether or not the Magistrates accept jurisdiction the Defendant has the right to elect a Crown Court trial.

If the plea is guilty the Magistrates may proceed to sentence or commit the case to the Crown Court for sentence.

If the plea is not guilty and the Defendant elects a trial in the Magistrates Court a trial date will be set, and the matter adjourned. If a Crown Court trial is elected the matter will be adjourned for a committal hearing. At this hearing the case will be sent to the Crown Court provided there is a ‘case to answer’.

Bail applications may still be important for an either-way offence.

Summary Only Offences

These are offences which can only be tried in the Magistrates Court e.g., drunk and disorderly, most driving offences, minor public order offences and harassment.

On the first appearance if the plea is not guilty the matter will be adjourned for trial. At the conclusion of the trial or following a guilty plea the Magistrates will move to pass sentence.

The Youth Court

Youth Court is a different jurisdiction. Offences will remain in the Youth Court if the defendant is under 18 unless they are Grave Crimes — punishable by 14 years or more in the case of an adult. The Youth Court can decline jurisdiction for a Grave Crime.

N.B. if a youth is charged jointly with an adult the case commences in the Magistrates Court in the usual way. The adult will determine jurisdiction throughout the trial process until sentencing when the Case may or may not be remitted to the Youth Court.

The Crown Court

The Courts Act 1971 established this court. It hears either-way and indictable criminal offences. Should a person who is aggrieved by a decision made in the Magistrates’ Court wish to appeal they will do so to this court. This may be conviction itself or the sentence imposed.

Crown Courts are categorised into numbered tiers:

  1. Found in major cities — High Court Judge (e.g., Old Bailey)
  2. Found in cities — High Court Judge
  3. Less serious indictable offences — Circuit Judge/Recorder

The Crown Court has four main functions:

  1. Bail decisions/appeals.
  2. Committals for sentence
    • Judge sitting alone.
    • Determine sentence with Crown Court powers
  3. Appeals against conviction and/or sentence from the Magistrates Court
    • Judge sitting with two Magistrates.
    • Re-hearing.
    • Can re-sentence only to maximum of Magistrates Court powers.
  4. Trial of indictable only or either-way offences (where trial elected, or Magistrates decline jurisdiction)
    • Judge sitting with a Jury (note new provisions CJA 2003 for trial by judge alone where Defendant elects or in case where jury likely to be intimidated).
    • N.B. a Defendant may entera guilty plea at the Crown Court and that court will then move to sentence.
    • At the conclusion of a trial the Crown Court will sentence.

People found in the Crown Court

  • High Court Judge tries most serious (e.g., murder)
  • Circuit Judge also hears serious offences (e.g., murder, rape)
  • Recorder hears less serious offences (e.g., burglary, theft, assault, etc)
  • Jury (12 members of public selected at random)
  • Barristers (Counsel)/Solicitor Advocate for the Prosecution and Defendant
  • Solicitor/Legal Executive (assists advocate)

The High Court

The criminal function of the High Court is limited to dealing with appeals from the Magistrates Court ‘by way of case stated’ (i.e., that the Magistrates got the law not the facts wrong). In rare cases this may also apply to Crown Court cases (e.g., sentence in excess of power) and applications for judicial review (can be from any lower court i.e., Magistrates Court, Crown Court or Youth Court). Judicial review in essence concerns procedure (e.g., jurisdiction decisions).

The High Court did have a very important function as an appeal court for a refusal of bail, but this has recently been removed except in exceptional cases. Habeas Corpus remains.

A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner’s detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner’s release.

An appeal from the High Court goes straight to the Supreme Court.

The Court of Appeal

The Court of Appeal (Criminal Division) will hear and determine appeals from Crown Court.

This includes indictable offences heard at the Crown Court and other offences heard at the Magistrates’ Court but sentenced at the Crown Court. The Court can either quash the decision (change it), vary the sentence, or order a new trial.

With regard to appeals against conviction, the test is whether the conviction is unsafe. An appeal against conviction is NOT on the facts. It must be on a legal basis i.e., the Judge got the law wrong or applied the law incorrectly, or in the case fresh evidence (still part of the ‘unsafe’ test).

Appeals against sentence — the test applied is whether the sentence manifestly excessive or wrong in principle in all of the circumstances.

The Supreme Court

The appellate duty of the Supreme Court is to determine appeals from the Court of Appeal i.e., that the Court of Appeal got the law wrong!

European Court of Human Rights

By virtue of the European Convention on Human Rights (ECHR) the European Court of Human Rights provides a further dimension to the criminal justice system. Once is granted (only after domestic remedies are exhausted) the court will hear an appeal and judge in accordance with law and convention of the ECHR.

Criminal Cases Review Commission

This body was established after well-publicised miscarriage cases from 1980s by recommendation of the 1991 Runciman Roval Commission on Criminal Justice. It can refer a case back for trial and can look at facts as well as law. It can order a new investigation/conduct own investigations e.g., Range Rover murders.

Jury

Jurors are chosen at random from the electoral roll to serve on a jury — their job is to decide the outcome of a trial.

A jury is always made up of 12 people selected at random from the electoral roll.

If summoned, you are legally required to serve on a jury unless you are ineligible for, or disqualified from, jury service.

The Jury Summons tells you which court you have been summoned to attend and the date and time on which your service will begin. It also provides contact details for the Jury Central Summoning Bureau, where you may direct any queries, you have about jury service at that point. The remainder of the form constitutes your reply to the Jury Summons and allows you to give the Jury Central Summoning Bureau additional information about yourself. You must reply to the Jury Summons within 7 days of receipt.

If you have confirmed that you are able to serve at the time you have been summoned, you will receive details of how to get to the court and what to expect once you’re there.

If you apply to have your jury service deferred or to be excused from jury service, you will receive confirmation of whether your application has been granted.

More than 12 people may be taken into court. This is to show that the requirement for the 12 jury members to be selected at random has been fulfilled. It also ensures that sufficient jurors are there in case any challenges are made by the defence or prosecution. When a case is expected to go on for more than two weeks, a larger group of people will be taken up to court, as there will be some people who will be unable to serve on the jury for that long.

Sentencing

Before sentencing takes place, the judge will take various matters into consideration. For example:

  • Conviction
  • Antecedents
  • Reports (if required)
  • Plea in mitigation
  • Sentence

The Defendant may assist the police by helping them solve other offences on the basis that he /she will not be charged for them. A schedule is prepared by police will go to the court after conviction. The advantage is that they would not be charged in the future and in practice their sentence would not be greatly increased as saved time and expense.

The court can defer for up to 6 months on request of accused. They must show a good reason, e.g.,:

  • Starting rehabilitation
  • Starting responsible job
  • Both of which can show he has reformed

If a Defendant pleads guilty at the start of the court proceedings this will save time and money and the court may consider a ‘discounted’ sentence. This will depend on time and circumstances of the guilty plea.

There are various types of sentence:

  • Absolute discharge
  • Conditional discharge
  • Financial penalties (fines)
  • Community sentences
  • Community orders
  • Custodial sentences (imprisonment)
  • Other sentences
  • Ancillary orders
  • Custody plans and intermittent custody

The Sentencing Guidelines Council was established by Criminal Justice Act 2003 and advises courts on sentencing. The Council has produced a short video which gives the basics on what kinds of sentences there are and how judges and magistrates decide what sentence to give: http://osclinks.com/4310

1.4.3 Legal Personnel and the Judiciary

Solicitors

The governing body of solicitor is the Law Society which supervises training and discipline of solicitors and represents the profession.

Solicitors carry out various types of work including advocacy in the lower courts (magistrates’ court and county court) with limited rights of audience in the Crown Court and High Court. Most solicitors provide general advice and do ‘paperwork, e.g., writing letters, drafting contracts and tenancies, conveyancing, wills, divorce petitions. Solicitors can form partnerships with other solicitors and work in ordinary offices all over England and Wales. There are approximately 170,000 solicitors.

Clients can approach a solicitor directly and a solicitor decides whether or not to take the case.

In order to qualify as a solicitor, you must first complete a Law degree or any degree and a Diploma in Law (previously, CPE). This is then followed by the Legal Practice Course (one-year full time or z years part time). Trainee solicitors must then secure a Training Contract (two years paid at the Law Society minimum: E19,122 outside London; E21,561 in inner London). A Professional Skills Course (twenty days and includes an advocacy module) must be undertaken, Once qualified your name is then added to roll of solicitors. Solicitors must undertake a minimum amount of Continuing Professional Development per year.

Dissatisfied complainants can go to the Solicitors Regulation Authority or the Legal Services Ombudsman.

Solicitors can be sued for negligence and can also be suspended from practice or struck off by the Solicitors’ Disciplinary Tribunal.

The Law Society now has greater powers to inspect solicitors’ files and accounts under the Access to Justice Act 1999, sched.7

Barristers

Barristers are governed by the Bar Council which supervises training and discipline of barristers and represents the profession.

Barristers are advocates in the superior courts (Crown Court, High Court, Court of Appeal and House of Lords) as well as rights of audience in the lower courts but also deal with some paperwork including drafting legal documents and providing written opinion.

Barristers are self-employed who work in chambers shared with other Barristers. They are managed by a Clerk and more than two thirds are based in London. Barristers are not permitted to form partnerships. There are approximately 16,500 practising barristers.

Contact is usually engaged by a solicitor on behalf of client as they work on the ‘cab rank’ rule. The current guidance can be located at: http://osclinks.com/4315

To qualify as a barrister there are 4 main stages you must complete:

  1. Academic Stage
    Undergraduate degree in law, or undergraduate degree in any other subject at the minimum of a 2ii. If you choose the route of an undergraduate degree in a subject other than Law, you must take a Diploma in Law (previously, CPE).
  2. Vocational Stage
    You must join one of the four Inns before you commence this stage of training. The Bar Vocational Course, one-year full time or two years part time. Once you have successfully completed the BVC you will be Called to the Bar by your Inn. However, from 2008, Call will not take place until you have completed pupillage. You will also have to undertake 12 qualifying sessions (previously known as “dining”) before Call to the Bar. See the BVC section for full information on the BVC, Inns and qualifying sessions.
  3. Pupillage
    One year spent in an authorised pupillage training organisation (either barristers’ chambers or another approved legal environment). See the Pupillage section for full information.
  4. CPD
    Continuing professional development. Barristers are now subject to certain requirements in order to keep their practising certificates. CPD is usually in the form of courses or lectures. See the CPD section for full information.

Promotion to the judiciary has always been possible to all levels.

In 1969 following the case of Rondel v Worsley (1969) barristers were not able to be sued for negligence. However, it was later decided that they could be sued for work outside court following the case of Saif Ali v Sydney Mitchell & Co (1978). In the case of Arthur Hall & Cov Simons (July 2000) the House of Lords decided that Barristers can now be sued for negligence.

Complaints were made to the Bar Council until a lay Complaints Commissioner appointed in 1997. Complaints Commissioner can refer complaints to a Complaints Committee who can require barristers to reduce, refund or waive fees and order compensation of up to £2,000 (although work in court was not covered because of immunity from being sued in negligence).

The Legal Services Ombudsman deal with complainants who are dissatisfied with the service they receive. They will investigate and will make recommendations to the Complaints Commissioner who will reconsider the complaint, and/or order compensation to be paid. Under the Access to Justice Act 1999, s49, the LSO can now order that the barrister or Bar Council pay compensation to the client.

Barristers can be disciplined and even disbarred by the Senate of the Inns of Court for failing to maintain the standards of the Code of Conduct.

Legal Executives

Legal Executives are qualified lawyers specialising in a particular area of law. They are governed by the Chartered Institute of Legal Executives.

They will have passed the CILEX Professional Qualification in Law in an area of legal practice to the same level as that required of solicitors. They will have at least five years’ experience of working under the supervision of a solicitor in legal practice or the legal department of a private company or local/national government.

Fellows are issued with an annual practising certificate, and only Fellows of ILEX may describe themselves as ‘Legal Executives’.

Legal Executives specialise in a particular area of law and their day-to-day work is similar to that of a solicitor. They:

  • handle various legal aspects of a property transfer
  • assist in the formation of a company,
  • may be involved in actions in the High Court or county courts, draft wills,
  • advise clients accused of serious or petty crime or families with matrimonial problems
  • deal with many other matters affecting people in their domestic and business affairs

Legal Executives are fee earners — in private practice their work is charged directly to clients — making a direct contribution to the income of a law firm. This is an important difference between Legal Executives and other types of legal support staff who tend to handle work of a more routine nature. (Slapper, 2016)

CILEX have a promotional video which can be viewed at: http://osclinks.com/4316

Judges

Since 3rd April 2006, judges have been selected by the independent Judicial Appointments Commission (JAC).

This means that JAC recommends candidates for all judicial offices (listed in Schedule 14 to the Constitutional Reform Act 2005) and applies to effectively all judges up to and including Appeal Court Judges and Heads of Divisions. It does not apply to Law Lords or Magistrates (for the time being, they will select magistrates in the future).

The JAC is responsible for running selection exercises for posts up to and including the High Court. It is also asked to convene panels that recommend candidates for appointment to other senior posts such as:

- Lord Chief Justice

- Heads of Division

- Senior President of Tribunals

- Lords Justices of Appeal

(Judicial Appointment Commission, 2018)

Lord Chancellor

The Lord Chancellor has occupied an important place in the English legal system, for better or worse, for nearly a thousand years. In the Middle Ages, the Chancellor was a sort of chief administrator to the King. Eventually he came to occupy a judicial role, hearing cases on behalf of the King.

These days the Lord Chancellor has three distinct governmental roles, much to the annoyance of those who favour a strict separation of powers — see below. He

  1. is a member of the Cabinet;
  2. is a judge and a selector of judges; and sits in the legislature in the House of Lords.

In England and Wales, the judiciary comprises in order of increasing seniority:

Magistrate

Magistrates serve as justices in magistrates’ court. Two groups are recognised: Justices of the Peace, and District Judges (formally called ‘stipendiary magistrates’).

Justices of the Peace are lay people of good character who serve on the Bench without payment (although they may be able to claim expenses). They are appointed by the Lord Chancellor.

District Judges — formally called ‘stipendiary magistrates’- are legal professionals including barristers or solicitors of at least 7 years’ standing. They carry out similar work to JPs. Apart from the fact that they are paid, they differ from JPs in that they are empowered to sit alone on cases that would require two JPs. Most District Judges sit in London.

Circuit Judge

Historically, judges were sent out by the King to attend various regional hearings, and then returned to discuss cases with their colleagues. This is the origin of the term ‘circuit’, This term is still used to denote a number of court centres served by a specific judge. A ‘circuit judge’ is one that serves in the Crown Court and county courts. Those eligible for appointment are barristers of 7 years’ standing or Recorders of 5 years’ standing. Circuit judges usually retire at 72 years of age but may work until 75.

There are currently six circuits in England and Wales, centred on London, Birmingham, Leeds, Cardiff, Bristol, and Manchester

Recorder

A ‘Dart time’ judge of the Crown Court. A Solicitor or Barrister is eligible for appointment as a Recorder after 10 years in practice.

High Court Judge

Judges of the High Court, also called “’puisne’” judges, are officially appointed by the Monarch on the recommendation of the Lord Chancellor. Barristers of 10 years’ service are eligible for appointment.

District Judge

This term is used to unify two categories of legal professional, both of which require similar qualifications and experience of the post-holder. These are what used to be known as a “‘stipendiary Magistrate”, and a Registrar of the court. Where the distinction is significant, it is conventional to write “’District Judge (Magistrates’ Court)’” for the former.

Lord Chief Justice

Head of the Queen’s Bench Division of the High Court and of the Criminal Division of the Court of Appeal.

Master of the Rolls

Head of the Civil Division of the Court of Appeal. The Master of the Rolls is also in charge of enrolling solicitors, hence the title.

Master of the Supreme Court

The Masters of the Supreme Court deal with matters in the Chancery and Queen’s Bench Divisions of the High Court. Masters of the Queen’s Bench division are typically, barristers, while those of the Chancery Division are usually solicitors. In both cases, they must be lawyers of at least 10 years’ service. There are also “Taxing Masters’” who deal with issues relating to the charging and collection of Court costs.

Lord Justice of Appeal

A judge of the Court of Appeal.

Law Lord

The ‘law lords’ (technically Lords of Appeal in Ordinary) are the senior judges that sit in the Supreme Court and act as the ultimate appeal authority for the UK courts.

Separation of Powers

The concept of “‘separation of powers’” is that in good government, those who make the law should differ from those who administer the effects of governmental decisions, who should also differ from those who administer the law. Accordingly, there could be no one person exerting an influence which would favour the Government more than it would the people.

Government in this country is divided into three units.

1. The Legislature who make the laws under which the country should be run — i.e. the two Houses of Parliament including the political parties (Government and Opposition);

2. The Executive — e.g. the different Ministries and the Civil Service) responsible for running the country and putting into effect the decisions of the Government, and

3. The Judiciary responsible for administering and enforcing the Law.

1.4.4 Access to Justice and Funding

There are various places where legal advice can be obtained.

Legal advice can be expensive, however there are various places where free legal advice can be obtained including:

  • Citizen’s Advice Bureaux
  • Local authority (e.g., environmental health officer/trading standards officer)
  • Churches
  • Charities
  • Consumer advice centre
  • Housing advice centre
  • Local solicitors may offer free consultations/surgery
  • Community Legal Service Website
  • Law Centres
  • Claims Management Companies
  • Other agencies such as the AA/RAC, trade unions, charities and insurance

Citizens’ Advice Bureaux

Members of the public can obtain free legal advice in these centres. They are staffed by volunteers (often law graduates, but also qualified solicitors). Although the main advice focuses on social welfare problems and debts, they also assist with some legal matters. If they are not able to assist, they will direct the customer to a list of solicitors who do government funded legal work.

Law Centres

These also offer free legal advice, mainly in housing, welfare, employment and discrimination. Although predominately advice is given, they are also able to offer representation although this is limited. Law Centres rely heavily on funding and unfortunately, some have been forced to close.

Claims Management Companies

You may have seen these advertised largely on television. They are litigation services who specialise in personal injury cases and Pl claims from banks. The service is not free; however, they largely operate using Conditional Fee Agreements so that there is no upfront cost to the client.

Trade Unions

Trade unions are where a group of employees get together to ensure they have the best working conditions. This may include wages, health and safety, benefits, etc. The TUC represents 48 different unions. Further information can be found on their website: http://osclinks.com/4317

Private Funding

Solicitors charge an hourly rate, however, can offer fixed fees. In addition to the solicitor’s charges disbursements are often incurred such as court fees, conveyancing searches and experts’ fees.

When dealing with a case on an hourly rate, a solicitor will time-record all work Undertaken. Most firms use units, and one unit equals 6 minutes. The file is then costed at the end of the case (sometimes by specialist costs draftsmen) and a bill sent to the client.

Under the Solicitors Regulation Authority Handbook, Chapter 1 states that a client care letter must be sent to the client at the outset of the matter confirming instructions, costs, the timescales, etc.

As legal advice can be expensive, some firms offer Conditional Fee Agreements.

Conditional fee agreements are agreements between a client and lawyer which mean that the client pays the solicitor less (or nothing, depending on what is agreed) if you lose a case, but a full fee (usually with a “”success fee’” or “”uplift’”: again, subject to agreement) if you win.

They are sometimes called “”no-win, no-fee’” agreements.

CFAS are a similar concept to “”contingency fees” used in other jurisdictions such as the USA. Those however involve taking a slice of the damages if one is Successful. They are not presently used in the UK and in any event would not normally apply in public law work because damages are not usually recovered in such cases.

If you win, you can usually recover most of your costs from the other side. including the uplift and insurance you may have taken out to cover the costs in the event of losing.

Conditional fees are therefore more attractive than they used to be for both clients and lawyers.

Conditional fee agreements must be in writing and the agreement must deal with various specific points, as laid down in regulations.

A potentially difficult issue is how to decide what “’success’” means. Wrestling with this has caused some agreements that lawyers have produced to be almost incomprehensible.

One of the problems is when it comes to the expenses of third parties which do not come under the CFA with the solicitor. For example, Counsel and Experts may need to be instructed throughout the process. Although it is not common, these third parties are also able to work on a conditional basis.

CFAS were originally introduced by s58 Courts and Legal Services Act 1990 as amended by s27 Administration of Justice Act 1999.

s58 states that the CFA must:

  • be in writing
  • not relate to criminal or family work
  • not have a success fee or more than 100% of the winnings

The rules/regulations which a solicitor must abide by depend on when the CFA was entered into. If it was before 1 November 2005, it will be regulated by the Conditional Agreements Regulations 2000. After 1 November 2005 they follow the Solicitors Costs Information and Client Care Code.

The new regime for conditional fee agreements and collective conditional fee agreements began on 1 November 2005. On that date the current Conditional Fee Agreements Regulations 2000 and the Collective Conditional Fee Agreements Regulations 2000 were revoked and primary responsibility for client care, contractual and guidance matters fell under the Law Society’s Solicitors’ Costs Information and Client Care Code 1999 (“”the Code””).

The mandatory requirements in section 58 of the Courts and Legal Services Act 1990 (as amended by section 27 of the Access to Justice Act 1999) remain. Agreements still have to be in writing, not relate to criminal or family proceedings, and in the case of a success fee, must specify the percentage increase, which must not exceed that specified by the Lord Chancellor (currently set at 100%).

If section 58 requirements are not met then the agreement is unenforceable, and by virtue of the indemnity principle, the losing party is not liable for the winning party’s costs.

For the most part the Law Society requirements in the Code simply repeat the existing regulations as to the information about costs which must be given to clients. There is one amendment to the Code, and this will come into force at the same time as the regulations are revoked.

The amendment provides that where clients are represented under a CFA or CCFA the solicitor should explain:

  • the circumstances in which the client may be liable for their own costs and for the other party’s costs.
  • the client’s right to assessment of costs, wherever the solicitor intends seek payment of any or all of their costs from the client; and
  • any interest a solicitor may have in recommending a particular policy or other funding.

Criminal Public Funding

The Legal Services Commission look after legal aid in England and Wales.

The old system of criminal legal aid was replaced in April 2001 with the Criminal Defence Service. The aim is to ensure that people suspected or accused of a crime have access to advice, assistance, and representation in order to ensure the interests of justice.

The Criminal Defence Service Act 2006 (c 9) is an Act of the Parliament of the United Kingdom. It makes provision about legal representation funded as part of the Criminal Defence Service. They are also responsible for ensuring that people get the information, advice and legal help they need to deal with a wide range of everyday problems.

In order to obtain funding, the applicant must satisfy a means and/or merits test:

Means test: Judged on the financial status and capital of the applicant

Merits test: Judged on the ‘interests of justice’

There are various types of assistance:

Duty Solicitor: Police Station

Free service which everyone is entitled to no matter how wealthy the suspect is. No means/merits test is required. Solicitors work on a rota system to participate in scheme.

Duty Solicitor: Magistrates’ Court

A solicitor is always present in the court to deal with situations where the defendant appears in court unrepresented. The first court appearance is free, and no contribution will be required. No means/merits tests are required for this first appearance.

Advice and Assistance

Help and advice is given from a solicitor who may write letters, make phone calls, etc. This is Means tested — partner’s capital and income may also be included in the assessment.

Advocacy Assistance

This covers initial cost of solicitor appearing in both the Magistrates’ and Crown Court. There is no means test, however the solicitor carries out merits test and decides if case warrants such assistance. No contribution is payable by the client

Further information on the means testing can be viewed at http://osclinks.com/4318

Civil Public Funding

Civil: Through the Community Legal Service (CLS) they help people who are eligible for legal aid to protect their rights. Only certain types of matters are eligible for CLS funding and the firms who offer the same must hold a Contract. Personal injury is not covered, however examples of areas of law which can be dealt with under the contract include family (divorce, domestic violence, benefits, etc), employment, mental health and community care. Those with a Contract come under a network of Quality Marked Solicitors and funding is also given to the Citizens Advice Bureau and other advice providers.

The General Civil Contract (Solicitors) was introduced on 1 January 2000 and provides the mechanism for the provision of publicly funded civil legal services through solicitors’ offices. The 2018 Standard Civil Contract governs the provision of face-to-face legal aid services in all civil categories. The contract is under the Access to Justice Act 1999. The contract covers only civil work. Contract work may comprise either Controlled Work or Licensed Work or both.

In order to qualify for civil legal aid, the client must meet the means testing criteria. The means test is set out within Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. (Gov UK, 2018)

There are various levels of assistance including:

Legal Help

This covers cost of preparation work only including letters, phone calls, meetings, etc. It does not cover going to court. This is means tested.

Help at Court

This is the same as Legal Help but in addition covers costs of appearing in court, without formally acting in whole of proceedings.

Legal Representation

This covers all work needed to take legal proceedings to trial and beyond, It is means tested and a contribution may be payable by client. The statutory charge (see below) may apply.

Family Mediation

This covers the use of mediation to attempt to resolve a family dispute by way of a mediator.

Family Help (Lower)

This provides a fixed fee for work carried out before proceedings take place. There must be a ‘significant family dispute’ which means that it Is very likely that the dispute will end with proceedings being issued.

Family Help (Higher)

This is on an hourly rate and used when proceedings are absolutely necessary as all other attempts to resolve the dispute have been exhausted.

Statutory Charge

If money or property is gained in a civil case, a repayment of some of all legal costs may have to be paid out of that property. As the asset is tied up in the house, a Charge is put against the deeds in favour of the Legal Services Commission so that they can be paid back at a later date when the house is sold.

In Conclusion

This essay will be split into two parts, firstly it will be analysing the extent to which the English legal system provides equal opportunity of access to justice for all; and secondly will answer whether access to justice should be fundamental to any fair legal system. This question will be answered by addressing what access to justice is, how it has changed over time, reasons for the changes, and should it be integral. This essay will conclude that the English legal system does not offer effective access to justice for all and that it should be an integral part of any fair legal system.

Access to justice denotes to the right of an individual to have effective access to the courts, so they have the means to settle legal disputes.[1] It is an essential principle of the rule of law, which involves a society that guarantees its people the right to a fair trial. This is where equality lies, binding everyone equally by entitling them to the laws of the land, one of which is having equal access to justice. Legal aid is part of access to justice, which aims to help those who cannot afford legal costs, to have the justice process available regardless of their income.[2] The Human Rights Act 1998[3] states that if one cannot afford legal representation, then their right to a fair trial is undermined, which is a key principle to a democratic society. This is protected under Article 6[4] of the Human Rights Act 1998. The intended result being a greater number of people having access to justice, increasing the extent to which the English Legal System offers access to justice for all and encompasses the rule of law.

Today, legal aid is available for both civil and criminal cases, however, the opportunity of the areas of law that are funded by legal aid and those who are entitled to it has been continually changing over time. In both criminal and civil cases, the right to legal aid must be determined through various criteria. If an individual falls into the threshold needed, then they can be eligible for legal aid. However, over time these thresholds have continued to increase, making it progressively harder for certain individuals to obtain access to justice.

In the 1900s, prior to the second world war, legal aid was provided through charitable donations to those who could not afford legal representation. This was unpredictable and erratic, rendering many without access to legal defences. The clear limitations of charitable donations providing legal aid were made clear by one of the founders of the Poor Man’s Layer movement, stating that such a system made the rule of law “anaemic attenuated make-believe which we flash in the eyes of the poor as justice.”[5] However, during and subsequent to World War II, steps were made to ensure a fairer society in the eyes of justice, whereby a welfare system was shaped under the Legal Advice and Assistance Act of 1949, establishing the unified system of legal aid.[6] The scheme initially provided 80% of the population with a means-tested right to legal aid.[7] During the ensuing fifty years, a number of changes were made by Parliament and the executive government, but over-all, the system was deemed sufficient. For example, in the mid-1980s, 70% of the population were still eligible for legal aid, and there were relatively few exclusions of types of cases from the legal aid eligibility. However, by 1999 the civil legal aid was very restricted and had to be replaced by the Access to Justice Act 1999[8]. This deduced that claimants were able to access the courts by guaranteeing that they did not have to pay much in the way of costs if they lost and they recovered all their costs if they won.[9] This act ensured that every application was to be independently assessed by the government to enable only those who fit the requirements to be provided with legal aid. However, this act was based on the proposition that upon if the claimant wins, the defendant would not only pay for the claimant’s costs: the defendant would have to pay three times the claimant’s costs.[10] This system was replaced on 1st April 2013, by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012[11], pursuant to suggestions made by Lord Justice Jackson, a Court of Appeal judge due to the inherently questionable nature.[12] While the Legal Aid, Sentencing and Punishment of Offenders Act 2012 mediated few issues with the Access to Justice Act 1999, it also confirmed cuts to public funding, making extensive changes to the legal aid system for family law as well as other areas of civil law in England, reducing the range of civil cases that legal aid would be eligible for. The decision to introduce significant cuts to the pre-existing system governing civil legal aid was encouraged by economic considerations with limited foresight for the potential negative and profound impacts on the protection of human rights in the UK. The drawbacks such as limiting private family law legal aid to domestic violence between husbands and wives had had predictable consequences such as decreasing claims but increasing allegations of domestic violence as a way of qualifying for legal aid. Subsequently, fewer people can now access free legal aid and representation in a wide range of cases[13].

Now, legal aid is simply not available for most cases.[14] This correlates to the English legal system developing a two-tier system of justice: one for the affluent and another for everyone else. The Lord Chief Justice stated that our system of justice is now unaffordable to the majority.[15]However, this discrepancy of equality before the law isn’t just about cuts to legal aid. Over the years there has been several increases to court and tribunal fees as well, making access to justice prohibitively expensive.[16] Despite widespread opposition, it has been confirmed that asylum and immigration tribunal fees will be increasing by 500%, and employment tribunal fees increasing, resulting in a huge drop in claims.[17] Court and tribunal closings, coupled with the increase cost and complexity of litigation and the shrinking of legal aid, continues to increase difficulty and expenses for many people to access justice.

Although these changes affect everyone, they predominantly affect those who have the highest need for recourse to the law.[18] The changes are likely to disproportionately affect ethnic minorities, women and people with disabilities and mental health problems.[19] Legal aid should be one of the fundamental aspects of the UKs legal system, that allows those who are least able to afford or understand legal advice and access to justice a way of doing so. People living in poverty, who cannot afford to pay for legal advice and representation, will be most affected by the removal of pertinent areas of the law from the scope of legal aid. This problem is exaggerated as a result of poverty stricken areas having a higher rate of legal problems in the various categories that have been withdrawn from the scope of legal aid such as welfare benefits.[20] If our legal system cannot protect the most vulnerable people in society, it cannot be regarded just or to uphold the rule of law. It is hard not to conclude that we are compromising our justice system for austerity.

Whilst it can be said that the government have managed to decrease the budget deficit through major savings to the civil legal aid budget, they are temporary savings, and have ignored the knock-on financial costs that could counterbalance or even eliminate these savings.[21] Without access to representation and advice, there will be pertinent issues such as: increased levels of homelessness, increased debt, and separation from families. This not only has substantial human costs to the individuals and their families, it also has a wider social cost, forcing services to take the increasing burden of supporting those whose problems have been allowed to mature due to the lack of aid. Parliamentary committees and other organisations have emphasised the damage of wider financial costs to essential services, caused by cuts to legal aid, such as added demands on the NHS as a result of reduced welfare advice.[22]

Looking more widely, access to legal advice and representation is central to the rule of law, and the rule of law coupled with democracy is one of the two essential aspects on which a fair society is based. For any state to uphold the rule of law, and be a truly just and democratic society, protection of fundamental human rights must be adequately provided for. As stated by judge Thomas Bingham: “a state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law”.[23] If this is not present, the rule of law would becomes inconsequential.

Although access to justice is still available, the extent to which it is available for all has narrowed drastically, with the disadvantaged and vulnerable being most affected by these times of austerity. Access to justice is an integral part of human rights protection in any state. It is a fundamental element that provides individuals with the right to have an efficient remedy, the right to fair trial and the right to equality before the law regardless of race, gender, disability or income. In England the provision of legal aid has necessarily acted as a foundation that encompassed the edifice of access to justice. Without efficient and available legal advice, people cannot effectively claim and enforce their rights, and society will eventually start to fragment. That is not merely just the increase between rich and poor, which leads to segregation and inequality amongst society if it gets too large. It is the destruction which arises when people lose faith in the legal system, and subsequently then lose faith in the rule of law, undermining society. The UK and its democratic history now faces the serious risk that the rule of law is taken for granted, consequently ignored, and is then lost completely, and only then does everyone realise how absolutely integral it was to society.

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