Introduction to English Legal System 2016/2017

Notes from: English Legal System - Catherine Elliot & Frances Quinn, Seventeenth Edn.

Abbreviations used:

  • Govt - Government
  • SOP - Separation of Power, Montesquieu (1989)
  • BOR - Bill of Rights
  • ECHR - European Convention on Human Rights
  • HRA (1998) - Human Rights Act (1998)

What is constitution?

To understand legal system, must understand context in which it operates = the constitution.

Constitution = set of rules which details country's system of government 

1) Sets out broad principles about who makes the law + how 

2) Allocates power between main institutions of state:

  • Parliament
  • Govt
  • The Judiciary

*3) May indicate basic values on which country should be governed:

e.g: citizens should not be punished unless they have broken the law. 

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Britain's Unwritten Constitution

The sets of rules that make up a constitution cannot be found in a single document in Britain.

Britain has unwritten constitution.

Britain has rules about:

  • who holds the power to govern
  • what they can/cannot do without that power
  • how that power is passed on

This indicates presence of Britain's unwritten constitution.

An example of something established by British constitution:

Govt formed political party which wins general election. Power transferred from that party when they lose an election.

 

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The issue of convention

Conventions = long established traditions followed bc they are right way to behave.

NOT!

  • Law
  • Legally sanctioned if not followed

Q: What issue do conventions bring to Britain's constitution?

A: Britain's constitution's sources are:

  • Acts of Parliament
  • Judicial decisions
  • Conventions

This means some exact areas of Britain's constitution, up for debate.

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The issue of convention (2)

Q: Why are some areas of the constitution subject to debate due to convention?

A: Britain's constitution is made up of three areas which include conventions.

  • Acts of Parliament
  • Judicial decisions
  • Conventions

Most ppl see conventions as binding.

(Such as ppl avoid picking noses in public so as to not incite public disapproval, ppl avoid breaking conventions to avoid political disapproval).

As conventions are NOT law, courts do not enforce them, but breaking a convention could cause someone to have to resign due to the disapproval it causes.

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Separation of Powers

Separation of powers - 1st principle underlying British convention.

Developed by 18th cent French philosopher Montesquieu (1989).

Montesquieu's theory:

All state power has 3 types: 

  • Executive (Govt + its servants such as police and civil servants).
  • Legislative (Parliament)
  • Judicial (Judges)

3 types of power should not be concentrated in hands of one person/group.

This would give absolute control, no one to check power exercised for good of country.

*Montesquieu believed Britain at the time was a perfect example of his SOP theory, this is debatable for both then and now.

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Parliamentary Supremacy

The 2nd principle underlying British convention - Parliamentary Supremacy.

Parliamentary Supremacy = Parliament, highest source of English Law. Laws passed (according to Parliamentary procedure) must be applied by the courts.

Legal philosopher Dicey (1982): "Parliament has 'under the English constitution', the right to make or unmake any rule whatsoever; and further, that no body is recognised by the law of England as having a right to override or set aside the legilsation of Parliament."

Dicey gives an example, if Parliament passed a law saying all newborn boys were to be killed, there would be public outcry but the laws would still be valid. In theory, courts must uphold this law.

Dicey's reasoning: Parliament is democratically elected, should have the upper hand when making laws each citizen must live by.

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Parliamentary Supremacy (2)

Q: Why is Parliamentary Supremacy unsual for a democratic country?

A: Most comparable nations have a Bill of Rights.

Bill of Rights Statement of basic rights which citizens can expect to have protected from state

BOR takes precedence over other laws. Courts are able to refuse to apply legislation which infringes any of the rights protected by it.

European Convention on Human Rights

= international treaty agreed after World War II. Seeks to protect basic human rights.

ECHR only recently incorporated into English law recently w Human Rights Act 1998, came into force Oct 2000.

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Parliamentary Supremacy (3)

Human Rights Act 1998

The HRA (1998) incorporates the ECHR into domestic law: but does NOT give it superiority over English law.

Requires whenever possible, legislation should be interpreted w principles of the ECHR: but does NOT allow courts to override incompatible statutes, + does NOT prevent Parliament from making incompatible laws.

Section 19 requires when new legislation made, Govt Minister must make statement (before second reading of the bill in Parliament) saying either:

  • The provisions of the Bill are compatible with the ECHR
  • The provisions of the Bill are not compatible and they wish to proceed anyway.

^ This confirms Supremacy of Parliament NOT intended to be overridden.

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Parliamentary Supremacy (4)

Section 10. makes small impact on Parliamentary Supremacy.

= allows Minister of the Crown to amend by order any Act found to be incompatible w the ECHR. 

! However, no obligation to do this. A piece of legislation would remain incompatiable if parliament did not amend it.

Membership of the EU

In particular areas, EU law must take precedence over laws made by Parliament.

! However the European Union Act 2011 seeks to affirm Parliamentary Supremacy.

John Laws (1998) unusual view of present constitutional position:

Suggests even w/o BOR can be argued Parliament draws power from fact that it is democratically elected: we accept its authority to make law bc we all have a say in who makes up Parliament. Therefore, Parliament is restricted to making laws consistent with democracy.

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Parliamentary Supremacy (5)

1998, important constitutional changes.

New Scottish Parliament created by Scotland Act 1998 gave ability to make laws in some areas. 

Northern Ireland Act 1998 similarly gave Northern Ireland Assembly power to make legislation in some areas. 

Government of Wales Act established new body for Wales, Welsh Assembly only limited powers to make primary legislation, can make delegated legislation.

Delegated legislation = Delegated (or subordinate or subsidiary) legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority.

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Rule of Law

Developed from writings of 19th cent writer Dicey, which outlined the three elements of the rule of law:

  • There should be no sanction w/o breach
  • One law should govern everyone, (both ordinary citizens + state officials)
  • Rights of individual not secured by written constitution, secured by decisions of judges in ordinary law.

Real importance of rule of law today lies in basic idea underlying all 3 of Dicey's points: state should use power according to agreed rules, not arbitrarily. 

Issue arises often concerning state's response to terrorism.

Example: opposition to alleged shoot to kill policy by armed forced in NI against suspected terrorists based on principle all suspected criminals should be fairly tried, according to law, punished only if convicted.

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Rule of law (2)

Pressure group JUSTICE issued manifesto for rule of law in 2007.

Suggests rule of law can be broken down into set of values that govt should accept as matters of constitutional principle, which should not be breached. JUSTICE suggests, under rule of law, govts should:

  • adhere to international standards of human rights;
  • uphold independence of judgees and the legal profession;
  • champion equality before the law;
  • ensure access to justice;
  • accept rigorous powers of scrutiny by the legislature;
  • ensure greater cooperation between govts within Europe is matched by increased rights for citizens.
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Rule of Law (3)

The practice of "extraordinary rendition" appears to breach the rule of law.

Extraordinary rendition = the kidnapping of ppl by state reps, and their subsequent detention w/o establlished legal procedures (such as a formal request for the extradition of a suspect).

The US intelligence service has involved itself w extraordinary rendition, and the UK has allegedly assisted this, particularly w information about suspects and the use of UK airports.

The Constitutional Reform Act 2005 introduced some major reforms to the British constitution: it expressly states in its first section that it "does not adversly affect...the existing constitutional principle of the rule of law".

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A written constitution: For and Against (1)

Some argue that the right of ppl suspected of committing a crime: to remain silent when questioned was part of our constitution. The right essentially abolished by the Criminal Justice and Public Order Act 1994. If the UK had a written constitution, a special procedure would have had to be followed to amend the constitution to remove that right.

The integration of the ECHR into domestic law may prove to be the first step toward a full written constitution. However, the current (16/17) Conservative government is considering replacing the HRA (1998) with a British BOR. However these proposals are short and unclear. The possibility shows the ability of successive govts to change the unwritten constitution as they see fit.

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A written constitution: For and Against (2)

Main reasons in favour for a written constitution that would:

  • Clear up some of the grey areas concerning conventions
  • Make the constitution accessible to citizens
  • Provide greater protection of basic rights and liberties

Main reasons in favour of our unwritten constitution:

  • Product of centuries of gradual development, forming cultural heritage, wrong to destroy
  • The lack of any special procedural requirements* for changing it allows flexibility, constitution develops along w changing needs of society.
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