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English legal system
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English legal system
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The English Legal System,law is defined in the Oxford Dictionary as “a rule or system of rules recognised by a country or
community as regulating the actions of its members and enforced by the imposition of penalties”. In
other words laws are rules which are emplaced within a country to ensure safety and justice for the
people who are living there. A judge is a person who has the power to come up with the final verdict
in a court case and it’s their responsibility to find out if one’s innocent or guilty. Many would support
the idea that they create the law however some would argue that they don’t make the laws but
interpret these laws and apply this when making their decision. The English legal system is made by
the English parliament. They are the only members who have the sovereignty to make, amend and
take away laws. There are two houses within parliament, ‘The house of commons’ and the ‘The
house of lords. For a law to be created a bill is first presented in either house and they must go
through 5 stages within both houses and must be approved at all stages for the bill to continue.
These stages are the first hearing, the second hearing, committee stage, report stage and lastly the
third hearing. If amendments need to be made the bill will be sent back and the stages will have to
be repeated. If at all stages, the bill is successfully approved then the bill will get sent to get the royal
assent which is the signature of the crown and a public declaration.
English law is based upon a common law system. This developed historically because of the fact that
prior to the Norman Conquest, there were various different legal systems governing different parts
of the British Isles, each reflecting the influence of particular invaders (such as the Norse in northern
England). Gradually, principles and practices of law that were common to each of these localities
emerged, and were imposed around the country by representatives of the monarchy. The principle
of stare decisis emerged, which led ultimately to the doctrine of binding precedent. The English legal
system, then, is a common law system, which adapts to the changing societal needs of the age.
Common law systems (where there is something of a balance between laws made by the legislature,
and those made by the judiciary) can be contrasted with civil law systems, which dominate on much
of continental Europe. Civil law systems have traditionally been heavily influenced by the French Civil
Code, with its Napoleonic heritage. In civil law systems, the primary source of the law is the
constitution or civil code. From this stems other law. Although the English legal system is not the
only common law system in the world (the system was, for example, exported to many of her
colonies and territories during her imperial expansion), the English common law can be said to be a
unique system, as it has historically developed in a particular way.
The advantaged of the English common law system include the certainty it affords. This was the
primary reason for the historical inception of the common law (stare decisis). This means that people
can have a better idea of how the courts will treat their particular case or circumstances, based on
previous analogous cases. Certainty is a fundamental principle of the rule of law, and the common
law therefore assists in this. Linked to this advantage is the fact that unlike a codified system of rules
that have been developed in abstract, the common law is based on response to real situations with
all their complexities and nuances. There will be less reliance in the common law on theory and logic
than in statutory law or codified law. This assists it in being more akin to situations that litigants will
find themselves in.
The major advantage of the common law system over more rigid civil systems is its relative
flexibility. For the reasons outlined above, judges can (and do) develop the common law on a case-
by-case basis in order to respond to the changing needs f society, and to reflect changing socio-
political norms and values. It is far quicker (and easier) for a judge to make a ruling in a major case to
amend the law in a particular area, than it is for Parliament to draft, debate and pass the relevant
legislation. Such is the extent of this flexibility that some commentators (notably Hayek) have called
,for the common law (that is, made by judges) to replace statute as the primary source of the law,
with as little legislation as possible coming from Parliament. He applies a rather right-wing market
force analysis to his ideas, suggesting that strong robust (and correct) laws will withstand the forces
of societal development, while less robust or incorrect ones will not. This reflects the degree of the
perceived advantages of the common law.
Despite this, however, common law systems also have a number of disadvantages. Foremost
amongst these is the sheer volume of legal material that such a system produces. There are many
thousands of decided cases, many with lengthy reports. These reports must be scrutinised in detail
in order to extract the relevant ratio decidendi (that is, the legal reasoning for the judgement). A
major criticism of common law systems is that it can be hard to locate and extract the relevant
principles due to the volume of material. A further criticism is based on the principle of binding
precedent, which means that judges must follow precedent even if they disagree with it. The
doctrine also leads to judges distinguishing essentially similar cases on tenuous grounds in order to
use or avoid a precedent that they consider to be appropriate. This has been said on occasion to lead
a high degree of unpredictability based on illogical, and often artificial, distinctions.
The common law, as has been identified, develops on a case-by-case basis, and this has been seen to
be one of its principle advantages over more rigid civil law systems, affording it the flexibility to
respond to changing circumstances. There is also an inherent disadvantage in this, however, based
on the fact that the common law does not provide a comprehensive legal code (because of its
piecemeal development). Here one can see a relative merit of comprehensive civil codes setting out
the whole law relating to particular issues.
A significant difference between the common law system and civil systems is the issue of the effect
of new law. Statutory law (and civil law) is based on the principle that it is unjust to have retroactive
effect (that is to say it would be unfair to hold that someone was in breach of the law by doing an act
that at the time, was not a breach). Changes to the law that are made by cases, however, will apply
retroactively, as they will be applied to the facts of the current case (which of course, have already
happened). This was an issue in the controversial case of SW v United Kingdom (1995) in which the
two defendants, accused of raping their wives, brought an action before the European Court of
Human Rights alleging that their rights under Article 7 had been violated by making a criminal law
have retroactive effect. The Court dismissed this, however, saying there was no violation provided
developments could be clearly foreseen.
This, then, represents the fundamental differences between common law systems (of which England
and Wales is a prime example) and civil law systems, which tend to prevail in continental Europe,
and which are usually heavily influenced by the Napoleonic French Civil Code.
Concerning the Acts of Parliament procedure it has to be said that, as general rule, every bill has to
be approved by the House of Commons, the House of Lords and ultimately the queen in order to
become an Act of Parliament. This process may start in any house but it is more common for it to
begin in the House of Commons. There is occasionally a pre-legislative scrutiny before the bill enters
into the Parliament. Once the bill is a draft the following stages take place:
The bill starts in the First reading and the reading out of the title and the printing of the bill take
place here.
, Then, in the Second reading, the Minister establishes the most important principles of the bill to be
debated and then, a vote is carried out. Anyway it is rare for the bill not to pass through this stage
successfully.
Subsequently in the Committee stage, a committee is created in order to examine each clause of the
bill in detail. There are three types of committees: Committee of the Whole House or Grand
Committee which is created for constitutional issues and some financial issues; Public Bill Committee
which is the most frequently used and between 16 and 50 members of Parliament, in a proportional
representation of the entire Parliament, take part in it and the Select Committee which is composed
by 18 Members of Parliament who are elected by a committee of selection, and its composition has
to be proportional to the bench composition in the Parliament. The latter is rarely used.
Later in the Report stage, the bill goes back to the House of Commons and this is one more chance
to amend it.
Lastly the Third reading takes place here. This is a mere formal step and there is no possibility to
make any other amendment here. The vote about the amended bill takes place.
Once, these stages have carried out and the bill has been passed with a simple majority of votes, the
same procedure, with small differences, has to take place in the House of Lords. For example, in the
House of Lords amendments are possible in the third reading.
Afterwards, a consideration of amendments takes place in the House of Commons and finally the
last requirement to finish this procedure is the Royal assent of the queen that has to be notified to
both houses. This fact is a mere formality in the process because although the queen is the head of
legislative process in the United Kingdom, she does not create laws. Her role is confined to the
approval whatever bills the Parliament has created in order to become a Parliament Act.
It should be noted the importance of the Parliaments Acts of 1911 and 1949. As a result of these
Acts, a bill can be passed without the consent of the House of Lords because these Acts reduced the
power of the House of Lords abolishing the power of veto so the only power, it has, is to delay the
bills already passed by the house of Commons for a period of one year, or if it is a money bill for the
period of one month. Once the House of Commons has rejected it, it is possible to reject it for a
second time. In this case the Commons can present the bill to the queen for the royal assent. A bill
can become an Act of Parliament without the consent of the House of Lords but not without the
consent of the House of Commons.
Parliament Act 1911 abolished the right of veto of the House of Lords and replaced this power by the
power to delay the passing of an Act for a period of two years. This rule has exceptions because a
bill, whose aim is to extend the life of Parliament, needs the consent of both Houses.
Despite the first Act attempt, this procedure was especially used after the Second World War. Before
that, it was used just twice in 1914: Government of Ireland Act and Welsh Church Act and then and it
was used again in order to pass the Parliament Act of 1949 (which reduced the period of delay to
one year instead of two years). Since then, the Acts which have followed this process are War crimes
Act 1991, European Parliamentary elections Act 1999 and Sexual offences Act 2000, Hunting Act
2004.
Concerning the sources of law, first of all it should be mention the Legislation, which has two
different forms:
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