Characteristics of the

English Legal System

Introduction to Law Section 2
Course Material
• Gary Slapper and David Kelly, The English Legal System, Chapter 2 pp
25-32, 41-43, 45-47
• Jaqueline Martin, The English Legal System, pp 11-13
The Unwritten Constitution
• For most people, especially abroad, the United Kingdom does not have a constitution at all in
the sense most commonly used around the world – a document of fundamental importance
setting out the structure of government and its relationship with its citizens. All modern states,
saving only the UK, New Zealand and Israel, have adopted a documentary constitution of this
kind, the first and most complete model being that of the United States of America in 1788.
• However, in Britain we certainly say that we have a constitution, but it is one that exists in an
abstract sense, comprising a host of diverse laws, practices and conventions that have evolved
over a long period of time. The key landmark is the Bill of Rights (1689), which established the
supremacy of Parliament over the Crown following the forcible replacement of King James II (r.
1685–88) by William III (r. 1689–1702) and Mary (r. 1689–94) in the Glorious Revolution (1688).
• From a comparative perspective, we have what is known as an ‘unwritten constitution’,
although some prefer to describe it as ‘uncodified’ on the basis that many of our laws of a
constitutional nature are in fact written down in Acts of Parliament or law reports of court
judgments. This aspect of the British constitution, its unwritten nature, is its most distinguishing
characteristic.
The separation of powers
• Separation of power can be traced back to Greek philosophy, it was
advocated in early modern times by English philosopher John Locke
and later by French philosopher Montesquieu and found practical
expression in the US constitution
• The idea of the separation of powers is posited on the existence of
three distinct functions of government(the legislative, executive and
the judicial functions) and the conviction that these functions should
be kept apart in order to prevent the centralization of too much power.
• There is high judicial authority for claiming that the separation of
powers is an essential element of the constitution of the UK(see R v
Hinds)
Continued
• Distinguish executive from legislature as through its control of the
majority of house of commons the government(executive) can
legislate as it wishes and provide the most arbitrary of party political
decisions with the form of legality
• To what extent can the judiciary oppose the wishes of the
government expressed in the form of legislation and interfere with
the pursuit of those wishes
• The Constitutional Reform Act 2005 and the imperative of the
separation of powers
The Independence of the judiciary
• The right of the legal system to operate independently as an autonomous system
apart from the general control of the state, with the judiciary controlling its
operation, or at least being free from the dictates of central control.
• In the United States, with its written constitution, the judiciary in the form of the
Supreme Court has the power to declare the Acts of legislature unconstitutional
and hence invalid.
• No such power extended to UK courts under the Human Rights Act.
• Tension between the judiciary and executive taking a constitutional aspect
through passing of the HRA 1998, giving courts the right to subject the actions of
the executive and all public authorities to the gaze of the law, so as to prevent the
executive from abusing power
• It was however sensitive to maintaining parliamentary sovereignty
The Office of the Lord Chancellor
• Intention of government to abolish the office of the Lord Chancellor
was met by strong judicial reaction
• The judges with support from parliamentarians made clear that they
thought their independence would be best protected by the role of
the Lord Chancellor
• The judiciary resisted the Constitutional reform Bill 2003 which
provided for the abolition of the Lord Chancellor
• Office of the Lord Chancellor retained according to the Constitutional
Reform Act 2005 although its functions reduced according to s2 of the
Act
Lord Mackay, “The Administration of
Justice”
• “The fact that the executive and the judiciary meet in the person of the Lord
Chancellor should symbolize what I believe is necessary for the
administration of justice in a country like ours, namely, a realization that
both the judiciary and the executive are parts of the total government of the
country with functions that are distinct but must work together in a proper
relationship if the country is to be properly governed. It seems more likely
that the interests of the judiciary in matters within the concerns covered by
the treasury are more likely to be advanced if they can be pursued within
government by a person with a lifetime of work in law and an understanding
of the needs and concerns of the judiciary and who has the responsibility as
Head of the Judiciary, than if they were to be left within government as the
responsibility of a minister with no such connection to the judiciary.”
The Rule of Law
• The rule of law is a symbolic idea, it is difficult to give a precise meaning to
the term
• Dicey’s explanation of the rule of law: “an absence of arbitrary power on
the part of the state, equality before the law, and supremacy of ordinary
law
• Problems with Dicey’s views: Conflict with parliamentary supremacy, which
can grant arbitrary powers to the state
• Parliament cant be challenged by judicial review, unlike other countries, e.g
US, where legislative bodies are subject to the rule of law
• Reference to formal equality and disregard to informal inequality, e.g
payment of court fees
Continued
• Veneration of formal equality at the expense of substantive equality
• Power of legislature subject to the rule of law, e.g Germany and the
concept of Rechstaat
• Rechstaat: control of the state by notions of law, limiting its sphere of
legitimate activity
Von Hayek
• “Stripped of all technicalities, the rule of law means that the government
in all its actions is bound by rules fixed and announced in advance.”
• Rule of law became weaker due to authorization of actions of state by
the legislature.
• Concern with increasing intervention of the state and replacement of a
free market economy with a planned economy
• The modern state no longer provides the legal framework for the
conduct of economic activity, but directly involved in coordinating it
• May seem justified but contradicts with the concept of the rule of law as
posited by Dicey
EP Thompson
• Rule of law as a protection against, and under attack from, the
encroaching power of the modern state
• State use of control of legislative process to undermine civil liberties in
pursuit of own concept of public interest
• “The rule of law, and the imposing of effective inhibitions upon power
and the defense of the citizen from power’s all intrusive claims, seems to
me an unqualified human good.”
• There is more to the rule of law than requirement that law be processed
through the appropriate legal institutions, an essential element is the
way in which it places limits on the exercise of state power
Roberto Unger
• Setting a typology of social order, one category of which is the rule of law
• Distinguished social order on the basis of autonomy and generality
• Autonomy: law has its own sphere of authority and operates
independently without reference to external controlling factor
• Generality: application to all people equally without personal or class
favoritism
• Recognizes advantages of the rule of law system in comparison to
arbitrary power, but skeptical as to the reality of equality that such a
system supports
•
Joseph Raz
• The rule of law as a way of controlling discretion rather than preventing it
completely
• Rule of law as negative value, acting to minimize the danger of use of
discretionary power in an arbitrary way
• There should be clear rules and procedures for making laws
• The independence of the judiciary must be guaranteed
• The principle of natural justice must be observed, these require a open and
fair hearing with all parties being given the opportunity to forward case
• The courts should have the power to review the way in which other principles
are implemented to ensure they are being operated in accordance with the
rule of law
The Supremacy of Parliament(Parliamentary
Sovereignty)
• Parliament became sovereign power in the land as a result of the victory of parliamentary forces
in the English revolutionary struggles in the 17th Century.
• The Independence of the judiciary was secured in the Act of settlement 1701.
• Independence of judiciary and legal system from direct interference of the state in the newly
established constitution by John Locke
• Lord Steyn: “ The classic account given by Dicey of the doctrine of supremacy of Parliament, pure
and absolute as it was, can now be seen to be out of place in the modern United kingdom.
Nevertheless, the supremacy of parliament is still the general principle of our constitution. It is a
construct of the common law. The judges created this principle. If that is so it is not unthinkable
that circumstances could arise where the courts may have to qualify a principle established on
different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the court, the Appellate Committee of the House of
Lords or a new supreme court may have to consider whether this is a constitutional fundamental
which even a sovereign Parliament acting at the behest of a complaisant House of Commons
cannot abolish.”
Continued
• Lord Neuberger: “Parliament can, if it chooses, and clearly and expressly
states that it is so doing, enact legislation which is contrary to the rule of
law. Neither the convention, nor the Human Rights Act goes anywhere near
to imposing a limit on parliamentary legal sovereignty. It is true that
membership of the Convention imposes obligations on the state to ensure
that judgments of the Strasbourg Court are implemented, but those
obligations are international law, not domestic law. And, ultimately, the
implementation of a Strasbourg, or indeed a domestic court judgment is a
matter for parliament. If it chose not to implement a Strasbourg judgment,
it might place the UK in breach of its treaty obligation, but as a matter of
domestic law there would be nothing objectionable in such a course. It
would be a political decision, with which the courts could interfere.”
Common Law Vs Civil Law
• Common Law: unwritten law that developed from customs and
judicial decisions, used to distinguish laws that have been developed
by judicial decisions from laws that have been created by statute or
other legislation.
• Judge made law, developed through the doctrine of judicial precedent
• The law operated in the common law courts before the re-
organization of the courts in 1873-5
• Decisions by the judges have the same force as statutes
Continued
• The term civil law refers to those other jurisdictions that have adopted the
European continental system of law derived essentially from ancient Roman law,
but owing much to the Germanic tradition
• The usual distinction made between the two systems is that the common law
system tends to be case centered and hence judge centered, allowing scope for
a discretionary, ad hoc, pragmatic approach to the particular problems that
appear before the courts
• Civil law tends to be a codified body of general abstract principles which control
the exercise of judicial discretion
• Common law overemphasizes the extent to which common law judge can
impose their discretion while civil law underestimates the extent to which
continental judges have the power to exercise judicial discreation