Paper 2: English Legal System

Law Commission

The Kingdom's advisory body for law reform

What do the Law Commission do ?

- Study laws

- Removing old laws/statutes

- Make the law simpler

- Add laws when necessary

- Recommend improvements

Law Commission Advantage: Legal experts

They research areas of law

Law Commission Advantage: Consultation

The Law Commission consults before finalising its proposals

Law Commission Advantage: Covers whole areas of law

Whole areas of law can be considered, not just small issues

Law Commission Advantage: Makes Acts easier to find and understand

If Parliament enacts the reform of a whole area of law, then the law is in one Act, e.g. the Land Registration Act 2002, making it easier to find and understand.

Law Commission Advantage: Simplifies and modernises law

Caused by law reform brought on by the Law Commission

Law Commission Disadvantage: Failure of Parliament to implement reforms

The government is often slow to enact reforms and some Law Commission reports have not yet been made law.

e.g. Non-fatal Offences Against the Person is a major area of criminal law still awaiting reform.

Law Commission Disadvantage: Lack of Parliamentary time

A lot of time has to be given to financial matters such as the budget and taxation, health, education and foreign policy, especially during Covid.

Law Commission Disadvantage: Changes to wording

This causes the final law to be very different to that proposed by the Law Commission.

This can sometimes make the law less satisfactory than the original proposals.

Law Commission Disadvantage: Not all recommendations followed

The government may accept the Law Commission's recommendations in principle, but when reforming the law, the government may not follow all the recommendations.

Law Commission Disadvantage: Law Commission does not have to be consulted

The government does not have to consult the Law Commission on changes to the law.

This can mean that major changes are made without the benefit of the Law Commission's legal knowledge and extensive research.

Green Paper

Outlines problems with current laws and suggests ways to improve this.

White Paper

After Green Paper, final draft

MP

Member of Parliament

House of Commons

Where MPs debate

Bill

Proposed change / a law that individuals want passed

Bill Readings

Sharing a bill for feedback, it is then debated and voted on.

Amendments

Changes

Royal Assent

Monarch's approval for a bill to become law

Revised

Changed

Reform

To bring back to rightness, order, or morality.

Monarch

King or Queen

Act of Parliament

A law passed by Parliament

House of Lords

Non-elected body, some inherit their position, some from Church, most chosen (200) on a commission.

Types of statutory influence

Political

Media

Pressure groups

Example of successful political statutory influence

Hunting Act Introduced by the Labour Government

Advantages of political statutory influence

- Each party has its proposals ready, making the process of passing a new Act quicker.

- If you have a "majority" in favour, you know you can pass new legislation.

Disadvantage of political statutory influence

Difficult when in power to fulfil the promises made, particularly without an overall majority in support.

Example of successful media statutory influence

Handguns banned after a massacre in a school

Advantage of media statutory influence

The UK has free press, meaning they are able to criticise government policy and bring issues to the government's attention using public opinion.

Disadvantages of media statutory influence

Responding too quickly to high-profile incidents can lead to poorly drafted laws.

The media can manipulate news to generate biased public opinion.

Example of ongoing pressure groups statutory influence

Smoking ban

Advantage of pressure groups statutory influence

Brings important scientific discoveries to government attention.

Disadvantage of pressure groups statutory influence

Conflicting interests between different pressure groups

Four types of Bill

Public Bills

Private Member's Bills

Private Bills

Hybrid Bills

Public Bills

Affect most of the country, introduced by the Government.

Private Member's Bills

Introduced by one MP

Private Bills

Don't usually affect the whole country, may be introduced by a large company/local council/public corporation that require an act of parliament to build a new road or factory.

Hybrid Bills

Introduced by the Government, but don't affect everyone.

How are Acts passed ?

Bill is drafted

First Reading

Second Reading

Committee Stage

Report Stage

Third Reading

Same procedure in other House

Royal Assent

Bill is drafted

Draft = Written

First Reading: Title of bill is read out

Gives idea of what Act will be about.

Second Reading: Debate of main principles

Members debate the general principles and merits of the bill before voting on whether it should proceed.

Second Reading: Vote taken

Members vote on whether to approve the bill's main principles, which may result in a formal counted vote if the outcome is unclear.

Committee Stage: Detailed examination of bill

Members of a Standing Committee evaluate each clause and may suggest amendments before further voting.

Report Stage: Comittee reports back to house

Amendments made are then debated, and another vote is held.

Third Reading: Final approval, debate and vote

No further amendments can be made at this stage.

Same procedure in other house

Bill passes to the other House

Royal Assent: Final approval by the monarch

Once Royal Assent is granted, the bill becomes an official law of the land.

Most Acts have a delayed implementation (start date) after Royal Assent.

Parliament Acts 1911 and 1949

House of Commons can overrule the House of Lords

Features of Parliament Acts 1911 and 1949

- 1949 Act reduced Lords' delaying power to one year

- House of Commons can reintroduce an Act after the year has passed and pass them without the consent of the Lords

- Rarely used: Seven times only, e.g. Hunting Act 2004

-The two Houses usually reach a compromise

Dicey: Rule of law

A legal principle asserting that no one is above the law.

1st point of Dicey: Parliament can legislate on any subject matter

And cannot be overridden by any authority.

2nd point of Dicey: No binding principles

No Parliament can be bound by any previous Parliament, nor can a Parliament pass any Act that will bind a later Parliament.

3rd point of Dicey: Parliamentary Sovereignty / Supremacy

No other body has the right to override / set aside an Act of Parliament.

Parliamentary Supremacy also = Sovereignity of Parliament

Public funding for civil cases

The Legal Aid Agency

Free legal advice for civil cases

Civil Legal Advice Service

Features of Civil Legal Advice Service

- Free advice on debt, housing and domestic abuse

- Merit tested

- Means tested

Merit test - civil cases

Should the case be heard?

Means test - civil cases

Does D fit criteria of insufficient financial funds?

Must be below a certain threshold (amount).

When is the Civil Legal Advice Service not available ?

In negligence claims or employment tribunals

Private funding for civil cases

A use of a person's own savings / earnings / a loan to pay their legal costs.

Use of insurance

- Taken out BEFORE the event in case of any legal cases (e.g. car insurance can include legal insurance)

- Taken out AFTER the event to insure against losing a civil case, which involves paying the other side's legal costs as well as compensation

Conditional Fee Arrangements

Client and solicitor have an agreement that they will only pay the legal fees if the case is won.

Features of Conditional Fee Arrangements: Success fee

A "success" fee is added to the usual fees, but the success fee cannot be more than 25% of the compensation

Alternative sources of advice for civil cases

Charity

Helplines

Citizens Advice

Law Centres

Trade Union

Law Clinics

Charity

A specific area of interest

e.g. MIND mental health legal advice

Helplines

Phone or online

e.g. AA traffic law

Citizens Advice

Town centre offices / website / phone

3,500 in UK

Can advise on areas of civil law, e.g. housing or debt

Law Centres

Free advice from solicitors

45 in UK

Can advise on areas of civil law, e.g. housing or debt

Trade Union

Advice to members on employment law, included in membership fee

e.g. National Education Union (NEU)

Law Clinics

Law undergraduates at university - free

Can give general legal advice

Tracks in the civil system

Small claims track

Fast track

Intermediate track

Multi track

Small claims track

- County court, district judge

- Up to £10,000 for property

- Up to £1000 for personal injury

- Fixed fee between £35-£455, must be paid by claimant

Fast track

- County court, circuit judge

- £10,000 - £25,000

Intermediate track

Less complex claims valued at more than £25,000 but not more than £100,000

Multi track

- £25,000+

- If complex = £100,000+

- County Court, circuit judge

Alternatives to going to court

Negotiation

Mediation

Conciliation

Tribunals

Negotiation

The two parties try to reach their own agreement

Mediation

A trained third party tries to help the two sides reach an agreement.

Mediator must be paid

Used in divorce cases and civil disputes

Conciliation

A trained third party helps the two parties by proposing solutions.

For employment disputes

Tribunals

Specialist civil courts

e.g. employment, immigration, mental health

They sit next to the civil courts on the hierarchy and cases can be appealed to the Court of Appeal and Supreme Court.

Where can employment disputes only be heard ?

At the employment tribunal

There is also a separate claim form for this.

Advantages of Negotiation

- Cheaper

-Quicker

- Less stressful

Disadvantages of Negotiation

-Might not agree

- Have to talk to the other side

Advantages of Tribunals

- Cheaper and quicker than conventional courts

- Private

- Can be less formal

Disadvantages of Tribunals

- Unlikely to get legal aid

- Delays

- Other side is likely to have solicitors and barristers

District judges

Hear the majority of civil cases in County Courts.

Circuit judges

They primarily deal with civil disputes and can hear cases allocated to the small claims track or the fast track.

Lord Justices of Appeal

Judges in the Court of Appeal.

Justices of the Supreme Court

Judges of the Supreme Court.

Which civil court decides liability and remedy ?

The County Court

Which civil court is for expensive claims and decides remedy and liability ?

The High Court

Which civil court hears appeals on liability and appeals on the amount of damages ?

The Court of Appeal

First Reading: Bills can start in either House.

Both Houses have authority to create and propose Bills.

Dicey: Parliamentary Supremacy

Parliament is the supreme legal authority in the UK, able to create or end any law.

Features of Conditional Fee Arrangements: Insurance

Client usually has to take out insurance against losing.