Unit 1 - The English Legal System and the Rule of Law

What is the United Kingdom ?

Great Britain and Northern Ireland

What is Great Britain ?

England, Wales and Scotland

Which components of the UK have the same legal system, and which one(s) doesn’t/don’t ?

-England and Whales share a legal system (referred to as “English Law”)

-Scotland and Northern Ireland have different legal systems

What is a legal system ?

All the laws and machinery of justice (Acts of Parliament, laws enacted by devolved legislatures, case law, Convention rights, courts, lawyers, the police, prisons…)

What doctrine has the English legal system been constructed on ?

The Rule of Law

What is the Rule of Law + what does it cover ?

-It is the idea that every person is subject to the law (in contrast to tyranny or oligarchy for example)

-According to it, it’s generally agreed that the law and the legal system must be fair, rational, predictable, consistent and impartial.

-What’s entailed :

• Protection against double jeopardy

• Good governance

• Assurance of rights and freedoms

• Separation of powers

• Presumption of innocence

• Protection against vague laws

• Legal equality

What are the two principal conceptions of the Rule of Law ?

-The formalist conception
-The substantivist conception

What is formalism and what does the formalist conception of the rule of law consist in ?

-Formalism is a positivist legal approach.

-Formalist conception of the Rule of Law :

• Law is what is passed by Parliament (or other law-making body).

• Law should be ‘general, open and relatively stable’ and uphold characteristics such as equality.

• Since there is no requirement about the actual content of the law, this approach is known as “formal.”

What is substantivism and what does the substantivist conception of the Rule of Law consist in ?

-Substantivism is a naturalist legal approach.

-Substantivist conception of the Rule of Law :

• Law is based on what is inherently good (or moral) and must serve the needs of the People.

• These laws limit the actions of the government.

What does legal positivism consist in ?

Law is synonymous with positive norms. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created.

What is “natural law” ?

It’s a theory that all humans inherit—perhaps through a divine presence—a universal set of moral rules which govern human conduct.

Who popularised the phrase “Rule of Law” + date + book

A. V. Dicey, in The Law of the Constitution (1885)

What are A.V. Dicey’s 3 pillars of the Rule of Law ?

1) ‘The Supremacy of regular law as opposed to the influence of arbitrary power.’

2) ‘Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary [courts].’

3) ‘The right to individual liberty is part of the constitution because it is secured by the decisions of courts.’

What does ‘The Supremacy of regular law as opposed to the influence of arbitrary power.’ mean + what is it ?

-First pillar of the Rule of Law according to A.V. Dicey

-Means that law – rather than one person – must dominate society and the legal system.

What does ‘Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary [courts].’ mean + what is it ?

-Second pillar of the Rule of Law according to A.V. Dicey

-Means that no one is above the law

What does ‘The right to individual liberty is part of the constitution because it is secured by the decisions of courts.’ mean + what is it ?

-Third pillar of the Rule of Law according to A.V. Dicey

-Means that disputes about the law should be settled by the courts, putting forth the importance of judicial review.

How does the UK Government system works ?

The UK functions around a mix of fusion and separation of powers.

-Legislative powers :

• House of Commons (elected legislature)

• His Majesty’s Government (composed of the largest party in HOC)

• House of Lords (appointed legislature)

-Executive powers :

• His Majesty’s Government (mainly)

• The Crown, with the Monarch

-Judicial powers

• UK Courts of Law

• House of Lords (not anymore since the UKSC’s creation)

What’s the House of Commons’ primary role and what/who does it represent ?

-Primary Role : creates/designs laws, scrutinises/approves laws

-Represents : the Will of the People

What’s the House of Lords’ primary role and what/who does it represent ?

-Primary Role : scrutinises/approves laws, acts as a safeguard

-Represents the unwritten Constitution

What’s His Majesty’s Government’s primary role and what/who does it represent ?

-Primary role : puts forward laws, runs government

-Represents the Will of the People

What’s the Monarch’s primary role and what/who does it represent ?

-Primary role : represents the UK, signs bills into Law

-Represents ceremony/tradition

What’s the role of the UK Courts of Law and what/who do they represent ?

-Primary role : upholds the Law

-Represents the Rule of Law

What dhe Constitutional Reform Act 2005 do ?

-Redefined the role of the Lord Chancellor

-Created the Supreme Cour of the UK to replace the Appellate Committee of the House of Lords

-Created a Judicial Appointments Commission

→ all to provide for a better separation of powers and guarantee judicial independence

What is a civil wrong ?

Civil wrongs involve ‘private wrongs’, for which society judges that the injured party is able to gain redress through the civil courts

A Civil wrong is an infringement of a person’s rights, for which the person wronged may sue for damages or another civil remedy

What is a criminal offence ?

An act which harms wider society

What caracterises civil proceedings ?

• Private wrong: relationship between individual citizens (= civil law). An individual, company, or other body asserts a claim against another.

• Examples of civil wrong: breach of contract, tort.

• Suit is filed by the person wronged (the claimant) against the other (the defendant/respondant)

• Civil actions are referred to by the names of the parties involved in the dispute, for example Smith v Jones.

• Purpose : settle disputes and provide remedies (usually : damages, specific performance, injunction… NOT punishment !).

• Standard of proof : ‘balance of probabilities’.

What caracterises proceedings when a crime is committed ?

• Public wrong: State has decided that an act merits punishment because of threat to public safety or order.

• Police or other government agency investigates and collects evidence.

• Suspect will be prosecuted, usually by the Crown Prosecution Service (the C.P.S.)

• Criminal cases are brought in the name of the Crown, (Rex v ‘…’ abbreviated as R v ‘…’).

• Proof of guilt :

  • Burden : on the prosecutor

  • Standard : ‘beyond a reasonable doubt’

• If the accused is found guilty the result is a conviction, and punishment by the State :

  • Fine (paid to the State)

  • Community punishment, probation or a prison sentence.

  • + possible court order to pay compensation to the victim

What is a tort ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

The branch of civil law dealing with wrongful acts or omissions, other than breach of contract, for which damages can be obtained by the person wronged in a civil court

What is a claim ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

A proceeding in which a party pursues a legal right in a civil court

What is a claimant ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

The party who lodges a complaint in a civil case

What is a defendant ? (is it used in civil proceedings or regarding crimes ?)

(both)

A person against whom civil or criminal court proceedings are brought

What is the Crown Prosecution Service (CPS) ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

The government department responsible for prosecuting criminal cases in England and Wales

What does “prosecute” mean ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

To bring a criminal case against a defendant

What is a prosecutor ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

A lawyer, working for the Crown Prosecution Service, who represents the State in criminal cases sentence: the imposition of a penalty upon a person convicted of a crime

Who is “the accused” ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

The defendant in a criminal case

What does “being liable” mean ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

Being legally responsible for a civil wrong

What is the “balance of probabilities”? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

The standard of proof in a civil case, meaning “more likely than not”

What is a civil remedy ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

It’s what’s granted by the court to a successful claimant in a civil action: damages, injunctions and specific performance are all examples of civil remedies

What are damages ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

A sum of money awarded by a court as compensation for a civil wrong

What is an “equitable remedy” ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

A civil remedy, other than damages. Unlike damages, is awarded at the discretion of the court

What is an injunction ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

A court order which prohibits someone from doing something or orders someone to do something

What is specific performance ? (is it used in civil proceedings or regarding crimes ?)

(civil proceedings)

A court order to a person to fulfill his/her obligations under a contract to sue: to bring a civil claim in order to obtain compensation for a wrong

What does being found “guilty” mean? '(is it used in civil proceedings or regarding crimes ?)

(crimes)

Means having committed the criminal offence with which one was charged

What does “beyond a reasonable doubt refer to ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

Refers to the standard of proof in criminal cases, requiring near-certainty

What is a conviction ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

It’s a judgment of guilt

What is a sentence ? (is it used in civil proceedings or regarding crimes ?)

(crimes)

It’s the imposition of a penalty upon a person convicted of a crime

What is “jurisdiction” ?

The authority of a court to hear a case

What are courts of appellate jurisdiction ?

Courts with the power to determine appeals from lower courts

What does “court of last resort/appeal” mean ?

Means that it’s the court to which the final appeal in a case is made

What are courts of original jurisdiction/courts of first instance ?

Courts with the power to hear cases for the first time

What are superior courts ?

The higher courts of the legal system, whose jurisdiction is not limited, for example, by geography or by the value of the claim, and whose decisions have weight as precedents

What are inferior courts ?

Courts whose jurisdiction is limited to a particular geographical area, size of claim or type of case

Ex: magistrates’ courts, county courts

Rough hierarchy of the UK Courts

Supreme Court

• Court of Appeal

  • High Court

    • Crown Court

      • Magistrates’ Courts

    • County Courts

    • Tribunals
      

BUT careful : the appeals can skip a court sometimes…

Which cases are heard by the County Court ?

Civil money claims under £100,000, with personal injury matters up to £50,000

What cases are heard by the High court ?

More complex civil claims or claims of higher value than those heard by the County courts

What do the Magistrates’ Courts and the Crown Court deal with (roughly at this point)

Criminal offences :

• Magistrates’ Courts : less-serious criminal offences (mostly)

  • The Crown Court : more serious cases and appeals from the Magistrates’ Court

Divisions of the High Court

-King’s (or Queen’s depending of the monarch) Bench division

-Chancery Division

-Family Division

What does the King’s Bench Division of the High Court deal with + subdivisions

The KBD deals with common law cases, mostly tort and contract law

• Administrative Court : hears applications for judicial review + has some appellate criminal jurisdiction

• Divisional Court : hears appeals from magistrates’ courts or the Crown Court

What is judicial review (in the UK law) ?

A court proceeding challenging the lawfulness of an action of a public body or an inferior court (superior courts are not subject to judicial review)

What does the Chancery Division of the High Court deal with ?

Business law, trust and equity

What do Family Courts deal with + details

Family matters, more precisely dealt with :

• By district judges in County Courts

• In Family Proceedings Courts, which are specialist magistrates’ courts

What is the meaning of :

-“appeals from an X Court lie to the Y Division of the High Court”

-”appeals to the A Court lie from the B Court”

-Means that the Y Division has the right to hear appeals from the X Court

-Means that the appeals the to A Court come from the B Court

Tribunals : field, proceeding, example

-Jurisdiction : deciding disputes in relation to specific areas of administrative law, with the main function of resolving disputes between private individuals and government departments, usually in respect of a decision made by a department.

-Proceedings: heard by a tribunal judge, and for some topics one or two lay members (Non-Legal Members) will sit with the judge to make the decision.

-Example : case involving someone who is appealing against a refusal of disability benefits will be heard by a judge, a medical practitioner and someone who may have experience with a disability.

Creation + opening of the UKSC + who previously filled its role

-Creation : Constitutional Reform Act 2005
-Opening : 2009
-Before 2009 : Appellate Committee of the House of Lords (since 1399)

What is the UKSC + what does it deal with

UKSC = Supreme Court of the UK

• Highest court of the UK.

• Court of last resort for all criminal cases from England, Wales and Northern Ireland (not Scotland), and for all UK civil cases

• Hears appeals lying from the Court of Appeal and the High Court

Details about the composition of UKSC

-Cases heard by a panel of usually five justices

-The UKSC is composed of 12 justices

-1 President (currently Lord Reed)

-1 Deputy President

Details on the Supreme Court justices of the UKSC

-Justices have exercised high judicial functions before becoming Supreme Court justices

-They serve ‘during good behaviour’ but there is a mandatory retirement age of 75

-Selected by ad hoc committees convened by the Lord Chancellor, the latter recommanding candidates to the PM, and justices are then appointedd by the monarch.

How are judges other than justices of the UKSC selected ?

Selected by an independent Judicial Appointments Commission, composed of legally qualified and lay people (non-legal professionals).

How are decisions taken in the UKSC ?

-Decisions taken by majority

-With the decision of the majority, justices may :

• Concur

• Dissent

-UKSC can depart from or overrule its own precedents

Vocabulary regarding the result of an appeal heard by the UKSC and generally

According to the vocabulary of the UKSC Appeals can be either :

• Dismissed : when the UKSC finds in favor of the respondent

  • Allowed : when it finds in favor of the appellant

Generally, lower courts decisions can be :

• Affirmed

• Reversed

What changed with Brexit when it comes to the UK citizens taking their cases to European Courts ?

-Cases can no longer be taken to the European Court of Justice

-UK citizens may still take their cases to the European Court of Human Rights (ECtHR), because the UK has not left the ECHR

European Court of Human Rights (ECtHR) : date, role

-Established in 1959

-Supervises the enforcement of the European Convention on Human Rights

European Convention on Human Rights (ECHR) : full name, date, purpose

-European Convention for the Protection of Human Rights and Fundamental Freedoms

-Adopted by the Council of Europe in 1950

-Guard fundamental freedom and human rights in Europe

What can an individual do regarding the ECHR + consequences

-An individual who believes that s/he has suffered a violation of the provisions of the European Convention on Human Rights, and who is not satisfied with the determinations of the domestic courts, can complain to the European Court of Human Rights.

-The Government and Parliament are in theory obliged under international law to respect and act in accordance with this court’s decisions.

How could the contemporary English court system be described ?

-Adversarial court system
-Complex and very expensive
-Many reforms have been passed to limit access to it, and other reforms plan to

What is legal aid ?

A system of providing legal services to people who cannot afford an attorney.

Legal aid in the English system

-Originally provided for by the Legal Aid and Advice Act 1949

-From the mid-1990s – the successive Conservative and New Labour governments have cut it

-The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 cut it by £450 million. The government wanted to discourage unnecessary litigation and to ensure legal aid remained available for high priority cases.

-Legal aid is still available in criminal cases and depends on defendant’s income.

Consequences of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012

Many types of claims were denied any aid such as cases involving welfare, employment, family law, immigration, housing, clinical negligence… A 50% drop in claims granted legal aid à criticism and to protests by many lawyers, senior judges and human rights bodies

Alternative Dispute Resolution in the English system

-The government wants litigation to be used only as a last resort. Parties are increasingly encouraged to use alternative means to reach a resolution to their dispute.

-Examples of alternative dispute resolution (‘ADR’): mediation, conciliation or arbitration. Complaints can also be taken to an ombudsman (a government official who works to investigate and resolve complaints).

Modernisation of the English court system

Courts and Tribunals Act (Judiciary and Functions of Staff, 2018) : attempts to make the judicial system more flexible and efficient.

• Staff who are qualified and experienced are able to perform some tasks that used to fall to judges like case management and mediation. “Justices’ clerks” and “legal advisers” are now known as ‘authorised staff’.

• Judges are now able to focus on more complex and deliberative matters.

Online services launched by the English Government to ‘improve public access and efficiency’

• Ex. Possible to reply to a jury summons or plead for low-level offenses online

• No longer physical files in the magistrates’ courts à Single Justice Service (SJS), which is supported by the Automated Track Case Management (ATCM) digital system

• Sentencing is directly published on the criminal case management system and the Common Platform

• The Common Platform allows the police, Crown Prosecution Services and legal professionals to have access to and share information on criminal cases

• During the Covid-19 pandemic, many hearings took place by video or phone.

• Whilst hearings have resumed, it is now possible for some participants to attend remotely through the Video Hearing Service.

Connection of the Rule of Law with the Human Rights

-The rule of law can be seen as underpinning the existence and protection of fundamental human rights like the right to life, the right to security or the right to liberty.

-Human rights and the rule of law are linked: a violation of human rights often fails to observe the rule of law, and failure to observe the rule of law often results in a violation of human rights.

Example of where is the Rule of Law mentioned in terms of international law

In international documents and organizations that focus on human rights :

-Universal Declaration of Human Rights (1948)

-European Convention on Human Rights (1950)

-Treaty of the European Union (1992)

-Constitutional Reform Act (2005)

-EU-UK Trade and Cooperation Agreement

What are the roots of liberty in the UK

Early legal rights and freedoms :

• Habeas corpus

• Magna Carta (1215)

• Bill of Rights (1689)

What is habeas corpus ?

A writ of habeas corpus will command the person who has custody over the individual to ‘have the individual’s body’ before the court at a named time and place → no one should be held without a trial

This principle which appeared in several English legal texts in 12th century.

What is the Magna Carta ?

-Means ‘the Great Charter’

-King John imposed heavy taxes on his barons to pay for expensive foreign wars and if they refused to pay they were severely punished.

-Barons captured London and John was forced to negotiate: Runnymede, 1215: the Magna Carta was written.

-Most of the charter’s clauses dealt with medieval rights and customs, but the Magna Carta became a symbol of liberty around the world.

-The Magna Carta has no legal power today but is a foundational document for modern legal principles

What is the Bill of Right 1689

-Established the principles of frequent parliaments, free elections and freedom of speech within Parliament (Parliamentary Privilege).

-It also includes no right of taxation without Parliament's agreement, freedom from government interference, the right of petition and just treatment of people by courts.
→ Establishment of individual rights

-Contains the roots of Parliamentary Sovereignty (Parliament is the supreme legal authority)

-The main principles of the Bill of Rights are still in force today

-These documents echo Dicey’s three pillars

History around the adoption of the Bill of Rights (1689)

-The Glorious Revolution of 1688 placed Mary II and William III on the throne instead of James II and established parliament as the ruling power of England. Most historians believe that the Glorious Revolution was an important step from absolute monarchy to a constitutional monarchy.

-In this context thinkers felt free to express their views without fear of persecution.
Ex: John Locke wrote An Essay Concerning Human Understanding (1690) proposing the idea that people possess certain basic human rights.

Origin of the the term “human rights”

First used in English in 1791: Thomas Paine The Rights of Man

• each person is born with natural rights

• He drew inspiration from the French National Assembly’s Declaration of the Rights of Man

These were all parts of the basis for the Universal Declaration of Human Rights (1948) which outlines fundamental rights and freedoms to which all humans should be entitled.

What are human rights ?

They are owed by the State to the People

+ The State has a positive duty to provide for human rights

- The State has a negative duty to abstain from interfering with them

What are civil liberties ?

Guarantees and freedoms that governments commit not to abridge without due process.

Differences between human rights and civil liberties ?

Civil liberties and human rights are sometimes used interchangeably but they have distinct origins and applications :

• Human rights are universal protections based on the inherent idea of human dignity. This concept was formalized after World War II (right to life, liberty, freedom from slavery…)

• Civil liberties are protections and privileges granted by a government to its people, which can vary from country to country (ex. Freedom of speech)

Classification of Human Rights in relation to how much the State can interfere + examples

-Absolute/derogable rights : No matter the circumstances, those rights can never be abridged.

-Limited rights : The liberty of an individual may be restricted after conviction by a court.
Ex: the right to liberty.

-Qualified/derogable rights: in some circumstances (i.e. war), or emergency, it may be lawful for the State to interfere with those rights, provided it can demonstrate that it is necessary to do so in a democratic society, to protect the rights of the community as a whole, and that it has a legal basis.
Ex: the right to freedom of expression and of association

Classification of Human Rights in generations

-First-generation: They are civil and political rights.
Ex. the right to life, to a fair trial, to vote.

-Second-generation: They are economic, social and cultural rights, such as the right to education, to housing, to food, to employment.

-Third-generation: Ex. the right to self-determination and the right to enjoy the environment.

Tests used by courts to balance Human Rights

-Legality

-Necessity

-Proportionality

-Non-discrimination

What does the legality test used by courts to balance Human Rights consist in ?

There must be a legal basis for the State’s interference with someone’s rights.

Protecting public and national safety as well as public order may be lawful reasons for curtailing someone’s rights.

What does the necessity test used by courts to balance Human Rights consist in ?

The State must prove that it is necessary in a democratic society to limit the right of an individual.

The court will balance the rights of said individual with those of the community.

What does the proportionality test used by courts to balance Human Rights consist in ?

There must be a reasonable relationship between the aim and the means used to achieve that aim.

If the State could have used more tailored means, then the limitation of the individual’s rights will be deemed disproportionate.

What does the non-discrmination test used by courts to balance Human Rights consist in ?

Limits on human rights must not be discriminatory.

Events around the European Convention on Human Rights (ECHR)

• 1948 : Universal Declaration of Human Rights adopted by the United Nations, has moral but no legal obligation.

• 1953 : The European Convention on Human Rights came into effect making certain rights stated in the UDHR binding

• 1954 : The enforcement process via the European Commission on Human Rights was set up

• 1959: the European Court of Human Rights in Strasbourg was founded