Eglish Legal System - lecture PDF

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English Legal System 1 Essentials of English legal system This is the most important part of the syllabus in which we will discuss that how the law developed and administered in the UK jurisdiction. We discuss all its crucial aspects covering the civil law and criminal law and duties of individuals in relation to these laws. This part is divided into three sub-parts   

English legal system Sources of English law Human rights

1.1 English legal system In this part we will start from the origin of law and discuss the following topics one by one.    

About law Types of law Courts system Tribunal system

What is law? We define it simply as a formal system of rules and regulations in which a particular country or society is bound to act under that rules and regulations so we can say it as a formal mechanism of social control. Why we need law/ the history of law To determine the need of law we have to read the history where the human life was very simple with social disorder because there was no system to control them. People were seen to quarrel at food and place. They were not aware about their rights and obligations. Due to this disorder there was a fine line between life and death. For example a stealing of food from one party, put the other party into death. They started to live at the behalf of power. The person having great power, ruled at that time. At this point there was a need of system to control this disorder and at that time a set of rules were developed through which disputed were resolved and punishment for the cruel people and that system of rules knows as Law. Legal history is closely matched with human civilization. Law evolved and changed into its modern form by the passing of time Now in this modern world a proper legal system is working in each country and society.

English legal system is generally a legal system of England and Wales. Under the English legal system we discuss the following types of law through which we also determine that how the English law evolved and changed into current system law.       

Common law Equity law Statute law Private law Public law Civil law Criminal law

Common law was an earliest system of law that was prevailed in England and United States .This system was developed by the custom and judicial precedent. Common law system It was rigid and composed of strict rules, made by the judges and people must have to follow that rules. People were punished harshly under that system and damages were paid in monitory value. People were unhappy about the rules and they criticized it on large scale. So after two to three hundred years, a new system of rules developed in fact a common law system amended with more fairness and justice. This new system of fairness and justice is known as Equity law It is used where money is not suitable remedy It introduce fairness into the system You want to buy painting but dealer sale it to else and you insist on painting. Here money is not suitable damages. Statute law Statute law id developed by the parliaments in a set of prescribed rules and regulations. For example the government passed acts so these are the written rules according to which disputes can be resolved. This suitable is suitable for unique and complicated systems. Private law Private law is the law which deals the individual’s personal matters with relations like dispute related with divorce, children, marriage and personal property and sale of goods. State is not involved No harm for the society

Public law Unlike private law this covers the whole society that usually concerned with the matter of state. For example the crimes which affect the whole society and public may demand to punish the person who commits that that wrong act. Example Criminal law Civil and The law which is similar to private law is known as civil law. Under this law the disputes of personal dealings and issues are resolved. Both parties have to prove the fairness in the court through verbal arguments and court decides the compensation of punishment which is minor as compared to the remedies of criminal law. Criminal law Crime is conduct prohibited by law On the other hand the conduct which is prohibited under the law and affect on the whole public is dealt under the criminal law. The guilty persons who have broken the laws may be punished by fines or imprisonment. Court’s system A courts system is structured for the civil and criminal cases. Courts are developed from where the people get justice and equity. Judges are there to hear the arguments from both parties and take the decision at last. Separate courts are developed to deal the civil and criminal issues. Civil and criminal court structure Civil court structure comprises the following courts. Magistrates’ court It deals small domestic matters. Main jurisdiction is criminal however it also deals in family matters, council tax, water and electricity charges County court It Deals the matters of property under the law of contract and tort. Three track systems is involved –Contract, tort, insolvency landlord One district judge One circuit judge The small claims track- £10,000 (all claims) The fast track-£10,000-£25,000 (Majority) The multi track- £25,000 or more (Some cases)

Rests of the cases are sending to high court. High court It is divided into three divisions; Queen bench-contract and tort Family division-land law, trust, company law, partnership, appeal from county courts Chancery division-Family cases Court of appeal As the name shows this court is developed to hear the appeal from high court and county court 3 lords justice Supreme Court for the United Kingdom Is the highest court from all the previous and deals with large matters and issues and also hears appeals from high court and court of appeal. Other Civil Courts European court of justice ECJ deals with actions between the EU institutions and the member states. European court of human rights The final court of appeal in relation to matters concerning HRA 1998. Criminal court structure Criminal court structure is developed to deal the criminal offenses under the criminal law. It is also composed of following courts and people may apply to the courts according to the nature of issue or case. Magistrates’ court (2-3 magistrate and 1 district judge) It deals with the summary offenses (small and quickly) and the mistakes which are not so much serious. Indictable offenses (trial by jury) Drunk and disorder Minor crime Burglary and drugs Crown court deals with the more serious issues and crimes and also hears the appeal from the magistrates’ courts.(murder, rape and robbery)

The divisional court of QBD is developed to hear the appeal from the previous two courts if the nature of offense becomes more serious. Court of appeal hears appeal from crown court. 3 lords justice Supreme Court of united Kingdome It is the largest court developed to hear appeal from all other courts and takes the final decision which is binding. The supreme court of United Kingdom  The supreme court of United Kingdom was developed under the Constitutional reform Act 2005. Personnel consist of 12 judges known as justices of the Supreme Court.  Its main function is to serve for both appeals of civil courts as well as criminal courts.  The case is discussed and then groups of justices give their views and finally take the decision which is binding because there is no court to hear the appeal of Supreme Court. Tribunal system We can define tribunal as a local group of judges to resolve the issue at a specific place. In other words we can say that tribunal system is a traditional system of resolving issues So tribunals are the other source for the people who want to resolve their issues with justice. Composition  Tribunals are composed of two parts.  Also known as two-tier system each with a panel of three judges.  One is mostly a qualified lawyer  Two are not so qualified but experienced (requested by both side)  The decisions of upper tiers are binding which are finally taken after the review of decisions by first tier Scope  Tribunals are usually developed for the issues regarding employment law in which disputes of employees with employers or vice versa may be solved.  Some disputes regarding the government cases and social security are also heard  Following are some examples of disputes resolved under employment tribunal system. o Complaints of unfair and wrongful dismissal o Issues about trade union membership o Complaints about the discrimination of work and duties at job o Disputed about the equal pay and other monitory benefits and allowances o Health and safety issues at work

Employment appeal tribunal Employment appeal tribunal (EAT) is developed to hear the appeal from different employment tribunals. The status and purpose of EAT is same like the High Court. In this tribunal a qualified lawyer takes the final decision after hearing the facts from both parties. But if the matter remains unresolved then the parties may have to go to the high court where the matter discussed and resolved under the legal framework. Advantages and disadvantages of tribunal system Advantages  This system is cheap and less costly as compared to courts system.  They allow flexibility in their decisions.  Senior tribunal members have more experience and knowledge.  This system reduces the workload of judges.  Prompt decision making Disadvantages  There may be some drawbacks also by using this tribunal system  Judges may have low independence.  Some judges who are not qualified also involved in it so it may increase the chances of wrong decision making.  Lack of legal aid Sources of English law In this chapter we will discuss that how the legal system is working and on which basis this system regulates. As we have discussed before about the elements of legal system now we determine how these elements originates. There are following two major sources for developing the laws or legal system. Case laws or precedents Legislation Case law and precedent Case laws are the laws which are developed through the decisions of specific cases. This is the first sources within the legal framework to develop or create laws in the United States. These laws become precedent when in future a similar case occurs and the judges follow the principles or decisions of case laws in past. Precedents are binding under the legal framework to all the courts but precedent should be developed by the court of sufficient seniority so that other courts have to follow it in future for similar cases. The precedents are flexible and can be changed by the next higher court.

The doctrine of binding precedent The doctrine of binding precedent is that the judge who is presiding over the case must establish that the facts of the current case are similar to the previous case in which precedent was established. So the decision of subsequent case should be according to the binding precedent but if situation is not similar then a new precedent may be created. When judges have to follow the binding precedent in similar situation then it is known as judicial precedent which is based on three elements.   

Reports There must be sufficient and reliable reports of previous decisions by the judges. Rules There must be some rules which may be sufficient to apply on the currents facts of the case extracted from previous case facts. Classification The precedents must be classified and categorized into binding and persuasive precedents

The law reports contains following detail of information.  The names of both defendant and claimant parties  The name of judges hearing the case  The facts of the case  Date and pint of hearing  Order of the court When the binding precedent is applying in the subsequent cases then there must be following consistency of events and facts  The decision must be based on the proposition of law and not on the question of facts.  It must be part of the ration decidendi of the case. The ration decidendi is the statement of the judge in the previous case and its alternative name is obiter dicta.  The material facts of the subsequent case must be similar to the previous one.  The presiding court must have the superior position when deciding precedent so thatthe later courts follow it. Equity prevails over common law

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is a precedent not binding? A precedent is not binding where it: has been overruled by a higher court. has been overruled by statute. was made without proper care (per incuriam). This is where a decision of a court is held to be wrongly decided because the judge was misinformed of the law. A judgment per incuriam is not binding and has no authority. can be distinguished from the earlier case, i.e. the material facts differ. o A previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Where the facts are materially different then a previous decision does not need to be followed.

Advantages and disadvantages of precedent There are number of strengths of judicial precedents on the other hand some drawback also discussed here. Advantages  There is more certainty in the decisions because these are based on the real facts of the previous case.  The decisions are more clear and fair following the ration of ration decidendi.  They may be flexible and can be changed if the situation differs.  These precedents contain more detail of real facts and situations and lead the othercases also.  Time may be saved in the decisions of subsequent cases as it follows the previous rules. Disadvantages  Although the precedents are flexible but these are rigid decisions and cannot be changed easily  Sometimes there may be inconsistency in the thoughts of judges which leads to disagreement.  It may create complexity when number of precedents similar or to finding the exact ration decidendi.  The precedents may become unfair in later time but the courts have to follow even these unfair precedents if they are not in the superior position to the previous courts that have made these precedents The precedents may become unfair in later time but the courts have to follow eventhese unfair precedents if they are not in the superior position to the previous courts that have made these precedents

2. Legislation Another source of developing legal system is the legislation. This is also known as statute law. Statute law is defined as a law (set of rules) which is made by the parliament (which governs the city, state or country).In UK the legislation of statute law may be of two forms. Primary legislation: This is developed from the Acts of parliament  House of common  House of Lords  Monarch  Stages o first reading o second reading debate takes place o committee stage-Consider the wording of bills o report stage the Bill as amended o third reading the Bill is read for the final time.  Doctrine of sovereignty Secondary legislation:  delegated legislation  Parliament delegated some of its powers to bodies  Rules under such power is called delegated legislation o Statutory instruments o Bye-laws o Order in council  Joint select committee control it  Court can challenge delegated legislation  It can be invalid if it coincide with Act  Statutory instrument- a government or executive order of subordinate legislation.( Orders in Council, regulations, rules and orders)  Controlling delegated legislation o Parliament –Draw attention to statutory instrument not merit of instrument o Judicial- challenged on the ground of ultra vires. Ultra vires If corporation enter in contract which is beyond its scope of corporate power contract will be illegal. (outside the power of delegated legislation ) o Procedural ultra vires: when legislation has not followed the correct procedure o Substantive ultra vires: when legislation do not falls in correct area assigned to delegated legislation.

Rules of statutory interpretation Process by which judge assigns meaning to ambiguous words or phrases in statue Use aids, rules and presumptions to assign meaning  

Aids to interpretation Rules

Aid to interpretation  Legislation  Judicial precedents  Interpretation Act  Oxford Dictionary  Reference of court (hansard-Debate in parliament)  Source of EU law  Human Right Act Rules Literal Rule-Ordinary dictionary meaning- Fisher v Bell (1961) Golden rule- if word has more than one meaning (absurdity-himaqat) preference would be given to word which best suit the context. Adler v George (1964) Mischief rule- This principle is used by the courts to determine the intention of the legislators. This principle aims at finding out the mischief and defect in a statute and to implement a remedy for the same. (Cover loophole in common law) Purposive Rule –what is purpose of law (modern version of mischief rule)-cover intention of lawmaker- what parliament meant to achieve (Cover loophole in statute) Eiusdem generis- The general wording is usually restricted things of the same type as the listed items. if a law refers to automobiles, trucks, tractors, motorcycles and other motorpowered vehicles, "vehicles" would not include air planes, since the list was of landbased transportation. Expressio unius exclusio alterius- that states that one thing having been mentioned the other is excluded. Thus, following this rule, ‘no dogs allowed’ means that lions are allowed but guide dogs are excluded.

Presumptions A statute will not bind the Crown A statute cannot conflict with international law. An Act should therefore be interpreted as giving effect to international obligations. A statute does not have any retrospective effect. A statute does not alter the common law. A statute does not exclude the jurisdiction of the court. Legislation does not extend beyond the territorial jurisdiction of the UK.

European court of human right  Supreme court of European state  Uk incorporated European convention of human right in its law through Human right act 1998 European court of justice Role of interpreting European treaty law Applicable to all businessman and individuals They can appeal to ECJ if they are affected The Privy Council Final court of appeal for commonwealth countries...