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English Legal System: Key Concepts

Britain & the EU05 May 2015

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Contents:

separation of powersthe rule of lawparliamentary sovereigntythe UK constitutionthe criminal/civil distinctionFunction of JudiciariesJudicial review in Britain Doctorine of Ultra ViresHierarchy of Criminal and Civil CourtsJudicial IndependenceThe selection of JudgesJudicial neutrality The hierarchy of judges in BritainTrust issues towards British Judges

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Defining the ‘separation of powers’, ‘the rule of law’, ‘parliamentary sovereignty’, ‘the UK constitution’, ‘the criminal/civil distinction’, ‘standards of proof’

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Separation of Powers

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A.V. Dicey, (1885), The Rule of Law

1. The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials

2. Parliament may introduce any law it wishes3. Parliament can not bind future Parliaments4. Laws made by Parliament override all other forms

of law5. The courts must apply the laws made by

Parliament.

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Parliamentary Sovereignty

The central doctrine of the UK constitution which states that:1. Parliament is the supreme law making body in

the country (can make or unmake any law)2. Parliament cannot restrict future parliaments

in decision making 3. Parliaments decisions cannot be overturned

by any higher authority (only Parl. can make law)

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What is ‘The’ UK Constitution?

• A legal framework detailing the composition and responsibilities of the institutions of govt. and describing their relationship both with each other and with the country’s citizens

• This implies the operation of constraints on the exercise of power

• Unconstitutional behaviour is anything that falls outside the accepted rules and norms of the political system

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Codified or Uncodified?

• A codified constitution is when the laws, rules and principles specifying how a state is to be governed are set out in a single legally entrenched constitutional document.

• An uncodified constitution is when the laws, rules and principles specifying how a state is to be governed are not set out in a single legally entrenched document but are found in a variety of sources such as statute law and EU law.

• The UK, Israel and New Zealand (and San Marino) are the only nations which have an uncodified constitutions.

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Sources of the UK Constitution

Statute lawActs of Parliament

Common lawLaws developed by judges through the decisions of courts setting precedent in areas of conflict or dispute

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Function of Judiciaries

• The judiciary is the branch of government that is responsible for the adjudication of law and therefore resolving issues between parties to a legal dispute.

• They interpret the law, determining what its means and how it applies in changing circumstances.

• They uphold the will of the legislature, acting as guardians of the law, taking responsibility for applying its rules without fear.

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Functions of Judiciaries - continued

• They have responsibility for judicial review of particular laws and administrative actions particularly in states with a codified constitution.

• If they are law lords, they sit in Parliament, contributing to its debates on public policy and sharing in the various tasks per-formed by the House of Lords.

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Judicial review in Britain

• Judicial review in Britain is a weaker doctrine than in the more usual continental and American experience. There is no written constitution against which the constitutionality of actions and decisions can be judged

• No court has declared unconstitutional any act lawfully passed by the British Parliament

• Yet, particularly since the 1980s, statistics indicate that there has been an increasing resort to the process of judicial review.

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Doctorine of Ultra Vires

• Ultra vires is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires ("within the powers").

• So:• If it is done without such authority, it is ultra vires. • Acts that are intra vires may equivalently be termed

"valid" and those that are ultra vires "invalid".

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Ultra Vires: what does it do?

• It enables judges to assess the constitutionality of executive actions in the light of ordinary laws, using the doctrine of ultra vires. This is a much narrower and more limited version of judicial review, enabling the courts to declare the actions of ministers unlawful, but not allowing them to question the validity of the law itself.

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Hierarchy of Criminal and Civil Courts

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Judicial Independence

• Judicial independence is maintained by the fact that judges enjoy security of tenure and cannot easily be removed from office, even when their opinions become hostile to ministers

• The independence of the judiciary is regarded as an essential feature of democratic regimes.

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Judicial Independence - Continued

• But in recent years, the dividing line between politics and the law has become blurred, and Judges have become increasingly significant actors in the political system.

• Judicial independence implies that there should be a strict separation between the judiciary and other branches of government.

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Judicial Independence - Continued

• The degree of independence of judges from political interference varies from country to country.

• In some parts of the non-Western world, there is a strong independent judiciary.

• However, in several other states the judiciary is under constant pressure to deliver verdicts acceptable to the regime.

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Judicial independence in Britain

• Lord Denning described the independence of the judiciary as ‘the keystone of the rule of law in England’ . . . It is the only respect in which we make any real separation of powers.’

• Yet in the way that judges have traditionally been appointed, there is room for doubt.

• According to John Griffiths, ‘the most remarkable thing about the appointment of judges is that it is wholly in the hands of politicians’.

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Judicial independence in Britain

• The independence of the British judiciary is supposed to be protected in three ways:

• the way in which judges are selected • their security of tenure • their political neutrality

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The selection of Judges

• The recruitment of judges should not be influenced by political considerations or personal views.

• It should be done on the basis of merit or by popular choice.

• In practice, there are three main methods of selection: appointment, co-option by other judges and popular election

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The appointment of judges in Britain

• At the beginning of the twentieth century, judges were appointed by the Lord Chancellor as a means of rewarding those who had provided political services.

• But since the days of Lord Haldane (Lord Chancellor), political allegiance has been relatively unimportant and merit has been paramount.

• Today, judges are still appointed by the government of the day. The most senior judges are appointed by the Prime Minister following consultation with the Lord Chancellor

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Dangers of Appointment

• The dangers are that appointment becomes a means of rewarding relatives and friends (nepotism) and that people are chosen not according to their judicial merit but rather for their political leanings and known views on matters of public life such as the appropriate scope of state intervention in economic and social life (partisanship).

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Co-option: Pros and cons

Pros:• Good means of ensuring judicial

independence Cons:• may produce a judiciary out of touch with

popular opinion – especially given the backgrounds and outlooks of many judges.

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Popular election: Pros and Cons

Pros:• Judges are more responsive to the prevailing

state of public opinion, and – in some cases – are liable to use of the recall

Cons:• No guarantee that able, competent justices

will be chosen

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Appointment: Merit or affiliations?

• Appointments done by prime minister are made on merit, but they can be contentious.

• There was press speculation that Thatcher had made Lord Donaldson Master of the Rolls (Master of the Rolls is the Head of Civil Justice, and the second most senior judicial position in England and Wales, after the Lord Chief Justice), because of his political affiliations.

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The hierarchy of judges in Britain

• There are several categories of judges who preside over British courts.

• At the apex of the hierarchy is the Lord Chancellor. In his judicial capacity, he is effectively the ‘top judge’, responsible for the whole civil law and legal aid systems. He is also a member of the House of Lords.

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The hierarchy of judges in Britain

• Below the Lord Chancellor are the Lord Chief Justice, who heads the Criminal Division of the Court of Appeal, and the Master of the Rolls who heads the Civil Division of the Court of Appeal.

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The hierarchy of judges in Britain

• The other group that is included within the ranks of the senior judges are those who sit in the High Court.

• All of the senior judges are chosen from barristers of at least ten years’ experience.

• Below them are circuit judges who sit in the crown courts, then the recorders (part-time judges) and at the bottom of the hierarchy are the magistrates (justices of the peace), lay people rather than trained lawyers

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The security of tenure of judges

• Once installed in office, judges should hold their office for a reason-able period, subject to their good conduct

• They should not be liable to removal on the whim of particular governments or individuals

• They usually remain in position for many years.

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Dismissal of Judges

• Today, those who function in superior courts are liable to dismissal on grounds of misbehavior. This can be done only after a vote of both Houses of Parliament and has not actually happened in the twentieth and twenty-first centuries.

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Judicial neutrality

• It refers to the capacity of judges to resist political pressure from other branches of government

• By convention, judges are above and beyond politics, apolitical beings who interpret but do not make the law. As such, their discretion is limited.

• In fulfilling their role, judges are expected to be impartial, and not vulnerable to political influence and pressure.

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Judicial neutrality

• More recently, in a greater spirit of openness, senior judges have been willing to express their views on public policy, although this is not to ally themselves with backing for one party.

• If they make a partisan utterance, it is felt that this would undermine public confidence in their impartiality.

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Kilmuir Guidelines

• Kilmuir Guidelines These guidelines were laid down in 1955 by the then Lord Chancellor to restrict the freedom of judges to pronounce on public policy, for example by speaking to journalists about judicial matters.

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The background of judges in Britain

• Judges were usually born into the professional middle classes, and often educated at public school and then Oxbridge.

• They tended to be wealthy, conservative in their thinking, middle-aged when first appointed (in their sixties before they attain a really powerful position in the House of Lords or Court of Appeal

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Judges according to Anthony Simpsons:

• 90 per cent of the judiciary were public school/Oxford or Cambridge educated

• their average age was 60

• 95 per cent were men

• 100 per cent were white.

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Trust issues towards British Judges

• Some groups in the community have always found judges intolerant on issues of civil liberties, because of their background and legal training, as well as their preference for the status quo.

• They tend to be intolerant of minorities, especially young protesters, minority activists and others prepared to question existing ideas and values.

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Trust issues towards British Judges

• On the left, many would claim that over the last two centuries judges have used their discretion against trade unionists, individually or collectively. The right to strike has sometimes been put at risk by judicial decisions, as over the and Taff Vale.

• Judges are not as socially representative as many would wish. There ought to be more members of ethnic minorities on the Bench, and more women and younger judges.

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Issue of Leftish Opposition against Judges

• The Left in Britain has long been critical of judges and wary of the power they exercise. Throughout much of its history, many in the Labour movement have felt that their party has suffered from the decisions made by those on the Bench, particularly in the area of industrial relations.

• The most famous example of such treatment was the Taff Vale case at the turn of the twentieth century, in which the right of the unions to take strike action was seriously restricted.

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180 degrees out of phase: the case of British Judges and affirmative actions

• There has been in recent years a new breed of judges who are in no way anti-left, but much more willing to challenge government power.

• Instead they are more willing to take on ministers and criticise their attitudes and approaches

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Judicial activism: a new trend among politicisized British Judges

• Judicial activism refers to the willingness of judges to venture beyond narrow legal decisions, in order to influence public policy.

• Its advocates take the view that the courts should be active partners in shaping government policy, especially in sensitive cases such as those affecting asylum, immigration and the rights of detainees in police custody.