Background and Constitution
Constitutional law governs the system of public administration and the relationship between the individual and the state. English constitutional law is unusual because there is no written constitution for the United Kingdom to refer to as the supreme source of legal authority for public acts. The task of appraising English constitutional law is made even more difficult because of the United Kingdom’s membership of the European Union (EU) which has its own constitutional framework. EU law forms part of the law of England (and within its sphere it is supreme) and has had a profound effect on English constitutional principles.
Parliament
Parliament is the highest legislative authority in the United Kingdom and is responsible for enacting and repealing UK law. It consists of three constituent parts: the House of Commons, the House of Lords and the Crown. The relationship between the two Houses (and the supremacy of the Commons) is governed largely by convention though the relationship is in part defined by the Parliament Acts.
Members of the House of Commons are directly elected in General Elections. The House of Lords comprises the Lords Spiritual (Archbishops and other diocesan bishops) and the Lords Temporal (elected hereditary peers, Lords created for life to serve as Lords of Appeal and life peers created under the Life Peerages Act). In 1998, legislation was passed by the UK Parliament to create devolved Parliaments/Assemblies in Scotland, Wales and Northern Ireland.
Constitutional Law
As is stated above, the United Kingdom lacks a comprehensive written constitutional charter and instead has a system consisting of piecemeal legislation, ancient common law doctrines, and constitutional conventions which are binding in a political rather than in a strict legal sense. Consequently, the United Kingdom constitution lacks the coherence of comprehensive written constitutions like the United States.
In countries that have a written constitution, the constitution will establish and limit the powers of government institutions and confer and protect the civil and political rights of its citizens. Such a constitution will usually only be repealed or amended in accordance with special procedural requirements. Although the United Kingdom has the Magna Carta of Edward I and other similar constitutional documents (eg the Bill of Rights and the Human Rights Act), these documents do not form a complete written constitution and are not immune from change by the ordinary process of legislation (i.e the enactment and repeal of UK law).
The Court System
The law in England and Wales is divided into criminal law and civil law.
Most minor criminal cases are heard in local Magistrates' Courts. More serious offences are transferred from the Magistrates' Courts to the Crown Court to be heard (usually by a judge and jury). The majority of civil actions are heard in the 218 county courts.
Some civil actions are heard in the High Court, which sits at the Royal Courts of Justice in London as well as at some major court centres around the country. The High Court has three divisions: the Chancery Division (which hears cases on equity, trusts, tax, bankruptcy), the Queen's Bench Division (which hears cases on contract, tort, commercial matters) and the Family Division (which hears cases on divorce, children, probate). In addition, the Divisional Court of the High Court sits in the Family and Chancery Divisions and hears appeals from magistrates' courts and county courts.
The Court of Appeal has a Criminal Division (which hears appeals from Crown Court cases) and a Civil Division (which hears appeals from the High Court, tribunals and, in certain cases, county courts). The House of Lords is the final point of appeal (on questions of law only), although cases on matters of EU law may be referred to the European Court of Justice. In addition, the Law Lords in the House of Lords sit as the Judicial Committee of the Privy Council to hear appeals from certain Commonwealth countries whose legal systems are still linked to the UK. Note that the Constitutional Reform Act 2005 (partly in force) establishes a Supreme Court of the United Kingdom and abolishes the appellate jurisdiction of the House of Lords.
The Legal Professions and their Regulation
A legal practitioner may be either a barrister or a solicitor. The Bar Council is the regulatory and representative body for barristers in England and Wales. It deals with the qualification and conduct rules governing barristers and with complaints against barristers. It also puts the Bar's view on matters of concern about the legal system and acts as a source of information about the Bar. The Law Society provides a similar role for solicitors, acting as the representative and regulatory body for solicitors in England and Wales. It sets the standards for qualifying as a solicitor as well as issuing rules and guidance on professional conduct. The Legal Service Ombudsman ensures that complaints against barristers and solicitors are handled properly by their appropriate legal professional bodies. Judicial office holders are usually experienced barristers or solicitors appointed by the Crown (on the advice of the Lord Chancellor or Prime Minister).
Barristers and Solicitors
Barristers traditionally had a monopoly on rights of audience in the higher courts. Although this monopoly has now gone, barristers remain specialist legal advisers and court room advocates. As the law has become more complex, barristers have tended to specialise in particular areas of work. The traditional route to a barrister was through one's solicitor. However in 2004, the rules governing access to the Bar were relaxed to allow a greater degree of public access to barristers. Although barristers are primarily regulated by the Bar Council, the Inns of Court have an important role in their education and training. One can only be a barrister if one has been "Called to the Bar" by an Inn of Court.
Solicitors provide expert advice on the problems people regularly face, from buying and selling houses to drawing up wills and dealing with relationship breakdown ("the high street solicitor"). Commercial solicitors help businesses (local, national and multinational) by providing the legal basis for commercial transactions to take place. In order to practise, an individual must have a certificate issued by the Law Society authorising him to practise as a solicitor |