English Legal Systems - Case Study Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Title : English Legal Systems Tutor : xxxxxxxxxxx Course : xxxxxxxxxxx @2010 Introduction The English legal organization is one of the best legal organizational in the globe in terms of competence and efficacy. This is because the organizations are based on three strong concepts namely: Parliamentary sovereignty; The separation of powers The rule of law In short, parliamentary sovereignty depicts the lawmaking preeminence of the UK Parliament. This means that there is no restrictions save for self-imposed limit on the capacity of the House of Commons, the House of Lords and the Crown to pass laws in the UK. The UK Parliament is the primary source of UK law. Since the House of Commons, the House of Lords and the Crown are not restricted on their capacity to enact new laws, the legal system is usually flexible implying that new laws can be enacted whenever and wherever a need arises. This makes the system efficient in that it can respond to any situation through these enactments (Slapper & David, 2008). Separation of powers The separation of powers makes the legal system more efficient. The separation of powers describes the idea that there is some level of independence in the operations of the various functions of roles of government and can be best be seen in the responsibilities of Members of Parliament and the House of Lords which is the legislature, the cabinet which is the executive and the judges who compose the judiciary. This separation is significant particularly to the operations of an effective democratic government since it literally provides a check and balance structure that avoids the concentration of too much state power to the hands of a single group. The new Supreme court which is set to be in operation very soon will obviously and visibly reinforce the constitutional division between the legislature and the judiciary, essentially by removing judges from the House of Lords(Slapper & David, 2001). The present discussion on the separation of powers is centered on whether in practice, too much power in the legal system rests in the shoulders of the executive. The judiciary thus cannot remain biased to any particular class or group of citizens (Slapper & David, 2008). The rule of law The rule of law makes certain that there is fairness at all ranks of the legal organizations. It ensures that the legal systems exercise equality to all citizens whether white, middle class, high class or the common man on the street. It ensures that the making of the law, its interpretation, and its applications are not taken for granted. In fact, ‘Rule of Law Resolution’ by the International Bar Association states that the rule of law is the basis of a civilized community. It creates a transparent procedure available for everyone and equal to all citizens. It ascertains that standards of liberation and protection of the citizens are followed. Although the rule of law does not necessarily imply that everyone obeys it, its existence in a modern democracy ensures that most citizens observe the laws. This further makes the English legal system very effective (Eysenck & Gudjonsson, 2002). The rule of the law is thus involved with the regulation of legal relationship between citizens and between the citizens and the state. It also stipulates the procedures in which the law regulating the relationships can be enforced and administered. Some of the key concepts that can be drawn from the rule of law include: The law should not be arbitrarily or capriciously implemented by the power holders All the citizens and even non-citizens are equal before the law A clear and effective system should be set to apply and interpret the law reasonably and equally for all citizens. Role of regulatory bodies in the legal system The English legal system which includes the judges, magistrates and other organs of the government cannot be considered to be inefficient in whatever dimension. This is because there are numerous public regulatory agencies which have the capacity to pass rules and regulations which are binding on the citizens in particular situations. Normally, this rule making ability is given by the Act of Parliament implying that the regulatory bodies are agents of the government. Examples of such bodies include: The Financial Services Authority (FSA) – normalizes the financial markets in the UK and other financial operations in an attempt to ensure fairness and precision for investors and people trading in financial instruments. The Law Society – normalizes the offering of legal services by the solicitors’ profession, particularly on matters of professional behavior. The Civil Aviation Authority (CAA) – controls safety for instance in airports, air traffic services. This practice of delegating authority from central governments to the regulatory bodies and government agents is increasingly changing in an effort to make the legal system as efficient as possible (Zander, 2007). International law making bodies The common law is also affected by several international agencies whose stipulations and rules are integrated into the national laws. Such laws include the shipping law, conventions of warfare and the application of information and technology such as the Internet. Growth in communications, transport and the escalating understanding of issues which influence the activities of the citizens e.g. climate change, global terrorism and genetic research ultimately call for reforms in the legal system from time to time. All this is in an effort to make the legal system fair and just to everyone. European Union Law The EU which was established in 1957 and has more than 25 member states is also responsible for the regulation of the English legal system. The UK became a member of EU in 1973 and has since abided to the EU law. The UK parliament has incorporated the EU laws into the national laws. As long as UK remains a member of the EU, EU law takes preference over national law. This implies that the UK parliament is not the absolute law-maker because the EU has restricted its sovereignty. This further ensures that the English legal system is streamlined and free of any unfair practices or biasness towards any group of people. The EU enacts laws through a number of institutions (Wasek-Wiaderek, 2000). Of the institutions is the: The Council of Ministers The Council is the chief decision-making institution of the EU and is composed of one minister from every Member State who is allowed to commit that State to legislative suggestions. The European Commission The Commission is formed by 25 Commissioners, one from every Member State, chosen for a five-year period of office. The Commission controls the EU policy and is responsible for submitting legislative suggestions to the Council for further actions. The European Parliament The Parliament is composed of elected citizens from every Member States and there are at the moment 78 MEPs from the UK. As opposed to the UK parliament, the European parliament has no authority to enact laws. It instead considers the legislative suggestions and is allowed to criticize the Commission and the Council. The European Court of Justice (ECJ) The ECJ headquartered in Luxembourg has 25 judges and Advocates-General. The Advocates-General forms an impartial and independent legal view of every case which is taken to the ECJ for further action. All these institutions ensure that the legal systems in the member states run their activities efficiently without bias. They also ensure that citizens of all the member states can access fair and equal treatment in the judicial systems. Judicial Precedent Judicial precedent is another concept that controls the actions of the judiciary. Judicial precedent implies that previously decisions concerning the rule of law are used to determine similar cases in future until such a decision is overruled by a higher court. In case a previous decision on a case does not exist, then the court is allowed to make a reasonable decision. The decision made can be appealed in a higher court. Judicial precedent ensures that the judicial system conducts its activities fairly and makes fair decisions in the application of the rule of law. This is because the decisions made are controlled by previous decisions and would thus not be biased to any particular individual. Absence of previous rulings does not guarantee unfair application of law or biased ruling of cases since the decisions made can be appealed in higher courts and overturned if found unfair. Resolutions made by superior courts are binding to other courts under them. The courts are also controlled by their own decisions implying that no biased decisions can be made (Wasek-Wiaderek, 2000). Judicial Precedent is either binding or persuasive. A past decision is binding if: The legal issue being argued in court is similar to the legal issue that was argued in the precedent The facts of the matter are similar to those of the precedent The precedent is normally a decision of higher courts A persuasive precedent arises from statements within reasonable judgments from other courts which are either higher or lower than the court in question. The decision of the senior court is usually more persuasive than the decisions of the lower courts. Appointments in the judiciary Earlier the Lord Chancellor was accountable for selection of the speaker in the House of Lords, holding a place in cabinet and the leader of Judiciary. This role has been criticized since it has always undermined the role of separation of powers. Constitution Reform Act 2005, allowed the House of Lords to elect their own speaker. The act has ensured that the Lord Chancellor who is politically appointed by the prime minister is neither a judge nor the head of the Judiciary. This is an effort to ensure that the judiciary is as independent as possible so that it can deliver unbiased decisions to the citizens. The Constitution Reform Act 2005 led to the creation of Judicial Appointments Commission (JAC) whose function is to evaluate, choose and recommend candidates for judicial positions. The independence of judges has been enhanced by the reduction of Lord Chancellor’s power’s in appointments of Judicial staff (Barnett, 2008). Conclusion The English legal system is efficient, fair and exercises equality in the delivery of services to the citizens. The magistrates and judges are selected through a competitive procedure by the Judicial Appointments Commission (JAC) ensuring that they do not belong to the middle class only and are not biased to the police. The separation of powers ensures that the judiciary is independent of the executive and delivers its decisions free of interferences. Politicians’ and law makers’ actions are controlled by the rule of the law which ensures that every citizen obeys the law. Bibliography Barnett, H. 2008. Constitutional & Administrative Law. London: Routledge-Cavendish Eysenck, H. & Gejdenson, G. 2002. The causes and cures of criminality. New York, Springer. Slapper, G. &David K. 2008. The English Legal System. London: Routledge-Cavendish Slapper, G. & David, K. 2001. Sourcebook on the English legal system. London, Routledge. Wasek-Wiaderek, M. 2000. The principle of "equality of arms" in criminal procedure under Article 6 of the European Convention on Human Rights and its functions in criminal justice of selected European countries: a comparative view. California, Leuven University Press. Zander, M. 2007. Cases and materials on the English legal system. Cambridge, Cambridge University Press. End piece This paper is intended to alert the reader of the efficiency of the English legal system. It intends to sensitize the leader of the democratic nature of the English legal system by explaining the various functions of the system and the various sources of the legal laws in the system. The Judicial Precedent, rule of law, separation of powers and parliamentary sovereignty all proof the effectiveness of the English legal system. The fact that the laws in the system are derived form various sources including the EU law and other regulatory bodies further enhances the efficiency of the system. Read More