English Legal System - Essay Example

?Introduction This paper examines the English legal system and how laws are made. It begins by examining the components of England's legal system andhow new laws and rules are added to the various components of the legal system. It goes further to assess the adequacy of the evolution of law in recent times in relation to technological and social changes. English Legal System English law is made up of six main sources (Winfield, 2000 p158). They are Common Law Equity Statutes Judicial Precedence (Jurisprudence) European Law & International Treaties and Laws Common Law refers to the consolidation of various legal codes and systems unique to various parts of Britain after the Norman's conquest. It draws on the dominant morals, ethics and values to establish rules that are consolidated into law. Changes in Common Law comes with changes in the dominant culture of England at any point in time. Equity automatically developed after the Crown appointed a distinct unit of courts to handle cases based on the tradition of pardons that was established by in cases. Equity therefore changes with the changes in the dominance practices in the society. Aside Common Law and Equity which forms the basis of law in the UK, there are statutes that are created by Parliament as well as various units with powers arising from delegated legislation. Statutes are changed as and when a bill is presented before parliament and relevant bodies and changed as appropriate. Aside the British parliament, there are also various statutes that are created from the European Union as well as other international bodies that the country is signatory to like the United Nations. Statutes are interpreted by the Judiciary who are empowered as an autonomous body to do so. This is discharged through the various courts. The decisions of a court serves as precedence for other cases that may be presented to courts at its level or with jurisdictions below it. This is known as judicial precedents. Judicial precedents also change when the case at hand is decided in a manner that is quite different from the previous ruling. It can be pointed out that although the Common Law and Equity forms the broad framework within which the law is applied, Statutes are rules that are made and changed from time to time to ensure that the courts get a specific basis for the handling of cases. Changes in Law Rules are converted to laws when they are written down and backed by authority. Laws are created through bills which are discussed before parliament or an appropriate body, accepted, signed into law and enforced. In the UK today, Law is made by parliament – that is the House of Commons and the House of Lords. This therefore means that if a law is to be changed, it needs to go through the House of Lords and the House of Commons before it can be accepted as changed. A change in law can be prompted by a member of parliament, a Royal Commission set up to examine a certain law or situation in the society, a national emergency, the Law Commission or the party manifesto of the ruling government. All these outlets can potentially cause parliament to consider changing an existing statute to reflect situations that exist in the society at a given point in time. In this sense there are three main types of bills, there are the public bills, which affect the general public, the public members' bill which are put forward by an individual member of parliament. There is also a private bill which is a bill meant to create a law that affects a small interest group in the United Kingdom. After a proposition for a new law is raised before parliament, the relevant government department publishes a Green Paper that outlines the elements of the Bill and engage various interest groups in a consensus building process. When the inputs for all interest groups are taken, the civil servants in the Government department summarizes the advice and comments and present them to the Minister in question. The Minister examines the comments and publishes a White Paper that contains the main ideas of the Bill. The White paper is used by the Parliamentary draftsmen to write the Bill. The Bill is passed into Law by the House of Commons and then the House of Lords (with Finance bills, the House of Lords only passes the Bill). Before the Bill is passed into Law, there is the First Reading where the Bill is read to the House of Parliament (House of Commons). At this stage, there is no debate. This is followed by the Second Reading. In the Second Reading, the Minister in question is invited to the House of Parliament to explain the components of the Bill to the House. At this point, debates are conducted by the House on the Bill and also, public opinions and debates are conducted in the wider community. Interest groups and lobby groups find ways and means of getting their voices heard at this stage. From there, the Bill is presented to a Committee formed within Parliament. The Committee usually involves 16 to 50 MPs who debate on the Bill and its implication and suitability. Usually, a representation of the opposition is necessary in this matter. The committee presents its report to the House and this includes all the necessary amendments and recommendations made by the committee that studied the matter at hand. This gives rise to the Third Reading which involves a final vote on the matter. When the vote is in favour of passing the Bill, it is carried on to the next stage. The next stage involves presenting the Bill to the House of Lords. The main responsibility of the House of Lords is to agree with the text of the Bill. If the House of Lords is against the Bill, it is referred back to the House of Commons. If the House of Commons still agree with the Bill, it is passed into a law. The final stage of changing the Bill is where it receives Royal Assent. Once Royal Assent is passed the Bill becomes an Act of Parliament and it is binding on the general public in the United Kingdom. Thus for example, if the UK realizes that there is immense abuse of the principle of the frustration of contracts and people are using it to cheat others and it is causing immense difficulties, there might be the need for a statute that would block the use of this legal loophole. The matter could be raised frequently by the media or the legal bodies about how people rely on the frustration of contracts to cheat others. Numerous interest groups might find ways of communicating the need for a legal instrument to block this by alerting a Member of Parliament, a Royal Commission that has a relevant interest in the subject, the Law Commission or the ruling government. Members of any of these groups could raise the matter at the floor of parliament for discussion. This subject will be debated in the House of Commons on the basis of existing laws and the suitability for a change. If parliament agrees that the frustration of contracts is potentially dangerous to some members of society and there is the need to create a law that will require frustrated contracts to be handled in a way that ensures fairness, the matter will be referred to the Judiciary. The civil servants or the Judicial secretary will summarize the advice and comments of the matter relating to frustrated contracts and factor in actual matters and cases. The summary is presented to the Ministry of Justice or Attorney General will examine the comments and publish a White Paper that will seek to correct the loopholes that frustrated contracts create and also ensure fairness in contracts that are frustrated. This is presented to the parliamentary draftsmen who are experts in writing up laws of this nature. They will examine the components of the White paper and outline the preamble and main legal instrument of the new law on frustrated contracts this becomes the Bill. The Bill on Frustrated Contracts will then be forwarded to the House of Commons. This is first read out to the House to ensure that each member has an idea of the scope and main elements of the Bill. The Minister of Justice/Attorney General will be called to the House of Parliament at another time to come and read out the Bill again and explain questions that members of Parliament might have about the bill. At this point, various interest groups like Think Tanks, lobby groups and the media will come up with their questions which are often raised either in the media or through the various Members of Parliament. A committee on the Frustrated Contracts Bill will then be formed. This will consist of a number of government MPs and opposition MPs who will sit on the matter. They will consider all the relevant facts and if necessary, interview some parties who have an interest in frustrated contracts like lawyers, judges and aggrieved parties in such contracts. The committee will present its reports on the various findings to the House of Commons. The members of the House of Commons will then vote on the Frustrated Contracts Bill. If the vote is favourable, the Bill will be sent to the House of Lords who will examine the exact wording of the Bill. If they agree with the Frustrated Contracts Bill, it is presented to the Queen for her Royal Assent. Once her Royal Assent is given, the Frustrated Contracts Bill becomes passed and valid and it becomes the Frustrated Contracts Act. Courts will therefore be required to act within the requirements of the Frustrated Contracts Act. Also, European Union Laws can be changed in a manner similar to British Law. The European Court of Justice proposes a legislation for the European Union through a proposal. This is approved by the European Parliament which consists of 750 representatives chosen from the various member states. After this stage, approval is sought from the Council of Ministers and the proposal becomes a new law. Responses of the Law to Emerging Issues Changes in society affects the law at a given point in time and the law also supports the status quo. In recent times, numerous changes have occurred in our society in relation to social structures and technological changes. One will expect that the changes in the Law to meet these new trends must be at a rate corresponding with the rate of change in social structures. Thus a revolutionary change needs to be met with a revolutionary change in law whilst an evolutional change must be met with an evolutational change in law. Technology Internet & Electronic Gadgets The Internet and the presence of new electronic gadgets support the fast and real-time transmission of information between parties. This therefore means that numerous positive, as well as negative actions can be carried out quickly. A typical example is the recent London riots which was supported immensely by the quick transmission of information between participants of the various riots. There is therefore the need for new laws in areas like privacy and the protection of public interest. Legally, the Data Protection Act of 1998 seeks to preserve the privacy of people using the Internet. This forms a broad framework for the protection of individuals who use the Internet. However, this also allows a lot of criminal activities to go on because users of Internet tools and systems often hide under their right to privacy to commit various forms of crimes. Additionally, the development of new systems of transmitting information over a short period of time poses a challenge to the British legal system. This is because there is the need for specific laws and continuous legal monitoring of the advancement in the Internet to be able to catch up with the changes and trends in the industry. Although there are some committees that can be set up to advise law and policy makers in the UK, the rate at which Internet activities change makes it difficult for such areas of the society to be monitored to ensure that the spirit of the law is honoured. Money Laundering The SOCA Act 2001 is also a major law that is supposed to prevent crime and encourage whistleblowing. However, with the presence of technology, it is very much easy for people to cover up their criminal activities without being identified by present laws. This is because each day, there are new ways of transmitting criminal information and funds across borders without being identified. There might therefore be the need for more laws to be enacted to support continuous monitoring of the activities of people in the country and this might be at the expense of privacy. Social Matters There appear to be serious change in the social structures of the UK over the past three decades. The idea of a typical Eurocentric nuclear family structure has fast disappeared. There are various forms of marriages that are conducted under various cultural and social systems that are recognized under the Civil Partnership Laws. This gives legal cognisance to various marriages conducted outside the traditional British system. This ensures equality and also gives room for further possibilities, in case there are new trends in marriages in the future. Also, the Racial and Diversity Laws of 1976 has worked efficiently to this day. It ensures that minorities in the British society are given fair and equal treatments at all times. This has created an adequate framework for the creation of an all-inclusive society that has nurtured various groups in the British society. The judicial precedence system built on these acts of diversity are very much applicable in the 21st Century. However, some minority groups continue to argue that in practice, the various racial and diversity acts are not helping much since there is discrimination on the ground. From a personal point of view, I think that the Laws on racial diversity in Britain have achieved their basic aims. However, it might be more appropriate to include terms that criminalises certain actions that people usually get away with that are racist. Conclusion Laws in Britain can be changed through Parliament. This is done by raising the issue in parliament and the creation of a Bill by relevant government and ministerial groups. If this is accepted by parliament, it is presented to the House of Lords and given Royal Assent to become Law. Generally, the legal framework in Britain supports the social development in the country. However in terms of technology, there might be the need for a legal monitoring group to ensure that laws are enacted to catch up with the fast paced changes in technology. Reference Winfield, Percy H (2000) The Chief Sources of English Legal History London: Beard Books Word Count: 2,489 Read More