The English Legal System - Essay Example

The English Legal System Table of Contents Introduction 3 The Different Processes by Which Law Can Be Changed 4 Arguments 6 Arguments in Favour of the Quotation 6 Arguments against the Quotation 9 Conclusion 11 References 12 Introduction The major function of legal system of any country is firmly associated with the articulation of laws that ensures the smooth operation of society. Laws are argued to be more than rules defining the social behaviour. They are also considered to be distinct that comprise an official code adequately supported by state authorities responsible for enforcing and sanctioning the same. Formulation of law, and their interpretation and application is recognised to be challenging. It is because the laws enacted and enforced have strong affiliation with every aspect of human lives. Moreover, the method of making laws is not a result of one night’s effort rather it is an outcome of intense thought process. Subsequently, a few prominent methods of law making in England and Wales is firmly rooted in the medieval history while other methods are seen to have a strong affiliation and a set of implications from the post-World War II. Although the differences in the time period is attributed to the methods of law making but the influence of social, technological and political components is apparent in law making methods irrespective of the differences in the time period. A number of processes are required to be completed while formulating laws before their full-fledged enforcement (Weait, 2011, p. 11; Weait and Goodey, 2011, p. 69: Howells et.al., 2011, p. 144). Correspondingly, this essay intends to explain the different processes by which law can be changed. Subsequently, the essay also presents arguments both in favour and against the statement, “At one level law reform is either a product of parliamentary or judicial activity. Parliament tends, however, to be concerned with particularities of law reform and the judiciary are constitutionally and practically disbarred from reforming the law in anything other than an opportunistic and piecemeal way”. The Different Processes by Which Law Can Be Changed House of Commons and the Houses of Lords constitute parliament in England and Wales. The members of the House of Commons are elected individuals by public from different constituencies. On the other hand, the members of the House of Lords are nominated by Prime Minister of the country. Both the houses of parliament are required to perform various functions among which engaging in discussions and debates in order to pass new laws is considered as one of the major functions. Laws that are enacted by parliament are discerned as Acts of Parliament. These laws are also commonly known as legislation or statute (Arthur et al., 2011, p. 92). The English law system is also widely known as common law. The legal principles of common law are generally the outcome of several years which are developed by judges and not by the parliament while addressing the cases. This method of law making is known as the system of precedent. Common law reflects the role of judiciary in making laws (Howells and Slapper, 2011, p. 141). Nonetheless, common law is not considered to be as important as the legislation or the law formulated and enforced by Parliament. Beside the law made by parliament and common law, there are two other major bodies that act as a prominent source of law making in England and Wales. The European Convention on Human Rights (ECHR) and European Union (EU) law are the lately developed sources of law in comparison with Parliament and common law. Since the sources of law in England and Wales are different, hence there are different processes by which law can be changed in England and Wales. There are three major bodies namely the Law Commission, the Law Reform Committee and the Criminal Law Revision Committee who are assigned with the power to review the laws that are deemed to be reformed. However, the role of the Law Commission is decisive than other two bodies (Howells and Slapper, 2011, p. 163). The Law Commission acquires the power to suggest reforms in the laws involving abolishing out-dated laws which are considered to be less valid in the present scenario, lessening in the quantity of separate statutes in a specified area and deletion of disproportions within the law. For example, the Corporate Manslaughter and Corporate Homicide Act 2007 was provided Royal Assent in July 2007 and became law on 6 April 2008 that was grounded on the report presented by the Law Commission in 1996 (Zambellas and Voiculescu, 2011, p. 28). Although the Parliament is recognised as the apex legal authority within England and Wales and has the power to formulate and withdraw any law but the mutual approval from both the houses of Parliament is utmost mandatory. No single house of Parliament has the authority to repeal or change any law on its sole discretion. Parliament also possesses the authority to reform common law or the law created by judges but courts on the other hand are not liable to overrule the legislation. For example, during the year 1992, House of Lords repealed the common law under which husband cannot be sued for raping his wife. Raping in this context refer to sexual intercourse without the accord of wife (Howells and Slapper, 2011, p. 161: Weait, 2011, p. 93). Moreover, the Court of Justice of the European Union and the European Court of Human Rights are the two independent legal bodies that have the right to change or repeal common law. Being a member state of the EU, it is mandatory for all other courts including the Supreme Court in England and Wales to comply with the subsequent changes in common law made by the aforesaid two courts. The system of precedent flows in the hierarchical structure of the courts wherein lower courts are bound by the decisions of the upper courts. The Court of Justice of the European Union and the European Court of Human Rights as well as all courts in the UK excluding the County Court and magistrates’ courts have the right to create precedent (Howells and Slapper, 2011, p. 163). Every member state of the EU is required to comply with the EU law. Same rule applies to the UK as it is one of the member states of the EU. At times, conflict tends to emerged between the domestic law of the UK and the EU law. Notably, such conflicts also seek for change in the domestic law of the UK. In such circumstances, section 2(4) European Communities Act 1972 requires that the English law ought to be interpreted and applied, subjected to the code prescribed under the EU law irrespective of any sources of law. For example, the Equal Opportunities Commission during the year 1994 argued that UK domestic legislation which accredited part-time employees with limited employment rights as compared to fulltime employees was ascertained to infringed Article 141 of Treaty of Rome and directives articulated under this Article. The UK government was obliged to change the law so that it meets the terms stipulated in EU law and part-time employees entitled to more employment rights (Goodey et al., 2011, p. 229). Arguments Arguments in Favour of the Quotation The laws in England and Wales have been the result of gradual process. In English legal system, two major sources of law including parliamentary and judicial are considered to be vital. Nonetheless, judges’ are sovereign from Parliament but both the sources of law are deemed to have a significant impact on the English legal system. At the same time, as identified earlier, the laws formulated by parliament are recognised as statute or legislation while laws that are from the hearing of cases or those created by judges are referred as common law. Statutory laws are often subjected to moral and religious debates, for example, statutory law of reproductive technologies (Howells, 2011, p. 85). However, differences in these two forms of laws are widely recognised (Arthur, 2011, p. 57). Correspondingly, common laws are often subjected to less importance in comparison with Statute law. This implies the reduced prominence of judiciary in terms of law making in English legal system. It can be further argued that the government uses consultative Green Papers as a mechanism for evaluating the opinions of parties interested in the reform in the particular area of law. There are various advisory and standing committees who provide formal advices to the government. Royal Commission is also often constituted when there is a need for reforming a specific area of law. Although Royal Commission is appointed by the government but it is usually associated with dealing with non-party political issues. The Royal Commission after their investigation is required to submit their report to Parliament. Eventually, Parliament after scrutinising the report for recommendations for changes in the legislation is responsible for taking actions whether to reform the specific area of law or not to reform. For example, in the year 1993, the Royal Commission in relation to Criminal Justice submitted its report to Parliament. In this report, it was recommended to set up an autonomous body for monitoring miscarriages of justice that would have a right to conduct investigation for the same and in certain circumstances refer cases to the Court of Appeal where it was deemed to be appropriate to consider by the courts. As a consequence of this report, the Criminal Appeal Act 1995 was passed further leading to the establishment of the Criminal Cases Review Commission in 1997 (Arthur et al., 2011, p. 99; (Arthur, 2011, p. 66). In addition, Law Reform Committee is one of the prominent advisory committees. The function of this committee is to advice on the desirability of changes to the certain areas of law including civil law which are presented to Lord Chancellor. On the other hand, the Criminal Law Revision Committee is also entitled to perform similar function in relation to criminal law. The Law Commission is more frequently associated with law reform in England and Wales. Nonetheless, it can be argued that all these commissions and committees usually perform their activities on an ad-hoc basis. Their responsibility is limited and at the same time the power of these commissions and committees is not widen either in the realm of their enquiry or to induce reform proposals. Consequently, it can be argued that all these Committees and Commissions are primarily advisory bodies and their scopes are limited to certain specific areas that are associated with the law reform in England and Wales. More specifically, it can be argued that eventually all these Committees and Commissions are required to submit their investigation report to the Lord of Chancellor and Parliament for their consideration and actions (Arthur, 2011, p. 66). Notably, it can be rigidly stated that it is Parliament that occupies a major position and possess ultimate authority and power to reform laws in England and Wales. Besides, individual Members of Parliament possess the power to present legislation which is deemed to be appropriate by the member. The presentation of this type of legislation to Parliament is referred as a Private Members’ Bill. In a similar manner, members of both the Houses of Parliament are also eligible to present Private Members’ Bill. For example, Gyles Brandreth, MP from Chester introduced Private Members’ Bill during the year 1994, in which it was recommended that people should be allowed to marry in any registrar building and it should be limited to religious or Register Office only. Subsequently, this Private Members’ Bill was converted into law in the form of Marriage Act 1994 (Arthur et al., 2011, p. 100). Another successful example can be related with the Civil Partnerships Bill that was proposed Lord Lester of Herne Hill in 2002 which became a law in 2005 (Montgomery, 2011, p. 55). Based on the above discussed facts pertaining to law reforms in England and Wales, it is apparent that the role of judiciary in the context of reforming law is constitutionally and essentially excluded from reforming the law in anything other than an opportunistic and piecemeal way while Parliament predominately is concerned with particularities of law reform. Arguments against the Quotation As stated earlier, the role of courts and judiciary in making law in England and Wales is also prominent. Nonetheless, Common Law or the laws created by judges are identified to occupy less prominence in comparison with the laws formulated by Parliament. Nonetheless, it cannot be argued that the judiciary is constitutionally and practically disbarred from reforming the law in anything other than an opportunistic and piecemeal way. In this regard, it can be claimed that although judges are not predominantly concerned with the law reforms in England and Wales but they can be often seen to frequently draw attention to incongruities in the law and seek for change. It is crucial to note that the law made by Parliament also known as statute law is subjected to judicial interpretation. Historically, there have been a number of instances where disputes over the words articulated in statute were witnessed. For example, the phrase articulated in the Dangerous Dogs Act 1991, ‘any dog of the type known as the pit bull terrier’ failed to specify whether the word ‘type’ meant the same as ‘breed’ (Howells and Slapper, 2011, p. 141). Correspondingly, in order to assist and make clear the meaning of words articulated in statute, several rules were defined by judiciary. For example, the literal rule, the golden rule, the mischief rule and the purposive approach. Thus, it can be firmly claimed that the interpretation of a statute relies on the judge hearing the case. Subsequently, on the completion of interpretation, it may serve as the precedent for other courts down the hierarchy for later cases. In the similar context, the role of the European Court of Human Rights can also be seen to be pivotal in law reform. Accordingly, the judgments rendered by the court are ought to bind the state involved in the case. More specifically, it is mandatory for the UK to change the law according to the court’s ruling which may further lead to changes in the UK domestic law irrespective of the law created by Parliament or judges. Similarly, the UK is also obliged to accommodate the final judgment delivered by the European Court of Justice. For example, in the year 1992 the European Court of Justice delivered a judgment where it was identified that the UK’s domestic law had failed to comply with the Equal Treatment Directive of EU law. Correspondingly, Westminster Parliament was required to amend the Sex Discrimination Act 1975 and, in 1999, the Sex Discrimination (GenderReassignment) Regulations 1999 (SI 1999/1102) added a new section 2A to the Sex Discrimination Act 1975. Thus, based on the above discussion, it can be comprehended that the role of judiciary in law making occupies a major place. However, as compared to the Parliament, it possesses less authority to enforce decisive reformation in law. Another successful example can be related with the UK Parliament which has now responded to the judgments of the European Court of Human Rights by enacting the Gender Recognition Act 2004 that was brought into force on 4 April 2005 (Slapper and Zambellas, 2011, p. 17). Conclusion It can be identified from the foregoing discussion that the in England and Wales both Parliament and Judiciary system are major sources of law. However, after evaluating the evidences, it can be firmly argued that Parliament has broader scope than Judiciary system in terms of law making and law reform. Correspondingly, it is concluded that there lays significant convergence between the above findings and the quotation. Thus, it cannot be denied that “At one level law reform is either a product of parliamentary or judicial activity … Parliament tends, however, to be concerned with particularities of law reform and the judiciary are constitutionally and practically disbarred from reforming the law in anything other than an opportunistic and piecemeal way”. References Arthur, R., Goodey, J. and Howells, C. (2011) ‘Unit 3: Making law: (1) Parliament’, W100 Block 1: Rules and rule making, Milton Keynes, The Open University. Arthur, R. (2011) ‘Unit 7: Unlawful conduct’, W100 Block 2: Legal Personality, Milton Keynes, The Open University. Goodey, J., Howells, C. and Zambellas, A. (2011) ‘Unit 5: Making law: (3) Europe’, W100 Block 1: Rules and rule making, Milton Keynes, The Open University. Howells, C. and Slapper, G. (2011) ‘Unit 4: Making law: (2) common law’, W100 Block 1: Rules and rule making, Milton Keynes, The Open University. Howells, C. (2011). ‘Unit 25: Law, justice and social change: (3) law and reproductive technology’, W100 Block 7: Justice, Milton Keynes, The Open University. Howells, C., Arthur, R., Slapper, G, S. and Cornock, M. (2011) ‘Unit 26: Rules, rights and justice’, W100 Block 7: Justice, Milton Keynes, The Open University. Montgomery, H. (2011) ‘Unit 24: Law, justice and social change: (2) marriage and family’, W100 Block 7: Justice, Milton Keynes, The Open University. Slapper, G. and Zambellas, A. (2011) ‘Unit 6: The natural legal person’, W100 Block 2: Legal personality, Milton Keynes, The Open University. Weait, M. (2011) ‘Unit 1: Thinking about rules’, W100 Block: 1Rules and rule making, Milton Keynes, The Open University. Weait, M. and Goodey, J. (2011) ‘Unit 2: Making, interpreting and applying rules’, W100 Block 1: Rules and rule making, Milton Keynes, The Open University. Weait, M. (2011) ‘Unit 8: States of mind’, W100 Block 2: Legal Personality, Milton Keynes, The Open University. Zambellas, A. and Voiculescu, A. (2011) ‘Unit 23: Law, justice and social change: (1) corporate manslaughter’, W100 Block 7: Justice, Milton Keynes, The Open University. Read More