The English Legal System and the Supreme Court - Essay Example

The English Legal System Table of Contents Introduction 3 Discussion 3 Conclusion 10 References 11 Introduction Legal reform or law reform can be considered as the procedure of examining and monitoring laws, and implementing and advocating changes in a specific legal system in order to enhance justice. Law commissions and law reform bodies are intimately related with each other. These organisations are developed to facilitate legal reform or law reform. These law reform or legal reform bodies generally carry out intense research and recommend significant ways to modernize and simplify the law and legislatures. Generally there are two sources of the law reform, such as judiciary and parliament. First of all, it is highly important to understand about these sources of law reform before going into the detail analysis. Parliamentary cannot be only referred United Kingdom parliament, the word parliamentary also refers to the European Parliament and formed legislatures. On the other hand, the word judiciary can be referred to judges, tribunal members and magistrates including each and every judge of Human Rights’ European Court and Justice’s European Court. Each and every issue needs to be considered in order to analyze and evaluate the provided quotation. These will be dealt with analyzing and explaining each and every source of UK law that is involving in reformation of new law. This essay will describe the given quote and existing legal system of United Kingdom through the help of intense analysis. This essay will provide arguments against the provide statement or quotation. In addition to this, the essay will explain different processes by which the law can be changed. Discussion The parliament of United Kingdom consists of House of Lords and House of Commons. Proposals for new legislations or laws can be presented by a single MP or be the Government to the parliament in the case of a new bill of private member. Parliamentary draughtsmen generally write the proposal of first bill. These draughtsmen generally shed the executive’s will into the rigorous legal reform. Then this bill goes through the same process in the both houses. This process can start in either house. This process generally consists of five stages, such as first reading, second reading, committee stage, report stage and third reading. These stages have different characteristics and activities. In the first reading, the title of the bill is stated. In the second reading, the aims and objectives of the bill are outlines. In the committee stage, a board of between 16 and 50 MPs have been developed in order to analyze the proposed and written bill1. In the report stage, the written and proposed bill is reappraised by the parliament. Third reading is the last stage of this process in which the final vote on the proposed bill has been taken. This bill can be considered as a royal assent once it subjected to this particular procedure of these both houses. Eventually it becomes legislation at the very next passing. The monarch agrees the bill by signing either commission or letter patents that orders specific lords, such as Royal Commissioners in order to announce in the parliament house that the bill has acknowledged and received Royal Assent. In several cases, where this developed bill starts in the general and adjusted by the Lords, will be reverted back to those commons for the specific amendments. In specific cases, the commons can start this procedure again for a further time. The case of forming and passing of financial bills can be considered as an interesting issue. In this specific case, the board of the committee stage generally contains each and every house member. There always remains a possibility of further debate during the third reading, if more than five members if parliament ask for the amendment. Some acts are known as enabling acts. These acts give rights to other agencies in order to develop and form laws in particular scenarios to a specific extent. These specific laws can be considered as delegated legislation. Most importantly, these laws are legally enforceable and valid comparing similar to the developed acts or laws formed by parliaments. Types of enabling act generally include statutory instruments, byelaws, court rules, professional regulations and orders in council. Statutory instruments are generally drafted each and every year. These statutory instruments are drafted by the Government and relevant ministers come into the action in case of any rectification in these statutory instruments. On the other hand, byelaws are developed by public corporations, specific companies and local authorities by the applications of State Secretary. Orders in council are generally made by the government of United Kingdom. Most importantly, these orders are developed in the times of state level or national level emergency. Court rules can be considered as important legislature formed and subjected by the court rule committee, which have to be obeyed by all the citizens of the country. Lastly, the professional regulations are developed by different types of boards or organizations, such as solicitors’ regulation authority and medical council. It is true that some statutory instruments should be approved by the honourable parliament house before they become a law. This particular process is known as affirmative resolution. On the other hand, some statutory resolutions become law after the forty days of being proposed to parliament house if these statutory instruments do not get rejected at initial formation phase. This specific process can be considered as negative resolution. In the year 2005, 3, 699 statutory instruments were formed comparing to the 24 general public parliament’s act. Byelaws can be applied only within the jurisdiction of the authority. It is clear from above mentioned facts that, the byelaws are created by the local public authorities. These byelaws should be advertised and promoted publicly for a specific period of time before an application is filed to the State secretary in order to change them as a new law. In an addition, the byelaws that are created by the other bodies or committees can be applied within a particular sector for which the committee or the body has t6he responsibility. Therefore, it is clear that the ratio of the development or formation of these delegated laws is quite high comparing to the formed acts of parliament. The devolved legislatures, such as Northern Ireland and Welsh Assemblies, and the Scottish Parliament have the significant power to form law within the impounds of the enabling acts. Wales and England can be considered as a common law jurisdiction. It means that the court judgements create requisite model in a particular policy known as State Decisis. Courts generally operate within a particular court hierarchy. According to this particular court hierarchy, each and every court is bound by the made judgements. Supreme Court is the highest court in the United Kingdom. Supreme Court used to bind each and every court in the country. But, it is true that the Supreme Court is bound by the laws and rulings of the European Court of Justice on the specific matters, such as matters of human rights and matters of European Union Law. According to the general courts’ hierarchy, Supreme Court followed by the Court of Appeal, Divisional Court, High Court, Crown Court, and Magistrate’s and County’s Court. These mentioned courts are generally not bound by own previous judgements expect the Divisional Court and Court of Appeal. A court judgment generally includes obiter dictum and ratio decidendi. Obiter dictum details other legislative or legal principles that are decided in particular cases. But, this obiter dictum does not have a manner on a specific decision itself. On the other hand, ratio decidendi generally shows how the judgement was made and the legislative principles are involved in this judgement. The overruling of legal precedents generally depends upon the decision of the judiciary in case of any kind of flaw. Statutory interpretation can be considered as another important role of the judiciary. Over the past, the judiciary has developed four different approaches in this statutory interpretation. These approaches are literal rule, golden rule, mischief rule and purposive approach2. In literal rule, the judiciary considers the text of an act and utilizes strict dictionary explanation and definition of each and every word. On the other hand, the golden rule subjects that if literal rule produces an absurd result, a different and appropriate meaning of the particular text should be considered in order to avoid the absurdity of the literal rule. Mischief rule generally focuses on the legal situations before the formation of the act. In addition to this, the mischief rule provides a common sense judgement based on the behaviour of the act. Purposive approach can be considered as the final approach in which the judiciary evaluates and analyzes what the parliament house was trying to meet by forming and passing a specific legislation or law. Several assumptions in the language interpretation have been established over the time period. These assumptions are ejusdem generies, noscitur a sociis and expresio unius exclusion est alterius. Ejusdem generis means when the last thing on a provided list is a common term, such as different place. The general terms usually covers the items of the related types similar to the others in the list. On the other hand, noscitur a sociis means words present in a statute should not be abolished from the context. Lastly, expresio unius exclusion est alterius means where no general terms are used, the list can be referred exclusively to the items. It is the right of the judiciary to call upon extrinsic or intrinsic aids, such as Hansard in case of interpreting a statute. These intrinsic aids are significantly contained within the specific act itself. Treaties can be considered as the sources of European Union Primary Legislation. These sources are agreed between the sovereign nations. Most importantly, these are ratified by the law-forming bodies in each and every nation. Over the past, these treaties have formed several important legal institutions, such as EU’s court of justice, European Commission, EU’s Council and European Parliament. These institutions have the right as well as power to develop European Union Secondary Legislation that becomes enforceable in the European Union member states. It is true that the European Commission is in the action of developing and initiating the proposals for the legislations, which are subject to acknowledgement and approval European Parliaments and Council of Ministers. Regulations, decisions, opinions, directives and recommendations are the different forms of the European Union Law. The decisions are made and subjected by European Court of Justice. The European Conference on human rights is being considered as the beginning point of each and every decision by the Honourable Court of human rights. The European Conference on human rights was approved the parliament of the United Kingdom in the year 1951. This ECHR consists of several articles. Some of these articles have been inserted afterwards through protocols and others were based on the original and real document. However, decisions of ECHR are taken by the approval of all the states. The Human rights legislation developed in the year 1998 needs each and every court of the United Kingdom to understand each and every developed domestic law in a specific manner that can maximize its effectiveness with the ECHR. It is true that, there is no law that does not originate its authority either from UK judiciary or the parliament, In the case of parliament acts and court judgements, this authority has been provided directly. On the other hand, the local authority is originated from the parliament act in case of delegated legislations. In case of formation of laws by devolved legislatures, the local authority originates from the acts that developed them. On the other hand, the local authority originates from the European Union treaties in the case of the formation of European Union Law. It has been discussed earlier that the court of human rights was developed by the European Conference on human rights that develops its power in the United Kingdom from having been approved by the parliament of the United Kingdom. It is true that the parliament of United Kingdom is certainly inattentive with the law’s particularities as it forms law transparently written by the stature. Each and every written law deal includes particularities as the meaning of this is being expressed in terms of the semantic logic. Judiciary are considered to create law when there is a problem or issue in the existing law. The issue can be how a specific case’s circumstance can be interpreted or how a developed statute can be understood. On the other way, the judiciary may develop law by providing transparent clarification considering the needs of the law. They are reactive, while the parliament is proactive3. However, the distinguishing and overruling practices generally allow the judiciary to become little more creative. A judge can proactively focuses on previous precedents that are failed to follow, if he or she does not favour a precedent and does not like to follow it. Considering the huge size of available case law’s body, it is highly important that the judges will find some if they are intended enough. R v R 1982 can be considered as an effective example of this. In this process, the highest possible level of court hierarchy made a decision that rape should be recognized in the marriage. On the other hand, several courts also tried to avoid this legislation or law as some courts believe that rapes cannot be considered within the marriage as husbands or wives willingly give their sole and body to each other. Therefore, it can be stated that there are some issues behind the reformation of law. Conclusion It is clear from above discussion that Supreme Court is not all bound by any kind of precedent apart from human rights and EU law matters. The Supreme Court has the power and authority to develop new laws. Most importantly, these laws do not conflict with the existing statute law. The results of the parliamentary debate may absolutely deal with the particularities of the developed law. But, the continuous debate should deal with the abstract logical concepts, board and some important philosophical ideas of ethics, rights, transparency, beliefs and values in order to produce the specific particularities. A superficial focus on the mansard can surely highlight each and every range of detail to the generality that are represented significantly. It can be conclusively stated that the provided statement or quotation is not true due to several reasons, while each and every developed laws in the United Kingdom that have been formed and subjected integrated that creative and significant input of the respective parliamentarians. In addition to this, the judiciary have the right and authority to distinguish or overrule the newly formed law either directly or indirectly. It is true that the Supreme Court of the United Kingdom are not bound be the precedents. This specific area generally allows the judiciary to become proactive to some extent. On the other hand, the parliament also does not restrict or confine itself to the peculiarities of the formed and subjected law and legislations. But, the parliament discussed general concepts and abstract in its debate. References Brassil, B. Excel HCL legal studies, New Jersey, Pearson, 2001. Miller, L. Community policing, London, Sage, 2007. Stout, B. Equality and diversity in policing, New York, Springer, 2010. Read More