The Legal System in the United Kingdom - Essay Example

The legal system in the United Kingdom is based on a common law tradition, which has early Roman and modern continental influences. In the UK, acts of parliament are not reviewed by the judiciary. The compulsory decisions of the International Court of Justice are accepted in the UK, though with reservations. At present the British Courts and legislation are being increasingly subjected to review by the European Union Courts. The UK parliamentary system consists of a bicameral parliament comprising of the House of Lords and the House of Commons and it is a constitutional monarchy. The Prime Minister of the UK is the leader of the Majority Party in the House of Commons. In the UK the legal system is founded on the concept of rule of law and endeavours to provide justice, equality and procedural fairness to all. (MSI Legal and Accounting Network Worldwide, n.d.). In the British Constitution, Supremacy of the Rule of Law is the main guiding principle. In order to achieve and ensure this Supremacy, it is essential to have independent judiciary who are not a part of the legislature. To surmount the trap laid by tyranny and despotism, the UK constitution has evolved in such a manner that there is separation of powers and this in turn provides protection against oppression. The rule of law was introduced to exclude the arbitrary authority of the government and to provide legal safeguards for the protection of the individuals and their rights. This concept was developed by Professor A.V. Dicey, a well known authority on the English Law, and published in the year 1885 in his magnum opus Law of the Constitution. The rule of law comprises of three principles, namely supremacy of the law, equality before the law and the predominance of the legal spirit. Dicey emphasized the role of the courts of law as guarantors of liberty and suggested that these rights would be secured more effectively if they were enforceable in the courts of law rather than being merely declared in a document. In the case of Entick V. Carrington (1765), government officials raided the plaintiff's printing press and damaged his property. This was done without any reasonable grounds whatsoever, except for the reason that this had been ordered by the secretary of state. The House of Lords in their decision condemned the government's actions and awarded 300 to the petitioner as compensation. This illustrates the absolute supremacy of the law. In the case Padfield V. The Ministry of Agriculture (1968), milk producers in South - East England petitioned the Minister to appoint a committee of investigators to look into their complaints regarding the levels of subsidy to be granted to milk producers according to the England Agriculture Marketing Act, 1958. The Minister rejected this request. The House of Lords found fault with this rejection and ordered the Minister to appoint a committee of investigators. This case demonstrates the concept of equality before the law alongwith the concept of absolute supremacy of the law as described by Dicey in his Rule of Law. The enforcement of the law is, by a process of devolution, placed within the ambit of the people and this process is known as Trial by Jury. In this exemplary procedure enforcement and legislation are separated. Such separation constitutes the strongest safeguard as it subjects the enforcement of the statute of the law to a test of acceptance by the common law in the hands of the people. The Sovereign power of the nation is vested with the constitutionally limited monarch in the United Kingdom. The House of Lords and the House of Commons determine the context and contents of the bill that are enacted by the granting of royal assent. Royal assent is the prerogatory power of the monarch who is sworn contractually to abide by the coronation oath, the bill of rights, etc,. The monarch is bound by oath to govern the people according to the laws and customs of the nation (Bingley, 2005). The essential features of democratic constitutions which exist in one form or another, in virtually all national constitutions are discussed in the sequel. The constitution of the United Kingdom is a constitution which is not codified and which consists of both written and unwritten sources. It is not based on any single written fundamental document. The term written constitution is used interchangeably with codified constitution, and similarly unwritten constitution is used interchangeably with an uncodified constitution. The contention that the United Kingdom does not have a written constitution is not true. The fact is that there is no single document which describes the legal framework and functions of the different branches of the government as also the rules which are to determine as to how it should operate. The ultimate law of a country usually consists of such documents, which are empowered to declare any legislation illegal if it contradicts or comes into conflict with the rights inherent in such a formal constitution. This is in sharp contrast to what is obtaining in the UK which differs from most other countries, like the United States, Ireland, Germany, France and South Africa etc, in this aspect. The United Kingdom's Constitution is a complete system of government comprising of a compilation of rules which forms and regulates the government. This system is founded on an amalgamation of various Acts of Parliament, judicial decisions, political practice and comprehensive measures that have been instituted by various branches of government for carrying out their own tasks. Some cogent examples of this are the law and custom of Parliament and the rules issued by the Prime Minister to regulate the conduct of ministers.Stated succinctly the UK Parliament can modify the constitution on the basis of simple majorities in the two Houses (Dingle and Miller, 2004). In the parliamentary systems of the United Kingdom and Australia, ministers though accountable to parliament, are appointed and dismissed by the Prime Minister and this power, in the West Minster system, devolves upon the Prime Minister from the monarch, who constitutes a component of parliament. In each and every country the constitution is protected by a legal body which is termed as the Supreme Court, the Constitutional Court or the High Court. It is the function of this court to determine constitutionality of various legislations, where the term constitutionality connotes the compatibility of that particular piece of legislation with the provisions and principles of the constitution. Protection of the constitutionally established rights and freedom is a responsibility of these courts, which has paramount importance. In a constitution, bereft of the concept of supreme law, such as the UK constitution, the concept of constitutionality has scant significance, and constitutional courts do not exist. The importance of the constitutional court is that it is the court of last resort or the highest judicial body. In countries with uncodified constitutions, like the United Kingdom, enactment of any law is the prerogative of the legislature. In England, King Henry I's proclamation of charter of liberties in 1100 rendered him accountable in respect of his treatment of the clergy and the nobility. The logical conclusion of this idea was the signing of the Magna Carta by King John, under duress of the English Barons in 1215. Habeas Corpus constitutes the single most important article of the Magna Carta. Article 39, of the Magna Carta states that "no freeman shall be arrested, or imprisoned, or deprived of his property or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land." This article states in unequivocal terms that that the King is prohibited from imprisoning, outlawing, exiling or killing anyone without taking recourse to the due process of the law (Art Quilt, n.d). As discussed in the foregoing, the concept of separation of powers was mainly developed in Great Britain. From this one might assume that in England the theory of judicial independence should not only find its strongest votaries but also that this concept should have been subjected to thorough analysis and expression, the facts however belie this assumption. At present in modern day Britain, the independent judiciary is nothing more than a term of constitutional rhetoric. The English, with their notoriety of being sceptical of theory, adopted the common law solution as an alternative for constitutional analysis. All said and done, there is no general theory of judicial independence in Great Britain (Stevens, 1999). Lord Irvine contended that "It is time to return to first principles. The British constitution, largely unwritten, is firmly based on the separation of powers." (Lord Irvine, 1996). Courts perform an essential function in the operational reality of all legal systems; in addition they are significant in common law systems. The hierarchy of the different courts in the United Kingdom, starting from the lowest is as follows: Magistrates' Courts, County Courts, the Crown Court, the High Court, the Court of Appeal, the House of Lords, the Judicial Committee of the Privy Council and the European Court of Justice (University of London External Programme, n.d.). Judicial review is the power of a court to adjudicate the constitutionality of the laws of the government or the acts of a government official. The doctrine of ultra - vires has for long been the basis for issuing writs in England, in order to rectify erroneous administrative actions. In this country the judiciary had interpreted the finality clauses narrowly and thus an act outside the jurisdiction was deemed to be a nullity. An important judgement in this connection is that of the House of Lords in Anisminic Ltd V. Foreign Compensation Commission (1969). The facts of this case are that the Foreign Compensation Commission contended that its decisions cannot be questioned in any court of law; to this their Lordships held that section 4 of the Foreign Compensation Commission Act 1950 does not grant protection for ultra - vires actions and errors committed. They further held that the error was of jurisdiction as the Commission's decision was based on matter, over which it had no jurisdiction and therefore it constituted a nullity. Writs are public law remedies and are generally issued to public authorities and public officials. In a welfare state, the role of the administration is multifunctional as a result of which its area of operation becomes vast. In order to discharge its functions the state takes recourse to a number of instruments. Sometimes the implementation of these instruments causes excesses. To redress these excesses there are various writs. The Writ of Certiorari and Writ of Mandamus provide relief against administrative excesses. The Writ of Habeas Corpus provides protection against illegal detention. The Writ of Prohibition is issued by a higher court to a lower court in order to prohibit it from committing judiciary excesses. The Writ of Quo Warranto is used for terminating the post of a public official when he is not empowered to hold that post. Though the powers of the government in the United Kingdom are vested with three different branches, it is only a theoretical separation and in practice the theory of the integration of powers has been implemented. One branch of the government is sharing and also controlling the functions of the other branches. For example judges exercise executive functions under the trust act and also legislative functions in making the rules of courts regulating their own procedures. The House of Lords exercises the legislative as well as the judicial functions. The House of Commons is not exclusively concerned with the legislative activities as it exercises judicial powers in cases of breach of its own privileges. The above discussion illustrates and proves Lord Irvine's contention that there is a overlapping of the functions of these three branches of government. Lord Irvine suggested that these branches should not take on the functions of the other branches. The rule of law, the supremacy of the parliament, separation of powers, conventions of the constitution and judicial independence comprise the bulwarks of the constitution. References ArtQuilt. (n.d.). Constitution Encyclopaedia Article, Retrieved 15th March 2006, from Website: http://www.artquilt.com/encyclopedia/Constitution Bingley, John. (10th March 2005). The EU Constitution is Incompatible with Ours. British Independence & Democracy Forum, Written UK Constitution Retrieved 15th March 2006, from Web site: http://www.ukipforum.co.uk/about2726-0.html Dingle, Lesley and Miller, Bradley. 21st June 2004. UK Constitutional Reform, Law Library Resource Xchange, LLC. Retrieved on 15th March 2006, Website: http://www.llrx.com/features/ukconstitution.htm Entick V. Carrington, 19 Howell's State Trials 1029, (1765) MSI Legal and Accounting Network Worldwide. (n.d.). Doing Business In the United Kingdom. Retrieved 14th March 2006, from Web site: http://www.msi-network.com/content/doing_business_in_uk_page1a.asp New Statesman, (1996). Interview: Lord Irvine of Lairg, 6th December 1996, page no: 18 Padfield and Others V. Minister of Agriculture, Fisheries and Food and Others [House of Lords] 2 W.L.R. 924, 1968 Stevens, Robert. (1999). The Independence of the Judiciary: The Case of England. Southern California Law Review. Vol. 72:597. The role of courts and other decision making bodies, University of London External Programme, n.d. Retrieved on 15th March 2006, Website: http://www.londonexternal.ac.uk /.../programme_resources/laws /subject_guides /eng_legal_sys/com_law_ch3.pdf Anisminic Ltd V. Foreign Compensation Commission, House of Lords, 1969 Read More