The United Kingdom of Great Britain and Northern Ireland (UK) consists of four countries forming three distinct jurisdictions. Each jurisdiction has its own court system and legal profession: England & Wales, Scotland, and Northern Ireland. The United Kingdom was established in 1801 with the union of Great Britain and Ireland, but its present form was only achieved in 1922 with the partition of Ireland and the establishment of the independent Irish Free State (the Republic of Ireland).
The UK joined the European Union (formerly, EEC) in 1973, since when it has been a requirement to incorporate European legislation into UK law, and to recognise the jurisdiction of the European Court of Justice in matters of EU law.
The system of parliamentary government in the United Kingdom is not based on a written constitution instead it was created based upon several centuries of gradual evolution. In the wider sense, of course, the UK does have a constitution, which takes the form of a body of laws assented to by the community, regulating the government. However, these rules are not bought together in one formal document. In the absence of an ultimate authority (a written constitution), Parliament assumes the leading role. Pursuant to UK law, Parliament is free to enact legislation on any issue, which means that Parliament is able to change every basic constitutional rule by way of passing ordinary legislation with an ordinary majority. For example, the European Communities Act of 1972, by which the UK became a member of the European Community, is an ordinary act of Parliament, passed just as all other governing acts. Therefore, the constitution, as such, is very flexible, and according to the established doctrine of implied repeal, where a later act takes precedent over an earlier one, Parliament can always overturn its own past decisions.
Accordingly, it can be stated that the sources of UK constitutional law are legislation, the common law (binding interpretation of acts by the judiciary) EU law, convention (customary practice), parliamentary law and custom (internal rules of the two houses of Parliament) and scholarly authorities.
The structure of the UK legal system, as founded upon the above-mentioned sources, is that of a unitary state and a constitutional monarchy. TheQueen is the Head of State, although her role is basically ceremonial and in practice the supreme authority of the Crown is carried by the government of the day. The Queen only takes decisions on the advice of the Prime Minister, who is the most powerful figure in the executive. The Prime Minister is recruited from the legislature (the Parliament), and is normally the leader of the majority party in the House of Commons (description below). In turn, the Prime Minister appoints the Cabinet, a body of ministers, responsible for formulating and applying government policy. All members of the cabinet support its collective decisions, and this is known as the doctrine of collective responsibility. The cabinet is answerable to Parliament (principally, the House of Commons).
Since the 14thcentury the United Kingdom Parliament has been based on a two-chamber system. The House of Lords and the House of Commons (the Lower House) sit separately and are constituted on entirely different principles. The House of Commons consists of 659 Members of Parliament (MPs), elected by simple majority vote in a general election every five years, although the Government has the right to call an election at any time before then. The House of Lords until recently consisted of life peers, awarded peerages for public service, and a large number of hereditary peers whose membership of the House of Lords depended on their aristocratic birth. The Labour Government began the process of reform of the House of Lords by abolishing the voting rights of all the hereditary peers apart from ninety-two who remain until the House is fully reformed. The relationship between the two Houses is governed largely by convention but is in part defined by the Parliament Acts. There are devolved Parliaments/Assemblies in Scotland, Wales and Northern Ireland created by legislation passed by the UK Parliament.
The Parliament is the law-making organ of the State and thus, subject to certain limited exceptions, it cannot legislate without the concurrence of all of its parts.
The UK Parliament makes all laws (based on the doctrine of parliamentary supremacy), provides by voting for taxation the means for the government to carry out its work, protects the public and safeguards the rights of individuals, scrutinises government policy and administration, including proposals for expenditure, reviews European proposals before they become law, hears appeals in the House of Lords (the highest Court of Appeal in the UK), and debates major issues of the day.
The process of legislation involves both houses of Parliament (House of Lords and House of Commons) and the Monarch. A draft law takes the form of a parliamentary bill. In order to become binding law, it must go through the requisite stages in both Houses of Parliament and receive approval of the Queen (which is a formality). The bill then becomes and Act and enters into force on the day that it receives Royal Assent (unless otherwise provided for by the Act).
Legislation, that is Acts of Parliament, has become the commonest source of new laws or of law reform since around the Seventeenth century. Acts of Parliament, which apply to everyone throughout one or more jurisdictions, are called public general Acts. But Acts may also be limited to geographical locations within a jurisdiction or to they may refer to specific persons or companies, and are called private Acts. The most important legislation is Acts of Parliament (called primary legislation). This becomes valid through being approved (following it being subjected to debate) in the House of Commons and (with some exceptions under the processes established by the Parliament Acts 1911-1949) the House of Lords; it then receives Royal Assent from the Queen.
Presently, Government Ministers, under the authority of primary legislation make a great volume of UK legislation. This is called delegated or secondary legislation and it does not have to be approved by Parliament. Delegated legislation is issued (often by a government minister) under a specific power in the "parent" or "enabling" Act. Such legislation is issued in the form of statutory instruments, which may be referred to as "regulations" or "orders".
Based on the doctrine of parliamentary sovereignty, statutes generally have the power to change the established common law (judge made law), but common law cannot overrule or change statues. A statute can only be over-ruled or amended by a subsequent statute (doctrine of implied repeal). However, that authority is not absolute - it has been limited by the relationship with the European Union. The exercise of absolute law-making power is also limited by pivotal principles such as the recognition of individual freedoms, democracy and governmental accountability. New laws are introduced to ensure that the UK complies with international and European Law. Recent examples include the Human Rights Act 1998 and the Freedom of Information Act 2000. Nevertheless, save for these possible limited exceptions, law undergoes constant reform in the courts and judges must interpret, clarify or reapply the law to meet new circumstances.
Another pivotal doctrine upon which the UK legal system is based is the doctrine of rule of law. It generally means the supremacy of law over people, and in particular over rulers; and thus, although it was stated above that Parliament is free to legislate on any matter whatsoever, it is this doctrine that serves to protect the rights of citizens from an arbitrary government. It has been argued that a fundamental rule within this doctrine is the separation of powers, where there is a clear division between the functions of the government, the executive, the legislature and the judiciary. There is no formal separation of powers in the UK of the functions of the executive, legislature and judiciary. Notwithstanding this, it has been argued that it is not the overlapping of these three functions that pose threat to the rights of citizens, but rather the concentration of a large amount of power in a limited number of individuals.
The counterweight to this unclear delineation between the three functions, is the strong and independent position of the judiciary. Judges are appointed by the Lord Chancellor (with the most senior appointment being on the advice of the Prime Minister) but only following consultation with senior judges. Judges are not permitted to be members of the House of Commons and are expected to refrain from any political activity. Further, they are compensated out of a special fund and thus, are not subjected to any financial pressure from politicians. Established also, are specific conventions, which protect them from being individually criticised by Members of Parliament. Their dismissal may only take place upon the resolution of both Houses of Parliament.
The role of the judge within the framework of the UK legal system is to interpret and apply the statute - they do not have the authority to disregard it or declare it as "unconstitutional". Judges make the law by setting precedent as to the interpretation of certain laws and statute. Other courts follow this precedent, unless overturned by a court of higher authority or changed by way of a subsequent amendment of statue or new legislation passed by Parliament.
The law courts of the UK are divided into two main jurisdictions, that is, civil and criminal. The structures and procedures of UK courts are designed to balance between efficiency and justice, reflected in the fact that although most cases are heard locally by lay magistrates, the accused has the right to opt for trial by his or her peers - by jury. An independent barrister for the Crown Prosecution Service instigates prosecutions so that the judge has no role in directly eliciting evidence of guilt or innocence. The onus rests with the jury to decide whether guilt has been proven beyond reasonable doubt on the basis of the evidence produced by the Crown. In addition, within the civil jurisdiction, courts are complimented by Tribunals, which have been established (by way of statute) for specific areas of law, such as, social security and employment, thus, reducing the caseload of ordinary courts, by providing a venue of first recourse.
The Magistrates Court is the lowest tier within the criminal court system, dealing with ninety-eight per cent of all criminal cases. The Crown court tries more serious criminal cases and hears appeals from the Magistrates Court, with the participation of a jury of twelve people selected at random from the electoral register. The Court of Appeal (Criminal Division) deals with appeals from the Crown Court and is presided over by the Lord Chief Justice, who is the most senior judge in England and Wales.
The lowest court in the civil law jurisdiction is the County Court, which deals with cases of a lesser value, importance and complexity. Claims of under £ 1,000 are dealt with by a small claims procedure, which provides for informal arbitration. In the County Court formal cases are heard by District Judges, who decide upon uncontested and smaller value claims, whereas, Circuit Judges deal with higher value claims. The High Court sits at the Royal Courts of Justice and at County Courts around the country. It principally deals with more substantial and complex civil cases. The Chancery Division (of the High Court) deals with land, property and inheritance matters, patent issues and industrial disputes. The Queen’s Bench Division deals with common law business such as tort and contractual disputes. There is also a Family Division. All appeals are directed to the Court of Appeal (Civil Division), housed at the Royal Court of Justice and constituted of two or three Lord Justices of Appeal, and may include the Master of Rolls. The last court of appeal is the House of Lords.
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