- Introduction to the English legal system.
- Case law
- Statute law
- Chapter 1: The actors in the judicial process
- Chapter 2: Civil proceedings
- Chapter 3 : Criminal proceedings
- Chapter 4 : Judicial reasoning
- What is the role of the House of Lords in the British system?
- What is the role of the House of Commons in the British system?
- How a bill becomes an act in the english Parliament ?
- What is the doctrine of judicial precedent or stare decisis?
- What is Magna Carta and what is its significance in English law?
- what is Statute law / Acts of Parliament in english law?
- What is the role of equity in English legal system?
- What is the history of common law in England and Wales?
- How to explain the concept of equity in English law?
- The rule of precedent
- Jurisdiction and competence of the civil courts in England
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- Cours de droit anglais / droit britanique
- Cours d’anglais juridique
- Legal english course
- Le droit public anglais
- L’Habeas Corpus : définition et histoire
- Le trust (ou fiducie) en droit anglais
- La règle du précédent (Rule of Precedent)
Introduction to the English legal system
This is a standard course in most English universities.
What is too be understood by English legal system ?
What is a legal system ?
By legal system, one means the sources of the law, how the law is made, how it comes into existence, but also how it applies, the court system and the personel responsible for the authoring and application of the law.
Sources of the law : one may suppose that certain provisions (dispositions) are coming into application because of philosophical considrations. We are not considering those here.
We may also found that socio-economic circumstances that make rules of law ermege.
Here, considering only the institutions which make the law and how the law is made known, in other words the form the law appears in.
- English : what do we mean by English in the English legal system ?
Why English rather than British legal system ?
Why not “the legal system of Great Britain”, or the “legal system of the United Kingdom”, or “legal system of the British Islands” ?
English legal systm :
Does it mean English as an language (English speaking countries). This would include all countries where English is spoken predominantely : Canada, USA (that have no official language), Australia, New-Zealand…
This would be far too broad, but also too restrictive.
In Wales there are 2 official languages : English and Welsh. The institution of Wales use the 2 languages. Welsh became an official language in 1993 (Welsh language act)
But the English legal system
England legal system :
There is currently a process by which Wales is acquiring a degree of autonomy.
Until very recently the same legal system was applicable to England and Wales.
So the expression would be too narrow.
But it is relevant when considering other parts of the world (India, South Africa…), because England had the largest empire of the history of mankind. The English legal system has influenced legal system in many parts of the world. Countries were it had a predominant influence are often referred too as common law countries.
Studying the English legal system, indirectly we learn about those other systems. But strictly speaking the English legal system refers to the system applicable to England and Wales.
This system is an alternative to the system existing in many continental European countries, which derived from roman system.
British legal system ?
British is English equivalent of “Breton”
Britons is a people which occupied large parts of western.
Britain served to denominate both the people and the place where they lived
However, in the English language, the word Britons referes only to 2 parts of the country : England and Wales.
Wales was annexed to England in 1284, in a statute (an act of Parliament) of Wales.
In 1536, Wales was incoporated and England and Wales became a single kingdom.
Briton refers only to England and Wales.
Refers to England, Wales and Scotland
How was is brought together
It happened in 1604, when Queen Elisabeth 1st died, she died without children. She had a reputation of having remained a virgin during her whole life (there are doubts but she had no children). She was the queen of England and Wales.
By the rules of succession, her successor was the king of Scotland, James 6th of Scotland. At the time, numerous wars between England and Scotland, which was then tighly connected to France. The Scotish legal system has been influenced by the French legal system.
There was a problem. How to call the new King ? James 6 of England ? No, because he was the first James for England
James 6th became james 1st of England (and remained james 6th of Scotland)
For a century, both kingdoms remained relatively separated, chiefly united by the fact that the same person remained the king of both.
In 1707, the union of Englahd and Wales, and of Scotland was instituted byt the Act of Union. Scotland, England and Wales became Great Britain.
Despite this union, the 2 territories did not have exactly the same legal system, because by 1707 the Scotish legal system had strongly developed in its own ways. Its own courts, its own proceedings.
But the highest court of appeal of England and Wales became the ultimate court of appeal of Scotland. This court was the House of Lords. Moreover, the same Parliament situated in Westminster created laws for the whole Great Britain. But very often acts of parliaments (statutes) had special provisions for Scotland, and sometimes for Wales.
Great Britain has given a new expression, Greater Britain, sometimes used to designate the British empire
United kingdom ?
It is not synonymous with Great Britain or Britain ?
After centuries of colonial occupation and one could say oppression, Ireland became part of the kingdom of Scotland, Wales and England. A new legal name was invented to designate this new entity : the United kingdom. In happened in 1800 with the Act of Union. Through this act, all parts were constituted in the United Kind in 1801 a flag wa created to symbolise this union. This flag is called the Union Jack.
The Union Jack :
– a red cross on white : the cross of Saint George, the cross of England and Walre
– a diagonal cross, which white on blue : the cross of Saint Andrew, the patron saint of Scotland
– a red on white cross, cross of Saint Patrick, patron saint of Ireland
Since 1800, the United Kingdom has decomposed itself in part.
In 1922, a part of Ireland (note : Ireland is basically catholic, and England is protestant, with its own church). Irish citizens were for a long time second class cititzens because of their religion.
In ???? , Ireland became the Irish free state. As such it became a british dominion, part of the Commonwealth.
But the process of deunification continued when in 1937, in wake ofth second world war, Ireland became fully independent, and was rebaptised Eire.
In 1948 the Republic of Ireland (no longer a kingdom) ceased to be a member of the Commonwealth, also known as the Commonwealth of Nations.
In recent years, especially under the Government of Tony Blair has continued. It has affected other parts of the UK. This process is called devolution. It began at the end of XXth century, though which Scotland, northern Ireland and Walres have been given restricted or limited autonomy. This process is very interesting because it is an instance of how a country has gone back in history to give back autonomy to parts of the country. This happened in 1998 with the Belfast agreement, the Scotland Act and the government of Wales Act.
It has resulted in Wales, Scotland having a separate Parliament, a separate executive system and potentially a separate legal system.
So we can say there are 3 legal systems : the legal system of England and Wales (our focus of interst), the Northern Ireland (much parallel than different), the Scotland system (which we will not study, and which is different)
These 3 systems are united in 3 ways :
– through European Union legislation and case law. Which can in certain circumstances can operate directly
– through the legislation of Westminster, which in certain domains remains prevalent for all United kingdom
– by the case law of the House of Lords
Case law : jurisprudence.= the decision of the courts and tribunals. But with a big difference : case law, as opposed to French “jurisprudence”, is law, in fact one of the major sources of law.
Attention : jurisprudence in English has a different meaning. It means the philosophy of the law.
The British Isles ?
There are 2 major islands : Ireland and Great Britain. But many other islands.
British Isles covers all the islands.
We have seen that Ireland has partly acuiqred independence.
But this is also the case of other islands ;
– the Isle of Man (not part of UK)
– the Channel islands (Jersey, Guernesey..) are not part of the UK. They are called crown dependancies. They have separate legislative, executive and judicial system. The official unifying factor, is that they have the same crown.
The ulimate appeal of Isle of Man and Channel Islands is a special court, the Privy Council.
British (sense number 2) ?
The meaning has changed drastically in the course of the 20th century
At once, all citizens (or subjects) of the British empire (Canada, Australia, South Africa, India…) were British. This is rather wonderful in a way. An Australian could freely come and live in England (there was a right of abode).
CYKC : Citizen of the United Kingdom and the Colonies, which gave right of abode.
When the british empire ceased to existe and became the Commonwealth of Nations in 1931, all those different parts became firstly dominions, and after WW II, realms (“royaume”) or states when the countries in question were republic.
Until the 1960s, all people in the realms had a right of abode in England.
In 1971, a terrible thing happened for those people. The immigration act of 1971.
An act passed in England in violation of European Conventions on Human Rights (which UK had not ratified at the time). Under this Immigration act 1971, it was declared that former british citizens from the Commonwelath no longer had a right of abode in United Kingdom. 1000s of people who wanted to come to UK were deprived of that right (whtehter you were Australian, Jamaïcan…). This means that those who had been british before, ceased to be british. So the term British refers to people from
In 1968, an Australian would have a passport with Australia written on it, with the mention British Passport. After 1971, the expression British passport disappeared.
Nevertheless, Australia, Canada, New Zealand have retained a certain unity with UK, they are constitutional monarchies, but separate constitutional monarchies with the same monarch.
English legal sstems means the legal system of England and Wales, and in a limited way the system of Noerthern Ireland and Scotland, and in a more restricted way, the system at the source of the legal systems of Australia, USA, Canada…
- Legal system
There is a difficulty. A few years ago, things would have been simpler.
But because of Blair’s Government and the effort to develop democracy, which means more work. It means knowing the system existing before Blair, which in parts still goes on, and the new system which officially has been intended to promote better democray in UK.
Ex : the Lord Chancellor (equivalent of “Garde des Sceaux”).
Since 1885, the Lord Chancelor had been at the head of the Department called the “Lord Chancelor’s department”, LCD
12th june 2003 : LCD became the DCA (Department for Constitutional Affairs).
9th may 2007, the DCA became the Ministry of Justice.
This word ministry in the English tradition is something which gives a slight chill. The word ministry has a scent of Republican, authoritarian regimes.
The UK is like Australia, New Zealand..; a constitutional monarchy.
This means that the crown is at the head, is the ultimate authority for all the institutions of the UK.
What is the Crown ? It is the equivalent of what the French calls “L’Etat”. But the State is also a chilling word (remains of eastern Europe authoritarian regimes).
The name “Crown” is a thing, which symbolises monarchy
The monarch is the person who wears the crown (King or Queen)
Not to be confused with the sovereign, any one who has authority.
In a constitutional monarchy, we have a system where “the Queen reigns but does not rule” (Elle règne, mais ne gouverne pas)
Whatever the monarch has the authority to do, she has to do it on advice of the Prime Minister. The Prime minister is the real authority.
Who rules ? In reality, the Prime Minister and his cabinet
Something strange about the term “constitutional monarchy”. This constitutional monarchy has no Constitution.
There have been movements to have a Constitution in the European or American way.
There are rules that govern the way the institutions work ,but these rules do not exist as a single document.
The Constitution is made up of rules of law which are too be found in ordinary sources of law (statutes, case law and European law, and even traditions).
Ex : the Human Rights Act was passed in 1998. It is simply an act of Parliament. It is just a law among others. The parliament could cancel this act.
- The separation of powers
Montesquieu elaborated a system largely from his observations of the English system in 18th century. A system where there is a separation of the 3 powers.
But there is no such separation in the English system.
The monarch theoretically has legislative, executive and judicial powers which the Queen exercises on advice of the Prime minister. This means that Prime Minister
Similarly, the Lord Chancellor has executive powers (member of Cabinet), speaker of the house of Lords (legislative) and head of Ministry of Justice (judicial powers)
Under Tony Blair, the lord Chancellor function has been redefined to become more compatible with the principles of separation of powers
UK is also a parliamentary democracy. That’s why is
It is governed by the parliament sovereignty. Parliament is the supreme law maker.
This principle is incompatible with the idea of a written constitution which would limit the sovereignty of the supreme law maker.
Parliament is also the source of executive power
Moreover Parliament has the ultimate judicial power, because part of the Parliament, because house of Loard is the ultimate court of appeal.
16 october 2007
Livre : introduction au droit anglais et aux institutions britanniques, Frison (essentiel : dernière édition)
Concept of english law
More that « loi » in french.
The English term for “loi” is statute law, or statutory law. This the law made by Parliament.
But in all Common Law countries, there is also case law (“jurisprudence”). But jurisprudence in English is “doctrine”.
Case law is divided in 2 branches: common law in the restrictive sense, and Equity.
Equity is also a feature of Common Law countries. Warning: not to be confused with the common sense. The legal meaning of Equity is very specific.
The oldest source of law, is common law.
Equity and common law developed in the first part of the second millennium. (around 1200)
Statute law is the second source of law to have developed.
There is now a 4th source of law : the law of EU, and in matters of common right, also the ECHR.
When there is a conflict between sources, there are rules that enable to resolve the conflict. Here, the order is reverse that of history.
European law prevails over statute law, which prevails over case law. Within case law, equity prevails over common law.
Frison, chapter 4.
Case law is law
The fact that case law is law is not recognised only by English courts. It is also recognised by some international courts (ex : ECHR).
A case was brought to ECHR in 1979. It concerned a specific common law action called contempt of court. It is in part similar to “outrage à magistrate” but is much broader (it included the fact that newspaper could not comment a case before judgment had been pronounced). The Sunday Times commented the way a court was handling a case about drugs which led to deformed children being born. An action for contempt of court was started against the newspaper. Sunday Times appealed to ECHR. Question was whether the court could recognise the action, even if there were no statute law (this was purely case law). ECHR stipulated that in the case of the common law countries, case law was to be recognised as part of law as designated in (CESDH 10, § 2).
The origin of expression common law
Following the invasion of England by the Normans, French was currently used by lawyers to write law books. Not really French, but a variety of French called law French. This language was used until its use was forbidden in 1650. Common law is believed to come from the French “lay commune”.
The expression does remind of the Latin expression jus communae. It was used by canon lawyers at about the same time.
Common law is not really a purely English invention. There has been influence from canon and Roman law.
The general belief is that common law and Justinian law have developed to form 2 radically different systems.
The meaning of common law
The expression common law has several meanings.
– Law which is applicable to all the subjects of the kingdom
England, Wales and Scotland (Great Britain) and United Kingdom
– Law which is secular (as opposed to canon law). Lay law (“droit laic”)
– ‘Unwritten’ or case law as opposed to written or statute law
– A part of case law to be opposed to Equity
– The system of law which is characteristic not only of United Kingdom, but to a whole set of countries influenced and have retained some aspects of the English legal system
ECHR when using Common Law in its decision used the 3rd meaning
A brief account of primary historical sources
The oldest written documents date from the 6th century (beginning of the Anglo-Saxon period). But is is as from the 12th century that documents became numerous.
The laws of Henry I (written in 1180) : Anglo-Saxon system
A document written by Glanvill (Norman name) : Treaty on the laws and customs of the kingdom of England. : description of the beginning of the common law system.
Those 2 documents are precious to compare both systems.
Major book by Henry de Bracton, De legibus et consuetudinibus Angliae, 1235 (author was a judge) : (available on Internet).
End of 18th century : William Blackstone, Commentaries on the law of England 1765-1769. (full text available here) It became a reference for more than a century. Through this book, the influence of the English legal system was propagated to other parts of the world.
During all those times, numerous books and reports were published. They still exist and are still referred to.
according to it, the justices (“magistrate”) do not invent or create common law, but they gradually discover it. Once they have discovered a rule of common law, they expose what it is.
Consequence : common law has always been the same through history. If it is has changed, it is because the justices did not see it properly before. It is a long process of elucidation of what common law is.
In 1932 (Donaghue vs. Stenvenson) a lady in Scotland described as pauper (« pauvresse ») ordered a ginger beer. She drank the bottle, which was opaque, but a dead snail fell into her glass. She was shocked. She brought an action and sued the manufacturer of the beer. The problem was that she had no contractual relationship with the manufacturer. The court had to decide whether Stevenson was liable (“responsible”). This case finally reached the House of Lords, where the law Lords decided that in the common law there had always been a duty of care, even outside of contractual relationships.
By the time the case was judged and this completely novel decision was made, Miss Donaghue was dead, but a very important decision was taken.
Although this duty of care had been previously discovered, it was like it had already existed.
The creative theory
That the justices create new law. This is something of a scandal to continental Europeans. Here we have a situation where the separation of powers does not exist : those who judge also make the law.
Another view is that common law is based on common sense. What the justices do when they apply the law, they apply common sense.
Today when learning law in English law studies, one does need to study at the same time to study procedure. Common law developed in a way where you cannot separate substantive law and procedural law.
Ex : the Habeas Corpus writ.
Under the Human Rights, there is a chart in which the basic rights of human is recognised. Under british law until recently, there were no such rights. What there was an action. Under the Habeas Corpus, if you thought that someone was victim of false emprisonment, you could ask a court for a writ of Habeas Corpus. The writ stated either you bring the prisoner to court, or you free it. The right is immanent to the action.
In the English system, you first find the way to enforce a right, and it is from the means that a right is acknowledged.
The Royal courts
In 1066, the Normans, brutal, uncouth??? Defeated the anglo-saxons and took over the control of England (very quickly). They transformed the anglo-saxons into second class subjects. But gradually the 2 populations and the 2 languages fused to give progressively modern English.
The belied of common law is that it is rooted in history. It is a continuous development, and some rules developed in 12th century are still valid today.
The Anglo-Saxon period is viewed in 2 ways :
– a period in which England was very divided, many institutions, several kingdoms (some say 3, others 7, others even more)
– the process of unification was already on the way and had made considerable progress.
It is believed that the anglo Saxons developed one central institution, the Witan Moot.
The word Witan Moot are still found today (it means the Court of the Wise Men). Wit means wise in anglo-saxons. Moot is a court.
Today we still say a moot case. It is a fictional case that law students have to argument to develop their skills.
The Witan Moot was chaired by the King; England was already divided into 32 administrative sections, called shires or counties. The representative of the King in the shire was called the Sheriff. Each shire was divided into hundreds. Each hundred was divided into thivings (??). In each hiving everyone was responsible in a offence was committed. If the thiving oucld not deliver a culprit, all the members of the thiving were outlawed (which meant that you could be killed without a trial).
At the time justice was self-held or fued ?.
There were 2 categories of people : free men or serves.
The system of judgment was ordeal (“ordalie”)
Ordeal was to be suppressed by the Normans, but a part of it continued until 19th century : trial by battle, which consisted in having the 2 parties fighting with a sword. It was not used after the late 16th century. In the 19th century, a litigant suddenly invoked the right of trial by battle, and justices were surprised, thinking it had been abolished in 13th century, which it had not. A statute law abolished it.
Dane law : which was in the north east of England. This part had customs which had been instituted by the Nordic invaders.
In the center of England there was a region called Murcia.
In the south, a third zone called Wessex.
At the time England was not only governed by those 3 major zones, but there was a variety of customs which existed.
Moreover, there was an opposition between customary rules and canon law. Also an opposition between folk rights (“droit des peoples”) and royal privilege, which could annul this folk rights.
After the Norman invasion, the Witan Moot was replaced by the Curia Regis (court of the King). It was made out of all the important figures of the country. Progressively, the Curia Regis divided in 3 branches ; Parliament, … and Privy Council.
These royal courts developed from the curia Regis, and the ultimate authority was the King. Is till the case today, at least theoretically, that the Crown is the head of all thos institutions.
The Curia Regis would sense around the countries itinerant justices. And these “justices in ??”, went around the countries in 6 circuits. They would hear cases as they moved around those circuits. Occasionaly, there a a movement (the general eyre) and the King would hear case, collect taxes… It could be at time extremely feared, it marked royal authority.
Justices in eyre began to administer local. They would go in their circuits and go back to Westmnster and discuss customs which had been used, and decided which customs were to be kept.
A double movement in emergence of common law : centralised justice and regionalisation.
This system was in place as of the 12th century.
Gradually, 3 courts of more stable identity came into existence (until In 1873 – 1873 Judicature act set the current system.)
– under Henry I, In 1100 to 1135, Court of the Exchequer. It heard cases about the revenues of the realm.
– Under henry II (major contributor to common law development), Court of the Common bench (justices sat on a bench). This court heard cases between ordinary subjects, about common pleas.
– 1150s : the King’s bench
Those courts moved around the country. The idea was to try to elaborate rules which would apply to the whole country. There has been no revolution. It has been a continuous process.
Gradually these courts came to be fixes (result of Magna Carta). In the conflict between the barons and the monarch, the barons obtained that at least one of these should remain in one place (Westminster), the Court of the Common Bench (to avoid running through the country to have justice expressed).
Those 3 courts gradually settled at Westminster. But justices would go out in the country to hear cases.
One of the difficulty was that Common Law courts developed a new system of trial. Following the Council of Latran 4, which prohibitaed the use of ordeal in Christian world.
A new system was developed to try cases. This institution of jury trial (major innovation – had existed in antiquity). Which was applied to both civil and criminal cases.
Difficulty : if cases had to be tried in the Royal courts at Westminster, it meant that not only had the parties to come to Westminster, but also the 12 jurys(???). It was very inconvenient.
A new system was developed for regional justice (nisiprius). Royal justice was delivered locally.
23 octobre 2007
Exam : numerous short questions
A word about Courts
The word Court is used in very general way in English (as opposed to the French word “cour”. In english court is used both fort highest courts and lower courts (“tribunaux”)
After the Norman invasion, the king and his counsellors set up a ssytme of central justice. A centralised system fr the administration of justice.
These central courts :
– Court of the Exchequer (“Echiquier”) : why ? because in this court there was a sort of large cloth with an Exchequer on which were placed values. This court was basically a financial court. It was set up at the beginning of the 12th century
– The most important courts were the 2 benches (justices sat on benches)
o The King’s (Queen’s) Bench : cases in which the King was a party. Cases wich disturbe the King’s peace, (“l’ordre public”)
o The Common Bench, which heard the common pleas (French “plaid”) was a court specialised in cases where 2 subjects were opposed
These courts developed as of the end of 12th century, and went on to the end of 19th century. These courts were the main courts for the development of common law.
Judges or Justices : if the equivalent of the French word “magistrat”
The word magistrate in English has a completely different meaning. It means the lower judges (equivalent to “juges de paix”)
This centralised system of courts resulted in a problem, if Common Law had to develop as the common law of the whole country: how the law developed in Westminster was to be administered all over England, England and Wales, England, Wales and Ireland.
The system which was developed was the system of assizes. It did not concern only criminal law as in France, but both criminal and civil law. By this system, cases could heard all over the country. This was done by a fiction called nisiprius.(if not before). The fiction consists in saying that the case would be judged at Westminster except if before a justice of the Royal court has not come in the region to judge the case).
These assizes were usually held during the holidays of the central courts. The sending out of justices became the law common to the whole of Britain, then Great-Britain.
These assizes, or courts of Assizes, continued to exist until 1972.
The assizes heard the most important cases, and less important cases were heard in courts called quarter sessions. Theses quarter sessions were partly run by the justices of the peace, the magistrates.
For very small offences, there were also petty sessions. These were run exclusively by magistrates. The word “petty” in a remnant of law-French.
Magistrates were responsible for small offences (“offense” in French, but the French word has a religious connotation. The legal translation is “infraction”)
An offence can be of different categories.
As from the 12th century, these men who were appointed by the Lord Chancellor, who was in fact responsible to a certain degree for the administration of justice.
The magistrates intervene in the petty sessions, in the. But they also had administrative responsibilities. The magistrates were often said to have been untrained in the law, and yet still today they administer justice in a great majority of criminal cases. In fact this is true today that magistrates do not have legal training, but are chosen as responsible citizens. In the past, magistrates often belong to upper class, and often had training in the Inns of Court. The Inns of Court were the law schools that were established very early (in the middle ages) and still active today. They today are situated close to the supreme courts. People who want to become barristers (“avocet plaideur”) are trained in those. A barrister is specialised in pleading.
Until the middle of 19th century, the religious courts plaid an important role in the administration of justice. They administer a different system of law, the canon law, or its modification after the reformation. This law was applicable not only to members of the clergy but also to all the subjects in certain domains. What were these domains in which these courts had jurisdiction (“compétence”) (to have jurisdiction over XX) ?
– matrimonial law : everything concerning marriages, divorces
– family matters (a large part of it)
– Probate law: which concerned wills (“testament”). (“droit des successions”), but limited to personal belongings or to chattels (??) (“meubles”).
– Until the 17th century, the ecclesiastical courts had jurisdiction on promises (as opposed to sealed contracts – “contrats solennels”)
– Much of defamation : these matters (promises and defamation) were considered to be spiritual matters (not lay (“laic”) matters)
During 17th century, Royal Courts extended their jurisdiction over promises and defamation, which gave birth to contract law, which gave birth to nude contracts (pate nu, nudum pactum), or simple contract (“contrat sous seing privé”). Today contract law is modelled on the simple contract, not the sealed contract.
Similar over defamation. Defamation has 2 forms: the first most serious form is called liabel, where there is a written, therefore permanent form. The other form is called slander. Slander is oral defamation or defamation which leaves no trace. The English law of defamation is marked by this difference and the law for the 2 is different.
The old Norman courses (Moots) officially continued to exist, but they fell into disuse, until they were abolished int 19th and 20th century.
But the Manorial Courts continued to administer justice locally, but fell into disuse in favour of quarter sessions and other Royal local courts.
Common law procedure
How is it that the Royal courts managed to take the place of the old, more regional system of administration of justice ?
What did the new system offer more than the old one ? The answer : procedure.
One of the key points of Common Law is that it is rooted in procedure.
The Common Law until middle of 19th century was extremely formalised. Formalisme has the advantage of ensuring certainty, it gives the feeling that similar cases will be judged in similar ways.
In English, distinction between 2 types of law : substantive law (“droit de fond”) and adjectival law (“droit de procédure”).
English substantive law is originally not separable from adjectival law.
Today in English law schools, the 2 are separated (courses on tort law (“obligations délictuelles”), contract law (separated from tort law because the procedure were originally different).
The writ system
These Royal Courts at first were courts of exception. The local courts (manorial and other Anglo Saxon courts) were the normal courts.
To be permitted to bring a case before the Royal Courts, you had to obtain a writ, a form of action. This form of action was a document (“un formulaire”). This used of the writes in latin continued untils mid-16th century. These writs were obtained from the Loard Chancellor. You had to pay for these rits. So the Royal Courts also obtained an advantage which wa money. Why did people wanted to be judged by Royal Courts if it costed money ?
If you wanted to bring an action before the royal Courts, the facts of the case had to coincide perfectly with the form of action. Ex : trespass originally (no trespassing : not allowed to go in the property of someone else). The writ for trespass Vi et arnis mean (force and weapons) was possible only if you wanted to bring an action against someone who had used force and weapons. You had to select the writ which coincided exactly. But the number of writs was limited. If no writ was available, no remedy was possible “no remedy without a writ”
Royal Courts wanted to extend their jurisdiction, so the added new writs
Note : writs were need all along the procedure (“en cours de procédure). There were original writs and judicial writs.
The Lords Chancellor created new writs.
But there a quick reaction in the 13 th century : the barons saw their jurisdiction shrink. At a moment when the King was weak, thebarons obtained that no new writs could be created. Royal Courts were prohibited to write new writs. They allowed cases similar to existing writs to be heard. Theses new writs were called “actions upon a case”. It is through such actions that contract law and law of defamations were developed.
The other cas was for pleadings (ATTENTION :this means “échange de conclusion”) Very important aspect of English law. The pleadings were pre trial proceedings. You still have to exchange pleadings before your case can be heard by the courts.
Until the 19th century, English pleadings were submitted to very strict rules. The barrister, who has to write the pleadings and expose before the cour. The purpose of these pleadings was to reduce the conflict between the parties through the rules and mechanism of the pleadings, through one question. The parties had to have reduced their conflict to one question.
When reading reports, you will find “the simple question in this case is”. How is it possible ? Because justices have been trained to this. In the 19th century, alternative pleadings were allowed. This a very beautiful system. This mechanism forced the partie to reduce their conflict
Their were categories of question :
– the issue (which became a common word)
– the demurrer (from french word “demeurer”)
Issue : a question of fact and if the parties to reduce their conflict to a question of fact, then the trial could begin and the case would be bring before a court. Until the 19th century, nearly all majors cases were tried by jurys. Until 19th century, jurys had an exclusive jurisdiction over questions of facts
Ex : first issue resulted from what was called a traverse. This consisted in a denial (“denegation”). “No I haven’t done this” is a traverse. The issue is “Has he done that ?”.
But the defendant can also say : yes I have broken my contractual obligations, but you forced me to enter into this contract. This type of defense was called “a confession and avoidance”. You recognise the facts, but you avoid the legal consequences of those facts by a justification or excuse.
Demurrer : it consists in raising a question of law. There the question would be : plaintiff : the defendant has broken its contractual obligation. Defendant says : “so whar”. The question then is a demurrer for the justice to resolve “does the fact of breaking contractual obligations has legal consequences ?” – very obvious here).
Once the question had been agreed upon by the parties, the parties knew what argument and what proofs to support their position. The question was frozen from the moment the pleadings were agreed upon. There were no possible surprises during the trial, which allowed both parties to prepare.
This is completely different from inquisitive system, where the justice can ask any question.
This meant that the cost of the trial were lower (no need to prepare for any movement)
The pleadings were written down, and kept into the courts, recorded in the Court roles (and of course the judgment). This enabled a second feature of Common Law: res judicata. (Authority of judged matters).
This meant that the same case could not be judged again and again. The Cours ensured finality of the judgment, but also enforceability, because de Royal Courts were the courts of the King. Not following those decisions exposed for an criminal action for contempt of court (“mépris de la cour”);
The other feature because there was a recording was stare decisis, Latin expression (incorrect Latin) which means « the doctrine according to which judges must judge similar cases in a similar manner ». In other words, they must follow precedents. This doctrine was instituted only in the 19th century. But before the 19th, and as from the 12th century, the Royal Courts developed habits of judging cases. There was not a strict rule of stare decisis, but there was a style of judging which was specific to the Royal Courts. Common Law developed a decision type. The common law courts were to a certain degree predictable in their judgments. When they handed down a decision, they would refer to previous decisions. They do it even today (today a judge could refer to a case in the 16th century).
In the English law, justices must know the precedents as much as they must know the laws of Parliament.
The other feature is that the Royal Courts had a system of trial in which the jury was a central institution. The jury system is inseparable of the development of common law (also until the 19th century).
Advantage of jury system : the litigants had the feeling that they were judge not by their superiors, but by their peers (people similar to them). This was a rather popular form of judgment (preferable to ordeal of compurgation).
30 october 2007
The Court of Common Pleas, also called the Common Bench, and the King’s Bench.
The Royal Courts were emanations of the King (known as the fountain of Justice). The idea that there sould be an appeal was somewhat incoherent with the idea that these courts were emananations of the King.
But there were possibilities of what was called judicial review, the idea that a deiciosn could be revides, re-examined and mofieid. One of the means in which in was done was though a writ of error. Hower the justice which heard those reviews were the same justices which were responsible for the firsqt hearing. No Court of appeal per se.
These royal courts had attracted litigants (justiciables) because of a certain number of features of procedure in those royal courts.
As often happens, what was perceived as an advantage as an adavantage at one stage came to be seen as disadvantages;
– The Common Law tried cases through a jury of 12 men. Cases both civil and criminal were tried by jury. At least the factual questions were tried by a jury. The legal questions were tried by a judge. The jury system was satisfactory because it meant being judged by one’s peers, but the jury was exposed to a problem : a member of the jury could be corrupted.
– The very strict fomalism was such that in cerain cases one could fit the facts into the existing writs (no writ, no remedy)
– Very strict rules of proof
– The kind of remedy (dispositifs). The primary sort of remedy in a conflict was damages. In certain cases, a plaintiff does not want compensation or damages, what he wants is a change in a situation. Ex : he might want a person who is causing a nuisance to be prevented to make that nuisance.
One a royal court has handed down a decision, there was a possibility for judicial review, but judicial review always in term of common law. This was not felt to be always satisfactory.
There was a question : had the King exhausted its power as fountain of justice through common law courts, and he still a power to justice directly. The second theory held.
Equity in English also sometimes opposed to the idea of justice. It is something after justice, something that does take the letter of the law, but may be more the intention of the law. It is also more focused on the behaviour of the parties.
Equity : justice in sense of justice beyond the justice of the law.
Equity is another source of case law. It not only the idea that something is necessary. It is a true source of case law.
The king had an adviser who had the title of Lord Chancellor. This man was responsible for the Great Seal (le grand sceau). His function as keeper of the Seal was devoted to another person the Lord Keeper. Th e Lord Chancelor is stilled today a very important person (very recently it even had precedence over the Prime Minister).
Litigants could introduce a petition of rights to the Lord Chancellor. The Lord Chancellor, for a very long time, was usually an ecclesiastic. As such, he was familiar with another body of law, canon law, and though it familiar with Justinian law (roman law of the later period).
He would resolve cases sometimes in a different manner. He would do this in conscience (selon sa conscience). This conscience which had been developed by Canon Law and Justinian law. Therefore, depending on who was the Lord Chancellor, the equity changed a lot. It changed so much that it was exposed to he criticism. John Seldom criticising equity or the Court of Conscience said that equity varied like the Chancellor’s foot. This was a good way of formulating this criticism for subjectivity for the Court of Chancery?
In reaction of this criticism, the Court of Equity developed rules rather similar in a sense to those of common law, rules that were objectivised, formulated in a series of maxims, and still known as the maxims of equity.
From the 17th century, the decisions formulated by the Chancery Court were reported like those of Common Law. The Court of Chancery developed its own system of precedence. This is called ratio decidendi (motivation).
Example of maxims:
– equity regards as done that which ought to be done : équité considère comme étant fait ce qui aurait du être fait
– one who seeks equity must himself do equity
– one who comes into equity must come with clean hands : celui qui vient vers l’équité doit le faire avec les mains propres
– equity will take jurisdiction to avoid a multiplicity of suits : l’équité se donnera la juridiction pour éviter la multiplication des affaires
– Equity follows the law. Equity was not ??. Equité non perçu comme disponible par un recours en appel, mais plutôt comme un commentaire de la Common Law.
Equity is bound to follow the law, and simply comment it.
– Equity is a shield, not a sword. Equity can be used to defend oneself, but not to create new rights.
– Equity acts in personam. (Expression agit in personam). When the Court of Chancery handed down a decision, the idea was that the decision did not modify the common law in general. Is only modified its application in that particular
Equity produced a number of innovations
Adjectival (procedural) innovations of Equity
To bring an action, one did not need to have a writ, no need for a form of action.
Instead, one had a petition or a bill of rights. The difference between a writ or petition of rights, was that the bill of petition was informal. It did not require the observance of specific sentences. The bill moreover was not in Latin, but it was in English.
The pleadings before Chancery were also informal and in English.
Equity has a completely different system of examining a case. It did not examine one issue that the litigants asked the judge to rule. It presented a whole situation. Therefore, it was an inquisitorial method. Once asked to intervene, the judge had the power to ask and rule on any matter it considered related.
No separation of law and facts as in the Common Law courts. In the Court of Chancery, the Chancellor had the power both to try facts and law. There ware no juries, and therefore no possibilities of bribery.
The Chancery Court also provided other kind of remedies: equitable remedies : injunctions. The Court of Chancery could order someone to do something. Or prevent him to do something through a prohibition.
The immense difference between English and French legal systems make is very difficult to directly translate between both languages.
This court was a court of conscience: one should go into the conscience of litigants. And one should modify common law decisions by taking into accounts the intent of the parties.
A celebrated example is the invention of an instrument called the trust (not in the monopoly sense here). There is no translation for the word trust, because French law has not developed such an instrument. In France, a diversity of instruments allows to do similar things.
A trust is a body of equity, and it was developed by the courts of equity.
When the crusaders left their property, their estate ….. During that absence these barons, lords knights needed that property to be administered. In the feudal system for someone to administer an estate, he had to enfioffed (he had to have a fief??? on the property). Knight would enfief their property to a trustworthy friend. This friend in the long absence was entitled to administer the property. The only problem was that friends are what friends are. When coming back, the knight would ask to return the property, and often the friend would refuse. The knight would bring an action before the benches in order to recover its property. Common law said: you shouldn’t have conveyed your property. The common law did not recognise what had happened, which was the understanding that the friend would administer the property of the knight’s benefits: it did not recognise what was in the minds of both litigants.
The Lord Chancellor examined the conscience of both parties. By glosing the common law, it would enable the original owner to recover its property. The trust was created: a system by which the settler can convey property to a trustee. A trustee can be a bank, a lawyer; anyone. The trustee under trust law is accountable for the way it manages the property. For example, it possible to convey property to a trustee for your children who will recover the property at a specified age (18, 21…). System widely used (for universities, handicapped children…)
The court of equity also developed law regarding parole agreements (accords oraux ou actes sous seing privé). Common law originally recognised deeds (actes solennels).
Equity itself came to be considered as unfair: the inequity of equity.
At the beginning of the 19th century, philosophers like Bentham or novelists (Dickens, Bleak house) began to criticise equity, saying that it was too rigorous. One of those was that procedure was very long.
The Court of Chancery unlike Common law had developed a possibility of appeal from 1675, appeal to the House of Lords.
Development of the present day court system
The 3 common law courts, King’s bench (originally to hear cases concerning the monarch and subjects, cases which in some way put in danger the King’s peace), Court of the Exchequer (danger for the King’s revenue) and Court of Common Pleas. Those 3 courts over time came to have jurisdiction over cases which were not as distinct as that.
A maxim of equity:
Those courts also came to feel that multiplicity of courts should be avoided. Ex: Court of the Exchequer handled cases where litigants had failed to pay taxes. What happened if the litigant pleaded that he had not paid because he was in an action of debt with another person. The Court of Exchequer decided that it should therefore have jurisdiction over the other cases.
In this way, all these courts with time came to have a rather similar scope of jurisdiction.
In the course of time, it was felt that there was no longer a true justification for the existence of 3 different Common Law courts.
Moreover procedure in these courts came to change. In 1834, in the Uniformity of Procedure Act, and the in 1852 in the Common law procedure Act and 1875 in the Judicature Act (full name, Supreme Court of Judicature Act), the writ system was abolished and the system of pleadings was simplified. The system which was put in place has since then remained basically the same.
To begin an action, one just needs to obtain a single writ, common to all actions: a writ of summons.
The pleadings also have been simplified (of course they are in English since beginning of 18th). If you are a plaintiff, you must fill in a statement of claim (déclaration de demande). The defence must introduce a defence ??. It can also make a counter claim.
Moreover in 1854 something else changed. The system of jury trial for both civil and criminal trials was modified. It became possible for litigants to ask the justices to try both questions of law and question of facts, making the recourse to a jury unnecessary. The jury system is practically never used for civil cases.
In 1877, the ecclesiastical courts lost their jurisdiction over family matters and probates (law related to wills).
There was also a risk of conflict between the 2 sources of the law.
This conflict had to be resolved for a new system of court to be developed.
There was a conflict, and in 1806 it became a physical conflict. The Chief Justice Coke and the Lord Chancellor Elsmere sent their men to fight in the streets for cases, to make either the Common law of Equity prevail.
King James 1st was asked to decide which of the 2 courts should prevail over the other. The King decided that in certain cases, the Court of Chancery would prevail. From that time, Equity was believed to be superior, but this was legally established only in 1873-1875.
1873-1875: the Judicature Act. An immense reform.
The Common Bench and Court of Exchequer disappeared. A new court was created: the Supreme Court of Judicature. This court originally had 5 divisions: Queen’s Bench division, the Common Bench and the Exchequer. Very quickly, they were fuse in the Queen’s Bench; the Chancery division and the Family division (took over jurisdiction of the Church).
After the Judicature Act a system of appeal was developed. The Court of Appeal was instituted on the model of the ecclesiastical courts, which had appeals since 16th century. Another level of appeal was instituted: the judicial committee of the House of Lords. It was staffed by highest justices: the Law Lords, or lords of appeal in ordinary.
In 1907 the Court of Appeal, criminal division was created.
House of Lords 1876
Court of Appeal, 1873
Coot of Appeal, criminal division 1907
Supreme Court of Judicature, with King’s bench (tort law, contracts…), Court of Chancery (jurisdiction over trusts), family divisions (matrimonial matters, divorce, will, probates).
These courts were and still are central. They are located in London in the building of the Royal Courts. They have provincial (remnants of assizes).
Until 1971, the assizes remained both for civil and criminal matters. It was then abolished. For civil law, province centres were created, and for criminal matters, Crown Courts were created for important criminal cases. For lesser cases, the magistrate’s courts (??) remained and still exist today.
In 1846, the workload of the assizes for the civil side was alleviated by the creation of County Courts (tribunaux des comtés).
There have been further reforms under Tony Blair.
In 2003, there was the Court act 2003. It replaced the compound made out of the 2 divisions of the Court of Appeal and Supreme Court Judicature by Her Majesty’s Court Service (see website).
In the new system, Her Majesty’s Court Service administer the Court of Appeal, both civil and criminal divisions, and bellows that the Queen’s bench division (including administrative Courts), Chancery Court and Family division.
Criminal courts are still the Crown Courts.
The magistrate’s courts for the first time in English history form part with the global judicial system.
About the House of Lords
Before these reforms, House of Lords was the Supreme Court. It was through it that law was unified. Following the reforms of Tony Blair, the judicial committee is to be rebaptised the Supreme Court, like in USA. This court which today still sits in House of Parliament will soon have its own building, marking a stronger separation between legislative power and judicial power.
6 November 2006
Characteristic feature of English institutions: their continuous development.
This means that the law also has developed in a continuous manner.
There has been no break in this development. In France, after the Revolution the legal system was completely rewritten. Not the case in England.
This explains the importance of studying history of law and institutions.
New rules also for judges. At that time the justices could not be removed. They had to be kept, and that’s why it took some time to reduce the Supreme Court of Judicature to a single division, the Queen’s Bench division. This division remained until very recently.
For more that a century, the Supreme Court of Judicature continued to exist. Queen’s bench had original jurisdiction (competence de première instance) on tort law (responsabilité délictuelle) and contract law.*
The second division was and is still called the Chancery division. It had jurisdiction over trust, over contention probates and other matters.
The third division was also at first three fold, and was after reduce to one : family, probate and admiralty. It progressively became the family court. Through this Judicature Act, the ecclesiastical courts became lay courts;
The procedure was also simplified (1834 : uniformity of procedure Act). Replacing all the writs to initiate an action were replaced by a single writ, the writ of summons.
Similarly, pleadings had been very complex business. The litigants had to join issue, they had to reach a .. of issue. The y had to come to a single question around which their conflict resolved.
Gradually this system was dissolved (from as soon as the beginning of 18th century). It gradually became less formal. From 1705, parties were given the right of double pleading, or laternative pleadings. The right for the parties to present 2 issues (2 questions instead of 1).
The other change concerned jury trial ,which has been characteristic of common law courts. It was part of the popularity of common law courts, but also of their unpopularity (bribery).
By the end of 19th, a jury trial in civil matters was only 50 % of the cases. Today jury trial for civil cases are exceptional.
New courts of appeals were instituted, on the model of ecclesiastical courts. Judicature Act instituted a Civil Court of Appeal for all its divisions (before, each court had its own rules).
The status of House of Lors had had jurisdiction as the ultimate court of appeal; But this was a constitutional anomaly from theh theory of separation of powers. It took more thant a century to change.
In 1873-1875, there were motions for abolishing the House of Lords as a court of appeal. But by 1875 when the final act was voted, it was decided that a specialised committee would become the highest court of appeal, the judicial comitte of the House of Lords. This judicial committee would be composed of life peers (no hereditary peers), and would be called lords of appeal in ordinary. Shortly this title will change. This court continued to exist but under a modified form. Judicial Comitee became the highest court for the whole United Kingdom. Ti was through this court and ists 12 Law Lords, that the law of England, Wales, Ireland and Scotland was unified. The court has jurisdiction over criminal and civil law, except for the case of Scotland.
The Privy Council, emanation of the Curia Regis, was also recognised has having an appellate function, as the judicial committee of the Privy Council. It was the highest court of appeal for the Britsih empire, and after that for the Commonwealth.
Recenlty, new Zealand has refuse to recognise the privy Council as its supreme court (as had Austalia before)
In 1907, the Court of Appeal was given “competence” for criminal cases.
The Supreme Court of Judicature, including Court of Appeal and Hight Court of Justice, had appellate jurisdiction from lower courts.
Cases can lie an appeal from the lower civil courts : county courts (instituted in ..46). In case of an appeal from the lower courts, appeals can lie to the High Court of Jusice. Similarly appeals from the lower criminal courts (magistrates’s court) cans lie to the Queen’s bench division. A case can be heard 4 times.
Appeals to upper cours can only be on matters of law : appeals on case stated. The courts only examines if the law has been correctly applied.
All these courts, Supreme Court of judicature and its parts, were housed in 1882 in the same building, specially constructed for theses courts, situated in the Strand (“la grève”).
In this majot reform, there has been a prevailing influence of the Courst of Equity. The head of the Supremer Court of Judiciature, was the head of the Court of Chancelor.
Like the cours of Chancery, Supreme Court has no recourses to jury.
Act of 1971. before, regional cases were handled by assizes. The act abolished the assizes case. They were replaced by the crown courts, they are located all around the country. There a 78 of thoses centers, organised as first tier, second tier or third tier crown court center. This degree depends on the jurisdiction on specific offences (“infractions”).
Cirminal : crown courts ->
Civil : assizes were also abolished. Provincial center were also created (also 78 centers). For smaller cases, there are 233 county courts all over England and Wales. There are 30.000 (??) magistrates courts.
Long after the old county courts (shire courts…) were…. Abolished by the Administration Act of 1977. Thoses small courts tended to decide cases in accordance with the Royal Courst decisions. What we see developing in the course of the century is the law developed by the Upper Courts as a form of constitution. The lower courts felt that it was preferable for them to solve case in accordance with the rules of Common Law et Equity rules decided by the upper courts : Common law and aquity became in effect the law of England and Wales.
The courts Act of 2003 replace the Supreme Court of Judicature by Her Majesty’s Court Service (see web site). It is in the process of being made responsible for the administration of jutice for appeal, higher courts, county courts and magistrates courts.
This reforms claims as an advantage that it is the first time that a single service for the administration of the upper and all the lower courts. It unifies the administration of the whole system of courts which thereby unified for the first time.
2001 Constituional reform Act. Following this, when it is fully operative, the judicial comitee of the House of Lords will disappear. Instead there will be a Supreme Court.
The Supreme Court will now be completely separate from the House of Lords, both institutionally but also physically, in its own separate building :The old Guild Hall (at present being restored). The purpose of this major reform was to make Biritsh institutions more compatible with instituions of other European coutrnies.
But the monarchy system can be considered as fundamently incompatible with the rules of democracy as the other 2 power are virtually inseparable.
Hierarchy of laws
International sources > Statute law > Equity > Common law
Statute law : beware : no immediate relations with the courts. Also called statutory law.
Statute law is made up of Acts of Parliament.
Parliament has come to be responsible for the making of laws which in the English legal system have the greatest force if one excepts since 1972, European Law.
It is Parliament which transforms bills (projet de loi) into acts (lois). This transformation is called enactment (to enact : to transform into an act).
This source of law considered nationally is the highest source of the law in England. It prevails over case law, but this has to be qualified (“appelle des nuances”).
British English: Government means the executive
American English: Government means all the branches of power (MAJOR DIFFERENCE)
Chapter 1 : Parliament and the people
One of the striking features of English institutional history is continuity. Here again there have been revolutions in a sense, but the predominant feature is continuity and constant reference to tradition.
Parliament began to remerge as from the 13th century. In the course of that history, gradually and then more and more quickly, the upper house became the less powerful house. Gradually the House of Commons rose and became predominant.
Section 1 : Institution of Parliament
The Curia Regis, which had all powers, rather comparable to the Witan Moot(“Court of the wise men”), had devolved its judicial power to the Royal Courts.
Similarly the legislative powers of the Curia Regis became devolved to a specialized institution : Parliament.
In Magna Carta (Great Charter) was a document that the barons obtained from the King when the balance of power happened to be in favour of the barons. Magna Carta was the outcome of a conflict between the King and some barons. MagnA Carta is essentially concerned with the fair administration of justice. The barons required the King to acknowledge certain rights. Among those, foremost, was the right of due process of law (“droit à un process equitable, à un procès qui suit la procédure”). The idea that judgment must follow procedure.
1265 is the more frequent date used as the origin of the history of Parliament. In 1265 Simon de Montfort instituted a temporary parliament, composed of ecclesiastics and peers, and on the other sites knights of the shires and town burgesses (representative of the towns). Here we have a prototype. The 2 chambers did not exist at the time. But representations at the time show that knights and burgesses were kneeling. It is the descendant of those kneeling figures which dominate.
In 1295, The Model Parliament: first assembly which really looked like the actual Parliament. Parliament summoned by Edward 1st. 2 knights from each shire, 2 burgesses from each town (burrough), 2 citizend of each city.
Later, the Parliament was divided into 2 chambers : one hand, ecclesiastics and peers, other hand , knights,
In ???, first Parliament were the Commons were
In 1362, Parliament was acknowledged to having a right to decide taxation. Parliament must give its ascent to all lay (“laic”) taxation.
In 1621 (??), in the protestation of 1621, this remarkable statement was made and acknowledged by the King, that Parliament had “the ancient and undoubtful right to debate any subject”. We have members declaring that they always had the right to discuss any subject. In
This was the second revolution, after was called the Civil War, which at the beginning of 17th century, had opposed royalists..; ended in 1649 ended with the execution of Charles 1st. This was not an accidental killing; it was a legal execution following the judgment of the King by Parliament. Parliament had enough power to consider having jurisdiction over the King, that the king was …
Charles 1st, at the height of absolute monarchy, the King was retired and executed. It was the date of first of only regicide in England.
At the time, England, Wales and Scotland became a republic for 11 years, under the Government of Oliver Cromwell and the Parliament. This republic was called the Commonwealth.
After the death of Oliver Cromwell, Parliament decided to restore monarchy, and asked Charles 2nd, which was in France at the time, to come back to England and become King with a number of restrictions : the beginning of constitutional monarchy.
1688-1689 : the Glorious Revolution
Those limitations became very clear when arms were taken against James 2nd. Glorious revolution because it was relatively bloodless. The outcome of the revolution was the Bill of Rights. A very important moment in the history of Parliament. The sovereignty of Parliament was isntituded. It declared that parliament was the maker of law, that is was sovereign to make the law.
One of the major provisions (“disposition”) of Bill of Rights was that Parliament henceforth Parliament should be empowered with legislative sovereignty. It is at this moment that legislative powers of Parliament were instituted constitutionally.
In 1681, just before, the last Parliament outside of London was held.
In 1694, there was the Triannel(?) Act, according to which Parliament was to meet at least every 3 years, following which the longest time between 2 elections was to be 3 years(1716 to 7 years, and in 1911, 5 years at the most between general elections).
Section 2 : the House of Commons
House of Commons is elected.
The House of Commons was originally the lower house of Parliament, as opposed to the House of Lords, made out of ecclesiastic and lay lords.
In 1407, Henry 4th had acknowledged that legislation regarding taxes should originate in the commons (lay taxes had to have the ascent of the Commons): this became a convention (many things in UK are the fruit of conventions – habitual ways of doing things). This is an important date, because in 1911 this decision made by Henry 4th was refered to diminish the power of House of Lords, when House of Lords tried to veto a money bill (“loi de finance”). In doing this, it violated a convention, an unwritten law. Immediate reaction of the Commons, which force the convention to become written in the form of legislation.
In 1414, the 2 houses were recognised has having the same powers to legislate. They were recognised as being equal. In 1911, following a long conflict, the Parliament Act was voted.
A convention had been established since 1907 that the House of Commons prevailed over legislation concerning taxes (over Money Bills).
In 1911 Government wanted to institute numerous social reforms. The Government introduced a bill requiring financing in the House of Commons. The House of Commons voted the Bills. It then went to the House of Lords. House of Lords vetoed the Bill, preventing the Government from initiating its social reforms. From 1907 (?), the convention that House of Commons prevailed. The House of Lord by vetoing violated the convention.
Through the parliament act 1911, the power of House of Lords over money bill was completely diminished. The House of Lords could only delay an enactment. Very important date in the fall of House of Lords
In 1949, in a similar context, after WWII, when the government started important reforms (in particular building of NHS). The Parliament Act 1949 was voted, which created new peers (the life peers). This Act provided that the House of Commons could no longer be prevented by House of Lords to enact any public bill.
26 November 2007
First pass the post system : single round
Problems of the system: does not reflect the majority
2 main political parties: Conservative (Tories), Labour party and third big one: Liberal party (the Whigs)
Prime Minister can choose the time of the general elections (max 5 years)
History of vote
Originally, only land owners could vote
During 19th century more and more citizens got the right to vote (Catholic emancipation act, Jews relief act, The 3 Reform Acts), women in 1928
Main history steps
1999: Acts of Devolution
2005: Constitution Reform Act
House of Lords : loses its power through history
1911 parliament act : no more vetoing power
1949 : no more vetoing power for all public bills
1958 : introduction of Life Peers
Before 2005 : Lord Spiritual, Lords temporal (Hereditary Peers, Life Peers), Law Lords
2005 : 92 Lords (selected by PM, Queen and a commission), no more hereditary peers, Law Lords become a distinct Supreme Court
Who can vote
Following the reformation, Catholics were prohibited from participating in the elections of Parliament, or become members of Parliament (MPs). This was until 1829, through the Catholic emancipation act.
Originally, to have the right to vote, one had to be a land owner. It is only gradually in the course of 19th century that the right to vote became separate from an interest in land.
This old system had the strange effect that if one had land in several parts, one could vote several times.
In 1832 following the influence of the French Revolution, Parliament voted the Reform act, which resulted in the United Kingdom in the rights to vote for 20 % (maximum estimation) of the adult male population. Before this act, a very small percentage of the population was allowed to vote. Thus this act is a major step.
In 1858, another religious group was allowed to vote: the Jews, through the Jews Relief Act.
In 1867, the Second Reform Act
In 1884, the Third Reform Act
In 1918, the Fourth Reform Act brought the electorate from 8 million to 24 million, and allowed women to vote for the first time (women could vote from the age of 30, men could vote from 21).
In 1928, Equal Franchise Act, women were allowed to vote from 21.
1969 : teenagers in their last year were also given the right to vote.
Today, you do not need to be a land owner, you do not need to be 21, you do not need to be a man.
The Parliament was a parliament for England, Wales, Scotland and Northern Ireland.
Following the Acts of Devolution, in 1999, which have instituted assemblies in Wales, Scotland and Northern Ireland, Parliament remains the Parliament for United kindgdom. However if one is elected in the assembly, one loses the right to be a member of Parliament.
The current system
The monarch summons and dissolves Parliament. The monarch dissolves at most after 5 years. But she must after that summons a new Parliament, through a general election.
The country is divided into constituencies. There are in England, Wales, Scotland, Northern Ireland 646 constituencies. Anyone can run, as long as he is 18 and has acquired the ascent of 10 parliamentary electors and deposited 500 £, and he must be a British or Commonwealth citizen. Most candidates are members of a political party.
The major political parties have been since 17th century, the Conservative Party (the Tories), the Liberal party (the Whigs) and since the end of 19th century (originally associated with the trade unions), the Labour party.
There are of course other parties, but the structure of political life in England has a …. To be bipartite.
The dissolution of Parliament decision is in fact made by the Prime Minister. The Queen dissolves on the advice of the Prime Minister. The Prime Minister can make this decision when he wants. This gives him an immense advantage to choose a favourable time for the elections.
There are several candidates in each constituency. In each constituency, voters select one candidate. There is only one round. The winner is the one who gets the most votes. This is called the “first past the post system”. It comes from horse racing.
This can result in a rather strange situation: one candidate can obtain with a very small difference in one constituency. There are times when the numbers of seats is proportionally much greater than the number of votes. The number of seats does no necessarily reflect the number of total votes obtained by that party. This means that sometimes that the country is not run by a party which represents the majority. The voting system has often been criticised.
Once a member of Parliament has been elected, he joins the House of Commons. The HC is physically built on this bipartite system, with seats on 2 sides of the room. It is a system based on an adversarial setup, with majority and opposition facing each other.
In the House of Commons, there are a number of officers.
The Speaker is the person who chairs the debate
There is also a Clerk of the House, who advises the Speaker and the MPs on the rules of procedure in House of Commons.
Cross-benchers are those who are not members of any side.
Some members of the majority party are also members of the Government. Some members of the opposition are members of the shadow cabinet.
When Parliament emerged, its powers were not clearly defined. In those remote times the modern distinction between executive, legislative and judicial were not as clear as it is today. Parliament had both judicative and legislative powers, and the 2 were not perceived as being different
It is between 1529 and 1536 in the Reformation parliament that legislation became more distinct to adjudicative powers. Under Henry VIIIth, wanting to divorce, launched the British reformation, took the head and English church and thus allowing him to divorce. Through this process, Parliament acquired it pre legislative powers.
Indeed the continuation of the legislative and adjudication went on, and ended until recently (Constitutional reform under Tony Blair)
The question of separation of powers is still actual. Parliament is the source of executive power in England. Executive and legislative power are still rather confused today.
Parliament is considerer as the major source of law, the source of the prevailing law: statute law (the name statue reflects the original confusion between the powers).
Parliament transforms bills into acts, through a procedure called enactment.
The House of Lords
In the Commons, before the Reform bills, you had to be a land owner. Also you could vote several times. The right to be represented was very much associated with the owning of properties.
Until 2005, House of Lords was composed essentially of major land owners, the aristocracy; The House of lords was composed of up to 1000 members, later reduced to around 700 members.
Before 2005, the House of Lords was made up of unelected members. Theses unelected members fell into 3 or 4 categories:
– the Lords temporal (linguistic anomaly, adjective should be first : this is a trace of law French used until late 17th century).
o Hereditary Peers (“seigneurs séculiers”) (the original category). Peer (“paire”) Careful of the word peers. Peer can also have the meaning as “your equals”. But here it is in the sense of superior, member of aristocracy who by birth have the right to sit in the House of Lords.
They were the majority in House of Lords, even in 1265, which then had 730 members. (Barons, lords, viscounts, dukes…). Their power had been strongly diminished in 1911 by the Parliament Act (only a delaying power, no vetoing power) and 1949 Parliament Act Amendment which extended the same rule to all public bills
But the House of Lords continued to be a house of unelected members. This of course for people in France is shocking. Tony Blair’s worked in that long tradition of the Labour Party. He brought to fruition this criticism by having the Constitutional Act in 2005.
o Life peers : As part of this move, the Life Peerages Act in 1958. This resulted in the creation of a new category.
Appointed by the Queen on advice of the Prime Minister, for merit. This introduced an other element: the idea of merit. IE ; Margaret Thatcher became a life peer after she lost the elections.
– The Lords spiritual: Lords from the Church. This also must seem very strange to people in France that in a country long considered a model of democracy there should be representative of the church. Not of any church, but representative of the Church of England, the official church of England.
These peers are the archbishop or York, Canterbury, London, Westminster, Durham and 21 other diocesan bishops.
– The Law Lords: the House of Lords was the highest court of appeal of the United Kingdom, through which the law of United kingdom despite its diversity was unified.
In 1866 the House of Lords had been threatened destruction but was maintained in 1866, the Appellate Jurisdiction Act, which instituted instead of the House of Lords, the Judicial Committee of the House of Lords(spelling Committee) and nominated 12 Lords of Appeal in Ordinary, to compose that court. These Lords of Appeal in Ordinary were commonly called Law Lords. They retained their title only during their life. But each one of them had by right a membership in House of Lords.
We have on one hand the House of Common out of which the Government emanates. On the other we have the House of Lords which used to be made of aristocratic members, but was not only involved in legislation, but also involved at the highest level in judicial powers.
But despite all these, England was a model of democracy in 17th century.
The Constitution Reform Act has brought a change in the composition of the House of Lords.
Today, peers which used to be 700, have been reduced to 92. Peers no longer have a right by birth to sit in the House of Lords. Lords spiritual continue to sit, Law Lords for the time being but they will soon be members of the Supreme Court. The Supreme Court will move in a building next to Parliament. Justices will become exclusively members of the new Supreme Court.
This act suppresses the right by birth, and replacement by a system through which the Queen on the advice of Prime Minister and a special commission selects people who can be members.
December, 4, 2007
Reminder on Common Law
Donahue vs. Stevenson : illustrates the development of case law
Material facts : (material : synonym for relevant : pertinent).
The judges have to select the facts which are legally significant.
A poor woman, a woman without means, went to a café in Scotland, and was offered a bottle of ginger beer (stronger form of Canada Dry). The bottle was opaque. Ms. Donahue emptied the bottle to the last drop. The last drop was a dead snail (limace). She suffered a nervous shock and caught gastro-enteritis. She decided to bring an action against whom ? But who should she sue ? She decided to bring a suite to sue. In English law, action could have been brought by the owner of the café against the person who had manufactured the beer, because there was a contractual relation between him and the provider. But as Ms. Donahue has not bought the beer which had been offered. Nevertheless she brought an action against the manufacturer in a court in Scotland, which was in a different legal system. The initial court felt that this case could reach the highest court and was very general, called at the time de Judicial Committee of the House of Lords. To bring a case to this higher court, there must be a permission given by the House of Lords, and it does this only if the case is of sufficient general importance. There are 12 Law Lords, the Law Lords deemed that this case was of general public importance. Why ? Because the issue, the question in this case was the following : can there be a duty of a manufacturer towards the ultimate consumer, even if there is no contractual link between the 2 parties and even if there has been no fault on the part of the manufacturer (there would have been a fault if the manufacturer had put he snail internationally). Could there be a liability on the part of the manufacturer towards the ultimate consumer. Before this case, most judge would have said no. Bu the majority of the Justices held that there was a liability of the manufacturer towards the ultimate consumer even if there was no contractual relationship and even if there was no fault from the manufacturer.
Each justice give his opinion on his own name. A majority of justices must concur, but only on the decision, but not necessarily on the reasons of the decision. Therefore the reasons can be multiple, as multiple as the number of justices. Those reasons are called ratio decidendi. Those who do not agree with the majority decision are said to dissent. Their opinions are called dissenting opinions. Note that what the justice says is called an opinion.
Before that case even the best informed lawyer would have said that there is no such liability. Yet the judges would say that this had always been the law of England. 2 possible answers :
– first answer : the declarative theory of common law according to which the justices declare what the common law is, but are subject to mistakes. In fact, in the course of history, they gradually discover what the Common law is, but it has always been the same over the course of time
– second answer : the justices create Common Law. This is called the creative theory.
Chapter 2 : Parliament and the Government
Government has different meanings on the 2 sides of the Atlantic.
States: Government means the 3 branches of power.
To specifically designate the Government in the English sense, the term is the Administration
United Kingdom : the Government refers only to the executive.
The Government (UK) is synonym with the Administration (US).
A brief history
Originally (a rather theorical origin) the monarch ruled through the Curia Regis (The king’s Council) which was made up of earls, barons, bishops. This part of his council gradually became the House of Lords.
In course of history non noble members became members of the Curia Regis and later became the House of Commons.
The integrated powers of the Curia Regis came to be separated.
– Legislative in the Parliament
– Judicial to the Royal Courts
– Executive power remaining in the hands to the King, and a part of the Curia Regis called the Privy Council.
The monarch continued to exercise powers, but also judicial and legislative through a certain of councillor courts (i.e. : the star chamber)
The privy Council
As from the 17th century, the Privy Council with the development of Constitutional Monarchy lost most of its powers. But the Privy Council still exists, with diminished powers.
It issued orders in council, which are of 2 types.
– In accordance with a royal prerogative
ex: it is a royal prerogative to declare war. It is therefore through an order of Council that war is declared by United kingdom
– in accordance with a power granted by a statute
The Privy Council is also … to institute charter companies.
The Privy Council is also … for .. Ex: the General Medical Council.
It is also responsible for the appointment of high sheriffs in England and Wales.
Part of the Privy Council constitutes the judicial committee of the Privy Council, which is composed of the Law Lords (the same justices which sit in the House of Lords) which is the highest court of appeal for certain foreign British.
It is also a court of appeal for ecclesiastical courts.
And since 1998, it has been empowered with jurisdiction over devolution cases.
The Judicial Committee presently sits in Downing Street, but will shortly the Supreme Court in the restored Guild Hall.
Her Majesty’s Privy Council is composed of Privy Councillors, of which are the Cabinet members are.
These Privy Councillors, have a title: the Right Honourable…
Privy Council meets regularly, and it is organised by the Privy Council office, the PCO.
(17m30) see governmental websites
On the 2nd April 2007, most of the functions of the Privy Council have been reallocated to 2 ministries:
– Concerning the judicial comm.
Officially, the cabinet is still an emanation, an inner circle of the Privy Council.
The Cabinet began to emerge as a separate entity in the 17th and 18th century, when the Privy Council became too large to be efficient. It was first called the Cabal (communicates a sense of suspicion).
The cabinet would meet and be presided by the monarch to make decisions.
In the beginning of 18th century, the ….
The first Georges who ruled England at the time did not speak English. This resulted in a habit, which was that the King not understanding what was said stopped to attend. This habit solidified into a convention which is that the Monarch is forbidden to attend Cabinet meetings, when in fact he was originally rather bored. If Queen Elisabeth decided to impose her presence, the Government could impose a statute law to forbid this.
Gradually in the course of 18th century, it became the habit in the absence of the King, for one adviser to become more prominent that others. With the development of emancipation and right to vote, it became more obvious that the Cabinet should be made of the elected house of Parliament, the House of Commons (which became more and more representative of the people).
Gradually emerged this figure called the Prime Minister.
Today the Prime Minister is the leader of the party which has obtained the majority of the House of Commons through the general elections. The PM is more or less automatically the leader of the party which has won the election.
Which means than the executive and legislative bodies in England are not separated. The executive is an emanation of the legislative. Whoever is the head of the majority party becomes the Prime Minister. This is the fact, but not the theory. The theory is that the monarch chooses the Prime Minister (rather like the French President chooses the Prime Minister). But the monarch must choose the leader of the majority party.
The exception is when there is a hung parliament. A hung Parliament is where no party has a sufficient majority without coalescing, creating a coalition with another party. Then the monarch has a more important word in designating the Prime Minister. Is it exceptional in the bipartite system? This is an advantage of the first past the post system.
The Prime Minister is by convention the leader of the majority party.
The Prime Minister thus designated exercises all the powers which officially the monarch is empowered with. In other words, the Prime Minister today for at most 5 years, the Prime Minister is de facto, but not de jury, like a monarch. The Queen is the head of all the armed forces (royal air force, royal navy, and royal army…) but all the decisions are taken by the Prime Minister or the Minister of Defence. She is the source of all honours, but in fact it is the Prime Minister which decides. The prerogative to make war of peace is in fact exercised by the PM. Summoning or dissolving parliament…; is the same. The monarch also has residual judicial powers (he can grant pardons), but in fact it is the Secretary of the Home Office (intérieur) which decides whether the pardon should be granted.
All the powers have been devolved to the Cabinet.
The powers of the Prime minister are powers which it acquires through his election by the people.
There is also a web site on Prime Minister and Cabinet.
December 11th, 2007
In far away times, the King was assisted by a body o advisors which constituted the Court of the King (curia Regis), equivalent of the Anglo-Saxon Witan Moot.
This court devoted its powers to more specialised institutions. This was the case for the judicial power to the Royal courts and Court of chancery.
In the course of 17th, it devoted executive to the Privy Council, which itself lost its power to the Cabinet. The Cabinet was at first presided by the monarch. In the early 18th century, because the monarch’s mother tongue was German, a convention was setup that the monarch could not attend cabinet meeting. Cabinet meetings was presided by a figure which emergent at the end of the 18th century. Gradually in the course of the 19th century, its power rose. Gradually he became the officious monarch, a monarch for the duration of his government.
Thus one says that the monarch is the source of all honour. All those who have a title of nobility owe it to the monarch.
The monarch is the head of armies, signs treaties, summons and dissolves or prorogues Parliament. The monarch is the fountain of justice.
All these powers which are officially exercised by the monarch are in fact exercises by the Prime minister. The PM is an extremely powerful man. The Pm resides and has resided for a long time in 10 Downing Street
The central organ of Government is the Cabinet.
It is composed of 15 to 25 members. They are the ministers of the most important ministries.
The ministry (refers to the whole of the administration, all executive departments together). It is only from the beginning of 20th century it was used in a specific sense. Usage is more to speak about departments. The ministry is sometimes referred to the White Hall (because many of these departments have their headquarters in the White Hall Street.
The main departments:
– recently was used to be called the Lord Chancellor’s department was rebaptised along the French tradition, the Ministry of Justice;
– department for culture, media and sport
– the Home Office, is the equivalent of “Ministère de l’intérieur”
– Foreign and Commonwealth Office
– Department for transport
– Department for children, schools and families
– Department for innovation, universities and skills
– … of Business
– … of Health and rural affairs
– Her Majesty’s treasury
– Northern Ireland office
– Wales office
– Scotland office
– Department for work and pensions
– … for international development
– Ministry of defence
These departments have a dual head. A political head and a civil service head.
The political head of department usually has the title of Secretary of State (unlike Secrétaire d’Etat in France).
Home secretary (ministère de l’intérieur), Foreign office secretary (ministre des affaires étrangères)
Under the secretary, there are the ministers (which usually are underneath the Secretary)
There are also Parliamentary under-secretary of state.
Some have specific names: Lord of the Exchequer, Lord of the Treasury, Lord Chancellor (Garde des Sceaux).
The ministry and its different departments is also run by civil servants (fonctionnaires) who belong to the civil service. They are headed in each department by a …. He has an essential role. He knows the history of his department.
Working in collaboration or under a department, there are a number of executive agencies.
Ex : Her Majesty’s Court service (a recent name)
Alos non departemental public bodies (NDPB) : National Health Sericce, national Broadcastign Service
Also : non ministerial departments
As opposed to executive agencies and NDPB are named so to suggest their independence
Ex : the CPS : the Crown Prosecution Serivce, which is responsible fot the decision to prosecute, to bring an action in criminal cases (it is separate from the Home Office and Ministry of Justice).
Important issue in contemporary English politics
It is used in the present context to refer to the fact that under the Blair GVT is has been decided that power that were previously exercised by central government should be henceforth should be exercised by institutions in Wales, Northern Ireland and Scotland.
A more general process that French “regionalisation”.
Wales was incorporated in ????;
Following the death of …, in 1706 James VI became King of
In 1707, Act of Union: unification of Scotland
1800: Act of Union, United Kingdom
There has always been resistance to these unifications, in particular in Scotland and Ireland.
In 1922, part of Ireland…
In 1937: Irish republic; Ireland which is not a member of the Commonwealth.
Under the Tony Blair governments, and following efforts to resolve the Irish conflict. In 1998 the Belfast agreement, and then the Northern Ireland Act, devoted powers to the Northern Ireland assembly and executive assembly.
Results were not immediate. It is only very recently following the historic encounter between Ian Paisley (leader of the democratic unionist party, in favour of Northern Ireland remaining in UK) and Jerry Adams (leader of Sinn Fein, in favour of independence), that devolution has seemed to become effective in 2007.
Scotland similarly had a faction in favour of the independence of Scotland, ever since 1707. It is only recently that the Scotland Act, in 1998 has devolved legislative and executive powers, creating Scotland Parliament and executive body, lead by the First Minister with its cabinet, in what are called devolved areas (health, education, rural affairs, transport and justice).
The assembly meets in Edinborough, in Holy ROOD (???).
The same goes for Wales. Wales was incorporated in early 16th century. But even in Wales there had been tensions. A community defined the Welsh language and obtained satisfaction.
In 1979 there was the Wales referendum, and it turned out that a majority did not want any form of independence. In 1997, there was another referendum. Following 1998, the Wales Assembly was setup, also with a first minister, for economic development, local government, education, health, social justice;..
Moreover, there is something else which a decentralising aspect, local governments.
For a long time, England has given powers to local governments (authorities which run the country locally employs 2 millions people- teachers, fire fighters…)
Local government is directly in contact with governmental departments. In Scotland, Wales, Northern Ireland are more related to the devolved governments.
Chapter 3 : The making of statute law
The UK despite pressure groups that would like this to change does not have a Constitution in the French or American sense. It does not have a single document which distributes power into 3 branches and institutes the organs that exercise those powers, but is has a constitution in the non material sense, in so much as the powers are distributed and the organs are instituted, but in accordance with rules that have a variety of sources: statute law, case law (common law and equity) and conventions (unwritten law).
These rules divide and distribute power, institute the bodies which exercise them and provides for the way these bodies function.
The doctrine of Parliamentary sovereignty
It is probably the most important doctrine governing British institutions.
It is a rule according to which Parliament is the supreme legislator, the supreme law maker. This means that GVT is unlimited in its legislative powers. It can amend and abrogate its own laws. This is not the case with case law (it can distinguish, but it can officially not change).
This power is clearly incompatible with a Constitution in the French sense, because then the powers of Parliament would be limited by that Constitution. Officially, the Parliament is unlimited. The laws that the British Parliament enacts prevail over any other rule of law in the UK.
There is no law, national or international, which prevails over Parliament laws.
“The Parliament can do anything, except changing a man into a woman”
There is no high law that can limit the powers of the English Parliament, except the vox populi through the elections. The only limit is the voice of the people.
But some will say: what about European unions, international treaties.
The power of the Parliament includes the power to limit its own powers. But doing so it is a sign that it is the supreme law maker.
The British Parliament has limited its powers when it voted its membership to the EU. Is has accepted that EU legislation should prevail over UK legislation.
Is has accepted that is should follow directives and should implement their objectives through statute law. But it could also in the future decide to leave the EU.
Similarly, in 1998 the UK enacted the Human Rights Act. This also limits apparently the powers of Parliament. But this act could be abrogated or amended.
The limitation does not come from the Constitution, it comes from Parliament itself.
Similarly UK parliament has voted in 1998 that some of its powers should be devolved to the newly created assemblies. It has thereby limited its powers.
This expression Parliamentary sovereignty, is a little bit misleading because most statue law originates from the executive, in other words from the PM, the Cabinet and its ministers.
But what is the government in the UK? It is an emanation of the Parliament. In fact, what appears to be an objection, self defeats itself; we can say there again to refute that second objection,
The doctrine of parliament sovereignty gives a good account of how the British constitution works
In its restricted sense, bill means what French understand by a “projet de loi”. But it is sometimes used to mean the same thing as an act.
There are different types of bills: public bills, private bills and hybrid bills (typical of English classification: English love to propose classifications and show that they are pragmatically valid, but not ontologically valid). And yet another category: private members bill.
What is the purpose of bills and statute law?
In the French constitutional system, this seems completely stupid. In English system it has meaning because Parliament is not the only source of law. Much of the English law is judge made-law.
Why has the English system needed Parliament to make statute law?
The purpose of statute law is multifarious:
– To unify case law in certain domains
Case law develops case by case, and can give the impression of patchwork. It is rather difficult for lawyers to know what the law is in a particular domain. Ex: the effect of mistake in contract law, still today, you have to consider hundreds of cases. Once in while, from time to time, the Government feels it is useful to bring together all theses case into a single act, which has the effect of codifying that little domain of case law. Ex : in numerous cases had handed down regarding contracts of sale of goods; At the end of 19th century, Parliament voted a series of Sale of Goods acts. Or: case had developed regarding the use of unfair terms in contracts. Parliament voted the Unfair Contract Terms Act.
however, statute law as a whole does not form a code as in France
– To operate quick changes to the law
Case law is slow in its development. As slow as the judicial process. To change, there must be a case that can be distinguished. Parliament can change the law overnight. Those quick changes can be of 2 types :
o Innovation: create completely new rules of law (this was the case after WWII, when the GVT decided to set up the National Health Service, or more recently with the Constitutional reforms.
o Enables the quick implementation of EU directives
Bills of general public importance.
These bills are the most common types. They are usually introduced by the Government, by the head of one of the governmental department.
If it is a money bill, it is by an unbreakable convention introduced before the House of Commons.
Private members bills
Public bills which are introduced by a member of opposition, or by a cross bencher.
So public bills which are introduced by another MP, not by the Government.
3 ways to introduce such a bill:
– The ballot:
– The 10 minute rule:
– Presentation which required the private member to give notice that he wants to announce
Private member bills have very little chance of becoming acts. The Government which emanates from the parliament is the supreme law maker
Law which concerns sectors, sections of the public.
Theses bills can be introduced by companies or association, and follow the same procedure.
Private bills and private member bills have far lesser chance of becoming acts
Process of enactment
How a bill becomes an act?
The procedure can be divided in multiple ways
The procedure is repeated in the other House,
- First reading
- Second reading
- Committee stage
- Report stage
- third reading
- bill sent to other House (same procedure begins again)
- the Royal ascent
- the publication
The first reading
When it is presented to the House in which it has been introduced (money bills always in House of Commons).
It is the moment when the bill is simply presented to the House, and in 2 ways: in its short title (e.g.: factories act 1961) and the long title (gives the purpose of the bill: ex: an act to consolidate the factories act 1957 to 1959).
December 18th, 2007
Missing 50 mn
The law has a short title,
It is composed of chapters, sections and subsections
Most acts have an interpretation section which proposes definitions for terms: i.e. If a distance is specified, is it a bird’s flight or by foot, by car
There is also a citation section: it explains how this act must be referred to. (It contains the official short title and official long title)
The extent section: it specifies to which part of the UK the acts applies (some acts may not apply in every parts of the country). This was the case even before devolution began in 1998
There are also interpretation acts, which provided interpretation for all acts of parliament
Law which is made under the authority of Parliament, or directly from the executive.
Here again the powers of the executive are considerable. Indeed a statute in often written in way too general way to be immediately applicable.
They are created every year in thousands of pages by the executive. An Act of Parliament often enables, gives the power to a Ministry to provide instruments to
For an act, there should be an enabling power to put it into effect.
The statutory instruments are the legislative means in order to implement a statue, to make it applicable. The statutory are related to the parent act.
So not only the act of Parliament comes from the executive itself, but moreover Parliament enables the cabinet to provide the instruments to implement it; another illustration of the confusion between executive and legislative powers.
Orders in council
Order in council: a form of legislation which emanate from the Privy Council, of which current and past cabinet members are members.
These orders in council are a form of delegated legislation which operates in case of emergencies, but also following devolution the Privy Council has certain forms of delegated powers.
By-law: laws made by local authorities and other public bodies. There are therefore made by the local executives all over the country.
This power to make by-laws is often a power which is given by Parliament within a specific act.
The judicial process
How in the course of the judicial process the law is applied, how the law is interpreted. We shall see how in fact of judge made law and statute law are intermingled.
Chapter 1: The actors in the judicial process
Section 1: Executive departments and services
Here again, if we consider the principle of separation of powers which modern democracies claim to abide by, we can see that it is far from being achieved. But he recent reforms especially the constitutional reform of 2005 have exhibited an intention to promote the separation of powers.
The Ministry: all the offices
Within the Ministry, there is a ministry which is called the ministry of justice. It was created on May 2007. Before that, it was called in a typical British way, a department. (In the past, ministry had a dark connotation, related to communist and tyrannical regimes).
Ever since 1885 and until 2003, this ministry used to be called the Lord Chancellor’s department (still 2 web sites: the Lord Chancellor’s, the Ministry of Justice, and also the Department for constitutional affairs (used between 2003 and 2007))… The name of the ministries is significant.
The Lord Chancellor
He was a figure who in itself but even more so than the monarch, who does not really do anything today, this is a figure of the embodiment of the confusion of powers. Why?
According to order of precedence for ceremonies, the Lord Chancellor comes before the Prime Minister. He was and still is a highly important figure in the English political system. He officially was the second great officer in England and Wales (the first one was the First Lord Steward, not occupied since 1421).
The Lord Chancellor is ipso facto a member of the Cabinet (executive power). He used to be the speaker, the presiding figure, of the House of Lords (legislative power). Not only was he the head of the Lord Chancellor’s department, but he was also the head of the judiciary (he was the first judge of England) : as such he was member of the Judicial Committee of the House of Lord, and also the official President of the High Court of Justice, Chancery division, and appointments of the judiciary (la magistrature) were made for the most part on recommendation of the Lord Chancellor with the exception of the highest jobs.
The Constitutional reforms has changed this
The Lord Chancellor is the head the Ministry of Justice (and thus member of the Cabinet) but he is no longer the head of the judiciary (who is now the Lord Judiciary) and the Speaker of the House of Lords.
Moreover the Lord Chancellor today does not appoint members of the judiciary except through the recommendations of a commission that is called the judicial appointments commission, that is responsible for selecting candidates for the judiciary. The appointment of justices has been partly detached from the executive.
The English has been very much built on the adversarial architecture, as can be seen in the House of Commons and the House of Lords. But he House of Commons is considering of switching to a different architecture, closer to the French Parliament.
It is also the same in the judicial process.
Section 2 :Magistrates and juries
Section 3 : legal professions and parties
Chapter 2: Civil proceedings
Chapter 3 : Criminal proceedings
Chapter 4 : Judicial reasoning
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