The British Government: The Legal System
The Law
Although Britain is a unitary state, England and Wales, Scotland and Northern Ireland all have their own legal systems, with considerable differences in law, organisation and practice. The law is divided into:
criminal law (prawo karne)
civil law (prawo cywilne) - regulates the conduct of people in ordinary relations with one another.
The legal system of England and Wales comprises:
common law (prawo zwyczajowe) - based on custom and interpreted in court cases by judges, has never been precisely defined or codified
equity law (system prawny stosowany w krajach anglosaskich jako uzupełnienie norm ustawowych i prawa zwyczajowego) - consists of a body of historic rules and principles which are applied by the courts.
parliamentary legislation
European Community legislation - applies throughout Britain. Derives from Britain's membership of the European Union, is confined mainly to economic and social matters; in certain circumstances it takes precedence over domestic law.
The Judiciary (sądownictwo)
The Lord Chancellor (Lord Kanclerz, przewodniczący Izby Lordów i minister sprawiedliwości) is head of the judiciary in England and Wales. His responsibilities include:
court procedure
the administration of the higher courts and many tribunals in England and Wales.
recommends all judicial appointments to the Crown - other than the highest, which are recommended by the Prime Minister
appoints magistrates; judges are normally appointed from practising lawyers. They are not subject to ministerial direction or control.
THE COURTS
Criminal Courts (Sąd Karny)
Summary or less serious offences, which make up the vast majority of criminal cases, are tried in England and Wales by unpaid lay magistrates - justices of the peace (JPs - sędzia pokoju), although in areas with a heavy workload there are a number of full-time, stipendiary magistrates (zawodowy sędzia pokoju). More serious offences are tried by the Crown Court (Sąd Koronny), presided over by a judge sitting with a jury of citizens randomly picked from the local electoral register. The Crown Court sits at about 90 centres and is presided over by High Court judges (sędziowie Sądu Najwyższego), full-time 'circuit judges'(sędzia sądu hrabstwa) and part-time recorders (adwokat sprawujący tymczasowo funkcję sędzieg).
Appeals from the magistrates' courts go before the Crown Court or the High Court. Appeals from the Crown Court are made to the Court of Appeal (sąd apelacyjny)(Criminal Division). The House of Lords (Izba Lordów) is the final appeal court in all cases.
Civil Courts
Magistrates' courts have limited civil jurisdiction. The Y70 county courts have a wider jurisdiction; cases are normally tried by judges sitting alone. The 80 or so judges in the High Court cover civil cases and some criminal cases, and also deal with the appeals. The High Court sits at the Royal Courts of Justice (Królewski Sąd Sprawiedliwości) in London or at 26 district registries. Appeals from the High Court are heard in the Court of Appeal (Civil Division), and may go on to the House of Lords, the final court of appeal.
The Home Secretary (minister spraw wewnętrznych)
The Home Secretary has overall responsibility for the criminal justice system in England and Wales and for advising the Queen on the exercise of the royal prerogative of mercy (prawo łaski) to pardon a person convicted of a crime or to remit all or part of a penalty imposed by a court. The Home Secretary can also send a case back to the Court of Appeal if fresh evidence emerges after a conviction has been made.
Scotland
The principles and procedures of the Scottish legal system (particularly in civil law) differ in many respects from those of England and Wales.
Criminal cases are tried in:
district courts - sąd okręgowy
sheriff courts - sąd okręgowy
the High Court of Justiciary - Izba Karna Sądu Najwyższego Szkocji
The main civil courts:
the sheriff courts
the Court of Session - najwyższy sąd cywilny w Szkocj
The Secretary of State for Scotland:
recommends the appointment of all judges other than the most senior ones
appoints the staff of the High Court of Justiciary and the Court of Session
is responsible for the composition, staffing and organisation of the sheriff courts. District courts are staffed and administered by the district and islands local authorities.
Northern Ireland
The legal system of Northern Ireland is in many respects similar to that of England and Wales. It has its own court system: the superior courts are:
the Court of Appeal
the High Court
the Crown Court
which together comprise the Supreme Court of Judicature. A number of arrangements differ from those in England and Wales. A major example is that those accused of terrorist-type offences are tried in nonjury courts to avoid any intimidation of jurors.
Tribunals
Tribunals are a specialised group of judicial bodies, akin to courts of law. They are normally set up under statutory powers which also govern their constitution, functions and procedure.
Tribunals often consist of lay people, but they are generally chaired by a legally qualified person. They tend to be less expensive, and less formal, than courts of law. Some tribunals settle disputes between private citizens. Industrial tribunals, for example, play a major role in employment disputes. Others, such as those concerned with social security, resolve claims by private citizens against public authorities. A further group, including tax tribunals, decide disputed claims by public authorities against private citizens. Tribunals usually consist of an uneven number of people so that a majority decision can be reached.
Members are normally appointed by the government minister concerned with the subject, although the Lord Chancellor (or Lord President of the Court of Session in Scotland) makes most appointments when a lawyer chairman or member is required. In many cases there is a right of appeal to a higher tribunal and, usually, to the courts. Tribunals do not normally employ staff or spend money themselves, but their expenses are paid by the government departments concerned. An independent Council on Tribunals exercises general supervision over many tribunals.
How does the British legal system work?
The administration of justice in Britain is independent of both Parliament and the Government. Every citizen has the right to equal treatment before the law. People accused of more serious crimes are tried in open court by a judge and jury. Less serious cases are tried by law magistrates.
Fines, probation or imprisonment may be imposed on a convicted person. There is a mandatory sentence of life imprisonment for murder throughout Britain. Life imprisonment is the maximum sentence of a number of other serious offences, such as robbery, rape and manslaughter (nieumyślne spowodowanie śmierci).
England and Wales, Scotland and Northern Ireland all have their own legal systems.
England and Wales
Responsibilities for the administration and management of the legal system are divided between various government departments and agencies, including:
The Department for Constitutional Affairs. The department has overall responsibility for the court system, the appointment or advising on the appointment of judges, the provision of legal aid and legal services and the promotion of reform and revision of English civil law.
The Department for Constitutional Affairs was created in June 2003 as part of continuing reforms of the former Lord Chancellor's Department.
The Home Secretary has overall responsibility for criminal law, the police service, the prison system and the probation service.
Scotland
The legal system in Scotland has legal principles, rules and concepts that are modelled both on Roman and English law.
The Scottish Executive Justice Department is responsible for civil law and criminal justice, including police, prisons and courts administration.
The role of the Scottish Parliament is to make laws in relations to devolved matters in Scotland.
Northern Ireland
Northern Ireland's legal system is similar to that of England and Wales. The Northern Ireland Office (Urząd do spraw Irlandii Północnej)under the Secretary of State, has responsibility for policy and legislation concerning criminal law, the police and the penal system.
What is the difference between a barrister and a solicitor?
The legal profession in Britain is divided into two branches: barristers (called `advocates' in Scotland) and solicitors.
Solicitors undertake legal business for individual and corporate clients, while barristers advise on legal problems submitted through solicitors and present cases in higher courts. Certain functions are common to both - for example, the presentation of cases in lower courts.
Barristers must pass professional examinations before being called to the Bar (dwokatura, palestra) (Barristers are known collectively as the Bar), and they must then serve an apprenticeship with a qualified barrister for one year.
Solicitors must also pass professional examinations and serve a two-year period of apprenticeship, called `articles', in a solicitor's office. Once qualified in this way, a newly admitted solicitor is supervised for three years.
The UK Legal System
Background and Constitution
There have been significant constitutional reforms since the Labour Government came into power in 1997, which make any description of the UK legal system before then out of date. The Labour Government immediately instituted a process of devolution, i.e., devolving certain areas of government to the component countries of the UK: a separate Scottish Parliament and a Welsh Assembly were established following referendums in the countries concerned. Ireland already had its Assembly, although this was not in operation (see below under Northern Ireland). In the context of these new legislatures the English Parliament is often referred to as `Westminster'. These devolved governments are dealt with in separate sections.
The UK is a signatory of the European Convention of Human Rights, and this has recently been incorporated into UK law with the passing of the Human Rights Act 1998. This allows for the provisions of the Convention to be applied directly by the UK courts.
The Court System
Civil cases at first instance are heard in the County Courts (for minor claims) or the High Court, which is divided into three divisions:
Queen's Bench Division (Wydział Ławy Królewskiej (Sądu Najwyższego))
Family Divison
Chancery Division - Wydział Kanclerski (Sądu Najwyższego)
Cases may be appealed to the Court of Appeal (Civil Division). Cases may be appealed from the County Court to the High Court.
The House of Lords is the supreme court of appeal. Its judicial functions are quite separate from its legislative work, and cases are heard by up to 13 senior judges known as Law Lords (sędzia m sądu najwyższego (członek Izby Lordów)).
In addition to the courts there are specialised Tribunals, which hear appeals on decisions made by various public bodies and Government departments, in areas such as employment, immigration, social security, tax and land.
Legislation
Legislation since devolution forms several separate entities:
United Kingdom legislation: applying to the whole UK
Welsh legislation (Statutory Instruments only)
Primary Legislation: Acts of Parliament
There are two main forms of primary legislation:
Public General Acts
Local and Personal Acts - are of specific and limited application only.
Scotland
Background
The Scottish legal system is in part separate from that of England and Wales. It has its own court system and legal profession. Scotland lost its independent legislative powers under the Treaty of Union 1707, when Scotland became part of Great Britain. In 1997 the new Labour Government carried through proposals for devolution, and the Scottish Parliament was set up following a referendum in the Scotland Act 1998. Elections were held in 1999. The Scottish Parliament can legislate in areas of domestic policy, but excluding foreign affairs, defence and national security, economic and monetary policy, employment and social security.
The court system is separate and different from that of England and Wales, and uses different terminology. The principal law officer is the Lord Advocate (prokurator generalny Szkocji). The Court of Session is the supreme civil court, subject to appeal to the House of Lords, with most civil jurisdiction being dealt with in the sheriff courts. The supreme criminal court is the High Court of Justiciary, the lower courts are the sheriff courts and district courts.
Legislation
Until the establishment of the Scottish Parliament, Acts of Parliament with specific application to Scotland were made in the Westminster Parliament. The first Act of the Scottish Parliament was passed in 1999, and they are on the Scottish Legislation website. This site also includes links to Scottish Statutory Instruments and other material.
Wales
Wales has been united with England administratively, politically and legally since the 16th century. Under arrangements for devolution a new Welsh Assembly was established in 1999 following a referendum (The Government of Wales Act 1998), giving powers legislate in domestic areas but excluding foreign affairs and defence, taxation, overall economic policy, social security and broadcasting. However, the National Assembly for Wales is restricted to passing subordinate legislation only.
Northern Ireland
Background
Northern Ireland was created in 1922 from the six protestant-dominated counties of the Irish province of Ulster. After centuries of conflict with Britain, in which the 'Irish question' was a major political issue, demands for home rule for Ireland were met by establishing two separate parliaments subordinate to Westminster. This proved unacceptable to the South and after negotiations leading to the Anglo-Irish Treaty of 1921, the 26 counties of Southern Ireland left to form the Irish Free State, now known as the Republic of Ireland. The six predominantly Protestant counties of the province of Ulster retained their own parliament under Westminster jurisdiction.
The present civil unrest between the Unionists (protestant) and the nationalists (catholic) began in the 1960s, and the British government assumed direct responsibility for law and order in 1972. The Northern Ireland Parliament was abolished, and replaced by a unicameral Northern Ireland Assembly, with a Secretary of State appointed by the British Government and serving as a member of the British Cabinet. The constitutional authority of this lies in the Northern Ireland Constitution Act 1973. This only lasted until 1974, when the British government took over direct rule of Northern Ireland (the Northern Ireland Act 1974). In 1998, following extensive negotiations, the Good Friday Agreement was reached and endorsed by referendum. A new Northern Ireland Assembly was created and legislation to implement the settlement was passed.
Legislation
Legislation applying to the whole of the UK can be assumed to apply in its entirety to Northern Ireland unless this is made explicit within the Act. Some Acts apply primarily or exclusively to Northern Ireland. Northern Ireland Orders in Council are Statutory Instruments applying exclusively to Northern Ireland under the Northern Ireland Act 1974, and which equate to primary legislation.
THE BRITISH LEGAL PROFESSION Explanatory Article by J.F. Mortimer, EFL teacher at Churchill House School, Ramsgate, Kent, UK |
For historic reasons, the legal system in Scotland differs from that of the rest of the UK. The Scottish legal system is based on Roman law (ie: a principle applied to a case), because of the ancient connection with France. After the Act of Union in 1707, the Scottish system was allowed to stay in place; however, most of the law is the same and the law laid down by Parliament is almost always followed in Scotland. The major area of difference is in landholding. The system for the rest of the UK is based upon Norman practice, ie: Case Law. There used to be travelling courts which tried cases and established precedents which were then followed by other courts. This system of precedents still continues. A typical example is the case of Lloyds Bank versus Bundy. In this case, a farmer called Bundy had borrowed money from Lloyds Bank against the security of his farm. The property was in his sole name, although he had lived at the farm with his wife for many years. Mrs. Bundy had not signed the bank documents for the loan. Mr. Bundy failed to repay the loan or make repayments and so the bank sued to get possession of the farm which it would then sell to recover its money. Lord Justice Denning (sitting in the highest appeal court) ruled that, as the wife had contributed to the house over many years, she was entitled to a share of it and that the bank had no right to deprive Mrs. Bundy of her home in order to satisfy the bank's demand for repayments. The bank would have to wait until the farm was sold at some future date. In other words, the bank's security was limited to Mr. Bundy's share of the property and, as the property was indivisible, the bank could not have the farm. The precedent set by this case sent shivers throughout the banking system as all banks had lent money to businesses against the matrimonial home which, more often than not, was in the sole name of the husband and the wife had not been party to the loan agreement. This precedent did not require a new law to be passed by Parliament; the precedent has become the 'law of the land'. So now, if I wish to borrow money from the bank against my house, my wife has to sign all the documents. There is also Statute Law, law laid down by parliament, which is superior to case law. There are basically two types of law.
Disputes between individuals - business contracts, divorce, libel, etc. A plaintiff brings a case against (sues) the defendant(s). As a result of the case, the plaintiff hopes to be awarded damages (a sum of money) or obtain an injunction against the defendant to prevent the defendant taking an action (or repeating a statement.) It is a civil offence to drive faster than the speed limit: a criminal offence to drive in such a way as to endanger life
Breaking the law - murder, theft, criminal fraud Cases are brought by the state - the Director of Public Prosecutions (DPP) and are referred to as 'The Crown versus the Accused.' (In Scotland, the cases are brought by the Procurators Fiscal) A Defendant is innocent until proved guilty 'beyond all reasonable doubt.' (In Civil actions, a case is proved on the 'balance of probablilities' ) If a defendant is found not guilty: he (she) is acquitted. The decision is called the verdict. COURTS IN ENGLAND AND WALES
The lowest level of court for trying minor offences and the first hearing of serious cases which are passed up to a higher court. Mostly unpaid members of the public (local businessmen, Headmasters) act as Justices of the Peace (JPs). The magistrates are assisted by a legally qualified clerk. In London and some of the other major cities, the main magistrates' courts are held by professional magistrates called Stipendiary Magistrates as they receive a 'stipend' or salary (about Ł70,000 a year). There are about one hundred of these magistrates, who are qualified solicitors. There are Magistrates Courts in all towns. Offenders under 17 years old are sent to Juvenile courts.
for criminal offences. In the larger towns, Judge and Jury (of 12 ordinary men and women). The Judge decides the punishment according to the law and taking into account previous offences.
for civil cases: Bankruptcy, Divorce, etc.
for more serious civil cases and appeals from County Courts. Three judges without a jury.
for appeals from criminal cases.
The highest court in the land. The Lord Chancellor presides over Law Lords. SOLICITORS deal with property and all forms of law. Some have right of appearance to appear in courts above the level of Magistrates Courts, but advocacy in the higher courts is mostly undertaken by: BARRISTERS usually specialise in particular areas of the law. Senior barristers 'take silk ' and become QCs (Queen's Counsel). They wear wigs and gowns in court as do JUDGES who are selected from barristers. Solicitors and barristers earn fees (a senior barrister can earn over Ł1million a year and senior solicitors several hundred thousand pounds). Judges are salaried (Ł100,000-Ł150,000), but they get a pension for which the other two have to make provision for themselves. A few solicitors (and barristers) now work for contingency fees in civil cases where the plaintiff would not be able to afford to bring an action. The legal team would get a share of the damages awarded. This is common in the US, but rare in the UK (so far). |
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