Part II of the series on the UK legal system that I have started as of recently.

1. Jesús Lorenzo Vieites
The UK Legal System
Part II
A SERIES OF GRAPHIC SKETCHES TO UNDERSTAND HOW THE UK LEGAL
SYSTEM IS STRUCTURED NOWADAYS.
Based on G. Slapper & D. Kelly’s The English Legal System, 11th ed.

2. The “rule of law”: What do we understand by it?.
Due to its lack of precision, the “rule of law” is a kind of symbolic ideal against which
proponents of widely divergent political spheres measure and criticise the shortcomings of
comtemporary State practice.
It is a clearly demonstrated fact that form and content of law and legal procedures have
changed substantially in the course of the hundred years before us. It is common to explain
those changes as being a consequence of the modern State intervention in everyday life
issues. Therefore, the more the State took control over the regulation of many areas of social
activity, the more it had to delegate wide-ranging discreationary powers to various people
and bodies in an attempt to ensure the successful implementation of its policies.
Constitutional Reform Act
IT IS ESSENTIAL TO APPRECIATE THE
CENTRAL IMPORTANCE OF THE CONCEPT
2005
OF THE RULE OF LAW TO THE WHOLE
STRUCTURE AND OPERATION OF THE
ENGLISH LEGAL SYSTEM It has for the 1st time recognised this
centrality in the form of a statutory provision

3. Constitutional Reform Act 2005 AV Dicey’s An Introduction to the Study of the Law
(1885) suggested 3 distinct elements, which
together created the rule of law:
An Act to make provision for modifying the office of Lord 1. An absence of arbitrary power on the part of the State
Chancellor, and to make provision relating to the
functions of that office; to establish a Supreme Court of 2. Equality before the law
the United Kingdom, and to abolish the appellate
jurisdiction of the 3. Supremacy of ordinary law
House of Lords; to make provision about the jurisdiction of
the Judicial Committee of the Privy Council and the
judicial functions of the President of the Council; to
make other provision about the judiciary, their In brief, the extent of the State’s power and the way in
appointment and discipline; and for connected which it exercises such power is limited and controlled by
purposes. [24th March 2005] law. Such control is aimed at preventing the State from
acquiring and using wide discretionary powers. From his
historical perspective, Dicey saw that the maintenance
of individual property and individual freedom to use that
property was paramount to an individual’s right of
In its Part I (The Rule of Law) this Act explicitly states choice. He was in favor of formal equality at the expense
of substantive equality, which means that he thought that
that: the law and the State should not take into notice the
It does not adversely affect: differences that exist between people, in terms of wealth
(a) the existing constitutional principle of the rule of law, or or power or connection, and should treat them all the
(b) the Lord Chancellor’s existing constitutional role in same, as possessors of abstract rights and duties.
relation to that principle.

4. There is an undressed and unresolved tension in Dicey’s work. The rule of law was only one of the two fundamental elements in the
English polity; the other was parliamentary soverignty. Where, however, the government controls the legislative process, the
sovereignty of parliament is reduced to the undisputed supremacy of central government. The tension arises from the fact that,
whereas the rule of law was aimed at controlling arbitrary power, parliament could, within its constitutional structure, make
provisions for the granting of such arbitrary power by passing appropriate legislation. This tension between the rule of law and
parliamentary sovereignty is peculiar to the British version of liberal government.
England The Continent (the case of Germany)
The revolutionary struggles of the XVIIth cent. delivered
effective control of the State machinery to the burgeoise class. The power of the legislatura was itself subject to the rule of law;
therefore, the State is subordinated to law (Rechtsstaat). The
State cannot make laws aimed at particular people and it is
also required to provide general law only.
Power was esercised by way of Parliament by this class, which,
after this century never was threatened by the State because
the State was the burgeoise. On the Continent, the burgeoise had to assert its power
against (and safeguard itself from) the power of a State
machinery that it did not control.
In England, in the XVIII & XIXth centuries there was no the
need for the burgeoise to protect itself against a type of
Rechtsstaat version of the rule of law because the middle
clases effectively control the parliament and could benefit
from the enactments and implementation of general laws.

5. A few thougths about “the rule of law”
“Stripped of all its technicalities the Rule of Law means that government in all its actions is bound by rules fixed
and announced beforehand”
“The Rule of Law implies limits on the scope of legislation, it restricts it to the kind of general rules known as formal
law; and escludes legislation directly aimed at particular people.” (F.A. von Hayek)
law should not be particular in content or
Which clearly means that…. application, but should be general in nature,
applying to all and benefiting none in particular.
“The law must be capable of guiding the individual’s behaviour; laws should be open and clear to enable
people to understand them and guide their actions in line with them; laws should be stable and should not be
changed too frequently as this might lead to confusión as to what was actually convered by the law. The
Independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line with
the law and not in response to any external pressure.” (J. Raz)

6. The rule of law and the contemporary form of law
While the State remained apart from civil society, its functions could be restricted within
a limited sphere of activity circumscribed within the doctrine of the rule of law.
However, as the State became increasingly involved in actually regulating economic activity, the form of law
had by necessity to change. It is in this context, when problems arise, that the State has to implement
mechanisms so as to deal with those problems effectively; and for doing so it is not enough to have a fixed,
predetermined system of rules: what is necessary is to have a State capable of assuming discretionary powers.
However, such discretion is antithetical to the
traditional idea of the rule of law and its limiting the NOW
State’s discretionary powers. Therefore, a change
or alteration in the nature of law has of necessity to
be introduced to confront this new state of facts:
 Legislation grants wide discretionary powers
 Reduction of courts power to control such activity
 Growth of delegated legislation (Parliament just
passes enabling Acts, empowering ministers to
 Legislation took the form of make regulations, as they consider necessary)
fixed and precisely stated  Such regulations tend to be highly particular in their
rules detail.
BEFORE  Law was completely  Increased use of tribunals with the participation of
non-legal experts rather than courts to decide
autonomous disputes.

7. The Judiciary and the rule of law
“I, , do swear that in the office of Lord High Chancellor of Great Britain I
will respect the rule of law, defend the independence of the judiciary and
discharge my duty to ensure the provision of resources for the efficient and
effective support of the courts for which I am responsible. So help me God.”
The Lord Chancellor’s oath, s 17(1), CRA,
2005
If, as the CRA recognises, the rule of law is an existing constitutional principle, then the judges will be required to
construe statutes in relation to that principle in such a way as to ensure that they do not infringe the constitutional
principle.
As the rule of law is an existing constitutional principle of the UK it becomes imperative to attempt to define
what it actually means. At the core of this idea, Lord Bingham of Cornhill (former most senior Law Lord) in a
lecture delivered at the university of Cambridge in November 2006 stated that: “all persons and authorities
within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly
and prospectively promulgated and publicly administered in the courts”.

8. 1. The law must be accesible 2. Questions of legal right 3. The laws of the land should
and liability should ordinarily apply equally to all, save to
and so far as possible
be resolved by application of the extent that objective
intelligible, clear and the law and not the exercise
predictable. differences justify
of discretion. differentiation.
5. Means must be provided for
The rule of law: resolving, without prohibited cost
or inordinate delay, bona fide
particular aspects civil disputes which the parties
themselves are unable to
resolve.
6. Ministers and public officers at all
levels must exercise the powers 8. The existing principle of the
conferred on them reasonably, in rule of law requires compliance
7. Adjudicative procedures by the State with its obligations
good faith, for the purposes for which
provided by the State in international laws.
the powers were conferred and
should be fair.
without exceeding the limits of such
powers.

9. Wherever law ends, tyranny begins (John Locke, 1632-1704, English
philosopher)
In the wake of the previous slide, we must say that…
…there is a reasoning behind the 1st requirement; that …the separation of powers is crucial in guaranteeing
is to say, if everyone is bound by the law they must be the integrity of the courts’ performance of their role to
able withouth undue difficulty to find out what the law check excesses on the executive power.
entitles even if that means taking advice from laywers.
…if the law is to apply to all, then the government
…HOWEVER, if ministers make public attacks on
will take the necessary steps to not allow distinction
between British nationals and foreigners.
judges, the judges may be provoked to make
similar criticisms of ministers, being the rule of
…people should be able to go to court, in the last law the casualty of this unsolited crossfire!!!
resort, to have their rights and liabilities
determined.
…a properly funded legal aid scheme should be HOWEVER, such costs derived from going
self-financing; that is to say, the cost of running the to court in order to get redress may
courts must be covered by fees recovered from preclude some people from gaining
litigants. access to the legal system!!!

10. …justice must manifestly and undoubtedly be seen to be done and open hearings must be crucial in this process
since ‘democracies die behind closed doors’ . But… what does fairness ordinarily require?
…Decisions must be taken by adjudicators who are INDEPENDENT and IMPARTIAL, which simply means that they
have to be free to decide on the legal and factual merits of a case as they see it, and free from any extraneous
influence or pressure. By being ‘impartial’ we must understand that they are so , as far as humanly possible, open-
minded, and unbiased by any personal interest or partisan allegiance of any kind.
Additionally a second element is involved which relates to the presumption that any issue should not be finally
decided against a person until they have had an adequate opportunity for their response to the allegation to be
heard. In short, this means that any person who is potentially subject to any liability or penalty should be
adequately informed of what is said against him; the accuser should make adequate disclosure of material helpful
to the other party or damaging to itself. Where the interests of a party cannot be adequately protected without
the benefit of professional help which the party cannot afford, public assistance should so far as practicable be
afforded; therefore, a party accused should have an adequate opportunity to prepare his answer to what is said
against him .
In short, THE INNOCENCE OF A DEFENDANT CHARGED WITH CRIMINAL
CONDUCT SHOULD BE PRESUMED UNTIL GUILT IS PROVED.

11. In the context of CRIMINAL LAW what do we understand by the concept of ‘disclosure’?
It relates to material in the possession of the prosecutor which they are for
reason of public interest unwilling to disclose to the defence. This material
need not be disclosed if it is in noway helpful to the defence; if helpful to
the point that the defence would be significantly prejudiced by non-
disclosure, the prosecutor must either disclose the material or abandon the
prosecution.
As a final point to the rule of law I may say that in democratic societies
the individual takes for granted that a consensus has to be reached
between himself and the State, the governed and the governor, by
which both sacrifice a measure of the freedom and power which they
would otherwise enjoy, ie. The individual accepts the constraints
imposed by the man-made laws because of the benefits which, on
balance, they confer. The State for its part accepts that it may not do
all that it has the power to do but only that which laws binding upon it
authorise it to do.

12. THE SEPARATION OF POWERS
What is the relationship between
parliamentary sovereignty and judicial
Is there any absolute
independence? limit to the actions of
the Government? If
not, who or what
The modern idea of separation of powers goes back controls the
to the English philosopher John Locke and the French Goverment? To what
philosopher Montesquieu extent the judiciary
 This idea arises from the existence of 3 distinct can legitimately
functions of government: oppose the wishes of
the Government The Royal Courts of
expressed in the form Justice houses about
Legislative
100 courtrooms. It is here
Executive of legislation?To
that most of the higher
Judicial answer this we have courts in London and
to focus on England sit: the High
There is also a strong conviction that such functions parliamentary Court, the Queen's
should necessarily be kept apart in order to prevent sovereignty and Bench Division, the
the centralisation of too much power. judicial Court of Appeal.
independence

13. The Constitutional Reform Act 2005
A clear understanding of the
imperatives of the separation of powers
led the Government to the introduction
of this Act. Consequently, the
anomalous position of the Lord
Chancellor (who was a member of all Parliament became the
three branches of the political structure) sovereign power in
was to be resolved and the House of England during the XVIIth
Lords, as the supreme court, was to be cent. The supremacy of
removed from its location within the Parliament is a construct of
the common law.
legislative body.
The independence of the
judiciary was secured in
the Act of Settlement 1701.

14. Former members of the senior judiciary adopted a too restricted interpretation of what was
to be understood by ‘judicial independence’. In this way, they had reduced it to the mere
absence of interference by the executive power in the trial of individual cases; the legal
system has the right to freely and independently operate, without the intromission of the
State (or at least, with the judiciary being free from the dictates and strictures of central
power.
With the passing of the Human Rights Act 1998 new ways opened up for the UK legal
system. By means of this Act, the courts were given the right to subject the actions and
operations of the executive to the gaze and control of the law, in such a way as to prevent
the executive from abusing its power.
After the announcemt in June 2003 that the judges’ role within the Uk
constitution and the removal of the figure of the Lord Chancellor
would take place there was, as expected, a strong judicial reaction
since, after all, most of the senior judiciary did think that the
independence would be best protected by a strong, legally
qualified , champion within the Cabinet (ie. The Lord Chancellor). (This
office has been in the legal system since its provision in the CRB 2003)

15. However, the judges’ resistance made off at retaining the office of the Lord Chancellor, though its
functions were greatly reduced, in the Constitutional Reform Act 2005.
Yet, under s 2 we can read that… and then, s 3 mentions, for the first time that…
Guarantee of continued judicial independence
Lord Chancellor to be qualified by experience (1)The Lord Chancellor, other Ministers of the
(1)A person may not be recommended for Crown and all with responsibility for matters relating
appointment as Lord Chancellor unless he to the judiciary or otherwise to the administration
appears to the Prime Minister to be qualified of justice must uphold the continued
by experience. independence of the judiciary.
(4)The following particular duties are imposed for
the purpose of upholding that independence.
(5)The Lord Chancellor and other Ministers of the
(2)The Prime Minister may take into account any of
Crown must not seek to influence particular judicial
these— decisions through any special access to the
(a) experience as a Minister of the Crown; judiciary.
(b) experience as a member of either House of
Parliament; “The judiciary” includes:
(c) experience as a qualifying practitioner; (a) the Supreme Court;
(d) experience as a teacher of law in a university; (b) any other court established under the law of any part
(e) other experience that the Prime Minister of the United Kingdom;
(c) any international court.
considers relevant.

16. Constitutional Doctrines and the English Legal System
From G. Slapper & D. Kelly’s The English Legal System, 11th ed, p 41