Commissioned Research Article
Title: Introduction to the English Legal
System
Author: Michael Holdsworth
Produced by citizED
(supported by the Training and
Development Agency for Schools)
AUTUMN 2006
More information about the series of
Commissioned Research Articles can be
found at www.citized.info
A SHORT INTRODUCTION TO THE ENGLISH LEGAL SYSTEM
The DfES key stage 4 guidelines for the teaching of Citizenship as part of the
National Curriculum state that in acquiring knowledge and understanding
about becoming informed citizens, students should be taught about:
‘the legal and human rights and responsibilities underpinning society and how
they relate to citizens, including the role and operation of the criminal and civil
justice systems.’1
One of the key skills that students should develop is the ability to ‘study, think
about and discuss topical political, spiritual, moral, social and cultural issues,
problems and events.’2 The guidelines recognise that this can only be
achieved through a growing awareness of the legal, political, religious, social,
constitutional and economic systems that influence lives and communities.
This article focuses on one of those systems, the English legal system.
However, recognising that this system of justice cannot be fully understood in
isolation, we begin with a brief comment on the UK’s constitutional
arrangements to show how the English legal system is the necessary product
of the concept that is commonly referred to as ‘the rule of law’.
Introduction
The classical understanding of Britain’s unwritten constitutional tradition is that
it rests on three pillars, namely:



parliamentary sovereignty;
the separation of powers; and
the rule of law.
To place the English legal system in its proper context, it is necessary to have
some understanding of these concepts and particularly the rule of law.
Briefly, parliamentary sovereignty refers to the legislative supremacy of the
UK Parliament. It means that there is no limit (apart from any self-imposed
limit) on the capacity of the House of Commons, the House of Lords and the
Crown to enact laws in the UK. The UK Parliament is the principal source of
UK law.
The separation of powers refers to the idea that there is some degree of
independence in the exercise of the different functions of government.
Conventionally, these functions are described as the legislative, executive and
judicial functions of government and can be seen most clearly in the work of
Members of Parliament and the House of Lords (the legislature), the Cabinet
1
2
www.nc.uk.net > Citizenship > key stage 4
Ibid.
2
(the executive) and the Judges (the judiciary). This separation is understood
as being beneficial to the healthy operation of democratic government as, in
theory at least, it provides a system of checks and balances that prevent too
much state power being concentrated in the hands of one group. The new
Supreme Court3, once in operation, will practically and visibly strengthen the
constitutional separation between the legislature and the judiciary, primarily by
taking judges out of the House of Lords. Current debate on the separation of
powers focuses on whether, in practice, too much power resides in the hands
of the executive.
The rule of law is something of an allusive notion that is difficult to pin down.
There are several classic formulations of what the rule of law is but perhaps a
glimpse of its essential nature can be seen by imagining each person in
society asking themselves the question:
Why should I obey the law?
This is one of those strange questions that we may ask ourselves from time to
time when we suddenly choose to question something that ‘seems’ both an
obvious and a given part of the social order. We grow up with a notion of the
law and often, its presence can seem as pervasive and constant as the air we
breathe. At the same time, we take the existence of the law, the making of
the law, the interpretation of the law and the application of the law for granted.
The International Bar Association’s ‘Rule of Law Resolution’ (2005) states
that:
‘The Rule of Law is the foundation of civilised society. It establishes a
transparent process accessible and equal to all. It ensures adherence to
principles that both liberate and protect.’
The truth, of course, is that everyone does not always obey the law, nor is
there always a consensus on what the law is or should be. However, the
maintenance of life in a modern democracy requires a willingness from most
citizens for most of the time to observe the laws, even when individually they
may not agree with them.
The rule of law, therefore, concerns the nature of the legal relationships
between individuals and between the individuals and the state. It also
concerns the range of processes through which the law governing those
relationships can be enforced and administered. Principal themes that have
grown out of the concept of the rule of law as it has developed in the UK are,
for example:


3
that the law should not be arbitrarily or capriciously administered by
those in power;
that all people are equal before the law;
Created by the Constitutional Reform Act 2005 and expected to begin operating in 2009.
3

that there should be a system to apply and interpret the law fairly and
for all citizens.
The rest of this article is precisely about this system - the English legal
system4.
If asking the question, “why should I obey the law?”, questions something we
usually take for granted, then we are fortunate to have had that luxury in the
past. Many countries do not have the benefit of the rule of law or a system of
justice that is regularly applied without fear, favour or prejudice. In more
recent times and especially since the recent growth of global terrorism, we
must become increasingly aware that we can no longer take the benefits of a
regular legal system for granted.
For further information see:
http://www.roldirectory.org/index.htm - the International Bar Association’s Rule
of Law Directory.
THE ENGLISH LEGAL SYSTEM
The sources of UK law
There are a number of law making institutions:
Institutions within the European Union (EU);
The UK Parliament and government;
The courts;
Regulatory bodies; and
International institutions
European Union Law
The EU was founded in 1957 and currently has 25 Member States with two
more countries, Bulgaria and Romania, joining on 1 January 2007. The UK
joined in 1973 and since then, the UK Parliament has bound itself to
incorporate EU law into national law. While the UK remains a member of the
EU, EU law takes precedence over national law. This means that the UK
Parliament is no longer the supreme law-maker and, for the time being at
least, it has limited its sovereignty.
The institutions of the EU
The Council of Ministers
4
This article does not deal with the content, application or enforcement of Human Rights law.
4
The Council is the main decision-making body of the EU and consists of one
minister from each Member State who is authorised to commit that State to
legislative proposals.
The European Commission
The Commission is made up of 25 Commissioners, one from each Member
State, appointed for a five-year term of office. The Commission directs EU
policy and brings legislative proposals before the Council for consideration.
The European Parliament
The Parliament consists of elected citizens from each of the Member States
and there are currently 78 MEPs from the UK. Interestingly, and unlike the
UK Parliament, the European Parliament has no direct law making powers. It
debates legislative proposals and is permitted to put questions to the
Commission and the Council.
The European Court of Justice (ECJ)
The ECJ is based in Luxembourg. It has 25 judges, one from each Member
State and 8 Advocates-General. The Advocates-General prepare an impartial
and independent legal view of each case which is presented to the ECJ for
consideration. The primary function of the European Court of Justice is to
ensure that the interpretation and application of the Treaty of Rome 1957 (the
EU’s founding Treaty) is observed. The ECJ has a wide jurisdiction over EU
law and can hear cases brought by any of the EU institutions, Member States
or individuals e.g. appeals from the House of Lords.
For further information about the institutions of the EU see:
http://news.bbc.co.uk/1/shared/spl/hi/europe/04/eu_institutions/html/introducti
on.stm
http://www.curia.europa.eu/en/instit/presentationfr/index_cje.htm - European
Court of Justice
The types of EU law
EU law can have what is known as direct effect. That means that the law
automatically becomes part of each Member State’s domestic law.
Furthermore, EU law can have what is known as either vertical or horizontal
direct effect. Vertical direct effect allows an individual to use a legal provision
to legally challenge the act of the state, government or public body.
Horizontal direct effect enables an individual or other body to legally challenge
private individuals or bodies.
The types of EU law are:
Treaties: Vertical and in certain circumstances horizontal direct effect
5
Treaties are the primary sources of EU law and do not need to be given legal
effect by the UK Parliament. Treaties can create individual rights.
Regulations: Vertical and in certain circumstances horizontal direct effect
Article 249 of the Treaty of Rome makes the effect of Regulations legally
binding in every respect in each Member State without that Member State
having also to implement the law. Citizens may rely on them both against the
state and against private individuals or bodies.
Directives: Vertical direct effect but not horizontal direct effect
Directives are binding on Member States who are then left to implement their
provisions into domestic law. In the UK, this is done either by Act of
Parliament or secondary legislation (see below) and there is usually some
scope for flexibility in the precise nature of the implementation. Once the
provisions become part of domestic law, they can also have horizontal effect.
Decisions:
Decisions are rulings on a range of different issues. They can be addressed
to Member States, individuals or other bodies and are binding on them.
Recommendations and Opinions: no direct effect
Recommendations and Opinions do not create enforceable rights but can be
influential on the application of EU law in a Member State or its interpretation
by the courts of that Member State. Recommendations and Opinions are not
binding.
EU case law:
Decisions of the ECJ set a precedent to be followed by lower courts in a
similar way to the common law tradition in England where judges make and
develop the law through following previous decisions. While the ECJ can bind
the House of Lords in the UK, the ECJ itself is not bound by its own decisions.
The UK Parliament and government
Parliamentary Sovereignty
Before joining the EU, Parliamentary Sovereignty meant that the law made by
the UK Parliament could not be challenged. When the UK joined the EU (then
known as the European Economic Community or ECC) in 1973 it did so by
passing the European Communities Act 1972. This effectively ended
Parliamentary Sovereignty so that EU law now takes precedence over
national law. In the case of R v Secretary of State for Transport, ex parte
6
Factortame (1990) this was put to the test and a conflict between a UK statute
and Treaty of Rome was decided in favour of the Treaty of Rome.
In recent years, law making powers have been devolved from the UK
Parliament to other regional democratically elected bodies e.g. the National
Assembly for Wales.
Primary legislation
In Britain, primary legislation is statutory and takes the form of an Act of
Parliament. Usually, about 80 or so Acts of Parliament receive Royal Assent
each year. Before it becomes law, an Act is called a Bill and passes through
the parliamentary process in draft form being subject to debate, amendments
and scrutiny by both Houses of Parliament. Once the Bill has been given the
assent of the Monarch it becomes an Act of Parliament. However, an Act
may not become legally ‘effective’ on the day of its assent, as the government
may provide for another day(s) to be appointed on which the laws in the Act
will come into force. An Act of Parliament can usually only be amended by
passing another Act of Parliament containing those amendments.
The House of Lords used to be able to prevent Bills from becoming law even
where the House of Commons voted in favour of them. It is now accepted
that this power is limited by the Parliament Acts of 1911 and 1949. It is
possible for the House of Lords to delay a Bill (apart from a so called ‘money
bill’ i.e. bills connected with the budget) for up to one year after which the
government can re-introduce the Bill and if it passes in the House of
Commons for a second time, it then becomes law. The prevailing will of the
House of Commons is due to MPs being the democratically elected
representatives of the citizens. Despite this, the power is used very rarely and
most recently in the controversial passing of the Hunting Act 2004.
Secondary legislation
Many people do not realise the huge amount of secondary legislation made
under the authority of an Act of Parliament. The Act gives authority to a
person e.g. a Secretary of State or other body to make the detail of the law on
Parliament’s behalf. For this reason, secondary legislation is also known as
delegated legislation. It takes a number of forms but the most used type of
delegated legislation takes the form of regulations or orders known as
Statutory Instruments and typically some 3,000 are made each year.
Secondary legislation is necessary simply because there is not time for
Parliament to deal with all the detail of information, nor would they necessarily
have the required specialist knowledge. There are parliamentary controls on
secondary legislation although these are sometimes criticised for being
insufficient. Delegated legislation has also been criticised for being
undemocratic because it can be made by unelected individuals, often without
a formal consultation process and with very little publicity.
For further information see:
7
www.parliament.uk
www.parliament.uk/bills/bills.cfm
www.opsi.gov.uk/acts.htm
8
The English courts
The courts are arranged in a hierarchical structure, an outline of which is
illustrated in the following diagram5:
5
Judicial Statistics, Annual Report 2005 (CM6799) (London, The Stationery Office, 2006)
9
It can be seen that the House of Lords6 is the highest court in the UK and its
decisions can only be overturned by a decision of the ECJ or the European
Court of Human Rights. (These latter two institutions can also overturn the
decisions of the lower courts.) The House of Lords should not be confused
with the second legislative chamber of Parliament. The House of Lords when
sitting as the most senior appellate court, consists of a number of Law Lords
who hear appeals which have been sent to them by the Court of Appeal and
which they have, in addition, agreed to hear. The direction of the arrows in
the diagram, show broadly the path of appeals upwards from the decisions of
the lower courts.
After the House of Lords, the Court of Appeal’s decisions are the most
authoritative and after those, the decisions of the High Court. The system
whereby judges follow the decisions of higher courts is known as the ‘doctrine
of precedent’ and it is this practice that has led to the development of the
‘common law’. England is a common law country and much of the minutiae of
the law and indeed some of the law’s most basic principles are judge made,
having been decided in cases heard in the courts. The common law can, of
course, be changed by statute.
Judicial Precedent
Briefly, judicial precedent means that a decided rule of law is followed in
similar cases until it is overturned or modified by a higher court. Where there
is no previous decision on a point of law then a court may make its own
decision, which may then be appealed in the higher courts.
Once a higher court reaches a decision, that decision is binding on all lower
courts in like-for-like cases. Courts must follow their own decisions, except
the House of Lords and the High Court. The High Court must follow the
decisions of its Divisional Courts and usually the later of two conflicting
judgments.
In 1966 the Lord Chancellor published a Practice Statement allowing the
House of Lords, in exceptional circumstances, the flexibility to change its view
despite there being a clear precedent to follow. This removes the possibility
of the law becoming too rigid and the risk that the doctrine of precedent could
restrict the healthy development of the law.
Precedent can be either binding or persuasive.
A past decision is binding if:

The legal point being argued in court is the same as the legal point that
was argued in the precedent
6
It is proposed that the new Supreme Court will take over the appellate function of the House
of Lords and certain powers of the Judicial Committee of the Privy Council.
10


The facts of the case are of a similar nature to those of the precedent
The precedent is a decision of a higher court
A persuasive precedent can come from statements within relevant judgments
from other courts which are higher or lower in the hierarchy, although the
more senior courts will be more persuasive. Dissenting judgments can also
be persuasive, as can the decisions of courts outside the English legal system
e.g. the European Court of Human Rights and the courts of Commonwealth
countries.
Statutory interpretation
Judges also play a role in interpreting Acts of Parliament and secondary
legislation. This is often necessary because words can sometimes have more
than one meaning and so interpretation can be confusing or ambiguous. The
traditional approach to statutory interpretation has been a literal approach
where the words are given their plain, dictionary meaning. This stands in
contrast to the approach that tends to be favoured in Europe, where judges
look to interpret the purpose of the law makers. This is known as taking a
purposive approach.
The literal approach tends to produce a very gradual, conservative and
restrictive attitude towards legal development; the idea being that judges
should not make law but simply implement what Parliament has decided. It is
now commonly accepted that judges do in fact make law and the purposive
approach allows judges to interpret what they think Parliament was trying to
achieve. It would be fair to say that there has been a steady move towards a
more purposive approach in the English courts. However, the literal approach
is still dominant and this is reflected in the various technical rules of statutory
interpretation to ascertain the meaning of a statute and the rules to aid the
interpretation of individual words.
Systems of justice upheld and enforced by the courts
The English legal system has a number of distinct systems of justice which
operate internally according to their own, often complex, procedures.
One of the most fundamental distinctions is between the criminal justice
system and the civil justice system.7 Indeed, the civil justice system could
itself be subdivided into, for example, the administrative justice system8 and
the family justice system.
For further information see:
www.hmc-service.gov.uk – Her Majesty’s Court Service
7
See the brief explanation of each system below.
Administrative law is a special sort of civil law that mainly concerns the interactions of
citizens with the state, especially where the state is making decisions affecting individual
citizens. Administrative law cases are mostly heard in tribunals specific to the subject.
8
11
www.dca.gov.uk – the Department for Constitutional Affairs website contains
links to the principal systems of justice enforced by the courts.
Regulatory bodies
There are a number of national regulatory bodies which have the power to
make rules and regulations which are binding on citizens in certain
circumstances. Usually, this rule making power is conferred by Act of
Parliament so the regulatory body becomes an agent of the government.
Such bodies include, for example:



The Financial Services Authority (FSA) – regulates the UK’s financial
markets and other financial activities in an attempt to ensure fairness
and transparency for investors and those who buy financial products.
The Law Society – regulates the provision of legal services by the
solicitors’ profession, especially professional conduct.
The Civil Aviation Authority (CAA) – regulates e.g. airports, air traffic
services and safety.
The practice of devolving power from central government to separate
regulatory bodies is increasing.
International law making bodies
There are a number of international institutions whose policies and rules can
become part of national laws e.g. shipping law, conventions of warfare, use of
the internet.
Development in communications, transport and the increasing awareness of
issues which affect everyone on the planet e.g. climate change, global
terrorism and genetic research will inevitably result in calls for law to be made
increasingly on an international rather than national basis.
The English Legal System in Practice
The provision of legal services
It is a common misunderstanding that all legal work is carried out by lawyers
through the courts. This is wrong in two respects:
Firstly, while there is a distinct legal profession consisting principally of
solicitors and barristers, many other people are involved in the English legal
system e.g. the police, magistrates, juries etc.
Secondly, many lawyers (particularly solicitors) rarely become involved with
the work of the courts. This is especially the case where a solicitor
specialises in what is known as ‘non-contentious’ work. Non-contentious work
involves acting for clients in areas where they have no dispute with another
party; clients simply want to organise their affairs legally and in such a way as
12
to reduce the risk of exposing themselves to any potential dispute in the
future. Typical examples of non-contentious work include housing law,
business and commercial law, wills and probate work. Even barristers, who
predominantly concentrate on advocacy work (representing clients in court),
carry out other work, for example, advising on a particular area of law in which
they have expertise. Indeed, some barristers working in areas such a taxation
or patent law may rarely ever appear in court.
The Judiciary
The Lord Chancellor is responsible for the Judiciary and also the government
Department for Constitutional Affairs. The appointment of Lord Chancellor is
a political appointment made by the Prime Minister. Traditionally, the role of
Lord Chancellor has been criticised on constitutional grounds for undermining
the concept of ‘the separation of powers’. This is because, until recently, his
office involved being speaker in the House of Lords, taking a seat in Cabinet
and being a judge and the head of the Judiciary. However, as a result of the
Constitutional Reform Act 2005, the House of Lords agreed to elect its own
presiding officer. The election took place on 28 June 2006 and it was
announced on 4 July 2006 that the first elected Lord Speaker was to be
Baroness Hayman. In addition, the Lord Chancellor is no longer a judge nor
head of the Judiciary.
Historically, the Lord Chancellor was responsible for judicial appointments.
However, as a result of the Constitutional Reform Act 2005, the Judicial
Appointments Commission (JAC) has been established. The JAC was
launched in April 2006 and its role is to assess, select and recommend
candidates for judicial appointment. The Lord Chancellor’s powers of judicial
appointment have as a result been reduced and this is seen as strengthening
the independence of judges.
There are different kinds of judges and the most common distinction is made
between what are known as superior judges and inferior judges:
Superior judges
Law Lords (their formal title is ‘Lords of Appeal in Ordinary’) sit in the House of
Lords.9
Lords Justices of Appeal sit in the Court of Appeal.
High Court Judges (also known as Puisne Judges) sit in the High Court and
are appointed to one of the three ‘divisions’ of the High Court i.e. Queen’s
Bench, Chancery or Family (see the diagram on page 8, above).
Inferior Judges
9
see footnote 6, above
13
Circuit Judges are full-time judges who sit in the county court or Crown Court.
Recorders are part-time judges that sit usually in the county court and Crown
Court.
District Judges sit in the county court and Magistrates’ Court.
It is important that judges are independent and are seen to be independent.
Judges cannot be sued for anything they do in connection with the exercise of
their office and senior judges have security of tenure which means that they
cannot be removed from office other than by the Monarch following a petition
from both Houses of Parliament. Judges have in the past been criticised for
being too conservative (both politically and socially) and personally
unrepresentative of the diversity that exists within the UK’s population. The
reforms brought about by the Constitutional Reform Act 2005 are, in part,
designed to remedy this.
For further information see:
www.legalservices.gov.uk – the Legal Services Commission
www.lawsociety.org.uk – solicitors’ regulator
www.barcouncil.org.uk – barristers’ regulator
www.dca.gov.uk – the website for the Department for Constitutional Affairs –
links to judicial appointments procedures and statistics
www.jsboard.co.uk – the Judicial Studies Board
http://www.judicialappointments.gov.uk/ - The Judicial Appointments
Commission
A brief comparison between the criminal and civil justice systems
One of the principal functions of the English Courts is to operate different
systems of justice which are distinct according to the area of law they deal
with and the court procedures employed.
A fundamental distinction can be drawn between the criminal and civil justice
systems. Broadly speaking, the criminal justice system enforces the criminal
law in the criminal courts using its own criminal procedures. The civil justice
system enforces the civil law in the civil courts using its own internal civil
procedure rules. The main differences between the two systems are set out
below:
14
The criminal justice system – the basics:
The criminal law is a form of public law designed to prevent or enforce
certain types of behaviour and punish offenders. Criminal cases are heard
first in the Magistrates Court or the Crown Court. A prosecution is brought
by the Crown Prosecution Service (CPS) usually following police
investigation and arrest. The defendant will be tried by Magistrates in the
Magistrates Court for non-serious crimes or by judge and jury in the Crown
Court for serious crimes. In criminal cases, the burden of proof is known as
‘beyond reasonable doubt’ which means that the jury must have no
reasonable doubt in the their mind that the defendant is guilty of the crime
he is being tried for. If found guilty, the defendant can be fined and/or
imprisoned or made subject to a community order.
The civil justice system – the basics:
The civil law is a form of private law because it governs the relationships
between individuals in society e.g. contract law, planning law, company law.
Civil cases are heard principally in the High Court and the county courts
where allocation usually depends upon the size and complexity of a
particular case. The usual scenario is that a claimant will sue a defendant
hoping that the court will decide liability in his favour. The court has to
make a decision on the basis of what is known as the ‘balance of
probability’ where an assessment is made between what is the most likely
version of the facts of a case. Once liability has been decided, the victor
may be entitled to damages, usually in the form of a financial sum, or a
decision of the court in the form of an injunction or declaration, which may
for example, permit or prohibit a particular course of action.
The division between civil and criminal law is seen most clearly in the Court of
Appeal which has two divisions - the Court of Appeal (Civil Division) headed
by the Master of the Rolls and the Court of Appeal (Criminal Division) headed
by the Lord Chief Justice. However, it cannot be over-emphasised that to
view these two systems of justice merely through the internal workings of the
criminal and civil courts is to see only part of the picture:
The wider picture…
The criminal justice system
The criminal justice system involves a large number of different agencies that
interact with the courts to form the web of relationships that is the criminal
justice system. Such agencies include e.g. the police, the Crown Prosecution
Service, the prison and probation services and victim support services.
15
Furthermore, it is not just the criminal law itself that is constantly changing and
developing to meet new circumstances. Police powers and the law on
sentencing are also subject to review and recent tensions between the
legislature and the agencies who exercise these powers and laws have been
brought to the public’s attention by the media e.g. the number of days that
police can hold terror suspects for questioning or, in relation to the maximum
sentences serious offenders can be given by the courts.
The criminal justice system currently faces actual and proposed reform on all
fronts. For further information on the detailed working of the criminal justice
system and proposed reforms see:
www.cjsonline.org – the criminal justice system online
www.sentencing-guidelines.gov.uk
www.youth-justice-board.gov.uk
www.homeoffice.gov.uk – links to the British Crime Survey
www.magistrates-association.org.uk
The civil justice system
First, it is important to reiterate that only disputed issues of civil law see the
inside of a courtroom. That having been said, the structure of the civil courts
(see the diagram on page 8, above) is somewhat complicated and deserves
further explanation.
The county court hears all ‘small claims’ cases (usually under £5,000) and the
simpler ‘fast track’ cases of £5,000 - £15,000. Cases where the disputed
amount is above £15,000 are called ‘multi-track’ cases and these can
sometimes be tried in the county court. Complex cases above £15,000 will be
tried in the High Court.
The diagram also shows the three divisions of the High Court10. The divisions
handle different types of civil work and can be briefly characterised as follows:
10
In 2005, the Government consulted on whether to combine the county court and High Court
(including its divisions) to form a single unified civil court.
16
The Queen’s Bench Division deals with contract and tort (e.g. negligence,
libel and trespass) claims and the specialist areas dealt with in claims
brought before the Admiralty Court, Commercial Court and Technology and
Construction Court. When sitting as a Divisional Court, the Queen’s Bench
Division also deals with inter alia judicial review cases.
The Chancery Division deals with disputes such as personal insolvency and
the enforcement of mortgages, trusts and intellectual property matters and
the specialist areas of law pertaining to the Companies Court and the Patent
Court.
The Family Division deals with family related disputes, wardship cases and
other legal issues connected to child protection.
From this description of the nature of the High Court, it can be seen that the
landscape of civil law is vast. Civil law is, in effect, anything that is not
criminal law and focuses on the implementation, maintenance and protection
of legal rights and responsibilities e.g. the ownership of property or legally
binding agreements.
Despite the fact that a dispute in civil law is between two or more private
parties, the state maintains a civil justice system as a way of ensuring that
each party is capable of gaining a fair trial using procedures that are equally
applicable to each party.
The civil justice system has not been without criticism and an attempt was
made in the late 1990s to simplify the rules of civil procedure. Nevertheless,
the system still remains time consuming and complex with perhaps the
biggest criticism being the costs involved in bringing cases to court. (In the
same way that it would benefit the health system if doctors concentrated on
preventing illness, it would be equally beneficial to the civil justice system if
lawyers minimised the risk of cases going to court.)
One of the aims of the civil procedure reforms was to place a greater
emphasis on parties having the opportunity to use a variety of other means of
resolving disputes outside the court system. This has become known as
‘alternative dispute resolution’ (ADR) and includes e.g. arbitration or
mediation. Once the parties agree to such a route, the decision is legally
binding and in most cases, the parties benefit from the advantages of privacy,
speed and cost.
For further information see:
www.dca.gov.uk – the Department for Constitutional Affairs contains links to
various aspects of the civil justice system (including the Civil Procedure
Rules) and alternative dispute resolution.
www.hmcourts-service.gov.uk – Her Majesty’s Court Service
17
End piece
Hopefully, this article will not just have alerted the reader to the complexities
of the English legal system but will have helped to demonstrate the necessity
of such a system in a thriving democracy. Society needs both a robust and
yet flexible legal system which can maintain public confidence and also adapt
to new challenges.
We have examined the sources of English law and also seen something of
how those laws are applied, interpreted and enforced in practice, particularly
through the criminal and civil justice systems. It is impossible in such a short
article to go into the minutiae of the inner workings of those two systems of
justice but hopefully, the reader will feel equipped to refer either to more
detailed text books or the suggested web-sites for further information.
Michael Holdsworth
Oxford
November 2006
18