The English Legal System

734 Pages·2003·1.98 MB·English

by  Gary Slapper

THE ENGLISH
LEGAL SYSTEM
Sixth edition
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THE ENGLISH
LEGAL SYSTEM
Sixth edition
Gary Slapper, LLB, LLM, PhD, PGCE (Law)
Professor of Law, and Director of the Law Programme,
The Open University

David Kelly, BA, BA (Law), PhD
Principal Lecturer in Law, Staffordshire University
Cavendish
Publishing
Limited
London (cid:127) Sydney (cid:127) Portland, Oregon
Sixth edition first published in Great Britain 2003 by
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© Slapper, G and Kelly, D 2003
First edition 1994
Second edition 1995
Third edition 1997
Fourth edition 1999
Fifth edition 2001
Sixth edition 2003
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British Library Cataloguing in Publication Data
Slapper, Gary
The English legal system—6th ed
1 Law—England 2 Law—Wales
I Title II Kelly, David
349.4'2

Library of Congress Cataloguing in Publication Data
Data available

ISBN 1-85941-755-8

1 3 5 7 9 10 8 6 4 2
Printed and bound in Great Britain
PREFACE
A good comprehension of the English legal system requires knowledge and
skill in a number of disciplines. The system itself is the result of
developments in law, economy, politics, sociological change and the theories
which feed all these bodies of knowledge. A detailed knowledge of several
areas of law is indispensable, but students are also expected to appreciate the
historical development of many legal institutions, and the social and political
debates which surround legal issues.
It is also important to understand the legal theory underlying policies on
matters as diverse as the law relating to arrest, search and seizure; the
distribution of work among different types of court; the structure of legal
services; judicial review of administrative discretion; the operation of the
doctrines of precedent and statutory interpretation; plea bargaining,
contingency fees and public funding. Being proficient in this subject also
means being familiar with contemporary changes and proposed changes.
This book aims to assist students of the English legal system in the
achievement of a good understanding of the law, its institutions and
processes. It is also our aim to help cultivate in students of the system a
critical approach to current legal issues and problems.
Since the fifth edition of this book in 2001, the English legal system has,
once again, undergone major and comprehensive changes.
The courts have now decided over 200 cases involving the Human Rights
Act 1998, and important developments are digested in this text, including
cases like R v Benjafield, Mendoza v Ghaidan International Transport and Roth
GmbH v Secretary of State for the Home Department. The Court of Appeal’s
decision on entrapment in R v Looseley and cases involving civil liberties like
DPP v Avery have also been digested in this edition.
The effects of the Anti-Terrorism, Crime and Security Act 2001, the
Proceeds of Crime Act 2002 and the Nationality, Immigration and Asylum
Act 2002 are also taken into account. Cases with an important constitutional
and political element like R v Secretary of State for the Home Department ex p
Saadi and R (on the Application of Q) v Secretary of State for the Home Department
have been incorporated in the relevant chapters. The courts system has been
undergoing change, and we examine the latest proposals of the Civil Justice
Council for reforming the courts, and changes to the criminal court structure.
We also look at the Coroners’ Services Review Group 2002. Very significant
changes have been made to the way the legal professions work since the 2001
edition of this work, including the issue of direct public access to barristers,
and to the ways that the funding of the system operates.
A New Supreme Court for the UK?
An unusual development for the English legal system was announced by the
government at 6.00 pm on Thursday 12 June 2003. The primary purpose of
the announcement was to explain the details of the latest periodic reshuffle of
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The English Legal System
the Cabinet membership. However, although it had not previously published
a White Paper on reforms to the judicial system, nor any other public
discussion document, the government simply declared that it would be
abolishing the historic position of the Lord Chancellor and the Lord
Chancellor’s Department. It also announced its intention to create a Supreme
Court in which the most senior judges would sit outside the House of Lords.
These changes are unlikely to be fully implemented before the end of 2004.
Updates on any developments in this area can be found on the Companion
Website for this book (see p ii for further details).
It is proposed that a Judicial Appointments Commission be established as
an independent body to select new judges. It will take over responsibility for
doing so from the Lord Chancellor. The head of the Commission is to be
appointed by Lord Falconer of Thoroton, QC, the new Lord Chancellor (at
least for the next year) and Secretary of State for Constitutional Affairs, in
consultation with the Home Secretary. The three branches of government—
the legislature, the executive and the judiciary—will be technically closer to
being mutually exclusive than they are now because there will no longer be a
government minister heading the judiciary, nor a Cabinet minister who sits
as a judge in the highest court of the land.
As part of another proposed constitutional reform, the Lord Chancellor
will no longer sit as Speaker of the House of Lords and there will be
consultation on a new post which will be filled by someone other than a
minister. Lord Falconer, however, is currently the Lord Chancellor and chairs
the House of Lords in the customary way. He has stated, though, that he will
not, unlike his predecessor, sit as a judge in House of Lords’ cases.
Mark Littlewood, campaigns director of Liberty, the civil liberties
campaign group, said ((2003) The Times, 13 June):

At last there will [under the proposed system] be a clearer separation
between judges and politicians. Some may lament the abolition of a position
which has an even longer history than that of Prime Minister, but a modern
democracy needs to be based on sensible and logical rules, not on
anachronistic traditions. Making laws is a job for politicians, interpreting
laws needs to be left to the courts. This marks an important and welcome
step in securing and underlining the independent, non-political nature of
our legal system.

How far, however, the process will be de-politicised by the proposed system
is open to debate because the head of the Judicial Appointments Committee
will be appointed by a government minister: the Secretary of State for
Constitutional Affairs. Thus, the appointments will be made in the name of
someone only one step removed from the Cabinet.
The redistribution of the functions of the Lord Chancellor has been
debated since the Labour Party came to power in 1997. However, Lord Irvine
was the biggest obstacle to the reform that would have ended his roles of
Cabinet minister, head of the judiciary and Speaker of the House of Lords.
The debates on these themes are covered in this book in Chapter 1.
vi
Preface
Judges have become increasingly active on politically and socially
sensitive issues and, it is often argued, should be removed from the political
arena. Disquiet over the constitutional hybridity of the Lord Chancellor’s role
has been gradually increasing. In 2003, a report to the Council of Europe
called for the role to be dismembered, arguing it was a breach of human
rights’ guarantees on judicial independence and impartiality. The House of
Commons select committee on the Lord Chancellor’s Department had also
called into question the constitutional position of the Lord Chancellor.
The previous Lord Chancellor, Lord Irvine of Lairg, had, as we detail in
this book, embarked on a far-reaching programme of reforms to legal aid,
access to justice, human rights, Queen’s Counsel and court dress, including
wigs. He even promised to consult on a judicial appointments commission.
He was, though, not going to abolish his own office.
Alan Beith MP, chairman of the Lord Chancellor’s select committee,
welcomed the proposals for reform but said: ‘They do seem to have been
rather drawn up on the back of an envelope. We have had the proposals
before the consultation. For measures as far-reaching as this, there really does
need to be proper consultation first’ ((2003) The Times, 13 June).
The plans for change are in only the most simple and basic form in June
2003. So, much may change in 2004. The position of Lord Chancellor can only
be abolished by legislation and that is unlikely to be passed and implemented
before the end of 2004. In the appointment process for membership of the
American Supreme Court, candidates are vetted by the Senate in respect of
their political views. The judges have the power to declare legislation
unconstitutional. Will the same apply in the UK? The answer is, apparently,
no. Any Supreme Court in the UK would be staffed by judges who would
perform the same judicial functions as the present members of the Judicial
Committee of the House of Lords. They would not be able to invalidate
legislation. There has been no published proposal on all sorts of other key
matters such as whether any new Supreme Court would act, as in the USA,
with all members presiding (there are nine members in the US Supreme
Court) or whether it would, as now, sit in smaller panels of five. The role of
any new Supreme Court in relation to the Commonwealth countries over
which the existing Judicial Committee of the Privy Council now has
appellate jurisdiction is also unaddressed by the proposals.
We are very grateful to all those who advanced suggestions for
improvement of the book since the last edition; many of those suggestions
have been implemented in this edition. We have aimed to state the law as of
June 2003.
Gary Slapper
David Kelly
June 2003
vii
ACKNOWLEDGMENTS

We are very grateful to many people for their assistance, counsel, expertise,
good humour and patience, all of which have contributed to the writing of
this book. We are especially indebted to Suzanne, Hannah, Emily, Charlotte,
Jane and Michael.
Great thanks are due to Jon Lloyd at Cavendish Publishing from whose
professionalism, diligence and vigilance we greatly benefited. We are also
indebted for all the professional support given to earlier editions of this book
by Jo Reddy, Sonny Leong and Cara Annett. We are very grateful to John
Morris for excellent work on the updating of Chapters 3, 7, and 12, and to Dr
Michael Watson for his marvellous work in the updating of Chapters 4, 9 and
10. For very helpful comments on earlier drafts, we are indebted to Marilyn
Lannigan, Professor Hazel Germ, Liz Rodgers, Miceál Barden, Michael Fealy,
Steve Greenfield, Janice Richardson and David Stott. Thanks also to Frances
Gibb, Legal Editor at The Times, for her critical elucidation of the legal system.
A great debt also to Doreen and Ivor Slapper, David and Julie Whight, Raie
Schwartz, Emma Bland and Hugh McLaughlan.
viii
CONTENTS
Preface v
Acknowledgments viii
Table of Cases xxi
Table of Statutes xxxv
Table of Statutory Instruments xliii
Table of EC Legislation xlv
Table of Abbreviations xlvii
CHAPTER 1: LAW AND LEGAL STUDY 1
1.1 INTRODUCTION 1
1.2 THE NATURE OF LAW 1
1.3 CATEGORIES OF LAW 2
1.3.1 Common law and civil law 3
1.3.2 Common law and equity 3
1.3.3 Common law and statute law 5
1.3.4 Private law and public law 5
1.3.5 Civil law and criminal law 6
1.4 THE SEPARATION OF POWERS 9
1.4.1 Parliamentary sovereignty 10
1.4.2 Judicial independence 11
1.4.3 Parliamentary Commissioner for Standards 12
1.5 THE RULE OF LAW 14
1.5.1 AV Dicey 15
1.5.2 FA von Hayek 17
1.5.3 EP Thompson 18
1.5.4 Joseph Raz 19
1.5.5 Roberto Unger 20
1.5.6 Max Weber 21
1.5.7 The Rule of Law and the contemporary form of law 21
1.6 HUMAN RIGHTS DISCOURSE AND THE RULE
OF LAW 22
1.7 THE HUMAN RIGHTS ACT 1998 23
1.7.1 Cases decided under the Human Rights Act 29
1.7.2 The sentencing process 39
SUMMARY 53
CHAPTER 2: SOURCES OF LAW 55
2.1 EUROPEAN COMMUNITY 55
2.2 LEGISLATION 55
2.2.1 The pre-parliamentary process 56
2.2.2 The legislative process 57
2.2.3 The drafting of legislation 60
2.2.4 Types of legislation 62
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