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.’
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.’ 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’.
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 (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 Court, 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...