The Scottish Legal System Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

In Europe there are two types of legal system. One being a common law system while the other being the civil law system [2] . The type of system used by England and wales is the common law system which gives more weight towards precedents which binds future decision based on past decision based on the doctrine of stare decisis which loosely means to stand by what has been decided. Common law, also known as case law in the England and Wales had developed because the reliance on customs which differs according to where one was staying was not enough to settle the needs of many. Thus through the Curia Regis or also known as the Kings Court, were sent to major towns across England to make judgements on important cases based on the old customs. Then they would discuss and compile the best customs to be used generally throughout England thus creating a uniformed system or common system which leads to the common law system being developed.

Over the years, the common law system had proven to be faulty in the sense that it did not meet its real purpose due to the many problems it had, such as the only remedy that was available was ‘damages’ and that an error in the formalities by the person making the claim would lose the case. Other problems are such as the usage of a writ which complicated the process and its expensive procedures. Many had petition to the king for justice who then hands it over to the king’s Chancellor or also known as the Lord Chancellor to handle it. There were a large number of petitions causing the Lord Chancellor to establish a court to listen to problems at hand. There were no precedents or common law application at this court which is known as the Court of Chancery, only what the Lord Chancellor thought was fair and justice was applied and proper remedies were also given. These new application in the Court of Chancery is known to be the rules of equity. For equity to apply there were equitable maxims that needed to be applied to the case at hand which worked as guidelines. As said above there were also new type of remedies which was only available at this court such as injunctions, rectifications, rescission and others. An injunction is a court order either to compel or prohibit the performance of an act, while rectification which applies in the law of contract changes the written document to reflect the real intentions of the party. Rescission is remedy where the party who enters into a contract goes back to the state before the contract was formed.

The common law courts and the Court of Chancery work as two separate entities but when the laws conflict with each other it is said in the Earl of Oxford’s case [3] where Lord Ellesmere the current Lord Chancellor at that time had issued a common injunction out of the Court of Chancery prohibiting the enforcement of the common law order. And also King James I had also intervened upholding the judgment made by Lord Ellesmere whilst saying that where there is a conflict between common law and equity, equity shall prevail. Later the two courts were merged by the passing of the Judicature Act 1873 [4] with much concentration on section 25 of the act, while the rules of common law and equity were not merged but practiced simultaneously. Although equity and common law is distinctive in nature, equity was made to complement common law due to its many problems.

Moving on, another source of law would be legislation made by Parliament. Note that England does not have a written constitution, hence making parliament sovereign according to A V Dicey [5] . Any laws made parliament would be hard to question due to its status. For any legislature to be passed, a draft of the law, known as a green paper or white paper which contains government proposals starts in the form of a bill in either one of the Houses of Parliament. Then debates and hearings will take place concerning the bill before moving to the other house, for example if it starts with the House of Common it will move to the House of Lords later on. The same procedure would be carried out in the other house. And at the end, the final house can either pass the bill for royal assent by the Monarch or if any amendments is needed the bill will be referred back to the appropriate house of parliament who started the bill. Some bills has a particular parliamentary session where once the session is over would mean the loss of the bill. Some bills that were particularly important were carried over to another session so it doesn’t seem like a lost cause.

This process is truly time consuming but for Parliament to release as many acts of parliament they can, they handle multiple bill readings just to increase productivity. Even with this there are still many problems that come with this legislative process such as it statutes are heard to interpret because of the word choice by Parliament and sometimes the internal structure of the Acts are illogical as the sections within the act does not make sense when reading in sequence. Other problems are when the party who holds a majority of Parliament tends to leave the opposing democratic party in the reading of the bills. There are some pros to this legislative process such as, laws made under the legislature can have a view on anything whereas laws made by the judiciary is only limited to the case presented to them and at times statutory laws can be made fast but it doesn’t mean it is good law.

Other than the laws made by Parliament, there are laws made by other parties under an enabling act. This is called secondary legislature or delegated legislature, where law is made by some other person or body rather than parliament. In this case there are three types of delegated legislation which is Orders in Council, statutory instruments and bylaws. Orders in council [6] are made by the Queen and the Privy Council which consist of the prime minister and other leading minister that makes law which can give effect to European directives, transferring responsibilities between government departments and can make laws in emergency situations. An example of when Orders in Council had been used can be seen with the Misuse of Drugs Act 1971 [7] where the amendment of specific drugs took place. The other type of type of is statutory instruments [8] are detailed rules and regulations made by the Government Ministers for areas under their responsibility. Statutory instruments can be short or long depending on the article included in the Acts of Parliament. This type of law making is a major method of law making as there is an average of 3000 statutory instruments every year for the past 4 years [9] . An example of where statutory instruments have been used would in the Police and Criminal Evidence Act 1984 [10] where the Minister of Justice had made police codes for police powers in relation to stop and search and detention. Lastly bylaws that are made by local authorities such as the County Council can pass law which can affect the whole country while a Town Council may only create law that affects the town area. An example of bylaws would be like, traffic control parking restrictions, littering law and others. It is noted that certain companies can pass bylaws within their premises.

Delegated legislation is far more effective than primary legislation as parliament does not have the time to deal with every detail and the complexity of regulations. Furthermore parliament does not have the specialty or technical expertise to handle every local matter and best dealt by the local authority. And as seen above that primary legislation takes a long time to pass a single act, does delegated legislation is much more preferred for during emergency situations. Although delegated legislation is better than primary legislation at times it does not follow proper procedures as laws made under the enabling act could be made by other parties rather than the parties stated in the act which is called sub delegation which wrong by the law. It is also said that the act of law-making is generally being taken away from the elected parliament which is still appropriate as long as there is sufficient controls by parliament. The problem shared by both the type of legislation is the way they word the law which can lead to complications of interpretation.

Moving on, European Union law which is a main source of law that has been in conflict with the parliamentary law ever since the membership of United Kingdom into the European Union. The European Union has 27 members with United Kingdom joining it in the year 1973. During that time, it was known as the European Economic Community and after the Maastricht Treaty in 1992 it became to the European Community [11] . This Treaty also created a new body being the European Union whilst retaining all the law from European Community. Recently with the Treaty of Lisbon 2007, the European Community would cease to exist leaving everything to the European Union