Comparative Law Spring 2003 Professor Susanna Fischer

Comparative Law Spring 2003Professor Susanna FischerENGLISH LEGAL SYSTEMENGLISH LEGAL PROFESSIONApril 10, 2003

U.K.: Constitutional Hereditary Monarchy

Head of State – the Queen (Queen Elizabeth II)Appoints bishops to Church of England, Chief Justice, highest ranking members of armed forcesCeremonial and integrating roleSee: http://www.royal.gov.uk/output/Page1.asp

UK - PARLIAMENTARY SYSTEM (Westminster Model)

Parliamentary systems, unlike presidential systems, typically do not have a separation of powers between the legislative and executive branches. Prime Minister (chief executive) is usually elected to the legislature like other members. PM is leader of the party that wins the majority of votes to the legislature (either de facto, or in some cases through an election held by the legislature). For link to FAQ on Parliament see: http://www.parliament.uk/faq/faq.cfm

PARLIAMENTARY SYSTEMSPrime Minister appoints Cabinet Ministers who are generally legislative members from the ruling party or ruling coalition. Thus, in a parliamentary system, the constituency of the executive and legislature are the same. If the ruling party is voted out of the legislature, the executive also changes.Need for cooperation between executive/legislative for govt to survive and operate effectively.

CABINETMeets once a week in 10 Downing StreetSee list of ministers in Her Majesty’s Government at: http://www.number-10.gov.uk/output/Page1371.asp

PRIME MINISTERTony BlairMP for SedgfieldLeader of Labor party Election after 18 years in Opposition (age 43)Won again in 2001 and 2005Wife: barrister Cherie Booth QCSee: http://www.number-10.gov.uk/output/page4.asp

English Court systemMagistrates Courts (1,000)Justices of the Peace (30,000), Clerks, District Judges (130)

Magistrates’ PowersCan normally only order sentences of imprisonment of up to 6 months, or fines of up to £ 5,000

County Courts218 in England and WalesSmall civil cases, e.g claims for debt repayment, including enforcing court orders and return of goods bought on credit, Personal Injury Breach of contract concerning goods or property Family issues such as divorce or adoption Housing disputes, including mortgage and council rent arrears and re-possession g.

County courtsGeneral hears civil casesPersonal injury up to £ 50,000Property cases up to £ 30,000

High CourtRoyal Courts of Justice: StrandChancery DivisionQueens Bench DivisionProbate Division

Crown Court

Court of Appeal

House of LordsPrivy CouncilNew Supreme Court (Constitutional Reform Act 2005)

English Legal ProfessionJudiciarySolicitorsBarristers

English Legal ProfessionJudiciarySolicitorsBarristersCompare judicial selection to the French system and the U.S. system – Constitutional Reform Act 2005How are judges trained in England?How can a judge’s appointment be terminated? How can judges be disciplined?

Judicial Independence in England?

What are some of the main questions that have been raised about judicial independence?

Questions Concerning Judicial Independence

Narrowness of ethnic background, sex, and age of judgesSecretive and discriminatory appointment processLimited trainingInsufficient procedures for criticism and dismissalPolitical system limits judicial independenceRight-wing bias?Influence of FreemasonryLack of specialization

English JudiciarySee Charles Yablon, Wigs, Coifs and Other Idiosyncracies of English Judicial Attire, Cardozo at: http://www.cardozo.net/life/spring1999/wigs/

The Lord ChancellorLord Irvine of Lairg

MAJOR TYPES OF ENGLISH LAWYERS

SolicitorsBarristersThere are also Public Notaries, who are solicitors or law students who pass the Notarial Practice exam and undertake a period of supervision

BARRISTERSHow many barristers are in private practice in England and Wales?What is the function of a barrister?What is a QC?Governing body: Bar Council – see http://www.barcouncil.org.uk/What legal work do barristers do?

CHAMBERSWhat are Chambers?

INNS OF COURTWhat are the Inns of Court?Middle TempleInner TempleGray’s InnLincoln’s inn

INNER TEMPLE GARDEN

INNER TEMPLE CROQUETMembers wishing to play croquet should collect the keys to the garden and the croquet shed from the Gardener. You should sign your name down when you take the key.

HOW DOES ONE BECOME A BARRISTER?

3 TRAINING STAGESACADEMICVOCATIONALPUPILLAGE

SOLICITORSHow many solicitors are in practice in England and Wales? (Remember! Scotland has its own legal system)Most work in private practice; some also work as employed solicitors for the Government, the Crown Prosecution Service, or a commercial/industrial organizationWhat is the function of a solicitor?

BECOMING A SOLICITORHow do you become a solicitor? GCSE/3 ”A” LevelsUniversity (Law Degree or Not)If no law degree, CPE/Diploma in LawLegal Practice Course (“LPC”)Training ContractDO YOU HAVE TO HAVE A UNIVERSITY DEGREE TO BECOME A SOLICITOR?Can solicitors become judges?

CIVIL JUSTICE SYSTEMRecent major reforms

ENGLISH CIVIL PROCEDUREMajor reforms to the Civil Procedure Rules came into effect in April 1999

HISTORY OF THE CHANGE1994 Lord Mackay of Clashfern (Lord Chancellor) appoints Lord Woolf to carry out inquiry into system of civil justice

2 WOOLF REPORTS“Access to Justice” (June 1995)“Access to Justice” (July 1996)What problems did Lord Woolf see with the English civil justice system (in 1996 report)?

WOOLF: CRITICISMS OF ENGLISH CIVIL JUSTICE

High costs – ordinary people could not afford justiceExcessive DelayInjustice – unequal bargaining positions leading to unfair settlements, tactical manoeuvring, too much emphasis on oral evidence, difficulties in enforcement, Too much complexity

CIVIL JUSTICE SYSTEMMajor reforms spearheaded by Lord Woolf – “a new landscape for civil justice for the twenty-first century”. Access to Justice report 1996 and implementation of reforms in April 1999What changes did these reforms introduce?Are these reforms successful?Is the civil justice system moving to an inquisitorial system?

OVERRIDING OBJECTIVE - Civil Procedure Rules r. 1.1

Simplify litigationsave costsreduce litigation and litigation delaysBe fairProportionalityIn other words, change litigation culture…

CIVIL PROCEDURE RULES: PLAIN ENGLISH?

Many changes to terminology, which were designed to simplify: e.g. Plaintiff is now Claimant, Discovery is now Disclosure, Statement of Claim (High Court) is now Particulars of Claim, Pleadings are now Statements of Case

CULTURE OF CO-OPERATIONLetters before actionpre-action disclosuresPre-action protocolsCase managementPart 36 offers to settleADR

JUDICIAL CASE MANAGEMENT

3 tracks (small claims, fast, multi-track)SanctionsCosts – “English rule” not always followed

What do you think of the changes to the English system?