Legalease Home page
Law Lawmakers and Lawyers

 

Law Lawmakers and Lawyers

This section contains:

Introduction

UK law
  Why is our law so complicated?
  UK constitution and legal system
  Common law or judge-made law
  Administrative tribunals
  Judicial review of administrative decisions

  Prerogative power
  Statutory law

  Improving legislative and regulatory process
  EU law

  Brexit

  Improving the legal system
  Freely available legal information
  Finding the law
    Statutory law
    Case law
Law makers
  UK constitution
  Parliamentary sovereignty

  Referendums

Lawyers
  England and Wales
  Northern Ireland and Scotland

Introduction

The main purpose of this section is to provide an overview of UK and EU law: where to find it; what is in it; and[who makes it. We aim to make this as accurate and balanced as possible; it is however a summary for business people and others who are interested and is not an academic study.

In preparing this guide, we were struck about how complex the law has become and how difficult it is to gain access to it in a comprehensible way. So our secondary objective in these pages is to press for improvement in access to the law and reform of the way it is enacted. We also recognise where significant progress has been made.

UK law

Why is our law so complicated?

It is inevitable that law in a modern, capitalist society is complicated. The laws must protect the rights of individuals and enforce their duties, while allowing the state to regulate private and economic activity in the interests of society, promote and protect trade and commerce but prevent abuse of market power, allow entrepreneurs to make a profit but enforce tax rules to fund the government’s activities.

We describe in this section how there has developed in the UK the present immensely complicated legal system and legislative process. We also describe how law is currently made.

Legaleze comment: most business and all employment and tax law is based on UK parliament acts and applies throughout the UK. Therefore the majority of the law dealt with on this site is contained in UK law applying throughout the UK. Note: with apologies to the people of the other UK nations, this Site deals primarily with English law. Where there are significant differences, the Site will indicate this by use of the headings “EW” (England and Wales), “NI” (Northern Ireland), “S” (Scotland) and “W” (Wales).

We would appreciate hearing from any reader who feels a significant difference is not apparent. As to the future, it remains to be seen whether the law will be increasingly divergent in the three separate legal systems, and indeed also in Wales.

16/04/2013: Government launches The ‘good law initiative’


in April 2013 the Government launched the ‘good law’ initiative to make legislation more accessible and understandable for UK citizens. The Government wishes to start a dialogue around good law and how to improve UK legislation, by bringing together, law makers, legal experts and users.


The Government hoped that the initiative will build a shared pride in the quality of our law, and will create confidence among citizens that legislation is for them. The Government pointed to the benefits of new technology to help achieve the objectives of the initiative. It feels that the digital age enables us to explore the potential of tools for publishing and arranging law, and techniques for diagnosing and predicting how law is used. The initiative will build on other government projects to improve the users’ experience of legislation, including the launch of legislation.gov.uk and the Red Tape Challenge.


The launch of the Good law initiative also introduced a report by the Office of the Parliamentary Counsel on causes of complexity in legislation. The report suggests that there is no single cause of complexity, but many. One of the conclusions of the report is that while there are many reasons for adding complexity, there is no compelling incentive to create simplicity or to avoid making an intricate web of laws even more complex.

Legaleze comment: we welcome this initiative by the Government, which builds on the progress made by the development of www.legislation.gov.uk, the ‘Red Tape Challenge’, reforms proposed by The Law Commissions and the drafting practices of the Office of Parliamentary Counsel. However, we urge the Government to cast its net even wider. While the complexity of legislation is an important area, what is required to improve understanding of and access to the law is to:

* Improve legislation.gov.uk by:
- ensuring the text of primary legislation is updated more rapidly when amended or affected by later legislation;
- linking primary legislation to regulations or other subordinate legislation where a power to make the subordinate legislation has been exercised;
ensuring the text of subordinate legislation is updated to show the version revised by later amendments;
- linking the text of primary and subordinate legislation to reports of cases decided by courts and tribunals [admittedly this is a complex matter and would be a longer term aim];

* Improve access to court and tribunal decisions by:
- creating a central portal for such decisions with a good search facility allowing searches of interpretations of legislation and full text [one way might be to grant additional funding to the British and Irish Legal Information Institute;
- decisions which contain an interpretation of the law (be it legislation or previous cases) to be formatted with a summary at the beginning.

In the longer term, more radical measures are needed such as changes in the legislative process, better co-ordination with EU legislation, and even codification of the law.

UK constitution and legal system

The UK constitution is partly written, partly customary. Since the UK joined the EU, the EU Treaties form part of the UK constitution. The European Convention on Human Rights (which is not part of the EU legal system but is an instrument of the entirely separate Council of Europe) may also be regarded as part of the UK constitution.

Some law is common to the whole of the UK (and fortunately much of the business law covered in this Site), but there are separate and distinct legal systems in England and Wales, Scotland and Northern Ireland. Wales is developing its own body of statute law in the areas for which the Welsh assembly has competence.

Common law or judge-made law

In England and Wales, common law refers to the rules of law built up over centuries since the Middle Ages by decisions of the courts. In very broad terms, the principle of “stare decisis” means that lower courts will apply the legal principles laid down in previous decisions made by courts of the same or higher level if the facts of the case are not distinguishable. Such law is subject to statutory law, i.e. Acts of Parliament and regulations made by government under the authority of Acts.

Statutory law has become increasingly important relative to common law over the last hundred years or so; but court decisions are still very important in providing interpretation of statutory law.

Northern Ireland has a basically similar system of common law but there are differences from that applied in England.

In Scotland a different system of law developed based on codified Roman or civil law. However the Scottish system also developed a form of common law which has modified the law over the centuries.

The UK Supreme Court is the highest court. But there are two exceptions. If a question of EU law arises, it must be referred to the European Court of Justice for a ruling. Second, if a question arises on the interpretation of the European Convention on Human Rights, it may be appealed to the European Court of Human Rights.

The common law, or in other words the law made by decisions of the courts of England and Wales, Scotland and Northern Ireland will apply un less expressly or impliedly overridden by statute law. The courts also have a very important role in interpreting statute law in its application to individual cases.

There is no logical structure to the law. The common or customary law as developed by the courts has become increasingly overlaid by legislation. The law is an amorphous mass. There are no overall codes of the law, except in certain very specialised areas.See below: Improving the legal system.

The complexity, unpredictability and expense of the UK judicial system, particularly in relation to appeals can be seen in two recent decisions of the UK Supreme Court in the context of challenging decisions by HM Revenue and Customs (HMRC)..

The Supreme Court gave its judgement in the case of Anson v Commissioners for Her Majesty's Revenue and Customs [2015] UKSC 44 on 1 July 2015. The case arose out of assessments to income tax by HMRC upon George Anson who was resident but non-domiciled in the UK for UK tax purposes.HMRC had decided that Mr Anson was not entitled to any double taxation relief. Mr Anson challenged the decision of HMRC before the First-Tier Tax Tribunal (FTT). The FTT basically upheld Mr Anderson's claim that he was entitled to relief from UK income tax under the terms of the UK/US double tax treaty; see:[2010] UKFTT 88 (TC)

HMRC appealed the decision of the FTT (which consisted of two members) to the Upper Tribunal (consisting of one High Court judge) which reversed the decision of the FTT (see: [2012] UKUT 59 (TCC) (16 February 2012).

Mr Anson then appealed to the Court of Appeal in respect of the issues concerning relief from double taxation. The court (consisting of three Appeal Justices) refused the appeal (see: [2013] EWCA Civ 63). Mr Anson appealed to the Supreme Court which, after (unusually) two hearings, agreed with the original decision of the FTT and therefore upheld the appeal.

This meant that Mr Anson was finally successful in his challenge to the decision of HMRC in respect of income which he had earned between 11 and 18 years previously. 11 highly qualified judges were involved in this appeal process, four of whom disagreed with the arguments of Mr Anson. Mr Anson had to engage the firm of Ernst & Young and a team of barristers in order to defeat HMRC. We do not know the amount of costs incurred by each side but they must have been very considerable. It takes a very determined and wealthy taxpayer to contest a decision of HMRC in these circumstances.

Commissioners for Her Majesty's Revenue and Customs (Appellant) v Pendragon plc and others (Respondents) [2015] UKSC 37

Accountancy firm KPMG designed an “an elaborate scheme” [in the words of Lord Sumption in the Supreme Court] in order to reduce the value added tax (VAT) payable on demonstrator cars used by retail distributors for test drives and other internal purposes.

Pendragon plc and its group companies (Pendragon) are the largest car sales group in Europe. They used the KPMG scheme on two occasions, once in November and December 2000 and again in February and March 2001. HM Revenue & Customs (HMRC) challenged the legal validity of the scheme and sought to recover the VAT which Pendragon had avoded. HMRC claimed that the scheme was ‘abusive’ and imposed upon Pendragon VAT assessments and misdeclaration penalties.

Tax cases are generally heard by the First-Tier Tribunal (Tax Chamber) in favour of the present appellants. In this case, the Tribunal decided that the KPMG scheme was not abusive: [2009] UKFTT 192 (TC). HMRC appealed this decision to the Upper Tribunal which considered that the scheme was abusive and that the First Tier Tribunal had gone wrong in law; see [2012] UKUT 90 (TCC) (15 March 2012)

Having won in the First-tier Tribunal and lost in the Upper Tribunal, Pendragon appealed to the Court of Appeal which restored the decision of the First Tier Tribunal [2013] EWCA Civ 868. The Court of Appeal therefore allowed the appeal and restored the decision of the First-tier Tribunal. HMRC was not satisfied and made the final appeal to the Supreme Court. In that court’s leading judgment, Lord Sumption considered that the KPMG scheme had ‘exploited’ the VAT legislation.

Thus Pendragon succeeded in its case before 2 judges in the First-tier Tribunal over 8 days and before 3 judges in the Court of Appeal over 3 days, but lost in the Upper Tribunal before 2 judges over 6 days and finally in the Supreme Court before 5 Supreme Court Justices over 2 days.

Once a court or tribunal has ruled on a case, in general a party to the case may not re-visit the decision in other proceedings. This principle is known as 'res judicata' [case in which a judicial decision has been made]. See:

 What’s new item on this topic [see What’s new page or archive for full item]:

14/02/2014: Acceptance of FOS award precludes further compensation in the courts


http://www.bailii.org/ew/cases/EWCA/Civ/2014/118.html
Clark and another v In Focus Asset Management & Tax Solutions Ltd
[2014] EWCA Civ 118 Hearing Date: 14 February 2014.


The Court of Appeal held that as a matter of statutory interpretation, where Parliament was silent on an issue, the common law still applied, unless it had been excluded expressly or by implication. The rule was that no action could be brought on ‘res judicata’ [i.e. on a case in which a decision has previously been made]. The fact that s. 225(1) of the Act described the scheme as one for resolving disputes was a powerful indication that Parliament had not intended consumers to be able to bring legal proceedings as well as accept an award.

Administrative Tribunals

:Tribunals rather than courts rule on first instance legal issues arising between the State and private persons in a number of areas. Decisions of these tribunals (other than the upper tier) are not strictly legal precedents but are often of practical importance and interest to those doing business or otherwise involved in situations similar to those adjudicated upon by the tribunals. Tribunals are important particularly in the areas of:

* Employment


* Immigration


* Data protection and Freedom of Information


* Land valuation


* Leasehold enfranchisement and management cases


* Social Secuirity


* Tax:

Judicial review of administrative decisions

The High Court and higher courts have the power to review and overturn administrative decisions if made contrary to the principles of administrative law, except where statute law expressly forbids it or there is already a right of appeal.

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial review as follows:

* Illegality;

* Irrationality (Unreasonableness);

* Procedural impropriety; and

* Legitimate expectation

The same set of facts may give rise to more than one ground for judicial review. For further information on judicial review, see the Wikipedia article and the official Justice Department information on Judicial review and costs

Exclusion of right to apply for judicial review

The right to apply for a judicial review may be excluded by statute in a particular case, but the courts require very clear language to apply exclusion. In many cases, the statute provides for a right of appeal to an administrative tribunal or (in the older statutes) the Magistrates Court (see Administrative Tribunals above).

What bodies are subject to judicial review?

The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction

Professional regulatory bodies are in generl subject to judicial review, unless the relevant statute provides a specific right of appeal. See e.g. the CIMA case below.

Prerogative power

In earlier times, the monarch in England and Wales exercised the power of royal prerogativewhereby the monarch could take executive action, including the waging of war, without parliamentary consent (after Magna Carta). From the 18th century, the prerogative powers were increasingly exercised on the advice of the Prime Minister or the Cabinet, except in matters concerning certain honours and those relating exclusively to the Royal Family.

The High Court may strike down an attempt by the Government to exercise preogative power where it rules the only Parliament may legislate.

24/01/207:Government may not use Prerogative power to trigger ‘Brexit’ by ivoking Article 50

Procedural rules

Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:

* The application must be made promptly and in any event within three months from the date when the grievance arose. Specific legislation may impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough.

* The applicant must have sufficient interest in a matter to which the application relates This requirement is known as the requirement of locus standi, or standing.

* The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely tort or contract.

However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough.[5] Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits

The pre-action protocol states that it is usual for the Claimant to write a letter before claim to the proposed Defendant. The purpose of the letter is to identify the issues in dispute and to avoid litigation where possible. The protocol specifies a template for the letter. It is usual to allow 14 days for a response.

Reform

The Coaltion Government of 2010-2015 made proposals for the reform of judicial review. Legislation to implement the proposals was passed on 12 February 2015 in the Criminal Justice and Courts Act 2015.

 

What’s new item on this topic [see What’s new page or archive for full item]:

29/04/2015: Westminster Council partially successful in sex establishment licence fee appeal


R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) (Respondents) v Westminster City Council (Appellant) [2015] UKSC 25

This judicial review case concerned a challenge by a sex shop operator to the basis of charging a fee for the sex establishment licence. The Supreme Court allowed in part the City of Westminster’s appeal from the Court of Appeal decision but, on the critical question of whether it was lawful to require payment of the larger refundable amounts with the applications, decided to refer the question to the EU Court of Justice.

 

09/07/2014: Government liable for retrospective change in rules on Feed-in-Tariffs


Breyer Group plc and others v Department of Energy and Climate Change
[2014] EWHC 2257 (QB) Hearing Date: 9 July 2014


This “large and (in some respects) novel” claim arose out of the proposal by the Department of Energy and Climate Change (the defendant) which was announced in a Written Ministerial Statement on 31 October 2011 and a consultation document published on the same day, to bring forward the cut-off date by which certain Feed-in-Tariffs ("FIT") at a particular rate would be paid to generators (or their nominated recipients) involved in small-scale solar panel installations.


Comment: this case is a relatively unusual example of businesses successfully using the Human Rights Convention to base claims for damages against the Government. This was a decision of the UK High Court rather than that of the European Court of Human Rights; it remains to be seen whether the decision will be appealed.

27/06/2013: CIMA disciplinary ruling overturned by the High Court


R (on the application of May) v The Chartered Institute of Management Accountants
[2013] All ER (D) 274 (Jun) Alternative Citation [2013] EWHC 1574 (Admin)

This case concerned a challenge to a decision of the CIMA disciplinary committee.

Statutory law

Parliament is the supreme UK legislature, but it has surrendered or pooled to the EU the right to make laws in significant areas of trade and commerce, companies and legal entities, intellectual property, food and agriculture, environment and health and safety, financial services and so on.

Statutory law in the UK is to be found in approximately 4,000 current Acts of Parliament and over 50,000 statutory instruments, ignoring subsidiary regulations and local laws (source: http://www.legislation.gov.uk  as at January 2013).

Northern Ireland, Scotland and Wales each have their own legislature which has power to legislate in its own jurisdiction to different degrees. The first two have greater powers than the Welsh legislature. All three legislatures are subject to the legislation made by the UK Parliament.

Further information:

Further information on the UK Parliament and the legislatures of the devolved nations may be found at:

UK Parliament

Northern Ireland Assembly

Scottish Parliament

Welsh Assembly

Improving the legislative and regulatory process

In recent years, successive governments have introduced measures intended to improve the process of preparing legislation and framing regulations.

Draft Bills


Draft Bills are issued for consultation before being formally introduced to Parliament. This allows proposed changes to be made before the Bill's formal introduction. Almost all Draft Bills are Government Bills. Government departments produce Draft Bills and issue them to interested parties. MPs and Lords can also consider them in committees.

The practice of publishing Draft Bills has become more frequent in recent years. It allows examination and amendments to be made to texts and made more easily - before their formal introduction to Parliament as a Bill proper.

[Source: UK Parliament ]

Regulatory Policy Committee

The Regulatory Policy Committee (RPC)is responsible for:


• reviewing evidence and analysis supporting new regulatory proposals, and checking them before proposals are agreed by ministers


•ensuring the government’s estimates of costs and benefits to business as a result of regulation are accurate


•looking at small and micro business assessments within impact assessments


•settling disputes between non-economic regulators and businesses with reference to the new guidance on accountability for regulator impact


•working with similar bodies across Europe and internationally to contribute to a culture change to the development of regulation

The RPC publishes periodic opinions on regulatory policy.

[Source: Regulatory Policy Committee ]

What’s New items on this topic [go to the What's New page or archive for the full item]:

28/03/2015: Small Business, Enterprise and Employment Act 2015

The Small Business, Enterprise and Employment Act 2015 (the Act) was passed on 26 March 2015. The Act implements (among other provisions) a number of Conservative Government policy commitments on regulatory reform.

The 'One-in One-out' and (since 2013) 'One-in, Two-out'initiatives have provided a framework under which Government departments are required to ensure that business impacts are properly assessed before new regulatory measures are introduced and any new burdens are offset by a reduction in burdens elsewhere. Provisions in the Act are intended to ensure that these regulatory management procedures are put on a statutory footing. However the Government will reserve the right to decide on the choice of target and methodology.

In 2011, the Government set out its policy requiring a statutory review provision to be included in certain categories of new legislation, placing a legal obligation on the relevant department to carry out a review of the legislation and publish a report setting out the conclusions within five years of the legislation coming into force. There are now several hundred pieces of legislation in force that contain such a provision. The Act strengthens existing arrangements for ensuring that new regulations affecting business are subject to periodic review.

EU law

EU law in the form of Regulations is directly applicable without any legislation in the UK; e.g. regulations dealing with food and agriculture, and customs tariffs. EU law in the form of Directives must be transposed by UK legislation. Sometimes the UK (as do other EU state governments) fails to implement an EU directive, or does so imperfectly, giving rise to disputes.

The whole question of the supremacy of EU law and to what extent it should be competent to overide the sovereignty of the UK is a controversial issue. The Government is carrying out a Review of the balance of competences between the European Union and the United Kingdom. The review is an audit of what the EU does and how it affects the UK. This document is a guide to key elements of EU law, for reference in relation to the review.

23/07/2014: Government agrees EU Charter of Fundamental Rights applies in the UK


In April 2014, the House of Commons European Scrutiny Committee reported on the EU Charter of Fundamental Rights. The Committee’s report aimed to clarify issues relating to the role of the Charter which had been raised following comments made by High Court judge Mr Justice Mostyn in relation to the case of R (on the application of AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin).

The Committee concluded that the Charter applies in the UK where the government and public authorities are acting within the scope of EU law, and the Charter is directly effective in the UK, with supremacy over inconsistent national law, and can therefore be used both to interpret and enforce EU law, and so disapply national legislation based on EU law.

Brexit

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

This Supreme Court judgment made it that, notwithstanding the result of the European Referendum, the Government had no power to initiate the process of withdrawal from the EU without the authority of primary legislation.

 

The European Union Referendum Act 2015 paved the way for the referendum to be held in the UK and Gibraltar on whether the UK should remain a member of the EU. The Government committed to honouring the result. The referendum was held on 23 June 2016 and the result was a decision to leave the EU by 52% to 48%.

The Government wanted to implement the result without further legislation by invoking Prerogative power to trigger the UK’s withdrawal from the EU under Article 50 of the Treaty on European Union. However, as a result of the Miller case, the Government was obliged to initiate primary legislation for this purpose, leading to the enactment of the European Union (Notification of Withdrawal) Act 2017. The UK gave formal notification of its intention to withdraw to the European Council of its intention on 29 March 2017.

The European Council is now required to negotiate and conclude an agreement with the UK to set out the arrangements for its withdrawal. The EU Treaties will cease to apply to the UK on the earlier of the date of entry into force of the withdrawal agreement or two years after the notification i.e. 29 March 2019 unless the European Council agrees with the UK to extend the date.

More on Brexit.

 

Legaleze comment on improving the lawmaking system

Codification of the law


“I wish that the superfluous and tedious statutes were brought into one sum together, and made more plain and short.”

Edward VI (1537 – 1553)

[Source: GOV.UK; Crown copyright: contains public sector information licensed under the Open Government Licence v3.0]


Codes aim to present the law on a particular area in a logically coherent and consistent way. The most ambitious codes cover the whole of the law, or at least all civil law in one code. Examples are the Code Napoléon in France (1804), the Code Civil in Belgium (1830), the German Burgerliches Gesetzbuch (‘BGB’) of 1900, and other countries such as Switzerland (1907) and The Netherlands (1992).

Codes undoubtedly make access to and intelligibility of the law easier for both legal professional and the general public. It has not been the British tradition however. Codes are said not to be a British way of making law. The UK and England in particular has a robust tradition of common law.

A different way

“Well, here's another nice mess you've gotten me into” (Oliver Hardy: The Laurel-Hardy Murder Case 1930).


The government’s efforts at reform and deregulation are steps in the right direction. Yet more radical changes are needed before we can get out of this legislative mess. We need:


* Less law: more thoughtful legislators making less law and listening more to their constituents;


* Better drafted law: involve the practitioners who have to apply the law in real life cases
* Codification of law, not piecemeal law;


Is this going to happen? Probably not. But at least we can improve access to the law we do have.

Freely available legal information

Apart from our main purpose as a commercial service for SMEs, Legaleze aims to plug the legal information gap for SMEs and those wishing to start up in business.


We strongly believe reliable legal information should be available to all citizens and visitors, freely and online. Government bodies that create or control legal information should provide access to it so that it can be published by other parties.

Finding the law

If you do not know the name of the legislation or court case you are looking up, for business law the first port of call apart from Legaleze will be the GOV.UK site. This is the official government resource for businesses. It has replaced the previous Business Link site which was a useful resource for SMEs as well as those starting up their business. The GOV.UK site appears to contain less detailed information for businesses than Business Link but it does offer summaries of and point to relevant legislation on many areas of business law and regulation, It also has a wealth of information on practical business issues.

If the subject is not covered by GOV.UK, you will need to study a printed text book or online source on the law. This will require either a visit to a specialist reference library or to be paid for. Paid for online legal sources, such as Lexis Library and Westlaw UK, are expensive and normally unjustifiable for SMEs.  Lexisweb has a limited range of free statutory law and case summaries from 1997.

Failing that, you will have to rely on an internet search to point you in the right direction, perhaps from Wikipedia; however, while some of the content in such sources is reliable, it is difficult to be certain if the author is anonymous.

Legaleze comment: alternatively, consider subscribing to the Legaleze Premium Membership and using the Legaleze answer service.

UK statutory law

If you know the name (at least approximately) of the legislation you wish to look up, the legislation.gov.uk site maintained by The National Archives is an excellent resource. It does however suffer from certain limitations. In particular:

* Statutory instruments (“SIs”) are not shown in their amended form. SIs are frequently amended, sometimes many times, by later amending SIs. This is therefore a serious problem not entirely possible to overcome by careful use of the search facilities to find all later amending instruments. [It is difficult to accept why this is so because the work to prepare an consolidated amended version must necessarily be done by the draftsperson each time he or she amends the SI.]

* The legislation is not annotated with references to court cases which have interpreted the meaning of the text. To some extent this information can be obtained by research in the BAILII site (see below).

Case law and Court and Tribunal decisions

In addition to the development of the common law, the UK courts have an important role in interpreting statutory law. For decided cases, the British and Irish Legal Information Institute is an excellent resource. It is however not publicly funded and relies on charitable donations and volunteer support.

It is not comprehensive and does not contain all decided cases. Many reported cases are not on the site because the reporting and publishing legal decisions in the UK has been that of a privatised system since its inception over several hundred years.

The site is not organised by legal subject matter, nor is intended to do so. However, the extensive search facilities do go some way to overcome this problem.

The Incorporated Council of Law Reporting for England and Wales provides free case report summaries which can be accessed via a limited search facility. It is not clear from which date the summaries are available, and the search facility is limited to case name, neutral citation or date; there is no key word search.

UK Supreme Court and House of Lords: the UK Supreme Court has an online database of cases (with a limited search facility) decided after 30 July 2009.

For cases decided by its predecessor, the House of Lords judicial committee from 14 November 1996 to 30 July 2009, there are chronological lists of cases and the full text of the judgments (but no search facilities).

Employment Appeal Tribunal: this tribunal is a “court of record” so that its judgments set precedents and may be used in support of Employment Tribunal claims. There is a database of decisions since 1999, searchable by name of parties, date or subject.

Administrative Tribunals: Tribunals rather than courts rule on first instance legal issues arising between the State and private persons in a number of areas. Decisions of these tribunals (other than the upper tier) are not strictly legal precedents but are often of practical importance and interest to those doing business or otherwise involved in situations similar to those adjudicated upon by the tribunals. Decisions may be found:

* England and Wales:
http://www.judiciary.gov.uk/media/tribunal-decisions
covering the Upper Tribunal (Administrative Appeals) and First-tier Tribunals including (among others) Lands Tribunal, Tax and Chancery, Consumer Credit , Estate Agents, Information Rights, Land Registry Adjudicator,  Valuation Tribunals

* Northern Ireland:
http://www.nidirect.gov.uk/northern-ireland-courts-and-tribunals-service

* Scotland:
http://www.scotland.gov.uk/Topics/Justice/legal/Tribunals

 

Law makers

The UK Parliament evolved from the old Parliament of England. Upon union with Scotland in 1707 it became the Parliament of Great Britain and in 1801 it became the Parliament of Great Britain and Ireland. In 1922 upon the independence of southern Ireland, Parliament became the Parliament of Great Britain and Northern Ireland.


The UK Parliament enacts legislation (“Acts of Parliament”) for the whole of the UK. The combined body of Acts and Statutory Instruments and other secondary legislation made under the authority of Acts of Parliament we refer to as “statutory law”.


Parliament is the supreme legislative body. It is not bound by a written constitution as there is none, and it may revoke any law made by an earlier Parliament. In constitutional theory, Parliament consists of the House of Lords (“the Lords”), the House of Commons (“the Commons”) and the Crown and all three must agree to the passing of any Act.

The UK Constitution


Over the centuries a body of customs or conventions, and major Acts of Parliament, has developed into the present uncodified, partly written constitution of the United Kingdom.

After the Civil War in the 17th century, the UK constitution was radically reformed by the Bill of Rights of 1688/89.

Much later, and the Parliament Acts 1911 and 1949 curbed the poer of the House of Lords.

The right to vote was gradually extended from a narrow male property owning class to universal adult suffrage by the 19th century Reform Acts of 1832, 1867 and 1884 and the Representation of the People Acts in the 20th century, especially that of 1918 introducing universal male suffrage and votes for women over 30, and 1928 finally extending the suffrage to younger women.

What's new items [go to What's new page or archivefor full item]:

29/01/2016: Cities and Local Government Devolution Act 2016

The Cities and Local Government Devolution Act 2016 received Royal Assent on 28 January 2016. The Act applies to England and Wales only.

The Cities and Local Government Devolution Act 2016 makes provision for the election of mayors for the areas of, and for conferring additional functions on, combined authorities established under Part 6 of the Local Democracy, Economic Development and Construction Act 2009; to confer power to establish, and to make provision about, sub-national transport bodies.

 

Constitutional Reform

The Conservation/Liberal Democrat Coalition Government initiated a programme of significant constitutional reforms. The Fixed-term Parliaments Act 2011 established that Parliament should have a fixed term of five years.

The Parliamentary Voting Systems and Constituencies Act 2011 provided for the referendum, held on 5 May 2011, on whether or not the keep the existing first-past-the-post system or adopt the alternative vote. It also made provision to reduce the number of MPs from 650 to 600 and provide for a boundary review to make the sizes of constituencies more equal.Parliament voted in January 2013 to delay the boundary review this change would require. Section 6 of the Electoral Registration and Administration Act 2013 requires that the next review report by October 2018

The Coalition Government proposals for constitutional reform included the introduction of an electors’ power to “recall” an MP, i.e. to require a by-election of an MP in certain circumstances e.g. alleged wrong doing, and reform of the House of Lords to make it into a wholly or mainly elected second chamber..

What's new items [go to What's new page or archivefor full item]:

09/05/2015: HoC committee report on fixed-term parliaments—the final year of a Parliament


The House of Commons Political and Constitutional Reform Committee has reported on the final year of the first fixed-term Parliament.

28/03/2015: Recall of MPs Act 2015 passed

The Recall of MPs Act 2015 sets out a process by which a UK Member of Parliament may be required to vacate his or her seat in the House of Commons as a result of a successful recall petition, which will trigger a by-election. The fact that the MP loses his or her seat does not prevent the MP standing as a candidate in this by-election.

Legaleze comment: the Bill was fiercely criticised in some quarters, notably by Green Party MP Caroline Lucas and Conservative MP Zac Goldsmith. Critics object to the recall process which is seen as too heavily weighted in favour of the House of Commons establishment, rather than by the constituency electorate itself. Nevertheless, the Act represents a major constitutuional change for the UK.

The present UK Constitution

Although there are sometimes arguments and debates, very broadly, the system works as follows:


* The supreme legislative body in the UK is the “Queen in Parliament” comprising the roles of the Sovereign and the two Houses of Parliament;


* Election of members of the House of Commons must be held every five years, beginning in 2015 (Fixed-term Parliaments Act 2011);


* The Sovereign will appoint as Prime Minister the person who commands a majority in the Commons;


* The Prime Minister selects and the Sovereign appoints the senior ministers who form the Cabinet along with junior ministers who together form the Government;


* The Government (occasionally an individual member of the House of Commons or House of Lords) proposes legislation;


* The legislation is considered and if approved passed by the Commons and in turn considered and if approved passed by the Lords (or vice versa);


* The Lords by convention do not consider legislation dealing with taxes and the budget (i);


* The Lords may and often do revise proposed legislation;


* The Lords may not delay or amend a bill passed by the House of Commons in two successive sessions except in the case of a bill prolonging the life of a Parliament beyond 5 years (Parliament Act 1911 as amended);


* A simple majority in each House of Parliament is sufficient to pass or modify an Act; there are no constitutional or special laws which require a higher majority. This applies even to major constitutional or historical statutes such as Magna Carta, the Bill of Rights, the Parliament Acts, the Human Rights Act, the Constitutional Reform Act or the European Communities Act (see below);


* The legislation is submitted to the Sovereign for “Royal Consent” who by convention will always approve it;


* The Sovereign has the right to be consulted, the right to encourage and the right to warn;


* At the end of the 5 year term, or earlier if the House of Commons passes a vote of no confidence in the Government, a general election must take place for the election of Members of Parliament (which in this context means confusingly members of the Commons but not the Lords).

Note (i): 26/11/2015: Lords voted in favour of a motion to tax credit cuts

The Lords voted in favour of a motion by the former Labour minister Lady Hollis to halt the cuts until the government produces a scheme to compensate low-paid workers for three years. Downing Street subsequently announced plans for a “rapid review” that will examine ways to guarantee that the House of Commons always has supremacy on financial matters, after the prime minister accused peers of breaking a constitutional convention.

Parliamentary sovereignty

To the above must be added a comment on Parliamentary sovereignty. In theory, Parliament can make and unmake any law. There are obvious practical constraints; e.g. it would be futile for Parliament to try to repeal legislation regarding the independence of Canada or Australia. However there is legal controversy about whether Parliament has effectively surrendered part of its sovereignty to the European Union and the European Court of Human Rights. The better view is probably that it has not surrendered sovereignty; rather it has chosen to “pool” sovereignty with other nations by means of international treaties.

What's new items [go to What's new page or archive for full item]:

22/01/2014: EU Court of Justice rejects UK challenge against EU short-selling ban


The FT has reported that the UK has failed in its legal challenge against EU legislation giving the European Securities and Markets Authority the right to impose a ban on short-selling in emergencies. The Court of Justice of the European Union made the ruling despite the opinion of the Advocate General to the effect that the legislation lacked democratic legitimacy. The ruling upheld the use of the principle of the single market as the legal basis for the EU legislation.


The ruling is controversial as it may open the way for further legislation which a weighted majority of member states may enact without the need for the UK or any other member state to approve a change in the EU Treaty

10/06/2013: IoD report shows EU directive ‘gold-plating’ continues


Critics have accused successive UK governments of ‘gold-plating’ EU legislation, i.e. the practice of adding obligations or restrictions not required by EU rules when implementing them in the UK. The Coalition Government had the laudable ambition to end ‘gold-plating’ of EU legislation but it still has some considerable way to go before it can claim to have done.
So argues a report by the Institute of Directors (‘IoD’),‘The Midas Touch'.
http://www.iod.com/influencing/press-office/press-releases/gold-plating

Referendums

The UK has no codified or written constitution and therefore no legal obligation upon Parliament or the Government to hold a referendum on any particular issue whether it be regarded as a ‘constitutional’ issue or not. The very few referendums held in the UK were initiated by the government of the day.

As pointed out by commentators, the lack of rules about the holding of a referendum gives rise to a problem. As the use of a referendum in the UK at the discretion of government, it can be used to augment the power of government rather than limiting it, by allowing a government to bring the people into play against Parliament. Arguably that was the case with the devolution referendums.

However, conventions have grown up as to when the referendum ought to be used. These conventions, though in no sense legally binding, may serve to act as precedents constraining future governments.

The devolution referendums in 1979 and 1997 in the non-English parts of the United Kingdom imply that a referendum needs to be held before there is any significant devolution of powers away from Westminster.

The examples of the European Community referendum of 1975 and the referendum in London in 1998, seeking approval for the first directly elected mayor in British history, together with the promises to hold a referendum before joining the eurozone or changing the electoral system for elections to the House of Commons, would seem to show that a referendum is required when a wholly novel constitutional arrangement is proposed. This was further emphasised by Parliament’s enactment of the European Union Referendum Act 2015.

There is no obligation upon Parliament to follow the result of the Referendum but it would seem very unlikely if not inconceivable that it would ignore the result.

[Legaleze acknowledges with thanks the Memorandum by Professor Vernon Bogdanor, Professor of Government, Brasenose College, University of Oxford 31/12/2009 as a source of the above article but errors and omissions are the sole responsibility of Legaleze]

See also: Brexit

Lawyers

The legal profession is regulated separately in England and Wales, Scotland and Northern Ireland. Certain activities such as preparation of documents relating to land and to obtaining probate or administration of a deceased’s estate and conducting litigation, are reserved to lawyers who are members of one of the regulated legal professions.

The term “lawyer” is a generic one encompassing any person who practises the law. The terms “barrister” and “solicitor” and “advocate” are used for lawyers who are members of a regulated legal profession in the UK (called “regulated lawyers” in this section).
In recent years there has been a move towards greater liberalisation, in the senses of allowing outside investors to own partial interests in firms of regulated lawyers, and to allow a certain amount of direct access to barristers without the requirement of instructing a solicitor.

In England and Wales there is a separate profession of licensed conveyancers who are permitted to do conveyancing work, i.e. the transfer of real estate.

Against the trend to liberalisation, there are pressures to restrict the writing of wills to regulated lawyers.

England and Wales


Generally, barristers and advocates have the right of audience in the higher courts, although in England and Wales some solicitors may qualify as solicitor advocates with rights of audience.


Certain “reserved activities are restricted (Legal Services Act 2007) to registered lawyers including:


* exercise of a right of audience


* conduct of litigation


* preparation of documents relating to registration of title or real property


* preparation of papers for proving wills or obtaining administration of an estate


* notarial activities


* administration of oaths.

Solicitors and barristers are regulated by professional codes of conduct. Solicitors are regulated by the Solicitors Regulation Authority (SRA), which is formally part of The Law Society of England and Wales but statutorily independent of it. Their website is at www.sra.org.uk

Solicitors are required to provide written terms of business setting out the work they will do, the status of the persons doing the work and how the fees will be calculated. They must have a complaint procedure. They must maintain professional indemnity insurance in case of claims for poor work being made successfully.

The Legal Services Act permits the SRA to authorise “alternative business structures” (“ASBs”) which are entities in which 10% or more of ownership or control is held by non-lawyers. Co-operative Legal Services (part of the Co-operative Group) became one the first ASBs in March 2012.

Any person is free to offer advice outside the reserved activities so long as they do not pretend to be regulated by the SRA.

Scotland and Northern Ireland


There is separate regulation of lawyers in Scotland and Northern Ireland although in principle the arrangements are similar.


The Law Society of Scotland regulates Scottish solicitors.


In Northern Ireland, solicitors are regulated by The Law Society of Northern Ireland.

[Page updated: 05/08/2017]

 

 

.