Comparative Law Spring 2003 Professor Susanna Fischer

1. Comparative Law Spring 2003Professor Susanna Fischer ENGLISH LEGAL SYSTEM ENGLISH LEGAL PROFESSION April 10, 2003

2. 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 forces • Ceremonial and integrating role • See: http://www.royal.gov.uk/output/Page1.asp

3. 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

4. PARLIAMENTARY SYSTEMS • Prime 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.

5. CABINET • Meets once a week in 10 Downing Street • See list of ministers in Her Majesty’s Government at: http://www.number-10.gov.uk/output/Page1371.asp

6. PRIME MINISTER • Tony Blair • MP for Sedgfield • Leader of Labor party • Election after 18 years in Opposition (age 43) • Won again in 2001 and 2005 • Wife: barrister Cherie Booth QC • See: http://www.number-10.gov.uk/output/page4.asp

7. English Court system • Magistrates Courts (1,000) • Justices of the Peace (30,000), Clerks, District Judges (130)

8. Magistrates’ Powers • Can normally only order sentences of imprisonment of up to 6 months, or fines of up to £ 5,000

9. County Courts • 218 in England and Wales • Small 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.

10. County courts • General hears civil cases • Personal injury up to £ 50,000 • Property cases up to £ 30,000

11. High Court • Royal Courts of Justice: Strand • Chancery Division • Queens Bench Division • Probate Division

12. Crown Court

13. Court of Appeal

14. House of Lords • Privy Council • New Supreme Court (Constitutional Reform Act 2005)

15. English Legal Profession • Judiciary • Solicitors • Barristers

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

17. Judicial Independence in England? • What are some of the main questions that have been raised about judicial independence?

18. Questions Concerning Judicial Independence • Narrowness of ethnic background, sex, and age of judges • Secretive and discriminatory appointment process • Limited training • Insufficient procedures for criticism and dismissal • Political system limits judicial independence • Right-wing bias? • Influence of Freemasonry • Lack of specialization

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

20. The Lord Chancellor • Lord Irvine of Lairg

21. MAJOR TYPES OF ENGLISH LAWYERS • Solicitors • Barristers • There are also Public Notaries, who are solicitors or law students who pass the Notarial Practice exam and undertake a period of supervision

22. BARRISTERS • How 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?

23. CHAMBERS • What are Chambers?

24. INNS OF COURT • What are the Inns of Court? • Middle Temple • Inner Temple • Gray’s Inn • Lincoln’s inn

25. INNER TEMPLE GARDEN

26. INNER TEMPLE CROQUET • Members 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.

27. HOW DOES ONE BECOME A BARRISTER?

28. 3 TRAINING STAGES • ACADEMIC • VOCATIONAL • PUPILLAGE

29. SOLICITORS • How 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 organization • What is the function of a solicitor?

30. BECOMING A SOLICITOR • How do you become a solicitor? • GCSE/3 ”A” Levels • University (Law Degree or Not) • If no law degree, CPE/Diploma in Law • Legal Practice Course (“LPC”) • Training Contract • DO YOU HAVE TO HAVE A UNIVERSITY DEGREE TO BECOME A SOLICITOR? • Can solicitors become judges?

31. CIVIL JUSTICE SYSTEM • Recent major reforms

32. ENGLISH CIVIL PROCEDURE • Major reforms to the Civil Procedure Rules came into effect in April 1999

33. HISTORY OF THE CHANGE • 1994 Lord Mackay of Clashfern (Lord Chancellor) appoints Lord Woolf to carry out inquiry into system of civil justice

34. 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)?

35. WOOLF: CRITICISMS OF ENGLISH CIVIL JUSTICE • High costs – ordinary people could not afford justice • Excessive Delay • Injustice – unequal bargaining positions leading to unfair settlements, tactical manoeuvring, too much emphasis on oral evidence, difficulties in enforcement, • Too much complexity

36. CIVIL JUSTICE SYSTEM • Major 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 1999 • What changes did these reforms introduce? • Are these reforms successful? • Is the civil justice system moving to an inquisitorial system?

37. OVERRIDING OBJECTIVE - Civil Procedure Rules r. 1.1 • Simplify litigation • save costs • reduce litigation and litigation delays • Be fair • Proportionality • In other words, change litigation culture…

38. 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

39. CULTURE OF CO-OPERATION • Letters before action • pre-action disclosures • Pre-action protocols • Case management • Part 36 offers to settle • ADR

40. JUDICIAL CASE MANAGEMENT • 3 tracks (small claims, fast, multi-track) • Sanctions • Costs – “English rule” not always followed

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