Chapter 11 7.

Constitution
Most nations have a constitutional document although this does not mean it includes a bill of rights or that the constitution grants the judiciary the power of judicial review of legislation for constitutional inconsistencies. British constitutional law is frequently notes as being based on an unwritten constitution. Constitutional law is not contained in a single document; The British constitution is an aggregation of numerous sources mostly unwritten but all identifiable. The essential principles of the British Constitution are: 1) the separation of powers 2) the supremacy of parliament 3) the rule of law. Changes in any sources which comprise the British Constitution will alter its total structure making it more flexible than many constitutions. The constitution is affected by most traditional sources of English law including the royal prerogative, conventions, common law, a few of the more important acts of Parliament, the acts of the European Communities and its various courts, Human Rights Act 1998 and Devolution. Clarity of identifying the British Constitution is dependent upon recognizing its sources. The most important elements of the British Constitution are the Magna Carta, the Petition of Right 1628, and several statutes enacted by Parliament, the Act of Union with Scotland 1707, the Bill of Rights 1689. The Act of Settlement 1700 and the Habeas Corpus Act 1679 are additionally constitutional elements. Also the acts devolving power to Scotland, Wales and Northern Island are important. As well as the European Communities Act 1972, which joined the United Kingdom to the European Communities. This added a new source of law the law-making bodies of the Communities. Community law takes precedence over domestic UK law. If not applied by the UK courts it well be applied by the European Court of Justice.

A final element of the British Constitution is that part of custom referred to as conventions, an important framework for both constitution and English ordinary law. The source of conventions is less identifiable than other constitutional elements. Convention evolves principally from a non-judicial precedent established in decades if not centuries of consistent conduct. Pressures for continuance are the expectations of the public and the convenience of the existence of conventions. A considerable part of the body of the conventions applies to government structures and functions, even to the existence of the PM. Conventions tend to become sanctified as the years of their recognition and observance accumulate. In Britain there is no court with the authority to rule on the issue of the constitutionality of the acts of Parliament. A parliamentary act is supreme. If it conflicts with an earlier act of Parliament or with precedent the earlier law is modified not violated. For Parliament to pass an act inconsistent with the act of Union with Scotland but which was not intentionally directed to altering those important acts a court would face the difficult problem of construing them as abolishing or amending those earlier acts or being unintentionally in violation of those acts and thus invalid. What measure of parliamentary activity is required to amend and important earlier parliamentary act is unclear. There is an amount of Euro-skepticism in Britain. But the only way to renounce that law would be political not judicial is mandating a withdrawal from the EC by repealing the EC act and any other English statues associated with the EU treaties. The effect of any other action less than withdrawal such as and act of Parliament in conflict with the EC act remains a matter of a debate. The newly independent nation usually has ideas of what the fundamental law should state and a writing is a natural consequence of the circumstances of modern nationhood.

8. Human Rights
Typically countries have provided in their constitutions or in a separate document for the specific protection of human rights.

In England it was argued that it was the judiciary that stood firm in protecting civil liberties. The judiciary did so despite the fact that the 17th century Bill of Rights does not guarantee individual liberties. In 1951 Britain ratifies the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ECHR was an international treaty to designed to provide human rights for the postwar Europe. From 1966 British citizens were permitted to take ECHR violation cases against the British government to the European Court of Human Rights. In 1998 Britain implemented major parts of the Convention through special domestic legislation the Human Rights Act 1998 (HRA). The HRA provides domestic enforcement through the courts in Britain for significant parts of the ECHR. The rights protected by the HRA include the right to: life; be free from torture; liberty and security; freedom from slavery and forced labor; a fair trial; no punishment without trial; respect for private and family life; freedom of thought; conscience and religion; freedom of expression; freedom of assembly and association; to marry; and freedom from discrimination. The details of each right are spelled in the HRA and must be applied in light of their interpretations by European Court of Human Rights and so are much more complex than this list suggests. The HRA requires the judiciary to interpret legislation so that it is in conformity with HRA. Problematically for enforcement by the courts within the British constitutional structure the HRA is not formally supreme over other legislation, regulations or constitutional principles. However it provides a device for the courts to signal to the government when the governments actions are in conflict with the requirements of the HRA

a Declaration of Incompatibility. These declarations can only be issued by the highest courts and when they are considering such a declaration the government has the right to be joined in the case in order to defend its actions. These declarations have a powerful moral impact on the government. The government has stated that it will typically change the law when faced with such declarations.

The implementation of the HRA appears to have gone quite smoothly and successfully!

9. The Law of the European Union

Ratification of the Treaty of Accession and the European Communities Act 1972 initiated Englands entry into the European Communities later renamed EU by the Maastricht Treat in 1993. But a treaty does not by accession become the law of the UK. The Treaty of Accession was not self-executing. Parliament had to act to give Englands participation legal standing. Parliament not only accepted EC law existing at the time of Act but it agreed to adopt directly applicable EC legislation of the Council or Commission enacted subsequent to entry. Parliament delegated law making power to EC institutions although limited to rights and obligations created by the text of the treaty. So EU legislation which is not directly applicable requires parliamentary action to become effective in the UK!!! Such legislation may be implemented by statute or by subordinate legislation adopted by the English executive under delegated authority. EU law includes sources beyond the treaties and secondary legislation. Decisions of the European Court of Justice may become an important source of law both as precedent in that court and in courts of UK. A decision of the Court of justice does not nullify a member state law but the decision must be followed in member state courts if it pertains to the meaning or the effect of the treaties, or the meaning or validity of the EU instrument. UK courts are bound by European Justice decisions. EU legislation drafted by persons trained in the civil law tends to be general, without either the precision identified with English legislation or useful interpretation clauses. They tend to talk in terms of general principle of law as they create new rules. English judges tend to speculate as to what was intended by the drafters. In the first decades of membership it was preferred to reach conclusions without the participation of the European Court. But even though interpretative rulings were not the norm the rulings of the English courts tended to comply with the spirit of the European treaty.

HOWEVER in more recent times the courts have been more willing to refer cases to the ECJ for interpretative rulings. The treaty of Rome and the subsequent treaties were drafted with general principles. Which means that they are subsequent to many different interpretations. This means that the English courts have to fill the gaps. The ECJ may help by giving an interpretation of EC law. This court does not decide individual cases. An English court can in the absence of clarity retreat to the common law. Both courts are involved in judge made law but with different views on when the judges are stepping beyond the line. So the entrance of the UK into the European Communities has required a submission of domestic law to an external law-making body.

10. Reception of Roman Law

Roman law is not a direct source of law in English legal system. There has been an indirect effect though (principally from the area of canon law). Early English ecclesiastical courts were attended by advocates and presided by Chancellors whose experience included the study of civil law. English family and succession law including the formalities of wills are is not dissimilar the Roman law. Where early English courts were not aided by precedent and turned to opinions of writers such as Bracton there was a further indirect application of Roman law principles. Bractons classification of bailments follows directly the Roman law categorization. Judges have considered Roman doctrines when difficult questions were presented. All legal system tend to benefit from each other. Where there has been no attempt to codify vast areas of law there are bound to be gaps which require judges to seek guidance from other sources. If Roman law has been considered appropriate guidance in a particular case that should not mean that there has been a reception of the Roman law!

Reception means direct acceptance of the Roman law as a principal source of law.

11. Divisions of law Law and Equity

Equity supplemented the common law by offering compatible remedies in some cases but in others it produced a direct conflict with the common law. The court of Chancery often issued and equitable injunction ordering an individual to cease an action which had been commanded by a common law court. The success of the equitable remedies depended upon the ability of the sovereign to exercise prerogative powers. The Judicature Act 1873 abolished the conflict by transferring the powers of the common law courts and courts of equity to the Supreme Court of Justice. Traditionally legal remedies remained a matter of right, those of equity continued to be discretionary. Then parliament provided in the Judicature Act and then again in the Supreme Court Act 1981 that were equity and law are in conflict equity is supreme. The systems no longer possessed any substantial measure of conflict.

12. Divisions of law public and private

The division of common law system into public law and private laws is often noted in terms of the law of torts or the law of property, all part of what is known as substantive, as opposed to procedural law. Private law would include the law of contracts, torts and property, family law, succession and trusts. Criminal law, constitutional law, administrative law and procedure constitute the public law. Civil nations often have entirely separate hierarchies of courts for public and private law. There are specific common law courts in England for criminal law, the Crown Courts (principal criminal law courts) are part of the Supreme Court of Justice.

Both criminal and civil law matters are heard in the same appellate court. With the passage of human rights act there is another area in public law. The law of constitution is allocated in the main to administrative tribunals but the common law appellate court system retains jurisdiction over most administrative appeals. The problem of not having a cohesive constitution makes the question of the public law problematic. The ad hoc growth of the administrative tribunals has fostered different mechanisms that deal with public law issues. The growth of the Human Rights Act claims will only complicate matters. The interaction of public law and the rest of the English system will continue to be problematic as public law is a civilian construct. It has been transplanted without much thought and so will continue to have a difficult time interacting with English common law traditions.

13. Divisions of Law The Law Merchant/Commercial law

Commercial law is often separately administered in civil law nations. Commercial law might have developed in England as a largely separate system existing parallel to the common law. But it substantially had assimilated into the common law by 17th century although it retained a separate significance because judges recognized that the commercial rules chiefly were based on the process of merchants and traders. Commercial usage constituted custom. The common law rule requiring proof of the existence of custom was not required in commercial litigation. Current custom was acceptable as long as it was not in conflict with common law decisions. In the late 19th century most of the law merchant was incorporated into statutes Bills of Exchange Act 1882, The Partnership Act 1890, the Sale of Goods Act 1893. Little of that commercial law isolation remains today in English law. From these English Commercial Acts the US evolved a set of its own commercial law.

The terms commercial law has quite a different meaning than that on the continent. There are no separate courts in most common law countries for commercial problems although there special courts for certain commercial matters such as the bankruptcy courts in the US and the Restrictive Practices Court in England. But there is in England a commercial court which is part of the Queens Bench Division of the High Court. The judges are high court judges assigned to the commercial court because of their expertise in the commercial law. The Court is still a preferred mechanism for resolving disputes.