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The topic of this work is “Justice and the law. Britain’s legal system”. The object of this work is the legislation of Great Britain. The subject is the peculiarities of the British legislation system. The aim is to learn about this peculiarities. Our task is to understand, what does “justice, law and legal system mean? What concepts are included in these terms? We should know answers to many questions. For example: What denotes such terms as “civil law, common law and religious law” ? We should learn about different law acts and kinds of courts in Great Britain, first of all about the Supreme Court of The UK, its jurisdiction, history, justices. Here you can read, that The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law.
The Scottish and English parliaments established a commission to negotiate a union, formulating an instrument of union between the two countries. However, the idea of political union was unpopular, and when James dropped his policy of a speedy union, the topic quietly disappeared from the legislative agenda. When the House of Commons attempted to revive the proposal in 1610, it was met with a more open hostility.
Union during the interregnum
Flag of the Commonwealth (1651–58) showing the 'perfected' union between England and Scotland.
The Solemn League and Covenant 1643 sought a forced union of the Church of England into the Church of Scotland, and although the covenant referred repeatedly to union between the three kingdoms of England, Scotland, and Ireland, a political union was not spelled out.
In the aftermath of the Civil War, in which the Covenanters had fought for the King, Oliver Cromwell occupied Scotland and began a process of creating a 'Godly Britannic' Union between the former Kingdoms. In 1651, the Parliament of England issued the Tender of Union declaration supporting Scotland's incorporation into the Commonwealth and sent Commissioners to Scotland with the express purpose of securing support for Union, which was assented to by the Commissioners (Members of Parliament) in Scotland. On 12 April 1654, Cromwell – styling himself Lord Protector of England, Scotland and Ireland – enacted An Ordinance by the Protector for the Union of England and Scotland which created 'one Commonwealth and under one Government' to be known as the Commonwealth of England, Scotland and Ireland. The ordinance was ratified by the Second Protectorate Parliament, as an Act of Union, on 26 June 1657. One united Parliament sat in Westminster, with 30 representatives from Scotland and 30 from Ireland joining the existing members from England. Whilst free trade was brought about amongst the new Commonwealth, the economic benefits were generally not felt as a result of heavy taxation used to fund Cromwell's New Model Army.
This republican union was dissolved automatically with the restoration of King Charles II to the thrones of England and Scotland. Scottish members expelled from the Commonwealth Parliament petitioned unsuccessfully for a continuance of the union. Cromwell's union had simultaneously raised interest in and suspicion of the concept of union and when Charles II attempted to recreate the union and fulfil the work of his grandfather in 1669, negotiations between Commissioners ground to a halt.
Later attempts
An abortive scheme for union occurred in Scotland in 1670.
Following the Glorious Revolution in 1689, the records of the Parliament of Scotland show much discussion of possible union. William and Mary, whilst supportive of the idea, had no interest in allowing it to delay their enthronement. Impetus for this incorporating union came almost entirely from King William, who feared leaving Scotland open to a French invasion. In the 1690s, the economic position of Scotland worsened, and relations between Scotland and England became strained. In the following decade, however, union again became a significant topic of political debate.
Both countries appointed commissioners to handle negotiations. Scotland had 31 commissioners, mainly picked by the Duke of Queensberry and the Duke of Argyll. Most favoured union, and about half were government ministers and other officials. At the head of the list was Queensberry, and the Lord Chancellor of Scotland, the Earl of Seafield.
Other commissioners were businessmen and bankers, including two directors of the Bank of Scotland, and a director of the Company of Scotland, and local leaders such as Sir James Smollet (Dumbarton), and Sir Patrick Johnston, the provost of Edinburgh. The Scottish Parliament was also represented.
Few of those appointed from Scotland represented the popular view against the union, Lockhart of Carnwarth being the most prominent of these.
There were an equivalent number of English commissioners, including government ministers and officers of state, such as Lord Godolphin, and the two secretaries of state, Sir Charles Hedges and Robert Harley, and a large number of Whigs who supported union. Tories were not in favour of union and were not represented on the commission.
Negotiations between the English and Scottish commissioners began in April 1706 at the Cockpit, a government building in London. The sessions opened with speeches from William Cowper, the English Lord Keeper, and Lord Seafield, the Scottish Lord Chancellor, each describing the significance of the task. Each side had its own particular concerns. Within a few days, England gained a guarantee that the Hanoverian royal dynasty would succeed Queen Anne to the Scottish crown, and the Scots received some much-desired access to colonial markets, in the hope that they would be placed on an equal footing in terms of trade.
After negotiations ended in July 1706, the acts had to be ratified by both Parliaments. In Scotland, about 100 of the 227 members of the Parliament of Scotland were supportive of the Court Party. For extra votes the pro-court side could rely on about 25 members of the Squadrone Volante, led by the Marquess of Montrose and the Duke of Roxburghe. Opponents of the court were generally known as the Country party, and included various factions and individuals such as the Duke of Hamilton, Lord Belhaven and Andrew Fletcher of Saltoun, who spoke forcefully and passionately against the union. The Court party enjoyed significant funding from England and the Treasury and included many who had accumulated debts following the Darien disaster.
In Scotland, the Duke of Queensberry was largely responsible for the successful passage of the Union act by the Scottish Parliament. In Scotland, he received much criticism from local residents, but in England he was cheered for his action. He had received around half of the funding awarded by the Westminster treasury for himself. In April 1707, he travelled to London in order to attend celebrations at the royal court, and was greeted by groups of noblemen and gentry lined along the road. From Barnet, the route was lined with crowds of cheering people, and once he reached London a huge crowd had formed. On 17 April, the Duke was gratefully received by the Queen at Kensington Palace.
The Acts of Union 1800 (sometimes called the Acts of Union 1801) describe two complementary Acts, namely:
Passed on 2 July 1800 and 1 August 1800 respectively, the twin Acts united the Kingdom of Great Britain and the Kingdom of Ireland to create the United Kingdom of Great Britain and Ireland. The union came into effect on 1 January 1801. Both Acts, though since amended, remain in force in the United Kingdom.
In the Republic of Ireland the Union with Ireland Act 1800 (that passed in Great Britain) was not formally repealed until the passing by the Oireachtas of the Statute Law Revision Act 1983. The Act of Union (Ireland) 1800 (that passed in Ireland) was repealed in 1962.
Before these Acts, Ireland had been in personal union with England since 1541, when the Irish Parliament had passed the Crown of Ireland Act 1542, proclaiming King Henry VIII of England to be King of Ireland. (Before then, since the 12th century, the King of England had been overlord of the Lordship of Ireland, a papal possession.) Both Ireland and England had come in personal union with Scotland with the Union of the Crowns in 1603.
In 1707, the Kingdom of England and the Kingdom of Scotland were united into a single kingdom: the Kingdom of Great Britain. Upon that union, each House of the Parliament of Ireland passed a congratulatory address to Queen Anne, praying that, "May God put it in your royal heart to add greater strength and lustre to your crown, by a still more comprehensive Union"[4]. The Irish parliament at that time was subject to a number of restrictions that placed it subservient to the Parliament of England (and following the union of England and Scotland, the Parliament of Great Britain).
In the century that followed the union of England and Scotland, Ireland gained effective legislative independence from Great Britain through the Constitution of 1782. However, a rebellion in 1798, involving a French invasion of Ireland and seeking complete independence from Great Britain, descended into sectarian violence and ruthless repression by the Irish authorities. The British drive for union between Great Britain and Ireland that passed in 1800 was motivated at least in part by a desire to restore order to Ireland, end sectarianism (including the introduction of Catholic Emancipation) and to ensure that Ireland would not become a staging post for a French invasion of Great Britain.
Each Act had to be passed in the Parliament of Great Britain and the Parliament of Ireland.
After centuries subordination to the English, and later, British Parliaments, the Parliament of Ireland gained a large measure of independence by the Constitution of 1782. Many members of the Irish Parliament jealously guarded its autonomy (notably Henry Grattan) and a motion for union was rejected in 1799. However, a concerted campaign by the British government overcame the reluctance of the Irish Parliament.
Only Anglicans were permitted to become members of the Parliament of Ireland, though the great majority of the Irish population were Roman Catholic, with many Presbyterians in Ulster. In the 1790s Roman Catholics gained the minimal right to vote.
From the perspective of Great Britain, the union was required because of the uncertainty that followed the Irish Rebellion of 1798 and the French Revolution of 1789, which inspired the rebels; if Ireland adopted Catholic Emancipation, willingly or not, a Roman Catholic parliament could break away from Britain and ally with the French, while the same measure within a united kingdom would exclude that possibility. Also the Irish and British parliaments, when creating a regency during King George III's "madness", gave the Prince Regent different powers. These considerations led Great Britain to decide to merge the two kingdoms and their parliaments.
The final passage of the Act in the Irish Parliament was achieved with substantial majorities, achieved in part according to contemporary documents through bribery, namely the awarding of peerages and honours to critics to get their votes. Whereas the first attempt had been defeated in the Irish House of Commons by 109 votes against to 104 for, the second vote in 1800 produced a result of 158 to 115.
The Acts ratified eight articles which had been previously agreed by the British and Irish Parliaments:
Part of the attraction of the Union for many Irish Catholics was the promise of Catholic Emancipation, thereby allowing Roman Catholic MPs, who had not been allowed in the Irish Parliament. This was however blocked by King George III who argued that emancipating Roman Catholics would breach his Coronation Oath, and was not realised until 1829.
The flag, created as a consequence of the union of the Kingdom of Great Britain and Ireland in 1800, still remains the flag of the United Kingdom. Called the Union Flag, it combined the flags of England (which included Wales) and Scotland with a "St Patrick's Cross" to represent Ireland.
4.SUPREME COURT OF THE UK
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal cases in Scotland. The Supreme Court also has jurisdiction to resolve disputes relating to devolution in the United Kingdom and concerning the legal powers of the three devolved governments or laws made by the devolved legislatures. It is housed in Middlesex Guildhall—which it shares with the Judicial Committee of the Privy Council—in the City of Westminster.
The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009. It assumed the judicial functions of the House of Lords, which were exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 professional judges appointed as members of the House of Lords to carry out its judicial business. Its jurisdiction over devolution matters had previously been held by the Judicial Committee of the Privy Council.
Due to the doctrine of parliamentary sovereignty, the court is limited in its powers of judicial review, unlike the constitutional and supreme courts of some other countries. This means that it cannot overturn any primary legislation made by Parliament. However it can overturn secondary legislation if, for example, that legislation is found to be ultra vires of the powers in primary legislation allowing it to be made. Furthermore, under section 4 of the Human Rights Act 1998, the court may make a declaration of incompatibility which means that it believes that the legislation subject to the declaration is incompatible with one of the rights of the European Convention on Human Rights and such a declaration can apply equally to primary and secondary legislation. The legislation is not overturned by the declaration but powers under section 10 of the act are triggered to allow ministers to amend the legislation by statutory instrument to remove the incompatibility.
4.1 Jurisdiction
The main role of the UK Supreme Court is to hear appeals from courts in the United Kingdom's three legal systems: England and Wales, Northern Ireland, and Scotland. (English and Welsh law differ only to the extent that the National Assembly for Wales makes laws for Wales that differ from those in England, and the two countries have a shared court system.) The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland but the highest appeal for criminal cases is kept in Scotland. It may hear appeals from the civil Court of Session, just as the House of Lords did previously.
From the Court of Session, permission to appeal is not required and any case can proceed to the Supreme Court of the United Kingdom if two Advocates certify that an appeal is suitable. In England, Wales and Northern Ireland, leave to appeal is required either from the Court of Appeal or from a Justice of the Supreme Court itself.
The Court's focus is on cases that raise points of law of general public importance. Like the previous Appellate Committee of the House of Lords, appeals from many fields of law are likely to be selected for hearing—including commercial disputes, family matters, judicial review claims against public authorities and issues under the Human Rights Act 1998. The Court also hears some criminal appeals, but not from Scotland as there is no general right of appeal from the High Court of Justiciary, Scotland's highest criminal court, other than with respect to devolution issues.
The Supreme Court also determines "devolution issues" (as defined by the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006). These are legal proceedings about the powers of the three devolved administrations—the Northern Ireland Executive and Northern Ireland Assembly, the Scottish Government and the Scottish Parliament, and the Welsh Government and the National Assembly for Wales. Devolution issues were previously heard by the Judicial Committee of the Privy Council and most are about compliance with rights under the European Convention on Human Rights, brought into national law by the Devolution Acts and the Human Rights Act 1998.
The twelve justices do not all hear every case; typically a case will be heard by a panel of five justices, but sometimes the panel may consist of three, seven or nine members. All twelve justices are also members of the Judicial Committee of the Privy Council, and spend some of their time in that capacity.
4.2 History
The creation of a Supreme Court for the United Kingdom was first mooted in a July 2003 Department of Constitutional Affairs Consultation Paper. Although the report noted that there had been no criticism of the current law lords, or any indication of an actual bias, it argued that the separation of the judicial functions of the Judicial Committee of the House of Lords should be made explicit from the legislative functions of the House of Lords. First, it was concerned whether there is any longer sufficient transparency of independence from the executive and the legislature to give assurance of the independence of the judiciary. Looked at alternatively it was argued that requirement for the appearance of impartiality and independence also limited the ability of the Law Lords to contribute to the work of the House of Lords, thus reducing the value to both them and the House of their membership. Second, it was concerned that it was not always understood by the public that judicial decisions of "the House of Lords" were in fact taken by the Judicial Committee of the House of Lords and that non-judicial members were never involved in its judgements. Conversely, it was felt that the extent to which the Law Lords themselves have decided to refrain from getting involved in political issues in relation to legislation on which they might later have to adjudicate was not always appreciated. The new President of the Court, Lord Phillips, has claimed that their old position had confused people and that with the Supreme Court there would for the first time in the UK be a clear separation of powers among the judiciary, the legislature and the executive. Finally, it was noted that space within the House of Lords was at a constant premium and a separate supreme court would ease the pressure on the Palace of Westminster.
The main argument against the court was that the previous system had worked well and kept costs down. Reformers expressed concerns that the historical admixture of legislative, judicial and executive power in the UK might conflict with the state's obligations under the European Convention on Human Rights. Officials who make or execute laws have an interest in court cases that put those laws to the test. When the state invests judicial authority in those officials, it puts the independence and impartiality of the courts at risk. Consequently, it was supposedly possible that the decisions of the Law Lords might be challenged in the European Court of Human Rights on the basis that they had not constituted a fair trial.
The reforms were controversial and were brought forward with little consultation but were subsequently extensively debated in Parliament. During 2004, a select committee of the House of Lords scrutinised the arguments for and against setting up a new court. The Government estimated the set-up cost of the Supreme Court at £56.9 million.
The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009. It assumed the judicial functions of the House of Lords, which were exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 professional judges appointed as members of the House of Lords to carry out its judicial business. Its jurisdiction over devolution matters had previously been held by the Judicial Committee of the Privy Council.
4.3 Other Supreme Courts in GB
The High Court of Justiciary, the Court of Session, and the Office of the Accountant of Court comprise the College of Justice, and are known as the Supreme Courts of Scotland.
Before 1 October 2009, there were two other courts known as supreme court, namely the Supreme Court of England and Wales (known as the Supreme Court of Judicature until 1981), which was created in the 1870s under the Judicature Acts, and the Supreme Court of Judicature in Northern Ireland, each of which consists of a Court of Appeal, High Court of Justice and Crown Court. When the provisions of the Constitutional Reform Act 2005 came into force, those became known as the Senior Courts of England and Wales and the Court of Judicature of Northern Ireland respectively, to avoid confusion.
4.4 Justices
The court is composed of the President and Deputy President and 10 puisne Justices of the Supreme Court. They are not subject to term limits, but may be removed from office on the address of Parliament. Like all British judges, Supreme Court justices are forced to retire at age 70 if first appointed to a judicial office after 31 March 1995, or at age 75 otherwise. The President and Deputy President of the court are separately appointed to those roles.
Ten Lords of Appeal in Ordinary (Law Lords) holding office on 1 October 2009 became the first justices of the 12-member Supreme Court. The 11th place on the Supreme Court was filled by Lord Clarke (formerly the Master of the Rolls), who was the first Justice to be appointed directly to the Supreme Court. One of the former Law Lords, Lord Neuberger, was appointed to replace Lord Clarke as Master of the Rolls, and so did not move to the new court. Sir John Dyson became the 12th and final justice of the Supreme Court on 13 April 2010, becoming entitled at the same moment to the courtesy style "Lord Dyson".
The Senior Law Lord on 1 October 2009, Lord Phillips, became the Supreme Court's first President, and the Second Senior Law Lord, Lord Hope of Craighead, became the first Deputy President.
On 30 September 2010, Lord Saville of Newdigate became the first Justice to retire, followed by Lord Collins of Mapesbury on 7 May 2011, although the latter remained as an acting justice until the end of July 2011.
In June 2011, Lord Rodger became the first Justice to die in office, after a short illness. On 11 October 2011, it was announced that Lord Phillips will retire early, effective 30 September 2012.
4.4.1 Acting judges
In addition to the twelve permanent Justices, the President may request other senior judges, drawn from two groups, to sit as "acting judges" of the Supreme Court.
The first group is those judges who hold 'office as a senior territorial judge': judges of the Court of Appeal of England and Wales, judges of the Court of Appeal of Northern Ireland and judges of the First or Second Division of the Inner House of the Court of Session in Scotland.
The second group is known as the 'supplementary panel'. The President may approve in writing retired senior judges' membership of this panel if they are under 75 years of age.