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THE ENGLISH LEGAL SYSTEM
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This is a brief explanation of the English legal system for students, non-lawyers and international visitors. E-mail me if you have any comments.
Haga click acquí por esta página en español.
Note for Students: I've enjoyed hearing from students all over the world who find this page particularly useful, so keep it coming. However, please remember that it's years since I was at university so I'm not the best person to ask when you want an essay question answered or a recommendation for a good law book! The best source of online legal information is at Delia Venables's Legal Resources Pages.
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English Law
The law of England and Wales is based on the judge-made common law. It is now overlaid by many statutes (Acts of Parliament) and statutory instruments (legislation which is secondary to statute but also has to be approved by Parliament), copies of which can be obtained from the Office of Public Sector Information. However, no English lawyer is happy to rely on the bare text of a statute unless it has been interpreted by a court. Therefore, the reports of the decisions of the higher courts are as important, if not more important – interpretations of the law by the House of Lords, the Court of Appeal and the High Court are each binding on the courts at lower levels. Decisions of the County Court are not normally reported and are only "persuasive", i.e. not binding on other County Courts. You can find some law reports on-line for free at the Court Service and House of Lords web-sites. There are also more comprehensive services for which you have to pay a subscription, such as Casetrack and Lawtel. The best free source is Bailii (the British and Irish Legal Information Institute).
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Legal Services
Since 1950 the services of solicitors and barristers have been made available for those who could not afford them by Legal Aid (now known as public funding or Community Legal Service funding). Subject to a means test and a merits test for their particular case, individual clients were provided with advice and litigation services from any solicitor willing to do the work. There was increasing pressure on the legal aid budget which was used to justify fundamental changes in the legal aid system. The merits test has been tightened up and legally-aided services are only now available from solicitors and non-profit agencies with contracts granted by the Legal Services Commission as part of the Community Legal Service.
Legal aid was aimed at providing those who lack sufficient resources with enough money to buy existing legal services. During the 1960s, it was increasingly realised that many disadvantaged people had problems which existing legal services could not provide for. The voluntary sector tried to fill the gap, particularly for advice on housing, employment, immigration, welfare benefits and debt. In the UK there exists the largest network of people's advice centres in the world, known as Citizens' Advice Bureaux. CABx are promoted and assisted by NACAB (National Association of Citizens Advice Bureaux). There are also a large number of independent advice centres, many of which are represented by Advice UK.
However, these CABx and advice centres normally lack fully-qualified legal expertise. Law centres have been set up in some areas to try to fill the gap, although most areas still do not have one. Typically, a law centre has at least two qualified lawyers, supported by non-legally-qualified caseworkers and administrative staff. Law centres are promoted and assisted by the Law Centres Federation. The law and advice centres are funded from public and charitable sources and their services are free.
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The Legal Profession
The United Kingdom has three distinct legal jurisdictions in England & Wales, Scotland and Northern Ireland and, therefore, three distinct legal professions. I practise in England & Wales. The English legal profession is also split into two branches whose training (after university level), practice and regulation are all separate - solicitors and barristers.
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Solicitors are the general practitioners of the English legal system. If you need legal advice, you visit a solicitor first. If you need an advocate in court or the solicitor does not have sufficient specialist knowledge about the relevant area of law, the solicitor will normally ask a barrister to take on the advocacy or to advise further.
Most solicitors work together in partnerships. Training consists of one year at a law school, two years paid placement in a solicitor's office and a minimum amount of continuing professional education each year. (Also see www.studentatlaw.co.uk.)
Solicitors are regulated by The Law Society. If you want to find a solicitor, you can use the Law Society's own directory or the Community Legal Service's Advice Search or Directory on their web-site, Community Legal Advice.
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Barristers are the consultants of the English legal system. They are the only ones allowed to appear in the appeal courts and in most cases in the High Court. Most specialise in particular areas of the law such as Crime, Family or Personal Injury. If you want advice from a barrister, you must go to a solicitor first because barristers are not allowed to have direct access to lay clients except in limited circumstances.
All barristers are sole practitioners but they gather together to share facilities and expenses. The place where a group of barristers gathers together in this way is known as barristers' chambers. Training consists of one year at bar school or on another approved course, one year's placement with a barrister (normally split into two separate periods of six months each) and a minimum amount of continuing professional education each year.
Barristers are regulated by the Bar Council. You can look for a barrister in the Bar Directory.
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Alternative Dispute Resolution
The legal system came into being as a civilised alternative to more primitive means of dispute resolution. However, it is often now seen as too adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships and limited to narrow rights-based remedies rather than creative problem-solving. Alternatives to going to law have therefore been developed, collectively known as Alternative or Appropriate Dispute Resolution, or "ADR" for short. The main form of ADR is mediation. The oldest and largest organisation providing ADR services is CEDR (the Centre for Effective Dispute Resolution) which trains, accredits and provides mediators. Others include the ADR Group, adjudication.co.uk and Consensus Mediation. There is more information about ADR on the Ministry of Justice website.
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The Courts
The courts are administered by the Courts Service. The fundamental distinction in the English common law is between Criminal Law and Civil (i.e. non-criminal) Law. The court structure reflects this, as shown in the table below.
The most important court reform in over a century was brought in on 26 April 1999 with the introduction of a complete new set of Civil Procedure Rules covering the procedure of the High Court and the County Court. They were supposed to be simpler, particularly because they are written in plain English, although you have to beware the fact that every rule is supplemented by a Practice Direction – you cannot be sure what a rule says without looking both at the rule itself and at the accompanying Practice Direction. The CPR also aim to give the judges more control over proceedings rather than lawyers (who were felt to allow too much delay) and to encourage parties to settle their differences, preferably before litigation even starts.
The courts are supplemented by a large number of specialist tribunals whose procedures tend to be less formal than that of the courts but which provide specialist knowledge in particular areas. Examples include the social security Appeals Tribunal, the Asylum & Immigration Tribunal, the Rent Assessment Committee and the Leasehold Valuation Tribunal. They are regulated by the Council on Tribunals. The Government now intends to bring the administration of all tribunals within the new Tribunals Service.
Judges and tribunal lawyer members are now appointed by the Judicial Appointments Commission.
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House of Lords - highest appellate court for appeals on important points of law
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Court of Appeal - has separate criminal and civil divisions
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High Court - highest first instance civil court; also hears most first appeals from the county court and has supervisory jurisdiction over magistrates and crown courts
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Crown Court - criminal jury trials and appeals from Magistrates Court
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County Court - usual first instance court for civil cases
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Magistrates Court - predominantly criminal but also some civil jurisdiction
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