ELP - Global English for Legal Studies

The Three Powers in the UK Government

The Legislature: it is the power of the Parliament for the enactment of new law. The Parliament is composed of the Monarch, House of Lords, and House of Commons.

The Executive: it is the power of the Government, the Crown, and the Civil Service. The government is elected from the members of Parliament and led by the Prime Minister.

The Judiciary: it is the power of the judges and magistrates who interpret and determine legal disputes.

Sovereignty of Parliament: Parliament is the Supreme law-making body in the UK. On the one hand, Parliament can enact or repeal any law on any topic. On the other hand, courts cannot invalidate any act of Parliament.

Rule of law: no one is above the law, including the government. This principle limits the exercise of arbitrary power.

Common Law trial procedure: adversarial system where there are 2 opposing parties, called adversaries, who present their case before a neutral judge who moderates so the judge or jury is a neutral umpire.

Who does not investigate the facts, this logic of Common Law contrasts with the inquisitorial system of adjudication in Civil Law jurisdictions where one or more judges try criminal cases alone without juries and they direct investigations and question witnesses.

Classifications of law:

• Public Law: it is concerned with the relations between the state and its citizens aim: promotion of social objectives by protecting collective interests several branches:
• Constitutional Law: it regulates the institutions of government, including the internal governance of supranational legal orders (ex: EU)
• Administrative Law: it is concerned with the relationship between government bodies and individuals administrative law allows the courts to rule on the legality of decisions made by government bodies under the judicial review

Judicial review: procedure in which people who have been affected by unlawful decisions can appeal against those decisions if they have a sufficient

interest in the disputed cases ("prima facie case") and have the right to bring the case ("locus standi") judicial review is a mechanism by which the Judiciary can have control over the Executive

Criminal/Penal Law: it deals with the crimes against the state or society and it regulates the apprehension, charging and prosecution of suspected criminals by fixing penalties

Legal wrongs:

• Criminal wrongs: a wrong where the State and the public have a shared interest
• Civil wrongs: a private wrong done to a property or a person

Private Law: it is concerned with the rights and duties of private individuals towards each other aim: protection of private/individual interests several branches:

• Contract Law: it deals with the interpretation and enforcement of legally binding agreements, the nature of the obligations undertaken by the parties, and the legal consequences of breaking contractual promises
• Tort Law: it deals with civil wrongs or

wrongful acts Unlike criminal law, punishments don’t include a fine or imprisonment but the usual punishment is by damages (= financial compensation)

Property Law: it deals with the rights that may arise regarding ownership in real property (= land and the things that go along with land) and personal property (= what people possess that is moveable)

National Law: it is the law operative within a country →

International Law: it is the law operative outside a country it is created in 2 ways:

• By treaties: political agreements between states
• By custom: when states have adopted the same practices consistently towards a specific matter in the absence of a legal obligation

Substantive Law: it deals with the rules that govern individual rights and duties under the law

Procedural Law: it defines the practice and procedure by which the rules are to be enforced when bringing a case to court

Legislative process in the UK: the Bill normally comes from the government (=

government-sponsored Bill) or an ordinary member of Parliament (private member's Bill), the Bill is preceded by a White Paper which sets out definite government proposals on topics of current concern or a Green Paper which sets out tentative proposals for discussion. The consultation process is then followed by the drafting process in which the Bill is set out in a draft legislation by Parliamentary draftsman (the Parliamentary Counsel to the Treasury). Then, the Bill goes through several parliamentary readings (formal stages of enactment) by both the House of Commons and the House of Lords. The stages are as follows: 1. First reading: first debate in one House 2. Second reading: second debate in the same House with a final vote 3. Committee stage: the Bill is debated in detail by a small group of members of Parliament and can be amended in each clause 4. Report stage: MPs who were not part of the Committee may consider any of the amendments 5. Third reading: final debate on the Bill

Bill in the first House no amendments are possible

Moving to the other House: the Bill moves to the other House and goes through a similar process to the first House. The Bill may move backwards to the first House if this House doesn't agree. "Ping-pong" process: the Bill may move backwards and forwards between the two Houses until the agreement is reached.

Royal Assent: the Bill is presented to the monarch for approval. Once Royal assent is given, the Bill becomes an Act of Parliament and is law.

UK system of Courts: 2 types of courts:

- Superior courts (= appellate courts): they review decisions of an inferior court on important points of law and public interest.

- European Court of Justice: it deals with preliminary ruling procedure. Usually, the Supreme Court refers some cases to the European Court of Justice for a ruling on the interpretation of a point of European Law.

- Supreme Court: it is the final court of appeal in civil and criminal cases.

cases on points of law of public general importance

Court of Appeal: it hears criminal and civil appeals from the Crown Court and the High Court and it deals also with permissions to appeal to the Supreme Court

High Court: it is the court of appeal from the inferior courts 3 divisions: Queen's Bench Division, Family Division, Chancery Division

Crown Court: it has jurisdiction only above criminal cases but it hears the most serious cases (= indictable offences) by judge and jury

Inferior courts (= Trial Courts/first-instance courts): they decide the majority of the cases at first instance

Magistrates' Courts: NO jury trial, in order to deliver justice in a speedy manner although they can hear a limited number of civil cases relating to family law and licenses, most criminal cases start and finish here

County Courts: they only hear civil cases

Legal profession in the UK:

Solicitors: a lawyer who gives legal advice on the appropriate course of

Legal action, prepares legal documents and cases, drafts contracts and has right of audience in the inferior courts - they can also appear as advocates in the superior courts (= "solicitor-advocates") if they have appropriate experience to do so.

How to become a solicitor? Gaining a qualifying law degree, completing the Legal Practice Course, gaining experience of the litigation process and then the name will be entered on the Society's Rolls (= a list of solicitors permitted to practice) and they will receive a practicing certificate by the Law Society.

Barristers: a lawyer who gives specialist legal advice and can argue a case in both higher and lower courts. Unlike the solicitors, barristers do not have direct contact with their clients. In fact, it is the solicitor who needs to instruct/brief the barrister to advise in writing through an Opinion or appear in courts as an advocate. In the case of a request for an Opinion, the solicitor only asks questions.

To the barrister in order to be able to advise the client and then→the barrister will answer these questions in a series of reasoned arguments.

Cab-rank rule: barristers are obliged to accept any cases sent to them by solicitors that are within the field→of their competence and are irrespective of the identity of the client.

How to become a barrister? Law degree, vocational training and then they are Called to the Bar and are→authorized to practice as barristers.

Top barristers who have produced work of high quality are appointed by the Crown to the rank of Queen’s Counsel.

Magistrates: they are judges appointed to sit in inferior Magistrates’ Courts dealing with less→serious cases, most criminal cases different types: Lay magistrates, district judges.

Judges: they sit in superior courts and are appointed from the ranks of barristers and some senior solicitors.

Jury: it is often used in criminal proceedings in the Crown Court the jury elects a foreperson.

Who represents and speaks for the jury announcing the final verdict? - Arbitrators - Mediators - Legal Cashiers - Notaries - Ushers - Paralegals - Legal Assistants Legal System of the US: - Political system: the Constitution establishes a federal democratic republic form of government - There are 50 states which are separate sovereigns with their own state constitutions, governments, and courts - 3 branches: - The legislature = the Congress (composed of the House of Representatives and the Senate) - The executive = the President - The Judiciary = the Federal courts - Sources of law in the USA: - US Constitution: it is the Supreme Law of the US; federal and state statutes, judicial opinions, and administrative laws must all comply with the Constitution - State constitutions - Federal and state legislation (= statutory law): federal statutes are enacted by the Congress and apply in all 50 states, while state statutes are enacted by the 50 state legislature and apply onlyto be passed by both Houses of Congress and then it is sent to the President for approval or veto. If the President approves the Bill, it becomes law. If the President vetoes the Bill, it can still become law if both Houses of Congress vote to override the veto with a two-thirds majority vote.• Judicial process in the US: cases can be brought to federal or state courts. The party bringing the case is called the plaintiff and the party being sued is called the defendant. The case goes through several stages including filing a complaint, discovery, pre-trial motions, trial, and appeal. The final decision is made by a judge or a jury.• Legal research: legal professionals use various resources to conduct legal research including statutes, case law, legal encyclopedias, legal journals, and online databases. Legal research is essential for understanding and interpreting the law.• Legal writing: legal professionals must have strong writing skills to draft legal documents such as contracts, pleadings, and briefs. Legal writing requires precision, clarity, and adherence to legal standards and conventions.• Legal ethics: lawyers are bound by a code of ethics that governs their professional conduct. This includes duties of loyalty, confidentiality, and competence, as well as rules regarding conflicts of interest and attorney-client privilege.• Legal education: to become a lawyer in the US, one must complete a Juris Doctor (J.D.) degree from an accredited law school, pass the bar exam in the state where they wish to practice, and meet other requirements set by the state bar association.