An Introduction to the English Legal System

by Partington, Martin

• ISBN13: 9780199260577
• ISBN10: 0199260575
• Edition: 2nd
• Format: Paperback
• Copyright: 2003-08-07
• Publisher: Oxford University Press

Summary

This is the new edition of Introduction to the English Legal System by Martin Partington. Written in an engaging style that avoids unnecessary legal jargon, this text offers the A/AS level student, the new law undergraduate and postgraduates taking the CPE, a concise and sound foundation forfurther and more detailed study. It is designed to stimulate thought on the purposes, the making and practice of law and poses the question: is the English Legal System fit for purpose in the modern world? Presented in a 4-part structure, the text opens with an examination of the purposes and functions of law and the law-making process, followed by an overview of the institutional framework of the system. The author continues with a discussion of the key issues effecting the main branches of thelegal system, looking particularly at criminal justice, and explores the delivery and funding of legal services. The concluding chapter considers future challenges facing the English legal system. In his new role as a Law Commissioner for England and Wales, Martin Partington is ideally placed to offer authoritative yet stimulating commentary on all recent developments within the system - incorporating the key reforms in areas of civil justice, administrative justice, criminal justice,changes to institutional structures and proposals for new organizational bodies within this new edition. The improved structure includes clear part introductions which draw themes and topics together, while the increased use of commentary boxes, diagrams and self-test questions throughout the textencourages a more in-depth analysis of salient points. Revised further reading sections and lists of useful web links for each chapter guide the student towards more focused research using the most current and relevant sources. Designed specifically for those new to the subject, Introduction to theEnglish Legal System is an essential introductory text for students at A level, 1st year undergraduates and those intending to take the CPE.

Author Biography

Martin Partington is a Law Commissioner for England and Wales and Professor of Law at the University of Bristol.

Table of Contents

List of Boxes	xv
List of Diagrams	xvii
List of Tables	xviii
Preface to the Second Edition	xix
Foreword and Acknowledgements (Preface to the First Edition)	xxi
INTRODUCTION
1 'Knowledge', themes and structure	1	(10)
Introductory	1	(1)
'Knowledge'	2	(2)
Images and pre-conceptions	2	(2)
Themes	4	(1)
Structure	5	(1)
Questions for discussion	6	(1)
Further reading	6	(1)
Websites	7	(4)
PART I LAW, SOCIETY AND AUTHORITY
2 Law and society: The purposes and functions of law	11	(19)
Introduction	11	(1)
The macro functions of law: law and orders	11	(9)
Law and public order	12	(1)
Law and political order	13	(1)
Law and social order	14	(2)
Law and economic order	16	(1)
Law and international order	17	(1)
Law and moral order	18	(2)
Other macro functions	20	(2)
The resolution of social problems	20	(1)
The regulation of human relationships	20	(1)
The educative or ideological function of law	21	(1)
Micro functions of law	22	(4)
Defining the limits of acceptable behaviour	22	(1)
Defining the consequences of certain forms of behaviour	23	(1)
Defining processes for the transaction of business and other activities	23	(1)
Creating regulatory frameworks	24	(1)
Giving authority to agents of the state to take actions against citizens	24	(1)
Preventing the abuse of power by officials	25	(1)
Giving power/authority to officials to assist the public	25	(1)
Prescribing procedures for the use of law	25	(1)
Conclusion: law and society	26	(1)
Questions for discussion	27	(1)
Further reading	27	(1)
Websites	28	(2)
3 Law-making: Authority and process	30	(39)
Introduction	30	(1)
Power, legitimacy and authority in the law-making process	30	(6)
Constitutions and constitutionalism	31	(2)
Political ideology	33	(2)
Membership of the European Union	35	(1)
European Convention on Human Rights and the Human Rights Act 1998	36	(1)
The law-making institutions	36	(1)
The British Parliament and central government	36	(14)
Primary legislation	38	(7)
Secondary legislation	45	(2)
Amending legislation	47	(2)
Comment on the legislative process	49	(1)
European law-making institutions	50	(4)
The Council of Europe	50	(1)
The European Union	51	(3)
The courts	54	(9)
The development of common law	54	(4)
Statutory interpretation	58	(4)
Procedural law	62	(1)
The European Courts	62	(1)
Other sources of law-making	63	(1)
Local and regional government	63	(1)
Other rule-making agencies	63	(1)
Other international institutions and bodies of international law	63	(1)
Conclusion	64	(1)
Questions for discussion	64	(1)
Further reading	64	(1)
Websites	65	(4)
PART II THE INSTITUTIONAL FRAMEWORK
4 Shaping the institutional framework: The role of Government	69	(22)
Introduction	69	(1)
The Lord Chancellor's Department	69	(12)
Principal responsibilities	70	(1)
The Court Service	71	(1)
Magistrates' Courts and the Magistrates' Courts Service Inspectorate	72	(5)
Judicial Studies Board	77	(2)
The Law Commission	79	(1)
Research	80	(1)
The Home Office	81	(1)
Legal Services Commission	82	(1)
Other government departments	83	(1)
Other structural issues	84	(5)
Questions for discussion	89	(1)
Further reading	90	(1)
Websites	90	(1)
5 The criminal justice system	91	(50)
Introduction	91	(1)
Theories of criminal justice	92	(1)
Understanding the criminal justice system	93	(1)
Pre-trial stages	94	(17)
The committing, reporting and recording of crime	94	(2)
The investigation stage-police powers	96	(5)
Comment	101	(1)
Next steps	102	(3)
The decision to prosecute	105	(4)
Criminal Justice Bill 2002	109	(2)
The trial stage	111	(18)
The functions of the courts	112	(4)
Magistrates' courts	116	(4)
The Crown Court	120	(1)
Comment	121	(1)
Issues in the criminal justice trial system	121	(3)
Sentencing	124	(5)
The post-trial stages	129	(5)
Appeals	129	(2)
Criminal Cases Review Commission	131	(1)
Parole and the work of the Parole Board	132	(2)
The place of the victim	134	(2)
Victim support schemes	135	(1)
The Criminal Injuries Compensation Scheme	135	(1)
Compensation orders	136	(1)
A strategic approach to criminal justice?	136	(2)
Questions for discussion	138	(1)
Further reading	139	(1)
Websites	140	(1)
6 The administrative justice system	141	(26)
Introduction	141	(1)
The role of administrative law: authority and values	142	(1)
Administrative justice: the institutional framework	143	(18)
The courts	144	(2)
Tribunals	146	(5)
Inquiries	151	(4)
Review 153 Ombudsmen	155	(3)
The Citizens' Charter/Service First	158	(1)
Other complaints-handling bodies	159	(1)
'Collective' administrative justice-regulators of privatized utility providers	160	(1)
'Private' administrative justice-regulation of the professions	160	(1)
Overview of the administrative justice system	161	(3)
The Council on Tribunals	161	(1)
The British and Irish Ombudsmen's Association	162	(1)
Need for a new overview body?	162	(1)
Audit and quality control	163	(1)
Questions for discussion	164	(1)
Further reading	165	(1)
Websites	165	(2)
7 The family justice system	167	(26)
Introduction	167	(2)
Social trends	169	(2)
Family justice: the institutional framework	171	(1)
Children	171	(5)
Family Proceedings Courts	172	(1)
The County Court	173	(1)
The High Court	173	(1)
Orders	174	(1)
A Children's Commissioner?	175	(1)
Adoption	176	(1)
Matrimonial matters	176	(1)
Ancillary relief	177	(2)
Enforcement	178	(1)
Reform	178	(1)
Child support	179	(2)
Criticism of the scheme	179	(1)
New reform proposals	180	(1)
Domestic violence	181	(2)
Family Law Act 1996, Part IV	182	(1)
Protection from Harassment Act 1997	182	(1)
The practitioners	183	(3)
Lawyers	183	(1)
Mediation and mediators	184	(2)
Couple counselling: the work of Relate	186	(1)
Funding family law cases	186	(4)
Conclusion	190	(1)
Questions for discussion	190	(1)
Further reading	191	(1)
Websites	191	(2)
8 The civil and commercial justice system	193	(30)
Introduction	193	(3)
Litigation and society	194	(1)
The provision of a civil justice system	195	(1)
Problems with the civil justice system	196	(1)
Access to Justice: reform of the civil justice system	196	(3)
Track allocation and case management	197	(1)
Civil Procedure Rules	197	(2)
Other reforms	199	(1)
The purpose of the civil justice system: the forum of last resort	199	(24)
Alternative dispute resolution (ADR)	201	(3)
The court structure: preliminary issues	204	(2)
Generalist v. specialist	204	(1)
Court fees	204	(1)
Enforcement of judgments	205	(1)
Delivering the Court Service: local initiatives and centralized justice	206	(1)
The County Court	206	(1)
The High Court	207	(3)
The Queen's Bench Division	208	(1)
The Chancery Division	209	(1)
The commercial justice system	210	(1)
The Companies Court	210	(1)
The Patents Court	210	(1)
The Admiralty Court	211	(1)
The Commercial Court	211	(1)
The Technology and Construction Court	211	(1)
Other courts and offices	211	(1)
Appeals and the appeal courts	212	(5)
Policy issues	212	(3)
The Judicial Committee of the Privy Council 214
The House of Lords	215	(1)
The Court of Appeal	216	(1)
Commentary	217	(1)
Questions for discussion	217	(1)
Further reading	218	(1)
Websites	218	(5)
PART III THE DELIVERY AND FUNDING OF LEGAL SERVICES
9 Delivering legal services: Practitioners, adjudicators and legal scholars	223	(30)
Introduction	223	(1)
The practitioners	223	(1)
Professionally qualified lawyers: solicitors and barristers	224	(11)
What lawyers do	224	(1)
Professional organization	225	(2)
Independence	227	(1)
Trends in legal practice	227	(7)
Other trends	234	(1)
Regulation of the profession: complaints and ethical standards	235	(6)
Handling complaints and ensuring quality control	235	(3)
Statutory developments: Courts and Legal Services Act 1990 and Access to Justice Act 1999	238	(1)
The promotion of ethical standards	239	(2)
Professional groups allied to the legal profession	241	(1)
Legal executives	241	(1)
Other specialist groups	241	(1)
Lay advisers and other providers of legal services	242	(1)
Lay advisers/advocates	242	(1)
Law Centres	242	(1)
Membership services	242	(1)
Specialist agencies	242	(1)
Adjudicators: the judiciary, ombudsmen and other dispute resolvers	243	(5)
Definition	243	(1)
Comment	244	(1)
Numbers	245	(1)
The literature on the judiciary	246	(1)
Judicial independence	247	(1)
The legal scholars	248	(2)
Questions for discussion	250	(1)
Further reading	250	(1)
Websites	251	(2)
10 The funding of legal services	253	(22)
Introduction	253	(1)
Publicly funded legal services	253	(12)
The death of legal aid	253	(2)
Community Legal Service	255	(5)
Comment	260	(3)
Criminal Defence Service	263	(2)
Private funding mechanisms	265	(5)
The civil procedure rules	266	(1)
Conditional fee agreements	267	(2)
Comment	269	(1)
Fixed fees	269	(1)
Conclusion	270	(1)
Questions for discussion	271	(1)
Further reading	271	(1)
Websites	272	(3)
CONCLUSION
11 Is the English legal system fit for purpose?	275	(10)
Introduction	275	(1)
Images of law	275	(3)
Law's functions	278	(1)
Law-making-legitimacy and authority	279	(2)
Justice and efficiency	281	(1)
Professional organization	282	(1)
The funding of legal services	283	(1)
Conclusion	284	(1)
Table of References	285	(4)
Index	289