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BACKGROUND
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Constitutional Structure
Legal System
Human Rights
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UK Perspective: July 14, 2000

Alisdair A. Gillespie, Barrister
JURIST UK Correspondent

Hello and welcome to the latest UK Perspective.

Although not featured prominently in the local press, one of the major legal stories of the past week was the Home Secretary's signing of the commencement order for the Human Rights Act 1998 (click here for story). This Act, which will be the subject of a special JURIST report, will incorporate the European Convention on Human Rights into British law. The Act is to come into force on October 2, 2000 and will revolutionise the relationship between the citizen and the state. Whilst the United Kingdom was one of the first countries to ratify the European Convention on Human Rights - indeed, much of the document was drafted by British lawyers - it has always denied the necessity of needing to incorporate the law into domestic law. This meant that if a citizen wished to allege that the State - through one of its agencies - had breached his or her human rights, he or she had to petition the European Court of Human Rights in Strasbourg. This took considerable time and was very costly. When the Labour government was elected in 1997 it promised to incorporate the Convention into domestic law so that the British courts could decide Convention matters themselves. There is no doubt that this will cause some problems for public bodies and both lawyers and the courts are prepared to use the Act.

The Home Office has a very good page on the Human Rights Act 1998; to visit the page, click here.

Another UK legal story making headlines this week also relates to human rights. It has been reported that opponents of the Regulation of Informatory Powers Bill have stepped up their protests (click here for story). In reality it is only one part of the Bill they are protesting about, the one which concerns the regulation of the internet. Critics of the Bill say that it is too oppressive, a breach of human rights, and will stop companies wishing to set up in the United Kingdom. Delay in the Bill's passage could, however, cause significant problems for UK law enforcement agencies.

Another interesting legal story this past week concerned a speech given by Lord Steyn, one of the Law Lords. His Lordship said that the appointment of judges should be reformed (click here for story). Judges are appointed by the Queen on the advice of the Prime Minister and Lord Chancellor. In practice this means that the government choose them. There has been a lot of concern that the judges of the United Kingdom are not particularly representative of the country. The vast majority of them are men (there is not a single woman in the judicial committee of the House of Lords - the judicial equivalent of the Supreme Court of the USA), only two in the Court of Appeal (the next most senior court) and only a handful of women who sit as High Court judges (the senior branch of the trial judiciary). Even in the other judicial branches, men outweigh women by an enormous margin. Ethnic minorities are similarly excluded and many feel that what is needed is an Appointments Commission. Nobody is saying that the government are deliberately appointing men of a certain character, but the way they are appointed is that they ask lawyers and judges what they think about prospective candidates. This nepotism can lead to the same type of people being appointed. A vast majority of the country would wish to see change. Only a minority would - with all due respect to the customs of our American cousins - wish elected judges, but some kind of change is necessary. The fact that members of the higher judiciary are beginning to agree that change is very encouraging.

I have been wondering about whether to highlight one more story this week, but I think I will. All the major stories this week have revolved around constiutional law in some sense, and this last one is no exception: the announced retirement of the Speaker of the House of Commons (click here for story).

The Speaker of the House of Commons has a special place in the constitution of the United Kingdom. Whilst the Speaker is technically only another member of the House, she (or at least at present it is a "she") presides over the chamber, is the House’s representative to the Queen (and note it is that way round and not the Queen’s representative to the Commons) and she also represents the Commons in many trips abroad. The Speaker is there to ensure that the legislature is able to scrutinise the acts of the Executive which in British politics is not an easy task since the Executive is always the party which has the most seats in the legislature. Betty Boothroyd, the current speaker, made history by becoming the first female speaker of the house. I understand that proceedings from the House of Commons are carried around the world on TV and via the Internet, so some of you will have seen her keeping the House of Commons in order by shouting "Order! Order!" Everyone agrees that the current Speaker has been ideal. Traditionally the Speaker gives up their party allegiance and must be independent. The Speaker never takes part in debates and only votes when the House is tied. At general elections it is traditional for the Speaker to stand uncontested: the parties never field a candidate because of the independence of the Speaker. Madame Speaker will be sadly missed and the search is on for a successor who must be equally vigorous.

For those of you wishing to know more about the role of the Speaker, the BBC has a short fact-file which can be found by clicking here. The House of Commons itself produces a whole series of factsheets on the work of the House of Commons, including one on the Speaker. They are in PDF format, although the necessary reader is downloadable from the site. To see these sheets click here.

Missed last week's UK Perspective? Read it here!

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Correspondents' Reports

JURIST's own correspondent in the United Kingdom reports on recent developments in UK law:

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Government and Legislation

The United Kingdom does not have a written constitution. The equivalent body of law is based on statute, common law, and "traditional rights." Changes may come about formally through new acts of parliament, informally through the acceptance of new practices and usage, or by judicial precedents. Although parliament has the theoretical power to make or repeal any law, in actual practice the weight of 700 years of tradition restrains arbitrary actions.

Executive government rests nominally with the monarch but actually is exercised by a committee of ministers (cabinet) traditionally selected from among the members of the House of Commons and, to a lesser extent, the House of Lords. The prime minister is the leader of the majority party in the Commons, and the government is dependent on its support.

Parliament represents the entire country and can legislate for the whole or for any constituent part or combination of parts. The maximum parliamentary term is 5 years, but the prime minister may ask the monarch to dissolve parliament and call a general election at any time. The focus of legislative power is the 650-member House of Commons, which has sole jurisdiction over finance. The House of Lords, although shorn of most of its powers, can still review, amend, or delay temporarily any bills except those relating to the budget. Only a few of the 1,200 members of the House of Lords attend its sessions regularly. The House of Lords has more time than the House of Commons to pursue one of its more important functions--debating public issues.

The judiciary is independent of the legislative and executive branches but cannot review the constitutionality of legislation.

Source: U.S. Department of State

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Courts and Judgments

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Legal Press

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Law Schools

Most UK universities offer law courses. In the United Kingdom, law is a three-year undergraduate degree - entry is decided by reference to "A-Level" points. "A-Levels" are examinations students take in the two years prior to entering university and each grade is worth a different level of points. The hierarchy of the UK law schools is roughly equal to those who wish or demand students who score the highest. The older universities (Oxford, Cambridge, Durham, London etc.) are still considered to be some of the most prestigious universities in which to "read law", but many newcomers have entered the field and, infused with energetic faculty members and diverse student bodies, are beginning to give the traditional institutions a run for their money.

There is no set format for UK law teaching; each university is allowed to decide how the subject will be taught. Some universities offer a large number of lectures and a small number of tutorials (e.g. "Oxbridge" and Durham), whereas other universities prefer more tutorials where near one-to-one tuition can be offered (e.g. Northumbria University) The only common thread uniting law degrees is that for them to qualify as law degrees for professional purposes, students must study Constitutional law, E.U. law, Contract Law, Law of Torts, Criminal Law, Land Law and Equity and Trusts.

At the end of three years students are awarded a bachelor's degree in law and they must then decide what to do next. A large proportion - possibly around one-third - will decide not to enter a career as a lawyer. The others must choose between becoming a barrister (essentially, a courtroom litigator) or a solicitor. Students who do not have a qualifying law degree (either because they have not studied one of the subjects listed above, or because they have read for another degree) but who nonetheless wish to enter the professions must do a one-year course called the Common Professional Examination and then they too have to choose which profession to enter. A would-be barrister has to take the Bar Vocational Course, which lasts one year. Prior to 1998 this course was taken in London at the Inns of Court School of Law, but nowadays there are several universities which also offer the training. Would-be solicitors study the Legal Practice Course, which is also one-year long and is offered by numerous universities, as well as by the College of Law (the formal "solicitor's university"). After completing their respective professional courses, law students then undergo professional training. A barrister undertakes a year of "pupillage" in barristers' "chambers", which is actually two six-month placements. A solicitor takes a training contract ("articles") which lasts for two years.

Legal education in England and Wales is changing quite rapidly, and in the opinion of some academic and professional observers a number of the older UK universities are not changing fast enough. Many UK law schools now offer skills-based learning like moots and advocacy, and many universities are also offering part-time or distance-learning degrees. The Open University (which was set up by the government in the 1960s primarily to teach adults by distance learning, which then meant correspondence and television) is leading the way in this field in general; in law, the University of London now offers an external LL.B. degree that can be taken by distance learning, and Strathclyde University in Scotland is offering an LL.M. through the internet. Bringing modern teaching methods to bear on legal education will help to ensure that law remains one of the more popular and respected degrees in the United Kingdom.

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JURIST Correspondent
Alisdair A. Gillespie, Barrister (Middle Temple), Lecturer, Centre for Police Research and Education, University of Teesside, Middlesborough