The British Legal Profession



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The British Legal Profession



For historic reasons, the legal system in Scotland differs from that of the rest of the UK. The Scottish legal system is based on Roman law (a principle applied to a case), however, most of the law is the same and the law laid down by Parliament is almost always followed in Scotland. Nowadays the major area of difference is in landholding.

The system for the rest of the UK is based upon Norman practice, i.e. Case Law. There used to be travelling courts which tried cases and established precedents which were then followed by other courts. This system of precedents still continues. A typical example is the case of Lloyds Bank versus Bundy. In this case, a farmer called Bundy had borrowed money from Lloyds bank against the security of the farm. The property was in his sole name, although he had lived at the farm with his wife for many years. Mrs. Bundy had not signed the bank documents for a loan. Mr. Bundy failed to repay the loan / make repayments and the bank suedhim to get possession of the farm which it would then sell to recover / reimburse its money. The Justice of the highest appeal court ruledthat, as the wife had contributed to the house over many years, she was entitled to a share of it and that the bank had no right to deprive Mrs. Bundy of her home in order to satisfythe bank’s demand for repayments. The bank would have to wait until the farm was sold at some future date. In other words, the bank’s security was limited to Mr. Bundy’s share of property and, as the property was indivisible, the bank could not have the farm. The precedent setby this case sent shivers throughout the banking systemas all banks had lentmoney to businesses against the matrimonial home which, more often than not, was in the sole name of the husband and his wife had not been party to the loan agreement.

This precedent did not require a new law to be passed by Parliament. So now, if I want to borrow money from the bank against my house, my wife has to sign all the documents.

There is also Statute law, laid down by Parliament, which is superior to Case law. There are basically two types of law. Civil law deals with disputes between individuals: business contracts, divorce, libel, etc. A plaintiff brings a case against / sues the defendant. As a result of the case, the plaintiff hopes to be awarded damages or obtain an injunction against the defendant to prevent the defendant taking an action (or repeating a statement). It is a civil offence to drivefaster than the speed limit: a criminal offence to drive in such a way as to endanger life.Criminal lawtries the cases ofbreaking the law: murder, theft, criminal fraud. Criminalcases are brought bythe state – the Director of Public Prosecution and are referred to as The Crown versus the Accused. A Defendant is innocent until proved guiltybeyond all reasonable doubt. If a defendant is found not guilty, s/he is acquitted. Then the court returns a verdict.

The lowest level of court for trying minor offences and the firsthearing of seriouscases which are then passed up to a higher court is Magistrate’s Courts. They are held by Justices of the Peace / M agistrates, who are mostly unpaid members of the public (local businessmen, Headmasters). The magistrates are assisted by a legally qualified clerk, a paralegal. In London and some of the other major cities, the main Magistrate’s courts are held by professional magistrates (Stipendiary Magistrates), who receive a stipend or salary (about £70, 000 a year). There are about one hundred of these magistrates, who are qualified solicitors. There are Magistrate’s courts in all towns. Offendersunder 17 years old are sent to Juvenile courts which try juvenile delinquents.

Crown Courts arefor criminal offences. In the larger towns they are held by Judge and Jury (of 12 ordinary men and women). The Judge decides the punishment according to the law and taking into account previous offences. County Courts are for civil cases: bankruptcy, divorce, etc., while the High Court tries more serious civil cases and appeals from County Courts, presided by three judges without a jury; Court of Appealdeals with appeals from criminal cases; the highest court isthe House of Lords. Solicitors deal with property and all forms of law. Some have the right of appearance in courts above the level of Magistrate’s Courts, but advocacy in the higher courts is undertakenby barristers, who usually specialize in particular areas of the law. Senior barristers take silk and become Queen’s Counsels. They wear wigs and gowns in court as do Judges who are selected from barristers. Solicitors and barristers earn fees (a senior barrister can earn over £1 million a year and senior solicitors – several hundred thousand pounds). Judgesare salaried (up to £150, 000), but they get a pension for which the other two have to make provision for themselves. A few solicitors (and barristers) now work for contingency fees in civil cases where the plaintiff would be not able to afford to bring an action. The legal team would geta share of the damages awarded. This is common in the USA, but rare in the UK (so far). Chief Clerk and Senior Clerks assist solicitors to create any documented procedure, discuss fees and provide estimates for anticipated work and do the billing. These fees normally reflect the time taken, the complexity of the work involved, its urgency and the importance of it to the client.

                                                                                                                                  F. Mortimer

Practicum 1.8

Translate the italicized word combinations in text 1a into Russian

Practicum 1.9

Practicum 1.10

III. Communication Practice

Role play

Talking law issues on International Legal Practices; exchanging news, views and experiences. Comment on the rationale the legal system in England and Wales is based on (define the difference between Statute and Case law; describe the levels of court in the British legal system and what cases they deal in; what courts try minor offences and serious crimes; how much the legal team is paid). Provide historical evidence on how precedents in the UK were established; relate it to legal practices in your country and your own professional experience.

Text 1b

The text to follow deals in talking law. Study the text and use it as a starting point for communication

How Laws Are Made

Britain has a body of law known as Common law. It has developed over hundreds of years from judgments given in courts. If a judge makes a decision about a case, then other judges will normally follow his lead and return the same verdict when similar cases come before them. This means that the judge who made the first decision in fact made a kind of law himself because his ruling will be followed in the future. This kind of law is known as Case law.

Today it’s Parliament which makes the majority of British laws, about 100 laws a year, known as Acts of Parliament. Parliament takes these decisions on people’s behalf as it contains a variety of experts from all walks of life and give others benefit of their experience. No new law can be made by Parliament unless it has completed a number of stages in both the House of Commons and the House of Lords, and been agreed by both Houses. The Queen also has to sign the Bill so that it has been given the Royal Assent (a formality). Only after the Royal Assent does it become a new Act of Parliament. Before this, while it is still journeying through Parliament, it is called a Bill. Before a bill can be produced into Parliament several things have to happen. Normally, consultations take place with those who are likely to be affected by the Bill. Government Bills also have to be approved by the Cabinet. Within a Department, both the Ministers, who have responsibility of piloting the Bill through Parliament, and the permanent officials, known as civil servants; will be involved in the consultation process. Sometimes the Government will set out its ideas for a Bill in a discussion document known as a Green Paper. After the discussion stage, the department may then produce firm proposals in a White Paper. Not all Bills have Green and White Papers.

Before a Bill can go through all its stages in Parliament, its contents have to be written down, so that the MPs will know exactly what they are discussing. The process is known as drafting. Once the Bill is drafted in exact terms which allow no loopholes and checked by the Department, it goes to Parliament. It’s Parliament’s job to see that only Bills which are in public interest are allowed to pass and become new laws. Parliament can reject Bills which it feels are not in the interests of the public. The stages of bill-passing are known as Readings. This is because in the days before printing, the only way in which MPs could find out what a Bill said was by having the contents read out in the Chamber.

First Reading is a way of introducing a Bill into Parliament, the House of Commons. There is no debate at this stage; MPs have a chance to read a Bill to decide what they think about it before the important Second Reading stage. The date for the Second reading is to be named when a Bill is given its First Reading. Second Reading is the stage when the Minister in charge explains the main purpose of the Bill and answers any general questions about the Bill. Only if the House votes for the Bill does it proceed to the next stage, known as the Committee Stage. On each Bill there is a separate Committee formed. Often several months are required if the details of a Bill are to be properly examined. It’s during the Committee Stage that Members are, for the first time, allowed to suggest changes to a Bill. These changes are known as amendments. Any voting on amendments is done by a show of hands. If there is a tie, then the Chairman has a casting voice.

The Report Stage presents further consideration and changes by the whole House. Third Reading is the last the House of Commons stage before the Bill is passed to the House of Lords. The House of Commons gets a chance to look again at the Bill as a whole, with all its amendments, and decide whether they want it to go further.

The House of Lords has the job of reviewing Bills received from the Commons. A Bill in the House of Lords has to go through the same number of stages as in the House of Commons: First Reading, Second Reading, the Committee Stage, the Report Stage, and Third Reading. All Bills amended in the House of Lords have to be taken back to the Commons. If the two Houses were unable to compromise, the Commons would eventually get its way by reintroducing the Bill the following year. The Lords cannot reject a Bill if it is passed by the Commons two years running. Once the two Houses of Parliament have passed a Bill, then it has to go to the Queen for the Royal Assent. The Queen doesn’t do it herself, she signs a Commission which commands certain lords (Royal Commissioners) to go to the House of Lords and let members of both Houses know that the Royal Assent is given.

                                                                                                        E. Stones. Education Sheets

Practicum 1.11

Translate the italicized word combinations in text 1b into Russian

Practicum 1.12

Practicum 1.13

Describe the stages a Bill in the UK journeys through to become an Act. Research into the Russian law-making practices, compare them

III. Communication Practice

Brainstorming

- a team of civil servants are to set out ideas on the Carbon Dioxide Emissions Bill on behalf of the government. Do brainstorming, practice Suggesting Arguments and Providing Evidence strategies to develop a Green Paper for the Bill.

- a leader of a legal team working on a draft Bill, rejected in the first hearing, delivers the news to the team; puts it down to bad luck, encourages them to keep working, outlines avenues of further efforts

PROGRESS TEST 1



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