This is a follow up to my Crowdsourcing post. For those who don’t know, I volunteer with the elderly. Tomorrow I will be presenting what follows (or part thereof: I appreciate it’s quite long) at the largest group the organisation runs. Despite some pushback I’ve received that this isn’t relevant to the people I work with, I’ve actually got a bit of a following. One of the members I ran into today told me I wasn’t allowed to talk about the law unless she was there to hear it, for example.
Some general thoughts about what I’ve written. This is very much written with a specific audience in mind (and I would write everything completely differently for a different audience!). The group I volunteer with is for locals who are 55+ but usually over 70. Education levels, attention spans, interest levels etc are varied. My aims are to give a snapshot of each area of law, make it interesting and entertaining, give some level of understanding, and to make it accurate enough within those constraints. I’m also trying very hard to keep politics out of it in the interests of group harmony, and some of what I say, even though it’s, again, accurate enough for these purposes, doesn’t actually represent my views. I am aware that what follows contains what might be considered inaccuracies, but I’ve sacrificed some accuracy to make it more digestible. Finally, I could well have given an entire presentation on the nature of our legal system, the kinds of rights we have, the nature of the rule of law, etc, particularly given this excellent resource from Justice (PDF at the link). But I think what most of the people I’ll be speaking to tomorrow are interested in is me, so I made the focus of the presentation the law that I’ve done. (Where names are mentioned, they’ve been changed)
As you all know, I am a law student and am about to start my second year. In my first year I studied criminal law, public law, contract law, and equity and trusts, which are four of the seven subjects that everyone in England and Wales must study if they want to become a lawyer. The other subjects that are compulsory are land law, torts, and EU law, which I will study this year alongside some electives. I will tell you a little bit about each of the first four today, as well as telling you a bit about the law in this country. The UK is actually not one legal system, but several. Here I will be talking about what applies in England, unless I say otherwise.
Before we get started, I have to make a few things clear. I’m happy to answer most questions (if I can’t answer them on the spot I’ll get back to you next week). However, there are some limits to this. Firstly and most importantly, I am not a lawyer and cannot give you legal advice, so please don’t ask. If you need legal help we can help you find resources. Secondly, I have done some legal work through my university (under the supervision of lawyers), and while I can talk about it in general terms, I cannot reveal anything confidential about the work I’ve done. Finally, I’d like to leave politics out of this if I can. The law is often very political, and of course I have my views on this, but this isn’t the time or the place. In particular, I know views on criminal sentences and Brexit can be quite divisive, so I’d rather not answer questions on those. (I will say that the law around Brexit is enormously complicated and I am not experienced enough to know very much about it at all.)
Common law and the rule of law
So, first of all, does anyone know what kind of legal system we have?
In England we have what’s called a “common law” system, so called because it started as the law that the king imposed on various regions during the Middle Ages. Australia and America also have common law systems. What’s particularly important about common law systems is that they allow judges to develop law, and the way judges interpret the law is particularly important. Most law today comes from statute, which is made by Parliament, but it is still true that there are laws that were developed by judges (murder, for example, comes from the common law and not Parliament). Interestingly, Scotland does not have a common law system, but a combination of common law and civil law. Most European countries have civil law systems. A civil law system is less reliant upon the interpretation of judges and more reliant upon law codes.
The law in England comes from three sources: Parliament, judge made law, and the European Union. It is also influenced by certain laws, such as the Human Rights Act, and certain values. Perhaps the most important value in English law is called “the rule of law”. This is a complicated concept, but the basic idea is that we are all equal before the law (unless there is good reason to treat you differently), and that no one can act without legal authority. It also stops the government from making things illegal after they’ve already happened (so, if you smoke a cigarette today and the government bans smoking tomorrow, the government can’t punish you for smoking today). The rule of law is fundamental for living in a free society. The reason why judges are so important (and why they are independent from the government) is that they uphold the rule of law.
There’s a lot more to say on the legal system in general, but we could be here all day, so I’ll move on to the topics I’ve studied this year. Does anyone have any questions at this stage?
The first subject I studied this year was criminal law. The criminal law defines certain behaviours which society thinks are so wrong that they should attract punishment from society. It used to be possible for judges to create criminal offences. They no longer do this, because it is wrong to punish people for actions which they did not know were criminal. This is the rule of law in action.
An interesting thing I studied in criminal law this year is the way in which the laws against assault and battery have been developed over time. For those who don’t know, assault doesn’t mean hitting someone, although that’s how it’s used by most people. This (NB: I will find a willing “victim” to demonstrate on before I start talking) is assault, and this is battery (yes, even the slightest touch counts). Assault and battery are judge made law. However, more serious forms of violence are criminalised under Victorian legislation, the Offences Against the Person Act 1861. This law is very old and can be a bit difficult to read. But judges have used it to deal with modern problems, such as the transmission of disease, and even stalking.
Mr. Ireland and Mr. Burstow were two very unpleasant men. Mr Ireland made silent phone calls to three separate women for months, while Mr. Burstow made silent and abusive phone calls, among other things, to a girlfriend who had broken up with him. The women were diagnosed with mental health problems resulting from Mr. Ireland and Mr. Burstow’s behaviour. Both men were convicted of acts of serious violence. Now, it was certainly not the case that in 1861 the Victorians were considering stalking, or health problems resulting from not touching victims, when they enacted this legislation. But the court held that it was possible to interpret the legislation to punish this kind of behaviour, even though they were not in the immediate presence of the victims and even though the harm caused was not physical harm. This shows the way judges develop the law.
Does anyone have any questions?
The second subject I studied this year was contract law. Contract law is about the legal agreements we make with others so that they do things for us and we do things for them. We get into contracts all the time, from buying a cup of coffee, to buying groceries, and much more. Most of contract law comes from the common law. One important thing to know about contract law is that you are usually regarded as agreeing to the contents of a contract if you have signed it, whether you have read the contents or not. But, as with buying a cup of coffee, you don’t have to sign anything to enter into a contract.
Mrs. Carlill lived in the 19th century, when our understanding of health wasn’t very good. She saw an advert for a carbolic smoke ball, which promised, if you used it as directed for two weeks, that you would not catch the flu. (I gather the smoke ball was pretty unpleasant to use) The advert promised payment of £100 (which was a lot of money!) to anyone who caught the flu this way, and stated that it had placed £1000 in a bank to show its sincerity. Mrs. Carlill bought the smoke ball from a chemist and used it for more than two weeks, as directed, and caught the flu. The company refused to pay, and she sued. The company argued that the advert was “mere puff”, that is, just meaningless advertising speak that no one really believes. It also argued that their advert was not a true offer, because it was an offer to the whole world, and it was not possible to make an offer to the whole world. The court held that the statement that the company had put £1000 in the bank showed that the advert was to be taken as genuine. However, the case is particularly important because it shows that, in contract law, it is possible to make a contract with the whole world. Mrs. Carlill won her case.
Does anyone have any questions?
The next subject I studied this year was public law. Public law is divided into two topics, which are administrative law and constitutional law. Administrative law as we studied it this year is primarily concerned with government decision making, whether it is appropriate, and whether it is within the powers that the law allows. This is not about courts making decisions for politicians, but ensuring that decisions are reasonable, proportionate, and in compliance with human rights law. Constitutional law is about the British constitution.
Does anyone know what kind of constitution the UK has?
Constitutions are about the powers of a country, the way they’re divided up between bodies (such as the Queen, Parliament, and the judiciary), and the rules surrounding this. The vast majority of countries in the world have a central constitutional document, called a constitution, most famously America. The UK, along with a handful of other countries in the world (including New Zealand and Israel) does not have such a document. This does not mean that the UK does not have a constitution, but it does mean that the constitution can be more difficult to define. There are advantages and disadvantages to this. I talked about the rule of law before: the rule of law is considered one of the most important constitutional principles in the UK (and many other countries). Another such principle is Parliamentary supremacy.
Parliamentary supremacy is probably the most important constitutional principle in the UK. This means that Parliament can make or unmake any law it wants to (no matter how unreasonable or awful) and there is nothing that anyone can do to stop it. This also generally means that, when Parliament makes a law, it is only Parliament (and not another body, such as the judiciary or Cabinet) that can undo that law. There was a case about Parliamentary supremacy which went to the Supreme Court earlier this year, which was the most important UK constitutional case of my lifetime, and possibly yours too. The government wanted to use its powers as the Crown in order to make some very important changes to UK law, and not pass it through Parliament. This was challenged in court. The High Court held last year, and the Supreme Court this year, that this was not a power that could be exercised without Parliament taking a vote. This case was about more than that (it’s very complicated), but that’s the most important thing about the case. You’ve probably all heard about this case: it’s the Brexit litigation that got so much media attention in January. I don’t really want to answer questions about Brexit, it’s extremely complicated and very political, but unfortunately most of public law is political, and when finding an example for this subject I couldn’t pass up a case of this importance.
Does anyone have any non-Brexit related questions?
Equity and trusts
My final subject this year was equity and trusts. Broadly speaking, for historical reasons, there are two forms of law. There is the common law (which, confusingly, has a different meaning here) and there is equity. Common law is older, it is law that you always have access to, and it is generally quite strict. By contrast, equity is only available under certain circumstances, and it is quite flexible. For example: if someone’s contract is breached, they will look to make things right, which is known as a remedy. Two types of these are being paid money, or making the other person do what they say they were going to do. Being paid money is a common law remedy, and is always available. Making someone do what they said they were going to do is an equitable remedy, and is only available under certain circumstances.
Probably the most important development from equity is the trust. A trust is where one person owns property for the benefit of another person. Let’s say you wanted to give your grandchild some land, and they are under 18. Children under 18 are not allowed to own land. You might give the land to your child, or someone else, to hold and take care of until your grandchild turns 18. When this happens, the ownership is split between your child and your grandchild. Trusts can be much more complicated than this, and also serve other purposes. For examples, charities, including (this charity), are trusts. The trustees, including Belinda, legally own the property of the charity. (I should note that I didn’t study charitable trusts this year and so my knowledge about that is pretty limited)
Trusts can also be used to solve legal problems. For example, what happens if a couple who own a house together break up? If they’re married, there is a simple answer in the law. If they’re not married, things become more complicated. This was addressed in two cases in the last 10 years, one in the House of Lords and one in the Supreme Court. It comes down to what the people want, but this is difficult to prove. People don’t write these things down because they don’t think they’re going to break up. Legally, they probably should.
The House of Lords and Supreme Court held that the default position in these cases is that the two people hold the property equally, unless there is evidence that they intended something different. In order to split the property, a particular type of trust is created by the court in order to make sure both people in the couple get the appropriate share of the house.
I hope that’s told you a little bit about the types of law that I’ve studied this year. Does anyone have any questions about equity and trusts, or about anything else? For those whose questions I haven’t been able to answer immediately, I’ll get back to you next week.