1Paul M. Perell , Stare
Decisis and techniques of legal reasoning (The Canadian Legal Research and Writing Guide) assessed
January 21, 2018

2 Budget
Review 2017 (Republic of South Africa)
January 21, 2018

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Treasury  (Treasury Minutes) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415599/48383_Cm_9034_Web_Acc.pdf
assessed January 21, 2018

4Robert Mendick, Former Met commissioner Sir Paul
Stephenson (The Telegraph)< http://www.telegraph.co.uk/news/uknews/crime/9545415/Former-Met-commissioner-Sir-Paul-Stephenson-visits-British-court.html>
assessed 21, January 2018

5 Daniel
Forbes, Men of Magna Carta: Right, Might and Depravity (Google Books)
assessed 22, January 2018

Adam Wagner, Article 6 (Article 6, The Right To Trial) https://ukhumanrightsblog.com/incorporated-rights/articles-index/article-6-of-the-echr/
>assessed 22, January 2018

7 Tom
Bingham ,The Business of Judging (Google Books)
assessed 22, January 2018

Things have certainly changed since the 19th
Century with the acceptance that Parliament and the Monarchy would never
interfere with legal processes. The formal approach of meetings between
Ministers and the Judiciary is beneficial. The sense of justice and fairness
with transparency of coherent procedures is and will only allow the rule of law
to evolve just as society has. Lord Denning once said that “If we never do anything
which has not been done before, we shall never get anywhere. The law will stand
still while the rest of the world goes on, and that will be bad for both”7. I
could not agree more as we are the “happier of other lands” and it is essential
that we maintain continuity exemplifying virtues beyond imagination just as
Lord Denning did.  

In conclusion I would say that if any reform is to be made
after the departure of UK out of the European Union is that the Judiciary
develop a codified constitution with a mandate of there being a separation of
powers with the Judiciary being free of the other two branches of state i.e.
The Government and the Parliament. A clear distinction of separation of power
would allow a balanced understanding of how they all operate as that will
ultimately ensure that the rule of law prevails.

A new enthusiastic approach towards the consideration of the
appointments of ethnic minority and the inclusion of more women has gained
momentum as a strong talking point for many. But bearing the strain of
legislative processes is no easy feat for anyone, as a strict view of
candidates only being considered for selection purely off merit has rightly
taken precedence over a new enthusiasm for diversity and any other external
pressures. Objectively, a fixed criteria, one solely based on qualifications,
integrity, ability, efficiency, character and many more guarantee that
impartiality is guaranteed in one’s decision making. Authorities at European
tribunals also guarantee the same impartial approach .i.e. as Article 6 of the
European Convention on Human Rights clearly states that “in the determination
of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law”6

The UK including specifically England and Wales are now
known for their judicial independence due to past reformation. The last radical
reform was of the UK government’s decision to abolish the role of Lord Chancellor.
Nevertheless, to the surprise of many in Government, the then prime minister,
Tony Blair ultimately decided to not discard but affectively modify the role of
Lord Chancellor despite the role dating back to the 7th century.  Individuals such as Lord Irvine were not in
support of any judicial reformation being made. The initial plans for reform
had led to many suggesting that the initial speed of the move to establish change
was not thought through well enough because of the negative opinion amongst the
wider general public. However, being free of any improper influence from
external sources such as media is a strong characteristic embedded in the UK’s
Judiciary, as light is now being shed on broadening diversity as the very
nature of the selection process has been questioned.

An initiative for reform for fundamental change and a
guarantee of integration of funding and new ideas to improve the governance of
our Judiciary will never be asserted without a political colossus, material
change of political capital which will be used to improve and get to the point
of making sure that discipline and tactics are also implemented to the change
of our Judiciary. The people of the United Kingdom expressing themselves
democratically could also shift the balance and relationship between the problems
of damaging the legitimacy of our contemporary reality where concern of our
limited form of law can be justified by democratic principles.

On the contrary, the self-governing transition may take some
time but a good, practical, distinctive, multi layered democratic set of principles
will be to have a mandate in a new published legal manifesto. However, the
continued explosion of statutory instruments and rules will decrease as the
parliament will have sole control with developing new legislative text such as
regulations that will solely benefit the British Judiciary system with a mutual
standing recognition of imposing a singular standard of realisation that high
environmental standards and British courts adjudicating which can only make the
United Kingdom stronger.

We are living in a society today were in economic and
political theory, it can be argued that Britain is not master of its own
destiny anymore. Essentially, it is the wish of Parliament and the Monarchy for
British law to once again reign supreme. The law is constantly evolving and you
cannot cut and paste, it will be difficult to nail down the scale of systematic
structural elements as 60 % of law made up last year was EU law. Once we leave,
it will become English law but with great respect, developing regulative
structural elements will potentially be unending but British law is relatively
straight forward.

Sovereignty is about outcomes and an evolving pattern is
absolutely always necessary. Once the UK leaves the EU it will give the
parliament sole sovereignty which will only benefit the constructive role of
UK’s democratic institution. An ability to act alone will enable the evolution
of England’s Judiciary. The legislative dimension is currently shared with
Britain being in the EU, with a lot of corridor bargaining being made with so
much of the parliamentary proceedings being about executing decisions in the EU
with a limited amount of “important” discussions being solely based around the
EU and not the UK.

As the wheels of history turn, it is important to acknowledge
that the whole idea of structural reform could potentially take centuries to
manifest and evolve, regardless of the exit from the European Union. Rewriting
the DNA code of democracy for the British Judicial system will not manifest
without a fight, but from whom. It is still unclear as to whether the
multilateral relationships which have pulled together a quilt of international
law have eroded national sovereignty.

Are the courts losing power to the now secular multicultural
influx of individuals acting off religious principles? The parliament will surely
disagree, but the United Kingdom has always been of a constitutionally
Christian heritage as the church will always have visible ties to the
state.  In contrast, the UK is not a
secular state and the Monarchy who are historically Christian, once promised to
abide and maintain the rule of God. Article 1 of the Magna Carta states that
“We grant unto God and by this our present charter we have confirmed to us”5.
So in addition, a British Judiciary without its principles derived from its
Christian heritage may lose its God given expression of necessary complex
innovation and spiritual moral standard which has in affect created the pyramid
structure we now see today.

The great problem is persuading our new generation of understanding
the dramatic events of dramatics and theatrics of the English legal system in a
whole with .i.e. firstly, the clothes judges and barristers leave their
ordinary lives to wear and the imposed force of putting an individual into an
arena, exercising the performance of legal rituals and placing an individual
back into their normal life. The whole tone of society does not scream with one
voice anymore as communities are now vastly multicultural with many faiths
which are rightly entitled to be taken into consideration for the avoidance of
unavoidable conflict.  As stated above,
the upmost respect is entitled to these views as the modern Judge is expected
to be the guardian of society’s morality. Secular objectives draw controversy
because of the limits drawn by the Judiciary, as public policy of English law
will now decide the validity of a so called arranged marriage, forced marriage
etc as Lex Loci Celebrationis (Law of the land) is public policy of the English
legal system.

The great dispute is to distinguish whether a basic human
attitude can underpin all Judiciary systems in England and Wales such as the
reasonable man test, which is standard and can be interpreted as a
universalistic principle for this country. Is our democratic judiciary’s sense
of dependency to the laws of the 13th and 14th century
still needed? Furthermore, is the judiciary’s customary oral system that is
based on precedent feel outdated, with a potentially backward thirst for
structural changes and legal principles just like the old Roman law, do these
changes need to be implemented and made to be more prudent?. Ultimately, in
other respects the central essence of the English judiciary is pertaining to
invisible visibility, which in Latin is incorporeal (rights that cannot be seen
or touched, but are still enforceable by law).

However, from the House of Commons to chat shows on TV you
will notice that we as British citizens have a very antagonistic attitude
toward one another. Consciously or subconsciously, just as our judiciary, we
have been made to see and think in black and white and that can lead to an
aggressive confrontational attitude in binary thinking of right and wrong. But
if we take into consideration the advantages of our politically driven
judiciary, we can be proud and say that all and everyone are answerable to the rules
of law. The crown, politicians and ministers included.

There is an important distinction to be made as the UK has
no written legal binding constitution, but nonetheless; there are advantages
such as the absence of a knock on the door at night, as without a legal
warrant, the police cannot detain you unlawfully or subject you to arbitrary
punishment. The Habeas Corpus Act of 1679, which has been a feature of English
common law since before Magna Carta is known as the “the great and efficacious
writ in all manner of illegal confinement” which in simple terms means that the
custodian is to present proof of his or her authority which in effect allows
the Judiciary system to determine whether the custodian is acting beyond his or
her authority. When the conclusion is ultimately met, the prisoner will be
released. So the lack of fear and build-up of certainty ultimately leads to a
huge amount of trust in social life.

However, historically, there has always been an inverse
relationship between the importance of case law that is taken up by the UK’s
courts of law and the volumes of matters that are brought before court itself.
As such it is important to know that the courts in the UK are geared towards an
adversarial system i.e. one person wins and one person loses. However,
conversely, it could be a subconscious general view of society that the English
legal system may not be systematic enough and filled with a political
philosophy that hinders further evolution. The tradition has been one of
continuity yes, but there has not been one single profound event that has
changed the course of history for the United Kingdom. It has not lost a war; it
has not had a revolution or had to gain independence so there has not been a
need for further input in development of fundamental principles in the
Judiciary. Arguably, the English legal system is un-patterned and has not grown
with a blueprint which has enabled the courts to develop mechanisms to help
deal with conflictive issues that may help with the timeliness of proceedings.
As it is still unclear as to which decisions processed are the most authoritative
regardless of there being a court hierarchy.

At present, it could be argued that the shackles need to be
removed as the general consensus is that the formal court structure in England
and Wales is “outdated and requires reform”. Few may dismiss the need for more
reform and argue that the judiciary has developed and evolved over the past
thousand years with an emphasis on continuing to develop and meet society’s
needs and expectations.

I would imagine that fundamentally, the goal when
universally conceptualising the word ‘court’ in the UK, the incentive would now
be to broaden the perception of a civilians thinking so he or she is not
limited by the mental constraints of negative press from public figures such as
Sir Paul Stephenson, but ultimately understand, if the funding be available to
the courts, a paperless Judiciary system could be achieved where the case
management of paper files and obsolete management systems will be a thing of
the past. 

It is no secret that the judicial system needs to be
modernised with a closer monitor on the timeliness of hearings, statistical
data provided to judges, settlement rates and the overall performance of
practice methods. But having said all of that, the inclusion of new IT software
to help manage and shorten the duration of time used to process legal data,
must go hand in hand as it would make a big difference to the general
effectiveness of the court system. On the contrary, new court buildings and
locations should also remain an essential priority in implementing a
generalised strategy in moving forward with the times of developing a
successful, potent and functional judiciary system. These ideas could play a
pivotal role in increasing the complexity and specialisation of minimising
paper based work load inside the courts general offices.

It is fair to say that all external perspectives are usually
never underplayed and hardly ever undermined as public figures such as Mr
Stephenson tend to have a grander vision for the UK’s theme of enhancement of
effective distinctive proceedings. Some may argue that these perspectives are
also keenly felt by the general public but nevertheless, it may be indicative
of a larger problem that the United Kingdom may have, such as recognising that
we have many responsibilities, with one of them being legal imperialism.  

Nevertheless, broadly speaking, the High Court has two
divisions, the Criminal and the civil division. The Criminal division only
hears appeals from the Crown Court whereas the civil division hears appeals
from the County Courts and High Court of Justice.  In a recent article, Sir Paul Stephenson, the
former Met Police Commissioner argued that ‘I have seen nothing to show that
the courts are anything other than slow, bureaucratic and hugely frustrating’ 4
He concluded his assault of the judiciary process with stating that the courts
are “More designed to suit the needs of its constituent elements rather than
the citizens it should serve”. These statements are impartial and clearly
objective with a clear understanding on what audience he is addressing, so that
leads to the question of whether our national self-interest is now completely
intertwined with Europe? Or is our position now measured and without essence of
enough rational to see the possible cracks in our legal system.

In the United Kingdom, primarily England and Wales, there is
a structured hierarchy of courts that deal with a broad amount of cases.
Firstly, family proceedings and youth court matters all fall under the Magistrates
Court umbrella.  The higher risk cases
are heard in the Crown Courts by a trial Judge and Jury following committal by
a Magistrate Court. The High Courts of Justice, together with the Court of
Appeal are the senior courts of England and Wales. The High Court deals with
cases of high value, high importance and significantly more substantiality.
Whereas, the Court of Appeal is second only to the Supreme Court, the highest
court in England and Wales.

However, it was published on the Ministry of Justice’s settlement
at the spending Review 2015 that the Government was able to spend £4 trillion
on its priorities over the next 4 years. It was documented that £1.3 billion2
of investment would be applied to improve the transformation of the prison
estate to better support the rehabilitation of prisoners. In addition, £700
million investment was to be applied to the courts and tribunal system to
create “a more proportionate justice system” which will help increase savings
of £200 million a year from 2019-20203.

Moreover, the interpretation of pre-existing rules and
varied procedures used such as ‘Stare Decisis’ (To stand by decided matters)
applied to concrete live situations in court frankly conceptualised a strong
form of justice.  In the case of McWilliam v. Morris, 1942 O.W.N. 447 at 448-91,
where he said: “The doctrine of Stare Decisis is one long recognized as a
principle of our law. Sir Frederick Pollock, in his First
Book of Jurisprudence, 6th ed., and p. 321: “The decisions of an
ordinary superior court are binding on all courts of inferior rank within the
same jurisdiction, and though not absolutely binding on courts of co-ordinate
authority nor on the court itself, will be followed in the absence of strong
reason to the contrary”.

There has always been a growing pressure to implement change
in the court structure but until society’s need for reform with observers
questioning the institutional legitimacy of the formal structure of the
judiciary system, it was respected and revered because of decisions viewed as
principled rather than motivated by self-importance and constituency. Regardless
of whether the decision was unpopular it was inevitably respected and accepted,
as one of the courts most precious traits was arguably it’s perceived
legitimacy and, ultimately its awareness of being mindful of domestic peace and

The formal court structure in England and Wales is outdated and
requires reform