Slapper and Kelly's The English Legal System

Author Introduction

Hello, I am David Kelly the current author of Slapper & Kelly’s The English Legal System, 20^th edition.

I will be splitting this introduction into several parts, starting with the requirement for the new edition. As I wrote in the preface to the book, so much had happened in and to law in the time since the previous edition that it became essential that the website was updated. In the time in between editions, there have been so many major changes that need to be considered —and not just legal ones, either. In no particular order of importance, let me mention some of them.

First of all, let me look new statutes, or Acts of Parliament. There have been many major legal provisions brought into law since the last iteration of this book. Among these, and I stress this is just a short selection of the Acts that are dealt with extensively in the book, are as follows:

In 2020:

• The Divorce, Dissolution and Separation Act, a hugely important change in relation to family law.
• The Sentencing Act, an extremely important and extensive act that requires detailed consideration in the way it alters sentencing.

In the following year 2021:

• The Domestic Abuse Act, which goes some of the way to dealing with the abuse that people—and by that I am overwhelmingly talking about women—suffer in relationships.

In 2022:

• The Judicial Review and Courts Act, which continues the government’s wish to limit such actions against the decisions of public bodies, authorities, and itself.

Then in 2023:

• The Public Order Act, which introduces what might be seen by some as more authoritarian control over public protest and demonstrations.
• The Illegal Migration Act, which although, as yet has only been brought into partial effect, remains on the statute book for possible future use following the Rwanda fiasco.

That list alone is a heavy burden for students of law to take on board, and it has not even mentioned the legislative consequences of the Brexit decision to leave the EU. However, there many other provisions that are dealt with in the text, all of which have had, or certainly will have, significant impact on the citizens of the UK.

So much for legislation, now let me mention some court cases.

There have been many essential cases decided in the time between editions of this book, including decisions of the courts that have had a major impact on the way in which both law and society function. This encompasses cases dealing with the situations of individuals, such as R v Challen in 2019, or the numerous cases with Shamima Begum’s citizenship claim.

It also includes cases relating to the highest level of the UK polity and constitution such as the prorogation case Miller v The Prime Minister [2019], the issue of whether the Scottish devolved government had the right to insist on a second independence referendum, and of course the Rwanda immigration case delivered by the Supreme Court in November 2023. There are many others that can’t be here considered here for pressure of time.

Next, we have to bear in mind that there have been other larger, non–immediately legal, things happening that have had an enormous impact on the day-to-day existence of ordinary members of UK society, and which also require and direct the creation and implementation of UK law:

• Threats of terrorism
• Brexit
• Covid
• Asylum seekers, refugees, and illegal immigration
• Social discontent and protests about the environment and other social and political issues like Black Lives Matter

All of these particular social problems generated specific legal responses in the attempt to deal with them.

What follows perhaps makes more explicit what has always been the underlying approach of this book: that law does not exist merely, or even really, as a distinct sphere of knowledge and application. It is not some sort of internal, closed loop, feedback system, developing its own particular rules and regulations apart from everyday social activity. Rather it is a result of attempts to regulate particular social forms, concerns, and actions.

I will now refer to one of the core texts in legal history. In Thomas the Tank Engine (it is a long time since I read it, so I can’t remember the exact title), the author, Rev Awdry, has the Fat Controller express his domination over his trains and his railway. He states, “The law is the law,” (harsh as it might be, and in his favour of course) as he bricks up one of his recalcitrant trains in a tunnel. Sir Topham Hatt’s articulation still represents one view of law, but it’s no longer the general one and certainly not one this text agrees with.

You can learn, rote fashion, what legal rules apply to any particular issue, and lawyers have to have a detailed knowledge of the contemporary expressions of such rules, but actually studying law involves more than that. It requires a knowledge of and an ability to use other disciplines: philosophy, sociology, and history certainly, and other perhaps less obvious areas of understanding in coming to fully comprehend the purpose, form, content and effect of specific laws.

As students of law, we must know the structure and rules of the legal system. However as much law is in constant flux, students will be much better prepared for future changes by developing wider skills to reach an understanding of how law operates generally, as well as the specifics of immediate highly detailed legal rules and their application.

However, once it is accepted that law is, perhaps, nothing more than a mechanism for regulating and controlling particular social systems, then it becomes an object of external evaluation and criticism. It becomes open to evaluation, not just on the basis of legalistic foundations, rules, reasoning, and judgements, but on its ability to practically and effectively deal with the problems that are put before it.

It becomes revealed as a forum in which social/political/economic arguments are argued out and decided, but always under the almost asocial guise of legal maxims and procedures, tailored to fit the case.

The foregoing has to be considered within a political structure that has seen the UK leave the European Union which it had been a member of for 47 years and which had been the source of much of its law. However, these aspects of our current situation reveal the way in which the obvious systemic relationship between the first two aspects mentioned previously—legislation and the courts—is broadened to reflect and deal with the issues and problems of the wider social context. Terrorism, Brexit, Covid, Immigration, and Social Discontent have all given rise to specific legal mechanisms to deal with them and the legal system is required to take account of those factors. For that is its function, to apprise, appraise, and deal with the consequences of those various problematic occurrences. The question is: how has the law been used to deal with these issues? Is it effective, but perhaps more importantly, is it right?

The link between law and the social context within which it operates, but also which it reciprocally constitutes, has been central to the numerous versions of this text. Perhaps the interaction between law and society is just more apparent in contemporary circumstances where the law is being used to deal with what are perceived to be, not only social problems, but, perhaps more fundamentally wrongly, social problems that are open to solution by law.

For example, and just to pick one example from many possibilities: Brexit. Although the result of a socio/political agitation and decision, could only be achieved through legal mechanisms disentangling the UK from its previous membership of the EU and replacing previous EU law with specific domestic law. So, legal forms embodied and facilitated the political decision to leave the EU. (As an aside my spellchecker replaced facilitated by facelifted, so who can possibly deny the acuity of artificial intelligence!)

However, to return to text:

Covid introduced, and was controlled through, specific legal measures regulating how people could interact, leading to criminal convictions for some notable people. It remains for the law to determine the appropriateness of the steps taken during Covid pandemic and to allocate responsibility for the many abuses and failures that arose during the period.

The potential of terrorism still exists, but the focus of the state has shifted to the more immediate issue of immigration, asylum seekers, and refugees. Obviously, such issues are political but their operation is legal in terms of domestic and international law, a perhaps surprising new focus in this edition of the text. The very recent decision of the Supreme Court in relation to the Rwanda proposals to send supposedly ‘illegal’ immigrants abroad, make such issues immediate, and immediately matters of law, perhaps to be dealt with by future legislation.

Environmental degradation and global warming is only one area where some members of the public have taken it upon themselves to act contrary to existing, and recently introduced restrictive law, in their pursuit of what they see as justified resistance to contemporary socioeconomic structures and the legal rules protecting such structures. The question is whether they can defend their ‘illegal’ actions on a basis other than what the law states.

As this text is being finalised, the horrific killing in Israel and Palestine is ongoing. Although not a matter of immediate English law, it does require assessment from the perspective of international law, which this version of the text highlights as a core aspect of the domestic recognition of the rule of law.

Now, there has been another major rejig of the government. We have four prime ministers since September 2019 and now we have the appointment of a new Home Secretary following the controversial sacking of Suella Braverman almost certainly over the implementation of the government’s immigration policy. Indeed, it is possible that a general election will be held before this book is even published, with the certainty of a new parliament and possibility of a new ruling party. However, the general point made throughout this book will apply: law is a product of society, it can at least partially and temporarily forcefully impose particular forms of behaviour, but it can also be used as a mechanism to control abuse. Law is always open to criticism: internally, in terms of legal thought, practice, and procedure, and externally in terms of politics, economics, and social practice. The view of this text clearly recognises both factors.

Many of the topics raised above will examined in the text in a detail much greater than I can possibly do here. I hope you enjoy reading it, even if even I have to admit it is challenging in parts.

However, I would like to mention this website as a course of studying law and the English Legal System in particular. It continues to contain excellent material on the practicalities of researching and studying law. I can say that as I didn’t actually write that material.

However, in light of the recognised need to know detailed legal rules, the opportunity has been taken to introduce some detailed question, mainly multiple choice, to test basic knowledge and hopefully to generate thought and provide a bit of light relief.

I should also point out that following Brexit, the previous chapter on the nature, structure, history, and law of the Europe Union was arguably rendered redundant, after all this is an English legal System book. However, the material has been retained on the website to provide not just a comparison to English law, but equally to provide a historical context of much of that law and the form of law that still. runs in the countries neighbouring us and with whom we still maintain close contact.

• David Kelly.