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INTRODUCTION

ENGLAND is a small island country situated off the northern coast of France. Throughout its history, the country has been referred to as England, Great Britain, and the United Kingdom. The official name changes occurred as a result of England’s political union with its territorial neighbors. For example, in 1707, England and Wales united with Scotland. This geographic alliance became known as Great Britain. When the southern counties of Ireland formed the Irish Free State in 1922, the official name of Britain changed again—this time to the United Kingdom of Great Britain and Northern Ireland.

In this chapter, we are concerned only with the geographical area known as England and Wales. The reasons for this are quite simple. Scotland is not a common law country; its criminal justice system consists of a mixture of common and civil law. This was a result of its political association with France in the sixteenth and seventeenth centuries. Scotland retained some of the legal characteristics that are indigenous to civil law countries such as France. Northern Ireland is not included in this study as a result of the problems that exist between the Protestant and Catholic factions of that country. The serious nature of these problems, although they are beginning to be resolved, has caused the criminal justice system to be altered somewhat from the common law system that exists in England and Wales.

England and Wales encompass an area of 58,350 square miles, which is a little larger than the state of Michigan (see Figure 1.1). Many of the roughly 57 million inhabitants live in the highly industrialized cities of the country. Although England no longer retains the industrial supremacy it once possessed, the country continues to be a world leader in the manufacture of heavy machinery. Agriculture, fishing, and oil are some of England’s other important industries. The legacy that the people of England have given the rest of the world is significant and indeed remarkable. The English have made major contributions in science, philosophy, literature, and the arts, but their most important and striking contribution to the historical evolution of civilization has been the creation of the common law and the development of parliamentary democracy.

GOVERNMENT The foundation for England’s political and legal institutions was established between the eleventh and fourteenth centuries. It was at this time that the monarchy negotiated several compromises with the nobility and, in the process, asserted its central authority. Following the English Civil War, which occurred during the first half of the seventeenth century, the modern basis for the country’s political institutions was established. The power of the monarchy was curtailed, the authority of the House of Commons was secured, and the emergence of political parties was established. Efforts at further reform and modernization were completed during the nineteenth century.

As the country prepared to enter the twenty-first century, it embarked upon an intense period of government reform. What is particularly striking about these reform efforts is the fact that much of it is devoted to significant constitutional issues. The adoption of these initiatives is designed to improve the effectiveness and efficiency of democratic government.

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Dyfed

Powys

West Glamorgan

Mid Glamorgan

Gwent

South Glamorgan

Clwyd

Gwynedd

Anglesey

WALES Shropshire

LONDON

Cornwall

Devon

Somerset

Avon

Isle of Wight

Dorset

Hampshire

Surrey Berkshire

Oxfordshire Gloucestershire

Greater London

Hertfordshire

Wiltshire

W. Sussex E. Sussex

Kent

Essex

Suffolk

Norfolk

CambridgeshireNorth- hamptonshire

Lincolnshire

Cumbria

North Yorkshire

Humberside

Nottinghamshire

Lancashire

Merseyside

Durham

Tyne & Wear

Cleveland

North- umberland

Leicestershire

Hereford & Worcester

West Midlands

Warwickshire

Bedfordshire Bucking- hamshire

Staffordshire

Cheshire Derbyshire

South Yorkshire

West Yorkshire

Greater Manchester

ENGLAND

FIGURE 1.1 | England Map courtesy of Bruce Jones Design Inc.

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While it is far too early to assess the impact that these reforms will have on governance, one consequence is clear: The role and power of some units of the central government have shifted.

The Constitution

Many countries throughout the world have a written document called a constitution in which the political and legal beliefs of the country are expressed. England does not have this type of constitution; it has been characterized as having an unwritten or, more appropriately, an uncodified constitution. The British constitution is a blend of statutory law, precedent, and tradition that dates back to the time of King Henry I (1100). A large part of English constitutional law is based on statutes passed in Parliament. Statutory law is an important factor in the creation of this kind of “organic” constitution. This is best illustrated by citing some of the significant statutes that were instrumental in developing British constitutional principles. These, in turn, have had a profound impact on the creation of written constitutions in other countries.

Magna Carta

The first document that carried with it this kind of significance was Magna Carta. In 1215, King John was forced by English nobles to sign this charter, which was an expression of rights and privileges of the upper class in medieval England. The charter consisted of 62 chapters or issues identified by the nobles. Several of these address what we would consider basic concerns for the administration of justice and illustrate early principles that today are central legal values associated with the rule of law. For example, chapter 38 noted: “In the future no bailiff shall upon his own unsupported accusation put any man to trial without producing credible witnesses to the truth of the accusation.” Chapter 40 proclaimed: “To no one will we sell, to none will we deny or delay, right to justice.” And chapter 45 announced: “We will appoint as justiciaries, constables, sheriffs or bailiffs only such men as know the law of the land and will keep it well.”

Chapter 39 was the most important and famous of these chapters, and is particularly pertinent to criminal justice. It stated:

No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.

For a number of years, some of the chapters in Magna Carta were misinterpreted. For example, chapter 39 was described as originating trial by jury and the writ of habeas corpus, but both assumptions are false. To the twenty-first-century reader, the real value of Magna Carta is that it is the first attempt to explain in legal terms the germ of the idea of government by a constitutional process.

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The Bill of Rights

Another important historical document is the statute known as the Bill of Rights. Before Parliament offered the English crown to William III and Mary II in 1688, it required their acquiescence to principles that became known as the Bill of Rights. Among the principles that appeared in the statute were:

• Parliament should meet frequently to redress grievances and pass legislation. • Members of Parliament should be elected freely. • Freedom of speech should be assured during the proceedings of Parliament. • The Crown cannot suspend or create law without the consent of Parliament. • Excessive bail or fines should not be imposed nor cruel and unusual punishments

permitted.

The principal significance of this statute was that it established a clear foundation on which to build a modern constitution.

The Act of Settlement

The Act of Settlement of 1700 was another statute that proved beneficial in establishing the modern constitution. One of the most important provisions of this act was the recognition that judges should hold office only during good behavior and could be removed only with the consent of Parliament. These statutes, along with others, clearly stated that the monarch must govern by and through Parliament. Since the seventeenth century, there have been other significant statutes passed in Parliament that have in some way altered the British constitution. Unfortunately, they are too numerous to list within the confines of this text. These examples provide the reader with a sense of how some basic constitutional principles were incrementally introduced, which usually coincided with Parliament enhancing its authority.

The Human Rights Act

As mentioned earlier, the government has embarked upon an intense period of reform that has some important constitutional implications. One of the most significant of these initiatives was the passage of the Human Rights Act (1998). Although this legislation received the royal assent in 1998, all of the sections to the act were not in force until October 2000. The significance of this legislation is that it enables violations of the provisions of the European Convention to be adjudicated in English courts.

The European Convention on Human Rights was ratified by the United Kingdom in 1951, but it was not incorporated into domestic law. Nevertheless, the country has been bound by its terms and court judgments under international law. The Convention is similar to a written constitution, like the Constitution of the United States, in that it is a listing of fundamental principles associated with a democratic form of government. The Convention consists of a series of articles that address such rights and freedoms as the right to life;

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prohibition of torture; prohibition of slavery and forced labor; right to liberty and security; right to a fair trial; no punishment without law; right to respect for private and family life; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; right to marry; prohibition of discrimination; restrictions on political activity of aliens; prohibition of abuse of rights; limitation on use of restrictions on rights; protection of property; right to education; right to free elections; abolition of the death penalty; and death penalty in time of war.

In 1966, citizens of the United Kingdom were empowered to petition the European Court on Human Rights, which is based in Strasbourg (France), if they believed one of their aforementioned rights had been violated by the government or an agent of the government. Unfortunately, such an appeal was costly to the petitioner, because legal aid was not available and the process took a good deal of time in light of various court delays. Five years has often been cited as not being an uncommon length of time for a case to work its way through the court. Since the enactment of the Human Rights Act (1998), as a significant feature in domestic law, citizens of the United Kingdom can now initially petition an English court to adjudicate allegations of various abuses associated with human rights.

Many scholars view the Human Rights Act (1998) as a new chapter in the evolution of English constitutional law, because all public authorities now have a duty to comply with the Convention on Human Rights (Wadham and Mountfield, 2000). It is important, however, to note the distinction between a statutory and a constitutional duty. Most European countries adopted the Convention as part of their fundamental or basic law. This kind of incorporation enables the courts of a country to rule that a national law is incompatible with the Convention. This type of adoption did not occur in the United Kingdom because the English judiciary does not have the authority to overturn parliamentary decisions, that is, to declare a law unconstitutional. Granting the judiciary that kind of power would be a rejection of the idea of parliamentary sovereignty.

The Human Rights Act (1998) does address the issue of English law being incompatible with rights spelled out in the Convention. According to Sections 3 and 4 of the act, English courts can issue a declaration of incompatibility. This enables courts to indicate to the government that remedial action should be taken to correct that portion of a domestic law that is not in compliance with the fundamental democratic principles represented in the Convention. Thus, although English courts do not have the power to override the authority of Parliament, the role of the judiciary has been enhanced considerably by this legislation. The judiciary has been given the authority to encourage both the executive and legislature to take corrective action when domestic legislation is not in compliance with human rights provisions.

It should be noted that there are derogation statements in both the Human Rights Act, Section 1(2), “[t]hose Articles are to have effect for the purpose of this Act subject to any designated derogation or reservation,” and The European Convention on Human Rights, Article 15, “[i]n time of war or other public emergency threatening the life of the nation.” The issuance of a derogation order is of particular relevance in recent years as a result of the international concern over terrorism. For example, the British government derogated

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from Article 5 of the Convention, which deals with a person’s right to liberty and security, specifically as it relates to being arrested or detained by the police. This was necessary because parliament passed the Anti-Terrorism, Crime and Security Act (2001), which permits the detention of suspected terrorists for extended periods of time that would not be permitted under a typical criminal investigation.

The reader should also be cognizant of some other characteristics of the British constitution. First, Britain is a unitary country and not a federated state. Therefore, Parliament is supreme over the entire United Kingdom. Although this principle remains in place, it should be pointed out that as part of the constitutional reform effort, devolution has been granted to Scotland and Wales. In 1999, representatives were elected to the newly established Scottish Parliament and Welsh Assembly. Second, Parliament exercises supreme legal power in Britain. As a result, no English court can declare an act of Parliament unconstitutional. The limitations imposed on the authority of the courts in the Human Rights Act (1998) illustrate the importance of this principle to English jurisprudence. Finally, there is a fusion of powers in Britain, rather than a separation of powers as is the case in the United States. Both the executive and legislative branches of government are found in Parliament. Until relatively recently, the highest court in the land, the Appellate Committee of the House of Lords, was also situated in Parliament. With the passage of the Constitutional Reform Act (2005), however, the Supreme Court of the United Kingdom was created to replace the Appellate Committee and became operational in October 2009.

The passage of the Human Rights Act (1998), House of Lords Act (1999), and the Constitutional Reform Act (2005) are illustrations of the “organic” nature of the British constitution. Moreover, the British have been viewed for a long time as a rule-of-law-based country. These statutes, each in their own distinct way, enhance that position even further.

Parliament

The British government has operated under the constitutional principle that the country should be governed by a fused power rather than a separated one. Parliament provides that leadership. It consists of three parts: the monarch, the House of Lords, and the House of Commons.

The Monarch

The role of the monarch in Parliament has been declining for almost 300 years. The reason for this reduction in power is constitutionally and politically related to Britain’s establishment of a government based on democratic principles. Today, the monarch’s importance is symbolic; it represents the unity of the country. For example, all statutes passed in Parliament are carried out in the monarch’s name. Despite a loss of power, the monarch legally retains some authority. The monarch convenes Parliament after an election and dissolves Parliament when an election is required. The monarch calls for the leader of the political party who was victorious in the election campaign to form a government—or, more accurately, an administration for the government.

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The House of Lords

Like the monarchy, the power of the House of Lords has diminished considerably. The historical roots of this body are almost as ancient as the monarchy itself. Early English kings traditionally had a great council that consisted of a group of nobles who advised the king on domestic and foreign affairs. The House of Lords is the political descendant of the great council and is considered to be the upper house of Parliament. Its authority has declined, especially during the past 100 years, because the idea of popular democracy is theoretically at cross-purposes with such an unrepresentative element in government.

The House of Lords performs several duties. Until 2009, it was the highest court of appeal in the country, but when it sat as a court, only the lords of appeal in ordinary, also referred to as law lords, took part in the proceedings. The House does a considerable amount of committee work; that is, it examines and revises legislation proposed in the House of Commons. It has been suggested that the House of Commons benefits from this because it has restrictions placed on its time for scrutinizing legislation. The Lords’ most contro - versial power is the constitutional power to delay the enactment of legislation passed in the House of Commons. With the exception of budget bills, which are the sole prerogative of the House of Commons, the House of Lords may delay the enactment into law of any public bill passed in the House of Commons. This delay cannot exceed one year; if it does, the bill becomes law without the House of Lords’ assent.

While the upper House of Parliament continues to provide a valuable service to the country, the composition of its membership changed with the passage of the House of Lords Act (1999). This was another piece of reform legislation that was designed to reduce the number of hereditary peers sitting in the House. The objective was to eliminate a political anachronism from a governmental process that is based on democratic principles.

To understand the significance of the House of Lords Act (1999), it is useful to consider the composition of the House before the passage of this legislation. The House of Lords was composed of approximately 1,200 members who fell into one of three categories. First, there was a special group that consisted of the archbishops of York and Canterbury; the bishops of London, Durham, and Winchester; and 21 senior bishops of the Church of England. Also included in this special category were the law lords, who were responsible for performing judicial duties for the House, which was the court of highest appeal. Second, the group of hereditary peers made up the majority in the House of Lords, consisting of about 800 members. Although some of these people were very capable, they did not hold their seat in the House because of their ability to deal with legislative matters. Rather, they were members because they held the noble rank of duke, marquess, earl, viscount, or baron—a distinction conferred upon one of their ancestors by an English monarch at some point in the family’s history. Thus, they had the hereditary right to sit in the House of Lords. The third category consists of life peers. The Life Peerage Act (1958) enables the government, through the monarch, to recognize people who have been out - standing public servants or who have made some significant achievement in industry or the professions by appointing them to the House of Lords. Unlike the hereditary peers, a life peer cannot pass the title onto his or her children.

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The House of Lords Act (1999) is considered the first of a two-part phase in the reform of the House of Lords. This act eliminated the automatic right of a hereditary peer to sit in the House. It called for the election of 90 hereditary peers to continue to serve, along with the two peers who held the ancient titles of Lord Great Chamberlain and Earl Marshall, making the total 92. This is a considerable reduction from the roughly 800 people who were eligible to sit. The bishops of the Church of England were allowed to retain their seats, but members of the monarch’s immediate family were excluded. The hereditary peers who were excluded from the House of Lords retain their title and are now eligible to stand for election to the House of Commons. While there is a good deal of uncertainty as to when the second phase of the reform of the Lords will occur, what is fairly certain is that the focus of reform will center on the actual powers accorded the Lords and on the nature of the composition of this legislative body—that is, a totally elected or partially elected and partially appointed House.

The House of Commons

Today, the most important component of Parliament is the House of Commons. When people speak of Parliament, they are usually referring to the House of Commons. The origins of this House can be traced to the thirteenth century, but it was not until the seventeenth-century English Civil War that the Commons gained the political ascendancy in Parliament.

Presently, the House consists of 650 elected members. The typical member of the Commons (M.P. for Member of Parliament) is affiliated with either the Conservative or Labour parties. This House, more than the other two components of Parliament, represents the various social and political elements of the British population. The major responsibility of the House is to vote on legislative bills proposed by either the government or a member of the Commons. Another duty is to discuss issues and pending legislation. Members of the party in power are obviously attempting to support the government, while members of the opposition parties (the parties that are out of power) seek to criticize it.

The function of discussing issues and pending legislation also serves a political end for all parties, because England can be considered to be in a continuous election campaign. Until recently, statutory law required that a general election be held every five years, but an election could be called before that time. For example, it was not uncommon for the party in power to call for an early election at a time when opinion polls indicated that it was riding a wave of popularity. In addition, if the government lost the support of a majority on an important vote in the Commons, it could request that the monarch dissolve Parliament and call for an election. Because election campaigns usually lasted about three to four weeks, political parties had to be continually capable of presenting their case to the people for either retaining power or gaining power in the Commons. Thus, the House of Commons continuously provided all parties with a forum for presenting their views to the British electorate.

The Fixed-term Parliaments Act became law in 2011. As the name suggests, this legislation introduced a new procedural rule that parliamentary general elections be held every five years on the first Thursday in May. Obviously, this eliminates the dissolution of

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Parliament by the party in power often for its own political advantage. The new legislation does permit the calling of an early general election under two circumstances. First, at least two-thirds of the members of the House of Commons vote on a motion to dissolve Parliament and call for an election. Second, Parliament can be dissolved and new elections called if there is a no-confidence vote in the government. This second rationale of calling for an early election had existed under the electoral rules prior to the passage of the Fixed- term Parliaments Act (2011).

Prime Minister

In the modern British constitution, the prime minister has become the fulcrum for the English form of parliamentary democracy. The way the political system works is largely dependent on the prime minister. The leader of the political party that has won a majority of seats in the House of Commons is selected to be the prime minister.

The qualities necessary for an effective prime minister are many; the person who occupies this position must be versatile. The reason for this is quite simple. The prime min - ister must combine into one job a set of responsibilities that in many countries are distributed among a number of people.

The prime minister is leader of the nation. National opinion polls are largely based on the personality and policies of the prime minister. Because the monarch has a right to be consulted on national issues, the prime minister is the personal advisor to the monarch. The prime minister is also leader of his or her political party. Although assisted in this leadership role by party whips, the prime minister nevertheless must function as a party manager and conciliator in keeping party members in line on important legislative issues before Parliament. Finally, the prime minister is chair of the cabinet, which is created by his or her appointments to it and which sets the goals and establishes the policies of the government.

The Cabinet

After the British electorate votes for their candidates, it is the responsibility of the monarch to request that the leader of the victorious party—the one that has won a majority of seats in the House of Commons—form a government. The British executive branch is composed of members in Parliament whose political party commands a majority in the House of Commons. This group is referred to as the cabinet. Membership in the cabinet is dominated by the House of Commons, with a few members from the House of Lords.

Generally, the prime minister includes in the cabinet all the outstanding leaders in the party. He or she is usually careful to include some younger members in order to groom them for future key leadership positions. The wise leader will also assure that the various points of view within the party are represented so that the cabinet serves as a microcosm of the entire party.

Each member of the cabinet is responsible to Parliament for the administration of his or her department. For example, the Chancellor of the Exchequer is responsible for the Treasury Department, while the foreign secretary is the chief executive of the Foreign Office.

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Collectively, the cabinet is accountable to Parliament for the administration of the entire government. Thus, the cabinet is responsible for three things: controlling the executive branch of government, coordinating the work of various departments, and determining government policy and submitting it to Parliament.

Political Parties

Although England has had three parties vying for power for more than 100 years, the Conservative and Labour parties are considered the major political parties. The benefits of a two-party system are similar to those found in the United States. The party that wins the election usually has a clear majority in Parliament. The formation of a government by the majority party assures a stable and disciplined government. The British electorate has a clear choice at election time to retain the party in power based on its record or to select the opposition party based on its promises for the future.

Conservative Party

The Conservative Party has a long heritage traceable to the seventeenth century. One of its remarkable achievements has been an ability to adapt to the changing political and social climate of opinion for more than 300 years. As is true of any conservative party, British conservatives support traditional institutions and political and social principles. Often they are devout defenders of the monarchy, the Church of England, and social class. Although they may accept change and innovation, they reject change for change’s sake. They prefer to retain established institutions and principles that have stood the test of time. This attitude helps to explain why some members of the party are skeptical of the European Union, in particular, the issue of monetary union.

The Conservative Party supports the principles of free enterprise, private property, freedom of choice, self-interest, and reward for ability; yet, they have accepted in principle the concept of the welfare state. They differ, however, with the opposition regarding the degree and the means with which social services should be provided. As long as change occurs within the framework of the constitutional tradition of parliamentary government, the Conservative Party is willing to accept and endorse state activity in the private sector, as well as social reform in the public sector.

Labour Party

The Labour Party was officially founded in 1900. The party’s ideology can be traced back to the middle of the nineteenth century, when England was the most industrialized country in the world. Throughout the twentieth century, the party supported a socialist ideology. Their political platform emphasized a movement toward extending democratic principles of the political realm to the economic marketplace. Their goals included the national- ization of industries by the government, a more equal distribution of wealth through a progressive income tax and other forms of taxation, the institution of social welfare services for all citizens, and the elimination of a class-based society. Like their conservative

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counterparts, the Labour Party has been willing to achieve these ends gradually through the parliamentary process.

In the past few years, the Labour Party has attempted to become more mainstream or centrist. To illustrate, they have changed their long-standing commitment to the nationalization of industries. They support a dynamic capitalistic economy that is capable of balancing the objectives of the private sector with the public interest and can display social compassion for the less fortunate. They have espoused a policy that is tough on crime and its causes. Finally, they initiated the current efforts at constitutional reform.

Liberal Democratic Party

In the late 1980s, the Liberal Democratic Party was created out of a merger of two small parties: the Liberal and the Social Democratic Parties. The Liberal Party traced its ideological position back to the seventeenth century. For much of the twentieth century, however, they had a difficult time retaining a viable party membership because they had been out of political office since 1915. Early in 1981, some discontented moderates of the Labour Party resigned their positions and formed a new political party called the Social Democratic Party as an alternative to the extreme leftist positions that were being espoused by the Labour Party at that time.

Presently, the Liberal Democratic Party has tended to attract the interests of the suburban middle class. They are the party of the individual versus the collective. They are public-sector-minded, with a strong power base in local government. They support the European Union, the reform of Parliament, and the reduction of tax breaks for the wealthy. While the Liberal Democrats claim to be the party of the center, they remain a fairly small party because the leadership of the Labour and Conservative Parties has tempered their more extreme positions.

In the 2010 parliamentary elections, the Conservative Party was unable to achieve a clear majority in the House of Commons. As a result, they formed a coalition government with the Liberal Democrats in order to secure a majority. The last time it was necessary to form a coalition government in the United Kingdom was in 1945.

As a result of the parliamentary elections held in May 2015, the Conservative Party won a clear majority of seats thus ending the need for a coalition. Of the 650 seats in the House of Commons, the Conservatives hold 330, Labour 232, and the Scottish National Party 56. Parties that secured at least three or more seats are: Liberal Democrats, Democratic Unionist Party, Sinn Fein, Plaid Cymru, and the Social Democratic and Labour Party.

The Crown

The Crown is the constitutional office that symbolically unites the people of England. This institution, because of its ancient heritage and the associated pageantry, is revered by a large segment of the British population. The monarch is the person who occupies this office. The degree of affection drawn by a monarch is based on both personality and approach to the office. Throughout the long history of the monarchy, the English have had a number of popular and unpopular monarchs. Despite the unpopularity of a particular monarch,

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the people usually were capable of making a distinction between the person and the office. Thus, they have continued to show deference to the Crown. Like the House of Lords, the monarchy is the antithesis of democracy. The monarchy, however, remains a powerful and useful symbol for the country, and a majority of the public appears to acknowledge this fact.

Most of the powers and duties of the monarch have already been suggested. There is one final personal prerogative that a monarch can exercise: the right to be consulted. This means that all important government business must be available for the monarch’s perusal. The significance of this right generally increases with the length of the monarch’s reign. Political leaders come and go, but the monarch often reigns for a number of years. The monarch can gain considerable insight into the affairs of state and view current policies with a historical and associational perspective that a political leader may lack. This position can enable a diligent monarch to influence the leaders who ultimately must decide policy. Although there is no way of measuring the effects of this situation, it is a fact that must be reckoned with when considering the utility of the Crown in twenty-first-century politics.

Administration

Although England is a unitary state, there are areas of government that are not the sole responsibility of Parliament. England has had a long history of county and municipal government—working either in association with Parliament or separated from it—that dates back to medieval times. Occasionally, it was deemed appropriate to allow local governments to administer certain matters at the local level. Sewage, water, and parks and recreation are examples of local responsibilities.

After World War II, the national government stepped up its efforts to nationalize industries, substituting private ownership with public ownership. Obviously, this increased the scope of its power. One of the hallmarks of Prime Minister Margaret Thatcher’s government was to reverse this trend of nationalizing industries by returning them to the private sector.

The areas of responsibility in which the national government has complete or almost complete control include matters pertaining to defense, foreign affairs, law, economics, social matters, and internal order. The national government has a significant role in judicial matters. Until 2006, the Lord Chancellor, who was appointed by the prime minister and was a member of the cabinet from the House of Lords, was ultimately responsible for appointing all judges. With the passage of the Constitutional Reform Act (2005), that responsibility passed to the Judicial Appointments Commission, whose members are selected by the Lord Chancellor. Internal order is a matter of shared responsibility between the national and local governments. For example, the police are accountable to the home secretary, who is also a member of the cabinet. This office establishes standards for all police forces and provides grants-in-aid equaling at least 51 percent of the costs for maintaining each of the forces. Local governments also have some control, for they are responsible for hiring officers and providing about 49 percent of the expenses needed to maintain their force.

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Since the 1960s, the national government has made a concerted effort to control the planning and administration of the criminal justice system. The Lord Chancellor was concerned with the efficiency and effectiveness of the courts, while the home secretary had increased authority for law enforcement and the prison service. This development was a direct result of the government having to deal with crises within various components of criminal justice. This arrangement, however, was becoming increasingly untenable. Critics raised several concerns, of which some cited constitutional issues. For example, questions were raised about the independence of the judiciary, while others focused on the incompatible responsibilities of the home secretary: policing and maintaining public order with prisons and protecting civil rights and reforming the criminal law. The ongoing furtherance of constitutional reform has attempted to rectify some of these problems. In 2007, a new Ministry of Justice was created and given responsibility for the courts, criminal law, prison and probation, and criminal justice reform. The Home Office had its focus narrowed to crime and policing, counter-terrorism, and immigration.

Over the course of the past three decades, almost every aspect of the criminal justice system has been the subject of interest to a government commission, an independent inquiry, or academic research. This has led to the passage of a significant amount of legislation directly impacting how the justice system is organized and administered. What happened in England during the 1980s and early 1990s is strikingly similar to what occurred in the United States during the 1960s and 1970s. The study of criminal justice has become a significant issue for the government and has emerged as an important field of study within England’s system of higher education.

POLICE The English have prided themselves on initiating a system of policing based at the local level but also mandated and in some fashion controlled by the central government. This shared responsibility for policing has existed throughout much of the country’s history. Prior to the creation of the Metropolitan Police of London in 1829, this tradition of shared responsibility took four distinct forms.

The tithing was the earliest type of community-organized policing; references are made to it in Anglo-Saxon dooms. Historians refer to the period before the Norman invasion of 1066 as the Anglo-Saxon era. Dooms were the statutes or ordinances enacted during that period. The tithing was based on principles of self-help and collective responsibility. Each tithing consisted of 10 men who were accountable for policing each other. If one of their number was accused of a crime, they were responsible for producing the defendant before a local court, and if they failed to surrender the individual, the court could impose a fine on the other members of the tithing. Supervision of the tithing was a responsibility of the sheriff, the local representative of the king. Therefore, during this early medieval period, the sheriff was the link between the local and the central government for criminal justice administration.

The creation of the office of constable was the next significant development in law enforcement. It occurred as a direct result of England emerging as a feudal society, following the Norman Conquest of 1066. With the advent of feudalism, the manor became

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Chapter 2

France

CONCEPTS TO KNOW

• Office of the President of France • Ministry of the Interior • National Gendarmerie • Proximity Policing • Republican Security Company • Constitutional Council • Courts of Assize • National School for the Judiciary • Ordinance of Villers-Cotterets (1539) • Justinian’s Code • Code of Criminal Procedure • Garde à Vue • Flagrant Offense • Investigating Judge • Liberty and Detention Judge • Chamber of Instruction • Post-Sentencing Judge • Juvenile Judge

INTRODUCTION

FRANCE is the largest country in continental Europe, consisting of 220,668 square miles. (Although Russia is larger, it occupies territory from Eastern Europe across northern Asia.) The country’s land borders are shared with Spain, Italy, Switzerland, Germany, Luxembourg, and Belgium, and the coastal boundaries include the English Channel, Atlantic Ocean, and Mediterranean Sea. When compared to the United States, France’s over 62 million

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132 France

PAYS DE LA LOIRE

POITOU CHARENTES

LIMOUSIN

AUVERGNE

PROVENCE-ALPES- COTE D'AZUR

LANGUEDOC- ROUSSILLON

MIDI-PYRENEES

AQUITAINE

CENTRE BOURGOGNE

BRETAGNE

NORMANDIE CHAMPAGNE

ARDENNE LORRAINE

ALSACE

FRANCHE- COMTE

RHONE- ALPES

HAUTE- NORMANDIE

NORD-PAS-DE-CALAIS

ILE-DE-FRANCE

CORSE

PICARDIE

ILE-DE-FRANCE

MONACO

UNITED KINGDOM

London

Brussels

Bern

Andorra

Vaduz

Amsterdam

LIECHTENSTEIN

AUSTRIA

ITALY

SPAIN ANDORRA

SWITZERLAND

GERMANY

BELGIUM

NETHERLANDS

LUXEMBOURG

Bay

Biscay

English Channel

Mediterranean Sea

North Sea

of

FRANCE

FIGURE 2.1 | France Map courtesy of Bruce Jones Design Inc.

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inhabitants live in an area that is smaller than the state of Texas. A majority of the French people lived for centuries in the provincial areas of the country. This changed after World War II as people moved to urban areas in search of employment. Paris is the premier city in the country. Its significance is based on the fact that it is not only the political, financial, and cultural center of the country but also home to the largest number of industrial complexes (see Figure 2.1).

The most notable change in the country’s economy has been the emergence of more large-scale and sophisticated industries. Compared to England and Germany, France was slow to develop its industrial complex. Among the reasons frequently cited for this were the country’s lack of natural resources, such as coal, and a preference for a rural environment. Today, France has established itself as a major industrial power. Its principal industries include automobiles, airplanes, chemicals, electronics, and energy.

The country appears fairly homogeneous on the surface. French is the official language, and the people are fiercely loyal to maintaining its linguistic purity. For centuries, the country was referred to as the eldest daughter of the Catholic Church. Some of the most significant examples of French culture are its religious paintings and the architectural designs of its cathedrals. Its principal public holidays, with the exception of two, are Catholic holidays.

These are largely superficial displays of homogeneity, however. France may be a Catholic country, but less than one-quarter of its citizens practice the religion with any degree of regularity. There are also significant and quite pronounced regional differences that include not only local customs that have existed for centuries but also more recent political and economic distinctions. For example, much of the industry is located in the north and northeast, whereas the west and southwest remain rural. Since the end of World War II, France has divested itself of what was once the second largest colonial empire. As a result, some of the people from these African, Middle Eastern, and Far Eastern holdings have emigrated to the mother country for political and economic reasons, thus diversifying the population further. Finally, French participation in the European Union has led to a large influx of guest workers from other European countries. Each of these factors has fostered the creation of a fairly heterogeneous society.

GOVERNMENT The French have perceived themselves for centuries as the leader (or at least at the center) of the development of European civilization. Indeed, the cultural contributions of the French people are beyond dispute. They have consistently made significant accomplishments in art, music, literature, science, and philosophy, and the country has never been isolated from the political events of Europe. Since the early medieval period, France has been at the center of European power struggles. In the early modern era, it attempted to rival Great Britain for colonial supremacy in the New World.

France’s modern contributions to political and social theory are of particular interest for our purposes. They not only assist us in comprehending French perceptions of government and social order, but they also indicate the state’s role in assuring that political and social mandates are carried out. If one were to ask a student of French politics to characterize the political climate of the country over the past 200 years, the response would

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most likely suggest a state of ambivalence, fragmentation, instability, and vacillation. No doubt, the student would also maintain that the principal reason for this state of uncertainty is the variation among individual perceptions regarding the historical significance of France’s famous Revolution of 1789. Since the Revolution, the French have shown an affinity for two ideas that are often at cross-purposes with one another. They have had a long and deep attachment to personal liberty, yet they also have an abiding faith in authority—especially when the power is wielded by a hero who serves both as a symbol and as a catalyst for national unity.

In the realm of national politics, comparisons between England and France have proved especially instructive at illustrating the diverse methods for establishing democratic principles and institutions. The most striking difference between these two countries has been the issue of constitutional continuity. The British largely resolved their political differences in 1688 with their Glorious Revolution. Since that time, political revolution and violent change in government have been noticeably absent in Britain. The British view political change as essentially evolutionary, and they have tended to view their political past with an affection that allows them to retain many traditional institutions.

The French have largely rebelled against their past, at least as it pertains to their political system. After all, the purpose of the French Revolution was to overthrow the ancient régime, which had enabled the Bourbon monarchy to rule the country by retaining many of the remnants of France’s feudal past while initiating a highly centralized and modern bureaucracy to govern the country. Unlike Britain’s Glorious Revolution, which resolved the main political controversies once and for all, France’s Revolution left the political debate unresolved. As such, the history of modern France has been one of recurrent revolution or threats of revolution. This is illustrated by the fact that since 1789 France has been governed by three constitutional monarchies, two empires, one semi-dictatorship, and five republics.

Another reason for the diversity between the modern political histories of Great Britain and France relates to a central feature of French political thought, that is, the ideological purity with which the French have often approached politics. Ideological purity enhances the likelihood that the political climate will be dominated by a sense of uncertainty, because the unbending commitment to political ideals leaves little room for pragmatic compromise. The French also have been fond of hero worship, especially in the political context. Heroes, of which the French have had many, have played an instrumental role in enhancing national unity.

Modern French political ideas have their basis in the eighteenth-century Enlightenment. Like other modern democracies, most notably England and the United States, the intellectual milieu of the Enlightenment philosophes had a profound impact on political theory. During the late eighteenth century, there emerged at least two major views as to how governmental reform should proceed in France.

On the one hand, there was a group of philosophes whose approach and attitude toward change was similar to that of the leaders of the American Revolution. In fact, some joined the American colonists in their cause and thus gained both intellectual and emotional sustenance for their own cause in France. This group believed in the inalienable rights of humankind and in the perfectibility of “man” through human progress. Thus, they were

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committed to overthrowing the political and religious tyranny that dominated eighteenth- century France and to the establishment of reason, humanitarianism, and individualism.

On the other hand, a second group—equally committed to the overthrow of tyranny— had a different perspective of the future. This group adopted the views expressed by Jean Jacques Rousseau. Rousseau exalted human instinct over reason and emphasized the community’s interests over those of individual rights. For Rousseau, there were no inalienable rights, only the rule of the majority. Thus, political equality was more significant than political liberty. The right of all to participate in the governmental process was more important than the right to be protected against the will of the government.

Through its famous Revolution, France adopted many of the basic political principles that have become synonymous with democracy. Among these are a commitment to the principles of equal rights for all, equality of representation, derivation of government powers from the people, separation of church and state, and government under law. These principles were embodied in the French Declaration of the Rights of Man and of the Citizen (1789). To this day, they remain the central doctrines of French republicanism.

Finally, it was noted earlier that the French Revolution was prompted in part by the desire to overthrow religious tyranny. That tyranny was associated with the power of the Roman Catholic Church that had been incrementally accrued since medieval times. Since the Revolution, the state has established a policy of laicité or secularism in French politics and society. This policy is best illustrated by laws enacted to explain how the state and organized religion interact. The actual term, laicité, was first used in legislation in 1905 to address the notion of the separation of the state and church. In the French context at the time, emphasis was directed at reducing the influence of the Catholic Church in public institutions, in particular, schools.