27 May 2010
The courts are one of three organs of government of a modern democratic society. The others are the legislature and executive. The Legislature makes, repeals and amends laws, the courts interpret and apply those laws and the executive carries them into effect. By way of example, a national legislature may enact a statute which provides for monopolies known as “patents” to encourage inventors to publish their inventions. The statute will establish a patent office as part of the executive to examine applications for patents and to grant them if they meet the requirements set out in the legislation. The courts will resolve disputes either between inventors and the patent office as to whether or not an inventor is entitled to a patent and between inventors to whom patents have been granted (“patentees”) and persons they believe to have infringed their patents.
In the UK the legislature is the Queen in Parliament. Her Majesty also appoints the prime minister and his or her government who carry out the executive functions of government in the Queen’s name. However, save for the Supreme Court which serves as the final court of appeal for the United Kingdom and the Privy Council which hears appeals arising out of the Scotland Act 1998 there are no UK courts as such. That is because the courts of England and Wales, Scotland and Ireland developed before the unions of crowns and parliaments that have led to the UK.
Though the legislature, executive and courts of the UK are separate they are closely intertwined and one branch can delegate powers to another. For instance, Parliament can and usually does, pass statutes that allow ministers to make rules for implementing the statute known as statutory instruments. Those rules can even include the repeal of a statute. Similarly, though not themselves judges the executive and legislature are expected to act judiciously. Thus, they are required to act lawfully, fairly, reasonably and, where possible, after hearing all parties. Thus, many organs of the executive contain judicial bodies known as “tribunals” that determine disputes between the executive and the citizen and indeed between citizens. A good example are the tribunals within the United Kingdom Intellectual Property Office that hear disputes between inventors and examiners or between patentees and third parties.
Many such tribunals are very similar to the courts and follow a very similar procedure. The touchstone distinction between courts and tribunals is that the jurisdiction of tribunals is limited to a specified subject matter whereas that of the courts is not.
Courts should be distinguished not only from tribunals but also from arbitrators and other dispute resolution service providers who are appointed by or with the authority of the parties to a dispute and determine a specific issue. In the UK the courts assist but do not generally interfere with arbitrators unless they act unlawfully.
As the UK is party to the treaties that established the European Union it is bound by the decisions of the Court of Justice of the European Union. S.2 (1) (a) of the Human Rights Act 1998 requires English courts and tribunals to take account of judgments, decisions or declarations of the European Court of Human Rights with respect to rights granted by the European Convention on Human Rights.