The legal system in the UK

In order to keep things simple, this section will deal with law in England and Wales. The legal system in Scotland uses other names and is arranged slightly differently; nevertheless it works in broadly the same way as the legal system in England and Wales. Northern Ireland has the same legal system as England and Wales, with some small differences, mostly to take into account the political situation in Northern Ireland.

The law in England and Wales is made in two very different ways. Firstly, there is Case Law, which is the oldest type of law making and is based upon Norman practice, when there used to be travelling courts which tried cases and established precedents which were then followed by other courts.

A typical modern example of Case Law is the case of Lloyds Bank versus Bundy. In this case, a farmer called Bundy had borrowed money from Lloyds Bank against the security of his farm. The property was in his sole name, although he had lived at the farm with his wife for many years. Mrs. Bundy had not signed the bank documents for the loan. Mr. Bundy failed to repay the loan or make repayments and so the bank sued to get possession of the farm which it would then sell to recover its money. Lord Justice Denning (sitting in the highest appeal court) ruled that, as the wife had contributed to the house over many years, she was entitled to a share of it and that the bank had no right to deprive Mrs. Bundy of her home in order to satisfy the bank's demand for repayments. The bank would have to wait until the farm was sold at some future date. In other words, the bank's security was limited to Mr. Bundy's share of the property and, as the property was indivisible, the bank could not have the farm.

The precedent set by this case sent shivers throughout the banking system as all banks had lent money to businesses against the matrimonial home which, more often than not, was in the sole name of the husband and the wife had not been party to the loan agreement.
This precedent did not require a new law to be passed by Parliament; the precedent has become the 'law of the land'. So now, if I wish to borrow money from the bank against my house, my wife has to sign all the documents.

The second type of law making is called Statute Law. This is law laid down by parliament, and it is superior to case law. Statute Law comes into effect when an Act of Parliament is passed (by a majority vote in the House of Commons) and thus becomes law.

So, laws are made in two different ways: Case Law and Statute Law (also known as Common Law). The way these two types of laws are carried through in practice also falls into two categories:

CIVIL LAW:
Disputes between individuals - business contracts, divorce, libel, etc.
A plaintiff brings a case against (sues) the defendant(s). As a result of the case, the plaintiff hopes to be awarded damages (a sum of money) or obtain an injunction against the defendant to prevent the defendant taking an action (or repeating a statement.)
It is a civil offence to drive faster than the speed limit: a criminal offence to drive in such a way as to endanger life.

CRIMINAL LAW:
Breaking the law - murder, theft, criminal fraud, etc.
Cases are brought by the state - the Director of Public Prosecutions (DPP) and are referred to as 'The Crown versus the Accused.' (In Scotland, the cases are brought by the Procurators Fiscal) A Defendant is innocent until proved guilty 'beyond all reasonable doubt.' (In Civil actions, a case is proved on the 'balance of probablilities' )
If a defendant is found not guilty: he (she) is acquitted. The decision is called the verdict.

The table on the right shows how the court system is set-up to deal with these two categories of law. The Magistrates' Court is the lowest level of court for criminal law, and is used for trying minor offences and the first hearing of serious cases which are passed up to a higher court. Mostly unpaid members of the public (local businessmen, Headmasters) act as Justices of the Peace (JPs). These magistrates are assisted by a legally qualified clerk. In London and some of the other major cities, the main magistrates' courts are held by professional magistrates called Stipendiary Magistrates as they receive a 'stipend' or salary (about £70,000 a year). There are about one hundred of these magistrates, who are qualified solicitors.

The County Courts are the lowest level court for trying civil cases, bankruptcy, divorce, etc. In both civil and criminal law the highest court in the land is the The House of Lords. Its judicial functions are quite separate from its legislative work, and cases are heard by up to 13 senior judges known as Law Lords.

The TV Licence and the Law

The cornerstone of TV Licence legislation is the Wireless Telegraphy Act, 1949, and the numerous amendments there's been to it since then. The Wireless Telegraphy Act, 1949, is Statute Law (law laid down by parliament) and thus is carried through in practice as criminal law, meaning that prosecution for non-payment of a TV Licence is done through a Magistrates' Court.

The Licence Fee began life long before 1949, when, in 1922, a group of wireless set manufacturers calling themselves the British Broadcasting Company began making programmes so people would buy their products. They charged anyone using a "BBC" receiver ten shillings a year for their shows. Unfortunately, some bright sparks made their own wireless sets and listened to the programmes but refused to cough up their ten bob (just as computer owners may soon start watching video material while refusing to pay the licence fee). To regularise the position, a government committee decided in 1923 that everyone with a wireless should pay the charge.

When nationalisation of the BBC took place in 1926, the licence fee was preserved, though only after advertising had been considered and rejected. It was believed that licensing would enable the corporation to convey, in the words of its first director general, Lord Reith, "everything that is best in every department of human knowledge, endeavour or achievement", and to do so independently of government. The Wireless Telegraphy Act, 1949, came into being because television was starting to become popular and the government wanted to make sure that television ownership was also licensed.

The most important thing to remember about the Wireless Telegraphy Act, 1949, is that it has no legal funding connection whatsoever with the BBC (click Here for further clarification of this point). Nowhere in this Act, or its numerous amendments, are the British Broadcasting Corporation's financies mentioned. It is, in its plainest terms, a tax on television ownership. "The Licence is a payment for permission to receive any television programme service, as defined in Section 2(4) of the Broadcasting Act 1990, and not for services provided by the BBC." (Lord McIntosh of Haringey, House of Lords, 6th April 1998)

The second thing to bear in mind is that the Wireless Telegraphy Act, 1949, states that you need a licence for any equipment capable of receiving television signals. This means in effect that you don't have to be actually watching television to require a licence; the mere fact that you have a piece of equipment (ie, a tv set) in your home that can, if switched on, receive television signals means that you need a licence; and if you don't pay the Licence Fee you will be prosecuted under criminal law.

You can read parts of the Wireless Telegraphy Act, 1949, here on this web site.

The BBC's Royal Charter

The British Broadcasting Corporation exists by virtue of its Royal Charter of 20 December 1926, which has been subsequently extended over the years, and it operates under its Deed of Licence and Agreement between the Secretary of State and the BBC. (until 1969 it was the Postmaster General, then until 1992 the Home Secretary)

To understand this cosy arrangement you also have to understand the nuts and bolts of the British constitution. The constitutional law of the UK is regarded as consisting of statute law on the one hand and case law on the other (see The legal system in the UK). A third element consists of constitutional conventions which do not have statutory authority but nevertheless have binding force. Much of the relationship between the Sovereign and Parliament is conventional rather than statutory (ie, working via tradition and convention, rather than law). A convention is an accepted way in which things are done. Conventions are not written down in law but tend to be old, established practices - the way they have always been done.

The Queen has extremely wide discretionary power, including the granting of peerages, titles, honours and awards, promotion and 'grace & favour appointments'. These are known as 'non-statutory arrangements'. In otherwords, they are arrived at without means of any democratic process and without the backing of any statutory laws. This state of affairs can exist largely because there is no written constitution in Britain.

The BBC's Royal Charter was last renewed in 1996. Here are the relevent parts of it:

FINANCIAL
16(1) The Corporation is hereby authorised, empowered and required:- (a) to collect the Licence Revenue and to receive all funds which may be paid by Our Secretary of State out of moneys provided by Our United Kingdom Parliament in furtherance of the purposes of this Our Charter and to apply and administer such funds in accordance with the terms and conditions which may be attached to the grant thereof.

INTERPRETATION
"Licence Revenue" means such sums as are collected by the Corporation in respect of the issue and renewal of television licences under section 1 of the Wireless Telegraphy Act 1949;

Section 180(1) of the Broadcasting Act 1990 made the BBC responsible for licence administration ('TV Licensing' is the trading name used by the BBC's agents). Quote: ... by virtue of which functions of the Secretary of State as respects the issue and renewal of television licences are transferred to the BBC. Not anywhere does it say that the BBC can keep and spend the Licence Fee money - and incidentally, the Television Licences (Disclosure of Information) Act 2000 gives the BBC access to the nation's social security records, in order to help it enforce the Licence Fee.

What this means in effect is that without using any statutory laws, and without any democratic process whatsoever, the BBC is allowed to fund itself via the Licence Fee. The Wireless Telegraphy Act 1949 is a law that was democratically passed through Parliament. Nowhere in that law, or its numerous amendments over the years, is the BBC mentioned, yet on the Queen's say so the BBC is allowed to spend the revenue that this law generates (presently £2.3 billion a year).

At this point it should be noted that theseadays the actual powers of the reigning monarch have been falling into disuse, with the government of the day exercising the powers of the Crown on the monarch's behalf. Now, the monarch is expected to be politically neutral and act only on the advice of political ministers. In otherwords, the BBC is allowed to fund itself by a behind-the-scenes 'nod and a wink' from the government. A statutory law (Wireless Telegraphy Act 1949) is used to fund the BBC, and it's done without any legal permission or due democratic process.

Legal action against the Licence

In June 2002, Tessa Jowell, the Culture Secretary, indicated that the BBC will continue to be funded by the licence fee for at least 14 more years. She said that privatisation, favoured by some politicians, was not an option when the BBC's royal charter came up for renewal in 2006. Her comments suggested that Labour, if still in power, would try to renew the charter largely unchanged for 10 years after that.

If this turns out to be true, those who are against the licence fee are left with two main avenues. Firstly, to try and get the law changed, either by lobbying Parliament, or demonstrations, or civil disobedience (refusing to pay the licence). Secondly, to try and get the law changed by challenging the BBC and its funding in the courts.

Over the years many keen minds have studied the Wireless Telegraphy Act 1949, and its various amendments, to try and discover any flaws or loopholes in it. The general consensus is that there are none to be found. Many anti-licence campaigners are now turning to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The UK is a signatory of the European Convention of Human Rights, and this has recently been incorporated into UK law with the passing of the Human Rights Act 1998. This allows for the provisions of the Convention to be applied directly by the UK courts.

The relevent part of the European Convention of Human Rights is Article 10, and here's the first bit of it:

Article 10 - Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This appears to be saying that a TV Licence contravenes the Convention, but then it goes on to add...

This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

This get-out clause will make it very difficult to win a legal case against the Licence Fee based on Article 10; but as the old saying goes, who dares wins...