2. Sources of Law of England and Wales Flashcards
Who comprises Parliament?
Parliament consists of the Queen, the House of Commons (which is democratically elected)
and the House of Lords (which is not). Both Houses are involved in the process of creating Acts
of Parliament.
Stages of Act creation:
(1) Bill is drafted and read in House of Commons
(2) Second reading and detailed debate in the chamber of the commons on the sections of the Bill, MPs contribute as prompted by the speaker of the house, a Government minister is responsible for the Bill and oversee its passage, the House will vote on parts of the bill
(3) Committee Scrutiny: by way of committee of the whole house or dedicated committee with special interest, scrutiny of each clause
(4) Bill returns to the floor of the house for the Report Stage, House will vote on proposed amendments suggested in committee
(5) Third and final bill reading, representing final version approved by HoC
(6) Moves to House of Lords, scrutinise and vote on final version (can adopt as given or amend), at 3rd reading it returns to commons for any amendments to be approved
(7) Provision of Royal Assent by the Crown (bill becomes an Act)
If the House of Lords rejects a bill twice, what can be done?
The House of Commons can bypass the HoL (Parliament Acts 1911 and 1949)
What is filibustering, how can it be curtailed?
Occasionally, opponents of a Bill attempt to delay it by talking at length, either in committee or debate. This is called ‘filibustering’ – deliberately, but in a procedurally allowable manner, wasting time through verbosity. Governments have the answer to this, however: the imposition of a timetable, called a ‘guillotine’.
What is Common Law
Common law is the original and traditional mode of decision- making by judges. Historically,
it involved decisions on contracts and the payment of damages. It provided remedies for
disputes involving the letter of the law.
What is ‘equity’?
The desire for flexibility and fairness led to the creation of the court of Chancery and the use
of equity. The word ‘equity’ in the legal context means arriving at a resolution that is fair to all
parties, taking into account a mix of considerations such as the facts, the behaviour of those
involved, and the respective situations of the parties
What are some key equitable maxims?
(1) Equity looks on that as done which ought to be done (enforce the intention of the parties)
(2) He who comes to equity must come with clean hands
(3) Delay defeats equity
(4) Equity will not suffer a wrong to be without a remedy (if there is a wrong, there should be a solution)
Examples of Equitable Remedies
(1) Injunctions
(2) Specific Performance
(3) Recission (confirming a contract no longer exists)
(4) Rectification
(5) An account of profits (allowing an innocent party a share of a wrongdoers gains)
Effect of the Supreme Court of Judicature Acts of 1873 and 1875
Creating a single court structure and merging separate court systems of equity and common law. Civil courts can now grant both common law and equitable remedy in the same proceedings
Significance of Wednesbury (1948)
The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.
What are some ‘traditional’ sources of law?
(1) The Crown
(2) The nobility
(3) The House of Lords (unelected chamber) devised of Hereditary Peers and Life Peers
(4) Judges and Parliament
(5) Religious Influences
(6) The military
What did the House of Lords Act (HLA) 1999 do to hereditary peers?
The House of Lords Act (HLA) 1999
abolished the automatic entitlement of all hereditary peers to sit in the Lords, leaving just
90 members at any one time to co- exist with life peers. Any hereditary vacancies are filled
through a by- election process amongst the hereditaries themselves.
What did the HLA do to life peers? What role does a Life Peer have?
Reduced their number to 660 at the time (1999), Life peers are appointed and can vote on bills as they pass through the different stages in the House of Lords.
Significance of Constitutional Reform Act 2005 (1)
the 2005 Act created a Supreme Court, and sited
the Law Lords there, on the western side of Parliament Square. The House of Lords now is a
term, and body, referring purely to the legislature. The Lords are now interpreters of the law rather than participants in its creation.
Significance of Constitutional Reform Act 2005 (2)
The Creation of the role of Lord Chancellor: a holder of political office within the government as Secretary of State for Justice, who attends cabinet for regular meetings chaired by the prime minister
