Chapter 1: ELS Flashcards
The Supreme Court of Judicial Acts of 1873 and 1875.
Created a single Court structure and merged the Courts of equity and common law.
Statute of Marlborough of 1267
Oldest statute still in force
The Doctrine of Parliamentary Sovereignty
- Parliament is the supreme law making body in the country,
- Statute can amend case law but not vice versa,
- Parliament has the freedom to make laws of any kind it does not matter if the law is unfair, unjust or practically impossible to enforce,
-Statute cannot be overridden by anybody outside Parliament, - UK and International Courts have no powers to declare an Act of Parliament invalid,
- Statute prevails in a conflict between any other kind of law,
- Parliament cannot bind its successors
Government Bills
Bills introduced by a minister as part of the Government’s legislative programme.
Private Member’s Bills
Non- government sponsored Bills introduced by backbench MPs.
Consolidation
One statute re-enacting law which was previously contained in several different statutes. There is a (rebuttable) presumption that it does not materially change earlier legislation. It essentially “tidys up” the law.
Codification
All the law on some topic (common law, custom law and statute (s) ) brought together in one new statute this may, if necessary change the pre existing law.
Statutory Instruments
- delegated legislation
- made by government ministers,
- affirmative procedure - must be actively approved by both Houses of Parliament,
- negative procedure - come into force unless either house votes to annul it within 40 days.
Bye-Laws
- made by Local Authorities and bodies with public functions i.e. Transport for London,
- powers granted by an enabling Act of Parliament,
- can create criminal offences so cannot take effect until confirmed by the appropriate minister.
European Communities Act 1972
Enacted to bring EU laws into force so that Parliament did not have to legislate on each separate occasion.
The Council of the European Union
Decision making body and consisted of a government representative from each Member State.
The European Commission
Develops policy, made up of independent commissioners appointed by national governments who work independently of national loyalties and make proposals for and oversee implementation of legislation.
The European Parliament
Made up of elected members - originally consultative but its powers have increased by recent treaties and now a significant actor in the EU’s legislative process.
The Court of Justice of the European Union [CJEU]
Made up of the General Court and the Court of Justice [ECJ]. ECJ = judges nominated by each of the member states. Role to ensure that EU law is observed throughout the union.
Primary legislation of the EU
Major treaties binding on member states and EU institutions and its validity cannot be challenged in national courts or the ECJ.
Secondary legislation of the EU
Emanates from institutions and are regulations, directives and decisions.
Primary legislation of the EU is
Major treaties which are binding on Member States and EU institutions and validity cannot be challenged in national courts or the ECJ.
Secondary legislation of the EU
Emanates from institutions = regulations, directives and decisions
Treaty on the Functioning of the European Union [2012] OJ C326/01 (TFEU)
Is divided into articles (short sections) which form part of the legal systems of all the member states. They may also be directly effective which means an individual can rely upon rights granted by treaty articles and enforce them, if necessary in National Courts.
Regulations (secondary legislation of the EU)
Once passed, automatically becomes part of the legal systems of all the member states and can be directly effective.
Directives (secondary legislation of the EU)
Are bonding as to the result to be achieved on each member state but leaves the choice of form and methods to the national authority. If not implemented, or implemented incorrectly it may then have direct effect and an individual can rely on it on the National courts but only against the state or a state body.
Decisions (secondary legislation of the EU)
Are binding in their entirety upon those to whom they are addressed.
The Human Rights Act 1998
Requires UK Courts to read and give effect to primary and secondary legislation in a way which is compatible with the protection of human rights as defined by the European Convention on Human Rights.
Chronology of the sources of law
- Before 1066; custom
- 1066 to around the 15th century; common law
- 15th century to 19th century; common law and equity
- 20th century until 1973; UK legislation
- 1973 - 1998; UK legislation and EU law
*1998-2021; UK legislation, EU law and the HRA 1998 - 2021 to date; UK legislation, retained EU law/ assimilated law and the HRS 1998
The law of England and wales consists of:
1) legislation or statute law,
2) common or case law,
3) retained EU/ assimilated law,
4) European convention on human rights
