Chapter 1: Law and legal systems

Question 1

What is public law?

Answer 1

Public law is concerned with the legal structure of the State and the relationships between the State and the individual members of the community.

It includes constitutional, administrative and criminal law.

Question 2

What is constitutional law?

Answer 2

Constitutional law is concerned with the structure of the main institutions of government and their relationship to each other, including the relationship between the two Houses of Parliament in the UK and that between central and local government.

Question 3

What is administrative law?

Answer 3

Administrative law is often regarded as a branch of constitutional law. It concerns the legal relationship between private citizens and the various agencies of local and central government, and the impact of their activities on ordinary individuals.

Question 4

What is criminal law?

Answer 4

Criminal law is concerned with the control of behaviour which harms or threatens the peace and stability of the community.

This control is exercised by punishing persons who commit serious wrongs which are likely to damage the interests of society as a whole.

Question 5

What is private law?

Answer 5

Private law governs the relationships between legal persons such as individuals, businesses and other organisations.

Private law is also commonly known as civil law (from the Latin word for citizen). In fact, this term is used more often than the term ‘private law’ in England.

Question 6

The legal rules that govern insurance fall under which type of law?

Answer 6

civil law (private law)

Question 7

What does judge-made law refer to in English law?

Answer 7

In England, however, the system of binding precedent allows the decisions of judges to become part of the law itself and allows the law on a particular subject to adapt and develop through a series of binding decisions.

Question 8

How are judges appointed in England?

Answer 8

Judges are appointed by the monarch on the recommendation of the Lord Chancellor. The Judicial Appointments Commission (JAC) is an independent commission that selects and recommends candidates for judicial office in courts and tribunals in England and Wales.

Question 9

What is the adversarial system of English Law?

Answer 9

Under the English legal system, a court case is essentially a contest between two sides:

• In a civil case, it is between the claimant (previously called the plaintiff) and the
  defendant.
• In a criminal case, it is between the prosecution and the defence.

The court itself, consisting of a judge or judges and sometimes a jury (a body of twelve ordinary citizens who provide a verdict on the basis of evidence submitted), remains neutral.

The role of the court is not to investigate but simply to listen to the evidence presented by the two sides and then give judgment for one side or the other. This is known as an adversarial system.

Question 10

In civil cases, the claimant must prove their case on..?

Answer 10

the balance of probabilities

Question 11

In criminal cases, guilt must be proven…?

Answer 11

beyond reasonable doubt

Question 12

What does ‘Rule of law’ mean in the UK?

Answer 12

The powers exercised by politicians and officials must have a proper foundation and be based on an authority given to them by law.

• the law generally should be reasonably certain and predictable;
• people should be treated equally by the law, which should not allow unfair discrimination;
• no one should be punished or deprived of their property, status or other rights unless they are given a fair hearing by an impartial court or tribunal; and
• every person should have a right of access to the courts, which will defend the liberties and freedoms of the individual.

Question 13

What is the definition of legislation?

Answer 13

Legislation is law which has been created in a formal way and set down in writing.

Question 14

What does Parliament consist of?

Answer 14

Parliament consists of:

• the House of Commons
• the House of Lords
• the Monarch (as a formality)

Question 15

What are the two main sources of new law?

Answer 15

• Legislation
• Judicial precedent (or case law)

Question 16

What are the two principal forms of parliamentary legislation?

Answer 16

Acts of Parliament or statutes

Question 17

What is are the stages needed for a Public Bill to be enacted?

Answer 17

• First reading
• Second reading
• Committee stage
• Report stage
• Third reading

Question 18

What is a consolidating Act?

Answer 18

A consolidating Act is one which repeals all previous legislation on a subject and re-enacts it in one logically arranged statute.

Question 19

What is a codifying Act?

Answer 19

A statute used to bring together all the strands of the law on a particular subject including case law.

Question 20

What is the Law Commission?

Answer 20

The LC is responsible for the consolidation and revision of statute law. It also has the general role of reviewing English law as a whole and recommending ways in which it can be updated, simplified and developed in a systematic way.

Question 21

Give an example of a consolidating Act?

Answer 21

• the Road Traffic Act 1988
• the European Parliament and Council Directive 2009/103/EC

Question 22

Give an example of a codifying Act?

Answer 22

• the Bills of Exchange Act 1882
• the Partnership Act 1890
• the Sale of Goods Act 1979
• the Marine Insurance Act 1906

Question 23

What is retroactive legislation?

Answer 23

This is legislation which affects acts done or rights acquired before it came into effect.

Question 24

What is delegated legislation?

Answer 24

These are Acts which give government officials the power to make intricate rules in respect of primary legislation.

These acts are called Enabling Acts (or Parent Acts).

Question 25

What are statutory instruments?

Answer 25

Most Enabling Acts which give Ministers and their civil servants power to enact delegated legislation, stipulate that the powers in question are to be exercised in the form of departmental regulations or orders. These are known collectively as statutory instruments.

Question 26

What is the literal rule in statutory interpretation?

Answer 26

Under the literal rule, the words in a statute are given their ordinary and natural meaning.

Question 27

What is the golden rule in statutory interpretation?

Answer 27

Where the meaning of words in a statute, if strictly applied, would lead to an absurd result, and there is an alternative interpretation which avoids the absurdity, the courts are entitled to
choose that latter meaning and to assume that Parliament did not intend the absurdity. This is sometimes called the golden rule.

Question 28

What is the mischief rule in statutory interpretation?

Answer 28

This is sometimes called the rule in Heydon’s case, from the decision in 1584 in which it was first set out.

Under this rule, the judge will consider the meaning of the words in the Act in the light of the abuse or ‘mischief’ which the Act was intended to correct, and choose the interpretation which makes the Act effective in suppressing this mischief.

Question 29

What are the three laws of interpretation?

Answer 29

• the literal rule
• the golden rule
• the mischief rule

Question 30

What matters are first heard in the chancery division of the High Court?

Answer 30

• Company matters
• Partnerships
• Trusts
• Mortgages
• Revenue matters

Question 31

What matters are first heard in the family division of the High Court?

Answer 31

• Matters of family law including disputes about family property
• Matters concerning children such as adoption and guardianship

Question 32

What kind of cases are dealt with by Magistrates’ Court?

Answer 32

Minor criminal offences (and some minor civil matters)

Question 33

What kind of cases are first dealt with in a Crown Court?

Answer 33

Crown courts deal with serious criminal cases after a transfer for trial proceedings from a Magistrates’ Court.

Question 34

What is a precedent?

Answer 34

A precedent is a decision in a previous legal case where the facts were similar to the case before the court.

Question 35

What is binding precedence and what is it’s significance?

Answer 35

The doctrine of binding precedent requires a judge to base their decisions on the law established in earlier cases where the facts were the same.
Whether a precedent is binding or not depends on the level of the court in which the decision was made. As a general principle, a judge is only bound by decisions made in a court higher than their own or, in some cases, a court of equal standing.

Question 36

What are persuasive precedents?

Answer 36

Persuasive precedents are influential but non-binding decisions.

Question 37

Civil law also known as private law covers

Answer 37

• the law of contract
• the law of torts
• the law of trusts
• the law of property
• the law of succession
• family law

Question 38

Parliament consists of ..

Answer 38

• the House of Commons
• the House of Lords
• the Monarch (as a formality)

Question 39

What is the difference between a Public and Private Act?

Answer 39

• A Public Act is one which contains law affecting the whole community, such as the Theft Acts, which are part of the general criminal law.
• A Private Act, on the other hand, is passed for the benefit of a particular individual, organization or group.

Question 40

Minor civil cases are dealt with by …

Answer 40

County Courts and heard by district judges

Question 41

The precedent that a judge is bound to follow is based on ….

Answer 41

the ratio decidendi “the reason for deciding”

Question 42

What is overruling?

Answer 42

Overruling occurs where a higher court decides a matter which is governed by a precedent set in an earlier case on a different principle.

Question 43

What is disapproving?

Answer 43

A decision is said to be disapproved when a court offers the opinion that an earlier case is wrongly decided but is not in a position to overrule it.

Question 44

What is distinguishing?

Answer 44

Distinguishing occurs when a court declines to follow a previous decision on the grounds that there are important points of difference in the case which has gone before it. In other words,
the two cases are distinguished ‘on the facts’.