Chapter 1 - The English Legal System

Question 1

1.2 - The meaning of ‘law’

What must the law set out?

Answer 1

The law must set out a standard of acceptable behaviour, a benchmark against which people are judged.

Question 2

1.3 - Legal rules and social rules

What is law?

Answer 2

Law is a system of rules, that govern our day-to-day life at home, work, and in our relationships.

Question 3

1.4 - Law and morality

Moral principles underpin the law, but what is one difficulty with having a legal system entirely based on morality? Give an example of a law that is controversial ethically.

Answer 3

• It poses the question of whose moral standards should be adopted, especially in a diverse society where citizens may not share an identical moral code.

Question 4

1.4 - Law and morality

What are examples of controversial areas where there isn’t a clear moral consensus in society?

Answer 4

• E.g. Euthanasia is an area that is controversial and doesn’t have a consensus, as it is informed by one’s religious or philosophical beliefs.
• The death penalty, legalization of prostitution, and the classification of cannabis as a Class B drug.

Question 5

1.4 - Law and morality

How does the law protect society as a whole?

Answer 5

• By restricting the freedom of each individual, the law protects everyone else fro that person’s recklesness, violence or dishoneesty.
• The law takes away some of our personal freedoms, but in return gives us protection & security

Question 6

1.5 - Different types of legal rules

What is private law? and give an example.

Answer 6

• Private law is concerned with
  the private relationship between individuals (including companies) and it is enforced by individuals taking actions against one another in the courts.
• E.g. A claim by a customer against
  a manufacturer under a guarantee.

Question 7

1.5 - Different types of legal rules

What is public law? and give an example.

Answer 7

• Public law is concerned with both relationships between individuals and the state, with the state enforcing certain standards of behaviour.
• E.g. criminal prosecution

Question 8

1.5 - Different types of legal rules

What is the distinction between civil and criminal law?

Answer 8

• Criminal law - laws that concern the relationship between an individual and the rest of the community as a whole
• Civil law - laws that concern the relationship between individuals in that community and don’t involve or concern the community as a whole

Question 9

1.5 - Different types of legal rules

EXAMPLE: if Sachin has parties late whilst playing loud music annoying his neighbours, is this a criminal or civil offence, and what potential claims are there?

Answer 9

• This is a civil offence.
• If it is sufficiently loud, Sachin’s neighbours can bring a private nuisance claim against him in a civil court, asking the court to grant an injunction telling Sachin to stop playing excessively loud music and award them damages.

Question 10

1.5 - Different types of legal rules

EXAMPLE: Toby orders a new toaster but when it arrives it doesn’t work. Is this criminal or civil, and then what type of law does it fall under?

Answer 10

• This is civil law, specifically the law of contract.
• Under Consumer Rights Act 2015, the goods a seller provides must be of satisfactory quality. If they’re not, the seller is in breach of contract, so toby is entitled to reject the toaster and receive a refund of the price paid including postage.

Question 11

1.5 - Different types of legal rules

What does civil law deal with? and what is the outcome measured in?

Answer 11

• Civil law deals with contracts, disputes and differences
• The outcome is measured in remedies or the payment of monies.

Question 12

1.5 - Different types of legal rules

What is the standard of proof in civil law?

Answer 12

On the balance of probabilities

Question 13

1.5 - Different types of legal rules

What does criminal law deal with? and what is the outcome measured in?

Answer 13

• It imposes restrictions and obligations on the population
• The outcome is measured in punishment for transgressions, with the public taking an interest in both the offence and the punishment

Question 14

1.5 - Different types of legal rules

What is the ultimate penalty in criminal law?

Answer 14

The loss of one’s freedom through imprisonment

Question 15

1.5 - Different types of legal rules

What is the standard of proof in criminal law?

Answer 15

Criminal matters must be proved beyond reasonable doubt

Question 16

1.5 - Different types of legal rules

What is the ‘golden thread’ of justice and what case is it stated?

Answer 16

The accused is innocent until proven guilty, as stated in the case of Woolmington v DPP [1935].

Question 17

How are criminal cases/proceedings initiated, and what role does the victim play?

Answer 17

• Criminal cases, referred to as prosecutions, are usually initiated by the State through the police, who arrest and charge individuals.
• Victims cannot prevent a prosecution or order its discontinuance; however, police typically refrain from pursuing charges if the victim is unwilling to proceed.

Question 18

What standard of proof must the prosecution meet in a criminal case, and what happens if they fail?

Answer 18

The prosecution must prove its case beyond reasonable doubt. If it fails to do so, the defendant must be acquitted.

Question 19

What is the primary objective of a criminal prosecution, and what types of punishment can be imposed?

Answer 19

The objective of criminal prosecution is to punish the defendant, who may face imprisonment, fines, or community sentences.

Question 20

What are civil proceedings otherwise known as?

Answer 20

Actions or claims, not prosecutions

Question 21

What is the standard of proof in civil proceedings, and how does it differ from criminal cases?

Answer 21

In civil claims, the case must be proven on the balance of probabilities, which is a lower standard than beyond reasonable doubt used in criminal prosecutions.

Question 22

What is the primary objective of a civil claim, and what form of relief does the claimant seek?

Answer 22

The primary objective of a civil claim is to compensate the claimant for losses suffered. Compensation (damages) is awarded to the claimant and is not intended to punish the defendant.

Question 23

What term was used before 1998 for the claimant in civil cases, and when did it change?

Answer 23

Prior to the Civil Procedure Rules 1998, the claimant was referred to as the plaintiff.

Question 24

What were the main sources of law in England and Wales historically?

Answer 24

Law in England and Wales developed from local customs and judges’ decisions.

Question 25

What are the main modern sources of law in England and Wales?

Answer 25

The modern sources of law include Parliament (legislation), European Union (EU) law (prior to Brexit), and the European Convention on Human Rights (enforceable via the Human Rights Act 1998).

Question 26

How has Brexit affected the sources of law in England and Wales?

Answer 26

Brexit has changed the legal landscape by removing EU law as a source of law, leading to new legal developments and challenges in England and Wales.

Question 27

How was the law administered in England before the Norman Conquest in 1066?

Answer 27

Before the Norman Conquest, England had no unified legal system. Each region had its own customs, which were administered by local courts.

Question 28

How did William the Conqueror establish control over the legal system after 1066?

Answer 28

William the Conqueror established control by traveling around England with his court, personally hearing grievances and imposing his authority. This led to the establishment of the Court of King’s Bench, which still exists today as the King’s Bench.

Question 29

How did monarchs delegate the responsibility of hearing legal cases after the Norman Conquest?

Answer 29

Monarchs delegated judicial responsibilities to commissioners known as itinerants, who traveled the country to hear cases. These commissioners eventually became known as justices and held Assizes to hear serious cases.

Question 30

What role did Henry II play in the formal development of common law?

Answer 30

Henry II formalized the system of circuit judges and divided the country into circuits to be visited regularly by justices. This helped standardize the application of law across England.

Question 31

How did the common law develop from local customs?

Answer 31

Initially judges travelled the country & use local customs to decide cases. Over time, judges began discussing their cases and applying the best local rulings uniformly across England. This led to a legal system that was common to the whole country, and the King’s courts eventually gained dominance over local courts.

Question 32

What is the doctrine of stare decisis, and how did it contribute to the development of common law?

Answer 32

The doctrine of stare decisis means standing by previous decisions. When a judge decided a new legal problem, their decision would be followed in subsequent cases, gradually leading to judicial precedent becoming binding on the courts.

Question 33

What problem arose with the common law regarding the use of writs?

Answer 33

In the common law system, an action could only be brought if there was a pre-existing writ covering the facts of the case. This led to the principle of “no writ, no right”, where a person could not start a legal action without buying an appropriate writ (a common law right only existed if there was a procedure for enforcing it).

Question 34

What was the role of the Chancellor’s Office in the common law system?

Answer 34

The Chancellor’s Office was responsible for issuing writs, which were sealed letters in the name of the King ordering someone to take specific action, such as the sheriff or defendant.

Question 35

How did the system of writs develop in common law, and what limitations arose by the 13th century?

Answer 35

The number of writs grew slowly, with around 50 writs existing by the 13th century. Many were minor variations of basic writs. The Statute of Westminster (1285) attempted to address these limitations, but its impact was limited.

Question 37

What issues did plaintiffs face with common law writs?

Answer 37

Common law procedures were inflexible and formal. Plaintiffs could plead only one cause of action, and even a small error in the writ could collapse a case, forcing them to restart with additional expense and delay.

Question 38

What was the main remedy available in common law, and why was it insufficient?

Answer 38

The main remedy in common law was damages (payment of money), which was often inadequate. It did not compel someone to stop wrongful actions or fulfill obligations, and it did not address rights like trusts or fair mortgage terms.

Question 39

How did common law handle mortgages, and what problems arose for borrowers?

Answer 39

Under common law, if the borrower missed the repayment deadline, the lender took ownership of the land. Borrowers were unable to reclaim the land, even if they could repay the loan later, leading to unfair loss of property.

Question 40

How did dissatisfied litigants seek justice outside of common law in the 14th century?

Answer 40

• The common law was rigid and dogged by technicalities.
• Dissatisfied litigants petitioned the King to exercise his royal prerogative as the “fountain of justice”. Eventually, this function was delegated to the Lord Chancellor, who became known as the Keeper of the King’s Conscience.

Question 41

What role did the Lord Chancellor play in the development of equity, and when did the Court of Chancery form?

Answer 41

The Chancellor began issuing decrees in his own name by 1474, leading to the creation of the Court of Chancery, which developed equity as a separate legal system. The Chancellor could adjudicate cases based on fairness, without being bound by rigid common law procedures

Question 42

How did equity differ from common law in terms of procedure and remedies?

Answer 42

• Wasn’t that equity in the sense of natural justice was completely absent from common law, but it was rigid.
• Equity allowed for new rights and remedies to be developed based on the facts of individual cases. It was more flexible and quick, as it was not bound by the rigid writ system of common law.
• Chancellor could inquire into the facts of a case

Question 43

How did equity evolve from the application of fairness into a separate legal system?

Answer 43

Over time, principles of equity emerged, and it became a separate branch of law with its own rules and procedures, rather than merely applying natural justice to individual cases.

Question 44

Eventually over time, judges developed a set of equitable principles: What does the equitable principle “Equity looks on that as done which ought to be done” mean?

Answer 44

This principle means that equity enforces the intention of the parties, ensuring justice even if rigid procedures are not followed.

Question 45

What does the equitable maxim “He who comes to equity must come with clean hands” mean?

Answer 45

This maxim means that a claimant seeking an equitable remedy must have acted fairly and without wrongdoing.

Question 46

What does the equitable maxim “Delay defeats equity” mean?

Answer 46

This maxim means that a claimant cannot wait too long before bringing a claim, as excessive delay may prejudice the other party and result in the denial of an equitable remedy.

Question 47

What does the principle “Equity will not suffer a wrong to be without a remedy” mean?

Answer 47

This principle ensures that **equity provides remedies **for wrongs that cannot be addressed by common law, ensuring justice is served.

Question 48

How did the law of trusts develop through equity?

Answer 48

Trusts originated in the 13th century when crusaders would transfer property to trusted friends to manage for their families. The Court of Equity intervened to protect the families’ interests, as the common law did not recognize their rights.

Question 49

How are trusts still relevant today?

Answer 49

Trusts are important in taxation, shared ownership of property, provision for dependants, and in managing pension funds and charities.

Question 50

How do equitable remedies differ from common law remedies?

Answer 50

Equitable remedies are discretionary and depend on the court’s judgment, while common law remedies, such as damages, are a matter of right if the claimant proves their case.

Question 51

What are the 2 equitable remedies which are still important today?

Answer 51

1. Injunction - a court order compelling a person to either perform an action or refrain from an action, such as demolishing a building constructed in breach of a promise not to build on land.
2. a decree of specific performance - a court order compelling a party to fulfill their obligations under a contract or trust, used when damages would not be an adequate remedy.

Question 52

What was the key case that resolved the conflict between common law and equity, and what was the ruling?

Answer 52

The conflict was resolved in Earl of Oxford’s Case (1615), where King James I ruled that equity should prevail over common law in cases of conflict.

Question 53

What were the main disadvantages of equity by the 19th century that led to the need for reform?

Answer 53

By the 19th century, equity had become inflexible, similar to common law, and the legal system was slow, expensive, and had overlapping jurisdictions with a poor appeals system.

Question 54

What did the Supreme Court of Judicature Acts of 1873 and 1875 achieve?

Answer 54

The Acts **merged the separate court systems **of common law and equity into a single court structure, allowing civil courts to grant both common law and equitable remedies in the same proceedings.

Question 55

What is an example of a court granting both common law and equitable remedies in the same case?

Answer 55

A court can order an injunction to stop ongoing unlawful behavior alongside awarding damages for losses that have occurred up to that point.

Question 56

How is common law most commonly defined today?

Answer 56

Common law today refers to case law or judge-made law, as opposed to law created by Parliament (legislation).

Question 57

What role do law reports play in the common law system?

Answer 57

Law reports summarize the decisions made in actual cases, and they are compiled by specialist journalists called court reporters.

Question 58

What is the declaratory theory of law?

Answer 58

The declaratory theory posits that judges do/should not make or create law but merely declare what the law is and apply it to the case. This theory holds that law should originate from Parliament, not judges.

Question 59

Why is case law still a major source of law in the English legal system?

Answer 59

Case law remains a major source of law because much of modern English law has never been codified in statutes and is still found in judicial decisions, some of which date back centuries.

Question 60

How has the role of judges as law-makers evolved in recent times, and which judge commented on this?

Answer 60

• In modern times, it is accepted that judges, especially in the **Court of Appeal **and Supreme Court, do make new law.
• Lord Browne-Wilkinson stated in Kleinwort Benson Ltd v Lincoln City Council [1999] that “the whole of the common law is judge-made,” ensuring that it remains relevant in a changing world.

Question 61

What are the facts and decision in Re A (Children) [2001]?

Answer 61

• In Re A (Children), the Court of Appeal had to decide the legality of an operation to separate conjoined twins, Jodie and Mary. The operation would result in the death of the weaker twin, so judges had to decide whether the doctors would be guilty of murder.
• The judges ruled that the operation should proceed despite there being no legal precedent, demonstrating the need for judicial decision-making in novel cases.

Question 62

How has the role of judges in law-making changed in recent times?

Answer 62

While judges still play a role in developing the law, their influence as law-makers has diminished. Nonetheless, they retain the ability to shape legal developments in certain areas, especially when no precedent exists.

Question 63

What is the main political objection to judges making law?

Answer 63

The primary objection is that judges are not democratically elected. Since they are not accountable to the electorate, it is argued that judges should not create legal rules that hold society together, as this could undermine democratic principles.

Question 64

How are senior judges in England and Wales appointed?

Answer 64

• Senior judges in England and Wales are appointed by the Lord Chancellor based on the** recommendation of the Judicial Appointments Commission.
• Supreme Court justices are appointed by the Prime Minister following the recommendation of a special appointments commission.

Question 65

Why do judges sometimes need to make law, despite political objections?

Answer 65

Judges sometimes need to make law because they are confronted with novel situations where no existing legal precedent applies, requiring them to make decisions to resolve new legal issues.

Question 66

What limitation do judges recognise when it comes to law-making?

Answer 66

Judges recognize that they ought not to develop the law in a direction contrary to the expressed will of Parliament, as confirmed in R (Miller) v Secretary of State for Exiting the European Union [2017].

Question 67

What is the most important source of law in the English legal system today?

Answer 67

Legislation is the most important source of law in the English legal system, surpassing common law. Parliament passes laws that apply to England, Wales, Scotland, and Northern Ireland.

Question 68

How has the volume of legislation passed by Parliament changed over time?

Answer 68

The amount of legislation has increased significantly over time. For example, Parliament passed 220 pages of legislation in 1921, compared to 4,911 pages in 2006, which is the highest recorded figure.

Question 69

What are the main functions of legislation?

Answer 69

The main functions of legislation are making, changing, and repealing the law.

Question 70

What is the difference between “legislation” and “statute”?

Answer 70

1. Legislation is a broad term that includes statutes and other types of law, such as delegated legislation and EU-originated legislation.
2. A statute specifically refers to an Act of Parliament.

Question 71

Do statutes apply only to England and Wales?

Answer 71

No, unlike case law which only applies to England & Wales, in the absence of specific provisions, statutes apply to England, Wales, Scotland, and Northern Ireland.

Question 72

What are the three components of Parliament in the UK?

Answer 72

Parliament consists of the Monarch, the House of Commons (democratically elected), and the **House of Lords **(not elected).

Question 73

What is the difference between a Green Paper and a White Paper in the legislative process?

Answer 73

1. Green Paper - consultation document on a possible new law
2. White Paper - incorporates the Government’s firm proposals for the new law

Question 74

What is the initial form of an Act of Parliament, and what must happen for it to become an Act?

Answer 74

An Act begins as a Bill, and it must pass through all required stages in both Houses of Parliament and receive royal assent to become an Act of Parliament.

Question 75

Give an example of a Bill that took a long time to become an Act of Parliament?

Answer 75

The Hunting Act 2004 took seven years and 700 hours of Parliamentary time to become law.

Question 76

What is the doctrine of parliamentary sovereignty?

Answer 76

This doctrine states that Parliament is the supreme law-making body in the country.
* Parliament can make laws on any subject.
* No other body, including courts, can invalidate an Act of Parliament.
* Parliament cannot bind future Parliaments, so any law can be repealed or amended.

Question 77

What are the different types of legislation?

Answer 77

Public Bills: address matters of general public concern, such as the Stalking Protection Act 2019.
* Private Bills: affect specific individuals or localities, like authorizing a new railway line.
* Consolidating legislation: combines existing laws on a topic into a single statute without changing the law.
* Codifying legislation: brings together all law on a subject, including common law, custom, and statute, and may change the existing law.

Question 78

What is delegated or subordinate legislation?

Answer 78

It is law made by bodies other than Parliament, such as government departments or local authorities, but authorized by Parliament through a ‘parent’ Act.

Question 79

Give examples of delegated legislation.

Answer 79

• Statutory instruments: the most common form, often used to fill in details of a broad Act. For instance, the Education Reform Act 1988 gives the Secretary of State power to detail the National Curriculum through statutory instruments.
• Byelaws: local laws made by local authorities on issues specific to their area, such as park usage or alcohol bans in public spaces.

Question 80

What are the advantages and disadvantages of delegated legislation?

Answer 80

• Advantages: Saves Parliamentary time, allows for technical expertise in drafting, enables quick responses to emergencies.
• Disadvantages: Reduced Parliamentary scrutiny, potential for complexity making it difficult to track and comply with, potential for abuse of power by ministers (‘Henry VIII’ powers).

Question 81

What was the impact of EU membership on the English legal system?

Answer 81

During the UK’s membership in the European Union (EU), EU law applied throughout the UK. To incorporate EU law into UK law, the European Communities Act 1972 was enacted. Membership significantly affected various areas of law, particularly commercial, consumer, employment, environmental, and immigration law.

Question 82

What happened to EU law after Brexit?

Answer 82

Following Brexit, EU law ceased to apply directly in the UK. However, the European Union (Withdrawal) Act 2018 retained applicable EU law as ‘retained EU law’, preventing a legal vacuum. The Retained EU Law (Revocation and Reform) Act 2023 has changed the status of retained EU law, renaming it ‘assimilated law’.

Question 83

Describe the main institutions of the European Union (EU).

Answer 83

• Council of the European Union: Represents national governments of member states and makes major decisions.
• European Commission: Develops policy and proposes legislation, working independently of national interests.
• European Parliament: Composed of elected members, it scrutinizes and amends legislation proposed by the Commission.
• Court of Justice of the European Union (CJEU): Ensures EU law is observed, with the European Court of Justice (ECJ) as its highest court.

Question 84

What are the types of EU legislation?

Answer 84

Primary legislation: Found in treaties like the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), binding on all member states.
Secondary legislation: Includes:
* Regulations: directly applicable in all member states.
* Directives: set objectives to be achieved by member states, leaving implementation to national authorities.
* Decisions: binding on those to whom they are addressed, whether member states or individuals.

Question 85

How did EU law impact the doctrine of parliamentary sovereignty?

Answer 85

During the UK’s EU membership, EU law, particularly directly effective law, took precedence over domestic law, including Acts of Parliament. This was a recognized limitation on parliamentary sovereignty, demonstrated in cases like R v Secretary of State for Transport, ex p Factortame (No 2) .

Question 86

Explain the role of the European Convention on Human Rights and the Human Rights Act 1998 in the English legal system.

Answer 86

The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law. The ECHR defines fundamental human rights. Under the HRA, courts must interpret legislation to be compatible with the ECHR and can issue ‘declarations of incompatibility’ if legislation conflicts with Convention rights.

Question 87

What are the key provisions of the European Convention on Human Rights?

Answer 87

It protects fundamental rights like:
* Right to life
* Freedom from torture
* Right to a fair trial
* Freedom of expression
* Freedom of assembly.

Question 88

What are absolute, limited, and qualified rights?

Answer 88

• Absolute rights: Cannot be restricted under any circumstances, e.g., freedom from torture.
• Limited rights: Can be restricted in specific, defined situations.
• Qualified rights: Can be interfered with in certain circumstances to protect public interests, e.g., freedom of expression can be limited to protect national security.

Question 89

What are the main sources of law in England and Wales today?

Answer 89

• UK Legislation
• Retained EU Law/Assimilated Law
• The Human Rights Act 1998

Question 90

What are the key takeaways about the development of the English legal system?

Answer 90

The legal system constantly evolves, balancing individual freedoms with societal needs. Understanding the sources of law and the principles of interpretation is crucial for applying the law effectively.