Chapter 1: Understanding the Law Flashcards
What are the broad functions of law?
- maintenance of public order and safety
- protection of individual rights and liberties
- organisation and control of political sphere
- regulation of economic activity
- preservation of a moral order
- regulation of international relations
What are the four main institutional sources of law?
-Parliament, the courts, the European Union and the European Convention on Human Rights
What are the three factors that make Parliament so significant as a source of law?
- statute law
- delegated/secondary legislation
- informal rules deriving from delegated powers
Why are judges now able to challenge or overturn Parliamentary legislation?
- EU membership allows courts to ‘disapply’ an Act of Parliament that conflicts with EU law.
- under the Human Rights Act 1998 courts can issue statements of incompatibility.
What other names are there for delegated legislation?
-statutory instruments or Regulations
What is a ‘parent Act’?
-an Act that authorises the delegation of legislative power and sets the parameters within which it must be used.
What does ‘ultra vires’ mean?
-‘beyond the powers’
What are some examples of informal rules deriving from delegated powers?
-directions, guidances, circulars or codes of practice created by bodies with the power to make delegated legislation.
What is the chief function of informal rules?
-to regulate and assist the ability of officials to make decisions in the absence of clear and binding legal standards.
What three categories do most informal rules fall into?
-procedural rules, interpretative guides, instructions of officials.
what are procedural rules (in the context of informal rules)?
-procedures for outsiders to follow, particularly in respect to government organisations. eg procedures for making a benefits claim.
What are interpretative guides (in the context of informal rules)?
-official statements of departmental policy, standards, criteria etc which are made available to the public to inform them of their rights in terms of a specific body. eg guidance issued by the Inland Revenue to taxpayers
What are instructions to officials (in the context of informal rules)?
-similar to interpretative guides but for officials rather than the general public.
What two things do definitions of Common law distinguish between?
- statute law
- European-style civil law
Could a civil crime ever be called an ‘offence’?
-no: that terminology is reserved for criminal law. Civil misdeeds are called ‘wrongs’
What is the jurisdiction of the County court in civil law?
-majority of civil litigation, uncontested divorce, family courts
What is the primary jurisdiction of the Magistrates courts in civil law?
-family proceedings court.
Which two divisions of the High Court have the most significant commercial law jurisdictions?
-Queen’s Bench and Chancery
What specialist commercial courts exist within the Chancery Division of the High Court?
- Bankruptcy and Companies Court
- Patents Court
What specialist commercial courts exist within the Queen’s Bench Division of the High Court?
- Admiralty Court
- Commercial Court
- Technology and Construction Court
What primary function do the Divisional Courts of the High Court perform?
They are the appellate courts
What is the main function of the Administrative Court of the Queen’s Bench?
-it exercises the High Court’s ‘supervisory jurisdiction’ ie overseeing the quality and legality of lower courts and tribunals’ decisions. Occasionally hears criminal appeals ‘by way of case stated’.
What is the difference in jurisdictions between the High Court and the County Courts?
-Deal with the same sort of issues but High Court just handles more complex/more valuable claims.
What is the difference between substantive law and procedural law?
-Substantive law is the specific rules that govern behaviour; procedural law is the process by which a legal claim passes through the courts and by which it is tried.
What are the three ‘tracks’ that could be taken by a potential civil case?
- small claims track
- fast track (simpler, lower value cases £10-15k, usually in the County Court)
- multi-track (everything too complex or valuable)
What two forms of dispute resolution does ADR primarily refer to?
-mediation and early neutral evaluation
