!!!!! consti Flashcards
who creates statutes?
Parliament- legistlature
who implements statutes?
executive- government ministers
can a judge override a provision of an act of parliament if it is deemed unjust in a certain situation?
NO- judges cannot override parliament- can only decide on the proper interpretation of an act
If Uk sign a treaty but then creates an act of parliament that goes against this- which takes precedence?
- act of parliament
- court is not bound to follow a treaty unless it has been enacted by uk parliament
- the treaty may be persuasive when the court is interpreting the act
if an act says ‘no future parliament may repeal this legislation’- can it be repealed?
yes- just needs to be passed and given royal assent
- cannot be bound by its successors
dicey theory of parl sovereignty
- parl can make or break any law
- no court can challenge the legality of an act of parliament
- no parl can bind a future parl
if a treaty affects domestic law- what must happen for it to be enforceable in the UK?
- terms of the treaty must also be laid before Parliament in the form of a Bill to bring the ban into domestic law
Do the courts have any role in making new law?
- where there is no relevant legislation, the courts can develop common law through new case law
if there is a court of appeal decision relating to a similar case on trial- is the court bound by that case?
no- it may be distinguishable from the court of appeal case- if you can establish a material difference in the facts or points of law in the court of appeal case then it may not be binding on the lower court
can a court depart from its own earlier decision?
YES- only happens rarely
no need for a unanimous decision
what is the ratio decidendi?
-A summary of the legal rule or principle relied on by the court in reaching its decision as set out in the judgment of each case.
does a solicitor have automatic rights of audience for coroners court?
yup
what is the effect of the Practice Statement upon the Supreme Court?
- it is able to depart from its own previous decision where it appears right to do so
what is the role of the House of Lords?
- can scrutinise and propose amendments to Bills
- House of Commons must then consider any amendments proposed
is there anything preventing the king from adding a new law?
- yes it is against constitutional convention
does Parliament have the power to pass an immoral law?
yes- they have the power to pass any law
does the PM have power to deploy UKs armed forces against the rogue state without reference to parliament?
yes, under the royal prerogative they can do this immediately
what does the term ‘rule of law’ mean?
The term does not refer to a set of rules but to a guiding principle regarding regulation of the powers of the state
can a royal family member be arrested
-yes because the law doesnt discriminate
- this doesnt apply to the monarch tho- they are immune
how can a solicitor advertise new services? to a) clients b) members of the public
a) can make unsolicited approach to former and current clients
b) cant make unsolicited approaches to members of the public
can a judge be dismissed for making decisions about a gov ministers wrongdoing?
Under the doctrine of the separation of powers, the judiciary is independent, and a judge cannot be dismissed other than for bad behavior or as a result of incapacity.
can a serving judge stand for election?
no- the danger of abuse of power would prevent her from standing= SEPARATION OF POWERS
how can a solicitor advertise services?
a solicitor may not make unsolicited calls/approach members of the public in relation to their legal services unless they are current or former clients.
can you claim for judicial review if sacked by a local authority (your employer) ?
The decision related to the local authority’s contractual relationship with an individual employee. It was therefore exercising its managerial powers rather than powers in relation to a public function and judicial review is therefore not the appropriate remedy
what is judicial review
- Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
- In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
what is sufficient standing for judicial review?
- there isn’t really a definition
- need to have a sufficient standing or interest in it
- eg pressure group
- but courts are unlikely to turn someone away
3 main grounds for judicial review
- illegality
- procedural unfairness
- irrationality
if you have sent your client a client care letter and they tell you to proceed without signing anything- are they bound to pay you?
- yes This is because the client has entered into a contract with the solicitor by asking her to proceed after receiving her retainer letter setting out her terms of business. As a matter of good practice, the client is usually asked to sign an acceptance of the terms of business. The effect of the client continuing their instructions to act without signing the acceptance is also normally explained in the retainer letter.
if a client wants to lie in a counterclaim and the solicitor terminates the contract due to this- does the solicitor have to keep acting if the client says so?
A solicitor is entitled to terminate a contract with a client for ‘good cause’, such as being asked to behave unethically or to argue a case which could not succeed, and ‘with reasonable notice’ which is what the solicitor has done in this case. If the solicitor had wrongly terminated the contract, it would have related to the ‘entire contract’ and in the solicitor would then have to reimburse fees already paid.
if given face to face instructions by a client and told to start work immediately after explaining costs etc, and then the client cancels- is there a contract and can the solicitor get money for any work undertaken In that time?
The solicitor has an implied contract with the client and is entitled to reasonable payment for the work done at the client’s request.
when can you get legal aid for family cases?
- domestic violence cases
for family cases other than DV- what is the only funding option?
- private funding
if a solicitor is suspicious regarding payment to someone- what should they do
make a disclosure to the firms money laundering reporting officer
a solicitor is acting as a trustee- can they take on managing a portfolio of shares?
The management of investments is a specified activity under art 37 of the Regulated Activities Order 2001 but art 66 provides an exclusion provided the trustee does not hold themselves out as providing investment management services or charge separately for those services.
can you make a complaint against a firm of solicitors if the solicitor handling your case has left?
yes-The client is entitled to pursue the complaint against her previous firm of solicitors as they have a duty to her alongside that of the individual solicitor.
If you work at a law business that has been regulated by the SRA, which employees are subject to the SRA rules?
- all employees
who should you complain to if you want someone disbarred
the SRA and request it’s investigation be referred to the solicitors disciplinary tribunal
when should you complain to the legal ombudsman?
- the ombudsman deals with complaints regarding service issues relating to all regulated entities
what are the 6 reserved legal activities- eg things you need a practicing certificate to do
- exercise of a right of audience
- conduct of litigation
- prepare and submit probate forms
- notarial activities
- administration of oaths
what is the notice period under the public order act 1986?
6 days
if you don’t give 6 days notice of a procession are you in breach of the public order act?
yes
if you can’t give 6 days notice you should give as much notice as possible
definition of an undertaking
a statement given orally or in writing that DOESNT HAVE TO INCLUDE the word undertake
can you be arrested/convicted for not moving when told to by a police officer during a protest
you can be arrested BUT
A conviction cannot be upheld unless the demonstrator knew or ought to have known that the condition had been imposed as was the case here. The police officer giving the instruction could not be heard and the demonstrators had not deliberately avoided hearing (e.g. by covering their ears).
can the police stop a protest before it starts?
- no unless there is a reasonable belief of a threat to breach the peace which is in close proximity of time and place
can the police detain protesters and innocent bystanders if there is a threat of a major breach of the peace?
yes - The police are entitled to use breach of the peace powers where there is a reasonable expectation of a threat of a major breach of the peace and this can include innocent bystanders if they could not reasonably be excluded and no other options are available.
can granting a possession order breach someones ECHR right to private life?
a) If neither of the parties are public authorities
b) if one party is a public authority
a) the court is not required to consider the right to private life of an individual contracting party where neither party is a public authority
b) Housing possession can engage Art 8 ECHR and where the landlord is a public authority the court will consider the proportionality of the interference with Art 8 before granting possession
within what time frame do you need to bring a claim against violation of human rights?
12 months
What are the requirements for a solicitor to be able to take instructions from someone acting on their clients behalf?
- confirmation in writing that the person has legal authority to act for the client
- instructions must be in the clients best interest
direct vs indirect discrimination
direct- treated differently because of a protected characteristic
indirect- people with a protected characteristic are put at a disadvantage by rules that apply to everyone equally
victimisation
- subjecting an employee to a detriment because they make an allegation that the company has contravened the equality act for failing to make reasonable adjustments for their disability
implementation period- when did it end and what is it?
Pursuant to s1A of the EU(W)Act 2018 until the end of the implementation period (31 December 2020) existing law regarding the supremacy of EU law continued to apply.
