ELS 2

Question 1

The three sources of English law are:

Answer 1

1. Case law
2. Statues by Parliament
3. EU Law

Question 2

T or F: A statute passed by Parliament starts out as a bill.

Answer 2

True

Question 3

What are the two main categories of Acts of Parliament?

Answer 3

1. Private Acts

2. Public Acts

Question 4

What is a private act?

Answer 4

A private act is is one which relates to particular places or to particular people. These Acts usually stem from a proposal by a large organisation such as a local authority or a large private company which wishes to acquire certain powers. For example, a local authority might be seeking a power to build a bridge. The promoter of a private Act is responsible for convincing Parliament of the utility and desirability of the proposal.

Question 5

What is a Public Act?

Answer 5

Public (or general) Acts, on the other hand, are Acts which relate to public concern. They are debated in both Houses of Parliament, and any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is known as lobbying. Public Acts make up by far the largest part of Parliamentary legislative output

Question 6

What is a Consolidating Act?

Answer 6

Consolidating Acts are passed to ‘tidy up’ existing statute law in a particular area. They bring together provisions that are contained in different Acts without altering their content and re-enact them in one Statute

Question 7

What is a Codifying Act

Answer 7

Codifying Acts are designed to enact as a Statute rules that were previously found only in case law

Question 8

T or F: All Bills can be introduced into either the House of Commons or the House of Lords.

Answer 8

False. There is an exception for money Bills, which must be introduced in the Commons first.

Question 9

T or F: The House of Commons and the House of Lords effectively have veto power over bills originating in the other house.

Answer 9

False. The House of Lords may not refuse a money Bill (Parliament Act 1911), and in respect of other Bills it only has the power of delay (Parliament Act 1911, as amended by the Parliament Act 1949) for one year

Question 10

What is Delegated Legislation

Answer 10

Delegated (sometimes referred to as subordinate or secondary) legislation is that law which is made by some person or body other than Parliament but with the authority of Parliament.

Question 11

What are three examples of Delegated Legislation

Answer 11

It includes regulations made by statutory instruments, Orders in Council and by-laws.

Question 12

T or F: There are about the same number of Delegated Legislation passed each year as public general Acts

Answer 12

False. For example, 99% of new laws passed in 2014 were made by way of statutory instruments: there were 30 public general Acts as opposed to almost 3500 statutory instruments passed.

Question 13

What is a regulation?

Answer 13

R

Question 14

What is an order in council?

Answer 14

Hi

Question 15

What is a bylaw?

Answer 15

Please

Question 16

The European Union evolved from which three communities which were established by three international treaties in the 1950s

Answer 16

1. European Economic Community (“EEC”)
2. European Coal and Steel Community (“ECSC”)
3. European Atomic Energy Community (“EAEC”)

Question 17

What is the significance of the UK being a dualist state in relation to the effect of international treaties?

Answer 17

The United Kingdom is a dualist state which means that international treaties do not have effect in domestic law until they have been incorporated by domestic legislation.

Question 18

House of Lords in R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603.

Answer 18

Held that British courts can disapply statutes which are incompatible with EU Law. [To confirm]

Question 19

Sources of EU Law: Regulations

Answer 19

Regulations are classified as legislation where they are adopted using a legislative procedure. In contrast to directives, they are directly applicable in the legal systems of the Member States. This means that they apply in the Member States without those States having to enact any national legal measures to implement them or to give effect to them. Individuals will be able to rely on these in their national courts so long as certain conditions are met.

Question 20

Sources of EU Law: Directives

Answer 20

Like regulations, directives are classified as legislation where they are adopted using a legislative procedure. However, in contrast to regulations, they are addressed only to Member States and are ‘binding as to the result to be achieved but leave to the national authorities the choice of form and methods.’ This means that the Member States must pass national legislation to implement them in their legal order.

Question 21

Sources of EU Law: Decisions

Answer 21

Decisions are legally binding only on the parties to whom they are addressed. They are classified as legislative acts only where they are made using a legislative procedure. All other decisions are treated as being non-legislative orders. It is much rarer for decisions to be adopted using a legislative procedure than it is for regulations and directives.
Decisions may be enforced in national courts against the party to whom they are addressed, providing certain conditions are met.

Question 22

What is a real action?

Answer 22

A real action was an action in the common law courts for the recovery of land.

Question 23

What is a personal action?

Answer 23

In contrast to real actions, a personal action was an action for which the remedy was damages

Question 24

Personal Action: What is an action for Debt

Answer 24

an action for a fixed sum of money in return for an executed consideration (signed undertaking).

Question 25

Personal Action: What is an action for Detinue

Answer 25

a claim for the return of a specific chattel wrongfully retained (with the option of damages in lieu).

Question 26

Personal Action: What is an action for Covenant?

Answer 26

an action for damages resulting from breach of a man’s promise under seal (by deed). No consideration was necessary. The concept of the covenant (a promise contained in a deed) remains of significance in the law today.

Question 27

Personal Action: What is an action for Account

Answer 27

today this is generally a procedural rather than a substantive remedy. It was used to compel a party to account to the claimant for money received on the claimant’s behalf, e.g. a bailiff who received rent on behalf of the claimant.

Question 28

Personal Action: What are the three types of actions for Trespass?

Answer 28

Trespass against:

(a) The person
(b) Goods
(c) Land

Question 29

T or F: A claimant in an action for trespass can recover for damages indirectly caused.

Answer 29

False. Trespass only extended to direct physical damage.

Question 30

T or F: A plaintiff in an action for trespass can recover for damages against intangible rights such as reputation.

Answer 30

False. Trespass only extended to direct physical damage.

Question 31

Describe the Writ System

Answer 31

The common law which was developed by the King’s Courts was a procedural system. There was no automatic right of access to the King’s Courts. In fact no such right existed until 1875. To be able to pursue a claim, the intending claimant had to purchase a writ from the Chancellor before an action could be brought before the courts.

Question 32

Define equity

Answer 32

Equity can be defined as the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875

Question 33

T or F: Equity can stand on its own as a separate legal system.

Answer 33

False. As a system which supplemented instead of usurping the common law, equity was described by Maitland as ‘a gloss on the common law’. This meant that equity cannot stand alone as a separate and complete legal system.

Question 34

Equitable Remedies: What is an injunction

Answer 34

This is an order of the court compelling or restraining the performance of some act.

Question 35

Equitable Remedies: What is specific performance

Answer 35

This is an order of the court compelling a person to fulfil a promise or agreement.

Question 36

Equitable Remedies: What is Rescission

Answer 36

This is an order of the court restoring the parties to their pre-contractual position.

Question 37

Equitable Remedies: What is Rectification

Answer 37

This is an order of the court rectifying a written agreement that does not correctly embody the terms agreed, so as to give effect to the agreement between the parties.

Question 38

What was the effect of the Judicature Acts 1873-1875

Answer 38

These Acts abolished the old division of the three common law courts and the Court of Chancery, and instead created a single High Court and Court of Appeal which could apply equally the rules and remedies of both common law and equity. In cases of conflict, equity still prevails. Despite the formal fusion of the common law courts and the Court of Chancery, the conceptual distinction between common law (legal) rights and equitable (or beneficial) rights remains crucial to the law. For instance, equitable remedies are still discretionary, whilst common law damages are available as of right.

Question 39

How did Dicey describe the legislative supremacy of Parliament?

Answer 39

[…] the very keystone of the law of the constitution [is that] Parliament […] has […] the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament

Question 40

Legislative Supremacy of P: What is the significance of the War Damage Act 1965

Answer 40

The supremacy of Parliament was illustrated by the War Damage Act 1965. This was passed in response to the House of Lords ruling in Burmah Oil Ltd v Lord Advocate [1964] 2 All ER 348 which awarded compensation against the Crown for losses sustained during the Second World War. The Act stated that the Crown was not and never had been under such liability; Parliament was able to retrospectively nullify a judicial decision.

Question 41

Legislative Supremacy of P: What is the significance of British Railways Board v Pickin [1974] 1 All ER 609

Answer 41

Another example is the case of British Railways Board v Pickin [1974] 1 All ER 609 which concerned what happened to the land when a railway line was disbanded. Previously it had gone to the owner of the land either side, but the Act stated it should go to the British Railways Board. Pickin, who owned land adjoining a railway line, brought a case alleging the Act to be invalid on the basis that the British Railways Board had misled Parliament, and that Parliament’s own procedural rules had not been followed. The House of Lords held that the courts do not have the power to examine parliamentary proceeding and, being subordinate to Parliament, they cannot declare an Act of Parliament to be invalid.

Question 42

T or F: The European Communities Act formally unified the different European states into the European Union.

Answer 42

False. The European Communities Act 1972 (c. 68) is an Act of the Parliament of the United Kingdom which legislated for the accession of the United Kingdom to the European Communities (EC) – the collective term for the European Coal and Steel Community (ECSC), the European Economic Community (EEC) (also known at the time as the “Common Market”) and the European Atomic Energy Community (EAEC) (also known as Euratom) – through the Treaty of Accession

Question 43

T or F: EU Law gives discretion to national courts to interpret EU law and decide the level of effect that EU law has.

Answer 43

Further EU law principles require national courts, including those in the UK, either directly to enforce rights provided by EU law where certain conditions are met (‘direct effect’) or to interpret national law in way that is compatible with EU law in so far as it is possible to do so (‘indirect effect’). These principles are explained in chapter 4 of the Study Notes for the European Union Law module.

Question 44

T or F: A key principle of EU law is that the national courts can decide whether EU law should trump that of the national law.

Answer 44

False. One of the central principles of EU law is the supremacy of EU law, also known as the primacy of EU law. This directs that EU law takes priority over national law in the event of a conflict between them.