ELS- Sources of Law Flashcards
What is the meaning of ‘stare decisis’
Binding precedent or ‘stand by what has been decided’
Meaning of ratio decidendi?
Reason for the decision. Ratio of a judgement is the part which is binding on other courts
Meaning of Obiter Dictum:
Not binding, but highly persuasive. non-essential observation that does not influence the legal decision of liability.
What are the three exceptions for the Court of Appeal to depart from precedent
- If the CA came to previously conflicting decisions.
- CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or HOL, it need not be followed.
- If the CA’s previous decision was made per incuriam.
What is a declaration made by the court?
A legally binding statement
How does a bill become law?
First reading, second reading, committee stage, report stage, third reading, then goes to other house then royal assent.
What is the literal rule?
Words in a statute are given their ordinary, plain and natural meaning
Golden rule?
To avoid unnatural and absurd outcomes that can result from over-literal application of the literal rule
Mischief rule?
- What was the common law before the making of the act?
- What was the mischief and defect for which the common law did not provide?
- What remedy for the mischief had parliament intended to prove?
- What was the true reason for Parliament adopting that remedy?
Purpose approach?
More readily embraces the use of extrinsic aids to assist in finding Parliament’s intention. Contextual.
Expressio unius est exclusio alterius?
The expression of one thing is to the exclusion of another
Ejusdem generis
Of the same kind
Noscitur a Sociis?
A word is known by the company it keeps- words of a statute are understood in the context of the statute itself.
What are absolute rights?
Rights that cannot be lawfully interfered with in any way by the state
What are limited rights?
Rights which in some circumstances be lawfully interfered with
What are qualified rights?
Rights which can be lawfully interfered with provided certain legal tests are met.
When and how was the European union established?
Through the Treaty of the European Union 1992- Maastricht Treaty.
Effect on EU law in the UK post brexit?
EU is still retained law. But can be replaced by UK legislation by repealing and replacing it.
what are private members bills?
introduced by MPs or lords who are not part of the government.
how are statutory instruments made and what are the powers of Parliament to examine it?
made under powers granted to it by Parliament in primary legislation.
a piece of delegated legislation made within the powers granted by Parliament in the parent act have equal statutory force to that of Primary legislation.
can examine whether delegated legislation is made within the powers of the parent act and can quash it if it is not.
CANNOT AMEND IT.
will a statute come into force upon the royal assent being given?
if no date is given on the statute itself, silence means it will come into force on receiving the royal assent.
