English Law System

Question 1

English Law can be broken down into…

Answer 1

Public Law & Private (Civil) Law

Question 2

What is Public Law?

Answer 2

Governs relationship between citizens and the state.
Relates to court hearings conducted in public.
Criminal Law and Constitutional & Administrative Law.

Question 3

What is Private/Civil Law?

Answer 3

Governs relationships between individuals and private organisations.

Question 4

What areas does Civil/Private Law cover?

Answer 4

Contracts, negligence, family matters, employment, probate and land law.

Question 5

What is Criminal Law?

Answer 5

A branch of Public Law.
Defines boundaries of acceptable conduct.
Law breakers = committed offence against society as a whole.

Question 6

What is the difference between Common Law and Statute Law?

Answer 6

Common Law = a judge made law by way of judicial precedent.
Statute Law = law passed by Parliament.
UK has a common law system, despite the large volume of legislation.

Question 7

Difference in purpose between Civil & Criminal Law?

Answer 7

Civil Law:
- Governs relationship between individuals.
- Enforces individual rights + duties.

Criminal Law:
- Regulates behaviour
- Promotes public order

Question 8

Difference in parties involved in Civil & Criminal Law?

Answer 8

Civil - claimant sues defendant.
Criminal - state prosecutes defendant.

Question 9

Difference between burden of proof between Civil + Criminal Law

Answer 9

Civil - on balance of probabilities. Burden of prood is on the claimant.

Criminal - beyond all reason of doubt. Burden of prood is on the prosecutor.

Question 10

Difference in the penalties between Civil + Criminal Law

Answer 10

Civil - correct wrongs, compensate those at a loss.
Criminal - punishment, protection, rehabilitation, detterent.

Question 11

What are the sources of UK Law?

Answer 11

Parliament (Statutes = Acts = Legislations)
The Courts (Common Law)

Question 12

What does the Theory of Parliamentary Sovereignty mean?

Answer 12

Parliament can pass any law it wants. Courts cannot interfere, they must apply these Acts.
Act of Parliament > judicial precedent/delegated legislation/previous Acts of Parliament.

Question 13

What is Direct/Primary Legislation?

Answer 13

Statutes passed through House of Commons and House of Lords.
Acts of Parliament.
E.g. Health and Safety at Work Act 1974; Companies Act 2006

Question 14

What are Indirect/Delegated Legislation?

Answer 14

Laws made by a person/body given the power to legislate by an enabling Act.
Deals with technical details of an Act.
Statutory Instruments (SIs).
Include Orders in Council passed by monarch in an emergency, and bylaws made by local authorities to cover issues within their local areas.
E.g. Management of Health and Safety at Work Regulations 1992. (Allows creation of by-laws by LA)

Question 15

How may Statutory Insturments be used?

Answer 15

Statutory Instruments = Acts give power to Ministers who make more detailed orders/rules/regulation.
Courts can question whether a Minister, when issuing an SI, is using a power he or she has actually been given by the parent Act but cannot question the validity of the Statutory Instrument for any other reason.
3.5k a year.

Question 16

Describe the law making process?

Answer 16

Begins as a Bill in House of Lords/Commons.
1) First Reading - its title is presented, number issued and printed by the Stationary Office.
2) Second Reading - debate, opposition may defeat Bill by tabling a “reasoned amendment”.
3) Committee Stage - debates/considers Bill clause by clause. Usually Whole House Committee not Standing Committee.
4) Report Stage - decides issues raised in Committee Stage & those not in committee suggest amendments.
5) Third Reading - in House that introduced bill, quick debate on changes made. Lords make amendments, sent back to Commons for further debate.
6) Bill sent to Royal Assent after passing stages + agreement from both Houses. (Last refusal in 1707).

Act of Parliament enter into force either on the commencement date stated in the statute, or upon Royal Assent.

Question 17

Difference between an Act and a Statutory Instrument

Answer 17

Acts = broad framework.
SIs = the necessary detail considered to be too complex to include in the body of an Act.

Question 18

What are the 3 types of Delegated/Indirect Legislation?

Answer 18

Statutory Instruments
Orders in Council
Bylaws

Question 19

Why may legislation be delegated?

Answer 19

Time constraints on Parliament
Need for expertise
Emergencies
Changes necessary to existing legislation

Question 20

Discuss the legitimacy of Delegated Legislation…

Answer 20

Has the same legal force/effect as its parent Act of Parliament. If actions are taken in excess of powers granted = ultra vires; the legality of such legislation can be challenged in courts.

Question 21

Advantages of Delegated Legislation…

Answer 21

SPEED AND FLEXIBILTY - saves parliamentary time due to the pressure of debates, its volume, and its highly detailed nature. 2015, Parliament = 37 general public Acts, SIs = +2000.

TECHNICAL/LOCAL KNOWLEDGE - Most MPs lack sufficient expertise, the highly specialized + technical nature of regulations means those authorized to introduce them should have external expertise to formulate the regulations.

Question 22

Disadvantages of Delegated Legislation…

Answer 22

QUESTION OF ACCOUNTABILITY & EROSION OF CONSTITUTIONAL ROLE OF PARLIAMENT - Parliament presumed to be source of legislation. However, delegated legislation makes Ministers/Civil Servants the source of law, not MPs. Whilst they are given powers delegated by Parliament, are they given more power then constitutionally correct.

CERTAINTY IN THE LAW - did the Ministers act within their power when creating the SIs. If not, the validity of the Act can be questioned by the Court.

Question 23

How is Delegated Legislation controlled?

Answer 23

Standing Committees are specifically established to review Statutory Instruments. They are subjected to either Positive/Negative Resolution Procedure. Can be veteoed by either House.
Courts review the power to create legislation and ensure the requirements established by the enabling Act were met. They cannot consider the merits of the legislations.

Question 24

How do judges interpret Statutes?

Answer 24

Legislations contain uncertainty as words can have multiple meanings and change depending on context.

INTRINSIC AIDS - Acts include definitions of key words, e.g. Consumer Rights Act (2015) defines rights of consumer/trader rights.

EXTERNAL AIDS - Interpretation Act (1978) gives definition of common words/phrases in legislations.
- Gov reports explain why legislations are needed.
- Pepper vs Hart (1993), if primary legislation is ambiguous/obscure, courts can take account statements made in Parliament by Ministers, conntruing that legislation.
- Hansard reports.

Question 25

Judicial Principles of SIs: What is the Literal Rule? And what is its weakeness?

Answer 25

Words of the statute are given their ordinary and natural meaning.
E.g. R v Hillingdon LBC ex parte Puhlofer (1986)
Its weakeness is the assumption that there is a single, uncontentious, literal understanding of words.

Question 26

Judicial Principles of SIs: What is the Mischief Rule?

Answer 26

Rules developed to assist courts in interpreting statutes.
The court will apply the meaning that allows the statute to fulfil its purpose in light of the “mischief/evil” actions.

E.g. Smith v. Hughes (1960) & Wolman v Islington LBC (2007) (parked bike with wheel on pavement).

Question 27

Judicial Principles of SIs: What is the Golden Rule?

Answer 27

Rules developed to assist courts in interpreting statutes.
This is where two interpretations are possible, court will apply meaning which produces least absurd result to prevent inconsistency when interpreting the Act literally.
E.g. R v. Allen (1872) & Re Sigsworth case (1935) (common law prevented murderer benefitting from the property of the victim murdered.)

Question 28

What are Case Laws judgement dependent on?

Answer 28

Based on the Doctrine of Binding precedent:
Court hierarchy
Whether facts come within the scope of the previous case
Whether what the judge said was in the ratio decidendi (rationale for the decision) or merely obiter dicta (that which is said in passing).

Question 29

What is the Common Law?

Answer 29

Before a united system of government had formed, the judiciary had the common law.
Judges prepared judgement that outlined previous case law authorities, referencing these as they explain how they came to their decision.
Ratio decidendi comes from this.

Question 30

What does ratio decidendi mean?

Answer 30

“Rationale for the decision”.
The essential elements of a judgement which create binding precedent, and must be followed by inferior courts.
Ratio = reasons.
It is the reasons for the decisions.

Question 31

What does obiter dicta mean?

Answer 31

“By the way”.
A remark/opinion.
Not officially part of the ruling.

Question 32

Advantages of a system of judicial precedent…

Answer 32

Flexibility (ability to distinguish cases)
Only very able people can become judges (high quality)
Consistency & certainty

Question 32

How does the Court Heirarchy follow?

Answer 32

Supreme Court
The Court of Appeal
Divisional Court
High Court
Inferior Courts

Question 33

Example of Civil Law cases…

Answer 33

Smith v Jones

Question 34

What is the aim of Civil Procedures?

Answer 34

Designed to streamline civil justice process, solving as many cases as possible without going to court proceedings whilst ensuring just judgement.
Civil procedure encourages parties to use an alternative dispute resolution.

Question 35

What are alternatives to courts for civil cases?

Answer 35

Tribunals.
Alternative Dispute Resolution (ADR).

Question 36

What is Arbitration?

Answer 36

Intermediary considered both party’s arguments, then comes to a decision that resolves the dispute. The process is final and legally binding, but the decision can be appealed.
Used internationally between corporations.

Question 37

What is Alternative Dispute Resolution?

Answer 37

Ways parties can settle disputes with help from independent 3rd party without the need for a formal court hearing.
Arbitration, Adjudicaiton, Concilliation, Mediation.

Question 38

What are the advantages of Arbitration?

Answer 38

Parties don’t have to agree to use arbitration prior to contract.
Arbitrators with appropriate degree of expertise can be appointed (cannot “choose the judge”).
Faster than court.
Cheaper and more flexible, not always.
Private and confidential.
Awards easier to enforce in other nations (because of New York Convention 1958 provisions).
Limited avenues for appeal of arbitral award.

Question 39

What are the disadvantages of Arbitration?

Answer 39

Mandatory arbritration means parties waive their rights to access the courts. Party may not realise they signed arbritration agreements in an ancillary agreement.
Pay for arbitrators, recovery of legal costs not always available.
If the arbitrator depends on the bigger party for repeat business, there may be an inherent incentive to rule against the consumer or employee.
Limited avenues for appeal.
Disclosure of documents may be more limited in arbitration.
Unlike court judgments, arbitration awards themselves are not directly enforceable.
Arbitration awards can be fought, but in legal costs negate the perceived economic incentive to arbitrate the dispute in the first place.

Question 40

What is are the Hansard reports?

Answer 40

It is an interpretation aid for statutes used by judges.
Used in the Pepper v Hart case, looking at Hansard’s reports of parliamentary debates as an aid to contrue the meaning of legislation.

Question 41

What is the doctrine stare decisis?

Answer 41

The doctrine of precedent.

Question 42

Describe the judicial act of distinguishing a case…

Answer 42

Highlights differences in material facts between present and past cases.
Avoid applying ratio decidendi of a preivous case, choosing an authority which more closely reflects the present case.
Doesn’t change decision or rule of law in the previous case.

Question 43

In Young v Bristol Aeroplane, what was labelled as the exceptions of the Court of Appeal being bound by its previous decisions?

Answer 43

(i) there are two or more conflicting Court of Appeal authorities and the present court must choose between them.
(ii) where a previous Court of Appeal decision conflicts with a House of Lords or Supreme Court decision.
(iii) where the previous decision was made per incuriam (through lack of care).

Question 44

Describe the operation of precedent on the Supreme Court…

Answer 44

It is generally bound to its previous decisions for consistency. It can depart from this where it appears right to do so.

Question 45

What is adjudication?

Answer 45

Considers both sides claims, then comes to a decision.
More informal than arbitration.
Often used by trade associations to deal with consumer complaints (Tenancy Deposit Scheme).

Question 46

What is mediation?

Answer 46

Mediator tries to help parties come to an agreement.
Parties decide if they come to a resolution and what the outcome should be.
Most wide ranging.
Not a binding legal process.
Most commonly in family affairs.
Mediator only gives opinion if asked.

Question 47

What is conciliation?

Answer 47

Tries to help resolve the dispute privately and confidentially.
Parties can either agree or disagree.
ACAS in employment disputes.
Similar to mediation, but conciliator takes more active role and can suggest ground for comprimise or a settlement.

Question 48

What are its percieved advantages of tribunals over traditonal courts?

Answer 48

Speed of which cases are head and resolved. Important for business’.
Expertise in nature of claims.
Increased informality.
Reduces courts workload.

Question 49

What do tribunals specialise in?

Answer 49

Immigration, employment, data protection…

Question 50

What are the disadvantages of the tribunal system?

Answer 50

Increase use of law and formal procedures so they are more akin to specialist courts.
Limitation in the availability of free legal assisstance.
Becoming too complex, creating their own body comparable to court.
No system of precedent in tribunals. However, precedent established in higher courts is applicable to tribunals.