ENGLISH LEGAL SYSTEM

Question 1

the meaning of the English Legal System?

Answer 1

There is no set definition. It means a legal system of England and Wales broadly speaking. Scotland and Ireland have their own.

Question 2

What is devolution?

Answer 2

Devolution occurred in the 1990’s - where power was devolved to Scotland, Northern Ireland and Wales.

It created:

• a national parliament in scotland
• a national assembly in northern ireland
• national assembly in wales.

Wales in some parts have their own power in education, housing etc.

In some instances, when legislation is passed, it may apply to northern ireland, scotland and wales too.

Question 3

what is public law and private law?

Answer 3

public law = governs disputes between the state and the individual, judicial review cases, challenging the state in how it’s administering something e.g gina miller case.

private law = between private parties e.g contract law, land law, family law.

Question 4

substantive law vs procedural law?

Answer 4

substantive law= legislation, criminal law is substantive.

procedural = how a trial is run, rules.

Question 5

Criminal law vs Civil Law?

Answer 5

Criminal Law-
The standard of proof is beyond all reasonable doubt
State vs defendant
R v John Smith
Punishment = imprisonment, fine, community service

Civil Law-
The standard of proof is on the balance of probabilities
Claimant vs defendant (Mary Browne v John Smith)
Remedies = damages, compensation

Question 6

What is the doctrine of precedent?

Answer 6

It is based on the principle that all ‘like cases should be treated alike’

The latin phrase ‘stare decisis’ means ‘let the decision stand’. This means that once a decision has been made in a particular case, it stands as good law and should be relied upon in other cases as an accurate statement of the law.

Question 7

Ratio decidendi meaning?

Answer 7

It is the legal rule and associated reasoning that is essential to the resolution of the case - the conclusion that is reached by the application of the relevant legal rule to the material facts.

Question 8

Ratio decidendi meaning?

Answer 8

It is the legal rule and associated reasoning that is essential to the resolution of the case - the conclusion that is reached by the application of the relevant legal rule to the material facts.

Question 9

Obiter dicta meaning?

Answer 9

means ‘a thing said by the way’ – the judgement in a case may be several pages long, not all this information relates to material acts. They are not binding on a later judge.

Question 10

Common Law Systems vs Civil Law Systems?

Answer 10

Common Law Systems:

• Judge made law
• The common law system – based on the doctrine of precedent – can be found throughout the world reflecting the geopolitical influence of the uk
• Colonisation

Civil Law Systems:
- Codified rules

• Civil based systems to be seen primariliy across continental Europe and in latin America
• The European continental system derived from roman law.

Question 11

Public Bills?

Answer 11

Introduced by the government as part of its programme of legislation, they affect the public as a whole.

Question 12

Private Bills?

Answer 12

Introduced for the benefit of particular individuals, groups of people, institutions or a particular locality.

They often fail to become law because of insufficient time in a particular parliamentary session.

Question 13

Private Members Bills?

Answer 13

Non-government bills introduced by MPs of either house.

Often deal with relatively narrow issues.

Question 14

Hybrid bills?

Answer 14

Contain both public and private elements.

Question 15

Consolidation? (statutes)

Answer 15

Consolidation does NOT change the law. A consolidating statute is one in which a legal topic, previously contained in several different statutes, is re-enacted.

E.g the Limitation Act 1980 and the Insolvency Act 1986

Question 16

Codification? (statutes)

Answer 16

Codification may change the law. A codifying statute is one in which a legal topic, previously contained in the common law, custom and previous statutem is restated.

E.g the Theft Act 1968

Question 17

Parliamentary process of a bill?

Answer 17

First Reading - Title of the bill is read. Bill is printed and published. Minister must also state whether the bill is compatible with convention rights or, if not, that nevertheless the government wishes to proceed.

Second Reading - Main debate, proceed to next stage?

Committee Stage - Provisions examined in detail and amendments proposed.

Report Stage - Further debate - house votes on amendments.

Third Reading - Final debate and vote on bill as amended.

Royal Assent - Monarch’s approval.

Question 18

s2 human rights act 1998?

Answer 18

a court or tribunal determining a question which has arisen in connection with a convention right must take into account any – judgement, decision, declaration or advisory opinion of the ECHR. – telling the court what it must do.

Question 19

s3 human rights act 1998?

Answer 19

so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.

Question 20

s4 human rights act 1998?

Answer 20

if the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility. – the court can say that the legislation given by the government, that it is incompatible with the convention.

Question 21

s6 human rights act 1998?

Answer 21

it is unlawful for a public authority to act in a way that is incompatible with a convention right.

Question 22

The rule in Pepper v Hart? (when should the courts consult hansard?)

Answer 22

When should the courts consult hansard?

1. The legislation in question is ambiguous, obscure
2. The material relied on consisted of statements by a minister (or promoter of the bill)
3. The statements relied upon are clear

Question 23

Intrinsic aids/Extrinsic aids?

Answer 23

Intrinsic = interpretation, sections of an act, the long title

Extrinsic = explanatory memorandum, academic articles, dictionary

Question 24

What is hansard?

Answer 24

The official report of all parliamentary reports

Question 25

What are the 4 main sources of Law?

Answer 25

Treaties, Regulations, Directives and Decisions

Question 26

What are Treaties?

Answer 26

The Treaties of the EU are a set of agreements between the member states that establish its institutions (and their powers), its procedures (including the legislative process and its objectives. In some instances they create rights and obligations.

They are primary sources of EU law and are superior to all other forms of law (EU or national) and cannot be changed without the unanimous agreement of all member states.

E.g

Treaty of Rome 1957
Single European Act 1985
Maastricht Treaty 1992
Treaty of Amsterdam 1996

Question 27

What are Regulations, Directives and Decisions?

Answer 27

Article 228 sets out the different types of EU legal instrument:

• To exercise the Union’s competences, the insitutions shall adopt regulations, directives, decisions, recommendations and opinions.
• A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
• A directive shall be binding, as to the result to be achieved, upon each member state to which it is addresses, but shall leave to the national authorities the choice of form and methods.
• A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only to them.
• Recommendations and opinions shall have no binding force.