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Law for Business > English Legal System: Week 1 - Nature Of Law > Flashcards

English Legal System: Week 1 - Nature Of Law Flashcards

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1
Q

What is a claimant?

A

Is the party who brings the civil action

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2
Q

What is a defendant?

A

Is the person against whom a criminal or civil proceeding the claimant brings the case against

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3
Q

What is the principle of equity? (2)

A
  • Created to correct wrongs in the law and is designed to remedy any injustice that may be in the law
  • The law of equity protects the vulnerable
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4
Q

What is law?

A

English law is defined a body of rules, created by the state, binding within its jurisdiction and enforced with the authority of the state through the use of sanctions

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5
Q

3 Characteristics of English law

A
  • Gradually developed over time since its origin in 1066 during Norman conquest
  • English law has a lack of influence of Roman influence compared to other countries
  • Judges used to be main lawmakers but was replaced by parliament in the 18th century - some senior judges have power for case law principles
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6
Q

What is the doctrine of binding precedent?

A

Applies to judges in courts to ensure consistency whereby judges have to apply previous decisions (precedents) of higher courts

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7
Q

What is the purpose of law?

A

Law helps to promote safety and makes life easier

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8
Q

What are the different areas of law? (4)

A
  • Constitutional law
  • Administrative and revenue law
  • Criminal law
  • Civil law
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9
Q

What does constitutional law cover?

A

It covers the way the government is run and structured as well as legislative procedures

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10
Q

What does administrative and revenue law cover?

A

It covers public services and to raise taxes to pay for them this regulates and promotes economy

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11
Q

What does criminal law cover?

A

Covers matters relating to public order and national security

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12
Q

What does civil law cover?

A

Helps to protect and promote individual rights e.g contact law or tort law

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13
Q

What is the purpose of criminal law? (2)

A
  • Regulate behaviour perceived as being antisocial and dangerous to the public
  • State have power to take action against offenders
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14
Q

What are the procedures of criminal law? (4)

A
  • Generally started by police but some legislation is enforced by other agencies e.g local authorities
  • Victim usually plays no part in decision to prosecute only exception is during a private prosecution
  • Cases are started in the magistrates’ court or crown court
  • Prosecution must prove that the accused is guilty beyond all reasonable doubt
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15
Q

What is the penalty/focus of criminal law?

A

The focus is on the accused and the need to protect society against criminal conduct

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16
Q

What is the purpose of civil law?

A

To give legal rights to individuals where they can expense their rights in courts

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17
Q

Procedures of civil law (3)

A
  • Civil proceedings are taken against the alleged wrongdoer by the injured party
  • Most cases are heard in the county court and the high court and in certain tribunals (where a specialism is required)
  • The claimant must prove that the defendant is liable
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18
Q

Penalties/aim of civil law (2)

A
  • Aim is to compensate the injured party
  • Exceptionally, the court may require some practical correction of the wrong by injunction or other equitable remedy in cases such as domestic violence or to prevent a nuisance
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19
Q

What are the sources of law? (Is where law comes from) (3)

A
  • European law (primary source)
  • Parliament (primary source)
  • The courts (play a crucial role in interpreting legislation)
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20
Q

What are the principles of the European Union? (4)

A
  • The council of the EU / council of ministers
  • The European council
  • European Commission
  • European Parliament
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21
Q

What is the council of the EU/council of ministers? (3)

A
  • Is the main legislative body
  • Each member of EU has a representative that sits on the council
  • Normally acts on recommendations and proposals made to it by commissions such as approving EU budget and developing the foreign and community policies
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22
Q

What is the European council? (4)

A
  • Is made up of heads of state or of government of member states
  • Meet at least twice a year to discuss major community issues in a less formal manor compared to the council of the EU
  • It’s function is to provide the union with necessary impetus to define the general political guidelines for its developments
  • Does not have any legislative power
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23
Q

What is the European Commission? (4)

A
  • Is made up of a nominee from each member state
  • It is executive and policy-making body with legislative powers
  • Makes proposals which the council makes decisions from
  • Ensure obligations between member states are met and that EU laws relating to individuals are enforced
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24
Q

What is the European Parliament? (2)

A
  • Members of the European Parliament (MEPs) formulate and adopt legislation proposed by the commission
  • Exercises democratic control over the operation of the EU
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25
Q

What is the court of justice of the European Union? (4)

A
  • Interpret any point of EU law referred by the courts of member states (1st function)
  • Decide the outcome of any cases alleging breaches of EU legal obligations (2nd function)
  • The decisions made are binding on member states and is superior to any domestic law
  • European court of justice hears cases from/against member states and the EU
26
Q

Sources of European law (4)

A
  • Treaties and protocols
  • Regulations
  • Directives
  • Decisions
27
Q

Treaties and protocols - Sources of European law

A

Treaty of Rome 1957 (the originating treaty of the EU) and the Maastricht treaty 1992 are the most important as they define the constitution of the EU

28
Q

Regulations - Sources of European law

A

Are interpreted to impose uniformity of the law and take effect in all member states and are directly effective upon creation

29
Q

Directives - Sources of European law (3)

A
  • Aimed at harmonising the law of member states
  • Directives states general goals which each member must implement
  • Members create laws to give effect to the directive
30
Q

Decisions - Sources of European law

A
  • Only impact particular member states, companies or individuals
  • It may either empower or prevent a party from doing something
31
Q

What is direct legislation?

A

Is law created by Parliament/acts of Parliament

32
Q

What is indirect/delegated legislation?

A

Is law made by a body usually a government department or local authority which has been given the power to legislate by Parliament under an enabling act

33
Q

How does a bill become an act of Parliament? (6)

A

1 - Starts in the House of Commons or House of Lords

2 - There is a first reading, second reading, committee, stage, report stage and a third reading

3 - Depending on where it starts it goes over to the House of Commons or lords

4 - Then step 2 is repeated

5 - Then it undergoes considerations of amendments

6 - it then gets royal assent

34
Q

What is delegated legislation?

A

Is legislation made by bodies outside of Parliament which have had law making power delegated to them from Parliament

35
Q

3 Types of delegated legislation

A
  • Orders in council
  • Statutory instruments
  • Byelaws
36
Q

What is orders in council? - types of delegated legislation (2)

A
  • The privy council is a non-party political body that can make laws in times of national emergency
  • Allows the government to introduce legislation without the need to go through the parliamentary process (done so through a committee of ministers)
37
Q

What are statutory instruments?

A

Are created by government departments and they create general principles of policy which are set out in enabling act

38
Q

What are bylaws?

A

Bylaws are made by local authorities to regulate any facilities they provide the TFL or network rail

39
Q

Advantages of bylaws (4)

A
  • Saves time
  • Regulations made with special knowledge
  • Flexibility e.g bought in and removed easily and quickly
  • Legislation can be created outside of parliamentary time
40
Q

Disadvantages of bylaws (3)

A
  • Less accountability as Parliament is removed from the process
  • Harder to keep track of all the changes resulting in problems for businesses
  • Can be difficult to fully understand what is being created as its regulations are highly specific, detailed or technical
41
Q

Feature of Creative powers in the courts (4)

A
  • Law made is known as case law or common law
  • Parliament main lawmakers
  • Case law develops slowly and is reliant on relevant cases coming before the court - not very efficient law making body
  • Higher courts retain some powers to create laws mainly in areas which are not predominantly statutory e.g law of negligence is mainly developed in the courts
42
Q

Interpretative powers in the courts (2)

A
  • Main courts have become predominantly concerned with interpretation and application of statues and delegated legislation
  • A Judges role is to interpret the words of statute and there are several aids that exist to help with this these are intrinsic aids, external aids, judicial principles of statutory interpretation and judicial presumptions
43
Q

What are intrinsic aids?

A

These are aids to interpretation that are in statute itself e.g in the occupiers’ liability act 1957 the word ‘premises’ is defined as any fixed or movable structure

44
Q

What are external aids? (3)

A
  • The interpretation act 1978 gives guidance on terms and phrases commonly found on statutes
  • Report of the law commission or government inquiry include details of why the act was created in the first place so provides some insight into the meaning of some words
  • Parliamentary reports - Hansard is a record of everything said in Parliament and consulting this will give insight into the meaning behind the statute
45
Q

What are the judicial principles of statutory interpretation? (5)

A
  • The contextual approach
  • The literal rule
  • The golden rule
  • The mischief role
  • The purposive approach
46
Q

What is the contextual approach? - judicial principles of statutory interpretation

A

Any words which the court is finding hard to define are placed within the statue as a whole I.e the word is placed in context

47
Q

What is the literal rule? - judicial principles of statutory interpretation (2)

A
  • Words are interpreted literally
  • For example, Fisher v Bell with flick knife being displayed in shop window but he was held not guilty as in contract law a display of goods is an ‘invitation to treat’ which is therefore not a breach of restriction of offensive weapons act
48
Q

What is the golden rule? - judicial principles of statutory interpretation (3)

A
  • If two literal meanings exist the least ridiculous will be adopted
  • The main purpose of it was to prevent annoyance to people arising from the activities of prostitutes in public places
  • Example, Smith vs Hughes a prostitute encouraged them to avail themselves to her services and prosecuted with ‘solidity in the streets’ even though she did it from the window
49
Q

What is the mischief rule? - judicial principles of statutory interpretation (3)

A
  • Allows the court to adopt a meaning which will enable the statue to fulfil its intended purpose
  • Enables judges to interpret a statute to provide a remedy for the mischief the statute was enacted to prevent
  • For example, Wolmans vs Islington it was an offence to park a motorcycle with wheels on any part of a pavement Mr Wolman parked his motorcycle on stand hovering over the pavement the mischief the law was trying to prevent was obstruction to the pavement
50
Q

What is the purposive approach? - judicial principles of statutory interpretation (3)

A
  • The court interprets a statute in the way which will implement its purpose
  • It’s used within the EU by member states and the European court of justice
  • Example Royal college of Nursing vs DHSS - under the abortion act it was only legal when carried out by registered medical practitioner. But it changed which meant most abortions were carried out by nurses and the court had to decide whether that was lawful (court of appeal took literal approach and said unlawful but House of Lords took purposive approach which meant that it was lawful
51
Q

Judicial presumptions that a statute will not (3)

A
  • Will not impose strict liability (strict liability) is a statute that does require intention
  • Operate retrospectively, I.e all events that occur before an act is passed will not be an offence under the act
  • Change the common law
52
Q

What is the structure of UK courts? (2)

A
  • Supreme Court > court of appeal > high court > crown court

* High court is made up of: magistrates court, county court and family court

53
Q

Features of the Supreme Court (3)

A
  • Is the highest appeal court in the UK and it’s decisions are binding on all courts below
  • It is not bound to follow all its decisions
  • Concentrates on the most important cases
54
Q

Features of the court of appeal (3)

A
  • Is divided into civil division and criminal division
  • The civil division is bound by decisions of the Supreme Court and its decisions bind all the courts that are inferior unless the following:
    • If two previous decisions conflict, it must choose which are to follow
    • A previous decision conflicting with a Supreme Court decision
    • The previous decision was reached per incuriam (through lack of care I,e relevant law not applied)

• The criminal division is bound by the decisions of the Supreme Court and it decisions bind all the courts and its decisions bind all the courts that are inferior

55
Q

Features of the divisional courts (2)

A
  • The high court is split into three divisions - family, chancery and Queen’s bench division
  • When acting as appears courts they are called a ‘divisional court of the high court’ - they must follow the decisions of the supreme court and court of appeal
56
Q

Features of the high court (4)

A
  • Judges in these courts are bound by the decisions of the Supreme Court and the court of appeal, but not by decisions made at high court level
  • Decisions made by the crown, costly and magistrates courts are not binding on the others
  • Crown courts cannot create precedent and their decisions can only be persuasive
  • County courts and magistrates court do not create unprecedented
57
Q

What is the importance of ratio decidendi? (2)

A
  • When a judge hears a case he delivers a judgement which explains the reason for the decision and anything else that the judge feels is relevant
  • The important part of the decision is the ratio decidendi ‘the reason for the decision’ this is important because it’s binding on later cases
58
Q

What is overruling?

A

Occurs when an appeals courts believes that a precedents no longer represents the law, in this case the precedent is overruled with a new precedent

59
Q

What is distinguishing? (2)

A
  • ,Allows a court to avoid following a previous decision by declaring the facts before it as significantly different enough for it not to be followed
  • If they distinguish a cue from a previous case it means they do not have to follow a particular precedent
60
Q

Decisions that may influence a court when making a decision (2)

A
  • Obiter dicta or ‘comments by the way’: these comments can be found in a judgement and they do not form part of the binding ratio of a case
  • The decisions of the judicial committee of the privy council: the privy council hears appeals from the courts of some commonwealth countries and as the case are not English they are not binding
61
Q

Is the doctrine of binding precedent a good idea (Arguments for) (5)

A
  • Provides certainty to law
  • Laws can be flexible
  • Keeps law on a practical level
  • Quicker than waiting for Parliament to legislate
  • Can save litigants money as they predict an outcome without going to court
62
Q

Is the doctrine of binding precedent a good idea (Arguments against) (5)

A
  • the courts can distinguish cases which can lead to some distorted applications
  • Certainty can make law rigid
  • Lots of case law Dan make it hard to find the right precedent
  • Law is developed in haphazardly way
  • Judges are not democratically appointed and law-making by judges conflicts with parliamentary sovereignty

Law for Business (3 decks)

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