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Legal system and reasoning > General LSR > Flashcards

General LSR Flashcards

1
Q

4 types of law?

A

Legislation

European union law

Case law (courts)

International conventions

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2
Q

what is the executive branch? 2

A

The crown, government and civil service

carries out laws and runs the country on a daily basis

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3
Q

what is the legislative branch? 2

A

Debates and passes laws

made up of HOL and HOC

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4
Q

what is the judicial branch? 4

A

Consists of judges and those in tribunals

Resolve matters of law

Develop law through judgements

Interprets and enforces law

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5
Q

Difference between Parliament and Monarch? 3

A

Parliament have more control than the Monach

Executive sits in Parliament

Sovereign power to make law lies with Parliament

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6
Q

Difference between Primary and secondary legislation?

A

Primary legislation= acts of Parliament (statute)

Secondary legislation= Delegated legislation

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7
Q

Types of primary legislation? 4

A

Public Acts (affects everyone) introduced by governments and private member bills

Private Acts

Hybrid Acts (public and private)

Orders in council e.g. Decision to go to war

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8
Q

Names of Legislative processes of an Act of Parliament ?

A
  1. Introduction
  2. Consultation stages:
    A) white paper
    b) green paper
3. Passage of a bill:
A) first reading
B) Second reading
C) Committee stage
D) Report stage
E) Third reading
  1. Transfer to HOL
  2. Royal assent
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9
Q

4 stages of making law?

A

Pre legislative process

Passage of Bill through Parliament

Royal assent

Commencement

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10
Q

Judicial part in law making? 4

A

Judge made law= Common law

Judges interpret and develop the legislation

Doctrine of Judicial precedent

Law reports essential

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11
Q

Difference between civil law and criminal law?

A

Civil law- individual seeks redress for a civil wrong done e.g Breach of contract

Criminal law- The state prosecutes the individual for an offence

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12
Q

Hierarchy of civil courts? 5

A
  • UK supreme court
  • Court of appeal
  • High Court
  • County court
  • Family court
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13
Q

Hierarchy of criminal courts? 5

A
  • UK supreme court
  • Court of appeal
  • High court
  • Crown court
  • Magistrates court
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14
Q

What is separation of powers? 3

A

Powers of executive, legislative and judiciary should function independently

Checks and balances

Create independence of the judiciary

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15
Q

What is the Constitutional reform Act 2005?

A

It is an Act of the Parliament of the UK

Created a supreme court of the UK to take over the HOL

Removed the functions of speaker of the HOC and head of the judiciary of England from the office of Lord Chancellor

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16
Q

3 parts of the Constitutional reform act 2005?

A
  1. Reformed the office of Lord Chancellor
  2. Created and set the framework for the supreme court
  3. Regulates the appointment of judges
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17
Q

Why was the Constitutional reform act created? 4

A

The highest court of appeal was within the HOC and thus was suspected that appeals would be subject to political influence

The creation of the supreme court was to separate powers between the judiciary and legislature

Stop politics influencing decisions too much

This all means that a constitutional situation in which the separation of powers was blurred by this Act.

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18
Q

What is legislation and rules? 4

A

Principal form of law and method of law making in modern times
Statutes are primary legislation
The legislative branch may authorize the making of rules or regulations (secondary)
If the date is not specific it is not enforced the day the queen signs it and becomes binding

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19
Q

Relationship between Parliamentary legislation and the Courts?

A

Legislative Branch (law creation)

Judicial Branch (interpretation and application)

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20
Q

What case used mischief rule?

A

Pepper V Hart [1992] UK HL 3

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21
Q

What case used the literal rule?

A

Whiteley V Chappell [1868]

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22
Q

What case is used for the Golden rule?

A

Adler V George [ 1964]

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23
Q

What is the technological rule?

A

Interpret statutes to promote the end they work to achieving

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24
Q

What is common law and elements of it? 4

A

Not codified

Judicial precedents are binding

Main source is judicial precedents or case law

An adversarial system

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25
Q

What is civil law and elements of it ? 5

A

Codified set of laws

Judicial precedents are not binding

Judges role is to apply code to cases

Statutes and legislation are main sources

Inquisitorial system.

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26
Q

What is case law and elements of it? 2

A

Judges have level of expertise for this

Parliament make generic laws but judges can interpret to a particular case

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27
Q

What is the doctrine of precedent? 2

A

Higher court decisions are binding on lower courts

If precedent is set by higher/equal court then judge must follow law

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28
Q

Court of appeal is bound by its own decisions UNLESS:

and which case created these rules? 4

A

There is conflict between previous decisions

Overrules by supreme court

Or if previous decision was an error of law

Case: Young V Bristol aeroplane [1944] KB 718

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29
Q

What is the ratio decidendi?

A

Reason for deciding. Law applied in deciding legal problem raised by a case

30
Q

What is the Obiter dictum?

A

A statement by the way- any statement of law that isn’t part of the ratio decidendi. Doesn’t form part of the precedent, they are persuasive authority.

31
Q

Advantages of case law? 4

A

Consistency- can set precedent

Certainty- Know how the law is going to go

Efficiency- Saves time for Judiciary, no need for court every time

Flexibility- opportunity to develop case law with social changes

32
Q

Disadvantages of case law? 3

A

Uncertainty- depends on the judges

Flexibility

Unconstitutionality- hard to study English law, don’t vote for judges so why should they have power

33
Q

What are the names of the 5 EU institutions?

A

European council

European Parliament

European commission

Council of the EU

Court of justice of the EU

34
Q

What does the CJEU do? 3

A

Gives rulings on cases brought before it

Interprets enforces annuls and sanctions laws and Acts

Can annul EU rights.

35
Q

EU law making process? 5

A
  1. Discuss and consult on topic
  2. Puts forward proposals for legislation
  3. Agree or disagree
  4. If it becomes EU law it is monitored and implemented.
  5. If it doesn’t you can go to a conciliation committee to try and get it changed.
36
Q

What is the internal market? 3

A

A single market in which the free movement of goods and services and people in which citizens are free to live anywhere
Created jobs and reduced trade barriers
Exploit opportunities to boost employment and improve confidence in European business.

37
Q

What are the 4 fundamental freedoms?

A 
Free movement of:
goods
services 
people
capital
38
Q

Consequences of brexit on FMOP 5

A

Regulated access to EU citizens

Impact on tourism and trade

Welcome people based on skills for work

Unlikely there will be a visa system

Most difficult but least likely to have change

39
Q

Consequences of brexit on FMOG 5

A

Customs duties

Regulations surrounding consumer protection

Food import standards

Restriction- rise in costs? More difficult?

Cost of everyday products will rise

40
Q

Consequences of brexit on FMOC 5

A

New set of regulations to be established

Costs of importing and exporting may rise

Investment in UK- EU have more desirable conditions

Trade inflexibility

Implement new regulations and rules

41
Q

Consequences of brexit on FMOS 3

A

Loss or EU passport for UK financial service providers

Freedom to sell services removed? Potential if no deal

Non-EU companies more branches

42
Q

What is Invocation?

A

Once a member state has notified the European council of its intention to leave, a period begins during which a withdrawal agreement is negotiated.

43
Q

What is negotitation?

A

discussion aimed at reaching an agreement.

44
Q

What is the ECHR?

A

NOT EU LAW

It is a treaty to protect rights

State violate rights- has to be state not a person or business

The court look at what is incompatible with your rights

45
Q

What is Article 3?

A

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

46
Q

What is Article 8?

A

Right to family and Private life

47
Q

What is Article 6?

A

Right to a fair trial

48
Q

What is Article 10?

A

Right to expression, freedom of expression

49
Q

What is an international convention? 3

A

Formal agreement between 2 or more states or international organizations, called Charter, codes and agreements.
Can be between states and businesses
2 processes- signed or ratified

50
Q

Definition of a treaty?

A

International agreement concluded between states in written form and governed by international law, whether embodied in a single instrument of In two.

51
Q

How are conventions formalized? 6

A
  1. Signature
  2. Pre drafting process
  3. Drafting and approval texts of convention by parties’
  4. Ratification
  5. Approval process by government
  6. Legislative approval or referendum
52
Q

What is ratification? 2

A

Document specifies whether it requires all members to ratify or if it is just a few of them.
Ratification can carry on for years until the number of people to sign is reached.

53
Q

Rules on conventions? 2

A

Binding once forced, binding on the states in international law.
Can be enforceable under domestic law.

54
Q

What is a monist system?

A

When Conventions automatically become part of the national legal system

55
Q

What is a dualist system?

A

When Conventions can only be incorporated by legislation.

56
Q

What system is used in England and why?

A

Dualist system- due to Parliamentary sovereignty

57
Q

How to exempt yourself from a convention?

A

derogation

58
Q

What is the international human rights convention? 3

A

United nations formed in 1945 to protect human rights

Agreed on Universal declaration of Human Rights

Not force of law- optional

59
Q

Human rights definition?

A

An entitlement to the treatment a person has simply by virtue of being human, and such human rights must be applicable irrespective of time and place.

60
Q

Main 3 features all human rights must have?

A
  1. Human individuals- right-holder- don’t focus on fetus- excludes children/people with a certain disability-
  2. Legal recognition and protection by legal and political institutions of the state (duty bearers) require societies to design institutions so they don’t trample on these rights.
  3. Imposes a duty on an individual human right by other human individuals (duty bearers)
61
Q

Source of human rights? 2

A

Natural law- authority of human rights, because of your human nature, rights are a way of understanding what a human is.

Discoverable by theological dictates

62
Q

What is the enlightenment tradition? (right of nature)

A

The Right of Nature…is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature; that is to say, of his own life; and consequently of doing anything, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto

63
Q

Bentham’s view on natural rights? 2

A

there are no such things are natural rights – no such thing as rights anterior to the establishment of government – no such things as natural rights as opposed to, in contradistinction to, legal [rights]…’

•‘Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense upon stilts.’

64
Q

Marx view on natural rights? 2

A

none of the so called rights of man goes beyond egoistic man, man as he is….an individual withdrawn behind his private interests and whims and separated from the community

Individualistic and reflect bourgeois ideology

65
Q

2 international conventions?

A
  1. International covenant on civil and political rights – reflection of liberties and freedoms we often find in the common law.
  2. International covenant on economic, social and cultural rights
66
Q

Features of UN conventions? 4

A

contains a list of protected rights (with some overlap between treaties)

establish a treaty-monitoring committee composed of independent experts

examines reports from States on their implementation and compliance with the treaty concerned

in most cases may also deal with communications from individuals alleging violations of the treaty

67
Q

What does the human rights act mean for the UK? 3

A

British people will be able to argue for their rights in the British courts - without delay and cost

The rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law.

British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.”

68
Q

What must courts do about primary legislation? 2

A

Ensure primary legislation and subordinate legislation are read and given effect in a way which is compatible with the Convention rights
This is obligatory, not an option

69
Q

3 options courts can take to amend primary legislation?

A
  1. Insert words they feel are missing
  2. Omit words they feel don’t need to be there
  3. Chose an interpretation they find is more compatible with the convention
70
Q

future of HRA? 3

A

British Bill of rights?

Human rights act needs to go?

Process too lengthy.

Legal system and reasoning (2 decks)

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