Introduction, Sources and Development of Law Flashcards
The High Court is hearing a property dispute between two Public Limited Companies (PLCs). The dispute involves the interpretation of property legislation, customs and practice, and case law. The Court decides that a key factor is the behaviour of a Director of one of the litigants, who was found to have lied during a relevant transaction. The property legislation makes no specific reference to the behaviour of directors. There are previous cases which involve similar law, but the Court believes the issue of truthfulness, and the need to be fair, are more important in coming to a decision.
What type of law is predominantly being applied by the Court?
A-Common law
B-Equity
C-Statute
D-Civil Law
E-Public Law
Option B is correct. Equity often focuses on the conscience of the parties. It is often said that “he who comes to equity, must come with clean hands”. This maxim means that a Court will consider whether a party has “clean hands” and if someone has lied this may result in the court refusing that party any relief as a matter of equity.
Option A is wrong as Common law involves an adherence to precedent and this is not the approach taken here.
Option C is wrong as the fact pattern states there is no obvious statute law applicable to the scenario.
Option D is wrong as there is no defined concept of “Civil Law” in the jurisdiction of England and Wales.
Option E is wrong as Public law involves relations with the State and that is not the case here where there is a dispute between two PLCs.
The Protection of Animals Act 2019 (fictitious) was enacted using the provisions of the Parliament Acts 1911 and 1949, following amendments made to the main Bill, The Protection of Animals Bill (fictitious).
Which of the following describes why the Speaker of the House of Commons invoked these provisions in order for the Bill to become law?
A-Amendments made at the Committee Stage in the Commons were selected for debate by the Speaker of the Commons at the Report Stage.
B-Members of the Commons did not all vote at the Third Reading of the Bill in the Commons before proceedings commenced in the Lords.
C-The Bill reached its Third Reading in the Lords and was sent back to the Commons with amendments. These amendments were accepted by the Commons.
D-The Lords and Commons were unable to reach agreement over amendments made by the Lords, resulting in the Commons overruling the Lords.
E-The Commons restored the original wording of the Bill after disagreeing with the Lords’ amendments. This wording was accepted by the Lords and returned to the Commons.
Option D is correct because before a Bill can become an Act, it must first pass through five stages (First Reading, Second Reading, Committee Stage, Report Stage and Third Reading) in the House of Commons then the same five stages in the House of Lords, where amendments can be made. A Bill can theoretically go back and forth between the Lords and Commons if there is disagreement between both Houses so, to terminate such lengthy proceedings, the Speaker of the House is able to invoke an infrequently used device, the Parliament Acts 1911 and 1949, by certifying that the conditions of s.2 of these Acts are met. This allows the Commons to overrule the Lords so that a Bill can go forwards for approval by the monarch in the form of Royal Assent. The Parliament Acts 1911 and 1949 can thus be invoked to enact a Bill and bring lengthy debates, with no agreement between Houses, to an end.
Option A is wrong because the Committee stage and the Report stage are part of the regular process and would not in and of themselves mean that the Parliament Acts would need to be invoked. Also note that amendments for debate at the Committee Stage are selected by the Chairman whereas amendments at the Report Stage are selected by the Speaker.
B is wrong because a Bill’s Third Reading in the Commons involves a brief debate where many Members choose not to vote.
C is wrong because once the Lords’ amendments are accepted by the Commons, a Bill is sent to the monarch for Royal Assent.
E is wrong because if the Commons disagrees with any amendments made by the Lords and thus restores the original wording of a Bill for return to the Lords, the Lords will then usually accept the Bill and return it to the Commons for agreement before Royal Assent. In these circumstances, there is no need to invoke the Parliament Acts of 1911 and 1949.
A judge is presiding over a dispute. The judge is aware of a most recent statute that brought together all the law from many previous cases and different statutes over the centuries, relating to the law on the same topic, but changed pre-existing statute on this topic.
Which of the following describes the type of law that brought together all the law on this topic into one new statute, with UK coverage?
A-A codifying Act.
B-A consolidating Act.
C-A Bye-law.
D-A Private Statute.
E-Common Law.
Option A is correct as codifying legislation ‘tidies up’ all the pre-existing law such as common law, custom and statute(s) on one topic and creates a new statute that changes existing law.
Option B is wrong as consolidating legislation does not include common law and ‘tidies up’ previous statutes into one new statute but without usually materially changing the law.
Option C is wrong as bye-laws are made by local authorities to deal with issues within their own areas.
Option D is wrong as a private statute is any Act of Parliament that concerns matters which affect particular persons or a particular locality.
Option E is wrong as common law is judge-made or case law and can be amended by case law via the legislative supremacy of Parliament. A judge has no power to declare an Act of Parliament invalid and, in the event of conflict between statute and other types of law, statute will prevail in assisting the judge to reach a decision.
In addition to common law remedies, all civil courts in England and Wales have power to grant equitable remedies in legal proceedings.
Which of the following is not an equitable remedy?
A-Specific performance.
B-Damages
C-Account of profits
D-Rescission.
E-Injunction
The correct answer is B. Damages are not an equitable remedy but are instead a common law remedy.
Options A, C, D and E are all wrong because they refer to remedies which are equitable remedies.
The Court of Appeal is hearing an appeal in a civil case. Two previous decisions have been cited to the court. The first is a previous decision of the Court of Appeal itself, which suggests that the appeal should be granted. This decision was an interim one made ten years ago by a court consisting of two judges. The second decision is one made five years ago by the Judicial Committee of the Privy Council (“JCPC”) which suggests that the appeal should be dismissed.
In deciding the appeal, is the Court of Appeal bound to follow its own previous decision in preference to the decision of the JCPC?
A-Yes, because the Court of Appeal follows its own previous decisions in preference to those of a different court.
B-Yes, because the two decisions conflict and, being the earlier one, the Court of Appeal is bound by its own previous decision.
C-No, because the two decisions conflict and, as the second one is a decision of the JCPC, the Court of Appeal is bound by this.
D-No, because neither decision is binding on the Court of Appeal and it is entitled to consider which one may assist in deciding the appeal.
E-No, because the doctrine of precedent does not apply in civil cases and the Court of Appeal is not bound to follow either decision.
The correct answer is D. On the facts, the first decision cited is a previous one of the Court of Appeal (“CA”) itself, being an interim decision made by a two-judge court. Although the CA generally regards itself as bound by its own previous decisions, there are exceptions to this rule. One exception arises in the above circumstances (Boys v Chaplin [1968] 2 WB 1). The CA is not therefore bound by the first decision. The second decision is one made by the Judicial Committee of the Privy Council (‘JCPC’). The JCPC hears appeals from certain Commonwealth countries and, although its membership usually overlaps significantly with membership of the Supreme Court, it does not fall within the hierarchy of courts in England and Wales for the purposes of the doctrine of precedent. Therefore, although the JCPC’s decision is likely to be highly persuasive, the CA is not bound by this either.
Option A is wrong because the CA does not simply follow its own decisions in preference to those of a different court. The CA may be bound in a particular case to follow a previous decision of the Supreme Court.
Option B is wrong because the date of each of the two decisions is not of itself determinative of whether that decision is binding. The CA will not follow its own decision simply because it pre-dates that of the JCPC.
Option C is wrong because, as noted above, the CA is not bound by the decision of the JCPC.
Option E is wrong because the doctrine of precedent applies to both civil and criminal cases.
The legal system of England and Wales is a common law system, unlike that of many European countries, like France and Germany.
Which of the following is not a feature of a ‘common law’ system of law but is found in ‘civil law’ systems?
A-Binding judicial precedent which generates a body of case law.
B-A general code of overarching legal principles.
C-A system of comprehensive statutes that govern specific areas of law.
D-Judicial interpretation of the specific meaning of statutes to define and give clarity to an area of law.
E-Stare Decisis (“to stand by things decided”. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision.)
Option B is correct as this is found in civil law systems such as in France and Germany.
Answers A, C, D & E are wrong as they are all features of a common law system.
A judge is presiding over a court case on a family matter. A daughter aged 15 is seeking independence from a father. The daughter alleges coercive control – that the father threatens force, and does not allow her to see friends or relatives. The advocates for the parties refer to numerous cases in support of their arguments.
Which of the following statements by previous courts would provide relevant guidance to the judge in deciding the issue of coercive control?
A-Mr Justice Birkett in Constantine v Imperial Hotels 1943: ‘I hold this action is maintainable without proof of special damage. The right, I think, is founded upon the common law’.
B-The judge in R v Dudley and Stephens 1884: ‘law and morality are not the same and many things may be immoral which are not necessarily illegal’.
C-Lord Mansfield in Somerset v Stewart 1772: ‘In five or six cases of this nature, I have known it to be accommodated by agreement between the parties’.
D-Lord Stowell in Popkin v Popkin 1794: ‘The husband has a right to the person of his wife’.
E-Lord Coke in Darnel’s Case 1627: ‘A freeman imprisoned without cause is civilly dead’.
Option E is correct.
Courts refer to previous cases to help them arrive at a just decision. Darnel’s Case involved the principle of habeas corpus. The daughter’s situation here may not be a matter of imprisonment or liberty in the sense discussed by Lord Coke, but judges are entitled to draw parallels across the centuries. Here, the daughter clearly feels fear in the face of the withdrawal of certain freedoms.
Option A is wrong as proof in a matter as grave as an allegation of control and abuse would be needed.
Option B is wrong because a discussion of morality is not needed in this instance. It is purely a matter of law, in this instance relating to family matters and violence.
Option C is wrong because here it would be inappropriate for allegations of violence in this context to be resolved privately. The parties require and deserve a decision of the court.
Option D is wrong as the statement in Popkin is now discredited law, and in any event this is a different sort of family relationship.
A judge in a criminal court is hearing an application for the detention of a man. The authorities believe the man has breached immigration law. However, they have no conclusive evidence. The man has a previous criminal record. There is some confusion within the computer systems of the authorities as to his age. He has however given a name and address. The judge is aware of the views of many Members of Parliament (MPs) in the House of Lords who wish to restrict immigration.
Which of the following is the best option for the judge?
A-The judge should take note of the wish of the House of Lords to restrict immigration.
B-The judge should rely on the evidence of the authorities alone in coming to a decision.
C-The judge should rely on the man’s previous criminal record in making a ruling.
D-The judge should consider the doctrine of habeas corpus in coming to a decision.
E-The judge should detain the man indefinitely until the authorities can correct their computer systems.
Option D is correct. Habeas corpus is the doctrine which says that no one can be detained without lawful reason. Here, there is an allegation of breach of the law without proof. At the moment the detention is unsubstantiated, and the administrative procedures of the authorities appear to be inadequate. The judge should therefore make a decision as to the release or detention of the man on the basis of the principle of habeas corpus. There might be other law to consider as well and habeas corpus would therefore be one of several considerations.
Option A is wrong because no judge should be swayed by the views of MPs in Parliament. The balance of powers within the constitution require the judiciary to be independent from members of the legislature. Option B is wrong because a judge should always consider both sides of the argument, and so should assess the evidence on behalf of the man as well as evidence on behalf of the authorities. Option C is wrong because relying on the man’s previous criminal record would not be an appropriate application of the rule of law. A consideration of that record may be appropriate but the most important requirement is an assessment of the offence alleged. Finally, option E is wrong – the judge cannot simply allow the man to be detained indefinitely.
A student is reviewing the functioning of the legal system of England and Wales. She has read about the influence of various kings and queens, and their relationship with the nobility. She has also studied the history of the labour movement, riots and popular unrest. She has noted the role of the judiciary and read much case law.
Which of the following has contributed meaningfully to the development of the legal system in England and Wales?
A-The monarchy, the Church of England, and the nobility but not the general population.
B-The nobility, the landed gentry, and trades unions, but not the monarchy.
C-The monarchy, the nobility, and the judiciary, but not the trades unions before 1800.
D-The judiciary, the nobility, and the monarchy, but not the Church of England.
E-The general population, the nobility, and the armed forces, but not the judiciary.
The correct answer is C. The monarchy, the nobility and the judiciary were and continue to be vital influencing factors. But there were no trades unions before the end of the 19th Century, so they had no influence before 1800.
Option A is wrong because all four of the monarchy, the Church of England, the nobility and the general population have contributed, in their own way, to the development of the legal system. Option B is wrong because the monarchy has had, and continues to maintain, an important role in the legal system. Option D is wrong because the Church of England historically has played an important role, although currently its official constitutional influence is much diminished. Option E is wrong because the judiciary was and is key to the legal system.
A solicitor works for the Government Legal Service. A senior civil servant would like her to give a talk to junior Home Office employees on the legal system and constitution. She is preparing her talk and is pondering the impact of the European Convention on Human Rights (ECHR), the place of the monarchy, the significance of the Magna Carta, the role of Parliament, and the importance of the rule of law.
Which of the following statements relating to constitutional matters within England and Wales is correct?
A-ECHR law can compel Parliament to pass legislation.
B-The rule of law means that the monarch is treated the same as everyone else.
C-The rule of law states that everyone is equal before the law.
D-Parliament is subordinate to the executive ie Government.
E-The Magna Carta is part of the UK’s written constitution.
Option C is correct. As Lord Bingham stated, the principle of being equal before the law is an essential pillar of any reputable legal system. Equality before the law does not mean that everyone has the same choices or level of wealth. But it does mean the law should operate on essentially objective principles, according to established rules.
Option A is wrong because, although ECHR law remains important to UK law, there is no mechanism for ECHR provisions forcing Parliament to act against its will. Option B is wrong because self-evidently the monarchy has privileges beyond those afforded the rest of us. Option D is wrong because Government and Parliament operate jointly, and neither can claim complete dominance over the other in their relationship. Option E is wrong because the UK has no written constitution. It is uncodified, although the Magna Carta is important of course.
A cabinet minister wants to deal with an unexpected event. There is no law allowing the necessary steps to be taken. Media outlets, broadcasters, trade unions, small businesses and many pressure groups support immediate imposition of a decree ie an executive measure, even if there is no legal basis for it.
Should the minister’s department issue the relevant decree?
A-Yes, because this is written into the constitution.
B-Yes, because the Magna Carta allows executive decrees.
C-Yes, because otherwise elements of the population will riot.
D-No, because ‘the King has no prerogative but that which the law of the land allows him’.
E-No, because the monarch will refuse to give Royal Assent.
Option D is correct. Chief Justice Coke made the statement in 1610 that the Crown, and thus Government, is bound by the law and cannot act outside it. It would not therefore be possible for a Government to take action, or pass a law, without the necessary legal basis. This is a good example of how judicial statements can be an important source of law.
Option A is wrong because there is no complete written constitution for the legal system of England and Wales. There are elements which are written, such as the Parliament Acts, and the Bill of Rights, but otherwise the constitution is uncodified, and operates according to precedent and the law. Our constitution frowns on the concept of government by decree.
Option B is wrong because the Magna Carta says no such thing. It contains many and varied statements but nothing authorising executive decrees ie measures without some form of scrutiny by other constitutional elements. Option C is wrong because there is no evidence a riot will result, and in any event the threat of a riot would not be reason for a law to be passed (even if rioting has at times in the past led to the creation of laws). Option E is wrong as Royal Assent is the final step in the passage of an Act of Parliament, which is not what is being proposed here. Incidentally, it is a long-standing convention the monarch never refuses Royal Assent. Equally, it is a convention no Acts are provided for Royal Assent without having passed through the necessary earlier steps.
A man was appointed a peer by the monarch, on the recommendation of the Prime Minister, in the New Year’s Honours list three years ago. He is an active and diligent participant in Parliament. He is a junior minister, below cabinet rank. A Bill is progressing in the normal way and the man is expected to make his views known, and vote, on various aspects of the proposed law in support of the Government.
In which of the following ways will the man be allowed to contribute?
A-He can make a speech during the First Reading of the Bill in the House of Lords.
B-He can speak at a meeting of the Cabinet.
C-He can vote in the House of Lords as a Hereditary Peer.
D-He can speak in the House of Commons at the Second Reading.
E-He can vote in the House of Lords as a Life Peer.
Option E is correct. As the man has been appointed, this means he is a life peer. As such he is entitled to vote during the various stages of the Bill as it passes through the House of Lords (‘the Lords’).
Option A is wrong because there are no speeches during the First Reading of a Bill, whether in the Lords or the House of Commons (‘the Commons’). This is because the First Reading is a brief formal process where the Bill is introduced, with no opportunity for a speech. Option B is wrong because the man is not of cabinet rank and would not be invited to attend Cabinet (unless there were extraordinary circumstances, and he was invited to participate in discussion of specific issue).
Option C is wrong because the man is not a hereditary peer. There are only 90 of these, they are not appointed as such, and if a vacancy occurs it is filled by way of an election of other hereditaries. Option D is wrong because a peer is not a member of the Commons and accordingly cannot speak during a Commons stage of a Bill.
