Introduction Sources of law: Week 1

Question 1

Adversarial system

Answer 1

A legal system where two parties present their case before a neutral judge of jury who determine the outcome based on the evidence and arguments presented.

Question 2

What is the English Legal System (ELS)?

Answer 2

The body of rules, procedures, and institutions governing law in England and Wales, based on common law principles developed through judicial precedents.

Question 3

What characterizes the Legal System of England & Wales?

Answer 3

A system shared by England and Wales, distinct from Scotland and Northern Ireland, with a reliance on case law and statutory law in an adversarial system.

Question 4

Common law

Answer 4

Law developed from judicial decision ( decisions and rulings made by judges in court cases) and precedents rather than written statues or codes.it evolves over time and through court rulings.

Question 5

Positivism

Answer 5

Focuses on laws as commands from the sovereign, irrespective of their moral content (e.g. Theories by Austin and hart)

Question 6

Natural law

Answer 6

Argues that law must align with a higher moral order

Question 7

Interpretative theory

Answer 7

Propounded by dworkin. Suggesting laws should reflect the principles and rights embedded in the legal system

Question 8

Substantive law

Answer 8

Governs the rights, duties, and obligations of citizens ( The theft act 1968)

Question 9

Procedural law

Answer 9

Governs how substantive laws are implemented (police and criminal evidence act 1984)

Question 10

Public law

Answer 10

Disputes involving the state ( judicial reviews)

Question 11

Private law

Answer 11

Disputes between private individuals or entities (contract disputes )

Question 12

Equity

Answer 12

A system developed to provide fair outcomes where common law is too rigid, now integrated with common law after the judicature acts

Question 13

Inquisitorial systems

Answer 13

Common in Continental Europe, where the judge actively investigates the facts of the case

Question 14

Theft act 1968:

Answer 14

Defines theft and its punishment police and criminal evidence act 1984 (pace): regulates police powers during arrest and investigation.

Question 15

Acts of union 1707 and 1801

Answer 15

Unified the legal systems of England, Scotland,and Ireland

Question 16

What is the Parliament Act 1911 and how does it affect the House of Lords?

Answer 16

The Parliament Act 1911 limits the House of Lords’ power to delay money bills to one month and restricts its ability to delay other Bills beyond two parliamentary sessions.

Question 17

What is a statutory instrument and how does it differ from primary legislation?

Answer 17

A statutory instrument is a form of secondary legislation used to fill in details or make small changes to existing laws without needing to pass a whole new law through parliament

Question 18

What are the three ways statutory instruments can be passed in Parliament?

Answer 18

Statutory instruments can be passed through:

1. Negative procedure – Automatically becomes law unless annulled.
2. Affirmative procedure – Requires approval by both Houses.
3. Draft procedure – Only becomes law after Parliament approves it.

Question 19

What are the key sections included in the layout of a statute?

Answer 19

statute typically includes:

1. Short title
2. Long title
3. Date of Royal Assent
4. Chapter number
5. Sections
6. Marginal notes

Question 20

What are the three traditional rules of statutory interpretation?

Answer 20

1. Literal Rule – Giving words their plain, ordinary meaning.
2. Golden Rule – Modifying the literal meaning to avoid absurd results. When strictly applying them, it would lead to an unjust outcome.
3. Mischief Rule – Interpreting the law in line with its intended purpose.

Question 21

How does the purposive approach differ from traditional rules of statutory interpretation?

Answer 21

The purposive approach focuses on the purpose and intent behind the legislation, considering the context in which it was passed, rather than just the literal meaning of words.

Question 22

What is delegated legislation?

Answer 22

Delegated legislation refers to laws made by an individual or body under powers given to them by an Act of Parliament, often taking the form of statutory instruments.

Question 23

What are the implications of the Human Rights Act 1998 on parliamentary sovereignty?

Answer 23

The Human Rights Act 1998 requires UK law to be compatible with the European Convention on Human Rights, but Parliament retains the power to legislate in conflict with the ECHR if it chooses.

Question 24

Section 2 – Interpretation of Convention Rights

Answer 24

Requires UK courts to consider decisions and principles of the European Court of Human Rights when interpreting Convention rights.

Question 25

Section 3 – Interpretation of Legislation

Answer 25

UK legislation must be read and given effect in a way compatible with Convention rights, so far as it is possible to do so.

Question 26

Section 4 – Declaration of Incompatibility

Answer 26

If it is impossible to interpret a piece of legislation compatibly with Convention rights, UK courts (specifically, the High Court and above) can issue a declaration of incompatibility.
This does not invalidate the law but flags it for Parliament to consider amending.

Question 27

Section 6 – Acts of Public Authorities

Answer 27

Unlawful for public authorities (e.g., government departments, police, NHS) to act in a way incompatible with Convention rights unless required by primary legislation.

Question 28

Section 7 – Proceedings

Answer 28

Outlines who can bring proceedings under the HRA and how they can challenge acts of public authorities that violate their rights.
Individuals can bring cases in UK courts or use the HRA as a defense in other legal proceedings.

Question 29

What are the two categories of sources of law in the UK?

Answer 29

The two categories are primary sources (produced by the legal process itself, like legislation and case law) and secondary sources (interpretations or commentaries on the law).

Question 30

What is the difference between primary legislation and secondary legislation?

Answer 30

Primary legislation refers to Acts of Parliament, while secondary legislation refers to statutory instruments and regulations created under the authority of primary legislation.

Question 31

What are Public Bills and Private Members’ Bills?

Answer 31

Public Bills are proposed laws affecting the whole country, introduced by the government. Private Members’ Bills are introduced by MPs or Lords who are not part of the government.

Question 32

What is the role of committees in the legislative process?

Answer 32

Committees, especially during the Committee Stage of a Bill, scrutinize its details, propose amendments, and ensure that laws are well-considered and functional.

Question 33

What is Henry VIII power?

Answer 33

Henry VIII power refers to the ability of the government to amend or repeal provisions of an Act of Parliament using delegated legislation, without going through the full legislative process.

Question 34

What are the constituent countries of the United Kingdom?

Answer 34

The United Kingdom consists of England, Wales, Scotland, and Northern Ireland.

Question 35

How does the legal status of Wales differ from that of Scotland and Northern Ireland?

Answer 35

Wales does not have a fully separate legal system and is governed under the legal system of England and Wales, unlike Scotland and Northern Ireland, which have their own legal systems.

Question 36

What is the main legal system used in England and Wales?

Answer 36

The English Legal System is a common law system, which relies on precedents set by previous court decisions.

Question 37

What is the significance of the Government of Wales Act 2006?

Answer 37

This Act granted Wales limited legislative powers, allowing the Welsh Assembly to pass “Acts of the Assembly,” but with restrictions compared to the devolved powers in Scotland and Northern Ireland.

Question 38

What was the outcome of the 2014 Scottish Independence Referendum?

Answer 38

In 2014, 55% of voters in Scotland chose to remain part of the United Kingdom, rejecting independence.

Question 39

Explain Dworkin’s Rights Theory.

Answer 39

Dworkin’s theory argues that laws are not just rules but should reflect societal principles, emphasizing the protection of individual rights over state policies.

Question 40

What are primary rules and secondary rules according to H.L.A. Hart?

Answer 40

Primary rules grant rights and impose duties, while secondary rules govern the recognition, change, and enforcement of primary rules.

Question 41

What was the effect of the Judicature Acts 1873 and 1875?

Answer 41

These Acts unified common law and equity, allowing all courts to apply both legal and equitable principles.

Question 42

What are equitable maxims?

Answer 42

Equitable maxims are guiding principles in equity, such as “equity will not suffer a wrong to be without a remedy” and “he who comes to equity must come with clean hands.”

Question 43

What is the Supreme Court of the United Kingdom, and when was it established?

Answer 43

The Supreme Court, established in 2009, is the highest appellate court in the UK, taking over judicial functions from the House of Lords.

Question 44

What is a private prosecution?

Answer 44

A private prosecution is a criminal case brought by an individual or private entity instead of the state, though the state can intervene if necessary.

Question 45

Why is the rule of law important in the English Legal System?

Answer 45

The rule of law ensures that laws govern society, with all individuals and the government being subject to and accountable under the law.

Question 46

What is a civil order with criminal consequences?

Answer 46

Civil orders, such as Sexual Harm Prevention Orders, are civil in nature but include criminal penalties if breached, blurring the line between civil and criminal law.

Question 47

What is Devolution?

Answer 47

The transfer of legislative powers from the UK Parliament to regional governments, allowing Wales, Scotland, and Northern Ireland to make certain laws independently.

Question 48

How does the ELS fit into regional and international contexts?

Answer 48

Regionally, it differs from Scotland and Northern Ireland’s systems; internationally, it was influenced by the EU (before Brexit) and remains subject to ECHR human rights laws.

Question 49

What are the main features of the ELS?

Answer 49

Precedent (stare decisis), statutory interpretation, separation of powers, and the adversarial court system.

Question 50

Common Law vs. Civil Law Systems – What’s the difference?

Answer 50

Common law relies on case precedents, while civil law is based on comprehensive legal codes and statutes, commonly found in countries like France and Germany.

Question 51

What is the difference between Common Law and Equity?

Answer 51

Common law provides limited remedies (mainly damages), while equity offers fair remedies like injunctions and specific performance where common law falls short.

Question 52

What are the domestic sources of law in England and Wales?

Answer 52

Domestic sources include case law (judicial decisions and precedents) and legislation (laws passed by Parliament).

Question 53

What are European sources of law?

Answer 53

European sources include EU law, which influenced UK law until Brexit, and the European Convention on Human Rights (ECHR) upheld by the Council of Europe.

Question 54

What is the difference between the EU and the Council of Europe?

Answer 54

The EU is a political and economic union with binding laws for its member states, while the Council of Europe is a broader human rights organization, overseeing the ECHR.

Question 55

What is the difference between the EU and the ECHR?

Answer 55

The EU is a union of European countries with shared laws and policies, while the ECHR is a human rights treaty that protects individual rights across Europe, enforced by the European Court of Human Rights.

Question 56

What is the impact of EU law on the UK, especially post-Brexit?

Answer 56

EU law held supremacy in the UK, requiring UK laws to align with EU directives and regulations. After Brexit, some EU laws were retained or assimilated into UK law but can now be altered or removed by the UK Parliament.

Question 57

What is the European Convention on Human Rights (ECHR)?

Answer 57

The ECHR is a treaty created by the Council of Europe to protect human rights across Europe, with cases heard by the European Court of Human Rights (ECtHR) in Strasbourg.