Introduction to MELS Flashcards
Functions of the law?
- Public order + safety
- Protect individual rights and liberties
- Organise and control political sphere
- Regulate economic activity
- Regulate human relationships
- Preserve moral order
- Regulate International Relations
Purposes of the law?
- Coercive: power over conduct, encourage or discourage certain behaviours, e.g. punishment for criminal offences
- Facilitative: enables functioning of society + economy, e.g. trade
- Protective: defends rights, e.g. of human rights breach victims
Prof. Owen Fiss (1984): law articulates our values
Legal + Social Rules?
Laws are regulatory, not all regulations are laws
- laws: formal, have sanctions to support them
- laws + regulations can work together: legislation about speed laws + pedestrian crossing to ensure safe driving
Primary Legislation: Statute Law?
- Statute: an Act of Parliament
- the highest source of law in England
- created by Parliament: sovereignty
How are statutes created?
- Parliament: HoC and HoL debate and then draft the bill
- Bill sent to receive Royal Assent from the Crown
- Upon receiving R.A, becomes unimpeachable
- comes into effect then, or on an ‘appointed day’ or even through SI
- different provisions can be effected at different times
What types of ‘bill’ are there?
- Public bill: parliamentary bill as part of legislation concerning the public as a whole
- Private bill: Minister creates a bill of specific benefit to one group/people/institution
- Private Member’s bill: non-gvt by MPs of either house, concerning relatively narrow issues
What is a white paper?
Gvt proposal, outlining its intentions to legislate in a particular area
What is a green paper?
Introductory higher level gvt reports, make no guarantee that there will be legislation, no legislative detail
The HRA 1998 and Statute law?
- s. 3 of the HRA 1998 creates a duty for public authorities to interpret all legislation in a manner that is compatible with Convention rights (ECHR)
- s. 4 of the HRA 1998 states that if this is not possible, the provision/Act should be declared incompatible (declaration of incompatibility)
Consolidation of statute law?
No change made, just re-enactments to support existing Acts
- a legal topic previously contained in several different provisions is reenacted
Codification of statute law?
Can change the law, restatement of the law
- a legal topic in common, custom or statute law is restated
Parliamentary Sovereignty?
The principle that Parliament, as the executive and legislative body in England, has the final authority in regards to creating the law
- creates Statutes which are the highest source/form of law
- -> Dicey: unlimited legislative competence
- -> TRS Allan: courts should be able to challenge: legislation is undemocratic or parliament is unrepresentative
Delegated legislation?
Laws made by the delegated authorities of parilament
- Secondary legislation: Statutory Instruments
- Tertiary legislation
Delegated: secondary legislation?
Commonly in the form of statutory instruments
- Statutory Instrument Act 1946 , 11888 in 2009
- Orders in Council, Remedial Orders, Legislative Reform Orders
- require express authority from the enabling/parent Act
- can bring the parent Act into effect, expand on it, amend it etc
- if the delegated authority ‘beyond the powers’ of the authority given by the parent act, Ministers can delcare it ‘ultra vires’
- -> procedural; made without proper proceudre
- -> substantive: SI itself goes beyond powers given by parent
- -> irrational: no reasonable rule maker would have created such a provision
Delegated: tertiary legislation?
Rules made by gvt ministers, private organisations and public agencies
- full force of law, but narrow and specific purpose
- ‘Codes of Practice’, e.g. those created by the PACE 1984 for the police
Advantages of delegated legislation?
- flexible, adaptable, e.g. Export and Movement Restrictions Regulation 2007 introduced within an hour to deal with outbreak of foot+mouth
- MPs can delegate legislative authority to bodies that have knowledge concerning specific areas
- Insufficient time in parliament for MPs to draft bills in full: delegated = effective use of limited time
Disadvantages of delegated legislation?
- Legislation not fully debated in Parliament, by those elected to represent us
- Public power in the hands of private bodies? Law faces risk of being less democratic
- Proliferation of law makes it difficult to stay up to date; complex process and difficult to comprehend: 11888 SIs in 2009 alone
Constitution?
- rules and practices governing the functions of central and local govt
- unwritten in the UK: changes can be made, parliament is the legislative and executive authority
- political constitution: focus is on holding those with political power to account through political means, e.g. Parliament
- legal constitution: focus is on holding accountable those with political power through legal methods, e.g. the courts and judicial review
The rule of law?
The principle that no person is above the law
- the law is general
- equality before the law
- access to justice: all are under it so no one can be denied access to it
- -> however, culturally specific determinations of what this ‘means’ (i.e. Western view on how the law should be regarded)
Soft Law?
less formal than tertiary, non-binding in effect
- e.g. codes of conduct
- administrative measures: guidance to officials, advice to citizens
- Lord Steyn, Re McFarland: ‘important source of individual rights and corresponding duties’
Soft Law: advantages?
- flexible and adaptable
- per Lord Steyn, ‘ an important source of rights and duties’
Soft Law: disadvantages?
- a drawback of public power being in the hands of private bodies: e.g. semi-autonomous govt agencies and bodies outside the scope of judicial oversight and intervention
- -> if a body abuses their power, an action isn’t justiciable
The Courts: general?
Case law: second most important source of law Hierarchical system in the UK - both civil and criminal courts - Supreme Court - Court of Appeal - High Court - Crown Court - Magistrates' Court, County Court
Civil Courts?
Civil matters: employment, contract, tort. Wrongs and remedies. Resolution of disputes between legal persons/individuals
- Supreme Court
- Court of Appeal (civil division)
- High Court
- Magistrates’ Court, County Court
Criminal Courts?
Criminal matters: murder, theft, etc. Offences, defences and punishments/sentencing. Guilt or innocence
- Supreme Court
- Court of Appeal (criminal division)
- High Court
- Crown Court
- Magistrates’ Court
Supreme Court?
Highest court in England and Wales
- replaced HofL Appellate Committee in 2009 (Constitutional Reform Act 2005)
- Appellate court: cases of significant public importance
- Leap-frog function from High Court
- 12 judges sit, 5-9 hear : JSC
- binding on all inferior courts, not on itself
Trial Courts?
- first hear cases
- courts of ‘first instance’
- decide on facts and apply legal principles (fact+law)
Appellate Courts?
- hear appeals from lower courts
- High Court, Court of Appeal, Supreme Court
- consider the application of legal principles
Court of Appeal?
- Senior court
- Civil: County and High Court appeals
- Criminal: Crown Court appeals
- 2-3 judges sit: LJ
- Civil: MR is head of English civil justice
- always bound by SC, binding on inferior courts and itself, with 3 exceptions
High Court?
- Senior court
- 3 divisions: Queen’s Bench, Chancery, Family
- 2-3 judges in div courts: appointed from LJs and high court judges
- bound by superior courts, binding on inferior courts, not binding on other HC judges
Queen’s Bench Division?
Division of High Court
- Head; Sir Brian Leveson
- civil law: contract, tort
- 3 divisions: Admiralty, Commercial, Administrative (supervisory)
Chancery Division?
Division of High Court
- Chancellor Sir Terrence Etherton
- property, corporate law, tax
- 3 divisions: Bankruptcy + Companies, Patents, Intellectual Property Enterprise Court
Family Division?
Division of High Court
- Head: President Sir James Munby
- matrimonial
- children: adoption, wardship
Crown Court?
Criminal court
- trials + appeals
- serious offences: homicide, serious sexual assault, property offences where damage is of ‘high value’
- Jury + judge: judge directs jury and advises on the law, jury decides facts upon evidence: decides guilt or innocence
- not binding
County Court?
Civil court
- District judge
- Circuit judge (more senior of the two)
- Appeal from District goes to Circuit, from Circuit goes to CoA
Magistrates’ Court?
- Court of first instance
- less serious offences/wrongs
(98% of all criminal cases are heard here) - Justices of the Peace (laypeople, no formal legal training)
- Justice Clerk to assist
- District Judges also operate here
- mainly criminal, some civil matters
Tribunals?
- Courts and Enforcement Act 2007
- First-Tier Tribunals
- Upper Tier Tribunals
- -> Employment: separate branch
- Employment Tribunal + Employment Appeals Tribunal
Other relevant courts in the MELS?
Court of Justice EU (CJEU):
- binding concerning EU law
- Court of Justice, General Court, EU Civil Service Tribunal
European Court of Human Rights (ECtHR):
- Human rights: created by ECHR
- not binding on domestic courts, not binding on itself
Privy Council?
- Final authority: dependent British territories, independent Commonwealth states
- 1998: power extended to encompass Scotland, Wales and NI (SC has now taken this over)
Common Law?
Term relating to how laws have developed from cases
- judges interpret legislation
- look to previous cases: apply or distinguish by analogy
- the reasoning in important cases: precedent
- legal principles emerge: law
Precedent?
- stare decisis
- the important reasoning in cases develops legal principles that judges in later cases will look to in order to inform their decisions. The past shapes the present law.
- created by binding courts: HC, CoA, SC
- binding: must be followed in similar cases
- persuasive: not binding but influential
Stare Decisis?
- ‘let the decision stand’: precedent
- a decision is made, becomes good law: accurate statement of the law
Ratio Decidendi?
the reason for the decision, the legal principle that justifies the decision
- the binding element in precedent
- -> e.g. in Donoghue v Stevenson: a duty of care established because manufacturer owes a duty of care to the ultimate consumer. Applied in Grant v Aus Knitting Mills
Obiter Dicta?
passing statements, things said by the way
- not binding, but can become influential
- -> e.g. in Donoghue v Stevenson: Lord Atkin’s neighbour principle
Applying Precedent?
Court uses persuasive precedent in their decision
Following Precedent?
Court bound by doctrine of stare decisis to use binding precedent in their decision
Distinguishing Precedent?
Court, by analogical process, finds sufficient material differences between cases, in fact or law, to justify not following precedent in the case before them
- restrictive: affects the scope of the earlier case, brings in new element that must now be followed
- non-restrictive: court simply finds material difference, no effect on scope of earlier authority
Overruling?
A higher court in the hierarchy determines lower court precedent to be wrong, essentially replacing the old precedent
Overturning?
In the same case, higher court makes a different decision than that of the lower court (e.g. in appeals)
Court of Appeal: exceptions to self-binding?
Young v Bristol Aeroplane [1944]
- Decisions conflict: courts must choose which decision stands as the law
- Decision made per incuriam: carelessness, Morelle v Wakeling: ignorance of authority led to a decision made upon faulty reasoning. Had court reviews authorities, different decision would’ve been made
- Supreme Court Overruling: express or implied, therefore doesn’t need to be followed
Substantive Law?
the actual legislation
Procedural Law?
the process of a case being brought to court and being tried
Adversarial Process?
- ‘trial by battle’: two sides presenting their case, arguing to convince
- evidence presented, search for the truth: Lord Wilberforce, issue of the ‘whole truth’
- Judges should be impartial; removed from cases even to eliminate ‘apparent bias’
- lawyers represent the client:
Limitations of the legal method and trial?
Trials are just one part of the whole process
- 50/60 years: less litigation
- -> cost increase in going to trial, settlements promoted and diversion to mediation
- Growth in private methods of resolution: settlements, mediation, negotiation: public to private
- -> Prof Owen Fiss 1984: law articulates values: less opportunity to do so if not litigated in public courts
- -> important principles with wider implications not made public
- Ad-hoc nature of cases being brought to trial: need to have the right ‘strength’
- following through with litigation = money, resources, power: some parties don’t have
Law and Language; opinions?
- Hanson 1959, language and fact are dependent on each other: lawyers and witnesses create facts and construct arguments
- Fuller 1958, can’t understand a word’s meaning in isolation of its use: context of usage is important
- HLA Hart 1994, open texture of language: vagueness
Law and Language: mystification?
Law as camouflage
- complex language and jargon obscures meaning rather than illuminates: some are excluded from legal discussion because they can’t understand
The role of interpretation?
- gives practical meaning to the legislation: brings it into the real world by establishing a basic understanding of how it applies to real life situations
- Consequential interpretation: focuses on the outcome; policy
- ‘Rightness Reasons’: universal principles are justification
Judicial Discretion and Style?
Separation of powers: judges are not law-makers but they have some freedom for interpretation and justification: can make legal decisions as part of judicial independence
- Judges: biases, preconceptions, morals and values that could underpin their reasoning
Judicial Review?
legal constitutionalism
- Courts/judges review the actions of public authorities/bodies with public or political power to ensure they are operating lawfully/adhering to the law
- proportionality increasingly a reason for judicial review in regards to human rights (e.g. Carlile case with dissident Iranian politician)
Grounds for judicial review?
- Illegality: public authority failed to recognise and give effect to the law
- Irrationality: an action or decision was so outrageous
- Procedural Impropriety: statutory procedural requirements not adhered to, common law rules of natural justice not followed (no bias, right to fair trial)
Employment and Appeals Tribunals?
Courts and Enforcement Act 2007
(were Industrial Tribunals pre-1998)
- Et: one employment judge
- ET: two expert laymen drawn from panels representing both sides of the industry.
- EAT: considers points of law
- EAT: one High Court judge, plus two or four expert laymen
