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MELS > Introduction to MELS > Flashcards

Introduction to MELS Flashcards

1
Q

Functions of the law?

A
  • 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
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2
Q

Purposes of the law?

A
  • 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

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3
Q

Legal + Social Rules?

A

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
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4
Q

Primary Legislation: Statute Law?

A
  • Statute: an Act of Parliament
  • the highest source of law in England
  • created by Parliament: sovereignty
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5
Q

How are statutes created?

A
  1. Parliament: HoC and HoL debate and then draft the bill
  2. Bill sent to receive Royal Assent from the Crown
  3. 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
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6
Q

What types of ‘bill’ are there?

A
  • 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
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7
Q

What is a white paper?

A

Gvt proposal, outlining its intentions to legislate in a particular area

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8
Q

What is a green paper?

A

Introductory higher level gvt reports, make no guarantee that there will be legislation, no legislative detail

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9
Q

The HRA 1998 and Statute law?

A
  • 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)
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10
Q

Consolidation of statute law?

A

No change made, just re-enactments to support existing Acts

- a legal topic previously contained in several different provisions is reenacted

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11
Q

Codification of statute law?

A

Can change the law, restatement of the law

- a legal topic in common, custom or statute law is restated

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12
Q

Parliamentary Sovereignty?

A

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
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13
Q

Delegated legislation?

A

Laws made by the delegated authorities of parilament

  • Secondary legislation: Statutory Instruments
  • Tertiary legislation
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14
Q

Delegated: secondary legislation?

A

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
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15
Q

Delegated: tertiary legislation?

A

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
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16
Q

Advantages of delegated legislation?

A
  • 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
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17
Q

Disadvantages of delegated legislation?

A
  • 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
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18
Q

Constitution?

A
  • 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
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19
Q

The rule of law?

A

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)
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20
Q

Soft Law?

A

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’
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21
Q

Soft Law: advantages?

A
  • flexible and adaptable

- per Lord Steyn, ‘ an important source of rights and duties’

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22
Q

Soft Law: disadvantages?

A
  • 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
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23
Q

The Courts: general?

A 
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
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24
Q

Civil Courts?

A

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
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25
Q

Criminal Courts?

A

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
26
Q

Supreme Court?

A

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
27
Q

Trial Courts?

A
  • first hear cases
  • courts of ‘first instance’
  • decide on facts and apply legal principles (fact+law)
28
Q

Appellate Courts?

A
  • hear appeals from lower courts
  • High Court, Court of Appeal, Supreme Court
  • consider the application of legal principles
29
Q

Court of Appeal?

A
  • 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
30
Q

High Court?

A
  • 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
31
Q

Queen’s Bench Division?

A

Division of High Court

  • Head; Sir Brian Leveson
  • civil law: contract, tort
  • 3 divisions: Admiralty, Commercial, Administrative (supervisory)
32
Q

Chancery Division?

A

Division of High Court

  • Chancellor Sir Terrence Etherton
  • property, corporate law, tax
  • 3 divisions: Bankruptcy + Companies, Patents, Intellectual Property Enterprise Court
33
Q

Family Division?

A

Division of High Court

  • Head: President Sir James Munby
  • matrimonial
  • children: adoption, wardship
34
Q

Crown Court?

A

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
35
Q

County Court?

A

Civil court

  • District judge
  • Circuit judge (more senior of the two)
  • Appeal from District goes to Circuit, from Circuit goes to CoA
36
Q

Magistrates’ Court?

A
  • 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
37
Q

Tribunals?

A
  • Courts and Enforcement Act 2007
  • First-Tier Tribunals
  • Upper Tier Tribunals
  • -> Employment: separate branch
  • Employment Tribunal + Employment Appeals Tribunal
38
Q

Other relevant courts in the MELS?

A

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
39
Q

Privy Council?

A
  • Final authority: dependent British territories, independent Commonwealth states
  • 1998: power extended to encompass Scotland, Wales and NI (SC has now taken this over)
40
Q

Common Law?

A

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
41
Q

Precedent?

A
  • 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
42
Q

Stare Decisis?

A
  • ‘let the decision stand’: precedent

- a decision is made, becomes good law: accurate statement of the law

43
Q

Ratio Decidendi?

A

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
44
Q

Obiter Dicta?

A

passing statements, things said by the way

  • not binding, but can become influential
  • -> e.g. in Donoghue v Stevenson: Lord Atkin’s neighbour principle
45
Q

Applying Precedent?

A

Court uses persuasive precedent in their decision

46
Q

Following Precedent?

A

Court bound by doctrine of stare decisis to use binding precedent in their decision

47
Q

Distinguishing Precedent?

A

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
48
Q

Overruling?

A

A higher court in the hierarchy determines lower court precedent to be wrong, essentially replacing the old precedent

49
Q

Overturning?

A

In the same case, higher court makes a different decision than that of the lower court (e.g. in appeals)

50
Q

Court of Appeal: exceptions to self-binding?

A

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
51
Q

Substantive Law?

A

the actual legislation

52
Q

Procedural Law?

A

the process of a case being brought to court and being tried

53
Q

Adversarial Process?

A
  • ‘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:
54
Q

Limitations of the legal method and trial?

A

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
55
Q

Law and Language; opinions?

A
  • 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
56
Q

Law and Language: mystification?

A

Law as camouflage
- complex language and jargon obscures meaning rather than illuminates: some are excluded from legal discussion because they can’t understand

57
Q

The role of interpretation?

A
  • 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
58
Q

Judicial Discretion and Style?

A

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

59
Q

Judicial Review?

A

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)
60
Q

Grounds for judicial review?

A
  • 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)
61
Q

Employment and Appeals Tribunals?

A

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

MELS (6 decks)

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