Law Making - Paper 2 Section A Flashcards

Question 1

Q

section of parliment

parliment

Answer

A

house of commons
house of lords
the crown

Question 2

Q

house of commons

parliment

Answer

A

made of mps
get elected
650 mps
government made up of winning party

Question 3

Q

role of the house of commons

parliment

Answer

A

repsosentation - elected at general election to reprosent the majority of the public
making policy - winning party at the election will have the most seats and make the political agenda
scrutiny of government ideas - opposition party can check laws and debate in the house
legislation - vote on new laws and get them passed

Question 4

Q

house of lords

parliment

Answer

A

about 800 lords
unelected and unpaid, attendance at debate is volentary
hereditary peers
life peers (appointed by parties due to contribution to society or politics)
26 bishops of church of england

Question 5

Q

role of the house of lords

parliment

Answer

A

less party loyalty
expert scrunity of laws
question government
debate
introduce some legislation (still aproved by commons)
delay legislation to allow further time to research and consult (cant fully veto the law)

Question 6

Q

crown

parliment

Answer

A

sing off legislation
“royal assent”
last time they said no was 1707

Question 7

Q

green paper bill (consultation stage)

types of bill

Answer

A

if the governemnt is unsure about the details of a law they issue a green bill
the governments views are put foward
interested parties are invited to send commments as well (charties also get invloved)

Question 8

Q

white paper bill (consultation stage)

types of bill

Answer

A

governemnt then publishes a white bill with its firm propsal for the law
allows the government to take time considering
dangerous dogs act 1991 - this is what happens when the government dont take time considering and the law is rushed

Question 9

Q

public bill (types of bill)

types of bill

Answer

A

most frequently used bill
usally invloes matter of public policy that affect the whole country
legal aid 2012
the equality act 2010
may not affect all of the uk, only some countries
private members bill could become public (the abortion act 1967)

Question 10

Q

private bill (types of bill)

types of bill

Answer

A

desgined for individuals or corporation
the university colleage london act 1996 - used to combine hospitals

Question 11

Q

private member bill (types of bill)

types of bill

Answer

A

introduced by individual mps
very unlikly to pass
very limited time to pass
abortion avt 1967
upskirting bill - wera hobhouse - orignially unsuccesful but the government then listened and made it

Question 12

Q

passage of a bill

Answer

A

house of commons
first reading
secound reading
commitee stage
report stage
third reading
house of lords
crown

Question 13

Q

first reading

legislative process - passage of a bill - house of commons

Answer

A

formal procedure where the aims and name of the whole bill is read out
no discusion

Question 14

Q

secound reading

legislative process - passage of a bill - house of commons

Answer

A

main debate
focusus on main principles
speaker controls all debates and you cant speak without the speakers permision
will be majority vote at the end

Question 15

Q

commitee stage

legislative process -passage of a bill - house of commons

Answer

A

will examine every clause of the bill
16-50 mps form the comittee
will be special interest or expertise
can propose admendmants

Question 16

Q

report stage

legislative process - passage of a bill - house of commons

Answer

A

reports any changes to the house
can be debated

Question 17

Q

third reading

legislative process - passage of a bill - house of commons

Answer

A

final vote on the bill
unlikly to fail now
extra debate

Question 18

Q

house of lords

legislative process - passage of a bill - house of lords

Answer

A

goes through same process
in comittee if they want to make amends they have to go back to the house of commons

Question 19

Q

crown

legislative process - passage of a bill - crown

Answer

A

royal assent act 1967
sign of the bill

Question 20

Q

advantages of the legislative process

legislative process

Answer

A

democratic
elected by the oublic
get to vote every 5hrs
reprosentive
reprosentive of public
public vote for their party and reprosent their views
well scrutined legislation
go through many sages of the commitee
take everyhting into concideration and change to make better
brings about positve reforms and change
responds to social needs
want to stay in so change for the public
abortion act and equality act

Question 21

Q

disadvantages of legislative process

legislative process

Answer

A

undemocratic
house of lords is unelected
royalty
mps normally vote a party not their beliefs
unreprosentive
rich white men (62% are white and over 40)
voting system leads to diproporinate number of seats with the winning party
minority group forgotton about
not well scrutinzed/controlled
kneejerk/rushed legislation
winning party majoirty so virtially certain to pass
complexity of new laws (and problamatic)
dangerous dog act 1991
complex content needs expert (mps arent) - fraud act 2006
if the issues are to big - brexit

Question 22

Q

what is the media?

influence of media on parliment

Answer

A

the channel through which infomation is communicated to the public

Question 23

Q

what does the media do?

influence of media on parliment

Answer

A

day to day reporting - sharing news and updates
pressure and highlight campaigns - causes and issues , BLM Palestine and isreal
reprosent and influence public opion - social media - type of opionon (guardian bbc) - media scrutiny of gov

Question 24

Q

sarahs law

influence of media on parliment - examples

Answer

A

murdered and abducted by peodophile
people can now ask the police if somebody has a child offence
news of the world put pedos on the front of newspapers everyday until the police made the new law

Question 25

Q

dangerous dog act

influence of media on parliment - example

Answer

A

created a moral panic and focused mainly on pitbulls
so government had to react to the stress and panic of the public

Question 26

Q

abolition of double jeopardy law

influence of media on parliment - example

Answer

A

allows police and prosecturs to bring offenders to justice if they have new evidence against them
media did this by covering the steven lawrence

Question 27

Q

health school meals policy

influence of media on parliment - example

Answer

A

jamie oliver - tv show
marcus rashford - media - free school meals

Question 28

Q

advanatages of influence of media on parliment

influence of media on parliment

Answer

A

reprosents public
supports pressure groups
raises public awarness of important issues
making gov aware of public pressire - change quickly
provides a link between public and gove

Question 29

Q

disadvanatges influence of media on parliment

influence of media on parliment

Answer

A

fake news - misinfomation
non neutral media can influence in bias ways
laws affected by inaccuate reporting
newspapers are profit making - justice v profit
“moral panic”/exagerated issues - rushes laws

Question 30

Q

pressure groups

influence of pressure groups on parliment

Answer

A

a group or organisation that seeks to influence parliment on a topic or cause

Question 31

Q

sectional or interest groups

influence of pressure groups on parliment

Answer

A

reprosents views of a group of people in society
national farmers union
BLM - racial equality
NEV - education
fathers 4 justice

Question 32

Q

cause groups

influence of pressure groups on parliment

Answer

A

promote a particular cause
BLM
greenpeace
occupy lonfon - finacial equality

Question 33

Q

insider group

influence of pressure groups on parliment

Answer

A

regularly consulted by governement - green paper

Question 34

Q

outsider group

influence of pressure groups on parliment

Answer

A

not consulted by government
protest/action

Question 35

Q

different methos that pressure gorups use

influence of pressure groups on parliment

Answer

A

protest
billboards
petetion
media campaigns
criminal acts
strike
consult government
blockades

Question 36

Q

advanatges of influence of pressure groups on parliment

influence of pressure groups on parliment

Answer

A

broad range of tactics and campaigns - different types have a range of effectiveness and reach different audiences
wide use of social media - reach different types of people (young and old)
meberships and subscription funds - funds can lead to more campaigns
sound and expert knowledge of their cause - sometimes consulted by governement - greater

Question 37

Q

disadvanatges of influence of pressure groups on parliment

influence of pressure groups on parliment

Answer

A

blinded in favour for their cause - partial rather than impartial - extreme bias
undesirable tactics - umpopular methods that can put people in danger
memberships and subsriptions - richer groups have more power
minoirty opionon - not reprosenting all of the uk opion - smaking ban
competing groups - who do the government listen to

Question 38

Q

manifesto

influence of politions on parliment

Answer

A

polocoes and reforms and new laws that a political oarty will put forward at general election
try to persuade people to vote for them
will include issues of finace , education , transport and law and order
2019 conservatives maifesto was BREXIT

Question 39

Q

parties

influence of politions on parliment

Answer

A

each party will have their own view on different things which well set the tone for the laws
green - environment
conservative - lower taxes

Question 40

Q

advanatges of influence of politions on parliment

influence of politions on parliment

Answer

A

each party has a manifesto - shows public the parties plans
if a party has the majority seats most of their proposals law will be passed
proposed laws will be debated in parliment and will be changed
memebers of the house of lords have expertise - “normal people” also have a say

Question 41

Q

disadvanatges of influence of politions on parliment

influence of politions on parliment

Answer

A

if different party are appointed at general election - want to change , costly and takes time
majority seats - ignore the rest
changes made by house of lords may not be accepted by house of parliment
if crisis occurs (covid) a party may have to go against the maifesto which is not what the public voted for

Question 42

Q

influence of lobbyists

influence of lobbyists on parliment

Answer

A

trying to persaude government minister or mps to support a cause
often carried out by pressure groups
gets it name from the practice of members of public meeting mps in the lobbies
cant take the form of - individual meetings , writing messages , petitions
if succsesful an mp will take it to parliment
often takes years or months for gov to respond

Question 43

Q

advantages of influence of lobbyists on parliment

influence of lobbyists on parliment

Answer

A

if succesful laws are changed
they have greater expertise and influence

Question 44

Q

disadvanatges of influence of lobbyists on parliment

influence of lobbyists on parliment

Answer

A

government may have many requests anf are unable/unwilling to look at them
mostly unsuccessful

Question 45

Q

deligated legislation

Answer

A

a law made by a person or a body to whom parliment has delegated law making

Question 46

Q

parent act or enabling act

deligated legislation

Answer

A

within an act there will be an authority for a specified person ( a minister) or a body (local authority) to make further more detailed laws

Question 47

Q

statue

deligated legislation

Answer

A

a written law by parliment

Question 48

Q

why is delegated legislation necessary?

why is deligated legislation necessary?

Answer

A

.1. lack of parlimentary time
.2. allow detail to be added at a later date
.3. make use of local knowledge e.g by laws
.4. make use of expert technical knowledge
.5. easier to amend than an act of parliment
.6. more time can be taken to consider secondary legistation

Question 49

Q

lack of parliamentary time

why is deligated legislation necessary

Answer

A

parliment does not have time to debate all the laws
struggles to deal with primary legislation and therefore secondary would be impossible
allows for debated time
some need more technical expertise (bee diseases order)
can be made promtly in times of emergency (foot and mouth disease)

Question 50

Q

allow detail to be added at a later date

why is deligated legislation necessary

Answer

A

allows laws to be made more quickly than parliment which is vital in times of emergency
parliment takes longer as it does not sit all the time and its oricedures is generally quite slow and complex
can be made at any time

Question 51

Q

local knowledge

why is deligated legislation necessary

Answer

A

mps dont tend to have technical knowledge or expertise
use experts who are familiar with the relevant areas
air navigation order 1995
jacqueline martine “for parliment to debate the main principles throughouly, but leave the deat to be fill in by those who have expert knowledge”
road traffic act 1972 - motor cyclists have to wear helmants

Question 52

Q

easier to amend than an act of parliment

why is deligated legislation necessary

Answer

A

offers flexability in that it can be amended to meet changing circumstances
county cournt fee order 1999 was ameded in 2002
can be amended or revoked easily
makes the law up to date
laws can meet future needs

Question 53

Q

more time

why is deligated legislation necessary

Answer

A

can be made at any time
different from acts as they have to have a timeline
rapid action to be taken in times of emergency (food protection order 1986) - came into effect less than two hours
alloes acts to be implemented peice by peice

Question 54

Q

different types of deligated legislation

deligated legislation

Answer

A

by laws
statutory instruments
orders in counicl

Question 55

Q

by laws

different types of deligated legislation

Answer

A

made by local councils - county councils do for country and town councils for town
many invole traffic control
can be made by public corporation - aeroplane standars
banning drinking in public places

Question 56

Q

statutory instruments

different types of deligated legislation

Answer

A

made by government ministers to implements the provisions made in acts of parliment
usally to add details to a peice of primary legislation , tend to affect the whole country
around 3000 made a year
dangerous dogs act 1991
mimimum wage
can be short and changed anunally
police stop and search

Question 57

Q

orders in council

different types of deligated legislation

Answer

A

laws passed by the privy council (also king) - group of senior politicions
are allowed to make laws without the need for the whole parliment
passes in time of emergency - emergency powers act 1920
transfering responsiability between government - when ministry of justice was created
foreign affairs

Question 58

Q

types of control

control of delegated legislation

Answer

A

parliammentary control
judicical contorl

Question 59

Q

parliamentary control

control of delegated legislation -parliamentary control

Answer

A

cheks on the enabling act
resolution procedures
scrutiny committees and questioning ministers

Question 60

Q

checks on the enabling act

control of delegated legislation -parliamentary control

Answer

A

parliment has intial control over power of delegated
enabling act sets out the limits within DL
parliment can repeal the power in an act at any time
FOR EXMAPLE
which gov ministers can make regulations
type of laws made and wether they can be for the whole country
wether the gov deperment must consult other people first

Question 61

Q

resolution procedures

control of delegated legislation -parliamentary control

Answer

A

negative resolution - subject to a negative resolution - meaning the relevant statutory instruments will become law inless rejected by parliment within 40 days (parliment agree by silence)
affirmative resolution - a small number of staturotry instruments will be subject to an affirmative resolution, it wont become a law unless parliment approves it within 40 days , written clearly in an enabling act
super affirmative resolution - when DL is made under the legislative and regulatory reform act 2006, where ministers are given greaten control to amend acts of parliment

Question 62

Q

scutiny within parliment

control of delegated legislation -parliamentary control

Answer

A

questioning the government ministers - parliment can question gov minusters in debates in the commons about what their department are working on
comittees looked at by joint committee , they review statutory instrumnets and can decide if they need further consideration if;
.1. it apperas to have retrospective effect which was not provided for by the enabling act
.2. it appears to have gone beyond the powers given under the enbaling act
.3. it makes some unusal or unexpted use of power
.4. it is unclear or defective
.5. it imposes a tax or change - only an elected body can do this

Question 63

Q

effectivness of parlimentary controls

control of delegated legislation -parliamentary control

Answer

A

.+. effective as the committee are able to check a number of statutory instuments .-. however due to a number they cant look at all of them
.+. any inappropriate provisions can be bought to a ttention the house before the committe stage
.-. the review is only a technical one, limted to reporting back, they cannot alter regulations or stop them
.-. time consuming, relies on time being allocated
.-. only a few are looked at in detail, no strict requirment

Question 64

Q

delegated power and eulatory reform committee

control of delegated legislation -parliamentary control

Answer

A

to report wether the provisions of any bill inapropaty delegate legislative power, or wether the exercise of legislative power is subjective to an inaproriate area degree of parliment
can consider bull when they are introducted into laws
memoradum is provided for each bill, identifying each deligation
committee recomendations are made in reports to house of laws, usally before start of commiitee stage

Answer 65

A

where a case is taken to court by a person within sufficent standing or interest in the case
judical review can be made on the following grounds;
ultra vires
incorrect procedure
unreasonable

Answer 66

A

means beyond powers
if the DL is held by court to be ‘ultra vires’ it will be void and have no effects
r v home secretary ex fire brigades union - home secratory went past his delegated powers and changed the compensation scheme if fire fighters were injured

Answer 67

A

if the correct procedure wasnt followed when passing the DL then it will also be ultra vires
aylesbury mushrooms - minister of labour failed to consult mushroom growers association which reporisented 85% of mushroom growers
r v secratary state of education and emplyment - education department decided to pick what access to higher rates they had , gave 4 days for teachers to decide and didnt consult anyone

Answer 68

A

if a decision was made unreasbale then it will also be overturnt
r (rogers) v swindon nhs trust - wouldnt give a women with breats cancer a drug to help and you could get it in other hospitals and there wa sno reaosn for him to do this

Answer 69

A

.+. an individual or body has the ability to challange DL
.-.
dependant on each case
the perosn amking the chanllange has to be directly challanged
action must take place within 3 months of the decision being made
no state funding or legal aid

Answer 70

A

is the way that lawyers and judges interpret acts of parlimant

Answer 71

A

a broad term
an ambiguity (changes in the use of language)
new developments (technology)
a drafting error

Answer 72

A

meanings of words may be unclear because they are desgined to cover several possabilities
dangerous dog act 1991 - “any dog of the type known as pitbull terrior”

Answer 73

A

word has two or more meanings - may not be clear with which one to choose
if defending you want to find the ambiguity
r v kelly - is a poker game a game of chance or skill, do they need the lisence
coombes v dpp - are you done for speeding if the sign isnt visable

Answer 74

A

have to cope with the future and future events can be unexpected
a draftsman ability to anticipate the future is limited
r v whitely how can a computer hacker cause damadge if a file is tangiable (criminal damadge act 1961)

Answer 75

A

just an error

Answer 76

A

the literal rule
the golden rule
the mischeif rule
the purposive approach

Answer 77

A

been the main rule since the 19th cent
a judge will give their plane, ordinary or literal (dicitonary) meaning
even if it is not sensible
r v judge of the city of london court
“if the words of an act are clear then you must follow them, even though they manifest to absurity”

Answer 78

A

cheeseman v dpp - public health acts amedmanst 1907
charged with getting his penis out in toilet (as it was a street)
street is somewhere local authority controls
fisher v bell - restricition of offensive weapons act 1959
charged with having a flick knife with a price
in contract it said it was an invitation not offer
whiteley v chappell
illegal to impersinate someone who could vote
found not guilty as a dead person cant vote
london and north easton railway co v berriman - fatal accidents act
husband died while oiling the track
wife wanted comensation, but didnt get it as it wasnt “maintance”

Answer 79

A

follwing the democratic rules from parlimant - prevents unelcted judges making rules
makes the law more certain - make it easier for lawyers and public to interpret law
focuses on parlimant - forces them to be clear and consider their wording
resepcts seperation of power

Answer 80

A

assumes all acts will be drafted perfectly - dangerous dog act 1991 - used word type of dog and should have used breed
when the law is drafted it is not possible to cover all situations that could happen - whitely v chapell
words can have more than one meaning
can lead to unfair decisions - london railway v berriman
can demand unrealistic perfection

Answer 81

A

modifcation of the literal rule
starts by looking at the literal meaning
judge is allowed to avoid it if it will lead to an absurd result
two views of how to use it ;
narrow application - are allowed to choose which meaning to use
wider application - word has one meaning but would lead to an repugant situation (not allowed)

Answer 82

A

allowed to choose which meaning to choose
defintion comes from jones v dpp - “if has more than one you must choose”
alder v george - the offical secrets act 1920
offence to abstruct army in prohibted place

Answer 83

A

if the word has one clear meaning but will lead to a repugant situation a judge must modify the words
re sigsworth - administration of estate act 1925
if there is no will the estate will go to next of kin
son murdered mother to get house as she had no will
used the golden rule so he didnt get the house
r v allen - offence against the person act 1861
tried to maryr neice of wife who he was still amrried to
“could not maryr until 1st marrage was done”
argued that the 2nd marrage was technically real
interpreted “shall marry” as going to the alter so guilty

Answer 84

A

respects the exact words of parlimant in limited situation - allows judges to pick most sensible outcome - r v allen
can provide sensible decisions in cases where the literal rule woild lead to repugant situations - re sigsworth

Answer 85

A

very limited for its use so only used on rare ocassions - not always possible to predict when the court will use the golden rule
micheal zander described it as ‘feeable parachute’ - its an eascape rote but doesnt do very much

Answer 86

A

gives judge more discretion when interpreting legislation
the court should look to see what the law was before the act to discover what gap the act was intent to cover
defintion come from heydones - questions to consider
.1. what was the common law before the making of the act?
.2. what was the mischeif and defect for which the common law did not provide?
.3. what was the remedy the parlimant hath resolved and appointed to cure the disease of the common wealth
.4. the true reason for the remedy

Answer 87

A

smith v hughes - street offences act 1959
women werent on the street but on their balcany calling for men
judge interprated and said they were guilty
royal college of nursing v dhss - abortion act 1967
pregancy should be terminated by doctors (what about new drugs)
looked at previous law and saw the amount of illegal abortions
any trained medical proffesion could now do it
dpp v bull - street offence 1989
arrested for getting prostotutes from the street
law only applied to women
not guilty
eastbourne bc v stirling - illegal for taxi driver to ply on street without licence
got arrested on taxi rank, argued it was private land
look at other laws and decided guilty

Answer 88

A

promotes the purpose of the law - allows judges to look back at the gap of the law and what it was designed to cover
more likly to produce a just result as seen in smith v hughes
the law commision prefers this rule

Answer 89

A

risk of judical law making when this rule is used
the split decisions of the law lords royal college of nursing v dhss
shows that not all seniour judges agree on the rule
may lead to uncertiany in the law
not as wide as the purposive approach as it is limited to looking back at the gap at the old law

Answer 90

A

court is not just looking at the meaning of the individual words, but look at what they think parlimant wanted to achieve
should judges refuse to follow clear words from parliment and how do they know what parlimany intended
judges shouldnt be making laws

Answer 91

A

magor and st mellons v newport corporation - “we sit here to find out the intention of parlimaent and then we fill the gaps in”
r v quintavile v sos for health - human embryology and fertilisation act 1990
gives the defintion as “live embreyo”
parlimant would not have known about CNR when the act was passed
r v registrar general , ex parte smith - adoption act 1976 - shall get info from before they were adopted
convicted of mruder and needed to give past info
scared for his birth mother so judges decided he didnt need to say
jones v tower boot co - race relations act 1997
victum of racial abuse but employer argued was in work place
judges couldnt let them get away with this
liable of abuse

Answer 92

A

in all case examples justice was achieved
judges cant take into account of new techniology
**judges fill in any gaps parlimant could have left out **

Answer 93

A

undemocratic judges are intepertaing laws
parlimant should make the act clear so that the judges do not get the blame when used wrong
extremely time consuming
hansard and government stataments have to be studied
litigation is notoursly uncertain and expensive
legal advice is difficult bc lawyers wont know until the final judgment

Answer 94

A

there are a number of places that judges can look to give them guidance on the meaning of words in an act
two types
intrinsic
extrinsic

Answer 95

A

sources within the act
a judge can consider short or long tutle and the preamble of the act
uses statues to help find the meaning
older statues have sections setting out parlimants intensions
modern ones dont have one or very brief
long title explains parlimant intentions brieflyshort titles define certain sections

Answer 96

A

items outside an act which will help a judge find meaning of words
any pre-legislative documents
green/white paerpes
any previous acts
dictionaries
hansard, internal traties, law commisions reports, interpration act 1978

Answer 97

A

offical reports of what parlimant have said (speeches)
pepper v hart - house of lords relaxed the previous rule of you couldnt look at previous parlimantry discussions
ruled that hansard can only be used when words are ambiguious

Answer 98

A

law reform agencies were not allowed hower the rule was relaxed
black cawson case 1975 - relaxed the rule

Answer 99

A

fothergill v monarch airlines ltd - decided it should be used as it is posssible that in translation, the orginal meaning could be lost
alos allowed to used prepartionary materials published as other countries also do this

Answer 100

A

provides defitions for certain words that are frequently used
‘land’ - buildings or other structures, land convered in water
‘month’ - means calander month
sets basic rules
‘he’ - he or she
also provides;
.1. words importing the masculine gender include femine
.2. words inporting femine gender include masculine
.3. words in singular include plural

Answer 101

A

independant body set up by parlimant by the law commision act 1965
review english law
proposes changes that will make the law simplier, more accesable, fairer, modern and more cost effective
choose an area to look at and then requet for the changes
15-20 parts will be under review
every 3 years they review new projects
66% recomendations have been enacted
* family law reform act
* child act
* computer misuse act
still some major areas that need reviweing particulary non-fatal and fatal criminal offences

Answer 102

A

purposive approach is the preffered rule in european countries
used in eu court
now the purposive approach is more popular
when uk joined the eu it affected all our courts as judges did not use the purposive approach
‘treaty of rome’ - all memebrs of the eu must take all appropriate measures
factortame case - showed supremacy of eu law over uk law , spainish fishing boats allowed to fish in uk

Answer 103

A

allows uk citzens to challange government in uk court (not eurpean court)
get the law from the european convention of human rights
right to a fair trial, right to live, freedome of speech
section 3
where there is a case regarding one of the protected rights, legislation must be read in a way that is compatiable with rights
gives judges more power to interprate laws so we dont break human rights
ghaidan v godin-mendoza
d had long term homosexual relationship
bf died and d wanted the house but landord said no - correct under rent act
judge reinterprated the law to allow same sex parnters the same rights

Answer 104

A

the uk legal system is based on the idea that deciision which judges make in cases are then followed by other judges (binding) in other cases

Answer 105

A

deciison must be followed

Answer 106

A

legal rules from cases

Answer 107

A

stand by what has been decided

Answer 108

A

reasons for decisions
binding outcome

Answer 109

A

other things said
not binding

Answer 110

A

although the gerneral rule is that all courts must follow precedent (stare decisis)
there are some situstions where you can avoid it

Answer 111

A

a debate wether the supreme court should be allowed to depart from its own past
orignial view - judges should be bound from these decisions (caused problems)
london street tramways v london county council - “it is not competeant for us to rehear and reargue a question which already has an awsner”
deciceded certainity in the law was more important than individual harship

Answer 112

A

this is used when they can depart from their own past decisions (not used often at the start)
1968 conway v rimmer
first case where practice statement was used and only related to a techincal point
judges were reluctant to use it still
1972 B R board v herryington
duty of care owed to a child trespasser
first major use of pratice statement
overuled old decision bc they felt that social and physical condistions had changed since the last case
1986 r v shivpuri
first use in a criminal case
chnage of the law of impossibility
2003 r v g and r
law on criminal damadge change
*

Answer 113

A

the seperate divisons do not bind eachother
the civil diviison can depart from its own decsions by using the case - young v bristol aeroplane
can only depart if;
.1. there are 2 conflicting past decesions, the court can choose which one to follow - spratt and savage
.2. decision of supreme court which overule court of appeals decision - davis v johnson
.3. the decision was made per incuriam - williams v fawett
additional one in criminal division is if the law was misunderstood or misused -r v gould

Answer 114

A

.1. distinguishing
.2. overrulling
.3. reversing

Answer 115

A

where the facts are considered to be sufficiently different from previous case
balfour v balfour - tried to sue husband for breach of contract, not held as merely domestic. different decision in merrit v merrit
*

Answer 116

A

a court in a later case decides that a legal decision in an earliar case is wrong
a high court can over rule a decision made in a lower court
pepper v hart - house of lords used hansard and overuled the decision from a previous case so it wasnt use

Answer 117

A

this is where a court higher up reverse the decision of a lower court on appeal in the same case

Answer 118

A

certainty
as they are following pass decisions people know what the law is and how it will be applied
allows lawyers to advise their clients
allows buisness to undertsand laws that apply to them
consitency
just and fair is similar cases are treated the same
makes the law more credable
rules for other judges to follow
better for judges so they do not have to rely on parlimant
flexibitly
there is room for the law to change with society as the supreme court can use practice statement to overrule
timesaving
once a law is in place everyone can find it and use it
saves lawyers time on how to advise their clients

Answer 119

A

rigidity
the law can be to inflexable and previous bad decision may be contrinued bc
lower courts have to follow higher
coa has to follow its own
supreme court only hears few cases
complexity
nearly half a million reported cases
difficult to find relvant case law
very long and not clear
illogical distinctions
distingusihing can lead to hairsplitting so some parts of law become even more complex
differences can be tiny
slowness of growth
judges cant make desicions unless a case come before the courts to be decided
long wait

Answer 120

A

original
binding
persuasive

Answer 121

A

when their is no previous judical decesion
the new decision will be made and will not look at anything else
airedale nhs trust v bland - house of lords established a lasting precedent about the careof patients in comas

Answer 122

A

a previous decesion will be binding on a court if;
the previous decision was made by higher court
the facts of the previous case are similar
the legal question being dealt with is the same as the previous case

Answer 123

A

where a decision judge is not obliged to follow but the decision is influential as it offers useful guidance
previous decisions will be persuasive on court if;
ratios from decsions in court
decsions from other jursudictions e.g diff countires
dissenting judgements
decisions from privy shot

Answer 124

A

.1. courts lower in heirarchy
r v r - house of lords followed same as court of appeal with men being guilty of raping their wifes
.2. decisions of judcial committee of the privy council(not binding)
wagon mound - a decision from house of lords which is well respected in tort law
.3. statements made obiter dicta
r v howe - duress cant be a defence for murder and obiter dicta for attemtped murder
.4. a dissenting judgement
where a case is not decided unanimously
judges who have to tell their reasoning then other judges may agree
.5. decisions of courts in other countries
where countries have the same common law as us

Answer 125

A

bound by - all courts below it
bind itself?
In what extent to which should the supreme court follow its own pass decisions
London street tramways v london county council - decided certainty in the law by following a past decision was more important that preventing individual hardship
It is completely bound by its past decisions unless the decision had been made per incuriam
It was felt that the highest court of appeal should have greater flexibility in its decision making
Practice statement - london street tramways v london county council - allowed them to depart from a previous decision when it appears right to do so
Practice statement in criminal law - criminal law needs to be certain and they should not use it in criminal cases

Answer 126

A

bound by all lower courts
binds itself
civil
The first rule is that one decision by one division will not bind the other division
Rule comes from the case young v bristol aeroplane co, ltd
The only expectations allowing the court of appeal to depart from previous decisions where; there are conflicting decisions in past court cases , there is a decision of the supreme court that overrules , the decision was made per incuriam
Instances of per incuriam - williams v fawcett - the court of appeal to follow previous decisions of their own based on a misunderstanding from county court rules

Answer 127

A

bind by itself?
As well as using the expectations from young case, can also refuse to follow a past decision of its own if the law has been misunderstood
R v simpson - a five judge panel, over ruled the previous judges decisions as the law had been misunderstood

Answer 128

A

bound by who
county
magistrates

Answer 129

A

bound by who
possibly magistrates

Answer 130

A

bound by who?
does not create precedent and are bound by higher courts

Brainscape's Knowledge GenomeTM

Law Making - Paper 2 Section A Flashcards

Brainscape's Knowledge Genome^TM