Legal System of England and Wales Flashcards
[FINISHED]
Common Law System
Used in England and Wales.
A legal system in which decisions about disputes are made by referring to both applicable statute and regulations AND court judgements in previous cases involving similar facts.
Adversarial system - Opposing parties offer legal arguments supporting their case and the judge serves as an umpire between them ensuring that each follows procedural rules.
Civil Law System
Used in much of Europe.
Primary focus for making decisions in legal disputes is codified statutes. Things like academic commentaries have more persuasive value.
Non-adversarial system - Judge serves as an inquisitor to draw out the facts from witnesses, and legal counsel act as umpires to ensure the judge follows procedural rules.
Principle of Equity
Possible to apply for a common law remedy or an equitable remedy in the same court.
This system allows courts to provide certain remedies (eg: injunctions) that are not available at law and that can prevent harsh results that otherwise might arise from strict application of common law principles alone.
Equitable remedies are discretionary - Conditions must be such that it is just and fair to grant the remedy.
Types of Law (name all six)
Public Law
Private Law
Criminal Law
Civil Law
Substantive Law
Procedural Law
Public Law
This is the body of law relating to the functioning of the state and individuals’ relationship to it.
Private Law
This is the body of law governing relationships between individuals, for example, contract and tort.
Criminal Law
This body of law intervenes in the actions of individuals which the state (the Crown) deems harmful to the state or the people in it.
Civil Law
Civil law is the body of law that intervenes in relationships between individuals when they go awry, for example, breach of contract.
Substantive Law
This is the law as it is which governs adjudication, for examples, the statute that provides that theft is the unlawful appropriation of property belonging to others, with the intention to permanently deprive the other of it.
Procedural Law
This body of law governs how the adjudication of disputes operates, such as time limits, and required paperwork, for example, the Civil Procedure Rules.
Statute
The primary source of legislation in the UK. It is produced by Parliament (the body as a whole) and is formally known as ACTS OF PARLIAMENT.
Structure of an “Act of Parliament” / “Public General Acts” (name all 11)
[Public General Acts] - Most Acts of Parliament are these, meaning they refer to the whole of the UK.
SHORT TITLE: Short name given to the Act which is most commonly used to refer to it. Eg - Offensive Weapons Act (2019)
CITATION: UK public General Acts are Chapter Acts and are fiven a chapter number which forms the method of citation. Eg - Offensive Weapons Act 2019 c.17
LONG TITLE: Describes the Act’s purpose and can be an aid to interpretation. Eg - “An Act to make provision for, and in connection with, offences relating to offensive weapons”.
DATE OF ROYAL ASSENT: The date the Act received Royal Assent and became an Act rather than a Bill.
PREAMBLE: Fixed block of text, conferring authority of the Crown upon the Act, making it law.
PART: An Act may be divided into parts to deal with subcategories.
SECTION: Individual provisions of an Act, sequentially numbered.
MARGINAL NOTES: Short notations which may appear above or alongside each section of an Act and which give insight into what the provision is about.
SUBSECTIONS: Further break down provisions into parts.
EXTENT PROVISIONS: Define the situations in which a law applies. May become complex if there are enabling provisions or if the Act concerns a devolved area of law.
ENABLING PRIVISIONS: Sometimes an Act’s provision are deferred from being in force until the relevant minister produces regulations giving that provision effect.
Statutory Instrument / Secondary Legislation
Sometimes an Act may make provision for another body, with its consent, to provide regulations to give practical effect to the Act.
The result of this delegation is a “statutory instrument” - sometimes known as “secondary legislation”.
International Treaty
Royal prerogative allows the executive to bind the UK to the rules of international treaties.
Case Law
Once a point of law has been determined at a binding court level, the determination becomes part of the “common law”.
This gives senior judges a law-making role that is outside the direct control of Parliament.
Works of Authority
I.e. Textbooks
May be used as an aid to interpretation, but they are used much less frequently than in civil law systems.
Conventions
By-product of the uncodified parts of the constitution.
They are given weight in the UK through acknowledgement of their existence, however they are strictly speaking non-binding.
E.g. Prime minister who loses a no-confidence vote is expected to step down, even if there is no law requiring that.
Literal Rule (Statutory Interpretation)
If the words of a statue have clear meaning, a court will apply the words as written.
However, if there is some ambiguity, the court will give words their ORDINARY meaning - even if the result is absurd.
TIP: If the words in the statue are clear, they must be applies in the way they are written, even though the intention of the legislator may have differed from the literal meaning or the judgement is harsh or undesirable.
Golden Rule (Statutory Interpretation)
Sometimes using the ordinary meaning of a word would give an absurd result. In such cases, to avoid the absurdity, courts may use a different meaning of a word.
Exists in order to smooth out the edges of the Literal Rule.
Mischief Rule (Statutory Interpretation)
Works backwards: Looks at what problem the statute was deigned to remedy and adapts the words of the statute to achieve this result.
