Mini-topics Flashcards
What are the three doctrines of the rule of law? name the key thinker
A.V Dicey;
-An absence of arbitrary power from the state
-Everyone must be equal before the law
-The law must be supreme
What are three sectors of the rule of law
-Law making
-Delegated legislation
-The judiciary
How is procedural law upheld?
Trial by magistrates/jury ensures fairness and clarity, judges are impartial so viewed equally, right to fair trial and legal representation (LASPO)
How is substantive law upheld? (P3 specific)
Anyone can create a contract, CRA2015 allows for easier bargaining against companies, aim to return back to pre-contractual position, usually judged to standard of reasonable man so fairness
What are the four institutions of EU law?
-Council
-Commission
-EU Parliament
-ECJ
What are the three sources of EU law?
-Treaties
-Regulations
-Directives
What is the impact of EU law on UK?
post-brexit; 3500 ‘sunset laws’ retained, EU law no longer supreme and UK not bound to ECJ rulings
What is delegated legislation?
Where Parliament delegates some law-making powers to secondary bodies, an Enabling Act is needed to give these powers
What are the three types of DL?
-Orders in council
-By-laws
-Statutory Instruments
What are orders in council? name the key act and examples
Approved by King and Privy Council, Civil Contingencies Act 2004 gives power to make law in emergencies
E.g - Foot and Mouth crisis, petrol strike
What are by-laws? name the key act and examples
Made by local authorities or public corporations, Local Government Act 1972 is the enabling act
E.g - dog fouling, smoking on buses
What are statutory instruments?
Made by head of gov department and are national in effect, allow changes without passing of entire new act
E.g - Dangerous Dogs Act 1991 was originally 4 dogs, more added later by Home sec
What are the adv of DL?
-Saves time
-Specific expertise
-Flexibility
-Emergencies
What are the disadvantages of DL?
-Undemocratic
-Large volume
-Lack of media coverage
What are the three controls of DL by Parliament?
-Enabling Act
-Affirmative and Negative resolution procedures
-Scrutiny Committees
How does the enabling act control DL?
Parliament is sovereign and thus can repeal powers at any time, as well as limiting or extending them
What are Affirmative and Negative resolution procedures?
Only used for Statutory Instruments:
Affirmative - debated and voted upon, then approved within 28-40 days
Negative - MP has 40 days to object
How do scrutiny committees control DL?
Examine Statutory Instruments but Parl can ignore: tax or charge imposed, retrospective effect, gone beyond powers, makes unusual or unexpected use of powers
What are the four controls on DL by the court?
-Judicial review
-Procedural ultra vires
-Substantive ultra vires
-Unreasonableness
What is judicial review?
Person who applies to KBD in High Court to claim a law is in ultra vires - an injunction is issued immediately
What are the two types of ultra vires?
Procedural - specific instructions of the Enabling Act are not followed (Aylesbury Mushroom)
Substantive - law exceeds the powers given (R v Sec of State for Health ex party Pfizer)
What is unreasonableness? (controls of DL)
A provision that is drafted too wide to achieve it purpose (Wednesbury principle)
What are the four ways judicial independence is shown?
-Security of tenure
-Immunity from being sued
-Immunity from the exec/gov
-Independence from case
What is security of tenure?
Superior judges cannot be dismissed by gov, however inferiors can be dismissed by the Lord Chancellor with the consent of Lord Chief Justice
What is immunity from suit?
Judges cannot be prosecuted for acts/decisions in their judicial duties (Sires v Moore) - held even an unlawful decision cannot be sued for as they acted in good faith
What is immunity from exec/gov?
s.3 CRA2005 states Lord Chancellor and other ministers must not seek to influence judicial decisions, also JAC appoints lower court judges, no political interference
What is independence from case?
Judges must not try cases where there is a personal interest (Pinochet)
What are the advantages of judicial independence?
Fairness - decision made on basis of facts and law
Protection - judicial review against unlawful acts of gov
Confidence - public support system if iy is fair and in accordance with law
