Module 1: The Legal System Flashcards
What is the rule of law?
The principle that every member of a society, even a ruler, must follow the law
What makes a rule a rule of law?
Enforced by the courts
Made by a body with law-making powers
What is public law?
Regulates the relationship between the state and persons within the state
e.g. criminal law
What is private law?
Regulates the relationship between persons which include both natural persons (humans) and artificial persons (companies)
e.g. contract law and company law
What is the civil law?
Made up of rules that govern the conduct of persons in their dealings with other persons
Made up of rights and obligations or persons towards one another (private) and between them and the state (public)
What is the criminal law?
Made up of rules that declare certain conduct, considered by the state to be sufficiently harmful to society as a whole, to be criminal
What are the three distinct legal jurisdictions?
England and Wales- English law
Scotland- Scots law
Northern Ireland
Statutory law is made by who?
Parliament
A law made directly by the Westminster parliament is called what?
an Act of Parliament
Acts of Parliament apply to who?
Many apply to the whole of UK although some wil only apply to Scotland, NI or England and Wales individually.
What is the legislation applicable only in Scotland passed by the Scottish Parliament?
Act of the Scottish Parliament
What is common law? (non-statutory law)
Case law
Custom
Equity
Development of common law in England?
Historical sources are common law and equity
Petitioned the king if couldn’t obtain from common law courts
King concern to establish the truth of the matter, this is equity
Common law and equity remain distinct in England
How are common law and equity distinct in England?
Common law tends to be automatic in effect
Equity recognises common law but acts as a gloss or supplement to the common law
The development of common law and equity has led to what?
Judicial precedent
Why is Scots law different?
Remained an independent state with own Parliament until 1707
When were Scotland and England united?
Act of Union in 1707
What was Scotland guaranteed by the Act of Union in 1707?
Independent legal system
Church
System of education
What are the statutory sources of law applicable to both Scotland and England?
Primary legislation in the form of an Act of Parliament
Delegated legislation
In Scotland what are the non-statutory sources of law referred to as?
Common law
What do the non-statutory sources of law comprise in Scotland?
Judicial precedent
Institutional writings
Custom
Equity
What do the non-statutory sources of law comprise in England?
Common law (includes judicial precedent and custom) Equity
In the event one source of law conflicts with another, what is the ranking of precedence?
UK legislation- primary or delegated
Judicial precedent/common law and equity
What are the consequences of Parliamentary supremacy?
Parliament is able to make the law as its sees fit
No Parliament can binds its successor
The courts must apply the relevant statutory law
What are the variety if purposes statutes can have?
Create
Alter or repeal
Codify (bring together in one source)
Consolidate existing statute into single Act
What are the two most common types of Bill?
Public
Private
What is a public bill?
If passed will become a General Act altering the general law
Introduced by either Gov or Individual MP
What is a private bill?
If passed will become a Local or Personal Act affecting only a particular locality or body
What are the stages to pass a Public Bill?
In each house: First Reading Second Reading Committee Stage Report Stage Third Reading
Royal Assent
Features of First reading?
Formal reading
After which order made to be printed
Date fixed for 2nd
No debate
Features of Second reading?
Main points considered
No amendments
Referred to committee
Features of Committee stage?
Standing committee of about 20 MPs undertake detailed scrutiny
Most amendments occur here
Very exceptionally whole House of Commons
Features of the Report stage?
Committee reports to whole House on the Bill
Opportunity for further amendment
Amendments put to a vote
Features of the Third Reading?
Motion that the Bill is read for 3rd time put forward
If carried it is sent to other house where goes through similar process
Features of Royal Assent?
Once the bill has passed through both the House of Commons and Lords
Is a formality
Sovereign always acts on advice of PM
What does a Bill become once it receives Royal Assent?
Act of Parliament- referred to as primary legislation
Provisions of the act may take effect when?
Either the date of Royal Assent or at a set later date
Difference between legislative process in Scottish Parliament?
Much more detailed work is done by the committees
What is delegated legislation?
Parliament may delegate its authority to make law to others including public bodies, Gov ministers of local authorities
Has the same force of law as an Act of Parliament
What forms can delegated legislation take?
By-laws- area under local control
Statutory Instrument (SI) made by gov ministers (most common)
Orders in Council- made by the privy council (Queens own counsellors). Normal procedures not adhered to, not common. Used in national emergency.
Professional Regulations- e.g. law society
Advantages of delegated legislation?
Saving Parliamentary time
Technical details
Speed and flexibility
Phasing in primary legislation
Disadvantages of delegated legislation?
Undermines democracy
Reduces Parliamentary control
Bulk (volume)
What does intra vires mean?
A delegate must act within the powers he has been given by Parliament in connection with making delegated legislation
What does ultra vires mean?
Delegate acts outside of powers given by Parliament
Actions subject to judicial review and legislation may be invalidated
What is an enabling act?
Act of Parliament that sets out the framework of legislation and gives power to a specific individual or body
Commonly to authorise delegated legislation
When delegated legislation takes the form of a statutory instrument it must what?
Be given a degree of publicity and scrutiny
e.g. published and sold so it comes into the public domain
Enabling act may provide for the statutory instrument to what?
Be voted on by either or both houses of parliament- either negative or affirmative resolution
What is negative resolution?
Allows parliament to reject the statutory instrument
If not rejected it passes into law
What is affirmative resolution?
Statutory instrument will only come into effect if it is positively approved
Safeguards for delegated legislation?
Parliamentary scrutiny by joint committee
Pressure groups lobby
Human rights act
When did the Human Rights Act 1998 come into effect?
2 October 2000
What was the effect of the Human Rights Act 1998?
make the rights from the European Convention on Human rights enforceable in UK courts
What do the European Court of Human Rights act as?
An appeal court in relation to human right matters
For new legislation the Minister in charge of a Bill must either do what?
Make a statement that it is compatible with convention rights OR
State that the Gov wishes to proceed with the Bill anyway
Existing UK legislation must be read compatibly with what?
Convention rights
If existing legislation can’t be read compatibly with convention rights then?
Primary legislation stands but Declaration of Incompatibility or Remedial Order- amend
Subordinate legislation e.g. Si and by-laws can be quashed unless they are inevitably incompatible (unlikely)
The Act makes it unlawful for a Public Authority to act incompatibly with what?
Convention Rights unless there are statutory provisions in place that prevent public authority acting compatibly
If public authority acts incompatible then the victim can bring what?
Proceedings against the public authority under the Act relying on Convention Rights
Remedies-damages or quashing
What is public authority?
Widely defined, including gov departments, police, hybrids, courts and tribunals
Who has rights of audience before the courts in the UK?
Lower courts- solicitors members of law societies
Senior courts- qualified solicitor advocates and and advocates/barristers
What jurisdiction do the courts have?
Geographical
Over certain persons
Over certain subject matter
What does the Scottish Civil Court structure comprise?
Sheriff Court
Court of Session
Supreme Court
What does the Sheriff court include?
Small claims court
Sheriff summary cause court
Sheriff ordinary cause court
Sheriff Principal
What is the Court of Session made up of?
Outer House (first instance) Inner House (primarily appeal), split into 1st Division and 2nd Division (each min. 3 judges)
What is the English Civil Court structure comprised of?
Magistrates Court County Court High Court Court of Appeal Supreme Court
What does the Magistrates Court deal with?
Certain family proceedings and enforcement of payments
What does the County Court deal with?
First Instance
Almost every kind of civil case
The High Court is made of what three divisions?
Queen’s Bench Division- common law
Family Division- matrimonial cases, family, children
Chancery Division- bankruptcy, partnerships and company law
What does the Court of Appeal deal with?
Hears appeals from the High Court, County Court and certain others
Review evidence from lower courts and legal arguments
May uphold or reverse or order new hearing
What is the Supreme Court?
Highest appeal court that hears appeals on points of law from the Court of Appeal
What does the Scottish Criminal Court structure comprise?
Justice of the Peace Court
Sheriff Court
High Court of Justiciary
What does the Justice of the Peace Court deal with?
Minor crimes
What does the Criminal Sheriff court deal with?
Most crimes but not like murder, rape, treason and incest
These have to be dealt with in the High Court of Justiciary
Appeals from sheriff go there too
What does the High Court of Justiciary do?
Supreme criminal court in Scotland
Trial and Appeals
Can hear cases on all crimes
Appeals from this go to supreme
What does the English Criminal Court structure comprise?
Magistrate's Court County Court High Court Court of Appeal Supreme Court
What does the criminal Magistrate’s court deal with?
All minor offences without a jury
Conducts committal proceedings
What does the Crown Court deal with?
All serious offences and hears certain appeals
What does the High Court (Queen’s Bench Division Divisional Court) deal with?
Hears appeals from the Crown and Magistrates on a point of law
What does the Court of Appeal (Criminal Division) deal with?
Hears appeals on matters including sentencing and evidence (rather than on points of law)
What does the Supreme Court do in Criminal cases?
Most senior appeal court in English criminal cases
What is a precedent?
In common law it is a decision of a court which a later court is required to follow
What does stare decisis mean?
Stand by decisions
Operation of judicial precedent
Gives rise to case law
What is case law?
Comprising rules of law contained in judges decisions
In order to be a binding precedent a decision must be?
A decision of a senior court whose decisions are binding on the later court
Must deal with same point of law
What is ratio decidendi?
The only part of a judge’s decision that is binding in future cases
Legal reason for the decision, rule case decided on
What is Obiter dicta?
Other words, asides, things said by the way
May be persuasive but don’t have to be followed
Advantages of applying the doctrine of precedent?
May be advised with some certainty as to the likely outcome, whether worth pursuing
Provides guidance to less senior judges
Promotes consistency in decision making
Disadvantages of precedent?
Can make the law rigid
May apply old precedent that is out of step with modern attitudes
Why would the court decide not to follow precedent?
Too wide
Declared to be per incuriam- decision made without taking into account a key point of law
Facts can be distinguished from earlier cases
Ratio decidendi is obscure- judges have different reasons for decision
What is per incuriam?
Decision made without taking into account key point of law
In Scotland, which courts are capable of having the status of precedent?
Supreme Court (binding on all lower courts)
Inner House of the Court of Session (binds lower Scottish in civil)
Scottish Court of Criminal Appeal(binds lower Scottish in criminal)
In England, which courts are capable of having the status of precedent?
Supreme Court (all lower English) Court of Appeal (binding on all lower) High Court (binding on judges sitting alone in Magistrates, County and Crown)
