Module 10 - Aspects Of Law Flashcards
What is the rule of law
The principle that every member of a society, even a ruler must follow the law
Law may be classified into “x” and “x” law
Criminal
Civil
What is criminal law
A set of rules that declare certain conduct, considered sufficiently harmful to society as a whole, to be criminal
What is civil law
It is made up of rules that govern the conduct of persons in their dealings with other persons
In order to be a binding precedent…
A decision must have been a decision of a senior court on the same point of law in a subsequent case with similar material facts
It is only the ratio decidendi that is binding in subsequent cases
Do both Scotland and England have a system of civil and criminal courts?
Yes
Do Scotland and England have their own distinct court structure?
Yes
May entrepreneurs have to consider a jurisdiction beyond the UK systems if they are contracting with customers or suppliers internationally?
Yes
What are the different cases in which a rule would be considered a rule of law?
When developed by the courts under their inherent power to regulate duties between persons
Made by a body with law-making powers
Is a rule of law obligatory?
Yes
Do laws often specify what the consequences will be?
Yes
Breach of a rule of law carries a?
Sanction
There are two main branches of law:
Private
Public
Public laws regulates what?
Relationship between state and its citizens. Eg criminal law
Private law regulates what?
Relationship between persons which includes both natural persons (humans) and legal persons (companies)
Eg contract law and employment law
Examples of private law?
Contract law and employment law
What is civil law?
What does it include?
It is rules that govern the conduct of persons in their dealings with other persons
It includes the law of contract / the law of delict/tort (duties owed to persons) / the law of property / certain regulatory laws
What is criminal law?
It is made up of rules that declare a certain conduct
Considered sufficiently harmful to society as a whole to be criminal
Eg murder, careless driving
Does civil law generally require a person to raise an action?
Yes
Does criminal law generally require a person aggrieved to raise an action?
No, it is the state who decides whether proceeding are to be raised
The three distinct jurisdictions in the UK
England and Wales
Scotland
Northern Ireland
Who is statutory law made by?
Parliament
Many of our laws form part of what?
Common law
What is common law?
Law developed by the courts themselves
As part of their inherent jurisdiction to regulate relationships between parties
Legislation passed by the Scottish Parliament is known as:
An Act of the Scottish Parliament (ASP)
What is legislation?
The enactment of law made by a body that has the authority to create laws
Body’s that have authority to create laws are known as:
Who has this power in the UK?
A Legislature
In the UK this will be the UK Parliament
Can a Parliament bind its successor?
No
If a Parliament makes laws, a subsequent Parliament can alter or appeal
Primary legislation takes the form of An Act of Parliament offered referred to as:
Statute
Statutes can be created for several reasons:
Create new law
Alter of repeal existing law
Codify existing case law
Consolidate existing statute law
What does delegated legislation involve?
Parliament delegating it’s authority to make law to others including public bodies, government ministers or local authorities
Delegated legislation can take a number of different formats
Byelaws
Statutory instrument
Orders in council
Professional regulations
Regulatory agency requirements
Sometimes, the enabling act may provide for the statutory instrument to be voted on by either / both Houses of Parliament, what could the vote be?
Negative - allows Parliament to reject
Affirmative - comes into effect if approved by Parliament
What is the ECHR
The European court of human rights
What does the ECHR decide on?
Human rights convention matters in Europe
If a law conflicts with another, the highest ranking takes precedence as follows:
- UK legislation - primary and delegated
2. Judicial precedent / Common law and Equity
The Scottish court structure comprises of:
The Sheriff Court - wide jurisdiction
The Court of Session - made up of the Outer House (hears cases in the first instance) and the Inner House (primarily a court of appeal)
The Supreme Court - the ultimate court of appeal - hears appeals from the Inner House
The English Civil Court structure comprises of:
The County Court - almost every case in the first instance
The High Court - has three divisions eg the Chancery Division
The Court of Appeal - hears appeals from High Court and County Court
The Supreme Court - hears appeal from the Court of Appeal
Is judicial precedent the most important source of law?
No
It comes after statute
In order to be a binding precedent:
Decision of a senior court
Legal reasoning must deal with the same point of law
What is ratio decidendi?
The only part of a judges decision that is binding in future cases
Advantages of applying precedent:
Guidance to less senior judges
Consistency in decision making
Provides some idea over whether a case is worth pursuing
Disadvantages of applying precedent
Make law rigid
Not in line with modern attitudes
Are the courts whose decisions are capable of having status of binding precedent the same in Scotland and England & Wales?
No
Scotland - courts capable of having the status of precedent
Supreme Court
Inner house of the court of session
Scottish court of appeal
England - courts capable of having the status of precedent
Supreme Court
Court of appeal
High court
Breaking a rule of criminal law can lead to what?
Fine or imprisonment
Breaking a rule which forms part of civil law may lead to what?
A court order for the payment of compensation
In the Act of Union 1707 Scotland and England joined as Great Britain under a single parliament at Westminster
Under the terms of this Act of Union Scotland was guaranteed the retention of what?
It’s independent legal system
Church
System of education
Is the UK signatory to certain international conventions?
Yes
Where is statutory law made?
Parliament
Are many rules not found in Acts of Parliament?
If so what does this mean?
Yes
They do not have a statutory source
Scottish Parliament has the power to make laws on matters such as:
Education, health, transport and Scottish income tax
Are there both statutory and non-statutory sources of law?
Yes
What is the difference between the two?
UK Parliament has supremacy, what does this mean?
It can make laws as it sees fit
Is legislation a statutory source of law?
Can it be either primary or delegated?
Yes
Yes
Primary legislation takes the form of what?
What is this often referred to as?
An Act of Parliament
Statute
What is a Byelaw? (delegated legislation)
Made by a local authority to regulate conduct in the area which that local authority has control
What is a statutory instrument (delegated legislation)
Made by government ministers exercising their ministerial powers
This is the most common form of delegated legislation
What are orders in council (delegated legislation)
Made by the Privy council
These are not common
These are most likely to be used in situations to be considered of national emergency
What are professional regulations? (delegated legislation)
Made by bodies like ICAS or Law Society
Who make rules to regulate its members and to maintain discipline amongst them
What are regulatory agency requirements? (delegated legislation)
Made by bodies such as OFCOM, FCA etc
Which have force of law due to the statutory law which creates the agency and its functions
What is intra vires?
A delegate must always act within the powers they have been given by Parliament in connection with the making of delegated legislation
A delegates actions (delegated legislation) will be subject to what?
Can delegated legislation be declared invalid by the courts?
Judicial review
Yes
Parliaments measure of controls over delegated legislation
Safeguards may include what in the enabling Act?
A requirement that regulations can only be produced following consultation with specified bodies
What is an enabling Act?
An act of Parliament which sets out the framework of legislation and gives power to a specific individual or body to take certain actions
Are enabling Acts commonly used to authorise delegated legislation?
Yes
Are statutory instruments given a degree of publicity and scrutiny?
What must happen so that it comes into the public domain?
Yes
It must be dated, printed, numbered, published and sold
Additional parliamentary safeguards with delegated legislation include:
Parliamentary scrutiny by the Joint Committee on Statutory Instruments
The lobbying of Parliament by pressure groups
Provisions of the Human Rights Act (HRA) allows the courts to?
Quash delegated legislation if it contravenes with the HRA
What is the role of the courts?
To protect rights and enforce responsibilities
Are the UK courts investigative?
What does this mean?
No
They will generally only decide upon matters as presented to them by the involved parties
(Important for entrepreneurs to keep relevant documents)
Decisions of courts give rise to what types of law?
What heading do these types of law come under?
Case law / judicial precedent
Non-statutory sources of law
Non-statutory sources of law include what in Scotland
And what in England
Scotland - custom
England - common law (includes judicial precedent and custom) & equity
Does the relationship with the ECHR remain unchanged post brexit?
Why?
Because of what agreement)
Yes - it is not an EU institution
So the relationship remains unchanged post BREXIT as a result of the Trade and Cooperation Agreement
The Human Rights Act 1998 commenced when?
2nd October 2000
What is the effect of the Human Rights Act 1998
What does this mean?
To make the rights from the European Convention on Human Rights (‘Convention Rights’) enforceable in the UK courts
The process of relying on Convention Rights is quicker and easier than in the past where cases on matters of human rights had to be taken to the ECHR
What does the ECHR (European Court of Human Rights) act as?
An appeal court in relation to human rights matters
When were Human Rights devolved to the Scottish Government?
Part of The Scotland Act 1998
In the lower courts, rights of audience is restricted to who?
Qualified solicitors who are members of the respective Law Societies in Scotland and in England & Wales
In more senior courts, rights of audience are restricted to who?
Qualified solicitor-advocates and advocates/barristers
Must there be some link between the defender/defendant and the particular court?
Such as?
Yes
They must live or carry on business within the geographical jurisdiction of the court / both parties have, by contract, elected a specific court
(The pursuer / claimant must raise their case in a court which has jurisdiction over the defender / defendant)
Does the Sheriff Court have a very wide jurisdiction in the types of cases it can deal with?
Yes
Is there an upper monetary value limit of the cases that the Sheriff Court can hear?
No
Court of session is made up of
Outer house (hears cases in first instance)
Inner house (primarily a court of appeal though it can hear cases in the first instance in special circumstances)
Where does the Supreme Court (for Scottish courts) sit?
Where does it hear appeals from?
London
The inner house of the court of session
What does the county court deal with?
Almost every kind of civil case in the first instance including issues relating to contract amongst others
High court is made up of how many divisions
What does the Chancery Division do?
Three
Deals with matters including bankruptcy, partnerships and company law (may be of relevance for entrepreneurs)
Where does the court of appeal hear appeals from?
What can it do?
High court
County court
Specialist tribunals
(Uphold / reverse / order a new hearing)
Where does the Supreme Court hear appeals from? (England)
Is it the highest appeal court?
Court of Appeal
Yes - Supreme Court is top dog
What is a precedent
A decision of the court which a later court is required to follow by deciding the subsequent case in the same way
Precedent gives rise to a body of law known as?
Case law
What is ratio decidendi
Only part of a judges decision that is binding in future cases
This is the legal reasoning for the decision, that is, the legal rule upon which the case has been decided
Even in situations where a precedent seems to be binding is it possible for the court to decide not to follow it?
On the basis of what?
Yes
- Precedent from earlier case is too wide
- Precedent from earlier case is declared per incuriam
- Facts from current case can be distinguished from earlier cases
- The ratio decidendi is obscure (when judges give different reasons for arriving at the same decision)
What is per incuriam
(To do with precedent)
The decision was made without taking into account a key point of law or fact
Is it up to the parties, in business transactions, to specify what law and court apply to the contract?
(INTERNATIONAL LAW)
Yes
INTERNATIONAL LAW
Are there some international contract frameworks aimed to simplify entering into contracts?
For example?
Yes
Incoterms
Is there less freedom for consumer contracts with INTERNATIONAL LAW? (In comparison to choosing a specific court)
Yes
Is there a system of international custom and international treaties to help enter into consumer contracts with INTERNATIONAL LAW?
Are the general principles recognised by most national legal systems?
Yes
Yes
Is there a universal authority to enforce international law?
No
What date is the UK leaving the EU?
31 Jan 2020
When does the transition period (with BREXIT) end?
31 December 2020
After the transition period (which ends when?) will any laws passed after this date by the EU apply to domestic law?
31 December 2020
No
Has EU legislation which directly or indirectly applied up until the transition period end date been retained?
If so, in what way?
Yes
As a form of domestic legislation
EU legislation which directly or indirectly applied up until the transition period ended (31 Dec 2020) has been retained as what?
Does this continue to be recognised and retained within the law? How is it recognised within the law?
(Page 222 in notes if bad wording)
A form of domestic legislation
Yes - it is the ‘retained EU legislation’ and continues to be recognised and available within law
Was further legislation set out for future relations between the UK and the EU?
Such as?
Yes
The Trade and Cooperation Agreement
The Agreement of Nuclear Cooperation
The Agreement on Security and Procedures for Exchanging and Protecting Classified Information
Is the legislation that set out future relationships between the UK and the EU important?
If so, why?
Yes, in order to retain a strong relationship with international stakeholders
Is it only the ratio decidendi that is binding in subsequent cases?
Yes
