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EY Accounting - Business Acumen > Module 10 - Aspects Of Law > Flashcards

Module 10 - Aspects Of Law Flashcards

1
Q

What is the rule of law

A

The principle that every member of a society, even a ruler must follow the law

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2
Q

Law may be classified into “x” and “x” law

A

Criminal

Civil

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3
Q

What is criminal law

A

A set of rules that declare certain conduct, considered sufficiently harmful to society as a whole, to be criminal

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4
Q

What is civil law

A

It is made up of rules that govern the conduct of persons in their dealings with other persons

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5
Q

In order to be a binding precedent…

A

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

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6
Q

Do both Scotland and England have a system of civil and criminal courts?

A

Yes

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7
Q

Do Scotland and England have their own distinct court structure?

A

Yes

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8
Q

May entrepreneurs have to consider a jurisdiction beyond the UK systems if they are contracting with customers or suppliers internationally?

A

Yes

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9
Q

What are the different cases in which a rule would be considered a rule of law?

A

When developed by the courts under their inherent power to regulate duties between persons

Made by a body with law-making powers

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10
Q

Is a rule of law obligatory?

A

Yes

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11
Q

Do laws often specify what the consequences will be?

A

Yes

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12
Q

Breach of a rule of law carries a?

A

Sanction

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13
Q

There are two main branches of law:

A

Private

Public

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14
Q

Public laws regulates what?

A

Relationship between state and its citizens. Eg criminal law

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15
Q

Private law regulates what?

A

Relationship between persons which includes both natural persons (humans) and legal persons (companies)

Eg contract law and employment law

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16
Q

Examples of private law?

A

Contract law and employment law

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17
Q

What is civil law?

What does it include?

A

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

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18
Q

What is criminal law?

A

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

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19
Q

Does civil law generally require a person to raise an action?

A

Yes

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20
Q

Does criminal law generally require a person aggrieved to raise an action?

A

No, it is the state who decides whether proceeding are to be raised

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21
Q

The three distinct jurisdictions in the UK

A

England and Wales

Scotland

Northern Ireland

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22
Q

Who is statutory law made by?

A

Parliament

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23
Q

Many of our laws form part of what?

A

Common law

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24
Q

What is common law?

A

Law developed by the courts themselves

As part of their inherent jurisdiction to regulate relationships between parties

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25
Q

Legislation passed by the Scottish Parliament is known as:

A

An Act of the Scottish Parliament (ASP)

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26
Q

What is legislation?

A

The enactment of law made by a body that has the authority to create laws

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27
Q

Body’s that have authority to create laws are known as:

Who has this power in the UK?

A

A Legislature

In the UK this will be the UK Parliament

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28
Q

Can a Parliament bind its successor?

A

No

If a Parliament makes laws, a subsequent Parliament can alter or appeal

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29
Q

Primary legislation takes the form of An Act of Parliament offered referred to as:

A

Statute

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30
Q

Statutes can be created for several reasons:

A

Create new law

Alter of repeal existing law

Codify existing case law

Consolidate existing statute law

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31
Q

What does delegated legislation involve?

A

Parliament delegating it’s authority to make law to others including public bodies, government ministers or local authorities

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32
Q

Delegated legislation can take a number of different formats

A

Byelaws

Statutory instrument

Orders in council

Professional regulations

Regulatory agency requirements

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33
Q

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?

A

Negative - allows Parliament to reject

Affirmative - comes into effect if approved by Parliament

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34
Q

What is the ECHR

A

The European court of human rights

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35
Q

What does the ECHR decide on?

A

Human rights convention matters in Europe

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36
Q

If a law conflicts with another, the highest ranking takes precedence as follows:

A
  1. UK legislation - primary and delegated

2. Judicial precedent / Common law and Equity

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37
Q

The Scottish court structure comprises of:

A

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

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38
Q

The English Civil Court structure comprises of:

A

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

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39
Q

Is judicial precedent the most important source of law?

A

No

It comes after statute

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40
Q

In order to be a binding precedent:

A

Decision of a senior court

Legal reasoning must deal with the same point of law

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41
Q

What is ratio decidendi?

A

The only part of a judges decision that is binding in future cases

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42
Q

Advantages of applying precedent:

A

Guidance to less senior judges

Consistency in decision making

Provides some idea over whether a case is worth pursuing

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43
Q

Disadvantages of applying precedent

A

Make law rigid

Not in line with modern attitudes

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44
Q

Are the courts whose decisions are capable of having status of binding precedent the same in Scotland and England & Wales?

A

No

45
Q

Scotland - courts capable of having the status of precedent

A

Supreme Court

Inner house of the court of session

Scottish court of appeal

46
Q

England - courts capable of having the status of precedent

A

Supreme Court

Court of appeal

High court

47
Q

Breaking a rule of criminal law can lead to what?

A

Fine or imprisonment

48
Q

Breaking a rule which forms part of civil law may lead to what?

A

A court order for the payment of compensation

49
Q

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?

A

It’s independent legal system

Church

System of education

50
Q

Is the UK signatory to certain international conventions?

A

Yes

51
Q

Where is statutory law made?

A

Parliament

52
Q

Are many rules not found in Acts of Parliament?

If so what does this mean?

A

Yes

They do not have a statutory source

53
Q

Scottish Parliament has the power to make laws on matters such as:

A

Education, health, transport and Scottish income tax

54
Q

Are there both statutory and non-statutory sources of law?

A

Yes

What is the difference between the two?

55
Q

UK Parliament has supremacy, what does this mean?

A

It can make laws as it sees fit

56
Q

Is legislation a statutory source of law?

Can it be either primary or delegated?

A

Yes

Yes

57
Q

Primary legislation takes the form of what?

What is this often referred to as?

A

An Act of Parliament

Statute

58
Q

What is a Byelaw? (delegated legislation)

A

Made by a local authority to regulate conduct in the area which that local authority has control

59
Q

What is a statutory instrument (delegated legislation)

A

Made by government ministers exercising their ministerial powers

This is the most common form of delegated legislation

60
Q

What are orders in council (delegated legislation)

A

Made by the Privy council

These are not common

These are most likely to be used in situations to be considered of national emergency

61
Q

What are professional regulations? (delegated legislation)

A

Made by bodies like ICAS or Law Society

Who make rules to regulate its members and to maintain discipline amongst them

62
Q

What are regulatory agency requirements? (delegated legislation)

A

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

63
Q

What is intra vires?

A

A delegate must always act within the powers they have been given by Parliament in connection with the making of delegated legislation

64
Q

A delegates actions (delegated legislation) will be subject to what?

Can delegated legislation be declared invalid by the courts?

A

Judicial review

Yes

65
Q

Parliaments measure of controls over delegated legislation

Safeguards may include what in the enabling Act?

A

A requirement that regulations can only be produced following consultation with specified bodies

66
Q

What is an enabling Act?

A

An act of Parliament which sets out the framework of legislation and gives power to a specific individual or body to take certain actions

67
Q

Are enabling Acts commonly used to authorise delegated legislation?

A

Yes

68
Q

Are statutory instruments given a degree of publicity and scrutiny?

What must happen so that it comes into the public domain?

A

Yes

It must be dated, printed, numbered, published and sold

69
Q

Additional parliamentary safeguards with delegated legislation include:

A

Parliamentary scrutiny by the Joint Committee on Statutory Instruments

The lobbying of Parliament by pressure groups

70
Q

Provisions of the Human Rights Act (HRA) allows the courts to?

A

Quash delegated legislation if it contravenes with the HRA

71
Q

What is the role of the courts?

A

To protect rights and enforce responsibilities

72
Q

Are the UK courts investigative?

What does this mean?

A

No

They will generally only decide upon matters as presented to them by the involved parties

(Important for entrepreneurs to keep relevant documents)

73
Q

Decisions of courts give rise to what types of law?

What heading do these types of law come under?

A

Case law / judicial precedent

Non-statutory sources of law

74
Q

Non-statutory sources of law include what in Scotland

And what in England

A

Scotland - custom

England - common law (includes judicial precedent and custom) & equity

75
Q

Does the relationship with the ECHR remain unchanged post brexit?

Why?

Because of what agreement)

A

Yes - it is not an EU institution

So the relationship remains unchanged post BREXIT as a result of the Trade and Cooperation Agreement

76
Q

The Human Rights Act 1998 commenced when?

A

2nd October 2000

77
Q

What is the effect of the Human Rights Act 1998

What does this mean?

A

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

78
Q

What does the ECHR (European Court of Human Rights) act as?

A

An appeal court in relation to human rights matters

79
Q

When were Human Rights devolved to the Scottish Government?

A

Part of The Scotland Act 1998

80
Q

In the lower courts, rights of audience is restricted to who?

A

Qualified solicitors who are members of the respective Law Societies in Scotland and in England & Wales

81
Q

In more senior courts, rights of audience are restricted to who?

A

Qualified solicitor-advocates and advocates/barristers

82
Q

Must there be some link between the defender/defendant and the particular court?

Such as?

A

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)

83
Q

Does the Sheriff Court have a very wide jurisdiction in the types of cases it can deal with?

A

Yes

84
Q

Is there an upper monetary value limit of the cases that the Sheriff Court can hear?

A

No

85
Q

Court of session is made up of

A

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)

86
Q

Where does the Supreme Court (for Scottish courts) sit?

Where does it hear appeals from?

A

London

The inner house of the court of session

87
Q

What does the county court deal with?

A

Almost every kind of civil case in the first instance including issues relating to contract amongst others

88
Q

High court is made up of how many divisions

What does the Chancery Division do?

A

Three

Deals with matters including bankruptcy, partnerships and company law (may be of relevance for entrepreneurs)

89
Q

Where does the court of appeal hear appeals from?

What can it do?

A

High court

County court

Specialist tribunals

(Uphold / reverse / order a new hearing)

90
Q

Where does the Supreme Court hear appeals from? (England)

Is it the highest appeal court?

A

Court of Appeal

Yes - Supreme Court is top dog

91
Q

What is a precedent

A

A decision of the court which a later court is required to follow by deciding the subsequent case in the same way

92
Q

Precedent gives rise to a body of law known as?

A

Case law

93
Q

What is ratio decidendi

A

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

94
Q

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?

A

Yes

  1. Precedent from earlier case is too wide
  2. Precedent from earlier case is declared per incuriam
  3. Facts from current case can be distinguished from earlier cases
  4. The ratio decidendi is obscure (when judges give different reasons for arriving at the same decision)
95
Q

What is per incuriam

A

(To do with precedent)

The decision was made without taking into account a key point of law or fact

96
Q

Is it up to the parties, in business transactions, to specify what law and court apply to the contract?

(INTERNATIONAL LAW)

A

Yes

INTERNATIONAL LAW

97
Q

Are there some international contract frameworks aimed to simplify entering into contracts?

For example?

A

Yes

Incoterms

98
Q

Is there less freedom for consumer contracts with INTERNATIONAL LAW? (In comparison to choosing a specific court)

A

Yes

99
Q

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?

A

Yes

Yes

100
Q

Is there a universal authority to enforce international law?

A

No

101
Q

What date is the UK leaving the EU?

A

31 Jan 2020

102
Q

When does the transition period (with BREXIT) end?

A

31 December 2020

103
Q

After the transition period (which ends when?) will any laws passed after this date by the EU apply to domestic law?

A

31 December 2020

No

104
Q

Has EU legislation which directly or indirectly applied up until the transition period end date been retained?

If so, in what way?

A

Yes

As a form of domestic legislation

105
Q

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

A form of domestic legislation

Yes - it is the ‘retained EU legislation’ and continues to be recognised and available within law

106
Q

Was further legislation set out for future relations between the UK and the EU?

Such as?

A

Yes

The Trade and Cooperation Agreement

The Agreement of Nuclear Cooperation

The Agreement on Security and Procedures for Exchanging and Protecting Classified Information

107
Q

Is the legislation that set out future relationships between the UK and the EU important?

If so, why?

A

Yes, in order to retain a strong relationship with international stakeholders

108
Q

Is it only the ratio decidendi that is binding in subsequent cases?

A

Yes

EY Accounting - Business Acumen (16 decks)

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