Module 10 Aspects of Law

Question 1

A rule is considered law when?

Answer 1

• A law is developed by the courts under their inherent power
• If it is made by a body with law-making powers
• Law is deduced from a judges decisons (Case law)

Question 2

Two main branches of law?

Answer 2

• Public (criminal law)
• Private (civil law)
• Civil law usually requires a person aggrived to raise action

Question 3

UK wide laws apply how?

Answer 3

• The passing of the act of the union 1707
• United scotland and england under a single parliament
• Scotland was guaranteed retention of independent legal system, churches and education system

Question 4

What is legislation passed by scottish parliament

Answer 4

• Act of the Scottish Parliament (ASP)
• ONLY applicable in Scotland

Question 5

Why are statues created?

Answer 5

• Create new law
• Alter exsisting law
• Repeal exsisting law
• Codify existing case law
• Consolidate existing statute law

Question 6

What is primry or deligated legislation?

Answer 6

• Primary legislation takes the form of an Act of Parliament referred to as statue
• Deligated legislation involves Parliament deligating its authority to other public bodies

Question 7

A delegate must always act within the powers they have been given by Parliament in connection with the delgated legistation, this is referred to as acting?

Answer 7

intra vires

Question 8

What is negative resolution?

Answer 8

Allows Parliament to reject the statutory instrument, but if there is no such resolution it will pass into law.

Question 9

What is affirmative resolution?

Answer 9

The statutory instrument will only come into effect if it is positivley approved by Parliament

Question 10

Human rights were devovled to the Scottish goverment as part of?

Answer 10

The Scotland Act 1998

Question 11

Scottish Civil court structure

Answer 11

• The Sheriff Court (Very wide jurisdiction)
• The Court of Session
  
  • Outer house will hear cases in the first instance
  • Inner house which is primarily a court of appeal but can hear cases in the first instance in special circumstances
• The Supreme Court
  
  • Sits in London and is the ultimate court of appeal in Scottish Civil Cases

Question 12

The English Civil Court structure

Answer 12

• The County Court
  
  • Deals with almost every kind of civil case in the first instance
• The High Court
  
  • Made of three divisions
  • The Chancery Division deals with bankrupcy, partnership and company law
• The Court of Appeal
  
  • Hears appeals from both County and High court
• The Supreme Court
  
  • The highest appeal court, hears appeals from the court of appeal

Question 13

In order to be a binding precedent a decions must be?

Answer 13

• A decision of a senior court whose decisions are binding on the later court
• The legal reasoning must deal with the same point of law under consideration

Question 14

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

Answer 14

ratio decidendi

Question 15

Advantages or disadvantages of applying precedent?

Answer 15

• Provides guidence to less senior judges
• Provides consistency in decison making
• Provides client some certainty over the likely outcome and if it is worth it
• Makes the law rigid
• Apply precedent thay is old and not in line with modern attitudes

Question 16

In situations where precedent seems to be binding it is possible for the court to not follow how?

Answer 16

• The precedent from the earlier case is too wide
• The decision was made without taking into account a key point of law
  
  • per incuriam
• The facts of the current case can be distingured from the earlier case
• The ratio decidendi is obscure (judges give different reasons for arriving at the same decision)