Module 2, Chapter 5 - Sources of Law Flashcards
What are the four main sources of law that currently apply in the United Kingdom?
- Legislation
- Case law
- European Union law
- Human rights law.
What is the primary source of domestic law in the UK?
Legislation.
What is the meaning of legislation?
Laws that derive from Parliament.
There are two principal types of domestic legislation. Name them.
- Acts of Parliament
- Subordinate legislation
What is meant by ‘primary legislation’?
Acts of Parliament.
The supreme form of domestic law in the UK (which cannot be amended or overruled by the courts) is derived from?
Parliament.
What is secondary legislation?
Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament. This is known as delegated functions.
List the components of an Act.
- Sections
- Subsections
- Parts
- Chapters
- Schedules
What are the stages of passing Acts of Parliament?
- Green Paper - this sets out broad legislative proposals for consultation.
- White Paper - this provides more detailed final proposals.
- A Bill is drafted.
- The Bill is passed through the House of Commons.
- The Bill will proceed through the House of Lords.
- The Bill can then pass to the monarch for Royal Assent. Once Assent has been granted, the Bill will become an Act of Parliament.
What are the three types of Bills?
Public Bills, Private Bills, and Hybrid Bills.
Define ‘Public Bill’.
These are Bills that affect the general population. Where a Public Bill is introduced by a government
minister, it is known as a government Bill. Where a Public Bill is introduced by a non-ministerial MP, it is known as a Private Members’ Bill.
Define ‘Private Bill’.
These are Bills that affect specific persons, groups, organisations or localities.
Define ‘Hybrid Bill’.
Hybrid Bills are so called because they address both public and private matters.
These are Bills that affect the general population, but will have an increased effect upon specific persons, groups, organisations or localities
What is meant by a ‘Commencement Order’?
When other sections of an Act are often brought into force later via the passing of a type of subordinate legislation (Commencement Order).
What are the five Stages of a Bill?
- First Reading - The title of the Bill is read out, and an order is made for the Bill to be printed. No vote takes place, and so all Bills will pass the first reading.
- Second Reading - The MPs will debate the Bill (although no amendments can be made) and will then vote on whether the Bill should proceed. If the vote passes, it will proceed to the committee stage.
- Committee Stage - The Bill will be passed to a committee of MPs, who will scrutinise the Bill and propose amendments.
- Report Stage -The committee reports to the House on any amendments made to the Bill.
The House will debate these amendments and may add new clauses or make amendments to existing clauses. - Third Reading - The third reading normally takes place immediately following the report stage. Here, further debate may occur, but amendments cannot be made. Following the debate, the House votes on the Bill. If the vote passes, the Bill can proceed to the House of Lords.
The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘presumptions’ and how do the courts use this function?
Presumptions: The courts have created several presumptions to help them interpret legislation (e.g. it is presumed that statute will not affect cases that arose before the statute was passed, unless it states otherwise.
The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘Intrinsic aids’ and how do the courts use this function?
Intrinsic aids refers to the courts using aids within the statute itself (e.g. the Preamble, the long title, headings).
The judiciary is assisted in its interpretive function in several ways. Describe what is meant by ‘Extrinsic aids’ and how do the courts use this function?
Extrinsic aids: The courts can use certain material outside the statute, including dictionaries, academic texts,
official reports and, in certain cases, the records of Parliamentary debates (known as ‘Hansard’). In addition,
modern Acts each come with Explanatory Notes, which can be used to interpret the accompanying Act. Finally, the Interpretation Act 1978 provides definitions of terms that commonly appear in statute.
List the three canons of interpretation.
- The literal rule
- The golden rule
- The mischief rule/purposive approach
What is meant by the literal rule?
The literal rule provides that the words of a statute should be given their ordinary, everyday, grammatical meaning or, as Lord Esher stated ‘[i]f the words of an Act are clear, you must follow them even though they lead to a manifest absurdity’.
What is the golden rule?
The golden rule was created by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61, where he stated ‘the
grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity … in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity … but no farther.’ As a result, the courts will no longer use the literal rule if its application produces an absurdity, and may instead use the golden rule.
What is the mischief rule/purposive approach
The mischief rule provides that where legislation was enacted to remedy a particular mischief, the courts will interpret that legislation in a way that remedies that mischief.
The court should look beyond the literal meaning of the words and examine the purpose and intention behind the statute. The Mischief Rule allows courts to consider the historical background of the statute and evaluate its purpose and intent.
Define the doctrine of precedent.
This means certain cases are decided based upon the principles derived from prior cases.
The doctrine of precedent is the custom of the courts to stand by previous decisions, so that once a point of law is decided upon by a court, then the same law must be applied to future cases with materially similar facts. The doctrine of precedent is often referred to as ‘stare decisis’.
What are the three levels of precedent?
- Binding precedent: Where a precedent is binding, then it must be followed by courts that are bound by that precedent, unless the precedent can be distinguished. For example, the general rule is that precedents established by higher courts must be followed by lower courts.
- Persuasive authority: Certain precedents are not binding and so need not be followed, but they do constitute persuasive authority and may be followed. For example, obiter dicta provides persuasive authority.
- No precedent: Certain cases provide no precedent value at all and need not be followed (e.g. decisions of
magistrates’ courts and the County Court).
