Seminar Questions Flashcards
Explain the difference between primary and secondary sources of law? Give two examples of each
Primary sources of law are laws passed by the legislative bodies of the UK (Acts of parliament)
- Ex; Case Law and Legislation
Secondary Sources of law is not what the law is but how it is interpreted
- ex; books of authority or peer reviewed journal articles
What are the primary sources of law in the ELS?
the primary sources of law include legislation (the law) and case law (judical opinions and court rulings)
Explain three differences between civil law and criminal law
- in civil law the parties involved usually include individuals or institutions whereas in criminal it is the government (crown) prosecuting an individual
- in civil law disputes usually end up with compensation as punishment whereas in criminal law the dispute will usually end in in imprisonment or probation.
- civil courts are focused on compensation whereas criminal law is focused on punishment and maintaining public safety
Explain the difference between procedural law and substantive law
substantive law sets out the rule that must be followed
- focuses on law itself such as what behaviours are permitted and prohibited
Procedural Law provides a framework for when someone breaks substantive law and what should be done about it
- dictates the steps involved in enforcing substantive law
Explain the difference between private law and public law
Private law governs relationships between individuals
- duties by on individual to another
- Protect individuals rights and interests
Public law governs relations between individuals and the state
- Focuses on regulating society by making sure government actions are lawful
Provide an outline of ‘the law of equity’ List three examples of equitable remedies
Its function is to modify the harshness of common law
Examples;
- Specific performance
- Injunctions
- Rescission
Explain what is meant by parliamentary sovereignty
- Parliament is the legal authority in the UK
- Meaning parliament can create or change or end any law
- Ensures parliament is the highest legal authority
Explain the normal process by which an Act of Parliament is made (be able to list all stages)
- First Reading
- Purely a formality no debating
- Formal introduction
- bill is published for the first time - Second reading
- Government minister or MP responsible for the bill - Committee Stage
- Line by line examination
- committee inquires - Report Stage
- Further amendments may be proposed
- Could suggest a new provism or amendment
- Add or change things - Third Reading
- Bill is handed over
- An amendment cant be made at this stage - Passes to the other House
- To follow the stage above again
- It will ascend back to a third reading if needed amnedements - Consideration of amendments
- Constraints in making amendments and passing the bill - Final step: royal assent
- Formality
- Different than commencement
Explain the term Royal Assent.
- When the monarch formally approves an act of the legislature
Explain the Parliament Act Procedure.
- Only seven bills have become acts under the parliament act procedure
- The procedure sets out the steps that members of the government must take in order to pass a bill
How did membership of the EU directly impact upon the principle of parliamentary sovereignty?
- because they impose laws made outside the domestic legislative process
- EU membership introduced complexities that constrained sovereignty as parliament had to navigate the obligations and supremacy of EU law
- The tension was an issue leading up to brexit and ultimately leading to the UK’s decision to leave the EU
How does the Human Rights Act 1998 impact, or not, on parliamentary sovereignty? What sections of the Human Rights Act 1998 are relevant?
- Human rights act does not limit parliamentary sovereignty
- The main sections are 2,3 and 4
- Does not undermine parliament’s authority to legislate but encourages the alignment with human rights standards
Explain the term secondary legislation (also referred to as delegated or subordinate legislation). List three different types of secondary legislation.
- secondary legislation refers to laws that are made by an individual or body under powers given to them by an Act of Parliament
- 3 types: Rule, regulation and order
What are the benefits of secondary legislation? What are the possible dangers posed by the use and existence of secondary legislation?
While secondary legislation provides significant benefits in terms of efficiency and specificity, it also poses risks related to oversight and democratic accountability. Striking a balance between the two is crucial to ensure that secondary legislation serves its intended purpose without undermining democratic principles.
With respect to statutory interpretation, outline and explain the ‘literal rule’.
The literal rule – the ordinary meaning of the words
- Aims to promote certainty and predictability in the law
- Adheres to the plain meaning of its implications
With respect to statutory interpretation, outline and explain the ‘golden rule’.
The golden rule is one of the rules of statutory interpretation– where the ordinary
meaning would contradict or limit the intention of Parliament or would lead to an absurdity
- Allows the court to look at all the options after the literal rule and look at what one is the most sensible
With respect to statutory interpretation, outline and explain the ‘mischief rule’.
The mischief rule – considering the problem the law is trying to address.
- Look at the common law before the statute and understand what the problem was that the statute was trying to solve
- Much narrower
–> Ensures the law is applied in a manner that effectively addresses the specific issues
the legislature intended to remedy, thereby promoting justice and fairness
With respect to statutory interpretation, outline and explain the ‘purposive approach’.
To ensure that statutes are applied in a way that aligns with the legislative intent and effectively addresses the issues the law is meant to resolve.
- Case: pepper v hart
Tax law case about teachers who work at private schools get taxed on
