Seminar Questions

Question 1

Explain the difference between primary and secondary sources of law. Give two examples of each

Answer 1

Primary legislation an act of parliament whereas secondary legislation does not go through the same legislative processes as primary legislation, but it is essential to making and implementing laws.

Primary legislation is an act that has been passed by the parliament and Secondary legislation can make small changes to an act

Primary - Statutes and Case law

Secondary - Books and article

Question 2

What are the primary sources of law in the English Legal System

Answer 2

Statutes and case law are the primary courses of law in the English Legal System

Statutes are laws passed by the UK parliament and developed parliaments.

Question 3

Explain three differences between civil law and criminal law

Answer 3

Criminal law related to crime, things we cant do and if you do them you will be sanctioned, Civil law is everything that is not criminal law

Burden of proof
- Criminal - Typically on the prosecution/the state but it can shift to the defendant where a special defence is raised
- Civil - On the claimant, the person who brings the claim

Standard of proof
- Criminal - Beyond a reasonable doubt
- Civil - On the balance of probabilities (more likely than not that someone breached a contract)

Outcome
- Criminal - Punishment, imprisonment, fine, community service
- Civil - Damages, compensation

Question 4

Explain the difference between procedural law and substantive law

Answer 4

Substantive law is a setup of rules that must be followed for example the law that you cannot murder and if the rule is broken then procedural law comes in.

Procedural law provides a framework on how it can be investigated for example what process should be taken to see if the law is broken

Question 5

Explain the difference between private and public law

Answer 5

Private law is the law that governs the legal relations between individuals, for example, one individual suing another individual.

Public law is the law governing the relation between individuals and the state

Question 6

Provide an outline of “the law of equity”. List three examples of equitable remedies

Answer 6

The law of equity has a distinct identity and distinct characteristics, it is to modify the rigours of the common law since common law was seen as being too harsh and people wanted a different approach. Equity will not assist those who have acted in base conscious

• He who comes to equity must come with clean hands. Furthermore, equity will not assist those who have acted in basic conscience
• Injunction
• Restitution for unjust enrichment

Question 7

Explain what it is meant by parliamentary sovereignty

Answer 7

This is the most important part of the UK constitution, they can change or make any law

This means that the parliament is the supreme legal authority in the UK which means the parliament can create change or end any laws

Parliament can introduce legislation in any area and no parliament can pass laws that future parliaments cannot change

Question 8

Explain the normal process by which an Act Of Parliament is made and explain the stages

Answer 8

First Reading - Purely a formality, no debate Where the bill is published for the first time

Second Reading - debate on general principles and policy, first vote government administer, then the official opposition will respond with their views on the bill

Committee Stage - line-by-lin - examination - Committee inquires Amendments of selection are done at this time

Report Stage - Further amendments may be proposed All MPs can speak and suggest amendments for the bill like a new provision etc, or anything to be added or challenged

Third Reading - The Bill is handed over amendments cannot be made at this stage

Passes to the other house - to follow the stages above again If the bill began in the comments then it will be sent a third reading if it

Consideration of amendments

Royal assent - a formality - note the difference to commencement

Question 9

Explain the term Royal Assent

Answer 9

An act becomes law after receiving royal assent, which is the formal approval of the British monarch. Both the House of Commons and the House of Lords must approve a bill for it to become law.

Question 10

Explain the Parliament Act Procedure

Answer 10

The parliament acts have provided the House of Commons with an advantage

The elected house can overrule or bypass the House of Lords via the Parliament Act

Question 11

How did the membership of the EU directly impact the principle of parliamentary sovereignty

Answer 11

Some argue that international law, EW law or human rights law compromises this principle because they impose laws made outside the domestic legislative process

Question 12

How does the Human Rights Act of 1998 impact, or not, parliamentary sovereignty? What sections of the Humans Rights Act 1998 are relevant

Answer 12

It does not impact parliamentary sovereignty

Section 2: A court or tribunal determining a question which has arisen in connection with a convention right must take into account any - judgement, decision, declaration or advisory opinion of the European Court of Human Rights

They have to take into account the decision of the European Court of Human rights

Section 3: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights

They always need to try to find a meaning that will uphold people’s rights, if they do not think it possible they have the option to make a declaration of compatibility, meaning they can make a statement saying a part of the law is incompatible with the human rights

Section 4: If the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility

Question 13

Explain the term secondary legislation. List three different types of secondary legislation

Answer 13

Secondary legislation is legislation that does not go through the same legislative process as primary legislation but is essential to making and implementing law

Statutory rules, regulations and orders

Question 14

What are the benefits of secondary legislation? What are the possible dangers posed by the use and existence of secondary legislation

Question 15

With respect to statutory interpretation, outline and explain the “literal rule”

Answer 15

The ordinary meaning of the words

Question 16

With respect to statutory interpretation, outline and explain the ‘golden rule’.

Answer 16

Where the ordinary meaning would contradict or limit the intention of Parliament or would lead to an absurdity

Question 17

With respect to statutory interpretation, outline and explain the ‘mischief rule’

Answer 17

Considering the problem the law is trying to address
A more narrow

Question 18

With respect to statutory interpretation, outline and explain the ‘purposive approach

Answer 18

In considering the purpose of legislation, the courts may consider:

• The legislation itself
• The explanatory notes
  -Consultation paper

And it’s debated in the House of Parliament

It’s contextual and purposive. One looks at the purpose of the law rather than just the words of the law

Question 19

Explain the difference between intrinsic and extrinsic aids of interpretation. Provide two examples of each

Answer 19

Intrinsic aids
Courts will look beyond the wording of a provision to other parts of the statute
Long title
1. Section description (marginal notes) titles or different parts of the legislation
2. Definitions in the legislation itself

Extrinsic aids
Courts will look beyond the statute to other sources that are part of the legislative process, other statutes or academic writing
1. Explanatory notes - support public awareness and public explanation
2. Parliamentary material

Question 20

Explain the ejusdem generis

Answer 20

Ejusdem generis means ‘of the same type’

If wondering with general meaning (‘or any other goods’) follows a list of specific words in a statute, then the general wording applies to things of the same type as the specific words

For example, the Customs Consolidation Act 1876 reads: ‘The importation of arms, ammunition, gunpowder, or any other goods may be prohibited’

Question 21

Explain the noscitur a sociis

Answer 21

Noscitur a sociis means ‘known by the conpany it keeps’

Words in a statute derive meaning from the words around them. The provision should be read in the context of its neighbouring provisions

presumed that a word should have the same meaning throughout the act unless the legislation says the word should be interpreted differently

Question 22

Explain the expression unius est exclusion alterius

Answer 22

Expressio unius exclusion alterius means “to express one thing is to exclude another

If there are only specific words, then the list is considered exhaustive

For example, section 2(3) of the Immigration Act 11983 states that the meaning of ‘parent’ in section 2(1) includes the mother of an illegitimate child. This means that the more general term parent is to be limited to mothers

Question 23

What is meant by a legal presumption? Give one example of a legal presumption

Answer 23

An assumption that a fact exists based on the known or proven existence of some other fact or group of facts

For example: A child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof it is not

Question 24

Explain the term stare decisis

Answer 24

This means let the decision stand ‘stand by’ and adhere to the decision

Once a principle of law is decided in a superior court - it must be followed in future (similar) cases in courts of equal or lower status

Bind by precedent and bind by lower courts

People should be treated alike - why it is important

Question 25

Explain the term Ratio Decidendi

Answer 25

This is the ratio of a case - the legal reasoning or legal principle or rule - forms the binding precedent

The reason for that decision

The last point is the ratio

Question 26

Explain the term Obiter Dictum

Answer 26

This can be translated as things said in passing

Some judges may say the following comments are given in addition to the ratio however obiter dictum may become important parts of legal reasoning in subsequent case law

Opposite of the ratio

“Oh by the way” decision

Can become more important than the ratio itself in future cases

It is not binding it is persuasive

Question 27

The system of precedent depends on there being a hierarchy of courts. Outline the hierarchy of both the criminal and civil court structure within the English Legal System

Question 28

Can the Supreme Court depart from its own decisions

Answer 28

It is the final court of appeal so its decisions are binding on all lower courts. It can depart from its own case law ‘when it appears right to do so’. It is selective and hears cases of general public importance

Practice Statement of 1966 is where this rule comes from that the Supreme Court can depart from its own decisions

Question 29

How, if at all, does the Human Rights Act 1998 impact the doctrine of precedent

Answer 29

It is an act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights

Section 2 - The court or tribunal determining a question of human rights must take in the doctrine of precedent

Section 2 says courts must “take into account” so they still have some leadway

Question 30

What are the elements of a criminal offence

Answer 30

Actus reus - This is the guilty act, the unlawful conduct, failure to act is called omission to act

Mens Rea - This is the guilty mind - This describes the state of mind that the defendant must have had when completing the state of mind that the defendant must have had when completing the act or omission

No defence - Ensure there are no defences for example self-defence
Required two elements
- Acted with an honest belief
- The force used was a reasonable response

Question 31

Is it possible to commit a criminal offence for failing to act

Answer 31

Yes, failing to act is called omission to act and this could be you failing to follow through with the terms of a contract which could still be a criminal offence but your failing to act and uphole to the contract you agreed to

Question 32

Explain the difference between bail and remand

Answer 32

Bail is when an individual is released from custody while waiting for their trial to take place, as opposed to remnd this is for more serious offences and the individual has to wait in custody while awaiting trial.

Question 33

Explain the difference between a summary and an indictable offence

Answer 33

A summary offence can be tried in the Magistrates Court and these are less serious criminal offences for example common asssault, driving offence

An indictable offence is more serious and must be resolved in the Crown Court, an example of this is a violent offence like murder

Question 34

What is it meant by an either-way offence

Answer 34

Either way, the offence is in the middle of a summary or indictable offence. These can be tried in either the Magistrates Court or Crown Court. An example of either offence is theft.

The defendant has a choice, only if it’s on the minor end. Magistrates are judge’s decision, crown court is a jury

Question 35

What is meant by an Attorney General Reference case

Answer 35

Clarifying the law, its an advisory opinion to clarify a point of law

Question 36

Outline three reforms introduced in response to the Woolf Review

Answer 36

Recommended a complete overhaul of the Civil Justice System

Unified civil procedure rules for High Court and County Court

Greater case management powers

Question 37

What is ADR? Give two examples of ADR and explain how they each work

Answer 37

ADR stands for Alternative Disputes Resolution

Mediation - This is when you have a neutral person to help us reach an agreement

Arbitration - This is where you go to a third party to make a decision about your disputes, it’s not the court it is a private management and you’re bound to follow the decision they make

They are binding unless there have been serious reasons, corrupt

Arbitration can give rights to conflict of interest

Question 38

There are now four tracks in the civil justice system. What are they?

Answer 38

Small Claims Track - The financial value of the case is less than £10,000

Fast Track - More than £10,000 but less than £25,000

Intermediate Track - Normal track for claims between £25,000 and £100,000

Multi-Track - More than £25,000