Seminar Questions Flashcards
Explain the difference between primary and secondary sources of law. Give two examples of each
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
What are the primary sources of law in the English Legal System
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.
Explain three differences between civil law and criminal law
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
Explain the difference between procedural law and substantive law
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
Explain the difference between private and public law
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
Provide an outline of “the law of equity”. List three examples of equitable remedies
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
Explain what it is meant by parliamentary sovereignty
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
Explain the normal process by which an Act Of Parliament is made and explain the stages
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
Explain the term Royal Assent
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.
Explain the Parliament Act Procedure
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
How did the membership of the EU directly impact the principle of parliamentary sovereignty
Some argue that international law, EW law or human rights law compromises this principle because they impose laws made outside the domestic legislative process
How does the Human Rights Act of 1998 impact, or not, parliamentary sovereignty? What sections of the Humans Rights Act 1998 are relevant
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
Explain the term secondary legislation. List three different types of secondary legislation
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
What are the benefits of secondary legislation? What are the possible dangers posed by the use and existence of secondary legislation
With respect to statutory interpretation, outline and explain the “literal rule”
The ordinary meaning of the words
With respect to statutory interpretation, outline and explain the ‘golden rule’.
Where the ordinary meaning would contradict or limit the intention of Parliament or would lead to an absurdity
With respect to statutory interpretation, outline and explain the ‘mischief rule’
Considering the problem the law is trying to address
A more narrow
With respect to statutory interpretation, outline and explain the ‘purposive approach
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
Explain the difference between intrinsic and extrinsic aids of interpretation. Provide two examples of each
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
Explain the ejusdem generis
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’
Explain the noscitur a sociis
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
Explain the expression unius est exclusion alterius
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
What is meant by a legal presumption? Give one example of a legal presumption
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
Explain the term stare decisis
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
Explain the term Ratio Decidendi
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
Explain the term Obiter Dictum
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
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
Can the Supreme Court depart from its own decisions
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
How, if at all, does the Human Rights Act 1998 impact the doctrine of precedent
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
What are the elements of a criminal offence
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
Is it possible to commit a criminal offence for failing to act
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
Explain the difference between bail and remand
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.
Explain the difference between a summary and an indictable offence
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
What is it meant by an either-way offence
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
What is meant by an Attorney General Reference case
Clarifying the law, its an advisory opinion to clarify a point of law
Outline three reforms introduced in response to the Woolf Review
Recommended a complete overhaul of the Civil Justice System
Unified civil procedure rules for High Court and County Court
Greater case management powers
What is ADR? Give two examples of ADR and explain how they each work
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
There are now four tracks in the civil justice system. What are they?
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
