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introduction programme > Sources of Law > Flashcards

Sources of Law Flashcards

1
Q

What is the most supreme form of law in the UK?

A

Statute law.
-Prevails over every other form of law.
-The highest form of law in this country.

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2
Q

Where does statute law come from?

A

Parliament, a product of the legislative process
-Acts of parliament

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3
Q

What is statute’s law relationship to other forms of law?

A

-Can overturn decisions of the courts.
-Courts cannot overturn statute

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4
Q

What did Lord Simon say about statute law?

A

The courts in this country have no power to declare enacted law to be invalid.

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5
Q

What are exceptions in statute law?

A

-Constitutional statutes
-Devolved legislation (democratic legitimacy, acts of Scottish Parliament).

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6
Q

What is common law?

A

Narrowly case law, yet widely covering immutable legal principles.
-Government under law
-Liberty of the subject

Precedents (previous case/legal decision) established in case law
-Ratio decidendi
-Obiter dicta

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7
Q

What does Ratio decidendi mean?

A

‘Rationale for the decision’
-Reasoning in case, driving final judgement.

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8
Q

What does obiter dicta mean?

A

‘That which is said in passing’
-Incidental statement

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9
Q

Where does common law come from?

A

-The decisions of courts
-Historical iteration of legal principle.

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10
Q

What is common law inferior to?

A

Statute.
-Courts can interpret statutes, not overturn them.

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11
Q

Common Law: what is its relationship to other sources of law?

A

-Must pay attention to the judgements of more senior courts.
-May overturn judgements of lower courts.
-Consideration/respect to precedents.

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12
Q

What is the royal prerogative?

A

-Powers belonging to the crown.
-Uncodified, yet written.
-Neither statute law, nor judge made law.

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13
Q

Who exercises the royal prerogative?

A

HM Government or HM King.

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14
Q

Where does Prerogative come from?

A

-Historically belonged to sovereign.
-Residue of legal powers following 1688 Glorious Revolution.

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15
Q

Prerogative: Relationship to other sources of law?

A

-Subordinate to statute.
-Reviewable by courts.

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16
Q

Where does devolved legislation come from?

A

Devolved legislatures.

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16
Q

What is devolved legislation?

A

Made by devolved legislative institutions (Scottish Parliament) under devolution acts (Scotland act 1998)

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17
Q

Devolved legislation: relationship to other sources of law?

A

-Subordinate to acts of UK parliament.
-Subject to limited reviews by the court, reviewable and voidable.

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18
Q

What is delegated/secondary legislation?

A

Specific rules giving effect to general acts, made by central government/public authority.
-Statutory instruments (secretaries of state), byelaws and compulsory purchase orders (local authorities).
-Laws made by people or bodies acting under authority.

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19
Q

What is delegated legislation subordinate to?

A

Primary legislation.

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20
Q

Delegated legislation is produced by?

A

Produced by the government under authority granted by parliament.

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21
Q

Where does delegated legislation come from?

A

Public body/government department.
-Approved by parliament via negative/affirmative resolution process.
-Certain types of secondary legislation do not require parliamentary approval to pass.

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22
Q

What is human rights?

A

Rights belonging to humans by virtue of them being human beings.

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23
Q

What civil and political rights does human rights law cover?

A

Freedom of expression, right to privacy, right to life.

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24
Q

What economic, social and cultural rights does human rights law cover?

A

Rights to shelter, food, water, education, family, heritage.

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24
Q

What rights do we have in the UK?

A

Civil and political rights.

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25
Q

Where does human rights law come from?

A

Inalienable rights.
-International treaties
-Domestic legislation.
-Common law.

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26
Q

What is the domestic legislation?

A

Human rights act 1998

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26
Q

What are some international treaties?

A

-European convention on human rights.
-UN Declaration of Human Rights.
-The ICCPR (the international covenant on civil and political rights)

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26
Q

What is common law?

A

The presumption of innocence.

27
Q

What system is the UK?

A

Dualist -treaty obligations do not automatically form part of its internal legal order.

28
Q

What is equity?

A

-Originally separate to common law.
-Originated in court of Chancery.

29
Q

Where does equity come from?

A

Judge made law, maxims of equity.

30
Q

Equity: what is its relationship to other sources of law?

A

-When there is conflict between conflict and equity, the latter prevails.

-Inferior to statute

31
Q

What is books of authority/secondary sources?

A

Expressions, explorations and explanations of:
-Legal concepts and practices.

32
Q

Where does secondary sources come from?

A

Famous legal texts:
-Coke’s Institutes (17th)
-Blackstone’s commentaries (18th century)
-Dicey’s introduction to the study of the law of the constitution (19th century)

33
Q

What is the constitution?

A

Rule book, how it is played, who can play it , how rules are enforced, how breaches are penalised.

34
Q

What is constitutional principles?

A

The separation of powers, the rule of law/legality.

35
Q

What are conventions?

A

-Largely uncodified
-Non-legal rules regulating the behaviour of legal and political actors.

36
Q

Where do principle conventions and rules come from?

A

History
-Holds everything together
-Framework for the operation of law.

37
Q

What is the primary point of reference for rules governing parliamentary procedure?

A

Erskine May, parliamentary practice.

38
Q

The statutory powers, authorising government to make amendments to statute, are named after who?

A

Henry VIII

39
Q

Rank the sources of law in order of supremacy (highest to lowest)

A

1) Statutory
2) Common law
3)Royal prerogative

39
Q

In which case does Lord Simon explain that courts may not overturn acts of parliament?

A

British railways Broad v Pickin (1974)

40
Q

Which court developed equity?

A

The court of chancery

41
Q

What can secondary legislation be overturned by?

A

Decisions of the courts

42
Q

What is the common law product of?

A

The decisions of the courts.

42
Q

What are names for the superior form of law produced by parliament?

A

-Statute
-Primary legislation
-Secondary legislation
-Crown legislation
-Acts of parliament

43
Q

What is the European convention on Human Rights? (ECHR)

A

International human rights treaty that protects the rights of everyone in the 46 states that belong to the council of Europe.

44
Q

When was the council of Europe founded?

A

After World war II to protect human rights, rule of law and to promote democracy.

-States choose whether to ratify the protocols or not.
-UK violated it, prohibited the reporting of thalidomide taken during pregancy.
-Banning prisoners from voting in elections.

45
Q

What does common law mean?

A

Judge made law
-Originated in the King’s courts
-Flexible

46
Q

How is equity law different to common law?

A

Geared more to produce results that were consistent with what was thought to be good conscience

Whilst common law can offer damages, in unique subject matters (painting) equity has a remedy (specific performances) where the contract is obliged to take place, failure to comply will result in going to court/prison.

47
Q

What is administered by the same courts?

A

Common law and equity

48
Q

What are the person/people who own the property called?

A

Trustee -legal owners

-When using trust property, equity will hold them to account.

49
Q

What is the person who has the benefit of the property called?

A

Beneficiary -beneficial owners

50
Q

What is the difference between common law and civil law?

A

Civil law has no doctrine of binding precedent.

51
Q

What is a monist system?

A

International and domestic laws exist on a single plane

52
Q

What is a dualist system?

A

The domestic and international legal systems exist in two separate realms

53
Q

What is an act of parliament?

A

Domestic law.

Incorporating the terms of an international treaty into an act of parliament brings it into the domestic plane.

54
Q

What is royal prerogative?

A

Legal powers left to the monarch and subsequently the democratic government of the country.
-Not judge made or statutory law.
-Use can be scrutinised and overruled by the courts.
-It cannot grow, it can only shrink, only put to uses it has historically been involved in.

55
Q

What is a monist system?

A

An international treaty is immediately incorporated into national law. If national law contradicts international it is void.

56
Q

What is a dualist system?

A

Emphasises the difference between national and international law. International law must be accepted by national law for incorporation.

57
Q

In a dualist system how must international law be accepted?

A

Either through legislation or by judges through common law.

58
Q

Is UK monist or dualist?

A

Dualist - international and national law exist on separate planes.

59
Q

What are the Henry VIII clauses?

A

Power to amend Acts of Parliament by order. They are clauses in a bill which allow ministers to amend or repeal provisions in Act of Parliament through secondary legislation. Yet can shift power to executive.

60
Q

Why is the clause named after Henry VIII?

A

He preferred legislating directly through proclomation rather than through Parliament.

61
Q

What does prerogative not require?

A

Parliamentary authority.

62
Q

What are examples of prerogative power?

A

Power to appoint and dismiss ministers and to prorogue parliament.

63
Q

What cannot be made?

A

New prerogative powers.

64
Q

What is delegated legislation?

A

Subordinate or secondary legislation, it refers to process where legislative authority is transferred from higher body to lower body.

65
Q

What does delegated legislation allow?

A

Higher legislative body to focus on more significant issues, whilst lower body can concentrate on finer details and regulations.

-Delegating specific legislative responsibilities.

66
Q

What form can delegated legislation take?

A

-Statutory instruments
-Byelaws
-Orders in Council

67
Q

Who generates byelaws?

A

Local authorities and certain public corporations.

68
Q

What are byelaws?

A

Laws of local or limited application made by local councils or other bodies,

introduction programme (3 decks)

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