Sources of Law Flashcards
What is the most supreme form of law in the UK?
Statute law.
-Prevails over every other form of law.
-The highest form of law in this country.
Where does statute law come from?
Parliament, a product of the legislative process
-Acts of parliament
What is statute’s law relationship to other forms of law?
-Can overturn decisions of the courts.
-Courts cannot overturn statute
What did Lord Simon say about statute law?
The courts in this country have no power to declare enacted law to be invalid.
What are exceptions in statute law?
-Constitutional statutes
-Devolved legislation (democratic legitimacy, acts of Scottish Parliament).
What is common law?
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
What does Ratio decidendi mean?
‘Rationale for the decision’
-Reasoning in case, driving final judgement.
What does obiter dicta mean?
‘That which is said in passing’
-Incidental statement
Where does common law come from?
-The decisions of courts
-Historical iteration of legal principle.
What is common law inferior to?
Statute.
-Courts can interpret statutes, not overturn them.
Common Law: what is its relationship to other sources of law?
-Must pay attention to the judgements of more senior courts.
-May overturn judgements of lower courts.
-Consideration/respect to precedents.
What is the royal prerogative?
-Powers belonging to the crown.
-Uncodified, yet written.
-Neither statute law, nor judge made law.
Who exercises the royal prerogative?
HM Government or HM King.
Where does Prerogative come from?
-Historically belonged to sovereign.
-Residue of legal powers following 1688 Glorious Revolution.
Prerogative: Relationship to other sources of law?
-Subordinate to statute.
-Reviewable by courts.
Where does devolved legislation come from?
Devolved legislatures.
What is devolved legislation?
Made by devolved legislative institutions (Scottish Parliament) under devolution acts (Scotland act 1998)
Devolved legislation: relationship to other sources of law?
-Subordinate to acts of UK parliament.
-Subject to limited reviews by the court, reviewable and voidable.
What is delegated/secondary legislation?
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.
What is delegated legislation subordinate to?
Primary legislation.
Delegated legislation is produced by?
Produced by the government under authority granted by parliament.
Where does delegated legislation come from?
Public body/government department.
-Approved by parliament via negative/affirmative resolution process.
-Certain types of secondary legislation do not require parliamentary approval to pass.
What is human rights?
Rights belonging to humans by virtue of them being human beings.
What civil and political rights does human rights law cover?
Freedom of expression, right to privacy, right to life.
What economic, social and cultural rights does human rights law cover?
Rights to shelter, food, water, education, family, heritage.
What rights do we have in the UK?
Civil and political rights.
Where does human rights law come from?
Inalienable rights.
-International treaties
-Domestic legislation.
-Common law.
What is the domestic legislation?
Human rights act 1998
What are some international treaties?
-European convention on human rights.
-UN Declaration of Human Rights.
-The ICCPR (the international covenant on civil and political rights)
What is common law?
The presumption of innocence.
What system is the UK?
Dualist -treaty obligations do not automatically form part of its internal legal order.
What is equity?
-Originally separate to common law.
-Originated in court of Chancery.
Where does equity come from?
Judge made law, maxims of equity.
Equity: what is its relationship to other sources of law?
-When there is conflict between conflict and equity, the latter prevails.
-Inferior to statute
What is books of authority/secondary sources?
Expressions, explorations and explanations of:
-Legal concepts and practices.
Where does secondary sources come from?
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)
What is the constitution?
Rule book, how it is played, who can play it , how rules are enforced, how breaches are penalised.
What is constitutional principles?
The separation of powers, the rule of law/legality.
What are conventions?
-Largely uncodified
-Non-legal rules regulating the behaviour of legal and political actors.
Where do principle conventions and rules come from?
History
-Holds everything together
-Framework for the operation of law.
What is the primary point of reference for rules governing parliamentary procedure?
Erskine May, parliamentary practice.
The statutory powers, authorising government to make amendments to statute, are named after who?
Henry VIII
Rank the sources of law in order of supremacy (highest to lowest)
1) Statutory
2) Common law
3)Royal prerogative
In which case does Lord Simon explain that courts may not overturn acts of parliament?
British railways Broad v Pickin (1974)
Which court developed equity?
The court of chancery
What can secondary legislation be overturned by?
Decisions of the courts
What is the common law product of?
The decisions of the courts.
What are names for the superior form of law produced by parliament?
-Statute
-Primary legislation
-Secondary legislation
-Crown legislation
-Acts of parliament
What is the European convention on Human Rights? (ECHR)
International human rights treaty that protects the rights of everyone in the 46 states that belong to the council of Europe.
When was the council of Europe founded?
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.
What does common law mean?
Judge made law
-Originated in the King’s courts
-Flexible
How is equity law different to common law?
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.
What is administered by the same courts?
Common law and equity
What are the person/people who own the property called?
Trustee -legal owners
-When using trust property, equity will hold them to account.
What is the person who has the benefit of the property called?
Beneficiary -beneficial owners
What is the difference between common law and civil law?
Civil law has no doctrine of binding precedent.
What is a monist system?
International and domestic laws exist on a single plane
What is a dualist system?
The domestic and international legal systems exist in two separate realms
What is an act of parliament?
Domestic law.
Incorporating the terms of an international treaty into an act of parliament brings it into the domestic plane.
What is royal prerogative?
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.
What is a monist system?
An international treaty is immediately incorporated into national law. If national law contradicts international it is void.
What is a dualist system?
Emphasises the difference between national and international law. International law must be accepted by national law for incorporation.
In a dualist system how must international law be accepted?
Either through legislation or by judges through common law.
Is UK monist or dualist?
Dualist - international and national law exist on separate planes.
What are the Henry VIII clauses?
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.
Why is the clause named after Henry VIII?
He preferred legislating directly through proclomation rather than through Parliament.
What does prerogative not require?
Parliamentary authority.
What are examples of prerogative power?
Power to appoint and dismiss ministers and to prorogue parliament.
What cannot be made?
New prerogative powers.
What is delegated legislation?
Subordinate or secondary legislation, it refers to process where legislative authority is transferred from higher body to lower body.
What does delegated legislation allow?
Higher legislative body to focus on more significant issues, whilst lower body can concentrate on finer details and regulations.
-Delegating specific legislative responsibilities.
What form can delegated legislation take?
-Statutory instruments
-Byelaws
-Orders in Council
Who generates byelaws?
Local authorities and certain public corporations.
What are byelaws?
Laws of local or limited application made by local councils or other bodies,
