Sources of law Flashcards
What is the role of judges in developing the law?
Judges develop the law by applying established legal principles to new situations. They establish principles, known as ‘ratio’, that can be applied to other cases. They also make ‘obiter dicta’ or incidental remarks, which may or may not be significant depending on the facts of the case and the seniority of the tribunal.
What is the purpose of royal assent in the legislative process?
Royal assent is the formal approval by the Monarch that an Act of Parliament receives before becoming law.
What is secondary legislation and how is it created?
Secondary legislation, also known as ‘subordinate’ legislation, is law created by ministers or other bodies under powers given to them by a parent Act of Parliament. It is used to fill in the details of primary legislation and provides practical measures for enforcing and operating the law in daily life.
How do the rules of precedent affect lower courts?
The rules of precedent mean that, in general, lower courts are bound to apply the judgments of the senior courts. This ensures consistency and uniformity in the application of the law.
What does it mean for a court to follow a decision?
When a court considers the facts of a case to be so similar to those in an earlier case that the law in the earlier case should be followed, it can be said to be following the decision in that case. If the court doing the ‘following’ is a higher court, then the later decision is also said to be approving the earlier one.
What are public Acts of Parliament and how are they debated?
Public Acts of Parliament relate to matters of general public concern and are debated in both Houses of Parliament. Any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is known as lobbying.
What is the relationship between equity and common law after the fusion of the common law courts and the Court of Chancery?
Despite the formal fusion of the common law courts and the Court of Chancery in the 1870s, the conceptual distinction between common law (legal) rights and equitable (or beneficial) rights remains crucial to the law overall. Equitable remedies are still discretionary in nature, while common law damages are available as of right.
How can a court avoid following a binding precedent?
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish’ the earlier case, by finding a difference in the material facts between the two cases. Finding a fact on which to distinguish an unhelpful or unpopular precedent is part of a judge’s skillset.
What is the difference between public Acts and private Acts of Parliament?
Public Acts of Parliament relate to matters of general public concern, while private Acts of Parliament relate to particular places or particular people. Private Acts usually stem from proposals by large organizations such as local authorities or large private companies seeking specific powers.
What happens when a judgment is reversed or a precedent is overruled?
A judgment is reversed if a case goes to appeal and the higher appeal court disagrees with the lower court. This does not negate a precedent; it simply means the higher court has not applied the law in the same way. A precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead. The original precedent is no longer good law.
What is the difference between a Government Bill and a Private Members’ Bill?
A Government Bill represents the policy of the government of the day and is drafted by the official parliamentary draftsman based on what the government department promoting the Bill wants to bring into law. A Private Members’ Bill is a bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government.
What is the potential problem with a system based on precedent?
One of the potential problems inherent in a system based on precedent is ossification of the law. This refers to the risk of the law becoming rigid and inflexible due to strict adherence to precedent.
What are the stages involved in the legislative process of a Bill?
The stages involved in the legislative process of a Bill include the first reading, second reading, committee stage, report stage, and third reading. If passed, the Bill goes on to the other House for further consideration and ultimately requires royal assent to become an Act of Parliament.
How can the highest appeal court depart from its own precedent?
If today’s highest appeal court (the Supreme Court) wishes to depart from its own precedent in order to modernize or correct the law, it can do so by issuing a Practice Statement (Judicial Precedent). This was formally recognized as being possible in 1966 by the former Appellate Committee of the House of Lords.
What is a declaration in the legal context?
A declaration is a legally binding statement by a court about the legal rights of the parties, the existence of facts, or a principle of law. Courts can make a binding declaration whether or not any other remedy is claimed, although a claim for a declaration alone is unusual.
What is the doctrine of stare decisis?
Stare decisis is a doctrine employed in the English legal system, which means ‘stand by what has been decided’. Once a point of law has been decided by any superior court, it establishes a precedent. Future cases with the same material facts must be decided in the same way. This is different from civil legal systems, where courts focus on interpreting detailed written codes of law rather than interpreting previous decisions.
What exceptions allow the Court of Appeal to depart from precedent?
The Court of Appeal (CA) generally intends to maintain its own precedents, but there are three exceptions: 1) If the CA came to previously conflicting decisions, it can select the one to follow. 2) If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or House of Lords, it need not be followed. 3) If the CA’s previous decision was made per incuriam
What is the structure of Acts of Parliament?
All Acts of Parliament begin with the short title, date, and long title of the Act. They are then divided into parts, which contain different sections. Sections are further broken down into subsections. This structure helps organize the subject matter of the Act for ease of navigation.
What is rectification and when is it used?
Rectification is an equitable remedy that corrects a document to reflect the parties’ contractual intention. It is used to correct mistakes made in recording agreements and applies only in the case of written contracts. Rectification may be used to correct various types of mistakes in the way a transaction is recorded, but it is not available if the errors are too fundamental or extensive.
What parts of a judgment are binding?
A judgment consists of a summary of the facts, statements of law (including ratio decidendi and obiter dicta), and the court’s decision on remedy. The ratio decidendi, meaning ‘reason for the decision’, is the part that is binding on other courts. It is the legal principle or rule on which the court’s decision is based and applied to the material facts of the case.
What are the rules of precedent for different courts?
The rules of precedent can be summarized as follows: Supreme Court - Binding on all inferior courts and itself (subject to 1966 Practice Statement). Court of Appeal - Binding on all inferior courts and itself (subject to Young v BA exceptions). High Court - Binding on all inferior courts and itself (unless there is a powerful reason to depart). Upper Tribunal - Binding on the First Tier Tribunal, inferior courts, and itself. First Tier Tribunal - Not binding but may be persuasive. Family Court, Crown Court, County Court, Magistrates Court - Not binding.
What is the role of Parliament in scrutinizing secondary legislation?
Parliament can either approve or reject a statutory instrument (SI) but cannot amend it. The Joint Committee on Statutory Instruments checks SIs to ensure the law they contain is clear and follows the powers given by the parent Act. The extent of parliamentary scrutiny and the procedures vary depending on the parent Act.
What are the rules of statutory interpretation?
Statutory interpretation is the process of determining what Parliament intended when it enacted a piece of legislation. While there were traditionally seen to be certain rules of statutory interpretation, contemporary judges take a holistic approach and consider both the ordinary meaning of words and the underlying purpose of legislation.
What is case law and its function as a source of law in England and Wales?
Case law refers to the decisions of courts and tribunals and serves as a source of law in England and Wales. It is a body of law developed by judges through the system of precedent, where earlier decisions are binding on later cases with similar facts. Case law helps interpret and apply statutes and fills gaps in legislation.
What is the purpose of linguistic presumptions in statutory interpretation?
Sometimes judges need to apply linguistic presumptions to aid their interpretation of the meaning of statutory language. These presumptions help guide judges in understanding the intended meaning of words in a statute.
What is the role of the courts in examining delegated legislation?
While the courts have no power to invalidate an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the parent Act. If delegated legislation is found to be outside the powers granted by Parliament, the courts can quash it. This ensures that delegated legislation is made within the scope of the parent Act.
