Sources of Law Flashcards

Question

How does a Bill become an act in Scotland?

Answer 1

``` 1. PRE-STAGE : highest law office in Scotland -look at it so parliament is not exceeding their responsibility 2. STAGE 1 • Committee considers general principles of the Bill • Parliament looks at report and considers general principles of Bill • Decides if agrees with general principles 3. STAGE 2 • Committee examines each section and makes amendments 4. STAGE 3 • Parliament passes or rejects Bill 5. POST-STAGE • Highest law office looks at it again, so its correct 6. Royal Assent ``` The Scottish Bill procedure involves a lot more scrutinity, where in Law has to just pass both houses. The key is to ensure openness and encourage participation.

Answer 2

Legislation promoted by individuals outside Parliament who petition Parliament. Rate and usually used by local authorities. Private member's legislation - MP's Introduction of Bills in the purpose of changing laws applying to general population

Answer 3

``` Delegated legislation is law that is not passed by an Act of Parliament but by a government minister, a delegated person or an entity in the United Kingdom. ... Although a large volume of delegated legislation is written without close parliamentary scrutiny, there are Statutory Instruments to prevent its misuse. Allows passing of laws quicker in emergency cases E.g. foot and mouth disease 2007. Forms of these: Statutory Instruments (UK/Scottish regulations), Local authority BY-Laws, Actus of Sederunt - Regulate court of session and sheriffs court and Acts of adjournal - regulate high courts ```

Answer 4

A commercial, cost effective and confidential method of resolving disputes. With the Arbitration (Scotland) Act (2010), Scotland has a modern, Innovative Arbitration regime

Answer 5

Finding out true meaning of a statute, especially when words have many meanings and uncertain due their scope/application and there is room for interpretation. Two Approaches 1) Narrow, Strict, Literal approach (doesn't happen in Civil legal system) 2) Wide, Purposive approach

Answer 6

Follow previous judgements by higher courts, court decision either follow existing legal principles, extend or lay down rules. (Those principles are created by judges to explain their decision in a case)

Answer 7

The rule of law on which judicial decision is based. Essentially the reason for the decision. (Court has to follow previous decisions made by a court) To find it: look analytically to find the relevant facts of the case and what was the decision, identify the precise legal rules applied. This analysis produces the RATIO DECIDENDI, not the actual decision. Note; these things need to be present in order to claim to happen, this reasoning process is ratio decidendi. The reasons necessary to support the actual decisions in real cases are applied, In cases that are distinguishable from that case on their essential facts. Only the ratio is binding on later 'in point' cases. Ratio is matter of interpretation itself, sometimes hard to identify

Answer 8

Obiter dictum is Latin phrase meaning "by the way", a remark in a judgement that is "said in passing". NOT PART OF RATIO Nor binding, but can be persuasive. Technically, all the other reasoning they come up with but not the heart of the matter.

Answer 9

Courts must stand by what has already been decided. HIERARCHY OF COURTS

Answer 10

Influenced by Civil/Roman Law traditions, Codifications/Statement of law (if not contradicted by legislation taken by courts as ascertaining law. Their authority depends by the recognition by the courts and whose writing. May be relatively influential despite of the age. Usually weight given in Inner House decisions. E.g. Lord Stair's: The institutions of the law of Scotland 1681. & Baron Hume's Commentaries on the Law of Scotland Respecting Crimes (1797). Foreign influential examples: Domat, traite des loix: les loix civiles dans leur ordre naturel 1689 and Pothier, Traite des obligations 1761.

Answer 11

Not sure: two brothers made trustees under their father's trust-disposition. After fathers passing, they got into a fight due to owned money and withheld trustees due to their debts.

Answer 12

Course of conduct over time gaining weight of a law. Unlikely to create a law, but one of the foundations of law. MUST BE PROVEN AND CONDITIONS FULFILLED. Exception to, yet consistent with existing law, definite, certain and regularly practised. Fair and reasonable, accepted and followed for a long period of time. Can lose authority by contrary usage

Answer 13

Remedy in line with natural justice, court grands remedy where none exists. Equity means fairness, reasonableness. In Scotland the equitable jurisdiction of the High Court of Justiciary or the Inner House of the Court of Session to give remedy where none would otherwise be available. To soften/harden the law when under such unforeseen circumstances that see the law doesn't exist or would be unreasonable.

Answer 14

Scots law: The equitable discretion of the Court of Sessions to afford relief in cases where none is possible at law

Answer 15

An electoral registration officer wrongly deleted the names of prospective names from the draft electoral register. There were no common law or statutory remedy available which would allow the names to be placed back to the register. Therefore, in the interests of justness and fairness, the court invoked the nobile officium and ordered the names to be reinstated

Answer 16

HC may declare certain acts as to be criminal in nature when previously they were not. This is known as the Declaratory power or the HCJ. In Khaliq, a shop keeper was prosecuted for selling glue-sniffing kits to the kids. The named offence was unknown to Scots criminal law, but the HCJ decided that the behaviour was exceptionally harmful and should be criminalised. This is hardly used nowadays, but gives flexibility in extreme cases.

Answer 17

Something illegal before it is illegal on the paper. Definition of retroactive law: A law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law

Answer 18

International Obligations not implemented into national legislation. e.g. Human rights treaties, Administrative Guidance such as Codes of practice, highway code and professional codes of practice - press complaints commission. These are enforced though indirect means, usually used as interpretation guide.

Answer 19

Work it out

Answer 20

Name and describe.

Answer 21

Roman/Civil Law. Any laws passed in EU, statutes - Acts of Parliament, Scottish Acts from Scottish parliament Legal rules, encyclopaedic approach with reasoning. Originating from ancient Rome. Includes Delicated legislation REMEMBER ROYAL PROVOCATIVE - Her Majesty has the power to create or revoke laws, Ceremonial power that is underlying

Answer 22

Case law - precedent, principle that courts follow the ruling from previous legal cases, either binding or persuasive for a court or tribunal when deciding subsequent cases with similar issues or facts. More flexible and open to interpretation.

Answer 23

Work it out.