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Law Book 1 > The English Legal System - Introduction (Chapter 1) > Flashcards

The English Legal System - Introduction (Chapter 1) Flashcards

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1
Q

What do these abbreviations stand for?

CJEU
EC
EEC
ECHR
ECtHR
HRA
TFEU
TEU
EWHC
QB

A

CJEU: Court of Justice of the European Union
EC: European Community
EEC: European Economic Community
ECHR: European Convention on Human Rights
ECtHR: European Court of Human Rights
HRA: Human Rights Act 1998
TFEU: Treaty on the Functioning of the European Union
TEU: Treaty on European Union
EWHC: High Court of Justice
QB: King’s Bench Division of the High Court of Justice

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2
Q

Which juristictions are comprised in the UK?

A

England and Wales
Scotland
Northern Ireland

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3
Q

England and Wales are the constitutional successor to what?

A

Kingdom of England

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4
Q

A process of devolution has decentralised some aspects of power in the UK. What happened?

A

A devolved Scottish Parliament and Assemblies in Wales an Northern Ireland were established

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5
Q

Meaning of “devolved”

A

Übertragen (Verantwortung, Macht)

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6
Q

Westminster is often used as a metonym to refer to what?

A

Westminster is often used as a metonym to refer to the Parliament of the United Kingdom, in the Palace of Westminster.

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7
Q

There’s a devolved Scottish Parliament and Assemblies in Wales and Northern Ireland. Does England have a devolved Parliament or Assembly?

A

No, it is ruled directly from Westminster (where the Parliament of the United Kingdom sits).

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8
Q

How could the devolved bodies in Scotland, Northern Ireland and Wales be abolished?

A

The Westminster Parliament could, in theory, repeal the Acts of Parliament on which the devolved bodies base their existence. There is an exception for Scotland.

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9
Q

How could the Scottish Parliament and the Scottish Government be abolished?

A

According to the Scotland Act 2016, the Scottish Parliament and Scottish Government are a permanent part of the United Kingdom’s constitutional arrangement and can only be abolished through a referendum of the people of Scotland.

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10
Q

The Scottish Parliament and the Scottish Government base their existence on what?

A

Scotland Act 2016

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11
Q

Excursion: Timeline of Referendum on Independence

A

June 2016: First referendum, majority of voters voted to stay in UK
June 2022: First Minister of Scotland proposed second referendum in October 2023, subject to confirmation of its legality and constitutionality
November 2022: Supreme Court of the United Kingdom ruled that the Scottish Parliament did not have the power to legislate for a second referendum

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12
Q

What is the “West Lothian Question”?

A

It concerns the question of whether MPs from Northern Ireland, Scotland and Wales who sit in the House of Commons should be able to vote on matters that affect only England, while MPs from England are unable to vote on matters that have been devolved to the Northern Ireland Assembly, the Scottish Parliament and the Senedd (Welsh Parliament).

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13
Q

What is a “mentonym”?

A

A word, name, or expression used as a substitute for something else with which it is closely associated. For example, Washington is a metonym for the US government.

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14
Q

Only devolved body within England
When was it established?
What is special about it?

A

Greater London Authority (GLA), established in 2000
It has greater powers in comparison with other English regional authorities

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15
Q

The Parliament of the United Kingdom is bicameral but has three parts. What does that mean?

A

Parliament is bicameral but has three parts, consisting of the sovereign (King-in-Parliament), the House of Lords, and the House of Commons (the primary chamber).

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16
Q

Which chamber in the United Kingdom Parliament is considered the primary chamber?

A

The House of Commons

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17
Q

What is the Parliament of the United Kingdom?

A

It is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories.

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18
Q

Do the Crown Dependencies and the British Overseas Territories belong to the United Kingdom`?

A

No, but they are subject to the legislative power of the Parliament of the United Kingdom.

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19
Q

What are Standing Orders (in relation to the Parliament of the United Kingdom)?

A

Standing Orders are the written rules which regulate the proceedings of each House.

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20
Q

What is known as the English Votes for English Laws? (EVEL)

A

An amendment to the Standing Orders of Commons in 2015.
Legislation that affected only England required the support of a majority of MPs representing English constituencies.
(Similar to English and Welsh only)
In 2021, the House of Commons abolished EVEL.
Explanation of the leader of the House (Jacob Rees-Mogg): Government is trying to “restore the beauty and uniformity of our constitution so that it will work properly”

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21
Q

When did the UK cease to be a member of the EU?

A

31st January 2020

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22
Q

The UK ceased to be a member of the EU on 31st January 2020. Until when was the UK still bound by EU Law?

A

Until 31st December 2022, this was called the “implementation period”.

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23
Q

For how long was the UK subject to EU law?

A

47 years

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24
Q

Which was the most important act for the UK to leave the EU?

A

European Union (Withdrawal) Act 2018 (EUWA 2018)

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25
Q

What is an example where the UK has chosen to depart from EU law?

A

Agricultural Act 2020

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26
Q

10 Sources of law in the English legal system

A

Common law
Equity
Acts of Parliament
Statutory Instruments
International Treaties
EU Law
Conventions
Works of Authority
Law Making Institutions
Custom

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27
Q

What is common law?

A

A system of laws which evolve through judicial decisions of courts and other tribunals, which bind or influence subsequent judicial decisions

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28
Q

Other names for common law

A

Case law or precedent

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29
Q

Common law is based on which three elements

A

Custom, tradition and/or precedent

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30
Q

What is the principle of stare decisis?

A

The principle that similar cases should be decided according to consistent principled rules so they will reach similar results

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31
Q

How is the the principle that similar cases should be decided according to consistent principled rules so they will reach similar results called?

A

Stare decisis

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32
Q

What is the difference between a “common law system” and common law?

A

A common law system is a legal system that affords significant weight to common law decisions, on the principle that it is unfair to treat similar facts differently on different occasions.

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33
Q

The highest appeal court in England and Wales

A

The Supreme Court of the United Kingdom

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34
Q

Surprising fact about murder in England and Wales

A

It is an offence in common law, not illegal by Act of Parliament

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35
Q

When can courts depart from stare decisis?

A

if the facts and legal issues before the court are fundamentally distinct from all previous cases. This is called a “matter of first impression”

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36
Q

What is the utmost important factor that will decide if court decisions will cause precedent?

A

The seniority level of the court.

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37
Q

If courts’ decisions are not binding, what else can they be?

A

Persuasive.

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38
Q

4 types of law

A

Common law
Constitutional law
Statutory law
Regulatory law

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39
Q

What is common law subject to?

A

Legislation passed by Parliament, which can enact a statute to adjust, override or even reverse a court ruling.

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40
Q

What is a famous example of a statute passed to override a court ruling?

A

The Police (Detention and Bail) Act 2011. It was passed within two days.
The act was passed as an emergency legislation to reverse the High Court’s ruling, where it had ruled that suspects could not be released on bail for more than 96 hours.
It meant that many suspects then on bail would have had to have had their cases reviewed and either released or re-arrested, the latter only being permitted if the police had new evidence.

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41
Q

The ‘detention clock’ used to calculate the time the police are allowed to detain a suspect is based on which act?

A

Police and Criminal Evidence Act 1984

42
Q

What is the argument for the Parliament having a supreme law-making power over courts?

A

The parliament is an elected body and hence has more legitimacy and authority than an unelected, fully-appointed judiciary.

43
Q

What is a “concomitant jurisdiction?”

A

A jurisdiction that uses the same legal principles.

44
Q

What is equity?

A

Equity is a particular body of law that was developed in the English Court of Chancery.

Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a case.

The concept of equity is deeply intertwined with its historical origins in the common law system used in England.

However, equity is in some ways a separate system from common law: it has its own established rules and principles, and was historically administered by separate courts, called “courts of equity” or “courts of chancery”.

45
Q

Equity exists in both civil law and common law, but has evolved differently. What is the difference?

A

In civil law systems, equity was integrated in the legal rules, while in common law systems it became an independent body of law.

46
Q

How do Cambridge and Oxford teach equity?

A

They teach it as a standalone subject.

47
Q

How do equitable remedies differ from legal remedies?

A

Equitable remedies, unlike legal remedies, are granted at the sole discretion of a judge and involve one party doing something (or not) as directed by a court.

48
Q

What is a requirement for a person seeking equitable relief?

A

The person seeking equitable relief must have acted in “good faith in the matter at hand.”

49
Q

What is the historic origin of equity?

A

Equity began to develop hundreds of years ago, when litigants would approach the King and complain of harsh or inflexible rules of common law which prevented “justice” from prevailing. The Lord Chancellor and his court of equity - separate to courts of law at the time - provided remedies in situations in which precedent or statutory law might not apply or be equitable.

50
Q

What are four examples of remedies in equity?

A

Permanent and temporary injunctions (“einstweilige Verfügung, Unterlassungsverfügung, gerichtliche Anordnung”)
Specific performance (“effektive Vertragserfüllung”)
Contract rescission or reformation (“Vertragsauflösung oder Wandelung”)
Trust (“Treuhand”)

51
Q

What is a core principle of the equitable jurisdiction of the court?

A

It applies primarily in personam (“against the person”) rather than in rem (“against the thing”).

52
Q

What is the meaning of in personam und in rem?

A

In personam: Against the person
In rem: Against the thing

53
Q

Different name for Acts of Parliament

A

Statute Law

54
Q

Primary instruments by which law is made in the UK by Parliament

A

Acts of Parliament

55
Q

Most important sources of law in England and Wales

A

Acts of Parliament

56
Q

Who is superior to the law-making power of the Parliament?

A

In theory, nobody

57
Q

What is the principle of parliamentary sovereignity?

A

The Parliament is the ultimate law-making body in the United Kingdom. Nobody, in theory, is superior.

58
Q

What is the sole legal mechanism that can challenge the law-making power of the Parliament?

A

The “declaration of incompatibility” conferred on the courts by the Human Rights Act 1998

59
Q

Parliamentary sovereignty precludes any hierarchy among Acts of Parliament. What does that mean?

A

All parliamentary legislation is, in principle, of equal validity and effectiveness.

60
Q

The parliamentary sovereignty has been challenged by a court decision. Which and what is the result?

A

Lord Justice Laws in Thoburn vs Sunderland City Council [2003] QB 151

There exists a special class of “constitutional statutes” such as
1) the Magna Carta
2) The Human Rights Act 1998
3) the (now repealed) European Communities Act 1972
4) the Act of Union
5) Bill of Rights
which all have a higher status than other legislation.

61
Q

What is the issue with Lord Justice Laws in Thoburn vs Sunderland City Council [2003] QB 151

A

It remains to be seen whether the doctrine of a “special class of constitutional statutes” will be accepted by other judges.

62
Q

What do “obiter dictum” and “ratio decidendi” mean?

A

Obiter dictum: a statement from the bench commenting on a point of law which is not necessary for the judgment at hand and therefore has no judicial weight

Ratio decidendi: The legal principle or rationale on which a judicial decision is based.

63
Q

What is the Magna Carta?

A

Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law. It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself.

By declaring the sovereign to be subject to the rule of law and documenting the liberties held by “free men,” the Magna Carta provided the foundation for individual rights in Anglo-American jurisprudence. It is one of the most important documents for constitutional law.

64
Q

Meaning of sovereign and jurisprudence (German)

A

Sovereign: Herrscher, Monarch

Jurisprudence: Rechtslehre, Rechtswissenschaft

65
Q

What is the Bill of Rights?

A

The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law.

66
Q

What are the Acts of Union?

A

The Acts of Union were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act 1707 passed by the Parliament of Scotland.

By the two Acts, the Kingdom of England and the Kingdom of Scotland—which at the time were separate states with separate legislatures, but with the same monarch—were, in the words of the Treaty, “United into One Kingdom by the Name of Great Britain”.

67
Q

What is “Great Britain”?

A

England and Scotland - established by the Acts of Union
Later, Wales joined

68
Q

What are Statutory Instruments?

A

A form of legislation which allows the provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act. Parliament may delegate power to another authority to make rules and regulations in an area where parliamentary language is general, to give practical effect to legislation.

69
Q

What are other names for Statutory Instruments?

A

Secondary, delegated or subordinate legislation.

70
Q

When determining when a law comes into effect, transition provisions for where a new law replaces an old law and more specific processes, procedures and requirements that relate to the implementation and operation of an Act of Parliament, how can that be accomplished?

A

With statutory instruments.

71
Q

Meaning of prerogative (German)

A

Vorrecht, Privileg

72
Q

What is unusual about international treaties?

A

They were traditionally negotiated by the Executive (comprising the PM and Cabinet ministers, acting in the name of the Crown) and entered into under the Royal Prerogative.

73
Q

What is the “Ponsonby Rule” and what does it refer to?

A

The “Ponsonby Rule” is a constitutional convention that draft treaties should be laid before Parliament for 21 days.

With the Constitutional Reform and Governance Act 2010 (CRAIG), the “Ponsonby Rule” was entered into statutory law.

All international treaties that are subject to ratification by the UK Government must be laid before Parliament by a Minister of the Crown for 21 sitting days, during which both Houses have the opportunity to resolve that the treaty should not be ratified.

74
Q

The “Ponsonby Rule” is related to which process and law?

A

Ratification of international treaties.

Constitutional Reform and Governance Act 2010 (CRAIG)

75
Q

What is a sitting day?

A

Sitting day means any date on which Parliament meets.

76
Q

Constitutional Reform and Governance Act 2010 (CRAIG)

1 requirement for Ministers when requesting ratification of an international treaty by Parliament
1 right of Parliament
1 right of Ministers

A

CRAIG requires that treaties laid before Parliament will be accompanied by an explanatory memorandum explaining the provisions of the treaty, the reasons for the Government seeking ratification of the treaty, and other relevant information

CRAIG allows a mechanism for Parliament to request extensions to the 21 sitting day period, in blocks of up to 21 sitting days ,at the discretion of the relevant Minister.

CRAIG provides a mechanism for Ministers to bypass ratification by Parliament in exceptional cases.

77
Q

3 most important treaties for the EU

A

Treaty of Rome 1957: Creation of the European Economic Community
Treaty of Maastricht 1992: Creation of the European Union
Treaty of Lisbon 2007: Updates to both previous treaties

78
Q

What was the most important act for the introduction of EU law in the UK?

A

European Communities Act 1972

79
Q

What was special about the introduction of EU law in the UK?

A

The EU law only had effect in the UK to the extent that Parliament permitted it to do so (by statutes of the European Communities Act 1972).

80
Q

EU law takes precedence over the internal legal and constitutional arrangements of Member States. When was this position of the EU first articulated?

A

European Court of Justice, 1963, case of Van Gend en Loos

81
Q

Which act allowed members of the public with an opportunity to vote on whether the UK should remain a member of the EU?

A

The European Union Referendum Act 2015

82
Q

What followed after the European Union Referendum Act 2015?

A

Referendum in June 2016
European Union (Notification of Withdrawal) Act 2017
European Union Withdrawal Act 2018 (EUWA 2018)

83
Q

Article to notify and enter negotiations with the EU for exiting the EU

A

Art. 50 of the Treaty on European Union

84
Q

Miller v Secretary of State for Exiting the European Union [2017] UKSC 5

A

The Supreme Court held that the UK government could not use prerogative power to trigger article 50; hence, it had to utilise an Act of Parliament to invoke article 50 (European Union (Notification of Withdrawal) Act 2017).

85
Q

The European Union (Withdrawal) Act 2018 repealed which act?

A

European Communities Act 1972 (ECA 1972)

86
Q

Which two important mechanisms were stopped with the repeal of the European Communities Act 1972?

A

1) Removal of the mechanism by which EU law flowed automatically into UK law (section 2(1) of the ECA 1972)
2) Removed the power of Ministers to implement EU rules (section 2(2) of the ECA 1972)

87
Q

What does codification mean?

A

Codification is the process of bringing together a legal act (or several related acts) and all its amendments into a single new act.

88
Q

What are conventions (constitutional conventions)?

What is an example of a convention mentioned in this chapter?

A

A constitutional convention is an informal and uncodified tradition that is followed by the institutions of a state. They are not legally binding (with the exception to whom they relate). they have authority and effect through the customary adherence over time.

The texts of most international treaties are laid before Parliament at least 21 days before ratification (the ‘Ponsonby Rule’). This convention was codified by the Constitutional Reform and Governance Act 2010 (CRAIG)

89
Q

What is an example of a constitutional convention in Switzerland?

A

The “magic formula” in political party representation in the Federal Council.

90
Q

How is a constitutional convention different from a custom?

A

A convention has the power to inhibit or constrain the actions of a constitutional actor.

91
Q

What is a treatise? (German / English)

A

Eine Abhandlung

A written work dealing formally and systematically with a subject.

92
Q

What are works of authority?

A

Works of authority refer to treatises that are sometimes cited as aspects of the UK constitution and are particularly authoritative in their explanations and espousing of principles. Most were written in the 19th or 20th century.

93
Q

What is constitutional law in the UK?
Two special aspects about it

A

The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain (England, Scotland and Wales) and Northern Ireland.

(1) With the oldest continuous political system on Earth, (2) the British constitution is not contained in a single code but principles have emerged over the centuries from common law statute, case law, political conventions and social consensus.

94
Q

What are the four principles that guide the UK’s modern political system?

A

1) Parliamentary sovereignty
2) The rule of law
3) Democracy
4) Internationalism

95
Q

Which are the five central institutions of modern government in the UK?

A

Parliament, the judiciary, the executive, the civil service and public bodies.

96
Q

What are the five law-making institutions in the English legal system?

A

1) Parliament, Government and Sovereign
2) The civil and criminal courts and Judiciary
3) Regulatory bodies
4) CJEU case law and general EU principles decided prior to IP completion day emanating from the CJEU and other EU institutions
5) Other international institutions

97
Q

What are customs?

A

Customs are rules which have obtained the force of law in a particular locality. They were often in place prior to the introduction of the common law in England and Wales and developed within it to still for ma part of a trade custom or local law today.

98
Q

What are the four requirements for a custom to be applicable?

A

1) Reasonable
2) Immemorial
3) Have continued without interruption
4) There must be a certainty as to the locality where the custom is said to exist (e.g., a parish or a county)

99
Q

Give two examples of decisions where customs were considered in court decisions

A

Enter privately held land to extract spring water (Race v Ward [1855] 24 LJQB 153)
Enter privately held land to dry fishing nets (Mercer vs Denne [1905] 2 Ch 538)

100
Q

The case of “1,000 rabbits” in customs

A

In Smith v Wilson [1832] 3 B & Ad 728, it was established that the phrase “1,000 rabbits” really means “1,200 rabbits” in a particular locality. It was customary usage of this expression in trade.

101
Q

Are customs still regarded in courts?

A

Most customs have lost value around 1925. Many customs relating to land were abolished.

However, local custom is still recognised by courts and may even take priority over common law if certain strict requirements are met.

102
Q

Are customs legally binding on English courts?

A

No, but they are considered and recognised.

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