THE LEGAL SYSTEM Flashcards
even though wales isnt referred to in ‘english law’ and ‘the english legal system’ - is it implied that englanf and wales operate under the same legal system
yes
note - the welsh leg body, the senedd, also has limited powers in relation to local taxation
scotland and northern ireland have different legal systems - there no such thing as ‘uk law’ or ‘british law’
english law is derived from primary and secondary legislation - give examples of both
primary - passed by parliament
secondary - passed under powers contained in the primary leg, judicial case law decisions (including in common law and equity) and customs and conventions (which are off lesser importance)
an additional category of law is retained EU law (REUL) - the extent and importance of this category within english law is to be reduced by the REUL (revocation and reform) act 2023 - with effect from the end of 2023, what does this act revoke
certain instruments of REUL and provides for the assimilation of all remaining REUL, which will be known as assimilated law
legislation means the laws passed by parliament. primary leg refers to acts of parliament (laws or statutes passed through parliamentary procedure) - it’s used for matters of national importance where it’s appropriate for both houses of parliament (HOC and HOL) to scrutinise a bill as it makes its way through the process. once a bill has been passed by both houses of parliament and given royal assent, what will it become
it will become the law and be called an act rather than bill - will come into force on the date set out in the act
all secondary leg is made under powers in the primary legislation - true or false
true
who are orders in council made by
privy council
what are statutory instruments
regulations, rules and orders passed by ministers
eg passing more detailed industry-specific rules and publishing detailed guidance on regulation or setting the date on which particular sections of the primary leg come into force, where the overall framework of the regulation is set out in the primary leg
the power to pass statutory instruments is given to ministers under the primary leg
who makes by-laws
LA’s can make local by-laws which need to be affirmed by ministers under the local government act 1972
other quasi-public bodies such as the national trust may also make by-laws under statutory powers given to them
parliament is sovereign and its acts are authoritative, the courts can’t contradict the principle of parliamentary sovereignty, instead it’s the role of the courts to interpret and enforce legislation - true or false
true
if the drafting of an act is ambiguous, unclear or contradictory or will not apply to a new or unexpected situation - what rules will the courts apply
rules of interpretation
note - you may see interpretation described as construction - this doesn’t mean how the law has been constructed, it means how the law should be construed ie interpreted
in legal sense interpretation and construction are essentially the same
which rules of interpretation are judges free to use
literal, golden, mischief and purposive
courts have discretion in how they interpret and apply the law, and do not have to rigidly stick to rules - these rules are more like general approaches to understanding statute that the court might adopt
the literal rule
words should be given their plain, ordinary, natural meaning
if the words of the statute are clear, they must be applied as they appear on their face, even if the results are overly harsh or undesirable
the golden rule allows courts to presume that the leg was intended to have a wider meaning than that of the precise words used - this approach is appropriate to avoid a literal interpretation which would lead to..
- an absurd or inconsistent result or
- a result which would be an affront to public policy (such as allowing a murderer to inherit a parents possessions)
the mischief rule - where a statute is ambiguous the courts may interpret is by looking at..
the reason why it was enacted
what was the mischief or problem that the leg was intended to address
this isnt a wide ranging free hand for the courts to interpret and create new law - it must be possible to determine presicely the mischief the leg easn intended to remedy that parliament had failed to deal with it, and the words that parliament would have inserted if the issue had come to its attention
the purposive approach - takes a broader approach to interpretation of legislation in light of the purpose of that legislation
the judges assume the legislation is a basic frame and flesh out the precise meaning of the law over time through their judgements
in addition to the rules of construction and language, various presumptions are made when interpreting legislation - true or false
true
presumption that grammatical reading is what was intended
the starting point for the courts and if the meaning of a statute is clear from the words, then the courts will give effect to that meaning
presumption against alteration of the common law
parliament can expressly alter the common law, but the courts shouldn’t imply an intention to change the existing law
presumption against retrospective operation of statute
parliament can expressly state that an act comes into force on an earlier date, but if not, the courts should presume that statutes do not operate retrospectively
presumption against deprivation of liberty, property and private rights
parliament is presumed not to intend to deprive anyone of their liberty or their property, nor to interfere with their personal property without compensation
parliament can expressly impose a deprivation, but this will not be implied and and will be interpreted narrowly so as to interfere with the subjects liberty or property as little as possible
presumption against ousting the jurisdiction of the courts
parliament is presumed not to intend to oust the jurisdiction of the courts (for example ousting the courts from judicially reviewing gov decisions)
even where an ouster clause appears to clearly oust the court, the court will interpret that ouster clause very narrowly so as to have minimal effect on the court
presumption against binding the crown
acts of parliament are presumed not to bind the monarch unless the act expressly states as much, or it is a necessary implication of the words of the act
presumption against criminal liability without mens rea
unless parliament states expressly or it is implied by being termed an offence of strict liability, it will be presumed that parliament intended no liability for a criminal offence without proof of mens rea
intrinsic aids (included in the legislation)
- short title of the act (descriptive only)
- long title of the act (only where the body is ambiguous)
- preamble to the act (if any, and only where the body is ambiguous)
- side notes (though these are also of limited value as they are not debated in parliament)
- punctuation (eg placement of a comma in a list can affect its meaning)
- examples (some statutes particularly modern ones might include illustrative examples which are of persuasive but not conclusive authority)
- schedules (some statutes have schedules which contain interpretation and definition sections, which are highly persuasive)
extrinsic aids - external to the legislation
the interpretation act 1978 - which provides for commonly used words in legislation (eg references to the masculine gender includes the feminine gender unless the statute states otherwise)
dictionaries
parliamentary records such as Hansard, which contains a record of debates in parliament on legislation, where the legislation is ambiguous, obscure or absurd there are clear statements from ministers or other promoters of the bill in parliament as to the meaning of the legislation - this has only been permitted as an extrinsic aid relatively recently and controversially
common law
before the establishment of a centralised system of government in the UK, laws common to all were created by judges meeting in regional courts - this is now known as the common law
history of equity
equity was a separate pillar of the legal system which was under the crown - equity had separate courts and remedies, which often served to mitigate the relatively limited and harsh remedies imposed by the common law - this structural distinction is no longer relevant, the common law and equitable remedies can now be applied by all courts in their discretion
precedent - case law operates on a doctrine of precedent (principle of stare decisis - let the decision stand)
1 - a statement of the law (ratio decidendi) made in once case should stand as good law which can be relied on in other cases in future
2 - cases with the same or similar legally relevant facts should be decided in the same way
3 - the system of precedent is also subject to the hierarchy of the courts: generally prior decisions are binding on subsequent court decisions. Decisions of superior courts carry more weight than those of lower courts
doctrine of precedent
- establishes a certain consistent and predictable legal system, which is central to justice and perceived fairness
however the doctrine also has some flexibility as it allows distinctions to be drawn between cases where facts differ, to ensure justice in each specific case
precedent is binding on subsequent cases when..
- the facts in the precedent case and current case are sufficiently analogous to apply the same legal reasoning
- the relevant legal reasoning was part of the ratio precedent and not obiter
- the precedent case was heard in a superior (or equally ranking) court
precedent isnt binding but it instead merely persuasive if any of the above requirements are missing, or if the precedent originates from a court outside of england and wales
what does ratio decidendi mean
decisive legal reasoning - the ratio is the conclusion drawn by the judge in applying the law to the facts
a judgement will generally include a statement of the facts of the particular case and an explanation by the judge as to which facts are legally relevant and how the law applies to them
obiter dicta meaning
other statements made by the judge which aren’t part of the ratio - these statement may have been relevant to the case but do not form part of the essential legal reasoning behind the decision reached - sometimes these statements will be included in the reasoning for a minority judicial view in the appeal courts
obiter statements could include such statements as hypothetical scenarios imagined by the judge - true or false
true
which courts does supreme court bind
binds all lower courts
does not bind itself
which courts does court of appeal bind
binds all lower courts
normally binds itself subject to the Young v Bristol Aeroplane exceptions
- where its previous decisions conflict
- where its previous decision has been implicitly or explicitly overruled by the supreme court or
- where a previous decision was made per incuriam (carelessly without regard to the relevant law)
note - the criminal division of the court of appeal applies this test more widely where individual liberty is at stake
which courts does the high court bind
binds all lower courts
for cases heard at first instance - it doesnt bind itself
for cases heard as appeals, it normally binds itself, subject to the young v bristol aeroplane exceptions
which courts does the crown, county and mag court bind
binds no other courts
the crown court is not bound but is strongly persuaded by its prior decisions
precedent can be applied or followed
where the current court follows a precedent decision
precedent can be overruled
where the current court overturns a precedent decision (ie holds that it was never good law)
precedent can be reversed
where the current court overturns a precedent decision in the same case (ie on appeal)
precedent can be distinguished
where the current court doesn’t overrule a precedent but doesn’t apply it on the grounds that the facts or law between the two cases are sufficiently distinct
what are conventions
practices and rules that have generally been followed in the past but which aren’t legally enforceable
such as the convention that the monarch of the day will give royal assent to bills that have passed through parliament
the system of courts exists to interpret and enforce the law - the system is structures so that cases are heard at first instance, with a mechanism for decisions to be appealed to higher courts - true or false
true
the hierarchy of the courts also determines which decisions of higher courts are binding on other courts
the courts lower down the hierarchy are the inferior courts - which are these
county court for civil cases
mag court for criminal cases
inferior courts have a limited jurisdiction and deal with relatively ordinary and day to day matters - are they able to set precedent
no
the courts higher up the hierarchy are the superior courts - what are these for civil cases
supreme court
then court of appeal (civil division)
the high court (which is organised into several decisions)
the court higher up the hierarchy are superior courts - what are these for criminal trials
supreme court at the top
then court of appeal (criminal division)
crown court
do superior courts have limited or unlimited jurisdiction
superior courts have unlimited jurisdiction and typically hear complex or high value disputes and appeals from courts below them - they establish the system of precedent decisions binding on courts beneath them
a hearing may be heard at first instance in an inferior court, and later be appealed higher up the hierarchy (eg a low value contractual dispute could begin in county court and be appealed to the high court) - where might more complex and higher value matters be heard at first instance
in a superior court
serious criminal trials are held in the crown court rather than the mag court and high value claims begin in the high court rather than county court - true or false
true
note
certain mag court matters may go to the kings bench division of the high court
what year did the supreme court become the highest court in the UK
2009 - taking over the role previously played by the house of lords
parliament created the supreme court by which act
the constitutional reform act 2005
how many judges does the supreme court consist of
12 judges known as justices of the supreme court
including president and deputy president
a hearing would typically consist of a smaller number of justices (5 or 7)
the supreme court hears cases that are appealed from…
- court of appeal (civil and criminal divisions)
- high court (thereby leapfrogging the court of appeal in civil vases)
- norther irish courts (civil and criminal)
- scottish courts (only civil)
does the supreme court have jurisdiction to hear an appeal against its own decision made at first instance level
yes
the supreme court hears questions of devolution (ie on the devolved powers of scotland, norther ireland and wales) - true or false
true
which court is the final destination of appeal, and its decisions are binding on all courts below it
supreme court
the supreme court only rules on matters of law and doesn’t hear witnesses of fact - true or false
true - as almost all cases will have worked their way through the court system before coming to the supreme court
the court of appeal is the second most superior court - how many divisions does it have
civil division and criminal division
the court of appeal consists of what judges
lord justices of appeal and lady justices of appeal
the court of appeal is not a court of first instance - it only hears cases that are appealed from
- the high court
- the county courts
- certain tribunals
the high court is the third most superior court - how many divisions does it have
1- kings bench division
2- chancery division
3- family division
what does the kings bench division of the high court hear
- various civil matters in contract and tort
- judicial review
- appeals of criminal cases from mag courts and crown courts
will not hear any criminal cases at first instance
what cases does the chancery division of the high court hear
- wills admin of estates and probate
- land and mortgages
- trusts
- company and partnership law
- intellectual property
- insolvency
- appeals from county courts (eg bankruptcy)
what cases does the family division of the high court hear
- divorce
- adoption
- some wills and probate cases
- appeals from the magistrates court and crown court in family cases
the county court is an inferior court, which sits at various locations around the country. Various cases are heard at county court, such as contractual disputes, actions in tort, bankruptcy and matters involving land, mortgages and equity - what judges does the county court consist of
circuit and district judges
supreme court is the highest and final court of appeal in all criminal matters in england, wales and northern ireland - true or false
true
