The nature of law and the English legal system Flashcards
What is a law?
A form of social control
What does criminal law do?
- Sets out forbidden behaviour, if broken the it is a offence against the state.
- The state prosecutes
What is civil law?
- Private disputes between individuals
- Types of civil law include: tort, contract and human rights
Whats the difference between criminal law and civil law?
- Purpose: Criminal law- protects society, Civil law - Rights of individuals
- Starting the case: Criminal law - Crown prosecution service, Civil law - claimant
- Courts: Criminal law - magistrates court & crown courts, Civil law - High courts & county court
- Standard of proof: Criminal law - ‘beyond reasonable doubt’, Civil law - ‘on the balance of probablities’
- Outcome of the case: Criminal law - Guilty or Not guilty (punishment), Civil law - Liable or Not liable (compensation)
What are the three sources of law?
- Custom law - develops by behaviour
- Common law - Unwritten law created by judiciary if relevant case arises
- Statute law - Created by parliament
What is the rule of law?
- All people are subject to the law
- Limits governments power
How does rule of law affect law making?
- The process of law making is equal & fair
- Acts of parliament have to be passed by both houses
How does rule of law affect the legal system?
- The legal system is covered by the rule of law
- Everyone has the right to a fair trial
- The system = free from discrimination & corruption
- Civil system = accessible & affordable
What is the difference between the house of lords and the house of commons?
- House of Commons:
- Elected (every 5 years), government formed by
majority political party
- Elected (every 5 years), government formed by
- House of Lords:
- Non elected, used to allows hereditary peers (now
more strict) - Consists of 92 hereditary peers, 700 life peers & 62
senior bishops
- Non elected, used to allows hereditary peers (now
What is a green paper?
- A document that proposes a idea for a new law
- Issued by minister
- Interested parties send comments to relevant government parties
- Necessary changes are made
What is a white paper?
- States the decisions of government on making the law
- Consultation allows time for consideration
What is a bill?
- Draft law thats passing through parliament before it goes through the stages to become an Act of parliament
- Introduced by government minister of the relevant department
What is a private members bill?
- Individual members of parliament introduce bills
- MPs can introduce a bill through ballot or ‘ten minute’ rule
What is a ballot?
20 Private members are selected and take turns presenting their bill to parliament
What is the ten minute rule?
- Any MP can make 10 minute speech to introduce new legislation
- House of Lords can also introduce private members bill
What are public bills?
Affects whole country/ large section of it
What is a private bill?
Only affects an individual or business
What are hybrid bills?
- A cross between a pubic bill & private bill
- Introduced by government but affects individuals
- Bills give people power to acquire land, grant planning permission & authorise necessary work
What is the role of the house of Commons?
- Democratically elected
- Most bills introduced here
- If commons vote against a bill it ends there
- Debates on issues of policy on a bill and details of the bill
What is the role of the house of Lords?
- Acts as a check for house of commons
- Bill can become law even if HOL rejects it
HOL power = limited - HOL not democratically elected
What is the democratic process for a bill to become an Act?
- First reading - Name of bill read out
- Second reading - Main debate on the bill
- Committee stage - detailed exam of each clause
- Report stage - Committee report on amendments made
- Third reading - Final vote on the bill
- House of lords - goes through the same steps
- Royal assent - Monarch formally gives approval
What are the advantages of parliamentary law making?
- Made by our elected representatives
- Can reform whole areas of law in one Act
- Delegated legistlation allows for greater detail
- Law cannot be challenged
What are the disadvantages of parliamentary law making?
- Parliament doesn’t always have time
- Allows little time for private members bills so they don’t often become law
- Often long and complex and difficult to understand
What political influence is there on parliament?
- Political parties have manifestos to get people to vote for them, if elected they have up to 5 years to bring reforms promised
- Government has major say on new laws
What are the advantages of the political influence on parliament?
- All political parties have proposals for reforms ready so know what they wish to do if elected
- Government makes majority of house of commons so every law they make will get passes, this make law making process more efficient
What are the disadvantages of the political influence on parliament?
- When new government is elected they can repeal/alter laws this is costly and leaves them open to criticism
What effect does media have on parliament?
It brings public opinion to the governments attention
What are the advantages of the effect the media has on parliament?
- Public opinion affected by events
- Public are able to critisise government
What are the disadvantages of the effect the media has on parliament?
- Government may respond too quickly to high profile incidents and create laws they have not thought about
- Media can manipulate the news
How do pressure groups influence parliament?
- Try to bring their interests to the publics attention
- Two types of pressure groups (sectional and cause)
- Sectional pressure groups - represent interests of particular groups of people
- Cause pressure groups - promotes by a certain cause
- Lobbying - pressure members of parliament to support their cause
What are the advantages of the influence that pressure groups have on parliament?
- Wide range of issues are drawn to governments attention
- Pressure groups often raise important issues
What are the disadvantages of the influence that pressure groups have on parliament?
- Pressure groups can impose their views when majority do not support
- Two pressure groups can have conflicting interests
What is the law comission and what do they do?
They are legal experts that research areas of the law and work on reforimng it
What are the advantages of the law commission?
- Areas of law are researched by legal experts
- Law commission consults before decision is mdae
- Whole areas of law can be considered
What are the disadvantages of the law commission?
- Government does not always listen to them
- Parliament doesn’t have time to listen to all the reforms
What is parliamentary supremacy?
- Parliament can legislate on any subject
- Parliament it not bound by previous Acts
- No other body can override an Act of parliament
- There are no limits to parliaments law making
- Parliament can change its own powers
- New parliaments are free to make their own decisions and is not bound by previous parliaments
Cannot be overruled by others even if a law is made incorrectly
What are the limitations of parliamentary supremacy?
- Limits self imposed by previous parliaments
- Human Rights Act 1998 - Act has to be compatible with this
- Devolution - Scottish Act 1998 & Welsh Act 1998 allows them to make legislation about their own areas
- EU membership - EU law takes priority over British law
What are the types of delegated legislation?
- Orders in council - queen & privy council make them, in emergencies privy council can make laws
- Statutory instruments - minister/ governemnt departments are given permission to make laws about their areas
- By laws - Made by local authorities covering matters in their areas
What controls are there on delegated legislation?
- Checks on enabling Acts - These are Acts that set the limits of the legislation that is made, Acts are scrutinised by House of Lords to observe if power was used appropriately
- Negative resolution procedure - Minister recommends procedure HOC can reject within 30 days
Affirmative resolution procedure - Requires both houses of parliament to approve it - Super affirmative resolution procedure - Minister must have regards to representations, resolution on HOP, recommendations of committee from HOP
- Control by courts - Unless an enabling Act allows it no DL can make unreasonable regulations, tax or allow sub delegation
Why do we need delegated legislation?
- Detailed law - parliament doesn’t have time to go into detail, yet still has control
- Expert knowledge - Parliament should debate main principles and the details are filled by experts
- Local Knowledge - knowledge of local area, parliament cannot deal with all local requirements
- Consultation - regulations must be accurate and workable
What are the advantages of delegated legislation?
- Saves parliamentary time
- Access to technical expertise
Allows consultation - Allows quick law making
- Easy to amend
What are the disadvantages of delegated legislation?
- Undemocratic
- Sub delegation
- Lack of publicity
- Difficult wording
What does the stare decisis involve?
At the end of the case the judge gives a judgement which involves summary facts of the case, the arguments put forward and the explanation of the law
What is ratio deciendendi?
- The reason that they came to a certain decision this is what creates precedent
What is obiter dicta?
- This is other things said in the court which is not binding
- It shows reasoning for the decision that’s made
What is following precedent?
- Where there is a relevant previous case and the judge can follow the decision
- If the decision is made by higher/same court then the court must follow decision
What is overruling precedent?
- When a later court case states that a previous court case was wrong
- Can occur with a higher court, Supreme Court or court of EU
What is distinguishing precedent?
- This is used by judges to avoid following previous decisions
- Done when the facts of the case are too different
What is a statutory instrument?
It disputes over the meaning of an Act of parliament
Why is a statutory instrument needed?
A meaning may be unclear due to:
- A broad term
- Ambiguity
- Drafting error
- New development
- Changes in use of language
What are the three rules?
- Literal rule - courts give the words their plain, ordinary meaning even if the result is not sensible ( Whitely V Chappell 1868)
- The golden rule - Looks at literal rule but ignores absurd outcomes, Wide application: words can be modified, Narrow application: court can only chose between different meaning of a case (Adlher V George 1964)
- The Mischief rule - consideres: common law before Act, what was the mischief the act was preventing, (smith v Hughes 1960)
What is the purposive approach?
- Judges decide what parliament was trying to achieve by looking for the purpose of the law
What is an intrinsic aid?
They are within the statute, they clarify the meaning of the statute
What is an extrinsic aid?
- Matters outside the Act
- Have to have been around the time the Act was made.
- Extrinsic aids allow: Hansard, reports from law reform bodies &international conventions
What is hansard?
The official reports of what was said in parliament when an Act was debated
What are the advantages of the literal rule?
- Rule follows the words that parlimant has used
- Prevents unelected judges from making laws
- Makes law more certain
- Its easier for judges to apply it
What are the disadvantages of the literal rule?
- Words may have more then one meaning
- Can lead to unfair decisions
- Assumes that every Act is perfectly drafted
What are the advantages of the golden rule?
- Provides escape from literal rule
- Allows judge to chose most sensible meaning
- Avoids absurdity of literal rule
What are the disadvantages of the golden rule?
- Limited in se
- It cannot do much
What are the advantages of the mischief rule?
- Promotes purpose of the law
- More likely to produce just result
- Law is interpreted in the way parliament intended it to be
What are the disadvantages of the mischief rule?
- Can lead to uncertainty in the law
- Impossible to know when the judges will use it
What are the advantages of the purposive approach?
- Leads to justice
- Allows development in technology
- Avoids absurd decisions
What are the disadvantages of the purposive approach?
- Difficult to find parliaments intention
- Allows judges to make laws
- Leads to uncertainty in the law
What is the doctrine of precedent?
- Past judges create Law for future judges
- If a case is similar then it follows the precedent of a previous case
- Courts must follow precedent of courts above it
- Appeal courts follow their own previous decisions
What is original precedent?
- If a similar case hasn’t been decided then a new decision is made
What is binding precedent?
- Precedent from an earlier case that must be followed even if judge disagrees
- Only made when facts of the case are similar and decision is made by higher/same court
What is persuasive precedent?
- Decision that doesnt have to be followed but can be f judge agrees with it
How does the hierachy of courts affect precedent?
- All courts are bound by higher courts
- Appeal courts bound by themselves
- The exceptions of following precedent is; courts following EU courts, cases involving human rights
What are the Appellate courts?
- Supreme court - bind all other courts in english legal system, not bound by past decisions
- Court of appeal - Has criminal and civil division, bound by supreme court and own past decisions
- Divisional courts - These include queens beanch, chancery & family, bound by supreme court and court of appeal, bound by own passed decisions
What are courts of first instance?
- These are courts that the original trail of a case is held
What are examples of courts of first instance?
- High courts - bound by divisional, appeal &supreme, do no have to follow their own past decisions
- Inferior courts - (crown court, magistrates court & county court), must follow all higher courts very unlikely to create precedent
- Court of justice of the European union - highest court affecting our legal system, all decisions are binding to all courts, can overrule previous decisions
What is the practise statement?
- It allowed the House of Lords (now supreme court) to change law if an earlier case was wrongly decided
How is precedent in the court of appeal?
- Bound by decisions of court of EU and supreme court
- Decisions by one division of court of appeal doesn’t apply to the other
- The exceptions are conflicting decisions in past cases, they can choose which to follow, supreme court overrules appeal court, decision made by mistake
- Criminal divison can refuse to follow past decisions if its been mis applied because liberty in involved
What is Stare Decisis?
This is to stand by what has been decided
How does precedent effect Acts of Parliament
- If Act is passed the hat contradicts previous decided case the law is followed
- If the wording of an Act is unclear then courts must interpret the wording this creates precedent
What are the advantages of precedent?
- Certainty - courts follow past decisions so it easier to follow and fir lawyers to advise their patients
- Consistancy and fairness - Similar cases are decided in similar ways
- Precision - precise as its set out in cases
- Flexability - Room for the law to change
- Tim saving - When principe is established other similar cases can just follow
What are the disadvantages of precedent?
- Rigidity - Lower courts must follow presidents so bad decisions will be repeated
- Complexity - Not easy to find all relevant cases
- Illogical distinctions - Distinguishing can cause complex areas of law to form
- Slowness of growth - Reform can only happen if a case presents itself
What is the law commission and what do they do?
- Commission set up in 1965
- Job is to review all law concerned with systematic development, codification & repeal
What do the law commission do with areas in need of reform?
- Research the area of law, publish a consultation paper
- consultation paper sets out the problems in the law and potential solutions
- Then they draw up a bill to present to parliament
What is codification?
- Reviewing all areas on a topic then creating a code to cover law on that topic
- Gathers the law in one place, making it easier to find
- ‘building block’ approach = codifying small sections of the law
What is consolidation?
- Draw all existing provisions into one act
- The law is not viewed or changed
- Law = more accessible
What do the law commission repeal?
- Identify Acts that are no longer in use and stop them from being a law
What are the advantages of law commission reform?
- Areas of law are researched by experts
- Whole areas of law considered
- Makes the law more accessible
- Can modernise the law
What are the disadvantages of law commission reform?
- Waits for the government to bring in reforms
- Failure of parliament to implement reforms
- Lack of parliamentary time
- When reforming parliament may change the wording
- Government doesn’t have to consult law commission when changing the law
What are the four main institutions of the European union?
- The council of the European union
- The commission
- The European parliament
- The court of justice of the European union
What is the council of the European union and what is their purpose?
- Made up of representatives from each nation
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