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The nature of law and the English legal system Flashcards

1
Q

What is a law?

A

A form of social control

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2
Q

What does criminal law do?

A
  • Sets out forbidden behaviour, if broken the it is a offence against the state.
  • The state prosecutes
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3
Q

What is civil law?

A
  • Private disputes between individuals

- Types of civil law include: tort, contract and human rights

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4
Q

Whats the difference between criminal law and civil law?

A
  • 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)
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5
Q

What are the three sources of law?

A
  • Custom law - develops by behaviour
  • Common law - Unwritten law created by judiciary if relevant case arises
  • Statute law - Created by parliament
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6
Q

What is the rule of law?

A
  • All people are subject to the law

- Limits governments power

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7
Q

How does rule of law affect law making?

A
  • The process of law making is equal & fair

- Acts of parliament have to be passed by both houses

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8
Q

How does rule of law affect the legal system?

A
  • 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
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9
Q

What is the difference between the house of lords and the house of commons?

A
  • House of Commons:
    • Elected (every 5 years), government formed by
      majority political party
  • House of Lords:
    • Non elected, used to allows hereditary peers (now
      more strict)
    • Consists of 92 hereditary peers, 700 life peers & 62
      senior bishops
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10
Q

What is a green paper?

A
  • 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
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11
Q

What is a white paper?

A
  • States the decisions of government on making the law

- Consultation allows time for consideration

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12
Q

What is a bill?

A
  • 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
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13
Q

What is a private members bill?

A
  • Individual members of parliament introduce bills

- MPs can introduce a bill through ballot or ‘ten minute’ rule

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14
Q

What is a ballot?

A

20 Private members are selected and take turns presenting their bill to parliament

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15
Q

What is the ten minute rule?

A
  • Any MP can make 10 minute speech to introduce new legislation
  • House of Lords can also introduce private members bill
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16
Q

What are public bills?

A

Affects whole country/ large section of it

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17
Q

What is a private bill?

A

Only affects an individual or business

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18
Q

What are hybrid bills?

A
  • 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
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19
Q

What is the role of the house of Commons?

A
  • 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
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20
Q

What is the role of the house of Lords?

A
  • Acts as a check for house of commons
  • Bill can become law even if HOL rejects it
    HOL power = limited
  • HOL not democratically elected
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21
Q

What is the democratic process for a bill to become an Act?

A
  • 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
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22
Q

What are the advantages of parliamentary law making?

A
  • Made by our elected representatives
  • Can reform whole areas of law in one Act
  • Delegated legistlation allows for greater detail
  • Law cannot be challenged
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23
Q

What are the disadvantages of parliamentary law making?

A
  • 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
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24
Q

What political influence is there on parliament?

A
  • 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
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25
Q

What are the advantages of the political influence on parliament?

A
  • 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
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26
Q

What are the disadvantages of the political influence on parliament?

A
  • When new government is elected they can repeal/alter laws this is costly and leaves them open to criticism
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27
Q

What effect does media have on parliament?

A

It brings public opinion to the governments attention

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28
Q

What are the advantages of the effect the media has on parliament?

A
  • Public opinion affected by events

- Public are able to critisise government

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29
Q

What are the disadvantages of the effect the media has on parliament?

A
  • Government may respond too quickly to high profile incidents and create laws they have not thought about
  • Media can manipulate the news
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30
Q

How do pressure groups influence parliament?

A
  • 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
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31
Q

What are the advantages of the influence that pressure groups have on parliament?

A
  • Wide range of issues are drawn to governments attention

- Pressure groups often raise important issues

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32
Q

What are the disadvantages of the influence that pressure groups have on parliament?

A
  • Pressure groups can impose their views when majority do not support
  • Two pressure groups can have conflicting interests
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33
Q

What is the law comission and what do they do?

A

They are legal experts that research areas of the law and work on reforimng it

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34
Q

What are the advantages of the law commission?

A
  • Areas of law are researched by legal experts
  • Law commission consults before decision is mdae
  • Whole areas of law can be considered
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35
Q

What are the disadvantages of the law commission?

A
  • Government does not always listen to them

- Parliament doesn’t have time to listen to all the reforms

36
Q

What is parliamentary supremacy?

A
  • 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
37
Q

What are the limitations of parliamentary supremacy?

A
  • 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
38
Q

What are the types of delegated legislation?

A
  • 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
39
Q

What controls are there on delegated legislation?

A
  • 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
40
Q

Why do we need delegated legislation?

A
  • 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
41
Q

What are the advantages of delegated legislation?

A
  • Saves parliamentary time
  • Access to technical expertise
    Allows consultation
  • Allows quick law making
  • Easy to amend
42
Q

What are the disadvantages of delegated legislation?

A
  • Undemocratic
  • Sub delegation
  • Lack of publicity
  • Difficult wording
43
Q

What does the stare decisis involve?

A

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

44
Q

What is ratio deciendendi?

A
  • The reason that they came to a certain decision this is what creates precedent
45
Q

What is obiter dicta?

A
  • This is other things said in the court which is not binding
  • It shows reasoning for the decision that’s made
46
Q

What is following precedent?

A
  • 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
47
Q

What is overruling precedent?

A
  • 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
48
Q

What is distinguishing precedent?

A
  • This is used by judges to avoid following previous decisions
  • Done when the facts of the case are too different
49
Q

What is a statutory instrument?

A

It disputes over the meaning of an Act of parliament

50
Q

Why is a statutory instrument needed?

A

A meaning may be unclear due to:

  • A broad term
  • Ambiguity
  • Drafting error
  • New development
  • Changes in use of language
51
Q

What are the three rules?

A
  • 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)
52
Q

What is the purposive approach?

A
  • Judges decide what parliament was trying to achieve by looking for the purpose of the law
53
Q

What is an intrinsic aid?

A

They are within the statute, they clarify the meaning of the statute

54
Q

What is an extrinsic aid?

A
  • 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
55
Q

What is hansard?

A

The official reports of what was said in parliament when an Act was debated

56
Q

What are the advantages of the literal rule?

A
  • 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
57
Q

What are the disadvantages of the literal rule?

A
  • Words may have more then one meaning
  • Can lead to unfair decisions
  • Assumes that every Act is perfectly drafted
58
Q

What are the advantages of the golden rule?

A
  • Provides escape from literal rule
  • Allows judge to chose most sensible meaning
  • Avoids absurdity of literal rule
59
Q

What are the disadvantages of the golden rule?

A
  • Limited in se

- It cannot do much

60
Q

What are the advantages of the mischief rule?

A
  • Promotes purpose of the law
  • More likely to produce just result
  • Law is interpreted in the way parliament intended it to be
61
Q

What are the disadvantages of the mischief rule?

A
  • Can lead to uncertainty in the law

- Impossible to know when the judges will use it

62
Q

What are the advantages of the purposive approach?

A
  • Leads to justice
  • Allows development in technology
  • Avoids absurd decisions
63
Q

What are the disadvantages of the purposive approach?

A
  • Difficult to find parliaments intention
  • Allows judges to make laws
  • Leads to uncertainty in the law
64
Q

What is the doctrine of precedent?

A
  • 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
65
Q

What is original precedent?

A
  • If a similar case hasn’t been decided then a new decision is made
66
Q

What is binding precedent?

A
  • 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
67
Q

What is persuasive precedent?

A
  • Decision that doesnt have to be followed but can be f judge agrees with it
68
Q

How does the hierachy of courts affect precedent?

A
  • 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
69
Q

What are the Appellate courts?

A
  • 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
70
Q

What are courts of first instance?

A
  • These are courts that the original trail of a case is held
71
Q

What are examples of courts of first instance?

A
  • 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
72
Q

What is the practise statement?

A
  • It allowed the House of Lords (now supreme court) to change law if an earlier case was wrongly decided
73
Q

How is precedent in the court of appeal?

A
  • 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
74
Q

What is Stare Decisis?

A

This is to stand by what has been decided

75
Q

How does precedent effect Acts of Parliament

A
  • 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
76
Q

What are the advantages of precedent?

A
  • 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
77
Q

What are the disadvantages of precedent?

A
  • 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
78
Q

What is the law commission and what do they do?

A
  • Commission set up in 1965

- Job is to review all law concerned with systematic development, codification & repeal

79
Q

What do the law commission do with areas in need of reform?

A
  • 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
80
Q

What is codification?

A
  • 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
81
Q

What is consolidation?

A
  • Draw all existing provisions into one act
  • The law is not viewed or changed
  • Law = more accessible
82
Q

What do the law commission repeal?

A
  • Identify Acts that are no longer in use and stop them from being a law
83
Q

What are the advantages of law commission reform?

A
  • Areas of law are researched by experts
  • Whole areas of law considered
  • Makes the law more accessible
  • Can modernise the law
84
Q

What are the disadvantages of law commission reform?

A
  • 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
85
Q

What are the four main institutions of the European union?

A
  • The council of the European union
  • The commission
  • The European parliament
  • The court of justice of the European union
86
Q

What is the council of the European union and what is their purpose?

A
  • Made up of representatives from each nation

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