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BLAW > Topic 1 & 2 (English Legal System) > Flashcards

Topic 1 & 2 (English Legal System) Flashcards

1
Q

What’s the difference between Common Law and Statute?

A

Common Law = Judge-made law

Statute = legislation passed by Parliamen

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2
Q

What is Public Law concerned with?

A

The State and its interaction with individuals and public bodies.

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3
Q

What is Private Law concerned with?

A

Disputes between private parties

e.g. contract disputes, tort actions

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4
Q

Explain the classification of English Law

A

INSERT IMAGE WHEN PAID FROM PPT 1

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5
Q

What does the law provide? (generalised)

A

Remedies and Sanctions for transgressions

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6
Q

What does Criminal Law aim to prove?

A

Defendant was guilty ‘Beyond reasonable doubt’

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7
Q

Criminal Law seeks to regulate…

A

actions that are contrary to the established laws.

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8
Q

What are the other names for Public & Private Law?

A

Public = Criminal Law

Private Law = Civil Law

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9
Q

How are cases determined in Civil Courts?

A

On the ‘Balance of probabilities’

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10
Q

What does a constitution do?

A

Constitution determines and regulates the power of the State (and how this power may be exercised).

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11
Q

Does the UK have a codified or uncodified constitution?

A

Uncodified constitution (can be changed easily)

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12
Q

Name the four sources of the UK Constitution?

A
  • Statutory materials
  • Case-law/common law
  • Conventions/Customs
  • Prerogative Powers
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13
Q

Explain Prerogative Powers

A
  • Powers that used to be held by the Monarch prior to 1688 due to their constitutional position which gave them Ultimate Legislative Authority.
  • These powers have now been passed to Government and exercised by ministers
  • System of checks and balances exists to share power between different branches of Government so not one section can become too powerful.
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14
Q

What are Conventions/Customs?

A
  • Important principles that are respected and followed by the state.
  • Considered ‘soft law’.
  • Not enforceable
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15
Q

What is the UK’s constitution founded on?

A

Founded on the principles of the doctrine of parliamentary supremacy and the rule of law.

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16
Q

What are the Law sources in the UK?

A

Either:

  • Statute (legislation passed by parliament)
  • Common Law (judge-made law)
  • EU Law
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17
Q

How has legislation originating from the EU become law in the UK?

A

Through Section 2 of the European Communities Act 1972 (c. 68)

This meant EU Law either became Directly Applicable or required domestic implementation by UK Government under Section 2(2) of the ECA 1972.

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18
Q

What is the ‘rule of law’?

A

Elements such as:

  • no one should suffer a penalty except for a clear breach of the law
  • everyone is equal before the law
  • Rights of the individuals are to be secured by the ordinary remedies in private law administered by the Courts.
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19
Q

What is Parliamentary Supremacy?

A

Parliaments law is the highest form of law following the ‘Glorious Revolution’ of 1688.

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20
Q

What are the organs of the State and what is the Separation of powers?

A

3 organs of the state include The Executive, The Legislature and The Judiciary

Separation of powers seeks to establish a system of checks and balances between State institutions and to ensure a degree of separation between their functions.

21
Q

Sources of English Law?

A

Parliament - Legislation/Statutes e.g. The Consumer Rights Act 2015

The Courts - Through the Common Law / case law e.g. R v Smith (1989), Smith v Brown(2019) referred to as Judge made law

22
Q

What’s Direct legislation and delegated legislation?

A

Direct Legislation is legislation passed by parliament such as the Health and Safety at Work Act 1974

Indirect/delegated legislation (enabling act) power has been provided through a government minister/another body due to time constraints on parliament or minor changes to the act that don’t warrant the passage of the Bill. Either: Statutory Instruments, By-Laws and Orders in Council.

23
Q

What is Statutory instruments?

A

Statutory Instruments refers to the rules and regulations made by government ministers.

24
Q

What is the by-laws?

A

By-laws can be made by the local authorities to cover matters within their own area. Local bylaws can involve traffic control, such as parking restriction

25
Q

What is Orders in Council?

A

The Queen and the Privy Council have the authority to make orders in the council. The Privy Council is made up of the prime minister, and other leading members of the government.

26
Q

Advantages and disadvantages of Delegated legislation

A
  • Speed.
  • Flexibility.
  • Technical/local knowledge.
  • Certainty in the law.
  • Laws passed by unelected officials/bureaucrats.
27
Q

How are Statutes interpreted? (what tools they use judges?)

A

Judges can interpret legislation but not fill the gaps and to help them, judges may use a number of tools

Intrinsic aids: e.g. The CRA 2015 has definitions of what a consumer/trader is.

External aids:

  • Interpretation Act 1978
  • Government Reports
  • Parliamentary Reports (Hansard) Pepper v Hart (1993) to see if the word/phrase was debated in Parliament
28
Q

Whats the Court Hierarchy?

A

INSERT IMAGE

29
Q

Advantages of the system of Judicial precedent?

A
  • Flexibility (ability to distinguish cases);
  • High quality decisions to be applied in all courts;
  • Only very able people can become judges;
  • The law is consistently applied;
  • This creates certainty.
30
Q

Judge-made law is based on the doctrine of…..

A

Binding precedent which depends on several factors:

i. court hierarchy
ii. whether the facts come within the scope of the previous case.
iii. Whether what the judge said was in the ratio decidendi or merely obiter dicta.

31
Q

What does ‘ratio decidendi’ mean?

A

The reason for the decision

32
Q

What does obiter dicta mean?

A

Other things said - everything other than the ratio decidendi

33
Q

Judical principles of statutory interpretration and meaning of rules

A
  • The Literal rule (plain and ordinary meaning)
  • The Golden rule (reinterpret what parliament has already created where to take it as their plain and ordinary meaning would produce an absurd result)
  • The Mischief rule (looks at the mischief it was enacted to avoid and interprets it accordingly)
34
Q

What case goes with The Literal Rule? (&Explain)

A

R v Hillingdon London Borough Council, ex parte Puhlhofer 1986

Married couple in one-bed in guest house with another young child and baby. Complained they were still homeless as they had no washing or cooking facilities.

Court of Appeal decided that they were not homeless even if accommodation inadequate and it was up to LA to balance the priority/suitability of housing.

Court wouldn’t intervene unless LA was abusing power of the Housing 1985 Act. Its “an Act to assist persons who are homeless, not an Act to provide them with homes.”

35
Q

What case goes with The Mischief Rule?(&Explain)

A

Smith v Hughes 1960

Prostitute solicited prostitution from inside her house to not go against the Street Offences Act 1959 as it was not in the street as per the Act.

Purpose: The legislation had been enacted to stop the mischief of prostitution hence court interpreted the act that ‘street or public place’ could include a person’s home.

36
Q

What case goes with The Golden Rule?(&Explain)

A

Re Sigsworth 1935

Beneficiary of dead person’s (mothers) estate. Killer was the son and under relevant law (The Administration of Estates Act 1925) he was entitled to claim from estate.

PURPOSE: Court would not allow killer to benefit from their crime and decided to not interpret the act as in its literal meaning leaving killer (son) without an entitlement to the estate. Against public policy of allowing a murderer to profit from their crime.

37
Q

Whats the three types of track as part of Civil courts? and £ ranges

A

Small claims track is £10,000 or less

Fast track is generally between £10,000 and £25,000

Multi-track is over £25,000 and expect to be more than 1 day in court or expert evidence needed

38
Q

What are the alternatives to Court?

A

Tribunals (Adjudication)? ASK IN CLASS

or

Arbitration
Conciliation
Mediation

39
Q

What is a tribunal?

A

Usually a panel with a qualified tribunal chairperson and 1/2 people with expertise in the case to decide on disputes. Mainly between employers and employees e.g. discrimination in the workplace but can be on immigration, data protection.

40
Q

Advantages & Dis-advantages of a Tribunal

A

Ad:

  • Speed at which cases are heard and resolved.
  • Reduction in costs
  • Expertise in nature of the claim over courts
  • Increased informality

Dis:

  • Limitation in ability to get free legal assistance
  • No system of precedent in tribunals
  • Procedures in tribunals becoming complex
41
Q

What Alternative Dispute Resolution, what does it focus on and what are the types of ADR?

A

ADR is a mechanism used to avoid courts having to resolve disputes that can be resolved elsewhere.

Focuses on co-operation rather than adverbial approach taken by courts of winning a case etc.

Three types:

  • Arbitration
  • Conciliation
  • Mediation
42
Q

Advantage/Dis-advantage of ADR?

A

Ad:

  • Co-operation v Adversarial approach
  • Speed of resolution
  • Costs
  • Privacy

Dis:

  • Duplication of fees: still may end up in Court if resolution is not found so paying for ADR then court fees on top after
  • Imbalance of power relations as it can be employer v employee hence employer will not mediate if they are in a strong position
  • Important points of law or statutory protections may be missed as the people with expertise do not have experience of legal procedures and the law
43
Q

What is Arbitration?

A
  • A voluntary system where the parties rely on the services of an arbitrator (an independent, fair and impartial third party).
  • It may be chosen by the parties, they may be referred to it by the court, or statute may require.
  • The arbitrator provides their decision and this is binding on the parties, although an appeals process applies.
44
Q

What is Conciliation?

A

Similar to mediation - but the conciliator adopts a more proactive approach.

  • They offer solutions and identify strategies for the successful resolution of the dispute (this is often seen in employment disputes).
  • However, the interventionist approach is often a concern due to the unequal bargaining powers of the parties.
45
Q

What is Mediation?

A
  • Emphasis on assisting the parties to resolve their problems
  • May be ‘evaluative’ where an assessment is made of the legal issues) or it may involve a ‘facilitative’ approach
  • The parties appoint the mediator (hence they may not be seen as ‘independent’), and it may be binding on the parties if this is what they choose
46
Q

When does an Act of Parliament enter into force?

A

Either on the commencement date stated in the stature, or where the statute is silent, upon Royal Assent.

47
Q

What is the Rule in Pepper v Hart?

A

The House of Lords said that judges could look at the Hansard Reports of parliamentary debates and proceedings as can aid to construing the meaning of the legislation. Hansard is considered an external aid.

48
Q

What is the doctrine of Stare decisis?

A

Doctrine of precedent.

Refers to hierarchical structure of English courts and that decisions in higher courts will be binding on a lower court in that hierarchy.

BLAW (15 decks)

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