Unit 1 Flashcards

Question 1

Q

What are the TWO types of law?

Answer

A

Enacted (legislation) Law and Unenacted (common) Law

Question 2

Q

What are the TWO ways to find out about common law?

Answer

A

Reported court cases AND authoritative texts

Question 3

Q

What are statutes?

Answer

A

Acts of Parliament

Question 4

Q

Who can authorise the Scottish Government to legislate?

Answer

A

Parliament

Question 5

Q

How do you change the common law?

Answer

A

By statute

Question 6

Q

What is Public Law?

Answer

A

The law concerning the state and its relations with its citizens and with the businesses that operate in the country.

Question 7

Q

What are some examples of Public Law?

Answer

A

Constitutional law, Tax law, Planning law, Criminal law

Question 8

Q

What is Private Law?

Answer

A

Private law is horizontal law and acts between citizens and businesses

Question 9

Q

What are some examples of Private Law?

Answer

A

Company law, Property law, Inheritance/succession law

Question 10

Q

Who makes the decision to prosecute a criminal?

Answer

A

State prosecutor/Fiscal

Question 11

Q

How is ‘v’ spoken in England?

Answer

A

‘AND’

Question 12

Q

How is ‘v’ spoken in Scotland?

Answer

A

‘AGAINST’

Question 13

Q

What is it called if a judge disagrees?

Answer

A

Dissenting Judgement

Question 14

Q

What is a headnote?

Answer

A

A case summary written by an editor of a law publisher

Question 15

Q

What is the first instance court called?

Answer

A

Outer house

Question 16

Q

What is ‘reclaiming’?

Answer

A

Appealing from the outer house to the inner house

Question 17

Q

What court can reverse the decision of the Lord Ordinary?

Answer

A

Inner house

Question 18

Q

What courts can overrule a decision?

Answer

A

Courts that are higher than the court in which a decision was made

Question 19

Q

What is ‘res judicata’?

Answer

A

A matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.

Question 20

Q

Who is the head judge?

Answer

A

The Lord President of the Court of Session

Question 21

Q

Who is the second highest judge?

Answer

A

Lord Justice

Question 22

Q

What is manslaughter called in Scotland?

Answer

A

Culpable Homicide

Question 23

Q

How many Scottish qualified judges does the Supreme Court have?

Question 24

Q

What are the THREE sources of law?

Answer

A

Formal/primary, secondary, historical

Question 25

Q

What are some examples of formal/primary law?

Answer

A

Statutes, Acts of Parliament, EU legislation, case law

Question 26

Q

What are Statutory Instruments?

Answer

A

Legislation that is passed by the government (in order to amend an act) and cannot be amended by parliament - parliament can only accept or reject in full. Scottish SI’s passed by Scottish ministers. A SI is an enactment made under the authority of a statute.

Question 27

Q

What is primary legislation passed by?

Answer

A

Acts of Parliament

Question 28

Q

What are some examples of secondary law?

Answer

A

Journals, articles, textbooks

Question 29

Q

What areas of Scots law have been affected by Roman law?

Answer

A

Property, delict, persons, contract

Question 30

Q

Example of secondary legislation?

Answer

A

(Scottish) statutory instruments

Question 31

Q

Case example where judge made law to deal with specific incident?

Answer

A

Callic glue-sniffing

Question 32

Q

What are the requirements of unwritten custom law?

Answer

A

Must not contradict general law
Must be certain
Must be generally accepted as obligatory
Must be reasonable

Question 33

Q

Case example of unwritten custom law?

Answer

A

Stirling Park & co v Digby Brown & co 
1996 SLT (Sh Ct) 17 (sheriff officer fees)

Question 34

Q

Hierarchy of Case law sources?

Answer

A

Decisions of the EU Court of Human Rights and the court of justice of the EU.
Supreme court of the UK/House of Lords/Judicial Committee of the Privy Council.
Inner House of the Court of Session (note: Whole Court/Full Bench/First division/second division/extra division).
Within a sheriffdom – decision of the sheriff principal.
Courts of first instance: outer house of the court of session/sheriff court.

Question 35

Q

Hierarchy of unenacted law sources?

Answer

A

come back to this

Question 36

Q

What is ‘stare decisis’?

Answer

A

Notion that higher courts bind lower courts?

Question 37

Q

Where can sources of law be found?

Answer

A

Morisson’s dictionary (until 1801)
Session cases
Scots law times

Question 38

Q

What is the short title of an act?

Answer

A

Name used to refer to legislation

Question 39

Q

What is the long title of an act?

Answer

A

The full name of the act, listed at the start

Question 40

Q

What is the enacting formula of an act?

Answer

A

Tells you how the act was passed

Question 41

Q

How can you tell if an act is in force or has been amended?

Answer

A

Check the current law using a legislation citatory

Question 42

Q

What is implied repeal?

Answer

A

When later legislation negates the effect of earlier legislation

Question 43

Q

What is desuetude?

Answer

A

When a statute becomes obsolete after a passing of timw

Question 44

Q

What does consolidation involve?

Answer

A

A new act that resolves any anomalies in legislation

Question 45

Q

What does codification involve?

Answer

A

Taking the law in a particular area and trying to set it out in statutory form

Question 46

Q

What are ‘travaux preparatoires’?

Answer

A

The official record of a negotiation

Question 47

Q

What are the THREE elements of our tripartite system?

Answer

A

Legislative (writes the law)
Executive (amends the law)
Judiciary (applies the law)

Question 48

Q

What is precedent?

Answer

A

Using a previous case as an example and applying it in a similar context

Question 49

Q

What is an example of a Scotland specific law?

Answer

A

Alcohol cannot be sold after 10pm in the shops

Question 50

Q

Where do rules specific to Scotland derive from?

Answer

A

Institutional writings, Scottish precedents, or from legislation passed either from UK Parliament dealing specifically with Scotland only or by the Scottish Parliament (since 1999).

Question 51

Q

What is an example of an ‘umbrella law’?

Answer

A

Tax law in UK

Question 52

Q

What are the modern day characteristics of common law?

Answer

A

Not a codified system (relies on precedent)
Emphasis on judge-made law
Emphasis on actions and particular forms of plea
Makes a distinction between law and equity

Question 53

Q

What are the characteristics of civil law?

Answer

A

Codified system (does not rely on precedent)

- Judges have less power than in common law system

Question 54

Q

What is Quebec’s legal system like?

Answer

A

Hybrid system between civil law and common law (mixed system)

Question 55

Q

What were the ecclesiastical courts used for?

Answer

A

Anything regarding personal matters, such as marriage

Question 56

Q

What was canon law?

Answer

A

Principle by which Roman law filtered into Scotland

Question 57

Q

What is an old scottish law that is still in place today?

Answer

A

Leases Act 1449

Question 58

Q

What law was Scotland’s mixed system influenced by?

Answer

A

A mix of English law and Roman law influence

Question 59

Q

When did the UK join the EU?

Question 60

Q

Which law takes precedence?

Answer

A

EU law takes precedence over national law.

Question 61

Q

When did devolution take place?

Question 62

Q

What is devolution?

Answer

A

Devolution gives certain parts of an area a certain degree of power. Scotland was given a separate parliament.

Question 63

Q

What is this difference between reserved and devolved matters?

Answer

A

Reserved - power held by Westminster

Devolved - power held by Scottish Parliament

Question 64

Q

2 key dates in the development of the UK?

Answer

A

1603 - Union of Crowns

1707 - Union of Parliaments

Answer 62

A

2 chambers: HOL non-elected, HOC elected

Answer 63

A

It is subject to EU law.

Answer 64

A

By looking at what courts they came from in the appellate history.

Answer 65

A

So the government can take the bill to court

Answer 66

A

The Scottish Parliament has to agree to this - only disagreed on one occasion (Welfare Reform Bill 2011)

Answer 67

A

Yes - Scots Private Law is generally devolved. They could also repeal it or abolish marriage completely.

Answer 68

A

Yes to international. Consumer sales have to be handled by Westminster.

Answer 69

A

Yes, criminal law is generally devolved.

Answer 70

A

Company law fits within the broad series of restrictions for trade and industry.
Therefore, this power is reserved for Westminster only.
BUT Scottish Parliament can deal with the rights and security of a company, just not the actual company itself.

Answer 71

A

• When the Scotland Act 1998 was passed, this question was asked and the initial answer was No.
• Section 30 order on the referendum
This is a statutory instrument laid by the UK govt, which has to be agreed on by both the SP and UK parliament. This allows for the powers of the Scottish Parliament to be extended.
This effectively changes the Scotland Act without having to go through the full processes.
Section 30 does limit the ways in which Scotland can act with its extended power (e.g. The Scottish Parliament cannot pass the referendum on Scottish independence after December 2014).

Answer 72

A

Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act (also known as primary legislation) would have provisions that allow for future delegated legislation to alter the law to differing degrees.

Answer 73

A

come back to this

Answer 74

A

The headnote here implies that it was only a food safety case. BUT within 5 years of this case, it was applied to many cases for suing manufacturers of products. The case founded a law of product liability.

Answer 75

A

This case regarded sheriff officer fees. Digby Brown’s client did not pay Stirling Park’s sheriff officer fees, and it was argued that it was custom for the solicitors to pay the fees on behalf of their client.

Answer 76

A

• Policy formulation becomes law because the policy people have an advisor / solicitor, and they translate the views of the team into instructions for the parliamentary drafter.
The legislation drafted by the parliamentary drafter is then sent back to the solicitor, who explains the draft to the bill team and they ensure that the legislation draft is doing what they want it to do. IF it doesn’t, it will be sent back and forth between the drafter and solicitor until an agreement is reached.
Once it is prepared, it is put to the parliament. Any member of the parliament can propose an amendment.

Answer 77

A

Denotes the sequential number of the act in the year.

Answer 78

A

When Royal Assent was given - NOT when act was passed!

Answer 79

A

Basic, taxation legislation, government expenditure legislation, legislation under parliament act 1911.

Answer 80

A

When a statute says that primary legislation can be amended by secondary legislation.

Answer 81

A

come back to this

Answer 82

A

semantic ambiguity – ambiguities in individual words
syntactic ambiguity – the way in which the words are put together on the page creates ambiguity. Basically, when the context can create ambiguities.

Answer 83

A

Where “fixed plant or machinery” created ambiguity. If you sold some of your “fixed plant or machinery” you were subject to tax relief.
Question as to whether “fixed” referred to both the plant and the machinery.

Answer 84

A

“A person shall not use or permit the use of a guard dog at any premises unless a person (“the handler”) who is capable of controlling the dog is present on the premises and the dog is under the control of the handler at all times while it is being so used except while it is secured so that it is not at liberty to go freely about the premises.”
Two possible interpretations of the act.
Is it qualifying that the dog must be tethered, with a person simply there in the background?
OR is it qualifying the general principle that the dog must be under control of the person at all times?
The courts held that you did not need a handler present. You did not need a handler at all provided the dog is tethered.

Answer 85

A

Rules concerning complicated matters will be complicated
No language is an instrument of complete precision
No drafter can forsee all eventualities
Sometimes drafters make mistakes
There can be ambiguities
The meanings of words change over time

Answer 86

A

• “Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court’s duty in so doing to give effect to the intention of Parliament in using those words.”
Pepper v Hart [1993] AC 593, 634 (per lord Browne-Wilkinson)

• “The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature.”
Pepper v Hart [1993] AC 593, 617 (per Lord Griffiths)

• “No principle of interpretation of statutes, however, is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous – if they are reasonably capable of more than one meaning – or if the provision is contradicted by or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question; beyond that we cannot go.”
Westminster Bank v Zang [1966] AC 182, 222

Answer 87

A

Necessity – legal problems arise that need a cure. EU obligations.
Emergency bill
Budget bills – government spending, £30 billion each year.
Policy priorities – land reform, smoking ban, referendum, tax powers etc.
Because we can

Answer 88

A

Interpretation is applying statutes to a theoretical situation.
A valid will is signed on every page – statutory application. (Requirements of Writing (Scotland) Act 1995).

Answer 89

A

“If any person … keeps on a public road any mechanically propelled vehicle for which a licence is not in force … he shall be liable to …” [penalty]
If an unlicensed car, without a gearbox, is balanced on four roller skates is it “on” a public road?
Holliday v Henry (1974)
The car was still found to be on the road.

Answer 90

A

Boulton v Pilkington (1981)
The act stated that no one could park on Wyndham Street UNLESS they were parked there to enable the loading or unloading of goods to / from the vehicle.
Pilkington parked there to pick up his takeaway, and went back to his car, “loading” the goods into the car.
Argued that because he was picking up the takeaway i.e. loading goods into a vehicle, he was not wrong for being parked there.
On appeal, the courts held that by “unloading” goods, they meant a substantial amount of goods as opposed to a singular takeaway.

Answer 91

A

Fisher v Bell
Under the act, it is illegal to manufacture, sell, or offer for sale a flick knife.
The shop had a flick knife in the window with a price tag next to it – are they offering the flick knife for sale?
The defence was to use “offer” under its technical meaning, Fisher was not actually offering the knife for sale, it was an invitation to treat, hence it was an offer to make an offer – not an offer for sale.

Answer 92

A

The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context.
Technical or ordinary meaning – what takes priority? Depends on the context.
Jenner v Allen West & Co Ltd – a case involving employment legislation regulating those who worked on roofs. The legislation referred to a “crawling board”. In the roofing industry, crawling board has a specific technical meaning BUT if you were to say it to a normal person, there would be ambiguity surrounding its definition.
The courts looked at the intended audience of the legislation. Technical words used in the building sector would be used in the legislation – hence the technical meaning of words should apply.

Answer 93

A

If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any secondary meaning which they are capable of bearing.

Answer 94

A

The judge may read in words which he considers to be necessarily implied by words which are already in the statute; and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute.
Example – Adler v George
Involved legislation making it an offence to do something in the “vicinity” of an airfield.
Defender argued that they were not in the vicinity of the airfield when they committed the offence – they were actually in the airfield.
For this reason, courts added words into the statute to prevent further defence claims from being made.

Answer 95

A

In applying the above the judges may resort to aids to construction and presumptions.

Answer 96

A

The judge must interpret a statute so as to give effect to directly applicable European Union law, and, in so far as this is not possible, must refrain from applying the statutory provisions which conflict with that law.

Answer 97

A

• Literal Rule – the idea that the courts may only look at the legislative rule itself
• Mischief Rule – if a provision is unclear, the judge should look to the mischief the act was designed to overcome, and interpret it in order to “suppress the mischief and advance the remedy”.
Basically, the mischief rule goes to the root of the legislation and questions why it was made, in order to overcome anbiguities.
• Golden Rule – a hybrid of the Literal rule and the Mischief Rule. The literal meaning should be applied unless it produces an ambiguity

Answer 98

A

Ship sank and the crew all died
Their family members tried to make a claim under this act
Firstly, the courts held that the act, in it’s definition of “equipment” did not include ships, as it specified “vehicles”, and “aircraft” but not ships
BUT held on appeal that the act did account for ships as, also included in the definition was the word “includes” meaning the definition was not set in stone and was subject to interpretation.

Answer 99

A

You could register within a particular council area if, within that area you had “any house, warehouse, counting house, shop, or other building”.
Duncan had a leak in his gas meter.
He argued that his gas meter should be taken into account for registration under this council area.
Courts held that he was not eligible for this council area by applying the ejusdem generis rule. All of the things listed in the act were substantial buildings, the gas meter was not.

Answer 100

A

“a thing known by its associates”

Answer 101

A

“the mention of one thing is to the exclusion of all others.”

Answer 102

A

If the law is changed in a statute, and the statute is ambiguous, the courts will assume that it is not amending the law in a major way, but a minor one.

Answer 103

A

Presumption against unclear changes in the law
Presumption for freedom
Presumption against retrospective effect
(An example of this is Gardner v Beresford’s Trustees
BUT it is possible to displace this presumption – it is only a presumption.)
• There is a presumption that conjunctions (“and” , “or” ) may be misused in legislation when listing conditions.
(IF the result of the literal interpretation appears to defeat the intention of the legislation, the courts will not necessarily hold to the literal use of the conjunction.)

Answer 104

A

…when there is doubt as to the meaning of legislation.

Answer 105

A

Dictionaries (Chambers and Judicial)
Literature
(This is uncommon, but it can happen.
Judge in R v Peters quoted Othello)
Practice
Contemporary meanings

Answer 106

A

ONLY if meaning is unclear and ambiguous.
In Pepper v Hart, one of the judges looked at Hansard debate (free travel for rail workers).
Ultimately a new bench with 7 judges was convened, and it was a 6:1 decision of allowing reference to parliamentary material. Lord Browne-Wilkinson leading judgement: “Reference to Parliamentary debates is permissible where: “(a) the legislation is ambiguous or obscure or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.”

Answer 107

A

Chief Adjudication Officer v Foster
Found that where you have a split in the opinions of the Judges of the court, this indicates an ambiguity in the legislation.
• The statement is from promoter of a bill
This is constitutionally problematic. There are a number of people involved in the bill making process.
It basically implies that the govt minister’s views should prevail above all.
• You can only rely on the statement if it is clear.

Answer 108

A

Decent law reporting.
As time goes on we are seeing better recording of judgements stating what the law actually is and why a case can be applied as precedent (compared to C19 Morison’s dictionary with mere one line summaries)

Answer 109

A

• Relying on principles of the past, and employing them in a present argument in court.

Answer 110

A

Treat similar cases alike, and dissimilar cases differently, for fairness, certainty and predictability - enhances the legitimacy of the system.

Answer 111

A

• A legislative power that the court has
• “equitable” power exercised by the Court of Session and High Court of Justiciary to provide a remedy where none exists, but the court feels it should.
Basically, it can be used to fill the gaps in legislation.

Answer 112

A

• An exceptional power held by the High Court of Justiciary to declare behaviour which it considers morally wrong to be a criminal offence, even though it was not, or not unequivocally, regarded as criminal before.
Basically, it accounts for gaps in criminal law.

Answer 113

A

Statute lacks the flexibility and creativity that precedent has. When dealing with case law – there are pages of judgements. It is up to you to choose which judgements are the most important and which fit in best with your argument.
This is in stark contrast to statute – where certain sections of the statute can either be used in argument, or they cant.

Answer 114

A

Literally means “to stand by what has been decided”.
If precedent is a source of law, the ratios of precedents will determine how a case is to be decided by later courts.
• Hierarchy based approach. There are 3 broad rules of thumb:
1. Higher courts bind lower courts
2. Lower court decisions do not bind higher courts
3. Courts from one jurisdiction do not bind courts in a different jurisdiction.

Answer 115

A

The Court of Session is above any Sheriff Court, although their jurisdiction is remarkably similar.
Within the Court of Session, the Inner House is somewhat above the Outer House, for it hears appeals from it, but the court is a collegiate court and Courts of Five Judges (or another odd number) may be convened.

Answer 116

A

Only when there is a devolution issue.

Answer 117

A

Yes, but these can be overturned. Typically, previous cases are not interfered with, but they can be if an argument is presented.

Answer 118

A

NO, unless on interpretation of statutory provision that also applies in Scotland.

Answer 119

A

IF the precedent was decided by the same number of judges as present case, or more, then yes.
IF the precedent was decided by fewer judges than present case, then no.
Basically, a 5 judge court can overrule a 3 judge decision – but it cannot work the other way around.

Answer 120

A

NO, only persuasive.

Answer 121

A

• A decision made by a sheriff principal binds the sheriff principal’s decision in the same area.
But, the same cannot be said between sheriff principals in different areas.
• A sheriff is not even bound by his own previous decision.

Answer 122

A

Session cases.

Answer 123

A

Because the main authority of Session Cases is derived from the semi official nature of the Scottish Council of Law Reporting, and the fact that the judges delivering the opinions have the opportunity to comment on a pre-publication draft of the Session Cases report.

Answer 124

A

Scots Law Times, Morisson’s dictionary and

Reports from the European Court of Human Rights.

Answer 125

A

• Unlike in the UK, the courts of the EU have always published their decisions as one of the official publications of the European Union.
They are the most authoritative reports BUT are slow to appear, and are produced the editorial assistance of headnotes in the UK fashion.
The judgement of the court is given in more formal terms than in the UK practise.

Answer 126

A

Appeal Cases (AC)
Queen’s Bench (QB)
Chancery (Ch)
Family (Fam)
Weekly Law Reports (WLR)

Answer 127

A

• International law is the collection of rules which are followed by states, governing the inter-relationship of states with one another.
Can be divided into Private and Public International Law.

Answer 128

A

A body of rules that regulate the actions of states in their dealings with each other.

Answer 129

A

It’s a body to which every nation state belongs to BUT it is not a sovereign law making body capable of producing law in the traditional sense of the word.

Answer 130

A

Enter into obligations and treaties
The UN general assembly and security council can also make resolutions which have the effect of requiring member states to abide by the international law
The UN does NOT have the power to enforce law as it is not a sovereign state.

Answer 131

A

International law cannot be used in Scottish cases in Scottish courts. This can never be done until it is implemented into domestic law by the UK Govt.

Answer 132

A

A particular form of criminal procedure which can be used by the Lord Advocate – he can ask the court of session to make a ruling on an uncertain point of the criminal law, of which the ruling will be determinate in subsequent cases.

Answer 133

A

Is it a matter of fact or is it a matter of law?

2. Whether a rule of customary international law might justify an individual in Scotland in committing a crime?

Answer 134

A

Substantive = Between the law of which is normative (what they can or cannot do)
Adjectival = the law with merely regulates the enforcement of these rules

Answer 135

A

Persons
Obligations
Property
Actions

Answer 136

A

•	All law is fundamentally directed at persons. 
•	Fundamental concepts consist of;
Personality
Good Faith 
Personal Bar
Rights and duties 
Juridical Act

Answer 137

A

• Law of persons determines who is or isn’t a person, and what acts you could undertake to change your personal status.
Only people can have rights and can have duties imposed upon them – law of persons is crucial.

Answer 138

A

The right of exclusive use in relation to the property concerned.
Can be acquired, created or transferred.
You can grant someone a subordinate right to use property e.g. by hiring something out.

Answer 139

A

When you are someone who is performing contractual duties to someone else, and you happen to come into possession of their property, you have the right to possession of that property until you are paid for your services.

Answer 140

A

All encompassing security which can protect all moveable property which the company owns at the time. If the charge is called up it is said to crystallise.

Answer 141

A

Restrictions that will affect the use of property. These are perpetual restrictions and they will restrict whoever is the owner of the property at that time.
There are a number of types of title conditions.

Answer 142

A

If someone is to leave a liferent to their wife in their will, but leaves ownership to his son – the wife will be entitled to live in the property but will not own it.
Usufruct = the right to use or occupy property for your lifetime.

Answer 143

A

In the lifetime of the trustor.

Answer 144

A

Comes into effect after the death of the truster.

Answer 145

A

Trustor, trustee and beneficiary.

Answer 146

A

Testate = the succession of property after someones death is provided for in a will.

Answer 147

A

There is no will. Where this happens, it is left to statutory provision to decide what happens to the assets.

Answer 148

A

The spouse or civil partner is entitled to the estate / house so long as it is not worth more than £473,000 (this figure fluxuates).

Answer 149

A

Legal rights are things that a certain person is entitled to after the death of another.
If you are given legal rights, you can insist upon these rights whatever the will says.

Answer 150

A

Procedures to ensure that the defender does what the court orders them to do?

Answer 151

A

Attachment
A debtors moveable property can be seized and sold off to pay a debt
Arrestment
A form of diligence by which a debtors’ moveable property may be frozen in the hands of a third party.
Inhibition
A form of diligence preventing a debtor from selling his heritable property or from granting a security over it.
Adjudication
A lesser used form of diligence, it also relates to moveable / heritable property.
In addition to an inhibition, it allows the creditor to get the debtor out of the property, get someone else in and lease it out and get rent money.

Answer 152

A

A court order to prevent a debtor from doing something.

Answer 153

A

A court order forces a debtor to do something.

Answer 154

A

The extinction of a right after a particular period of time (to ensure civil remedies are claimed within a reasonable timeframe)

Answer 155

A

After a period of time where you are no longer allowed to bring a claim to court. BUT you have not lost the right to claim, it is merely the case that the limitation prevents you from bringing the issue to court.

Answer 156

A

A judge’s right to hear a claim (can be exclusive or all inclusive)

Answer 157

A

When settling a contractual dispute.

Answer 158

A

Sheriff Court

Answer 159

A

Those who have been advocates or solicitors for at least 10 years are eligible to be appointed Sheriff, but few are appointed with less than a couple of decades of experience.

Answer 160

A

Sheriffs that can be appointed to sit anywhere to relieve pressure of business.

Answer 161

A

Appointed by the Sheriff Principal. They require no legal qualification.

Answer 162

A

1 sheriff (there is a right of appeal against this but it will depend on the nature of the claim brought before the sheriff)

Answer 163

A

Yes BUT only on the point of law but not on fact. Therafter no further appeal is allowed (only allowed 1 appeal then that’s it).

Answer 164

A

Either directly to inner house or to the sheriff principal.

Answer 165

A

When the value of a claim is over £5000.

procedure also used in family actions for divorce, dissolution of civil partnership, residence orders etc

Answer 166

A

Where the value of a claim is over £3,000, and up to and including £5,000.

Answer 167

A

Can be used by the Sheriff Court where the value of a claim is up to £3,000.

Answer 168

A

Court of Session (exclusive jurisdiction)

Answer 169

A

Court of Session

Answer 170

A

Court of session can grant a remedy in case where there is not an established solution already in existence. Used sparingly because its use goes against the fact that law should be about known rules and procedures.

Answer 171

A

In an outer house case, there is only one judge hearing the case at first instance.
The inner house hears appeals from the outer house.
Appeals are usually heard by 3 Judges BUT if the appeal raises an important issue on law, then a larger panel will sit – possibly 5 or 7.
Inner house divided into first and second division.
An extra division may be formed where there are a lot of cases in a busy period.
Despite the names given to them, the First and Second Divisions are of equal status.

Answer 172

A

Supreme court

Answer 173

A

First division led by Lord President of the Court of Session
Second division led by Lord Justice Clerk

Answer 174

A

The first minister of Scotland makes recommendations to the queen as to who should be a judge.
To be a lord president or lord justice clerk, they must be recommended by the first minister, and based on this, recommendation from prime minister.

Answer 175

A

Deals with disputes of tenants over “right to buy” compensation for compulsory purchase, and other matters.

Answer 176

A

Headed by Court of Session judge.

Has a legally qualified president and 3 other lay members.

Answer 177

A

Deals with cases arising out of certain types of land tenure.
Specifically deals with agriculture and crofting lands etc.
There is an appeal on the point of law, to the Inner House of the Court of Session.

Answer 178

A

It has a legally qualified chairman who is not, but has the same status as, a Court of Session Judge.
3 other lay members with agricultural experience also sit on the court, including at least one Gaelic speaker.

Answer 179

A

Hears certain cases arising out of contracts of employment e.g. discrimination at work, payment etc
Tribunals are staffed by specialist employment judges.

Answer 180

A

2 Scottish judges form the pool of judges who will hear appeals. Northern Ireland has 1 Judge, and the rest come from England & Wales.
These were known as Lord of Appeal and Ordinary. The new title for this is a Justice of the Supreme Court.

Answer 181

A

Held high Judicial office for 2 years
Been an advocate / barrister for 15 years
Must retire at 70 – this is a stark contrast to S.C in other countries where there is no retirement age.

Answer 182

A

• Hears;
Scottish cases
English & Welsh cases
Northern Irish cases
• The cases will be dealt with in the law appropriate to their part of the UK e.g. Scottish cases will be dealt with by applying scots law
• In a Scottish appeal you would normally find that the 2 justices would be Scottish, and the leading judgement will be led by one of the justices.
• In S.C litigation it is usual for each justice to write a judgement – mere statements saying “I concur” are very unusual, all justices will try to provide an opinion of some sort.

Answer 183

A

• First instance courts: Magistrates Court, County Court, High Court of Justice.
• Appeal from Magistrates Court to High Court.
When the high court hears such appeals it is known as the “Divisional Court”.
• Other appeals to Court of Appeal (Civil Division).
The rough equivalent to the inner house in Scotland.
• Final appeal to Supreme Court.

Answer 184

A

Justice of the Peace Court (Only deals with small offences - the maximum sanctions the court can impose are up to 60 days in jail) (- BUT in Glasgow, the Justice of the Peace courts are staffed by stipendiary magistrates who are qualified judges. Because they are legally qualified, they can impose sanctions up to 12 months in jail or a fine up to £10,000)

Answer 185

A

• It’s a lay-court. A justice of the peace who is not legally qualified sits as a judge in the case BUT sits with a legally qualified clerk who is there to advise them
- BUT in Glasgow, the Justice of the Peace courts are staffed by stipendiary magistrates who are qualified judges. Because they are legally qualified, they can impose sanctions up to 12 months in jail or a fine up to £10,000
• Justices are appointed to a Sheriffdom “in the name of Her Majesty” by the Scottish Ministers for a renewable period of 5 years, until reaching the age of 70.

Answer 186

A

• Deals both with civil and criminal cases – they deal with thebulk of legal work in Scotland
• Jurisdiction is a territorial one ALTHOUGH some criminal acts are reserved to highest court and cannot go before the sheriff court.
2 of these acts reserved to the high courts are rape and murder.

Answer 187

A

Used for less serious criminal offences – around 95% of criminal proceedings in Scotland come under a summary procedure.
A judge sits on his / her own and determines both matters of law and fact
Maximum punishment in a summary procedure case is 12 months in prison

Answer 188

A

Used for more serious cases.
The judge sits with a Jury to determine the outcome. The judge decides the law, and the jury decides the facts of the case.
In Scotland, the jury is comprised of 15 jury members (as opposed to 12 in common law systems).
A simple majority amongst the jury is enough to secure a conviction.
In addition to the jury’s conviction, all matters that have to be proved in the criminal cases must be subject to corroboration – you must have at least 2 separate testimonies to back up a point. Controversially at the moment the Scottish Govt is proposing the abolishment of corroboration BUT they are not proposing that the simple majority amongst the jury should be changed (one would think that this should go hand in hand in order to be justifiable).
For a solemn procedure case, the max punishment is up to 5 years in prison
• The procurator has the discretion to decide which court procedure should be used for a particular case.

Answer 189

A

Rape and Murder.

Answer 190

A

There is an appeal bench comprised of 3 judges.
convicted person can appeal against the very fact of conviction – that they should not have been found guilty. OR they can appeal against the sentence – i.e. they admit they are guilty but want a lesser sentence. OR you can appeal for both.

Answer 191

A

EU Treaties are the direct source of a significant body of ‘economic’ and other laws and policies to which individuals, companies and governments in every member state are bound, eg. Competition law,
Environmental law,
Economic law (especially in the Euro-zone countries),
Social law,
Employment law,
International trade policy,
Agricultural law and policy,
Consumer protection,
Research policy,
Development policy,
Culture,
Citizenship,
Human rights.

Answer 192

A

28 (grown to this number over a series of enlargements)

Answer 193

A

Luxembourg

Answer 194

A

18 member states sharing the same currency (euro).

Answer 195

A

In the EU, goods, services, capital and persons move freely between member state.

Answer 196

A

A union in which common laws are enacted and common policies agreed by institutions operating at the EU-level and located (mainly) in Brussels.
A union in which there is ever increasing cooperation on matters of internal justice and security (police, immigration, asylum) and foreign and defence policies;
A powerful player in global trade and economic negotiations.

Answer 197

A

A passport-free group of 22 member states (plus 4 non-EU countries)

Answer 198

A

Deliver lasting peace
Deliver increasing prosperity
Observe fundamental human rights
(Monet and Schuman?)

Answer 199

A

Economic reconstruction and recovery of a war-torn European continent

Answer 200

A

The EU can only legislate on things tightly prescribed by the EU treaties.

Answer 201

A

Establishing new form of economic and political integration (more than cooperation) between the post-war (West) European states

Answer 202

A

Six founding countries – Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands – signed an international treaty under which their heavy industries (coal and steel) would be placed under under common management. The political objective was “to make war not only unthinkable but materially impossible”;

Answer 203

A

(i) the need for German economic recovery to benefit the entire European continent, (ii) a desire to begin a process towards the political integration ofEurope

Answer 204

A

1st January 1958

Answer 205

A

The European Economic Community (EEC), now European Union (EU)

Answer 206

A

Treaty provides for the general economic integration of the six (same as ECSC) signatory countries to be achieved by the progressive removal of the formal barriers to the free movement of goods, services, capital and persons, and all other measures having equivalent effect;
Establishes the common institutions necessary for the joint governance of the EEC – the European Commission (independent executive authority), the Council of Ministers (representatives of national governments), the European Parliament (elected members from all member states), the European Court of Justice (a judge from each of the member states)

Answer 207

A

Welfare gains to consumers from:

Exchange of goods and services
Specialisation in production of goods and services
Increased cross-border competition
Greater choice
Free movement of labour and capital

Answer 208

A

Faster economic growth for the EU as a whole, though not every country will benefit all the time.

Answer 209

A

National governments lose control over direct and indirect economic policy instruments (including national rules and regulations) that restrict free movement of goods, services, capital and labour – i.e. policies of economic protectionism

Answer 210

A

National governments are vulnerable to the ‘loss-of-economic-sovereignty’ accusation.

Answer 211

A

Most economists agree, most of the time, that it is.

eg. it would be very hard to grow bananas in UK - we benefit from free trade in this way.

Answer 212

A

Removal of formal barriers (tariffs and quotas) on intra-EU trade in goods achieved by July 1967 (‘negative’ integration)
BUT
Progress on removing ‘measures having equivalent effect’ that prevented free movement (i.e. rules and regulations governing the domestic production and sale of products and the employment of labour) was extremely slow as it required the harmonisation of national rules and regulations (‘positive’ integration). Governments were reluctant to eliminate informal (protectionist) barriers to trade due to adverse (short term) effect that import-competition would have on domestic output and employment;
The original EU Treaty stipulated that harmonisation of rules and regulations required the unanimous agreement of all member states in the Council of Ministers. This ‘unanimity’ rule severely obstructed progress in opening the internal market, and throughout the period 1958 until 1985 progress was slow and a “complete” EU common market remained elusive.

Answer 213

A

 A common agricultural policy (including fisheries),
 A common transport policy,
 A system ensuring that competition in the common market is not distorted (including by state aid),
 A European Social Fund to improve employment opportunities for workers;
 The association of overseas countries and territories.

Answer 214

A

 EU has moved into new areas of competence with permission of all member states.
 For example, pollution and the environment is everyone’s problem. Pollution from one country doesn’t stop at another countries borders.

Answer 215

A

Legally binds the member governments to the objectives and obligations set out in the Treaty (and subsequent revisions);
Establishes an EU-level governance structure (Commission, Council, Parliament, Court) for developing, legislating and enforcing EU laws and policies

Answer 216

A

Both the Council of Ministers of the EU and the European Parliament

Answer 217

A

It is binding on all member states and takes precedent over national law.

Answer 218

A

MUST have a legal basis (i.e. is justified by an article) in the Treaty. The Treaty therefore limits the legislative competence of the EU.

Answer 219

A

Heads of Government and State of 28 member states

Answer 220

A

One Commissioner from each Member State and presided over by the President of the Commission (executive authority)

Answer 221

A

Co-legislature comprising Ministers from member state governments

Answer 222

A

Co-legislature comprising 750 directly elected Members

Answer 223

A

1 judge from each member state (highest court in the EU)

Answer 224

A

	Single European Act 1986
	Treaty on European Union 1993
	Amsterdam Treaty 1999
	Nice Treaty 2003
	Lisbon Treaty 2009

Answer 225

A

Head of member state government

Answer 226

A

Any government, or the European Parliament, or the European Commission

Answer 227

A

A ‘Convention’ is convened to negotiate a revised Treaty.
The Convention shall submit proposals to the European Council who decide “by common accord”.
If agreed, the revised Treaty must be ratified by all Member States before entering into law.

Answer 228

A

To extend or to modify the legislative and policy competences of the EU level of governance to meet new challenges or achieve new objectives.
To revise the legislative procedures and responsibilities of the EU Institutions.
To change the objectives and purposes of the EU.
To accommodate new member states joining the EU.

Answer 229

A

the Single European Act (SEA)

Answer 230

A

Motivated by need to raise growth rates and employment in Member States which many argued could be achieved by creating a genuine single European market. Treaty commitment to establish the free movement of goods, services, capital and persons by December 1992 – the single European market initiative.

Answer 231

A

Amended EU legislative procedure to permit Council of Ministers of the EU to decide common EU laws by Qualified Majority Voting (QMV) on most legislative proposals aimed at “completing the internal market” instead of requiring unanimous agreement of all.
SEA extended EU powers in the fields of environment and launched the notion of developing a common EU foreign and security policy.

Answer 232

A

To make EU companies more competitive and dynamic domestically and in global markets, thereby promoting economic growth and higher employment.

Answer 233

A

Treaty on European Union (TEU) – a.k.a. The Maastricht Treaty

Answer 234

A

The European Communities (EC), the Common Foreign and Security Policy (CFSP), and Justice and Home Affairs (JHA)

Answer 235

A

Extends the competences of the EU.
Launches the concept of economic and monetary union (EMU) for the EU, culminating in the introduction of a common currency.
Gives significant legislative power to the European Parliament for first time (‘co-decision’).

Answer 236

A

Strengthen the democratic legitimacy of the institutions by introducing (legislative) co-decision – i.e. increasing the powers of the European Parliament.
Improve the effectiveness of EU legislative process by extending QMV in the Council.
Establish economic and monetary union (“…a single market needs a single currency…”?).
Develop the EU social dimension in the form of a Social Protocol to the Treaty (“…some part of the gains of the internal market must accrue to workers”).
Establish a common foreign and security policy (triggered by the fall of communism).

Answer 237

A

Trans-European networks
Industrial policy
Consumer protection
Education and vocational training
Youth
Culture

Answer 238

A

January 1999

Answer 239

A

The European Parliament gained power as more fields of EU legislative competence were made subject to co-decision.
Specific changes to the Institutions of the EU were made to facilitate EU enlargement to include 10 new members (eight from former ‘East Europe’)

Answer 240

A

Significant reforms to specific aspects of the EU Treaties:

Reforms the EU institutions – creates positions of (i) President of European Council and (ii) High Representative for Foreign Affairs and Security Policy.
Improves the EU decision-making process.
Strengthens the democratic dimension of the EU by giving national parliaments greater stake in EU legislation.
Reforms the internal policies of the EU.
Strengthens the external policies of the EU – coherence and visibility.

Answer 241

A

Membership of the Eurozone would impose conditions on the fiscal (taxing and spending) policies of EU countries
Membership of the Eurozone inevitably means national governments are no longer able to use monetary policy (interest rates and exchange rates) as instruments of domestic economic policy.

Answer 242

A

Economic ‘sovereignty’ describes the ability of a government to take unilateral economic policy actions without any legal impediment or any need to coordinate its activities with any other government

Answer 243

A

It means agreeing (i) to give up the right to veto common measures and (ii) abiding by the rules of collective decision-making.

Answer 244

A

Intergovernmentalism describes the general proposition that sovereignty is shared between governments, and that decision-making rules between governments are established to determine when collective action will be taken.

Answer 245

A

On the basis of ‘qualified majority voting’ (QMV). For a proposal to be accepted under QMV it must command a double majority – this being 55% of the States of the Union and 65% of the European population.

Answer 246

A

Supranationalism describes the general proposition that sovereignty is re-assigned from national to supranational level – in the case of the EU this means that decisions are no longer taken by national governments but by the Institutions of the EU.
- The European parliament is a supra nationalist institution of the EU.

Answer 247

A

European Parliament and European Council - they take decisions on the basis of simple majority between the elected members.

Answer 248

A

Through Treaty reform which requires the explicit consent of every Member State (consequently only the Member States themselves can agree outcomes that lead to an erosion of ‘national sovereignty)

Answer 249

A

A set of principles according to which, action should occur.

Answer 250

A

The formalisation of the role and powers of the European Council.

Answer 251

A

The power to take action to pursue a specific aim.

If the legal basis is wrongly identified, that can determine the invalidity of the act.

Answer 252

A

Providing the Union with “unnamed powers” to achieve one of its stated goals when the Treaty does not expressly provide for the necessary powers…
BUT subject to strict limits, especially by requiring that action take place within the framework of the Treaty’s objectives and is “appropriate” and “necessary” - a “special legislative procedure” must be followed.

Answer 253

A

Both the European Union and member states can act on it. BUT the MS cannot take actions in areas in which the Union has already acted or act in a way that prejudices the effectiveness of Union action (e.g. social policy)
Union action must conform to the principle of subsidiarity - the union can only action on it if it would be better achieved by them than the MS.

Answer 254

A

Union able to act only to support/assist Member States, e.g. employment policy…

Answer 255

A

If 1/3 national parliaments reiterate an unfavourable opinion on a proposal, the latter shall be given no further consideration… unless the Council or EP vote by 55% in favour.

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Unit 1 Flashcards

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