Unit 1 - Nature of Law and the English Legal System Flashcards
Case - Removed the necessity for the Law Lords/Supreme Court to be bound by their own decisions.
Practice Statement 1966
Case - Removed requirement for the Civil Court of Appeal to be self-bound, provided the following existed:
- A previous decision was made in error
- There are two conflicting decisions
- The Supreme Court has made a conflicting decision.
Young v Bristol Aeroplane Co Ltd (1944)
Case - example of an obiter dicta being persuasive
Hill v Baxter (1958) - bee automatism
Latin term for the fundamental principle of following precedent.
Stare decisis
Latin term for “reason for decision” - the main part of the judgment
Ratio decidendi
Latin term for “other things said” - other parts of the judgment which may be influential
Obiter dicta
What are the three choices a judge has in regards to precedent?
Follow, overrule, or distinguish
Case - give an example of the Law Lords overtturning their own decision.
Anderton v Ryan (1985) overturned by R v Shivpuri (1986)
Name three types of alternative dispute resolution.
Tribunals, negotiation and mediation
Definite the three types of crime in relation to which Court the matter may be heard.
Summary - Magistrates only
Either-way - Crown or Magistrates
Indictable - Crown only
Name the stages of a bill becoming an Act of Parliament.
Drafted (either by government or by private member)
First Reading (announcing to Parliament that the Bill exists)
Second Reading (debate and discussion on the contents of the Bill and suggesting additions)
Committee (being reviewed and revised by the House Committee, including consulations with relevant groups)
Report (reporting back to Parliament on the commitee decisions)
Third Reading (debate on the actual contents of the Bill)
Bill goes to other House (usually Lords) for approval - can lead to “ping-pong”
If other House approves, goes to the monarch for Royal Assent
Which organisations govern and regulate barristers?
Governed by Bar Council, regulated by Bar Standards Board.
Which organisations govern and regulate solicitors?
Governed by Law Society, regulated by SRA
What are the three types of delegated legislation?
Orders in Council, Statutory Instruments and By-Laws
What is an Order in Council?
An Order made by the Privy Council.
What is a Statutory Instrument?
An organisation set up by Parliament to pass laws in a specialised area.
What is a by-law?
A local law set up by a local authority such as a council.
What are the three means of judicial control on delegated legislation?
Procedural ultra vires, substantive ultra vires, and Wednesbury unreasonableness
What is procedural ultra vires?
A form of judicial control on delegated legislation where the legislation fails to follow the “how” instructions in the parent Act.
Case - example of procedural ultra vires
Agricultural Training Board v Aylesbury Mushrooms Ltd (1972) - mushroom consultation
What is substantive ultra vires?
A form of judicial control on delegated legislation where the legislation fails to follow the “to what extent” instructions in the parent Act and has exceeded its powers.
Case - example of substantive ultra vires
R v Secretary of State for Health ex parte Pfizer Ltd (1999) - Viagra Ban
What is Wednesbury unreasonableness?
A form of judicial control on delegated legislation where the legislation “is outrageous in its defiance of logic”
Case - example of Wednesbury unreasonableness
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) - Sunday cinema
What are the four approaches to statutory interpretation?
Literal rule, golden rule, mischief rule and the purposive approach
What is the literal rule?
A rule in statutory interpretation where the Act in question is treated entirely literally without regard to potential absurdity.
Give one pro and one con of the literal rule.
Pro - respects parliamentary sovereignty and provides certainty
Con - Can lead to injustice or absurd results and assumes perfect drafting
Case - example of literal rule
Fisher v Bell (1961) - knife sale
What is the golden rule?
A rule in statutory interpretation where words are given their literal meaning unless the result would be absurd.
Give one pro and one con of the golden rule.
Pro - avoids absurding while respecting parliamentary sovereignty
Con - “absurd” is undefined and this may lead to inconsistency
Case - example of golden rule
Re Sigsworth (1935) - martricide inheritor
What is the mischief rule?
A rule in statutory interpretation where the rule interprets the Act in respect of the “mischief” it is attempting to remedy.
Give one pro and one con of the mischief rule.
Pro - closes loopholes and is likely to be just
Con - contradicts parliamentary sovereignty and may lead to uncertainty
Case - example of mischief rule
Smith v Hughes (1960) - prostitute window
What is the purposive approach?
A rule in statutory interpretation where the Act is interpreted in relation its its purpose rather than what it may literally say
Give one pro and one con of the purposive approach.
Pro - just, allows reaction to new technology, avoids absurdity
Con - may lead to absurdity, does not respect parliamentary sovereignty
Case - example of purposive approach
R v Coleman (2013) - boat theft
Case - allowed judges to consult Hansard
Pepper v Hart (1993) - teacher tax
