Unit 1 - The English Legal System Flashcards
Legal Duty vs Moral Duty
legal duty - carries with it sanctions enforceable by the state
moral duty - does not carry sanctions that are enforceable by the state
what are the different types of law?
- private
- public
- civil
- criminal
private law
- private relationships between individuals (including companies)
- enforced by individual taking action against another individual
public law
- relationship between the state and individuals
- state enforces standards of behaviour
criminal law
relationship between an individual and the community as a whole
civil law
relationship between indiviudal and members of the community, NOT as a whole
differences between criminal and civil law:
- what is the case called?
- who starts the case?
- can victim stop prosectution?
- what is the objective?
- what is the standard of proof?
- what is usually the outcome?
- criminal - prosecution
civil - action or claim - criminal - police, then CPS
civil - individual, the victim/claimant - criminal - victim cannot stop, CPS can proceed even if victim doesn’t want it
civil - claimant can stop the claim - criminal - punish
civil - compensate - criminal - beyond all reasonable doubt
civil - on a balance of probabilities - criminal - fines/imprisonment
civil - compensation, damages
What are some equitable remedies?
- injunction
- decree of specific performance
Injunction
- order of court compelling someone to do something OR to refrain from doing something
Decree of specific performance
- order compelling someone to perform their obligations under a contract
What are the sources of law in England and Wales?
- common law
- civil law
- Equity
- Legislation
What is equity?
- equity supplements the common law
- can be invoked where the application of common law allows a person to act unconscionably
- equity PREVAILS OVER common law
unconscionability
- decision made using the common law that offends a person sense of right or wrong
Common law
- AKA case law
- judge made law that has developed from cases
Civil law
- codified roman law derived legal systems
Legislation
- passed by parliament
- e.g. statute
Doctrine of Paliamentary Supremecy
- parliament is the supreme law making body in the country
- statute can amend case law
- case law cannot amend statute
- parliament has freedom to make any laws
- parliament cannot bind its successors
Who makes law in England and Wales?
- Parliament
- The Courts
What does parliament consist of?
- Queen
- House of commons - democratically elected
- House of Lords - not elected
Where do statutes apply?
England, Wales, Scotland, NI
unless stated otherwise
creation of acts of parliament
- green paper - consultation on new law
- white paper - firm proposal on new law
- act begins its life as a bill
stages of creation of acts of parliament
- House of commons - first reading
- second reading - main debate on bill
- committee stage - scutinises bill
- report stage - house votes on any amendments
- third reading - consider the bill with amendments
- proceedings in house of lords
- amendments by Lords - sent back to commons in any amendments made
- the royal ascent - monarch gives approval and bill becomes an act
what are the different types of legislation?
primary and secondary
primary legislation
- the statute itself
- public bills and private bills
secondary legislation
- delegated legislation
- statutory instruments and bye-laws
public bill
concern matters affecting the public as a whole e.g. stalking
private bill
affect particular persons/areas in the community e.g. building a new railway
bye-laws
- made by local authorities to deal with issues in their own area
e. g. coventry city council introducing bye-law to ban drinking alcohol on the street
statutory instruments
- delegated legislation made by government ministers
- saves times
- ministers make regulations for areas they are specifically responsible for
- government can call on expertise
what are the different types of public bills?
legislation which makes amends
consolidating legislation
codifying legislation
consolidating legislation
‘tidy up the law’
- one statutue ‘re-enacts’ law which was previously contained in several different statutes
codification
- all the law on some topic is brought together in one new statute
What are the different EU institutions?
- The coucil
- council of the European Union
- European Parliament
- European commission
- Court of Justice of the European Union
what are the types of EU legislation?
- primary - treaties themselves
- secondary - regulations, directives, decisions
Eu Primary Legislation - what are treaties?
- TFEU divided into sections, called articles
- these articles are directly effective in member states
EU secondary legislation - what are regulations?
- once passed, they automatically become part of member states’ legal system
- no need for further enactment by member state
EU secondary legislation - what are directives?
- binding as to the result that needs to be achieved by member state
- it is up to member state how they implement, as long as they achieve the objective within the time limit
EU secondary legislation - what are decisions?
- binding in their entirety upon those to whom they are addressed
Does the EU have supremecy over parliament?
YES
What is European Convention of Human Rights
- drafted by council of EU after WW2
- idea was that it would be a statement of western Europes principles - prevent large scale human rights violations
What is the Human Rights Act 1998
- statute which incorporates ECHR into UK law
- gives judge the power to make a declaration of incompatibility if it is found that an act of parliament is at variance with the protection of one or more convention rights
