WB1 Flashcards
What is a constitution?
A constitution is the body of laws by which a country is governed.
What are the three main branches of government?
Legislature
Executive
Judiciary
What is the legislature? What is it in the UK?
The legislature consists of the body of government that makes law by creating legislation.
In the UK, the legislature is Parliament.
What does constitutional law set out?
The relationship between the different branches of government, the powers and duties of government.
What are the 3 main responsibilities of the executive branch of government?
- Day-to-day administration
- Formulates policies
- Makes proposals for new legislature
What are the two main responsibilities of the judiciary? Who does it consist of?
- Administration of the country’s legal system
- Interprets existing laws when there is some dispute about the meaning or scope
Consists of the courts and their judges.
What is parliamentary sovereignty?
The concept that the legislative branch of government is the supreme legal authority in the country
What are the two implications in the UK of parliamentary sovereignty?
The courts (judiciary) cannot overrule a law that has been made by Parliament.
Parliament cannot create a law that is fixed for ever and can never be changed.
What is separation of powers with regards to the government?
The three main branches of government (i.e. the executive, legislature and judiciary) should be functionally independent.
What are the 4 characteristics of the Rule of Law?
- The rights of individuals are determined by laws and legal rules
- No person should be punished unless a court decides that there has been a breach of the law by that person
- No one is ‘above the law’
- . Subordinates who carry out instructions of their bosses are legally responsible for any action they carry out which is outside the law
What are the 3 primary roles of the monarch?
- Giving royal approval, known as Royal Assent, to legislation passed by Parliament
- Formally appointing the Prime Minister to lead the government (exec branch)
- Holding official positions, such as Head of the Armed Forces
What is the royal prerogative?
The royal prerogative refers to powers that can in theory be exercised by the monarch acting alone. In practice the monarch does not have any such powers, and royal prerogative refers to powers, not covered by any statute, that can be exercised by the government (executive branch) without the need to consult or obtain approval from Parliament.
What are the 3 categories of prerogative power?
- Constitutional prerogatives of the Crown
- Legal prerogatives of the Crown
- Prerogative executive powers
What does public law cover?
The relationship between private individuals and the state
What does private law deal with?
Deals with legal obligations and relationships between private individuals
What is criminal law? Is it private or public law?
Public law that sets boundaries of acceptable conduct and the obligations of individuals and organisations to society as a whole
What is civil law? Is it private or public law?
Private law that establishes ways in which individuals should act towards each other and establishes remedies
What is the standard of proof in criminal law?
Prove beyond reasonable doubt that the accused is guilty of the offence as charges
What is the standard of proof in civil law?
Lower than criminal cases, prove the validity of the claim on the balance of probabilities
How is law breaking punished in criminal law vs civil law?
i. Fines, prison, community service
ii. Damages, ordering an individual to do or not do something (eg injunctions)
What is a court of first instance?
A court where a case is heard for the first time
What is the hierarchy of the criminal courts system?
Magistrates’ Court
Crown Court
Court of Appeal
Supreme Court
What are the 3 ways Magistrates’ court deals with criminal offences?
Summary offences: less serious cases, court decides the guilt or innocence of the accused individual and imposes a penalty if they are found guilty
Either way offences: more serious cases, can be dealt with either by magistrates or before a judge and jury at the Crown Court
Indictable-only offences: most serious cases, will go to trial in a Crown Court
What is the hierarchy of the civil courts system?
County Court
High Court
Court of Appeal
Supreme Court
What are tribunals?
Tribunals are specialist judicial bodies which decide disputes in particular areas of law covering a wide range of subjects
What is the tier structure for most tribunals?
First-tier tribunals deal with cases in the first instance
Upper tribunals hear appeals from the lower first-tier tribunals
Why might you choose a tribunal instead of going to civil court?
Quicker, cheaper (no lawyer fees), cases dealt by people with specialist knowledge, informal proceedings, decisions may be inconsistent
What is devolution?
The transfer or delegation of powers from a central authority to a lower level, such as a regional or local administration
What are the 3 level of courts in Scotland?
- Justice of the Peace Courts which hear criminal cases
- Sheriff Courts, which hear civil cases and serious criminal cases
- Scottish Supreme Courts
What are the 3 main sources of law in England & Wales?
- Legislation
- Case law
- EU law
What is primary legislation?
Primary legislation is legislation made by the legislative branch of government. In the UK, Acts of Parliament are primary legislation.
What is secondary legislation?
Is made by a body or individual to whom powers have been given to make legislation within authority provided by primary legislation.
How does a bill become an Act of Parliament?
First it must go through the following stages in the Commons:
- First Reading - formal introduction of the bill
- Second Reading - the bill is debated and must pass a vote to get through to the next stage
- Committee Stage - the bill then goes for detailed debate by a committee of members of the House
- Report Stage - bill is returned back to the House for further debate
- Third Reading - the bill is read for the final time followed by a vote which must be passed to proceed to the House of Lords
Once the wording of the bill is agreed by both Houses, the bill is sent to the Lord Chancellor who grants Royal Assent on behalf of the monarch and becomes an act of Parliament.
What are the two types of ultra vires?
Procedural ultra vires - when rules are made outside of the procedures specified by the primary legislation
Substantive ultra vires - when rules are made outside the powers allowed by the primary legislation
What does ultra vires mean?
If rules or regulations are made that are outside the
procedures specified or the powers allowed by the primary legislation, they are ‘ultra vires’ and invalid
What 4 rules were developed to provide a framework for interpretation?
- Literal rule
- Golden rule
- Mischief rule
- Purposive rule
What is the golden rule?
Words in legislation are given their literal meaning unless this would result in something that is manifestly absurd.
What is the mischief rule?
The judge interprets a statute in a way that provides a suitable remedy for the ‘mischief’ that the statute was intended to prevent. Used to fill in the gaps in the wording of the law.
What is the purposive rule?
To decide what the original legislation intended to achieve, and apply a remedy in the case that meets the intended purpose of the law, even if this means not following the actual words in the legislation
What is common law? What is the remedy?
It is a source of civil law that has been developed over time and which is based on customs and precedent – what has gone before.
Only remedy is damages.
What is equity law? What is the remedy?
Can be used when the claimant in a dispute petitions for a remedy other than damages, where damages would be an unsatisfactory remedy to the dispute, where the common law is absent, or where the common law would act in a manner unfair to the claimant
Injunctions, orders for specific performances
What is the doctrine of judicial precedent?
The system whereby judges follow decisions that have been made in a similar previous case in the past is known as the doctrine of judicial precedent. Used inc common law.
What are the 3 factors that determine whether precedents are binding or persuasive?
- Hierarchy of the courts
- Ratio decidendi or obiter dicta
- The facts of the case
What are expected and reserved matters?
Expected: matters where it is not envisaged that powers will be devolved
Reserved: matters that currently remain within the power of the UK gov’t but may become transferred matters at some time in the future
What are the roles of the European Court of Justice?
- Ensuring EU law is interpreted and applied in the same way in every EU member state
- Ensuring EU states abide by EU law
- Settling disputes between national governments and EU institutions
- interpreting and enforcing EU law
What are the Convention Rights?
- Right to life
- Prohibition of torture
- Right to liberty and security
- Right to a fair trial
- Right to freedom of expression
- Freedom of thought
- Prohibition of discrimination
What 3 provisions are included in the Human Rights Act 1998?
It is unlawful for a public authority to act in a way that is incompatible with a Convention Right
Where a court finds that the action of a public authority is unlawful under the provisions of the Human Rights Act, it can grant a remedy or make an order that is within its powers
If a government minister finds that a provision in UK legislation is incompatible with the ECHR and Human Rights Act, they should either initiate an amendment to the UK legislation
What are the four chambers of upper tribunals?
▪ Administrative appeals
▪ Tax
▪ Immigration and asylum
▪ Lands
