General Revision Flashcards

Question

What happened in 1744-1745

Answer 1

Jacobite Rebellion and The Battle of Culloden

Answer 2

late 18th century

Answer 3

The European Communities Act 1973

Answer 4

Scotland Act 1978 established

Answer 5

new labour elected with constitutional reform

Answer 6

Human Rights Act, Scotland Act

Answer 7

The Scottish Parliament reconvenes after 300 years of adjournment

Answer 8

nationalist government elected

Answer 9

nationalist gain overall majority

Answer 10

Independence referendum

Answer 11

SNP sweep Westminster election

Answer 12

``` The Bill of Rights 1689 The Act of Settlement 1701 The Treaty of Union 1707 Treaty of Rome 1957 European communities act 1975 European convention of human rights 1950( Human rights act 1998) The Scotland Act 1998 European Union(Withdrawl) Act 2018 ```

Answer 13

14th century - 1707 - Acts of the Parliament of Scotland (APS) 1707-1800- Acts of Parliament of Great Britain 1800- date - Acts of the Parliament of the UK -public general acts -local acts -private acts Legislation from European Union -Regulations -directives -decisions Acts of the Scottish Parliament (ASP)

Answer 14

legislation that hasn't been passed by parliament but passed by another source of authority, it deal with specific details. often used to bring acts in to force.

Answer 15

- statutory instruments - acts of adjournal - acts of sederunt - order in council

Answer 16

it is regarded as secondary legislation since the sovereign parliament at Westminster has delegated power to make law for Scotland. However it is politically classes as primary legislation.

Answer 17

Statute law does not give every legal rule. judges often have to decide cases according to the rules that have not been enacted by a legislative body. They do this according to common law, that is to say the unwritten laws that resolve every question not covered by statute. - enhances statutory law - develops legal understanding - recalibrating the law

Answer 18

``` Institutional writers textbook and legal literature ( Roman Law, Early English Works, Institutional works, older legal literature, encyclopaedia, English textbook, journals) Custom Equity International Law Customary International law ```

Answer 19

it is what is accepted universally, it needs to be done or needs to be decided. Its what everyone accepts is proper for a long time.

Answer 20

natural justice or fairness and remains a source of law in that the courts have the power to limit the application of a strict rule of law when to do so is fair and in England equity was historically a separate system from common law.

Answer 21

a conglomeration of agreements and understandings between states by which they regulate relations between each other and with which they set out common standards and principles by which they deal with their citizens.

Answer 22

practices and customs of states which they follow out of a sense of international obligation is part of scots law, treaty law requires to be enacted into Scots law before it is enforceable in courts. examples of this below - International criminal justice - war crimes and crimes against humanity - principle of interpretation of statutes - international law as an influence on law reform

Answer 23

the law being created not by a court but by some other authority

Answer 24

sovereign parliament (Westminster) devolved parliament (Holyrood) EU institutions Delegates

Answer 25

HC starts proceeding in HOC 1. First reading - whole house, formal presentation of the bill, no vote. 2. Second reading - wholes house, debate on general principles behind bill, vote. 3. Committee Stage- detailed line by line scrutiny, amendments made and debated, vote. 4. Report stage - whole house, more amendments and consideration of amendments, vote 5. Third Reading - whole house, final consideration of bill, final vote on whether it passes.

Answer 26

Statutory Rules and orders in council by-laws rules of court

Answer 27

1. Committee consideration, sometimes legal adviser hears the bill and writes a report, considered by the whole parliament and there is a vote 2. line by line scrutiny by committee, sometimes the whole parliament taking and voting on amendments 3. bill is amended, considered by whole parliament and then amended again, voted on, complete voted on by the whole parliament 4. Post-legislative scrutiny - advocate general and lord advocate can challenge the validity of the bill 5. Royal assent

Answer 28

1. the English language is poetic, not precise 2. Tiny errors, in statutory drafting with inherent ambiguities and mistakes 3. Weasel words Demand that a judgment is made 4. Law works at the margin of words 5. Legislation has gaps and society develops

Answer 29

the parliamentary intention, mischief rule, literal rule, the golden rule, and purposive approach

Answer 30

Statute law consists of those words that Parliament has enacted. it is for courts to construe those words and its the court's jobs is doing to find the intention of parliament Lords Browne Wilkinson Pepper v Hart However, we are seeking not what Parliament meant but the true meaning of what they said. Lord Reid Black- Clawson v papierwerke

Answer 31

this approach presupposes that existing law such as common and statutory contains a gap that allows for social mischief. Every piece of legislation according to this rule is designed to fill in the gaps. So the role of the judge in interpreting the statute is to identify the mischief that the act was designed to resolve and to interpret the statute in the way that best addresses the mischief. smith v Hughes - prostitution Corkery v carpenter - drunk on a bicycle on the carriage, werent allowed to be drunk on carriage on the highway. leadbetter v Hutchinson - poached salmon inside of car

Answer 32

apply the literal meaning to the words used, if words are clear you must follow them even if it leads to a manifest absurdity Lord Esher Whitely v Chappell - using dead man's vote London and North E railway - compensation for those who were injured on the railway by relaying or repairing Fisher v Bell - offensive weapons act, flick knives, for sale in the window

Answer 33

This is when you start with the literal rule but don't take it to the absurdity. Lee v Knapp - road traffic act, stopped then drove off Adler v George - obstruct HM forces Federal steam navigation - ship discharged oli into sea

Answer 34

This gives effect to the true purposes of legislation and is prepared to look at much extraneous material that bears upon the background against which legislation is enacted. it is a continuum with some judges much more willing than others to go beyond the strict meaning of the words parliament used. Pepper v Hart Royal college of nursing - abortion whether nurses could do it Doogan v Greater Glasgow - ward supervisors participate in abortion Re X ( A child) - parental order, must meant ought usually

Answer 35

Presumptions - criminal and revenue statutes are to be interpreted restrictively - presumptions apply in ambiguity - common law is not overruled except explicitly - the legislation enhances common law - Parliament does not intend to act contrary to international law - Statutes are not to be interpreted to be retrospective - every word in legislation is there for a reason it has an effect - the statute uses words with internal inconsistency

Answer 36

grammar and punctuation

Answer 37

list of words followed by a much more generic word is restrained in its meaning by the list that precedes it. powell v Kempton - a place for betting

Answer 38

words have to be interpreted with the words surrounding them and the context in which they are used. statistics and registration service act 2007

Answer 39

explicit inclusion of a thing is the implicit exclusion of everything else

Answer 40

- whole statute - short title - long title - the preamble - heading and side-notes - interpretation section

Answer 41

- dictionaries - technical journals - interpretation act 1978 - interpretation and legislative reform - Hansard and other official reports - explanatory notes and policy memorandum - international treaties and convention - European union law

Answer 42

european convention of human rights ratified by the UK in 1950.

Answer 43

Those articles of the ECHR enacted in schedule 1 to the 1998 act becomes domestic law as convention rights. The acts UK parliament cannot be struck down because that parliament is sovereign can do what it wants. the acts of the Scottish Parliament can be struck down as it has limited powers and due to its competence being limited by the Scotland Act 1998 and Human rights act 1998

Answer 44

court or tribunal determining a question which has arisen in connection with a Convention right must take into account any - a) judgement, decision, declaration or advisory opinion of ECHR b) opinion of the commission c) decision of the commission d) decision of committee of Ministers whenever made or given, so far as in the opinion of court or tribunal it is relevant to the proceedings in which that question has arisen.

Answer 45

so far as it is possible to do so primary legislation and subordinate legislation must read and give effect to in a way which is compatible with the Convention rights 32a to primary legislation and subordinate legislation whenever enacted. b) does not affect validity continuing operation or enforcement of any incompatible primary legislation c) does not affect the validity continuing operation or enforcement of any incompatible subordinate legislation if primary legislation prevents removal of incompatibility

Answer 46

court must stretch the menaings of words and phrases to ensure consistency with the ECHR this is so even if it goes against the obvious unambigious meaning of the words and even if it goes against the c;ear intention of parliament. stretched meaning must be possible otherwise parliamentary sovereignty has gone

Answer 47

declarations of incompatibility to preserve parliamentary sovereignty only available against Westminster legislation court has power under s4 to declare incompatibility n

Answer 48

confer a right or impose a duty be amendable to judicial enforcement specify consequences for failure

Answer 49

Anti- slavery Day Act 2010

Answer 50

Local governemt act 1998 s28

Answer 51

Warm Homes-Energy conservation act 2000

Answer 52

1. decide what want to say 2. say it in a clear and concise language 3. analyse it to ensure it stands up 4. drafting art not science 5. role is not to make policy but to offer a workable mechanism to achieve policy 6. purpose is effect change of law 7. all words should have an effect 8. always test wording out on a disinterested party

Answer 53

This is a local court. it was a hereditary office and lasts until the Jacobite Rebellion in 1745. At present, the sheriff court is divided into 6 sheriffdoms. within each sheriffdom, there is a sheriff principal.

Answer 54

simple procedure, less than £5000

Answer 55

civil claims worth £5000- £100,000

Answer 56

this consists of 1 judge, often has a jury | claims for personal injury, causes bodily or mental loss to human persons, civil juries - 12 members

Answer 57

members include all sheriff principles and some sheriffs, occasionally senator. may sit as one judge, on minor issues or as a bench on substantive appeals. Single judges sit locally, but a bench sits at Edinburgh. Ordinary actions appealed from sheriff got to sheriff appeal court without permission then inner house with permission then the supreme court with permission

Answer 58

been about since 1532. court of first instance and appeal sits edinbrugh cannot hear cases worth less than £100,000 outer house- first instance, jury 12, lord ordinary sit alone with jury inner house- appeal, split into 2 divisions of 5 judges 1st - lord president 2nd - lord justice-clerk extra division- 3 judges, chaired by most senior appeal to the UK supreme

Answer 59

``` only true UK wide court final court of appeal for civil cases comprised of 12 justices headed by a president and deputy president normally 5 justices, occasionally sit 3 ```

Answer 60

UK Supreme Court Court of Session Sheriff Appeal Court Sheriff Court

Answer 61

this is administered by courts and tribunals jurisdiction over minor offenses penalties 60 days imprisonment and up to £2500 fine

Answer 62

summary - fine up to £5000, 6 months imprisonment solemn - unlimited fine, 5 years remit to HCJ for sentencing

Answer 63

first instance and appeal same judge who sits at Court of Session always sits with a jury

Answer 64

``` has various chambers set up own administrative structure criminal injuries compensation immigration and asylum chamber mental health care standards tax chamber appeal to upper tribunal ```

Answer 65

part of social entitlement chamber deals with complaints, rejection, job seekers allowance, child support, statutory sick pay, personal independence payment, vaccine damage payment, winter fuel payment 3 members with legally qualified chair appeal to upper tribunal, from there to IH Scotland or COA England

Answer 66

``` claims for unfair dismissal redundancy claims discrimination no appeals 3 members, legally qualified chair, I background employer and I union background no legal aid fees declared unlawful ```

Answer 67

``` the largest tribunal in Scotland children who have offended children who have been offended against school reusers children at risk of harm 3 members decisions of hearings appealed tho Sheriff then to the sheriff appeal court and or court of session ```

Answer 68

deals with applications for compulsory treatment orders under the mental health care and treatment Scotland act 2003 appeal to sheriff principle then court of session

Answer 69

sits in Luxembourg ensures that memeber satates apply EU law relies general legal principles and new legal order to interpret and expand the scope of EU law invented the doctrine of non-discrimination

Answer 70

``` 28 judges, 1 from each member state court of first instance chamber 3-5 judges sits with advocate general grand chamber of 13 ```

Answer 71

the court sits with advocate general advocate general sits in the well of the court and hears both sides of the argument and gives advisory opinion on how the judge should decide

Answer 72

article 267 TFEU Luxembourg enforce EU law and give advice think if member state is not fulfilling law can take them to Luxembourg R v Transport Secretary ex p

Answer 73

sits in Strasbourg 47 member states oversee and applying European convention on HR The UK has been applying to Strasbourg since 1963

Answer 74

limited to declaring whether or not domestic law or its application is or is not consistent with ECHR. since 2018 domestic courts can make a reference for an advisory opinion from Strasbourg under protocol 16 domestic remedies must be exhausted before going here no enforcement powers moral authority only can declare a state cant enforce the law tends to change law moves things forward court adopts a conservative doctrine not bound by previous decisions

Answer 75

-47 judges - chamber, 7 judges drawn from one of five sections appeals to the grand chamber - 17 judges - the single judge can dismiss case - issues already decided - no enforcement mechanism

Answer 76

this is to identify which questions and disputes are open to resolution by courts

Answer 77

injured body or wealth claiming land/property breach of contract criminal statutory obligation not been fulfilled the public body makes decision that damages interests challenged by judicial review of administrative decisions

Answer 78

the court has no jurisdiction- got to go to correct court if don't court will not hear the dispute the action raised out of time - civil action, personal injuries time limit is 3 years party does not have a title to raise the action

Answer 79

- proceeding in parliament, cant interdict Parliament passing legislation, cant sue defamation anything said in Parliament, cant breach interdicts and injunctions with impunity in Parliament - acts of a foreign state - crown Acts of state abroad, Rahmatullah no 2 v Ministry Defence - proceedings contrary to constitutional principles - political decisions, an appointment to cabinet positions acts done under the royal prerogative. supreme traced legal standards to the constitutional position that Parliament is sovereign and needs to be allowed to perform its role of reviewing the acts of executive, decision reduces scope of non- justiciability of political actions and legal landmark as well as politically crucially decision.

Answer 80

courts make decisions with a practical effect dont issue advisory opinions or decisions must be consequence to outcome of litigation

Answer 81

courts cant resolve religious disputes courts dont interfere with religious bodies in their application of spiritual doctrinal matters so expelling a member from a church is not justiciable but employing minister to provide spiritual services is governed by general employment law no religious duty defence breaches of criminal law nor to acts discrimination

Answer 82

- cannot be resolved by normal judicial reasoning and evidence - the matter is one for an appropriately appointed decision-maker

Answer 83

- turning questions into legal questions

Answer 84

role of the appeal court - limited to ensuring that the law was applied correctly that due process was followed and that the judge at first instance decided rationally and reasonably

Answer 85

- appeal judges will defer to discretionary judgemental decisions made at first instance but the extent to which deference is to be shown depends on what aspect of first instance decision is being challenged at appeal Re B - care order, adoption 4 stages in deciding a case

Answer 86

- hear evidence on facts and make findings of fact - appeal very difficult to challenge findings of fact at appeal. Appellate deference is HIGH - the judge who hears witnesses hears verbal evidence that the judge is perceived to be in a far better position to judge the credibility.

Answer 87

facts once found even on balance of probability are 100% facts for purpose of judicial decision making law matter of interpretation finding in law is right only cause higher authority says so it is not naturally right or wrong in the way that facts are therefore appeal to higher authority attracts no defences to decision of judge below

Answer 88

basically applying the law to the facts re B - removing a child from parents child suffer harm No BINARY choice to be made between a right or wrong answer as there is with both findings of fact and findings in law follows generous ambit of reasonable disagreement need to be given to judge at first instance an appellate court will not overrule the judge unless he or she goes beyond this ambit of reasonableness a decision has to be shown to be plainly wrong one which no reasonable decision-maker would have made

Answer 89

once facts have been established the lae correctly identified and law correctly identified and the law applied to facts the outcome( final decision needs to be determined by the judge at first instance) criminal - sentence civil - damages awarded practical justification for appellate deference constitutional justification

Answer 90

an earlier decision on the same matter which judges will follow

Answer 91

doctrine of binding precedent

Answer 92

courts on the same level will adhere to previous rulings

Answer 93

precedent from higher court

Answer 94

the reason for the decision

Answer 95

1. the government, officials, agents, individuals, and private entities are accountable under the law 2. laws clear, publicized, stable, just are applied evenly and protect fundamental rights including the security of persons and property and certain core human rights 3. requires process and die process by which laws enacted administered and enforced is accessible fair and efficient 4. justice delivered a timely manner by competent ethical and independent representatives and neutral parties who are sufficient number have aqeduate resources and reflect the communities they serve.

Answer 96

to stand by decisions and not to disturb settled matters

Answer 97

- discourages litigation on settled law - promotes consistent development of legal principles - fosters reliance on judicial review - contributes to the integrity of the judicial process and judicial comity - natural equity, cases being treated alike - reduces vagaries of differing judicial values and therefore promotes certainty

Answer 98

lord denning- out of date with modern living, applying existing rules don't resolve problems of modern world. freezes law in a particular area.

Answer 99

UK supreme court binds lower courts IH court of session - binds lower courts ( OH, Sheriff court) but not itself OH court of session binds no one Sheriff Appeal binds all sheriffs can persuade the COS sheriffs bind no one

Answer 100

UK supreme binds all lower courts court of appeal- civil - binds all lower and itself criminal - binds all lower and not itself Divisional - part HCJ below coutr of appeal, first instance cases in the QB division, chancery and family division binds lower courts but not themselves or each other crown county family - bind no-one

Answer 101

dont fit in hierarchy since appeals not taken to them neither accepts binding precedent previous decisions not cited

Answer 102

``` level of court English court of appeal are highly persuasive for Scottish courts commonwealth supreme courts reputation of judge strength of argument whether result being generally followed ```

Answer 103

1st - identify relevant facts 2nd identify ratio decidendi Gillick v Northfolk and Wisbeck - 15 year old need permission for abortion and contraception

Answer 104

remark by the judge but is not essential

Answer 105

sometimes crrate practice Airedale NHS trust v bland coma, Hillsborough

Answer 106

- distinguishing a case, facts not the same in the present case MRG v MD 2017- one parent change name of a child, in Scotland name doesn't matter, the only precedent that exists is English, adult changing own name, the decision under earlier legislation, English decisions - Narrowing a case to its facts - per incuriam - previous case not argued fully or properly cessante ratione legis cessat ipsa lex - underpinning reason if due to passage of time if the reason of rule of law ceases the rule itself applies to case law

Answer 107

``` thake v Maurice Benarr Mcfarlane Parkinson Rees ```

Answer 108

Re G - dispute between lesbian mother and ex-partner | court helf that child should go with a genetic parent

Answer 109

supreme can overrule any decision from a lower court in same hierarchy supreme overrule itself, convene larger bench to do so an appeal does not overrule earlier decisions appealed against, rather appeal is allowed and earlier decision os reversed.

Answer 110

derived from English law members are virtual all the British empire NA, anglophone Africa, Australasia, the Indian subcontinent

Answer 111

continental European legal systems includes most European countries and most countries usd to be part of colonial empires SA, francophone, Indochina, Japan, Thailand

Answer 112

``` judicial decision judge made strong system precedent little influence from Rome developed from practice in courts individual rules applying in individual circumstances distrust of grand statements and underlying principles distiniction between law and equity ```

Answer 113

harmonising forces, the church, commerical interests of mercantile clasees and above rediscovery roman law taught in great mediaveil unis europe, padua, paris bologna and utrecht turned to professor not judge interpretation roman law 19th century codifications napolean invention codifying the law - reducing its basic rules into single re-statement of grand sweeping statements

Answer 114

code napolean - export to netherlands, portugal, germany, poland and egypt

Answer 115

burgerlichesgesetzbuch - germany

Answer 116

japanese civil code based on swiss code

Answer 117

systems that have been influenced by both traditions no split between equity and law but strong precedent rules

Answer 118

its ruled by which you lead your life | You choose to follow this

Answer 119

this is the law of the state, in which you owe allegiance | you have to follow this

Answer 120

an employee at relate, relationship counseling service, same sex couple, refused to council them ECHR not an infringement art 9

Answer 121

what is unlawful does not become lawful for some people because of the beliefs they hold. here parents corporal punish at school challenged the legislation that prohibited children belting pupils

Answer 122

egyptm malaysia, indonesia, nigeria, pakistan and tunisia

Answer 123

vatican city, iran, saudi arabia

Answer 124

muslim mainly secular turkey, lebanon, kazakhstan, turkmen istan, northern cyprus, tunisia judges strongly influenced by Koran, but claims that ultimate authority rests in constitution of country the rule of law. countries include indonesia, pakistan, egypt and malaysia

Answer 125

has five basis juristic principles traced from sunnah, the t trodden path or way of the prophet. how the prophet leads his life and takes guidance from that and turn into rules today

Answer 126

far less inclined to accept figh because only God can choose religious leaders and set down beliefs.

Answer 127

Indonesia, Pakistan and Israel

Answer 128

north Nigeria, Alegria and gulf states

Answer 129

saudia Arabia

Answer 130

sharia council beth din catholic tribunal

Answer 131

married again without secular divorce

Answer 132

property rights, certain Sikh gurdwaras | holy saint

Answer 133

admission preferred Jewish children

General Revision Flashcards

(160 cards)