Legal System of England FK1 Flashcards
(133 cards)
1
Q
What is a legal system
A
Body of institution that make, execute and resolve disputes on the law of the jurisdiction
2
Q
What is a jurisdiction
A
A political entity where a particular law has application
3
Q
What are the 3 components of a legal system
A
- There is the constitution of the country
- Contributing cultural and historical factors
- Unofficial and popular elements which influence the society’s conventions
4
Q
What are some common elements of a legal system
A
- A relationship between central and local government
- The leadership of a dominant body of people who control the levers of power, and who set the agenda for the operation of the system
- influence of geography
- Military events
- Religion
- Popular unrest
- Technology etc
5
Q
How does Lord Bingham define the Rule of Law
A
all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts
6
Q
What are Lord Bingham’s essential components of the rule of law
A
- the law must be clear and predictable
- exercise of discretion to be subordinate to the exercise of law
- we should all be equal before the law
- state should have safety net for settlement of matters which private parties and individuals were unable to resolve
- state should adhere to international as well as national obligations
7
Q
Why is the rule of law in England & Wales integral to the effective governance of the UK
A
- It provides certainty to foreigners and nationals - UK is an international centre for democratic principles, trade and justice
- It purports to treat people equally
- It proceeds reference to rules, precedent and law
8
Q
What are the factors that the UK considers with regard to international law
A
- UK takes pride in its position in the world
- International law should be considered as an adjunct to the legal system of E & W, not superior
- International agreements often promise more than they deliver
- Rule of law must remain paramount, regardless of international perspective
9
Q
The common law of England was largely created in the period after the Norman Conquest of 1066. What insight did this give us on how a legal system operates
A
- Rules and customs
- Chain of command - ie King, officials, those representing his inner circle
- Records / report kept
- Time and place, ie hearings and venue
10
Q
What was The Magna Carta of 1215
A
the first document in which reference is made to English and Welsh law alongside one another, including the principle of the common acceptance of the lawful judgement of peers
11
Q
What are some of the most significant parts of the Magna Carta document
A
Clause 38 - no official shall put a defendant on trial on unsupported self-incriminatory statements alone, ie burden of proof lies with prosecutor
Clause 39 - there shall be punishment only within the law of the land
Clause 40 - justice shall not be sold, delayed or denied
12
Q
Following the Magna Carta the legal system in E&W adopted in embryo important concepts, what are they
A
- the involvement of the monarch and other elements in society
- acceptance of the rule of law
- importance of commercial interests
- existence of courts & their officials
- dissatisfaction amongst key elements of the population
13
Q
When is the earliest recorded act of parliament
A
1497 - taking of apprentices for wool-making in Norfolk
14
Q
How was legislation created
A
Representatives of society would ingather in Parliament > discussions took place > laws would be drafted and approved by monarch > Royal assent given
15
Q
The Bill of Rights 1688 is an important pillar of the UK constitution and a foundation of the legal system. What does it represent
A
- A further restriction on the power of the monarchy - contributed to the development of the Parliament
- sets tone in preamble by stating it was an Act ‘declaring the rights and liberties of the subject’
- includes reference to freedom of speech, existence of juries, cruel / unusual punishment and requirement for free elections to Parliament
- reinforces rule of law
16
Q
How did the legal system develop in the 1800s
A
- Parliament was developing
- industrialisation created alot of discontent amongst the poor
- Protests took place in Peterloo near Manchester against poverty, 18 died
- force of underclasses prompted reform of representative democracy via Representation of People Acts 1832, 1867 and 1884
17
Q
What did the Representation of People Acts 1832, 1867 and 1884 do
A
Greater proportion of the population (ie men) were electing members of parliament & contributing to legislation being created - ability of general public to influence operation of parliament / legal system has increased dramatically
18
Q
When did the UK join the EU
A
1 May 1973
19
Q
What percentage of people voted in favour of the EU and when was the referendum
A
67% / 5 June 1975
20
Q
Which Act anticipated the ULK’s membership into the EU and provided for UK’s institutions taking note of EU law
A
European Communities Act 1972
21
Q
Why did a slim majority of people vote to leave the EU than remain at the referendum
A
People felt that the EU’s intrusion was threatening to the lives of people in the UK
22
Q
Why is there a combined legal system for England & Wales and not Scotland?
A
Historical reasons. In 1707 Scotland was comfortable with its own legal culture
23
Q
What is the difference between criminal law and civil law
A
Civil law involves agreements and mainly private resolutions, whilst criminal law involves punishment
24
Q
What are the different elements of civil law matters
A
- contracts
- disputes
- differences where the outcome is measured in remedies or the payment of monies
- decision in court is based on the balance of probabilities
25
What are different elements of criminal law matters
- imposes restrictions & obligations on the population
- outcome is measured in punishment for transgressions, ie beyond reasonable doubt
- ultimate penalty is loss of freedom through imprisonment
26
What are the key ingredients of the criminal law process that remain integral to prosecutions today
1. must be an action which is forbidden by society by statute or other law
2. victim
3. importance of evidence
4. requirement of proof
5. finding of guilt
6. punitive resolution
27
What is the role of the police in the UK
Arresting suspects, bringing them before courts and facilitating withdrawal of liberties
28
Policing in the UK is by consent. True or false
True
29
When and how was policing in London given official form
Metropolitan Police Act 1829 - subject to the jurisdiction of central government and the Home Office
30
Outside of London, who controls police activities
Local authorities
31
What 3 pieces of legislation governs the behaviour of police
1. Police and Criminal Evidence Act 1984
2. Criminal Justice and Public Order Act 1994
3. Policing and Crime Act 2017
32
When and how was the broadcasting company the BBC formed
By way of a Royal Charter in 1927
33
How is the BBC financed
Through licence fees payable by households throughout the UK
34
What are the attributes of the BBC to reinforce its importance
1. has a commitment to impartial broadcasting
2. regularly reports events in parliament
3. holds Government / Her Majesty's Official Opposition to account through its reporting and current affairs programmes
Each of these elements are important in fine tuning the legal system / constitution
35
What is the UK constitution
- Guides the interplay between the various elements of society
- uncodified in that it's located across different sources, so it's not written as such
- levers of constitutionality are operated through the monarch, Parliament and the courts
36
What do some of the constitutional steps involve
- written word
- precedent
- custom
- prerogative
- convention
- role of the Church of England
- armed forces
37
Acts of Parliament are primary legislation. What are examples of secondary legislation
- Statutory Instrument (SI)
- bylaws for local councils and authorities
- Church of England Measures
38
Name 3 elements of statues
1. Important because they convey in their purest form the will of the people, who have elected the House of Commons to run Government on their behalf
2. have scope through their impact on society
3. have judicial relevance because courts take delight in interpreting them
39
Statues have been existence since Norman times. What is the oldest statute still in force
Statute of Marlborough 1267 - relates to judicial nature of damages
40
How many pages did Parliament pass legislation in 1911
760
41
How many pages did Parliament legislation in 2006
14,580
42
Acts of Parliament only cover a small range of matters. True or fale
False - they range across the widest possible landscape
43
Parliament consists of...
1. Queen
2. House of Commons (democratically elected)
3. House of Lords (which is not)
Both Houses also create Acts of Parliament
44
Before Acts are created, the Government will usually create a Green Paper and a White Paper. What are they
Green paper - consultation document on possible new law
White paper - incorporates Governmemt's firm's proposals for the new law
45
What happens once green paper and white paper have been published
1. An Act will then begin via a document known as a Bill
2. once it's gone through scrutiny / debate etc it become an Act of Parliament
46
Why is debate so important
It is an essential aspect of democracy
47
What are the 8 stages for the creation of an Act of Parliament
1. House of Commons - First Reading
2. Second Reading
3. Committee Stage
4. Report Stage
5. Third Reading
6. Proceedings in the House of Lords
7. Amendments by Lords
8. Royal Assent
48
What happens at the First Reading
Bill is drafted and given first reading in HoC, which consists of 650 MPs. The title is read out and the Bill is printed and published
49
What happens at the Second Reading
- Detailed debate by MPs in the chamber of the Commons on the various sections of the Bill
- Government minister responsible for Bill, open debates & oversee Bill's passage through various stages
- HoC will vote on parts of the Bill as necessary
50
What happens at the Committee Stage
- Bills referred to Committee of Whole House / standing committee, who will scrutinise Bill clause by clause and make any amendments
- Chairman has power to decide which amendments should be discussed
51
What happens at Report Stage
- House will vote on any proposed amendments suggested in committee
- might be a debate similar to committee stage
- Speaker can select the amendments to be debated
52
What happens at the Third Reading
- to consider Bill as amended but usually debate if brief
- final opportunity to vote although MPs often don't do so
53
What happens during proceedings in the House of Lords
- follows the same various stages
- At Third Reading it must return to Commons for any amendments to be approved
- in extreme situations, Commons can bypass Lords if they reject a Bill under Parliament Acts 1911 and 1949 > Speaker will certify that conditions of s2 of 1911 Act have been met
54
What does the final stage of Royal Assent involve
- lengthy process of Royal Assent by the Crown
- Bill becomes an Act, ie becomes law and takes effect immediately on that day, unless the statute states otherwise
55
How do opponents of a Bill attempt to delay it
- by talking at length in committee / debate deliberately to waste time > called "fillbustering"
- Governments have a timetable called "guillotine" to measure the above
56
What is common law
Traditional mode of decision making by judges
57
The Court of Chancery was created to make things flexible and equitable. What do we mean by equity
Arriving at a resolution that is fair to all parties when considering the facts, behaviour of those involved and the situation of all parties
58
Who presided over the Court of Chancery
Chief law officers
59
A set of 4 principles were set by the Court of Chancery that are still relevant today. What are they?
1. Equity will enforce the intentions of the parties rather than allowing something to founder because of a failure to conform to rigid procedure
2. An equitable remedy will not be granted to a claimant who has not acted fairly
3. Delay defeats equity, ie a claimant cannot wait too long before making a claim as it could prejudice the other party
4. Equity will not suffer a wrong without a remedy, so there should be a resolution
60
What are some examples of equitable remedies
1. injunction
2. specific performance of an obligation
3. recission, ie confirming contract no longer exists
4. rectification, ie correcting a wrong
5. account of profits, ie allowing an innocent party an appropriate share of their gains
61
What legislations created a single court structure and merged the separate court systems of equity and common law
Supreme Court of Judicature Acts 1873 and 1875. All civil courts can now grant both common law and equitable remedies in the same proceedings, eg an injunction + damages
62
What is civil law
code-based system derived from traditional Roman law concepts
63
Name 2 examples of countries with codified constitutions
France and Germany
64
Historically, one of the key sources of law was the Crown. What did the monarchy do in the 12th and 13th centuries
- devised and passed laws
- it was a despotic act, ie singular influence of Crown (exists today but in a different form ie giving Royal Assent)
65
Another source of law historically was the nobility. How did they gain this role
- by flexing their military muscle
- controlled apportionment of land, gathered taxes and raised armies
- had presence as advisors within Royal household
66
What is the role of the nobility today
Has constitutional presence throughout House of Lords (second chamber of Parliament) with crucial role in creation of legislation
67
How does one become a member of the House of Commons
- By birth
- appointment by governments
- submitting quasi-electoral process
68
The parliamentary role of hereditary peers has diminished through what Act
House of Lords Act 1999
69
How does one become a hereditary peer
Through a by election process. They still have a role in national and local society but their parliamentary power is much lower
70
Did the House of Lords Act impact life peers (in addition to hereditary peers)
Yes. They tend to be retired MPs / donors / key supporters of political parties. They scrutinise and debate legislation
71
How many life peers are there and how are they appointed
660. Regular appointments are made in the annual New Year's honours process. PM makes recommendations to the monarch who confirms the appointments
72
Historically, judges played a heavy hand in creating laws. Is this the case now, if not how?
No. The Constitutional Reform Act 2005 removed the top judges from the House of Lords. Top judges remain at the centre of the Westminster culture and interpret the law rather than participate in it
73
What did the Constitutional Reform Act 2005 do to reform the role of the Lord Chancellor
No longer exercise judicial functions. More of a political office within the Government as Secretary of State for Justice. Attend Cabinet (inner circle of Government) for regular meetings chaired by PM.
74
How did religion historically shape the law
- papal decrees, ie popes provided decentralised instructions to monarchs on various aspects of doctrine and governance
- Church law / Church of England passed laws on regular basis in the form of (1) measures (like an Act); (2) canons and (3) statutory instruments
75
Church law impacts our lives in what ways
Birth, baptism, weddings, death
76
How did the military shape our legal system through history
- William the Conqueror set the tone 1066
- through dictatorship
- national crisis
- democracy
- Armed Forces Act 2006 makes provision for service personnel
77
What was the significance of Sir Edward Coke (1552-1634)
- pronounced on matters such as habeas corpus ('you shall have the body') and freedom of the individual
- someone should only be arrested and imprisoned with lawful reason
78
What was the significance of John Locke (1632 - 1704)
- made a key contribution to property law
- advocated taxation
79
What were Charles Secondat and Caron Montesquieu known for (1689 -1755)
Separation of powers, ie executive, legislature and judiciary should have their own distinct functions. Without this, there can be no liberty
80
What was the significance of Jeremy Bentham (1748 - 1832)
- Utilitarianism ie government has a duty to the fundamental position that 'it is the greatest happiness of the greatest number that is the measure of right and wrong'
- good rule depended on the support of majority
- questioned religious influence on the law
- finessed his philosophy into number of areas, such as economic, political, educational, legal and religious matters
81
What was the significance of AV Dicey (1835 - 1922)
- renowned for constitutional law and the idea that only Parliament can make and change laws
82
How has the internet shaped and influenced the legal system
- social media, eg posting tweets etc
83
What is case law
The central role of the judge in making decisions in court
84
How do you distinguish between law, morality and ethics in the context of case law
Judges accept they should rule on moral and ethical matters, but the law has jurisdiction over the other two
85
Courts sometimes deal with tricky matters if public taste and decency. How do the courts remain consistent and enforce the rule of law
1. matters of morality often require decisions by courts
2. law stems from will of society by legislation / custom both of which involve views of population
3. the approach of the governing classes and courts adapt to social views
86
What are the different types and categories of case law
1. cases relating to essential freedoms, i.e accused innocent until proven guilty.
2. decisions relating to entitlements, eg tort or contract law
3. court cases relating to constitutionality ie supremacy of Parliament / operation of conventions
4. changing nature of society, eg ownership of property, social relationships or welfare law
5. operation of businesses
6. protect privileges and perpetuate injustices
87
What are the important points relating to cases relating to essential freedoms
1. Police must have evidence and good cause before arresting someone
2. You cannot be stopped and asked to prove your identity without good reason
3. You cannot be detained, and deprived of your freedom, unless the law allows it, ie habeas corpus
88
What are the important points relating to decisions relating to entitlements
1. innocent party in any breach of contract is entitled to 'an action on the case'
2. payment / repayment of sum of money may be inadequate as it doesn't take into account further losses i.e breach / inconvenience
89
What are the important points relating to cases for constitutional matters
1. UK constitution is uncodified / unwritten but derived from numerous sources over time
2. courts have played an important part in the operation of the constitution
3. Parliament can pass whatever law it likes as it is supreme
4. courts cannot intervene for fear of contradicting the will of the people
90
What are the important points on matters relating to the changing nature of society
1. Judges are a product of their era, so they can be cowed by the conventions of the society they live
2. Courts should not shy away from making difficult decisions
3. sometimes courts reflect the will of society and the established order, at other times judicial decisions run ahead of legislative actions
4. judges cannot contravene the will of parliament
5. judges are cautious in extending the ambit of case law
91
What was the impact of case law on businesses and the creation of wealth
1. Reinforced limits of Crown prerogative
2. The law should protect mercantile endeavour as much as individual liberties
3. Court frowns on monopolies - concept of regulated free enterprise & controlled free trade is source of law
4. wrong for companies to abuse a dominant position
92
What role has property and possessions made over the law over time
1. the law of E&W has also placed emphasis on property / land up this day
2. property includes possessions
93
How do you interpret an Act of Parliament? - use the example of additives in sweets
1. Law is needed on additives in sweets
2. legislation pass act of parliament, eg "all sweets must be additive free"
3. manufacturers interpret "additives" in a particular way
4. Health campaigners interpret "additives" differently
5. lawyers get involved
6. court rules on meaning of "additives"
7. parliament has a different view on the meaning
8. parliament decides fresh legislation needed
94
Who is the supreme law-making body in the country
Parliament
95
Statute can amend case law, but can case law amend statute
No
96
What is the doctrine of Parliamentary sovereignty
The principle that only Parliament can make or unmake a law
97
When did the UK decide to leave the EU
2016
98
What aspect of UK history in recent times had a tense relationship with the doctrine of sovereignty
Since UK joined EU. However, EU law will continue to have influence over our legal system for some time
99
What are the key concepts of parliamentary sovereignty
1. Parliament has freedom to make laws of any kind
2. Statute cannot be overriden by a body outside Parliament, ie (i) UK courts & international courts have no power to declare an Act of Parliament invalid, whilst UK judges have powers to make declarations of incompatibility under HRA 1998; (ii) statute prevails always; (iii) Parliament cannot bind its successors, later acts can always repeal other acts
100
What are the different types of legislation within the UK
1. Act of Parliament
2. Statutory instruments
101
What is a statutory instrument
Secondary, subordinate or delegated legislation. They are "creatures" of civil servants and ministers
102
How are statutory instruments formed
Start by referencing an Act of Parliament > laid in draft for days in HoC office4 before being signed by minister > become law
103
How many statutory instruments are passed every year compared to acts of parliament
3,500 SI's passed year compared to 34 Public Acts
104
Name some examples of statutory instruments
1. Polish Potatoes (Notification) Order 2004
2. Films (Definition of 'British Film')(no2) Order 2006
105
What is a byelaw
Local laws made by local authorities under an enabling provision granted by an Act of Parliament. Usually accompanied by some sort of sanction / punishment for non-observance
106
Name some examples of byelaws
1. Open spaces
2. Parks
3. Burial grounds
4. Marketplaces
107
What is the typical structure that leads to Acts of Parliament
1. Name of the act / short title
2. year of the Act and chapter
3. Long title
4. date of Royal Assent
5. Enacting formula (Act approved by monarch and parliament)
6. Headings - to give organisation and structure
7. Sections - stating the key content and subject matter of the Act
8. Schedules - volume of detail appearing at the end
108
What is the earliest act of parliament
Statute of Marlborough 12 67 Chapter 1 52 Hen 3
109
How did Acts of Parliament begin their existence
1. Production of Green Paper in Parliament - proposals for law
2. White Paper - more developed doc issued by Government setting out proposals for legislative change
3. Comments from general public
4. Bill drafted and introduced to Parliament. Note a Bill does not become law until it becomes an Act
5. Act - given Royal assent
5.
110
What is a public bill
one that concerns matters affecting the public as a whole. All Acts of Parliament start life as a Public Bill
111
Name some examples of Public Bills
Northern Ireland budget, payments to farmers, supply and appropriation, covid
112
What are the 2 categories of Public Bills
1. Government Bills - introduced by Government Minister, prompted by medium/long term planning or emergency
2. Private Members Bills - non-Government sponsored Bills introduced by backbench MPs
113
Not many private members bills actually become law, but what is the process for making them
Begins with a ballot > 20 MPs present their titles & nominate date for 2nd reading > 10 minute rule procedure i.e ordinary presentation
114
Name some examples of unsuccessful private members bills
- measures relating to refugees' families
- overseas electors
- votes for younger people
- licensing of taxis
- regulation of physician associates
115
Name some examples of topics for private member bills
- breeding and sale of dogs
- control of hedges
- organic food and farming targets
- football spectators
116
Name one example of a private members bill that passed and became an Act
Hunting Act 2004 - prohibiting the hunting of wild mammals with dogs
117
What is a private bill
- affect particular people, organisations and localities
- can start in either House of Parliament
- must be publicized in a suitable manner
118
Name some examples of private bills
- City of London Corporation (Open Spaces) Act 2018
- New Southgate Cemetery Act 2017
- Middle Level Act 2018
- University of London Act 2018
119
What is a Hybrid bill
Act of Parliament that combines both private and public bills. They are relevant to both public and private / commercial organisations.
120
Name some examples of a hybrid bill
- Channel Tunnel Rail Link Act 1996
- Crossrail Act 2008
121
What causes Bills to begin life and then morph into acts of parliament
society needs it
122
What are the 4 categories of primary legislation
1. party political manifesto pledges - promises that a successful party believes it should keep
2. administrative, technical and managerial matters necessary to organised functioning of Government
3. changes in the nature of society and demands of electorate over short to long term timescales
4. unexpected events / crises that require immediate pressing attention of the executive
123
Name one example of legislation that meets the 4 categories of Acts of Parliament
National Health Service Act 1946
124
Why do legislators and the general public sometimes have a tense relationship
Some people have a suspicion that Parliamentarians lose touch with their roots once they arrive in London. Therefore, they end up protesting
125
Name 2 examples of situations where popular protest led to creation of legislation
1. Inclosure Act 1773 - to respect the rights of smaller landowners and preserve common land for the public rather than for the powerful
2. Local Government Finance Act 1988 - created council tax
126
What is the difference between consolidating and codifying law
Consolidating law is where one re-enacts law that was previously contained in different statutes , ie they tidy up the law eg Insolvency Act 1986
Codification is where all the law on some topic (covered by common law, custom and even statute) is brought together in one new statute, eg Theft Act 1968, Sale of Good Act 1979
127
Who makes laws for Wales, agrees Welsh taxes and holds the Welsh Government to account and has devolved powers
National Assembly, now known as the Senedd
128
How was the National Assembly formed
- 1960s and 1970s there was renewed desire for independence in Wales
- referendum in 1979 rejected independence
- further referendum in 1997 re self government through Welsh own Parliament ie National Assembly
- led to Government of Wales Act 1998-2017
129
What is the Reserved Powers Model as part of the National Assembly
trade-off between those areas of policy that remain the preserve of central government and other areas that fall within the embrace of the National Assembly
130
Name some examples of areas legislated on by the National Assembly
fees re renting of homes, minimum pricing for sale of alcohol, learning needs, landfill disposals tax etc
131
What is the format of an Act of the National Assembly
It echoes that of a Westminster primary legislation - coat of arms at the top is unique, but it still has the short title, long title, chapter, date etc
132
What are the stages for passing an Act of the National Assembly
1. Bill is formally introduced
2. initial committee report
3. consideration of correspondence, timetable and consideration by finance committee
4. debate on general principles in plenary followed by financial resolution
5. detailed Committee stage where amendments are considered
6. plenary consideration of amendments
7. Bill receives Royal Assent
133
