Sources of Scots Law and intro to Agency Flashcards
1
Q
when was the Scottish parliament created?
A
11/9/97 THE REFERENDUM
2
Q
The Scotland Act 1998 ‘ There shall be a Scottish Parliament
What does the act deal with?
A
Election of the parliament
Its powers
Appointment and powers of a first minister and Scottish executive
The relationship between Scottish and UK parliament
3
Q
Is the Scottish parliament a completely independent body?
A
no it is not!
It is not a sovereign Parliament an it has territorial limits- legislation for Scotland
it can only legislate
Delegated by the UK parliament
4
Q
Does Westminster have overriding power over the Scottish parliament?
A
yes!
Westminster given powers and responsibilities to the Scottish parliament;
However certain powers are retained by the UK parliament (reserved matters)
Westminster is the supreme law making authority
therefore… the UK parliament has overriding powers.
5
Q
True or False: The Scottish parliament can pass laws within agriculture, forestry, and fisheries. (devolved powers)
A
TRUE
6
Q
The Scottish parliament can pass laws in the following areas:
A
Housing Justice Local Government and local government elections Social work Sport Tourism Health and social services economic development education and training culture and creative industries Transport (excluding some)
7
Q
Westminster will still continue to make laws for Scotland in many important areas, these matters are ________ to the UK parliament
A
matters are reserved to the UK parliament
8
Q
What Act lists matters that are reserved by the UK parliament?
A
Schedule 5 of the Scotland Act 1998
9
Q
Is the majority of business law related to the schedule 5 reserved matters?
A
YES!
The majority of it
there are some differences on certain matters
10
Q
Schedule 5 of the Scotland Act 1998; matters reserved to the UK Parliament
A
Broadcasting Costitution Consumer protection Defence and Security Employment Equal opportunities Energy
Economic and monetary policy inclusing currency and interest rates foreign policy immigration social security telecomunications trade and industry
11
Q
Do the acts of the Scottish parliament have a) higher or b) lower status than the acts of Westminster?
A
LOWER!
12
Q
What are the Acts of the Scottish Parliament known as?
A
secondary/delegated legislation
- due to their lower status
13
Q
The Sewel motion
A
Scotland must see consent from Westminster to pass laws in Scotland; Westminster will introduce a bill/Act which covers the whole of the UK, not just Scotland who asked for the bill.
14
Q
Scotland Act 2016
What must Westminster have before they can legislate a delegated Matters?
A
Parliaments Expressed Approval
15
Q
Scotland Act 2016
A
Gives Sewel motion a statutory foundation which means that Westminster will have to have the expressed approval of the Scottish parliament before it can legislate the delegated matters.
16
Q
Benefits of the Sewel Motion
A
It saves the Scottish Parliament time
opportunity to avoid certain issues/ not to legislate on certain issues
17
Q
How many Chambers does the Scottish Parliament have?
A
ONE CHAMBER!!
18
Q
The Scottish Parliament Bills consist of: The government executive Bill Committee Bill Members Bill Name the types of Bills in Westminster.
A
Westminster:
Government Bill
Member’s Bill
19
Q
Westminster: (the process of the bill)
The Bill must pass through The House of…
A
The house of Commons AND the house of Lords
20
Q
The Scottish parliament:
The Bill must pass through…
A
only one chamber;
21
Q
The Westminster Committee system is a) more powerful or b) less powerful than the Scottish parliament?
A
a) Less powerful
Why? Because the Scottish parliament committee can introduce a new bill. Westminster committees do not have that power
22
Q
Individuals have more chance at introducing new bills to which Parliament?
A
The Scottish parliament, there is more chance of success!
23
Q
Scottish Parliament
Public Bill applies to whom?
A
The society as a whole
24
Q
Scottish Parliament:
A private Bill applies to whom?
A
applies to a small group of people/ particular organization/ body
25
Scottish parliament:
| For a Bill to become an Act of Parliament who must it go through?
The Scottish Parliament
AND
Have a Royal Assent
26
How many stages are there in the Scottish Parliament for passing a bill?
3 Stages
27
Scottish Parliament: Public and Private Bill STAGE ONE
| What is the difference between public and private first stage of passing a bill?
If it is a private bill a decision is to be made whether it should proceed as a Private Bill or whether it should change to a Public Bill.
Consideration of the Bill's General principles takes place with both Public and Private!!
28
Public and Private Bill; STAGE 2...
| within the private bill, what is the second stage known as?
Considerations of the details of the Bill
| Known as the consideration stage
29
Stage 3/final stage (Private Bill)
Final consideration of the Bill and a decision is made whether or not to pass or reject it
30
Once the bill has been accepted by Parliament it must be seen by...
Royal Assent
31
Delegated Legislation (subordinate/secondary legislation)
ways in which the laws can be introduced very quickly without having to get it through the whole legislative process.
32
Every Act passed by the Scottish parliament is a _____ legislation
Delegated, secondary, subordinate Legislation
33
Statutory instruments;
| 'Delegate power to the government minister to make a new law'
The Parent Act;
| No need to consult with the parliament
34
Name the benefits of the Parent Act;
Time saving/ parliament can focus on more important matters
35
BENEFIT: The first Minister provides a report about the operation of new rules
What Act is this benefit from?
The parent Act
36
The Act must stay within the power given by the Parent Act; why is this Act criticised?
quite a number of new legislation were introduced without appropriate debate around the legislation.
37
```
The court of session can make laws which regulate the ________ of business in all the Scottish Civil courts
Fill in the blank and;
Which Act is this:
Acts of Adjournal
Parent Act
Acts of Sedernut
```
CONDUCT
| Acts of Sedernut
38
The Acts of Adjournal organises the business and procedures of the High court of Justiciary and the lower Scottish criminal courts.
Who can introduce these Acts?
The high court of Judiciary
39
By-Laws;
A Parent Act gives law-making powers to an inferior body.
| Acts Passed by the Scottish Parliament
40
licencing acts give powers to inferior bodies such as local councils to make legislations
true or false
true
41
By-Laws; what is an example of an inferior body that a parent act gives law making powers to?
Local Council
42
By-Laws are created by who?
Lower level bodies
43
Delegated legislation is less time consuming and can be used to respond rapidly in emergencies to come up with legislations
it can be mended rapidly.
Benefit
44
COMMON LAW: INSTITUTIONAL WRITINGS
45
Judicial precedent (Case Law) is also known as
stare decisis
46
The practice of following previous Judicial Decisions is known as the...
Judicial Prededent
47
A previous Judicial Decision is formed of two parts:
| The ratio decidendi and the...
Obiter dicta
48
The Ratio Decidendi
The actual legal rule established by the court case
49
The Ratio Decidendi is often a long explanation
| True or False
False; it is only a few sentences
50
Statements or Examples provided by the judge
| a) Obiter Dicta or b) The Ratio Decidendi
a) Obiter Dicta
51
Obiter Dicta
| explanation provided by the judge is not part of the judgement. Why?
They are not binding on future cases but merely persuasive.
52
In case law The Ratio Decidendi is important in case law; the law that most often should be followed, except in some cases;
Judicial Precedent
Binding Precedents
Persuasive Precedents
53
The courts STATUS is going to have an impact on whether the decisions are binding precedents or
Persuasive precedents or disregarded.
54
Decisions of superior higher courts will have to be followed; binding precedents
55
Reason for Common law (Judicial Precedent (case Law));
Designed to provide consistency in the law and decision making.
56
the rules applied; interpretation of statutory provisions
The literal rule;
the words used in the legislation are given their everyday, ordinary or lit....
literal meanig
57
The rules applied; interpretation of statutory provisions
| the golden rule; the judge applies the law literally, but in a way that avoids the creation of...
absurdities or injustices
58
Rules; interpretation of statutory provisions;
| The judge ignores the wording in the legislation and instead examines what mischief the statute was supposed to cure
The mischief Rule
59
The purposive Rule; the words of the statute are interpreted in their ordinary, literal, and grammatical sense, as well as with reference to the context and purpose of the legislation
ordinary, literal and grammatical sense
| the context and purpose of the legislation
60
A word should be constructed in its context (look at the statute as a whole to discover the meaning of a word in it)
what rule is this?
The contextual Rule
61
Who is referred to for guidance when there is no Statute or Legal Precedent on a point of law?
The "writings" of influential Scottish Lawyers between; 1655 and 1829
modern writings are not the law
62
COMMON LAW; Customs
Practices handed down over many generations
Must be well established and continue to be enforced
very rare these days
can be overruled by superior forms of law (Acts of Parliament, other legislation)
63
SCOTTISH LEGAL SYSTEM
has its own system of courts...
these existed before the treaty of England and for most parts have developed separately from the other jurisdiction in the UK
64
what are the types of laws in the Scottish legal system?
Common-Law; contract law, agency, and criminal law; most important
Statute law or legislation
Private and Public Law
Criminal and Civil Law
65
Name the type of law
| The resolution of legal disputes between private individuals or organizations...
one having suffered loss as a result of the others wrongful behaviour
Civil Law
66
Civil Law is the dispute between persons (legal persons), private individuals or organizations
Give 3 examples:
```
Family Law
Company Law
Partnership Law
Banking and Finance
sale of goods and services
Consumer Law
Personal Injury Claims
Trust
Divorce
```
67
what are a legal person/ legal personality
a natural legal person or artificial person
68
give examples of both natural and artificial persons;
Artificially created by the law; limited company
| natural; an individual
69
Criminal Law;
| The prosecution of those individuals who threaten the ____ of society
Security
70
Criminal Law is between the person and the...
The State
71
How does the state Maintain Law and Order?
Punishing Criminal and antisocial behavior
72
CRIMINAL CASE
| What is the terminology for R v Black
Prosecution (state) v Accused (black)
73
Civil Case;
| what is the terminology for Blue v White ltd
Pursuer (blue)
| Defender (white)
74
A criminal case is referred to as a) R v Black or b) Blue v White Ltd
a) R v Black
therefore a civil case is Blue v White Ltd
75
what is the legal consequence in criminal cases?
usually a punishment; fines, imprisonment
76
what is the legal consequence of a civil case?
a compensation to the wronged person
77
Criminal Case; the case must be proved beyond reasonable doubt
Civil Case; ...
the case must be proved on the balance of probabilities
78
the burden of proof will rest with the ........ in a criminal case
the prosecution
79
the burden of proof rests with the...... in a civil case
Parties
80
if it is a criminal case it must go through the court system!!!
In the civil case it is up to the parties if they use the court system or not... they may settle the dispute outside of the court
81
Cases can arise where it is both criminal and civil cases.
one single evet can generate two cases, one criminal and one civil
82
Court Procedure; What happens in the Trial
Court:
| first instance/trial; legal proceedings are first heard
83
Court Appeal; A higher court has the power to _____ and _______ outcomes of decisions of lower courts
review and change
84
Court Procedure:
Summary; procedure conducted with or without a jury?
covers less serious cases
without
85
solemn; the procedure is conducted with a jury- what type of cases does it cover;
the most serious cases
86
what is the jury made up of?
15 individuals
simple majority is enough to make a verdict
verdict guilty or not guilty, not proven
87
A criminal court procedire can either be a:
summary procedure or a solemn procedure
88
Criminal Case: The summary procedure: 95% of cases are under the summary procedure.
Only 5% of cases will be with te solemn procedure.
89
Criminal Case: The summary procedure: it is conducted without a jury.
What kind of cases does it deal with:
Less serious Cases
90
Criminal Cases: The solemn procedure: it is conducted with a jury and a sheriff and compared to summary procedure it covers the _____ cases
most serious cases.
91
Criminal Case: The solemn procedure is conducted by the judge/jury and who else?
The Sheriff
92
Jurisdiction: The power of the court cold be ____ by it factors such as geographical boundaries, order size, and...
The legal subject matter
93
Courts may only hear the cases that fall into their jurisdiction, the power of the court could be limited and this limitation could arise from what factors?
Geographical boundries
subject matter of legal issue
The size of the order
94
Scottish Civil court system: (Appeals)
Courts within the Civil court system:
The Supreme Court
The court session: outer house and inner house
The Sheriff Civil Appeal Court: Personal Injury Court and The Sheriff Court
95
The civil court can hear both civil and criminal cases?
| TRUE OR FALSE
False only civil cases.
96
Key information: Civil Courts are facilities/resources that the state provides in order to sort civil disputes in a spaceful manner.
97
is it a requirement for people to use the civil court system?
No they have a choice if they want to take their case to court- it is up to the parties in the case.
98
The civil court system has been changed radically over the last few years. Reform Scotland Act 2014
What did this Act impact?
The structure and operation of the Civil Court System
99
civil court system change
court reform scotland act 2014; there were radical changes; impacted on struactre of court system and the operations.
100
The sheriff court: is the busiest Civil Court in Scotland and the...
lowest civil court in scotland
| it has many cases
101
The Majority of the civil cases start in front of the Sheriff Court.
102
How is the Sheriff court organized
organised into Geographical units- called Sheriffdoms
103
The Sheriff court can hear all types of civil disputes and it is not limited to dealing with cases that involve small amounts of money.
104
How Many Sheriffdoms are there?
49- the most serious cases are seen at the High court of Justiciary
105
The personal injury court was established by what Scotland Act
The Scotland Reform Act 2014
106
The _______ injury court was established by the Scotland Reform Act 2014
personal
107
Where is the Personal Injury Court situated?
Edinburgh
108
The Personal injury court hears;
personal injury claims across Scotland
general personal injury cases above the value of £5000
industrial and work-based cases £1000
109
General personal injury cases above £5000 can be seen by The personal injury court?
Yes or No
YES
110
The personal Injury Court hears cases of industrial and work-based cases of £1000 and above
Yes
111
Can the personal injury court hear cases that are below the £1000 limit
Yes; the local sheriff decides if it would be better that the case was discussed infornt of the Oersonal Injury Court
112
The Personal Injury Court has Countrywide Jurisdiction
113
The Sheriff Civil Appeal court was created by which Scotland Act?
The Scotland reform Act 2014
114
The sheriff court and personal injury court can go to the sheriff civil appeal court (Edinburgh); they will hear appeals from sheriff courts
all sheriff courts will have to abide by the decisions of the appeal court
115
Where does the Sheriff Appeal court operate?
Edinburgh
116
A decision by the court will be regarded as binding legal precedence so all of the sheriff courts in Scotland will have to follow the decisions made by the sheriff appeal court.
117
The court of session;
Inner and outer house
what is the court of session?
Scotland's supreme Civil Court- it has a permanent headquarters in Edinburgh
118
The court of session hears what type of cases?
first instance cases and outer cases
119
there are two houses within the court of session:
The outer and Inner houses
120
small claims are up to the value of....
£3,000
121
The Outer House has Trial cases and the inner house deals with the
Appeals
122
The jurisdiction for the court of session is for the whole of Scotland; with the exception that the sheriff court has exclusive competence to hear the cases; means that first instance cases more than £100,000 will have to be discussed in front of the sheriff court.
123
Until 28th November 2016 the Sheriff court: 'exclusive jurisdiction' to hear cases of up to the value of £100,000
small claims up to the value of £3000
summary procedure up to the value of £5000
ordinary procedure excess of £5000
From 28th November 2016:
Simple procedure for claims with a value of up to £5000 instead of small claims and summary procedure
Civil online
124
From 28th November 2016 small claims and summary procedure became what?
Simple procedure for claims with a value of up to £5000
| Makes the procedure inexpensive and gives a chance for everyone to use simple procedure
125
Court of session excess of £100,000
126
Summary procedure are up to the value of...
£5000
127
ordinary procedure is up to the value of £5,000,
| from 28th of November 2016
simple procedure for claims with a value of up to £5000
128
Criminal Court System: criminal law is used by the state to protect the community/society by punishing individuals who endanger the security or safety of the public.
It is a PUBLIC prosecution system: controlled and supervised by the state authorities.
in criminal cases they go through the criminal court system
129
can individuals decide not to go through the criminal court system?
No they cannot make a decision not to go through the system unlike civil court system.
130
The Scottish criminal court system is a)private or b) public
Public and controlled by the state
131
The Sheriff court: what are the two types of cases that can be presented?
Summary and solemn.
132
In summary cases the decision is made by who?
the sheriff
133
in a solemn case the ____ will be involved
jury
134
The justice of the peace court deals will what type of cases; summary or solemn
Summary
135
sheriff criminal appeal court there is
| the sheriff court and the justice of the peace court (will be summary cases)
136
the justice of peace deals with less serious types of crimes.
it is the lowest level of criminal courts in Scotland
| takes on crimes that are committed within its local authority
137
The justice of peace is not necessarily legally qualified- their work will be supported by legally qualified assessors (someone with the appropriate legal qualification)
The justice of peace
138
The justice of peace will deal with less serious cases such as
assault where there is no injury
where the victim does not suffer any wounds/ broken bones...
make decisions in the case of theft
of house break ins
vandalism
Tv licencing
road traffic offenses- driving without insurance
139
Crimes that are extreme will be tried in front of the high court of justiciary: True or False
true
140
The High Court of Justiciary is the most ______ criminal court in Scotland
Powerful
141
summary cases and solemn cases shown to the sheriff; they will make a decision whether they are innocent or guilty and decide on their punishment.
the sheriff will be supported by the Jury
142
There can only be appeals against this decision against the Supreme court of the UK is related to human rights, devolution, or devolved matters if not it will be the highest level of criminal court.
143
The Supreme Court can be seen as a Trial Court or as an Appeal Court- Appeals against first instance cases in front of The High court of Justiciary will be discussed in front of the Criminal appeal court.
144
First Instance Cases will be discussed in front of The Scottish Court of...
Criminal Appeal
145
What is The Scottish Court of Appeals Jurisdiction?
The whole of Scotland- for all kinds of crimes committed in Scotland
146
What procedure is most commonly followed by The Scottish Court of Criminal Appeal? (in Edinburgh)
Solemn Appeal; The jury is involved in decision making
147
What types of cases will The Scottish Court of Criminal Appeal deal with?
more serious cases/crimes; solemn procedures
148
When the Scottish Court of Criminal Appeal deals with Appeals it sits in Edinburgh (HQ)
When it deals with the first instance where is it situated?
Sit Trial Courts in Cities and larger town all over Scotland.
149
Courts reform ' report of the Scottish civil court review' September 2009
150
when was the Scotland reform Scotland act introduced
2014
151
Why Was the Courts Reform Act (Scotland) 2014 introduced?
There were concerns about the quality of the Scottish Civil Justice- whether it could effectively meet the needs of the individuals it serves.
152
Main changes to court services (procedures and processes)
| Courts Reform Act 2014
redistribution of civil business from the court of session to the sheriff court by raising the exclusive competence of the sheriff court from £5000 to £100,000
153
Courts Reform Scotland Act 2014: Established a Sheriff Appeal Court and Established a specialist.....
Personal Injury Court
154
The Court Reform Act 2014:
Redistribution of civil Business from the court of Session to the Sheriff Court by raising the exclusive competence of the Sheriff court from £5000 to £???
£100,000
155
AGENCY
156
Define Agency: Relationship between.....
Agency is a relationship that exists between two legal person ( the principal and the agent) in which the function of the agent is to form a contract between his principal and a third party
157
From an agency Definition, it is clear to see that there are ____ parties involved.
How many parties are involved?
3
158
Agency: The law of Agency is an area of C______ Law
Commercial
159
Third parties/intermediate
160
The three parties involved in an Agency are...
Principal
Third-Party
Agent
161
The Agency (agency contract) relationship/primary contract is between the principal and
The Agent
162
The Agency contract/ primary Contract is between who?
The Agent and the Principal
163
The agency contract: the agent will represent the Principal.
| How will the Agent represent the Principle?
The Agent will negotiate on behalf of the Principal.
| The agent will negotiate with third parties on behalf of the principal.
164
As a result of the negotiation made by the Agent on behalf of the principal what is the contract that will be formed?
The Secondary Contract
165
What is the Secondary Contract?
Legally Binding Agreement between Principle and Third Party
166
TRUE or FALSE
| There is a contract between the Agent and the Third Party?
FALSE- There is no contract between the Agent and the Third Party.
167
AGENCY Relationship:
| Principal: The party who employed another person (the Agent) to act on his or her behalf- in dealing with Third Parties
168
AGENCY Relationship:
The Agent: The part who agrees to act on behalf of the Principal
They are the legal representative of the principal
They negotiate...
They negotiate and enter into a contractual agreement on behalf of the principal with third parties.
169
Example of Agency relationships;
Agents are:
accountants, solicitors, architects, auctioneers, managers, company directors...
partners in a partnership (agent of the partnership and agents)
170
```
Example of Agency relationship:
House Seller
Solicitor
House Buyer
who is the agent, third party, and principal?
```
House seller is the principal
Solicitor is the Agent
House buyer is the third party
171
Why appoint an agent?
it is not possible for a principal to carry out every single task necessary;
delegate the task to an agent,
as they are likely to be too busy
or prefer that someone else concludes the agreement.
172
why appoint an agent?
For their skills and expertise, or experience in particular areas
accountants for example
173
Difference between employees and agents:
An employee has a list of duties that they perform in return for a wage- they carry out services for the principal under an employment contract
employee contract
174
Difference between employees and agents:
An Agent represents the principal for a fee and can enter into contract on their own behalf which results in a legally binding contract.
The agent is free of legal obligation- carries out services for the principal under a contract for service
175
Under a contract of service b)
under a contract for service a)
which one is an agent which one is an employee
a) agent
| b) employee
176
Can an employee be an agent?
A solicitor who works permanently for a legal department of a company then they will be an agent and employee.
