Topic 1 & 2 (English Legal System)

Question 1

What’s the difference between Common Law and Statute?

Answer 1

Common Law = Judge-made law

Statute = legislation passed by Parliamen

Question 2

What is Public Law concerned with?

Answer 2

The State and its interaction with individuals and public bodies.

Question 3

What is Private Law concerned with?

Answer 3

Disputes between private parties

e.g. contract disputes, tort actions

Question 4

Explain the classification of English Law

Answer 4

INSERT IMAGE WHEN PAID FROM PPT 1

Question 5

What does the law provide? (generalised)

Answer 5

Remedies and Sanctions for transgressions

Question 6

What does Criminal Law aim to prove?

Answer 6

Defendant was guilty ‘Beyond reasonable doubt’

Question 7

Criminal Law seeks to regulate…

Answer 7

actions that are contrary to the established laws.

Question 8

What are the other names for Public & Private Law?

Answer 8

Public = Criminal Law

Private Law = Civil Law

Question 9

How are cases determined in Civil Courts?

Answer 9

On the ‘Balance of probabilities’

Question 10

What does a constitution do?

Answer 10

Constitution determines and regulates the power of the State (and how this power may be exercised).

Question 11

Does the UK have a codified or uncodified constitution?

Answer 11

Uncodified constitution (can be changed easily)

Question 12

Name the four sources of the UK Constitution?

Answer 12

• Statutory materials
• Case-law/common law
• Conventions/Customs
• Prerogative Powers

Question 13

Explain Prerogative Powers

Answer 13

• Powers that used to be held by the Monarch prior to 1688 due to their constitutional position which gave them Ultimate Legislative Authority.
• These powers have now been passed to Government and exercised by ministers
• System of checks and balances exists to share power between different branches of Government so not one section can become too powerful.

Question 14

What are Conventions/Customs?

Answer 14

• Important principles that are respected and followed by the state.
• Considered ‘soft law’.
• Not enforceable

Question 15

What is the UK’s constitution founded on?

Answer 15

Founded on the principles of the doctrine of parliamentary supremacy and the rule of law.

Question 16

What are the Law sources in the UK?

Answer 16

Either:

• Statute (legislation passed by parliament)
• Common Law (judge-made law)
• EU Law

Question 17

How has legislation originating from the EU become law in the UK?

Answer 17

Through Section 2 of the European Communities Act 1972 (c. 68)

This meant EU Law either became Directly Applicable or required domestic implementation by UK Government under Section 2(2) of the ECA 1972.

Question 18

What is the ‘rule of law’?

Answer 18

Elements such as:

• no one should suffer a penalty except for a clear breach of the law
• everyone is equal before the law
• Rights of the individuals are to be secured by the ordinary remedies in private law administered by the Courts.

Question 19

What is Parliamentary Supremacy?

Answer 19

Parliaments law is the highest form of law following the ‘Glorious Revolution’ of 1688.

Question 20

What are the organs of the State and what is the Separation of powers?

Answer 20

3 organs of the state include The Executive, The Legislature and The Judiciary

Separation of powers seeks to establish a system of checks and balances between State institutions and to ensure a degree of separation between their functions.

Question 21

Sources of English Law?

Answer 21

Parliament - Legislation/Statutes e.g. The Consumer Rights Act 2015

The Courts - Through the Common Law / case law e.g. R v Smith (1989), Smith v Brown(2019) referred to as Judge made law

Question 22

What’s Direct legislation and delegated legislation?

Answer 22

Direct Legislation is legislation passed by parliament such as the Health and Safety at Work Act 1974

Indirect/delegated legislation (enabling act) power has been provided through a government minister/another body due to time constraints on parliament or minor changes to the act that don’t warrant the passage of the Bill. Either: Statutory Instruments, By-Laws and Orders in Council.

Question 23

What is Statutory instruments?

Answer 23

Statutory Instruments refers to the rules and regulations made by government ministers.

Question 24

What is the by-laws?

Answer 24

By-laws can be made by the local authorities to cover matters within their own area. Local bylaws can involve traffic control, such as parking restriction

Question 25

What is Orders in Council?

Answer 25

The Queen and the Privy Council have the authority to make orders in the council. The Privy Council is made up of the prime minister, and other leading members of the government.

Question 26

Advantages and disadvantages of Delegated legislation

Answer 26

- Speed. - Flexibility. - Technical/local knowledge. - Certainty in the law. - Laws passed by unelected officials/bureaucrats.

Question 27

How are Statutes interpreted? (what tools they use judges?)

Answer 27

Judges can interpret legislation but not fill the gaps and to help them, judges may use a number of tools Intrinsic aids: e.g. The CRA 2015 has definitions of what a consumer/trader is. External aids: - Interpretation Act 1978 - Government Reports - Parliamentary Reports (Hansard) Pepper v Hart (1993) to see if the word/phrase was debated in Parliament

Question 28

Whats the Court Hierarchy?

Answer 28

INSERT IMAGE

Question 29

Advantages of the system of Judicial precedent?

Answer 29

- Flexibility (ability to distinguish cases); - High quality decisions to be applied in all courts; - Only very able people can become judges; - The law is consistently applied; - This creates certainty.

Question 30

Judge-made law is based on the doctrine of.....

Answer 30

Binding precedent which depends on several factors: i. court hierarchy ii. whether the facts come within the scope of the previous case. iii. Whether what the judge said was in the ratio decidendi or merely obiter dicta.

Question 31

What does 'ratio decidendi' mean?

Answer 31

The reason for the decision

Question 32

What does obiter dicta mean?

Answer 32

Other things said - everything other than the ratio decidendi

Question 33

Judical principles of statutory interpretration and meaning of rules

Answer 33

- The Literal rule (plain and ordinary meaning) - The Golden rule (reinterpret what parliament has already created where to take it as their plain and ordinary meaning would produce an absurd result) - The Mischief rule (looks at the mischief it was enacted to avoid and interprets it accordingly)

Question 34

What case goes with The Literal Rule? (&Explain)

Answer 34

R v Hillingdon London Borough Council, ex parte Puhlhofer 1986 Married couple in one-bed in guest house with another young child and baby. Complained they were still homeless as they had no washing or cooking facilities. Court of Appeal decided that they were not homeless even if accommodation inadequate and it was up to LA to balance the priority/suitability of housing. Court wouldn't intervene unless LA was abusing power of the Housing 1985 Act. Its "an Act to assist persons who are homeless, not an Act to provide them with homes."

Question 35

What case goes with The Mischief Rule?(&Explain)

Answer 35

Smith v Hughes 1960 Prostitute solicited prostitution from inside her house to not go against the Street Offences Act 1959 as it was not in the street as per the Act. Purpose: The legislation had been enacted to stop the mischief of prostitution hence court interpreted the act that 'street or public place' could include a person's home.

Question 36

What case goes with The Golden Rule?(&Explain)

Answer 36

Re Sigsworth 1935 Beneficiary of dead person's (mothers) estate. Killer was the son and under relevant law (The Administration of Estates Act 1925) he was entitled to claim from estate. PURPOSE: Court would not allow killer to benefit from their crime and decided to not interpret the act as in its literal meaning leaving killer (son) without an entitlement to the estate. Against public policy of allowing a murderer to profit from their crime.

Question 37

Whats the three types of track as part of Civil courts? and £ ranges

Answer 37

Small claims track is £10,000 or less Fast track is generally between £10,000 and £25,000 Multi-track is over £25,000 and expect to be more than 1 day in court or expert evidence needed

Question 38

What are the alternatives to Court?

Answer 38

Tribunals (Adjudication)? ASK IN CLASS or Arbitration Conciliation Mediation

Question 39

What is a tribunal?

Answer 39

Usually a panel with a qualified tribunal chairperson and 1/2 people with expertise in the case to decide on disputes. Mainly between employers and employees e.g. discrimination in the workplace but can be on immigration, data protection.

Question 40

Advantages & Dis-advantages of a Tribunal

Answer 40

Ad: - Speed at which cases are heard and resolved. - Reduction in costs - Expertise in nature of the claim over courts - Increased informality Dis: - Limitation in ability to get free legal assistance - No system of precedent in tribunals - Procedures in tribunals becoming complex

Question 41

What Alternative Dispute Resolution, what does it focus on and what are the types of ADR?

Answer 41

ADR is a mechanism used to avoid courts having to resolve disputes that can be resolved elsewhere. Focuses on co-operation rather than adverbial approach taken by courts of winning a case etc. Three types: - Arbitration - Conciliation - Mediation

Question 42

Advantage/Dis-advantage of ADR?

Answer 42

Ad: - Co-operation v Adversarial approach - Speed of resolution - Costs - Privacy Dis: - Duplication of fees: still may end up in Court if resolution is not found so paying for ADR then court fees on top after - Imbalance of power relations as it can be employer v employee hence employer will not mediate if they are in a strong position - Important points of law or statutory protections may be missed as the people with expertise do not have experience of legal procedures and the law

Question 43

What is Arbitration?

Answer 43

- A voluntary system where the parties rely on the services of an arbitrator (an independent, fair and impartial third party). - It may be chosen by the parties, they may be referred to it by the court, or statute may require. - The arbitrator provides their decision and this is binding on the parties, although an appeals process applies.

Question 44

What is Conciliation?

Answer 44

Similar to mediation - but the conciliator adopts a more proactive approach. - They offer solutions and identify strategies for the successful resolution of the dispute (this is often seen in employment disputes). - However, the interventionist approach is often a concern due to the unequal bargaining powers of the parties.

Question 45

What is Mediation?

Answer 45

- Emphasis on assisting the parties to resolve their problems - May be 'evaluative' where an assessment is made of the legal issues) or it may involve a 'facilitative' approach - The parties appoint the mediator (hence they may not be seen as 'independent'), and it may be binding on the parties if this is what they choose

Question 46

When does an Act of Parliament enter into force?

Answer 46

Either on the commencement date stated in the stature, or where the statute is silent, upon Royal Assent.

Question 47

What is the Rule in Pepper v Hart?

Answer 47

The House of Lords said that judges could look at the Hansard Reports of parliamentary debates and proceedings as can aid to construing the meaning of the legislation. Hansard is considered an external aid.

Question 48

What is the doctrine of Stare decisis?

Answer 48

Doctrine of precedent. Refers to hierarchical structure of English courts and that decisions in higher courts will be binding on a lower court in that hierarchy.