Unit 1 - The English Legal System Flashcards
(41 cards)
1
Q
Legal Duty vs Moral Duty
A
legal duty - carries with it sanctions enforceable by the state
moral duty - does not carry sanctions that are enforceable by the state
2
Q
what are the different types of law?
A
- private
- public
- civil
- criminal
3
Q
private law
A
- private relationships between individuals (including companies)
- enforced by individual taking action against another individual
4
Q
public law
A
- relationship between the state and individuals
- state enforces standards of behaviour
5
Q
criminal law
A
relationship between an individual and the community as a whole
6
Q
civil law
A
relationship between indiviudal and members of the community, NOT as a whole
7
Q
differences between criminal and civil law:
- what is the case called?
- who starts the case?
- can victim stop prosectution?
- what is the objective?
- what is the standard of proof?
- what is usually the outcome?
A
- criminal - prosecution
civil - action or claim - criminal - police, then CPS
civil - individual, the victim/claimant - criminal - victim cannot stop, CPS can proceed even if victim doesn’t want it
civil - claimant can stop the claim - criminal - punish
civil - compensate - criminal - beyond all reasonable doubt
civil - on a balance of probabilities - criminal - fines/imprisonment
civil - compensation, damages
8
Q
What are some equitable remedies?
A
- injunction
- decree of specific performance
9
Q
Injunction
A
- order of court compelling someone to do something OR to refrain from doing something
10
Q
Decree of specific performance
A
- order compelling someone to perform their obligations under a contract
11
Q
What are the sources of law in England and Wales?
A
- common law
- civil law
- Equity
- Legislation
12
Q
What is equity?
A
- equity supplements the common law
- can be invoked where the application of common law allows a person to act unconscionably
- equity PREVAILS OVER common law
13
Q
unconscionability
A
- decision made using the common law that offends a person sense of right or wrong
14
Q
Common law
A
- AKA case law
- judge made law that has developed from cases
15
Q
Civil law
A
- codified roman law derived legal systems
16
Q
Legislation
A
- passed by parliament
- e.g. statute
17
Q
Doctrine of Paliamentary Supremecy
A
- parliament is the supreme law making body in the country
- statute can amend case law
- case law cannot amend statute
- parliament has freedom to make any laws
- parliament cannot bind its successors
18
Q
Who makes law in England and Wales?
A
- Parliament
- The Courts
19
Q
What does parliament consist of?
A
- Queen
- House of commons - democratically elected
- House of Lords - not elected
20
Q
Where do statutes apply?
A
England, Wales, Scotland, NI
unless stated otherwise
21
Q
creation of acts of parliament
A
- green paper - consultation on new law
- white paper - firm proposal on new law
- act begins its life as a bill
22
Q
stages of creation of acts of parliament
A
- House of commons - first reading
- second reading - main debate on bill
- committee stage - scutinises bill
- report stage - house votes on any amendments
- third reading - consider the bill with amendments
- proceedings in house of lords
- amendments by Lords - sent back to commons in any amendments made
- the royal ascent - monarch gives approval and bill becomes an act
23
Q
what are the different types of legislation?
A
primary and secondary
24
Q
primary legislation
A
- the statute itself
- public bills and private bills
25
secondary legislation
- delegated legislation
| - statutory instruments and bye-laws
26
public bill
concern matters affecting the public as a whole e.g. stalking
27
private bill
affect particular persons/areas in the community e.g. building a new railway
28
bye-laws
- made by local authorities to deal with issues in their own area
e. g. coventry city council introducing bye-law to ban drinking alcohol on the street
29
statutory instruments
- delegated legislation made by government ministers
- saves times
- ministers make regulations for areas they are specifically responsible for
- government can call on expertise
30
what are the different types of public bills?
legislation which makes amends
consolidating legislation
codifying legislation
31
consolidating legislation
'tidy up the law'
| - one statutue 're-enacts' law which was previously contained in several different statutes
32
codification
- all the law on some topic is brought together in one new statute
33
What are the different EU institutions?
- The coucil
- council of the European Union
- European Parliament
- European commission
- Court of Justice of the European Union
34
what are the types of EU legislation?
- primary - treaties themselves
| - secondary - regulations, directives, decisions
35
Eu Primary Legislation - what are treaties?
- TFEU divided into sections, called articles
| - these articles are directly effective in member states
36
EU secondary legislation - what are regulations?
- once passed, they automatically become part of member states' legal system
- no need for further enactment by member state
37
EU secondary legislation - what are directives?
- binding as to the result that needs to be achieved by member state
- it is up to member state how they implement, as long as they achieve the objective within the time limit
38
EU secondary legislation - what are decisions?
- binding in their entirety upon those to whom they are addressed
39
Does the EU have supremecy over parliament?
YES
40
What is European Convention of Human Rights
- drafted by council of EU after WW2
| - idea was that it would be a statement of western Europes principles - prevent large scale human rights violations
41
What is the Human Rights Act 1998
- statute which incorporates ECHR into UK law
- gives judge the power to make a declaration of incompatibility if it is found that an act of parliament is at variance with the protection of one or more convention rights
