G152 Law Flashcards

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  • Created on: 05-01-14 12:33
What does the excecutive do?
Propose the law
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What does the legislature do?
make laws.
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What does the judiciary do?
apply the law.
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Example of a Private Members Bill?
Abortion Act 1967
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What is the Legal Services At 2007?
Where non lawyers can now be involved in legal business as well as lawyers. E.g. Cooperative society.
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Explain the Constitutional Reform Act 2005.
There is now a Judicial Appointments Comission instead of a Lord Chancellor so judges dont have political influence. Montesquieu's theory.
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Who sit in the HOC?
MP's (650). They are payed and democratically elected.
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Who sits in the HOL?
Bishops/Lord Spirituals, Peers, hereditary and life. Senior judges. Volantry, so is more objective as they arent fighting for a job.
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Name all stages in the legislative procedure? And explain each stage.
Green Paper, White Paper, First Reading, Second Reading, Committee Stage, Report Stage, Third Reading, House of Lords, Royal Assent, Commencement of the Act.
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Define delegated legislation.
Law made by some person or body other than parliament with the authority of parliament.
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How many Acts of Parliament per year?
70-100
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How many Statutory Instruments per year?
4000.
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Why do we need delegated legislation?
Insufficient Parliamentary time, local knowledge, technical expertise, speed, flexibility, future needs.
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Explain Orders in Council
Made by Privy council in the name of the queen, in national emergencies such asthreats to food, water, fuel, floods and fires etc. Therefore it must be a quick process. Parent Acts are Emergency Powers Act 1920 and Civil Contingencies Act 2004.
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Explain Statutory Instruments/ Regulations
Made by head of Gov, departments with a field of expertise to supplement primary legislation, and add detail to basic framework of law. All SI are made under the Statutory Instrument Act 1946. Misuse of Drugs Act 1971 (cannubis classification)
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Explain Byelaws
Made by local authorities and public bodies -basic law for local needs. Byelaws are made under the Local Government Act 1972. E.g. London Underground smoking ban in 1999. Doesnt waste parliamentary time on small issues such as parking regulations.
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Explain Negative resolution?
Most Si go through this. A proposed law is laid before parliament and after 40 days it will become live if there are no objections.Quick, although bad law through the back door may occur if law is proposed at busy time.
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Explsin Affirmative Resolution.
Where SI's dont become law until approved by both Houses within 28-40 days. Codes of paractise must go through AR under the Police and Criminal Evidence Act 1984.Only 500 per year.Can only be annulled/withdrawn, passed
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Why must there be controls for delegated legislation?
The laws dont get scrutinised like in the legislative procedure which could lead to abused power. Delegated Legislation is a secondary/subordinate type of law.
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Explain controls of a Parent Act.
Lays down nature and scope/basic framework of law. Sets down the procedure which must be followed, Parent ACt can revoke delegated legislation, and parent act may be ammended if necessary. Tight framework is good.
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Explain Super Affirmative Resolution as a parliamentary control.
Gives Parliament more control over DL under the Legislative and Regulatory Reform Act 2006. Gives ministers wide powers to repeal any law thats considered a burden, e.g. a financial cost. Minister may have to consult/seek approval
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Explain Questions by MP's as a Parliamentary control of DL.
Its only questioning, so no ammendments can be made, however it does publicise DL which could lead to objections from Parliament which would stop bad law through the back door.
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Explain the Scrutiny Committees as a Parliamentary control of DL.
The Joint Committee on statutory instruments reports to House on any DL that requires special consideration. The HOL Delegated Powers Scrutiny Committee looks at the extent of legislative powers being delegated by Parliament to Government Ministers.
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Evaluate how effective court controls are regarding DL.
Good safety net and gives individuals a chance to challenge. However there is a lack of publicity so hard to challenge within 3 months. Also only wealthy can afford it.
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What criteria must you meet to have a Judicial Review?
Judicial Review's decide the legality of the law (did the minister follow correct procedures?). For this, a case must be brought forward by an individual directly affected with the new law within 3 months. If law conflicts with HRA 1998 JR can occur.
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Explain Procedural Ultra Vires.
Where procedures laid out in parent Act are not followed properly. E.g. Aylesbury Mushrooms 1972.
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Explain Substantial Ultra VIres.
The piece of delegated legislation goes beyond the powers laid down in Parent Act. E.g. Fire Brigades Union 1995.
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Explain Unreasonable Ultravires.
If the rules are unjust or that no reasonable official could have made them. E.g. Strickland v Hayes 1896.
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What is the law comission?
A full-time, epcialist, independant body formed under the Law Comission Act 1965.
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How does the Law Commission Reform the law?
Referral- Lord Chancellor may refer topics on behalf of government. Research - Law Comission researches areas of law in need of reform. COnsultation - Allows interested parties to share their views on reform. Then a firm proposal is done as a report
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What is the role of the law comission?
Make recommendations to changes in the law. Keep all law under review. Report annually to parliament on law comission proposals being impelmented. Law Comission Act 2009 means lord chancellor must report to parliament.
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What do the law comission do?
Researching area of law in need of reform,e.g.final report with attached Bill. Repeal out of date statutes (Statute Law (Repeals) Act 1998 got rid of 150 obsolete laws. Consolidate laws, Family Law Act 1996. Codify areas of lawCriminal Code Act 1985
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Success of law comisison?
185 reports, 2/3 have been implemented,18 repeal and 43consolidating reports implementyed, Repealed 150 outdated statutes in 1998. Consolidated domestic violence Family Law Act 1996. No successful proposals in 1990.Law Comission Act to improve succes
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Why do we need statutory interpretation? 3 of 5 reasons
Broad terms - Brock v DPP, type had a different meaning than breed and covered all pit bull terrier characteristics. New developments - Royal College of Nursing, advanced medical technology. Changes in language - meaning of passneger changed.
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Why do we need statutory interpretation? cont. other 2 reasons
Ambiguity - more than one meaning to a word - R v Allen. Drafting Error - Parliamentary draftsmen could have made an error if the bill was ammended several times.
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Describe literal rule.
Traditional rule used by pasisve judges (Scarman/Simmonds). Apply 'plain, ordinary, gramatical meaning of the word'. Whiteley v Chappel and Cheeseman.
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Advantages/disadvantages of literal rule.
Ad - Respects parliamentary sovereginty, maintains seperation of powers, encourages consistancy, democratic. Disad - Harsh/absurd results, Defeats parliaments intention, doesnt contextualise law.
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Describe Golden Rule
Modification of literal rule, created to avoid absurdities/harshness. Literal rule unless it would lead to repugnant decision or there is ambiguity in the act. Gives words slightly different meaning -Narrow interpretation - r v allen. wider - sigwort
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Advantages/disadvantages of golden rule.
ads - avoids literal rule problems, acts as a safety net, fairer, respects sovereignty. disad - no clear definition of repugnant, undemocratic, uncertainty in law, limited use. Michael Zander - unpredictable safety net.
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Describe Mishchief Rule
Oldest rule (dates back to 16th century), developed in [Hayden} case 1584. Judges look for mischief or gap the law intended to cover. Use extrinsic Aids. Backward looking on parliamnets intention. Smith v Hughes and RCN.
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Advantages/disadvantages of mischief rule.
Flexible, helps achieve parliaments intention, removes absurdity and injustice. Dis- Relies on extrinsic aids, undemocratic/doesnt support parliamentary supremacy, doesnt support montesquieu.
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Describe purposive approach.
Focuses on Parliaments intention, modern approach developed in 70s. Contextual approach applying 'spirit of the law', looking outside the law to find its meaning. EU law uses this approach as EU law is non specific. Pepper v Hart & Smith.
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Advantages/disadvantages of purposive approach.
ad - flexibility, fairer than literal rule, takes into account changes in society, gives effect to parliaments true intentions. dis - relies heavily on extrinsic aids (costly and time consuming), undemocratic, doesnt support montesquieu, limited use.
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Lord Simonds view on St Melons case (purposive approach)
A nakes usurpation of the legislative function under the thin disguise of interpretation." - taking power from parliament and disguising it.
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Describe intrinsic aids.
title - long title gives info. on the act. law of Property Act 1925. Preamble - Helpful indication of Parliaments intention/purpose. Chapter Headlines - Sets out clearly, clue to content. Definition sections-Theft Act 1968 gives definitions of theft.
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Describe extrinsic aids.
Hansard - Official report of what was said in parliament when Act was debated. Law refrom reports - Discovers the mischief/gap. Black Clawson 1975. EU Law notes can be used. Monarch Airlines 1980.
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Explain Eujusdem generis rule.
Where there is a list of words followed by a general word, the general word covers similar kind of items. Allen v Emmerson (funfair).
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Explain expression unius exclusio alterius rule.
Mention of one thing excludes another. When there is no general word, the Act only applied to specified things. E.g. Tempest v Kilner (stocks and shares over £10 coming under goods, wares and merchandise.)
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Explain noscitur a sociis
A word is known by the company it keeps. frere 1965 - interpreting rules for interest, annuities and other annual interest, so they decided interest is all annual interest in this case.
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Define stare decisis
Stand by what has been decided and do not unsettle the established.
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What can overrule judiucial precedent?
New acts of parliament, as judicial precedent is subservient to statute law.
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What is contained in a court judgement?
Principle of law that lead to that decision. Contains obitter dicta (other things said.)
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Obitter dicta definitions.
Other things said (High Trees House 1947 and R v Howe/ Gotts.)
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What is distinguishing?
Making out that the material facts are sufficiently different from a previous case. (Balfour 1919 and Merit 1971).
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What are the three types of precedent?
Original, binding, and persuasive. (lower courts, decisions of privy council, dissenting judges, obitter dicta, decisions in other countries.)
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What is overruling?
When a court in a later case states that the lagal rule decided on in an earlier case was wrong. (Brb v Herrington 1972 overruled Dumbreck 1929.)
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What is reversing?
When a court higher up in the hierarchy overturns a decision of a lower court on the same case. E.g. Royal College of Nursing 1981.
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What does the supreme court hear cases on?
Point of law of general public importance.
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What did the supreme court do prior to 1898?
They could overrule past decisions. More flexible. Allowed for mistakes.
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What did the supreme court do after 1898?
In the London Street Tramways Case 1898, the Supreme Court were cound by their past decisions unless decision was made per incuriam (in error). Certainty overruled individual hardship.
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What did the supreme court do after 1966?
Not bound by past decisions due to the Practice Statement 1966. Meant law could now develop to meet changing social and physical conditions. However didnt give certainty/consistancy.
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Should Court of Appeal be bound by supreme court?
yes - gives certainty/certainty and fairness, precise, gives flexibility, saves time, stops conflicting precedents for lower courts. no- too rigid, complex, illogical distinctions, slowness of growth, few cases are heard by SC, last appeal for many.
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How can COA depart from previous decisions?
Young v Bristol Aeroplanes 1944. Conflicting decisions in past cases, where decision was made per incuriam, where supreme court decision must overrule COA decision. In criminal division COA can refuse to follow past decision is law has been misapplie
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Extending of murder case law.
Vickers 1957, so murder covers 'the intention to kill... or cause grevious bodily harm.'
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What case created the law of negligence?
Donoghue v Stevenson 1932 - duty of care to others. Now a person can sue people/companies that are negligent towards them.
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Should judges make law?
yes - If theres no previous case, judges must make a decision, the law must develop so judges overrule coutadted coutcome RvR 1991. no - judges are non-elected, doesnt support montesquieu, gives more certainty is judges only APPLY law.
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Advantages of Judicial Precedent
Gives certainty, consistancy and fairness (similar cases decided in similar way), precision (law gradually builds up through cases), flexibility (gives law room to develop), time saving (when principle of law is decided similar cases)
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Disadvantages of judicial precedent?
Rigidity (can make law inflexible), complexity (not easy to findrelevant case law), illogical distinctions making areas of law very complex, slowness of growth (Law cant be reformed until case before the courts. Supreme court only hear limited cases.
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Describe history of law reporting.
1275 - 1536 (yearbooks, short reports) 1535-1865 (reported by businessmen, varying detail), 1865 - Council of Law reporting was set up, controlled by courts. Accurate reports, with precise judgements.
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