Legal Method

eveything about the english legal system 

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The need for legislation
laws become outdated, judicial precedent is ineffective slow and undemocratic, change in government policies
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Types of legislation
1. Acts of Parliament (HOC, HOL, Monarach) 2.Delegated legilslation
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What is Parliamentary Supremacy
Sovereign over other forms of law, overrules any judicial precedent, no limits what parliament can legislate, new parliament is not bound by previous parliament, cannot be overruled by courts
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Limitations of parliamentary supremacy
membership of EU - EU laws take priority, Human Rights Act - must be compatible with ECHR
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Explain delegated legislation
Law made by someone other than Parliament but with their authority
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Why does Parliament need delegated legislation
1. Do not have time to debate every detail of every Act 2. Does not have the necessary expertise to deal with a particular issue 3. DL can be changed easily allows quicker response 4.Parl. can't respond quickly in emergencies
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Types of delegated legislation
Statutory instruments. By-laws. Orders in council
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The need for statutory interpretation
Broad terms used in statutes, ambiguity - words having 2 meanings, drafting error, new developments in technology, changes in language
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Literal v Purposive approach
should judges examine each word and take them literally or should it be accepted that an Act cannot cover every situation and that meanings of words cannot always be exact
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The literal rule
judges take the ordinary and natural meaning of the word and apply it even if doing so creates an absurd result. Whitley v Chappell
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The golden rule
if the literal gives an absurd result, which is obviously not what Parliament intended, the judge should alter the words in the statute.
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The mischief rule
looks at the gap in previous law and interprets the words to 'advance the remedy'. Established in the Heydons case
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Purposive approach
looks at the intentions/purposes behind the passing of an Act. seeks to interpret the words of the statute to give effect to Parliament intention
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Intrinsic Aids
sources within the Act: definition section, short/long title, preamble
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Extrinsic Aids
sources outside the Act: dictionary, hansard, HRA 1998
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Ejustdem rule
where there is a list of words followed by general words, the general words are limited to the same kind of items as the specified words
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Expresso unius exclusio alterius
the mention of one thing excludes others
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Noscuiter a sociis
a word is known by the company it keeps (context)
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Advantages of statutory interpretation
prevents cases ending in absurdity, allows changes in language, social/technological advances, avoid problems from broad terms.
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Disadvantages of statutory interpretation
relies on extrinsic aids hansard which causes delays and adds costs, gives judges too much power making law rather than interpreting
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Stare decisis
Stand by what has been decided. Previous decisions of higher and the same level courts are normally binding on judges hearing later cases on similar facts.
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Ratio decidendi
That part of the decision which is binding, principles of law used to decide a case, the reason for deciding.
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Obiter dicta
comments made outside the judgement, these are not binding but are persuasive
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Avoiding Precedent
overruling: legal rule in an earlier case is wrong. reversing: higher court overturns decision of lower court. distinguishing: facts of previous case are sufficiently different and therefore not bound to follow
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three exceptions identified in Young V Bristol
1. conflicting decisions in past CA cases can choose. 2. a decision of HL which effectively overrules a CA decision, CA must follow the decision of HL. 3. decision was made per incuriam
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Other cards in this set

Card 2

Front

Types of legislation

Back

1. Acts of Parliament (HOC, HOL, Monarach) 2.Delegated legilslation

Card 3

Front

What is Parliamentary Supremacy

Back

Preview of the front of card 3

Card 4

Front

Limitations of parliamentary supremacy

Back

Preview of the front of card 4

Card 5

Front

Explain delegated legislation

Back

Preview of the front of card 5
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