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36 Cards in this Set
- Front
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4 types of Delegated Legislation (EU) Decisions explain: |
Decisions are directed toward a specific member state, company or individual And are immediately binding on them. |
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4 types of Delegated Legislation (EU) Recommendations and Opinions explain: |
These are not legally binding. They are a view expressed by the EU. |
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What are the 4 aspects that define Parlimentary Supremacy? |
1. There is no higher legislative authority that Parliament 2. Parliament can make and repeal any law 3. No court can declare an Act as invalid 4. No Parliament can bind its successor or be bound by its predecessor |
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Given the following 4 characteristics of Parliamentary Supremacy, go through each one and state why EU membership has made each one of no effect: 1. There is no higher legislative authority that Parliament 2. Parliament can make and repeal any law 3. No court can declare an Act as invalid 4. No Parliament can bind its successor or be bound by its predecessor |
1. There is no higher legislative authority that Parliament: the EU can pass regulations which are immediately effective without parliamentary consent. Therefore, EU IS a higher legislative authority. 2. Parliament can make and repeal any law: All UK law must comply with EU laws otherwise Commission can ask CJEU to pronounce it invalid. 3. No court can declare an Act as invalid: CJEU Can declare UK law invalid 4. No Parliament can bind its successor or be bound by its predecessor: All parliaments since 1973 have been bound by decision to join EU |
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Secretary of State for Transport, exparte Factortame [1991] What happened in the above case? |
The ECJ (now the CJEU) ruled that UK courts should ignore the Merchant Shipping Act 1988 which protected British fishermen: allowing only them to fish in UK costal waters. ECJ said it was contrary to principles of EU law. Damages of approx 100 million were awarded to Spanish fishermen. |
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The UK constitution is based on the doctrine of the separation of powers . What does this mean? |
Each organ of government is separate in its function |
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What are the 3 organs of government? |
The Executive: the government (run the country) The Legislature: both Houses (make laws) The judiciary: Judges (apply the law) |
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3 reasons statutory interpretation can sometimes be difficult? |
1. Can be ambiguous 2. Complex as it deals with complex issues 3. Legislation has to be 'a single statement of the law' (so has to say laws in one statement and cannot give examples or say something again in a different way to try to aid understanding) |
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The 3 types of interpretation of the law are... Give brief explanation of each |
Literal rule: words given there literal plain meaning - even if leads to absurdity (if does lead to absurdity, then its up to parliament to change legislation) Golden rule: words may be given a more satisfactory meanibg where plain meaning leads to absurdity Mischief rule: (Heydons Case 1584) - court must establish the mischief that legislation was seeking to prevent , then apply the interpretation that achieves that. |
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What are the 4 considerations judges make when applying the mischief rule? |
1. What was the common law before the legislation
2. What was the mischief that the common law did not provide for?
3. What remedy is it parliament has given in the new legislation?
4. The true reason of the remedy. (Ie the true intention the remefy was made for) |
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3 cases that demonstrate the literal rule? |
1. Fisher v Bell [1961]: shopkeeper displays knife in window, contrary to Restriction of offensive weapons Act 1959 - literal rule = displaying is "inviting offers" not offering to sell them. 2. Whiteley v Chappel [1868]: def votes twice. Charged with "impersonating someone entitled to vote". Literal rule = dead ppl not entitled to vote. 3. LNER v Berriman [1946]: man killed whilst maintaining track. Wife claim compensation. Litetal rule = compensation only for repairing and relaying. Not maintaining. |
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2 case examples of Golden rule? |
1. Allen [1872] Charged with bigamy. Act stated offence for someone "being married to marry". Def agrued giving marry its literal meaning: its impossible to legally marry if married. Golden rule = marry can include going through marriage ceremony. 2. Adler v George [1964] def gained access to RAF station. Obstructed member of armed forces in course of duty. The Official Secrets Act 1920 states its an offence to do this "in the vicinity" of of a prohibited place. Def argued that vicinity meaning nearby does not include place itself. Golden rule = in the vicinity means near or in place itself. |
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Smith v Hughes [1950] What are the brief facts of the case And, What interpreatation rule was used? |
Mischief rule Defs were prostitutes that called down feom their balcony to solicit men. Street offences Act 1959 = criminal offence to loiter or solicit in street or public place for prostitution. Def said not public place. Mischief = nuisance to ppl in street by soliciting. Reason for Act = to prevent soliciting in street. Def lost. |
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In regards to the 4 considerations that are made when applying the Mischief rule: Explain diff between: "Mischief" in question And "True reason" for Act |
The mischief = the problem (ie prostitutes soliciting on street) The true reason = the purpose/ what thr Act intends to do about the problem (prevent soliciting on streets, or, prevent brothels being set up etc) |
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What is the job of the judiciary? |
To give effect to Parliament's will as expressed through legislation. |
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What is the purposive approach? And where is it commonly used? |
Commonly used in the EU (CJEU) And, when UK is deciding cases relating to EU Law, UK court will use purposive approach It considers: 1. What was the aim of the legislature 2 . And then applies tge legislation to achieve that aim Note: it is similar to the mischief rule, but not as specific |
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Example where purposive approach used? |
Pickstone v Freeman [1988] Female warehouse worker said shoukd be paid same as men. Applicable Act = Equal Pay Act 1970, which was brought in to give effect to Equal Pay Directive. Act said she shoukd Not be paid same. Directive said she should. Ruling = Acts purpose was to give effect to directive. So Act to be read as though it did so. |
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What are the 2 presumptions made about all statutes (unless the statute itself states that they do not apply)? |
1. In order for someone to commit a criminal offence, they need to of had a guilty mind (mens rea) at the time of committing the offence (actus reus). This means if a statute does not state both a mens rea and actus reus: then the offence described is not a criminal offence. 2. Statutes have no retrospective effect. |
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When interpretting an Act, judges use both internal and external aids: Whats an internal aid? |
An aid found within the Act itself |
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4 examples of internal aids: |
1.Long title, short title & preamble 2. Headings & Schedule 3. Interpretation sections (which is like a mini dictionary in the Act) 4. Marginal notes |
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6 external aids used to interpret an Act: |
Dictionary: to find literal meanings of words The Interpretation Act: contains standard definitions of commonly used words Explanatory notes: published alongside Acts (so not part of an act but a supplement) Other statutes: to see how words/phrases interpretted before Other docs relating to the Act: green/white paper Hansard: official record of debates |
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When a judge reaches their decision at the end of a case they give a speech called a ... |
Judgment |
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What are the 2 types of precedent? |
Original precedent: a new precedent Declaratory precedent: an existing precedent |
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What is the literal meaning of stare decisis? |
Let the decision stand |
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What does stare decisis mean? |
The principle that: Where a case is sufficiently similar in fact And, there is an existing precedent: Later courts are bound to follow it. |
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What are the 3 things that a legal system needs in order to practice stare decisis (judicial precedent)? |
1. A court hierarchy: to define which court bind which 2. A system of law reporting: to record decisions for later use by courts & lawyers 3. A system of rules to identify which elememnt of decision is binnding: ie what part is ratio. |
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What does ratio decideni mean literally? |
Reason for the decision |
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What is the ratio decidendi? |
The reason the judge has made decision they have It will contain the point of law he judge has used for the decision. |
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Court hierarchy: Is the SC bound by its own decsions? And are there any circumstances it may depart? |
Yes they are bound.
But: they may depart where it "appears right to do so". This is due to a Practice Direction issued in 1966 which stated SC can do this.
Though this power is used very sparingly. |
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Court hierarchy: Is the Court of Appeal bound by its own decisions? And can they ever depart? |
Yes they are bound. Except in the Civil Division where any of the following apply: 1. The earlier decsion was made in error 2. Their earlier decision conflicts with later CA decision 3. Their earlier decision conflicts with later SC or HL decision |
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What case established the 3 rules where CA civ div may depart from its earlier decision? |
Young v Bristol Aeroplane Co [1944] |
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Can the CA crim div depart from its earlier decisions? |
Yes, the rules are more flexible than civ div as liberty is at stake. |
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Court hierarchy: Is the Divisonal Court of the HC bound by its own decisions? |
Yes And its decisions also bind HC |
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Is HC bound by its own decisions? |
No They're strongly persuasive |
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Is Crown Court bound by its own decisions? |
No They "may be persuasive" |
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Does the Crown court, County court or Magistrates bind any court? |
No |
