Section A - Paper 2 Flashcards

Question

What is the seven stage legislative process?

Answer 1

- Introduction - First reading - Second reading - Committee stage - Report stage - Third stage - Royal ascent

Answer 2

- approved by both House of Lords and commons - go through a 7 stage process meanwhile

Answer 3

POINT - A disadvnatge is that making laws are very confusing to some professionals EXPLAIN - Some areas of law are very complex and need much more involvement from experts on those areas - MP’s and peers may not be knowledgeable enough to make these laws EVIDENCE/ DEVELOP - An example is complex tax laws or medical laws - This is a disadvantage because we need professionals in order to make the laws but they even find it hard, creating injustice in making new las under the Acts of Parliament

Answer 4

POINT - A disadvantage is that the government controls the laws introduced and reformed EXPLAIN - The government have too much control over which laws are introduced and the time when they can be debated. This can mean some areas go ignored if they are not on their agenda EVIDENCE/ DEVELOP - For example, the Labour government are prioritising certain policies such as housing and changing employment law rules - This is a disadvantage as even though the public have influence, they cannot have no control at all at if the laws will go through and if they are beneficial at all

Answer 5

POINT - A disadvantage is that there is lack of time EXPLAIN - Despite it being a long process to change laws in Parliament due to the different stages, some stages are given limited times and sometimes debates are cut short when more time is needed EVIDENCE/ DEVELOP - For example, when there are pressing matters such as Brexit or Coronavirus, often less urgent bills will have their debates cut short - This is a disadvantage as bills that could be beneficial to the law in the future are not put forward and can be forgotten about, leading them to never be enforced, creating injustice

Answer 6

POINT - A disadvantage is that it is a very long process EXPLAIN - Due to the requirements for both houses to agree, some laws can take years to get passed – and most take months. Sometimes, by the time it becomes law, the issue is no longer an issue EVIDENCE - The Coronavirus laws were fast tracked, which makes the law flawed and rushed - This is a disadvantage as it can lead to laws being not made in time, meaning people can get away with certain offences that are unknown to the law, creating injustice in the legal system

Answer 7

POINT - An advantage is that laws can be added later to set laws in the Acts of Parliament EXPLAIN - It is important to make sure that minor changes can be amended later on without needing to repeat the whole process, which happens through delegated legislation EVIDENCE/ DEVELOP - The dangerous dogs act 1991 allows more breeds of dog to be added to the banned list if necessary - This is an advantage because it reduces injustice in the legal system and it means people cannot get away with some offences like the Dangerous Dogs Act 1991

Answer 8

POINT - An advantage of law making is that they can make consultations on some changes in parts of the law EXPLAIN - Both the Green paper stage and during the Committee stage in law making process, there is consultation with experts and parties interested in the bill EVIDENCE/ DEVELOP - A green paper about children’s mental health in 2017 attracted many including parents, schools, medical professionals (MP’s and peers can also consult and give their POV) - This is an advantage because it can get the public’s opinion as well as experts and MP’s their opinion and whether the bill would be relevant to the legal system and beneficial in today’s society

Answer 9

POINT - The law can reform all areas of law EXPLAIN - Some areas of law cover wide topics and many different elements of an area of law - The government allows for this, for all areas of law top be reformed if there was something wrong to give a fresh start EVIDENCE/ DEVELOP - This was seen in the Criminal Justice Act 2003, which affected various different parts of criminal law - This is an advantage because if something was wrong in parts of the law, causing injustice and inconsistencies in sentencing, it can easily be reformed, leading to a more fair and just legal system

Answer 10

POINT - An advantage of the law making process is that it is a law making process is that it is a democratic process EXPLAIN - They are made accountable for the desicions they make - They should be carrying out their duties as an MP by following up on what the public wants but still regulating the law EVIDENCE/DEVELOP - in 2010, Liberal Democrats promised to lower university tuition fees, when in reality they were raised - This is an advantage as the public are involved in who is elected as an MP therefore they are in some way part of the law making process by deciding who can make laws that society must follow, meaning the law is also not biased

Answer 11

- Long process - Lack of time - Government control - Complexity

Answer 12

- Democratic process - Allows details to be added later - Consultation on changes - Reform full areas of law

Answer 13

- Laws made by the King and Privy Council, which can be passed in emergency situations and are also used to pass EU directives into law, under European Communities Act 1972 - The Privy Council can make laws in emergency situations, bring Acts or acts of force -

Answer 14

- Laws made by government ministers who are the heads of government departments - For example: department of education, department of health, department of pensions - sometimes they can change a full area of law or only sometimes a small bit i.e Dangerous Dogs Act 1991

Answer 15

- Laws made by local councils, such as parking restrictions, and bylaws also include laws made by public corporations such as National Rail - Examples: no fire’s, no bbq’s, litter - Local bylaws are permitted under the Local Government Act 1972

Answer 16

By laws Statutory Instruments Orders in Council

Answer 17

When parliament allows other legal bodies to make laws on their behalf, because they are better suited to do so

Answer 18

Procedural = correct procedure not followed - Aylesbury Mushrooms Case 1972 = shows how delegated legislation is challenged by the courts Substantive = when rule making body has no power to make rules under empowering act R v Home Secretary ex parte Fire Brigades Union 1995 = cannot use this law to make a new scheme Wednesbury unreasonableness = when desicion so unreasonable no body would consider imposing it Associated Pictures House v Wednesbury Corporation 1948 = no children under 15 in a cinema on a Sunday

Answer 19

- challenged on the court and heard in the King’s Bench Division of High Courts and two judges - person making desicion must have sufficient interest in case - challenge is on the basis that legislation goes is ultra vires = goes beyond powers granted by enabling act

Answer 20

- bodies are a check on SI’s by either A) the Joint Committee on SI’s B) the secondary legislation scrutiny committee in House of Lords - check only when made - do quickly, not through, leads to mistakes

Answer 21

- will not become law unless approved by parliament - parliament cannot amend statutory interpretation - can only be approved, make it invalid or remove it - used for 25% of DL made - not used often, time consuming

Answer 22

- will become law unless rejected by parliament in 40 days of publication - only few looked at = more than 3000 DL’s made per year

Answer 23

- Government minister can make regulations, types of laws to be made, whether the government must consult - can also remove powers in the enabling - parliament canwith withdraw power, put in stipulations who makes the law, And jurisdiction e.g. whole country, part of the country

Answer 24

- when participants makes laws - set process/ strict timetable - delegated bodies have no strict timetable - Local Goverment Act 1972 = local councils have flexibility to make local laws when needed to - effective / no laws are rushed = efficient

Answer 25

- Parliament is slow + cant keep up with changing society - when there is public health crisis - parliament can pass enabling act to issue statutory interpretations - law remains relevant and effective

Answer 26

- Parliament lacks expertise across specific fields - More effective for health and safety regulations to be made by those who work in jobs they are specialising in i.e engineers - Laws are well formed and practical + effective

Answer 27

- Parliament = huge workload + limited to scrutinize every detail of the law - Pass an enabling act - can add rules - Parliament can focus on bigger policy desicions = more efficent and effective

Answer 28

- Relieves time pressure for parliament - Expert knowledge - Future needs - Flexibility

Answer 29

- different bodies may interpret and apply powers various ways - create confusion + uncertainty, similar cases may be treated differently - unequal treatment of individuals - trust gone in legal system - reduces public fairness

Answer 30

- less scrutinised that those for primary legislation often - regulations made without direct input no public input or awareness - not accepted by public - lose public trust + confidence in legal system

Answer 31

- public health emergencies/ natural disasters - delegated authorities can enact regulations to deal with urgent needs i.e quarantine measures - can save lives or resources if done quick - ensuring timely and effective action

Answer 32

- increase of rule or regulations make it complicated - create difficulties for individuals trying to comply with law as well as legal professionals who apply + interpret the law

Answer 33

- created by unelected officials - lead to democratic deficit, where laws and regulations are made without direct input or oversight from the public or their elected officials - lack of best interest of the public - democratic legitimacy of delegated legislation often Q - need for scrutiny and transparency

Answer 34

- undemocratic - hard to keep track - lack of publicity - controls may be ineffective

Answer 35

- delegated legislation can be amended or reappealed more quickly than primary legislation - crucial in changing circumstances such as public health issues - enables legal system to be relevant / addressing issues as they rise w/ out putting new act - ensure laws can keep pace with societal changes and emerging needs

Answer 36

- created by bodies w/ expertise or who specialise in those fields - regulations are practical, addressing details general legislators may not fully understand - environment regulations by those who work in environmental science - ensuring timely and effective action

Answer 37

- Parliament = heavy workload + limited time to address all legal needs - Parliament can focus on significant issues by giving other bodies power to DL - ensures laws are created + updated efficiently - DL helps to streamline legislative process, more efficient and effective

Answer 38

- saves parliament time and money - expert knowledge - rapid action in emergencies - easily removed and amended

Answer 39

- When the judge follows the literal rule until the desicion would be absurd, in which case they make the common sense desicion - Two ways it could be used - Narrow approach = judge chooses meaning of specific word - Wide approach = judge can change law to make a common sense outcome - R v Allen = D married and married again while married (bigamy) \ guilty as not legal to be married to another while married - Re Sigworth = killed parents to inherit / guilty = wide approach used

Answer 40

- When the judge applies the law in its plain and ordinary meaning. Even if it leads to an absurd desicion which doesnt make sense - “If the words of an act a clear, then you must follow them” - DPP v Cheeseman = masturbating in public toilet / not guilty as police are not trespassers - R v Harris = bit nose off / not guilty as it wasn’t a wound

Answer 41

Literal rule = taking plain meaning of word = literally Golden rule = used if literal makes no sense (makes an absurdity) Mischief rule = focuses on ‘mischief’ (problem) trying to prevent Purposive approach = looks at purpose of law and why it was created

Answer 42

Updated version of mischief rule - does not require a problem to exist in law - looks at why law was made and question asked before looking at specific wording of act - R v HFEA = embroyos and cloning - Jones v Towerboot Company = racism in workplace

Answer 43

When the judge has more flexibility and is able to look at the problem with society that the law tried to deal with and makes the desicion that deals with the problem - Smith V Hughes = prostitutes soliciting in private home / guilty = changed law to be in private place - RCN v DHSS = abortions / not guilty = understand law

Answer 44

What judges do when trying to understand the wording of an Act in Parliament needed for a case

Answer 45

Writes reports for recommendations to changes in law

Answer 46

Record of what parliament says (everything)

Answer 47

Given words standard meaning

Answer 48

Add more context

Answer 49

Consultive account = define intent of law

Answer 50

Literal rule = defenitions

Answer 51

Extra notes guidance

Answer 52

PACE may look at Criminal Justice Act

Answer 53

other similar acts and cases Explanatory notes Dictionary Green and Waite papers International treaties/ conventions Interpretation act 1978 Hansard

Answer 54

Depends on context i.e commas

Answer 55

At end PACE = DNA, fingerprint defenitions

Answer 56

How to interpret particular words

Answer 57

Section headings give a guide what to look for

Answer 58

Gives more detailed info

Answer 59

Tells you / brief

Answer 60

Older legislation has it Similar to introduction

Answer 61

Preamble Short title Long title Marginal notes Headings Interpretation sections Schedules Punctuation

Answer 62

Outside the parliament

Answer 63

Inside the parliament

Answer 64

s.3 Human Rights Act 1998 = states legislation must be read and given effect which is compatible with teh rights in the European Convention on Human Rights Mendoza v Ghaidan 2002 = involved in the interpretation of the rent act 1977 which had previously not given right to the same sex couples, but was amended in light of the protections against discrimination under the ECHR

Answer 65

- Judges are more likely to use the purposive approach even when we have left the EU - UK courts have to interpret it in the light of the wording and purpose of EU law - Marleasing Case 1992 = the European court of Justice rules that the treaty of Rome includes the interpreting national law in the light and aim of EU law

Answer 66

= In R v. Judge of the City of London Court (1892), the court interpreted a statute concerning penalties for late payments. The application of the golden rule allowed the court to consider the purpose of the law while also ensuring that the penalties were not excessively harsh, reflecting the intent of Parliament. It also promotes justice, recieving taht the punishment is proportionate to the act

Answer 67

In Jones v. Tower Boot Co Ltd (2007), the court examined the interpretation of an employer's liability in the context of racial harassment. The court employed the golden rule to consider the broader social context, leading to a more equitable interpretation of the law regarding employer responsibilities. The golden rule enhances judicial discretion, allowing judges to consider context.

Answer 68

In Re: Sigsworth (1935), a son who murdered his mother sought to inherit her estate under the intestacy laws. The court used the golden rule to prevent the son from benefitting from his crime, interpreting the law to exclude him from inheritance despite the literal wording. The golden rule helps avoid absurd or unjust outcomes that may arise from a strict literal interpretation.

Answer 69

In Adler v. George (1964), the defendant was charged under a law prohibiting obstructing an officer "in the vicinity" of a prohibited place. This demonstrates how the golden rule allows judges to adjust interpretations to prevent unreasonable results, enhancing the law's practicality

Answer 70

By altering the meaning of statutory provisions to avoid absurdity, the golden rule may stray from the original intent of the lawmakers. This can lead to outcomes that the legislature did not foresee or intend, potentially distorting the application of the law.

Answer 71

The use of the golden rule can be seen as a form of judicial activism, where judges impose their own interpretations and views on legislation. This may raise concerns about the separation of powers and the role of the judiciary versus that of the legislature.

Answer 72

The golden rule only applies in cases where the literal interpretation of a statute leads to absurdity or inconsistency. This limited scope means that it cannot be applied universally, potentially leaving some cases without adequate resolution.

Answer 73

The application of the golden rule can be subjective, as judges may interpret what constitutes an absurd result differently. This subjectivity can lead to inconsistent rulings, undermining the predictability of legal outcomes

Answer 74

ADV Flexibility in interpretation Avoids absurd outcomes Enhances Judicial discretion Balances Legislative Intent DIS subjectivity Limited scope Judicial activism Potential for wrongful use on legislative intent

Answer 75

Complexity = This complexity can hinder access to justice, as individuals may struggle to comprehend their rights and obligations under the law. Consequently, the literal rule may contribute to a legal system that is perceived as inaccessible and elitist. Statutes often contain technical language that may be difficult for the general public to understand, as illustrated in the case of Ghaidan v. Godin-Mendoza (2004), where the court's literal interpretation led to confusion among laypeople. It reduces confidence in the legal system.

Answer 76

Disregards Legislative intent = This can lead to interpretations that do not align with the original goals of the lawmakers, undermining the legislative process. In Berriman v. McKay (1969), the court focused solely on the wording of the statute, ignoring the underlying purpose of providing safety for railway workers. It shows that the law can be interpreted incorrectly, leading to inconsistency in convictions

Answer 77

Inflexibility in interpretation = This inflexibility prevents the law from adapting to changing societal values and norms, which can render it outdated. As a result, the literal rule can hinder the law’s ability to respond to contemporary issues. In Fisher v. Bell (1961), the court interpreted the term "offer" strictly, resulting in a ruling that did not reflect the common understanding of the law regarding illegal items. This can make the law unfair and outdated to today’s society

Answer 78

Potential for absurd outcomes = When judges apply the law strictly as written, they may produce results that contradict the law's intended purpose, undermining justice. In the case of R v. Judge of the City of London Court (1892), the court's strict adherence to the literal wording of a statute resulted in an not logical conclusion. Consequently, this rigidity can harm public confidence in the legal system.

Answer 79

ADV Clarity Consistency Judicial restraint Efficiency DIS Potential for absurd outcomes Inflexibility in interpretation Disregards legislative intent Complexity for non legal professionals

Answer 80

Judicial restraint = The literal rule encourages judicial restraint. By limiting judges to the text of the statute, the literal rule upholds the separation of powers and prevents judicial activism. In London & North Eastern Railway Co v. Berriman (1946), the court ruled that a railway worker's death did not fall within the statutory provision for compensation, as the wording specified "repairing" but not "maintaining," showing strict adherence to the text. This restraint ensures that legislative intent is respected and that the judiciary does not overstep its role.

Answer 81

Consistency = The literal rule fosters consistency in legal decisions. Judges applying the literal rule are less likely to introduce personal biases or subjective interpretations, leading to uniform outcomes in similar cases. In Fisher v. Bell (1961), the court interpreted the phrase "offer for sale" literally, ruling that displaying a flick knife in a shop window did not constitute an offer for sale under the relevant legislation. Such consistency helps ensure that similar cases yield similar results, reinforcing trust in the legal system.

Answer 82

Clarity = By adhering to the plain, ordinary meaning of words in a statute, the literal rule reduces ambiguity and confusion promoting clarity in legal interpretation. In R v. Judge of the City of London Court (1892), the House of Lords held that the term "oath" should be interpreted literally, ensuring that the meaning was clear and straightforward. This clarity ensures that individuals understand their legal rights and obligations, fostering compliance with the law.

Answer 83

- Efficiency = The literal rule contributes to judicial efficiency. By focusing solely on the text, the literal rule streamlines the interpretative process, allowing judges to reach conclusions more quickly. In Whiteley v. Chappell (1868), the court ruled that a man who impersonated a deceased voter could not be convicted of voting and a deceased person did not fit that definition. This efficiency helps reduce the backlog of cases in the legal system, ensuring timely resolutions for all parties involved.

Answer 84

When judges interpret statutes based on perceived social purposes, they may be seen as creating law rather than interpreting it. This can blur the lines between legislative and judicial functions, potentially leading to a more subjective and less stable legal framework. As a result, this can foster distrust in the judiciary and its role in the legal system.

Answer 85

Judges applying the mischief rule may impose their own understanding of the law's purpose, potentially disregarding the specific wording chosen by parliament. These outcomes can disrupt the balance of power between the legislative and judicial branches. It can also leads to injustice within the legal system

Answer 86

By focusing on the purpose of the legislation instead of the literal wording, the mischief rule can produce varied interpretations. This variability can create confusion about what the law actually means, making it difficult for individuals and practitioners to predict legal outcomes. As a result of this uncertainty, this may undermine public confidence in the legal system. e.g Smith v Hughes

Answer 87

This approach allows judges to interpret laws in a way that aligns with the original objectives, ensuring that the legislation effectively addresses the mischief it was intended to remedy. For example, in Smith v. Hughes (1960), the court applied the mischief rule to interpret the Street Offences Act 1959. The statute aimed to prevent solicitation for prostitution in public places. By focusing on the problem the law was designed to address, courts can better understand the purpose of the statute. Consequently, this enhances the rule of law by promoting consistent and purposeful judicial decisions.

Answer 88

This clear focus helps prevent disputes over interpretation, leading to more predictable legal outcomes. For example, in Pepper v. Hart (1993), the House of Lords allowed reference to parliamentary debates to clarify the intention of a tax statute. By concentrating on the problem the law aims to solve, the rule can clarify vague or unclear provisions within statutes. As a result, this can decrease the burden on courts and promote smoother legal processes.

Answer 89

By prioritizing the spirit of the law over its letter, the mischief rule can mitigate harsh results that may arise from strict interpretations. For example, in the Royal College of Nursing v. Department of Health and Social Security (1981) case, the court applied the mischief rule to determine whether nurses could carry out abortions under the Abortion Act 1967. It allows courts to consider the consequences of their rulings, leading to outcomes that reflect fairness rather than rigid adherence to wording. This approach fosters public confidence in the legal system, as it appears more just and responsive to societal needs.

Answer 90

This flexibility allows courts to adapt the law to evolving social contexts and circumstances, ensuring that justice is served even when literal meanings may lead to absurd or unjust outcomes. For example, in Eastbourne Borough Council v. Sterling Insurance (2007), the court used the mischief rule to interpret the meaning of "premises" under the Local Government (Miscellaneous Provisions) Act 1982. Unlike strict literal interpretations, the mischief rule permits a broader understanding of statutory language. Thus, this adaptability supports a more equitable legal system.

Answer 91

ADV Flexibility in legal interpretation Focuses on fairness Reduces legal ambiguities Clarify intent behind legislation DIS Leads to uncertainty Abuse of power Encourage judicial activism Inconsistent outcomes

Answer 92

Focusing on purpose can result in neglecting the specific wording of laws. This disconnect between text and application can undermine the rule of law, as the law should be applied based on its explicit terms. Thus, the purposive approach risks distorting the law's intended application and meaning.

Answer 93

Determining the purpose of a law often requires extensive analysis of legislative history and context. This complexity can make the law less accessible to the average person, complicating legal proceedings and reducing public understanding of legal standards. Consequently, while intended to clarify legislation, this approach may inadvertently create barriers to legal comprehension.

Answer 94

By allowing judges to infer legislative intent, this approach can encourage judges to shape laws according to personal beliefs rather than the original legislative intent. This may lead to outcomes that reflect individual judges' opinions rather than the collective will of the legislature, undermining democratic principles. As a result, the purposive approach can erode the separation of powers and the legitimacy of the legal system.

Answer 95

it can lead to ambiguity and unpredictability in legal outcomes. Different interpreters may have varying opinions on what constitutes the "purpose" of a law. This subjectivity can result in inconsistent rulings, undermining the principle of legality where laws should be clear and certain. When interpretations vary widely, it can create confusion among those subject to the law. Ultimately, while the purposive approach aims to enhance legislative effectiveness, it risks creating uncertainty and can lead to judicial overreach, undermining the separation of powers and the democratic process

Answer 96

By prioritizing legislative intent, the purposive approach allows for more equal outcomes and provides flexibility to adapt to changing societal norms. This adaptability ensures that laws remain relevant and effective in addressing contemporary issues. This approach reduces ambiguity, as seen in cases where judges interpret statutes based on the lawmakers' goals rather than a strict reading of the text.

Answer 97

This means that in cases where strict interpretation could lead to unfair results, the purposive approach enables outcomes that align more closely with the law’s intended purpose. It also encourages clearer legislative drafting, as lawmakers are motivated to articulate their objectives more explicitly. Overall, the purposive approach fosters a legal environment that prioritizes fairness and clarity, ultimately benefiting society as a whole.

Answer 98

By focusing on legislative intent, judges can ensure that the application of the law aligns with its intended purpose, promoting fairness and equity. This adaptability also allows the law to evolve with societal changes, making it more relevant and effective over time. For instance, this approach helps clarify ambiguous legal texts, as seen in cases where strict literal interpretations could lead to unjust outcomes.

Answer 99

This interpretation promotes justice, as it enables outcomes that align with the lawmakers' objectives, rather than strictly adhering to potentially misleading literal meanings. The purposive approach enhances the legal system by fostering fairness, reducing ambiguity, and ensuring that laws serve the public interest effectively.

Answer 100

Different judges may interpret the underlying purpose of a statute in various ways, resulting in disparate rulings on similar cases. The inconsistency can create a lack of uniformity in legal applications, which is essential to fairness and equality before the law. Thus, the mischief rule can undermine the principle of equal treatment in the legal system.

Answer 101

ADV Deeper understanding Prioritising intent behind law Can allow broader perspectives Laws are consistent with intended objectives DIS Interprets legal texts based on intent of the law Judicial activism Potential Complexity Disregard the literal meaning of statues

Answer 102

It was making too many rules and costing too much

Answer 103

Britain leaving the EU

Answer 104

In 1973 as they wanted to trade easily

Answer 105

Neighbouring countries made a get together, like a club, in order to trade goods and remove the idea of a visa

Answer 106

1973 = Britain joins EU 1993 = UKIP party formed campaign for Britain to leave EU 2016 = Vote takes place on whether Britain should leave EU (leave wins by 52% to 48%) 2017 = starts leaving EU 2020 = officially left EU - ‘Brexit day’

Answer 107

- legal basis - supremacy - legal style - case entry - judges

Answer 108

- function of CJEU set out in Article 9 TEU = states the court must ensure that in the interpretation and application the Treaty of the Law is observed - they have two functions - checking member states are following treaties rules (Re Tacographs 1979) - hearing points of law referred from national courts and giving preliminary rules on each issue (article 267 TFEU)

Answer 109

- one judge per member state (27) plus 11 Advocates General to support (neutral + explain the law) - judges sit in panel of 3,5 or 11 (full court) - judges must be existing senior judge or a senior legal academic in their member state - appointed for 6 years and can be re-appointed for further 6 years (art.253)

Answer 110

Five main rules - debating/voting new laws alongside council of EU - discussing proposals for new laws in committees - deciding on international agreements - decide on admitting new states - reviewing work of commission

Answer 111

- includes 720’s MEP (members of EU parliament) who are elected by EU citizens every 5 years - each country has a number based on their population i.e Germany = 96 / Malta = 6 - members sit in political groups - prior to Brexit, there was 751 MEP’s and UK has 73

Answer 112

Three main roles - proposing new ideas for new EU laws and drafting them - ensuring all state members abide by EU treaties - supervising the budget in the Union

Answer 113

- includes 27 members = one member per state - will be one personal individual who acts independently of their national government - each will be representing area of EU policy - commissioners sit for 5 years terms and can only removed through vote in EU parliament

Answer 114

- includes debating and voting on new laws - qualified majority voting is used which requires agreement from: - 53% of all member states - representing 65% of EU population

Answer 115

- includes 27 government ministers - one member from each state - president changes every six months - relevant government minister for the topic being discussed will be sent by each country e.g. if discussing agriculture, minister of agriculture in each member state will go

Answer 116

Council of European Union European Commission European Parliament Court of Justice of the European Union (CJEU)

Answer 117

Treaty of Rome

Answer 118

- these are secondary laws made by the European commission, council of the EU and European Parliament - Under article 288 TFEU these are not automatically binding and instead they set out a target or goal for all member states to change their own national laws to fall in line with the targetthese - This can be done for an act of parliament in the UK, but it’s usually done through a statutory instrument or an order in council - Consumer rights directive 2011 = brought into UK law in full in the consumer rights act 2015

Answer 119

- secondary laws made by European Commission, council of the EU and the European Parliament - under article 288 TFEU these are automatically binding (enforceable) in all member states as soon as they are passed by the EU - makes them directly applicable to all citizens using vertical and horizontal direct effect - Re Tacographs v UK 1979 = when UK failed to enforce an EU regulation regarding compulsory recording equipment in lorries, the European Commission took to the UK to the ECJ and won

Answer 120

- these are membership agreements for the EU containing all of the main principles, including four freedoms = free movement of goods, capital, services and labour - they are directly applicable in all member states - this means they are instantly law and can be enforced by all citizens - this is because they have a direct effect on citizens of all member states - three types of treaty found in the EU: - founding = set up EU (Treaty of Rome 1957) - accession = new members join (Treaty of Accession 1972 - UK, Denmark, Ireland joined) - amending = treaty on European Union 1992 (Maastricht treaty)

Answer 121

Desicions (treaties), directives and regulations

Answer 122

- legislation passed by institutions of Union under Article 288 TFEU

Answer 123

- mainly the treaties (most important Treaty of Rome)

Answer 124

UK courts rule they had to suspend an act of parliament because it conflicted EU law

Answer 125

- If you can make sure that challenges EU rules, ECJ could fine UK and force to change its legislation - Laws can be passed with government voting against it

Answer 126

- can make any law it wishes - parliament cant bind future parliaments - courts must apply laws made by parliament - laws made by parliament override all other forms of law

Answer 127

Desicion applied that EU law was above national law, to the UK for first time in a case involving Spanish fishermen in UK water, UK law said boats could have citizens of an EU country and British crew

Answer 128

Desicion confirmed - EU law above national law - with regards to Italian law

Answer 129

First decided EU law was above national law in a case about customs duty in Holland

Answer 130

EU law takes precedent over national law and therefore UK law

Answer 131

National courts have a duty to disapply any national law which does not provide equal treatment without needing to apply to the ECJ first In the case a German law discounted any employment under the age of 25 when settling the notice period for dismissal from work. The ECJ this was against rules for equal treatment based on age and that German law was wrong.

Answer 132

Remove supremacy of EU Parliament passed EU act 2018 - Ended ECJ jurisdiction (power)

Answer 133

Judges create rules to be followed for similar cases in the future

Answer 134

Stand by decision

Answer 135

- forms basis rules for judicial precedent - when there is no existing Act of Parliament to follow, judges must stand by the desicions of other judges in similar cases

Answer 136

Schweppes 1965 and AT&E 1965

Answer 137

Reason for desicion

Answer 138

Called binding precedent as you have to follow it

Answer 139

Other things said

Answer 140

- don’t directly relate to reason for desicion - don’t set precedent but can be helpful for future judges - called persuasive precedent - persuade future judges

Answer 141

Magistrates Crown Court of appeal Supreme Court

Answer 142

County High court Courts of appeal Supreme Court

Answer 143

Original precedent Binding precedent Persuasive precedent

Answer 144

State decisis Ratio decendi Orbiter dicta

Answer 145

There is no previous act or case Becomes binding precedent (Donohuge v Stevenson) Reasoning by common sense by looking at closest match cases

Answer 146

Aldred's Case 1610 = can sue in nuisance if cannot enjoy Homelife due to unbearable smell, but cannot sue if something has restricted view as a nice view not a necessity Hunter v Canary Wharf 1998 = 690 residents complained Canary Wharf building in London is disrupting the TV signal - TV not a necessity so not allowed

Answer 147

must be followed - bound by precedent R v Howe = future courts have to follow this law - duress not a defence to murder facts of case must be similar if new act of parliament made, courts have to follow law not precedent

Answer 148

does not have to be followed - can choose can be helpful when deciding examples are: - decisions of lower courts - obiter dicta - decisions made by judicial committee of privy council (none of these are binding)

Answer 149

Court of Appeal and Supreme Court but there are some exceptions when don't want to follow own decisions

Answer 150

The Supreme Court could overrule itself only if its right to do so created in 2009 Austin v Southwark 2010 confirmed this Addie v Dumbreck overruled by BRB v Herrington

Answer 151

Donohugue v Stevenson = ‘special relationship’

Answer 152

1. There are two court of appeal decisions that are conflicting 2. If CA's decision conflicts with a Supreme Courts decision 3. If a decision was made 'per incurlam' (in error) ONLY IN CRIMINAL DIVISION 4. where law was misapplied or misunderstood

Answer 153

Following Overruling Reversing Distinguishing

Answer 154

majority of the time judges will follow existing precedent Shaw v DPP 1962 = published booklet to promote prostitution services Knuller v DPP 1973 = magazine advertising homosexual relationships - used case law from Shaw v DPP 1962

Answer 155

Decides previous precedent was wrong by judge and overrules Only in higher courts or higher courts overrule themselves R v Shivpuri = smuggling fake drugs but d thought they were real - decision overruled earlier case of R v Dalloway where mistake can still lead to conviction

Answer 156

Similar to overruling but this happens in the same case Decision reversed on appeal Sweet v Parsley = D's tenants using farmhouse to smoke cannabis - HoL overturned Court of Appeal's decision and found def guilty even with no mens rea

Answer 157

judge decides facts of case are different from precedent Balfour and Balfour 1919 = Court of Appeal decided that decisions made between marriage are not binding Merritt v Merritt 1971 = didn't follow outcome of case as argued they weren't similar

Answer 158

Certainty in law Flexible Consistency Time saving

Answer 159

EXPLAIN - judges required to follow previous decisions of previous judges - lawyers can advise clients on likely outcome of cases - makes law too rigid and outcome of case can change due to overruling etc EXAMPLE - R v Howe = binding precedent regarding duress DEVELOP - makes the law fair and makes everyone feel just

Answer 160

EXPLAIN - some situations allow for flexibility even though rules are set - Supreme Court and CA can overrule themselves or methods to avoid following precedent - not available to every case EXAMPLE - Practice statement 1966 exceptions as to when courts could overrule precedents DEVELOP - makes the law more fair and allows justice

Answer 161

EXPLAIN - existence of binding precedents ensure all cases with similar facts are decided in a way that is consistent - all people treated equally - if judges avoid following precedent this may not happen EXAMPLE - Knuller v DPP followed decision in Shaw v DPP to ensure offenders treated same way DEVELOP - fairness in legal system, increases trust

Answer 162

EXPLAIN - precedents make clear statements how decisions are set in a case similar cases In future can be decided quickly in lower courts without having to waste resources EXAMPLE - Sweet v Parsley = tells us what outcome is in future similar cases DEVELOP - creates consistent outcomes within the law, fair

Answer 163

Law too rigid Complex Slowness of growth in law Illogical conclusions to avoid precedents

Answer 164

EXPLAIN - lack of flexibility to make common sense decisions - precedents set years ago = doesn't align with modern society - giving judges too much flexibility may be undemocratic EXAMPLE - decisions made in Knuller v DPP and Shaw v DPP would be seen immoral in today's society DEVELOP - may result to injustice in the law

Answer 165

EXPLAIN - judgements tend to be long and hard to separate ratio decidendi (binding) from obiter dicta - time pressure to read and understand similar cases - lots of guidance for judges EXAMPLE - Since Donoghue v Stevenson case, many decisions have been made - lots of time to decide impact of case on law DEVELOP - time consuming and injustice from judges not getting a full understanding of case

Answer 166

EXPLAIN - required to follow binding precedents - difficult for law to adapt and update - can only be done when overruled existing precedent - should be up to Parliament when change is needed EXAMPLE - R v R = absurd It was lawful in 1991 for a man to force his wife into sex DEVELOP - creates injustice between cases - R v R = allowing rape?!

Answer 167

EXPLAIN - judges are faced with binding precedent they don't want to follow they may use weak factors between cases to avoid following precedent - chance it would lead to better outcome if judge felt precedent should have not applied EXAMPLE - differences between Balfour and Merritt were not enough to justify the different decisions made DEVELOP creates injustice in the law

Section A - Paper 2 Flashcards

(194 cards)