public law real 5 lecture

What is the EU, and is it the same as the ECHR?

The EU is an organisation of European countries sharing certain legal powers. The ECHR is a separate human-rights agreement. Brexit did not mean leaving the ECHR.

What is assimilated law, and why does it matter?

EU-derived law kept as UK law after Brexit. It was previously called retained EU law. Some of it still applies in UK courts.

Which three Acts form the main post-Brexit framework?

European Union (Withdrawal) Act 2018; European Union (Withdrawal Agreement) Act 2020; Retained EU Law (Revocation and Reform) Act 2023.

What does European Union (Withdrawal) Act 2018, s.2 preserve?

EU-derived domestic legislation covered by the section continues to operate unless repealed, subject to the amended legal framework.

What does the amended 2018 Act, s.5 change about EU-law primacy?

The general principle that EU law takes priority over domestic law no longer has domestic effect.

What does the 2018 Act, s.6 change about EU court decisions?

UK courts are no longer bound by new EU court decisions. The UK Supreme Court and High Court of Justiciary can also depart from assimilated case law.

What is the European Council?

Member countries’ heads of state or government, plus the European Council and Commission Presidents. It sets the EU’s overall political direction.

What is the Council of the EU?

National ministers responsible for the subject being discussed. It helps make EU legislation. It is different from the European Council of national leaders.

What does the European Commission do?

Carries out EU policy, proposes legislation and helps enforce treaty obligations. Its commissioners are nominated by national governments to serve the EU’s interests.

What is the European Parliament?

An EU law-making body. Its members, called MEPs, are directly elected by citizens of member countries every five years.

What does the CJEU do?

The Court of Justice of the European Union gives authoritative interpretations of EU law. The Court of Justice has one judge from each member country.

What are the main sources of EU law?

Primary law in treaties, general legal principles, secondary law and CJEU decisions. The main treaties are the TEU and TFEU.

What is the difference between exclusive and shared EU competence?

Exclusive: only the EU can legislate, such as on the customs union. Shared: the EU and member countries have powers; national law-making depends on whether the EU has acted.

What is conferral?

The EU can act only within the powers given to it by the treaties.

What is proportionality?

EU action should go no further than necessary to achieve the treaties’ aims.

What is subsidiarity?

Where national governments can act, the EU should act only if action at EU level would achieve a better outcome.

How is EU legislation made under the ordinary procedure?

The Commission proposes it. The Council of the EU and European Parliament must agree on the final text. Conciliation can help resolve disagreement.

How do EU regulations and directives differ?

Regulations apply directly without a separate national implementing law. Directives require member countries to implement their requirements, with choice over how to do so.

What is an EU decision?

A binding measure addressed to a particular person or body. Regulations, directives and decisions are the three main forms of EU secondary law.

What is a preliminary reference to the CJEU?

A national court asks the CJEU how to interpret EU law, then uses the answer to decide the case.

What is EU-law primacy, and which case established it?

EU law takes priority over conflicting national law. Costa v ENEL (1964), Case 6/64, established this principle. The UK’s general post-Brexit position is different.

What did Simmenthal (1978), Case 106/77, establish?

EU-law primacy also applies against conflicting national laws passed later.

What did Internationale Handelsgesellschaft (1970), Case 11/70, establish?

EU-law primacy extends even to conflicting national constitutional law.

Why were the Factortame cases important?

They recognised EU-law primacy in the UK through the European Communities Act 1972. Parliamentary sovereignty remained because Parliament could repeal that Act.

What did Van Gend en Loos (1963), Case 26/62, establish?

Direct effect: EU law can give individuals rights that national courts must recognise and enforce.

What are Scotland’s three main qualified legal roles?

Solicitors, advocates and solicitor-advocates.

What does a solicitor do, and where can ordinary solicitors appear?

Gives legal advice, prepares documents and cases, and represents clients in JP and Sheriff Courts. Higher-court representation requires additional rights of audience.

What does an advocate do?

Gives specialist legal advice and represents clients, including in the Court of Session, High Court and UK Supreme Court. Most are self-employed. The English equivalent is a barrister.

What is a solicitor-advocate?

A solicitor with extra rights to represent clients in higher courts, including the Court of Session, High Court and UK Supreme Court.

Who regulates solicitors, solicitor-advocates and advocates?

The Law Society of Scotland regulates solicitors and solicitor-advocates. The Faculty of Advocates regulates advocates.

What is the cab-rank rule?

Advocates generally must accept work offered to them unless there is a valid reason to refuse, such as a conflict of interest.

What does a right of audience mean?

Permission to represent a client and speak for them in a particular court.

What is the main route to becoming a Scottish solicitor?

A Scots-law LLB or accepted alternative, the Diploma in Professional Legal Practice, then a two-year supervised traineeship. After completion, apply for a full practising certificate.

What are PEAT 1 and PEAT 2?

PEAT 1: the Diploma in Professional Legal Practice, lasting about nine months. PEAT 2: the two-year supervised traineeship.

What is devilling?

About nine months of practical training to become an advocate after the earlier qualification stages. The trainee is a devil; the supervisor is a devilmaster. Training is unpaid, though scholarships may be available.

Which extra subjects are required for the advocate route?

Private international law, jurisprudence, Roman law and EU law, alongside the other qualification requirements.

How does a solicitor become a solicitor-advocate?

Qualify as a solicitor, gain five years of court experience and complete additional qualifications for civil or criminal rights of audience.

What does a procurator fiscal do?

A solicitor who prosecutes criminal cases in JP and Sheriff Courts and investigates sudden or suspicious deaths.

What does an advocate depute do?

Prosecutes criminal cases in the High Court of Justiciary for the Crown Office and Procurator Fiscal Service.

How do private practice and in-house legal work differ?

Private practice serves outside clients. An in-house lawyer mainly advises and represents the organisation employing them.

What is criminal legal aid?

Government funding pays private lawyers to represent an accused person. They defend the accused; they are not the prosecutor.

How are full-time permanent Scottish judges appointed?

The monarch appoints them on the First Minister’s recommendation, informed by the Judicial Appointments Board for Scotland and consultation with the Lord President.

What legal careers are available besides solicitor or advocate?

Paralegal work, the Civil Service, court support, legal research and other roles. A paralegal supports a supervising solicitor with legal advice and documents.

What does being fit and proper mean?

Meeting the profession’s standards of suitability and trustworthiness. Dishonesty, including academic misconduct, can count against admission.

What basic standards must solicitors follow?

Be honest, keep client matters confidential, work independently, know the law and communicate clearly. Fees must be fair and reasonable.

Must a solicitor do everything a client wants?

No. The client’s interests must be balanced with duties to courts and other solicitors. Acting for a client requires their permission or permission from an authorised court.

What must a solicitor do about conflicts of interest?

Do not act for clients whose interests conflict. Explain any personal interest in a matter to the client.

What are the three general principles of advocates’ conduct?

Independence from outside influence, trust and personal integrity, and confidentiality.

Who handles complaints about solicitors and advocates?

Complaints begin through the SLCC. It handles service complaints. Conduct complaints go to the Law Society for solicitors or the Faculty of Advocates for advocates.

What can happen if a lawyer breaks professional standards?

Less serious conduct can lead to a reprimand, fines or other penalties. Serious professional misconduct can lead to suspension or removal from practice.