Legal Systems, EU Law and Public Law: Practice Flashcards

THE COURTS AND THE LEGAL SYSTEM OF ENGLAND AND WALES

Definition of a Legal System: * A legal system is the body of institutions that make, execute, and resolve disputes regarding the laws of a state. * Application and systems vary geographically; the UK does not have a single unified legal system.
UK Jurisdictions: * The UK is divided into three main jurisdictions: England and Wales, Scotland, and Northern Ireland. * Jurisdiction Meanings: 1. A political entity or geographical location where a specific law applies. 2. A body or court having the authority or power to settle disputes in a particular area of law. * Each jurisdiction maintains its own laws and courts, though they are not entirely separate. For instance, Acts of Parliament may apply across multiple jurisdictions, and the Supreme Court of the United Kingdom serves as the final civil court of appeal for all three.
The Common Law System: * The English and Welsh legal system is a common law system. Key features include: * The importance of both legislation (made in Parliament) and case law (rulings by judges). * The doctrine of precedent (looking at previous judicial rulings). * Refinement of the law through judicial action. * Northern Ireland and many former British colonies or Commonwealth countries also use common law.
Contrast with Civil Law Systems: * Common in many European countries (based on Roman law). * Laws are "codified" in legislation, codes, or documents. * Judges decide cases primarily by reference to these codes rather than prior rulings (no doctrine of precedent). * Scotland uses a hybrid system between common and civil law.
Sources of Law: * Domestic Sources: * Primary Legislation: Statutes or Acts of Parliament created directly by Parliament. * Secondary Legislation: More detailed instruments, orders, and regulations (e.g., Statutory Instruments) authorised but not directly made by Parliament. * Case Law (Common Law): Judge-made law developed through judicial precedent, covering substantive and procedural rules. Statutes take precedence over common law. * Ecclesiastical and Military Law: Discrete, specialised sources. * Assimilated Law: Formerly "retained EU law" (EU law as it applied on $31\,\text{December}\,2020$ ). Following the Retained EU Law (Revocation and Reform) Act 2023, the remaining parts are known as assimilated law, subject to domestic interpretation rules. * International Sources: * EU Law: Significant prior to Brexit; now has effect in limited circumstances. * European Convention on Human Rights (ECHR): Enforceable via domestic courts under the Human Rights Act 1998. * United Nations Laws: Enforced via international courts (e.g., International Court of Justice), though power is often limited to sanctions and condemnation.
Common Law and Equity: * Common law originally aimed to be "common" and available to all, administered by the King’s Courts. * Law of Equity: Developed to alleviate the inflexibility/harshness of common law, focusing on fairness. * Fusion: Equitable and common law principles were merged in Victorian times, allowing both to be pleaded in the same courts. * Legacy of Equity: * Equitable Remedies: Injunctions (ordering a party to stop an act) and specific performance (ordering a party to perform an act). * The Trust: A device where a "legal owner" holds property for the benefit of an "equitable owner."
Classifications of Law: * Public vs. Private Law: Public law involves duties between the state and individuals; private law involves duties between individuals (including corporations). * Civil vs. Criminal Law: * Criminal Law: A type of public law where the state sanctions individuals for illegal conduct. * Civil Law: Covers non-criminal transactions (contracts, land, divorce, wills) and disputes (consumer/supplier).
Criminal Case Terminology: * Offence Classifications: * Indictable Offences: Most serious (e.g., murder, rape); must be tried in the Crown Court. * Either-way Offences: Intermediate (e.g., theft, burglary); tried in Magistrates’ or Crown Court based on complexity and defendant choice. * Summary Offences: Least serious (e.g., minor driving, common assault); tried in Magistrates’ courts. * Parties: Prosecutions are brought by the Crown Prosecution Service (CPS) in the name of the Crown (e.g., $R\,v\,\text{Defendant}$ , where $R$ stands for Rex or Regina). * Verdict: Defendant found guilty or not guilty; sentencing follows guilt (fines, community service, prison).
Civil Case Terminology: * Actions: Described as actions, claims, or suits. * Parties: Claimant (or applicant) vs. Defendant. * Outcome: Judge "finds for" a party; the defendant is found "liable" or "not liable." * Remedy: Usually damages (compensation), but can include reinstatement or injunctions.
Burden and Standard of Proof: * Standard of Proof: * Criminal: "Beyond reasonable doubt." * Civil: "On the balance of probabilities" (more likely than not). * Burden of Proof: * Criminal: Responsibility lies with the prosecution. * Civil: Responsibility lies with the party bringing the case.

THE JUDICIARY

Three Branches of State: The Executive (Government), the Legislature (Parliament), and the Judiciary (Courts).
Conflict Resolution: Resolve conflicts between state institutions, state and individuals/companies, and between individuals/companies.
Judicial Composition: Consists of legally qualified independent judges, except for Justices of the Peace (lay judges) in Magistrates’ courts.
Judicial Independence: * Security of Tenure: Senior judges hold office "during good behaviour" and are protected from arbitrary dismissal. * Retirement age: Currently set at $75\,\text{years}$ . * Removal Procedures: * Supreme Court Justices: Only on the address of both Houses of Parliament (CRA s $33$ ). * Court of Appeal, High Court, Crown Court: By the monarch on petition of both Houses and advice of the Lord Chancellor (Senior Courts Act 1981 s $11$ ). * Accountability: Bound by good conduct guidelines and independent disciplinary procedures; protected from pressure by the executive, media, or pressure groups.
Constitutional Reform Act 2005 (CRA): * Key Changes: * Statutory duty on ministers to uphold judicial independence. * Created the UK Supreme Court (replacing Law Lords). * Head of Judiciary shifted from Lord Chancellor (political) to Lord or Lady Chief Justice (non-political). * Established the independent Judicial Appointments Commission (JAC). * Judicial Appointments Commission (JAC): * $15\,\text{members}$ : Lay chair, $6$ judicial members, $2$ professional members, $5$ lay members, $1$ non-legally qualified judicial member. * Recommendation Processes: * Circuit Judges: JAC administers competition, recommends to Lord Chancellor/Lord Chief Justice. * High Court Judges: JAC recommends to Lord Chancellor. * Supreme Court Justices: Appointed under CRA ss $26\text{--}27$ . A $5\text{-member}$ selection commission (including the President of the Supreme Court and JAC members) selects a candidate, recommended by the Prime Minister. * Diversity Duty: Statutory duty (CRA s $64$ ) to encourage a diverse range of persons for selection, aiming to reflect society.

COURT HIERARCHY AND JURISDICTION

Superior vs. Inferior Courts: * Superior Courts: Unlimited jurisdiction for cases from anywhere; handle complex/high-value matters. Highlights: Supreme Court, Court of Appeal, High Court, Crown Court. * Inferior Courts: Deal with lower value/complexity in local areas. Highlights: Magistrates’ courts, County courts.
Courts of Record: Rulings are reported as precedents (Supreme Court, Court of Appeal, High Court).
First Instance vs. Appellate: * First Instance: The originating trial court. * Appellate: Hears appeals to determine if the lower court's decision was correct.
Detailed Court Breakdown: * Supreme Court: Final civil/criminal court of appeal. Hears points of law of public importance. Max $12\,\text{justices}$ . Sittings: Usually $5$ or $7$ judges (up to $11$ for major cases, e.g., the $2019$ prorogation case). * Court of Appeal: Two divisions (Civil and Criminal). Max $39\,\text{Lord/Lady Justices}$ . Usually $3$ judges sit per appeal. * High Court: Three divisions: King’s Bench, Chancery, and Family. Judges sit singly (first instance) or in pairs (Divisional Court for appeals). * King’s Bench Division: Contract/tort claims of high value; includes Administrative Court (Judicial Review). * Chancery Division: Land, wills, trusts, bankruptcy. * Family Division: Appeals from Family Court and complex first instance matters. * County Court: Local, exclusive civil jurisdiction (tort, contract, property). No family jurisdiction since $2014$ . * Family Court: Created in $2014$ to absorb family work from County and Magistrates' courts. * Crown Court: Criminal jurisdiction. Tries serious cases "on indictment" (judge and jury). Hears appeals from Magistrates’. * Magistrates' Court: Starting point for all criminal cases. Handled by Justices of the Peace (lay) or professional District Judges. * Tribunals: Administrative Appeals (Upper Tribunal) and First-tier Tribunals (Social Entitlement, Tax, Health/Education, etc.).
Non-Domestic Courts with Precedent Impact: * Judicial Committee of the Privy Council: Final appeal court for British territories and some Commonwealth nations. Decisions are "persuasive" (highly likely to be followed). * European Court of Human Rights (Strasbourg): International court; rulings are significant and may be cited. * Court of Justice of the European Union (CJEU): Final arbiter of EU law. No longer binding post- $31\,\text{December}\,2020$ , except under the Windsor Framework (Northern Ireland issues).

RIGHTS OF AUDIENCE AND PROFESSIONAL REFORM

Definition: The right to appear before and address a court, including examining witnesses.
Historical Context: Prior to $1990$ , barristers had sole rights in higher courts. The Courts and Legal Services Act 1990 allowed solicitors to obtain higher rights.
Legal Services Act 2007 (LSA): * Defines "reserved legal activities" (LSA s $12$ ), including rights of audience. * Authorized Person: Entitled to exercise rights in specific or all courts based on regulator (SRA, BSB). * Exempt Person: Certain individuals assisting in litigation (LSA s $19$ , Sch $3$ ). * Litigants in Person: May be granted audience rights at the court's discretion for specific cases.

THE DOCTRINE OF PRECEDENT (STARE DECISIS)

Concept: Legal principles established by higher courts bind lower courts in similar cases.
Requirements for Binding Precedent: 1. The facts are sufficiently analogous. 2. The legal reasoning was part of the ratio decidendi. 3. The court is superior or equal in rank.
Anatomy of a Judgment: * Ratio Decidendi: The legal principle or reason behind the decision. It is the binding part. * Obiter Dicta: Statements made by the way (e.g., hypothetical scenarios). Not binding but can be highly persuasive. * Exception: Under $R\,v\,Barton\,[2021]$ , a unanimous obiter statement by the Supreme Court that a Court of Appeal precedent is wrong must be followed by the COA. * Distinguishing: If facts are materially different, the court avoids applying a binding precedent.
Horizontal Precedent Rules: * Supreme Court: Generally bound by own rulings but reserves power to "depart from" them via the $1966$ Practice Statement. * Court of Appeal: Bound by itself per Young v Bristol Aeroplane Co Ltd [1944] except: * Conflicting past COA rulings (court chooses one). * Later conflicting Supreme Court ruling. * Decided per incuriam (in ignorance of law).
Appeal and Precedent Terms: * Affirmed: Appeal court agrees with lower court. * Reversed: Appeal court overturns lower court. * Overruled: A later case determines an earlier case's ratio is "no longer good law." * Disapproved: Precedent value is weakened but not extinguished.

PRIMARY LEGISLATION AND ACTS OF PARLIAMENT

Nature of Legislation: * Primary: Acts of Parliament (Statutes). * Bills: Proposed laws before passing. Classified as: * Government Bills: Part of executive agenda. * Private Members’ Bills: Introduced by MPs/Lords outside government (e.g., Ballot Bills, Ten-minute rule Bills, Presentation Bills). * Public vs. Private: Public Bills apply to all; Private Bills apply locally or to specific entities. Hybrid Bills contain both elements.
Passage of a Bill: 1. First Reading: Formal announcement, title read. 2. Second Reading: Debate on principle; majority vote required. 3. Committee Stage: Clause-by-clause scrutiny and amendments (Public Bills Committee in Commons). 4. Report Stage: Amendments from committee considered by the whole House. 5. Third Reading: Final vote on the amended Bill (no amendments in Commons; some allowed in Lords). 6. Other House: Bill repeats the process. "Ping pong" describes transit between Houses on amendments. * Money Bills: Lords cannot delay for more than $1\,\text{month}$ (Parliament Act 1911). 7. Royal Assent: Monarch's approval makes the Bill an Act.
Commencement: * If silent: Becomes law on Royal Assent date. * Otherwise: Specified by a commencement section (e.g., after $1\,\text{month}$ ) or via commencement regulations (secondary legislation).
Structure of an Act: * Short Title: e.g., European Union (Withdrawal) Act 2018. * Chapter Number: allocated chronologically (e.g., c $16$ ). * Long Title: Description of purpose (starts with "An Act to…"). * Main Body: Numbered sections (plus parts/schedules).
Statutory Interpretation Rules: * Literal Rule: Plain, ordinary, natural meaning even if results are harsh. * Golden Rule: Deviates from literal meaning to avoid "clear and gross" anomaly/absurdity (Stock\,v\,Frank\,Jones\,(Tipton)\,Ltd\,[1978]). * Mischief Rule: Considers the law before the Act and the specific "problem" meant to be fixed. * Purposive Approach: Interprets based on intended effect/purpose (preferred modern approach especially for EU/Human Rights law).
Interpretation Aids: * Intrinsic: Definition sections, long title, schedules within the Act. * Extrinsic: Dictionaries, Interpretation Acts, Hansard (per Pepper\,v\,Hart\,[1993] if ambiguity is resolved by ministerial statement). * Presumptions: Parliament does not intend to alter common law, legislate retrospectively, deprive liberty/property, convict without mens rea, or oust court jurisdiction unless expressly stated.
Rules of Language: * Expressio unius est exclusio alterius: Express mention of one thing excludes others. * Noscitur a sociis: Meaning is derived from surrounding context. * Ejusdem generis: General words at the end of a list match the specific items preceding them. * In pari materia: Interpreting ambiguity in light of other statutes on the same subject.
Repeal: * Express Repeal: New Act explicitly states old law is removed. * Implied Repeal: If two Acts conflict, the newer Act takes precedence.

SECONDARY LEGISLATION

Definition: Also called delegated or subordinate legislation, made by ministers using powers granted by a "parent Act."
Statutory Instruments (SIs): Most common form (regulations/orders).
Procedures for Implementation: * Affirmative Resolution: Parliament must actively approve. * Negative Resolution: Usually becomes law after being laid for $40\,\text{days}$ unless annulled.
Welsh Context: Known as subordinate legislation; made by Welsh Ministers under powers from Acts of Senedd Cymru.

CONSTITUTIONAL DOCTRINES AND INSTITUTIONS

The UK Constitution: Uncodified (not in a single document). Composed of legislation, case law, and conventions.
Parliamentary Sovereignty: 1. Parliament is omnicompetent (can make/unmake any law). 2. No body can override Parliament (Legislative Supremacy). 3. No Parliament can bind its successor or be bound by predecessors.
Devolution: * Transfer of power to Scotland, Wales, and NI to address political/cultural identities. * Asymmetry: Different powers for Senedd Cymru, Scottish Parliament, and Northern Ireland Assembly. * Westminster Supremacy: Parliament can technically revoke devolution or legislate in devolved areas, though by convention it requires a legislative consent motion.
Constitutional Conventions: Non-legally binding political customs (e.g., Royal Assent is always given; the PM must be an MP). "Flesh that clothes the dry bones of the law" (W Ivor Jennings).
Royal Prerogative: Residual common law powers of the monarch, mostly exercised on advice of ministers. * Examples: Foreign affairs, treaties, passports, deployment of armed forces, appointment of PM, proroguing Parliament. * Limitations: Statute prevails over prerogative (De Keyser’s Royal Hotel [1920]). Prerogative use is subject to judicial review (Council of Civil Service Unions [1985]; Miller [2020]).
Parliamentary Privilege: Legal immunities for MPs/Lords to ensure freedom of speech and self-regulation. Protection from defamation/contempt charges for statements in the House.

THE RULE OF LAW AND SEPARATION OF POWERS

Rule of Law (Lord Bingham/Dicey): * Everyone (including state) bound by laws publicly promulgated. * No one is above the law. * Courts must protect individual rights.
Separation of Powers: Division of state into Executive, Legislature, and Judiciary. * In the UK, the Executive (Ministers) is embedded in the Legislature (Parliament). * Checks and Balances: * Ministers accountable at Prime Minister’s Questions. * Select committees scrutinise policy. * Judicial review ensures executive legality. * CRA separates the Lord Chancellor’s previous multi-branch roles.

PUBLIC ORDER LAW

Conflict: Balancing freedom to protest (ECHR Art $11$ ) against maintenance of society.
Processions (Marches): * Organisers must give $6\,\text{days}$ advance notice to police (time, date, route). * Police Conditions: Can be imposed if there is a threat of serious damage, serious public disorder, serious disruption (hindrance to journeys/deliveries > minor), or intimidation. * Banning Orders: Chief officer applies to local authority for up to a $3\text{-month}$ ban if conditions are insufficient.
Assemblies: $2$ or more people in a public place. Similar conditions to processions can be imposed regarding location, duration, and participant numbers.
Public Order Act 2023: Specific offences for "locking on," "tunnelling," and "safe access zones" for abortion services.
Breach of the Peace: At common law, any harm or likely harm to person/property. Police have common law power of arrest; magistrates can "bind over" individuals for a sum of money.

JUDICIAL REVIEW

Nature: Supervisory function of the High Court over public bodies. It is an assessment of the process, not an appeal on the merits of the decision.
Scope: Claims against government ministers, local authorities, NHS Trusts, police, and even private bodies exercising public functions (e.g., exam boards).
Eligibility: Applicant must have "standing" (sufficient interest).
Time Limits: "Promptly," generally within $3\,\text{months}$ ( $6\,\text{weeks}$ for planning).
Grounds for Review: 1. Illegality: Ultra vires (beyond power), unlawful delegation, fettering discretion, improper purpose/irrelevancy. 2. Irrationality: Wednesbury unreasonableness (a decision so bizarre no reasonable body would have made it). 3. Procedural Impropriety: Breach of natural justice (right to fair hearing) and the rule against bias (no judge in their own cause). 4. Legitimate Expectation: Body promised or acted previously in a way that created a clear expectation. 5. Human Rights Act s $6(1)$ : Public authority acting incompatibly with Convention rights.
Remedies (Discretionary): * Quashing Order: Overturns original decision. * Suspended Quashing Order: Decision quashed if not fixed by a set date (Judicial Review and Courts Act 2022). * Mandatory Order: Compels performance of a duty. * Prohibiting Order: Prevents threatened unlawful action. * Declaration: Clarification of law by a judge. * Damages: Rarely awarded; must be in addition to another remedy.

HUMAN RIGHTS ACT 1998 (HRA)

Key Sections: * s $2$ : Courts must "take into account" ECtHR jurisprudence. * s $3$ : Legislation must be read and given effect compatibly with Convention rights as far as possible. * s $4$ : Senior courts can issue a Declaration of Incompatibility if compliance is impossible. This does not invalidate the legal force of an Act. * s $6$ : Unlawful for a public authority to act incompatibly with a Convention right. * s $7$ : Victims (defined per ECHR Art $34$ ) can bring proceedings. * s $10$ : Minister can use a remedial order to fix legislation after a Declaration of Incompatibility.
Schedule 1 Convention Rights: * Art $2$ : Life. * Art $3$ : Prohibition of torture/inhuman treatment. * Art $6$ : Fair trial. * Art $8$ : Privacy and family life. * Art $10$ : Freedom of expression. * Art $11$ : Freedom of assembly. * Art $14$ : Prohibition of discrimination.

EU LAW AND THE UK CONSTITUTION

Types of EU Law: * Primary: Treaties (ground rules established by member states). * Secondary: * Regulations: Directly applicable; binding across the EU without domestic legislation. * Directives: Require member states to implement specific outcomes into domestic law. * Principles: Direct Effect (Vertical vs. Horizontal) and Supremacy (EU law prevails over national law).
Brexit Transition and Continuity: * Exit Date: $31\,\text{January}\,2020$ . * Implementation Period: Ended $31\,\text{December}\,2020$ . * European Union (Withdrawal) Act 2018: Created "Retained EU Law" (EU-derived domestic legislation, Direct EU legislation, and General Savings). * Retained EU Law (Revocation and Reform) Act 2023 (RELRRA): * Revoked $587$ pieces of law on $31\,\text{December}\,2023$ . * Renamed remainder as "Assimilated Law." * Abolished the principle of supremacy and general principles of EU law in the UK. * Empowered courts to depart from retained EU case law (higher courts must consider foreign status and development of domestic law).