Rule of law
Identify three elements of Dicey's rule of law and explain them briefly
Absence of arbitrary power on the part of the state
Equality before the law
Supremacy of ordinary law
Describe the difference between procedural, substantive and corrective justice
Procedural justice refers to how the processes/procedures within the legal system are fair.
Corrective justice is achieved when the law restores an imbalance which may have occured between the state and an individual or two individuals
Identify two consultative documents in the pre legislative process and also identify the 5 stages in the legislative process
Legislative- First reading, second reading, committee stage, report stage, third reading, Royal assent
Identify five influences on Parliamentary law making
Law commission
Media
public opinion and lobbying
pressure groups
political pressure
Identify three doctrines which form the basis of the english legal system. Explain each of them briefly.
(Unwritten constitutional principles)
Doctrine of separation of powers-The three organs of the state operate independently.
Doctrine of precedent-like cases decided alike and lower courts are bound by higher courts and in some cases by themselves
Doctrine of Parliamentary sovereignty-Parliament is supreme law making body and is not even bound by itself. Nobody can challenge the Parliament and statutes are not subject to judicial review
Please state the connection between the rule of law and the Constitutional Reform Act 2005
s 1 of the Act reaffirms the importance of the rule of law which is given statutory footing
s3 of the Act emphasizes on the importance of judicial independence and how all ministers including the Lord Chancellor must uphold judicial independence. Joseph Raz and Lord Bingham both highlighted the importance of judicial independence for the rule of law.
upheld through the right to a fair trial( Art 6 HRA 1998), right to appeal is available to defendants as of right
Appellate process is too long-Birmingham Six case
Legal aid deserts-Cuts in legal aid-Legal Aid, Sentencing and Punishment of Offenders Act 2012
Identify the five stages in the legislative process
First reading
second reading
committee stage
report stage
third reading
royal assent
Identify five aims of the law commission
simplification and modernization of law
repeal of obsolete statutes
Consolidation and codification-reduction of the number of separate enactments
elimination of anomalies
Systematic development of law
Identify five differences between civil and criminal law
Criminal law is a form of public law which involves the state whereas civil law governs disputes between private individuals or organizations.
The courts are different with criminal law being administered in the Crown Court and the Magistrates Court. Civil law is applied in the County Court and the High Court.
The burden of proof in criminal law is beyond reasonable doubt where as in civil claim has to be proved on a balance of probabilities
The main aim of criminal law is to punish through sentencing whereas in civil law, the main aim is to compensate usually through monetary damages
The person starting the case in civil law is the claimant whereas in criminal law it is the state who will appoint a prosecutor from the crown prosecution service
Please state how the rule of law is compromised in the law making process
Government has a majority in the HOC and can exert arbitrary control
HOL is nominated and the PM has a big role to play
DL is law made by ministers and ministers can often abuse their powers
Give some examples of corrective justice
Contributory negligence( Jebson v Ministry of Defence)
Police powers are balanced against rights of suspect under Police and Criminal Evidence Act 1984
Under contract law, a defendant is only liable for foreseeable losses( Victoria Laundry v Newman Industries)
Mitigating factors and aggravating factors in sentencing
Right to a jury trial
Why did the Wakeham commission want to reform the composition of the HOL
undemocratic house which was nominated rather than elected. The existence of hereditary peers is also questionable.
Give a few examples of how the media influences the law
Snowdrop Petition
Stephen lawrence case led to the reform of the double jeopardy rule in the criminal Justice act 2003
Dunblane massacre led to the banning of handguns
Voyeurism (Offences) Act 2019-amended the Sexual offences Act and introduced a new offence of upskirting because of a social media campaign initiated by Gina Martin.
Individual influence-Diana and landmines
Describe the difference between an adversarial and inquisitorial legal system
Adversarial:It is used in countries with common law jurisdictions ( UK and Pakistan).
In court, advocates for both sides represent their parties’ case and interests. Each sides advocate builds their case by producing evidence, questioning witnesses and discredits the opposition.
The case is presented to an impartial judge or jury to decide the outcome.
Before a criminal trial, the investigation is run by the police who follow procedural rules.
Inquisitorial:
It is used in countries with a codified system of law.
The judge acts as a fact finder and the advocates help the judge to decide the truth, rather than take one side over the other.
The judge takes a more proactive role and questions the witnesses.
.An initial investigation is led by an examining magistrate whose report is presented to a trial
Right to fair trial( Art 6)
s 58 Police and Criminal Evidence Act 1984
Right to jury trial
Legal aid
Conditional fee arrangements in tort
Name 3 cases in which the court had to decide on a substantively fair sentence for the defendant who killed a terminally ill patient. What was decided in the three cases?
R v Inglis
R v Cocker
Mavis Eccleston
What is the Parliaments Act 1911-1949
This limits the powers of the HOL as the HOL cannot block the wishes of the HOC if a Bill passes the five stages in the HOC a second time after being rejected by the HOL
What are the disadvantages of pressure groups
Pressure groups often impose their ideas on others even if the majority of the public does not support them.
Trade unions may call strikes which could be disruptive.
Two pressure groups might have competing interests such as the League Against Cruel Sports wanted fox hunting banned whereas the Countryside Alliance wanted it to continue.
Biased in favour of their cause
Views held passionately can lead to illegal behaviour. Fathers for justice is a fathers right organization in UK who advocate for fathers rights through stunts and protests, often costumed.
Identify two similarities and two differences between law and morality
Both law and morality tend to see relationships in terms of rights and duties and distinguish between right and wrong
Major breaches of a moral code (such as murder and robbery) are also against the law. All of criminal law depicts the overlap between law and morality.
Morality cannot be deliberately changed. It changes according to the will of the people. This can be seen in attitudes to issues such as abortion, homosexuality, drugs and drink driving.
Morality carries with it no official sanctions. It relies on an individual’s sense of guilt as well as social pressures such as being shunned by the community. Law makes certain behaviour obligatory with legal sanctions to enforce it.
Give two criticisms of Diceys version of the rule of law
It contradicts with Parliamentary sovereignty
It refers to formal equality rather than substantive equality
Give some examples of substantive justice in contract law
UCTA 1977. CRA 2015 and exclusion clauses
excessive penalty clauses are regulated
Contract(Right of Third Parties) Act 1999
What are the disadvantages of legislation as a source of law?
Long tedious process to enact legislation which leads to the total loss of the Bill-ping pong effect
Cannot respond to emergencies as well as delegated legislation
Obscure and incomprehensible for the lay person
The structure of an Act is often illogical and out of sequence( Renton committee)
Statutory provisions might have varying dates of implementation despite achieving Royal Assent. This adds complexity. Equality Act 2010
15 Statute law repeal Acts led to the repeal of 3000 outdates statutes
first 10 years- 85% of its proposals were implemented
5 consolidation Bills every year
whole areas of law have reformed-Fraud Act 2006, Unfair Contract Terms Act 1977.
Law commissions work has been cited in 404 cases
Describe the difference between a codified and common law legal system
Codified
laws of the country are written down in a code or codes which cover a whole area of law e.g tax law.
little or no precedent in the law/no judicial discretion
written constitution and a highest appellate court
Common law
case centered-judicial discretion. Derived from customs and judicial decisions