Sources of English Law

Parliament

4.1 An understanding of the following:

4.1.1 Green and White Papers

Green Paper

• May be issued by a government minister
• It is a consultative document
• It has the Governments ideas for changes in the law
• *On mark schemes, it says that you get a mark for stating that it is Government issued

White Paper

• Issued by the Government
• It has the Governments firm proposals for new laws
• Usually includes a draft of the proposed Bill

*4.1.2 Types of Bills

You do not need to know this for your exam, but you may be able to slide this into some of your answers which could impress the examiner, making him more willing to give you some marks :)

Public Bill

• Involves matters of public policy
• Affects the whole country or large sections of it

Private Bill

• Affects individual people of corporations
• Does not affect the whole country

Private members Bill

• Introduced by an individual MP
• My be a Public Bill OR a Private Bill
• Very few become law

4.1.3 Passage of a Bill through Parliament

First Reading

• Formal procedure
• The Bill's name and main aims are read out
• There is no discussion on the Bill

Second Reading

• This is where the main debate on the Bill occurs
• - the debate is more on the principles of the Bill rather than detail
• There is a vote at the end of the Bill
• - if there is a majority vote against the Bill, then it will not go any further

Committee Stage

• Bill is examined in detail by a committee of MP's
• - thees committee's are called Select Committee's and are made up of between 20 and 50 MP's so that the political parties in the House are proportionally represented
• Each clause of the Bill is examined in detail and amendments are made if necessary
• For finance (money) Bills, the whole House sits as a committee instead of select committee's
• - this helps to prevent corruption

Report Stage

• Each amendment proposed by the Select Committee's is voted on and can only pass if a majority votes in favour of it

Third Reading

• This is the final vote on the Bill
• There can be a further debate on the general principles of the Bill if at least six MP's request it
• If the Bill is voted in favour of it passing, then it will move onto the other house 

House of Lords

• Their power is limited
• Amendments made by the House of Lords must be considered by the House of Commons
• If a Bill is refused by the House of Lords, then that Bill can be re-introduced into the House of Commons in the next session of Parliament and if passed again by the House of Commons, then it receives the Royal Assent without the agreement of the House of Lords

Royal Assent

• This is when the Monarch approves the Bill and gives her Assent (agreement) to the Bill becoming an Act (law)
• This is nowadays a formality
• - the last time the Royal Assent was refused was in 1707 when Queen Anne refused to pass the Scottish Militia Bill

 

*4.1.4 Differences between the House of Commons and the House of Lords

House of Commons

• Has 646 members
• Elected by the public
• Elected every five years

House of Lords

• Has about 750 members
• Non-elected
• Most are life-peers

*4.1.5 Evaluation

*Delegated legislation

You do not need to know this entire topic, but you could get asked a question about the sources of law and how Parliament's power can be limited. By mentioning the following, you can score marks

*4.2 An outline understanding of the following:

*4.2.1 The three types of delegated legislation and their purpose

Literally, just know the following:

*4.2.2 Evaluation

Pros

• Creates detailed law
• Can be passed quickly
• Useful if technical or local knowledge is needed
• Can be amended easily

Cons

• Made by non-elected people
• Can be sub-delegated (law making is moved from one person to another)
• Large volume of laws are passed
• There is a lack of publicity on each law

Case Law and Precedent

4.3 An understanding of how the system of judicial precedent operates through the hierarchy of the courts

Essentially, the higher courts bind any courts that are lower than them, as this diagram neatly highlights:

 

4.4 An outline understanding of the following:

4.4.1 The importance of Law Reports

Law Reports provides a source of judicial precedent and case facts that can be later referred to in order to uphold current precedents and allows for the whole system of judicial precedent to operate

The earliest Law Reports from 1275 to 1535 were known as Year Books:

• they were short
• usually written in French 
• rarely referred to in modern courts

From 1535 to 1865, Law Reports improved:

• they were written by individuals
• detail and accuracy varied
• many are still referred to in modern courts

From 1865 onward, Law Reports greatly improved:

• Incorporated Council of Law Reporting was set up
• - it provides very accurate word-for-words reports of cases

Today, there are many sources of Law Reports:

• All England Law Reports
• Weekly Law Reports
• Internet sites:
• - www.parliament.uk
• - www.bailii.org

4.4.2 Ratio decidendi and obiter dicta

Ratio decidendi

The reason for decision

This part of the judgement may (persuasive) or must (binding) be followed in later cases.

This can form a binding precedent or a persuasive precedent

Obiter dicta

Other things said by the way

This part of the judgement is not legally binding

Theses types of statements can form persuasive precedents

4.4.3 Binding and persuasive precedents

Binding precedents

This is a precedent which the judge must follow

Persuasive precedents

This is a precedent which the judge may follow

*4.4.4 Evaluation

*European Union

On the syllabus, this is covered later and in less detail, but I just put this in for some extra information

4.5 An outline understanding of the following:

4.5.1 The institutions of the EU

There are four different institutions of the EU, which are:

Council of the European Union

• This is the principal decision making body of the EU
• Each Member State has a seat
• Representative is usually the foreign minister 
• Twice a year, all member government heads meet to discuss broad principles of policy
• - usually the Prime Minister attends these
• Important decisions require a unanimous minster agreement, other require a qualified majority vote
• Each country has a weighted vote roughly proportional to the size of its population 

Commission

• They propose policies for the Council to discuss
• Responsible for the administration of the EU
• Has 27 Commissioners
• - chosen by the agreement of all member governments
• Commissioners are obliged to act in the interests of the EU and not their own nation
• Commissioners are appointed for four years b
• - however they can be removed by a vote of censure from the European Parliament at any time
• Each Commissioner heads a department with special responsibilities for one area of Union Policy

European Parliament

• They are elected directly by the citizens of each Member State
• Elections occur every five years 
• They discuss proposals made by the Commission
• This is not the primary law making body
• Powers include:
• - right to reject the Council's budget proposals
• - right to dismiss the Commissioners

European Court of Justice

• They are located in Luxembourg
• They settle legal disputes involving Union Law
• They have 27 judges (one for each Member State)
• Appointed for 6 years 
• Judgments of the court are legally binding in each Member State

4.5.2 The different types of EU law

Parliament's Legal Limits

4.6 An outline understanding of how Parliamentary Supremacy can be limited by the following:

4.6.1 European Union

• All laws passed by the European Court of Justice is legally binding in the UK
• Treaties and Regulations are directly applicable in UK law
• Directives also enter UK law
• Points of law are referred to the European Court of Justice
• - this defeats the idea that Parliament cannot be overruled by any other body

4.6.2 Judicial Precedent

Judges can, to a degree, change the law:

• They can impose Binding precedents
• They can impose Original precedents through points of law
• - this defeats the idea that Parliament cannot be overruled by any other body

4.6.3 Delegated Legislation

• Vast amounts of law are made by non-elected people
• - this defeats the idea that Parliament cannot be overruled by any other body

People in the Law

Lay People

Juries

3.1 An understanding of the following:

3.1.1 Qualification and selection

Qualifications

Outlined in the Juries Act 1974, jurors must meet the following three qualifications:

• Jurors must be aged between 18 and 70
• They must have been a resident in the UK for a minimum of five years since the age of 13
• They must be entered on the electoral register

Selection

The following list quickly shows us how you are selected

• Jurors are selected at random from the electoral register, by computer at the Central Summoning Bureau.
• If summoned, jury service is a legal obligation
• Twelve names will be selected by ballot in court.
• A juror may be challenged if they are known to anyone in the court or there is other cause (ie being bias)
• Jurors are sworn in

3.1.2 Disqualification, discharge and deferral

Disqualification

If they fulfill any of the following criteria in the diagram bellow, then they are disqualified for the given time

Discharge

This is when a juror has been selected for jury service, but he lacks the capacity to fulfill his role as a juror. Examples of when a juror can be discharged can be found in the diagram bellow

Deferral

A juror can ask to has his service as a juror deferred (put of to a later date) within good reason (such as having exams). More examples of when a juror can be deferred can be found in the diagram bellow

3.1.3 The role of juries in criminal and civil cases

The diagram bellow summaries perfectly and concisley what you need to know about the jury's role in both criminal trials and civil trials

*3.2.4 Evaluation

You technically do not need to know this for your exam (as it is not on the syllabus), but you may get a question (potentially 6 marks) on the pros and cons of juries. 

The diagram bellow gives you good, key information that you can concise down to key words

Lay Magistrates

3.2 An understanding of the following:

3.2.1 Selection and appointment

Selection

Know the following points:

• Applicants apply to the Local Advisory Committee
• They must fulfill the criteria set out int the Justice of the Peace Act 1997:
• - applicants must be aged between 18 and 70 (65+ are unlikely to be appointed)
• - the must live or work within or near to the local justice area to which they are allocated
• - certain professionals are ineligible, including members of the police service (as they may be bias)
• - applicant with criminal convictions or bankrupts may be disqualified 
• Applicants must have the six key qualities:
• - good character
• - understanding and communication
• - social awareness
• - maturity and sound temperament
• - sound judgement
• - commitment and reliability
• Applicants undergo a two-stage interview process
• - the first one finds out if they have the six key qualities and if they meet the criteria explained above
• - the second one consists of practical decision-making activities

Appointment

Candidates who pass both interview process' follow the following points to be appointed. This is very simple, and has a lot less content that selection:

• The Local Advisory Committee will pass a list of candidates onto the Lord Chief Justice
• The Lord Chief then recommends them for appointment by the Lord Chancellor

3.2.2 Their role in criminal, civil, administrative and appeal cases

Criminal cases

• They hear 97% of all criminal cases
• They deal with all stages of the case
• They hear bail applications
• They decide if the defendant is guilty or not guilty
• - they decide the sentence if the defendant if found guilty
• They are advised on the law by a Magistrates Clerk (who is usually legally qualified) who is responsible for (training, court administration and paperwork)

Civil cases

They deal with civil matters which include:

• The enforcement of debts owed to the utilities, which include:
• - non-payment of the council tax
• -non-payment of television licences
• The refusal of a local authority to grant licences (eg sale of alcohol)

Administrative cases

• They carry out many administrative tasks
• - bail hearings
• - granting arrest and search warrants
• - transferring indictable offences to Crown Court
• committals for sentence to the Crown Court, if they find a defendant guilty, but their sentencing powers are insufficient 

Appeal cases

• Lay Magistrates' sit in the Crown Court to hear appeals from the Magistrates' Court
• They then form a panel of two lay justices and one qualified judge and retry the case

*3.2.3 Evaluation

You technically do not need to know this for your exam (as it is not on the syllabus), but you may get a question (potentially 6 marks) on the pros and cons of lay magistrates. 

The diagram bellow gives you good, key information that you can concise down to key words

Legal professionals

Solicitors and Barristers

3.4 An understanding of the training, work and role of solicitors and barristers

Solicitors

Training

The diagram bellow summaries' perfectly how the training required to become a solicitor

Work

• Solicitors are governed by the Law Society
• Solicitors can pick and choose their clients and refuse to advise or represent them
• Solicitors only have an automatic right of audience in the inferior courts (Magistrates and County)
• Solicitors usually work in partnerships
• Solicitors are employed directly by the client for a contractual fee

Role

• They advise their clients and can represent them in the inferior courts

Barristers

Training

The diagram bellow summaries' perfectly how the training required to become a solicitor

Work

• Barristers are governed by the Bar Council
• Barristers are bound by the cab-rank rule to represent a client one the brief has been accepted by their clerk
• Barristers have an automatic right of audience in any court in England and Wales
• Barristers are generally self-employed
• Barristers are employed indirectly by the client and work for a non-contractual fee

Role

• They represent their client in any court in England and Wales

*3.5 Evaluation

Judges

3.6 An outline understanding of the following: 

3.6.1 The judges who sit in different courts AND

3.6.2 The role of the judge in civil, criminal and appeal cases

*3.7 Evaluation

Pros

• Offers current law
• Their legally qualified

Cons

• Too few women
• Too few ethnic minorities
• Too upper-class