Legal skills

LEGAL SKILLS

LEGAL SKILLS

THIRD EDITION

EMILY FINCH • STEFAN FAFINSKI

1

3

Great Clarendon Street, Oxford OX2 6DP

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First edition 2007

Second edition 2009

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For STG

LEARNING OUTCOMES

After studying this chapter, you will be able to:

● Explain the process by which Acts of Parliament come into being

● Describe various types of delegated legislation and their function

● Understand the roles of the various institutions of the European Community

● Describe the process by which European Community legislation comes into being

● Explain the differences between Treaty Articles, Regulations, Directives, Decisions,

Recommendations, and Opinions

● Distinguish between direct applicability and direct effect

GUIDED TOUR OF THE BOOK

Legal Skills is enriched with a range of features to help support a practical approach to learning.

This guided tour shows you how to fully utilize your textbook and get the most out of your study

of legal skills.

Learning outcomes

Each chapter begins with a bulleted outline of

the main concepts and ideas you will encounter.

These serve as a useful signpost to what you can

expect to learn by reading the chapter.

Defi nition boxes

Key terms are highlighted in colour when they

fi rst appear and are clearly, concisely explained

in defi nition boxes. These terms are collected

in a glossary which can be found on the Online

Resource Centre that accompanies this book.

Self-test questions

Throughout each chapter self-test questions will

help you assess your understanding of key skills,

concepts, and your readiness to progress to the

next topic. You will fi nd answers to all self-test

questions on the Online Resource Centre that

accompanies the book.

Practical exercises

When you feel confi dent you understand the

principles underpinning each skill, it is important

that you practise applying them. To help you

foster a ‘hands on’ appreciation of legal skills

practical exercises are provided throughout

each chapter.

Practical exercise

Try to fi nd the following articles online and in the library:

1. C Walker, ‘The threat of terrorism and fate of control o

M Wasik, ‘Sentencing guidelines i E l d and Wales: st

Review 253.

3. S Easton, ‘Constructing citizenship: room for priso

Welfare and Family Law 127.

fi d t e o owing a t c es o e a d l

‘The and the f

2. ‘Se guidelines in England

ew

. making

e

Self-test q tion

Since the Chronological Table of the Statutes is usually two to thr

be used with care. It remains of use for historical purposes

history of older (and long-repealed) statutes.

Self-test elf-test questions

1.

2.

found

1. Which piece of legislation islation amended s 39 of the Terrorism T orism Act 2000?

2. Which section was added to the Terrorism Terrorism errorism Act2000by s 117(1)(2) 117(1)(2 17(1)(2)of

Security ecurity Act 2001?

Answers to the self-test questions uestions can be found on the Online Reso

when

the force of law. It may also implement resolutions of the United Nations Security Cou

1.1.2.5 Validity of delegated legislation

Unlike Acts of Parliament, delegated legislation may be challenged in the courts via th

trine of ultra vires.

Ultra vires is a Latin term meaning ‘outside (their) powers’.

If a body acts beyond the powers that are delegated to it by the parent Act, then th

egated legislation can be declared void by the court. The body is said to have acted

Diagrams and fl owcharts

Numerous diagrams and fl owcharts are used to

provide a visual representation of concepts and

processes.

Screen shots

Screen shots from important electronic

databases such as Lexis Library and Westlaw

will help familiarize you with these vital online

resources.

Chapter summaries

The central points and concepts covered in

each chapter are distilled into summaries

providing a useful point for you to reinforce

your understanding.

Further reading

Selected further reading is included at the

end of chapters to provide a springboard for

further study. This will help you to broaden your

learning by guiding you to the key literature in

the fi eld.

The defendant‘s assault caused

the victim‘s death

The defendant, intentionally or

recklessly, caused the victim to

apprehend immediate unlawful violence

and this has caused the victim‘s death.

The defendant has attacked the victim

and this has caused the victim‘s death.

Everyday

meaning

Legal

meaning

● This chapter aimed to give an overview of legislation as a source of law

how it comes into being. For an extremely detailed account, see M Zan

Process (6th edn, CUP 2004); in particular, Chapter 1, ‘Legislation—the

1–52) and Chapter 2, ‘Legislation—the Westminster stage’ (pp 53–126

● The House of Commons Information Offi ce factsheet L4 on Private Bill

<http://www.parliament.uk/documents/commons-information-office

● The House of Commons Information Offi ce factsheet L5 on Hybrid Bill

<http://www.parliament.uk/documents/commons-information-office

● The House of Commons Information Offi ce factsheet L3 on the succes

Bills can be found online at <http://www parliament uk/documents/

FURTHER READING

CHAPT ER SUMMARY

Finding the issues

● Take time to analyze the facts of the problem question in terms of th

that you know ‘who has done what to whom’ as this provides a good

answer

● Break an issue down into a series of subissues so that each can be co

essential that the issues are sliced up into manageable chunks, so tha

applied to the facts

Stating the law

● Start by consulting a textbook to ensure that you have a clear unders

GUIDED TOUR OF THE ONLINE RESOURCE CENTRE

FOR STUDENTS

The following resources are accessible to all, with no

registration or password required.

Web links

Annotated web links allow you to easily research

those topics that are of particular interest to you.

Glossary

A useful one-stop reference point for all the

keywords and terms used within the text.

Answers to self-test questions

Self-test questions help you assess your own

knowledge and understanding. Answers are

provided, along with a commentary to help you

understand how and why the correct answer was

reached.

Essay writing

Advice on good essay writing practice to help you

improve your writing skills in a legal context.

Problem solving

Samples of good and bad answers to problem

questions are provided as marking exercises to

help improve your ability to spot strengths and

weaknesses in your own answers.

Exam strategy

Reference materials and practical exercises for

improving your performance in exams. Answers

written by students to the same question provide

insight into the different approaches that can be

taken to the same question; a commentary points

out the strengths and weaknesses of each answer.

Mooting

Sample moots, including examples of mooting

preparation plans and skeleton arguments provide

insight into the process of preparing for and

participating in a moot.

Negotiation

Hints and tips for undertaking negotiation and

examples of scenarios for you to practise your

negotiation skills.

Presentations

A worked example of a presentation plan and

examples of good practice in presentations.

The Online Resource Centre that accompanies this

book provides students and lecturers with ready￾to-use teaching and learning resources. They are

free of charge and are designed to maximize the

learning experience.

Consolidating statutes

A consolidating statute is one which re-enacts particular legal subject matter which was previously

contained in several different statutes.

Consolidation does not change the law. As Lord Simon stated in Farrell v Alexander:

1

EUROPA (http://www.europa.eu)

EUR-Lex (http://eur-lex.europa.eu/en/index.htm)

EUR-Lex is updated daily and provides a free searchable database of European legislation.

EUROPA is the main website of the European Union. It contains over 1.5 million pages and

links to the European legal portal, EUR-Lex.

Video clips

Video clips of students participating in a range

of practical activities bring these skills to life and

provide examples of good practice to emulate

and bad practice to avoid. Clips featuring different

individuals demonstrating their skills and talking

about their experiences can be used to help students

to overcome nerves, avoid common errors, and

develop their own style.

Mooting

Watch mooting in action with clips of students at

key moments of the moot demonstrating effective

mooting strategies, illustrating core skills such as

outlining their submissions, dealing with judicial

interventions and handling case law. The clips also

give an engaging illustration of common mistakes

with commentary on how to avoid them.

Presentations

Clips of student performances demonstrate

the desirable and undesirable characteristics of

presentations and are interspersed with comments

from students on their own fears about delivering

a presentation and their views on their own

performances.

Negotiation

Video clips of a negotiation are interspersed

with commentary on good and bad technique

bringing this activity to life and providing an

engaging demonstration of different negotiation

styles. Comments from students about their

own experiences provide helpful advice for

inexperienced negotiators.

Lectures

Short lecture clips highlight the variety of ways that

information can be recorded as part of an effective

note-taking strategy.

FOR LECTURERS

Password protected to ensure only lecturers can

access these resources.

Test bank

A fully customizable resource containing ready￾made assessments with which to test students.

Diagrams

All of the diagrams in the textbook are available to

download electronically and can be used in lectures

to aid student understanding.

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PREFACE TO THE THIRD EDITION

The degree of change that Legal Skills has undergone since its fi rst edition (only four years ago) has

been remarkable. Although some of this has resulted from amendments to the law, the majority of

enhancements have been responses to feedback from students and fellow academics. As such, we

would like to thank everyone who has given us feedback on the fi rst two editions, and we hope that

the changes that we have made this time around both refl ect your comments and make the book

stronger as a result. We hope that this cycle of responding to feedback will continue for some time,

so do please track us down if you think that there are particular parts that are superfl uous, missing

or just not to your liking.

This edition would not have been possible without the tremendous support of Helen Davis at OUP

who has been an amazing editor: quick to give us guidance, meticulous in her attention to detail,

encouraging as deadlines approached and patient when they passed (ever so slightly). Grateful

thanks, as ever, go to Sarah Viner at OUP for her constant assistance with the book. In spite of

the danger of the preface becoming a mini-biography, our congratulations to Sarah on becoming

a mother earlier in 2010. We wonder what signifi cant life event she will come up with should OUP

commission a fourth edition (we’d like them to).

We remain, as always, grateful to Professor Rosemary Pattenden who had the initial vision for

Legal Skills, and to the many reviewers who were involved throughout all the stages of the fi rst edi￾tion for their insightful and invaluable feedback, which was both positive and constructive:

Nicola Aries, Kingston University

Vanessa Bettinson, De Montfort University

Jo Boylan-Kemp, Nottingham Trent University

Tim Conner, Bradford University Law School

Lynn Cousins, Leeds Law School, Leeds Metropolitan University

Amy Croft, Kingston University

Cath Crosby, University of Teesside

Dr Haydn Davies, University of Central England

Dennis Dowding, Bournemouth University

Professor Kim Economides, University of Exeter

Dr Martina Gillen, Oxford Brookes University

Beverley Hopkins, University of Central England

Matthew Humphreys, University of Surrey

Nicola Isaacs, University of Plymouth

Robert Jago, University of Surrey

Neil Kibble, University of Wales, Aberystwyth

Lesley Lomax, Sheffi eld Hallam University

Dr Claire McGourlay, University of Sheffi eld

Jeanette Porteous, University of Lincoln

Dr Sue Prince, University of Exeter

Stephanie Roberts, University of Westminster

Dr Charlotte Smith, University of Reading

xii PREFACE TO THE THIRD EDITION

Dr Rhiannon Talbot, Newcastle University

Andy Vi-Ming Kok, Staffordshire University

Roger Welch, University of Portsmouth

Tony Wragg, University of Derby

Titles and affi liations are as they were at publication of the fi rst edition.

Friends: yes, we have some of those too. They tend to look at us in bemusement as we emerge blink￾ing into the twilight after a day’s staring at the screen, cursing the changes to website addresses,

wishing that the Treaty of Lisbon had not made quite so many changes necessary, or lamenting the

changes to the law of provocation that rendered so many of our second edition examples fi t only for

the bin. It doesn’t matter that they don’t understand about the law:1

they are there, they listen, and

that’s what matters. Sometimes they buy us drinks too, which is nice. We thank them, especially.2

EF and SF

Wokingham

October 2010

1. Of course, they would understand the law if they actually read our book.

2. Provision of drinks is not a condition for the bestowal of thanks, although it does help. Despite living the semi￾hermit life as deadlines approach, there are actually quite a few people who look out for us. We can’t name them

all, as we’re already struggling with meeting the word limit, but if you think you’re included in the sentiment, then

you probably are.

Additional information is included on referencing styles ensuring you have the necessary informa￾tion to avoid plagiarising material and giving you confi dence in your ability to reference your sources

correctly

Material has been added on Personal Development Plans (PDPs) to assist you in planning the

steps you need to take to achieve your personal, professional and academic goals

Fully updated to refl ect all changes in the law, particularly the change from the House of Lords to

the Supreme Court

New material is included on EU Law including the ratifi cation of the Lisbon Treaty and advice on

reading European cases

Includes a number of more advanced exercises for you to complete which provide you with the

opportunity to develop a more sophisticated set of skills

NEW TO THIS EDITION

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