ASSIGNMENT 1 FRONT SHEET

Qualification BTEC Level 4 HND Diploma in Business

Unit number and title Unit7: Business Law

Date Received 1st

09/02/2020
Submission date submission

Date Received 2nd

14/03/2020
Re-submission Date submission

Student Name Nguyễn Thị Hiền Thảo Student ID GBD18551

Class GBD0703A Assessor name Phạm Quang Phúc Bảo

Student declaration
I certify that the assignment submission is entirely my own work and I fully understand the consequences
of plagiarism. I understand that making a false declaration is a form of malpractice.

Student’s signature Thao

Grading Grid

P1 P2 M1 D1

Page 1
 Summative Feedback:  Resubmission Feedback:

Grade: Assessor Signature: Date:

Internal Verifier’s Comments:

Signature & Date:

Contents
INTRODUCTION................................................................................................................................4
I. Source of law................................................................................................................................5

Page 2
 1. The definition of law.................................................................................................................5
2. Functions of law........................................................................................................................5
3. Case law vs Statutory law.......................................................................................................11
4. Give examples of Statutory and Case law to demonstrate their differences...........................12
APPLICATION 1: Self-research........................................................................................................13
II. Role of Government in Law-Making and how Statutory and Common Law is applied in
Court 17
1. Role of Parliament and Government in Law-Making.............................................................17
2. Law-making procedure in Parliament.....................................................................................18
3. The UK’s Court Structure.......................................................................................................20
APPLICATION 2...............................................................................................................................22
CONCLUSION..................................................................................................................................26
References..........................................................................................................................................27

Page 3
 INTRODUCTION
The study would discuss the specifics of the UK legal system. Next, the research will explain
the different legal sources, the discrepancies in case law, statutory law, and substantive legislation.
The report's second purpose is to illustrate the government and Parliament’s positions in law-
making, how to enforce laws in the courts of justice by illustrating the framework of the court
through maps and making cases. Finally, it explains how the court interprets the law in dealing with
the above problems.

Page 4
 I. Source of law

1. The definition of law

According to Martin Partington (2017), law can be defined as a set of rules for directing
human behavior, imposed and implemented among the members of a particular state to allow the
state to operate.

2. Functions of law

a. Macro functions

Macro functions of law are those related to the general role that the law plays in society's
running and ordering.

- Public order: Many argue the preservation of public order is a-possibly the primary function
of law. But maintaining public order is not exclusively a legal task, there are many other
factors that play an important role, such as pressure from family or friends, or work colleagues.
Nevertheless, the fact that legislation sets the limits of acceptable behavior and prescribes
penalties for infringements of those boundaries (which is, in essence, the purpose of criminal
law) contributes significantly to the maintenance of public order. However, the preservation of
public order raises another but not necessarily consistent function for the law immediately: the
protection of civil liberties and human rights. The British had no formal declaration of human
rights until recently, similar to the Bill of Rights enshrined in the United States Constitution.
Rather, they relied on long-standing law principles which enabled people to indicate dissent.
[CITATION Mar20 \l 1033 ]
- Political order: The primary role of law is to underpin the country's political order - the
fundamental function of law. The United Kingdom is an oddity in this context It is one of the
very few countries without a written constitution. Many critical elements of how the
government system is structured in the United Kingdom completely fall outside the scope of
the law, relying more on political theory than on legal rules. This emphasizes the fact that
although there is no written constitution in the United Kingdom, a great deal of constitutional
law regulates how its political system works. Many of the constitutional arrangements that
remain in the UK are enshrined in law. [CITATION Mar20 \l 1033 ]
- Social order: Law also impacts the social order in a country. Defining the essence of the social
order is extremely complex; opinions vary widely. However, it is obvious that there are
substantial differences between individuals in the United Kingdom, as in many other countries

Page 5
 in the Western democratic tradition. These may be due to differences in ability, or income or
wealth differences, or birth or class differences. These differences are expressed in many law
rules, especially those which define concepts of property and contract. The current social order
and the legislation enforcing the social order have the purpose of protecting the rights of those
with property and the economic power to enter into and execute contractual arrangements.
[CITATION Placeholder1 \l 1033 ]
- Economic order: The relationship between law and economic order poses similar issues to
those considered in the law-to-social order connection. Market capitalism is the dominant
economic philosophy in the UK, and indeed throughout the Western world. Capitalism's
development depended on the recognition of legally enforceable privately held property,
whether inland or other forms of security. The law defines property ownership rights, as well
as the processes for transferring certain ownership rights from one person to another. The law
allows for the coexistence of different property rights (e.g. tenancy or trust) in the same piece
of property. And the law establishes procedures for enforcing those freedoms. The definitions
of property which were established in law were crucial. Similar arguments apply in relation to
contract. Recognition of the legally enforceable agreement (contract), whose violations can be
litigated in court, has been an important instrument in the growth of the modern market
capitalist economy. As with its function in maintaining the social order, so too can the law be
considered as instrumental in creating and sustaining the economic order. [CITATION
Placeholder1 \l 1033 ]
- International order: Another legal role is support for the international order. This is an
extremely complex and contentious subject which is not discussed in detail here. Many claim
that there is really no such thing as international law; international relations and diplomatic
pressure preserve international order rather than protection. But international bodies and
politicians like to point to legal authority for what they're trying to achieve in many respects.
[CITATION Placeholder1 \l 1033 ]. For example:
 Regulation of the use of the sea, or even space
 Crimes against humanity
 Regulation of world trade
 The protection of the environment
 Prevention of torture in war
 Independent international courts, etc.

Page 6
- Moral order: Another macro function of law is to assist in the moral order of society. That is
extremely controversial as well. Many philosophers claim that there ought to be little, if any,
the distinction between law and morality; that the law ought to represent clearly and
deliberately certain morality issues that people think are "ought" to inform how we ought to
behave ourselves. Others draw a clear distinction from law to morality. They claim that the
simple fact that many people agree that certain types of behavior or action are morally wrong
(e.g. engaging in homosexual activity, or tax avoidance) should not mean that such actions
should be described as illegal. When trying to equate law and morality, there are obvious
pitfalls and substantial difficulties, not least because of the problems of deciding what common
morality is in any given matter. However, several legal rules are based on a religious view of
society. Perhaps the clearest example of this is the moral imperative not to kill people, reflected
in criminal law laws that prohibit this behavior. In general, however, it may be argued that
criminal law rules that represent some universal morality, described as such, may be more
appropriate and efficient in controlling behavior than those rules that do not. [CITATION
Placeholder1 \l 1033 ]
- Other macro functions:
 The resolution of social problem: Politicians and their representatives are responding to
many issues viewed as social issues by creating more legislation that attempt to control
the actions against which they complain. This is the political response which is expected.
Politicians only occasionally admit that there may be enough legislation and that what is
required is a better understanding or enforcement of existing law. Very seldom,
politicians are willing to agree that a potential solution to a problem might be to abolish
existing law laws or amend the legislation to' decriminalize' the conduct involved. A
mentality assumes that a legal role is to "resolve social issues". One obvious
consequence of developing legal provisions to resolve social issues is that people—
always mindful of their own self-interest — respond to new legal frameworks in ways
that policymakers do not predict. Consequently, a secret but often unavoidable effect of
using the law to solve social problems is that the creation of new legislation does not
result in solving existing social problems but rather in creating new social problems.
[CITATION Placeholder1 \l 1033 ]
 The regulations of human relationship: Another essential legislative function is to
govern the nature and extent of human relationships. Legal rules specify the definition of
and formalities related to the formation of marriage and civil partnerships. Law provides

Page 7
 a framework for the allocation of properties around marriage breakdown and civil
partnership. The law sets limit to the nature of sexual relationships, requiring, for
example, the minimum age of sexual consent, and finding such sexual relationships
illegal within the prohibited degrees of consanguinity (incest and other close relations).
The statute also sets out a procedure for treating children and other members of the
family. [CITATION Placeholder1 \l 1033 ]
 The educative or ideological function of law: Another role of law, even whatever its
effect in particular cases, is an educational one; it contributes to forming a nation's'
ideology.' To offer a basic, if significant, example, there is no question that drinking and
driving behaviors have dramatically changed over the last 25 years. This is partly the
result of strong advertising. Demonstrating the devastating effect of drinking-drive
collisions on victims and their families. But the change in attitude has also resulted from
changes in the law, which lead to an environment of society in which drinking and
driving are no longer considered socially acceptable behavior. When such laws come
into force, those who advocate for their implementation also agree that the law does not
alter the attitudes of mind on its own which lead to the discriminatory actions which
result in the development of those laws. More broadly, countries that follow the rule of
law concept say that the powers of state officials must be limited, and that individual
citizens should have both the right and the opportunity to challenge decisions where they
are considered to be incorrect or unfair in some way. The British Government's decision
to implement the Human Rights Act 1998, integrating the European Convention on
Human Rights directly into English law, is yet another example of legislation that not
only provides legal rights that individuals may try to impose through the courts, but also
sends a significant educational signal about the limits within which individuals,
particularly those who are wounded. Therefore, in this sense another macro role of law
relates to educating the social attitudes and obligations of the public. [CITATION
Placeholder1 \l 1033 ]

Page 8
 b. Micro functions

Micro functions of law — deriving from those macro functions — are concerned with more
specific applications that are used by law. [CITATION Placeholder1 \l 1033 ]

1. Defining the limits of acceptable behavior

Many people have a certain knowledge of criminal law. An important objective of this section
is to administer socially acceptable standards of conduct. Criminal law bans other forms of
behavior, such as assassination and violent crime, to which broad agreement would be reached. It
also forbids a broad range of other activities, such as the use of various types of drugs which may be
controversial. Nevertheless, the legislative role in the control of human behavior has a similar
function and does not consist solely of criminal law. [CITATION Placeholder1 \l 1033 ]

2. Defining the consequences of certain forms of behavior

Law not only describes unacceptable types of conduct, but it also prescribes effects. Such
fines apply to a conviction in the case of criminal law. In the civil law sector, the legislation
provides that damages may be obtained from the defendant by the person affected by a breach of
the contract or a fateful act. The same evidence can have some legal implications in certain cases.
[CITATION Placeholder1 \l 1033 ]

3. Defining processes for the transaction of business and other activities

A rather different legal purpose is to identify procedures by which such transactions are to
be conducted. Many of these apply to transactions involving the transfer of ownership rights. For
example, the process of buying and selling houses is subject to a variety of specific statutory
requirements, collectively known as conveyance laws. The rules for the creation of leases are
comprehensive. Special rules are in place to create desires. Similarly, specific requirements are set
for the creation of trusts or property settlements. All of these are designed to protect valuable assets,
and to prevent fraud. [CITATION Placeholder1 \l 1033 ]

4. Creating regulatory frameworks

Most modern law aims to control those who provide public services. For example, a lot of
legislation now regulates the professional practices of lawyers, doctors, architects, nurses, or estate
agents. There is a broad regulatory framework designed to control the actions of those providing
financial services to the public in order to avoid fraud and other violations of trust. Another section
of regulatory law is about ensuring health and safety at work and in other ways. The privatization of

Page 9
formerly nationalized industries has resulted in the creation of a comprehensive body of law
designed

to control the operations of companies now working in the private sector (such as
telecommunications, utility-gas, water, and electricity and transport) including the promotion of
competition and price regulation. And the most comprehensive legal regulation designed to promote
efficiency and give the consumer value for money is subject to specific areas of economic activity.
[CITATION Placeholder1 \l 1033 ]

5. Giving authority to agents of the state to take actions against citizen

Another legislative role is to give state officials the power to take action against members of
the public. There are numerous examples: police powers to intercept, scan, question, prosecute and
caution members of the public is one; doctors' power to detain those diagnosed as suffering from
acute mental illness in mental hospitals is another; social workers' power to remove children from
families where they are considered to be at risk and put them in the care of the local authority is a
third. Similarly, the power to take money from members of the public through taxation is granted to
officials of both central and local governments. [CITATION Placeholder1 \l 1033 ]

6. Preventing the abuse of power by officials

Unlike the previous heading, a lot of legislation is designed to prevent public servants from
abusing power. For instance, police are required to work within the powers specified by the 1984
Police and Criminal Evidence Act, which limits their powers of arrest, search, and interrogation.
The nature of administrative law is linked to the value of officials working within a legal framework
that prescribes their authority, not allowing officials to use discretionary powers in an abusive way,
and giving people the opportunity to take advantage of certain procedural safeguards, such as a right
to put their case before making adverse decisions about them. [CITATION Placeholder1 \l 1033 ]

7. Prescribing procedures for the use of law

In addition to recommending procedures for performing various types of transactions, there

is another significant body of law-procedural law— which seeks to control how the courts and other
adjudicative bodies operate. This body of law can set limits on the facts that may be used in various
types of cases. It also prescribes how different types of trials should be handled, whether in the
courts or in other legal forms. [CITATION Placeholder1 \l 1033 ]

Page 10
 3. Case law vs Statutory law

a. Definition

Case Law

Case law is uncodified, meaning that it is not compiled into rules and statutes, but rather it
relies on precedent. Precedent looks back at previous court rulings — whether they be federal, state,
or local—and determines a decision about current cases in the light of historical judicial rulings. In
an effort to promote stability, the precedents set by higher courts are legally binding on lower
courts. But if a lower court feels the precedent is outdated or not related closely enough to the case
at hand, they can choose to deviate or modify the precedent.

Case law is also known as Common law, which entails all the documented collections of
previous case precedent. So if you’ve ever heard a lawyer argue in court that a ruling has precedent
or does not have precedent according to such-and-such a case, they are making their argument
based upon Common law. [CITATION Tod20 \l 1033 ]

Statutory Law

Unlike Common law, Statutory law is codified and encompasses compiled legislation that has
been passed on a local, state or federal level. It is strict in its application, which means it is not
subject to the same interpretation as Common law—i.e. It means what it says. However, statutes are
subject to being overturned or changed if a later legislative body finds them unconstitutional. And
some statutes are actually set to expire every few years and require renewal if the law is still
needed. In this way, Statutory law is flexible in order for the law to remain relevant and reasonable
to the people it was designed to protect or regulate. [CITATION Tod20 \l 1033 ]

b. Functions

Under social control, members of the society may have different social norms, different
attitudes, and advantages. Regulation of those behaviors and inculcation among members of society
of socially acceptable social norms is important. Socio-controls are hierarchical and informal. Law
is a systematic way of controlling society.

c. Differences

The Case law differs from Statutory law because it is mainly based on precedent. Statutory
law is a more formal body of the legal system that consists of written legislation. This legislation
will mainly be based on rules and regulations either mandating or prohibiting certain behaviors of
the

Page 11
general public. Case law, on the other hand, will allow judges to decide cases based on the rulings
of prior cases with similar circumstances.[CITATION Law20 \l 1033 ]

The main differentiation between Case law and Statutory law is the way in which the laws are
created. As stated above, Case law comes from precedent. Statutory law is made by the
Government. It is designed to keep citizens safe as well as ensure that citizens are able to function
in everyday life. If there is an issue before the court that absolutely cannot be decided by precedent
or a judge’s decision, the court may turn to statutory law to decide the case. When a Statutory law is
broken by a citizen, the Government will have a predetermined punishment that is in proportion to
the nature of the crime. [CITATION Law20 \l 1033 ]

4. Give examples of Statutory and Case law to demonstrate their differences

Case law is the entire body of law that comes from written decisions by all levels of Courts;
Statutory law is all of the laws enacted by the Government.

The difference in how these are used is very important. For example, in Canada, if a person is
charged with assault, they are alleged to have broken s. 266 of the Criminal Code of Canada - a
statute enacted by the federal government. You can read this statute and it will provide you with a
bunch of information about the law and what the Crown is required to prove in order to convict
someone of breaking it.

Case law is important in the above scenario to help interpret the Statute and to provide
support for an argument that the Crown either has or has not met their burden to convict. In such a
case, the decisions used may vary tremendously from ones about proving identity to proving men
rea the guilty mind required to convict - meaning that the action that constituted the offense, the
actus reus, was intended by the accused, to specific defenses the accused can put forward, to
whether evidence ought to be admitted in Court.

If a person is convicted of a crime, statutory law may provide sentencing guidelines or

mandatory sentences. For example, any adult convicted of murder in Canada can only be sentenced
to life in prison. It’s a mandatory sentence that is written into the Criminal Code. However, case law
is still important because it is used to argue for longer or shorter amounts of time before the person
convicted is eligible for parole.

Case law is interesting because it is fact-specific, and it may or may not be binding on a court.
If the case is one decided by a higher court in the same jurisdiction, it is binding, which means it

Page 12
must either be followed or distinguished. If it is from the same level of Court in the same
jurisdiction it ought to be followed due to the legal premise community, which essentially means
the decision ought

to be followed because the Judges in the same court - say provincial criminal trial judges - ought to
act in unison to avoid conflicting decisions based on the Judge hearing the case. However, it’s not
binding. This means a Judge could distinguish it - make a ruling that the two cases are not factually
similar and therefore the earlier decision does not apply, or the Judge could find that the earlier case
was wrongly decided. This can only be done in situations of community, not where case law is
binding.

Decisions from different jurisdictions may be persuasive but they are never binding and the
community doesn’t apply. In Alberta, for example, only Alberta courts and the Supreme Court of
Canada can be binding, but decisions from the Ontario Court of Appeal may be very persuasive if
there are no binding decisions the Court must follow.

Both bodies of law are equally important at trial, even though Statutory Law trumps Case
Law on a given point. An easy way to think of it is that the Statutes provide the skeleton and the
Case Law builds on that skeleton providing the flesh needed by a Court to come to a decision that is
in keeping with other decisions in similar cases in that jurisdiction.

APPLICATION 1: Self-research

The conditions for the application of a case law in Vietnam

The 2013 Constitution stipulates: "The Supreme People’s Court shall make an overall
assessment of adjudicating practices, ensuring the uniform application of the law in the trial." The
Resolution No. 49/NQ-TW of the Politburo on The Judicial Reform Strategy until 2020 states: "The
Supreme People's Court has the task of summing up the trial experience, guiding the unified
application of the law, the development of the case law and the trial of cassation, retrial."

The 2014 Law on Organization of the People's Courts, states: "To select its trial decisions and
judgments and decisions of courts which have taken legal effect and are of standard nature,
summarize and develop them into court precedents and publicize court precedents for courts to
study and apply in trial."

At present, in the context of globalization, there is an intersection between the legal systems
in the world. Some countries which have the Civil Law system as Vietnam, have increasingly taken

Page 13
into account the role of the case in ensuring the uniform application of the law. Accordingly, court
decisions and judgments have taken legal effect on a particular case containing arguments to
explain legal issues and facts and to indicate the applicable principles and legal provisions to the
settlement

of the case shall be applied to ensure that the same cases are adjudicated. This is an effective way to
overcome the drawbacks of the law and ensure the uniform application of the law in the trial,
creating stability, transparency, and predictability in court decisions, which helps to guide behavior
not only for the parties to the case but also for the whole society.

At the workshop, the Representatives of the Legal and Scientific Management Department of
the Supreme People’s Court also mentioned the process of selection and publication of application
and development of the case law in Vietnam. Accordingly, the selected case must meet these
criteria: containing arguments to clarify the provisions of the law have different understandings;
analyzing, explaining legal issues and facts and show the principles, guidelines and legal provisions
to be applied in a particular case; being normative; containing great value to guide the uniform
application of law in the trial, ensuring that the cases involving the same circumstances and legal
events must be resolved equally.

The judgments and decisions considered as case law must fully and completely satisfy the three
criteria specified in Article 2 of the Resolution No. 03/2015/NQ-HDTP. In particular, the first
criterion is the most important, which is the judgments, decisions containing the arguments and
judgments of the Court on a specific issue and the issue is not regulated by law, or there is
applicable law but without specific or unclear guidelines, which leads to the misunderstanding of
majority of people who apply the law and amounts to judgments and decisions by the court
Superior canceled or corrected. [ CITATION ATI17 \l 1033 ]

Difference between Vietnam’s and UK’s law

Vietnam’s law UK’s law

Conception of law In Vietnam and other countries of
the socialist system, Marxist -
Leninist doctrines are used as a
basis for development for the
whole society, including the legal
field. The law is the
institutionalization of the policy
of politics, the tool of the ruling
The legal concept of the Common
Law tradition lies in the term
Common Law. "Britain has never
taken the position of the French
Revolution to believe that the
power of the judge must be
restrained, that it should be
strictly restricted only by the laws

Page 14
 class to ensure economic interests
and maintain the dictatorship.
Asserting to Lenin that: "All laws
are public laws, it is just another
way of expressing ideas: All legal
relations follow political thought
and legal norms cannot be a
reflection. for the principles of
justice that stand for them.
”Deeply influenced by the above
ideology, Vietnamese law is the
institutionalization of ruling
Communist Party policies.
Source of the law Based on two factors: "The
privatization of production means
and the establishment of the
people's government", socialist
law establishes legal forms
through legislative techniques.
The country is also dominated by
this foundation to build its legal
resources, the current Vietnamese
legal system in principle
considers only legal documents to
be the only source and "best
progressive legal form."
compared to other types of law
sources. Some reasons can be
cited as follows: Firstly, the
appreciation of the principle of
centralized power in Congress led
to the establishment of supreme
legislative authority for this body;
Second, influenced by the
socialist legal tradition of not
imposed by the legislature."
Geographically located as an
island separate from the European
continent, due to the challenges of
the natural climate, the island's
life is full of uncertainties, which
has led to flexible and respected
legal thinking. Therefore, all the
rules recognized and applied by
the Court are considered as the
source of the law, laws born from
life and experienced by the
judges.
The Common Law is a legal
system made up of judges who
explain and declare the law and
determine what is the source of
the law. Based on thinking based
on practical experience and
practices, the Common Law
values laws made by the Court. In
addition, the Law also has an
additional role to the existing
legal system; Other legal sources
such as legal doctrines and equity
principles are also recorded and
applied as necessary. The
promulgation of legislative
documents falls under the
authority of Parliament; in
addition, Parliament can delegate
legislation to the king, ministers,
and local governments. The
legislative mandate must be
within the limits prescribed by
Page 15
 recognizing precedent law as an
official source; Third, the ability
of judges is not eligible to build
law from precedent law.
Role of justice The judicial system in Vietnam is
characterized by two bodies, the
Court (the judicial body) and the
Procuracy (the prosecution and
judicial supervision). Both Courts
and Procuracies are organized
based on the administrative-
territorial hierarchy. There are a
Supreme Court and a Supreme
Court for the whole nation,
provincial courts and district
courts corresponding to the
administrative levels, at the
lowest administrative level
(commune level), there is no
Court organized. The term of
office of the Chief Justice of the
Supreme Court follows the term
of the National Assembly; the
regime of appointment, dismissal,
demotion, and term of judges,
electoral regime and term of
assessors is prescribed by the
Law on Organization of Courts.
law. As a source of English law,
customs are still respected in
Common Law but are not
required to be applied.
In the UK, the judicial system has
two distinctive features: Firstly,
the uniformed judicial staff, the
lawyers and the judges are
equally trained. Second, the
mechanism for dividing the
Primary Court and High Court,
only the High Court has the
authority to conduct joint trials
and enjoy a special statute to
ensure the independence and
reputation of the judge; since the
1990s general powers have been
granted to several primary courts.
Judges of the High Courts shall
be dismissed only at the request
of both the Senate and the House
of Representatives, and judges of
the First Courts shall be
dismissed only in case of serious
faults.
Page 16
 II. Role of Government in Law-Making and how Statutory and Common Law is
applied in Court

1. Role of Parliament and Government in Law-Making

a. Role of Parliament

Parliament is there to represent interests and ensure that the Government takes them into
account. Upon approval from the Parliament, the Government cannot make new laws or raise new
taxes. The Parliament is composed of elected people and appointed people. They sit in two separate
Houses:

 The House of Commons, where all the people we voted as MPs for the next five years
work at the General Election. It includes people from other political parties, as well as
those from the winning party who have not been chosen as ministers.
 The House of Lords, whose members are mostly elected rather than appointed for life.
They were often selected for their achievements and their experience. Many are not a part
of a political party.

Government ministers also have seats in Parliament but most of their work is done in
Government departments.

Worldwide parliaments serve three core functions: representing the interests of people,
passing laws and tracking government actions. They perform a legislative role, because they have
the power to amend, approve or reject government draft laws in addition to introducing legislation
on their own.

This role is strongly linked to the concept of democracy, in that the parliament derives its
authority in democratic countries by the will of the people.

The role of Parliament is to look closely at the policies of the government and to monitor how
they do things.

Parliament is working on our behalf to ensure that government decisions are:

 Open and transparent–through interviewing ministers and asking for information.

 Workable and effective–by closely examining new proposals and recommending
changes, by testing how public money is being spent, and by observing how new laws
work out in practice.

Page 17
  Fair and non-discriminatory–by ensuring that they comply with the equality and human
rights laws and by speaking on behalf of the individuals concerned Representatives of
both

houses of Parliament will speak up for us if we are treated unfairly by a government

department or agency. Government ministers are expected to regularly come to
Parliament to answer questions, respond to issues raised in debates, and keep both houses
aware of any significant decisions they make. Parliament can thus hold the Government
to account for its acts. [ CITATION Par20 \l 1033 ]
b. Role of Government in Law-Making

The Government is the people in charge of running the country. The political party winning
the most seats in a General Election will take over the government for five years until the next
General Election. The winning party leader is named as prime minister and picks other party
members to work alongside them-as ministers of the cabinet and junior ministers in the government.

The government is responsible for determining how to run the country, and day-to-day
management of things. We set taxes, choose what to spend on public money and decide how best to
provide public services such as:

 National Health Services

 Police and Armed Forces
 Welfare benefits such as State Pension
 British energy supply

While many government powers have been transferred to the devolved institutions in
Scotland, Wales, and Northern Ireland, only the UK Government can speak on behalf of the United
Kingdom and represent us outside. [ CITATION Par20 \l 1033 ]

2. Law-making procedure in Parliament

The legislation is proposed, presented and made in the Westminster Parliament. The
Westminster Parliament is made up of two chambers (Houses) and the monarch. The proposed
legislation is known as a Bill, which is a draft of a new law or a change to existing law, presented to
Parliament. Bills can start in either of the two Houses, the House of Lords or the House of
Commons. Both Houses have set stages to debate, examine and suggest changes to the draft. Both
Houses must agree with the final text of the Bill before it can be signed off by the monarch (Royal
Assent) and become an Act of Parliament (law). [ CITATION Par201 \l 1033 ]

Page 18
A Bill must go through the following Lords stages:

 First reading: The bill arrives in the Lords. This stage is a formality where the Bill name
is read in the chamber
 Second reading: The main debate on the purpose and key areas of the Bill. At this stage
member discuss any concerns or specific areas where they think changes may be needed.
There are usually no votes (divisions) at this stage
 Committee stage: Detailed line-by-line scrutiny of the text with amendments (suggested
changes). Members start at the front of the Bill and work through to the end. Votes may
take place to decide whether to make the changes. Any member may take part and there
is no time limit
 Report stage: A further opportunity to examine the Bill and make changes. More
amendments are debated and further votes take place to decide whether to make the
changes
 Third reading: A ‘tidying up’ stage, aiming to close any loopholes. A final chance for
amendments and votes
 Consideration of amendments: If the Lords have made changes to the draft law, it is
sent to the Commons to agree. The Commons may accept the Lord's change, make its
own change in its place, or reject it. Any Commons changes are sent back to the Lords.
There may be several rounds of this process, known as ‘ping pong’
 Royal Assent: When both Houses have agreed with the text, the Bill is approved by the
monarch and becomes a law or ‘Act of Parliament’ [ CITATION Par201 \l 1033 ]

Page 19
 3. The UK’s Court Structure

[CITATION Geo20 \l 1033 ]

In England and Wales, most civil cases are heard in the County Court. Many specialist
tribunals have been created to resolve particular types of civil disputes, such as those involving
taxation and employment, as well as immigration and asylum cases. All criminal cases originate in
the Magistrates' Court, but more serious offenses are referred to the Crown Court.

The High Court functions as both a court of the first instance for high-value civil claims and
as an appellate court for civil and criminal cases. The High Court of Justice functions both as a civil
court of the first instance and a criminal and civil appellate court for cases from the subordinate
courts. It consists of three divisions: The Queen's Bench, the Chancery and the Family divisions.
The divisions of the High Court are not separate courts but have somewhat separate procedures and
practices adapted to their purposes. Although particular kinds of cases will be assigned to each
division depending on their subject matter, each division may exercise the jurisdiction of the High
Court. However, beginning proceedings in the wrong division may result in a cost penalty.

Page 20
 The Court of Appeal functions solely as an appellate chamber. The Civil Division hears
appeals from the High Court and the County Court, and the Criminal Division hears appeals from
the Crown Court.

Magistrates' Courts are the criminal court where all criminal proceedings start. They are
presided over by a bench of lay magistrates (A.K.A. justices of the peace), or a legally trained
district judge (formerly known as a stipendiary magistrate), sitting in each local justice area. There
are no juries. They have jurisdiction to hear minor criminal cases, as well as certain licensing
appeals. Youth courts are run on similar lines to adult magistrates' courts but deal with offenders
aged between the ages of ten and seventeen inclusive.

The County Court is a national court with purely civil jurisdiction, sitting in 92 different
towns and cities across England and Wales. As of 22 April 2014 there has been a single County
Court for England and Wales where previously there was a series of courts. The County Court is so
named after the ancient sheriff's court held in each county, but it has no connection with it nor
indeed was the jurisdiction of the county courts based on counties.

The Family Court is a national court and has jurisdiction to hear all family cases in England
and Wales. Local jurisdictional boundaries have disappeared and there is only one single
jurisdiction for all family proceedings. The Family Court sits at many locations in England and
Wales, and it usually sits at the County Court centers and magistrate courts where family work was
previously heard by county courts or family proceedings courts. Family Court judges are now more
categories of judges who will be eligible to hear family cases including lay magistrates, district
judges, circuit judges, and High Court judges from the Family Division.

The Supreme Court of the United Kingdom is the final court of appeal for all UK civil cases
and for criminal cases that originate in England, Wales, and Northern Ireland. The Supreme Court
consists of 12 permanent justices who are appointed by the Lord Chancellor, a member of the
cabinet, at the recommendation of an independent commission.

The primary impetus for the creation of an institutionally separate Supreme Court was to
provide a clearer separation of powers between the legislative and judicial branches of government.
[CITATION Geo20 \l 1033 ]

Page 21
APPLICATION 2

Phan (Migration) [2019] AATA 6020 (3 October 2019)

DECISION RECORD
DIVISION: Migration & Refugee Division
REVIEW APPLICANTS: Mrs. Thi Mau Don Phan
Mrs. Nu Ai Linh Tran
DATE: 3 October 2019
PLACE OF DECISION: Sydney
DECISION: The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration,
with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor)
(Class FA) visa: cl.600.211 of Schedule 2 to the Regulations.
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream –
genuine intention to stay temporarily – incentives to stay or return – business and family
commitments, including young child, in Vietnam – planned travel for two weeks, but ‘up to three
months’ the shortest period on application form – review applicant’s other family members’
compliance with visa conditions – decision under review remitted
STATEMENT OF DECISION AND REASONS
Application for review
This is an application for review of a decision made by a delegate of the Minister for Immigration
on 15 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the
Migration Act 1958 (the Act).
The visa applicant is a national of Vietnam, born in December 1985. She made the application for
the Visitor (Sponsored Family) visa on 9 January 2018. The delegate refused to grant the visa on
the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the
applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is
granted. The sponsor (‘the review applicant’) seeks a review of the delegate’s decision.
The review applicants appeared before the Tribunal on 3 October 2019 to give evidence and present
arguments. The Tribunal also received oral evidence from Mr. Vo, the review applicant’s nephew.
For the following reasons, the Tribunal has concluded that the matter should be remitted for
reconsideration.

Page 22
Relevant law
At the time the visa application was lodged, Class FA contained one subclass, Subclass 600
(Visitor), with a number of different streams. In this case, the applicant applied for visa-seeking to
satisfy the primary criteria in the Sponsored Family stream.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration
Regulations 1994 (the Regulations). The issue, in this case, is whether cl.600.211 is met, which
requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in
Australia for the purpose for which the visa is granted, having regard to whether the applicant has
complied substantially with the conditions to which the last substantive visa or any subsequent
bridging visa, held by the applicant was subject; whether the applicant intends to comply with the
conditions to which the Subclass 600 visa would be subject; and any other relevant matter.
In the present case, the visa applicant sought the visa for the purposes of visiting family members,
attending a family function and visiting Australia. These are purposes for which a visa in the
Sponsored Family stream may be granted: cl.600.231.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this
purpose, the Tribunal must consider whether he or she has complied substantially with the
conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).
The Tribunal must also consider whether the visa applicant intends to comply with the conditions to
which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the
circumstances of this case would be subject are as follows (cl.600.612):
8101 – must not work in Australia
8201 – must not engage in study or training in Australia for more than 3 months
8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
8531 – must not remain in Australia after the end of the permitted stay.
Does the visa applicant genuinely intend to stay temporarily in Australia for the purpose for
which the visa is granted?
The review applicant provided to the Tribunal a copy of the primary decision record which contains
the following information.
The visa applicant stated on the application form that she intends to travel to Australia for a period
of up to three months to visit family, attend a cousin’s wedding, see the country and for a holiday.
The delegate noted that the applicant claims to be employed as a director at Van Ba and to have
family commitments – a husband and a minor child – in Vietnam, noting that such work and family
commitments were inconsistent with the proposed duration of stay.
The review applicant provided a written statement to the Tribunal dated 23 February 2018. In it, the
review applicant states that she helped the visa applicant with the form and ticked ‘up to three
months’ box as this was the minimum time specified for the visit. The review applicant states that
when she left Vietnam in 1989 she left her second daughter with relatives and her daughter became
very close with the visa applicant. Now her daughter is getting married and wants to sponsor the
visa applicant and her parents to attend her wedding in Australia. The review applicant states that
the visa applicant is married and has children and has been looking after the family business for the

Page 23
past 10 years, she has a good life in Vietnam, her family, job and a house and will not stay longer
than what the visa allows. The main reason for her visit is to attend the wedding. At the
commencement of the hearing, the review applicant provided to the Tribunal additional materials,
including some personal documents relating to the visa applicant and evidence of visa grant for
other relatives.
In oral evidence, the review applicant told the Tribunal that her daughter was planning to get
married at the time and she wanted to invite her niece for the wedding. The review applicant said
that her daughter was brought up by her sister, so her daughter and her niece, the visa applicant,
were very close together. Although her daughter has now married, the review applicant said she still
wants her niece to visit and look around Australia.
The review applicant said that she had previously sponsored her sister and her sister visited for six
weeks and left the country before her visa expired because they were all busy working and she had
nothing to do. Her other sister sponsored another sibling who also complied with visa conditions.
The review applicant states that everyone in her family had complied with visa conditions.
The review applicant said that her niece’s family owns a shop selling motorized equipment. There
are three to four employees in that shop, so the visa applicant’s husband and other employees can
look after the shop during the visa applicant’s stay in Australia. During her visit, the visa applicant
can sightsee around Sydney and other states if there is time, and she can visit other relatives in
Australia. The review applicant said the visa applicant is ‘reasonably well off’ and can pay for the
airfares while the review applicant said she would pay for other expenses.
The review applicant said that her niece has two houses and a shop and is well off and her family is
in Vietnam. She only wants to visit Australia for a short visit and she has never applied for any
other visa or had been refused any other visa. The review applicant said they ticked the box of ‘up
to three months’ on the form because that was the shortest period.
There is no evidence that the visa applicant had previously held an Australian visa and there is
nothing to suggest that the visa applicant had not complied substantially with the conditions of any
last substantive visa or subsequent bridging visas.
There is nothing to suggest that the visa applicant intends to work or study in Australia. The
Tribunal acknowledges that the intended period of stay is two weeks. While the initial purpose of
the visit is no longer relevant, as the wedding had taken place, the intended purpose is to visit the
relatives in Australia and see the country. The Tribunal is of the view that the intended period of
stay of two weeks is consistent with that stated purpose.
The Tribunal places weight on the fact that the visa applicant’s husband and young child would
remain in Vietnam and this would constitute a strong incentive for her to return to Vietnam. She
also has work commitments, although the review applicant’s evidence is that there are others who
can take care of the business and in such circumstances, the existence of work commitments would
not constitute a significant incentive for the visa applicant to return to Vietnam. The Tribunal
acknowledges that the review applicant and her family had sponsored other relatives to travel to
Australia for visitor visas and their evidence is that everyone had complied with visa conditions and
left the country before the expiry of the visas. The Tribunal accepts that the visa applicant has the
funds to support her travel and stay in Australia.
The Tribunal is satisfied, on balance, that the visa applicant intends to comply with the conditions to
which her visa would be subject. Having considered the totality of the visa applicant’s

Page 24
circumstances, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily
in Australia for the purpose for which the visa is granted. The visa applicant meets cl. 600.211.
DECISION
The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the
direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA)
visa: cl.600.211 of Schedule 2 to the Regulations.

Page 25
 CONCLUSION
For the summary, this article discusses the details of the legal system in the UK. First, the
analysis will clarify the various legal sources, the differences in case law, statutory law and
legislation. The second purpose of the report is to explain government positions in lawmaking, how
laws can be applied in the courts of justice by explaining the court's structure through maps and
case making. Finally, it's arguing how the judge viewed the law when discussing the above issues.

Page 26
References
ATIM LAW FIRM, 2017. ATIM LAW FIRM. [Online]
Available at: http://www.atim.com.vn/en/one-of-the-new-case-law-which-has-been-recently-issued-
firstly-applied-by-the-court.html
[Accessed 9 2 2020].
Georgetown University Law Library, 2020. Georgetown University Law Library. [Online]
Available at: https://guides.ll.georgetown.edu/c.php?g=365741&p=4199181
[Accessed 9 2 2020].
Laws, 2019. Laws. [Online]
Available at: https://common.laws.com/common-law/common-law-v-statutory-law
[Accessed 9 2 2020].
Martin Partington, 2017. Google Books. [Online]
Available at: https://books.google.com.vn/books?
id=WOgmDAAAQBAJ&pg=PA19&lpg=PA19&dq=other+macro+function+of+law+in+uk+The+r
esolution+of+social+problem:&source=bl&ots=2um2WQ4bER&sig=ACfU3U1anLEG9hpD4LoE
Dzw32hoZZolrFw&hl=en&sa=X&ved=2ahUKEwjxr6SIqsTnAhUoE6YKHUNrDp8Q6AEwC
[Accessed 9 2 2020].
Parliament UK, n.d. Parliament UK. [Online]
Available at: https://www.parliament.uk/about/how/role/parliament-government/
[Accessed 9 2 2020].
Todd Coolidge Law Firm, 2018. Todd Coolidge Law Firm. [Online]
Available at: https://coolidgelawfirmaz.com/common-law-v-statutory-law-criminal-defense-
attorney/
[Accessed 9 2 2020].
Administrative Appeals Tribunal of Australia [online]
Available at: <http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/6020.html?
stem=0&synonyms=0&query=vietnam> [Accessed 10 March 2020].

Luatvietphong.vn. 2020. Những Khác Biệt Của Truyền Thống Pháp Luật Common Law Với Truyền
Thống Pháp Luật Việt Nam. [online]
Available at: <https://www.luatvietphong.vn/nhung-khac-biet-cua-truyen-thong-phap-luat-
common-aw-voi-truyen-thong-phap-luat-viet-nam-n9562.html?fbclid=IwAR3-
p7yKApqlC5R7qawKKJsLXTMhWjx4XG2J4x8F3VM5GzwW6Zp1GcK-S4g>
[Accessed 11 March 2020].

Page 27