Admin/ const law gaps Flashcards
consolididating vs Codifing statute
A consolidating statute is one which merely re-enacts law previously contained in several different statutes and there is a rebuttable presumption that such a statute does not materially alter the previous law.
A codifying- codifies the law in the particular area it covers by bringing together that previously contained in three different pieces of legislation and in common law decisions, as well as modifying some aspects of the latter.
statutory interperation types: 5
Extrinsic- outside law- Interpretation Acts, a dictionary or other statute.
Intrinsic- inside law- in the statute itself, eg title/ interp.
Golden rule- when there is ambiguity in the meaning of a word, chose the logical defn.
Mischief rule- seek to interp in line iwtht he problem the law fixed
Eiusdem Generis- rule of language to interpret a general term alongside more specific terms listed in the statute
the literal rule is where the words are given their plain, ordinary and literal meaning
Precedent levels and types for ruling
Supreme court
Court of appeal- all lower courts, normally bind itself exepct:
- per incannum carelessness,
- incompatbale with supreme court explicit or explicit
- where previous decision is conflicting
High court- not binding for first case , binding fro appeal cases
county and magistrate- bind no one, but strongly pursuasive
Types of ruling
apply( follow precedent) ,
overrule( stepover a previous decision as bad law),
reverse( in same case, change decision),
dinstinguehed ( not followed but not overruled as the facts are different)
Affirm- agree with the appeal from lower court
will courts rule on how government use perogrative power
new pre powers cant exist.
powers to review is limited- can determine if the power existed cannot review its exercise.
-int treaties
control of armed forces
defence of the country
disolving parliment
mercy/ pardon
public honours
Appeals type
no rifght to appeal need permission. at the hearing or higher court
Point of law- review of in legal principle ( only look at process no facts of case)
Point of fact - error in findings of evidence ( need clear error)
Case stated- law and facts stated
Civil appeals process
No right of appeal, must ask permission.
Can ask oral permission in current court, orpaper application to appeal court Form N161 within** 21 days (28 days for COA)**, served withing 7 days of filing on other side.
Reasons applicable for appeal:
1) real prospect of success or
2) there is some other compelling reason for the appeal to be heard
COA- and important point of principle or practice- must have
Grounds for appeal:
show trial court was either:
wrong on law or interp of facts or exercise of discretion
unjust because of serious procedural irregularity in proceedings.
Whats in trial bundle
Claimant makesit. 7-3 days before start of trial
Claim forma nd State of case
cas esummary and chronology I/A
requests and responses
Wittness statements
Notice of intent to use hearsay evidence
Expert reports
Directions orders
any other necessary doc with evidence
Criminal Appeal
Automatic right to appeal in crim cases
from mag 21 days to appeal
D can appeal against conviction or stentence/ both to crown court
Case stated -From mag- ‘case stated’ goes to Admin court KBD High court, 2 judges ( not crown)
Prosecution can appeal on case stated goes to admin KBD
From Crown court:
Leave is req, or trial judge will cert as fit for appeal. 28 days limit to appeal
need permission from tiral judge or court of appeal.
Grounds needed- conviction unsafe ( error of law, material irregularity or new evidence)
can also appeal agaisnt sentence if excessive.
to supreme court:
from admin court or court of appeal
need perm from court in or SC itself. 28 days to apply.
right to appeal- execptional case and gen pub importance
Heriarchy of court officers
Lord chief justice- head of criminal justics and all courts
Master of rolls- head of civil justic
Jusitce of Supreme court
Head of KBD/ Fam HC/ Chancery HC
Lord Justice of appeal- COA
High court judge- HC
Circuit judge (10 yr) and Recorder (7yr)- County/fam /crown 7
district judge- county/ fam/ mag, (5 yr)
Magistrate- no legla qual/ mag court
What can court do if unclear about a provision of the WA from the EU
UK courts are still able (may) to make references to the CJEU concerning the citizens’ rights provisions in the Withdrawal Agreement for eight years from the end of the transition period; i.e. until 31 December 2028
Which prevails in a conflict between a UK Act of Parliament and a provision of assimilated EU law?
Act of Parliament prevails over assimilated EU law, even if the Act predates the assimilated legislation. This change occurred after the Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023), which terminated the supremacy of EU law in the UK.
Pub vs tresspassory assembly
public : assembly of two or more persons in a public place that is wholly or partly open to the air. banning: Assemblies likely to cause serious disruption to the life of the community.
cannot ban stationary static demonstrations- only processions
Tresspassory- 20 or more persons intended to be held on land where the public has no right of access or only a limited right of access.
The Chief Officer applies to the local authority for a banning order. >Home sec approval required. or no more than 4 days and within a 5-mile radius of area
banning if:
without the permission of the occupier or outside the terms of any permission or right of access; and
Assemblies likely to result in significant damage to land, buildings, or monuments of historical or scientific importance.
can someone challenge Parliment statements by mps
Absolutely privilidged. immunie to civil and cirminal proceedings.
art9 BOR 1689-freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament
HRA absolute 3, limited 2 and qualified 4
Absolute: 2(1): Right to Life (in limited circumstances, exceptions for lawful killing in armed conflict).
3: Prohibition of Torture (no derogation permitted).
4: Prohibition of Slavery and Servitude (absolute prohibition).
7: No Punishment Without Law
Limited rights:estricted only in specific situations outlined in the Convention.
5: Right to Liberty and Security (e.g., lawful detention).
6: Right to a Fair Trial (can be limited by procedural laws for specific cases eg national security).
qualified:Restricted to protect public safety, public order, or the rights of others, subject to proportionality and legality.
8: Right to Respect for Private and Family Life.
9: Freedom of Thought, Conscience, and Religion.
10: Freedom of Expression.
11: Freedom of Assembly and Association.
scottish parliment Can amment acts of parliment?
has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside the legislative competence of the Scottish Parliament.
Acts of the UK Parliament are not in themselves reserved matters
