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sqe 1 - flk 1 > Admin/HR Law > Flashcards

Admin/HR Law Flashcards

1
Q

Under POA 1986, what are the notice requirements for a public procession?

A

Anyone organising the procession must give 6 clear days’ notice of the:
a) Date
b) Time
c) Route of the proposed procession

Failure to give notice results in the organisers committing an offence, but does not render the procession unlawful

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2
Q

What are the defences with regards to processions?

A
  1. Organiser did not know/had no reason to suspect that the notice requirements had not been complied with
  2. Departure from details in notice arose from circumstances beyond the organiser’s control/from something done with agreement of police/by their direction
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3
Q

Under what circumstances do the police have the power to impose conditions on processions?

A

If the march will result in:

  1. Serious public disorder/damage to property/disruption to life of community
  2. Serious disruption to activities of something carried out in the vicinity of the procession/impact on persons in the vicinity
  3. Purpose of organisers is to intimidate others with a view to compelling them not to do something they have a right to do
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4
Q

What rank of police officer is able to impose conditions on a procession?

A

During procession: most senior police officer present can verbally give conditions

In advance: Chief Constable of relevant police force or Commissioner of Police of Metropolis/City of London

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5
Q

When and how can a procession be prohibited?

A

Chief police officer can do so if they reasonably believe conditions would be insufficient

Must apply to LA who then makes order with Home Secretary’s consent

Orders cannot exceed 3 months

Can ban a class of processions, but cannot ban a specific procession

Order must be in writing

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6
Q

Define a procession

A
  1. To demonstrate support/opposition to views/actions of any person/body of persons
  2. Publicise a cause/campaign
  3. Mark/commemorate an event
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7
Q

What is the general rule with regards to meetings? Are there any exceptions?

A

General rule = no requirement to obtain permission to hold a meeting

Exceptions: Trafalgar Square, Royal Parks, Other Open Spaces Regulations 1997, private land requires the permission of the owner

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8
Q

Define a public assembly

A

Assembly comprising of 2 or more people in public place wholly or partly open to air

The purpose of the assembly is irrelevant

There is NO power to ban a public assembly in advance

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9
Q

Define a trespassory assembly

A

Assembly of 20 or more people held at a place/on land to which the public has no right of access/only has limited right of access

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10
Q

When can a chief police officer ban a trespassory assembly?

A

Must reasonably believe they are intending to hold a trespassory assembly

  1. Without permission of occupier/outside terms of any permission/right of access; and
  2. It may result in serious disruption to life of community/significant damage to land/building/monument which is historical/archaeological/scientific importance
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11
Q

When banning a trespassory assembly, what restrictions are placed on such an order?

A
  1. Cannot last for more than 4 days
  2. Must not apply to an area greater than 5 miles’ radius from a specified centre
  3. LA must obtain Home Secretary’s consent before making the order
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12
Q

Define common law breach of peace and when the police may arrest someone under this offence

A

Act was threatened/done which harmed a person or their property or put that person in fear of such harm being done

Can only arrest if breach has occurred/breach was imminent

Does not carry criminal sanctions

If breach of the peace is relevant, offence of causing harassment/alarm/distress contrary to POA is also likley to be relevant

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13
Q

What is the general rule and exceptions for the rule against delegation?

A

General rule = decision-making powers, once given by Parliament, cannot be further delegated/sub-delegated

Exceptions:

  1. Carltona principle = government ministers can act through civil servants unless it is clear from the wording of the statute that the decision is one for Ministers alone
  2. s 101 LGA 1972: LAs may delegate decision-making powers to committees/individual officers, provided they make a formal resolution
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14
Q

How can a public body fetter their discretion?

A
  1. Acting under the dictation of another
  2. Applying a general policy as to the exercise of discretion in too strict a manner: can formulate own general policy as long as they do not ‘shut their ears’ to individual cases
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15
Q

Define JR ground of dual purpose?

A

Provided the permitted/authorised purpose is the ‘primary’ purpose, decision can stand

Has the unauthorised purpose materially influenced the making of the decision?

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16
Q

Under what circumstances can JR be given for an error of fact?

A

If the error of fact has led to unfairness

4 conditions must be satisfied:
1. Mistake as to an existing fact
2. Fact must be uncontentious and objectively verifiable
3. Person seeking review must not have been responsible for the mistake
4. Mistake must have played material part in decision-maker’s reasoning

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17
Q

Define the JR ground of irrationality

A

Has the decision-maker come to a conclusion that is so unreasonable, no reasonable authority could ever have come to it?

Is it so outrageous in its defiance of logic that no sensible person could have arrived at it?

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18
Q

Define the rule against bias

A

Direct = decision-maker had an interest in financial gain (possible to have a direct interest that is not pecuniary)

Indirect = it is a relative of the decision-maker who has an interest
- Cannot quash decision automatically
- Would a fair-minded, informed observer conclude that there had been a real possibility of bias?

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19
Q

Right to a fair hearing: Define the 3 categories of claimant?

A
  1. Forfeiture = claimant has a lot to lose
    - Should know the case against them and have a right to reply at each stage of the decision-making process
  2. Legitimate expectation = it is legitimate for claimant to expect that an established practice would continue
    a) Procedural: decision-maker has failed to follow normal procedure
    b) Substantive: decision-maker led someone to believe they will receive a benefit
  3. Application = first-time applicant who seeks something they have not previously held
20
Q

What is the general rule for right to reasons?

A

General rule = no duty to give reasons for an administrative decision

Exception = if decision looks aberrant

21
Q

To have a claim for JR under procedural ultra vires, it depends on whether the requirement is mandatory or directory. What are the factors which help determine what type of requirement it is?

A
  1. Extent to which public authority attempted to comply with procedural requirements; and
  2. Whether or not the claimant is substantially prejudiced by non-compliance with an important procedural safeguard
22
Q

What factors are considered when determining whether or not a pressure group has a standing for JR?

A
  1. The need to uphold the rule of law
  2. Importance of the issue raised
  3. Likely absence of any other responsible challenger
  4. Nature of alleged breach of duty
  5. Role of the pressure group
23
Q

What is the time limit for making a JR claim?

A

Must be filed promptly and in any case within 3 months after the ground for the claim first arose

Courts have discretion to extend time limits, but a remedy can be refused if the application was made outside of the time limit

If planning permission has been refused, the time limit for bringing a claim is 6 weeks

24
Q

JR remedies: what prerogative orders are available and what are their effects?

A
  1. Quashing order
    - Nullifies the original decision
    - Court usually remits decision to decision-maker who must reconsider decision in light of court’s judgement
  2. Prohibitory order
    - Orders a public body to refrain from illegal action
  3. Mandatory order
    - Designed to enforce performance by public bodies of their duties
25
Q

JR remedies: what private law/non-prerogative orders are available and what are their effects?

A
  1. Declaration
    - Confirms legal position/rights of parties
  2. Injunction
    - Can obtain an interim as well as final
  3. Damages
    - Will be awarded if damages could have been awarded in civil claim
    - Can be awarded despite a claimant seeking another relief
    - Cannot be awarded just because claimant has a ground of challenge
26
Q

Define absolute, limited and qualified rights under ECHR

A

Absolute = can never be interfered with

Limited = can only be limited in clearly defined situations

Qualified = requires a balance between the rights of individuals with the wider public interest
- If there is a conflict between qualified rights, it must be:
a) Prescribed by law
b) In pursuit of a legitimate aim
c) Necessary in a democratic society

27
Q

Article 2 is the absolute right to life. When can this right be interferred with?

A

The use of force that results in death can be permitted in certain circumstances:

  1. Absolutely necessary
  2. Used either:
    a) In defence of any person from unlawful violence
    b) To effect a lawful arrest/prevent escape of a person from prison
    c) Lawfully taken for the purposes of lawfully quelling a riot/insurrection
28
Q

Article 3 is an absolute right prohibiting torture and inhuman treatment. Define both of these concepts

A

Torture = deliberate inhuman treatment causing very serious and cruel suffering

Inhuman treatment = likely to cause actual bodily injury or intense physical and mental suffering

29
Q

Article 4 is an absolute right for freedom from slavery. Define forced labour

A

Forced labour = work/service an individual was forced into against their will

30
Q

Article 5 is the limited right to liberty and security. What are the prescribed circumstances when this right can be infringed?

A
  1. Sent to prison after convicted of a criminal offence
  2. Arrested/detained to comply with court order
  3. Arrested on reasonable suspicion of/to prevent committing an offence
  4. Minor detained for educational supervision
  5. Prevent the spreading of infectious disease/someone who is mentally ill
  6. Connection with asylum/deportation/extradition
31
Q

Define Article 6

A

Absolute right to fair trial
- Limited in relation to trial being public

32
Q

Define Article 8

A

Qualified right to respect for private and family life

33
Q

Article 9 is an absolute right to freedom of thought, conscience and religion, but the right to manifest religion/belief is qualified. Explain the effect of this right being qualified

A

Workplace: discreet displays of religion are permitted, unless it would injure someone

Schools: possible for schools to act proportionately in refusing someone to wear religious clothing

34
Q

Define Article 10

A

Qualified right to freedom of expression

Protects offensive, shocking or disturbing speech
- Outright racist speech is not protected

35
Q

Define Article 11

A

Qualified right to freedom of assembly and association

Assembly must be peaceful
- Must show a substantial objective justification for byelaws restricting this right

Association
- Banning political parties can be disproportionate unless the model of society promoted would undermine the basis of ECHR

36
Q

What is the test of proportionality if a qualified right is interfered with?

A
  1. The objective measure complained of is sufficiently important to justify the limitation of a fundamental right
  2. Measure is rationally connected to the objective
  3. Could a less intrusive measure have been used?
  4. Has a fair balance been struck between rights of individuals and interests of community
37
Q

Define Article 1 of Protocol 1

A

Protection of property

Will be engaged where the interference affects the financial value of the property

Action must be lawful and necessary for public interest

Crucial factor is availability of compensation

38
Q

Define Article 2 of Protocol 1

A

Right to education

State shall respect rights of parents to ensure education/teaching is in conformity with their own religious/philosophical convictions

Schools can use admission policies if they are objective and reasonable

39
Q

Define Article 12

A

Absolute right to marry
- Subject to national laws on marriage

Does not require states to recognise same-sex marriage

40
Q

Define Article 3 of Protocol 1

A

Absolute right to free elections

Prisoners do not have the right to vote, but those released on temporary licence/on home detention curfew have right to vote

41
Q

Define Article 3 of Protocol 13

A

Abolition of the death penalty

42
Q

What are the preliminary tests that a claimant must satisfy to have a potential claim for JR?

A
  1. Does the claim raise public law issues/is D amenable to JR (are they a public body)
  2. Does the claimant have a sufficient interest to make the claim?
  3. Has the claimant applied within the time limit (3 months)
  4. Are there any ouster clauses/statutory provisions that affect the claimant’s ability to bring a claim for jR?
43
Q

If there is doubt over whether the decision maker is a public body for the purpose of JR, what test should be applied?

A

Datafin test:

  1. Source of power = if the body making the decision has been set up under statute, then it is a public body
  2. Nature of power = if the body making the decision is exercising a public, governmental function, it may be a public body
    - Only apply this test if the first one fails
44
Q

When can conditions be imposed on a public assembly?

A

To prevent:

  1. Serious public disorder
  2. Serious damage to property
  3. Serious disruption of the life of the community
  4. Purpose is to intimidate others

Same as processions, but there is no requirement to give notice

Police can impose conditions/directions at the time of the assembly but these must be proportionate

45
Q

What are the 2 ways in which proceedings may commence in the ECHR?

A
  1. State application = if a state is in violation of the ECHR, proceedings may be brought against it by another signatory state
  2. Individual petitions:
    a) Must show that they have exhausted domestic remedies
    b) Must be personally and directly victims of the violations
    c) Must apply within 4 months of the final decision
46
Q

What is the 2-stage process of bring a claim before the ECHR?

A
  1. Admissibility stage: no right to appeal against this stage
  2. Merits stage
47
Q

What are some of the key provisions under the HRA 1998?

A
  1. Courts should take into account ECHR judgements, but they are not bound by them
  2. High Court+ can declare legislation to be incompatible with Convention rights, but this does not affect the validity of the Act
    - Such a declaration is aimed at the Minister who introduced the legislation
  3. Unlawful for a public authority to act incompatibly with a Convention right
  4. Claimant can bring proceedings under the Act as long as they are a victim
    - If the claimant is dead, their next-of-kin can bring the claim
  5. Court can award damages where it is necessary to afford just satisfaction

sqe 1 - flk 1 (8 decks)

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