All the other crap Flashcards
What is involved in proportionality?
= state action must be justified
- must be suitable to achieve aims
- weighing and balancing of competing interests
Where is the authority for Proportionality?
Art 5(4) TEU as a general principle of EU law
How do the EctHR interpret proportionality?
Whether an infringement of a qualified right is ‘necessary in a democratic society’
What sort of infringements does proportionality effect?
Infringements of EU law, not yet stand along ground of review for domestic law although seems to be a emerging one
What makes this the most far reaching and therefore controversial ground of review?
In some ways it looks at the merits of the decision.
What do situations would see proportionality in UK courts?
- challenges to UK public authority on grounds of breach of EU law
- Claim for JR might question decision of EU institution : require reference to ECJ
When would proportionality arise in the EU?
JR of EU institutions by ECJ
Where is the proportionality test set out in EU law?
R v Minister of Agriculture, Fisheries and Food, ex parte Fedesa [1990]
Essentially what is the Fedesa test for proportionality?
That it is only illegal if it is manifestly inappropriate
Elements of the Fedesa test?
- appropriate and necessary
- objectives legitimate
- least onerous option
- not disproportionate
De Burca lays out the test in which 3 questions?
1) is the measure suitable to achieve a legitimate aim?
2) is the measure necessary to achieve that aim?
3) Does the measure have an executive effect on the applicants interest?
What sections of the HRA 1998 bring proportionality into domestic law?
- s 6(1)
and
s2(1)
What does section 6(1) of the HRA say?
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
What does s2(1) of the HRA say?
UK courts ‘must take into account’ decisions of ECtHR so far as “it is relevant to the proceedings”
What is the Ullah principle?
That it is the duty of national courts to keep pace with the decisions of Strasbourg, no more and no less.
What case gives guidance on when the ECHRA/HRA is engaged?
Bank Mellat v Her Majesty’s Treasury No 2
by Lord Sumption
What was said in the case of Bank Mellat v Her Majesty’s Treasury (no2) by Lord Sumption?
Lord Sumption:
analysis factual case to see:
- was objective sufficiently important to justify limitation
- rationally connected to objective
- could less intrusive means be used
- was there a fair balance between right of individual and good of the community
Which case suggests that proportionality exists out with EU law as a UK common law ground?
R (Alconbury Developments Ltd and Others) v SoS for the Enviroment, Transport and the Regions (2001)
Which Lord in R (Alconbury Developments Ltd and Others) v SoS for the Enviroment, Transport and the Regions (2001) suggested proportionality exists as a common law ground?
Lord Slynn: exists for EU law but also with acts subject to domestic law
NOT PART OF THE RATIO, SUGGESTION ONLY
What other case suggests that the heightened scrutiny test suggested in Smith should be ignored in fa your of common law proportionality?
R (Daly) v SoS for the Home Department 2001
What were the facts of R (Daly) v SoS for the Home Department 2001?
That a prisoner took a case against the prison for reading his letters as they were to his solicitor and therefore argued it went against his right to legal advice.
What is the main feature of proportionality R (daly) v SoS for the Home Department suggests should be used?
- reviewing whether interests were balanced
What case highlights the advantages of proportionality?
Kennedy v Charity Commissioner (2014)
What did Lord Mance say in Kennedy v Charity Commissioner?
- same as unreasonableness as weighs and balances with reference to the context.
- proportionality is a more structured and stable means of review.
What is the most important case and most recent for suggesting the emergence of proportionality into UK law?
Pham v Home Secretary (2015)
What were the facts of Pham v Home Secretary (2015)?
Vietnamese national getting UK citizenship taken away, at the same tim Vietnam said he had no nationality with them.
He said EU law prevented him becoming stateless as his EU citizenship was at stake
What does Lord Mance say in Pham v Home Secretary?
That proportionality be both available and useful as a domestic ground of review.
What limitations to proportionality does Lord Mance underline in Pham v Home Secretary?
- context still determines intensity of review
- judicial restraint not the test itself determines how far it goes.
Arguments against proportionality?
- too potent a weapon
- puts judges into role of assessing merits
- should we really have both Wednesbury and proportionality? Or get rid of one or another?
3 Sources of Rights in the UK
- Common law
- Convention and HRA
- EU Charter of Fundamental Rights
Examples of common law rights
- confidential legal advice
- freedom of expression
- access to the courts
The meaning of anxious scrutiny is given in which two cases?
R v Ministry of Defence ex part Smith (1996)
and
R v Secretary of State for the Home Department Ex p Brind 1991
What is said on the matter of courts approach to rights in R v Ministry of Defence ex part Smith 1996?
- that it means courts won’t be very deferential:
- they will not over look minor flaws
What does the case of R v Secretary for the Home Department ex p Brind (1991) say about courts approach to rights cases?
- close scrutiny where concerns interference of a fundamental right.
- would a reasonable SoS reasonably have made same decision.
What is importance about exp Brind and exp Smith?
Both are pre HRA but after signing ECHR
What does R v SoS for the Home Deparment ex part Brind (1991) say about what needs to be present when an infringement of a right occurs?
- must be justifiable so but be sound reasons presented.
What does R v Ministry of Defence ex parte Smith (1996) say needs to have with larger inferences?
The larger the interference the greater the justification the court will require before it is satisfied the decision is reasonable
Common law should be recongised distinctly even when reaching same goal as convention
Lord Cook
R (Daly) v SoS for the Home Department (2010)
Anxious scrutiny a step toward proportionality?
- both to be used on rights based claims
- both involve high level of scrutiny
What common law grounds of review are now also covered by s6(1) of the HRA?
- irrationality
- illegality
- irregularity
How do you argue a s6(1) case?
- base JR on s6(1) saying it has been breached
- then show what convention right is breached
Remember the Bank Mellat v Her Majesty’s Treasury (2013) test
- sufficiently important
- rational connected to objective
- least intrusive
- fair balance
Proportionality in domestic law use…
Pham
Proportionality in ECHR or HR use…
Bank Mellat
Proportionality in other EU Law use…
Fedesa
Common law often extends beyond the convention
Simm and Daly
Authority for legitimate expectation being a thing
Nadarajah v Sos for the Home Department 2005
What did Nadarajah v SoS for the Home Department 2005 say when defining legitimate expectations?
- where promise or practice exists that proposes how they are going to act the law requires this to be honoured unless there is good reason not to
Principle behind legitimate expectation
Nadarajah v SoS for the Home DEPARTMENT (2005)
Fairness
+ requirement of good admin (bodies should deal straightforwardly and consistently)
Legitimate Expectations
EU LAW
Legitimate Expectations taken into UK law by…
R (Nadarajah) v SoS for the Home Department (2005)
The balance that needs to be struck with legitimate expectations
Institutional autonomy (gov should be able to change policy( v Public Interest (legal certainty + fairness + consistency)
Questions court must ask:
1) What was person entitled to expect
2) What would the Public authority have to do to protect this expectation?
What two strands follow the question : what was it legitimate for them to expect?
1) Practice/ promise
2) Reliance/ knowledge
If they have a legitimate expectation what question must follow?
Have they acted in reliance of this expectation e.g. structured their lifes, spent money
What other sub question must you ask for legitimate expectation?
Did they have fully knowledge of the promise/ practice?
What would the authority have to do to protect expectation?
- depends on if procedural or substantive expectation
Key case for establishing legitimate expectation?
GCHQ
Where does the GCHQ case say legitimate expectation arises?
Where something had previously been allowed to be enjoyed and there is legitimate expectation for this to continue, need rational grounds for withdrawing it
Substantive legitimate expectation: GCHQ
- received assurances from the decision maker
General practice unlikely to give rise to substantive legitimate expectation because…?
- specifcity required
- direct at some group or individual
- policy’s continuance assured
Specificity, narrow group and assurance of continutation can be seen to be needed by which case?
R (Niazi) v SoS for the Home Department (2008)
What quality does the representation/ assurances need to be?
- clear
- unambiguous
- devoid of qualifications
What case tells us assurances must be clear, unambiguous and devoid of qualifications?
R v Inland Revenue Commissioners ex parte MFK Underwriting Agencies 1990
Detrimental reliance is almost always needed for legitimate expectation
R v Secretary of State for Education and Employment ex part Begbie 2000
(not make or break but very convincing)
Does the requirement in Scotland and England differ when it comes to knowledge of the expectation?
Yes.
What is the position regarding knowledge in England?
No need for knowledge. Consistency is the key.
R (Rashid) v SoS of the Home Department 2005
What case gives the position in Scotland for knowledge?
DM v SoS for the Home Department 2014
What does DM v SoS for the Home Department say on the requirement of knowledge?
Essential to have knowledge
Does a clear unambiguous representation mean legitimate expectation automatically occurs?
No. All circumstances must be considered
R v SoS for Education and Employment ex part Begbie (2000)
Case where told she could continue on at school until 18 the policy changed.
Is everything justifiable under pursuit of fairness?
Some things will always be deferred.
R (Wheeler) v Office of the PM 2008
- QU OF REFERENDUM TOO POLITICAL SO COURT WOULDN’T GO TERE
Right to make representation?
Only if legitimate procedural expectation
- Schmidt v SoS for Home Affairs 1969
Interest of good admin to follow a promised procedure unless it interferes with statutory duty
Attorney- General of Hong Kong v Ng Yuen Shiu (1983)
Key case for looking at substantive legitimate expectations
R v North and East Devonshire Health Authority , ex parte Coughlan (2001)
Introduces legitimate expectation of consultation
R v North and Est Devonshire Health Authority ex part Coughlan 2001
Where substantive expectation exists the court will stop looking at unreasonableness and start looking at what?
Whether to do anything but the expectation will amount to an abuse of power
R v North and East Devonshire Health Authority ex part Coughlan (2001)
What counts a s good reason to depart from legitimate expectation?
- where it is their legal duty to take another course of action
- proportionate response
- legitimate aim
What case and judge was this?
LJ Laws,
Nadarajah v SoS for the Home Department 2005
Kennedy v Charity Commission (Sos for State ect.)
- journalist made request for freedom of info
- protected under freedom of information act s 32(2)
- Decided that statute intended a full exception but that any arguments made under Art 10 could be made under common law principles of openness and transparency.
Pham: reasonableness/ proportionality?
Lord Mance saw no difference between EU proportionality test and domestic test of reasonableness in this case.
Recent expansions of reasonableness have incorporated elements of proportionality.
Adams v Scottish Ministers 2004
challanged on grounds that it went beyond the legislative competence of the Scottish Ministers
R v Ministry of Defence ex part Smith on wednesbury unreasonableness
must be beyond the scope of decisions open to a reasonable deacons maker
- When rights are concerned scrutiny more intense.
