Authorities Flashcards
Flexibility of the UK Constitution >
Imposed limitations on the Crown’s powers to interfere with Parliament. Strengthened Parliament’s Powers.
Bill of Rights 1689
Flexibility of the UK Constitution >
Bill of Rights 1689 impact
Imposed limitations on the Crown’s powers to interfere with Parliament. Strengthened Parliament’s Powers.
Flexibility of the UK Constitution >
Parliament Acts 1911 and 1949
Enabled Legislation to be enacted in some circumstances, without the consent of the House of Lords
Flexibility of the UK Constitution >
Enabled Legislation to be enacted in some circumstances, without the consent of the House of Lords
Parliament Acts 1911 and 1949
Flexibility of the UK Constitution >
European Communities Act 1972
Incorporated EU Law into the UK Legal system
Flexibility of the UK Constitution >
Incorporated EU Law into the UK Legal system
European Communities Act 1972
Flexibility of the UK Constitution >
Scotland Act 2016, Wales Act 2017, Northern Ireland Act 1988
Devolved power away from the Westminster Parliament to Scotland, Wales, Northern Ireland respectively.
Flexibility of the UK Constitution >
Devolved power away from the Westminster Parliament to Scotland, Wales, Northern Ireland respectively.
Scotland Act 2016, Wales Act 2017, Northern Ireland Act 1988
Flexibility of the UK Constitution >
Human Rights Act 1998
Incorporated the European Convention on Human Rights (ECHR) into UK law
Flexibility of the UK Constitution >
Incorporated the European Convention on Human Rights (ECHR) into UK law
Human Rights Act 1998
Argument for Case law being FOR the UK’s flexible constitution.
By nature, is flexible, because decisions in cases reflect the large amounts of discretion that judges/courts have in deciding cases, and therefore also reflect the changing social, economic, political and moral standards of society.
What three ways does Case law alter, add to and impact upon the UK constitution?
- Judicial Interpretations of statutes
- Development of the Common Law
- Judicial Review
Ex parte Factortame
Judges in their interpretation of Acts of Parliament may make decisions that add new concepts to or clarify areas of our constitution.
- The HoL effectively suspended the operation of an Act of Parliament in conflict with EU Law
Judges in their interpretation of Acts of Parliament may make decisions that add new concepts to or clarify areas of our constitution.
- The HoL effectively suspended the operation of an Act of Parliament in conflict with EU Law
Ex parte Factortame
Development of the common law (6 stages)
i. Residual Freedom
ii. Actions of the state need legal authority
iii. Legal disputes are to be resolved by the judiciary
iv. Habeas Corpus and Individual Liberty
v. Right to a fair hearing
vi. Parliamentary Supremacy
Development of the common law > ii. Actions of the state need legal authority
Entick v Carrington
Entick v Carrington
Development of the common law > ii. Actions of the state need legal authority
Development of the common law >
iii. Legal disputes are to be resolved by the judiciary
Case of Prohibitions (Prohibitions del Roy) (1607)
Case of Prohibitions (Prohibitions del Roy) (1607)
Development of the common law >
iii. Legal disputes are to be resolved by the judiciary
Art.5 HRA 1998 (now enshrined in statute)
Development of the common law >
iv. Habeas Corpus and Individual Liberty
The right of an individual to mount a legal challenge against unlawful detention by the state
Development of the common law >
iv. Habeas Corpus and Individual Liberty
The right of an individual to mount a legal challenge against unlawful detention by the state
Art.5 HRA 1998 (now enshrined in statute)
Development of the common law > v. Right to a fair hearing
Art.6 HRA 1998
Art.6 HRA 1998
Development of the common law > v. Right to a fair hearing
Development of the common law >
vi. Parliamentary Supremacy
Courts cannot question the validity of an Act of Parliament
Enrolled Act Rule
Enrolled Act Rule
Development of the common law >
vi. Parliamentary Supremacy
Courts cannot question the validity of an Act of Parliament
What are Constitutional Conventions?
Rules of constitutional behaviour in the UK that are not legally enforced, yet are considered binding
Constitutional Conventions >
Peter Mandelson
Resigned due to personal misconduct
Constitutional Conventions >
Baroness Warsi
Resigned to publicly oppose government policy
Constitutional Conventions >
Salisbury Convention
The House of Lords will not oppose the second or third reading of Government legislation that was directly promised in an election manifesto
Constitutional Conventions >
Sewel Convention
The Westminster Parliament will not normally legislate on devolved issues without the consent of the Parliament with the devolved power.
What is the Royal Prerogative?
It refers to the powers which were once exercised by the Monarch, and today legally remain at the hands of the crown, yet for the most part are today exercised by the executive on the monarch’s behalf.
Areas which fall within the Royal Prerogative
- Foreign affairs
i. Making international treaties
ii. Declarations of war and deployment of troops overseas
iii. Recognition of foreign states - Domestic Affairs
i. Giving of Royal Assent to bills (by Queen/Monarch)
ii. Summoning of Parliament (following the Fixed-term Parliament Act 2011, the power to dissolve Parliament is no longer an aspect of the Royal Prerogative.) and
iii. Appointment and Dismissal of government Ministers, including the Prime Minister
Arguments against the UK’s high degree of flexibility (3)
- Statute Repeal is practically difficult
- Statute enactment is slow
- Constitutional Conventions are deep rooted
Arguments against the UK’s high degree of flexibility > Statute Repeal is practically difficult >
The withdrawal of fundamental rights and civil liberties would likely provoke political and social turmoil in the UK
HRA 1988
Arguments against the UK’s high degree of flexibility > Statute Repeal is practically difficult >
The reassertion of Westminster’s rights to legislate for Scotland, Wales and Northern Ireland would be, politically speaking, almost impossible.
Scotland (2016), Wales (2017) and Northern Ireland Acts (1988)
Arguments against the UK’s high degree of flexibility > Statute enactment is slow >
Examples that illustrate protracted and drawn out process of constitutional change.
HRA 1988 and the reform of the House of Lords
Separation of Powers authority?
Montesquieu
Montesquieu’s definition of separation of powers
A political theory that identifies three branches of the state and argues that to prevent arbitrary government, these branches should be kept apart, with separate functions and personnel. These branches are:
- The Legislature
- The Executive
- The Judiciary
What do the Legislature do?
Makes the Law
Queen, HoL, HoC
What do the Executive do?
Implements the Law (Queen, PM, Govt Ministers, Civil Service, Army, Police)
What do the Judiciary do?
Resolves disputes about the law (the Queen, judges, magistrates)
Who are the two authorities for the two schools for and against the separation or powers?
FOR - Duport Steels v Sires
AGAINST - Hilaire Barnett (Constitutional and Administrative Law, 2009)
What is Hilaire Barnett (Constitutional and Administrative Law, 2009) Argument against the separation of powers?
AGAINST the existence of separation of powers in the UK
“the separation of powers is neither an absolute nor a predominant feature in the UK constitution.”
What is Duport Steels v Sires argument against the separation of powers?
FOR the existence of a separation of powers in the UK
“it cannot be strongly emphasised that the UK constitution, though unwritten, is firmly based on the separation of powers.”
The Executive and The Legislature >
For the Separation of Powers >
s.1 HoC Disqualification Act 1975
Members of the civil service, police and army are prevented from holding Parliamentary office. S.2 limits the number of govt ministers who may sit in the HoC to 95
The Executive and The Legislature >
For the Separation of Powers >
Members of the civil service, police and army are prevented from holding Parliamentary office. S.2 limits the number of govt ministers who may sit in the HoC to 95
s.1 HoC Disqualification Act 1975
The Executive and The Legislature >
For the Separation of Powers >
Gives legal effect to any resolution by Parliament that a treaty should not be ratified.
Constitutional Reform and Governance Act 2010
The Executive and The Legislature >
For the Separation of Powers >
Constitutional Reform and Governance Act 2010
Gives legal effect to any resolution by Parliament that a treaty should not be ratified.
The Executive and The Legislature >
Against the Separation of Powers >
Lord Hailsham
The UK system of Government is an ELECTIVE DICTATORSHIP
The UK system of
The Executive and The Legislature >
Against the Separation of Powers >
Government is an ELECTIVE DICTATORSHIP
Lord Hailsham
The Executive and The Judiciary >
For the Separation of Powers >
Government Ministers involve in Justice have a duty to uphold and protect the independence of the judiciary and mustn’t seek to influence judicial decisions.
Constitutional Reform Act 2005 s.3
The Executive and The Judiciary >
For the Separation of Powers >
Constitutional Reform Act 2005 s.3
Government Ministers involve in Justice have a duty to uphold and protect the independence of the judiciary and mustn’t seek to influence judicial decisions.
The Executive and The Judiciary >
For the Separation of Powers >
R (Miller) v Secretary of State for Exiting the European Union
Lord Chancellor has been criticised for failing to comply with s.3 following the media criticism on the judiciary in the decision in Miller.
- The chancellor is no longer the head of the judiciary and no longer appoints judges
The Executive and The Judiciary >
For the Separation of Powers >
Lord Chancellor has been criticised for failing to comply with s.3 following the media criticism on the judiciary in the decision in Miller.
- The chancellor is no longer the head of the judiciary and no longer appoints judges
R (Miller) v Secretary of State for Exiting the European Union
The Executive and The Judiciary >
For the Separation of Powers >
CRA 2005
Security of Tenure exists for Senior Judges during ‘good behaviour’. To remove a judge, both houses of Parliament must pass a vote and the Queen must then dismiss the Judge
The Executive and The Judiciary >
For the Separation of Powers >
Security of Tenure exists for Senior Judges during ‘good behaviour’. To remove a judge, both houses of Parliament must pass a vote and the Queen must then dismiss the Judge
CRA 2005
The Executive and The Judiciary >
For the Separation of Powers >
has limited quasi-judicial functions of the executive. E.g. the home secretary can no longer determine the tariff for Life Sentences (ex p Anderson)
Art.6 ECHR
and ex p Anderson
The Executive and The Judiciary >
For the Separation of Powers >
Art.6 ECHR
(and ex p Anderson)
has limited quasi-judicial functions of the executive. E.g. the home secretary can no longer determine the tariff for Life Sentences (ex p Anderson)
The Executive and The Judiciary >
Against the Separation of Powers >
The Judiciary were accused of making political decisions, forcing a change in the law
Belmarsh Case
The Executive and The Judiciary >
Against the Separation of Powers >
Belmarsh Case
The Judiciary were accused of making political decisions, forcing a change in the law
The Judiciary and The Legislature >
For the Separation of Powers >
s.1 HoC Disqualification Act 1975
Judges cannot sit as MPs.
The Judiciary and The Legislature >
For the Separation of Powers >
Judges cannot sit as MPs.
s.1 HoC Disqualification Act 1975
The Judiciary and The Legislature >
For the Separation of Powers >
Parliamentary Privilege
MPs are not liable for statements made in Parliament
The Judiciary and The Legislature >
For the Separation of Powers >
MPs are not liable for statements made in Parliament
Parliamentary Privilege
The Judiciary and The Legislature >
For the Separation of Powers >
The sub-judice rule
MPs refrain from discussing current court cases
The Judiciary and The Legislature >
For the Separation of Powers >
MPs refrain from discussing current court cases
The sub-judice rule
The Judiciary and The Legislature >
For the Separation of Powers >
Constitutional Reform Act 2005
a) Lord Chancellor is no longer the speaker for the House of Lords
b) Replacement of the Law Lords (used to be part of Parliament)
The Judiciary and The Legislature >
For the Separation of Powers >
a) Lord Chancellor is no longer the speaker for the House of Lords
b) Replacement of the Law Lords (used to be part of Parliament)
Constitutional Reform Act 2005
The Judiciary and The Legislature >
Against the Separation of Powers >
Legislative Theory
Judges play a significant role in making the law by interpreting statute
The Judiciary and The Legislature >
Against the Separation of Powers >
Example of Legislative Theory in Action
R v R
Introduced the possibility of rape in marriage
The Judiciary and The Legislature >
Against the Separation of Powers >
Judges play a significant role in making the law by interpreting statute
- Legislative Theory
The Judiciary and The Legislature >
Against the Separation of Powers >
R v R
Introduced the possibility of rape in marriage
Example of Legislative Theory in Action
The Judiciary and The Legislature >
Against the Separation of Powers >
2. Supreme Court
Is made up of Law Lords, who also have a seat in the House of Lords (for the time being anyway)
The Judiciary and The Legislature >
Against the Separation of Powers >
Is made up of Law Lords, who also have a seat in the House of Lords (for the time being anyway)
- Supreme Court
The Judiciary and The Legislature >
Against the Separation of Powers >
R (on the application of Jackson and others) v HM Attorney-General
Suggested in obiter that they could be prepared to strike down any legislation that infringed the rule of law
The Judiciary and The Legislature >
Against the Separation of Powers >
Suggested in obiter that they could be prepared to strike down any legislation that infringed the rule of law
R (on the application of Jackson and others) v HM Attorney-General
The Judiciary and The Legislature > Conclude
A separation of powers between the judiciary and the legislature does exist, however, there is a creeping interference between the two and the judiciary does have a legislative function
Parliamentary Supremacy > AV Dicey
PS is the principle that:
a) Parliament is the supreme law-making body, and can ENACT OR REPEAL LAWS ON ANY SUBJECT
b) No Parliament may be bound by a predecessor nor bind its successor (i.e. law cannot be entrenched)
c) No other person/body can question an Act of Parliament
Parliamentary Supremacy > Origins
- Common Law Doctrine developed by judges
- The 17th Century struggle for supremacy between the Crown and Parliament which culminated in the Bill of Rights 1689, Art.9 and the Enrolled Act Rule
Parliamentary Supremacy > Traditional Schools Argument
The traditional school, presented by AV Dicey, presents very forceful arguments that Parliamentary Supremacy remains intact.
The traditional school, presented by AV Dicey, presents very forceful arguments that Parliamentary Supremacy remains intact.
Parliamentary Supremacy > Traditional Schools Argument
Parliamentary Supremacy > New Schools Argument
Steyn in R v Jackson.
Embodies a new school, “the classic account given by Dicey can now be seen as OUT OF PLACE in the UK”
Statutory Support for the New Schools Argument against Parliamentary Sovereignty
(particularly in ECA 1972, HRA 1988, Acts of Devolution, Union and Referendum)
For the Supremacy of Parliament >
Act of Settlement 1701
Establishing the independence of the Judiciary
For the Supremacy of Parliament >
Establishing the independence of the Judiciary
Act of Settlement 1701
For the Supremacy of Parliament >
European Communities Act 1972
Incorporating EU law into the UK
For the Supremacy of Parliament >
Incorporating EU law into the UK
European Communities Act 1972
For the Supremacy of Parliament >
Madzimbamuto v Lardner-Burke
Statute overrode the convention of not legislating for a former colony
For the Supremacy of Parliament >
Statute overrode the convention of not legislating for a former colony
Madzimbamuto v Lardner-Burke
For the Supremacy of Parliament >
Fixed-Term Parliament Act 2011
Removes the power of the crown to override Parliament
For the Supremacy of Parliament >
Removes the power of the crown to override Parliament
Fixed-Term Parliament Act 2011
For the Supremacy of Parliament >
Crown Proceedings Act 1947
Removed immunity of the crown for claims in tort
For the Supremacy of Parliament >
Removed immunity of the crown for claims in tort
Crown Proceedings Act 1947
For the Supremacy of Parliament >
Fixed-Term Parliament Act 2011
Removes the power of the monarch to resolve parliament by requiring Parliament sit for a five-year term
For the Supremacy of Parliament >
Removes the power of the monarch to resolve parliament by requiring Parliament sit for a five-year term
Fixed-Term Parliament Act 2011
For the Supremacy of Parliament >
Attorney-General v De Keyser’s Royal Hotel
The Defence Act had not abolished prerogative power, but had it put into abeyance
For the Supremacy of Parliament >
The Defence Act had not abolished prerogative power, but had it put into abeyance
Attorney-General v De Keyser’s Royal Hotel
For the Supremacy of Parliament >
R v Secretary of State for the Home Department (ex p Fire Brigades Union)
Act of Parliament prevented prerogative being used
For the Supremacy of Parliament >
Act of Parliament prevented prerogative being used
R v Secretary of State for the Home Department (ex p Fire Brigades Union)
For the Supremacy of Parliament >
R (Miller) v Secretary of State for exiting EU
The Supreme Court found that the European Communities Act 1972 was inconsistent with the exercise by government ministers of any prerogative power to withdraw from the EU treaties. The withdrawal, in this case via Art.50, would need consent of Parliament
For the Supremacy of Parliament >
The Supreme Court found that the European Communities Act 1972 was inconsistent with the exercise by government ministers of any prerogative power to withdraw from the EU treaties. The withdrawal, in this case via Art.50, would need consent of Parliament
R (Miller) v Secretary of State for exiting EU
For the Supremacy of Parliament >
Cheney v Conn
Tax statute prevailed over the Geneva Convention
For the Supremacy of Parliament >
Tax statute prevailed over the Geneva Convention
Cheney v Conn
For the Supremacy of Parliament >
War Damage Act 1965 and Burmah Oil Co v Lord Advocate
Crown not liable for previous war damage
For the Supremacy of Parliament >
Crown not liable for previous war damage
War Damage Act 1965 and Burmah Oil Co v Lord Advocate
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
Ellen Street Estates v Minister of Health
A later statute will impliedly repeal an earlier one where their content is inconsistent
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
A later statute will impliedly repeal an earlier one where their content is inconsistent
Ellen Street Estates v Minister of Health
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
Thoburn v Sunderland City Council
LIMITS TO THE DOCTRINE
“ordinary statutes may be impliedly repealed. Constitutional statutes may not.”
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
LIMITS TO THE DOCTRINE
“ordinary statutes may be impliedly repealed. Constitutional statutes may not.”
Thoburn v Sunderland City Council
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
H v Lord Advocate
Endorses above view in Thoburn:
LIMITS TO THE DOCTRINE
“ordinary statutes may be impliedly repealed. Constitutional statutes may not.”
For the Supremacy of Parliament > The Doctrine of Implied Repeal >
Who Endorses above view in Thoburn?
H v Lord Advocate
For the Supremacy of Parliament >
R (HS2 Alliance Ltd) v Secretary of State for Transport (obiter)
Where EU conflicts with the UK’s constitutional law, constitutional principles cannot be overridden without unequivocal evidence of Parliamentary intention to do so.
For the Supremacy of Parliament >
Where EU conflicts with the UK’s constitutional law, constitutional principles cannot be overridden without unequivocal evidence of Parliamentary intention to do so.
R (HS2 Alliance Ltd) v Secretary of State for Transport (obiter)
For the Supremacy of Parliament >
R (Miller) v Secretary of State for exiting EU
Described the ECA 1972 as having constitutional character
For the Supremacy of Parliament >
Described the ECA 1972 as having constitutional character
R (Miller) v Secretary of State for exiting EU
For the Supremacy of Parliament >
Pickin v British Railways Board
Proceedings in, and Acts of Parliament will not be questioned or invalidated by another (Bill of Rights 1689, Art.9 and Enrolled Act Rule)
For the Supremacy of Parliament >
Proceedings in, and Acts of Parliament will not be questioned or invalidated by another (Bill of Rights 1689, Art.9 and Enrolled Act Rule)
Pickin v British Railways Board
Against the Supremacy of Parliament >
The Manner and Form Debate definition
The notion that Parliament cannot be bound by a previous Parliament is increasingly less certain
Against the Supremacy of Parliament >
Attorney-General for New South Wales v Trethowan
Entrenchment is possible (but only a Privy Council case)
Against the Supremacy of Parliament >
Entrenchment is possible (but only a Privy Council case)
Attorney-General for New South Wales v Trethowan
Against the Supremacy of Parliament >
Manuel v Attorney General
Slade LJ obiter comments – the courts might be willing to enforce/follow such manner and form requirements imposed by earlier acts
Against the Supremacy of Parliament >
Slade LJ obiter comments – the courts might be willing to enforce/follow such manner and form requirements imposed by earlier acts
Manuel v Attorney General
Against the Supremacy of Parliament >
European Act 2011
Before a future government can ratify any Treaty change or any change to the current Treaty (TFEU), they must first hold a referendum unless such change does not involve the transfer of power from the UK to the EU
Against the Supremacy of Parliament >
Before a future government can ratify any Treaty change or any change to the current Treaty (TFEU), they must first hold a referendum unless such change does not involve the transfer of power from the UK to the EU
European Act 2011
Against the Supremacy of Parliament >
Devolution Acts
Scotland 2016, amended the 1988 Act increasing devolution
Wales 2017 mimicked the devolution of Scotland
NI 1998 devolved powers to the Northern Ireland Assembly and created a “power sharing executive”
Against the Supremacy of Parliament >
Scotland 2016, amended the 1988 Act increasing devolution
Wales 2017 mimicked the devolution of Scotland
NI 1998 devolved powers to the Northern Ireland Assembly and created a “power sharing executive”
Devolution Acts
Against the Supremacy of Parliament >
Acts of Independence
Enacted in the 10th Century, have in practical sense, removed the Power of Parliament to legislate for former colonies with any practical effect
Against the Supremacy of Parliament >
Enacted in the 10th Century, have in practical sense, removed the Power of Parliament to legislate for former colonies with any practical effect
Acts of Independence
Against the Supremacy of Parliament >
MacCormick v Lord Adovcate
Westminster is likely to be bound by the terms of the Acts of Union
Against the Supremacy of Parliament >
Westminster is likely to be bound by the terms of the Acts of Union
MacCormick v Lord Adovcate
Against the Supremacy of Parliament >
Henry VIII powers
These permit the relevant government minister to amend or repeal the relevant statute. The European Union Act (2018)
Against the Supremacy of Parliament >
These permit the relevant government minister to amend or repeal the relevant statute. The European Union Act (2018)
Henry VIII powers
Against the Supremacy of Parliament >
Lord Denning in Blackburn v Attorney General
Although these constraining Acts of Parliament may legally be repealed, in reality, “legal theory must give way to practical policies.”
Against the Supremacy of Parliament >
Although these constraining Acts of Parliament may legally be repealed, in reality, “legal theory must give way to practical policies.”
Lord Denning in Blackburn v Attorney General
Against the Supremacy of Parliament > European Limitations >
European Communities Act 1972
The most devastating infringement on the doctrine of Parliamentary Supremacy: EU treaties (Notably the TFEU) and other EU legislation have become a source of UK Law under the principle of direct effect (s.2(1))
Against the Supremacy of Parliament > European Limitations >
The most devastating infringement on the doctrine of Parliamentary Supremacy: EU treaties (Notably the TFEU) and other EU legislation have become a source of UK Law under the principle of direct effect (s.2(1))
European Communities Act 1972
Against the Supremacy of Parliament > European Limitations >
European Union Act 2011
Before the government can ratify any Treaty change or any change to the current Treaty (TFEU), the must hold a referendum
Against the Supremacy of Parliament > European Limitations >
Before the government can ratify any Treaty change or any change to the current Treaty (TFEU), the must hold a referendum
European Union Act 2011
Against the Supremacy of Parliament > European Limitations >
First limb of s.2(4) ECA 1972
Acts of Parliament ‘shall be construed’ in order to comply with EU law, the Courts have been willing to:
- Read against the literal meaning of a UK statute and
- Add words into the reading of a statute
Against the Supremacy of Parliament > European Limitations >
Acts of Parliament ‘shall be construed’ in order to comply with EU law, the Courts have been willing to:
- Read against the literal meaning of a UK statute and
- Add words into the reading of a statute
First limb of s.2(4) ECA 1972
Against the Supremacy of Parliament > European Limitations > First limb of s.2(4) ECA 1972 >
Pickstone v Freemans plc
Read against the literal meaning of a UK statute
Against the Supremacy of Parliament > European Limitations > First limb of s.2(4) ECA 1972 >
Read against the literal meaning of a UK statute and
Pickstone v Freemans plc
Against the Supremacy of Parliament > European Limitations > First limb of s.2(4) ECA 1972 >
Litster v Forth Dry Dock
Add words into the reading of a statute
Against the Supremacy of Parliament > European Limitations > First limb of s.2(4) ECA 1972 >
Add words into the reading of a statute
Litster v Forth Dry Dock
Against the Supremacy of Parliament > European Limitations >
Second limb of s.2(4) ECA 1972
Acts of Parliament ‘shall have effect…’
- Where EU Law and UK statute contravene each other, directly effective EU law will take precedence over conflicting national law
- The national law will be disapplied even where the Act is a constitutional Provision
Against the Supremacy of Parliament > European Limitations >
Acts of Parliament ‘shall have effect…’
- Where EU Law and UK statute contravene each other, directly effective EU law will take precedence over conflicting national law
- The national law will be disapplied even where the Act is a constitutional Provision
Second limb of s.2(4) ECA 1972
Against the Supremacy of Parliament > European Limitations >
Where EU Law and UK statute contravene each other, directly effective EU law will take precedence over conflicting national law, which will be disapplied
Factortame v Secretary of State for Transport II
Against the Supremacy of Parliament > European Limitations >
Factortame v Secretary of State for Transport II
Where EU Law and UK statute contravene each other, directly effective EU law will take precedence over conflicting national law, which will be disapplied
Against the Supremacy of Parliament > European Limitations >
Costa v Enel
The national law will be disapplied even where the Act is a constitutional Provision
Against the Supremacy of Parliament > European Limitations >
The national law will be disapplied even where the Act is a constitutional Provision
Costa v Enel
Against the Supremacy of Parliament > European Limitations >
Factortame
Doctrine of implied repeal is further weakened by the ECA 1972 and will not apply where post-1972 legislation contravenes the ECA
Against the Supremacy of Parliament > European Limitations >
Doctrine of implied repeal is further weakened by the ECA 1972 and will not apply where post-1972 legislation contravenes the ECA
Factortame
Against the Supremacy of Parliament > European Limitations >
Parliament may legally and expressly repeal the ECA 1972.
THE ‘BUT FOR’ ARGUMENT.
Garland v British Rail Engineering and McCarthy’s Limited v Smith
Against the Supremacy of Parliament > European Limitations >
Garland v British Rail Engineering and McCarthy’s Limited v Smith
Parliament may legally and expressly repeal the ECA 1972.
THE ‘BUT FOR’ ARGUMENT.
Against the Supremacy of Parliament > European Limitations >
Ghaidan v Godin-Mendoza
The courts have been fully willing to implement it (ECHR) even reading national legislation beyond it’s literal meaning
Against the Supremacy of Parliament > European Limitations >
The courts have been fully willing to implement it (ECHR) even reading national legislation beyond it’s literal meaning
Ghaidan v Godin-Mendoza
Against the Supremacy of Parliament > European Limitations >
R (Hallam) v Secretary of State for Justice
May indicate a move away from a close following of ECtHR case law however.
Against the Supremacy of Parliament > European Limitations >
May indicate a move away from a close following of ECtHR case law however.
R (Hallam) v Secretary of State for Justice
Against the Supremacy of Parliament > European Limitations >
Belmarsh Case
A declaration of incompatibility (s.4 HRA) places a very strong obligation on the government to amend/repeal the legislation
Against the Supremacy of Parliament > European Limitations >
A declaration of incompatibility (s.4 HRA) places a very strong obligation on the government to amend/repeal the legislation
Belmarsh Case
Against the Supremacy of Parliament > European Limitations >
Smith v Scott
Amendment/Repeal has not always occurred
Against the Supremacy of Parliament > European Limitations >
Amendment/Repeal has not always occurred
Smith v Scott
Judicial Review > Public Law Issues >
O’Reilly v Mackman
Procedural Exclusivity: if claimant is seeking to enforce public law rights, should do so via JR procedure, not ordinary civil procedure
Judicial Review > Public Law Issues >
Procedural Exclusivity: if claimant is seeking to enforce public law rights, should do so via JR procedure, not ordinary civil procedure
O’Reilly v Mackman
Judicial Review > Public Law Issues >
Roy v Kensington Family Practitioner Committee
However, if a claim involves a mixture of private and public law rights, the public claim may be raised in private proceedings
Judicial Review > Public Law Issues >
However, if a claim involves a mixture of private and public law rights, the public claim may be raised in private proceedings
Roy v Kensington Family Practitioner Committee
Judicial Review > Public Law Issues >
Wandsworth London Borough Council v Winer and Boddington v British Transport Police
A public law issue can also be raised as a defence in private law proceedings i.e. collateral challenge, including both civil (Wandsworth) and Criminal (Boddington) proceedings
Judicial Review > Public Law Issues >
A public law issue can also be raised as a defence in private law proceedings i.e. collateral challenge, including both civil (Wandsworth) and Criminal (Boddington) proceedings
Wandsworth London Borough Council v Winer and Boddington v British Transport Police
Judicial Review > Public Body > What is the Datafin Test?
R v Panel on Takeovers (ex p Datafin)
Datafin test determines whether it is a public body:
a) Test 1: SOURCE OF POWER – was body set up under statute/delegated legislation?
b) Test 2: NATURE OF POWER – does body exercise public law functions?
Judicial Review > Public Body > What test determines if it is a public body for JR?
Datafin test determines whether it is a public body:
a) Test 1: SOURCE OF POWER – was body set up under statute/delegated legislation?
b) Test 2: NATURE OF POWER – does body exercise public law functions?
Judicial Review > Public Body >
YL v Birmingham City Council
A private care home does not constitute a public body
Judicial Review > Public Body >
A private care home does not constitute a public body
YL v Birmingham City Council
Judicial Review > Public Body >
R (Beer) v Hampshire Farmers Market
The same (Datafin) test applies when bringing a claim on human rights grounds
Judicial Review > Public Body > The same (Datafin) test applies when bringing a claim on human rights grounds
R (Beer) v Hampshire Farmers Market
Judicial Review > Sufficient Interest >
consider whether the claimant is directly and adversely affected by the matter?
R v Inland Revenue Commissioners (ex p the national federation of self-employed and small business ltd.)
Judicial Review > Sufficient Interest >
R v Inland Revenue Commissioners (ex p the national federation of self-employed and small business ltd.)
consider whether the claimant is directly and adversely affected by the matter?
Judicial Review > Sufficient Interest > Pressure Groups > Ex p World Development Movement
Pressure groups, consider five factors:
- Importance of the matter,
- Likely absence of any other challenger,
- The need to uphold the rule of law.
- Role of the pressure group, and;
- The nature of the alleged breach of duty
Judicial Review > Sufficient Interest >
Authority and 5 factors for pressure groups.
Ex p World Development Movement: Pressure groups, consider five factors:
1. Importance of the matter,
2. Likely absence of any other challenger,
3. The need to uphold the rule of law.
4. Role of the pressure group, and;
The nature of th alleged breach of duty
Judicial Review > Sufficient Interest >
s.7 HRA 1998
If regarding Human Rights grounds – is, or would, the claimant be a victim of an unlawful act? Consider whether this is a direct interference
Judicial Review > Sufficient Interest >
If regarding Human Rights grounds – is, or would, the claimant be a victim of an unlawful act? Consider whether this is a direct interference
s.7 HRA 1998
Judicial Review > Time Limit >
s.31(6) SCA 1981
The court may refuse a claim if there has been “undue delay”
Judicial Review > Time Limit >
The court may refuse a claim if there has been “undue delay”
s.31(6) SCA 1981
Judicial Review > Time Limit >
Finn-Kelcey v Milton Keynes Borough Council and MK Windfarm Ltd
Application for JR may still be rejected when filed within month time limit if there has been undue delay
Judicial Review > Time Limit >
Application for JR may still be rejected when filed within month time limit if there has been undue delay
Finn-Kelcey v Milton Keynes Borough Council and MK Windfarm Ltd
Judicial Review > Time Limit >
Jackson
Delay may exceed three months if the claimant is waiting for legal aid /there is difficulty obtaining evidence/other justified reasons
Judicial Review > Time Limit >
Delay may exceed three months if the claimant is waiting for legal aid /there is difficulty obtaining evidence/other justified reasons
Jackson
Judicial Review > Time Limit >
Ex p Caswell
Courts will not accept applications where there has been undue delay, even for cases where there has been an error of law
Judicial Review > Time Limit >
Courts will not accept applications where there has been undue delay, even for cases where there has been an error of law
Ex p Caswell
Judicial Review > Ouster Provisions >
Anisminic
COMPLETE Ouster clauses are effectively meaningless – decisions that are ultra vires are nullities and not protected by clause
Judicial Review > Ouster Provisions >
COMPLETE Ouster clauses are effectively meaningless – decisions that are ultra vires are nullities and not protected by clause
Anisminic
Judicial Review > Ouster Provisions >
Ex p Ostler
PARTIAL Ouster clauses will be tolerated by the Courts. Courts have no discretion to extend these
Judicial Review > Ouster Provisions >
PARTIAL Ouster clauses will be tolerated by the Courts. Courts have no discretion to extend these
Ex p Ostler
Judicial Review > Ouster Provisions >
Ex p Goldstraw
OTHER STATUTORY REMEDIES: courts will accept the availability of an alternative statutory right of appeal as an implied ouster clause; JR will not be available.
Judicial Review > Ouster Provisions >
OTHER STATUTORY REMEDIES: courts will accept the availability of an alternative statutory right of appeal as an implied ouster clause; JR will not be available.
Ex p Goldstraw
Judicial Review > Grounds for Review >
CCSU v Minister for Civil Service
Lord Diplock identified 3 grounds of JR (1) Illegality (2) Irrationality (3) Procedural Impropriety
Judicial Review > Grounds for Review >
Lord Diplock identified 3 grounds of JR (1) Illegality (2) Irrationality (3) Procedural Impropriety
CCSU v Minister for Civil Service
Judicial Review > Grounds for Review > Illegality > The Seven Heads (CCSU)
- Acting without Legal Authority
- Rule against delegation.
- Fettering of discretion, not allowed.
- Errors of Law
- Errors of Fact
- Taking irrelevant factors into account
- Decision based on an improper/unauthorised purpose
Judicial Review > Grounds for Review > Illegality > CCSU definition
This is where the action goes beyond the powers and limit of the statute
Judicial Review > Grounds for Review > Illegality >
Ex p McCarthy and Stone Ltd
- Acting without Legal Authority – ‘ultra vires’
Judicial Review > Grounds for Review > Illegality >
1. Acting without Legal Authority – ‘ultra vires’
Ex p McCarthy and Stone Ltd
Judicial Review > Grounds for Review > Illegality >
Alder, 2009
- Acting without Legal Authority – ‘ultra vires’
a. But the Courts will permit an activity , even if not expressly authorised by the statute, provided the government activity in question is ‘reasonably incidental’ to what is authorised.
Judicial Review > Grounds for Review > Illegality >
2 authorities for 1. Acting without Legal Authority – ‘ultra vires’
- Acting without Legal Authority – ‘ultra vires’ (Ex p McCarthy and Stone Ltd)
a. But the Courts will permit an activity , even if not expressly authorised by the statute, provided the government activity in question is ‘reasonably incidental’ to what is authorised (Alder, 2009)
Judicial Review > Grounds for Review > Illegality > 2. Rule against delegation.
Vine v National Dock Labour Board
Judicial Review > Grounds for Review > Illegality >
Vine v National Dock Labour Board
- Rule against delegation.
Judicial Review > Grounds for Review > Illegality > 2. Rule against delegation. Exceptions: (x2)
a. Carltona Principle – Delegating to civil servants in the department, due to the convention of Ministerial Responsibility
b. Local authorities may discharge their functions by committees/officers/other local authorities, providing they make a formal resolution to do so.
(s.101 Local
Government Act 1972)
Judicial Review > Grounds for Review > Illegality >
3. Fettering of discretion, not allowed. (2 x authorities)
Lavender and Sons Ltd v Minister of Housing
British Oxygen v Minister of Technology
Judicial Review > Grounds for Review > Illegality >
Lavender and Sons Ltd v Minister of Housing
British Oxygen v Minister of Technology
- Fettering of discretion, not allowed. Including by either:
a. Acting under the dictation of another, e.g. where a public body bases its decision on another Minister’s objection, rather than assessing it themselves.
b. Formulating a GENERAL POLICY as to the exercise of discretion, “one must always be willing to listen to someone with something new to say” (Lord Reid)
Judicial Review > Grounds for Review > Illegality >
4. Errors of Law
Anisminic
Judicial Review > Grounds for Review > Illegality >
Anisminic
- Errors of Law
Judicial Review > Grounds for Review > Illegality >
Ex p Khawaja
- Errors of Fact
- Only jurisdictional errors of Fact are reviewable.
- Non-Jurisdictional errors of Fact are only reviewable if based on ignorance of an established fact.
Judicial Review > Grounds for Review > Illegality >
5. Errors of Fact
Ex p Khawaja
Judicial Review > Grounds for Review > Illegality >
6. Taking irrelevant factors into account (2 x authorities)
Roberts v Hopwood
Padfield v Minister of Agriculture
Judicial Review > Grounds for Review > Illegality >
Roberts v Hopwood
Padfield v Minister of Agriculture
- Taking irrelevant factors into account
a. Took irrelevant factors into account and ignored relevant information
b. Took into account potential political embarrassment for minister
Judicial Review > Grounds for Review > Illegality >
7. Decision based on an improper/unauthorised purpose – where a public body acts for ends not provided for by parliament, e.g. to increase their revenue.
Congreve v Home Office
Judicial Review > Grounds for Review > Illegality >
Congreve v Home Office
- Decision based on an improper/unauthorised purpose – where a public body acts for ends not provided for by parliament, e.g. to increase their revenue.
Judicial Review > Grounds for Review > Illegality >
Where a decision is based on both proper and improper purpose (dual purpose), the court should consider the following? (2)
o Which was the primary purpose? The decision should stand if the primary purpose was the proper one. (Westminster Corporation v LNWR)
o Was the authority pursuing an unauthorised purpose, which materially influenced the making of its decision
(R v ILEA, ex p West Minster City Council)
Judicial Review > Grounds for Review > Illegality >
Where a decision is based on both proper and improper purpose (dual purpose), the court should consider the following? (2 authorities)
o Which was the primary purpose? The decision should stand if the primary purpose was the proper one. (Westminster Corporation v LNWR)
o Was the authority pursuing an unauthorised purpose, which materially influenced the making of its decision
(R v ILEA, ex p West Minster City Council)
Judicial Review > Grounds for Review > Irrationality >
What is the Wednesbury Principle?
WEDNESBURY PRINCIPLE: To be irrational, a decision must be, ‘so unreasonable that no reasonable authority could ever come to it.’
Further restricted by Lord Diplock in CCSU as being ‘so outrageous in its defiance of logic… that no sensible person… could have arrived to it.’
Judicial Review > Grounds for Review > Irrationality >
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation
Judicial Review > Grounds for Review > Irrationality >
WEDNESBURY PRINCIPLE: To be irrational, a decision must be, ‘so unreasonable that no reasonable authority could ever come to it.’
Further restricted by Lord Diplock in CCSU as being ‘so outrageous in its defiance of logic… that no sensible person… could have arrived to it.’
Judicial Review > Grounds for Review > Irrationality >
Lord Diplock’s further restriction on the Wednesbury Principle?
Further restricted by Lord Diplock in CCSU as being ‘so outrageous in its defiance of logic… that no sensible person… could have arrived to it.’
Judicial Review > Grounds for Review > Irrationality >
Wheeler v Leicester City Council
However, it is possible for public authorities to fail the test
Judicial Review > Grounds for Review > Irrationality >
However, it is possible for public authorities to fail the test
Wheeler v Leicester City Council
Judicial Review > Grounds for Review > Irrationality >
R (DSD and others) v the Parole Board
Recent application of the principle of irrationality
Judicial Review > Grounds for Review > Irrationality >
Recent application of the principle of irrationality
R (DSD and others) v the Parole Board
Judicial Review > Grounds for Review > Procedural Impropriety >
The rules of natural justice must be complied with. (bias, fair hearing, procedural ultra vires) (authority?)
Fairmount Investments Ltd.
Judicial Review > Grounds for Review > Procedural Impropriety >
Fairmount Investments Ltd.
The rules of natural justice must be complied with. (bias, fair hearing, procedural ultra vires)
Judicial Review > Grounds for Review > Procedural Impropriety >
What are the grounds for procedural impropriety? (x3) Fairmount Investments.
(a) The Rule against of BIAS
(b) The Right to a FAIR Hearing
(c) Procedural Ultra Vires: Violation of important statutory procedures
Judicial Review > Grounds for Review > Procedural Impropriety > (a) The Rule against of BIAS >
What is the outcome of Direct Bias?
Court is obliged to quash and then reconsider the decision.
Judicial Review > Grounds for Review > Procedural Impropriety >
Court is obliged to quash and then reconsider the decision.
Direct Bias
Judicial Review > Grounds for Review > Procedural Impropriety >
Dimes v Grand Junction Canal Proprietors
Direct Bias:
1. Where an interest may lead to financial/pecuniary gain, or;
Judicial Review > Grounds for Review > Procedural Impropriety >
Ex p Pinochet Ugarte (no2)
- The decision maker is involved in promoting the SAME CAUSE as a party in the case
Judicial Review > Grounds for Review > Procedural Impropriety >
The two pronged definition of direct bias
- Where an interest may lead to financial/pecuniary gain, or;
(Dimes v Grand Junction Canal Proprietors) - The decision maker is involved in promoting the SAME CAUSE as a party in the case
Ex p Pinochet Ugarte (no2)
Judicial Review > Grounds for Review > Procedural Impropriety > Indirect Bias, what is the test?
In order for the appeal to be quashed, the Court must consider the Porter v Magill test:
1. Would a fair minded and impartial observe concluded that there had been a real possibility of bias?
2. Whether the bias did affect the decision or not is immaterial – rather what is critical is how the decision would appear to an observer.
(applied in R v Barnsley MBC ex p Hook)
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Board of Education v Rice
There is a duty on decision-makers to act in good faith and listen fairly to both sides.
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > There is a duty on decision-makers to act in good faith and listen fairly to both sides.
Board of Education v Rice
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Fairmont Investments
Claimants should know the case against them and have the right to reply
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing >
Claimants should know the case against them and have the right to reply
Fairmont Investments
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Lloyd v McMahon
Claimants entitled to a fair hearing which is fair and reasonable in all the circumstances.
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Claimants entitled to a fair hearing which is fair and reasonable in all the circumstances.
Lloyd v McMahon
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing >
McInnes v Onslow-Fane
The concept of fairness is flexible and varies according to the category of case
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > The concept of fairness is flexible and varies according to the category of case
McInnes v Onslow-Fane
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing >
What authority for the Forfeiture, legitimate expectation and application cases?
McInnes v Onslow-Fane
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Forfeiture Case
FORFEITURE CASE – here the standard of fairness expected from a hearing is high and the rules of natural justice should be strictly applied
Ridge v Baldwin
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Procedural Legitimate Expectation Case
Procedural legitimate expectation: decision-maker has failed to follow normal procedure
Ex p Liverpool Taxi Fleet Operators, Mandalia v Home Secretary, (Save Brian’s Heritage)
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing >
2 types of legitimate expectations
Procedural legitimate expectation: decision-maker has failed to follow normal procedure
Substantive legitimate expectation: when the decision-maker has led someone to believe they will receive a benefit.
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing >
Authority for Substantive legitimate expectation cases
Ex p Asif Khan, and Ex p Coughlan
Substantive legitimate expectation: when the decision-maker has led someone to believe they will receive a benefit.
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limit to Substantive Legitimate Expectation
Substantive legitimate expectation cases are limited to undertakings directed to individuals/small class of people.
R (Niazi) v Secretary of State for the Home Department
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Application Cases
McInnes v Onslow-Fame
all that natural justice require was for the board to act honestly and without bias.
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations on the right to a fair hearing.
a) There is no right to seek JR if a decision is preliminary only and not final (Lewis v Heffer)
b) There is no legal duty for public bodies to give reasons for their decisions. (R (Hasan) v Secretary of State for Trade and Industry)
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations:
b) There is no legal duty for public bodies to give reasons for their decisions
R (Hasan) v Secretary of State for Trade and Industry
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations:
a) There is no right to seek JR if a decision is preliminary only and not final
Lewis v Heffer
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions > What are the 3 exceptions?
- Where the decision appears aberrant and
- Where the impact on a person’s rights and personal liberty is serious, and the public interest requires so
- Claimants must have an opportunity to explain their conduct if they are an ‘accountable’ public servant
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions: Ex p Cunningham
- Where the decision appears aberrant and
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions
1. Where the decision appears aberrant and
Ex p Cunningham
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions:
Ex p Doody
- Where the impact on a person’s rights and personal liberty is serious, and the public interest requires so
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions:
2. Where the impact on a person’s rights and personal liberty is serious, and the public interest requires so
Ex p Doody
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions:
c) Claimants have no legal right to a full oral hearing but claimants are entitled to?
- a hearing which is fair and reasonable in the circumstances (Lloyd v McMahon)
- may require oral hearing depending on the circumstances (Osborne v Parole Board) - may require cross examination of witnesses (ex parte St. Germain)
Judicial Review > Grounds for Review > Procedural Impropriety > (b) The Right to a FAIR Hearing > Limitations: Exceptions:
3. Claimants must have an opportunity to explain their conduct if they are an ‘accountable’ public servant
Baby P
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > What is Procedural Ultra Vires?
Violation of important statutory procedures
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > R v Soneji
When deciding whether requirement is mandatory or directory, courts will consider whether parliament would have intended the consequences of non-compliance to invalidate decision and render it unlawful
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > When deciding whether requirement is mandatory or directory, courts will consider whether parliament would have intended the consequences of non-compliance to invalidate decision and render it unlawful
R v Soneji
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > Coney v Choyce
If there has been some effort to comply [with statute wording] this may amount to substantial compliance
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > If there has been some effort to comply [with statute wording] this may amount to substantial compliance
Coney v Choyce
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > Bradbury v London Borough of Enfield
If requirement is mandatory decision will be quashed
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > If requirement is mandatory decision will be quashed
Bradbury v London Borough of Enfield
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > Coney v Choyce
if requirement is directory decision will not be quashed
Judicial Review > Grounds for Review > Procedural Impropriety > (c) Procedural Ultra Vires > if requirement is directory decision will not be quashed
Coney v Choyce
Judicial Review > Grounds for Review > Breach of convention rights >
s.6(1) HRA 1998
Public authorities must act compatibly with convention rights. Where a qualified right is breached (particularly Articles 8,9,10,11 HRA 1998) use the Marper ECHR test:
Judicial Review > Grounds for Review > Breach of convention rights > Public authorities must act compatibly with convention rights. Where a qualified right is breached (particularly Articles 8,9,10,11 HRA 1998) use the Marper ECHR test:
s.6(1) HRA 1998
Judicial Review > Grounds for Review > Breach of convention rights > What is the Marper (ECHR) Test?
a) is the qualified right in question engaged?
b) Is there an interference with the right? (see ss.1 of relevant Art)
c) Is the interference PRESCRIBED BY LAW
d) Is the interference in PURSUIT OF A LEGITIMATE AIM (see ss.2 of relevant article)
e) Is the interference NECESSARY IN A DEMOCRATIC SOCIETY? Apply the Bank Mellat test:
i. Is the objective of the measure complained of sufficiently important to justify limitation of fundamental right?
ii. is the measure rationally connected to the objective?
iii. could a less intrusive measure have been used?
iv. has a fair balance been struck between the rights of the individual and the rights of the community?
Judicial Review > Grounds for Review > Breach of convention rights > What is the Bank Mellat Test?
Bank Mellat (combined tests in R (Daly) and Huang – both v Secretary of State for the Home Department
i. Is the objective of the measure complained of sufficiently important to justify limitation of fundamental right?
ii. is the measure rationally connected to the objective?
iii. could a less intrusive measure have been used?
iv. has a fair balance been struck between the rights of the individual and the rights of the community?
Judicial Review > Grounds for Review > Breach of convention rights > Authorities for the Bank Mellat Test
Bank Mellat (combined tests in R (Daly) and Huang – both v Secretary of State for the Home Department
Judicial Review > Grounds for Review > Breach of convention rights > Marper and Bank Mellat Tests. How is this different when it is a breach of Art.1 Protocol 1.
Where the breach is of Art.1 Protocol 1, apply bank Mellat test directly, Not Marper.
Judicial Review > Grounds for Review > Breach of convention rights > British Oxygen, Grounds for JR an additional note
When a decision is based on a policy by the public body: begin by stating ‘public bodies are entitled to lay down a policy to facilitate the implementation of a statute however it is entitled to do so providing that;’
1. the policy itself is intra vires
2. it is not applied so as to fetter discretion
Then proceed to assess grounds of challenge for the decision itself
Judicial Review > Grounds for Review > Breach of convention rights >
When a decision is based on a policy by the public body: begin by stating ‘public bodies are entitled to lay down a policy to facilitate the implementation of a statute however it is entitled to do so providing that;’
1. the policy itself is intra vires
2. it is not applied so as to fetter discretion
Then proceed to assess grounds of challenge for the decision itself
Judicial Review > Grounds for Review > Breach of convention rights > British Oxygen, Grounds for JR an additional note
Judicial Review > Remedies for Judicial Review > s.31(6), SCA 1981
Remedies are discretionary
Judicial Review > Remedies for Judicial Review > Remedies are discretionary
s.31(6), SCA 1981
Judicial Review > Remedies for Judicial Review > Public Law Remedies
a) Quashing Order
b) Prohibiting Order
c) Mandatory Order
Judicial Review > Remedies for Judicial Review > Private Law Remedies
a) Declaration
b) Injunction
c) Damages
Judicial Review > Remedies for Judicial Review > s.31(4) SCA 1981
Damages can be awarded where the claimant is seeking other relief and damages could have been awarded in a civil claim. Therefore, the claimant must have a private law cause of action
Judicial Review > Remedies for Judicial Review >
Damages can be awarded where the claimant is seeking other relief and damages could have been awarded in a civil claim. Therefore, the claimant must have a private law cause of action
s.31(4) SCA 1981
Judicial Review > Remedies for Judicial Review >
Dunlop v Woollahra MC and R v Knowsley MBC ex p Maguire
i. Damages cannot be awarded Just because the claimant has a ground of challenge
ii. There is no general right in law to damages for Mal administration
Judicial Review > Remedies for Judicial Review >
i. Damages cannot be awarded Just because the claimant has a ground of challenge
ii. There is no general right in law to damages for Mal administration
Dunlop v Woollahra MC and R v Knowsley MBC ex p Maguire
Judicial Review > Additional notes on Judicial Review >
CCSU
Some matters are non-justiciable – not appropriate for JR
Judicial Review > Additional notes on Judicial Review >
Some matters are non-justiciable – not appropriate for JR
CCSU
Judicial Review > Additional notes on Judicial Review > R (Miller) v SS for exiting EU
Most of these matters involve the Royal prerogative for example making international treaties
Judicial Review > Additional notes on Judicial Review >
Most of these matters involve the Royal prerogative for example making international treaties
R (Miller) v SS for exiting EU
Judicial Review > Additional notes on Judicial Review >
R v Cambridge Health Authority ex p B
Courts apply strict standards to judicial bodies but the less willing to interfere with decisions that involve the discretionary allocation of scarce resources (NHS)
Judicial Review > Additional notes on Judicial Review >
Courts apply strict standards to judicial bodies but the less willing to interfere with decisions that involve the discretionary allocation of scarce resources (NHS)
R v Cambridge Health Authority ex p B
Judicial Review > Additional notes on Judicial Review >
Boddington v British Transport Police
There’s no general agreement on how to classify grounds of JR. Despite the CCSU Diplock’s grounds of challenge allow for overlap.
Judicial Review > Additional notes on Judicial Review >
There’s no general agreement on how to classify grounds of JR. Despite the CCSU Diplock’s grounds of challenge allow for overlap.
Boddington v British Transport Police
Conflict between different Rights and Freedoms > S6 HRA, who can human rights claims be bought against?
Human rights claims can only be brought about against a public body
Conflict between different Rights and Freedoms > Human rights claims can only be brought about against a public body
S6 HRA
Conflict between different Rights and Freedoms >
Venables and Thompson v News Group Newspapers Ltd. and Douglas v Hello!
Newspapers are not public bodies however claim can be brought under the principle of horizontal effect
Conflict between different Rights and Freedoms >
Newspapers are not public bodies however claim can be brought under the principle of horizontal effect
Venables and Thompson v News Group Newspapers Ltd. and Douglas v Hello!
Conflict between different Rights and Freedoms >
Baroness Hale in Campbell v Mirror Group Newspapers Ltd.
“The 1998 act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority, must act in a manner compatible with both parties’ convention rights.”
Conflict between different Rights and Freedoms >
“The 1998 act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority, must act in a manner compatible with both parties’ convention rights.”
Baroness Hale in Campbell v Mirror Group Newspapers Ltd.
Conflict between different Rights and Freedoms >
Lord Phillips in Douglas v Hello!
The court should, insofar as it can, develop the action for breach of confidence in such a manner as it will give effect to both Article 8 and Article 10 rights
Conflict between different Rights and Freedoms >
The court should, insofar as it can, develop the action for breach of confidence in such a manner as it will give effect to both Article 8 and Article 10 rights
Lord Phillips in Douglas v Hello!
Conflict between different Rights and Freedoms >
Campbell v Mirror Group Newspapers
Law imposes a duty of confidence for information that he ought to know is fair and reasonable to be regarded as confidential
Conflict between different Rights and Freedoms >
Law imposes a duty of confidence for information that he ought to know is fair and reasonable to be regarded as confidential
Campbell v Mirror Group Newspapers
Conflict between different Rights and Freedoms >
Mosely v NGN
The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.
Conflict between different Rights and Freedoms >
The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.
Mosely v NGN
Conflict between different Rights and Freedoms >
Vidal-hall v Google Inc
Established a tort of misuse of private information
Conflict between different Rights and Freedoms >
Established a tort of misuse of private information
Vidal-hall v Google Inc
Conflict between different Rights and Freedoms >
Potentially established tort on invasion of privacy
PJS v NGN
Conflict between different Rights and Freedoms >
PJS v NGN
Potentially established tort on invasion of privacy
Conflict between different Rights and Freedoms >
Campbell v NGN Threshold Test for Article 8?
THRESHOLD TEST
Is that a reasonable expectation of privacy such as to engage Article 8 at all? Consider:
i. Nature of Material
ii. All circumstances
iii. Ordinary, everyday acts can still be private (Von Hannover v Germany; Murray v Express Newspapers plc) Especially where children are involved (Murray)
- ‘popping out for a bottle of milk’ can also be public, depending on facts (Campbell)
iv. No photography without consent; or at least no publication of photos without consent
Conflict between different Rights and Freedoms > Article 8(1)
Relates to privacy. if there has been a breach of confidence than the claimant had a reasonable expectation of privacy and their right was breached.
Conflict between different Rights and Freedoms >
Relates to privacy. if there has been a breach of confidence than the claimant had a reasonable expectation of privacy and their right was breached.
Article 8(1)
Conflict between different Rights and Freedoms > Article 8(1)
Relates to privacy. if there has been a breach of confidence than the claimant had a reasonable expectation of privacy and their right was breached.
Conflict between different Rights and Freedoms > Article 8(2)
But Article 8 is qualified/limited. Therefore claimant will also have to show that publication of information was not ‘necessary in a Democratic society’ to achieve one or more of the legitimate aims set out in Art.8(2)
Conflict between different Rights and Freedoms >
But Article 8 is qualified/limited. Therefore claimant will also have to show that publication of information was not ‘necessary in a Democratic society’ to achieve one or more of the legitimate aims set out in Art.8(2)
Article 8(2)
Conflict between different Rights and Freedoms > Article 10(1) What are the three freedoms of expression listed?
Freedom of Expression. Under this article a person has the right to:
i. Hold/express opinions
ii. Receive and impart information
iii. Residual Freedom (the right to do anything unless prohibited by Parliament)
Conflict between different Rights and Freedoms >
Freedom of Expression. Under this article a person has the right to:
i. Hold/express opinions
ii. Receive and impart information
iii. Residual Freedom (the right to do anything unless prohibited by Parliament)
Article 10(1)
Conflict between different Rights and Freedoms >
How does Article 10(2) explain the limits on Article 10?
But Article 10 is qualified/limited. Therefore the publication will also have to show that publication of information was not ‘necessary in a Democratic society’ to achieve one or more of the legitimate aims set out in Art.10(2)
Conflict between different Rights and Freedoms > What test will the court apply for the proportionality of a human rights breach?
Where human rights are engaged, the court will apply the Bank Mellat Test of proportionality.
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
Peck v United Kingdom
Although prevention of crime was a legitimate aim, it was disproportionate.
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged > Although prevention of crime was a legitimate aim, it was disproportionate.
Peck v United Kingdom
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
S and Marper v UK
Retention of fingerprints and DNA, as permitted by PACE, invoked Article 8 and defendants’ rights because it is unnecessary and disproportionate. In direct conflict with the HoL
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
Retention of fingerprints and DNA, as permitted by PACE, invoked Article 8 and defendants’ rights because it is unnecessary and disproportionate. In direct conflict with the HoL
S and Marper v UK
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
Distinguished from the above on the grounds that retention of photographs, although necessary, was disproportionate
Wood v Metropolitan Police Commissioner
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
Wood v Metropolitan Police Commissioner
Distinguished from the above on the grounds that retention of photographs, although necessary, was disproportionate
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
R v Commissioner of the Police of the Metropolis
Finding of ECHR in Marper followed by Supreme Court, which ruled that a blanket policy of retaining biometric data was not compatible with Article 8
Conflict between different Rights and Freedoms > Examples where only Article 8 is engaged >
Finding of ECHR in Marper followed by Supreme Court, which ruled that a blanket policy of retaining biometric data was not compatible with Article 8
R v Commissioner of the Police of the Metropolis
Conflict between different Rights and Freedoms > Balancing Rights >
How does Baroness Hale describe the balancing of Article 8 and 10 rights in Campbell?
“The application of the proportionality test is more straight forward when only one convention right is in play. it is much less straight forward when 2 convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other.”
Conflict between different Rights and Freedoms > Balancing Rights >
What does Article 8(2) state?
The right to privacy can be limited
Conflict between different Rights and Freedoms > Balancing Rights >
What does Article 10(2) state?
Freedom of expression can be limited
Conflict between different Rights and Freedoms > Balancing Rights >
Campbell - Balancing rights proportionality test.
Balancing Rights proportionality test:
i. Examine the comparative importance of the rights in the individual case
ii. Examine the justification for interfering with the rights, and
iii. Apply the proportionality test to both
Conflict between different Rights and Freedoms > Balancing Rights > Von Hannover (no 1)
ECHR case there not binding, but persuasive. Public figure in public space may still have a right for respect for private life if doing private things.
Conflict between different Rights and Freedoms > Balancing Rights >
ECHR case there not binding, but persuasive. Public figure in public space may still have a right for respect for private life if doing private things.
Von Hannover (no 1)
Conflict between different Rights and Freedoms > Balancing Rights >
Murray v Express Newspaper
Followed the Hannover No1 ruling in because of specific circumstances (Murray was a child)
Conflict between different Rights and Freedoms > Balancing Rights >
Followed the Hannover No1 ruling in because of specific circumstances (Murray was a child)
Murray v Express Newspaper
Conflict between different Rights and Freedoms > Balancing Rights >
Hannover (no 2)
BUT: picture of princess skiing held not to be a breach in light of father’s illness – was in genuine public interest to see how the royal family dealt with the issue.
Conflict between different Rights and Freedoms > Balancing Rights >
BUT: picture of princess skiing held not to be a breach in light of father’s illness – was in genuine public interest to see how the royal family dealt with the issue.
Hannover (no 2)
Conflict between different Rights and Freedoms > Balancing Rights >
Moseley
A public figure’s sex life will be private; disclosure of details must be linked to a genuine public interest.
Conflict between different Rights and Freedoms > Balancing Rights >
A public figure’s sex life will be private; disclosure of details must be linked to a genuine public interest.
Moseley
Conflict between different Rights and Freedoms > Balancing Rights >
Reklos and Davourlis v Greece
A parent can object to another parent taking pictures of their child in any public place without their consent
Conflict between different Rights and Freedoms > Balancing Rights >
A parent can object to another parent taking pictures of their child in any public place without their consent
Reklos and Davourlis v Greece
Conflict between different Rights and Freedoms > Balancing Rights >
Rocknroll v News Group Newspapers
An injunction can be awarded to stop newspapers from printing photos which had been posted on Facebook
Conflict between different Rights and Freedoms > Balancing Rights >
An injunction can be awarded to stop newspapers from printing photos which had been posted on Facebook
Rocknroll v News Group Newspapers
Conflict between different Rights and Freedoms > Balancing Rights >
LNS v Persons Unknown
High Court over-turned a ‘super-injunction’ surrounding John Terry’s extra marital affair – it was not necessary or proportionate having regard to the level of interference with the footballer’s private life.
Conflict between different Rights and Freedoms > Balancing Rights >
High Court over-turned a ‘super-injunction’ surrounding John Terry’s extra marital affair – it was not necessary or proportionate having regard to the level of interference with the footballer’s private life.
LNS v Persons Unknown
Conflict between different Rights and Freedoms > Contempt of Court >
What is the structure for a Contempt Question?
Aim of Contempt of Court
- then based on facts:
1. Strict Liability Rule
2. Is it a publication?
3. Are the proceedings active?
4. Risk of prejudice?
5. Defences?
6. Does section s.5 apply?
Conflict between different Rights and Freedoms > Contempt of Court Act 1981>
What are the aims of Contempt of Court cases?
Prevent Publication of material which may prejudice affair trial
Freedom of expression: limited by need to protect administration of justice. Article 6 being an absolute right, prevails over Article 10
CCA 1981 is there for a restriction of Article 10
Civil contempt = disobeying court orders
Criminal contempt = behaviour that prejudices a fair trial in criminal or civil proceedings or brings the courts to disrepute
Conflict between different Rights and Freedoms > Contempt of Court >
What is civil contempt?
disobeying court orders
Conflict between different Rights and Freedoms > Contempt of Court >
What is criminal contempt?
behaviour that prejudices a fair trial in criminal or civil proceedings or brings the courts to disrepute
Conflict between different Rights and Freedoms > Contempt of Court > 1. Strict Liability Rule
Does subsection 1 apply? conduct that may interfere with the course of justice, in particular legal proceedings, regardless of intent to do so.
Conflict between different Rights and Freedoms > Contempt of Court > 2. Is it a publication?
Communication to the public at large/any section of the public (s.2(1)) includes online publications and social media. (Attorney-General v Associated Newspapers limited and NGN Ltd)
Conflict between different Rights and Freedoms > Contempt of Court > Are the proceedings active? (s.2(3))
a) In criminal law, proceedings become active once arrest has been made.
b) in the civil law, when date of the trial is fixed.
Conflict between different Rights and Freedoms > Contempt of Court >
Does the publication create a substantial risk of prejudice?
(a) AG v NGN test:
Two limbs:
1. Is risk of prejudice substantial (substantial = more than minimal) and;
2. is the degree of prejudice serious
(b) Consider the size of newspaper, date of court hearing, and whether judge or jury etc.
Conflict between different Rights and Freedoms > Contempt of Court >
Attorney-General v Associated Newspapers limited and NGN Ltd Risk of Prejudice test
Two limbs:
- Is risk of prejudice substantial (substantial = more than minimal) and;
- is the degree of prejudice serious
Conflict between different Rights and Freedoms > Contempt of Court >
Two limbs:
1. Is risk of prejudice substantial (substantial = more than minimal) and;
2. is the degree of prejudice serious
Attorney-General v Associated Newspapers limited and NGN Ltd
- risk of prejudice test
Conflict between different Rights and Freedoms > Contempt of Court > 5. Defences?
s. 3 The defendant did not know or have reason to believe that proceedings were active at the time of publication;
s. 4 contemporary report of proceedings
Conflict between different Rights and Freedoms > Contempt of Court >
Does s.5 apply?
Not contempt of court if a publication made as a discussion in good faith of public affairs or other matters of general public interest and if the risk of prejudice to particular legal proceedings is merely incidental to the discussion.
Conflict between different Rights and Freedoms > Contempt of Court >
What is significant about s5 of the contempt of court act 1981?
Section 5 is not a defence - it stands on equal footing with s2(2): the prosecution must prove that s2(2) is satisfied and that s2(2) applies.
Conflict between different Rights and Freedoms > Contempt of Court >
Attorney-General v English
Relevant that the article in the case made no reference to the specific proceedings
Conflict between different Rights and Freedoms > Contempt of Court >
Relevant that the article in the case made no reference to the specific proceedings
Attorney-General v English
Conflict between different Rights and Freedoms > Contempt of Court >
Attorney-General v Hislop
Common law contempt of court. this offence is committed where publication is calculated to impede/prejudice administration of justice. Includes recklessness. Defendant may be liable for offences.
Conflict between different Rights and Freedoms > Contempt of Court >
Common law contempt of court. this offence is committed where publication is calculated to impede/prejudice administration of justice. Includes recklessness. Defendant may be liable for offences.
Attorney-General v Hislop
