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SQE1 > Constitutional > Flashcards

Constitutional Flashcards

1
Q

What is EU regulation?

A

Category of secondary legislation in EU law.
Automatically binding on member states and directly applicable.
Became law without state making any further enactments

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2
Q

What is an EU Directive?

A

Secondary legislation within EU law.
Binding on states but member states must implement objectives by making changes in own legal system.

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3
Q

Was EU law supreme?

A

Yes it was

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4
Q

What did European Communites Act 1972 do?

A

Gave effect to EU law following Uk joining the EU.

Made EU law a source of law.

Said that any leg passed previously or to he passed in future has to be construed and have effect subject to EU law. EU law supreme.

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5
Q

What was agreed following brexit?

A

2 treaties

-Withdrawal agreement - took effect 31.01.20 set out arrangement for withdrawal. Provided for transition period until 31.12.20.

  • Trade and co operation agreement. Took effect on 31.12.20 set out future relationship between UK & EU. Due to be reviewed in 2025.
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6
Q

What are the legal implications of brexit?

A
  • EU no longer part of UK law. European Communites Act repealed. Achieved by end of transition period. From 31.12.20 any new regulations and directives would not apply to Uk.
  • retained UK law created. Snapshot taken of all EU law that had become part of UK law and concerted to resigned UK law. Took effect from 31.12.20. Withdrawal act also enabled some provisions to be repealed and amended.
  • end of December 2023, retained Eu law (revocation and reform act) 2023 amended retained EU law and renamed assimilated law.
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7
Q

What changes did the Retained EU Law (revocation and reform) Act 2023 make?

A
  • changed to assimilated EU law

2 categories

  • primary and secondary legislation used to implement EU directives ‘EU derived domestic legislation’
  • EU regulations passed previously are converted to ‘direct assimilated legislation’

Abolished principle of supremacy.

  • Directly assimilated legislation is inferior and subject to all other domestic enactments as far as incompatible with them. If conflict, UK law has preference.
  • Exception however, minister can make exceptions by passing regulations that specify what assimilated law tsaked priority. Can exercise until June 2026.
  • also power to restate secondary assimilated law until June 26
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8
Q

How do the courts interpret asimulated law?

A

Generally not bound by decisions of CJEU following end of transition period. May have regard to decisions. Persuasive but not binding.

Retained EU case law now called assimilated case law. Formed of CJEU decisions laid down before end of transition period. Binding on all domestic courts other than CoA and Supreme Court. They can depart when seems right to do so.

It court considers provision of direct assimilated legislation incompatible with any domestic enactment, must make incompatibility order.

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9
Q

What is considered assimilated EU case law?

A

1) Judgment of CJEU issued before end of transition period (Dec 2020) and
2) involves interpretation of assimilated EU law

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10
Q

Can devolved nations modify assimilated EU law?

A

Yes if within legislative competence.

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11
Q

What is the withdrawal agreement?

A

International treaty between UK and EU.
Supreme.
If conflict between AoP, AoP disapplied

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12
Q

If conflict between AoP enacted before exited EU and EU regulation, what is superior?

A

Regulation will form part of retained assimilated law, which is law only to the extend that it doesn’t conflict with other legislation

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13
Q

What does s29 of the European Union (Future Relationship) Act 2020 do?

A

Amends all UK primary and secondary legislation prior to 31 Dec 2020 to be in line with trade and co operation agreement between the UK & EU. Does not apply to laws passed after 31 Dec 2020

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14
Q

What does section 7 of the HRA do?

A

Under s7, breach of public authority duty to comply with ECHR under s6 can be challenged by JR and can be made in any legal proceedings under s7(1).

Can be made in criminal trial alongside defence.

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15
Q

What does it mean when a royal prerogative power is non justiciable?

A

For some powers eg knighthoods. Court can only check whether the power exists, cannot use it to review the exercise of it.

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16
Q

When can a senior police officer impose conditions on a public assessbly?

A

Under s12 POA 1986, can impose conditions if reasonable believe, having regard to local area that it will:
- cause serious damage to property
- disorder, disruption to the life of the community
- noise would seriously disrupt or have a significant impact or
- will intimidate others or compel them to do something they have right to do or act in that they do not have a right to do

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17
Q

How does parliament hold the government to account?

A
  • Prime ministers questions
  • opposition day debates
  • committees
  • general debates
  • motions
  • ability to vote out via vote of no confidence
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18
Q

What is the process for passing a bill in parliament?

A
  • 1st reading (introduces)
  • 2nd reading (1st opp to be debated)
  • Committee stage (scrutinised line by line)
  • Report stage bill received from committee and reconsidered by chamber.
  • 3rd reading (final reading)
  • amendments considered by other house (ping pong)
  • once agreed, send for royal assent
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19
Q

Can a trespassory assembly be banned?

A

Yes, senior police officer can apply to Council (London apply to SoS) to ban if reasonably believe that one is intended to be held:
- held on land which public have no permission or likely to exceed any permission they have or they have a limited right of access in a public area (eg highway) and
- will seriously disrupt the life of the community or damage an area of scientific interest or historic significance.

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20
Q

What is the Sewel convention?

A

Parliament should ask for consent from devolved parliament for doing so.

UK Parliament can pass any law wants but should seek consent

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21
Q

What is a non-reserved matter?

A

Devolved matter.

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22
Q

What is the rule of law?

A

Principle that requires:
- that law should be applied fairly
- government should act according to the law and
- laws shouldn’t have retrospective effect

Features:
- no punishment without breach of law
- preference for law to determine actions of gov over discretion
- no person above the law
- law should be accessible, clear and predictable
- law must provide a method for resolving civil disputes and these should be fair
- fundamental rights to give effect to rule of law, right of access to courts, decisions of gov need to be fair.
- court will seek to interpret leg in line with full rule of law.

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23
Q

What is the courts constitutional role?

A

Interpret legislation

Develop and expand common law

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24
Q

What is the royal prerogative?

A

Collection of powered, which common law recognises as belonging to the Crown (Government)

Can be abolished or regulated by AoP

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25
Q

What is the ram doctrine?

A

Sometimes referred to as ‘Third Source Powers. Powers incidental to statutory and royal prerogative powers. Give government powers to carry on with ordinary business when not explicitly authorised by statute or RP

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26
Q

What is a constitutional convention and what are some examples?

A

Arise out of previous practice. Duty bound to follow. If don’t, criticised.

Examples
Monarch will always give bill assent
Circumstances when gov ministers must resign due to personal conduct
UK parliament wont legislate on devolved matter without consent
Monarch acts on advice of Prime Minister
Gov ministers have seat in either HoC or HoL
Monarch will appoint MPs on recommendation of PM

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27
Q

What are the elements of parliamentary sovereignty?

A
  • Parliament has the right to make or unmake any law whatsoever
  • No person or body is recognised as having the right to override of set aside an Act of Parliament
  • No parliament can bind its successor
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28
Q

How does an international treaty have domestic effect?

A

Ratification has no effect on domestic law, binding on UK in international law only.

To have domestic effect, must be incorporated into Act Of Parliament

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29
Q

Can Parliament legislate beyond boundaries of UK?

A

Yes

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30
Q

What is the enrolled bill rule?

A

Courts will not question validity of legislation that has been passed and granted royal assent.

If asked to consider validity, just check parliamentary roll to see if passed.

Courts wonder consider process or irregularity.

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31
Q

Can Parliament bind their successors?

A

No, any Parliament can repeal an Act expressly or impliedly.

Expressly - say what’s repealed
Impliedly - newer leg deals with same subject matter, if conflict new act given effect.

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32
Q

What is parliamentary privilege?

A

Rules which apply to members of HoL or HoC

Statements said in Parliament cannot be challenged before courts
Absolute freedom of speech in Parliament

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33
Q

How is the rule of law given effect?

A
  • Fundamental rights give effect to it.
    Only parent can interfere with these through an AoP authorising it.
  • HRA requires leg to be interpreted in a way which respects the human rights protected.
  • decisions of public authorised can be reviewed by Judicial review
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34
Q

What is the composition of parliament?

A

House of Commons
- 659 elected MPs who represent constituencies. Belong to political parties.
- speaker of HoC chosen by all MPs and maintains order and ensures comply with rules. Politically impartial.
- General elections are elections to HoC.
- no qualifications, must be over 18, cannot be from non-commonwealth country or member of HoL, cannot be member of judiciary (high court, CoA, Supreme Court), civil servants, member of armed forces, police or members of parliament outside of commonwealth.

House of Lords
- unelected, around 800 members.
- hereditary peers - passed down, only 92 allowed to have seat
- life peers - appointed by monarch on advice of PM, Barons, not passed down, majority
- lord spiritual - most senior 26 bishops of CoE
- law lords - appointed when HoL was highest appellant court in Uk. Replaced by Supreme Court

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35
Q

When is a general election called?

A

Held 25 working days after Parliament is dissolved.

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36
Q

What is dissolution of parliament?

A

Means Parliament has ended, no more legislation can be passed, all committee inquiries stop, all seats on HoC are vacated, no more MPs.

Monarch summons new parliament to meet at Westminster after date of general election.

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37
Q

When must parliament be dissolved?

A

Dissolution and Calling of Parliaments Act 2022 - Parliament dissolved 5 years after date it first meets and can be dissolved earlier by Monarch exercising royal prerogative. Only happens after request from PM.

PM usually requests in 4/5th year if have large majority.

If PM loses vote of no confidence in HoC, expected to immediately request Monarch dissolves.

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38
Q

What’s a by election?

A

When seat in HoC becomes vacant through death or retirement, by election triggered in constituency to select new member

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39
Q

When is an MP recalled and what does this mean?

A

Recall of MPs Act 2015
If MP been:
- convicted of an offence and sentenced to prison
- suspended by HoC for 10 days for misconduct or
- found guilty of providing false or misleading information in relation to expenses

Sparked will notify constituency, triggers recall petition. If more than 10% of electorate signs, then by election held. MP is ‘recalled’ back to consistency, if want to can contest the by election.

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40
Q

How long does a session of parliament last?

A

Parliament can last for 5 years, split into sessions of around 12 months, starts around May.

Starts with kings speech (monarch reads out speech prepared by gov outlining their proposals for the session).

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41
Q

Why is parliamentary session significant?

A

Because a bill must pass HoC and HoL and receive royal assent before the end of the session in which it is introduced.

Exception where HoC or HoL agreed to carry over into next session.

In between session, Parliament can’t meet and all business suspended

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42
Q

What is prorogation?

A

Royal prerogative power which is exercised by the monarch in advice of PM. Ends session and begins new session of parliament.

Open to abuse. Power has to be exercised reasonably. If not short gap, needs to be justified.

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43
Q

How are the powers of the unelected HoL limited?

A
  • Salisbury convention - if bill if implementing a manifesto commitment, then HoL will grant a second reading as a matter of course and will not otherwise block the legislation. Can make amendments however.
  • Suspensory veto under Parliamentary Acts 1911-1948. If HoL block legislation in one session of parliament which is reintroduced and passed by HoC in next and HoL block again, bill can be sent for Royal assent. HoL only have a suspensory veto.
  • Year needs to have elapsed between bill being granted 2nd reading in first session and being granted 3rd reading in second.
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44
Q

What is secondary legislation?

A

Secondary legislation = legislation made by government under authority of AoP. Used to implement policies or provide detailed regulations for a gov scheme to operate.

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45
Q

How is secondary legislation enacted?

A

2 procedures:
- Negative resolution procedure - draft of secondary leg laid before HoC & HoL. Takes effect on date stated in draft unless within 40 days of being laid, either house votes in favour of rejecting the secondary legislation. If no motion passed, becomes law. No amendments can be made to draft.

  • affirmative resolution procedure - draft laid before HoC & HoL both houses must expressly vote in favour of legislation for it to become effective.
    In HoC, leg can be debated in chamber or committee but no amendments can be made.

Parliament Acts 1911/1949 don’t apply to secondary legislation, HoL can block it.

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46
Q

What are Henry VIII powers?

A

Powers granted to gov to amend primary legislation, ok for minor amendments, if used more broadly can be breach of separation of powers as lawmaking shifting from legislature to executive.

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47
Q

Can secondary legislation be challenged before the court?

A

Yes, can be struck down by courts is goes beyond power granted to gov or breaches fundamental right or rule of law.

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48
Q

What is parliamentary privilege?

A

Freedom of speech in Parliament without fear of being sued.

Sub judice rule - MPs and Peers don’t refer to cases which are currently before the court during debates.

Exception - use of parliamentary debates (official records) to aid interpretation of legislation by court

Should only refer to debate if:
- legislation unclear,
- there is a statement from minister which assists court
- that statement is sufficiently clear

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49
Q

What is the role of the Monarch?

A

Head of state, representative of state at home and abroad. Head of armed forces, defender of the faith, head of Church of England, governance of self governing crown dependencies such as Channel Islands, head of state for commonwealth countries.

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50
Q

Can any new royal prerogative powers be created?

A

No, bill of rights 1689 made clear that Parliament not Crown was Sovereign.

Parliament can exercise sovereignty to abolish any power by passing AoP. No new ones can be created, Gov must seek authority from Parliament though AoP

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51
Q

If there is an overlap with statute and royal prerogative, what prevails?

A

Statute. If act covers something previously done under royal prerogative, without expressly abolishing it, then act prevails

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52
Q

Do statutes bind the Crown?

A

No, unless expressly stated or by necessary implication

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53
Q

What are ministerial prerogative powers?

A

Exercised by government ministers on behalf of the Crown. Monarch approves decisions made by ministers, sometimes non existent.
- decision to grant pardon
- decision to grant passport
- power to acquire and cede territory
- negotiation and ratification of international treaties.
- diplomacy in general, recognising states, government relations, appointment of ambassadors etc
- deployment and use of armed forces over sea
- declaration of war
- use of armed forces within UK to maintain peace and support police
- PMs power to appoint and remove ministers from government
- grant and revocation of passports
- grant of pardons and power to stop criminal proceedings

54
Q

What are personal prerogative powers?

A

Exercised by Monarch but heavily constrained
- appointment of Prime Minister
- power to dismiss government
- power to prorogue Parliament
- power to dissolve Parliament
- granting royal assent

55
Q

What are miscellaneous prerogative powers?

A

Archaic
- right to mine precious metals
- right to supervise and construct harbours
- right to mint coinages
- right of crown to claim ownership of sturgeon, dolphins and whales on certain parts of the Thames

56
Q

What is the judicial committee of the privy counsel?

A

Hears appeals from some
Common wealth countries.

57
Q

How are treaties ratified under royal prerogative?

A

Ratification is prerogative power but subject to controls by Parliament under Constitutional Reform & Governance Act 2010. By statute:

  • Gov required to lay draft of treaty before Parliament.
  • Gov can ratify only if 21 days passed and neither Hoc or HoL voted to state that shouldn’t be ratified.

If 21 days passes, can ratify.

If either house votes against, Gov can explain why still wish to ratify, HoC then has further 21 days to vote stating that shouldn’t be ratified, if no vote held, Gov can ratify. HoL has no role.

If exceptional case, Gov can bypass need to lay before parliament.

58
Q

What is the cardinal convention?

A

Monarch always acts on advice of ministers, in particular the Prime Minister even if disagrees. Must not make any public statement disagreeing.

Monarch has right to be consulted, encourage and warn the government.

Weekly meeting with PM.

59
Q

How is royal prerogative power to the deploy the armed forces regulated?

A

Since Iraq war, government usually sought support of House of Commons before deploying armed forces

60
Q

How is the royal prerogative power to appoint the prime minister constrained?

A

By convention, monarch must appoint the person who:
- has support of majority of MPs in common. Leader of party with majority seats

61
Q

What happens if there is a hung parliament?

A

Where election does not result in majority for 1 party
- PM remained in office until clear lost confidence of HoC
- monarch doesn’t get involved in deciding who is next PM
- parties negotiate with eachother to agree deals
- once agreement reached, if necessary PM resigns and monarch appoints the person who can command confidence of HoC

62
Q

What powers does the prime minister have?

A
  • Power to change organisation of government. Can abolish, merge or create new departments.
  • Responsible for civil service.
  • Weekly meeting with Monarch
  • Responsible for relationship with UK gov & devolved governments
  • Responsible for national security and intelligence
  • Responsible for decisions to deploy armed forces but usually only after contained suppose of HoC
  • Representing UK at international meetings.
63
Q

How are ministers appointed?

A

Appointed by monarch on advice of PM.
Senior ministers are heads of departments (secretary of states). Junior ministers appointed and lead divisions within department.

Ministers must have seat in Hoc or HoL. If not member of HoC can be appointed to HoL as life peer

64
Q

How is the cabinet composed and what is its role?

A

Prime minister
Chancellor of exchequer
Chief Secretary to the Treasury (Chancellors deputy)
Secretaries of States who lead Gov departments
Lord Chancellor and Secretary of State for justice
Leader of HoC
Leader of HoL
Chief whip

Role = make decisions of government collectively. Weekly meetings.
Matters to go to cabinet:
- decisions to take military action
- determine legislative agenda
- constitutional issues eg devolution
- significant domestic policies and international affairs
- national emergencies

65
Q

What is a cabinet committee?

A

Sit below main cabinet, subcommittees.
All established by PM who also decided their membership.
Allow for matters to be discussed without going to full Cabinet.

Decisions made in Cabinet Committee have same authority as Cabinet decision.

66
Q

What is the Carltona Doctrine?

A

Principle that when Parliament grants a power to the Secretary of State in an AoP, that power can be exercised by a civil servant within the SoS’s department

67
Q

What is the Privy Council?

A

Main role = approve decisions made elsewhere:

Functions - pass orders in council (form of legislation). Some are made under RP which makes them primary legislation, most granted under powers granted by statute so are a form of secondary legislations.

Limited to specific issues - Approved texts of Royal Charters under RP.

Appointments made for life by Monarch on advice of PM

Meetings held in secret and require monarchs attendance.

68
Q

What is collective responsibility?

A

2 aspects:
1) confidentiality - discussions within government regarding policy are confidential
2) unanimity - once decision reached through cabinet, all ministers must publicly support or resign

69
Q

Can collective responsibility be set aside?

A

Yes on special occasions eg referendums.

70
Q

What individual responsibility do minsters have?

A

Must take responsibility and account for operation and conduct of their department.

  • duty not to mislead Parliament. If they do by accident, must correct as soon as possible. If do on purpose, must resign.
  • must give account for actions of department. Must respond to criticism and concerns. Must respond to those in a way that ensures parliament will have confidence in minister and the government.
  • must take responsibility for actions of department, must personally take the blame. May result in resignation.
  • if policy failure - must take responsibility
  • if operational failure - must give account and take steps to ensure doesn’t reoccur.

Private conduct - if falls short of expectations, if breach of ministerial code, eg conflict, should resign. If embarrassment, eg sex scandal should resign.

71
Q

How are the government held accountable to parliament?

A
  • PM Question time - PM answers questions from all political parties. Leader of opp can ask 6 questions. Mini debate. Once a week
  • Ministerial questions - MPs able to ask ministers questions from Gov department. Rita, questioned once every 5 weeks. Must relate to activities of department, can’t ask Qs about local authorities, monarch, affairs of other countries, developed matters or cases in court.
  • Written questions can be asked at any time and department has 7 days to respond
  • Opposition business, 20 days allocated to opposition who can choose to debate policy area, and receive response from government.
  • Urgent questions - MPs can apply to speaker to ask questions that’s day. Speaker will agree if pressing matter of public interest and no other way for it to be debated. Minister has to respond and explains. Debate then follows
  • Select Committees - most strutiny. 2 types 1) departmental select committee than shadow gov department 2) other select committed cut across departments. Committed chose matter to investigate, questions ministers and other witnesses and invites expert evidence.
72
Q

Can the Scottish Parliament, Scottish Government, Welsh Parliament and Welsh Government be abolished?

A

No, UK parliament has legislated that permanent parts of constitutions.

Not abolished unless people of Scotland or Wales vote in favour of abolition at referendum.

To reserve devolution, need vote of parliament and referendum.

73
Q

Is Northern Ireland’s devolution permanent?

A

Devolution in NI formed as part of Good Friday agreement - 1998z international treaty between UK and ROI and agreement between NI leaders.

Under Good Friday agreement, Assembly and Executive will govern NI. If majority in NI who want to join ROI, referendum can be held giving them the choice to remain part of UK or join ROI

74
Q

What is the sewel convention?

A

If UK Parliament is going to legislate on a devolved matter, consent of the devolved nation will be needed via a legislative consent motion.

If refuses, UK Parliament can still technically pass it.

75
Q

What happens is devolved legislatures pass legislation that exceeds their powers?

A

Courts in that nation can refer matter to Supreme Court for a decision.

76
Q

Who can refer a bill to the Supreme Court?

A

Northern Ireland
- Advocate general
- Attorney general

Scotland
- Lord Advocate
- Advocate General
- Attorney General

Wales
- Counsel General
- Attorney General

77
Q

What is judicial review?

A

Method by which courts can review actions and decisions of executive. Maintaining rule of law.

1) whether application meets requirements?
2) whether ground established?
3) what is appropriate remedy?

78
Q

What are the requirements for judicial review?

A

Claim must be against public body
- Secretary of State and government departments
- Local government
- Agencies set up by government by statute or under royal prerogative

If contract exists, better regulated by private not public laws

Time limit
3 months from after issue store.
If planning decision, 6 weeks from date of decision

79
Q

What is the procedure for making an application for judicial review?

A

Pre action protocol should be followed.
LBA should be sent and defendant respond in 14 days.

2 stages
1) permission stage, C applies to court for permission to continue claim. Decided on papers but may have a hearing.
2) If permission granted goes to 2nd stage, full hearing.

80
Q

When can the court refuse an application for permission to apply for judicial review?

A

Where the court believes that even if the claim is successful, highly likely that outcome wouldn’t be substantially different.

May have valid argument but outcome from JR wouldn’t be substantially different.

81
Q

What shouldn’t be dealt with as judicial review?

A
  • where there is a contract
  • hypothetical situation
  • cannot resolve factual disputes, only legal.
82
Q

What is the test for standing for judicial review?

A

Claimant must have sufficient interest in issues.

Reviewed at permission stage. If no standing, court will reject, if not obvious, court should decide at full hearing.

Groups of people who lack standing do not gain it by forming association but group/association may have standing if:
- responsible
- well resources
- has expertise
- and/or unlikely to be an alternative claimant

83
Q

What are the grounds for judicial review?

A

1) illegality
2) procedural impropriety
3) unreasonableness
4) breach of legitimate expectations

C Must establish one of these grounds to be successful.

84
Q

What does the ground of illegality include?

A

Decision maker must understand law correctly and give effect to it.

Acted under error of law
- ouster clauses interpreted restrictively meaning that no legally valid decision can be questioned but courts can determine whether decision made lawfully

Failure to comply with specific legal duty
- Eg public sector quality duty, requires that authorities take into account quality considerations when making decision. Need to show due regard to: eliminating discrimination, advancing equality and removing or minimising disadvantages.

Unlawful delegation of power to another
- power delegated can’t be delegated again without AoP saying it can.

Took into account irrelevant considerations/failure to take into account relevant consideration
- that when exercising a power, public authority required to only take into account relevant considerations and not irrelevant ones. What’s relevant depends on act granting power.

Ultra vires
- acting outside powers, matter of statutory interpretation.

85
Q

What does the ground of procedural impropriety include?

A

Focused on way decision made and process followed.

Failure to follow mandatory requirements
- may be laid down in legislation eg must or shall
- may result in decision being invalidated.
- failure to follow discretionary requirement may not result in being valid.

Failure of common law right to be heard
- when a right is removed from a person they should be given opportunity to hear case against them and respond. Can be constrained in application case as seeking to acquire a right.

Failure of common law right to unbiased decision maker
- actual bias is present when decision made and actually motivated by bias, hard to prove.
- automatic disqualification rule. If decision maker has financial interest, automatically disqualified from hearing. If non financial interest and closely connected to issues, also disqualified.
- apparent bias is broader and covers situations which don’t fall into above. Test = whether fair minded and informed observer informed of facts would conclude that there was a real possibility of bias. Looks at what it looks like to others, even if not bias.

Failure of duty to consult
- no general common law duty to consult. But may arise where:
- statutory duty to consult
- promise to consult
- established practice of consultation and
- exceptionally, where failure to consult would lead to unfairness.

Failure of duty to give reasons
- no general duty to give reasons. However:
- where subject matter or interest is important, fairness requires reasons and
- if decision appears to be aberrant, fairness may require reasons to be given so person affected can decide if can challenge.

86
Q

What does the ground of legitimate expectations include?

A

Can arise where public body given rise to belief that power will be exercised in certain manner. Can be due to:
1) promise or assurance or
2) previous action by public body

Court may require that public body bound by legitimate expectation and required to give effect to it. Could be people be consulted or policy being made available. Decision invalid if breached.

Previous action
- can give rise to legitimate expectation

Substantive legitimate expectation
- exceptionally, court are willing to give effect to substantive legitimate expectation if promise made is particularly important and only made to small number of people.

87
Q

What does the ground unreasonable and irrationality include?

A

Decision considered to be so outrageous or absurd that outside power of decision maker and cannot be considered lawful.

Test for unreasonableness:
- decision must be so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied their mind to the question could have arrived at it

88
Q

How does the unreasonableness test apply to claims under HRA?

A

It isn’t, to high and broad. Proportionality test applied, 3 part test.
1 - is the object of policy sufficiently important to justify limiting a fundamental right?
2 - are measures designed to meet legislative objective rationally connected to it? And
3 - is the interference with the right no more than necessary to accomplish the objective?

89
Q

What are remedies for a judicial review claim?

A

Quashing order - renders decision void. New decision needed.
Mandatory order - requires D to act in a particular manner
Prohibiting order - orders D not to act in a particular manner
Injunction - prevents party acting in certain manner or requires them to act according to instructions of court
Declaration - declares that decision or action was unlawful

May be combined and are discretionary.

90
Q

What does s1 of HRA 1998 do?

A

Outlines convention rights and incorporates into UK law.

91
Q

What are the 3 types of human right?

A

Absolute - cannot be limited by state
Eg Art 2 right to life, Art 3 prohibition of torture, Art 4, prohibition of slavery, Art 7 prohibition on retrospective criminal offences

Limited - can be limited but only in accordance with article itself
Eg Art 5 right to liberty and security, Art 6 right to fair trial

Qualified - can be limited by state in order to pursue legitimate interest as outlined in article.
Eg Art 8 right to private and family life, Art 9 freedom of thought & religion, Art 10 freedom of expression, Art 11 freedom of assembly and association, Article 14 freedom from discrimination,

92
Q

When a state is seeking to restrict a qualified right what must it consider?

A

Must be law allowing qualification. Legitimate aim, necessary and proportionate.

Restriction must be necessary and proportionate.

3 part test:

1) is the object of policy and legitimate aim pursued sufficiently important to justify limiting a fundamental right? Examples of legitimate aim - maintaining judiciary authority, prevention of crime, national security, protection of others, moral reasons

2) is the measure designed to meet the objective and rationally connected to it?

3) is the interference with the right no more than necessary to accomplish objective?

4) is the measure reasonable and balanced in all the circumstances given the competing needs of individual and wider community?

93
Q

What is judicial deference?

A

More politically controversial the issue, more likely the courts when applying proportionality test will defer to government and parliament.

Court recognised that decision maker will likely have had more information available to them at time of making decision than the court do.

Greater level of deference shown likely in case which involves national security, if greater level shown, less argument and evidence needed to show proportionate

94
Q

What is margin of appreciation?

A

Public authority may argue they are entitled to discretion (margin of appreciation) over to what extent right can be restricted. Applies when seeks to limit qualified right as part of legitimate purpose
- if consensus amongst states, narrow margin. Will conduct full and detailed review of interference.
- if no consensus, margin likely to be broader and more discretion given.

95
Q

What is derogation and what are the limits?

A

States can derogate from most articles, means no longer required to comply.

Cannot derogate from:
- article 2, right to life,
-article 3, prohibition of torture
- article 4(1) prohibition of slavery
- article 7 prohibition of retrospective criminal offences

Can derogate in event of war or public emergency. Only to extent strictly necessary required by situation.

S14 HRA can issue derogation.

96
Q

What does s2 of the HRA say?

A

Interpretation of convention rights. When court dealing with a case that involves convention right, court must take into account any ECHR judgement. If clear line of authority, expected to follow. Mirror principle.

97
Q

What does s3 of HRA 1998 provide?

A

Requires all courts to, so far as possible, interpret legislation in a way that is compatible with convention rights, as interpreted by ECHR. Allows courts to depart from basic language

98
Q

What does s4 HRA 1998 provide?

A

If not possible to interpret AoP or secondary legislation in a way that complies with convention rights, court can make declaration of incompatibility. Doesn’t make invalid, signal to reconsider.

99
Q

How can legislation that has been deemed incompatible be amended?

A

Can be repealed or amended by normal procedure. But can be slow.

S10 provides for 2 fast track procedures.

1) non urgent matters - remedial order becomes law following approval of HoL & HoC after 60 days of being published and presented to both houses.
- draft becomes law if approved by both houses after 60 days

2) urgent matters - if viewed as urgent, remedial order can be made immediately, must then be laid before Parliament and will cease to have effect if within 120 days, either house hasn’t passed a resolution approving the order.

100
Q

What does s6 HRA 1998 do?

A

Makes it unlawful for public authority to act in a way that is incompatible with convention right. Duty.

Extra statutory ground of judicial review, if decisions of public body, can be challenged on basis of breach of human right. Can bring claim under s7.

HoL & HoC expressly excluded.

Exception
- If public authority couldn’t have acted any differently without violating the law as laid down in AoP, acts of public authority can’t be found unlawful if legislation cannot be read in a way that’s compatible with convention rights. In this situation, declaration of incompatibility usually issued.

101
Q

What does s7 HRA 1998 do?

A

Sets out procedure for claim under s6.

  • can only be bought by victim of unlawful conduct. Narrower than sufficient interest. No representative standing.
  • claim under s6 must be brought within 1 year of act complained of
102
Q

What does s8 HRA 1998 provide?

A

Remedies
- court can grant a remedy that’s within powers and considers just and appropriate.
- discretionary remedies.
- if court has power to award damages thinks power to award damages for a claim under s6.

103
Q

What does article 14 provide?

A

Freedoms and rights contained in convention shall be achieved without discrimination on grounds of sex, race, nationality, origin, colour, language, political views, religion, birth, property or other status.

Other status can include sexual orientation, marital status, asylum seeker status.

Limited protection as claim under article 14 can only be brought if attached to breach of another convention right. Cannot being free standing claim.

Narrow margin of appreciation granted.

104
Q

Who can bring a claim under the equality act 2010 and when?

A

Act protects against discrimination based on sex, sexual orientation, gender reassignment, race, disability, religion or belief, age, marital status, pregnancy or maternity.

Freestanding claim can be made under EA 2010.

In employment context, person clarified as worker can bring claim against employer or organisation. Includes private employers.

105
Q

What types of act is prohibited under the equality act?

A

Direct discrimination
Indirect discrimination
Harassment
Victimisation

106
Q

What is a breach of the peace?

A

Under common law, police have duty to maintain ‘kings peace).

Must ensure citizens go about ordinary business free from undue interference from other citizens.

107
Q

When does a breach of the peace occur?

A

Breach occurs when:
- when a person is genuinely in fear of harm to themselves or to their property in their presence as a result of an assault, affray, riot or other disturbance
- when harm has actually been done to a person, or to property in their presence or
- when harm is likely to be done to a person or to property in their presence. Must be imminent

Verbal insults insufficient, must be so serious that make someone believe imminent right of assault.
Can take place in public or private premises

108
Q

What is the effect of breach of peace?

A

Police officer can take such steps as reasonable to terminate a breach or prevent a likely one occurring.

Includes arresting person or forcing entry into private premises, or techniques to subside.

109
Q

Is breach of peace a criminal offence?

A

No, but person who breached peace may be subject to binding over order which requires person arrested to maintain the peace and keep good behaviour for a specified period of time

110
Q

When is notice required for a public procession?

A

Advanced notice required it intended to achieve:
- demonstrate support or opposition to the views or actions of a person or persons
- publicise a cause or campaign
- mark or commemorate an event

111
Q

What are the notice requirements for public procession?

A

Must:
- be given at least 6 clear working days (not including date notice given or date of profession) before proposed date of procession, if not possible, as soon as reasonably possible.
- be delivered to police station located in area where it will be held and
- specify date, time, route and name and address of organised

Failure = offence and fine

Exceptions for commonly or customarily held processions eg remembrance Sunday

112
Q

What conditions can be placed on processions?

A

On receiving notice, senior police officer (either CC or most senior officer present at match) can impose conditions if reasonable believe, considering time, place, circumstances, route that:

  • procession will result in serious public disorder, serious damage to property or serious disruption to life of community
  • purpose of procession is to intimidate others with view to compelling them to do or not do something they have a right to do or not do.
  • those taking part in procession are likely to generate such noise that may result of serious disruption to activities of an organisation, or have a significant impact on persons in the vicinity of a procession.

Serious disruption = unable to reasonably carry on activities for prolonged period of time

Serious impact on persons = result in alarm, distress, intimidation or harassment of persons of reasonable firmness with characteristics of persons in that vicinity.

113
Q

What conditions can be imposed on public procession?

A

Any condition that senior police officer thinks necessary to prevent disorder, damage, disruption, impact or intimidation

May be route or excluding from public place

114
Q

What is considered serious disruption to life of the community?

A

Included where procession make result in:
- significant delay to delivery of time sensitive product to consumers or
- prolonged disruption of access to any essential goods or services including supply of money, food, water, energy food, system of communication, place of worship, transport facility, educational institution, health services

115
Q

What are the consequences of breaching conditions of public procession?

A

Criminal offence to participate, organise, or entice anyone to breach condition imposed which they know or ought to have know has been impose.

Defence if failure to comply arose from circumstances beyond their control

116
Q

Can a public procession be banned?

A

Yes if senior police officer thinks no conditions can prevent serious disorder, can apply to ban for up to max 3 months
- if outside London, application made to local council
- if inside London, application made to Home Secretary

117
Q

What is a public assembly and when can conditions be imposed?

A

Public assembly is assembly of 2 or more people in public place wholly or partially in the open air.

If senior police officer believes that a public assembly:
- being held or intended to be held may result in serious public disorder, serious damage to property or serious disruption to life of community or
- was organised with the intention to intimidate others with a view to compelling them not to do an act they have a right to do, or to do an act they have no right to do.

Can impose any condition thinks necessary to prevent but must be proportionate to aim.

118
Q

What additional conditions can be put in place regarding noise from a public assembly?

A

If senior police officer reasonable believes, noise generated by persons taking part in it may result:
- serious situation to the activities of an organisation or
- have a significant impact on persons within the vicinity of the assembly

Then they can impose directions necessary to prevent impact.

119
Q

What is a tresspassory assembly?

A
  • 20 or more people
  • on land public have no or limited right of access to
  • which likely to be held without permission of occupier or exceed permission granted or any public right of access and
  • may result in serious disruption to life of the community, or cause significant damage to land, buildings or monuments of historic, architectural or scientific importance
120
Q

Can a trespassory assembly be banned?

A

Yes, if chief constable believes that one is likely to be held, can apply to council to ban. In London, application made to Home Secretary.

Police have the power to stop anyone they reasonably believe to be on their way to a trespassory assembly which has been banned and direct them not to attend.

Criminal office to participate or invite anyone else to participate in assembly if know it’s been banned.

121
Q

How can a case be brought against the UK in the ECtHR?

A

State v state
Individual v state but only if changed all options in UK Court. Must be victim and different significant disadvantage as a result. Must be brought to ECtHR within 4 months of UK’s courts decision.

122
Q

What does article 2 right to life mean?

A

Prohibits state from taking life and positive duty to protect.

Not deporting someone to country where face execution.

Duty placed on state to carry out full investigation where alleged breach and loss of life

Absolute right. 2 exceptions, 1) must be absolutely necessary and 2) can only be taken to achieve one objective, defend someone from unlawful violence, effect lawful arrest or stop prisoner escaping or quell a riot.

Honest believe that one of objectives being carried out and absolutely necessary valid, even if mistaken.

123
Q

What does article 3, prohibition on torture, inhumane or degrading treatment mean?

A

State prohibited from carrying out acts on someone and has duty to ensure citizens don’t do this by passing clears laws.

Applies if real risk of being tortured etc if deported. Breach if deported.

124
Q

What does article 4, prohibition on slavery mean?

A

Prohibition on slavery, service and forced labour.

Certain forms of work aren’t breach eg, work done by convicted prisoners as part of sentence, emergency work, work that normal citizen does, conscription, jury service

125
Q

When can article 5 right to liberty and security be limited?

A

Restriction not same as deprivation.

Liberty can be deprived of lawfully
- must be on lawful basis
- must be necessary
- length must be necessary
- records must be kept

If part of arrest, to be lawful must be:
- reasonable suspicion of breach of law
- reasons for arrest
- prompt and fair trial

126
Q

What does article 6 mean?

A

Right to fair trial

Applies to criminal and civil.
- must have access to court
- independent and impartial judge
- public trial
- reasonably time
- able to participate
- illegally obtained evidence can’t be used
- D innocent until proven guilty
- right to be informed
- time to prepare defence
- right to legal assistance
- right to silence

127
Q

What is article 7?

A

Prohibition on retrospective crime.
- court can’t impose harsher sentenced that applicable.

128
Q

What is Art 8, right to respect for private and family life?

A

Covers lots of things
- once’s body
- privacy
- correspondence
- sexuality
- family life
- home life

129
Q

What is article 9, freedom of thought, conscience and religion?

A

freedom of religions = absolute right
way of showing it = qualified

130
Q

What are qualified rights?

A
  • article 8, right to respect for private and family life
  • article 9, freedom of thought, conscience and religion
  • article 10, freedom of expression
  • article 11, freedom of peaceful assembly and association
  • article 12, right to marry
  • article 1, protocol 1, protection of property
  • article 2, provoked 1, right to education
131
Q

What are absolute rights?

A
  • article 2, right to life
  • article 3, prohibition of torture
  • article 4, prohibition of slavery, servitude and forced labour
  • article 6, right to fair trial
  • article 7, prohibition on retrospective claims
  • article 9, freedom of religion/thought absolute
  • article 3, protocol 1, right to free elections
  • article 1, protect 13, abolition of death penalty
132
Q

What rights are limited?

A
  • article 5, right to liberty and security
  • article 6, right to trial being in public

SQE1 (17 decks)

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