Constitutional and Administrative and EU Law Flashcards
What are the feature of the UK Constitution?
It is an uncodified constitution that lacks one single definitive source containing its most important rules which can be legal sources as well as non-legal but politically binding. Highest form of law is an AoP
The UK also does not have any entrenchment - any law/rule can be changed by Parliament
What is Administrative Law?
decisions made by the government are made according to the law
What is Public Order Law?
(Public Order Act 1986) establishes that public authorities have the power to limit the right of people to protest
How is EU law retained in the UK?
UK part of the EU from 1973 - 31 jan 2020
EU law was a source of law through European Communitiies Act 1972.
At the end of transition period, UK left EU but retained EU law through:
European Union (Withdrawal) Act 2018
European Union (Withdrawal Agreement) Act 2020
What are the 3 Constitutional Principles of the UK?
- Parliamentary Sovereignty - highest form of law is an Act of Parliament and if change is desired only an ordinary AoP is required
- The Rule of Law - law should be applied fairly, no retrospective effect and government required to comply with law
- Separation of Powers - executive, legislature, judiciary
Give Examples of Acts of Parliament that have Constitutional Implication
Magna Carta 1297 - legal protection e.g. right to jury trial
Bill of Rights 1689 - sovereignty of Parliament over Monarch
Act of Union 1706 - created union of Scotland and England - both governed by one Parliament in Westminster
Parliament Acts 1911 - 1949 - Limited HoL right to veto Bills in the HoC
1998 - various Acts creating Scottish and Welsh Parliament and NI Assembly
House of Lords Act 1999 - removed all but 92 hereditary peers from taking a seat in HoL
Constitutional Reform Act 2005 - created SC and procedure for appointments to judiciary
Succession to the Crown Act 2012 - modernised the line of succession
Is there any power given to the Courts against an Act of Parliament?
Courts cannot strike down a AoP or consider it unconstitutional.
However, they can make a declaration of incompatibility when legislation breaches or is incompatible with rights protected by the HRA 1998.
Courts can interpret legislation and also expand on common law (judge-made law).
What is the royal perogative?
part of common law - powers that belong to the Crown although are now exercised by the government. Most have been replaced by statute.
What is the Ram Doctrine
These are powers given to government to carry out ordinary business of government which are nit explicitly authorised by statue or royal prerogative.
Why is asymmetric devolution?
Over the years, the some of the power of the UK Parliament has been devolved to Wales, Scotland and Northern Ireland with the creation of Welsh and Scottish Parliaments and the Northern Ireland Assembly .
It is ‘asymmetric devolution’ as the powers devolved differ slightly between the different nations and England does not have an equivalent form of devolution.
What is a unitary state?
A state, such as the UK, in which executive and legislative power is concentrated at the centre, as opposed to a federal state.
However, AoP have given Scotland, Wales and NI their own legislatures and governments.
What are some features of Parliamentary Sovereignty?
Parliament can make or unmake any law
Parliament can redefine itself
Cannot bind its successors
Ratification of International law has no effect on domestic law
Parliament can enact legislation that has effect beyond the boundaries of the UK
No one can set aside an AoP even if its unethical
What are some constraints on Parliamentary Sovereignty?
The People - HoC is elected
The Courts - courts can interpret legislation and may strain to do so
What is a practical impact of Parliamentary Sovereingity
The Enrolled Bill Rule - That courts do no question the validity of legislation. If Act has passed the Royal Assent then the courts will give effect to that legislation
Explain the Separation of Powers
SoP means the executive, legislature and judiciary in terms of their function and personnel
Executive:
Government which is appointed by the Monarch (which has prerogative power)
- Seeks approval by Parliament for new laws
Legislature:
- Parliament - House of Commons (elected) and House of Lords (unelected)
- Scrutinises Executive
- Makes Laws
Judiciary:
- Courts and Tribunals (also formally appointed by Monarch)
- can determine power of respective bodies within constitution
- can check on executive through judicial review
Explain what is the Rule of Law
- That the government act under lawful authority of its actions.
- No Punishment without Breach and Punishment according to the Law
- No Person is Above the Law
- As a rule, legislation cannot be applied retrospectively (although there has been exceptions e.g. War Damages Act 1965 - compensation not owed)
- law must be accessible and fair
- must resolve civil disputes without disproportionate costs and conflicts
Exceptions:
- Parliamentary Privilege: statements said in Parliament cannot be challenged in court
- Rule of law is not absolute but a principle that informs the law
- means under theory of doctrine of parliamentary sovereignty rule of law can be departed from
How is the House of Commons composed
Formed of 650 MPs - nearly all belong to a political party
Largest Party - Government - the PM and Cabinet
2nd Largest Party - His Majesty’s Loyal Opposition and leader of party becomes leader of opposition and supported by Shadow Cabinet
Speaker - chosen by all Mps and maintains order during debates and ensure compliance with procedure. Speaker must become politically impartial
Elections for HoC are held 25 days after Parliament is ‘dissolved’.
By-elections held if seats become vacant though death or retirement
What is the process of Dissolution
Fixed Term Parliament Act 2014 provided fixed year terms BUT
REPEALED and replaced by
Dissolution and Calling of Parliament Act 2022
- Parliament must dissolve five years after the date it first met
- it can be dissolved earlier by the Monarch through royal prerogative (happens after request from PM if their party loses vote of no confidence or if they have a large majority)
What are the Qualifications for Membership in Parliament
Anyone can stand as a candidate but seat cannot be taken if:
under18
non-Commonwealth citizen
Member of HoL
You are banned if:
- member of judiciary - HC, CoA, SC
- civil servants
- armed forces + police forces
- members of parliament/legislature outside commonwealth including EU Parliament
What is the Recall of MPs Act 2015
Constituents can recall their MPs if they have:
been convicted of a offence and sentenced to imprisonment
suspended by the HoC for misconduct for 10 days
Found guilt of false/misleading evidence
How is the House of Lords composed
unelected and around 800 members who can be:
Hereditary peers - (Duke, Earl, Viscount, Baron) titles passed down through family - HoL 1998 means only 92 seats allowed
Life peers: majority in chamber and appointed by the Monarch on the advice of PM. given rank of Baron. dont pass down to family.
Lord Spirituals: 26 Bishops of Church of England
Law Lords - formal title is Lord of Appral in Orindary, these were judges appointed when HoL was highest appellate court in UK. this role is replaced by SC but some law lords remain.
How can a Bill be passed
a bill must pass the House of Commons and House of Lords and receive Royal Assent before the end of a session (which last 12 months starting May) or else it is lost - unless one of the houses decide to ‘carry-over’ the bill.
How long do Parliament sessions last
Parliament starts a session each May and it can last 12 months. This is marked with the Kings Speech outlining governments proposals
What is prorogation?
This is a royal prerogative that allows a Parliamentary session to end and a new one to begin. Power must be exercised reasonably.
What is the Legislative process in House of Commons
The Process for HoC and HoL is the same - Bill starts at House it is first considered
First Reading: formality that introduces Bill with explanatory notes outlining governments intentions
Second Reading: first opportunity for principles to be debates
Committee Stage: bill is scrutinised line by line and amendments can be tabled
2 forms of committee:
Public Bill Committee:
16-30 MPs with political parties represented proportionate to share of seats
Committee of Whole House:
for urgent, constitutionally important or uncontroversial Bills
Report Stage
removed from committee and reconsidered in Chamber for all MPs to raise concerns on policy
Third Reading
Final review and brief before other house takes on first reading
Consideration of Amendments
Royall Assent
What happens to a Bill that passes the Third Stage in both Houses
There will be a Consideration of Amendments
Bills are amended heavily and these amendments need to be considered in the House that first considered the Bill. If amendments not accepted then they can me removed or counter amendments can be sent to the second House. The back and forth is repeated until text is agreed upon.
Note: HoL usually gives way to the HoC
What (and Why) are the limits to the House of Lord
Government lacks majority in House of Lords. HoL can force government to accept amendments they dont want and can reject a Bill entirely
Limits:
The Salisbury Convention - HoL will grant second reading to Bill and not block legislation if it was made in the elected gov manifesto
Suspensory Veto Under Parliament Acts 1911-1949
if HoL block legislation already passed in HoC and it is reintroduced in the second session and blocked again, it will be sent to Monarch for Royal Assent.
What is a Commencement Provision?
Legislation does not usually come into force straight after Royal Assent
Legislation will include a commencement provision giving power to the government to bring it into force at a later date.
This is a type of secondary legislation
What is a sunset clause?
a sunset clause means that some provisions or all of an Act expires on a certain date.
What is a Secondary Legislation, how is it enacted?
Legislation made by the government under the authority of an Act of Parliament
How is Secondary Legislation enacted?
2 main procedures to enact it:
Negative Resolution Procedure
- draft is laid out before HoC and HoL
- legislation will take effect 40 days after this unless either House rejects it
- no amendments can be made
Affirmative Resolution Procedure
- draft is laid out before the Houses
- both Houses must vote in favour of it for it to become effective
- can be debated in chamber by HoC
- no amendments can be made
What are Henry VIII Powers
powers granted to the government to amend primary legislation (in practise to make minor changes)
can be controversial as breach of separation of powers
Can Secondary Legislation be challenged?
As its made by government, not Parliament, secondary legislation can be struck down by the courts if it goes beyond the power granted to the government
What Privileges does Parliament have
Parliamentary Privilege - ensures freedom of speech in Parliament without being sued by the courts
However, this does not stop courts from referring to the official record of debates in Parliament to help interpret legislation as intended
What is the Sub Judicie Rule
in return for parliamentary privilege, Parliament must respect courts and legal processes:
MPs must not mention cases which are currently before the courts during debates - concern that it may effect the outcome of the case
What is the concept of the ‘Crown’ ?
Government is carried out in the name of the Crown. Crown encompasses the executive (the government).
What is the role of the Monarch?
Head of State of the Commonwealth, Head of Armed Forces, Head of Church of England, Defender of Faith
What principles determine the scope of Royal Prerogative Power?
- No new prerogative powers can be created (Bill of Rights 1689 made clear Parliament was sovereign)
- Statute takes precedent over perogative power
- Cannot be used to thwart intention of Parliament (e.g. gov cannot decide to never bring a legislation into force after royal assent)
- Cannot be used to change the law
- Statute does not Bind Crown unless stated or implied
- Courts more likely to review prerogative now
What types of prerogative powers remain today?
- Ministerial Powers
- Personal Powers
- Miscellaneous/Archaic Powers
What are Ministerial (Prerogative) Powers?
Powers exercised by government ministers on behalf of the crown. The role of Monarch is minimal (merely approving decicions)
These ministerial powers include:
- power to acquire/cede territory
- negotiation and ratification of international treaties
- conducting diplomacy
- deployment and use of armed forces overseas (declaring war)
- use of armed forces within UK
- PM power to appoint/remove ministers
- grant of passports
- grant of pardons/stop criminal prosecutions
What are Personal (Prerogative) Powers?
Personally exercised by the Monarch - appears significant in law but is heavily constrained by constitutional conventions
Includes:
- appointing PM
- power to dismiss government
- power to prorogue government
- power to dissolve government
- grant Royal Assent
What are Miscellaneous (Prerogative) Powers?
the right to mine precious metals
right ot supervise and construct harbours
right to mint coinages
right of Crown to claim the ownership of sturgeon, dolphins, whales, swans found in certain stretches of the River Thames
Are there any remaining Legislative or Judicial Prerogative powers
Legislative: passing Orders in Council (enacted by Privy Council)
Granting Royal Assent
Judicial powers are exercised by ministers.
Monarch being source remains with the Judicial Committee of the Privy Council
How are royal prerogative powers regulated by statute?
Ratification of International Treaties - subject to control by Parliament through Constitutional Reform and Governance Act 2010.
Gov is required to lay draft of any international treaty agreed before Parliament and ratification happens 21 days after as long as HoC and HoL do not vote against.
-if HoP votes against, gov explains why and another 21 days must pass - HoL not involved at this stage
EXCEPTIONAL CASE: Government can bypass the need to lay but exceptional cases not defined by law
How is royal prerogative regulated by constitutional convention
Cardinal Convention - Monarch always acts on the advice of his ministers
Deployment of Armed Forces - whilst this is ministerial power, since Iraq war 2003, the gov. has usually sought support of HoC
Monarch appoints PM - convention states that PM must have confidence of majority HoC
What happens if a PM resigns in between general elections?
The political party then holds a leadership contest, run according to their own internal rules, to appoint a new leader.
What is a Hung Parliament?
when an election does not result in an overall majority for one party - up to political parties to determine who should form the next government
What Powers does the Prime Minister have?
- organisation of government + civil service
- constitutional advisor to Monarch
- relationship between UK gov and devolved govs
- national security and intelligence e.g. appointing heads of the MI5/6 GCHQ
- armed forces and deploying them (PM usually obtains support from HoC first)
- representing UK in international meetings
What is the composition of the cabinet?
the PM
Chancellor of the Exchequer (cheif finance minister)
Chief Secretary to the Treasury
Lord Chancellor and Secretary of State for Justice
Leader of HoC
Leader of HoL
Chief Whip - maintaining disciple of MPs and Member of HoL who are also members of gov
discussions within Cabinet and subcommittees are confidential but once decision has been made it is binding on all ministers.
What is the Role of the Cabinet?
- Making decisions within government - achieved by meeting one a week - such as:
- whether to take military action
- determining gov. legislative agenda (set out in King’s Speech)
- Issues of constitutional nature
- Domestic policy matters
- European or International affairs
- National emergencies including terrorism
What are Cabinet Committees?
subcommittees of the main Cabinet made up of junior ministers and and Cabinet ministers
allows matters to be discussed without needing the entire Cabinet
What is the Modern Practise of Government?
There has been a pattern of PM making decisions outside of Cabinet structure - only consulting smaller groups of ministers due to complex demands of modern gov.
How many government departments are there?
25 gov departments, headed by a Secretary of State, including:
Department of Education
Minister of Defence
HM Treasury
Department for Transport
Foreign, Commonwealth and Development Office
What is the Carltona Doctrine?
When Parliament grants power to Secretary of State in an AoP, Parliament accepts in practise the power being exercised by a civil servant within that department
What is the Role of the Privy Council?
Has an entirely formal role
Main Functions:
to pass Orders in Council - through royal prerogative (primary legislation) or under powers granted to privy council through statute (secondary legislation)
Can approve the text of a Royal Charter - which creates public institutions, university or learned society
JCPC
How are appointments made to the Privy Council?
Made by Monarch on advice of PM and are for life
What is the JCPC?
Judicial Committee of the Privy Council
hears appeals on points of law from Commonwealth nations or British Overseas Territories (used to be part of British Empire)
Appeals heard by Justices of the Supreme Court
Domestic matters - JCPC is not binding on domestic laws but can have persuasive authority (as judges from SC)
What Responsibility do government ministers have?
COLLECTIVE RESPONSILBITY
-must maintain support for government policy in public and before Parliament
CONFIDENTIALITY
decisions within gov. when developing policy are confidential
UNANIMITY
- once a decision has been reached by the government, through Cabinet, it is binding on all ministers
INDIVIDUAL RESPONSIBILITY
- ministers are individually responsible for their own actions and have duty to mislead Parliament
- no conflict between private conduct and duties
TO GIVE ACCOUNT OF THEIR DEPARTMENT TO PARLIAMENT
TO BE RESPONSIBLE FOR THE ACTIONS OF THEIR DEPARTMENT
- however distinguishment has been made between policy failure and operational failure
How is Government held accountable to Parliament
- Prime Ministers Questions - once a week and Leader of Opposition Party can ask 6 questions
- Ministerial Questions - MPs can ask questions of Ministers in gov department each day
- Opposition Business - 20 days are allocated to the opposition parties who can debate a policy area and receive response
- Urgent Questions - MP can apply to Speaker to ask question that day
- Select Committees - Some shadow gov. departments and write reports. Liason Committee - formed of chairs of Select Committee and asks PM questions twice a year
What is the legal status of Devolution?
UK Parliament has legislated that the Scottish/Welsh Parliament and Government are permanent parts of the UK’s constitutional arrangement.
- cannot be abolished unless people of Scotland or Wales vote in favour of their abolition at a referendum.
How was the devolved government of Northern Ireland established?
By Good Friday Agreement of 1998
- allowed NI to establish Assembly and Executive
- The Agreement allows NI to leave UK to join Ireland by referendum
What is the Sewel Convention?
If the UK Parliament is going to legislate on a matter devolved to Scotland, Wales or NI, consent of the affected institutions is required via a ‘legislative consent motion’
- however Parliament still has power to adopt legislation
How is Legislations passed by the devolved governments restricted?
Through the review of the courts
Courts can refer matters to the UK Supreme Court if the institutions act outside their authority
Before a Bill is submitted for Royal Assent, specific representatives can refer the Bill to the UK Supreme
Who are the specific representatives who can refer a bill before royal assent to the UK SC to determine whether it is within the institutions power?
Northern Ireland - Advocate General and Attorney General
Scotland - Lord Advocate, Advocate General, Attorney General
Wales - Council General, Attorney General
What is Judicial Review?
judicial process which allows courts to scrutinise actions of the executive - whether the process used to make the decision was within the law
What are the requirements for Judicial Review?
- Must be against a public body
- If a contract exists between the parties courts will say matter is determined by private law
What is the judicial review pre-action protocol
It is good practise that parties should follow
Before action, claimant should send letter to defendant identifying issues in dispute
D should respond within 14 days
What is the stages of Judicial review
- Permission stage
- Full hearing stage
Why might a court refuse a permission for judicial review
If the claimants outcome will not change substantially even if there was judicial review
What requirements are there for applications for Judicial Review
- Must be brought promptly but no later than 3 months
- if it is sought about planning decision, it must be brought within six weeks
- it must be a public law issue
- Must be a live dispute (not hypothetical)
- Must not be factual but legal dispute
- Applicant must have standing (sufficient interest)
- All other options have been exhuasted
Can a Group have a standing in the permission stage of a Judicial Review?
Not usually unless that group/association is:
- responsible
- well sourced
- has expertise
- unlikely that there is alt claimant
What is Procedural Exclusivity?
Judicial review is only available for public law issues
What are the Grounds for Judicial Review?
- Illegality
- Procedural Impropriety
- Unreasonableness
- Breach of Legitimate expectation
What are the elements of Illegality in Judicial Review?
- Error of Law (beware of ouster clause) - courts will still review decisions on illegality
- Failure to comply with Specific legal duty (PSED)
- Unlawful delegation of power [to another]
- Irrelevant considerations
- Ultra vires
What is PSED?
Public Sector Equality Duty:
must show ‘due regard’ for
- eliminating discrimination
- equality of opportunity
- removing disadvantages suffered by those who share a protected characteristic
What are the elements of procedural impropriety in Judicial Review?
- Mandatory/Directory requirements - failure to follow directory wont necessarily invalidate decision
- Right to be heard - common law right to be given opportunity to hear case against them
- Rule against bias - decision maker will be deemed biased if they have financial interest in subject matter or non-financial interest
- Failure of Duty to Consult - arises by statute, promise, practise or failure will lead to unfairness
- Failure Duty to give reason - if subject matter is important or decisions appear to be aberrant
What are the elements of Legitimate Expectation in Judicial Review?
Failure to meet a legitimate expectation can be a ground for invalidating acts of public authority due to-
1. Explicit promise or reassurance
2. Previous action by the public authority
What are the elements of Unreasonableness in Judicial Review?
A failure to make a reasonable/rational decision (decisions which are outrageous or absurd) can be found invalid under JR
What is the Rule Against Bias
Actual Bias
Automatic Disqualification Rule
Apparent Bias
What Remedies are available if a ground for judicial review has been proved
- Quashing Order - originial decision is rendered void
- Mandatory Order - orders defendant to act in a certain manner
- Prohibiting Order - orders the defendant not to act in a certain manner
- Injunction - prevents a party from acting in a certain manner or requiring party to act according to instructions from court
- Declaration - declares decision/act as unlawful
- these are discretionary - court not required to grant them
How has the ECHR been incorporated in the UK?
Through the Human Rights Act 1998
What are the three kinds of Convention rights incorporated in HRA?
Under Section 1 HRA 1998 -
1. ABSOLUTE RIGHTS: rights that cannot be limited by the state even in times of war or national emergency
- note: protocol 13, Article 1 (incorporated in HRA) abolishes dearth penalty in all cirumstances
Article 2: Right to life
Article 3: Prohibition of Torture
Article 4: Prohibition of Slavery and Servitude
Article 7: Prohibition on Retrospective Criminal offences
- LIMITED RIGHTS: Actual scope of right can be limited as provided in the Article itself
Article 5: Right to Liberty and Security
Article 6: Right to a Fair Trial
- QUALIFIED RIGHTS: rights that can be limited by the state in order to pursue a legitimate interest
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 Assembly and Association
Article 12: Right to Marry
Article 14: Prohibition of Discrimination
Protocol 1, Article 1: Right to Property
Protocol 1, Article 2: Right to Education
Protocol 1, Article 3: Right to Free Elections
Protocol 13, Article 1: Abolishment of death penalty
What is the proportionality test? (HRA’98)
The courts have used a three part proportionality test to determine whether a challenged measure is necessary.
- is the object of the policy and the legitimate aim pursued sufficiently important to justify limiting a fundamental right
- the measure is designed to meet the objective and is rationally connected to it
- interference with the right is no more than necessary to accomplish objective
- measure is reasonable and balanced in all the circumstances - given the competing needs of the individual and wider community.
What is Judicial deference?
The more politically controversial the issue, the more likely the courts, when applying the proportionality test, defer to the government and Parliament. - greater deference is shown when a case involves questions of national security.
What is a margin of appreciation? And what is the difference between a narrow and broad margin of appreciation?
When UK gov challenged before the ECHR, they may argue for a margin of appreciation;
- this means that they are permitted some discretion over the extent to which a right can be restricted - when gov wants to limit a qualified right in pursuit of a purpose
NARROW MARGIN: f there is a consensus among majority of member states on the issue - court is likely to apply a narrow margin of appreciation.
ECtHR will then conduct a full and detailed review of the interference with the right - will consider whether the discretion exercised complies with the ECHR and was done carefully and in good faith
BROADER MARGIN: this is when each state approaches the issue differently - this gives states a broader discretion on how the right is protected and when it can be restricted
Under what circumstances will the ECtHR allow states to derogate from the rights provided by the ECHR?
A state in some circumstances can derogate from some articles not the ECHR - meaning state is no longer required to comply with the article
- Limits: any article except ARTICLE 2 right to life (except deaths from war) ARTICLE 3 prohibition of torture, ARTICLE 4(1) prohibition of slavery and ARTICLE 7 Prohibition of retrospective criminal offences
- Situations: in event of war or public emergencies that threaten life of nation
- Any derogation must be only to the extent strictly required by the exigencies of the situation
What does the HRA require courts to do?
HRA Section 2: Interpretation of Convention Rights
- when UK court dealing with a case that deals with Convention rights, the court must take into account any judgement of the ECtHR.
- makes ECtHR case law an important source of law
- mirror principle: if there is a clear line of authority on interpretation by ECtHR the courts must follow it
HRA Section 3: Interpretation of Legislation
- must interpret ‘so far as possible to do so’ - this can allow courts to depart from basic language of legislation to give effect to the underlying intention of Parliament
Section 4: Declaration of Incompatibility
- if it is not possible to interpret an Act of Parliament or secondary legislation in a way that complies with Convention rights under Section 3, courts will make a declaration of incompatibility
- this does not make legislation invalid
- signals to gov and Parliament to consider matter
What happens when a declaration of incompatibility has been issued by a UK court? Is there a way to correct legislation found to be incompatible?
The legislation could be repealed or amended via ordinary legislative process - however this can be slow
SECTION 10 HRA provides two fast track procedures for correcting legislation found to be incompatible:
- NON URGENT PROCEDURE: courts lay out draft of a remedial order which becomes law if both houses approve after 60 days
- URGENT PROCEDURE: Ministers lay a remedial order which becomes effective immediately but this will cease if both houses do not approve within 120 days.
Who can a person bring a claim against under Section 6 of the HRA’98?
Section 6 of HRA makes it unlawful for a public authority to act in a way that is incompatible with a Convention right - creates an extra statutory ground for judicial review
PUBLIC AUTHORITY includes Secretaries of State, local authorities, agencies created by the government BUT NOT House of Lords or House of Commons
Proceedings are brought through Section 7 which sets out procedure - action can only be brought by someone who is the victim of the alleged unlawful act and claim must be brought within 1 year.
REMEDIES - courts can grant this if is considers it just and appropriate. On the discretion of the courts
What exclusion are there to bringing a claim against a public authority?
PA actions cannot be found unlawful under Section 6 if the public authority could not have acted any differently without violating the law as laid out in AoP.
Can not be unlawful if primary legislation could no tbe read or given effect in a way that is compatible with Convention rights and PA acted to give effect to the legislation as it is laid out.
What does the Equality Act of 2010 entail?
This Act protects against the discrimination based on sex, sexual orientation, gender reassignment, race, disability, religion, belief, age, martial or partnership status and pregnancy or maternity
A freestanding claim of discrimination can be made under this
How can claims for discrimination (and what types) be brought about in the HRA’98 and EA’10
WHO: in employment context, a ‘worker’ can bring a claim, even if the organisation or employer is not a public authority.
TYPES OF DISCRIMINATION:
INDIRECT: when a policy, practise or procedure which applies to everyone affects a protected group unfavourably. Exception: if this policy is universal and is a proportionate means of achieving a legitimate aim.
DIRECT: when one is treated less favourable because of their protected status
HARRASMENT: when a person is subjected to unwanted behaviour that is degrading, humiliating or uncomfortable
VICTIMISATION: when a person is penalised for having made their won complaint of discrimination or helping another with their complaint
What is the Public Order Act 1986
This Act gives public authorities such as the police the power to limit the right to protest, and the power to arrest person should violate public order. POA must be interpreted in a manner that gives effect to the ECHR and HRA.
When does a breach of peace occur under POA 1986
Under common law, police officers have a duty to maintain the ‘King’s Peace’. This occurs when:
- when a person is in fear of harm to themselves or their property in their presence as a result of assault, affrey, riot, or other disturbance
- when harm has actually been done to person or to property in their presence
- when harm is likely to be done to person or property in their presence.
NOTE: Verbal threats are insufficient alone for a breach of peace - words must make someone believe they are at imminent risk of assault.
LOCATION: can take place in either a public space or private premises
EFFECT - police officer can take measures as are reasonable to terminate a breach or prevent one including arresting or forcing entry into private premises.
Is a breach of peace a criminal offence?
No but person breaching the peace could be made subject to a binding over order - this requires the person arrested to marine the peace and keep good behaviour for a specified period of time.
What conditions does the POA’86 Act impose on public processions
NOTICE: this must be given if the procession is intended to achieve one of the following:
- to demonstrate support for or opposition to the views of a person/persons
- to publicise a cause or campaign
- to mark or commemorate an event
NOTICE REQUIREMENTS:
- be given 6 clear days (day of notice and day of procession excluded) days before proposed date or as soon as reasonably practicable
- be delivered to police station located in the area in which it will take place
- specify date, time, route and name and address of one of the persons organising the procession
What Exceptions are there to the requirement to give notice for processions?
To processions commonly or customarily held nor to funereal directors organising a funeral march in the course of their business
What conditions can a senior police officer propose on a march?
Senior police officer can impose conditions on march/procession relating to the march/procession if they reasonably believe that any of the following apply:
- the procession will result in serious public disorder, serious damage to property or serious disruption to the life of the community.
- the purpose of the procession is to intimidate others with a view to compelling them not to do an act they have a right to do
- it will generate noise that may result in serious disruption to the activities of those in the vicinity
Senior police officer may impose conditions that appear necessary to prevent such disorder.
It is a criminal offence for organiser or participant to breach or incite breach to a condition imposed on a procession that they know or ought to know has been imposed. - subject to defence that breach arose from circumstances beyond their control
What occurs if the chief constable believes no condition can be imposed to prevent serious disorder
Can apply to ban all or specified class of processions for a period of three months
Application should be made to the local council in England and Wales
In City of London and Greater London, this should be made to the Home Secretary
What regulations are public assemblies subject to?
Public assemblies are defined as an assembly of two or more people in a public place whihc is wholly or partially in the open air.
IF
-senior police officer believes that public assembly being/intended to be held may result in serious public disorder, serious damage to property or serious disruption to life of community
- it was organised with intention to intimidate others with a view to compel them not to do something they have a right to do or act in a way they have a right not to.
- noise related concerns which results in serious disruptions to people or activities of an organisation within the vicinity
THEN senior office can give directions to person organising or anyone taking part.
What are trespassory assemblies
Assemblies involving:
20 or more persons
On land which public have no/limited access to
Likely to be held without the permission of the occupier of the land or exceeding any permission granted
May result in serious disruption to the life of the community or cause damage to land, buildings or monuments of historical, architectural or scientific importance
Chief constable can apply to BAN all such trespassory assemblies. It is a criminal offence to participate in a banned assembly. Police have the power to stop anyone they reasonably believe to be on their way to a banned procession and direct them not to attend. Failure to comply is an offence.
What does ‘Serious Disruption to life of Community’ mean?
When the proposed procession may result in the following:
- a significant delay to delivery of a time sensitive product
- prolonged disruption of access to any essential goods or services including: supply of money, food, water, energy or fuel, system of communication, place of worship, transport facility, an educational institution, service relating to health.
What is retained EU Law?
European Union (Withdrawal) Act 2018 + EU (Withdrawal Agreement) Act 2020 took a snap shot of all EU law that was part of the UK Legal system and named it retained EU Law.
What does the European Union (Withdrawal) Act 2018 entail?
Section 2: EU-derived domestic legislation - pre-Breixt primary and secondary legislation implementing EU directives
Section 3: direct EU legislation - eu regulations binding on member states
Section 4: directly effective EU law - EU law that can be directly relied on in UK court - e.g. treaties
What happens if there is conflict between UK law before end of transition period and retained EU law?
Under The Retained EU Law (Revocation and Reform) Act 2023, Section 5 of the EU(W)A is amended by S3 RRA 2023 to explicitly state that the principle of supremacy of EU law no longer applies in domestic law.
What changes has The Retained EU Law (Revocation and Reform) Act 2023 brought?
Amended the retained EU law.
S1: removes many REUL
S2: repeals section 4
S3: the principle of the supremacy of EU law is not part of domestic law.
S5: REUL renamed assimilated law
S7: Ministers + devolved administratives can reimpose principles of supremacy to specific retained direct EU law (until 23/06/2026)
S8: requires courts to make an ‘incompatibility order’ where there is conflict between a provision of retained direct EU legislation and domestic enactment.
S9: makes it easier to use power under other Acts to amend retained direct EU
Removes supremacy of EU law - retained direct EU legislation must be read/given effect in a way which is compatible with all other domestic legislation.
What is retained EU case law?
Section 6 of EU(W)A 2018, is amended by RRA 2023 Section 6, which states that an appeal court is not bound by any retained EU case law and that Higher Courts may depart from their own retained domestic case law.
courts must have regard to:
- decisions of a foreign court are not binding
- any changes of circumstances to REUL
- the extent to which REUL restricts proper development of domestic law
What is the Living Instrument Principle?
The ECtHR has considered that the ECHR is a living instrument and the meaning can adapt to changing social and economic conditions. 3 Principles feed into this:
- not bound by previous decisions: can be in line with precedence but free to depart
- consistent approach of contracting states: can choose to follow approach adopted by some/all contracting states
- ECtHR must be accessible to all individuals: interpretation practical and acceptable
