Constitutional and Administrative Law

Question 1

What are the four principle sources of the UK constitution?

Answer 1

a) Acts of Parliament

b) Case law

c) The Royal Prerogative

d) Constitutional Conventions

Question 2

What is residual freedom?

Answer 2

It is a principle that says that citizens are free to do or say whatever they wish unless the law clearly states that such an action or statement is prohibited.

Question 3

What are the key principles of our constitution?

Answer 3

a) residual freedom

b) actions of the state must have legal authority

c) legal disputes should be resolved by the judiciary

d) habeus corpus and individual liberty

e) right to a fair hearing

Question 4

What is the Salisbury Convention?

Answer 4

The unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically elected Government.

Question 5

What is the Sewel Convention?

Answer 5

The UK Parliament will normally only legislate on a matter that has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent.

This has now been inserted into the Scotland Act.

Question 6

How often must Parliament be summoned?

Answer 6

Every 3 years but in practice it is an almost permanent operation.

Question 7

What is Parliament’s role in relation to delegated legislation?

Answer 7

Their role is confined to scrutiny of delegated legislation.

Neither House of Parliament can amend delegated legislation and often it can come into effect without either House voting upon it at all.

Question 8

What is the principle of parliamentary sovereignty?

Answer 8

a) Parliament is the supreme law-making body and may enact or repeal laws on any subject.

b) No Parliament may be bound by a predecessor or bind a successor - a particular Act of Parliament cannot be entrenched or given a higher status than any other Act.

c) No other person or body (but particularly a court of law) may question the validity of an Act of Parliament or declare that Act to be unlawful.

Question 9

Are subsequent Parliaments bound by anything?

Answer 9

The Acts of Union.

However, this matter has never been directly considered by the courts.

Question 10

What is the doctrine of implied repeal?

Answer 10

An Act of Parliament will impliedly repeal the contents of an Act of an earlier Parliament to the extent of any inconsistency between the two Acts.

Question 11

What is the limit to the doctrine of implied repeal?

Answer 11

Statutes that are ‘constitutional’ are of such significance that the courts would require actual intention from Parliament to change them, not an implied intention.

Question 12

What is horizontal vs vertical direct effect in EU law?

Answer 12

Vertical - can be enforced against the state or state body.

Horizontal - can be enforced against private bodies.

Question 13

What is indirect effect re EU law?

Answer 13

It provides that the courts had to read UK legislation in a way as to make it compliant with EU law.

Question 14

What is the retained EU law sources?

Answer 14

EU-derived domestic legislation.

Direct EU legislation.

Rights etc arising under s2(1) ECA 1972.

Question 15

What is an important consequence of legislation falling within retained EU law?

Answer 15

Retained EU law remains over other UK legislation enacted before the end of the transition period.

Question 16

What are the mains privileges of the House of Commons?

Answer 16

a) Freedom of speech

b) The right to control its own composition and procedures (‘exclusive cognisance’)

Question 17

Does the Sewel Convention apply to Northern Ireland?

Answer 17

Yes but it does not have express statutory recognition, like it does in Scotland and Wales.

Question 18

How can legislation passed by a devolved legislature come before the Supreme Court?

Answer 18

• through a reference by a devolved or UK law officer to the Supreme Court
• through an appeal from certain higher courts in England and Wales, Scotland and Northern Ireland
• through a reference from certain appellate courts

Question 19

What is a s35 order?

Answer 19

It grants the Secretary of State for Scotland the power, in specified circumstances, to prevent legislation enacted by the Scottish Parliament being submitted for royal assent, even if it covers a devolved matter.

Question 20

What is the enrolled bill rule?

Answer 20

If it has passed through Parliament and received Royal Assent, the courts won’t enquire into the legislative process.

Question 21

Are processions and meetings lawful?

Answer 21

Yes - they are prima facie lawful unless they amount to crimes or torts.

Question 22

What do you have to do if you want to have a procession?

Answer 22

• Give the police at least six clear days’ of notice of the date, time and route.

Question 23

What processions do not need to give notice?

Answer 23

Funeral processions

Customary or commonly held processions in a given police area, e.g. Remembrance Day parade

Not reasonably practicable to give notice.

Question 24

What happens if a procession doesn’t give sufficient notice?

Answer 24

1st offence if notice not given and 2nd offence if processions differ from what the notice specified.

Defence that you did not know that s11 had not been complied with to 1st. Defence to 2nd that departure from details was out of organisers’ control.

On conviction organisers are liable to fine not exceeding level 3 on the standard scale, currently £1000.

Question 25

When can police impose conditions upon public processions?

Answer 25

if a senior officer reasonably believes that:
- the march will result in serious public disorder, serious damage to the property or serious disruption to the life of the community

• the purpose of the organisers is to intimidate others with a view to compelling them not to do something that they have a right to do, or to do something that they have a right not to do

Question 26

Who is the senior officer that can impose conditions?

Answer 26

Depends on the circumstances.

For conditions imposed during the procession, it is the most senior police officer present at the scene and they may be given verbally.

conditions imposed in advance - it is chief officer of police (chief constable of the relevant police force or the Commissioner of Police of the Metropolis or for the City of London). Must be in writing. with sufficient reasons.

Question 27

What are the sanctions if you fail to comply with a comply with a condition imposed under s12(1) where the person knows or ought to know that the condition has been imposed?

Answer 27

Imprisonment not exceeding 51 weeks or a fine not exceeding level 4 on the standard scale (currently 2500) or both.

If taking part - fine not above level 3 - 1000k.

inciting a participant in a public procession to commit an offence - imprisonment not more than 51 weeks and fine not above level 4.

Question 28

Can a procession be prohibited?

Answer 28

a chief officer of police can apply for a prohibition order in respect of public processions if they reasonably believe, because of particular circumstances existing in any locality, that the powers in s12 are insufficient to prevent a risk of serious public disorder.

chief officer will apply to the local authority who will then make an order the home secretary’s consent.

In London, commissioner makes order with HS consent.

order can be for any period not exceeding three months.

Question 29

What are the sanctions under s13?

Answer 29

organising - imprisonment up to 3 months or fine not more than level 4 or both

taking part - fine not exceeding level 3

inciting - imprisonment not more than 3 months or fine not more than level 4

Question 30

What is the difference between processions and public assembly requirements?

Answer 30

Public assemblies do not need to give advance notice.

Police powers to impose conditions are the same.

Purpose of the assembly irrelevant.

No power to ban public assemblies. but can effect participants to disperse.

Question 31

Can you ban a trespassory assembly?

Answer 31

Yes but must be at least 20 ppl and in full open air.

Chief must reasonably believe it is without the permission of the occupier or outside any right of access AND
that it may result in serious disruption to the life of the community or significant damage to the land etc. which is of historical, archaeological or scientific importance.

Question 32

What is a breach of the peace?

Answer 32

there is a breach of the peace whenever harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.

Question 33

What are the grounds of judicial review?

Answer 33

Illegality

Irrationality

Procedural impropriety

Also,
- breach of ECHR
- breach of retained EU law

Question 34

What errors of fact are amenable to judicial review?

Answer 34

• Jurisdictional errors of fact

Question 35

What are the time limits for judicial review?

Answer 35

Max. 3 months after ground to make claim arose

Planning acts - 6 weeks

Public procurement cases - 30 days

can be extended only for good reason

Question 36

What is excluded from the courts’ judicial review jurisdiction?

Answer 36

Ouster clause

provision of an adequate statutory remedy, e.g. right of appeal

Question 37

What are the remedies in judicial review?

Answer 37

Prerogative orders
- quashing
- prohibiting
- mandatory

private law remedies
- declaration
- injunction
- damages