Constitutional and Administrative Law Flashcards
Test for Constitutional Conventions (3)
- Previous political practice
- Binding
- Sound constitutional reasons
Features of Rule of Law (3)
- Apply fairly and consistently
- Government must act accordingly
- No retrospective effect
Sources of Law (5)
- Acts of Parliament
- European Convention of Human Rights (ECHR)
- Retained EU law
- Caselaw
- Conventions
Parliament Act 1911 and 1949
Acts enacted by House of Commons without the consent of House of Lords have full effect
Parliamentary Privilege
MPs/Lords cannot be sued for anything said in Parliament
Stages of a bill in both Houses (5)
- First Reading
- Second Reading
- Committee Stage
- Report
- Third Reading
Stage at which Lords amendments are considered
After both houses reading
English votes for English Laws
Extra stage in legislative process, between report stage and third reading
Negative Resolution Procedure
Take effect unless rejected by either houses in 40 days
Affirmative Resolution Procedure
Positive vote from both houses in favour
Henry VIII Powers
Powers granted to government to amend an Act of Parliament
Examples of Prerogative Powers (3)
- Negotiation and ratification of treaties
- Deployment of Armed Forces
- PM to remove ministers
Stages for the ratification of treaties (2)
- Published before both Houses
- After 21 days ratified, if neither Houses vote against ratification
Carltona Doctrine
Civil servants could exercise powers granted in Act of Parliament to Secretary of State
Privy Council
Judicial Committee for commonwealth nations that lack final court of appeal
Potential outcome when reviewing devolved legislation by courts
Courts can strike down their legislation
Requirements for Judicial Review (6)
- Claim against a public body
- Correct procedure (Defendant should respond within 14 days of letter being sent by claimant)
- Whether the claim is going to be successful
- Time limit (no later than 3 months, within 6 weeks for planning permission)
- Procedure Exclusivity Rule
- Standing
Grounds for Judicial Review (4)
- Illegality
- Procedural Impropriety
- Legitimate Expectation
- Unreasonableness
Types of Illegality (5)
- Ultravires
- Error of Law
- Failure to comply with certain duties
- Unlawful delegation of power
- Irrelevant considerations
Procedural Impropriety
Focuses on the way in which the decision is made
Procedural Impropriety imposed by common law (2)
- Right to be heard
- Rules against bias
Common law could impose duty to consult if (4)
- Statutory decision to consult
- Consultation promised
- Established practice of consultation
- Failure to consult lead to unfairness
Duty to give reason (2)
- Involving individual
- Aberrant
Ways of showing legitimate expectation
- Policy made available to public
- Previous action of authority
- Promise
Unreasonableness
Decision is so outrageous in logic or accepted moral standards, that no sensible person could reach
Remedies (5)
- Quashing Order
- Mandatory Order
- Prohibiting Order
- Injunction
- Declaration
Additional rights protected in HRA (4)
- Right to property
- Right to education
- Right to free elections
- Abolish death penalty
Types of rights under HRA (3)
- Absolute (can never be limited)
- Limited (specifies the circumstances under which the right can be limited)
- Qualified (provides circumstances for limiting, but can be limited by the state to pursue legitimate interests)
Test for limiting qualified right
Proportionality test
Judicial Deference
The more political the issue, the more courts will refer to Parliament and agree
Articles that cannot be derogated
2, 3, 4(1) and 7
Process for amending legislation in accordance with HRA (2)
- (Urgent) If within 120 days, either House of Parliaments has not passed a resolution approving the order
- (Non-urgent) Remedial order that requires approval by both houses after 60 days
Equality Act 2010
Related to Article 14 and permits freestanding claims of discrimintation
Breach of Peace (4)
- Genuine fear of harm to self or property
- Harm is done or likely to be done
- Can take place in private or public
- The breach must be imminent
Public Processions (4)
- Notice given 6 clear days before or when practicable
- Provide to police station in area of procession
- Provide date, time, route and name/address of an organiser
- Does not apply to processions commonly or customarily held
Public Assemblies (3)
- Two or more persons in a public place
- If officer believes serious disorder, damage, designed to intimidate and police can impose conditions
- Conditions must be proportionate and necessary
Trespassory Assemblies (4)
- Involves 20 or more persons
- Land not open to public
- Held without permission of occupier
- May damage or disrupt community or significantly damage important land or important buildings
Post-Brexit
EU law preserved as retained EU law
