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SQE1 > Constitutional and Administrative Law and EU Law > Flashcards

Constitutional and Administrative Law and EU Law Flashcards

complete

1
Q

A constitution that lacks a single definitive source

A

Uncodified

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2
Q

The three elements of Rule of Law

A
  • Apply law fairly and consistently
  • Govt must act according to law
  • Law should not have retrospective effect
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3
Q

The principle that prevents courts from striking down an Act of Parliament/declaring it unconstutional

A

Parliamentary sovereignty

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4
Q

A collection of powers which common law recognises as belonging to the Crown

A

Royal Prerogative

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5
Q

Which doctrine provides that government shall have the power to carry on ordinary business even if the power is not explicitly set out by statute or Royal Prerogative?

Everything which is not forbidden is allowed

A

Ram Doctrine

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6
Q

The three elements of parliamentary sovereignty

A
  • Parliament has the right to make or unmake any law whatsoever
  • No person or body can override or set aside an Act of Parliament
  • No Parliament can bind its successors
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7
Q

Required for an international treaty to have effect in the domestic law

A

Incorporation into domestic law through an Act of Parliament

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8
Q

Govt can ratify a treaty after giving the Houses how long to vote against ratification?

A

21 days

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9
Q

What is the process if either House votes against ratification of a treaty?

A

Govt explains why they want to ratify and then the Commons has another 21 days to reject the treaty

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10
Q

What must government ministers do following policy failures?

A

Take responsibility
(May include resignation)

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11
Q

Description of devolution reflecting it is not equal in each nation

A

Asymmetric devolution

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12
Q

The principle that prevents the courts from questioning the validity of legislation

A

Enrolled Bill Rule

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13
Q

No Punishment Without Breach of Law is a core principle of…

A

Rule of Law

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14
Q

A signal to Parliament from the courts that a piece of legislation does not comply with human rights

A

Declaration of Incompatibility

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15
Q

Legislative process:

A

1) First reading
2) Second reading
3) Committee stage
4) Report
5) Third reading
6) Consideration of Amendments - Ping Pong
7) Royal assent

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16
Q

Convention that states if a govt bill is implementing a manifesto commitment, the Lords will grant a second reading and not block the legislation (can still make amendments)

A

Salisbury Convention

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17
Q

The rule abolished in July 2021 which allowed only English consituency MPs to vote on legislation related only to England

A

English Votes for English Laws

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18
Q

The type of veto power held by Lords which allows legislation to be blocked once

A

Suspensory veto

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19
Q

Powers granted to the govt to amend primary legislation

A

Henry VIII powers

‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.

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20
Q

Procedure for enacting secondary legislation whereby a draft of the secondary legislation is laid in both Houses, and takes effect unless either House rejects the legislation within 40 days

A

Negative Resolution Procedure

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21
Q

Procedure for enacting secondary legislation whereby a draft of the secondary legislation is laid in both Houses, and takes effect only if both Houses vote in favour

A

Affirmative Resolution Procedure

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22
Q

Rule requiring MPs and peers to not refer to ongoing court cases

A

Sub Judicie Rule

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23
Q

Statutes do not bind the Crown. What are the 2 exceptions?

A
  • Statute expressly says it does
  • Staute obviouly binds the Crown by implication
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24
Q

The principle that prevents MPs and peers from being sued for what they say in the Houses

A

Parliamentary Privilege

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25
Q

Convention requiring the monarch to be consulted by govt but to act on ministerial advice

A

Cardinal Convention

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26
Q

Which concept is being described?

When Parliament grants powers to Secretary of State it accepts a civil servant will exercise those powers

A

Carltona Doctrine

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27
Q

What instruments are issued by the Privy Council for specific issues such as Royal Charters for universities?

A

Orders of Council

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28
Q

Term for the concept whereby all ministers must publicly support Cabinet policy

A

Collective responsibility

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29
Q

Individual responsibility scenario where an account must be given

A

Operational failure

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30
Q

Body that receives appeals from Commonwealth/British overseas territories without final court of appeal

A

Judicial Committee of the Privy Council

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31
Q

Committee formed of the chairs of the Select Committees which questions the PM in an extended session twice a year

A

Liaison Committee

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32
Q

The ministerial duty not to mislead Parliament falls under

A

Individual Responsibility

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33
Q

Expectation from a minister who has knowingly misled Parliament

A

Resignation

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34
Q

The only situations in which collective responsibility has been set aside

A

Referendums

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35
Q

The two elements of Collective Responsibility

A
  • Confidentiality
  • Unanimity
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36
Q

Who hears appeals in the JCPC?

A

Justices of the Supreme Court appointed to the Privy Council for this function

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37
Q

The convention that provides the consent of the affected devolved state is required when the UK Parliament legislates on matters affecting it

A

Sewel Convention

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38
Q

The legal status of Scottish and Welsh devolution

A

Permanency

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39
Q

What is the courts’ power against devolved legislatures’ legislation

A

Can strike down the legislation as invalid

40
Q

Situations in which devolved courts will refer cases to Supreme Court:

A
  • Acts outside their legislative competence
  • Legislates contrary to the ECHR
41
Q

While a bill is being passed in devolved legislature, why could it be referred to the Supreme Court?

A

To determine whether it is within the law-making power of the devolution institution

42
Q

Who must the claim be against in a judicial review case?

A

Public body

43
Q

The term for good practice parties should follow prior to judicial review litigation

A

Judicial Review Pre-Action Protocol

44
Q

The two stages of judicial review

A

1) Permission stage
2) Full hearing

45
Q

Why might the court refuse permission for a judicial claim that is likely to be successful?

A

Claimant’s outcome would not change substantially

46
Q

How soon after an issue arises can a claim be made under judicial review?

A

Promptly, but no later than three months

47
Q

How long from the date of decision must a judicial review of a planning decision be brought?

A

Within 6 weeks

48
Q

Which type of law would cases involving public and private law fall under?

A

Private law

49
Q

What type of disputes can judicial review not resolve?

A

Factual disputes

50
Q

What is required of the claimant to be able to bring a judicial review claim?

Claimant’s position

A

Must have sufficient interest

51
Q

When will a court find a group has sufficient interest to bring a judicial review claim?

A

Group is
- Responsible
- Well-resourced
- Expertise
- Unlikely to be alternative claimant

52
Q

The four potential grounds for a judicial review claim

A
  • Illegality
  • Procedural impropriety
  • Unreasonableness
  • Breach of legitimate expectations
53
Q

Term for a clause stating that decision of the authority pursuant to the statute cannot be challenged

A

Ouster clause

54
Q

If the statute delegating power to the public authority includes an ouster clause, to what extent can the court challenge the public authority’s decisions?

A

Only legal decisions cannot be challenged, can still investigate illegality

55
Q

The five grounds for procedural impropriety:

MRRDD

A
  • Mandatory/directory requirements
  • Right to be heard
  • Rule against bias
  • Duty to consult
  • Duty to give reasons
56
Q

Term for a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied their mind to the question could have arrived at it

A

Unreasonableness/irrationality

57
Q

Judicial review remedy that renders the original decision void

A

Quashing order

58
Q

Judicial review remedy that orders the defendant to act in a particular manner

A

Mandatory order

59
Q

Judicial review remedy that orders the defendant NOT to act in a particular manner

A

Prohibiting order

60
Q

Judicial review remedy reqiuring a party act according to the instructions of the court

A

Injunction

61
Q

Judicial review remedy that declares the decision or action complained of was unlawful

A

Declaration

62
Q

What are the three types of convention rights incorporated into UK law via HRA 1998 from ECHR 1950?

A
  • Absolute rights
  • Limited rights
  • Qualified rights
63
Q

When can HRA absolute rights be limited by the state?

A

Never

64
Q

To what extent can limited rights be limited?

A

As provided in the article itself

65
Q

When can qualified rights be limited?

A

To pursue a legitimate interest as outlined in the particular article

66
Q

What test must limits to qualified rights pass?

A

Three-part proportionality test

67
Q

What is the three-part proportionality test used when deciding whether an action by a public authority that restricts a qualified right is justified?

A
  • Restriction meets a sufficiently important legitimate aim
  • Restriction is rationally connected to achieving its aim
  • Restriction interferes with right no more than necessary
68
Q

The term for an ECHR member state being permitted some discretion over the extent to which a right can be restricted

A

Margin of appreciation

69
Q

When is the ECtHR likely to apply a narrow margin of appreciation in a challenge against a member state?

A

When there is a consensus among member states on the issue

70
Q

In which situation can a state derogate from any non-Absolute right?

A

War or public emergency that threatens the nation

71
Q

The principle that provides the ECHR can adapt to changing social and economic conditions

A

Living Instrument Principle

72
Q

What can the courts issue if an Act of Parliament or secondary legislation does not comply with the ECHR?

A

Declaration of Incompatibility

73
Q

What does a Declaration of Incompatiblity do?

A

Signal to Govt and Parliament that the matter should be considered.
Courts must still enforce it due to parliamentary sovereignty.

74
Q

What would a minister do to amend an urgent matter where a declaration of incompatibility has been issued under HRA 1998?

A

Minister lays a remedial order which becomes law immediately but ceases to have effect unless approved by both Houses within 120 days

75
Q

What would a minister do to amend a NON-urgent matter where a declaration of incompatibility has been issued under HRA 1998?

A

Minister lays a DRAFT remedial order which becomes law if approved by both Houses AFTER 60 days

76
Q

What does Section 6 of the HRA 1998 provide?

A

Makes it unlawful for a public authority to act in a way that is incompatible with a person’s rights under the ECHR

77
Q

Which bodies are excluded from the definition of public body under HRA 1998?

A

House of Commons and House of Lords

78
Q

What does Section 7 of the HRA 1998 provide?

A
  • The procedures that must be followed to bring an action under Section 6
  • A Section 6 claim can only be brought by the victim (directly affected)
79
Q

Which ECHR Article?
The ECtHR grants a narrow margin of appreciation to states treating a person less favourably on the basis of a protected ground.

A

Article 14 of the ECHR

80
Q

The Act that allows public authorities to limit the right to protest and grants power to arrest persons who violate public order

A

Public Order Act 1986

81
Q

Conditions for Breach of the (King’s) Peace

A

When harm to person/property is likely, feared or has taken place

82
Q

The requirement level for someone to be arrested before a breach of the peace takes place

A

The breach must be imminent

83
Q

What does a binding over order do?

A

Requires a person to maintain the peace and keep good behaviour for a specified period of time

84
Q

Public procession notice requirements under the Public Order Act 1986

A
  • At least six clear days before proposed procession date (or asap)
  • Delivered to local police station
  • Specify details (date, time, route, organiser name and address)
85
Q

Conditions can be placed on processions that will result in serious disruption to the life of the community. What does serious disruption entail?

A
  • Significant delay to the delivery of time-sensitive products to consumers
  • Prolonged disruption of access to any essential goods or services
86
Q

For how long can a Chief Constable ban all or a class of processions?

A

Three months

87
Q

Define public assembly

A

Assembly of 2 or more persons in a public place which is at least partially in the open air

88
Q

Term for an assembly:
- Involving 20+ persons
- On land of no or limited public access
- Likely to exceed permission
- May result in serious disruption to the life of the community

A

Trespassory assembly

89
Q

Act that made EU law binding under UK law

A

European Communities Act 1972

90
Q

The two EU foundational treaties and only sources of primary legislation

A
  • Treaty on European Union
  • Treaty on the Functioning of the European Union
91
Q

EU law secondary legislation made up of

A
  • Regulations (automatically binding)
  • Directives (member states make the necessary changes in their domestic law)
92
Q

The three rules against bias in judicial review procedural requirements

A
  • Actual Bias
  • Automatic disqualification rule
  • Apparent Bias
93
Q

Cases decided before the end of the Brexit transition period (31/01/20) relating to retained EU law are known as

A

Retained case law

94
Q

When does an act come into force if the act includes a provision giving the government the power to make a commencement order?

A

On the date the government states in the order

Not immediately upon receiving Royal Assent

95
Q

Term for the concept the more politically controversial the issue, the more likely the courts, when applying the proportionality test to the restriction of a qualified right, will defer to the govt and Parliament?

A

Judicial deference

96
Q

What are the 2 procedures for enactment of secondary legislation?

A
  • Negative Resolution Procedure
  • Affirmative Resolution Procedure
97
Q

What are the 5 remedies available when a judicial review case is successful?

A
  • Quashing order
  • Mandatory order
  • Prohibiting order
  • Injunction
  • Declaration

SQE1 (15 decks)

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