Constitutional and Administrative Law and EU Law

Question 1

A constitution that lacks a single definitive source

Answer 1

Uncodified

Question 2

The three elements of Rule of Law

Answer 2

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

Question 3

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

Answer 3

Parliamentary sovereignty

Question 4

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

Answer 4

Royal Prerogative

Question 5

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

Answer 5

Ram Doctrine

Question 6

The three elements of parliamentary sovereignty

Answer 6

• 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

Question 7

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

Answer 7

Incorporation into domestic law through an Act of Parliament

Question 8

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

Answer 8

21 days

Question 9

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

Answer 9

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

Question 10

What must government ministers do following policy failures?

Answer 10

Take responsibility
(May include resignation)

Question 11

Description of devolution reflecting it is not equal in each nation

Answer 11

Asymmetric devolution

Question 12

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

Answer 12

Enrolled Bill Rule

Question 13

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

Answer 13

Rule of Law

Question 14

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

Answer 14

Declaration of Incompatibility

Question 15

Legislative process:

Answer 15

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

Question 16

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)

Answer 16

Salisbury Convention

Question 17

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

Answer 17

English Votes for English Laws

Question 18

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

Answer 18

Suspensory veto

Question 19

Powers granted to the govt to amend primary legislation

Answer 19

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.

Question 20

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

Answer 20

Negative Resolution Procedure

Question 21

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

Answer 21

Affirmative Resolution Procedure

Question 22

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

Answer 22

Sub Judicie Rule

Question 23

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

Answer 23

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

Question 24

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

Answer 24

Parliamentary Privilege

Question 25

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

Answer 25

Cardinal Convention

Question 26

Which concept is being described? When Parliament grants powers to Secretary of State it accepts a civil servant will exercise those powers

Answer 26

Carltona Doctrine

Question 27

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

Answer 27

Orders of Council

Question 28

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

Answer 28

Collective responsibility

Question 29

Individual responsibility scenario where an account must be given

Answer 29

Operational failure

Question 30

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

Answer 30

Judicial Committee of the Privy Council

Question 31

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

Answer 31

Liaison Committee

Question 32

The ministerial duty not to mislead Parliament falls under

Answer 32

Individual Responsibility

Question 33

Expectation from a minister who has knowingly misled Parliament

Answer 33

Resignation

Question 34

The only situations in which collective responsibility has been set aside

Answer 34

Referendums

Question 35

The two elements of Collective Responsibility

Answer 35

- Confidentiality - Unanimity

Question 36

Who hears appeals in the JCPC?

Answer 36

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

Question 37

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

Answer 37

Sewel Convention

Question 38

The legal status of Scottish and Welsh devolution

Answer 38

Permanency

Question 39

What is the courts' power against devolved legislatures' legislation

Answer 39

Can strike down the legislation as invalid

Question 40

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

Answer 40

- Acts outside their legislative competence - Legislates contrary to the ECHR

Question 41

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

Answer 41

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

Question 42

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

Answer 42

Public body

Question 43

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

Answer 43

Judicial Review Pre-Action Protocol

Question 44

The two stages of judicial review

Answer 44

1) Permission stage 2) Full hearing

Question 45

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

Answer 45

Claimant's outcome would not change substantially

Question 46

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

Answer 46

Promptly, but no later than three months

Question 47

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

Answer 47

Within 6 weeks

Question 48

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

Answer 48

Private law

Question 49

What type of disputes can judicial review not resolve?

Answer 49

Factual disputes

Question 50

What is required of the claimant to be able to bring a judicial review claim? ## Footnote Claimant's position

Answer 50

Must have sufficient interest

Question 51

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

Answer 51

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

Question 52

The four potential grounds for a judicial review claim

Answer 52

- Illegality - Procedural impropriety - Unreasonableness - Breach of legitimate expectations

Question 53

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

Answer 53

Ouster clause

Question 54

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?

Answer 54

Only legal decisions cannot be challenged, can still investigate illegality

Question 55

The five grounds for procedural impropriety: ## Footnote MRRDD

Answer 55

- Mandatory/directory requirements - Right to be heard - Rule against bias - Duty to consult - Duty to give reasons

Question 56

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

Answer 56

Unreasonableness/irrationality

Question 57

Judicial review remedy that renders the original decision void

Answer 57

Quashing order

Question 58

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

Answer 58

Mandatory order

Question 59

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

Answer 59

Prohibiting order

Question 60

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

Answer 60

Injunction

Question 61

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

Answer 61

Declaration

Question 62

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

Answer 62

- Absolute rights - Limited rights - Qualified rights

Question 63

When can HRA absolute rights be limited by the state?

Answer 63

Never

Question 64

To what extent can limited rights be limited?

Answer 64

As provided in the article itself

Question 65

When can qualified rights be limited?

Answer 65

To pursue a legitimate interest as outlined in the particular article

Question 66

What test must limits to qualified rights pass?

Answer 66

Three-part proportionality test

Question 67

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

Answer 67

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

Question 68

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

Answer 68

Margin of appreciation

Question 69

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

Answer 69

When there is a consensus among member states on the issue

Question 70

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

Answer 70

War or public emergency that threatens the nation

Question 71

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

Answer 71

Living Instrument Principle

Question 72

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

Answer 72

Declaration of Incompatibility

Question 73

What does a Declaration of Incompatiblity do?

Answer 73

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

Question 74

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

Answer 74

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

Question 75

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

Answer 75

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

Question 76

What does Section 6 of the HRA 1998 provide?

Answer 76

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

Question 77

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

Answer 77

House of Commons and House of Lords

Question 78

What does Section 7 of the HRA 1998 provide?

Answer 78

- 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)

Question 79

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.

Answer 79

Article 14 of the ECHR

Question 80

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

Answer 80

Public Order Act 1986

Question 81

Conditions for Breach of the (King's) Peace

Answer 81

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

Question 82

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

Answer 82

The breach must be imminent

Question 83

What does a binding over order do?

Answer 83

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

Question 84

Public procession notice requirements under the Public Order Act 1986

Answer 84

- 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)

Question 85

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

Answer 85

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

Question 86

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

Answer 86

Three months

Question 87

Define public assembly

Answer 87

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

Question 88

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

Answer 88

Trespassory assembly

Question 89

Act that made EU law binding under UK law

Answer 89

European Communities Act 1972

Question 90

The two EU foundational treaties and only sources of primary legislation

Answer 90

- Treaty on European Union - Treaty on the Functioning of the European Union

Question 91

EU law secondary legislation made up of

Answer 91

- Regulations (automatically binding) - Directives (member states make the necessary changes in their domestic law)

Question 92

The three rules against bias in judicial review procedural requirements

Answer 92

- Actual Bias - Automatic disqualification rule - Apparent Bias

Question 93

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

Answer 93

Retained case law

Question 94

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

Answer 94

On the date the government states in the order ## Footnote Not immediately upon receiving Royal Assent

Question 95

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?

Answer 95

Judicial deference

Question 96

What are the 2 procedures for enactment of secondary legislation?

Answer 96

- Negative Resolution Procedure - Affirmative Resolution Procedure

Question 97

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

Answer 97

- Quashing order - Mandatory order - Prohibiting order - Injunction - Declaration