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SQE1 !!! > Constitutional and Administrative Law and EU Law > Flashcards

Constitutional and Administrative Law and EU Law Flashcards

1
Q

What is the key features of an uncodified constitution?

A

Lacks a single definitive source containing its most important rules.

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2
Q

What is a constitution?

A

A document that establishes and identifies the key institutions of the state.

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3
Q

What are the 3 parts of the UK constitution?

A

Legislature, Executive and Judiciary

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4
Q

What are the 6 key features of the UK constitution?

A
  1. Several Sources
  2. Rule of Law
  3. Lack of Entrenchment and Parliamentary Sovereignty
  4. No Power to Strike Down
  5. The Courts
  6. Common Law
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5
Q

What are the Several Sources that make up the UK Constitution?

A

Acts of Parliament, common law, constitutional conventions and Royal Prerogative

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6
Q

During what time was the UK a member of the EU?

A

1973-2020

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7
Q

What Act made the EU Law as source of UK legislation?

A

European Communities Act 1972.

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8
Q

What is the 2 parts of the rule of law?

A
  1. The law should be applied fairly and the government should act according
  2. Laws should generally not have retrospective effect.
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9
Q

What effect does Lack of Entrenchment and Parliamentary Sovereignty have on the UK Constitution?

A

Makes an Act of Parliament the highest form of UK law as supremacy rests with Parliament if there is no codified constitution

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10
Q

How can the constitution be changed?

A

Introducing another Act of Parliament

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11
Q

What effect does ‘No Power to Strike Down’ have on the UK Constitution?

A

The Courts cannot declare an Act of Parliament ‘unconstitutional’ or strike it down.

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12
Q

When can a Declaration of Incompatibility be made?

A

When legislation breaches or is incompatible with rights protected within the Human Rights Act 1998.

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13
Q

What can the Courts do when legislation breaches the HRA 1998?

A

Pass a Declaration of Incompatibility.

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14
Q

What are the consequences of a Declaration of Incompatibility?

A

Parliament will determine how they wish to amend the law if at all. The effect is not immediate and the courts are still required to enforce the law as written.

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15
Q

What part do the Courts play within the UK Constitution?

A

Required to interpret legislation and if the legislation is unclear then they will provide a definitive ruling.

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16
Q

What happens if Parliament disagree with the Courts interpretation of legislation?

A

They can amend the legislation to make the position clearer.

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17
Q

What is the effect of a constitutional monarchy?

A

The monarch has powers granted to them under the constitution.

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18
Q

What powers does the Monarchy have?

A

They appear to have considerable powers however in practice they have no personal discretion.

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19
Q

Who are most of the Monarch Powers exercised by?

A

Democratically accountable politicians e.g. Prime Minister and Cabinet.

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20
Q

What is the Royal Prerogative?

A

A collection of powers which common law recognises as belonging to the Crown (Government or executive).

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21
Q

Who exercises the Royal Prerogative?

A

Government.

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22
Q

What is the Ram Doctrine?

A

Give the government powers needed to carry on ordinary business of government which are not explicitly authorised by statute or royal prerogative.

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23
Q

What are constitutional conventions?

A

An informal and uncodified tradition that is followed by the institutions of a state

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24
Q

What is an example of a constitutional convention?

A

Power to appoint the Prime Minister legally belongs to the Monarch.

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25
Q

What is likely to happen if a Constitutional Convention is not followed?

A

Substantial criticism that any breach is likely to trigger.

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26
Q

What are the 4 nations in the UKs nation state?

A

England, Wales, Scotland and Ireland.

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27
Q

What is the meaning of a Union State?

A

There are three jurisdictions to the UK and the UK Parliament has supreme power.

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28
Q

Where can the UK legislate for?

A

All three jurisdictions but the law may vary between them.

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29
Q

What other powers do the Jurisdictions hold?

A

Certain Acts of Parliament have given Scotland, Wales and Northern Ireland their own legislatures and governments to develop their own specific areas of law.

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30
Q

Who is the leader of the executive?

A

Prime Minister and other government ministers.

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31
Q

Who are Members of the Houses of Parliament?

A

Government Ministers.

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32
Q

What 2 purposes do elections serve?

A
  1. To choose member of that chamber of the legislature.

2. To indirectly choose the government.

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33
Q

What is Parliamentary Sovereignty?

A

An Act of Parliament is the UKs highest source of law.

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34
Q

What are the three elements to Parliamentary Sovereignty?

A
  1. Parliament Can Make or Unmake Any Law Whatsoever
  2. No One Can Set Aside Acts of Parliament
  3. No Parliament Can Bind Its Successors
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35
Q

What is the effect of the element that Parliament Can Make or Unmake Any Law Whatsoever?

A

Parliament can pass an Act of Parliament about any subject it wishes even if this is beyond the boundaries of the UK.

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36
Q

Can Parliament retrospectively legislate?

A

Yes.

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37
Q

What is required for an international treaty to have domestic effect?

A

It needs to be incorporated into domestic law through an Act of Parliament.

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38
Q

What effect does the element of No One Can Set Aside Acts of Parliament?

A

If Parliament enact legislation which is outrageous the courts cannot intervene and overturn that legislation.

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39
Q

Why do Parliament not implement more outrageous legislation?

A

The Parliament is elected therefore anyone who implement outrageous legislation is unlikely to be re-elected.

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40
Q

What presumption do the Courts make when interpreting legislation?

A

Presume Parliament intended to legislate in accordance with the rule of law so the courts might strain the interpretation.

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41
Q

What is the enrolled bill rule?

A

The courts do not question the validity of legislation. Even if there has been procedural impropriety when enacting legislation, the courts will still give effect to the legislation.

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42
Q

What effect does No Parliament Can Bind Its Successors have on UK law?

A

Any Parliament can repeal an Act of the previous Government.

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43
Q

What is an expressed repeal?

A

Provides which Acts of Parliaments or sections are no longer law.

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44
Q

What is an implied repeal?

A

New legislation deals with the same subject matter and the two conflict.

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45
Q

What is the one fundamental principle of EU law?

A

That EU law is supreme across all member states.

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46
Q

How does EU Law prevail over parliamentary sovereignty?

A

UK enacted European Communities Act (1972) which made EU Law a source of law within the UK Legal system.

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47
Q

What would happen if an Act of Parliament conflicted with a part of EU Law?

A

The Act of Parliament is misapplied.

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48
Q

What are the three components to the Separation of Powers?

A
  1. The Executive
  2. The Legislature
  3. The Judiciary
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49
Q

What are the two features of the legislature?

A
  1. Laws to govern the country are made by the Legislature = Parliament
  2. Scrutinise government.
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50
Q

What are the 2 parts to Parliament?

A

House of Lords

House of Commons

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51
Q

What are the roles of the executive?

A

Implementing the law and governing according to the law as enacted by Parliament.

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52
Q

What is the role of the judiciary?

A

Interpret the law and resolve legal disputes.

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53
Q

What is the highest court in the UK?

A

Supreme Court

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54
Q

What are the 8 fundamental principles of the rule of law?

A
  1. No Punishment Without Breach of Law
  2. No Person is Above the Law
  3. Parliamentary Privilege
  4. Retrospective Legislation
  5. Other Rule of Law Principles
  6. Fundamental Rights
  7. Human Rights Act 1988
  8. Judicial Review
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55
Q

What does No Punishment Without Breach of Law mean?

A

No one should be punished unless they have breached the law and the punishment should be according to the law.

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56
Q

What does No Person Is Above the Law mean?

A

No one, no matter their status, rank or position in society should have special protection from certain laws.

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57
Q

What does Parliamentary Privilege mean?

A

A collection of rules which only apply to Member of the House of Commons and House of Lords.

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58
Q

What is an example of Parliamentary Privilege?

A

Statements made in Parliament cannot be challenged before the courts giving ministers absolute freedom of speech.

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59
Q

What effect does retrospective legislation have on the rule of law?

A

Law should not be enacted with retrospective effect.

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60
Q

What are the other rule of law principles?

A

Law should be accessible, intelligible, clear and predictable. Law should also provide a method for resolving civil disputes without requiring disproportionate cost or delay. Procedures provided by the state to resolve disputes should be fair.

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61
Q

What effect do fundamental rights have on the rule of law?

A

These include the right to access the courts and the notion that decisions made by the government need to be made fairly and comply with the basic standard of fairness.

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62
Q

What can interfere with Fundamental Rights?

A

An Act of Parliament.

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63
Q

What effect does the Human Rights Act 1988 have on the rule of law?

A

Requires legislation to be interpreted in a way which respects the human rights protected by the act.

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64
Q

If the law cannot be read to comply with the Human Rights Act 1988, what can the courts do?

A

Issue a Declaration of Incompatibility

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65
Q

What is Judicial Review?

A

Process by which actions or decisions of public authorities can be reviewed for their legality by the courts.

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66
Q

What forms the House of Commons?.

A

650 Members of Parliament

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67
Q

What do Members of Parliament represent?

A

The constituency they won at the last general election.

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68
Q

What MPs sit with government?

A

MPs who belong with the same political party.

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69
Q

Who forms Her Majesty’s Loyal Occupation?

A

Largest party not in government.

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70
Q

What is the role of the Leader of the Opposition?

A

Debate and question the Prime Minister and supported by a shadow cabinet.

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71
Q

Who is the Speaker in the House of Commons?

A

Chosen by all MPs to maintain order during debates and ensure that MPs comply with rules of parliamentary procedure. They are politically impartial and no longer a member of their political party.

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72
Q

What purposes does an election serve?

A

Selecting MPs and also selecting who shall form government.

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73
Q

How long does Parliament last?

A

5 years

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74
Q

What happens when the Parliament term is over?

A

It is dissolved, all MPs vacate their seats and an election is held.

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75
Q

What effect did the Fixed Term Parliaments Act 2011 have?

A

An election is to be held before the end of the 5 year period if:

  1. A motion of no confidence is passed by the House of Commons
  2. 66% of more of the MPs vote in favour of an early election.
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76
Q

Who cannot take up a seat in Parliament?

A
  1. Persons under 18
  2. Citizens of non-commonwealth countries
  3. Member of the House of Lords
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77
Q

What effect did the Commons Disqualifications Act 1975 have on who could become an MP?

A 
The following cannot become an MP: 
Members of the Judiciary
Civil Servants
Members of the armed forces
Members of the police force
Members of Parliament or legislatures outside of the Commonwealth or Ireland.
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78
Q

What is a by election?

A

Seats can become vacant due to death or retirement which triggers a by-election for that constituency to select a new member.

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79
Q

What effect did the Recall of MPs Act 2015 have?

A

If MPs have been:
1. Convicted of a Criminal Offence and sentenced to imprisonment
2. Suspended by the House of Commons for 10 days for misconduct
3. Providing false or misleading information in relation to their expenses
The speaker will notify the constituency which triggers a recall petition.

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80
Q

What is a recall petition?

A

If more than 10% of the electorate in a relevant constituency sign the petition then a by-election is held.

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81
Q

What is the House of Lords?

A

Unelected chambers with currently around 800 members.

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82
Q

What are the 4 categories of the members of the House of Lords?

A
  1. Hereditary Peers
  2. Life Peers
  3. Lords Spiritual
  4. Law Lords
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83
Q

What are Hereditary Peers?

A

Hold a title of Duke, Earl, Viscount or Baron. Pass down through family, usually to first born son. There are around 800 Hereditary Peers however only 92 are allowed to sit.

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84
Q

What are Life Peers?

A

Appointed by the Monarch on the advice of the Prime Minister and are given the rank of Baron. The title ceases on death and does not pass.

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85
Q

What is a Lord Spiritual?

A

The most senior 26 of the Church of England.

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86
Q

What are the Law Lords?

A

Formal title of the Lords of Appeal in Ordinary. Law lords were appointed for life when the House of Lords served as the highest appellate court in the UK.

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87
Q

How many sessions is a Parliamentary run split into?

A

5 - 12 months each.

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88
Q

How is each session begun?

A

With a speech read by the Queen prepared by the Government outlining the legislative proposals for the following sessions.

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89
Q

What is the significance of a Parliamentary Session?

A

If a bill has not been passed by the end of the Session, the process must begin again.

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90
Q

What is an exception to the law having to be passed prior to the end of the session?

A

When both House of Commons and House of Lords agree to carry over the bills.

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91
Q

What are the 7 stages of the legislative process?

A
  1. First Reading
  2. Second Reading
  3. Committee Stage
  4. Report Stage
  5. Third Stage
  6. Consideration of Amendments ‘Ping Pong’
  7. Royal Assent
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92
Q

What is the First Reading stage?

A

A formality that introduces the bill into the chamber. The government publishes the text of the bill and explanatory notes that outline the governments intention behind the bill.

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93
Q

What is the second reading stage?

A

First opportunity for the principles of the bill to be debated. This takes place in the chamber of the House of Commons and all MPs can choose to take part.

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94
Q

What is the committee stage?

A

When the bill is scrutinised line by line. MPs can table amendments to the bill. These are debated and will form part of the bill.

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95
Q

What are the two types of committee?

A
  1. Public Bill Committee

2. Committee of the Whole House

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96
Q

What does a Public Bill Committee consist of?

A

Between 16-30 MPs consider the Bill. Political parties are represented in proportion to their share of seats in the main chamber. Evidence can be received from experts of campaign groups.

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97
Q

What does the Committee of the Whole House consist of?

A

Deals with entirely controversial or urgent bills or bills of first class constitutional importance are considered by all MPs meeting.

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98
Q

What is the report stage?

A

Bill is received from the Committee and is reconsidered in the chamber. Further amendments can be made at this point but no topics already discussed can be debated.

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99
Q

What is the third stage?

A

Often quite brief and gives MPs a final review of the bill before going to the other House to start at the First Reading.

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100
Q

What is the Consideration of Amendments stage?

A

Amendments need to be considered in the House that first considered the Bill. If the amendments are accepted the Bill can be sent for Royal Assent. If not agreed, then they can be removed or counter-amendments can be made.

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101
Q

If the House of Commons and Lords conflict regarding a point of legislation, what is the general practice?

A

The unelected House gives way to the elected House.

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102
Q

What is the Royal Assent stage?

A

Once the bill has been approved by the House of Commons and the House of Lords in order for it to become law the Monarch must grant the Royal Assent. Merely a constitutional convention.

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103
Q

What is English Votes for English Laws?

A

An extra stage introduced when legislation or individual sections only apply to England. The speaker certifies any provisions of a bill that only apply to England and only MPs representing English constituencies can vote on it.

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104
Q

When is the English Votes for English Laws stage added?

A

Between report stage and third reading.

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105
Q

What are the powers of the House of Lords?

A

Generally they have the same powers as the House of Commons however they should not thwart the wishes of the House of Commons as they are unelected?

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106
Q

What are the 2 limitations to the Powers of the House of Lords?

A
  1. Salisbury Convention

2. Suspensory Veto Under Parliaments Act 1911-1949

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107
Q

What is the Salisbury Convention?

A

If government are passing a bill that was contained within their manifesto then the House of Lords will grant a second reading to the bill as a matter of course. They can still make amendments to the Bill.

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108
Q

What are Suspensory Veto Under Parliaments Act 1911-1949?

A

The House of Lords cannot reject a Bill that has been passed by the House of Commons twice in separate sessions. They cannot block legislation completely, merely delay.

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109
Q

What is the final step after Royal Assent?

A

Commencement

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110
Q

What happens at the commencement state?

A

The legislation usually doesn’t come into force immediately and it usually contains a commencement provision giving the power to the government to bring legislation into force on that date.

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111
Q

What happens if there is no commencement provision?

A

The legislation will take effect immediately after being granted the Royal Assent.

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112
Q

Can different parts of an Act come into force on different dates?

A

Yes.

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113
Q

What are the three ways an Act of Parliament can end?

A
  1. Amended
  2. Repealed
  3. Sunset Clause
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114
Q

What is the effect when an Act is repealed?

A

The legislation is no longer the law.

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115
Q

What is a Sunset Clause?

A

Some or all of the provisions of an Act can expire on a certain date.

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116
Q

What is Secondary Legislation?

A

Legislation made by government under the authority of an Act of Parliament.

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117
Q

What is secondary legislation’s usual purpose?

A

To implement policies or provide the detailed regulations necessary for a government scheme to operate.

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118
Q

What are the 2 procedures used to enact secondary legislation?

A
  1. Negative Resolution Procedure.

2. Affirmative Resolution Procedure.

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119
Q

What is Negative Resolution Procedure?

A

A draft secondary legislation is laid before both Houses. It will take effect on the date stated in the draft unless within 40 days of being laid either House votes to reject the same. No amendments to the draft can be made.
If no motion is passed = law

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120
Q

What is Affirmative Resolution Procedure?

A

A draft secondary legislation is laid beore both Houses. Both Houses must vote in favour of the secondary legislation in order for it to become law. No amendments can be made.

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121
Q

What are Henry VIII Powers?

A

Powers granted to the government to amend primary legilsation. These are used to make minor amendments.

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122
Q

Can secondary legislation be struck down by the Courts?

A

Yes as it is made by the government and not parliament.

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123
Q

What power does the Court have over secondary legislation?

A

They can imply restrictions in order to ensure that the secondary legislation complies with the rule of law.

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124
Q

What is the Sub Judicie Rule?

A

Requires that MPs and peers do not refer to cases which are currently before the courts in debates not to affect the outcome of the court case.

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125
Q

Can Courts refer to the official record of debates in Parliament to help interpret legislation?

A

Yes however this should only be done when the legislation is unclear and there is a statement from the minister which will assist the court and the statement is sufficiently clear.

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126
Q

What is the role of the monarch?

A

Head of state so acts as the representative of the state at home and abroad. Also Head of the Armed Forces, Head of the Church of England and Defender of the Faith. Also responsible for the governance of the self-governing Crown Dependancies e.g. Isle of Man and Channel Islands.

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127
Q

How many other countries is the Monarch Head of State?

A

15

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128
Q

What is the collective name for the 16 countries that the Queen is Head of State?

A

The Commonwealth

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129
Q

What was a consequence of the rise in parliamentary sovereignty?

A

The abolition of many prerogative powers, most functions were transferred to the Courts or Parliament.

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130
Q

What are the 6 principles that determine the scope of royal prerogative power?

A
  1. No new prerogative powers can be created
  2. When statutes overlap with the prerogative
  3. Crown cannot use the prerogative to thwart the intention of Parliament.
  4. Prerogative cannot be used to change the law
  5. Statutes do not bind the Crown unless expressly stated or necessary by implication
  6. Courts increasingly likely to review the prerogative.
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131
Q

What is the principle that no new prerogative powers can be created?

A

The Bill of Rights 1988 made clear Parliament and not the Crown was sovereign and they can pass an Act of Parliament abolishing any prerogative powers.

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132
Q

What is the principle of when statutes overlap with the prerogative?

A

If Parliament expressly abolishes a prerogative power and replaces it with a statutory power when the situation is clear = it is the statutory power which now applies.

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133
Q

What is the principle that the Crown cannot use prerogative to thwart intention of Parliament?

A

Parliament often passes legislation but allows government when to bring in the legislation through passing a commencement order. The Government cannot decide never to bring the legislation into force.

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134
Q

What is the principle of prerogative cannot be used to change the law?

A

Crown has no prerogative except that which the laws allow and therefore they cannot change the law or sources of law in the UK.

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135
Q

What is the principle of statutes do not bind the Crown unless expressly stated or by necessary implication?

A

For a statute to apply to the Crown it must expressly state therein that this applies to the Crown or be obvious by implication.

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136
Q

What is the principle that courts are increasingly likely to review prerogative?

A

Courts are showing a greater willingness to intervene on the basis of determining whether the action being challenged could be within the scope of prerogative powers and whether they could be constrained by key constitutional principles.

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137
Q

What are ministerial prerogative powers?

A

Powers exercised by government on behalf of the Crown.

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138
Q

To use ministerial prerogative powers does there need to be involvement from the Crown?

A

No.

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139
Q

What is an example of a ministerial prerogative power?

A

Issuing a passport, approving decisions made by ministers.

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140
Q

What are personal prerogative powers?

A

Personal powers exercised by the Monarch.

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141
Q

What are some examples of personal prerogative powers?

A

Appointment of Prime Minister
Power to Discuss Government
Power to prorogue Parliament
Granting the Royal Assent to legislation

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142
Q

What are miscellaneous prerogative powers?

A

These are archaic powers belonging to the Crown

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143
Q

What is an example of miscellaneous prerogative powers?

A

The right to mine precious materials
Right to supervise and construct harbours
Right to mint coinages
Right to claim ownership of any sturgeon, dolphin, whale and swan on certain stretches of the River Thames.

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144
Q

What are examples of legislative Prerogative Powers?

A

Passing order in Council which are a form of Legislation enacted by the Privy Council.
Granting Royal Assent to legislation.

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145
Q

What are examples of judicial prerogative powers?

A

Granting a pardon for someone convicted of a criminal offence
Monarch remains a source of judicial powers with the Judicial Committee of the Privy Council.

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146
Q

How are royal prerogative powers regulated by statute?

A

Instead of abolition, an Act of Parliament can choose to regulate how the power can be exercised.

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147
Q

Is the Ratification of an International Treaty a prerogative power?

A

Yes.

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148
Q

How is the prerogative power of ratifying international treaties controlled?

A

Constitutional Reform and Governance Act 2010

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149
Q

What is the procedure to ratify an international treaty?

A

Lay draft before Parliament for 21 days. If neither House votes against the ratification it can be passed.

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150
Q

What happens if a House votes against ratification of an International Treaty?

A

The Government can explain why they still want to ratify the treaty and the House of Commons then have a further 21 days to say why they do not want the same to be ratified. if not further vote, then the treaty can be ratified.

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151
Q

Can the government bypass the need to lay an international treaty before Parliament?

A

Yes, in exceptional cases. Exceptional cases is not defined within the law.

152
Q

What are the constitutional conventions in relation to royal prerogative?

A

Cardinal Convention

Deployment of Armed Forces

153
Q

What is the Cardinal Convention?

A

This is the convention that the Monarch always acts on the advice of her ministers. The Monarch has a right to be consulted, encourage and warn the government.

154
Q

What happens if the Monarch and Ministers disagree?

A

The Monarch must accept the advice of the ministers.

155
Q

What is the constitutional convention in relation to the deployment of the armed forces?

A

The government decide when to deploy the armed forces.

156
Q

How did the Iraq War in 2003 change the war the army are deployed?

A

Government has to seek the support of the House of Commons before deploying the armed forces.

157
Q

Who is the Prime Minister?

A

The leader of the majority party in the House of Commons.

158
Q

What are the 2 requirements of becoming a Prime Minister?

A

Must be an MP and must be able to command the confidence in the House of Commons.

159
Q

What happens to the Prime Minister after a general election?

A

If a different party is elected then a new Prime Minister is appointed and the previous one resigns.

160
Q

What happens when a Prime Minister resigns between a general election?

A

The political party runs a leadership contest according to their own internal rules to appoint a new Prime Minister. When a new leader has been chosen the previous Prime Minister can resign.

161
Q

What is a Hung Parliament?

A

When no single political party wins the majority in the election.

162
Q

What happens in a hung parliament?

A

Prime Minister remains in office until it is clear they have lost the confidence of the House of Commons. The political parties negotiate with each other to determine who should form the next government.

163
Q

Confirm the 5 main constitutional powers provided to the Prime Minister.

A
  1. Organisation of Government and Civil Service
  2. Constitutional Role
  3. Security and Intelligence
  4. Armed Forces
  5. International Relations and Brexit
164
Q

What does the role of organisation of government and civil service include?

A

Prime Minister has the power to change the organisation of government through abolishing, merging or creating new government departments.

165
Q

What does the constitutional role include?

A

Prime Minister advises the Monarch in a weekly meeting. Prime Minister is responsible for the overall relationship between the UK government and devolved Parliaments (Scotland, Wales and Ireland).

166
Q

What does the role of security and intelligence matters include?

A

Prime Minister has overall responsibility for matter relating to national security and intelligence matters.

167
Q

What does the role of the armed forces include?

A

Prime Minister is ultimately responsible for decisions to deploy the armed forces either abroad or to support the police in the UK.

168
Q

What is the role of international relations and brexit?

A

Prime Minister is responsible for representing the UK at various international meetings including NATO. the G7 and European Council.

169
Q

What are the conventional restrictions upon government ministers?

A

Ministers must have a seat in either the House of Commons or House of Lords which allows government to be accountable to Parliament through its ministers.

170
Q

Can ministers be appointed without a seat in the House of Commons or House of Lords?

A

Yes they will be made a member of the House of Lords by being a life peerage.

171
Q

What is the main political restriction to the Prime Minister?

A

They are only in office for so long as they are the leader of their party which requires their party’s support of their MPs.

172
Q

What is the composition of cabinet?

A
  • Prime Minister
  • Chancellor of the Exchequer
  • Chief Secretary to the Treasury
  • Secretaries of State
  • Lord Chancellor and Secretary of State for Justice
  • Leader of the House of Commons
  • Leader of the House of Lords
  • Chief Whip
173
Q

What is the role of a Chief Whip?

A

They are responsible for maintaining the ‘discipline’ of those MPs who are member of the party who has formed the government.

174
Q

What is the role of cabinet?

A

Responsible for making decisions within the government and those decisions should be reached collectively by ministers.

175
Q

How is the role of cabinet achieved?

A

A weekly meeting of cabinet.

176
Q

What is an example of matters expected to be discussed by government?

A
  • Decisions to take military actions
  • Determining the governments legislative agenda
  • The most significant domestic policy measures
  • The most significant European or international affairs
  • National emergencies including terrorism
177
Q

What are cabinet committees?

A

Committees that sit below the main cabinet and are established by the Prime Minister. These are made up of cabinet ministers and junior ministers.

178
Q

What effect does decisions made in the cabinet committees have in comparison to those made in cabinet?

A

The same binding effect.

179
Q

What are the 2 main principles of cabinet meetings?

A

Confidentiality - anything discussed win cabinet must remain private and once a decision is reached it is binding on all ministers whatever their personal views.

180
Q

How does cabinet work in modern practice?

A

Senior ministers can make decisions outside of cabinet structure consulting smaller groups and advisors. The cabinet will then be informed of the decision.

181
Q

How many government departments are there?

A

25

182
Q

What is the responsibility of the government departments?

A

Developing and implementing policy in their particular area.

183
Q

Who are the secretary of state?

A

Head of each government department and have overall responsibility for the department and is accountable to Parliament.

184
Q

What is the Carltona Doctrine?

A

The principle when Parliament grants a power to the secretary of state in an Act of Parliament. The power can be exercised by a civil servant within the department.

185
Q

What is the civil service?

A

Civil servants work in government departments and classed as servants of the Crown. Civil servants remain in office no matter which political party forms the government.

186
Q

What are the functions of the Privy Council?

A

To pass Orders in Council which form part of legislation.

187
Q

How can the Privy Council make primary legislation?

A

Orders made under the royal prerogative.

188
Q

How can the Privy Council make secondary legislation?

A

Orders made under the royal prerogative.

189
Q

Who is appointed to become a member of the Privy Council?

A

By convention all ministers are appointed for life and are made by the Monarch on the advice from the Prime Minister.

190
Q

When are Privy Council meetings held?

A

In secret and require the attendance of the Monarch. Usually only 3 Privy Council members who are all government ministers.

191
Q

What is the role of the Judicial Committee of the Privy Council?

A

Hears on appeals in points in law from Commonwealth nations or British Overseas Territories that used to be part of the British Empire but lack final appeal court of their own due to the small nations.

192
Q

What is collective responsibility?

A

Government ministers must maintain support for government policy in public and before Parliament.

193
Q

What are the 2 key elements to collective responsibility?

A
  1. Confidentiality

2. Unanimity

194
Q

What is the element of confidentiality?

A

Allows ministers to freely express their views in private, safe in the knowledge that their views should not be released to the public or Parliament.

195
Q

What is the element of Unanimity?

A

Once a decision is made it is binding on all government ministers and the ministers are expected to support government policy in public or before Parliament.

196
Q

What happens if a minster cannot support a particular policy?

A

They must resign from government.

197
Q

Can collective responsibility be set aside?

A

The Prime Minister can set this aside.

198
Q

When has collective responsibility been set aside?

A

It has happened 3 times since 1945 each involving referendums allowing each party to campaign.

199
Q

What are the 2 main points to individual responsibility?

A
  1. Duty not to mislead Parliament

2. Responsibility and accountability to Parliament for their department

200
Q

What is the duty not to mislead Parliament?

A

Parliament can hold government to account only if they are given truthful information by ministers.

201
Q

What happens if a minister is found to have misled Parliament?

A

They are required to correct any inadvertent error as soon as possible. If they misled knowingly they are expected to resign.

202
Q

What must a minister do if they give account?

A

Ministers are required to give an account of the actions of their department. This was the concerns of the public about the government are expressed through their representative. A minister must respond to these concerns in a manner which ensures that Parliament will continue to have confidence in the minister and the rest of government.

203
Q

What must a minister do when they take responsibility?

A

Ministers are required to take responsibility for their actions of their department for which the minister personally should take the blame. Ministers would respond to criticism made in Parliament in a matter which is likely to satisfy it, which can include resignation.

204
Q

Is ministers private conduct taken into account?

A

Yes, in general ministers are required to act in a way that upholds the highest standards even in their private lives. If their actions do not meet the Ministerial Code then they might be forced to resign.

205
Q

How can you distinguish between giving account and taking responsibility?

A

Matters which are policy failures for which the minister takes responsibility.
Matters which are viewed as operational matters for which the minister give account and takes steps to ensure the failure does not reoccur.

206
Q

What are the 6 measures that achieve the accountability of government to Parliament?

A
  1. Prime Ministers Question Time
  2. Ministerial Questions
  3. Opposition Business
  4. Urgent Questions
  5. Select Committees
  6. Liaison Committees
207
Q

What is Prime Ministers Question Time?

A

Prime Minister answers questions about the overall conduct of the government from MPs from all political parties. The leader of the opposition can ask 6 questions which are responded to by the Prime Minister.

208
Q

What is Ministerial Questions?

A

MPs are able to ask questions from ministers from a government department. Each government department is on a rota and they are usually questioned once every five weeks. Written questions can be asked at any time and the relevant government department will provide an answer within 7 days.

209
Q

What is the opposition business?

A

Usually government business such as enacting legislation takes priority over all other business however 20 days are allocated to the opposition parties who can choose to debate a policy area of their choice and receive a response from government.

210
Q

What is urgent questions?

A

If a matter is urgent then an MP can apply to the speaker to ask a question that day. If the speaker agrees it’s a pressing matter of public interest and there is no other way for the issue to be debated. A minister is required to respond and explain the government actions. Other MPs can then take part in that debate.

211
Q

What are the 2 types of select committee?

A

Departmental Select Committee

Other Select Committee

212
Q

What is a departmental select committee?

A

Shadow a government department

213
Q

What are other select committees?

A

Cut across government departments taking a broader view of government.

214
Q

What is the purpose of select committees?

A

Choose which matters to investigate, question ministers and other witnesses and invite experts to give evidence.

215
Q

What is the liaison committee?

A

Formed o the chairs of the select committees. Twice a year, this committee questions the Prime Minister in an extended session.

216
Q

What is permanence in Scotland and wales?

A

The Parliaments and governments of the devolved states are permanent parts of the UKs constitution.

217
Q

How can the Welsh or Scottish government or parliaments be abolished?

A

Members of the state must vote to abolish that law via a referendum. An act of Parliament will then be passed.

218
Q

How was devolution in Northern Ireland created?

A

1998 Good Friday Agreement which includes an international treaty between the UK and Republican of Ireland.

219
Q

What is the Sewel Convention?

A

The UK Parliament has retained the power to legislate in all matters affecting Scotland, wales and Northern Ireland including matters that have been dissolved.

220
Q

What just the UK Parliament do if it is going to legislate on a matter in a dissolved state?

A

The consent of the affected institutions is normally required via a ‘legislative consent motion’

221
Q

Can the devolved institution refuse to consent to legislation implemented by the UK Parliament?

A

Legally the UK can still pass the legislation.

222
Q

When can the courts of Scotland, wales and Northern Ireland refer a matter to the Supreme Court for a decision?

A

When they act outside of their legislative competence and when the legislate contrary to the ECHR.

223
Q

At what stage would a bill be referred to the Supreme Court for devolution legislature?

A

In between a bill passing all of its stages and being granted the Royal Assent.

224
Q

What is Judicial Review?

A

Method by which the courts can review and scrutinise the actions of the executive.

225
Q

What does the decision of a judicial review decision look at?

A

Legality and not the merits of the case.

226
Q

What does judicial review allow?

A

The Courts to ensure that public authorities act according to the law, thus maintaining the rule of law.

227
Q

What are the 3 main concerns of judicial review?

A
  1. Whether the application meets the requirements for a successful application
  2. Whether one of the grounds of judicial review has been established
  3. What is the appropriate remedy?
228
Q

What are the 10 requirements for judicial review?

A
  1. Claim must be against a public body
  2. Existence of a contract
  3. Correct procedure used
  4. Grounds for refusal
  5. Time Limits
  6. Procedural exclusivity
  7. Issues reviewable
  8. Claimant have standing
    10 Last Resort
229
Q

What is the requirement that a claim must be against a public body?

A

Judicial review are only available against decisions made by public bodies e.g. Secretaries of State, local governments and councils. Not against private individuals.

230
Q

What is the requirement of Judicial Review of Existence of a contract?

A

If a contract exists the courts will determine the matter is regulated by private and not public law.

231
Q

What is the requirement of Judicial Review - correct procedure been used?

A

The claim must be brought according to the correct procedure.

232
Q

What is the correct procedure to bring judicial review?

A

Pre-action protocol, permission stage and second stage.

233
Q

What is the judicial review pre-action protocol?

A

Before the action is commenced, the claimant should send a letter to the potential defendant identifying the issues in the disputes. Defendants should respond within 14 days.

234
Q

What is the Judicial Review Permission Stage?

A

Claimant must apply to the court for permission to continue the claim. Usually this stage is decided on the papers making the application and the defendants response. Judge might also want a hearing if the case is more complex.

235
Q

What happens if the judicial review claim is rejected at the Permission Stage?

A

The claim goes no further.

236
Q

What happens if the Judicial Review Claim is successful?

A

A full hearing will be had.

237
Q

What is the judicial review requirement of grounds for refusal?

A

The court can refuse permission if they believe the judicial review claim would be successful however would not lead to a substantially different outcome.

238
Q

What is the judicial review requirements of time limits?

A

Claim must be brought promptly but no later than 3 months after the issue arose (3 months from when the issue was challenged). If the matter is regarding a planning decision then the claim must be brought within 6 weeks. The judge can still reject the claim if it is brought within the time limit however they do not feel the claimant acted promptly.

239
Q

What is the judicial review claim of procedural exclusivity?

A

Means public law issues must be brought via judicial reviews rather than through the ordinary procedures available via public law. An exception is where cases involve both public and private law which can be resolved in private law.

240
Q

What is the judicial review requirement of the issues are reviewable?

A

The issue raised must be those which the courts are able and prepared to review and the parties must be involved within a live dispute. The judges will not look at a hypothetical situation.

241
Q

What is the judicial review requirement that they will not review factual disputes?

A

It is not the appropriate place to review factual disputes. If the matter is factual rather than legal this can be brought in the ordinary courts.

242
Q

What is the judicial review requirement that the claimant must have standing?

A

Claimant must have sufficient interest in the issues the case raises and this is reviewed at permission stage. If there is no sufficient interest then the court will reject the case.

243
Q

Would a group or association have sufficient standing for a judicial review claim?

A

if they lack standing then they will not gain standing by forming a group. If the association is well resourced, has expertise and there is unlikely to be an alternative claimant then they will be deemed to have sufficient interest.

244
Q

What is the judicial review requirement that it should be the last resort?

A

All other possibilities should have been exhausted first especially if there is a suitable tribunal by which the decision made by a public body can be challenged.

245
Q

What are the 4 main elements of judicial review?

A
  1. Illegality
  2. Procedural Impropriety
  3. Unreasonableness
  4. Breach of Legitimate Expectations
246
Q

What is the effect of the elements of judicial review?

A

The claimant must establish one of these grounds for the claim to be successful.

247
Q

What are the 5 elements of illegality?

A
  1. Error of law
  2. Specific legal duty
  3. Unlawful delegation of power
  4. Irrelevant considerations
  5. Ultra Vires
248
Q

What is the illegality element of ultra vires?

A

Means ‘outside the powers’. Used when a public authority acts outside an Act of Parliament that grants them the power to act. Whether the action is within or outside the scope is a matter for statutory interpretation.

249
Q

What is the illegality element of error of law?

A

Courts determine whether the decision made has been made lawfully.

250
Q

What are ‘ouster clauses’?

A

A statute can give a power to a public authority to make a decision and then attempt to shield such decisions from judicial review. E.g. ‘ no decision made under this section shall be questioned in any court of law’.

251
Q

How do courts deal with ouster clauses?

A

The courts interpret such attempts very restrictively as meaning that no ‘legally valid’ decisions can be questioned before the courts.

252
Q

What is the illegality element of failure to comply with a specific legal duty?

A

Several statutes require that when public authorities act they must comply with certain duties.

253
Q

What is an example of failure to comply with a specific legal duty?

A

Public Sector Equality Duty

254
Q

What is the Public Sector Equality Duty?

A

Requires public authorities to take into account equality considerations when making decisions.

255
Q

What is the illegality element of unlawful delegation of power?

A

Power once delegated cannot be delegated again without being approved by the Act of Parliament approving power in the first place.

256
Q

What is the exception to the illegality element of unless delegation of power?

A

Caltona Doctrine.

257
Q

What is the illegality element of irrelevant considerations?

A

When exercising a power, a public authority is required to take into account only relevant considerations. What is relevant depends on the Act granting the power to make the public authority.

258
Q

What is the judicial review element of procedural impropriety?

A

The decision-maker may have to comply with procedural requirements in statute and imposed by common law.

259
Q

What are the 5 ground for procedural impropriety?

A
  1. Mandatory/Directory Requirements
  2. Right to be Heard
  3. Rule against bias
  4. Duty to consult
  5. Duty to give reasons
260
Q

What is a mandatory principle of procedural impropriety?

A

One that must be followed and failure to follow will invalidate the decision.

261
Q

What is a directory principle of procedural impropriety?

A

Will not necessarily invalidate the decision if not followed.

262
Q

How is it decided whether the statutory requirement is mandatory or directory?

A

Depends on the words used in the legislation (must or shall) and whether anyone would be caused injustice or hardship if the requirement is not followed.

263
Q

What are the 4 procedural requirements imposed by common law?

A
  1. Right to be heard
  2. Rule against bias
  3. Common law duty to consult
  4. Duty to give reasons
264
Q

What is the procedural requirement of the right to be heard?

A

There is a common law right to be heard and the extent of this varies from situation to situation.

265
Q

In an application case, what is the right to be heard?

A

When the person is seeking to acquire a right and the right to be heard may impose relatively few requirements.

266
Q

In a forfeiture case, what is the right to be heard?

A

When a right is removed from a person, the person must be given the opportunity to hear the case against him and respond.

267
Q

What is the procedural impropriety rule against bias?

A

Made up of 3 parts:

  1. Actual Bias
  2. Automatic Disqualification Rule
  3. Apparent Bias
268
Q

What is actual bias in relation to the procedural requirements of judicial review?

A

This is present when the decision maker has made a decision that is actually motivated by bias. It is impossible to prove as it would require being a mind reader.

269
Q

What is the automatic disqualification rule in relation to the procedural requirements of judicial review?

A

If the decision-maker has a financial interest, they are automatically disqualified from hearing the case. If the decision-maker has a non-financial interest which is so closely connected to issues raised by the decision in question they are also automatically disqualified.

270
Q

What is apparent bias in relation to the procedural requirements of judicial review?

A

A broader category of bias that covers cases that do not fall into the two previous categories. The test is whether a ‘fair minded and informed observer’ informed of the facts would conclude that there was a real possibility of bias.

271
Q

What is the procedural impropriety element of common law duty to consult?

A

There is no common law duty to consult as imposing such duty would significantly slow down decision making within the government.

272
Q

When would a duty to consult arise?

A

When there is a statutory duty, promise, established practice of consultation and where failure to consult would lead to conspicuous fairness.

273
Q

What is the procedural impropriety requirement of duty to give reasons?

A

No common law duty to give reasons as if reasons were required for every decision then government would be slow.

274
Q

When is there a duty to give reasons?

A

When a subject matter is important and requires fairness or if a decisions appears aberrant.

275
Q

When would a legitimate expectation arise?

A

When a public body has given rise to a belief that power will be exercised in a certain, usually due to a promise or assurance or previous action by the public body.

276
Q

What is the element of unreasonableness or irrationality?

A

The decision must be considered so outrageous or absurd it is outside the power of the decision marker and cannot be considered lawful.

277
Q

What is the test for unreasonableness?

A

The decision must be 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 to it.

278
Q

When is the proportionality test used?

A

Applied when referring to the Human Rights Act 1988 and EU Law due to the limitations of the unreasonableness.

279
Q

What are the 3 parts to the proportionality test?

A

Is the object of policy sufficiently important to justify limiting the fundamental right?
Are the measures designed to meet the legislative objective rationally connected to it?
Is the inference with the right more than necessary to accomplish the objective?

280
Q

What are the 5 remedies available for judicial review?

A 
Quashing Order
Mandatory Order
Prohibiting Order
Injunction
Declaration
281
Q

What is a quashing order?

A

This renders the original decision void. The position is now as if the decision was never made and a new decision will be required.

282
Q

What is a mandatory order?

A

This orders the defendant to act in a particular manner.

283
Q

What is a prohibiting order?

A

This orders the defendant not to act in a particular order.

284
Q

What is an injunction?

A

This is an order preventing a party from acting in a certain matter or requiring that a party acts according to the instructions of the court.

285
Q

What is a declaration?

A

This declares the decision or action complained of was unlawful.

286
Q

Can more than one remedy be provided in judicial review?

A

Yes, they can be combined.

287
Q

Is a remedy always given in a judicial review case?

A

They are discretionary meaning the courts can still refuse to grant a remedy even if the case has been successful.

288
Q

Who can bring a case to the European Court on Human Rights?

A

People who assert a breach of their rights once they have exhausted the legal process in their country.

289
Q

What effect did the Human Rights Act 1988 have on UK law?

A

Incorporated the European Convention of Human Rights into UK Law.

290
Q

What are the three types of convention rights?

A

Absolute Rights
Limited Rights
Qualified Rights

291
Q

What are absolute rights?

A

Rights that cannot be limited by the state under any circumstances.

292
Q

What are examples of absolute rights?

A

Right to Life, Prohibition of Torture, Right to Property, Right to Education

293
Q

What is a limited right?

A

Actual scope of the right itself can only be limited by the article itself.

294
Q

What is an example of a limited right?

A

Right to Liberty and Right to a Fair Trial.

295
Q

What is a qualified right?

A

Rights that can be limited by the state in order to pursue a legitimate interest.

296
Q

What are examples of qualified rights?

A

Right to respect for private and family life, freedom of expression, right to marry.

297
Q

What is the proportionality test when deciding if a right can be qualified?

A

The object of the policy and legitimate aim pursued is sufficiently important to justify limiting a fundamental right.
The measure is designed to meet the objective and is rationally connected to it
The interference with the right is no more than necessary to accomplish that objective.

298
Q

What judicial deference is granted to the limitation of rights?

A

The greater deference the less argument and evidence is required to show that a measure is proportionate. A greater level of deference is likely to be shown when a case involves questions of national importance.

299
Q

Are the UK Government allowed a certain margin of appreciation when challenged before the ECtHR?

A

Yes, essentially that they are permitted some discretion over the extent to which a right can be restricted.

300
Q

What is the Living Instrument Principle?

A

The ECHR is considered a living instrument so can adapt to changing social and economic decisions.

301
Q

What are the 3 principles to the Living Instrument Principle?

A

Not Bound by Previous Decisions
Consistent Approach of Contracting States
ECtHR must be accesible to all individuals`

302
Q

What is the principle that the ECHR is not bound by previous decision?

A

ECHR can follow its own previous decisions however it is free to depart if a new issue arises or other developments justify how the ECHR is interpreted.

303
Q

What is the principle that there must be a consistent approach of contract states?

A

ECtHR may also choose to follow an approach adopted by some or all of the contracting states on a particular issue or Convention rights.

304
Q

What is the principle that the ECtHR must b accessible to all individuals?

A

ECtHR interprets the ECHR in a practical and accessible manner.

305
Q

When can a state derogate from some of the articles of the ECHR?

A

In the event of war or other public emergency that threatens the life of the nation.

306
Q

What extent can a state derogate from the ECHR?

A

Only the extent required by exigencies of the situations.

307
Q

What is the ‘mirror principle’?

A

The effect of this requirement is to make ECHR case law an important source of law. E.g. if there is a clear line of authority of a convention right, the courts are expected to follow the interpretation of the ECtHR. The courts will offer no more but certainly no less.

308
Q

How does Section 3 of the HRA require the legislation to be interpreted?

A

So far as possible to do so with convention rights. This is an enhanced power of interpretation that sometimes allow courts to depart from the basic language of legislation to give effect to the underlying intention of Parliament.

309
Q

What does section 4 of the HRA relate to with regards to a Declaration of Incompatibility?

A

If an Act of Parliament or secondary legislation is not able to be interpreted with convention rights then the court can make a declaration of incompatibility. It does not make the legislation invalid however serves a signal to Parliament that they might wish to reconsider it.

310
Q

What are the 2 procedures provided by Section 10 of the HRA to correct incompatible legislation?

A

Non-urgent procedure

Urgent procedure

311
Q

What is a non-urgent procedure when correcting incompatible legislation?

A

Provides a fast track procedure known as a remedial order, that allows both an Act of Parliament and secondary legislation to be amended via secondary legislation. A remedial order can become law following the approval of both Houses 60 days after being laid in draft.

312
Q

What is an urgent procedure for correcting incompatible legislation?

A

If the person making the order views the subject matter as urgent, it can be made immediately and will take immediate effect. It must then be laid before Parliament and will cease effect if within 120 days either House has not passed as resolution approving the order.

313
Q

What does Section 6 of the HRA impose upon public bodies?

A

Makes it unlawful for public authorities to act in a way that is incompatible with a convention right. Effectively created an extra, statutory ground of judicial review in that their actions can be challenged on the basis of the breach of human rights.

314
Q

What is the definition of a public authority?

A

Any person whose functions are of a public nature which includes the secretary of state, local authorities and agencies created by the government. EXCLUDES House of Lords and House of Commons.

315
Q

What are the exclusions of whether a public authority cannot be declared incompatible with the HRA?

A

The actions of a public authority cannot be found unlawful if the public authority could not have acted any differently without violating the law.

316
Q

Who can bring proceedings against public authorities under the HRA?

A

Only a victim of the alleged can bring a claim meaning those who are ‘directly affected’.

317
Q

What is the time limit for a claim against a public body to brought under the HRA?

A

1 year.

318
Q

What are the remedies available in a claim against a public body under the HRA?

A

All same remedies available for judicial review. The court can provide any remedy they see fit and no remedy has to be given.

319
Q

What does Article 14 of the ECHR, free from discrimination mean?

A

The freedoms and rights contained within the Convention shall be achieved without discrimination in the grounds of sex, race, national origin, colour, language, political views, religion, birth, property or other status.

320
Q

What is a condition of bringing a discrimination claim under the ECHR?

A

Claim can only be brought if it is attached to the breach of another convention right.

321
Q

What margin of appreciation is allowed regarding article 14 of the ECHR?

A

Very little discretion is allowed to treat a person less favourably on the basis of one of the protected grounds.

322
Q

What is the difference between a claim for discrimination under ECHR and the Equality Act 2010?

A

A freestanding claim of discrimination can be made under the Equality Act 2010.

323
Q

Who can bring a claim under the Equality Act 2010?

A

This can also cover private employers and not just an organisation in a public body.

324
Q

What are the 4 types of discrimination?

A

Direct
Indirect
Harassment
Victimisation

325
Q

What is direct discrimination?

A

When one is treated less favourably because of their protected status.

326
Q

What is indirect discrimination?

A

Where there is a policy, practice or procedure which applies to everyone but affected a protected group of people unfavourably.

327
Q

What is harassment?

A

When a person is subjected to unwanted behaviour which has the purpose or effect of making the person feel humiliated, degraded or uncomfortable.

328
Q

What is victimisation?

A

Occurs when a person is penalised for having made their own complaint of discrimination or for helping another person with their victimisation compliant.

329
Q

What is the Queens Peace?

A

Police officers have a duty to maintain the Queens Peace. They must ensure that citizens must go about their ordinary business free from undue influence from other citizens.

330
Q

What conduct is required for breach of the peace?

A
  1. A person is genuinely in fear of harm to themselves to them or their property in their presence as a result of assault, affray, riot or other disturbance.
  2. When harm has actually been done to a person or to a property in their presence
  3. When harm is likely to be done to a person or to property in their presence.
331
Q

Where can a breach of the peace take place?

A

Can take place in either a public space or private premises.

332
Q

What is the effect of the breach of peace?

A

A police officer can take such steps as a reasonable to terminate a breach of the peace or prevent a likely one.

333
Q

If harm has not yet been done, can they still be arrested for breach of the peace?

A

Yes but the harm must be imminent.

334
Q

What are the consequences of a breach of peace?

A

A binding over order requires the person to be arrested to maintain the peace and keep good behaviour for a specified period of time.

335
Q

What conditions does the Public Order Act impose on public processions?

A
  1. Notice is required
  2. Notice requirements
  3. Exceptions
  4. Potential conditions on processions
  5. Criminal offence
    6 Banning a public procession
336
Q

When is notice required for a public procession under the Public Order Act 1986?

A

Must take place in public and usually the advance notice of the procession is to achieve one of the following:

  1. Demonstrate support,
  2. Publicise the campaign
  3. Mark or commemorate an event
337
Q

What are the notice requirements for a public procession under the Public Order Act 1986?

A

Given at least 6 days before the proposed date of the procession or if not possible as soon as practicably reasonable.
Must be delivered to a police station located in the area in which the procession will take place
Specify the date, time, route and the name and address of the person organising the event

338
Q

What exceptions apply to giving notice for a public procession under the Public Order Act 1988?

A

Does not apply to processions commonly or customarily held e.g. remembrance Sunday parade.

339
Q

What are the potential conditions on processions under the Public Order Act 1988?

A

Upon receiving the notice, the senior police officer can impose conditions on the march considering the time, place circumstance and route of the procession if they believe the procession will result in serious public disorder or the purpose of the procession is to intimidate others.

340
Q

Is it a criminal offence to breach procession conditions?

A

Yes.

341
Q

Can a public procession be banned under the Public Order Act 1988?

A

If no conditions can be imposed that would prevent serious disorder, the chief constable can apply to ban all or a specified class of processions for up to three months.

342
Q

Where should applications to ban a public procession be made in England and Wales?

A

Local Council.

343
Q

Where should applications to ban a public procession be made in the City of London and Greater London?

A

Home Secretary.

344
Q

What is a public assembly?

A

An assembly of two or more people in a public place which is wholly or partially in the open air.

345
Q

What is a trespassory assembly?

A

Involving more than 20 people on land to which public have no or are not expected to have rights of access to which is likely to be held without the consent of the owner of the land and may result in serious disruption to the lift of the community or significant damage to the land.

346
Q

Is it a criminal offence to participate in a trespassory assembly?

A

Yes, it is an offence to organise, participate in or incite others to participate in a banned event.

347
Q

What powers to police have to stop attendance at a trespassory assembly?

A

They can stop anyone they reasonably believe to be on their way to a trespassory assembly which has been banned and direct them not to attend.

348
Q

What are the 5 institutions of the European Union?

A 
European Council
Council of the European Union
European Commission
European Parliament
Court of Justice of the European Union
349
Q

What is the European Council?

A

Formed of the heads of government of each member state.

350
Q

What is the Council of the European Union?

A

Sometimes called the Council of Ministers. Meets in 10 different subject configurations and each member state nominates a minister to attend each configuration. The ministers attending have the power to make decisions on behalf of their government.

351
Q

What is the European Commission?

A

Formed by a representative from each member state who acts as a commissioner. Commissioners effectively create the executive of the EU. They develop policy initiatives as mandated by the treaties, making proposals for legislation where necessary.

352
Q

What is the European Parliament?

A

Formed by elected representatives from each member state and in conjunction with the Council of the European Union plays a key part in approving and amending proposed regulations and directives.

353
Q

What is the Court of Justice of the European Union?

A

Provides the authoritative interpretation of EU law by mainly answering questions in points of EU law it receives from the Courts of member states through a process known as the preliminary reference procedure.

354
Q

What are the categories of EU law?

A

Treaties
Secondary legislation
Supremacy of EU law
Direct Effect

355
Q

What are Treaties?

A

These set out the powers of the institutions and the EU’s key objectives

356
Q

What is secondary legislation?

A

These are created by the EU institutions themselves.

357
Q

What are the 2 categories of EU secondary legislation?

A

Regulations

Directives

358
Q

What is an EU Regulation?

A

Automatically binding on member states and are directly applicable which means they become law of the member states without making further enactment to their legal systems.

359
Q

What is an EU Directive?

A

Binding on member states only with the respect to the result that needs to be achieved. This means member states implement the objectives of the directive by making the necessary changes to their own domestic law.

360
Q

What is the supremacy of EU Law?

A

EU through treaties, regulations and directives is supreme across the member states. If a member states law conflicts with EU law then the courts are required to give effect to EU law over domestic law.

361
Q

What are the 2 requirements for a provision of EU Law to have direct effect?

A

It must be clear and precise meaning the provision must not leave the member state with any flexibility in how to apply to implement the law.
It must be unconditional in the sense that the provision must not depend on the discretion or judgement of a public authority.

362
Q

What effect did the European Communities Act 1972 on UK Law?

A

Made EU laws binding under UK Law.

363
Q

Is EU Law still binding on the UK before the transition period?

A

Yes until 31 December 2020.

364
Q

After the end of the transition period what happens to EU law within the UK?

A

The Withdrawal Agreement took a snapshot of all EU Law that was part of the UK legal system at the end of the transition period and converted into a new body of UK law.

365
Q

What are the 9 sections of EU law?

A 
EU Deprived Domestic Legislation 
Direct EU Legislation
Directly Effective EU Law
Supremacy and Retained EU Law
Supremacy and Direct Effect of Withdrawal Agreement 
Interpretation of Retained EU Law
Status of Retained EU Law
Addressing Deficiencies from Withdrawal 
Retained EU Law and Devolution Legislatures
366
Q

What is EU Deprived Domestic Legislation?

A

All secondary legislation implementing EU directives and preserves these laws as UK laws. Also includes any primary legislation that was enacted to implement EU directives.

367
Q

What is Direct EU Legislation?

A

The Withdrawal Agreement converted the EU regulations into UK law as ‘direct EU legislation’.

368
Q

What is directly effective EU Law?

A

The Withdrawal Agreement converted EU Provisions into UK law as ‘directly effective EU Law’.

369
Q

What is supremacy and retained EU law?

A

If there is a conflict between UK law enacted before the end of the transition period and retained law then the EU law will prevail. Legislation enacted after the transition period is not subject to supremacy, which means the UK can now legislate contrary to EU law.

370
Q

What is the supremacy and direct effect of Withdrawal Agreement?

A

UK & EU agreed that the principles of supremacy and direct effect would apply to the Withdrawal Agreement. Any provision of UK Law that is inconsistent or incompatible with the Withdrawal Agreement will be misapplied in favour of the Withdrawal Agreement.

371
Q

What is the interpretation of retained EU law?

A

The courts are not bound by the decisions made by the CJEU after they end of the transition period instead they have regard to the decisions.

372
Q

Can retained EU Law be amended?

A

Yes, the UK can repeal or amend retained EU law.

373
Q

What is addressing deficiencies from Withdrawal?

A

The Withdrawal Agreement gives the government power to adopt secondary legislation to deal with ‘deficiencies’ in retained EU law that arise from withdrawal. EU law can be repealed and amended by the UK Parliament.

374
Q

What is Retained EU law and devolution legislatures?

A

If the devoluted governments legislated contrary to EU law this would be invalid however after the transition period they can amend, repeal and legislate contrary to EU law falling within their legislative competence.

375
Q

Who can make a Declaration of Incompatibility?

A

The Courts

SQE1 !!! (16 decks)

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