Constitutional Law Flashcards
1
Q
What does it mean that the constitution is uncodified?
A
It lacks a single definitive source containing its most important rules.
2
Q
What are the sources of the UK constitution?
A
Acts of Parliament, the common law, conventions, the ECHR via the Human Rights Act 1998.
3
Q
What is the rule of law? (3)
A
- The law should be applied fairly.
- The government should act accordingly to the law.
- Laws should generally not have a retrospective effect.
4
Q
Do the courts have a right to strike down an Act of Parliament?
A
No.
5
Q
What is the Ram doctrine?
A
“Third source powers”
The powers that are entirely incidental to statutory and royal prerogative powers. They give the government powers needed to carry on the ordinary business of government which are not explicitly authorised by statue or Royal prerogative.
6
Q
What are the three main principles of the UK constitution?
A
- Separation of power.
- Rule of law.
- Parliamentary sovereignty.
7
Q
Does an Act of Parliament enacted without the consent of the House of Lords under the Parliament Acts 1911-1949 have the same legal status as an Act passed in the ordinary manner?
A
Yes.
8
Q
When does an international treaty have domestic effect?
A
When it has been incorporated into domestic law through an Act of Parliament.
9
Q
Can the Parliament enact legislation that has effect beyond the boundaries of the UK?
A
Yes.
10
Q
Can the Parliament legislate retrospectively?
A
Yes, although it raises questions under the rule of law.
11
Q
What is the enrolled bill rule?
A
The courts do not question the validity of legislation.
If an Act has been passed by the House of Commons and the House of Lords, and has been granted the Royal Assent, the courts will give effect to that legislation.
The courts do not consider the parliamentary process by which an Act of Parliament has been enacted.
12
Q
What will happen when two Acts of Parliament are in conflict?
A
Courts will give effect to the later Act of Parliament.
13
Q
When a direct conflict between EU law and an Act of Parliament emerged, what happened with the Act of Parliament that conflicted with the EU law?
A
It was ‘disapplied’.
14
Q
What are the core principles of the rule of law?
A
- No one should be punished unless they have breached a specific law, and their punishment should be according to the law.
- No person is above the law.
15
Q
What is the parliamentary privilege? (To whom does it apply?)
A
It applies only to the members of House of Commons and House of Lords.
There is an absolute freedom of speech within the Parliament.
16
Q
What are the fundamental common law rights?
A
- The right of access to the courts.
- Decisions made by the government need to be made fairly and comply with the basic standard of fairness.
17
Q
Who can interfere with the fundamental common law rights?
A
Only the Parliament through an Act of Parliament. It needs to expressly state that these fundamental rights are to be breached.
18
Q
What is the Monarch’s role in the Parliament and the legislative process?
A
- Give King’s speech.
- Give Royal Assent.
19
Q
How many members are in the House of Commons?
A
650
20
Q
Who is excluded and banned from taking a seat in the House of Commons?
A
Excluded:
1. Persons under 18;
2. Citizens from non-Commonwealth countries (except for the Republic of Ireland);
3. Members of the House of Lords.
Banned (the House of Commons Disqualification Act 1975):
1. Members of the judiciary;
2. Civil servants;
3. Members of the Armed forces;
4. Members of a police force;
5. Members of parliaments or legislatures outside of the Commonwealth or Ireland.
21
Q
When a recall petition is triggered?
A
When an MP has been:
1. Convicted of an offence and is sentenced to imprisonment;
2. Suspended by the House of Commons for 10 days for misconduct;
3. Found guilty of providing false or misleading information to their expenses.
22
Q
In what circumstances does a recall petition lead to a by-election?
A
If more than 10% of the electorate in the constituency sign the petition.
23
Q
How many members are in the House of Lords?
A
Around 800.
24
Q
What are the categories of lords in the House of Lords?
A
- Hereditary peers (92);
- Life peers;
- Lords Spiritual (26);
- Law Lords (a Lord of Appeal in Ordinary).
25
How long does a parliamentary session last?
12 months (starts each May).
26
What is the significance of a parliamentary session re legislative process?
A legislative process needs to be finalised within one session (unless either the House of Commons or the House of Lords agrees to 'carry-over' the bill).
27
Who makes a decision re prorogation?
The Monarch, on the advice of the Prime Minister.
28
What are the stages of the legislative process?
1. First reading;
2. Second reading;
3. Committee stage (Public Bill Committee or Committee of the Whole House);
4. Report Stage
5. Third reading;
6. Consideration of amendments;
7. Royal Assent.
29
When a bill is considered by the Commitee of the Whole House?
Uncontroversial or urgent bills or bills of first-class constitutional importance.
30
What is the Salisbury Convention?
If a government bill is implementing a commitment that the party elected into government made in their **manifesto**, then the House of Lords will grant a second reading to the bill as a matter of course and will not otherwise block the legislation.
But, the House of Lords **reserve the right to make amendments** to the bill at later stages in the legislative process.
31
What is the effect of the suspensory veto under the Parliament Acts 1911-1949?
The House of Lord cannot block legislation completely, but it can delay it.
If the House of Lords blocks a piece of legislation already passed by the House of Commons, which is then reintroduced and passed by the House of Commons in the next session of Parliament, only for the House of Lords to block it again, the bill is sent to the Monarch for Royal Assent.
32
What is a sunset close?
A provision stating that some provisions of all of an Act expires on a certain date.
33
What are the two procedures by which secondary legislation is being made?
1. Negative Resolution Procedure;
2. Affirmative Resolution Procedure.
34
What is the Negative Resolution Procedure?
A draft of secondary legislation is laid before the House of Commons and House of Lords.
It will take effect on the date stated on the draft unless within **40 days** of being laid, either House votes in favour of rejecting the secondary legislation.
No **amendments** to the draft can be made.
35
What is the Affirmative Resolution Procedure?
A draft of secondary legislation is laid before the House of Commons and House of Lords, and both Houses must expressly vote in favour of the secondary legislation for it to become effective.
No **amendments** to the draft can be made.
36
Does the Parliamentary Acts 1911-1949 apply to secondary legislation?
No (the House of Lords is free to block the legislation).
37
What are the Henry VIII Powers?
Powers granted to government to amend primary legislation (in practice, **minor** amendments to legislation).
38
Can the court strike down secondary legislation?
Yes (secondary legislation is made by the government and not Parliament).
39
What is the *Sub Judice* Rule?
MPs and peers do not refer to cases which are currently before the courts during debates.
40
Under which conditions can the court use Parliamentary Debates to aid interpretation?
1. Legislation is not clear;
2. There is a statement from the minister that assists the court;
3. The statement is sufficiently clear.
41
Is judical review available against a decision made by a charity?
No, judical review is available only against decisions made by public bodies.
42
Is judical review available when a contract exists between parties?
The matter should be resolved by private law.
43
What are the key stages in the judical review procedure?
1. **Pre-action Protocol**: The claimant should send a letter to the potential defendant identifying the issue in dispute. The defendant should respond within **14 days**.
2. **Permission stage**: The claimant applies to the court for permission to continue the claim for judical review. *Usually* written procedure, but there may be a hearing.
If permission is granted, the matter goes to the second stage: **a full hearing**.
44
What is the time limit for bringing a claim for judical review?
Promptly but not later than **three months** after the issue arose.
For planning decisions: within **six weeks**.
45
Can the court refuse the permission for judical review even if the claim was brought within the three month deadline?
Yes, if the court believes that the claim has not been made promptly.
46
What is the standard for assessing whether a claimant has standing for judical review?
A sufficient interest.
47
At which stage of judical review does the court assess standing?
At the **permission stage.**
If the standing issue is not obvious, then it is being considered at the full hearing.
48
Can a group or an association bring a claim for judical review?
Yes. If the association:
1. Is responsible;
2. Is well resourced;
3. Has expertise and/or
4. There is unlikely to be an alternative claimant.
49
Key issues re when a claim can be brought for judical review (3):
1. Not hypothetical;
2. Not factual disputes;
3. Should be last resort.
50
What are the grounds for judical review?
1. Illegality;
2. Procedural impropriety;
3. Unreasonableness;
4. Breach of legitimate expectations.
51
What are the different grounds for illegality?
1. Error of law;
2. Specific legal duty;
3. Unlawful delegation of power;
4. Irrelevant considerations;
5. *Ultra vires*
52
What does 'ultra vires' mean?
Beyond/outside the powers.
A public authority acts contrary to the Act of Parliament that grants them the power to act.
53
What are the 'ouster clauses'?
Clauses that attempt to oust the jurisdiction of the court.
54
What is the Public Sector Equality Duty?
It requires that public authorities take into account equality considerations when making decisions.
They need to show **due regard** to [equality]. This means [equality] has been considered as part of the decision-making process.
55
What is an unlawful delegation of power?
Power once delegated cannot be delegated again without being approved by the Act of Parliament granting the power in the first place.
56
What are the different grounds for procedural impropriety?
1. Mandatory/ directory requirements;
2. Right to be heard;
3. Rule against bias;
4. Duty to consult (*no general duty*);
5. Duty to give reasons (*no general duty*).
57
What are the mandatory and directory requirements?
**Mandatory requirement:** must be followed; a failure to follow will invalidate the decision.
**Directory requirement:** if not followed, it will not necessarily invalidate a decision.
58
Is there a general right to be heard?
Yes, but the extent of the right varies from situation to situation.
When a right is removed from a person, the person must be given the opportunity to hear the case against them and to respond.
59
What is the 'natural justice' rule against bias?
1. **Actual bias**: present when the decision maker made a decision that is actually motivated by bias. *Usually impossible to prove*.
2. **Automatic disqualification rule**: if the decision maker has a financial interest, they are automatically disqualified. If the decision maker has a non-financial interest which is so closely connected to issues raises by the decision isln question, they are also automatically disqualified.
3. **Apparent bias**
60
What is the test for apparently bias?
Whether a **fair-minded and informed** observer, informed of the facts would conclude that there was a **real possibility of bias**.
61
Is there a general common law duty to consult?
**No.** But there is a duty to consult:
1. When there is a **statutory duty** to consult;
2. When there has been a **promise** to consult;
3. When there has been an **established practice** of conultation;
4. Exceptionally, when a failure to consult would lead to **conspicuous unfairness**.
62
Is there a general common law duty to give reasons?
No. However,
1. When the subject matter or interest is important, fairness requires reasons;
2. If a decision appears to be aberrant, fairness may require giving reasons.
63
Legitimate expectations can be based on ...
1. An explicit promise or assurance;
2. Previous action by the public body.
64
When can the court give effect to a **substantive** legitimate expectation?
If the promise made by the public authority is **particularly important** and has been made only to a **small number of individuals.**
65
What is the test for irrationality / unreasonableness? (What is the standard for human rights and fundamental common law rights?)
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 at it.
For human rights/fundamental common law rights: **proportionality test**.
1. Is the object of the policy **sufficiently important** to justify limiting the fundamental right?
2. Are the measures designed to meet the legislative objective **rationally connected** to it?
3. Is the interference with the right **no more than necessary** to accomplish the objective?
66
What is a quashing order?
It renders the original decision void.
67
What is a mandatory order?
It orders a defendant to act in a particular manner.
68
What is a prohibiting order?
It orders the defendant not to act in a particular manner.
69
What is an injuction?
It is an order preventing a party from acting in a certain manner or requiring that a party acts according to the instructions of the court.
70
What is a declaration?
It declares that the decision or action complained of was unlawful.
71
Types of the ECHR rights:
1. Absolute;
2. Limited;
3. Qualified.
72
What are the absolute rights?
Rights that cannot be limited by the state even in times of war or national emergency. Neither can they be balanced against the needs of public interest or other individuals.
73
What are the limited rights?
The actual scope of the right can be limited only as provided in the article itself.
74
What are the qualified rights?
Rights that can be limited by the state in order to pursue a legitimate interest as outlined in the particular article.
75
Article 10: Freedom of expression - when can it be limited?
1. National security;
2. Territorial integrity;
3. Public safety;
4. The prevention of disorder or crime;
5. The protection of health or morals.
76
Article 11: Freedom of Assembly and Association - when can it be limited?
1. National security;
2. The prevention of disorder or crime;
3. The protection of health or morals;
4. The protection of the rights and freedom of others.
77
What is the proportionality test re qualified rights?
1. The object of the policy and the legitimate aim pursued is **sufficiently important** to justify limiting a fundamental right;
2. The measure is designed to meet the objective and is **rationally connected** to it;
3. The interference with the right is **no more than necessary** to accomplish the objective and
4. The measure is **reasonable** and **balanced** in all circumstances, given the competing needs of the individual and the wider community.
78
What are the other rights protected by the HRA?
1. Right to property (protocol 1, Art.1)
2. Right to education (protocol 1, Art. 2)
3. Right to free elections (protocol 1, Art. 3)
4. Abolition of death penalty (protocol 13, Art. 1).
79
What is 'Judical deference'?
The more politically controversial the issue, then the more likely that the courts -- when applying the proportionality test -- will defer to the government and Parliament.
80
What is the margin of appreciation?
The government is permitted some discretion over the extent to which the right can be restricted.
1. If there is a consensus among the MSs of the ECHR, then the court is likely to apply a narrow margin of appreciation.
2. If each state approaches the issue differently, then the margin of appreciation is likely to be broader
81
What does it mean that the ECHR is a living instrument?
The ECHR can adapt to changing social and economic conditions.
1. Not bound by previous decisions;
2. Consistent approach of contracting states;
3. ECtHR must be accessible to all individuals.
82
What are the limits to derogation from the ECHR?
1. Article 2: Right to life (except in respect to deaths resulting from war)
2. Article 3: Prohibition of torture;
3. Article 4(1): Prohibition of slavery;
4. Article 7: Prohibition of Retrospective Criminal Offences.
83
When can a state derogate from the ECHR?
In the event of war or other public emergency that treatens the life of nation.
84
To what extent can a state derogate from the ECHR?
To the extent strictly required by the exigencies of the situation.
85
What is the mirror principle?
The courts take an approach that reflects the decisions of the ECtHR -- offering no more but no less, that wait the ECtHR requires.
86
What are the fast-track procedures for correcting legislation found to be incompatible with the HRA?
1. Non-urgent procedure (**remedial order**).
2. Urgen procedure.
87
What is the non-urgent procedure?
It 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 the House of Commons and the House of Lords after 60 days after being laid in draft.
88
What is the urgent procedure?
An order can be made immediately and will take immediate effect. But, it then must be laid before Parliament and will cease to have effect if, within **120 days** both houses of Parliament approve it.
89
What is the definition of a public body for the purpose of HRA?
A public authority includes a court or tribunal or any person whose functions are of a public nature.
Excluded: House of Commons and House of Lords.
90
What is the standard for standing for a review under HRA?
The victim test.
A representative standing is not allowed under the HRA.
Victim = 'directly affected"
91
What is the time limit for bringing a claim for judical review under HRA?
One year of when the act complained of took place.
92
Can a free-standing claim under Art. 14 HRA (freedom from discrimination) be brought under the HRA?
No, it must be attached to the breach of another convention right.
93
What margin of appreciation is granted in relation to Art.14 of the ECHR?
Narrow.
94
What is the major difference between the Equality Act 2010 and Art.14 HRA?
Under the Equality Act, a free-standing claim of discrimination can be brought.
95
Who can bring the claim under the Equality Act 2000?
In the employment context, a person classified as a worker.
96
Types of discrimination prohibited by the Equality Act 2010?
1. Direct discrimination;
2. Indirect discrimination;
3. Harassment;
4. Victimisation.
97
Who is covered by the concept of the Crown?
1. Monarch;
2. Prime Minister;
3. Ministers;
4. Government departments;
5. Civil servants.
98
The Monarch is the Head of ...
1. State;
2. Armed Forces;
3. Church of England (and Defender of the faith).
99
Can a new prerogative power be created?
No.
100
What will prevail if a statue overlaps with the existing prerogative powers?
The statue.
101
Can the prerogative be used to change the law or cha ge the source of UK law?
No.
102
Do statutes apply to the Crown?
To apply to the Crown, the statue needs to express this clearly, or it must be obvious by necessary implication.
103
Examples of ministerial prerogative
1. The power to acquire and cede territory;
2. The negotiation and, *subject to the Constitutional Reform of Governance Act 2010*, the ratification of international treaties;
3. Conducting diplomacy in general, including recognising states, the relations of government with the governments of other states; the appointments of ambassadors and High Commissioners;
4. The deployment and use of the Armed forces overseas and declaration of war;
5. The use of armed forces within the UK to maintain the peace in support of the police;
6. The PM's power to appointment and remove ministers from their government;
7. The grant and renovation of passports;
8. The grant of pardons and the power to stop criminal prosecutions.
104
Examples of personal prerogative powers (personally exercised by the Monarch)
1. The appointment of the PM;
2. The power to dismiss the government;
3. The power to prorogue Parliament;
4. Granting the Royal Assent to legislation.
105
Examples of miscellaneous prerogative powers.
1. The right to mine precious metals;
2. The right to supervise and construct harbours;
3. The right to mine coinages;
4. The right of the Crown to claim the ownership of any sturgeon, dolphins, whales, and swans on certain stretches of the Rover Thames.
106
Examples of legislative prerogative powers.
1. Passing Orders in Council (a form of legislation enacted by the Privy Council).
2. Granting the Royal Assent.
107
Examples of prerogative judicial powers.
Most exercised by ministers (e.g. granting pardon or stopping prosecution).
Judical Committee of the Privy Council, which hears appeals from some Commonwealth jurisdictions. (The committee's decision is advice to the Monarch as to how to dispose of the appeal; the decision is formally approved at a Privy Council meeting)
108
What is the procedure for ratification of international treaties?
The ratification remains a prerogative power but is **subject to control** by Parliament under the Constitutional Reform and Governamce Act.
1. Lay draft before the Parliament for 21 days.
2. If neither the House of Commons nor House of Lords has voted to state that the treaty is ratified, the government can ratify the treaty.
3. If either House of Parliament has voted against ratifying the treaty, the government can explain why they still want to ratify the treaty.
4. The House of Commons then has a further 21 days to vote stating that the treaty should not be ratified. (There is **no** role for the House of Lords at this stage).
5. If no such vote is held, the government can ratify the treaty.
109
Can the government bypass the need to lay the treaty before Parliament?
Yes, in an **exceptional case** (not defined in law).
110
What is the Cardinal Convention?
The Monarch always acts on the advice of its ministers, in particular the PM, even if the Monarch disagrees with that advice.
The Monarch formally approves decisions made by ministers. In return, the Monarch has the right to be **consulted**, the right to **encourage**, and the right to **warn** the government.
111
What is a "Hung Parliament"? How does it affect the nomination of the PM?
Hung Parliament = when the election does not result in an overall majority.
The PM remains in the office until it is clear they have lost the confidence of the House of Commons.
The Monarch does not get involved.
It is up to the political parties to determine who should form the next government.
Once it is clear that the agreement has been reached between the parties, then, if necessary, the existing PM will resign, and the Monarch will appoint the person who will have the confidence of the House of Commons.
112
What is the legal title of the Prime Minister?
The First Lord of Treasury
113
Responsibilities of civil servants
1. Advise ministers on matters of policy;
2. Implement government policy.
114
The powers of the Prime Minister.
1. Organisation of the government and civil service (e.g., abolish, merge, create new government departments; appoint senior civil servants).
2. Constitutional role (meeting with the Monarch; relationship with the devolved governments).
3. National security and intelligence matters (appoint heads of MI5, MI6 and GCHQ; maintain oversight of counterterrorism policy).
4. Armed forces (the ultimate responsibility to deploy the armed forces: abroad or within the UK).
5. International relations.
115
Must the ministers have a seat in the Parliament?
Yes: either in the House of Commons or in the House of Lords.
*If they don't have a seat when appointed; they are granted a life peerage shortly after becoming a minister.*
116
The composition of the Cabinet (8).
1. The PM;
2. Chancellor of the Exchequer;
3. The Chief Secretary to the Treasury;
4. Other Secretary of State;
5. The Lord Chancellor and Secretary of State for Justice;
6. The Leader of the House of Commons;
7. The Leader of the House of Lords;
8. The Chief Whip.
117
Matters to be expected to go to Cabinet
1. Decisions to take military actions;
2. Determining the government's legislative agenda;
3. Issues of a constitutional nature;
4. The most significant domestic policy matters;
5. The most significant European and international affairs;
6. National emergencies, including terrorism.
118
Do decisions made in a Cabinet committee have the same authority as a Cabinet decision?
Yes.
119
Levels of junior ministers
A Minister of State ranks above a Parliamentary Under Secretary of State.
120
The sources of legal authority for government departments?
Royal prerogative or statues.
121
What is the *Carltona* Doctrine?
When Parliament grants a power to the Secretary of State in an Act of Parliament, in practice, the power could be exercised by a civil servant within the Secretary of State's department.
122
Tasks of civil servants
1. Making decisions according to the law and government policy;
2. Assisting ministers in developing policy;
3. Implementing policy.
123
How are the Orders in Council passed (under what powers)?
1. Under Royal prerogative (can be considered a form of primary legislation). *e.g. approval of the text of a Royal Charter which creates a new public institution, university, or learned society).
2. Under powers granted by statue (secondary legislation).
124
How are appointments to Privy Council made?
For life made by the Monarch on the advice of the Prime Minister.
By convention, all Cabinet members are appointed.
125
How are the meetings of the Privy
Council conducted?
Meetings are held in secret and require the attendance of the Monarch.
The Monarch is usually joined by three Privy Cpuncil members who are all government ministers.
126
What is the main function of the Privy Council?
The judicial committee of the Privy Council hears appeals on points of law from Commonwealth nations or British Overseas Territories that lack a final appeal court of their own (due to their small size).
127
What's the collective responsibility?
Government must maintain support for the government policy in public and before Parliament.
Two key elements: confidentiality and unanimity.
128
Can the collective responsibility be set aside?
Yes, by the Prime Minister.
129
What is the **individual** responsibility of ministers?
They must take responsibility and account for the operation and conduct of their government departments.
130
When a minister must give account and when take responsibility?
Policy failures = take responsibility
Operational failures = give account
131
What's the Prime Minister Question Time?
The PM answers questions about the overall conduct of the government from MPs.
The Leader of the Opposition has six questions.
It takes place once a week.
132
What are the Ministerial Questions?
It happens every day; each department is on a rota, so they are usually questioned once every 5 weeks.
133
What restrictions apply to the questions being asked during Ministerial Questions?
Questions **must** relate to the activities of that department.
No questions can be asked that relates to:
1. The Monarch;
2. The affairs of other countries;
3. Local authorities;
4. Matters devolved to NI, Scotland, or Wales;
5. A case being heard by a court of law at the time.
134
When a written question can be asked to a government department?
Anytime.
The relevant government department will provide an answer within 7 days
135
How many days are allocated to the so called Opposition Business?
20 days.
136
How urgent questions are handled?
The MP can apply to the Speaker to ask a question that day.
If the Speaker agrees that there is a pressing matter of public interest and there is no other way for the issue to be debated, the Speaker will grant the application.
A minister is required to respond. Other MPs can then take part in the debate that follows.
137
What is the Liasion Committee?
It's formed by the chairs of the Select Committees.
Twice a year, the committee questions the Prime Minister in an extended session.
138
What is needed to reverse the devolution of Scotland and Wales?
The vote of Parliament and a referendum from the Scottish/ Welsh people.
139
What is needed to reverse the devolution of NI?
A referendum.
140
What's the Sewel convention?
If the UK Parliament is going to legislate on a matter devolved to Scotland/ Wales/ Northern Ireland, the consent of the affected institutions in **normally** required via *legislative consent motion*.
However, if one of the devolved institutions refuses consent, legally, the UK Parliament can still pass the legislation.
141
Can courts strike down legislation passed by devolved institutions?
Yes, if they exceed their law-making powers.
142
When can the courts of Scotland, Wales and Northern Ireland refer the matter to the Supreme Court?
If the devolved institution:
1. Acts outside their legislative competence (legislating on non delegated matters);
2. Legislates contrary to the ECHR.
143
Who can refer a bill to the Supreme Court to determine whether it is within the law-making power of devolved institutions? (**Northern Ireland**)
1. Advocate General for NI.
2. Attorney General for NI.
144
Who can refer a bill to the Supreme Court to determine whether it is within the law-making power of devolved institutions? (**Scotland**)
1. Lord Advocate.
2. Advocate General for Scotland.
3. Attorney General.
145
Who can refer a bill to the Supreme Court to determine whether it is within the law-making power of devolved institutions? (**Wales**)
1. Counsel General.
2. Attorney General.
146
When does a breach of the Queen's Peace occur?
1. When a person is genuinely in fear of harm to themselves or to their property in their presence as a result of an assault, affray, riot, or other disturbance;
2. When harm has actually been done to a person or property in their presence; or
3. When harm is likely to be done to a person or to a property in their presence.
Verbal insults are insufficient for a breach of the peace.
147
What kind of steps can a police officer take to terminate a breach of peace?
Reasonable. Including arresting a person or forcing entry to private premises.
148
Is the breach of peace a criminak offence?
No. But a person breaching the peace could be made subject to a **binding over** order (requires the person to maintain the peace and keep good behaviour for a specified period of time).
149
When a notice for a public procession is required?
When it is intended to:
1. Demonstrate silupport for, or opposition to, the views or actions of any person or persons;
2. Publicise a cause or campaign; or
3. Mark or commemorate an event.
150
Notice requirements for public procession.
1. Be given at least **six clear days** before the proposed date of procession -- or if that's not possible -- as soon as it is reasonably practicable.
2. Be delivered to a police station located in the area in which the procession will take place;
3. Specify the date, time, route and the name and address of the person/persons organising the procession.
151
What are the consequences of a failure to notify re public procession?
An offender can be subject to a fine.
152
Are there any exceptions to an obligation to notify re public procession?
Yes.
1. Processions commonly or customarily held.
2. Funeral marches.
153
Can the police impose conditions on marches or processions?
Yes, if they reasonably believe that:
1. The procession will result in serious public disorder, serious damage to property, or serious disruption to the life of the community; or
2. The purpose of the procession is to intimidate others with a view to compelling them not do an act they have a right to do, or to an act that they have a right not to do.
154
Can the police ban public procession?
The chief constable can apply to ban all or a specified class of processions for up to **a maximum of three months** if they believe that no conditions can be imposed on the procession to prevent serious disorder.
(In the city of London and Greater London, the application should be made to the Home Secretary; otherwise to the local council)
155
What is a public assembly?
An assembly of two or more persons in a public space which is wholly or partially in the open air.
156
Can a senior police officer give directions to the person organising or taking part in the assembly?
Yes. (The dame conditions as for processions apply: serious public disorder, serious damage to property, serious disruption to the life of the community; intimidation).
The condition must be **proportionate**.
157
What is a trespassory assembly?
1. Involving more than 20 persons.
2. On land which the public has **no**, or **only limited** right of, access.
3. Which are likely to be held (1) without the permission of the occupier of the land or (2) exceed any permission granted or any right of public access.
4. May result in either serious disruption to the life of the community or cause significant damage to land, buildings, or monuments of historical, architectural, or scientific importance.
158
Can the police ban trespassory assemblies?
Yes.
159
Can the police stop attendance at trespassory assemblies?
The police have the power to stop anyone they **reasonably** believe to be on their way to a trespassory assembly which has been banned and direct them not to attend.
A failure to comply with the order is an offence.
160
When does a provision of EU law have a direct effect in the member states?
1. It must be **clear and precise** (the provision must not leave the Member State with any flexibility in how to apply or implement the law);
2. It must be **unconditional** (the provision must not depend on the discretion or judgement of a public authority).
161
What act did repeal the European Communities Act 1972?
The European Union (Withdrawal) Act 2018.
162
What's "EU-derived domestic legislation"
1. All secondary legislation implementing EU directives.
2. Any primary legislation that was enacted to implement EU directives.
163
What's "direct EU legislation"?
EU regulations converted into UK law (pursuant to the 2018 Act).
164
What's "directly effective EU law"
Certain Treaty Provisions that had direct effect and could be directly relied upon in UK courts.
165
Supremacy and Direct Effect of the Withdrawal Agreement
Any provision of the UK law that is inconsistent or incompatible with the Withdrawal Agreement will be disapplied in favour of the Withdrawal Agreement.
Any provision of the Withdrawal Agreement will have a direct effect if it meets the requirements of EU law (clear, precise, and unconditional).
166
What's the retained case law?
Cases decided before the end of the transition period relating to retained EU law.
167
What are the two categories of the retained case law?
1. Retained EU case law (decided by the CJEU)
2. Retained Domestic case law (decided by the UK courts).
168
Is the retained EU case law binding?
Yes, on all domestic courts **except for** the Supreme Court and the Court of Appeal.
