Constitutional + legal system

Question 1

Address judges

Answer 1

S, A , H: my lord/lady
District judge: Judge
Circuit + crown court (crown court judge can be circuit judge) : Your honour
Magistrate: your worship

Question 2

Henry 8th powers

Answer 2

Ministers can amend acts

Question 3

Grounds for judicial review

Answer 3

Illegality
irratonality (unreasonableness)
Procedural impropriety
Legitimate expectation

Question 4

HR absolute rights

Answer 4

Never be interfered with and must be upheld at all times.
Absolute rights includes:
art. 2 right to life,
art. 3 freedom from torture, inhumane and degrading treatment,
art. 4 freedom of slavery,
art. 7 punishment according to existing law

Question 5

Implied repeal

Answer 5

parliament makes a new act that contradics an old one

Question 6

CAn proceedings be launched in Welsh

Answer 6

yes, court pays for interpreter

Question 7

What are consitutional conventions

Answer 7

non-legal source of constitution, not enforceable by law. to limit the monarchs power

Question 8

Public processions

Answer 8

Public procession: procession in a public place. Public place: highway, or any other way the public may lawfully access on payment or otherwise.

A: demonstrate support or opposition the view or actions of persons or bodies of people
B: publicize a cause or campaign
C: mark or commemorate an event

Includes football pitches.
Exceptions: funerals, customary processions e.g. Diwali
Offences under Public Order Act s. 11

At least six clear days prior notice to the police of the date, time and route

conditions on or ban of public processions if a senior police officer believes that the march will result in serious public disorder,
damage to property or disruption to the life of the community,
or the purpose is to intimidate others from doing something they have a right to do,
or to do something they do not have a right to do.

Possible crimes: not give notice, attend, organise

Public processions can be blanket banned for up to 3 months by Chief constable in the local police, by applying to the local authority for a banning order, which also must be accepted by the Home Secretary.

Question 9

Public assembleys

Answer 9

No requirement to obtain permission to hold a meeting in a public space but could be trespassing on private land. The police have the power to grant “trespassory assemblies”.

A senior policeman can impose conditions on a public assembly if they reasonably believe that may result in serious public disorder, damage to property or disruption to the life of the community, or the purpose is to intimidate others.
Conditions must be proportionate.

A public assembly is 2+ people in a public space wholly or partially open to air. The purpose is irrelevant.

Possible offences: organize, attend

Question 10

Trespassory assemblies

Answer 10

Trespassory assemblies
Banned in 1994 under the Criminal Justice and Public Order Act.
Encompasses assemblies of 20+ people in open air entirely where the public has no or limited right to access.
Can be banned if a Chief officer of the police believes that it is intended to be held without permission of the occupier and may result in serious disruption of community.
Offences: organizing (3 months prison, fine or both), parking part or incitement to organize or take part (fine)
Banned in 1994 under the Criminal Justice and Public Order Act.
Encompasses assemblies of 20+ people in open air entirely where the public has no or limited right to access.
Can be banned if a Chief officer of the police believes that it is intended to be held without permission of the occupier and may result in serious disruption of community.
Offences: organizing (3 months prison, fine or both), parking part or incitement to organize or take part (fine)

Question 11

Breach of the peace

Answer 11

Common law powers to the police.

R v Howell: breach of peace is when harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.

Not a criminal offence, but triggers police powers. Solved by civil proceedings, but the criminal threshold to standard of proof has to be met: “beyond reasonable doubt”.

Conditions for arrest due to breach of peace:
1. breach of peace committed in the presence of the person making the arrest OR
2. arrestor “reasonably believes” that a breach will be committed in the “imminent future”, OR
3. a breach is committed and it is reasonably believed that a renewal of it is threatened.

Duncan v Jones: police can use common law powers to prevent a public meeting based on e.g. previous meetings. Police can prevent demonstrators from joining demonstrations if breach of the peace is imminent. Crown control does not necessarily breach ECHR art. 5 if they are employed in good faith and proportionate.

Breach of the peace covers both public and private property

Question 12

Judicial review - deadlines in the pre-action protocol + CPR p. 54

Answer 12

Follow pre-action protocol for judicial review:

Send a letter to the decision maker before claiming to give the decision maker 14 days to reconsider the decision and avoid unnecessary legal proceedings. Following protocol is relevant for costs.

CLaim must be filed promptly and maximum 3 months after the ground to make the claim first arose (can be dismissed if there was no reason to wait until the end of the 3 months).

For cases within the “planning act” the deadline is 6 weeks from the date of the decision
Public procurement cases are 30 days.

Stage 1: permission (CPR p. 54)
Court considers whether the claimant has standing and the claim was begun in sufficient time. Standing is not granted if the court finds that it is not likely that the result would be substantially different if the decision maker followed proper conduct. Last requirement may be disregarded for public interest.

Claimant issues claim form in the Administrative court, claim form is served to defendant, court decides whether to grant permission and if permission is granted the defendant will file evidence. Then stage 2 follows, with the hearing.

Stage 2: hearing of the claim for judicial review
Administrative court in the high court, usually confined to arguments of points of law.

Question 13

Ouster clause

Answer 13

a clause in the enabling Act of Parliament which grants public bodies power to make decisions in the first place.an ouster clause in an act excludes any challenging of a decision made by a public body. Full ouster clause: no right to challenge at all, but solely protect valid decisions and not e.g. situations where a public body has stepped outside of their powers. Partial ouster clauses leave some opportunities for review.

Question 14

WHen can a party launche case for ECtHR

Answer 14

State application: brough by a signatory state against another
Individual petition to the ECtHR: individuals who claim their rights are breached by domestic law can start proceedings. DOmestic remedies must be exhausted and it must be petitioned within 4 months of the final dometic decision. Applicants must (personally + directly) be victims and suffer a significant disadvantage.

Domestic remedies are exhausted if the case has been dismissed! by the supreme court.

Process - two stages:
Admissibility stage: a single judge may declare application inadmissible with no appeal rights.
Merits stage:If there is well-established case law, the case is decided by a 3 member committee for a final decision. It can also be heard by a chamber of judges based on majority.

Question 15

Retained direct minor EU legislation

Answer 15

Retained direct minor EU legislation (what does not fall under principal) can be amended or repealed by primary legislation or in limited circumstances by secondary legislation (Henry VIII power and where ministers are using powers under EUWA 2018 to correct deficiencies)

Question 16

retained direct principal EU legislation

Answer 16

(most EU Regulations) Retained EU law primary legislation can only be challenged by the fact that it contravenes with other retained EU law. Retained EU law secondary legislation can only be challenged on the same basis. After IP completion day, retained EU law cannot be challenged by the fact that an EU instrument was invalid, except if CJEU found an instrument to be invalid prior to IP completion day.

Question 17

Can the supreme court depart from retainde EU case law?

Answer 17

yes, same test as when they depart from their own caselaw

Question 18

Rules of interpretation (judges may use for words)

Answer 18

the literal rule: words are given their plain, ordinary and literal meaning. Usually the starting point, to ensure that the parliament remains sovereign (court is only supposed to interpret the law)

the golden rule: Words should be given its ordinary meaning unless this gives an absurd or totally obnoxious result. Applicable where words both have one or several meanings.

the mischief rule: the interpreter ascertains the legislators intention. What defect in existing law was the statute supposed to remedy?

the purposive approach: Why the statute was passed and its purpose, even if it means departing from the ordinary meaning of the words.

Question 19

Which courts can bind other courts and when can they depart from their own rulings?

Answer 19

SUpreme court: not bound by its own previous decisions, but departing is unusual. Binds courts below.

Court of appeal: Binds courts below and is bound by the supreme court.
Can depart from its own decisions if:
- conflict with it
- it has been overrules by the Supreme Court
- it was made by carelessness

High court and other courts: bound by its own decisions unless:
- conflict with it
- it has been overrules by the Supreme Court
- it was made by carelessness
County court, magistrates family court and tribunals does not bind anyone.

Question 20

What are The Parliament Acts of 1911 and 1949

Answer 20

The Parliament Acts of 1911 and 1949 limit the power of the House of Lords in relation to the House of Commons. They replaced the Lords’ right to veto Commons Bills with a right only to delay them and put into law the Commons’ exclusive powers to pass Bills on public tax and spending.

Hence a bill can go straight from HoC to Royal assent.

Question 21

What are the 3 types of Human Rights and

Answer 21

Absolute rights
Never be interfered with and must be upheld at all times.
Absolute rights includes:
art. 2 right to life,
art. 3 freedom from torture, inhumane and degrading treatment,
art. 4 freedom of slavery,
art. 7 punishment according to existing law

Limited/derogable rights
Can only be limited in defined and finite situations, such as public emergencies
Limited rights includes:
art. 5 liberty and security (exceptions in relation to lawful arrest and detention),
art. 6 fair trial (exceptions in relation to trial being public)
art. 12 right to marry (but according to the governing national law)
Qualified rights
Require a balance between the rights of the individual and the wider public interest.

Qualified rights include:
art. 8 respect for private and family life,
art. 9 freedom of thought (qualified in relation to teaching, worship, practice and observation),
art. 10 freedom of expression,
art. 11 freedom of assembly and association,
Art. 14 freedom of discrimination
art 1 og protocol 1 enjoyment of possessions.

Question 22

What prevails of statute and prerogative powers of the government?

Answer 22

Statute prevails over prerogative powers

Question 23

What is bias as part of judicial review?

Answer 23

Part of the ground of Procedural impropriety

Procedural fairness - the rules of natural fairness are common law rules. Controversial as they were created by the judiciary themselves. Two rules of natural justice: the rule against bias and the right to a fair hearing.

Bias depends on whether the interest the decision maker has in the outcome is direct or indirect. Direct interests include financial gain, property interest. Indirect interests could be where a relative of the decision maker would have the benefit. The link between the decision and the benefit would have to be assessed.

A right to a fair hearing is flexible and depends on the content of each case.

Question 24

What is irrationality as part of judicial review?

Answer 24

Substantive ground for review, as it focuses on the substance of the disputed decision. The court looks at the decision reached, rather than the procedure for reaching it.

Require proof of a very high degree of unreasonableness.

The Wednesbury principle: having regard to relevant considerations only, the decision-maker came to a conclusion so outrageous in its defiance of logic or accepted moral standards that no reasonable authority could have come to it.

Proportionality: an alternative test. likely a part of irrationality and judicial review. Has previously been considered as part of the Wednesbury principle, but now seems to have a wider function. Require that power is exercised in a proportionate manner compared with the object being pursued.

Question 25

What is illegality as part of judicial review?

Answer 25

Substantive ground for review, as it focuses on the substance of the disputed decision. An action beyond the powers of the public body either because the powers do not exist or they are abused or exceeded. Examples: unlawful sub-delegation, error of law or fact, powers used for the purpose are different than the ones envisaged by the law under which they were granted, ignoring relevant considerations or taking into account irrelevant considerations General rule that decision making powers cannot be delegated from Parliament. Exceptions: - Carltona: a government minister can delegate decision making powers to civil cervantes in their departments - Fettering discretion: if a parliament provides a public body with discretionary powers, the court will generally not accept that this is delegated to others or extended. Includes that a public authority cannot act under the dictation of another person or body. Public authorities can make and apply guidelines to ensure equal decisions without it being fettering. Cannot use powers for an improper or unauthorized purpose, but if there’s a dual purpose and one is legitimate, the primary purpose must be assessed. A public authority cannot take into account improper considerations and fail to take into account relevant considerations. Errors of law that affects the decision will be amended, but the courts are more cautious to amend errors of fact.

Question 26

What is legitimate expectation as part of judicial review?

Answer 26

Legitimate expectation: express promise or existence of a working practice. Two types: Procedural legitimate expectation: decision maker fails to follow a normal procedure. E.g. promise to offer taxi licenses to a company first and then break the promise. A public body should apply even an unpublished policy unless it has good reasons not to do so. Substantive legitimate expectation: decision maker has led someone to believe that they will receive a benefit. E.g. reassurance that a patient was able to stay at a certain rehabilitation facility for as long as necessary, but later moving the patient due to cost was a breach of a legitimate expectation.

Question 27

When can judicial review be initiated and when is it the right procedure?

Answer 27

Must have been made by a public body. Decisions from private bodies must be challenged under private law. Test to ensure decision is made by a public body: 1. source of power (the body is set up under a statute or delegated power or derives power under a renewable derogatory power) OR 2. nature of the power (the body is exercising public law functions). Is judicial review the right procedure? Should be raised in public law matter e.g. not pure tort or contract matters, rather than the ordinary private law procedure. If a case is a mix of public and private law, public law elements may be raised in private law proceedings. Beer: local authority established a farmers market that was later handed over to a private company. A claimants which renewal application was refused successfully argued that the decision was subject to judicial review, as the private company has “stepped into the shoes” of the public authority. This includes criminal law e.g. Boddington where a smoker on a train was allowed to argue as a define that the bylaw banning smoking was illegal (public law defence).

Question 28

What is the procedure for pardon?

Answer 28

Request to the lord chancellor who decides whether to forward to the King. If the lord chancellor decides not to forward the request, it cannot be tried in court, as exercise of the prerogative of mercy is non-justiciable. the decisions are left to the exeutive or parliamen,t and not to the courts. non justiciary: - grant of honours by the King - grant of mercy - public policy directions taken by the Government, such as funding of local governments.

Question 29

The monarchs powers

Answer 29

Appoint life peers to the HoL on advice from PM Consult ministers Constitutional and representational duties incl. appointing the prime minister Head of the armed forces Open, summon and prorogue parliament

Question 30

Can the Scotland Acts be repealed and if so, how?

Answer 30

Yes, they are acts of parliament and c.f. principle of parliamentary soveregnty they can be repealed by parliament.

Question 31

Can CJEU decisions from before IP completion day be overruled by UK courts?

Answer 31

Yes, but only by the Supreme Court and court of appeal. the test is the same as to when they depart from their own caselaw. THe high court is bound by retained EU case law.

Question 32

How is a senior judge removed from their position?

Answer 32

Resolutions on both HoL and HoC. Not subject to terms and hold office until retirement.

Question 33

Supreme court justice - qualifications:

Answer 33

Held high judicial office for 2+ years (incl. high court) Been a qualified practicioner for 15 years.

Question 34

Are ECtHR decisions binding on UK courts? Cost distribution?

Answer 34

Not binding nor enforceable on national courts, but binding on national governments. Therefore if ECtHR grants damages to a claimant, the state is likely to pay these, as governments are bound as signatories. State likely to carry costs if lost. Alleged victim does not carry a states costs if they lose the claim.

Question 35

Can a solicitor act for a client in a case where you or someone in the firm is likely to be called as a witness?

Answer 35

no. in breach with SRA principle re independence

Question 36

Which courts can make declarations on incompatability with human rights?

Answer 36

The High court, court of appeal and supreme court. a DOI is only advisory, as courts cannot strike down primary statute.

Question 37

What kind of state is the UK?

Answer 37

A sovereign unitary state

Question 38

UK jurisdictions

Answer 38

England & Wales, Scotland, Northern Ireland

Question 39

What is devolution?

Answer 39

desentralisation of power through establishment of scottish parliament and assemblies in wales + northern ireland.

Question 40

West lothian question

Answer 40

MPs representing constituencies in Scotand, wales and Norther Ireland can vote on laws that solely affect England, whilst English MPs are being banned from doing the same.

Question 41

statutory instruments

Answer 41

form of legislation that allows for amendments to acts of parliaent without the parliament passing another act. also referred to as secondary, delegated or subordinate legislation. If parliament delegates powers to other authorities, these rules are statutory instruments.

Question 42

Ponsenby rule

Answer 42

draft treaties should be laid before parliament for 21 days. if neither house resolves the treaty in the 21 days, the government proceeds to ratify it.rk

Question 43

Work of authority

Answer 43

Sometimes used for interpretation of a convention.

Question 44

Customs

Answer 44

Have obtained the force of law in a specific locality. must be reasonable, immemorial and have continued without interruption.

Question 45

Court of last resort for criminal cases in Scotland

Answer 45

The High Court. Cases where there are "compatibility issues" with human rights can be appealed to the Supreme Court in Scotland.

Question 46

District judges have jurisdiction to hear cases up t what sum?

Answer 46

25 000 GBP. generally hear small track claims (under 10 000)

Question 47

Costs in small claims track

Answer 47

court fees: standard admin fee. unsuccessfull party usually pay the successsfull party's fee. Reasonable expenses e.g. travel costs: limited, and unsuccessfull party usually refund the successsfull party's costs Standard legal costs: capped in small claims track. unsuccessfull party usually pay the successsfull party's costs

Question 48

Fast track allocation conditions

Answer 48

not suitable for swift small claim track. - over 10 000 financial value - hearing is no longer than 1 day, - require expert evidence in no more than 2 expert areas, - parties have one expert each, per area

Question 49

Multi track allocation conditions

Answer 49

Usually over 25 000, but also cases for less can be allocated here - complex issues - several witnesess - over 1 day hearing - raises questions of real public importance Heard by circuit judge in county court or high court judge. cases suitable for the high court includes professional negligence, fata acidents, fraud or undue influence, defamation, malicious prosecution, claims against the police, probate claims.

Question 50

Right to trial by jury in which civil cases?

Answer 50

a charge of fraud, malicious prosecution and false imprisonment. includes county court and the high court. 12 jurers.

Question 51

Appel by way of case stated and application for judicial review

Answer 51

Appeal by way of ase stated: can be made to the high court (administrative in King's bench) in a civil case. appeal over wrong in law or exceeded their jurisdiction. heard by 3 High court judges. Application for judicial review can be made to the high court (administrative in King's bench). challenges they way the decision was reach and not the correctness of the decision itself. possible orders: Quashing order: overturns decision Mandatory order: orders a court to try a case Prohibitory order: stops a court from hearing a case

Question 52

HM Court and trobunal service - function

Answer 52

HMCTS operates as a partnesrhip between the Lord Chancellor, the Lord Chief justice and the senior president of the Tribunals.

Question 53

Sub judice

Answer 53

Judicial independence: Parliament does not comment on cases which are before the court,

Question 54

Can the Supreme Court overturn acts of parliament

Answer 54

No, due to parliamentary sovereginty. SC can: - make declarations of incompatability re HR - overturn secondary legislation where it is found ultra vires (beyond the powers), interpret and apply the law in line with statutory interpretation.

Question 55

How is a new justice of the supreme court elected?

Answer 55

recommendation from prime minister + appointed by the king. at least 12 justices. The Lord Chancellor first sets down a commitee when there is a free spot. A report is made and handed to the lord chancellor who speaks to the candidates prior to an election. Lord Chancellor can reject candidates, ask commitee to reconsider and notify prime minister about names.

Question 56

How can a justice of the supreme court resign?

Answer 56

give notice to the lord chancellor in writing. retire at 70 (lord/ladies 75)

Question 57

Who are the Lord chancellor, lord chef justice and senior president of tribunal?

Answer 57

Lord Chief justice: head of justiciary + most senior judge in criminal division in the court of appeal. 400 statutory duties including representing the views of the judiciary in parliament, training and deployment + allocation of work. President of the courts + head of criminal jsutice Apppointed by a special commitee. Lord chancellor: apointed by sovereign after advice from PM, member of privy councel and responsible for the effective functioning and independence of the courts. does not have to be a lawyer. senior president of tribunal: appointed by the king upon recommendation by the lord chancellor and is the head of tribunals

Question 58

Who are the 5 heads of divisions?

Answer 58

Lord chief justice: Appel court head of cirminal div master of rolls: appel court head of civil div president of the King's bench, president of the family division, chancellor of the high court: heads of the 3 departments in the high court.

Question 59

Court of appeal judges - appointments + removal

Answer 59

senior judges with lengthy judicial experience. appointed by the king on recommendation by a panel Both HoL and HoC can petiiton the King to remove a court of appeal judge for misconduct. the lord chancellor will recommend the King to exercise his power or not.

Question 60

High court judges - - appointments + removal

Answer 60

Appointed by the King on recommendation by the lord Chancellor after a fair and open competition. Both HoL and HoC can petition the King to remove a high court judge for misconduct. the lord chancellor will recommend the King to exercise his power or not.

Question 61

Who is a recorder?

Answer 61

part-time circuit judge. similar, but usually less complex tasks. appopinted by the king after recommendation from the lord chancellor and a fair and open competition. appointed for 5 years and usually extended.

Question 62

District judges - appointment + removal

Answer 62

District judges - two types: in magistrate court and in county court. full time judges appointed by the king after recommendation from the lord chancellor and a fair and open competition. may be removed by the Lord Chancellor with the consent of the Lord Chief Justice.

Question 63

Magistrates - appointment and tasks

Answer 63

Appointed by lord chancellor after recommendation by local advisory commitee. no legal training required, but must attend a compulsory program every year. criminal matters (summary only and some either-way offences) + civil matters, including family.

Question 64

Privy council functions

Answer 64

members are senior politicions members of HoL or HoC. advises the King on the exercise of the royal prerogative and issues executive ordrs known as Orders-in-council and Orders Of Council. The Judicial committee, consisting of the same judges as the Supreme Court is the highest appeal court for certain Commonwealth countries. Decisions are not binding on English courts, but are persuasive. May depart from Supreme Court decisions when applying English law to the same extent the SUpreme Court can depart from its own decisions.

Question 65

What is the Attorney Generals role?

Answer 65

A political appointee, the governments chief legal advisor, superintendent of the prosecution, a government minister.

Question 66

Who must be sworn in?

Answer 66

Members of HoL, HoC, Welsh and Scottish parliament.

Question 68

What is parliamentary privilege and when is Parliamentary privilege available?

Answer 68

Parliamentary privilege: freedom of speech + exclusive cognisance Freedom of speech: a speaker in parliament is completely immune from liability, even if he expresses words that he knows to be false or that causes damage to a potential claimant. not absolute for all events occurring in parliament: an MP was prosecuted for making false claims for expenses. Freedom of speech covers everyone giving evidence in parliament proceedings, not just MPs. Exclusive cognisance: each house regulates their own proceedings and internal affairs

Question 69

What is the UKs constitution and how can it be amended

Answer 69

A mix of common law, unwritten conventions, including constitutional convention (informal and uncodified procedural agreement followed by institutions in a state e.g. the roayl assent to all law) and royal prerogatives and statute. non-entrenched dvs. the UK constitution can be amended by normal statute (as opposed to other jurisdictions with written constitution)

Question 70

law of confidence

Answer 70

protect from the authorised disclosure infromation which is communicated in confidence, if the protection is in the public interest. from a judgement whre a cabinet minister published journals. the diearies could not be stopped under the doctrine.

Question 71

The kings roles + royal prerogatice

Answer 71

Head of state and head of nation incl: - role in parlament, such as summoning and prorouge - appointing prime minister and judges - head of armed forces - appoints and dismisses ministers on advice from PM Roayl prerogative Powers held by the king. many of them are now exerised by government ministers, either approved by the king or by their own right.

Question 72

How is prime minister appointed?

Answer 72

by the king

Question 73

Parliament role

Answer 73

Supreme legislative body in the UK + british overseas territories. Each house is presided over by a Speaker, elected by the HoC each year. Speaker must be politically impartial - does not vote except for if there is a tie.

Question 74

Motion of no confidence

Answer 74

HoC holds the government accountable.

Question 75

HoL members

Answer 75

Lord temporals (inheritance appointment) + Lords spiritual (26 senior bishops)

Question 76

Ways MPs may loose seat

Answer 76

Death or ceases to be qualified due to e.g. mental illness or bankrupcy (falls vacant) Expelleed Recall petition: if an MP is convited of an offence with a custodial sentence, suspended for ta least 10 sitting days or convicted for falce or misleading allowance under the Parliamentary standards act 2009, voters in MPs constituency votes during a 6 weeks period and MP looses seat if 20% of voters signs.i

Question 77

Parliament dissolves

Answer 77

can be dessolved by king on request by priminister if not resolved earlier, it automatically resoluves on the day of the fifth anniverary of when it was opened

Question 78

question time

Answer 78

Ministers and the crown has to answer to parliament. Government is responsible to parliament, rather than the monarch.

Question 79

How can a minister be fired?

Answer 79

by the prime minister

Question 80

who can force the prime minister to resign and enact a vote of no confidence?

Answer 80

only the House of Commons, by a simple majority. The house of lords does not control the prime minister or the government.

Question 81

Resolutions

Answer 81

Passed by HoC and expresses the will of the MPs in the UK. not law and not binding on courts, but have political effect.

Question 82

Bills that MUST be passed through HoL

Answer 82

- prolonging length of parliament by 5 years + - private bills - bills sent to HoL less than a month before end of session - bills starting in HoL

Question 83

Salisbury convention

Answer 83

A bill can pass through HoL even when the government has no majority - Lords do not vote down a government bill mentioned in an election manifesto.

Question 84

Secondary legislation precedure

Answer 84

Delegated legislation can be subject to parliamentary control in two ways Affirmative resolution procedure: express approval by both houses negative resolution procedure: becomes law unless there is an objection from either house House has no right to amend, they must either be rejected or affirmed Can be monitored by the Legislation Scrutiny committee

Question 85

Rule of law - contenct + consequences of breach

Answer 85

No citizen is punishable without a breach of law Equal application of the law The citizens personal freedoms are protected by ordinary law Requires government ministers to accept and obey the orders of court Breach primary legislation: does not itself make the statute invalid Breach secondary legislation: can lead to annulment

Question 86

Can parliament legislate restrospectively?

Answer 86

Yes, the rule of law does not limit the parliament from legislating retrospecively. To impose criminal penalties retrospectively is contrary to HRA.

Question 87

Parliamentary sovereignty - main points

Answer 87

Parliament can make laws concerning anything Cannot bind a future parliament A valid Act of Parliament cannot be questioned by courts

Question 88

Judicial review - definition, protected interests and limitations

Answer 88

Judicial review: Courts powers to ensure that public bodies act with their powers. Not a test of the result, but whether the decision was made in the right way. Because of the doctrine of Parliamentary Sovereignty, judicial review is limited to secondary legislation + decision from public bodies. Protects interests: the rule of law (government acting according to law) can be enforced, the separation of power, Parliament's sovereignty (as judicial review is mostly limited to secondary legislation) Ultra vires: decision from public authorities can only be set aside if the exceed powers granted to them by parliament.

Question 89

Judicial review - remedies from prerogative orders

Answer 89

Prerogative orders (main orders sought by claimants): Quashing order: quashes (deprives decisions legal effect) a decision that the court found unlawful. Nullifies decision and the decision maker must make a new decision. Judicial review Act 2022 (in power from 28 February 2022) gives the court power to grant suspended (decision is suspended until a certain date) and prospective only (decision is only rendered void from the time of the judgment and onwards) quashing orders. Court takes into account the nature and circumstances of defect, interest or expectancy of benefactors and those who rely on decision. Prohibiting order: a public body must refrain from acting beyond their powers. Mandatory order: enforces a public body to carry out duties they are required to do by law.

Question 90

Judicial review - private law remedies (non-prerogative orders)

Answer 90

Private law remedies - “non-prerogative orders” Declaration: a court order confirming, but not challenging, the legal position or rights of the parties. A non-coherciveremedy and no legal sanctions. Injunction: same function as a prohibiting order, but is possible to obtain on an interim and final basis. Damages: s. 32 of the Senior Courts Act 1981, the Administrative Court can award damages that could have been awarded under a civil claim, meaning the claimant must have a private law cause (contract, tort etc.) in action or a breach of a convention right. Maguire case: taxi driver was refused license and failed damages action as the court found that Parliament had not intended a private individual to have a private right of action in relation to a failure of granting a license. There is hence no general right to damages for maladministration. Discretion: the court had discretion to grant more than one remedy, where this is available.

Question 91

Tests to establish sufficient standing for judicial review

Answer 91

1. “Sufficient interest”-test: Claimants must have “sufficient interest in the matter to which a claim relates” e.g. personally affected. The same as having standing or locus standi Both people and legal persons can have sufficient interest. R v Inland Revenue: a federation complained against an amnesty from the Inland Revenue granted to workers who had avoided tax. Inland Revenue was heard with the argument that the federation lacked sufficient interest in the claim as there was no wrongdoing and one taxpayer has no legitimate interest in the affairs of another. Likely that they would have been allowed if they could have shown serious wrongdoing. Pressure groups (organized groups, as groups formed by e.g. local citizen that are affected by a decision would have sufficient interest anyways) could have standing based on an assessment of: The need to uphold the rule of law Importance of the issue Absence of other responsible challenger Nature of breach of duty Role of the pressure group “Person aggrieved”-test: a party is not a “person aggrieved” where it does not have any subsisting interest in the affected land, but merely hope to further its own commercial interests The “Victim” test: if a person relies on HRA for judicial review, the court applies the stricter “victim” test, whereby the person has to be or would be a victim of an alleged unlawful act to have standing.

Question 93

Limitations for judicial review

Answer 93

Non-justiciable: certain exercises of public power are non-justiciable/non-reviewable e.g. honours granted by the King, prerogative of mercy (pardoning prisoners) and public policy directions taken by the government incl. Funding of local authorities. Ouster clause: a clause in the enabling Act of Parliament which grants public bodies power to make decisions in the first place.an ouster clause in an act excludes any challenging of a decision made by a public body. Full ouster clause: no right to challenge at all, but solely protect valid decisions and not e.g. situations where a public body has stepped outside of their powers. Partial ouster clauses leave some opportunities for review. Exclusivity rule: where a public law right is at stake, claimants could only proceed by judicial review. Public law issues can be raised in civil lawsuits, if there is a blend.

Question 94

What is Procedural impropriety under judicial review?

Answer 94

Procedural ground, as it focuses on the decision-making process itself. Looks at whether either the procedure prescribed by statute or the “rules of natural justice” have been followed. Statutory procedure: Requirements in e.g. acts of parliament. Requirements in statutes can be both mandatory and directory. Where a mandatory requirement is breached, the courts will set aside the decision for procedural impropriety. Breach of natural justice: The rule against bias: depends on whether the interest the decision maker has in the outcome is direct or indirect. Direct interests include financial gain, property interest. Indirect interests could be where a relative of the decision maker would have the benefit. The link between the decision and the benefit would have to be assessed. Actual bias: decision is unlawful and quashed. Apparent bias: objective test of whether a “fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” A right to a fair hearing: flexible and depends on the content of each case. Have in case law been assessed depending on the type of cases: - Forfeiture cases: claimant has the most to lose such as livelihood. - Legitimate expectation cases: it was legitimate for the claimant to expect that an established practice would continue. Procedural promise is when a normal procedure has not been followed. Substantive legitimate expectation is where a decision maker has lead someone to believe that they will receive a benefit - Application case: claimant is a first time applicant merely seeking a membership, license etc. ECHR art. 6 requirements to fair hearing: a fair and public hearing, within reasonable time, by an independent and impartial tribunal established by law. Duty to give reason: a general duty to give reason is NOT recognised under english law. Can be imposed by statute or common law. Duty to consult: there is no general duty to consult those affected by a decision before a public authority makes the decision.

Question 95

Limited rights ECHR

Answer 95

Limited/derogable rights Can only be limited in defined and finite situations, such as public emergencies Limited rights includes: art. 5 liberty and security (exceptions in relation to lawful arrest and detention), art. 6 fair trial (exceptions in relation to trial being public) art. 12 right to marry (but according to the governing national law) Qualified rights Require a balance between the rights of the individual and the wider public interest.

Question 96

Qualified ECHR

Answer 96

Qualified rights include: art. 8 respect for private and family life, art. 9 freedom of thought (qualified in relation to teaching, worship, practice and observation), art. 10 freedom of expression, art. 11 freedom of assembly and association, Art. 14 freedom of discrimination art 1 og protocol 1 enjoyment of possessions.

Question 97

Legal test to interfere with a qualified right ECHR

Answer 97

An interference with a qualified right can be justified: 1. Must be prescribed by law (written or unwritten), 2. accessible and sufficiently precise. Must be justified by referring to the aim specified in each right e.g. national security in art. 8 or prevent crime for art 8 and 10. Qualifications are usually necessary in a democratic society such as art. 8 respect for family rights or art. 10 freedom of expression. Interference must therefore be: “pressing social need” and proportionate. Member states have a margin of appreciation so that the ECHR will respect a state's legitimate judgment to a certain extent. 4 part test for proportionality: 1. Whether the objection of the complained measure is sufficiently important to justify the limitation of a fundamental right, 2. Measure is rationally connected to the objective 3. Less intrusive measures could be used 4. A fair balance is struck between the rights of the individual and the interest of the community

Question 98

Standing ECtHR

Answer 98

Individual complaints: any person, group, company or non-gov org complaining about a violation of their rights. Peron must have been under the jurisdiction of the contracting state when the alleged violation happened, but does not have to be a citizen or domicile. Indirect victims will only have standing where the direct victim is unavailable e.g. held hostage or dead. Class-actions are not permitted. e.g. Greenpeace cannot launch a case against a contracting state alleging life to members is threatened from radioactive waste. Cases can be launched re: violation of rights, threatened violation, or breach of the positive duty to prevent violations (last one is not absolute, but covers art. 2 for prisoners and art 8 privacy). Inter-state complaints: state complains against state.

Question 99

ECtHR admissability of a case

Answer 99

ECtHR will not admit anonymous cases nor cases that are substantially similar to previous cases. Process - two stages: Admissibility stage: a single judge may declare application inadmissible with no appeal rights. Merits stage: If there is well-established case law, the case is decided by a 3 member committee for a final decision. It can also be heard by a chamber of judges based on majority.

Question 100

HRA vs ECHR - what is the purpose of HRA

Answer 100

HRA 1998 incorporates ECHR into UK domestic legislation. Means that the rights and responsibilities form a common set of binding values for public authorities, public authorities must have human rights in mind when making decisions and human rights are part of all policy making. HRA make UK courts a remedy for breach of convention rights. ECtHR decisions are not binding on UK courts.

Question 101

Declarations of incompatibility - what is it and who can make them?

Answer 101

The High Court, Court of Appeal and Supreme Court have the power to make “Declarations of incompatibility” between a primary/secondary legislation and the ECHR. The courts are not permitted to strike out primary legislation. The court HAVE power to strike out secondary legislation, as long as this is not prevented by the primary legislation. Sml. courts powers to strike out secondary legislation but not primary. A Declaration of Incompatibility triggers the prime ministers powers to make a remedial order to amend the legislation to bring it in line with convention rights. A minister can take remedial action and amend the relevant legislation to remove incompatibility. Draft amendment must be laid before parliament for 60 days before approved.

Question 102

HRA - who must comply

Answer 102

Public authorities must comply with HRA. Public authorities: Core public authorities (e.g. government, hospitals ets) Functional/hybrid public authorities: any person whose functions are functions of a public nature. Courts and tribunals

Question 103

HRA vs judicial review - what are the time limits?

Answer 103

Proceedings under HRA can be brought as judicial review, but then the victim MUST have sufficient interest related to the unlawful act + the case must be treated in the Court of Administrations (high court, King’s bench). HRA time limit vs judicial review time limit HRA time limit: 1 year after the date on which the act took place Judicial review time limit: promptly and no later than 3 months HRA: if there is a stricter time limited, this will apply, Hence if the complaint is by an application for judicial review, the deadline for judicial review will apply.