Flk 1 Flashcards
What are the absolute right under the Human Rights Act 1998?
Right to life, prohibition of torture, prohibition of slavery and servitude, prohibition on retrospective criminal offences and Abolition of Death Penalty
What are the limited rights under the Human Rights Act 1998?
Right to liberty and security and right to a fair trial
What are the qualified rights under the Human Rights Act 1998?
Right to Respect for Private and Family life, freedom of thought, conscience and Religion, Freedom of Assembly and Association, Right to Marry, Prohibition of discrimination, Right to Property, Right to Education, Right to Free Elections
What is the proportionality test used by courts to assess if a restriction of qualified rights under the HRA is necessary?
The object of the policy and the 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 the objective (that is, no less onerous means can achieve the aim); and
The measure is reasonable and balanced in all circumstances, given the competing needs of the individual and the wider community.
Is the supreme court bound by its own decisions?
No
Is the court of appeal bound by its own decisions?
It is in civil cases. It can depart from previous decisions in criminal cases if it is convinced that the decision was wrong and following the decision would cause hardship.
Is the high court bound by its own decisions?
Decisions are binding if the decision was rendered in a case in which the high court was acting as an appellate court. Decisions are not binding if the high court was acting as court of first instance.
Can the court refuse permission for a judicial review claim even if think it will be successful?
Yes, if the court thinks that a successful claim would not change the outcome
What are the relevant deadlines for brining up a judicial review claim?
The person must do it promptly but no later than 3 months. Even if the three months deadline is respected, the claim can still be refused if the court does not think that it was brought up promptly.
If a planning permission is being challenged, the deadline is six weeks of the decision
Can an association have sufficient interest to bring a judicial review claim?
Yes, the association is responsible, well resourced, has expertise and/ or there is unlikely to be an alternative claimant.
On what grounds can a judicial review claim be brought up?
Illegality, procedural impropriety, unreasonableness and a breach of legitimate expectations.
What are the elements of ilegality?
Error of law
Specific legal duty
Unlawful delegation of power
Irrelevant consideration
Ultra vires
What are the different grounds for procedural impropriety?
Mandatory/directory requirements
Right to be heard
Rule against bias
Duty to consult
Duty to give reasons
What are the types of biases that can be brought up in a judicial review?
Actual bias - present when the decision maker has made a decision that is actually motivated by bias.
Automatic disqualification rule - 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
Apparent bias - the test is whether a fair-minded and informed observer, informed of the facts would conclude that there was a real possibility of bias
Is there a general common duty of consultation in relation to public authorities decisions?
No. However, the duty to consult would arise in the following situations:
When there is a statutory duty to consult
When there has been a promise to consult
When there has been an established practice of consultation
Exceptionally, when a failure to consult would lead to conspicuous unfairness
Is there a common law duty to give reasons in relation to public authorities decisions?
No. However, when the subject matter or interest is important, fairness requires reasons.
If a decision appears to be aberrant, fairness may require that reasons be given so that the person subject to the decision can establish whether the decision can be challenged because something has gone wrong.
In which ways can legitimate expectation be performed?
Procedural (the decision will be made in a certain manner)
Substantive (specific results) if the promise made is particularly important and made to a small number of individuals
What is the test for unreasonableness in relation to judicial review?
The decision must be so outrageous in its defiance of logic or accepted morals standards that no sensible person who applies their mind to the question could have arrived at it
When is the proportionality test applied to judicial review decisions and what it involves?
Applies to questions involving fundamental the Human Rights Act 1998 and other fundamental rights
Three-part test:
Is the object of the policy sufficiently important to justify limiting a fundamental right?
Are the measures designed to meet the legislative objective rationally connected to it?
Is the interference with the right no more than necessary to accomplish the objective?
What are the remedies available if a judicial claim review is successful?
Quashing order - render the original decision void
Mandatory order - orders the defendant to act in a certain way
Prohibiting order - orders the defendant not to act in a particular manner
Injunction - This is an order preventing a party from acting in a certain manner or requiring that a party acts according to the instructions in court
Declaration - declares that the decision or action was unlawful
When indirect discrimination can be justified?
If the policy is universal and is a proportionate means of achieving a legitimate aim (objective justification)
What is the meaning if expressio unius est exclusio alterius?
If one or more things of a class are expressly mentioned in a statute, the things not mentioned are excluded
What is the meaning of noscitur a sociis?
The words are interpreted in the context of the words that surround it
What is the meaning if in lari materia?
Considers other statutes on the same subject to interpret the statute in question
What is the meaning of Ejusdem generis?
Used to interpret the meaning of general word when more specific words follow it
What is the name of EU legislation retained after the transition period?
Direct EU legislation
What is the name of EU directive retained after the transition period?
EU derived domestic legislation
What is the name of provisionar of EU law that have direct effect after the transition period?
Directly effective EU law
