FOLK PUBLIC LAW Flashcards
A tenant rents a flat privately from a landlord, having found the flat himself on the private rental market. The tenant falls behind on his rent payments after losing his job. The landlord serves the tenant with a notice under a statutory provision which allows a landlord to seek possession without fault by the tenant, and seeks a possession order in the County Court. The tenant asks his solicitor if he can argue that granting the possession order would be in breach of his right to private life under the European Convention on Human Rights (ECHR).
What should the solicitor advise?
A. The court must determine whether the interference with the tenant’s ECHR right to a private life is proportionate.
B. A tenant’s ECHR right to private life is not engaged in housing possession proceedings.
C. The court must hear argument before granting the order on whether to do so would be a breach of the tenant’s ECHR right to private life.
D. The court is not required to consider the impact on the tenant’s ECHR right to private life before granting the possession order.
E. The tenant can rely on his ECHR right to private life in the County Court proceedings if the landlord’s actions are unlawful under the Human Rights Act 1998.
D. The court is not required to consider the impact on the tenant’s ECHR right to private life before granting the possession order.
Housing possession can engage Art 8 ECHR and where the landlord is a public authority the court will consider the proportionality of the interference with Art 8 before granting possession
A Canadian woman applies for indefinite leave to remain in the UK having lived in the UK for seven years, during which she has had two children. The Home Office refuse the woman’s application in a written decision, giving no opportunity to her to make oral representations. The given reason for the decision is that the woman was cautioned by the police for shoplifting six years ago. In making its decision, the Home Office relies on a discretion set out in a 2018 Act of Parliament and in associated guidance to refuse indefinite leave to anyone with a conviction or caution. The woman has a right of appeal to a tribunal against the Home Office decision.
How should the woman’s solicitor best use the Human Rights Act 1998 and the European Convention on Human Rights (ECHR) to argue against the Home Office’s decision?
a) The Home Office’s decision does not pursue a legitimate aim and is therefore unlawful under s6 of the Human Rights Act 1998.
b) The Home Office’s decision is contrary to Art 7 ECHR as it imposes a retrospective punishment for the old shoplifting offence, and is therefore unlawful under s6 of the Human Rights Act 1998.
c) The discretion granted to the Home Office to grant or refuse the application without a hearing is contrary to Art 6 ECHR and the court should issue a declaration of incompatibility under s4 of the Human Rights Act 1998.
d) The Home Office’s decision is unlawful under s6 of the Human Rights Act 1998 as it is a disproportionate interference with the woman and her family’s rights to private and family life under Art 8 ECHR.
e) The Home Office’s discretion is not ‘prescribed by law’ and therefore the exercise of the discretion in the woman’s case is unlawful under s6 of the Human Rights Act 1998.
D) The Home Office’s decision is unlawful under s6 of the Human Rights Act 1998 as it is a disproportionate interference with the woman and her family’s rights to private and family life under Art 8 ECHR.
Article 8 ECHR, which is engaged here, is a qualified right and an interference may be permitted by Art 8(2) if it is prescribed by law, proportionate and pursues a legitimate aim—which can include ‘the prevention of disorder or crime’
A man has his disability benefits withdrawn by the Department for Work and Pensions (DWP) after a medical assessment finds him fit for work. The man asks the DWP to write to his GP for his medical records but they do not do so. The man appeals against the loss of his benefits but informs the tribunal that he is too ill to attend the appeal hearing, which happens eight weeks later. The tribunal dismisses the man’s appeal without a hearing because of his failure to attend.
How should a solicitor advise the man regarding whether he can use the Human Rights Act 1998 to overturn the tribunal’s decision?
a) The man did not have a fair hearing in the tribunal in the determination of his civil rights, contrary to Art 6 of the European Convention on Human Rights.
b) The man cannot use the Human Rights Act 1998 to overturn the tribunal’s decision because a tribunal is not a ‘public authority’ for the purposes of the Act.
c) The man cannot use the Human Rights Act 1998 in relation to the tribunal hearing because it was not determining his ‘civil rights and obligations’.
d) The tribunal’s decision was not taken within a reasonable time and therefore was unlawful under s6 of the Human Rights Act 1998.
e) Although the decision of the DWP was contrary to Art 6 of the European Convention as the tribunal did not take into account the medical evidence, the man’s failure to attend the tribunal means that he cannot challenge the dismissal of his appeal.
a) The man did not have a fair hearing in the tribunal in the determination of his civil rights, contrary to Art 6 of the European Convention on Human Rights.
The decision-making process should be looked at as a whole and the existence of a fair appeal hearing to a tribunal with full jurisdiction following an administrative decision can satisfy the requirements of Art 6; however, the man has not had a fair hearing in this case in the determination of his civil rights.
A woman wants to bring her elderly mother—who is not a UK citizen—to the UK in order that the woman can care for her here. A provision in an Act of Parliament from the 1970s, and 2014 Regulations, set out a scheme for minimum income requirements to sponsor a non-UK family member to live in the UK. The woman earns slightly below the current minimum income requirement. The woman asks her solicitor whether she can challenge the lawfulness of the statutory provision and Regulations under the Human Rights Act 1998.
How should the solicitor advise her as to the court’s likely approach?
a) The court must read and give effect to the statutory provision and Regulations compatibly with the Convention rights so far as is possible. If it is not possible to read them compatibly, then they must not be applied by the court in the woman’s case.
b) The court must read and give effect to the statutory provision and Regulations compatibly with the Convention rights so far as is possible. If it is not possible to read them compatibly, then the case should be stayed while a reference is made to the European Court of Human Rights.
c) The court must read and give effect to the Regulations compatibly with the Convention rights so far as is possible. The statutory provision predates the Human Rights Act 1998 and so there is no obligation to read it compatibly with the Convention rights.
d) If it is not possible to read and interpret the Regulations compatibly with the Convention rights, then they can be quashed insofar as the primary legislation allows. Otherwise, a declaration of incompatibility may be made.
e) If the Regulations cannot be read compatibly with the Convention rights, the court will mandate the Secretary of State to amend them to remove the incompatibility.
d) If it is not possible to read and interpret the Regulations compatibly with the Convention rights, then they can be quashed insofar as the primary legislation allows. Otherwise, a declaration of incompatibility may be made.
Under s4 of the Human Rights Act 1998, if the court is satisfied that secondary legislation is incompatible with a Convention right and that, disregarding any possibility of revocation, primary legislation prevents removal of the incompatibility, then a declaration of incompatibility may be made.
A man is arrested for inflicting grievous bodily harm with intent and is detained by police before charge for two days longer than permitted by the Police and Criminal Evidence Act 1984, before being charged and detained until his first appearance at the magistrates’ court. The man asks his solicitor whether, if he is acquitted of the charge at the Crown Court, he can ask the judge to award damages for the breach of his right to liberty under the European Convention on Human Rights (ECHR).
How should the solicitor advise him?
a) The Crown Court can award damages for breach of the right to liberty regardless of whether or not the defendant is acquitted.
b) The Crown Court is empowered to award damages in just satisfaction for the breach of the man’s right to liberty following an acquittal.
c) Damages cannot be awarded under the Human Rights Act 1998 in the Crown Court.
d) As the man is a victim of a breach of his ECHR right to liberty, he can rely upon this in any legal proceedings and can therefore obtain damages in the Crown Court.
e) The man can only obtain a damages award for the breach of his ECHR right to liberty if he brings a civil action in false imprisonment against the police.
c) Damages cannot be awarded under the Human Rights Act 1998 in the Crown Court.
Section 8(2) of the Human Rights Act 1998 provides that damages may only be awarded by a court that has power to award damages, or to order the payment of compensation, in civil proceedings.
A trade union official seeks advice from a solicitor as to whether the union can challenge restrictions on striking in UK law. The relevant statutory provisions have previously been found to be lawful in the UK courts but the official points to a recent decision of the European Court of Human Rights that found similar provisions in Belgium to be contrary to the European Convention on Human Rights (ECHR) right to freedom of association.
What should the solicitor advise?
a) The UK courts are required to take account of the new decision of the European Court of Human Rights in any new litigation in relation to the striking restrictions.
b) The UK courts are required to follow the new decision of the European Court of Human Rights in any new litigation in relation to the striking restrictions.
c) The UK government is required to take remedial action to amend the UK legislation in order to remove the incompatibility with the new decision of the European Court of Human Rights.
d) The UK courts are not required to take into account the new decision of the European Court of Human Rights in any new litigation, as the UK striking restrictions are within the UK’s margin of appreciation.
e) The UK court is required to refer the question of compliance of the UK striking restrictions with the ECHR rights to the European Court of Human Rights.
A) The UK courts are required to take account of the new decision of the European Court of Human Rights in any new litigation in relation to the striking restrictions.
Section 2(1) of the Human Rights Act 1998 requires the court to take into account any relevant judgment or decision of the European Court of Human Rights when determining any question which has arisen in connection with an ECHR right.
The owner of an off-licence company is concerned that the local authority has been filming customers coming and going, which she says is affecting her business. The local authority says that it suspects that she has been selling alcohol to minors. The local authority’s surveillance power was created by a 2017 statutory provision which states that a local authority may use video and audio surveillance in pursuance of its statutory powers, within its local authority area. However, there is no published guidance in relation to the use of this power.
How could the Human Rights Act 1998 be used to challenge the local authority’s surveillance of the premises?
a) The off-licence owner cannot challenge the surveillance as it is prescribed by law and pursues a legitimate aim.
b) The off-licence owner cannot challenge the surveillance since the victim is the company; a company has no right to privacy under the European Convention on Human Rights.
c) The off-licence owner can challenge the surveillance on the grounds that it does not pursue a legitimate aim.
d) The off-licence owner can challenge the surveillance on the grounds that it is not prescribed by law.
e) The off-licence owner cannot challenge the surveillance as the victims are the customers, not her company.
d) The off-licence owner can challenge the surveillance on the grounds that it is not prescribed by law.
Any interference with a victim’s right to privacy under Art 8 of the European Convention on Human Rights must be ‘prescribed by law’. Arguably, the local authority’s surveillance here is not ‘prescribed by law’ as there is no detailed ascertainable basis for its use
A trainee solicitor is asked to assist a managing partner with recruiting a new associate. The managing partner asks the trainee to check the names and dates of birth on the applications, and to remove from consideration all applications from women aged 20 to 40 because ‘the next couple of years will be very busy for the firm and I don’t want the new associate to go on maternity leave’.
How can the managing partner’s conduct currently best be described under the Equality Act 2010?
a) Direct discrimination on grounds of sex and age.
b) Indirect discrimination on grounds of sex and age.
c) Victimisation on grounds of pregnancy or maternity.
d) Combined discrimination on grounds of sex and age.
e) Indirect discrimination on grounds of pregnancy or maternity.
a) Direct discrimination on grounds of sex and age.
The women are treated less favourably than others who do not share their characteristics of (a) sex and (b) age (s13 Equality Act 2010) because of those protected characteristics.
An independent secondary school’s uniform policy, which it applies to all its students, states that ‘students are not permitted to wear hats or head coverings at school or outside school while in school uniform’. A Sikh boy obtains a place at the school but on his first day is sent home because he is wearing a patka (religious headwear). The boy’s parents seek advice from a solicitor as to whether the school has contravened the Equality Act 2010.
How should the solicitor advise the parents?
a) The school’s actions are likely to constitute indirect discrimination on grounds of religion or belief.
b) The school’s actions are likely to constitute direct discrimination on grounds of religion or belief.
c) No discrimination has occurred because the school is independent and therefore it is not a public authority.
d) The school’s actions are likely to constitute harassment on grounds of religion or belief.
e) The school’s actions are likely to constitute a failure to make reasonable adjustments to accommodate religion or belief.
a) The school’s actions are likely to constitute indirect discrimination on grounds of religion or belief.
The school is applying to the boy a provision, criterion or practice which it applies to all students, but which puts him at a particular disadvantage because of his religion or belief. Unless the school can show its actions to be proportionate, they are likely to constitute indirect discrimination (s19 Equality Act 2010).
During April 2020, a case brought under the Equality Act 2010 came before the High Court. The court found a section of the Act to be in breach of an EU Regulation.
Which of the following correctly sets out whether the court was bound to follow the EU Regulation in this case?
a) The UK left the EU on 31 January 2020 and as a result the EU Regulation no longer prevailed and would not do so in this case.
b) On 31 January 2020, an implementation period began during which EU Regulations no longer prevailed and would not do so in this case.
c) On 31 January 2020, an implementation period began during which only such EU Regulations as were specified in the Withdrawal Act continued to prevail which would not apply in this case.
d) On 31January 2020, an implementation period began during which EU Regulations continued to prevail and would do so in this case.
e) The UK left the EU on 31 January 2020 and as a result the court would only be required have regard to the EU Regulation but would not be bound by it.
d) On 31 January 2020, an implementation period began during which EU Regulations continued to prevail and would do so in this case.
Pursuant to s1A of the EU(W)Act 2018 until the end of the implementation period (31 December 2020). existing law regarding the supremacy of EU law continued to apply. The EU Regulation would therefore prevail over the UK legislation in this case.
A case involving the Equality Act 2010 comes before an employment tribunal after completion of the implementation period. A case decided by the Court of Justice of the European Union (CJEU) before the end of the implementation period supports one party. Their opponent argues that, following the EU(W)Act 2018, the tribunal is no longer bound to follow the CJEU’s decisions.
Which of the following sets out the correct position regarding the authority of CJEU decisions?
a) Decisions of the CJEU continue to be followed by UK courts and tribunals regardless of when they were made.
b) Decisions of the CJEU continue to be followed by UK courts and tribunals if made before the completion of the implementation period.
c) Decisions of the CJEU should not be followed by UK courts and tribunals if made after the UK left the EU on 31 January 2020.
d) Decisions of the CJEU should be treated as persuasive only by UK courts and tribunals if made after the UK left the EU on 31 January 2020.
e) Decisions of the CJEU should be treated as persuasive only by UK courts and tribunals if made before the completion of the implementation period.
b) Decisions of the CJEU continue to be followed by UK courts and tribunals if made before the completion of the implementation period
This is the correct position set out in s6(3) of the EU(W)Act 2018 as amended by the EU(WA)Act 2020.
A solicitor has acted for a client throughout a personal injury claim. The claim is now coming to trial at which the client has agreed that the solicitor should instruct a barrister to appear on their behalf.
Which of the following best describes the steps that should be taken by the solicitor to prepare for the trial?
a) The solicitor should recommend a barrister to the client, advising the client to inform the barrister of the details of the case.
b) The solicitor should retain a suitable barrister for the client and advise the client to inform the barrister of the details of the case.
c) The solicitor should advise the client which barristers are the most suitable for the case and provide their choice with the details of the case.
d) The solicitor should select and retain a suitable barrister for the client and provide the barrister with details of the case.
e) The solicitor should advise the client to find a suitable barrister themselves, providing them with the case file to give to the barrister.
c) The solicitor should advise the client which barristers are the most suitable for the case and provide their choice with the details of the case.
The solicitor has a responsibility to advise the client as to the selection of an appropriate barrister and to provide the chosen barrister with detailed instructions on behalf of the client.
A solicitor attends a careers evening at a local school. One of the pupils asks him to explain the difference between a solicitor and a chartered legal executive. Before answering, the solicitor explains the meaning of ‘reserved legal activities’.
Which of the following correctly answers the question put forward by the pupil?
a) A chartered legal executive can potentially carry out all the same reserved legal activities as a solicitor.
b) A chartered legal executive cannot carry out any reserved legal activity, while solicitors can.
c) A chartered legal executive can carry out some specific reserved legal activities unsupervised, and others with supervision by a solicitor or authorised person.
d) A chartered legal executive can only ever carry out reserved legal activities under the supervision of a solicitor or authorised person.
e) A chartered legal executive cannot carry out any reserved legal activity which involves advocacy, while solicitors can.
c) A chartered legal executive can carry out some specific reserved legal activities unsupervised, and others with supervision by a solicitor or authorised person.
They are required to qualify in these areas as CILEx practitioners in addition to the qualification as chartered legal executives in order to carry out these activities unsupervised.
A solicitor is about to begin practising on a freelance basis carrying out only non-regulated activities and is reviewing their requirements for professional indemnity insurance.
Which of the following is the correct level of professional indemnity insurance cover required by the SRA?
a) They will require cover of two million pounds per claim and defence costs.
b) They will require cover of three million pounds per claim and defence costs.
c) They will require cover which is adequate and appropriate.
d) They will require no cover for claims.
e) They will require cover equal to a percentage of their estimated first year’s fee income.
d) They will require no cover for claims
Where a freelance solicitor engaged only in non-reserved activities the SRA does not require that they hold professional indemnity insurance.
A firm has received a complaint from a client regarding the conduct of a junior solicitor. The solicitor’s work was of a poor standard and he once turned up to a meeting intoxicated. The complaint has been outstanding for a period of 12 weeks and the client has heard nothing from the firm in response to reporting the conduct.
What is the best course of action for the firm to take?
a) Advise the client to report their complaint to the Solicitors Disciplinary Tribunal, as per the client engagement letter.
b) Immediately request that the junior solicitor tenders his resignation for bringing the profession into disrepute.
c) Apologise to the client and reduce their bill as a goodwill gesture.
d) Advise the client to complain to the Legal Ombudsman, as per the client engagement letter, and advise the solicitor to report his own activity to the SRA.
e) Make the junior solicitor report his own behavior to the firm’s compliance officer to ensure that this matter is dealt with internally.
d) Advise the client to complain to the Legal Ombudsman, as per the client engagement letter, and advise the solicitor to report his own activity to the SRA.
According to paras 7.7 and 7.8 of the SRA Code of Conduct for Solicitors, a solicitor is under a duty to promptly report any facts or matter that could result in a regulatory breach that should be investigated by the SRA. This solicitor must report his own conduct to the SRA (or other approved regulators).
