Key Terms Flashcards
Public Law
The area of law which governs the individual and the state; is concerned with public institutions, constitutional principles and constitutional practices and holds the state accountable to the people. It also provides the principles and rules which regulate the system of government. It includes constitutional law, administrative law and human rights law. Essentially covering all areas of law that bring us into contact with state power and its application
Administrative Law
This public law sector outlines the laws, legal principles, and mechanisms that check and control government executions of power. This term does not refer to constitutional guidelines for a country and accounts more for daily procedural uses of legal and institutional power. Administrative law allows individuals to challenge the legality of government actions through the process of judicial review which entails a court evaluation of the lawfulness of an appointed issue
Procedural unfairness
Unfairness in regard to institutions’ proceedings and handling of an individual case not the outcome of the case
Substantive unfairness
This concerns the fairness of a decision itself
Revolves around unfair dismissal, made based on lack of judgement
Redress
A means of obtaining a remedy or compensation for a loss or wrong; relief from distress
Absolute Right
Rights that cannot be restricted or taken away under any circumstances. Examples include the right to not be tortured or treated inhumanly
Constitutional Law
Constitutional law is concerned with the overall constitutional structure by which a country is governed
The United Kingdoms Constitutional Principles include:
- Parliamentary sovereignty
- Rule of law
- Separation of powers
Protected rights
Protected rights include both qualified and absolute rights; they include the recognized rights that are protected and enforceable. They are enshrined by the Human Rights Act, and therefore defendable by law. An example of a protected right is the right to life
Positive Obligation
A duty imposed on the state to take active measures to protect individuals rights, such as protecting citizens from violence and ensuring access to justice
Qualified right
Qualified rights are defined as rights which may be interfered with, in order to protect the rights of another or the wider public interest, e.g. the freedom of assembly and association (article 11)
Example: As discussed in the COVID-19 reading, public health concerns limited the freedom of assembly to avoid transmission of the virus
Note: The restriction must adhere to proportionality and the grounds for restriction are codified
Proportionality
A legal principle that requires that any action taken which interferes with an individual right must be appropriate, necessary, and not excessively restrictive relative to the legitimate aim being pursued
Judicial Review
The procedure in which the court can look and review decisions made by branches of administration. A court can determine its validity and hold the executive accountable for their decisions
Henry VIII Power
A delegated power under which subordinate legislation is enabled to amend primary legislation
Negative Obligation
An example of negative obligation would be the obligation of the state not to infringe on an individual’s right to live, free speech, etc
The duty not to act but to refrain from action that would hinder human rights
Irrationality
A rarely used judicial review ground, irrationality is where a court case challenges the rationality of a government decision based on the decision being arbitrary enough to denote an irrational choice. In defiance of logic, no sensible person would come to that decision
Procedural unfairness
A decision can be overturned by a higher court on the grounds of procedural unfairness if the process leading up to the decisions made by the executive (prime minister or cabinet ministers) were improper. Public bodies must act fairly and they must also be impartial. For example, the Home Secretary not consult with a wide range of organizations
Three types of Procedural unfairness
- Breach of statutory procedure - A rule that has officially been written down in law
- Breach of natural justice - The common law principle of fair procedure. The two established rules of natural justice are the rules against bias and the right to a fair hearing
- Breach of legitimate expectation - A ‘practice or promise’ that particular procedures would be followed becomes binding unless the public interest justifies a departure from the practice/promise
Illegality
Illagility is when a public body acts beyond the authority given to them by a parent act or the relevant legal authority
Ombudsman
Work independently as intermediaries to provide individuals with a private avenue, it issued as a last resort as a person will have to go through a body’s own complaint system first
There are four types of ombudsman: housing, local government, prison and parlimentry
The two functions are: redress function and quality control function
The law states that the ombudsman must look for maladministration. Maladministration includes but is not limited to broken promises, failure to investigate, failure to reply, and inadequate consultation
Inquest
A judicial inquiry to find out the facts relating to an incident *
Tribunal Appeal
Tribunal appeals are challenges to decisions made by a tribunal to a higher court, such as the Upper Tribunal or Employment Appeal Tribunal, in UK public law. Among the topics handled by tribunals are tax, employment, immigration, and asylum cases
Article 2 Inquest
Occurs when death occurs in uncertain circumstances which require an investigation into establishing a cause/time/place of death as well as details of the individual. Governed by section 5(1) and section 7 of the Coroner Injustice Act 2009
Public Inquiry
Public inquiries undertake an official investigation into a particular matter of public concern, they are established on an ad hoc basis in response to particular circumstances. Public inquiries are used to investigate the event and then produce suggestions to prevent the event from occurring. They can be public or private; public inquiries are more common because they demonstrate transparency. They are less adversarial than courts and this can lead to reconciliation and resolution of difficult issues. The purpose of public inquiries is to restore public confidence and to make sure that the issue doesn’t reoccur - so that the public can see that the matter has been fully investigated. There is no set membership; could be panel/committee or an individual
Algorithm
This is a set of predictive calculations done by electronic means, within the legal system we see this as:
- Predictive policing that uses historical data to predict where and when certain crimes occur
- Visa streaming algorithms which triage vias applications to help vias - issuing authorities decide who to investigate
- Facial recognition tools that assess whether separate images depict the same person
Digital Exclusion
Where a section of the population has a continuing unequal capacity to use digital technologies that are essential to fully participate in society
UN Sustainable Development Goal 16
The UNSDG 16 aims to promote peaceful and inclusive societies, ensure access to justice for all, and build effective institutions. The goal is to provide access to justice for all and build effective, accountable, and inclusive institutions at all levels
Access to Justice
The idea is that everyone should have equal legal opportunities to seek and obtain justice. It’s a fundamental principle of the rule of law and is considered a core element of it. Access to justice would allow people to exercise their rights, challenge discrimination, hold decision - markers accountable, vindicate their rights and resolve disputes by having access to the courts.
Administrative Review
A process where an administrative organization reviews its own decisions
It is a way for people to challenge decisions made by public bodies such as the home office
Adopted by the government as the first step on the dispute resolution ladder
Systemic administrative failure
A term used to describe when problems in an administrative system are not the result of individual mistakes but are instead caused by structural issues in the design and operation of the system
In the legal context, this can refer to situations where institutional processes fail to uphold rights or deliver justice impacting vulnerable populations
