Legal Svcs CAL & EU Flashcards
A client who works for an estate agency has suffered stress at work since the beginning of March this year. This is due to his boss expecting him to work selling houses in nine hour shifts, six days a week. The Work Time Limitation Directive 2019/44 (fictitious) was adopted in mid-2019 and was to be implemented into member state law by 1 February 2021. It states that no employee in any business should be expected to work for more than a total of 45 hours a week across a whole week. The Directive has not been implemented into UK law.
The client would like to judicially review the decision not to implement the Directive and claim damages from the UK government. He says that if it had been law, he could have easily sued his employer for damages for his personal injury.
Which of the following best summarises whether the client can recover damages from the UK government for not implementing the Directive?
A-He will not be able to recover damages because UK citizens can no longer bring cases against the UK before the European Court of Justice.
B-He will not be able to recover damages because there is no possibility of bringing state liability claims after IP completion day.
C-He will not be able to recover damages because all case law from the European Court of Justice is no longer binding on the UK since IP completion day.
D-He will be able to recover damages because the UK government had no legal authority to refuse to implement the Directive.
E-He will be able to recover damages because the Directive was adopted before January 2021.
Option B is the best advice because it is most accurate as a statement of law. Now that the UK has left the EU, the European Union (Withdrawal) Act 2018 is the relevant law to apply. The Act excludes the principle of state liability. As such, there is no ability for an individual to claim damages from the UK for failure to implement a directive or for other breaches of EU law.
Option A is irrelevant and therefore wrong. Even before Brexit, individuals could not bring cases against the UK before the ECJ. The ECJ primarily heard references from the courts of Member States on the application and interpretation of EU law, as well as direct actions against EU institutions and Member States brought by Member States and EU institutions. Individuals wishing to allege breaches of EU law against their country had to make such allegations before domestic courts.
Option C is wrong because ECJ case law which was decided before IP completion day is retained within UK law. In any event, option C is not the best answer because it disregards the express rejection of state liability in the European Union (Withdrawal) Act 2018.
Options D and E are wrong. EU Directives only gain the force of law within an EU member state when the date for their implementation has passed. In this scenario, that was after IP completion day. As a result, there was no obligation on the UK government to implement the Directive. The date when the Directive was adopted is irrelevant.
A claim for negligence is settled on terms that the defendant must pay the claimant damages of £250,000. The defendant was also ordered to pay £65,000 of the claimant’s legal costs. Before the proceedings were issued, the claimant entered into a damages-based agreement with her solicitor which provided for a contingency fee of 30%.
What sum will the solicitor deduct from the claimant’s damages?
A-£65,000
B-£10,000
C-£75,000
D-£19,500
E-£60,000
Option B is correct because the claimant owes the solicitor £75,000 costs (30% of the £250,000 damages awarded). However, the amount paid by the claimant to their solicitor will be net of any costs payable by the opponent. So, £65,000 of the costs liability will be reimbursed by the opponent leaving £10,000 for the claimant to pay (which will come from the damages).
Option A is wrong because this is the sum that is payable by the defendant in respect of the claimant’s legal costs which will not come from the claimant’s damages.
Option C is wrong because, although it is the total sum of costs owed to the solicitor, £65,000 of that sum will be reimbursed by the opponent and it will not be deducted from the claimant’s damages.
Option D is wrong. £19,500 is 30% of the costs awarded by the court but this is not the correct way of calculating costs under a damages-based agreement. The claimant owes the solicitor 30% of any damages awarded (net of any costs payable by the opponent).
Option E is wrong because it is calculated using a contingency fee which is not the correct one on the facts.
A man pleaded guilty to the offence of common assault in the magistrates’ court. He wishes to appeal his custodial sentence to the Crown Court as he expected a fine due to this being his first conviction and a summary only offence.
Which of the following statements describes the course of action the defence can take?
A-The man will need leave to appeal his sentence in the Crown Court because he pleaded guilty in the magistrates’ court.
B-The man has an automatic right to appeal to the Crown Court but will only be able to appeal against his sentence not against his conviction.
C-The man will not need appeal to the Crown Court as appeals from the magistrates’ court are only made to the High Court by way of case stated.
D-Leave to appeal to the Crown Court will not be required; there will be a full rehearing of the case in the Crown Court and the matter could be further appealed beyond the Crown Court.
E-An appeal to the Crown Court cannot be made because the man can only ask the magistrates’ court to reconsider his sentence not appeal against his sentence in the Crown Court.
Option B is correct because a defendant has an automatic right to appeal to the Crown Court against sentence if he pleaded guilty in the magistrates’ court. He can only appeal against his sentence not his conviction if he pleaded guilty.
Option A is wrong because the fact that the man pleaded guilty does not affect his automatic right to appeal his sentence in the Crown Court. The fact that he pleaded guilty will only prevent him from appealing against his conviction.
Option C is wrong because this is an appeal against a stiffer sentence not an appeal on a point of law. If the man was appealing on an error of law, he must make an application to the magistrates to appeal on a point of law to the High Court. Automatic rights to appeal to the Crown Court are allowed from the magistrates’ court.
Option D is wrong because a full rehearing will only be held on appeal against conviction not against sentence. Requests to appeal summary matters beyond the Crown Court would also be refused on public policy grounds of time and resources.
Option E is wrong because a request to reconsider a sentence is different to an appeal to the Crown Court. Defendants have the automatic right to appeal against sentence to the Crown Court if they plead guilty as well as the right to ask the magistrates’ court to reconsider their sentence.
An interim injunction was granted against a newspaper restraining it from publishing extracts from a book written by a former member of the Secret Service. The book made allegations regarding corruption and criminal activity within the Secret Service and disclosed information relating to national security. The injunction was obtained on an interim basis pending a final hearing to determine whether the publication of the book should be allowed. The newspaper complained and the case came before the European Court of Human Rights (ECtHR).
Will the newspaper will be successful in its application to the ECtHR?
A-Yes, because the newspaper can publish all information; freedom of expression is an absolute right and it cannot be lawfully interfered with.
B-Yes, because the decision to grant an interim injunction against the newspaper was not proportionate and goes beyond that which was necessary.
C-Yes, because the interests of society require the newspaper to disclose information relating to corruption, criminal activity and national security.
D-No, because the interim injunction against the newspaper is lawful, was obtained in pursuit of a legitimate aim to protect national security and is proportionate.
E-No, because it is unlawful for the newspaper to publish information written by a former member of the Secret Service.
Option D is correct. The Article 10 right to freedom of expression is a qualified right. The state can interfere with a qualified right so long as that restriction is prescribed by law, has a legitimate aim and is necessary in a democratic society (which is often taken to mean that the interference with the right mut be proportionate). In this case, the interim injunction was granted in pursuit of a legitimate aim: national security and prevention of crime and disorder. The injunction was proportionate as it was only obtained on an interim basis, pending a final hearing to determine whether publication of the book should be allowed. The state’s interference with the article 10 right should therefore be upheld.
Option A is wrong because freedom of expression is a qualified right not an absolute right.
Option B is wrong because the granting of an interim injunction is unlikely to be disproportionate. Whether extracts from the book can be published will be considered at a full hearing in due course.
Option C is wrong because the interests of society may justify restrictions on the rights of individuals. The interest of national security and the prevention of crime and disorder are regarded as legitimate state aims which may require restrictions, such as an interim injunction preventing immediate publication.
Option E is wrong because it is not unlawful for a newspaper to publish a book written by a former member of the secret service. However, the interests of society may justify a restriction on the publication of such material where it relates to issues of national security or the prevention or detection of crime for example.
Last year Parliament passed the Anti Commercial Exploitation of Pets Act (fictitious) which made it an offence for anyone to derive a monetary benefit from their pets. The long title to the Act says that it was passed because of welfare concerns arising due to the increase in exploitation of domesticated animals for money, which it considers to be ‘unfair’. ‘Pet’ is defined in the Act as “any animal that is kept in the home as a companion and treated affectionately”. The Act therefore does not apply to farm animals used in agriculture.
A farmer has a herd of dairy cows. The farmer’s son adopted one of the calves after she was orphaned. He gave her a name, reared her by bottle, taught her to come when called, took her for walks and kept her in a kennel type shelter in a 1.5 acre individual paddock adjacent to the farmhouse. She does not produce milk and is not kept with the rest of the herd. He later taught her to pull a cart and then began to earn a modest regular income from offering rides in the ‘cow-cart’ for tourists visiting the local area.
The matter came before the court, and the court decided that the Anti Commercial Exploitation of Pets Act did apply to this situation.
In deciding that the Anti Commercial Exploitation of Pets Act did apply to this situation, which tool of interpretation did the Court rely upon?
A-The Mischief Rule
B-The Golden Rule
C-The Literal Rule
D-The Purposive Rule
E-Extrinsic Aids
Option A is correct. The long title makes clear that the Act was passed to stop the commercial exploitation of domesticated animals. The cow has been hand-reared, she is tame and is not used for agriculture. Using the mischief rule the court has decided that the fact that the cow is not literally kept in the home, i.e. in the farmhouse, should not mean that she is not a domesticated animal / pet capable of protection. They have taken the view that the Act was intended to protect all commercially exploited domesticated animals, even those which cannot, for practical reasons, physically be kept in the home with their owners.
Option B is wrong because the courts are not choosing between two different meanings of the word ‘pet’. Rather, they are applying the word as defined in the Act to achieve the objectives set out in the long title.
Option C is wrong because on a literal reading the cow in question would not be a ‘pet’. This is because she does not live in the home with the farmer’s son. Rather, she lives in the adjacent paddock.
Option D is wrong because the purposive rule requires a broad interpretation that goes beyond the specific meaning of an Act, and this has not happened here.
Option E is wrong because both the long title and definition of ‘pet’ are intrinsic rather than extrinsic aids. They are part of the Act, the statute itself, not external to it.
An Act of Parliament states that all factories require an emissions licence from the local authority. The Act does not include any ouster provisions. The client had applied for a licence, but it was refused at the final hearing. The local authority did not consider any of the client’s evidence.
The client received the decision from the local authority 11 weeks ago but was in two minds whether or not to challenge it. It has today decided that it wants to file a claim for judicial review.
Can the client file a claim today for judicial review?
A-Yes, because it is within three months after the ground to make the claim first arose.
B-Yes, because there is no ouster clause in the Act, therefore there are no time limits which apply.
C-No, because all claims for judicial review must be filed within one month after the ground to make the claim first arose.
D-No, because a claim must be filed promptly, and the client clearly had been aware of the decision and unduly delayed the application.
E-No, because the decision by the local authority was just a preliminary decision and therefore there is no option to apply for judicial review at this stage.
Option D is correct. Claimants seeking judicial review must start their claims within the given time limits. Section 31(6) of the Senior Courts Act 1981 (‘SCA 1981’) allows a court to refuse a claim where it feels there has been ‘undue delay’. In addition, Civil Procedure Rules (‘CPR’), r 54.5 requires that a claim form must be filed promptly, and in any case within a maximum of three months after the ground to make the claim first arose. However, the three months is the maximum time a court will allow.
Whilst the client’s claim would be filed within three months (the decision was 11 weeks ago), it appears the client has simply delayed for no apparent reason and will therefore have unduly delayed its application and not filed the application promptly. (Finn-Kelcey v Milton Keynes Borough Council and MK Windfarm Ltd [2008] EWCA Civ 1067).
The courts do reserve a discretion to extend the time limit, but only for a good reason (R v Stratford-upon-Avon DC, ex p Jackson [1985] 1 WLR 1319). However, on the facts, there appears to be no reason provided for the delay. Therefore, the court will not exercise its discretion. The client therefore cannot file a claim.
Option A is wrong. Whilst three months is the maximum, the client must also ensure that it does not unduly delay its application. See explanation under option D above.
Option B is wrong. Ouster clauses are statutory provisions which shorten the time limit for making a claim for judicial review. Whilst the facts confirm there is no ouster clause, it does not mean that the client is free to make a claim without complying with s31 SCA and CPR r 54.5. See the explanation set out under option D above.
Option C is wrong. The time limit is not one month. See the explanation set out under option D above.
Option E is wrong. The decision was not a preliminary decision. We are told that the decision was made at a final hearing.
A case is appealed from the County Court to the High Court, where the appellate judges wish to give a judgment which departs from the High Court’s current position on the legal issue at hand.
The issue has not yet been considered by either the Court of Appeal or the Supreme Court.
In which of the following circumstances will the High Court be able to depart from its current position?
A-Where the Judges believe that the High Court’s current position actually conflicts with its own prior decision on the issue, albeit in a case which was not reported.
B-Where the Judges are aware that Parliament has approved draft legislation which will depart from the High Court’s current position, but this legislation has not yet received Royal Assent.
C-Where the Judges are aware that the European Court of Human Rights has recently taken a decision on the issue which differs from the High Court’s current position.
D-Where the Judges believe that a departure from the High Court’s current position will lead to a more just outcome in the case before them.
E-Where the Judges are aware that the Judicial Committee of the Privy Council has recently taken a decision on the issue which differs from the High Court’s current position.
Option A is correct. When sitting as an appeal court, the basic rule is that the High Court is bound by its own prior decisions, subject to three exceptions set out in the case of Young v Bristol Aeroplane. One of these exceptions is that the court can depart from its own previous stance where that decision conflicts with another one from it.
Options B to E inclusive are all wrong because the situations they describe do not fall into one of the exceptions to the basic rule set out in Young v Bristol Aeroplane.
Option B deals with draft legislation which will change the position on the issue in due course. However, this legislation will not have effect until Royal Assent has been granted to it.
Option C deals with a decision of the European Court of Human Rights and Option E deals with a decision of the Judicial Committee of the Privy Council. Decisions of both of these institutions are persuasive but not binding on the courts of England and Wales.
Option D focuses on the justness of the outcome in the case in question, but this is not one of the exceptions which would justify the court in departing from its previous position.
A criminal law firm which specialises in high value court work is approached by a potential client. The client has been charged with committing an offence of entering into an arrangement to control criminal property on behalf of another person. The client’s first hearing date has been set and he asks the law firm to represent him at court. The law firm intends to represent the client.
What action must the law firm take to avoid breaching the Proceeds of Crime Act 2002?
A-The law firm must not act for the client.
B-The law firm must seek clearance to act from the Financial Conduct Authority (FCA).
C-The law firm must seek clearance to act from the Solicitors Regulation Authority (SRA).
D-The law firm does not need to take any action.
E-The law firm must ensure that the litigation is not a sham created for the purpose of money laundering.
Option D is correct because taking steps in litigation (including pre-action steps) and the resolution of issues in a litigious context were excluded from the scope of s328 of the Proceeds of Crime Act 2002 (POCA 2002), and therefore the firm does not need to do anything.
Option A is wrong because taking steps in litigation (including pre-action steps) and the resolution of issues in a litigious context were excluded from the scope of s328 of POCA 2002.
Option B is wrong because there is no obligation on a law firm to seek clearance from the FCA to act for a client in a litigation context.
Option C is wrong because there is no obligation on a law firm to seek clearance from the SRA to act for a client in a litigation context.
Option E is wrong because the client has not started civil litigation. The client has been charged by the police meaning that (realistically) there is no risk the litigation action can be classed as a sham.
Quick Q:
A man is convicted by magistrates of a statutory offence of being in charge of a vehicle in a public place whilst unfit through drink. On appeal to the High Court (Queen’s Bench Division), the case stated by the magistrates is that the man was stopped by the police whilst intoxicated and attempting to start his vehicle in the car park of a public house during its normal opening hours. The High Court judge’s judgment includes the following passage: “Although the car park is on private land owned by the brewery company, it was at the time of the incident a place to which the public were permitted access. It was therefore a public place under the statute and I find the defendant to have been rightly convicted of the offence. Had the incident occurred at a time when the public house was closed, I would have found differently.”
Which of the following best describes the passage quoted above from the judgment of the High Court judge?
A-The passage contains both the ratio decidendi of the case and obiter dicta.
Option E best describes the passage quoted. Most of it contains the central legal reasoning for the judge’s decision in the case (i.e. that the defendant was rightly convicted by the magistrates) and includes a proposition of law (i.e. that a car park of a public house to which the public are permitted access at the relevant time is a public place under the particular statute). This is therefore the ratio decidendi. However, in the final sentence the judge comments on what their decision would have been had the facts of the case been different. This is one type of obiter dicta.
Ratio decidendi: “rationale for the decision.
Obiter dicta: “things said by the way” – observations by a judge or court about a point of law which may be interesting but do not form part of the decision
There are two trustees of a trust: one is a solicitor, and the other has no legal background. The trustee, who has no legal background, wishes to sell some trustee property and invest the proceeds in company shares to benefit the trust. She approaches the solicitor trustee for some advice about the sale and recommendations of specific companies in which to invest the sale proceeds. It is agreed between them that in addition to the remuneration the solicitor receives as a trustee, he will also be paid additional remuneration for giving advice. The advice given is deemed to be a regulated activity for the purposes of Section 19 of the Financial Services and Markets Act 2000.
Does the trustee exclusion apply?
A-No, because in giving this advice the solicitor is acting for a trustee rather than as a trustee.
B-No, because the solicitor is being remunerated for the advice and as a trustee.
C-Yes, because the solicitor is being remunerated for being a trustee.
D-Yes, because the advice given was to a fellow trustee.
E-Yes, because the purchase of shares is a specified investment.
Option B is correct. When a solicitor acts as a trustee, their actions in administering the trust (which might amount to specified investment activities) will be covered by the ‘trustee’ exclusion, so long as certain conditions are met. On the facts, the solicitor is being remunerated for the advice given (a specified investment activity) in addition to the remuneration ordinarily received as a trustee. This would mean that the exclusion would not apply.
Option A is wrong. On the facts, the solicitor is acting as a trustee not for a trustee.
Option C is wrong. On the facts, the solicitor is provided with additional remuneration for the advice itself which means that the exclusion does not apply.
Option D is wrong. Advice was given to a fellow trustee which would usually be covered by the trustee exclusion, but this option ignores the fact that additional remuneration has been given.
Option E is wrong. Shares are a specified investment. However, this is not relevant to whether or not the trustee exclusion applies.
A man is served with proceedings seeking repossession of his home. The man has a defence to the claim, but is in receipt of income support benefits and is worried he will not be able to pay the legal costs of instructing a solicitor to act on his behalf. He will need someone to conduct the entire case on his behalf.
Which of the following describes the form of legal aid work that will best meet the man’s requirements and the tests that will be applied to determine the man’s eligibility?
A-The man should apply for full legal representation; his eligibility will be assessed by reference to the merits of the case and his financial circumstances.
B-The man should apply for help at court; his eligibility will be assessed by reference to his financial circumstances only.
C-The man should apply for full legal representation; his eligibility will be assessed by reference to the interests of justice test and his financial circumstances.
D-The man should apply for help at court; his eligibility will be assessed by reference to the merits of the case and his financial circumstances.
E-The man should apply for full legal representation; his eligibility will be assessed by reference to his financial circumstances only.
Option A is correct. The man is looking to secure representation for the conduct of the entire proceedings, and will therefore want to apply for full legal representation. His eligibility will be assessed by reference to the merits of the case and his financial circumstances.
Options B and D are wrong. Help at Court covers advice and assistance in relation to a particular hearing. In housing repossession claims, this is generally only relevant to proceedings where there is no defence (and we are told that the man has a defence to the claim). The man should apply for full legal representation. (Even where a client only wishes to apply for Help at Court, that client must still demonstrate their eligibility with reference to both the merits of the case and their own financial means. Option B is also wrong for this reason.)
Option C is wrong because the “interests of justice” test is used in the context of criminal legal aid, not civil.
Option E is wrong because the man’s eligibility to full representation will be assessed by reference to the merits of his case as well as his financial circumstances.
A man wishes to organise a march into a local football stadium to protest about the rise in the cost of the entry tickets. Whilst at the police station giving the required notice the man is told by the police officer that she will impose conditions because there is concern that the march will result in serious public disorder.
Can these conditions be imposed?
A-Yes, because a police officer may impose conditions that are necessary to prevent serious public disorder.
B-Yes, because conditions may be imposed verbally.
C-No, because as the conditions are imposed before the event, they must be provided in writing by the chief officer of police.
D-No, because if the police officer had any concerns she should have used her power to prohibit the procession.
E-No, because a football stadium is not a public place and therefore the protest is not considered to be a ‘public procession’.
Option C is correct. Under section 12 of the Public Order Act 1986, the police have powers to impose conditions upon public processions in certain circumstances, such as where the police reasonably believe that a procession will result in serious public disorder. When conditions are imposed in advance, they must be provided in writing by the chief officer of police.
Option A is wrong as the conditions must be imposed by the chief officer of police.
Option B is wrong as the police officer is not able to verbally impose conditions.
Option D is wrong as under s13 of the Public Order Act 1986 the police officer does not have the authority to ban the procession. It would be the chief officer of police who can apply for a prohibition order.
Option E is wrong as s16 of the Public Order Act 1986 defines ‘public place’ to include privately owned places that the public can access on buying a ticket and therefore this would include the football stadium.
Quick Q:
Assume that Parliament passed an Act (fictitious) banning newspapers from criticising the Government. The European Court of Human Rights (ECtHR) has stated that the law is incompatible with Convention rights and the Court of Appeal has made a declaration of incompatibility under s4 of the Human Rights Act (HRA). On this basis a newspaper wants to challenge the validity of the Act.
Is the challenge by the newspaper likely to be successful?
No, because a declaration of incompatibility does not affect the validity of the incompatible Act.
Option D is the correct answer because a declaration of incompatibility under s4 HRA does not affect the operation of the Act.
It is not E: No, because under the HRA domestic courts must interpret legislation to make the legislation compatible with Convention rights and therefore its validity cannot be questioned.
Because: Option E is wrong because s3 HRA states that legislation must be interpreted in accordance with Convention rights ‘so far as it is possible to do so’, and where the courts are unable to do so will then make a declaration of incompatibility under s4.
A law firm, which is regulated by the SRA, provides legal advice in the area of corporate law. The law firm is acting for a client in a transactional matter. In the process of advising the client, a small piece of work arises involving a stockbroker. The law firm believes that the work will be a regulated activity under the Financial Services and Markets Act 2000 (FSMA).
What action can the law firm take to ensure that its work on this regulated activity does not breach FSMA?
B-The law firm must ensure that their work on the regulated activity remains complementary and subordinate to the corporate law advice being given.
E-Provided that the activity is not prohibited by the SRA, the law firm can carry out the regulated activity.
Option B is correct. The law firm as an Exempt Professional Firm (EPF) under s.327 of FSMA can work on the regulated activity, so long as that activity is incidental to the law firm’s professional services.
Option A is wrong. The law firm is already regulated by the SRA, which is a Designated Professional Body (DPB) under FSMA, and therefore cannot seek to be regulated by the FCA at the same time.
Option C is wrong. Law firms cannot be authorised by both the FCA and a DPB (such as the SRA) at the same time. A law firm is either authorised or exempt.
Option D is wrong. A pecuniary advantage from a third party (other than the client) cannot be retained by any law firm when undertaking an incidental regulated activity. Any such advantage must be accounted to the client.
Option E is not the best answer. Whilst the law firm must ensure that any activity is not prohibited (for instance under the SRA Financial Services (Scope) Rules), they must also ensure that any work undertaken on regulated activities is incidental to its main legal services if it wishes to benefit from the s327 exemption.
Twin sisters, aged 88, have lived together for their entire lives in the house in which they were born. The practical consequence of applying relevant tax law will be that when one sister dies, the surviving sister will have to sell the home to pay inheritance tax. The sisters want to use the tax-free allowance available to lawful spouses and civil partners which would allow the survivor to remain in the house. They argue that no marriage or civil partnership could last as long as their relationship as sisters. They wish to challenge the relevant tax law as being incompatible with article 8 of the European Convention of Human Rights (the right to respect for private and family life).
Which of the following best describes the likely outcome if the sisters challenge the relevant tax law?
A-The court will issue a declaration of incompatibility and will invalidate the tax law if the minister fails to remedy the incompatibility with article 8.
B-The court will refuse to issue a declaration of incompatibility since the tax law was passed by Parliament and the court has no power to challenge an Act of Parliament.
C-The court will interpret the tax law so that the sisters can use the tax-free allowance and issue a declaration of incompatibility with article 8.
D-The court will refuse to use their obligation to interpret the tax law to include a relationship between sisters since this would change Parliament’s intention.
E-The court will make a declaration that the tax law is incompatible with article 8 and order the minister to cure the defect.
Option D is correct. Under section 3 of the Human Rights Act 1998, the courts must read and give effect to primary legislation in a way that is compatible with Convention rights ‘so far as it is possible to do so’. It is unlikely that the court would be able to change the meaning of the tax law in the way the sisters want, since the tax law is plainly directed towards marital partnerships as recognised by law and not to any other type of long-term relationship.
Option A is wrong because, even if the court were to issue a declaration of incompatibility, it cannot invalidate the offending tax law if the minister fails to cure the defect.
Option B is wrong because the court does have the power to consider whether the tax law is compatible with article 8. This does not constitute a challenge to an Act of Parliament because the declaration is directed at the executive and not the legislature.
Option C is wrong since the court will not use their interpretative obligation and then issue a declaration of incompatibility. It is either one or the other.
Option E is wrong because even if the court issues a declaration of incompatibility, it cannot order the minister to cure the defect.
