Precedent Flashcards
Can courts divert from precedent?
The SC can when it appears right to do so - not just because a decision is wrong, but because a previous decisions causes injustice, impedes the development of law or itself causes uncertainty
Who is bound by the SC
The SC itself and all the lower courts
Who is bound by the CoA?
The CoA itself and all the lower courts
When can the CoA depart from its own previous decisions?
- it conflicts with another one from itself
- it’s been implicitly overruled by the SC
- was made per incuriam (through carelessness)
Is departing from a decision because it was made per incuriam (carelessly) the same as reversing it?
No
Are decisions from the High Court binding on itself?
Yes if it’s under the Administrative Court, but not if it’s in the other branches (although judges try to not depart much)
Are High Court decisions binding on lower courts?
Yes
Can the County Court set precedent or bind?
No
Can the Family Court set precedent or bind?
No
How does a decision become precendent?
1) there is a proposition of law
2) which is part of the ratio decidendi of a case
3) which is decided in a court whose decision are binding on the present court
4) and the 2 cases cant be distinguished
What is an obiter statement?
A statement/proposition of law that is nor relevant in the case but is significant for the future
What is affirming in the context of precedent?
When a higher court agrees with an appeal from a lower court
What is “applying” in the case of precedents?
When a court states it is adopting statements or reasoning from other decisions
What is departing in the context of precendents?
When a court of one level disagrees with a previous decision, on another matter, by a court of same level.
What is overruling in the context of precedents?
When a higher court comments on a previous unrelated decisions by a lower cout and declares it to be wrong
What is reversing ?
When a higher court disagrees with an earlier decision of lower courts on the same proceedings (basically whenever an appeal succeeds)
When can the High Court depart from its precedent?
When it is found to have been made per incuriam (through carelessness)
Note that only the Administrative Court binds itself - the other branches don’t actually have this power, although the judges will generally try to avoid disagreeing
When does the in pecurian principle apply?
When the court appears to have relied on incorrect law
Is the County Court bound by the High Court?
Yes but it can find to disagree
How does criminal jurisprudence differ from civil?
It is usually only ever drawn from appelate decisions (whilst in civil most ratio decidendi can be precendent)
Can there be an appeal from one area of the High Court to another?
No - only to higher courts
Can there be an appeal by way of case stated in the High Court?
No - only Crown Court
What will allow a leapfrog appeal?
Urgent need to obtain authoritative interpretation
Can unlawfully obtained evidence be admitted?
Yes
Unless it has an adverse effect on the fairness of proceedings
Are constitutional convenctions binding?
They are considered binding to the extent that there should be no deviation from them, but there is no enforcement per se
What is the Salisbury Convention?
HoL will not reject legislation that gives effect to an important manifesto commitment of the democratically ellect gov
What is the Sewel Convention
The UK parliament will normally only legislate on a matter that has been devolved to the Scottish P if the latter gives consent
Is an Act that breaches a convention unconstitutional?
Might be but the courts won’t refuse it for that reason (and there would be no legal remedy if that were the sole reason)
What are prerogative powers
Non-statutory
Can be used by Government but not in a way that contradicts statutory power and may need Parliament’s voting approval (eg if its to authorise expenditure)
What can Gov do if they have lost a case in the SC?
Introduce legislation into Parliament to retrospectively change the law and effectively override the judgement
What is a sub judice
A formal law of Parliament following the Bill of Rights 1689 (NOT constitutional convention)
What are the superior courts in the UK
Supreme Court
Court of Appeal
High Court
Crown Court
What are the inferior courts in the UK
County Court
Magistrates Court
Family Court
Which are trial courts
Those that will hear the matter at first instance and rule on issues of fact and law
CIVIL:
High Court
Family Court
County Court
CRIMINAL
Crown Court
Magistrate’s Court
Which are the appellate courts
Those that reconsider the application of legal principles to a case that has already been heard by a lower court
Allows errors of law, and occasionally fact and procedure, to be corrected
CIVIL
Court of Appeal
High Court (all 3 divisions)
Family Court
CRIMINAL
Court of Appeal
High Court (only KBD)
Appeal route for summary trials
Appeal route for trials on indictment
What is the Enrolled Act rule
Once an Act of Parliament has been entered onto the Parliamentary roll, courts will not question its validity or hold it do be void
Courts can’t even investigate proceedings that have taken place in P to determine whether there has been any irregularity of procedure or fraud
What did the Acts of Union did?
18th century Acts which helped form the UK and made it explicit that preservation of a separate Scottish legal system and the Church of Scotland
What was the impact of the Scottish Act 2016?
Increased the range of devolved powers, including power to vary income tax rates and thresholds
a) Scottish P and Scottish Gov are permanent parts of the UK’s constitutional arrangements
b) neiter Scottish P nor Scottish Gov can cease exsiting without a referendum
c) UK P will not normally legislate on devolved matters without consent of the Scottish P (Sewel convention)
Can the Scot P pass Acts? (primary leg)
Yes, technically it can
But it can only rule on matters not reserved by UK P and it’s powers also come from an UK P Act (Scotland Act) = may only legislate to the extent that it is given power to do so by the UK P
Can P repeal any previous Act?
Doctrine of implied repeal may not appeal to ‘constitutional statutes’ - P needs to show actual intention (express words, so specific) for it to be repealed
What is the difference between constitutional statutes and ordinary statutes?
constitutional statutes are:
a) condition the legal relationship between citizen and state in some general, overarching manner, OR
b) changes the scope of fundamental constitutional rights
What is the entrenchment theory (manner and form)?
Discussion that although P can’t bind future P as of content of legislation, could bind it by enforcing difficult procedures for passing leg
(for example, saying that such Act would only be repealed by popular referendum or specified majority)
Can an earlier Parliament bind a future P?
Doctrine of express and implied repeal prevent earlier P from binding future P as to CONTENT of legislation. But there is debate regarding binding over the PROCEDURE which future P must use to enact legislation (this is the manner and form, or entrenchement theory)
**exception of Acts of P that enact EU leg: they retain supremacy
What are Henry VIII powers?
Powers included in legislation introduced by Gov - permits relevant ministers to amend or even repeal the statute and sometimes other states as well by delegated leg without reference back to P (i.e permit ministers to make changes to Acts of P through delegated legislation)
Does rule of law trump partliamentary sovereingytN
Unclear - maybe
Supremacy of EU law
During time when UK was in EU and throughout transition period (from date of whitdrawl) until actual leaving date (31 Dec 2020) (Withdrawal Agreement)
Types of EU legislation
Primary source: treaties (set out institutional framework + powers + give power to legislate in various areas by adopting secondary leg)
Secondary Legislation:
a) Regulations
b) Directives
c) Decisions
d) Recommendations and opinions
What are EU Regulations
(secondary leg)
directly applicable and automatically binding on all Member States without need for any further leg by Member States
What are EU Directives
(second type of secondary leg)
set out objectives to be achieved and oblige Member States to pass domestic legislation to implement those objectives (set a date)
What are EU Decisions
(third type of secondary leg)
directly binding in the same way as regulations but only on those addressed (member states, companies, individuals)
What are EU recommendations and opinions
last type of secondary leg
not binding
What is vertical direct effect
EU legislation have direct impact (being enforced) against state or state body
What is horizontal direct effect
EU legislation being enforced against private bodies
what type of EU legislation can have vertical and horizontal effect
regulations and decisions
what type of EU legislation can only have vertical effect
directives
how can an EU legislation have direct effect
- needs to be sufficiently clear
- precise and unconditional
- must not require any additional measures, either at national or EU level
**for directives also need to have a time limit
What was the effect of the ECA in UK legislation?
UK courts had to read legislation in a way compliant with EU law (doctrine of indirect effct) AND if it was not possible, courts had to give precedence to directly effective EU law and set aside inconsistent national legislation
Was EU law subject to implied repeal?
no
Could the state be held liable by citizens against non-implementation of EU law?
yes, potentially.
If the state failed to implement a directive (vertical leg) which then had a negative effect on a citizen (eg an employee), this individual could seek damages against gov
(because directive is vertical and only concerns state bodies, employee wouldn’t be able to seek damages against employer thus gov was best solution)
Does the principle of EU supremacy still apply?
yes, to retained EU law = if there is a conflict between pre-Brexit EU law and pre-Brexit UK law, EU law will take priority
Examples of retained EU law
- EU-derived domestic legislation (secondary leg and Acts of parliament which were used to enact EU law at the time)
- Direct EU legislation (those that apply directly to the UK, such as regulations and decisions)
- rights arising under s2(1) ECA 1972 (EU rights and obligations that do not fall under either of the 2 categories above)
are domestic courts bound to follow ECtHR judgement/HRA?
must take it into account, but not bound (although in practice normally do follow)
+
primary and secondary leg must be interpreted in accordance with convention rights ‘so far as it is possible’ (for both leg before and after HRA)
+
court is allowed to make declaration of incompability, which does not invalidate or affect operation of offending Act
–> a minister introducing a bill into P must first make a declaration of compatibility (or not) but incompatibility won’t stop HoC from proceeding with Bill
= weak method of incorporation (compared w incorporation of ECA)
does a declaration of incompatibility invalidate legislation?
no
simply a legal statement that in the opinion of the court, the legislation contravenes the ECHR
+ no legal obligation to amend it (although it may be attached to a political pressure)
What is the view on P freedom of speech?
Controversial - originally privileged only covering proceedings in P
but this can be extended
general rule: privilege encompasses ancillary matters such as words spoken or written and actions taken outside core proceedings themselves but which are of necessity connected to those proceedings
Example of how P freedom of speech has changed
Claiming Hansard to take into account statements made by P ministers or other promotes of a bill when construing legislation (when its wording is obscure or ambiguous) is something that would have been considered a breach of privilege before
Can courts question validity of an Act on the basis that the correct procedures have not been followed?
no
this is in line with P’s doctrine of ‘exclusive cognisance’
Is examination of MP’s expenses by courts against the core essential doctrines of P?
no
can do it
although P did set up the IPSA (Independent Parliamentary Standards Authority) to deal oversee and regulate MP’s expenses
Are MPs immune from civil and criminal proceedings?
Yes - regarding anything they say in parliamentary proceedings (even if absolutely defamation)
Privilege is ABSOLUTE
BUT
courts have decided that criminal proceedings may be brought againsts MPs for false accounting in relation to expenses claims, as this does not interfere w P’s core business
Can MPs be arrested for something they do during proceedings (eg slap another MP)
Yes because parliamentary privilege will only prevent civil arrest WHILE Parliament IS IN SESSION not criminal arrest.
Problem with Henry VIII powers
Allowing use on a regular basis may damage P sovereingty
Henry VIII powers enable the substance of large Bills to be processed by Parliament while leaving the details to the executive. This may mean there is a lack of clarity such that Parliament have not had the opportunity to debate the full terms of the proposed legislation. This issue was raised by the Lord Chief Justice in 2010 (Lord Judge) who said that if it occurred too frequently there would be a risk of damaging the sovereignty of Parliament
What is the key difference between a federal state and the UK?
Whilst the UK has devolved powers, P remains supreme and could legally revoke those powers - it retains power to legislate on devolved matters and override devolved legislatures
+ unlike federal state, power is not divided between the different levels of gov (still centralised)
Can Scottish P pass primary leg?
Yes, can pass their Acts of Scottish Parliament, which also receives Royal Assent
Which Acts of the ScotP would not be considered law?
Any outside their legislative competence
This includes:
- law of any territory other than Scot
- laws related to reserved matters
- laws modifying certain enactments, including specified provisions of the Union w Scoland Act insofar as they relate to freedom of trade, EU Withdrawl Act, HRA
- laws incompatible with the ECHR and, until the transition period ended, with EU law
- would remove the Lord Advocate from their position as head of the systems of criminal
prosecution and investigation of deaths
**minister in charge of bill must make statement that provisions are within scottish legislative competence
What statements must be made when ScotP passes an act?
Statement of legislative competence from minister passing bill and another one from Presiding Officer
What happens if the Presiding Officer’s statement of legislative competence declares it outside?
They should give reasons for it but is not conclusive and does not preclude bill from proceeding
–> the bill can be referred to the SC to check compatibility
What happens if a provision of a Scot Act can be read as outside its legislative competence?
should be read narrowly as required for it to be within competence
Does the Sewel Convention affect P sovereingty?
no - there is no legal obligation for P to seek Scot consent before passing leg (eg as it was in the EU)
technically only provides a political constraint - not role of courts to police it
HOWEVER, when P wants to legislate on a devolved matter, it usually seeks ScotP consent
How does ScotP give consent to UK legislating on devovled matters?
Legislative Consent Motions (LCMs)
How can devolved institutions be abolished (ScotP, Senedd Cymru, WelshP)?
Referendum
Can the National Assembly (wales) pass primary leg?
Yes - Act of Senedd (AoS), which also requires Royal Assent
On what can the Senedd legislate?
All powers not explicitly reserved by P (eg defence, foreign affairs, immigration, constitutional matters) (reserved powers model)
Big difference in devolved powers in Senedd and ScotP?
Criminal justice is devolved in NorthernI and ScotP, but reserved in Senedd (although Senned could create new offences relating to devolved matters)
+ Senedd also has special tax powers (so does ScotP)
Does the Senedd have legislative restrictions?
Yes, very similar to ScotP - Act outside their competence is not law
= minister introducing must make same statement as ScotP (and these can be referred to SC if incompatible)
Can Senedd enact secondary leg?
Yes, on both UK and Welsh parent act (subject to affirmate and negative procedure)
Is Wales a separate jurisdiction?
no
Is scotland a separate jurisdiction?
yes
is NI a separate jurisdiction?
yes
3 strands of Good Friday Agreement
1) democratically elected assembly with a power-sharing executive
2) North-South council (develops policies on agriculture, education, environemnt)
3) British-Irish Council (with basically everyone to ensure harmonious and mutual beneficial relationships)
How is power given to the N.I Assembly?
Follows the reserved powers model, but calls it ‘transferred matters’
How is an act passed in NI Assembly?
minister in charge of a bill must make a statement on or before its introduction that its within the legislative competence of the Assembly. The Presiding Officer
(the Assembly’s equivalent to the Speaker) must refer to the Secretary of State any bill that the Presiding Officer considers relates to an excepted or reserved matter.
Entrenched legislation that NI Assembly cannot amend?
HRA 1998, NIA 1998, ECA 1972 (until transition period ended), or leg that discriminates against any person or class on religious or political beliefs
Difference between Sewel Convention in NI and Scot and Wales
In NI it does not have statutory recognition
How can a legislation passed by a devolved legislature come before the SC?
1) be refereed by a devolved or UK law officer (including AG) (bill which has been passed but not received royal assent yet)
2) through an appeal from certain higher courts in England, Wales, Scot, NI
3) through a reference from certain appellate courts
Can devolved legislatures be challenged on common law grounds (eg irrationality)?
NO
only on grounds that it overrules reserved matter/violates the ECHR
What is the Joint Ministerial Committee?
A set of committees with ministers from the UK and devolved govs to provide central co-ordination of the relationship
There are also sub-commmittees, such as the JMC EUrope and the JMC EU Negotiations
What are NI ‘excepted matters’?
Those that will always remain UK P responsibility: Areas specifically listed; eg defence, foreign affairs, UK-wide taxation
NI reserved matters:
Currently UK P responsibility but NI Assembly may be asked to be transferred:
eg broadcasting, consumer safety,
intellectual property
NI transferred matters:
Everything not excepted/reserved, eg
agriculture, environment, health,
justice and policing
!! be careful to remember that for other devolved legislature, devolved matters carry the meaning that transferred matters have in NI
does the Enrolled Act rule apply to devolved legislature?
no
Can P legislate contrary to fundamental principles of human rights?
Technically yes (P sovereingty) but the principle of legality (coming from rule of law) requires P to squarely confront what its doing and accept the political costs
What is the principle of legality?
Fundamental rights cannot be overridden by general or ambiguous words. This assumption can be displaced only by ‘clear
and specific provision to the contrary’.
Is there formal separation of powers in the UK?
no, although quite contradictory the separation of powers is a doctrine that underpins our constitution and states that there should be no overlap between branches (but there is no formal system to ensure this)
a) legislative (P) - makes law
b) judiciary (courts) - resolves disputes about law
c) executive (gov) - implements/administers law
non-justiciable areas of Gov and areas where P has limited control?
royal prerogatives (matters of national security, defence of the realm, deployment of armed forces)
- although a convention has developed that before troops were committed, HoC should have the opportunity to debate (except when there is an emergency or not appropriate)
legal restrictions on the exercise of royal prerogative
Ratification of treaty is a prerogative power but can be limited by P
The Constitutional Reform Act 2010 put parliamentary scrutiny on treaty ratification by the Gov on a statutory basis = if HoC thinks Gov should not ratify a treaty, it can resolve against it and make it unlawful for Gov to go ahead
–> this doesn’t prevent Gov from ratifying but they will have to issue a statement
Article 10
freedom of expression
Article 11
freedom of assembly and association
+ peaceful assembly and freedom of association
Can the state restrict Article 11
(freedom of assembly)
Yes, if restrictions are:
- prescribed by law and
- necessary in a democratic society (in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others)
Public assembly legal?
yes, as long as its not violent and as long as they keep moving (may amount to wilful obstruction)
- but courts look at whether they acted reasonably and had a reasonable reason for doing so (can acquit them)
Does the police need specific powers to deal with processions and meetings?
yes because they are prima facie lawful
- police has statutory powers (POA 1986) and some common law powers to prevent breach of peace
Do you need permission to do a procession?
no, but need to give police at least 6 clear days notice of date, time and route
–> Football supporters on their way to watching a match or schoolchildren being led from their school to a local library are outside the notice requirement
Which processions do not need to give notice?
Does not apply to funeral procession, nor customary or commonly held processions in the given area (as police should be aware its a common occurrence) (for example, no need to give notice of Remembrance Day or Diwali parade)
–> can be held common and customary even if it does not always follow same route!!! (like an annual marathon)
There is also an exception for when it is not reasonably practicable to give notice (ie impromptu reaction to sudden gov news)
Offences under s11 (procession)
1- first offence if dont give notice (defence is that they did not know and had no reason to suspect the notice was not complied with)
2- 2nd offence if procession differs from what notice specified (defence that departure was beyond organiser’s control or form something done with agrement of the police and by their direction)
Is a procession held without notice unlawful?
no, the procession in itself is fine - only the organisers are liable of committing an offence
When can the police impose conditions on a procession?
When a SENIOR police officer believes that:
- march will result in serious public disorder, serious damage to property or serious disruption to the life of community
- when the purpose of the organiser is to intimidate others (compelling them to do/not to do something they want) (= intimidation is more than just discomfort!)
- where noise can cause significant impact on those in the vicinity or serious disruption (‘more than minor hindrance to day-to-day activities’ = low threshold) of the activities of an organisation
What conditions can a senior officer impose of a procesion?
Those that appear necessary to prevent such disorder, damage, disruption or intimidation (could be prescribing route, prohibiting march from entering public place)
How must conditions to a procession be given,
- ahead of the procession: in writing, with sufficient reasons, by a Chief Constable
- during the procession: by a senior office present at the scene, may be done verbally
Conditions must be proportionate with article 11
Can a procession be prohibitted?
Yes, by a chief officer of police, if they reasonably believe just imposing conditions isn’t enough to prevent a serious public disorder
What is the procedure to banning a procession?
The chief police officer needs to apply to the local authority, who then makes an order with the Home Secretary’s consent (local authorities have no power to seek a ban on their own - must come from police)
** in London, the Commissioner of Police for the City of London or the Commissioner of Police of the Metropolis makes the order for the same reasons as apply outside London, with the Home Secretary’s consent
Limits/powers of banning a procession
Can be for max of 3 months
Can ban all procession or only those of a particular class (eg political marches)
BUT there is no power to ban a specific individual procession
Order must be in writing
Courts relation to judicial review on procession decisions?
Courts are reluctant to quash what are essentially operational decisions
Can the police ban assemblies?
(meetings)
No, general rule is that they have no power to ban assemblies as power to impose conditions is regarded as being sufficient
*there is however, a power to ban ‘trespasrory assemblies’
Is permission required to hold a meeting?
Technically not, but local or private Acts of P or byelaws may lay down requirements for permission
A meeting on private land obviously requires permission of the owner (otherwise trespass)
When can conditions be imposed on public assemblies?
Senior officer can impose condition on any public assembly they reasonably believe may result in public disorder, serious damage to property or serious disruption to life of the community OR that the purpose of organisers is intimidation
Do organisers of public assemblies need to give notice?
no
What is a public assembly?
very wide definition - assembly of 2 or more people, in public space that is wholly or partly open to the air
(eg group gathering in garden of pub is a public assembly)
–> difference with procession is that the purpose of the assembly is indiferent
What are the purposes for which processions need to give notice?
1- mark or commemorate an event
2- publicise cause or campaign
3- demonstrate support or opposition to views or actions of any person or body of persons
What conditions can police impose for meetings?
like for procession - any that they believe necessary (subject to their reasonableness and proportionality)
- also like processions, any conditions imposed in advance need to be in writing and give adequate reasons - those imposed during assembly can be verbal
Ways the police can circumvent the lack of power to ban an assembly
they may order participants to disperse
may impose conditions as to duration of meeting (ie in 5 min) although it must be proportionate
Can the police impose conditions on one-person protests?
Yes
Where the noise created may cause a significant impact on those in the vicinity or serious disruption to activities of an organisation
Defence for participants of an assemly?
if they can show that their failure to comply with conditions was beyond their control
Can also prove that the conditions are invalid (but the new power to pass conditions based on noise the assembly may create might limit this defence)
What is a trespassory assembly?
one with 20 or more people, on land in the open air which the public has no or only a limited right of access
*police does have power to ban this (different from normal assemblies)
What are the conditions for banning trespassory assemblies?
chief officer of police must reasonably believe that it is intended to hold a trespassory assemble:
- without permission of the occupier or outside terms of permission
- which may result in serious disruption to the life of the community of significant damage to land, building or monument which is of historical, archaeological or scientific importance
What are the limits on ban of trespassory assemblies?
Cannot last more than 4 days
Must not apply to greater area than 5 miles circus
Home Secretary needs to consent to order (or in London with consent of Secretary of State)
Is breach of peace a criminal offence?
No but at common law, police have power to arrest if breach of peace has occurred and also to prevent one from occuring
Can the police disperse a gathering if they fear for breach of peace?
Yes, if they reasonably fear
! but these common law powers are only available if the breach is IMMINENT
Does the police need a warrant to entry to prevent breach of peace?
no
Can the police prevent breach of peace if it adversely impacts innocent bystanders?
Yes, provided the police’s decision is no arbitrary deprivation of liberty and are employed in good faith and are proportionate
When can the common law powers of preventing breach of peace be used by the police
When they reasonably fear and IMMINENT breach, and the police’s conduct must be a proportionate response to the situation, ensuring they do not violate the Convention rights
When should an organiser of a public procession give notice?
6 days before procession
If the purpose of the procession is to desmostrate support or opposition, mark or commemorate an event or publicise a campaign
And if the written notice is practicable
Overall of when conditions/ban can be imposed on any sort of demonstration?
What is judicial review (JR)
mechanism by which the courts ensure public bodies act within their powers and do not abuse them - its not concerned with the merit of their decisions, but with the procedure
Does JR conflict with parliamentary sovereingty and the Enrolled ruled?
no because JR is only concerned with secondary legislation + the court is only examining the body acted in accordance with powers granted by P (so its actually upholding parliamentary sovereingty)
What are the grounds for JR
domestic grounds:
irrationality (substantive ground)
illegality (substantive ground)
procedural impropriety
‘European’ grounds:
breach of the ECHR
breach of retained EU law
When can illegality be claimed as a ground for JR?
when the action is illegal/ultra vires because the powers claimed do not exist or because they are exceeded or abused in some way
(eg charging a fee for something they don’t have the power to)
What is the exception to the rule in delegation?
1- Carltona principle = gov ministers can sub-delegate their decision-making powers to civil servants in their dep
2- local authorities can delegate decision-making powers to committees/sub or even individual officers ONLY IF they make a FORMAL resolution so to do
Can decision-making powers be delegated?
no
eg a local board cannot delegate its employment-terminating powers to a separate committee
(this would be acting ilegally = illegality for JR)
What does it mean to fetter discretion?
when P provides a public body with a discretionary power and they:
a) acting under the dictation of another
b) apply a general policy as to the exercise of discretion in too strict a manner
Is a decision with dual purpose ultra vires?
not, provided that the primary purpose of the decision is permitted/authorised (otherwise can be challenged under illegality)
+ as long as the unathorised purpose didnt materially influence the making of the decision
What is the impact of errors of law in a decision regarding JR?
errors of law that affect a decision will aways be amenable to judicial reviews
Are errors of fact in a decision sufficient to call for JR?
On limited grounds:
- jurisdictional errors of fact (errors of fact that go to the root of public authority’s capacity to act) (for example making a judgement on basis that someone was an illegal immigrant to the UK but in reality they are legal)
non-jurisdictional errors of fact are usually not amendable
A local authority has a statutory power to buy land compulsorily unless it is residential land, including parks and gardens. The authority makes a compulsory purchase order in respect of some farmland. The owner asserts that the land is in fact part of a park. Is this an error or law or of fact, and, if the latter, is it ‘jurisdictional’?
Question of fact and jurisdictional (precedent fact)
A statutory tribunal has power to fix rents for unfurnished lettings. The relevant statute provides that a letting is furnished if a substantial part of the rent is attributable to the use of furniture. The tribunal fixes the rent of a flat in one case where the landlord has provided a threadbare carpet and a broken settee. The landlord objects on the grounds that the flat is furnished. Is this an error or law or of fact, and, if the latter, is
it ‘jurisdictional’?
Error of fact and jurisdictional because the tribunal has no power to deal with a furnished letting
What is necessary for a successful challenge on the grounds of irrationality
Very high degree of unreasonableness –> decision needs to be so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person could have arrived at it
What is the difference between procedural and substantive grounds?
Procedural grounds of review differ from the substantive grounds in that they focus not on the decision itself, but instead on the procedure followed in arriving at the decision under review.
What are the common law rules of procedural fairness?
1- rule against bias (decision-maker should have no person interest)
a) direct interest = leads to financial gain (and sometimes non-pecuniary interest - when the decision-maker is involved in promoting the same cause as the party in the case) = courts need to quash
b) indirect interest = for example relative of decision-maker has an interest = can’t quash automatically, needs to investigate relationship
2- right to a fair hearing (this is a flexible right though and depends on the context of each individual case)
what is the test for indirect bias?
(procedural impropriety)
would a fair-minded and impartial observer conclude that there had been a real possibility of bias?
Its not about whether the decision was in fact affected by the bias decision-maker, but how the decision would appear to the observer
What is a key factor in determining whether the courts held a fair trial?
the question of how much the claimant had to lose (nature of claimant’s interest)
What are the types of applicant in a fair hearing?
1- forfeiture
2- legitimate expectation
3- mere applicant
(often about licences - think if they’ve already had one for long, first time applying, what to they have to lose)
types of legitimate expectation applicants
(under right to a fair trial, under procedural impropriety)
1- procedural legitimate expectation (decision-maker has failed to follow a normal procedure)
2- substantive legitimate expectation (decision-maker has led someone to believe that they will receive a benefit)
Does the right to a fair hearing always apply?
might not apply in cases where for example the decision made is merely preliminary (for example if someone is not dismissed yet but merely suspended upon further investigation)
What are the contents of right to a fair trial
(part of procedural impropriety ground)
depends on what type of case
- forfeiture: claimant should know the case against them and have a right to rely at each stage of decision-making process
- legitimate expectation: depends very much on the expectation that the decision-maker created
- mere application cases: as a general rule, allowed to have their cases heard honestly and without bias
Does the right to a fair trial include right to hear reasons for decision?
no - there is no general duty for that
although exceptions exist
1- where the decision appears aberrant (cries out for explanation)
2- where the subject matter is particularly import, for example, personal liberty
Does the right to a fair hearing mean right to a full hearing?
not in every case, depends on the character of the decision-making, the kind of decision it has to made and the statutory or other framework in which it operates (although a claimant in forfeiture usually will) BUT every claimant is entitled to a fair and reasonable hearing in all circumstances
What is the difference between mandatory and directory requirements?
(this is in the context of acting ultra vires)
failure to comply with a mandatory requirement renders a decision invalid on ultra vires grounds, whilst a failure to comply with directory requirements does not
what distinguishes between mandatory and directory requirements
the wording of the statute and the substantial negative impact it has on claimants (does the non-compliance substantially prejudice claimants?)
ultimately the question should be whether it had been P’s intention that failure to comply with the requirement would render the decision unlawful
What’s a substantive legitimate expectation?
when decision-maker has led someone to believe they will receive a benefit
It arises only where the public body has made a specific undertaking, directed at a particular individual or group
–> although public bodies will not normally be legally bound to maintain a policy that they have reasonably decided to change
When is JR an appropriate method?
when it is against a public body on public law grounds (NOT tort.- negligence etc)
can public law claims be raised in private law proceedings?
usually no, unless when it is a mixed claim
HOWEVER, a public law issue could be raised as a defence in private law proceedings (‘collateral challenge’)
Who can bring a claim for JR?
someone who has a personal interest in it (standing)
What are the time limits of JR?
can be declined if there has been undue delay, and in any case, if 3 months have passed since the grounds for claim first arose (in planning and proccurement cases is 30 days)
can courts extend the time limits of JR?
only with good reason (not obliged)
- ignorance of availability of JR is unlikely to be a good reason
- not sure they had a standing is unlikely to be good reason (and bringing claim after 2 months for example would be undue delay)
What are Ouster clauses?
Clauses that can be inserted by P into Acts of P where it wishes to exclude any right of challenge once a decision has been made by a public body
BUT
Ouster clauses will never protect decisions which were never legally valid (up to court to decide)
What are the types of Ouster clauses
1) full ouster clause (no challenge at all and excludes court from playing any role in review of decision) (but incorrect decisions ie when body has stepped outside of its power would mean the ouster clause in this regard is ineffective and courts can judge)
2) partial ouster clause (provides some opportunity for decision to be challenged via JR) (eg allows a challenge but only if made within 6 weeks)
can a court extend a time limit imposed by a partial ouster clause
no, the court has no such discretion
Will the court usually allow for JR where the claimant has failed to make a proper use of statutory procedures to obtain a remedy?
no
Procedure for bringing a JR claim
1- Pre-Action Protocol for JR (send letter to decision-maker to give them 14 days to consider decision and maybe avoid legal proceedings)
2- permission stage
3- substantive hearing stage
What is considered in the permission stage
does claimant have standing
was the claim brought within time limits
(also considers whether its going to bring a substantially diff outcome to claimant)
what is considered at the substantive hearing stage (JR)
its the hearing
before judge in the Administrative Court, usually confined to arguments in law
Following hearing judge gives judgement
what must the claimant state in the claim form for JR (Administrative Court)
1- request permission to proceeding and the remedies sought
2- state, or be accompanied by, detailed statement of ground and facts relied on and supporting evidence
what are possible remedies in JR?
Prerogative orders (against public bodies only):
1- quashing order
2- prohibiting order
3- mandatory order
what is a quashing order
nullifies decision court has found to be unlawful (JR)
BUT court does not substitute it with their decision
original decision-maker needs to reconsider decision in light of court’s judgement (can reach the same deciison again)
can quashing orders be conditional?
yes
and they can also be targeting only future decisions and not invalidating past actions
when are mandatory orders used
for example to compel a body to consider an application they had previously refused to
when are prohibiting orders used?
rarely as usually would use an injunction, but to prevent body from implementing a decision
what are non-prerogative orders?
these are private law remedies to JR proceedings
1- declaration (confirms, but does not change, legal position or rights of parties)
2- injunction
3- damages (but claim must have a private law action (tort or contract) or a claim for breach of a convention right
what happens if a def ignores a declaration (JR)
its a non-coercive order so can be ignored without any legal sanctions
are judgements of the ECtHR binding on the UK?
yes, as international law
how can proceedings be started following violation of ECHR?
1- state applications: other signatory states can bring it
2- individuals stating their convention rights have been breached as a result of domestic law (but domestic law remedies must first be exhausted)
applicants must personally and directed be victims and have suffered significant disadvantage
time limit for individuals to bring claim of ECHR
4 months from final decision (in the UK would be decision of highest UK court having jurisdiction)
can ECtHR require states to change their law?
yes, as a remedy - but decisions are only binding as a matter of international law (no direct binding force in domestic law) = relies on willingness os states
what happens if ECtHR finds a case inadmissible?
nothing - there is no right to appeal
qualify article 3
freedom from inhuman and degrading treatment - absolute
2 stage process by which cases are brought before ECtHR
1- admissibility stage
2- merits stage
How can conventions be divided?
1- absolute rights: state must uphold them at all times, cannot be interefered with
2-limited rights: rights can only be limited in clearly defined and finite situations
3- qualified rights: balance between rights of the individual and public interest so can be interferd with to protect public interest
qualify Article 2
right to life - absolute
qualify article 4
freedom from slavery - absolute
qualify article 7
punishment
according to existing
law - absolute
qualify article 8
respect for
private and family life - qualified
Article 9
freedom of
thought, etc
Absolute in relation to
freedom of thought, etc.
Qualified in
relation to
manifestation of
freedom
in worship,
teaching,
practice or
observation
article 10
freedom of
expression) - qualified
article 11
qualified
freedom
of assembly and
association
article 12
right to marry - but according
to national law governing
the exercise of the right
Article 1 of Protocol
1
right to peaceful
enjoyment of
possessions - qualified
are domestic courts bound by judgements of the ECtHR?
no, but must take them into account
relationship between primary and subordinate legislation and convention rights?
legislation should be read, as far as possible, in a way that is compatible with rights
Can a public authority and court contravene the convention rights?
no - unlawful
what happens if legislation is not compatible with act?
courts have power to declare it incompatible but this does not affect validity, continuing operation or enforcement of provision in question (puts political pressure though)
what are remedial orders?
discretionary decision by gov to amend or repeal offending legilslation that is not compatible with convention rights
(another possibility is submitting a bill to P to amend of repeal offending legislation)
is it always unlawful for public bodies to contravene conventions?
no if they are acting as a result of Act of P (could not have acted differently), or if they’re enforcing provisions of Act of P that is incompatible
The case of R (Swami Suryananda) v Welsh Ministers (8.14.2) is also an example of a judicial review case, albeit an unsuccessful one. The Hindu community had applied for judicial review of the decision by Welsh ministers to slaughter a bullock belonging to the community to stop the spread of bovine tuberculosis. Although the court accepted the community’s Article 9 rights
(freedom of religion) were engaged, the slaughter was a proportionate response to a serious situation.
can pressure groups be claims for breach of convention rights?
no because they are not victims for sake of convention
victim = individual or organisation directly affected
can pressure groups bring claims of judicial review?
it may have standing, court should consider:
1- need to uphold rule of law
2- importance of issue raised
3- likely absence of any other responsible challenger
4- nature of the alleged breach of duty
5- role of pressure group (particularly important)
**a group of people affecting bringing a claim together do not categorise as a pressure group, since each individual is personally affected
when does a claimant have standing to bring JR claim?
if they have sufficient interest in the matter to which the claim realtes
are damages awarded for breach of convention rights?
may be, where it is necessary to afford just satisfication
but in most cases not necessary because there will be a common law cause of action under which to award damages, or in JR will quash order
test of proportionality for breaching convention rights
1- is objective of restriction order sufficiently important to justify limiting a fundamental right
2- is the restriction order rationally connected to this objective
3- would a less intrusive measure than restriction could have been used
4- regarding these matters and severity of consequences, has a fair balance been struck between rights of individual and interests of community
how can individuals bring claims against private bodies for breaching convention rights?
due to the ‘horizontal effect’ of the convention (courts have developed low to give effect to convention rights in horizontal claims)
`misuse of private info test (naomi campbell drug pics)
does the claimant have a reasonable expectation of respect for ther private life in the particular circumstances (objective)
+ is it in the public interest for the material to be published?
Where human rights are engaged, the court must apply the ‘proportionality’ test (Bank Mellat – see 8.14.2) Where two qualified Convention rights (Articles 8 and 10) are engaged the position is more complex than when considering an interference with a single right
look at comparative importance of the actual rights being claimed in the individual case, justifications for restricting or interfering with each right aand then apply proportionality test to each
does the fact that an action occurred in public or in private determine factors as to whether individual has a reasonable expectation of respect for their private life?
no
!! princes caroline of monaco succeeded in claim that paparazzi pics of her skiing, shopping, with her children breached her Article 8 private life because she exercised no official function and the photos related exclusively to details of her private life
= fact that someone is a public figure does not mean they have no right of respect for their private life when in a public place
** differ this frm the pictures accompanying article on her father = public interst to see how they reconcilled his illness and their lvies
overall view of pictures of celebrities and does it infringe their right to private life
to be sustained, photographs must contribute to a genuine debate of general interest
all depends on the circumstances if there is a reasonable expectation of privacy or not + particular weight on need to protect children of parents in public eye from media attention
new tort of invansion of privacy?
no
but new tort of misuse of private information yes
when is IP completion day
11:00pm 31 Dec 2020
what’s the impact of TCA in UK leg?
makes UK statutes existing at the time that the EU(FR)A 2020 came into to force that do not comply with the relevant provisions of TCA - they are automatically amended to give effect to the TCA
when did retained EU law come into force?
at the end of the transition period (IP completion day)
EU-derived-domestic legislation
secondary legislation that was enacted before the end of the transition period to implement EU Directives and Regulations into UK law
May also include some Acts of P
What Direct EU legislation is converted at the end of transition period?
Regulations and decisions (it is the english language text that exists on IP completion day that is covered)
Decisions addressed to non-UK member states are not converted
+
if schedules have already been converted by EU-derived-domestic legislation, won’t be converted under this head as well
what EU leg is binding in UK?
1) EU-derived-domestic leg from before end of IP
2) Direct EU Legislation from before IP
3)Rights arising under s2(1) of ECA 1972 (ensures that any remaining EU rights and obligations that do not fall within the scope of ss2 and 3 become part of retained EU law) (its the right that is retained, not the text of the article itself)(biggest example is equal pay under Equality Act 2020)
are directives retained EU law?
no because they are retained as eu-derived-domestic legislation
BUT rights that have been recognised by a UK or EU court or tribunal before IP are considered retained EU law
one way how directives can be retained
the type of rights granted by a given Directive must have been recognised by a court pre-IP completion day. For example, the principle of equality has been recognised many times in case law. Accordingly, a Directive that prohibited discrimination on the grounds of
race, disability, religion or sexual orientation could provide a directly effective right not to be discriminated against, even if that particular Directive had not been the subject of case law
status of EU law retained under s2 (EU-derived-domestic leg)
same status as pre-IP (primary or secondary)
*primary can only be challenged on basis that it contravenes another provision of retained EU law that should prevail over it
status of EU law retained under s3 and s4
1) principal EU leg (mostly regulations) (eg compensation for flight delays)
2) minor EU leg (any retained Eu law not retained under the principal principles) (tertiary legisltion)
main difference between principal and minor Eu law?
principal: must be amended or repealed by primary leg. repealed by secondary leg in very limited circumstances:
- when primary leg has given ministers Henry VIII poewrs
- when ministers are using powers under EUWA 2018 to correct deficiencies in retained EU law
minor: can be repealed or amended by primary or secondary leg normally
how to interpret retained EU law?
by reference to relevant retained case law and retained general prinicples of EU law (if this is consistent with intention of modification) (principle of indirect effect)
does indirect effect apply to all UK leg?
no - limited to retained EU law (before IP did infact apply to everything)
(principle that national law should be interpreted in accordance with wording and purpose of EU law)
are judgements of the CJEU binding?
persuasive only
how are general EU principles retained?
if they were recognised by EU case law before IP day (include things as proportionality, equality, fundamental rights and subsidiarity
failure to comply with EU general principles
does not give right to action (+charter has also been disapplied)
exclusion of state liability
yes, since IP day
But claims for francovich damages which begun within the period of 2 years begining with IP completion day are sustained (so far as the proceedings relate to anything that occured before IP completion day
retained EU law and declarations of incompability?
retained direct principal EU legislation is treated as primary
legislation for the purposes of challenges under the HRA 1998, ie it can be subject to a declaration of incompatibility, but that finding does not affect its continued validity. Conversely, retained direct minor EU legislation is treated as subordinate legislation for HRA 1998 purposes, so it can be declared invalid if held to be incompatible
