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SQE > Public > Flashcards

Public Flashcards

1
Q

What is the Lord Chancellor responsible for and what duties does he owe?

A

For administration of course system and is SoS for Justice
Has legal duty to uphold independence of judiciary and must not seek to influence judicial decisions

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2
Q

Who is the Lord Chief Justice and what is their role?

A

Head of Judiciary
Represents views of judiciary, responsible for welfare, training and guidance of judiciary and for deploying judges/allocating work

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3
Q

What is ‘Right of Audience’?

A

The right of a lawyer to appear and conduct proceedings in court on behalf of their client
They can carry out rights in MC, County Court, Tribunals & Appeal Tribunals
Not authorised for higher courts where barristers do

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4
Q

What is the court hierarchy of criminal courts?

A

MC
Crown Court
Administrative Court
Court of Appeal
Supreme Court

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5
Q

What is the appeal system for civil cases?

A

District Judge (County)
Circuit Judge (County)
High Court
Court of Appeal
Supreme COurt

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6
Q

What is ‘leapfrog’ appeal?

A

Cases of high importance, which are very likely to reach Supreme Court, can bypass CoA to save time and costs

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7
Q

What are the ‘senior courts’?

A

Crown Court, High Court, CoA and Supreme Court

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8
Q

What are High Court judges known as?

A

Masters

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9
Q

What is the meaning of ‘stare deisis’?

A

Binding precedent

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10
Q

When is a precedent established?

A

As soon as a ‘point of law’ has been decided by a superior court

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11
Q

What 2 things can precedent be?

A

Binding: must be followed
Persuasive: considered by later court & may be followed

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12
Q

What is the meaning of ‘ratio decidendi’?

A

Reason for the decision - the part that is binding

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13
Q

What is the meaning of ‘obiter dictum’?

A

Judge comments on an area of law which is not necessary to reach a decision on - not seen as binding

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14
Q

When may a court ‘distinguish’ from precedent?

A

By finding a difference in the material facts

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15
Q

What is the difference between ‘reversed’ and ‘overruled’?

A

Reversed: case goes to appeal & higher court disagrees with lower court
Overruled: higher court in later case decides original precedent is wrong & sets new precedent

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16
Q

What are the rules of precedent for each court?

A

MC, Crown & County = not binding
First Tier Tribunal = not binding but may be persuasive
Upper Tribunal = binding on 1st Tier Tribunal, inferior courts & itself
High Court = inferior courts & itself (except decisions taken by single judge)
CoA = inferior courts & itself
Supreme = inferior courts & itself

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17
Q

What are the 2 types of legislation?

A

Primary: Acts of Parliament
Secondary: laws created by ministers under powers of Acts

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18
Q

What are the 2 types of primary legislation?

A

Public: matters of general public concern
Private: particular people or places

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19
Q

What is the structure of an Act of P?

A

Short Title
Long Title
Date Enacted
Subject Matter grouped into Parts

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20
Q

What are the 4 approaches of statutory interpretation?

A

Literal Rule: words given ordinary, plain & natural meaning
Golden Rule: take whole of statute together & construe it all together, giving words their ordinary signature - unless it produces absurdity/inconsistency
Purposive Approach (most common now): first consider ordinary meaning in general context of statute & then other possibilities where absurdities result
Mischief Rule: what was law before act pass to discover what gap the act was intended to cover

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21
Q

What 3 linguistic presumptions are there and their meaning?

A

Expressio Unius Est Exclusion Alterius (Exclusion of another): list of terms w/ no general words following - P only intended to include those items
Ejusdem Generis (of the same kind): generic list followed by general words - same kind of objects (common characteristics) to specific words
Noscitur a Sociis: not followed by general words, words understood in context of statute itself

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22
Q

How is the UK constitution described?

A

Uncodified - written & unwritten rules meaning it has capacity to change & evolve over time

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23
Q

When is a rule/Act considered constitutional?

A

When it conditions the legal relationship between citizen and state in some general, overarching manner

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24
Q

To achieve a significant change in constitutional arrangements, what must be done?

A

An act must be passed

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25
Q

What are the functions of Parliament?

A

Debate & scrutinise proposed legislation
Propose amendments to legislation
Scrutinise public expenditure & taxaiton
Extract info from executive & hold it to account

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26
Q

What is the role of the Speaker of the House?

A

Manages and controls direction/tone of debate
Remains politically impartial and must resign from their political party
Has full authority to enforce rules of behaviour on HoC

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27
Q

What are parliamentary committees and what are the two types?

A

They scrutinise work of gvt and examine proposals for primary/secondary legislation
Select: investigate work of individual government departments
Public Bill (Legislative): debate & amend proposals for new legislation

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28
Q

What type of legislation can HoL consider but not block/amend?

A

On public finances

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29
Q

What is parliamentary sovereignty and the key elements to it?

A

P has right to make or unmake any law whatsoever, and no person/body can override/set aside legislation of P
1. P is supreme law-making body
2. No P can be bound by a predecessor or bind a successor
3. No person/body can question validity of an enactment of P

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30
Q

What are some examples showing that there are no substantive restrictions on P?

A

P can legislate contrary to fundamental rights (consider legality principle)
P can legislate contrary to international law
P can pass legislation that has retrospective effect (even if undesirable to rule of law)

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31
Q

What are the 2 methods of repealing an Act?

A

Express: legislation passed that expressly states an intention that an earlier action be replaced (must be done for constitutional statutes)
Implied: new act is partially/wholly inconsistent with a previous one, of which is repealed to extent of inconsistency

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32
Q

What is the enrolled bill rule?

A

If a bill has been enrolled, it’s impossible to go behind it

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33
Q

What are some limitations to P’s power?

A

Devolved legislation
Practical politics

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34
Q

What is the legality principle?

A

P can enact laws which undermind human rights but must state its intention in crystal clear terms

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35
Q

What are courts’ approach to ouster clauses? Which ouster clauses are generally upheld?

A

Courts are hostile & use highly purposive statutory interpretation to not prevent them from challenging gvt - seen as an affront on their constitutional role
Generally uphold time ouster clauses

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36
Q

What is a scheme of delegation?

A

Powers given to ministers but in practice, are exercised by an official of lower rank

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37
Q

What is the Carltona principle?

A

Action of gvt department officials are synonymous with actions of minister in charge

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38
Q

What limit is there on executive power?

A

Can only act when it’s expressly authorised, by statute or common law
If they act in excess, courts can intervene through HR

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39
Q

What constitutional principles are the gvt and ministers subject to?

A

Laws may not be suspended w/o consent of P
All taxes requires P’s consent
Habeus Corpus: restrictions imposed on arbitrary imprisonment and punishment of citizens
Freedom from arrest
Impeachment: P can enquire into alleged illegal acts by ninsters

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40
Q

What is collective ministerial responsibility?

A

All gvt ministers are bound by collective decision of the Cabinet
1. Confidentiality: ministers shouldn’t disclose confidential matters discussed in Cabinet
2. Unanimity: once a decision has been reached, all ministers should publicly agree with gvt policy - if they can’t, should resign
3. Confidence: if confidence retreats, can table vote of no confidence where if gct loses, strong conventional pressure on PM to resign

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41
Q

What is individual ministerial responsibility?

A

How ministers should behalf and conduct their duties - now shadowed/supplemented by Minsterial Code

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42
Q

What are the Maxwell Fyfe Guidelines

A

Distinguish between situations:
1. Where minister made explicit order and/or civil servant acted properly in accordance with policy, minister must protect them - minister should resign
2. Where an official makes a mistake/delay and/or took action which minister disapproved of/had no knowledge of, and is not an important policy decision/or official’s action is reprehensible, minister doesn’t need to resign

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43
Q

What is the policy/operational divide?

A

Responsibility for policy = minister
Implement policy = other officials
Minister may not be accountable if failure is with implementation

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44
Q

What duty is there on ministers regarding informing Parliament?

A

Ministers have duty to account, and be held to account, for policies, decisions and actions of their departments
Ministers must give accurate/truthful information
If they knowingly mislead P, expected to resign

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45
Q

What is the Ministerial Code?

A

An unenforceable set of rules for ministers to follow
Investigation of a breach, and any consequences, are entirely at discretion of PM

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46
Q

What does the Ministerial Code cover?

A

Collective responsibility (unanimity & confidentiality)
Proper & transparent engagement with P
Avoiding conflicts of interest
Proper use of gvt resources
Should be professional in all dealings

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47
Q

What is the civil service and what constitutional principles underpin it?

A

Supports gvt of the day to develop/implement policies
Permanence: doesn’t change with new gvts
Political Neutrality
Anonymity: not public facing & minister politically accountable

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48
Q

What are Accounting Officers?

A

Personally responsible for regularity and propriety of expenditure, robust evaluation of different mechanisms for delivering policy objects, and value for money

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49
Q

What are Senior Responsible Owners?

A

Senior Civil Servants personally responsible for delivery of major gvt projects, expected to account to P for their decisions/actions on implementation
They can be called to give evidence by Select Committees

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50
Q

What is the fundamental difference between ministers & civil servants?

A

Civil servants can be dismissed for deciet and incompetence

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51
Q

Where does ultimate responsibility for policy implementation lie with?

A

Minister

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52
Q

What is devolution and devolved legislation?

A

Devolution: grant by UK P of legislative powers to devolved legislatures and administrations
Devolved Legislation: legislation produced by 3 devolved Parliaments or assemblies of S, W and NI

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53
Q

What is the difference between devolved and reserved matters?

A

Devolved: areas of gvt where decision making has been delegated to relevant devolved administration
Reserved: decisions still taken in Westminster even though they have effect in S, W and NI

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54
Q

What is the Sewel Convention?

A

Where UK P want to legislate on a devolved matter, they won’t normally do so w/o devolved institution passing a legislative consent motion
It doesn’t have binding legal effect so Westminster can still do so w/o consent
Applies to S, W and NI

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55
Q

What personal powers does the monarch still have left?

A

Appointing PM
Dissolving P in some circumstances
Giving royal assent to Acts of P
- these are limited by constitutional convention

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56
Q

What remaining prerogative powers does the monarch have?

A

Summoning and proroguing P
Appointing/dismissing ministers
Mobilising armed forces
Negotiating treaties

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57
Q

What are constitutional conventions?

A

Rules about conduct of gvt which are not legally enforceable - creates rules & standards of behaviour
If inconsistent with law, law prevails

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58
Q

What conventions are there on the legislature?

A

HoL should defer to HoC
HoL should not reject at 2nd reading any gvt legislation that HoC passed (Salisbury-Addison convention)
Financial bills are only introduced by a Cabinet minister in Hoc
Westminster P won’t normally legislate on devolved matters (Sewel convention)
HoC should be consulted before gvt embarks on foreign policy involved armed forces

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59
Q

What conventions are there on the executive?

A

Monarch acts in accordance with advice given by ministers
Monarch won’t exercise right to refuse royal assent
Monarch appoints as PM leader of party who commands confidence of HoC
PM choose Cabinet ministers
After vote of no confidence, gvt resigns and advises monarch to dissolve P
Monarch asked for consent to proposed acts affecting monarch’s intentions

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60
Q

What conventions are there on the judiciary?

A

Judges aren’t politically active
P must not criticise professional conduct of judges

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61
Q

Where do consequences of breaching a convention play out?

A

In political world (not legal)

62
Q

What are prerogative powers?

A

Power exercised w/o parliamentary approval

63
Q

How are prerogative powers been recognised?

A

By common law

64
Q

What ministerial prerogative powers are there?

A
  1. Judicial System: prerogative of mercy - HS can pardon people with criminal offences
  2. Foreign Affairs: grant/revoke passports; recognition of other sovereign states; making of treaties
  3. Defence of the Realm: taking of measures in times of emergency incl. control of armed formes
65
Q

What is the Crown’s legal prerogative?

A

Presumption that Crown is not bound by statute unless express words used or can be inferred
Immunity from some legilsation

66
Q

How are prerogative powers controlled?

A

The Courts (JR)
Statute has overriding effect
Political pressure or changes in convention

67
Q

What was the impact of GCHQ?

A

Extended reviewability of prerogative powers
It is legally enforceable as it’s recognised by courts through common law therefore, judges can determine how and to what degree to control its use
They can only be reduced in scope, never expanded

68
Q

What is the De Keyser principle?

A

As statutory power takes precedence over prerogative powers, statutory powers ‘abridge’ older prerog powers
Prerog powers may still apply if directed towards benefit/protection of an individual

69
Q

How do separation of powers and prerogative powers interact?

A

Judiciary attempt to respect appropriate informal lines of responsibility
Non-justiciability

70
Q

What is the courts’ approach to justiciability after GCHQ?

A

Courts tailer degree of intervention by basing it on nature of power gvt used, rather than its form
If matter is one of higher policy, low intensity of review e.g. diplomacy

71
Q

What is the concept of Parliamentary legitimacy?

A

P is accountable to the people as they were democratically elected

72
Q

What happens with MPs and criminal offences?

A

Need not inform Speaker if MP has been arrested on suspicion (unless affects attendance) or released on bail pending appeal
Judge informs Speaker if MP sentenced to prison
If sentence > 1 year, MP disqualified

73
Q

What is the Parliamentary Committee on Standards?

A

Investigates breaches of the Code of Conduct
Doesn’t have powers to expel but its recommendations are likely to be followed
They can order copies of docs, attendance of MPs and decide whether to hear evidence in public or private
Can recommend MP apologise, be suspended or expelled

74
Q

What is parliamentary privilege?

A

Range of freedoms/protections both Houses require to function effectively
1. Right of each house to control its own proceedings
2. Right to speak freely w/of ear of legal liability (courts won’t allow challenge on this basis but won’t allow misuse of privilege)
3. Freedom of arrest (may not be arrested w/o order/sentence of the House except for a criminal charge or criminal contempt of courts) - exempts members from summons as a witness

75
Q

What is the difference between HoC and HoL Select Committees?

A

HoC: scrutinise gvt departments
HoL: more thematic scrutiny

76
Q

When must the gvt reply to select committee reports?

A

W/in 60 days of its publication

77
Q

What happens if a person summoned before a Select Committee refuses to attend?

A
  1. Reported to House
  2. Order made for their attendance
  3. If that’s ignored, warrant may be issued
78
Q

What is the concept of separation of powers?

A

3 branches of state should be separated
Degree of which is not always distinct in UK

79
Q

What legislative functions do the Executive have?

A

Can create secondary legislation as long as authority from primary
Henry VIII Clause: allows executive to amend/repeal provision in an Act using secondary legilsation

80
Q

What are 3 levels of scrutiny of secondary legislation?

A
  1. No scrutiny
  2. Negative Instruments: become law w/o debate or vote in P
  3. Affirmative Instruments: require both House to approve a draft SI in vote
81
Q

What is the difference between intra and ultra vires?

A

Intra: done w/in power given & thus, lawful
Ultra: done outside power given and thus, unlawful

82
Q

What judicial immunity do judges enjoy?

A

They’re immune from legal proceedings for tortious actions

83
Q

What can P do if it believes Court has exceeded their authority in making law?

A

Can pass legislation

84
Q

What is the rule of law?

A

Operates as check on executive power by regulative executive act only on basis of lawful authority

85
Q

What is the ‘formal’ perspective on rule of law?

A

Legal procedure must be clear and certain
Law must be prospective
Law must be clear
Law must be applied equally
Judiciary must be independent
Moral content of law is not determinative

86
Q

What is the ‘substantive’ perspective on rule of law?

A

Same formal requirements but also a moral component: w/o respect for fundamental human rights, a rule of law society cannot be said to exist

87
Q

What is the relationship between rule of law and separation of powers?

A

Judiciary’s role as guardians of the rule of law
SoP intrinsic to rule of law as executive prevented from exercising its power arbitrarily

88
Q

What fundamental principles are there of the rule of law?

A

Law should be accessible, clear and predictable
Legal issues should be resolve through legal processes
Law should apply equally to all
Law should afford adequate protection of human rights
Access to justice w/o inordinate delay or expense
Public officials should exercise powers in good faiths & w/in time limits
Legal processes should be fair

89
Q

What is the presumption under the legality principle?

A

P can’t be seen has having intended to restrict important rights and freedoms unless made clear

90
Q

For JR, what can’t courts review?

A

Primary legislation (but can assess where a public body complied with an Act & legality of delegated legislation)

91
Q

What are the 2 procedures for secondary legislation?

A
  1. Affirmative Resolution: SI must be debated and approved by both houses; Joint Committee on SIs scrutinises it before put to P
  2. Negative ResolutionL SI doesn’t need active approval
92
Q

What is the process of passing primary legislation?

A
  1. Starts as a bill (Government or Private Members’)
  2. 1st Reading
  3. 2nd reading: debated by MPs & may be amended
    Committee Stage: details scrutinised by legislative committee
  4. Report Stage: proposed amendments debated & vote on committee’s report in both Houses
  5. 3rd Reading: final debate & vote - no amendments can be made in HoC
  6. Final Stage: both houses agree on text, sometimes moving back and forth between them
93
Q

When does an Act of Parliament take effect from?

A

Day it receives Royal Assent unless contrary provision in statute

94
Q

What was the effect of the Parliament Act 1949?

A

Bill sponsored by gvt can be sent for Royal Assent w/o HoL approval if Lords have refused to consent for 1 year

95
Q

What is the notice requirement for public processions?

A

Minimum 6 clear days’ notice of date, time and route of procession
Failure to do so amounts to an offence
Exception: those commonly/customarily held in area in which it’s proposed or a funeral procession

96
Q

When can police impose conditions on public processions?

A

If senior police officer reasonably believes that it may result in serious public disorder, serious property damage or serious disruption to community; or purpose is the intimidate of others w/ view of compelling them to do/not to do something
When conditions imposed in advance, must be in writing

97
Q

What offences are there for public processions?

A

Person who (a) organises or (B) takes part, who knowingly fails to comply with a condition is guilty
(Defence: failure arose due to circumstances beyond their control)
Person who incites another to commit an offence above

98
Q

When can a chief police officer apply for a prohibition order for public processions?

A

If they believe that they won’t be able to prevent holding of procession or will result in serious public disorder
- Can’t exceed 3 months & must get consent from HS
Doesn’t apply to London

99
Q

What is a ‘public assembly’?

A

Meeting comprising 2 or more people in a public place that is wholly/partly open to air
No obligation to give notice & purpose is irrelevant

100
Q

When can police impose conditions on public assemblies?

A

If senior police officer reasonably believes that it may result in serious public disorder, serious property damage or serious disruption to community; or purpose is the intimidate of others w/ view of compelling them to do/not to do something
Reasons must be given & sufficient info

101
Q

What is a trespassory assembly?

A

20 or more persons hold at place public has no/limited rights to attend (open to the air)

102
Q

When can police impose conditions on trespassory assemblies?

A

Likely to be held w/o occupier’s permission or will exceed limits & may result in:
- Serious disruption to life of community
- Where land/building/monument on it is of cultural importance, serious damage

103
Q

What is ‘breach of the peace’?

A

Whenever harm is actually/likely to be done to a person to his property in his presence, or person fears being harmed
Not a criminal offence

104
Q

What guiding principles are there on police powers for breach of the peace?

A

Must be reasonable apprehension of sufficiently imminent BoP for powers to be exercisable
Powers only lawful if not arbitrary, developed in good faith & proportionate

105
Q

What does JR examine?

A

The legality of a decision, not its merits

106
Q

Is there an absolute right to bring a JR claim?

A

No - must apply to court for permission
Only appropriate if no suitable alternative remedy

107
Q

Can the executive ignore/override court decisions?

A

Yes, but shouldn’t

108
Q

What remedies are there for JR?

A

Interim: sometimes grounds for an injunction
Final: Quashing Order - overturns decision, must take decision again applying correct law/procedure; Prohibitory Order - prevents them from continuing to act unlawfully; Mandatory Order: compels public body to perform a duty imposed by law
Damges (not common & low value)

109
Q

What issues are there before pursuing a JR claim?

A

Amenability
Procedural Exclusivity
Standing
Time Limits
Ouster Clauses

110
Q

What is amenability?

A

Is the matter appropriate for JR?
Only public law decisions & non-public bodies with a public element

111
Q

What are the exceptions to need for procedural exclusivity

A

Neither party objects to private law procedure
Contested decision was collateral

112
Q

What is the test for standing?

A

Sufficient Interest:
- Individuals personally affected by decision
- Public interest groups
- Individuals representing wide public interest
Professional regulatory bodies representing members; interests
Standing has been held for individuals with ‘sincere concern’ for constitutional issues
Not substantially different test: where applicant wouldn’t have been substantially different had correct law/procedure been followed

113
Q

What time limits are there for JR claims?

A

Claim must be failed (a) promptly, and (b) in any event, no later than 3 months after grounds to make claim first arose
Can be extended
Can be refused even if within 3 months if not prompt

114
Q

What are the 4 possible grounds for JR?

A

Illegality
Irrationality/Unreasonableness
Procedural Impropriety
Legitimate Expectation

115
Q

What is the ground of illegality and its sub-categories?

A

Acting ultra vires: decision-maker must understand correctly the law that regulates their decisionmaking power and give effect to it
1. Simple Illegality (not if reasonably incidental or consequent)
2. Errors of Law
3. Errors of Fact (precedent, no evidence, ignorance or mistake)
4. Relevant & Irrelevant Considerations (mandatory, prohibitory and discretionary facts)
5. Improper Purpose
6. Fettering Discretion
7. Unlawful Delegation (except statutory & Carltona Principle)

116
Q

What is the ground if irrationality/unreasonableness and the different classes?

A

Where a decision on a competent matter is so unreasonable that no reasonable authority could have come to it (very high threshold)
1. Material defects in Decision Making Process
2. Oppressive Decisions
3. Decisions that Violate Constitutional Principles
Apply different intensity of reviews

117
Q

What is an area of ‘super-Wednesbury’?

A

Areas deemed too political and not within proper ambit for JR

118
Q

What is the ground of procedural impropriety and the 2 areas within it?

A

Failure to follow correct statutory procedure and/or act fairly in a more general sense
1. Failure to Observe Procedural Statutory Rules (look at consequences & consider whether P would’ve intended invalidity)
2. Duty to Act Fairly: right to be heard and rule against bias

119
Q

When will the duty to act fairly within procedural impropriety not arise?

A

Where there are overriding concerns of national security
In emergency cases for public safety
Rationing of resources case
Where person has waived right to fairness

120
Q

What is the ground of legitimate expectation and its 2 forms?

A

An expectation of either a procedure or benefit, arising from a representation or promise made by a public body, or an established practice, protected by law
1. Procedural Legitimate Expectation: public body has promised/represented/been an extended practice
2. Substantive Legitimate Expectation: assurance/promise has led person to believe they’ll get a tangible benefit

121
Q

What is the courts approach to looking at legitimate expectation?

A
  1. Has an expectation arisen?
  2. If so, is the expectation legitimate? (clear promise, legality, agency, knowledge of representation/past practice at time, reliance)
  3. Has the public body lawfully frustrated the LE? (is there sufficient public interest to override LE - fairness & proportionality)
122
Q

Why was the HRA 1998 passed?

A

To ensure ECHR rights were directly enforceable in the UK due to the UK’s dualist system

123
Q

What is the difference between absolute and qualified rights?

A

Absolute: can never be restricted
Qualified: can be interfered with

124
Q

When can qualified rights be interfered with?

A

a) Legitimate in restriction (e.g. national security, public safety, protection of crime/disorder etc)
b) Restriction is prescribed by law
c) Restriction is necessary in democratic society & proportionate to aim pursued (answers pressing social need)

125
Q

What key ECHR principles are there?

A
  1. Positive Obligation: duty to prevent a violation of rights being carried out (but not interpreted in a away that would impose an excessive burden on states)
  2. Margin of Appreciation Doctrine: states allowed a certain measure of discretion but ultimate supervision is with ECHR (less discretion when individual rights are affected)
  3. Proportionality: balance between general community interests & requirements of protection of individual’s fundamental rights
126
Q

What does s2 HRA 1998 state?

A

In determining legal questions, courts must consider ECHR case law (more of a dialogue than mirror in UK)

127
Q

What does S3 HRA state?

A

Legislation must be read and given effect to so far as it’s possible in a way compatible with Convention rights

128
Q

What does s4 HRA state?

A

If s3 not possible, court may make a declaration of incompatibility

129
Q

What does s6 HRA state?

A

It’s unlawful for public authorities (court/tribunal; person whose functions are of a public nature) to act in an incompatible way with Convention rights

130
Q

What does s7 HRA state?

A

Applicant must have standing to bring a claim i.e. be a victim of unlawful act
Can be natural or legal persons but grounds can only do so where rights as a group have been violated (not on behalf of others)
Actions under HRA must be started within 1 year of date of act complained of

131
Q

What is derogation?

A

In some circumstances, state can derogate from some Convention rights, rendering them inapplicable for a specific period of time

132
Q

What absolute ECHR rights are there?

A

Art 3 Freedom from Torture or Degrading Treating
Art 4 Prohibition of Slavery and Forced Labour
Art 7: Prohibition on Retrospective Criminal Offences

133
Q

Expand on Art 3

A

Inhuman/Degrading Treatment: serious ill-treatment or neglect; if not actual bodily harm, physical and mental suffering
Torture: aggravated, deliberate & cruel form of treatment
Positive obligations: investigate; states must take action to prevent people from being subject to this

134
Q

What limited ECHR rights are there?

A

Art 2: Right to Life
Art 5: Right to Liberty and Security
Art 6: Right to a Fair Trial

135
Q

Expand on Art 2

A

Positive Obligations: state must investigate when it takes a life; must have criminal justice system; prevent death when life at risk; doctors must prevent death through negligence
Investigation must be public, independent and full participation
Operational duty to take preventative measure to protect lives at risk or from suicide

136
Q

When is deprivation of life not in contravention of Art 2?

A

In defence of anyone from unlawful violence
To effect lawful arrest
To quell riots/insurrection

137
Q

Expand on Art 5

A

Not to be arbitrarily detained
Right to be informed of reason for arrest, to compensation for an art 5 breach and to be promptly brought before a judge
Won’t be violated where prescribed by law or justified by limitations

138
Q

Expand on Art 6

A

Presumption of innocence
Fair and public hearing w/in reasonable time by independent and impartial tribunal

139
Q

What qualified ECHR rights are there?

A

Art 8 right to respect for private & family life, home and correspondence
Art 9 freedom of thought, conscience and religion
Art 10: freedom of expression and information
Art 11: freedom of association and assembly

140
Q

Expand on art 8

A

Private life includes a person’s physical and moral integrity, and personal identity
Home life should be protected from invasion and intrusion
Not restricted to traditional family or marriage

141
Q

What is the indirect horizontal effect?

A

Courts must act compatibly with Convention so under duty to apply/develop common law in accordance with Convention
Must be a pre-existing cause of action against other party

142
Q

For misuse of private information, what process is followed?

A
  1. Does applicant have reasonable expectation of privacy (if not in public domain)?
  2. Balancing exercise between art 8 and 10, and consider whether publication is necessary
  3. Justification for restrictions
  4. Proportionality test applied for each
143
Q

What are the 2 categories of EU Law?

A

Primary
Secondary

144
Q

What are examples of secondary EU law?

A

Regulations, Directives and Decisions
Case law of EU Court of Justice

145
Q

What is the difference between regulations, directives and decisions?

A

Regulations: directly applicable in legal systems of all member states
Directives: binding as to result but left to states to choose form/methods
Decisions: legally binding only on parties to whom are addressed

146
Q

What is retained EU law made up of?

A

EU derived domestic legilsation
Direct EU legislation (regulations, decisions or tertiary legislation in force and applicable in domestic law immediately before end of transition period)
Other UE law

147
Q

What are overarching legal principles and is the UK still bound by them?

A

Aid interpretation, assess lawfulness, and determine lawfulness
Yes - those recognised by Court of Justice before end of transition (not those after)

148
Q

What is the principle of supremacy of EU law?

A

National law can’t override EU law
Applies to British law made pre-transition period but not those after

149
Q

How can retained EU law be modified?

A

By an Act of Parliament
By other primary legislation
By subordinate legislation made under Henry VIII clause

150
Q

Can UK courts make preliminary references to Court of Justice anymore?

A

No
Supreme Court also not bound by retained EU law

151
Q

How does parliamentary sovereignty interact with retained EU law?

A

P retains right to override EU law and Withdrawal agreement by using express words
However, when passing legislation, presumption is that P intended to comply with EU law
HRA: S2, S3, S4, S6

SQE (15 decks)

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